Distr.

GENERAL

UNEP/CBD/IC/1/5

12 August 1993

ORIGINAL: ENGLISH

INTERGOVERNMENTAL COMMITTEE

ON THE CONVENTION ON

BIOLOGICAL DIVERSITY

First session

Geneva, 11-15 October 1993

THE FURTHER DEVELOPMENT OF LEGAL REGIMES

UNDER MULTILATERAL TREATIES

Note by the Secretariat

I. INTRODUCTION

1.	The purpose of the present note is to provide guidance to the Committee on the possible options available to the Conference of the Parties in considering further development of the legal regimes under the Convention. It describes general methods by which legal regimes can be developed under multilateral treaties, including the legal effect, advantages and disadvantages of the methods, and examples of their use.

II. METHODS FOR THE DEVELOPMENT OF LEGAL REGIMES

UNDER INTERNATIONAL TREATIES

A. Amendment

1. Procedure

2.	The common amendment procedure provided for under recently concluded treaties requires the party or parties seeking to amend a treaty to submit the proposed text to all other Parties within a specified time period prior

to the meeting of the parties that will consider it. The amendment is adopted by consensus, or majority vote if necessary, and enters into force following the ratification requirements within that particular treaty.

2. Legal effect

3.	Amendments are legally binding, but only upon the parties which ratify, accept, or approve them. Also, as with all legal instruments, the effectiveness of amendments will be limited by Parties' ability to ensure compliance.

3. Advantages/disadvantages

4.	One disadvantage is that the time necessary to develop, adopt, and ratify an amendment can be lengthy. Attempts to shorten the amendment procedure have not been successful.

5.	Another disadvantage of amendment is the potential to develop different regimes among parties to the same treaty because most treaties provide that only those parties which ratify an amendment are bound by it. Those that do not are bound only by the original text. This may create operational difficulties in implementation.

6.	An advantage of an amendment is that it is a legally binding change to the text of the treaty. The new understanding or obligation is reflected in the treaty's operational provisions.

B. Adoption of protocols

1. Procedure

7.	The term protocol in this context usually denotes a treaty amending, or supplemental to, another treaty. The common procedure requires that the text of a proposed protocol be submitted a set period prior to the meeting of the parties where it is to be discussed. The protocol must then proceed through a process very similar to that of the adoption and ratification of the treaty itself.

2. Legal effect

8.	A protocol is legally binding, yet only upon the parties which ratify, accept, or approve it.

3. Advantages/disadvantages

9.	An advantage of a protocol is that it allows parties to elaborate on important issues in the treaty and has the same legal effect on parties to the protocol as the treaty itself. Another advantage is, being itself a treaty, a protocol can be used to deal comprehensively with a specific matter to be elaborated upon. For example, the Montreal Protocol has the latitude to address short- and long-term strategies to control global

production, emissions, and the use of chlorofluorocarbons (CFCs) and other substances that deplete the ozone layer, and to evaluate scientific and economic research and the situation of developing countries.

10.	Negotiation of a protocol, however, suffers from the same drawbacks as treaty negotiations. Chief among these is the long time often required. The text of a protocol, as with a treaty, must be drafted, negotiated, and adopted. The resulting protocol is then subject to what is often a lengthy ratification process. Furthermore, although a protocol is legally binding, it only binds those parties which ratify, accept, or approve it. Therefore, the treaty is not actually changed for those who are not a Party to the protocol.

C. Annexes

1. Procedure

11.	An annex is an instrument attached to a Convention or Protocol and forms an "integral part" of the document.

2. Legal effect

12.	Typically, annexes legally bind all parties to the treaty except those that deposit an objection within a specified time after receipt of notification of the annex's adoption.

3. Advantages/disadvantages

13.	Annexes are a useful yet limited method for the development of a legal regime under a treaty. Annexes are used as a means of updating the information in a treaty and are typically restricted to procedural, scientific, technical, and administrative matters. The procedures for adopting or amending annexes thus avoid the lengthy process of ratification. An annex is typically amended by the same procedure as amending a treaty or its protocols, but because ratification is not required the process takes less time.

