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GB.276/LILS/3 and Corr.1
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Committee on Legal Issues and International Labour Standards |
LILS |
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THIRD ITEM ON THE AGENDA
Formal confirmation of the 1986 Vienna Convention on
the Law of Treaties between States and International
Organizations or between International Organizations
1. On 31 March 1987, the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 1986, was signed on behalf of the International Labour Organization. The Convention, which is not yet in force, contains a comprehensive set of rules covering the various aspects of the subject, including, for example, the capacity to conclude treaties, consent to be bound by them and their interpretation, amendment and termination. As was noted when the question of authorizing such signature was submitted to the Governing Body at its 235th Session in March 1987, this Convention will fill a gap in the law of treaties as the Vienna Convention on the Law of Treaties, 1969, only applies to treaties concluded between States. The 1986 Convention follows the earlier Convention, while taking account of the special situation of intergovernmental organizations like the ILO. The text of the Convention was first submitted to the Governing Body in November 1986.(1) The reasons for the Governing Body's subsequent decision of March 1987 to authorize signature are reflected in the report of its International Organizations Committee. Appendix I to this paper reproduces the relevant part of that report.
2. The new Convention (under article 83) is open to ratification by signatory States and to "acts of formal confirmation" by signatory international organizations. By depositing such an act, the ILO would become a party to the Convention once it entered into force and the Convention would apply in the case of any agreement constituting a "treaty" that was concluded with a State or international organization that was also a party. However, the requirement for entry into force (under article 85) is the ratification of the Convention by 35 States. Formal confirmations by international organizations are not taken into account for this purpose. This is essentially the reason why, until recently, no signatory organization had deposited an act of formal confirmation. As of 1 September 1999, 25 States had deposited instruments of ratification or the equivalent. A list of signatory States and organizations is provided in Appendix II.
3. So far only one instrument of formal confirmation has been deposited -- by the United Nations itself on 21 December 1998, following the adoption by the General Assembly of resolution 53/100 on the United Nations Decade of International Law. By that resolution the General Assembly --
[.] Authorizes the Secretary-General to deposit, on behalf of the United Nations, an act of formal confirmation of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, as provided for in article 83 of the Convention;
[.] Encourages States to consider ratifying or acceding to the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, international organizations that have signed the Convention to deposit an act of formal confirmation of the Convention, and other international organizations entitled to do so to accede to it at an early date.
4. This resolution was drawn to the attention of the Legal Advisers of the United Nations system last June by the Legal Counsel of the United Nations. In his note verbale, he expressed the hope that "other international organizations would become party to this Convention in the near future. Formal confirmation by the United Nations and the other international organizations of the 1986 Vienna Convention would not only fulfil the General Assembly's wishes but would also constitute an important step towards the entry into force of the 1986 Vienna Convention. Such confirmation would significantly contribute to the two main objectives of the United Nations Decade of International Law, namely, the acceptance of and respect for international law and the progressive development and codification of international law. The Legal Counsel strongly urges, through their Legal Advisers, the international organizations and agencies of the United Nations system to formally confirm the 1986 Vienna Convention".
5. The intentions of the other signatory organizations are not yet clear. In some cases a decision is likely to be delayed, as the organ competent to decide the matter of formal confirmation will not meet until 2001 or later. The Council of the Food and Agriculture Organization of the United Nations (FAO) has recommended that the issue should be placed on the agenda of the FAO Conference only after entry into force. This decision was taken in November 1998 before the appeal made by the UN Legal Counsel. On the other hand, the Director-General of the World Health Organization (WHO) has decided to recommend to the Executive Board and World Health Assembly that WHO deposit an act of formal confirmation.
6. By authorizing the signature of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations in 1987, the Governing Body has, in effect, approved the text with a view to the ILO becoming a party to it when it enters into force. As noted at that time, only the International Labour Conference is competent to take the decision as to whether or not the Organization will formally confirm the Convention. In view of the General Assembly's resolution and the appeal by the UN Legal Counsel, it would seem appropriate that the question should now be submitted to the International Labour Conference, possibly with a recommendation that, if the Convention is approved, the act of formal confirmation will not be deposited until the Convention enters into force. As already stated, the earlier deposit of such a confirmation would not have any legal effect as far as hastening entry into force is concerned. It could however have a useful political effect.
7. The Committee may accordingly wish to recommend that the Governing Body --
- request the International Labour Conference to consider, at its 88th Session (June 2000), the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, with a view to the possible deposit of an act of formal confirmation by the ILO; and
- propose that the Conference adopt a resolution worded as follows:
The International Labour Conference;
Noting that the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, adopted under the aegis of the United Nations on 21 March 1986, was signed on behalf of the International Labour Organization on 31 March 1987 pursuant to article 82(c) of that Convention,
Having considered and approved the provisions of that Convention;
Authorizes the Director-General [as soon as the Convention enters into force] to deposit, on behalf of the International Labour Organization, an act of formal confirmation of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, pursuant to its article 83.
