1. FINAL CLAUSES OF MULTILATERAL TREATIES
OLA/UNITAR Seminar on treaty law and practice

2. FINAL CLAUSES What are final clauses?
Treaty provisions regulating procedural aspects of the treaty operation.
Flexible provisions covering a vast variety of matters.
Generally perceived as purely technical provisions but often involving policy decisions.

3. FINAL CLAUSES
Treaty making: substantive and procedural matters are decided by negotiators.
Vienna Convention on the Law of Treaties, 1969 (Vienna Convention, 1969) codified and developed treaty law and State practice. A remarkable example of successful codification of rules and flexible framework to accommodate important developments in State practice.
Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 1986,[1] deals with treaties between one or more States and one or more international organizations, and treaties between international organizations. In essence, this Convention codified the practice of international organizations participating in treaties.
[1] Not yet in force

4. FINAL CLAUSES
ST/SGB/2001/7 of 28 August 2001 on Procedures to be followed by departments, offices and regional commissions of the United Nations with regard to treaties and international agreements.
“Section 4.2: treaties and multilateral agreements to be deposited with the Secretary-General must have their draft final clauses submitted to the Treaty Section for review and comment prior to finalization.”

5. FINAL CLAUSES
A multilateral treaty may be drafted in different forms. However, the common practice is for a treaty to consist of one instrument that is comprised of:
Title
Preamble
Main text
Final Clauses
Testimonium
Signature pages
Annexes (if any)

6. FINAL CLAUSES Topics Participation Signature Consent to be bound
Reservations
Declarations
Entry into force
Provisional application
Depositary
Registration and publication
Relationship to other treaties
Settlement of disputes
Amendment
Status of annexes
Withdrawal/denunciation
Duration/Termination
Authentic texts

7. FINAL CLAUSES Immediate legal effect
Once adopted, a treaty produces certain legal effects: final clauses become immediately applicable.
Vienna Convention, 1969, article 24 (4):
"The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of adoption of its text."

8. FINAL CLAUSES Depositary
Treaties should clearly designate the depositary in a separate provision stating for example:
The Secretary-General of the United Nations shall be the depositary of this [Convention, Protocol, Agreement, etc.].
The inclusion of provisions listing depositary functions is superfluous as depositary functions are well established and codified in article 77 of the Vienna Convention, 1969, unless, of course, additional duties are added.

9. FINAL CLAUSES Participation All States clause
Provisions on participation identify the categories of States or organizations that may become Party.
Certain treaties can only be implemented by States by reason of their nature and full competence in respect of the subject matter of those treaties.
Rome Statute of the International Criminal Court, 1998, article 125:
“Signature, ratification, acceptance, approval or accession
1. This Statute shall be open for signature by all States in Rome, at the headquarters of the Food and Agriculture Organization of the United Nations, on 17 July Thereafter, it shall remain open for signature in Rome at the Ministry of Foreign Affairs of Italy until 17 October After that date, the Statute shall remain open for signature in New York, at United Nations Headquarters, until 31 December 2000.
2. This Statute is subject to ratification, acceptance or approval by signatory States. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations.
3. This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations.”

10. Participation
A treaty may contain provisions on participation of international organizations.
Agreement on the Establishment of the International Vaccine Institute, 1996, article IV:
“This Agreement shall be open for signature by all states and intergovernmental organizations…“

11. Participation
When a treaty contains provisions on participation of international organizations, it may identify the organizations that participation is open to or specify the characteristics and competencies that the organizations must possess.
United Nations Convention against Transnational Organized Crime, 2000, article 36:
“ 2. This Convention shall also be open for signature by regional economic integration organizations provided that at least one member State of such organization has signed this Convention in accordance with paragraph 1 of this article.
3. This Convention is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations. A regional economic integration organization may deposit its instrument of ratification, acceptance or approval if at least one of its member States has done likewise. In that instrument of ratification, acceptance or approval, such organization shall declare the extent of its competence with respect to the matters governed by this Convention. Such organization shall also inform the depositary of any relevant modification in the extent of its competence …”

12. Participation
Convention on the Rights of Persons with Disabilities, 2006:
“Article 42
Signature
The present Convention shall be open for signature by all States and by regional integration organizations at United Nations Headquarters in New York as of 30 March 2007.
Article 43
Consent to be bound
The present Convention shall be subject to ratification by signatory States and to formal confirmation by signatory regional integration organizations. It shall be open for accession by any State or regional integration organization which has not signed the Convention.
Article 44
Regional integration organizations
1.’Regional integration organization’ shall mean an organization constituted by sovereign States of a given region, to which its member States have transferred competence in respect of matters governed by the present Convention. Such organizations shall declare, in their instruments of formal confirmation or accession, the extent of their competence with respect to matters governed by the present Convention. Subsequently, they shall inform the depositary of any substantial modification in the extent of their competence.
2. References to ‘States Parties’ in the present Convention shall apply to such organizations within the limits of their competence.
3. For the purposes of article 45, paragraph 1, and article 47, paragraphs 2 and 3, of the present Convention, any instrument deposited by a regional integration organization shall not be counted.
4. Regional integration organizations, in matters within their competence, may exercise their right to vote in the Conference of States Parties, with a number of votes equal to the number of their member States that are Parties to the present Convention. Such an organization shall not exercise its right to vote if any of its member States exercises its right, and vice versa.”

