INTERNATIONAL COURT OF JUSTICE
5 FEBRUARY 2016
CASE CONCERNING
MARITIME DELIMITATION IN THE INDIAN OCEAN
SOMALIA
v.
KENYA
WRITTEN STATEMENT OF SOMALIA
CONCERNING THE PRELIMINARY
OBJECTIONS OF KENYA
VOLUME II
ANNEXES
VOLUME II
EXHIBITS
TREATIES & AGREEMENTS
Annex 1 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 332
(23 May, 1969), entered into force 27 Jan. 1980
Annex 2 Memorandum of Understanding between the Members of
the African Union on Security, Stability, Development and
Cooperation in Durban, South Africa (July 2002), reprinted
in Africa, From Barriers to Bridges: Collection of
Official Texts on African Borders from 1963 to 2012
(2013)
SOMALI GOVERNMENT DOCUMENTS
Annex 3 Transitional Federal Government of Somalia, The Transitional
Federal Charter of the Somali Republic (Feb. 2004)
Annex 4 M. Al-Sharmani and M. Omar, Representatives of the Ministry
of Foreign Affairs of the Federal Republic of Somalia, Report
to the File of the Meeting between the Federal Republic of
Somalia and the Republic of Kenya On Maritime Boundary
Dispute, Nairobi, Kenya, 28-29 July 2014 (5 Aug. 2014)
KENYAN GOVERNMENT DOCUMENTS
Annex 5 National Oil Corporation of Kenya, “Expression of Interest for
Provision of a 3D Multi-Client Broadband Seismic Offshore
Survey in the Shallow Waters of the Lamu Offshore Basin”,
NOCK/PRC/03(1057) (25 Sept. 2015)
UNITED NATIONS AND OTHER INTERNATIONAL
ORGANISATION DOCUMENTS
Annex 6 U.N. International Law Commission, “Draft Articles on the
Law of Treaties” in Yearbook of the International Law
Commission 1966, Vol. II, Part II
Annex 7 U.N. Convention on the Law of the Sea, Eleventh Meeting of
States Parties, Decision regarding the date of commencement
of the ten-year period for making submissions to the
Commission on the Limits of the Continental Shelf set out in
article 4 of Annex II to the U.N. Convention on the Law of the
Sea, U.N. Doc. SPLOS/72 (29 May 2001)
Annex 8 U.N. Security Council, Resolution 1744 (2007): Adopted by
the Security Council at its 5633rd meeting, on 20 February
2007, U.N. Doc. S/RES/1744 (21 Feb. 2007)
Annex 9 African Union Border Programme, Declaration on the African
Union Border Programme and its Implementation Modalities
as Adopted by the Conference of African Ministers in Charge
of Border Issues held in Addis Ababa, Ethiopia (7 June 2007)
Annex 10 U.N. General Assembly, Sixty-Fourth Session, Thirtieth
Plenary Meeting, Agenda Item 72: Report of the International
Court of Justice, U.N. Doc. A/64/PV.30 (29 Oct. 2009)
Annex 11 African Union, Second Conference of African Ministers
in Charge of Border Issues, Preparatory Meeting of
Governmental Experts, Addis Ababa, Ethiopia, AUBP/EXP_
MIN/2 Concept Note (22-25 Mar. 2010)
Annex 12 U.N. General Assembly, Sixty-Sixth Session, Report of the
International Law Commission on the work of its sixty-third
session (26 April-3 June and 4 July-12 August 2011), U.N.
Doc. A/66/10/Add.1 (2011)
Annex 13 African Union Border Programme, Third Declaration on
the African Union Border Programme Adopted by the Third
Conference of African Ministers in Charge of Border Issues,
Niamey, Niger, AUBP/EXP-MIN/7 (17 May 2012), reprinted
in Africa, From Barriers to Bridges: Collection of
Official Texts on African Borders from 1963 to 2012
(2013)
Annex 14 U.N. Commission on the Limits of the Continental Shelf,
Progress of work in the Commission on the Limits of the
Continental Shelf: Statement by the Chair, U.N. Doc. CLCS/90
(1 Oct. 2015)
Annex 15 U.N. Peacekeeping, “U.N. Operation in Somalia I (UNOSOM
I)”, available at http://www.un.org/en/peacekeeping/missions/
past/unosomi.htm (last accessed 11 Jan. 2016)
Annex 16 U.N. Peacekeeping, “U.N. Operation in Somalia II (UNOSOM
II)”, available at http://www.un.org/en/peacekeeping/missions/
past/unosom2.htm (last accessed 11 Jan. 2016)
Annex 17 U.N. Peace Operations, “UNSOM United Nations Assistance
Mission in Somalia”, available at https://unsom.unmissions.
org/ (last accessed 11 Jan. 2016)
Annex 18 U.N. Commission on the Limits of the Continental Shelf
“Membership of the Commission”, available at http://www.
un.org/Depts/los/clcs_new/commission_members_1997_2012.
htm (last accessed 11 Jan. 2016)
DIPLOMATIC AND OTHER GOVERNMENT
CORRESPONDENCE
Annex 19 Email from Amb. Hans Wilhelm Longva to Hon. Prof.
Abdirahman Haji Adan Ibbi, Deputy Prime Minister and
Minister of Fisheries and Marine Resources of Somalia (27
Mar. 2009)
Annex 20 Email from Amb. Hans Wilhelm Longva to Hon. Prof.
Abdirahman Haji Adan Ibbi, Deputy Prime Minister and
Minister of Fisheries and Marine Resources of Somalia (3 Apr.
2009)
Annex 21 Email from Hon. Prof. Abdirahman Haji Adan Ibbi to Hon.
Abdurahman Abdishakur Warsame, Minister of Planning and
International Cooperation of Somalia (7 Apr. 2009)
Annex 22 Note Verbale from H.E. Omar Abdirashid Ali Sharmarke,
Prime Minister of the Transitional Federal Government of the
Somali Republic, to H.E. Ban Ki-Moon, Secretary-General of
the United Nations, No. XRW/0065/06/09 (8 Apr. 2009)
Annex 23 Note Verbale from the Ministry of Foreign Affairs and
International Trade of the Republic of Kenya to the Embassy
of the Federal Republic of Somalia in Nairobi, No. MFA.
