Explanatory Memorandum to COM(1985)121 - - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(1985)121 - . |
|---|---|
| source | COM(1985)121  |
| date | 19-03-1985 |
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1. Resolution 39/86 of the UN General Assembly states that "the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations shall be held from
18 February to 21 March 1986 at Vienna".
The Conference will be based on a draft Convention prepared by the International Law Commission; in Resolution 39/86 the General Assembly "refer/red/ to the Conference, as the basic proposal for its consideration, the draft articles on the law of treaties between States and international organizations or between international organizations adopted by the International Law Commission at its thirty-fourth session" in 1982.
Among those invited to participate in the Conference, in addition to states, are: "representatives of international intergovernmental organizations that have traditionally been invited to participate as observers at legal codification conferences convened under the auspices of the United Nations".
The European Economic Community is such an organization, and has duly been sent an invitation to participate, in the form of a letter from the UN Secretary-General dated 5 February 1985.
2. Resolution 39/86 appealed to participants in the Conference "to organize consultations primarily on the organization and methods of work of the Conference, including rules of procedure, and on major issues of
I.
Contents
- Annex
- II. Position to date
- III. Some points of principle
- This applies to the Community in particular. Clearly, it cannot bind
- the Community has always had to refer to the 23 May 1969
- 9. By the same token, the Community as such must participate
- in order to facilitate a successful conclusion of /the Conference's/
- IV. Participation in the Conference
- The Community should oppose the attempt to apply the sponsorship
- V. Final clauses and settlement of disputes
- VI. Cone lusion
- Whereas the Community has been invited to participate in the
- Sole article
- Annex
- GENERALE
- 85-01475 0394W (F)
- 1. Decide que la Conference des Nations Unies sur le droit des traites entre
- 2. Prie le Secretaire general d'inviter i
- A/RES/39/86 Page 3
- 99eme seanee pInniere 13 decenbre 19 P 4
substance including final clauses and settlement of disputes, prior to the convening of the Conference in order to facilitate a successful conclusion of its work through the promotion of general agreement".
The consultations are also to address the status of the international organizations invited to participate in the Conference. The decision will be taken by the General Assembly at its next session, this autumn.
3. The consultations called for by Resolution 39/86 started with an organizational session on 28 February. A first round of consultations will take place from 18 March to 10 May, followed by further work and then a second two-week round of detailed consultations on all issues in July. Subjects discussed during the consultations will include the organization of the Conference, methods of work, participation, final clauses (including the right to become a contracting party) and dispute settlement.
As is clear from a working paper dated 20 February, prepared by the legal advisers of the Ten and the Commission in New York (Annex II), the most urgent question is to determine the rights to be enjoyed by international organizations invited to participate in the Conference under Resolution 39/86.
In the light of the foregoing, it is essential to approve the Community's participation in the consultations and the Conference and decide on the position to be adopted by the Community and its Member States.
4. In accordance with the legal advisers' suggestion, this recommendation concentrates on the issue of the status of international organizations invited to participate in the Conference under Resolution 39/86.
The Commission will be submitting a separate recommendation later on the draft articles prepared by the International Law Commission, with particular reference to the final clauses and dispute settlement.
5. the Community and its Member States have taken part in all the preparatory work, and have sent the UN Secretary-General their comments on the ILC's draft articles. Both the Community and the Member States have also made various statements to the General Assembly's Sixth Committee.
In its comments, which date from 1983, the Community made the following points regarding the participation of international organizations in the Conference:
"Theoretically, several solutions are conceivable, ranging from a mere observer's status for international organizations to a role of full participation on a par with States. An intermediate solution could consist in the admittance of international organizations to an active participation in the negotiation procedure. This would correspond to the role that international organizations have been able to play in the elaboration of the present draft articles".
As the Legal advisers point out, however, it has proved impossible to agree on the precise scope of the term 'active participation'. In 1983 and 1984 Member States called for participation by international organizations "on an appropriate basis, which would permit them to contribute effectively to the codification work of the Conference".