13. Participation “Vienna Formula”
Vienna Convention on the Law of Treaties, 1969, article 81:
“The present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention…”

14. Participation “Vienna Formula”
United Nations Framework Convention on Climate Change, 1992, article 20:
“This Convention shall be open for signature by States Members of the United Nations or of any of its specialized agencies or that are parties to the Statute of the International Court of Justice and by regional economic integration organizations…”

15. FINAL CLAUSES Simple Signature
Place, date of opening, period of signature (open indefinitely or until a specified event or a time period).
United Nations Convention against Corruption, 2003, article 67:
“This Convention shall be open for signature by all States from 9 to 11 December 2003 in Merida, Mexico, and thereafter at United Nations Headquarters in New York until 9 December 2005.”

16. FINAL CLAUSES Consent to be bound
Expressed generally by ratification, acceptance or approval, accession.
Definitive signature.
Formal Confirmation.
[Succession].

17. Consent to be bound
Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations, 1998, article 12:
“A State may express its consent to be bound by this Convention:
(a) by signature (definitive signature);
(b) by signature subject to ratification, acceptance or approval followed by deposit of an instrument of ratification, acceptance or approval; or
(c) by deposit of an instrument of accession.”

18. FINAL CLAUSES Entry into force
Manner and date of entry into force:
Upon a certain number of States depositing instruments of consent to be bound.
A specific time after a certain number of States have deposited instruments of consent to be bound.
Upon a certain percentage, proportion or category of States depositing instruments of consent to be bound.
On a specific date.

19. Entry into force
Agreement on the Privileges and Immunities of the International Criminal Court, 2002, article 35 (1):
“The present Agreement shall enter into force thirty days after the date of deposit with the Secretary-General of the tenth instrument of ratification, acceptance, approval or accession.”

20. Entry into force
For a State after the treaty has entered into force:
Agreement on the Privileges and Immunities of the International Criminal Court, 2002, article 35 (2):
“For each State ratifying, accepting, approving or acceding to the present Agreement after the deposit of the tenth instrument of ratification, acceptance, approval or accession, the Agreement shall enter into force on the thirtieth day following the deposit with the Secretary-General of its instrument of ratification, acceptance, approval or accession.”

21. FINAL CLAUSES Amendment
In the past, treaties rarely included amendment provisions.
Today, most contemporary treaties include a mechanism for their amendment.
Amendment procedures: diverse and often elaborate.
Amendment procedures have caused practical difficulties.

22. Amendment in accordance with the provisions of the treaty
Amendment procedures should avoid complex or unclear rules that may lead to practical difficulties.
Unambiguous formulae for amendments should include rules governing:
Proposal of amendments (by a Party).
Submission of the amendment proposal for circulation to all Parties (normally by the relevant secretariat).
Adoption procedures (if including a specific proportion of votes, clearly indicating whether this proportion relates to all the Parties or all the Parties present at the time that the vote is taken).
Circulation of the adopted amendment by the depositary.
Consent to be bound (acceptance/ratification).
Entry into force (if including a specific proportion, indicating whether the number of acceptances is calculated on the basis of the number of Parties at the time of adoption or at the time of acceptance).
Effects (binding only those that accepted or binding all).

23. Amendment provisions Proposal/Circulation of proposal
Comprehensive Nuclear-Test-Ban Treaty, 1996, article VII:
“Amendments
1. At any time after the entry into force of this Treaty, any State Party may propose amendments to this Treaty...
2. The proposed amendment shall be considered and adopted only by an Amendment Conference.
3. Any proposal for an amendment shall be communicated to the Director-General, who shall circulate it to all States Parties and the Depositary…”

24. Amendment provisions Adoption
Adoption procedures (e.g., consensus, proportion of votes).
If including a specific proportion of votes, indicate whether the proportion relates to all the Parties or all the Parties present at the time that the vote is taken.
United Nations Convention against Transnational Organized Crime, 2000, article 39:
“The Conference of the Parties shall make every effort to achieve consensus on each amendment. If all efforts at consensus have been exhausted and no agreement has been reached, the amendment shall, as a last resort, require for its adoption a two-thirds majority vote of the States Parties present and voting at the meeting of the Conference of the Parties.”