PROT/7/8/1 (7 Mar. 2014)
Annex 24 Note Verbale from the Ministry of Foreign Affairs and
International Trade of the Republic of Kenya to the Ministry
of Foreign Affairs & Investment Cooperation of the Federal
Republic of Somalia, No. MFA/REL/13/21A (24 July 2014)
ACADEMIC ARTICLES, BOOKS, AND SPEECHES
Annex 25 M. H. Nordquist, S. Nandan, & S. Rosenne (eds.), United
Nations Convention on the Law of the Sea 1982, A
Commentary, Vol. V (1989)
Annex 26 H. Owada, Introductory Remarks at the Seminar on the
Contentious Jurisdiction of the International Court of Justice
(26 Oct. 2010)
Annex 27 P. Chandrasekhara Rao, “Law of the Sea, Settlement of
Disputes”, Max Planck Encyclopedia of Public International
Law (last updated Mar. 2011)
Annex 28 C. Lathrop, “Continental Shelf Delimitation Beyond 200
Nautical Miles: Approaches Taken by Coastal States before
the Commission on the Limits of the Continental Shelf” in
International Maritime Boundaries (D.A. Colson & R.W.
Smith eds., 2011)
NEWSPAPER & MEDIA REPORTS
Annex 29 C. Majtenyi, “Somali President in Capital for Consultations”,
VOA (8 Jan. 2007)
Annex 30 E. Mutai, “Kenya, Somalia border row targeted in Sh5.6bn
mapping plan”, Business Daily (20 Apr. 2014)
Annex 31 “U.N. Secretary Council makes historic visit to Somalia”,
Dhanaanmedia.com (13 Aug. 2014)
Annex 32 “IGAD Foreign Affairs Ministers Arrive in Mogadishu”,
AMISOM (10 Jan. 2015)
Annex 33 “Speaker of the Somali Parliament receives parliamentary
delegation from Kenya”, Radio Muqdisho (3 Feb. 2015)
Annex 1
Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 332 (23 May, 1969), entered into
force 27 Jan. 1980
Annex 1
No. 18232
MULTILATERAL
Vienna Convention on the law of treaties (with annex).
Concluded at Vienna on 23 May 1969
Authentic texts: English, French, Chinese, Russian and Spanish.
Registered ex officio on 27 January 1980.
MULTILATERAL
Convention de Vi~nne sur le droit des traites (avec annexe).
Conclue a Vienne le 23 mai 1969
Textes authentiques : anglais, franrais, chinois, russe et espagnol.
Enregistree d'ojjice le 27 Janvier 1980.
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332 United Nations - Treaty Series • Nations Unies - Recueil des Traites 1980
VIENNA CONVENTION 1 ON THE LAW OF TREATIES
The States Parties to the present Convention,
Considering the fundamental role of treaties in the history of international relations,
Recognizing the ever-increasing importance of treaties as a source of international
Jaw and as a means of developing peaceful co-operation among nations,
whatever their constitutional and social systems,
Noting that the principles of free consent and of good faith and the pacta sunt
servanda rule are universally recognized,
Affirming that disputes concerning treaties, like other international disputes,
should be settled by peaceful means and in conformity with the principles of justice
and international law,
Recalling the determination of the peoples of the United Nations to establish
conditions under which justice and respect for the obligations arising from treaties
can be maintained,
Having in mind the principles of international Jaw embodied in the Charter of
the United Nations, such as the principles of the equal rights and self-determination
of peoples, of the sovereign equality and independence of all States, of noninterference
in the domestic affairs of States, of the prohibition of the threat or use of
force and of universal respect for, and observance of, human rights and fundamental
freedoms for all,
I Came into force on 27 January 1980, i.e., on the thirtieth day following the date of deposit of the thirty-fifth instrument
of ratification or accession with the Secretary-General of the United Nations, in accordance with article 84 (1):
Date of deposit Dute of deposit
of the instrument of of the instrument of
State ratification or accession (a) State ratification or accession (a)
Argentina• ....... \,. . . . . . . . . . 5 December 1972 Morocco• ... . V.. • . . • . . . . . . . . 26 September 1972
Australia ... v.. . . . . . . . . . . . . . 13 June 1974 a Nauru .. 4.., • • • • • • • • • • • • • • • • • • 5 May 1978 a
Austria ..... v.............. 30 April 1979 a New Zealand .... V........... 4 August 1971
Barbados .. !<'... ... . . . . . . . . . . 24 June 1971 Niger ..•....... Y........... 27 October 1971 a Canada* ..•... 1,(............ 14 October 1970 a Nigeria ... V::................ 31 July 1%9
Central African Republic . V... 10 December 1971 a Paraguay ..... . 1.::.......... 3 February 1972 a
Cyprus .• :II'................. 28 December 1976 a Philippines ...... A./;........ 15 November 1972
Denmark ....... .y. . . . . . . . . I June 1976 Republic of Korea ... . k'. . . . . . . 27 April 1977
Finland* ...... y;............ 19 August 1977 Spain ...... . 1,.·:............. 16 May 1972 a Greece .... v:............... 30 October 1974. a Sweden .. v:................. 4 February 1975
Holy See .. . •i................ 25 February 1977 Syrian Arab Republic* .. .v..... 2 October 1970 a
Honduras ....•. V.:........... 20 September 1979 ~:~fsi~".:: i,;~:::::::::::::: 28 December 1979 a
~~:aic~ .. ::: :~./::::::::::::: ~ ~~\~ :~;6 United Kingdom of Great Britain
23
June
1971 a
Kuwait* ...... \r............. 11 November 1975 a and Northern Ireland* ... \,.. 25 June 1971
Lesotho ...... ~............ 3 March 1972 a United Republic of Tanzania• V, 12 April 1976 a
Mauritius ........ '<:. . . . . . . . . . 18 January 1973 a Yugoslavia ._. 1,.<~. • • • • . . • • • . . . 27 August 1970
Mexico .... .'/.............. 25 September 1974 Zaire ... .,<.................. 25 July 1977 a
Subsequently, the Convention came into force for the following State on the thirtieth day following the date of
deposit of its instrument of ratification or accession with the Secretary-General of the United Nations, in accordance with
article 84 (2):
Siute
Rwanda .......................................................... .
(With effect from 2 February 1980.)
Dute of deposit of the
instrument of accession (a)
3 January 1980 a
• For the texts of the reservations and declarations made upon ratification or accession, seep. 501 of this volume.
