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 --
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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
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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.