Geneva, 30 September 1999.
Point for decision: Paragraph 7.
Appendix I
United Nations Conference on the Law of Treaties
between States and International Organizations
or between International Organizations
65. At its November 1986 meeting, the International Organisations Committee had given preliminary consideration to an Office paper(2) outlining the outcome of the United Nations Conference on the Law of Treaties between States and International Organisations or between International Organisations, which was held in Vienna from 18 February to 21 March 1986, and in which the ILO had participated. The purpose of the Conference had been to frame a Convention which would parallel and complement the 1969 Vienna Convention on the Law of Treaties, which was applicable to treaty relations between States exclusively. The new Convention adopted in 1986 applied to treaty relations when one or more international organisations were parties to a treaty or similar instrument, in order to take into account the particular nature of international organisations which differed from that of States.
66. The Committee had deferred reaching a conclusion as to whether the ILO should sign the 1986 Convention which it had an option to do before 30 June 1987, as an organisation invited to the Vienna Conference, in order to consider what action the General Assembly would take regarding the signing of the Convention by the United Nations, and to obtain additional information on the effect of the ILO's becoming a party to the Convention on the security of the agreements it concluded with States and with other international organisations.
67. A further Office paper(3) indicated that the following developments had taken place since the November meeting. The Administrative Committee on Co-ordination in October 1986 had urged the organisations of the United Nations system to give favourable consideration to seeking that the competent organs should sign the Convention and, in due course, deposit instruments relating to acts of formal confirmation. At its 41st Session, the General Assembly welcomed the adoption of the 1986 Convention, considered that the Convention should be signed on behalf on the United Nations and expressed the hope that States, as well as international organisations that have the capacity to conclude treaties, would consider taking the steps necessary to become parties to the Convention at an early date. The Committee was also informed that, in January 1987, the Executive Board of WHO had authorised the Director-General to sign the Convention on behalf of the World Health Organisation. As at 31 December 1986, 14 States had signed the Convention.
68. The Office paper also indicated that while the 1969 Convention applied, without prejudice to the relevant rules of the organisation which constitute a lex specialis, to the Constitution of the ILO or to international labour Conventions which are treaties exclusively between States, the 1986 Convention applied where the ILO would be one of the parties to a treaty or agreement. Examples of such treaties were headquarters agreements, agreements with the host State on the holding of meetings of international organisations on its soil, and certain technical co-operation or financial arrangements with donors. Examples of treaties between international organisations were basic relationship agreements and memoranda of understanding, or the common system agreement on transfer of staff between organisations, agreements concerning participation in the United Nations Joint Staff Pension Fund, the International Civil Service Commission and the Joint Inspection Unit, or agreements concerning recourse by other organisations to the Administrative Tribunal of the ILO. Although the ILO had not so far experienced any difficulties arising from uncertainties as to relevant rules applicable to such treaties, it was clear that the 1986 Convention provided a specific legal framework governing the transactions of international organisations and would thereby contribute to removing ambiguities and doubts which might adversely affect the legal security of its transactions.
69. Mr. Tata considered that the complexity of the legal aspects of the matter was daunting but the practical question was whether to authorise the Director-General to sign the Vienna Convention, and saw no difficulty in authorising the Director-General accordingly.
70. Mr. Sudono recalled that in November 1986 the Worker members had already favoured signing the Convention and they maintained this view. However, he wished to be informed about the implications of signing the Convention, and in particular, whether it had any financial implications.
71. The Chairman stated that there were no financial implications, as Mr. Bolin later confirmed. He went on to explain that there had previously been a gap in the law of treaties which had applied to bilateral and multilateral treaties between States but not to treaties to which one or more international organisations were parties. The 1986 Vienna Convention was designed to fill the gap. Signature of the Convention, before 30 June 1987, would involve automatic recognition of the capacity of the ILO to conclude treaties with States and with other international organisations.
72. The representative of the Government of India queried the assertion that signing the Convention would not make the ILO a party to it, which appeared to contradict the further indication that signature involved an undertaking to refrain from any act that would defeat the purpose of the Convention, pending consideration of the deposit of an act of formal confirmation.