With consultations imminent in New York, it is thus important to work out the Community's position in detail.
6. First a brief recap of some general considerations regarding the scope of the planned Convention as it affects international organizations.
7. The aim of the Convention is to codify the law of treaties concluded by international organizations either with states or with other international organizations. It will therefore have to be binding on international organizations.
Subject to rules of customary law, the provisions of the Convention would normally only be binding on international organizations with their consent.
It is therefore essential to allow those organizations to become contracting parties to the Convention.
itself internationally except by its own act, in accordance with the procedure
described in Article 228(1) of the EEC Treaty.
8. From the Community's point of view there is another consideration.
The negotiation of a Convention codifying and developing international law on treaties to which international organizations are parties is bound to affect the external exercise of such organizations' powers even before it comes into force and is (presumably) concluded by
the Community. The new Convention wilt undoubtedly serve as a basis
for all subsequent analysis of the law of treaties, since this is
an area of international law which has hitherto been neither firm
nor precise; failing a specific text governing international organizations,
Vienna Convention on the Law of Treaties (between states). This
will no longer be the case once the new Convention has been negotiated.
Accordingly, the negotiation of the Convention will affect the Community's treaty-making powers. The basic principles of the Community legal system dictate that the Community should be involved in the negotiations whether it eventually decides to ratify the Convention or not.
in the consultations in New York, which will in any case be dealing
with substantive issues as well as procedural questions. Resolution 39/86
expressly calls for the consultations to tackle "major issues
of substance including final clauses and settlement of disputes ...
work through the promotion of a general agreement" (see para.
1).
(Note also the timetable and agenda drawn up in New York for consultations over the coming months; see para. 3.).
10. Resolution 39/86 calls on 'the participants' to take part in the consultations. If international organizations are invited to participate in the Conference, they should participate in the consultations as well.
The meeting dealing with organization of the consultation process looked for inspiration to the informal consultations which took place in 1984, and foresaw separate consultations for states and international organizations. The topics being dealt with in the present consultations, however, concern both states and international organizations, as do those to be discussed by the Conference, so it is in the Community's own interest to see that it is genuinely involved in the consultations as well. In this way both the Community and its Member States will be in a position to state their views.
11. During the consultations it will be necessary to decide in what capacity the international organizations invited to the Conference will participate, given that, as explained in paragraph 8, international organizations would have to conclude the Convention for it to be binding on them. For the Community there is the additional consideration of the effect even of an unratified accord (see para.
8).
For international organizations' participation in the Convention to be effective, their status (setting aside voting rights, which the Community and the Ten are not claiming) should be the same as that of states.
12. The legal advisers also raise the question of what position should be taken on the sponsorship rule, whereby proposals and amendments from an international organization have to be 'sponsored' by one or more of the states participating in the Conference.
rules, which involves a measure of subordination incompatible with
the full exercise of its legal powers. It is no surprise that the
sponsorship rule was proposed by a (non-member) country which is
hostile on principle to any act constituting an expression of an
international organization's autonomy, and has had subordination clauses
incorporated in other 'international accords (e.g. the ozone layer convention).
13. If it proves impossible to secure treatment equal to that of states, there must be a positive list enumerating the Community's rights in the negotiations for the Convention.
In that event it would certainly be better from the tactical standpoint to have the rights of international organizations defined without reference to observer status, which is what the country calling for application of the sponsorship rule has proposed for those organizations.
At the very least, international organizations should be accorded the right independently:
(i) to submit proposals and put forward amendments;
(ii) to make statements;
(iii) to participate in the decision-making process in connection with the negotiation and approval of texts.
14. The New York consultations will be dealing primarily with the status of the international organizations invited to the Conference, but will also address other questions mentioned in Resolution 39/86, viz. "major issues of substance including final clauses and settlement of disputes".