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Annex 1
1980 United Nations - Treaty Series • Nations Unies - Recueil des Traites 333
Believing that the codification and progressive development of the law of
treaties achieved in the present Convention will promote the purposes of the United
Nations set forth in the Charter, namely, the maintenance of international peace and
security, the development of friendly relations and the achievement of co-operation
among nations,
Affirming that the rules of customary international law will continue to govern
questions not regulated by the provisions of the present Convention,
Have agreed as follows:
PART r. INTRODUCTION
Article 1. SCOPE OF THE PRESENT CONVENTION
The present Convention applies to treaties between States.
Article 2. UsE OF TERMS
1. For the purposes of the present Convention:
(a) "Treaty" means an international agreement concluded between States in
written form and governed by international law, whether embodied in a single instrument
or in two or more related instruments and whatever its particular designation;
(b) "Ratification", "acceptance", "approval" and "accession" mean in each
case the international act so named whereby a State establishes on the international
plane its consent to be bound by a treaty;
(c) "Full powers" means a document emanating from the competent authority
of a State designating a person or persons to represent the State for negotiating,
adopting or authenticating the text of a treaty, for expressing the consent of the State
to be bound by a treaty, or for accomplishing any other act with respect to a treaty;
(d) "Reservation" means a unilateral statement, however phrased or named,
made by a State, when signing, ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or to modify the legal effect of certain provisions of
the treaty in their application to that State;
(e) "Negotiating State" means a State which took part in the drawing up and
adoption of the text of t~e treaty;
(j) "Contracting State" means a State which has consented to be bound by the
treaty, whether or not th~ treaty has entered into force;
(g) "Party" means a State which has consented to be bound by the treaty and
for which the treaty is in force; ·
(h) "Third State" means a State not a party to the treaty;
(i) "International organization" means an intergovernmental organization.
2. The provisions of paragraph 1 regarding the use of terms in the present
Convention are without prejudice to the use of those terms or to the meanings which
may be given to them in the internal law of any State.
Article 3. INTERNATIONAL AGREEM!::NTS NOT WITHIN THI:: SCOPE
OF THE PRESENT CONVENTION
The fact that the present Convention does not apply to international agreements
concluded between States and other subjects of international law or between such
other subjects of international law, or to international agreements not in written
form, shall not affect:
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(a) The legal force of such agreements;
(b) The application to them of any of the rules set forth in the present Convention
to which they would be subject under international law independently of the
Convention;
(c) The application of the Convention to the relations of States as between themselves
under international agreements to which other subjects of international
law are also parties.
Article 4. NoN-RETROACTIVITY OF THE PRESENT CONVENTION
Without prejudice to the application of any rules set forth in the present Convention
to which treaties would be subject under international law independently of
the Convention, the Convention applies only to treaties which are concluded by
States after the entry into force of the present Convention with regard to such States.
Article 5. TREATIES CONSTITUTING INTERNATIONAL ORGANIZATIONS
AND TREATIES ADOPTED WITHIN AN INTERNATIONAL ORGANIZATION
The present Convention applies to any treaty which is the constituent instrument
of an international organization and to any treaty adopted within an international
organization without prejudice to any relevant rules of the organization.
PART n. CONCLUSION AND ENTRY INTO FORCE OF TREATIES
SECTION I. CONCLUSION OF TREATIES
Article 6. CAPACITY OF STATES TO CONCLUDE TREATIES
Every State possesses capacity to conclude treaties.
Article 7. FULL POWERS
1. A person is considered as representing a State for the purpose of adopting
or authenticating the text of a treaty or for the purpose of expressing the consent of
the State to be bound by a treaty if:
(a) He produces appropriate full powers; or
(b) It appears from the practice of the States concerned or from other circumstances
that their intention was to consider that person as representing the
State for such purposes and to dispense with full powers.
2. In virtue of their functions and without having to produce full powers, the
following are considered as representing their State:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for
the purpose of performing all acts relating to the conclusion of a treaty;
(b) Heads of diplomatic missions, for the purpose of adopting the text of a treaty
between the accrediting State and the State to which they are accredited;
(c) Representatives accredited by States to an international conference or to an international
organization or one of its organs, for the purpose of adopting the
text of a treaty in that conference, organization or organ.
Article 8. SUBSEQUENT CONFIRMATION OF AN ACT
PERFORMED WITHOUT AUTHORIZATION
An act relating to the conclusion of a treaty performed by a person who cannot
be considered under article 7 as authorized to represent a State for that purpose is
without legal effect unless afterwards confirmed by that State.
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Article 9. ADOPTION OF THE TEXT
1. The adoption of the text of a treaty ta]<es place by the consent of all the
States participating in its drawing up except as provided in paragraph 2.
2. The adoption of the text of a treaty at an international conference takes
place by the vote of two. thirds of the States present and voting, unless by the same
majority they shall decide to apply a different rule.
Article JO. AUTHENTICATION OF THE TEXT
The text of a treaty is established as authentic and definitive:
(a) By such procedure as may be provided for in the text or agreed upon by the
States participating in its drawing up; or
(b) Failing such procedure, by the signature, signature ad referendum or initialling
by the representatives of those States of the text of the treaty or of the Final Act
of a conference incorporating the text.
Article II. MEANS OF EXPRESSING CONSENT TO BE BOUND BY A TREATY
The consent of a State to be bound by a treaty may be expressed by signature,
exchange of instruments constituting a treaty, ratification, acceptance, approval or
accession, or by any other means if so agreed.
Article 12. CONSENT TO BE BOUND BY A TREATY EXPRESSED BY SIGNATURE
1. The consent of a State to be bound by a treaty is expressed by the signature
of its representative when:
(a) The treaty provides that signature shall have that effect;
(b) It is otherwise established that the negotiating States were agreed that signature
should have that effect; or
(c) The intention of the State to give that effect to the signature appears from the
full powers of its representative or was expressed during the negotiation.
2. For the purposes of paragraph 1:
(a) The initialling of a text constitutes a signature of the treaty when it is established
that the negotiating States so agreed;
(b) The signature ad referendum of a treaty by a representative, if confirmed by his
State, constitutes a full signature of the treaty.
Article 13. CONSENT TO BE BOUND BY A TR"ATY EXPRESSED
BY AN EXCHANGE OF INSTRUMENTS CONSTITUTING A TREATY
The consent of States to be bound by a treaty constituted by instruments exchanged
between them is expressed by that exchange when:
(a) The instruments provide that their exchange shall have that effect; or
(b) It is otherwise established that those States were agreed that the exchange of instruments
shall have that effect.
