UN's treaty making history

by Dr. Palitha Kohona

As the UN celebrated its 70th birthday, a proud achievement over its lifetime, is the framework of multilateral treaties that it has been instrumental in putting in place.

Today, a mind boggling network of treaties has proliferated affecting every imaginable area of human interaction, including trade, aviation, shipping, transport, human rights, outer space, terrorism and organized crime, disarmament, the environment, the oceans and seas and so on. Treaties are widely recognized as the pre-eminent source of international law in the contemporary world and the reach of a treaty based international legal order, including dispute settlement mechanisms, has gradually extended and consolidated. They have become the foundation for creating a better world through the adoption of commonly negotiated and accepted standards with legal force.

Treaty-making

One of the oldest known treaties was between the Hittites and Ramses II of Egypt, a bronze replica of which is displayed in the UN building. Interestingly, many of the provisions of this treaty could sit comfortably in a modern instrument. Not much seems to have changed in the way states deal with each other in 5000 years.

Over 560 multilateral treaties are deposited with the UN Secretary-General. Most have been concluded under the auspices of the UN or with UN assistance. Facilitating multilateral treaty making has been a major preoccupation of the UN since its inception.

Treaties, which were originally concluded to regulate inter-sovereign relations, have increasingly been negotiated in response to a variety of emerging global needs with an ever increasing impact on the lives of individuals, on communities and the world in general.

A few have been inherited by the UN Secretary-General from the short-lived League of Nations.

For historical reasons, the Charter of the UN itself, which has 193 parties, is deposited with the US. Significantly, some of the landmark standard setting instruments affecting humanity are not treaties but UN declarations such as the Universal Declaration of Human Rights of 1948, the Millennium Development Goals of 2000 adopted through the Millennium Declaration and the Sustainable Development Goals of 2015.

Since the Millennium Summit in 2000, the UN has made a sustained effort to secure wider participation in the multilateral treaties deposited with the UN Secretary-General, organizing a dedicated treaty event during each UNGA, under the theme: "An invitation to universal participation".

The initial Treaty Event of 2000 was successful beyond all expectations, attracting 274 treaty actions and the participation of 84 heads of state and government.

A number of the multilateral treaties deposited with the SG are close to achieving universal participation, including non-members of the UN like the ground-breaking treaties such as the Convention on the Rights of the Child, the UN Framework Convention on Climate Change and its Kyoto Protocol, the Convention on Biological Diversity, the Convention on the Elimination of All Forms of Discrimination Against Women have secured almost universal participation.

For a country that wields unparalleled economic and political power and one that has been a proactive advocate for advancing the international legal order, the US, sticks out as a non-party to any of the above.

It is recognized that many provisions of the Law of the Sea Convention, which commands only 167 parties as of now, have become part of customary international law. Major states such as the US, Turkey, Venezuela and Peru are still to become party to it due to domestic and other considerations but comply with most of its provisions.

Some require just a few more ratifications or accessions to trigger their entry into force. Efforts to secure wider participation in the multilateral treaties continue. In his letter of invitation to Member States to the 2015 Treaty Event, UN Secretary-General Ban Ki-moon, states that the Event "provides a distinct opportunity for States to fulfill pledges made in national and international fora to sign on to, and particularly, to ratify or accede to multilateral treaties."

It is unusual for a state to withdraw from a multilateral treaty. Only a handful of examples exist. Canada denounced the Kyoto Protocol in 2012. North Korea sought to withdraw from the International Covenant on Civil and Political Rights in 1997 but the Secretary-General, as depositary, took the view that withdrawal would only be possible with the consent of all the parties.

Secret treaties

The genesis of Article 102 lies almost 100 years ago when Leon Trotsky published the secret treaties of the Tsarist Government causing an outcry about the destructive consequences of secret treaties.

US President, Woodrow Wilson, identified secret treaties as a cause of wars and, at his insistence, Article 18 of the Statute of the League of Nations was adopted, requiring all treaties to be registered with the League and published by it. This provision was later incorporated in the UN Charter with the added proviso that treaties, which were not registered, could not be invoked before an organ of the UN.

Treaties constitute the major source of international law. The conclusion of a treaty per se does not guarantee proper compliance. The provisions of a treaty that has entered into force must be implemented. A multilateral treaty itself, the Vienna Convention on the Law of Treaties in its Article 26, states that a treaty in force is binding on its parties and must be implemented in good faith. By and large, states abide by their treaty obligations.

Even when doubts exist about the legality of an action, extreme efforts are made to find legal justifications. A state would not normally become party to a treaty until its domestic implementing mechanisms, including legislation, are in place.

Dr. Palitha Kohona is the former Permanent Representative of Sri Lanka to the United Nations, and one-time Chief of the UN Treaty Section

- IPS