73. The Legal Adviser explained that signature of the Convention was the first stage of becoming a party to it. Doing so before 30 June 1987 would exempt the ILO from the requirement of establishing its capacity to conclude treaties, and action to sign the Convention was already being taken by the United Nations and WHO. The second stage would be to deposit an instrument of formal confirmation. The question of which organ was competent to authorise such action had been raised in November 1986, and the Committee had considered that it was the Conference that was competent and would have to give its formal authorisation for the ratification of the Convention after signature, whereas signature, which was an executive act, could be authorised by the Governing Body. Since it was intended that an instrument of formal confirmation would be deposited once the Convention had received the 35 ratifications by States required to bring it into force, clearly the ILO would take no action which would defeat the purpose of a Convention to which it would eventually become a party and which would protect its interests. The Conference should be so informed.
74. The representative of the Government of Italy praised the legal work done by the Office in connection with the Vienna Conference and appreciated the advantage of signing the Convention and becoming a party to it. However, he wondered whether the application of the Convention to somewhat informal agreements such as memoranda of understanding would not involve undue rigidity.
75. The Legal Adviser replied that during the travaux préparatoires of the International Law Commission, the question had been raised in relation to so-called "interdepartmental agreements" which were left outside the scope of the Convention. The Convention applied only to formal instruments in the nature of treaties between international law entities, and no difficulties were expected to arise in regard to less formal arrangements.
76. In the light of these clarifications, the Committee recommends the Governing Body to authorise the Director-General to sign the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations on behalf of the International Labour Organisation.
Appendix II
Vienna Convention on the Law of Treaties between States
and International Organizations or between International
Organizations concluded at Vienna on 21 March 1986
List of signatories and parties
as at 9 September 1999
(4)
NOT YET IN FORCE: [see article 85(1)].
TEXT: Doc. A/CONF.129/15.
STATUS: Signatories: 38. Parties: 26.
Note: The Convention was open for signature by all States, Namibia and international organizations invited to the Conference, until 31 December 1986 at the Federal Ministry for Foreign Affairs of the Republic of Austria, and subsequently, until 30 June 1987, at the United Nations Headquarters in New York.
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States or organizations |
Date of signature |
Date of ratification, accession, succession, or formal confirmation |
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Argentina |
30 January 1987 |
17 August 1990 |
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Australia |
16 June 1993 | |
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Austria |
21 March 1986 |
26 August 1987 |
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Belgium |
9 June 1987 |
1 September 1992 |
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Benin |
24 June 1987 |
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Bosnia and Herzegovina |
12 January 1994 (succession) |
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Brazil |
21 March 1986 |
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Bulgaria |
10 March 1988 | |
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Burkina Faso |
21 March 1986 |
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Côte d'Ivoire |
21 March 1986 |
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Council of Europe |
11 May 1987 |
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Croatia |
11 April 1994 | |
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Cyprus |
29 June 1987 |
5 November 1991 |
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Czech Republic |
22 February 1993 | |
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Democratic Republic of the Congo |
21 March 1986 |
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Denmark |
8 June 1987 |
26 July 1994 |
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Egypt |
21 March 1986 |
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Estonia |
21 October 1991 | |
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FAO |
29 June 1987 |
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Germany |
27 April 1987 |
20 June 1991 |
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Greece |
15 July 1986 |
28 January 1992 |
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Hungary |
17 August 1988 | |
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ICAO |
29 June 1987 |
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ILO |
31 March 1987 |
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IMO |
30 June 1987 |
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ITU |
29 June 1987 |
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Italy |
17 December 1986 |
20 June 1991 |
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Japan |
24 April 1987 |
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Republic of Korea |
29 June 1987 |
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Liechtenstein |
8 February 1990 | |
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Malawi |
30 June 1987 |
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Mexico |
21 March 1986 |
10 March 1988 |
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Republic of Moldova |
26 January 1993 | |
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Morocco |
21 March 1986 |
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Netherlands |
12 June 1987 |
18 September 1997 |
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Senegal |
9 July 1986 |
6 August 1987 |
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Slovakia |
28 May 1993 | |
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Spain |
24 July 1990 | |
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Sudan |
21 March 1986 |
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Sweden |
18 June 1987 |
10 February 1988 |
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Switzerland |
7 May 1990 | |
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United Kingdom |
24 February 1987 |
20 June 1991 |
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United Nations |
12 February 1987 |
21 December 1998 |
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UNESCO |
23 June 1987 |
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United States |
26 June 1987 |
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Uruguay |
10 March 1999 | |
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WHO |
30 April 1987 |
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WMO |
30 June 1987 |
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Yugoslavia |
21 March 1986 |
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Zambia |
21 March 1986 |
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1. GB.234/IO/4/8. The text of the Convention can also be found on the Internet at http://www.tufts.edu/departments/fletcher/multi/texts/BH883.txt.
2. GB.234/I0/4/8.
3. GB.235/I0/2/4.
4. Source: Multilateral treaties deposited with the Secretary-General, United Nations, New York, at http://www.un.org/Depts/Treaty.