Article 14. CONSENT TO BE BOUND BY A TREATY EXPRESSED
BY RATIFICATION, ACCEPTANCE OR APPROVAL
1. The consent of a State to be bound by a treaty is expressed by ratification
when:
(a) The treaty provides for such consent to be expressed by means of ratification;
(b) It is otherwise established that the negotiating States were agreed that ratification
should be required;
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(c) The representative of the State has signed the treaty subject to ratification; or
(d) The intention of the State to sign the treaty subject to ratification appears from
the full powers of its representative or was expressed during the negotiation.
2. The consent of a State to be bound by a treaty is expressed by acceptance or
approval under conditions similar to those which apply to ratification.
Article 15. CONSENT TO BE BOUND BY A TREATY EXPRESSED BY ACCESSION
The consent of a State to be bound by a treaty is expressed by accession when:
(a) The treaty provides that such consent may be expressed by that State by means
of accession;
(b) It is otherwise established that the negotiating States were agreed that such consent
may be expressed by that State by means of accession; or
(c) All the parties have subsequently agreed that such consent may be expressed by
that State by means of accession.
Article 16. EXCHANGE OR DEPOSIT OF INSTRUMENTS OF RATIFICATION,
ACCEPTANCE, APPROVAL OR ACCESSION
Unless the treaty otherwise provides, instruments of ratification, acceptance,
approval or accession establish the consent of a State to be bound by a treaty upon:
(a) Their exchange between the contracting States;
(b) Their deposit with the depositary; or
(c) Their notification to the contracting States or to the depositary, if so agreed.
Article 17. CONSENT TO BE BOUND BY PART OF A TREATY
AND CHOICE OF DIFFERING PROVISIONS
1. Without prejudice to articles 19 to 23, the consent of a State to be bound by
part of a treaty is effective only if the treaty so permits or the other contracting States
so agree.
2. The consent of a State to be bound by a treaty which permits a choice between
differing provisions is effective only if it is made clear to which of the provisions
the consent relates.
Article 18. OBLIGATION NOT TO DEFEAT THE OBJECT AND PURPOSE
OF A TREATY PRIOR TO ITS ENTRY INTO FORCE
A State is obliged to refrain from acts which would defeat the object and purpose
of a treaty when:
(a) It has signed the treaty or has exchanged instruments constituting the treaty
subject to ratification, acceptance or approval, until it shall have made its intention
clear not to become a party to the treaty; or
(b) It has expressed its consent to be bound by the treaty, pending the entry into
force of the treaty and provided that such entry into force is not unduly
delayed.
SECTlON 2. RESERVATIONS
Article 19. FORMULATION OF RESERVATIONS
A State may, when signing, ratifying, accepting, approving or acceding to a
treaty, formulate a reservation unless:
(a) The reservation is prohibited by the treaty;
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(b) The treaty provides that only specified reservations, which do not include the
reservation in question, may be made; or
(c) In cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible
with the object and purpose of the treaty.
Article 20. ACCEPTANCE OF AND OBJECTION TO RESERVATIONS
1. A reservation expressly authorized by a treaty does not require any subsequent
acceptance by the other contracting States unless the treaty so provides.
2. When it appears from the limited number of the negotiating States and the
object and purpose of a treaty that the application of the treaty in its entirety between
all the parties is an essential condition of the consent of each one to be bound
by the treaty, a reservation requires acceptance by all the parties.
3. When a treaty is a constituent instrument of an international organization
and unless it otherwise provides, a reservation requires the acceptance of the competent
organ of that organization.
4. In cases not falling under the preceding paragraphs and unless the treaty
otherwise provides:
(a) Acceptance by another contracting State of a reservation constitutes the reserving
State a party to the treaty in relation to that other State if or when the treaty
is in force for those States;
(b) An objection by another contracting State to a reservation does not preclude
the entry into force of the treaty as between the objecting and reserving States
unless a contrary intention is definitely expressed by the objecting State;
(c) An act expressing a State's consent to be bound by the treaty and containing a
reservation is effective as soon as at least one other conti:acting State has accepted
the reservation.
5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides,
a reservation is considered to have been accepted by a State if it shall have raised
no objection to the reservation by the end of a period of twelve months after it was
notified of the reservation or by the date on which it expressed its consent to be
bound by the treaty, whichever is later.
Article 21. LEGAL EFFECTS OF RESERVATIONS
AND OF OBJECTIONS TO RESERVATIONS
1. A reservation established with regard to another party in accordance with
articles 19, 20 and 23:
(a) Modifies for the reserving State in its relations with that other party the provisions
of the treaty to which the reservation relates to the extent of the reservation;
and
(b) Modifies those provisions to the same extent for that other party in its relations
with the reserving State.
2. The reservation does not modify the provisions of the treaty for the other
parties to the treaty inter se.
3. When a State objecting to a reservation has not opposed the entry into force
of the treaty between itself and the reserving State, the provisions to which the reservation
relates do not apply as between the two States to the extent of the reservation.
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Article 22. WITHDRAWAL OF RESERVATIONS
AND OF OBJECTIONS TO RESERVATIONS
1980
1. Unless the treaty otherwise provides, a reservation may be withdrawn at any
time and the consent of a State which has accepted the reservation is not required for
its withdrawal.
2. Unless the treaty otherwise provides, an objection to a reservation may be
withdrawn at any time.
3. Unless the treaty otherwise provides, or it is otherwise agreed:
(a) The withdrawal of a reservation becomes operative in relation to another contracting
State only when notice of it has been received by that State;
(b) The withdrawal of an objection to a reservation becomes operative only when
notice of it has been received by the State which formulated the reservation.
Article 23. PROCEDURE REGARDING RESERVATIONS
1. A reservation, an express acceptance of a reservation and an objection to a
reservation must be formulated in writing and communicated to the contracting
States and other States entitled to become parties to the treaty.
2. If formulated when signing the treaty subject to ratification, acceptance or
approval, a reservation must be formally confirmed by the reserving State when expressing
its consent to be bound by the treaty. In such a case the reservation shall be
considered as having been made on the date of its confirmation.
3. An express acceptance of, or an objection to, a reservation made previously
to confirmation of the reservation does not itself require confirmation.
4. The withdrawal of a reservation or of an objection to a reservation must be
formulated in writing.
SECTION 3. ENTRY INTO FORCE AND PROVISIONAL APPLICATION OF TREATIES
Article 24. ENTRY INTO FORCE
1. A treaty enters into force in such manner and upon such date as it may provide
or as the negotiating States may agree.
