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Back to: Eighth Session of the Ad Hoc Committee
General: Bearing in mind the need to formulate the text in a simple and accessible but still precise manner, the draft final clauses have been kept to the minimum necessary, in particular in order to avoid language on standard activities undertaken by the depositary.
Clause A, Depositary: By clearly designating the SG as depositary, some of the language existing in final clauses of other treaties can be omitted (cf. Art. 76 – 80 of the Vienna Convention on the Law of Treaties).
Clause B, Signature: The suggested date for opening for signature is kept open in order to encourage earliest possible adoption. At least six weeks should be allowed for the preparation of certified true copies by the depositary.
Clause C, Consent to be bound: The term “formal confirmation” is the corresponding term to “ratification” by international organizations (cf. Article 2 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations).
Clause D, Regional integration organizations: It has been suggested to open the Convention for regional integration organizations (RIO’s, such as the European Union/European Communities). The wording of this article draws from similar provisions in other treaties. It is suggested to concentrate the specific provisions on RIO’s as much as possible in one article, in order not to overburden other provisions. Clause D (3) is formulated to ensure the principle of non-additionality (it is clearly excluded that treaty actions by RIO’s trigger the entry into force of the convention or of an amendment thereto). Para. (4) addresses the issue of voting rights of RIO’s in the Conference of States Parties. The same wording is suggested here as in Article 32 of the WHO Convention on Tobacco Control.
Clause F, Reservations: It is suggested to include a short provision on reservations, reflecting the most important rule of treaty law in this respect, namely that reservations may not be incompatible with the object and purpose of the Convention. It is suggested not to include language on standard activities of the depositary (circulating reservations) and other elements which are governed by the default rules of the Vienna Convention on the Law of Treaties (Art. 19 – 23). Reservations may of course also be withdrawn.
Clause G, Amendments: Paragraph 1 deals with the adoption of amendments by the Conference of States Parties. The word “deciding” is used in the draft instead of “voting” in order to underline that the Conference can also take decisions without a vote.
Paragraph 2 deals with the entry into force of an amendment and clarifies that, as a standard rule, an amendment shall be binding only on States Parties which have accepted it. Since an amendment enters into force after 2/3 of States Parties have accepted it, this standard rule will always result in two legal regimes, one for States Parties which have accepted the amendment, and one for those who have not yet done so.
Paragraph 3 establishes a mechanism by which such a dual regime will be avoided with respect to certain institutional or procedural amendments where dual regimes are not practical. One example would be future changes to the institutional nature of the monitoring mechanism in light of ongoing treaty body reform. There are several precedents for such simplified amendment procedures in existing treaties (e.g. Art. 108 UN Charter, Art. 122 ICC Statute, Art. 316 UNCLOS, Art. XVIII IAEA Statute, Art. XX FAO Constitution, Art. XVII WHO Constitution, etc.).
There are several safeguards for States which might be concerned that they could be bound by amendments which they can not accept:
1.) The article will specify to which articles this formula will apply, and these articles will not deal with the substantive obligations of States Parties. I have preliminarily identified these articles on the basis of the draft provisions of an implementing mechanism submitted by the Facilitator to the AHC; this reference would have to be reviewed at a later stage. Please note that, in particular, Art. 37 of the draft provisions (individual complaints) is not referred to here, nor is Art. 39 which clarifies that States Parties shall cooperate with the implementation mechanism only “to the extent of the Committee’s functions that the State Party has accepted”.
2.) This simplified procedure can only apply if the amendment has been adopted by the Conference of States Parties without a vote.
3.) As an additional, last-resort safeguard the draft contains a provision on denunciation to which States Parties could resort to if they consider it appropriate.
Clause H, Denunciation: Upon request by some delegations, a standard clause on denunciation has been added (identical to Art. 52 CRC).
Clause I, Authentic texts: The text has been reduced to the minimum necessary; no reference is made to standard activities of the depositary.
Stefan Barriga
Liechtenstein