As pointed out in para. 5, the Community and its Member States have already been involved in most of the preparatory work done on these issues by the International Law Committee and the Sixth Committee. These points, therefore, and in particular the ILC's draft articles, can therefore be referred to the Council by the Commission for discussion at a later stage.
15. Initially, therefore, the Commission recommends that the Council decide that:
(i) The European Community should participate in the United Nations
Conference on the Law of Treaties between States and International Organizations or between International Organizations.
(ii) The European Community should participate in the consultations to be held prior to and in preparation for the said Conference.
(iii) At the said consultations the Member States and the Community should endeavour to ensure that international organizations invited
to the Conference:
either have the same rights (except voting rights) as states or, failing that, have the right independently to:
- submit proposals and put forward amendments,
- make statements,
- take part in the decision-making process in connection with the negotiation and approval of texts.
Recommendation for a Council Decision authorizing the Commission to participate on behalf of the Community in the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, and in the consultations prior to the Conference
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaties establishing the European Communities,
Having regard to the recommendation from the Commission,
United Nations Conference on the Law of Treaties between States
and International Organizations or between International Organizations;
Whereas consultations are taking place in the United Nations in preparation for the said Conference,
Whereas the procedural and substantive issues to be discussed at both the consultations and the Conference will directly affect the European Communities' exercise of their international powers, and have a bearing on the whole range of their external competence;
Whereas the Communities should therefore participate in the consultations and the Conference, with a status commensurate with their responsibilities in the field of international relations and their role in the development of international law,
HAS DECIDED AS FOLLOWS:
1. The Commission shall participate in the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations and in the consultations provided for by Resolution 39/86 of the United Nations General Assembly.
2. The Commission shall represent the views of the Communities in consultation with representatives of the Member States and in accordance with the directives at annex, which will be supplemented in due course.
DIRECTIVES
At the consultations organized by the United Nations in preparation for the Conference of the Law of Treaties between States and International Organizations or between International Organizations, the Commission shall ensure that for the purposes of that Conference, the Communities enjoy the same rights, other than voting rights, as states.
Failing that, the Commission shall ensure that the Communities are accorded the right independently to submit proposals and amendments, make statements and participate in the decision-making process in connection with the negotiation and approval of texts.
Native T
NATIONS
UNIES
Assemble g£n£rale
Distr.
A/RES/39/86 IB janvier 1985
Trente-neuvieme session '
Point 131 de l'ordre du jour
RESOLUTION ADOPTEE PAR L'ASSEMBLEE GENERALE '
(sur le rapport de la Sixieme Commission (A/39/779 et Corr.l)]
39/86. Conference des Nations Unies sur le droit des traites entre Etats et organisations internationales ou entre organisations internationa]es
L'Assemblee generale,
Rappelant sa resolution 37/112 du 16 decembre 1982, par laquelle elle a decide qu'une convention internationale serait conclue sur la base du projet d'articles sur le droit des traites entre Etats et organisations internationales ou entre organisations internationales que la Commission du droit international a adopte a sa trente-quatrieme session 1/,
Rappelant egalement sa resolution 38/139 du 19 decembre 1983, par lacuelle elle a decide que le cadre approprie pour l'examen definitif du projet d'articles serait une conference de plenipotentiaires qui devrait etre convoquee en 1985 au plus tot, et est convenue de prendre une decision a sa trente-neuvieme session au sujet de la date et du lieu de la Conference des Nations Unies sur le droit des traites entre Etats et organisations internationales ou entre organisations internationales ainsi que de la participation a cette conference,
Ayant repu le rapport du Secretaire general 2/ qui contient les comr.entaires et observations communiques par les Etats et les principales organisations intergouvernementales internationales, conformement a la resolution 38/139 de l'Assemblee generale,
Reconnaissant qu'il importe d'assurer le succes des travaux de la Conference en facilitant un accord general.
1/ Documents officieIs de l'Assemblee generale, trente-septieme session, Supplement No 10 (A/37/10), chap. II, sect. D.