2. Failing any such provision or agreement, a treaty enters into force as soon
as consent to be bound by the treaty has been established for all the negotiating
States.
3. When the consent of a State to be bound by a treaty is established on a date
after the treaty has come into force, the treaty enters into force for that State on that
date, unless the treaty otherwise provides.
4. The provisions of a treaty regulating the authentication of its text, the
establishment of the consent of States to be bound by the treaty, the manner or date
of its entry into force, reservations, the functions of the depositary and other matters
arising necessarily before the entry into force of the treaty apply from the time of the
adoption of its text.
Article 25. PROVISIONAL APPLICATION
1. A treaty or a part of a treaty is applied provisionally pending its entry into
force if:
(a) The treaty itself so provides; or
(b) The negotiating States have in some other manner so agreed.
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2. Unless the treaty otherwise provides or the negotiating States have otherwise
agreed, the provisional application of a treaty or a part of a treaty with respect
to a State shall be terminated if that State notifies the other States between which the
treaty is being applied provisionally of its intention not to become a party to the treaty.
PART 111. OBSERVANCE, APPLICATION AND INTERPRETATION
OF TREATIES
SECTION I. OBSERVANCE OF TREATIES
Article 26. "PACTA SUNT SERVANDA"
Every treaty in force is binding upon the parties to it and must be performed by
them in good faith.
Article 27. INTERNAL LAW AND OBSERVANCE OF TREATIES
A party may not invoke the provisions of its internal law as justification for its
failure to perform a treaty. This rule is without prejudice to article 46.
SECTION 2. APPLICATION OF TREATIES
Article 28. NoN-RETROACTIVITY OF TREATIES
Unless a different intention appears from the treaty or is otherwise established,
its provisions do not bind a party in relation to any act or fact which took place or
any situation which ceased to exist before the date of the entry into force of the treaty
with respect to that party.
Article 29. TERRITORIAL SCOPE OF TREATIES
Unless a different intention appears from the treaty or is otherwise established, a
treaty is binding upon each party in respect of its entire territory.
Article 30. APPLICATION OF SUCCESSIVE TREATIES RELATING
TO THE SAME SUBJECT-MATTER
1. Subject to Article 103 of the Charter of the United Nations, the rights and
obligations of States parties to successive treaties relating to the same subject-matter
shall be determined in accordance with the following paragraphs.
2. When a treaty specifies that it is subject to, or that it is not to be considered
as incompatible with, an earlier or later treaty, the provisions of that other treaty
prevail.
3. When all the parties to the earlier treaty are parties also to the later treaty
but the earlier treaty is not terminated or suspended in operation under article 59, the
earlier treaty applies only to the extent that its provisions are compatible with those
of the later treaty.
4. When the parties to the later treaty do not include all the parties to the
earlier one:
(a) As between States parties to both treaties the same rule applies as in paragraph 3;
(b) As between a State party to both treaties and a State party to only one of the
treaties, the treaty to which both States are parties governs their mutual rights
and obligations.
5. Paragraph 4 is without prejudice to article 41, or to any question of the termination
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tion of responsibility which may arise for a State from the conclusion or application
of a treaty the provisions of which are incompatible with its obligations towards
another State under another treaty.
SECTION 3. INTERPRETATION OF TREATIES
Article 31. GENERAL RULE OF INTERPRETATION
1. A treaty shall 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 the light of its
object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise,
in addition to the text, including its preamble and annexes:
(a) Any agreement relating to the treaty which was made between all the parties in
connexion with the conclusion of the treaty;
(b) Any instrument which was made by one or more parties in connexion with the
conclusion of the treaty and accepted by the other parties as an instrument
related to the treaty.
3. There shall be taken into account, together with the context:
(a) Any subsequent agreement between the parties regarding the interpretation of
the treaty or the application of its provisions;
(b) Any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations between the
parties.
4. A special meaning shall be given to a term if it is established that the parties
so intended.
Article 32. SUPPLEMENTARY MEANS OF INTERPRETATION
Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31, or to determine the
meaning when the interpretation according to article 31:
(a) Leaves the meaning ambiguous or obscure; or
(b) Leads to a result which is manifestly absurd or unreasonable.
Article 33. INTERPRETATION OF TREATIES AUTHENTICATED
IN TWO OR MORE LANGUAGES
1. When a treaty has been authenticated in two or more languages, the text is
equally authoritative in each language, unless the treaty provides or the parties agree
that, in case of divergence, a particular text shall prevail.
2. A version of the treaty in a language other than one of those in which the
text was authenticated shall be considered an authentic text only if the treaty so provides
or the parties so agree.
3. The terms of the treaty are presumed to have the same meaning in each
authentic text.
4. Except where a particular text prevails in accordance with paragraph 1,
when a comparison of the authentic texts discloses a difference of meaning which the
application of articles 31 and 32 does not remove, the meaning which best reconciles
the texts, having regard to the object and purpose of the treaty, shall be adopted.
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SECTION 4. TREATIES AND THIRD STATES
Article 34. GENERAL RULE REGARDING THIRD STATES
A treaty does not create either obligations or rights for a third State without its
consent.
Article 35. TREATIES PROVIDING FOR OBLIGATIONS FOR THIRD STATES
An obligation arises for a third State from a provision of a treaty if the parties to
the treaty intend the provision to be the means of establishing the obligation and the
third State expressly accepts that obligation in writing.
Article 36. TREATIES PROVIDING FOR RIGHTS FOR THI.RD STATES
I. A right arises for a third State from a provision of a treaty if the parties to
the treaty intend the provision to accord that right either to the third State, or to a
group of States to which it belongs, or to all States, and the third State assents
thereto. Its assent shall be presumed so long as the contrary is not indicated, unless
the treaty otherwise provides.
2. A State exercising a right in accordance with paragraph 1 shall comply with
the conditions for its exercise provided for in the treaty or established in conformity
with the treaty.
Article 37. REVOCATION OR MODIFICATION OF OBLIGATIONS
OR RIGHTS OF THIRD STATES
I. When an obligation has arisen for a third State in conformity with article
35, the obligation may be revoked or modified only with the consent of the parties
to the treaty and of the third State, unless it is established that they had otherwise
agreed.
2. When a right has arisen for a third State in conformity with article 36, the
right may not be revoked or modified by the parties if it is established that the right
was intended not to be revocable or subject to modification without the consent of
the third State.