14.	A further advantage of annexes is that entry into force usually takes place automatically for all Parties after notification of their adoption, except for those States which deposit an objection within a prescribed period of time.

15.	The generally restricted scope of annexes limits their potential ability to make substantive changes and thus in this regard they may not be as useful as other methods of development of legal regimes.

D. Resolutions

1. Procedure

16.	Resolutions are expressions of the resolve, will or opinion of the parties to a treaty, often adopted by consensus at their meetings.

2. Legal effect

17.	Resolutions are technically not legally binding. Yet, when adopted by consensus of the parties, they operate to a large extent with the same effect.

3. Advantages/disadvantages

18.	The advantage of resolutions is that they can serve as a flexible and expeditious means for progress in improving the implementation of a treaty. An amendment or annex is not required, nor is ratification necessary. Additionally, the procedure can be less contentious than other methods because with resolutions parties are not being asked to consent to a formally legally binding statement.

19.	Conversely, because a resolution is not legally binding, it is only as effective as the consensus that created it is strong and long-lived.

20.	Resolutions have been an important tool in the implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Recognizing the potential effect of the use of resolutions, the Conference of Parties to CITES has used language within the Convention

to create procedures for resolutions which, while not legally binding, operate with that effect. As of March 1992, the Conference of Parties has met nine times and adopted over 165 resolutions.

E. Declarations/Interpretive statements

1. Procedure

21.	At the time of signature or upon submission of a document of ratification, a State may attach a statement through which it declares its position on a specific issue or explains its interpretation of a specific portion of the text.

2. Legal effect

22.	Declarations and interpretive statements are not legally binding on other Parties. Article 31 of the Vienna Convention on the Law of Treaties states that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. Article 32 of the Convention states that recourse may be hard to supplemental means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, only if the interpretation resulting from article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

3. Advantages/disadvantages

23.	Being unilateral, declarations and interpretative statements are easily added to the Convention and are not subject to adoption or ratification processes. Their major advantage may be the national signals sent in order to smooth the reception of the treaty. However, because declarations and interpretive states are not legally binding and are generally unilateral, they may not be the instrument of choice to improve implementation of the treaty at the international level.

F. Reservations

1. Procedure

24.	As defined in the Vienna Convention on the Law of Treaties, a reservation is a unilateral statement whereby a State "purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State" (article 2, para. 1 (d)).

2. Legal effect

25.	The reservation is capable of modifying the legal effect of identified provisions in their application to the reserving State, as long as it does not contravene the object or purpose of the Convention.

3. Advantages/disadvantages

26.	An advantage of the reservation is it can allow for greater participation in the treaty regime. A disadvantage is the creation of different legal obligations among Parties, which may impede implementation.

III. TREATIES PRIOR TO ENTRY INTO FORCE

27.	Under article 18 of the Vienna Convention on the Law of Treaties, prior to entry into force, signatory States are obliged to refrain from acts which would defeat the object and purpose of the treaty.

28.	But Governments are not limited to passivity. When adopting a treaty, Governments may put in place resolutions to guide them and relevant organizations prior to the treaty's entry into force. Often, the signatory Governments adopt resolutions for action during the interim period after signature and prior to the treaty's entry into force.

29.	Resolutions passed at the time of a treaty's adoption may provide for the establishment of ad hoc working groups, expert panels, or intergovernmental bodies to keep momentum going and prepare for the first meeting of the parties. While not able to take legally binding decisions, these bodies may be powerful forums for making proposals and recommendations to the first meeting of the parties, the governing body with the legal authority to take binding decisions.

30.	Furthermore, through this type of resolution, Governments may call for action prior to the Convention's entry into force. For example, resolution 2 of the Conference for the Adoption of the Agreed Text of the Convention on Biological Diversity provides for action on a number of issues identified as particularly important. It was also the mechanism which initiated the establishment of the Intergovernmental Committee on the Convention (ICCBD). Although the ICCBD is not empowered to make legally binding decisions, the resolution requests that it consider a wide variety of issues.

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