A/RES/39/86 Rage 2
Ayant a 1*esprit la relation entre le droit des traites entre Etats et la question qui sera examinee par la Conference,
Notant avec satisfaction que le Gouvernement autrichien a propose d'acc.eillir la Conference a Vienne,
Etats et organisations internationales ou entre organisations internationales se tiendra a Vienne, du 18 fevrier au 21 mars 1986; _
a) Tous les Etats & participer a la Conference;
b) La Namibie, representee par le Conseil des Nations Unies pour la Nanibie, & participer a la Conference, conformement au paragraphe 6 de la resolution 37/233 C de l'Assemblee generale, en date du 20 decembre 1982;
c) Les representants des organisations qui ont re^u de l'Assenblee generale une invitation permanente a participer en tant qu'observateurs aux sessions et aux travaux de toutes les conferences internationales convoquees sous ses auspices a participer a la Conference en cette quality, conformement aux resolutions
3237 (XXIX) et 31/152 de l'Assemblee generale, en date des 22 novembre 1974 et 20 dec_nhre 197 6>
d) Les representants des nouvements de lib!ration nationale reconnus par
1'Organisation de l'unite africaine dans sa region a participer a la Conference en quafllte'd’observateurs, conformement a la resolution 3280 (XXIX) de l'Assemblee generale, en date du 10 decembre 1974;
e) Les representants des organisations intergouvernementales internationales qui ont traditionnellement ete invitees a participer en tant qu'observateurs aux conferences de codification convoquees sous les auspices de l'Organisation des Nations Unies a participer a la Conference en une qualite qui sera etudiee lors des consultations visees au paragraphe 8 ci-dessous et decidee par l'Assenblee generale a sa quarantine session;
3. Invite les participants mentionnes au paragraphe 2 ci-dessus a inclure autant que possible parmi leurs representants des experts competents dans le domaine a etudier;
4. Decide que les langues de la Conference seront les langues officielles et les langues de travail de l'Assemblee generale, de ses commissions et de ses sous-commissions;
5. Renvoie a la Conference, en tant que proposition de base a examiner, le projet d'articles sur le droit des traites entre Etats et organisations internationales ou entre organisations internationales adopt! par la Commission du droit international a sa trente-quatrione session;
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2/ A/39/491.
6. Prie le Secretaire general de presenter a la Conference tons les documents et recommandations pertinents concernant le reglement interieur et les methodes de travail/ compte tenu du fait qu'il importe de faciliter un accord general sur le resultat final des travaux de la Conference/ et de faire le necessaire pour mettre a la disposition de celle-ci le personnel/ les moyens materiels et les services voulus, notamment en ce qui concerne 1'etablissement de comptes rendus analytiquesj
7. Prie egalement le Secretaire general de prendre des dispositions pour assurer la presence a la Conference, en qualite d'expert, du Rapporteur special de la Commission du droit international charge de la question des traites conclus . entre Etats et organisations internationales ou entre deux ou plusieurs organisations internationales;
8. Appelle les participants a la Conference a organiser, avant la Conference, des consultations portant principalement sur 1'organisat ion et les methodes de travail de la Conference, notanment le reglement interieur, et sur les grsndes questions de fond, dont les clauses finales et le reglement des differends, afin d'assurer le succes des travaux de la Conference en facilitant un accord generalj
9. Decide d'inscrire a l'ordre du jour provisoire de sa quarantieme session une question intitulee "Preparatifs de la Conference des Nations Unies sur le droit des traites entre Etats et organisations internationales ou entre organisations internationales".
ANNEXE
New Yorki 20 February 1915
prepared by the Legal Experts of the Tan and the Commi is Ion in New York
X. According to Resolution 39/16 of tha UN General
Assembly, tha United Nations Conferenoa on Treaties between States and International Organisations and between Interna* tional Organisations will be held in Vienna from the 18th February to tha 21st March 1986. Tha International Law Commission's 1982 draft articles for a Convention on this' topic will be tha basis for tha work of tha Conferenoa.