Article 38. RULES IN A TREATY BECOMING BINDING ON THIRD STATES
THROUGH INTERNATIONAL CUSTOM
Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming
binding upon a third State as a customary rule of international law, recognized as
such.
PART 1v. AMENDMENT AND MODIFICATION OF TREATIES
Article 39. GENERAL RULE REGARDING THE AMENDMENT OF TREATIES
A treaty may be amended by agreement between the parties. The rules laid down
in Part II apply to such an agreement except in so far as the treaty may otherwise provide.
Article 40. AMENDMENT OF MULTILATERAL TREATIES
I. Unless the treaty otherwise provides, the amendment of multilateral treaties
shall be governed by the following paragraphs.
2. Any proposal to amend a multilateral treaty as between all the parties must
be notified to all the contracting States, each one of which shall have the right to take
part in:
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(a) The decision as to the action to be taken in regara to sul.'.n proposal;
(b) The negotiation and conclusion of any agreement for the amendment of the
treaty.
3. Every State entitled to become a party to the treaty shall also be entitled to
become a party to the treaty as amended.
4. The amending agreement does not bind any State already a party to the treaty
which does not become a party to the amending agreement; article 30, paragraph 4(b),
applies in relation to such State.
5. Any State which becomes a party to the treaty after the entry into force of
the amending agreement shall, failing an expression of a different intention by that
State:
(a) be considered as a party to the treaty as amended; and
(b) be considered as a party to the unamended treaty in relation to any party to the
treaty not bound by the amending agreement.
Article 41. AGREEMENTS TO MODIFY MULTILATERAL TREATIES
BETWEEN CERTAIN OF THE PARTIES ONLY
1. Two or more of the parties to a multilateral treaty may conclude an agreement
to modify the treaty as between themselves alone if:
(a) The possibility of such a modification is provided for by the treaty; or
(b) The modification in question is not prohibited by the treaty and:
(i) Does not affect the enjoyment by the other parties of their rights under the
treaty or the performance of their obligations;
(ii) Does not relate to a provision, derogation from which is incompatible
with the effective execution of the object and purpose of the treaty as a
whole.
2. Unless in a case falling under paragraph l(a) the treaty otherwise provides,
the parties in question shall notify the other parties of their intention to conclude the
agreement and of the modification to the treaty for which it provides.
PART v. INVALIDITY, TERMINATION AND SUSPENSION
OF THE OPERATION OF TREATIES
SECTION !. GENERAL PROVISIONS
Article 42. VALIDITY AND CONTINUANCE IN FORCE OF TREATIES
1. The validity of a treaty or of the consent of a State to be bound by a treaty
may be impeached only through the application of the present Convention.
2. The termination of a treaty, its denunciation or the withdrawal of a party,
may take place only as a result of the application of the provisions of the treaty or of
the present Convention. The same rule applies to suspension of the operation of a
treaty.
Article 43. OBLIGATIONS IMPOSED BY INTERNATIONAL LAW
INDEPENDENTLY OF A TREATY
The invalidity, termination or denunciation of a treaty, the withdrawal of a party
from it, or the suspension of its operation, as a result of the application of the present
Convention or of the provisions of the treaty, shall not in any way impair the duty of
any State to fulfil any obligation embodied in the treaty to which it would be subject
under international law independently of the treaty.
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Article 44. SEPARABILITY OF TREATY PROVISIONS
1. A right of a party, provided for in a treaty or arising under article 56, to denounce,
withdraw from or suspend the operation of the treaty may be exercised only
with respect to the whole treaty unless the treaty otherwise provides or the parties
otherwise agree.
2. A ground for invalidating, terminating, withdrawing from or suspending
the operation of a treaty recognized in the present Convention may be invoked only
with respect to the whole treaty except as provided in the following paragraphs or in
article 60.
3. If the ground relates solely to particular clauses, it may be invoked only with
respect to those clauses where:
(a) The said clauses are separable from the remainder of the treaty with regard to
their application;
(b) It appears from the treaty or is otherwise established that acceptance of those
clauses was not an essential basis of the consent of the other party or parties to
be bound by the treaty as a whole; and
(c) Continued performance of the remainder of the treaty would not be unjust.
4. In cases falling under articles 49 and 50 the State entitled to invoke the fraud
or corruption may do so with respect either to the whole treaty or, subject to
paragraph 3, to the particular clauses alone.
5. In cases falling under articles 51, 52 and 53, no separation of the provisions
of the treaty is permitted.
Article 45. Loss OF A RIGHT TO INVOKE A GROUND FOR INVALIDATING,
TERMINATING, WITHDRAWING FROM OR SUSPENDING THE OPERATION OF A TREATY
A State may no longer invoke a ground for invalidating, terminating, withdrawing
from or suspending the operation of a treaty under articles 46 to 50 or articles
60 and 62 if, after becoming aware of the facts:
(a) It shall have expressly agreed that the treaty is valid or remains in force or continues
in operation, as the case may be; or
(b) It must by reason of its conduct be considered as having acquiesced in the validity
of the treaty or in its maintenance in force or in operation, as the case may be.
SECTION 2,INVALIDITY OF TREATIES
Article 46. PROVISIONS OF INTERNAL LA w REGARDING
COMPETENCE TO CONCLUDE TREATIES
1. A State may not invoke the fact that its consent to be bound by a treaty has
been expressed in violation of a provision of its internal law regarding competence to
conclude treaties as invalidating its consent unless that violation was manifest and
concerned a rule of its internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State conducting
itself in the matter in accordance with normal practice and in good faith.
Article 47. SPECIFIC RESTRICTIONS ON AUTHORITY TO EXPRESS
THE CONSENT OF A ST A TE
If the authority of a representative to express the consent of a State to be bound
by a particular treaty has been made subject to a specific restriction, his omission to
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observe that restriction may not be invoked as invalidating the consent expressed by
him unless the restriction was notified to the other negotiating States prior to his expressing
such consent.
Article 48. ERROR
1. A State may invoke an error in a treaty as invalidating its consent to be
bound by the treaty if the error relates to a fact or situation which was assumed by
that State to exist at the time when the treaty was concluded and formed an essential
basis of its consent to be bound by the treaty.
2. Paragraph 1 shall not apply if the State in question contributed by its own
conduct to the error or if the circumstances were such as to put that State on notice of
a possible error.