25. Amendment provisions Consent to be bound/Entry into force
Entry into force (e.g., number, proportion, non-objection).
Entry into force provisions should specify the basis on which established percentages are to be calculated so as to avoid confusion relating to the time of entry into force.
When a treaty is silent on this matter, the practice of the Secretary-General as depositary is to calculate the number of acceptances on the basis of the number of Parties to the treaty at the time of acceptance (“moving target” or the “current time” approach).
Agreement on the Privileges and Immunities of the International Criminal Court, 2002, article 36 (5):
“An amendment shall enter into force for States Parties which have ratified or accepted the amendment sixty days after two thirds of the States which were Parties at the date of adoption of the amendment have deposited instruments of ratification or acceptance with the Secretary-General.”

26. Amendment provisions Effect
Usually, an amendment, upon its entry into force, binds only those States that have formally accepted it. This reflects the general reluctance of States to be bound by amendments that they have not accepted. However, this approach may create problems of interpretation and implementation since it could establish situations whereby States can be Parties to different regimes under a single treaty.
The Convention on the Rights of the Child, 1989, article 50 (3):
“When an amendment enters into force, it shall be binding on those States Parties which have accepted it, other States Parties still being bound by the provisions of the present Convention and any earlier amendments which they have accepted.”

27. Amendment provisions Effect
The Amendment to Article 43 (2) of the 1989 Convention on the Rights of the Child, 1995, increasing the membership of the Committee on the Rights of the Child from ten to eighteen experts, entered into force when it was accepted by a two-thirds majority of States Parties, on 18 November 2002, in accordance with article 50(2) of the Convention. Pursuant to article 50 (3), the amendments only bind those States Parties that have notified their acceptance. This would have created an impossible situation where the Committee would have consisted of ten members for some States Parties and eighteen members for others. A practical approach was taken by States Parties to the Convention in this case and the amendment was deemed to bind all Parties.
Where amendment provisions are negotiated, it is important to anticipate this type of problem and draft the provisions accordingly.

28. Amendment provisions Effect
Ideally, for the sake of clarity and simplicity, provisions regarding the entry into force of amendments should include either:
An automatic entry into force for all Parties:
Comprehensive Nuclear-Test-Ban Treaty, 1996, article VII (6):
“Amendments shall enter into force for all States Parties 30 days after the deposit of the instruments of ratification or acceptance by all those States Parties casting a positive vote at the Amendment Conference.”
An entry into force for all Parties based on non-objection by any Party:
Convention on Psychotropic Substances, 1971, article 30 (2):
“If a proposed amendment circulated under paragraph 1(b) has not been rejected by any Party within eighteen months after it has been circulated, it shall thereupon enter into force. If, however a proposed amendment is rejected by any Party, the Council may decide, in the light of comments received from Parties, whether a conference shall be called to consider such amendment.”

29. Amendment provisions
A good example:
Convention on the Rights of Persons with Disabilities, 2006, article 47:
“Amendments
1. Any State Party may propose an amendment to the present Convention and submit it to the Secretary-General of the United Nations. The Secretary-General shall communicate any proposed amendments to States Parties, with a request to be notified whether they favour a conference of States Parties for the purpose of considering and deciding upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of two thirds of the States Parties present and voting shall be submitted by the Secretary-General to the General Assembly of the United Nations for approval and thereafter to all States Parties for acceptance.

30. Amendment provisions
2. An amendment adopted and approved in accordance with paragraph 1 of this article shall enter into force on the thirtieth day after the number of instruments of acceptance deposited reaches two thirds of the number of States Parties at the date of adoption of the amendment. Thereafter, the amendment shall enter into force for any State Party on the thirtieth day following the deposit of its own instrument of acceptance. An amendment shall be binding only on those States Parties which have accepted it.
3. If so decided by the Conference of States Parties by consensus, an amendment adopted and approved in accordance with paragraph 1 of this article which relates exclusively to articles 34, 38, 39 and 40 shall enter into force for all States Parties on the thirtieth day after the number of instruments of acceptance deposited reaches two thirds of the number of States Parties at the date of adoption of the amendment.”

31. Amendments where the treaty is silent
No amendment procedures: Vienna Convention, 1969 (articles 39, 40 and 41).
Where a treaty is silent, it may be amended by agreement between the Parties.
Unless the treaty otherwise provides, where a State becomes Party to a treaty which has been amended, it becomes, failing an expression of a different intention by that State, Party to the treaty as amended.
That State is also a Party to the unamended treaty in its relations to States Parties to the unamended treaty.

32. Resources Handbook of Final Clauses of Multilateral Treaties.
Summary of Practice of the Secretary-General as depositary of Multilateral Treaties.
Treaty Handbook.
Available in electronic form at the United Nations web site at

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