A substantial effort in European coordination and cooperation will be required for tha purposes of tha 1986 Conference. It will require the Community and the Tan to ■ define their general attitude towards tha development of international law reprasented by the ILC's draft Articles as a whole, as well as to a number of specific issuaeof principle and of prooedura which may have a direct impact on the Community's own treaty-making activities.
Because of the shortness of time before the Con* ferance convene* in 1986 and especially in view of the consultations referred to below, thia procesa of European coordination and cooperation will have to begin without delay, The present paper is'daslgned aa a contribution to it.
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2. While it provides for discussion of *n item entitl-• ed 'Preparations' for the Conference &t the 40th station
of the O.A., the Resolution quoted above appeals to the 'participants' to the Conference to organise consultations . "primarily on the organisation and method of work of the Conference, including rules of procedure, and on major issues of substance including final clauses and settlement of di-^ sputes". .
Among those "participants” are the international k organizations "which have traditionally been invited to
participate, as observers at legal codification conferences convened under the auspices of the United Nations". They include the European Economic Community. .
Among the questions to be considered in the consultations one finds that of determining in what capacity in- . ternatlonal organisations invited to the Conference will participate in its work. This, according to the Resolution, is the only point, among the numerous questions to be discussed in the consultations, upon which the 40th 0.A.must take a decision* . .
o -
3. It would seam therefore that, in order to formulate ' the standpoint of the Community and of the Ten, one of the
most urgent tasks concerns, the problem of the capacity in which the European Community, together with the other orga-nizatlons invited under para. 2 (e) of Res. 39/86, will participate in the Conference, '
In the comments it formulated in 1962 on the iLC'a Draft Articles the Community, as regards participation,
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stated the following!
"Theoretically* eeveral aolutiont are conceivable, ranging from a mar* observer* a itatua for international organization! to a jrole of full participation on a par with States, An intermediate aolution could conaiat in tha admittanoa of international or-ganixationa to an active participation in tha negotiation procedure. Thia would oorraapond to tha role that international organliatlona have bean able to play in tha elaboration 6f tha preaant draft articlaa". ■
it has not proved poaalbla to agree in New York on tha further interpretation to be given to tha phraaa "aotiva participation". In atatamenta made by tha Presidency in tha Sixth Committee in 1983 and 1984 tha problem" waa addreaaad in tha following terms' '
"Tha Tan conaider that international organization*, . including tha European Community, ahould participate on an appropriate baait, which would permit them to contribute affeotively to the codification work of the Conference". .
Thie formulation raeulted after intenaive afforti undertakan by tha Tan in New York. Nothing more preciee could ba obtained becauae of tha differancaa in tha positions held amongst the Member Statea and the Commission.; Theca poaitiona range from mere observer atatua and full
partioipation without the right of vote.
• ' # , •
The question is further-.complicated beoause some developing countries have requested that national•liberation movements be accorded at least the same treatment ee ' 'international organisations.'
. During the consultations held in U.N, fora in 1184 before and during.the 39th General Assembly, the following were the main approaches exploredi (1) to add specific
rights of participation to a provision giving the International Organisations the status of observers; and (2) to spell out speoifio rights of participation to bs snjoyed by ths International Organisations, without specifying their status, .
Thus a first problazs to ba addressed may consist in determining which of these two approaches Is preferable. It may however be observed that if the spelling out of the rights of participation to be enjoyed by Organisations is aoourate and complete, the two approaches are equivalent in practice. •
* However, it haa been felt by jome delegation! that
the first approach might be lass favourable for the Organizations than the seoond# because it could be argued that the usual limited capacity of observers in codification conferences might function as a residuary rule for cases not covered by the rulee attributing specific compstsnces. Conversely, if through.oversight a particular attribute was not foreseen# then under the second approach it might be argued that international organizations had no rights t of participation at all in the area in' question.