3. An error relating only to the wording of the text of a treaty does not affect
its validity; article 79 then applies.
Article 49. FRAUD
If a State has been induced to conclude a treaty by the fraudulent conduct of
another negotiating State, the State may invoke the fraud as invalidating its consent
to be bound by the treaty.
Article 50. CORRUPTION OF A REPRESENTATIVE OF A STATE
If the expression of a State's consent to be bound by a treaty has been procured
through the corruption of its representative directly or indirectly by another
negotiating State, the State may invoke such corruption as invalidating its consent to
be bound by the treaty.
Article 51. COERCION OF A REPRESENTATIVE OF A STATE
The expression of a State's consent to be bound by a treaty which has been procured
by the coercion of its representative through acts or threats directed against
him shall be without any legal effect.
Article 52. COERCION OF A STATE BY THE THREAT OR USE OF FORCE
A treaty is void if its conclusion has been procured by the threat or use of force
in violation of the principles of international law embodied in the Charter of the
United Nations.
Article 53. TREATIES CONFLICTING WITH A PEREMPTORY NORM
OF GENERAL INTERNATIONAL LAW ("JUS COGENS")
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present Convention, a
peremptory norm of general international law is a norm accepted and recognized by
the international community of States as a whole as a norm from which no derogation
is permitted and which can be modified only by a subsequent norm of general international
law having the same character.
SECTION 3. TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES
Article 54. TERMINATION OF OR WITHDRAWAL FROM A TREATY
UNDER ITS PROVISIONS OR BY CONSENT OF THE PARTIES
The termination of a treaty or the withdrawal of a party may take place:
(a) In conformity with the provisions of the treaty; or
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(b) At any time by consent of all the parties after consultation with the other contracting
States.
Article 55. REDUCTION Of THE PARTIES TO A MULTILATERAL TREATY
BELOW THE. NUMBER NECESSARY FOR ITS ENTRY INTO FORCE
Unless the treaty otherwise provides, a multilateral treaty does not terminate by
reason only of the fact that the number of the parties falls below the number
necessary for its entry into force.
Article 56. D.E:NUNCIATION OF OR WITHDRAWAL FROM A TREATY CONTAINING
NO PROVISION REGARDING TERMINATION, DENUNCIATION OR WITHDRAWAL
1. A treaty which contains no provision regarding its termination and which
does not provide for denunciation or withdrawal is not subject to denunciation or
withdrawal unless:
(a) It is established that the parties intended to admit the possibility of denunciation
or withdrawal; or
(b) A right of denunciation or withdrawal may be implied by the nature of the treaty.
2. A party shall give not less than twelve months' notice of its intention to denounce
or withdraw from a treaty under paragraph I.
Article 57. SUSPENSION OF THE OPERATION OF A TREATY UNDER
ITS PROVISIONS OR BY CONSENT OF THE PARTIES
The operation of a treaty in regard to all the parties or to a particular party may
be suspended:
(a) In conformity with the provisions of the treaty; or
(b) At any time by consent of all the parties after consultation with the other contracting
States.
Article 58. SUSPENSION OF THE OPERATION OF A MULTILATERAL TREATY
BY AGREEMENT BETWEEN CERTAIN OF THE PARTIES ONLY
1. Two or more parties to a multilateral treaty may conclude an agreement to
suspend the operation of provisions of the treaty, temporarily and as between
themselves al.one, if:
(a) The possibility of such a suspension is provided for by the treaty; or
(b) The suspension in question is not prohibited by the treaty and:
(i) Does not affect the enjoyment by the other parties of their rights under the
treaty or the performance of their obligations;
(ii) ls not incompatible with the object and purpose of the treaty.
2. Unless in a case falling under paragraph l(a) the treaty otherwise provides,
the parties in question shall notify the other parties of their intention to conclude the
agreement and of those provisions of the treaty the operation of which they intend to
suspend.
Article 59. TERMINATION OR SUSPENSION OF THE OPERATION
OF A TREATY IMPLIED BY CONCLUSION OF A LATER TREATY
1. A treaty shall be considered as terminated if all the parties to it conclude a
later treaty relating to the same subject-matter and:
(a) It appears from the later treaty or is otherwise established that the parties intended
that the matter should be governed by that treaty; or
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(b) The provisions of the later treaty are so far incompatible with those of the
earlier one that the two treaties are not capable of being applied at the same
time.
2. The earlier treaty shall be considered as only suspended in operation if it appears
from the later treaty or is otherwise established that such was the intention of
the parties.
Article 60. TERMINATION OR SUSPENSION OF THE OPERATION
OF A TREATY AS A CONSEQUENCE OF ITS BREACH
1. A material breach of a bilateral treaty by one of the parties entitles the other
to invoke the breach as a ground for terminating the treaty or suspending its operation
in whole or in part.
2. A material breach of a multilateral treaty by one of the parties entitles:
(a) The other parties by unanimous agreement to suspend the operation of the
treaty in whole or in part or to terminate it either:
(i) In the relations between themselves and the defaulting State, or
(ii) As between all the parties;
(b) A party specially affected by the breach to invoke it as a ground for suspending
the operation of the treaty in whole or in part in the relations between itself and
the defaulting State;
(c) Any party other than the defaulting State to invoke the breach as a ground for
suspending the operation of the treaty in whole or in part with respect to itself if
the treaty is of such a character that a material breach of its provisions by one
party radically changes the position of every party with respect to the further
performance of its obligations under the treaty.
3. A material breach of a treaty, for the purposes of this article, consists in:
(a) A repudiation of the treaty not sanctioned by the present Convention; or
(b) The violation of a provision essential to the accomplishment of the object or
purpose of the treaty.
4. The foregoing paragraphs are without prejudice to any provision in the
treaty applicable in the event of a breach.
5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the
human person contained in treaties of a humanitarian character, in particular to provisions
prohibiting any form of reprisals against persons protected by such treaties.
Article 61. SUPERVENING IMPOSSIBILITY OF PERFORMAt-.Cl:.
1. A party may invoke the impossibility of performing a treaty as a ground for
terminating or withdrawing from it if the impossibility results from the permanent
disappearance or destruction of an object indispensable for the execution of the treaty.
If the impossibility is temporary, it may be invoked only as a ground for suspending
the operation of the treaty.
2. Impossibility of performance may not be invoked by a party as a ground for
terminating, withdrawing from or suspending the operation of a treaty if the impossibility
is the result of a breach by that party either of an obligation under the
treaty or of any other international obligation owed to any other party to the treaty.