The second ordsr of problema - which, at least in prinaiple, for the reason stated before, i> in* dependent from the first * conoemi which rights of per* tioipstion ere to be given to International Organizations* The following rights have been discussed during the consultationsi -
1) the right to submit proposals and amendments!
And . .
2) the right to make statements.
’ During these consultations, at least as
regards the right to submit proposals end amendments,the limitation was propossd that suoh right should be exerois-, ed through the sponsorship of the proposals and amendments by a State or States participating In the Conference.
The. questions raised are the followingi
a) should the two rights be recognized to International Organizations and, if to, would they be sufficient?
b) what position should be taken in connection with the "sponsorship" rule . proposed. ..and are there
■ Variations thereof*" whioh can be envisaged (for instance! to limit the sponsorship requirement to ‘ the submission of proposals for voting?)
In addition, other questions cpnnectsd to participation may be expected to be considered during the consultations. None of them has baen discussed in New York. 7hey include the following*
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1) rights of participation on procedural questions (e.g., right to submit motions to adjourn, points of order,
• ate)'.
2) rights of participation in informal meetings (such as •working" and 'drafting', groups)} .
3) rights of participation ' in procedures leading to oon* •ensue decisions*
4* Xn addition to the problem of participation#
several questions of principle are likely to arise in the courts of the consultations under the rubric"Final' clauses and Settlement of Disputes" mentioned above. Some of these questions have not previously, or at least not recently,
.been addressed in Community consultation. These questions of principle include the following* ' .
1) how should organisations become bound by the Convention?
2) should participation in the Convention by organisations be relevant (and within what limits) for the entry into
. force of the Convention? . . .
3) what right* should be International Organisations have
as regards reservations to the Convention? .
. ’ • ■
4) what rights should organizations have as regards amend**
irants?- . •
5) what regime for the settlement of dieputee would be acceptable to the Community? and how would this relate
to the positions of the member States, notably as regards disputes involving lu' poqans? .
An effort of reflection with a view to determining positions aeema to be still needed on these points by dslaga * tlons, including those of the Ten. zt must however be kept, in mind that the idea of considering at least some of these questions in a 'package' with the question mentioned above of the capacity in whioh Organisations will participate in the Conference has been evoked more than once during consultations in-1984.
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S. Furthermore, amongst tha issues of substance which
are likely to be of principle ooncarn to the Community and the Ten and some or all*of which might be raised in the con* sultations under the rubric 'Major Issues of Substance', ■ are the following* .
1. the treaty-making powers of international organisations and the modalities for their exercise*
3. the regime of reservations.—
3. the validity and effect of treaty obligations under-takan by International Organisations, Including the problem of Article 31 bis.
.4. the provisions relating to lue cogens
It may be recalled that the Community has already commented on a number of the'draft articles dealing with issues of eubsttnee but those comments will need to be looked at again before the Conference takes place* Speoial importance has draft Artiole 36 bis "Obligations and rights arising for States members of an international organisation
from ft treaty to whloh it la a party". Under thi* article, which '-as prompted by the apeoifio nature of the XEC Treaty# Member States are bound by treaties entered into by an organisation, if the oonatituentTinitrument of the organisation so provides. *
6. Resolution 39/16 appeals to participants to the
Conference to organise consultations on the organisation and method of work of the Conference and on major issues of substance. Since the Community, together with other organizations, will be one of the participants, the question arises of how Community views ere to be conveyed during the consultation phase. The general supposition at tha United Nations is that tha consultations to ba held this year will, like those in 1984, be principally between states. Zn 1984 the UN Legal Counsel, whot conducted the consultations, held separate meetings with the UN organisations, and it is probable that a similar meeting will be held this year. It would be posslblle therefore, if Community participation in the intar-state consultations would not be possible before the 40th Session, for the Community to convey its views separately to tha Legal Counsel or to the Ambassador of Iraq if he conducts the consultations such a procedure would of oourse necaasltata close co-ordination between the views expressed on behalf of the Community and those expressed by-Member States In the consultations.' .