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Article 62. FUNDAMENTAL CHANGE OF CIRCUMSTANCES
1. A fundamental change of circumstances which has occurred with regard to
those existing at the time of the conclusion of a treaty, and which was not foreseen by
the parties, may not be invoked as a ground for terminating or withdrawing from the
treaty unless:
(a) The existence of those circumstances constituted an essential basis of the consent
of the parties to be bound by the treaty; and
(b) The effect of the change is radically to transform the extent of obligations still
to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground
for terminating or withdrawing from a treaty:
(a) If the treaty establishes a boundary; or
(b) If the fundamental change is the result of a breach by the party invoking it
either of an obligation under the treaty or of any other international obligation
owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental
change of circumstances as a ground for terminating or withdrawing from a treaty it
may also invoke the change as a ground for suspending the operation of the treaty.
Article 63. SEVERANCE OF DIPLOMATIC OR CONSULAR RELATIONS
The severance of diplomatic or consular relations between parties to a treaty
does not affect the legal relations established between them by the treaty except in so
far as the existence of diplomatic or consular relations is indispensable for the application
of the treaty.
Article 64. EMERGENCE OF A NEW PEREMPTORY NORM OF GENERAL
INTERNATIONAL LAW ("JUS COGENS")
If a new peremptory norm of general international law emerges, any existing
treaty which is in conflict with that norm becomes void and terminates.
SECTION 4. PROCEDURE
Article 65. PROCEDURE TO BE FOLLOWED WITH RESPECT TO INVALIDITY,
TERMINATION, WITHDRAWAL FROM OR SUSPENSION OF THE OPERATION OF A TREATY
1. A party which, under the provisions of the present Convention, invokes
either a defect in its consent to be bound by a treaty or a ground for impeaching the
validity of a treaty, terminating it, withdrawing from it or suspending its operation,
must notify the other parties of its claim. The notification shall indicate the measure
proposed to be taken with respect to the treaty and the reasons therefor.
2. If, after the expiry of a period which, except in cases of special urgency,
shall not be less than three months after the receipt of the notification, no party has
raised any objection, the party making the notification may carry out in the manner
provided in article 67 the measure which it has proposed.
3. If, however, objection has been raised by any other party, the parties shall
seek a solution through the means indicated in Article 33 of the Charter of the United
Nations.
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4. Nothing in the foregoing paragraphs shall affect the rights or obligations of
the parties under any provisions in force binding the parties with regard to the settlement
of disputes.
5. Without prejudice to article 45, the fact that a State has not previously made
the notification prescribed in paragraph 1 shall not prevent it from making such
notification in answer to another party claiming performance of the treaty or alleging
its violation.
Article 66. PROCEDURES FOR JUDICIAL SETTLEMENT, ARBITRATION
AND CONCILIATION
If, under paragraph 3 of article 65, no solution has been reached within a period
of twelve months following the date on which the objection was raised, the following
procedures shall be followed:
(a) Any one of the parties to a dispute concerning the application or the interpretation
of article 53 or 64 may, by a written application, submit it to the International
Court of Justice for a decision unless the parties by common consent
agree to submit the dispute to arbitration;
(b) Any one of the parties to a dispute concerning the application or the interpretation
of any of the other articles in Part V of the present Convention may set in
motion the procedure specified in the Annex to the Convention by submitting a
request to that effect to the Secretary-General of the United Nations.
Article 67. INSTRUMENTS FOR DECLARING INVALID, TERMINATING,
WITHDRAWING FROM OR SUSPENDING THE OPERATION OF A TREATY
1. The notification provided for under article 65, paragraph 1 must be made in
writing.
2. Any act declaring invalid, terminating, withdrawing from or suspending the
operation of a treaty pursuant to the provisions of the treaty or of paragraphs 2 or 3
of article 65 shall be carried out through an instrument communicated to the other
parties. If the instrument is not signed by the Head of State, Head of Government or
Minister for Foreign Affairs, the representative of the State communicating it may be
called upon to produce full powers.
Article 68. REVOCATION OF NOTIFICATIONS AND INSTRUMENTS
PROVIDED FOR IN ARTICLES 65 AND 67
A notification or instrument provided for in article 65 or 67 may be revoked at
any time before it takes effect.
SECTION 5. CONSEQUENCES OF THE INVALIDITY, TERMINATION OR SUSPENSION
OF THE OPERATION OF A TREATY
Article 69. CONSEQUENCES OF THE INVALIDITY OF A TREATY
1. A treaty the invalidity of which is established under the present Convention
is void. The provisions of a void treaty have no legal force.
2. If acts have nevertheless been performed in reliance on such a treaty:
(a) Each party may require any other party to establish as far as possible in their
mutual relations the position that would have existed if the acts had not been
performed;
(b) Acts performed in good faith before the invalidity was invoked are not
rendered unlawful by reason only of the invalidity of the treaty.
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3. In cases falling under articles 49, 50, 51 or 52, paragraph 2 does not apply
with respect to the party to which the fraud, the act of corruption or the coercion is
imputable.
4. In the case of the invalidity of a particular State's consent to be bound by a
multilateral treaty, the foregoing rules apply in the relations between that State and
the parties to the treaty.
Article 70. CONSEQUENCES OF THE TERMINATION OF A TREATY
1. Unless the treaty otherwise provides or the parties otherwise agree, the termination
of a treaty under its provisions or in accordance with the present Convention:
(a) Releases the parties from any obligation further to perform the treaty;
(b) Does not affect any right, obligation or legal situation of the parties created
through the execution of the treaty prior to its termination.
2. If a State denounces or withdraws from a multilateral treaty, paragraph 1
applies in the relations between that State and each of the other parties to the treaty
from the date when such denunciation or withdrawal takes effect.
Article 71. CONSEQUENCES OF THE INVALIDITY OF A TREATY WHICH
CONFLICTS WITH A PEREMPTORY NORM OF GENERAL INTERNATIONAL LAW
1. In the case of a treaty which is void under article 53 the parties shall:
(a) Eliminate as far as possible the consequences of any act performed in reliance
on any provision which conflicts with the peremptory norm of general international
law; and
(b) Bring their mutual relations into conformity with the peremptory norm of
general international law.
2. In the case of a treaty which becomes void and terminates under article 64,
the termination of the treaty:
(a) Releases the parties from any obligation further to perform the treaty;
(b) Does not affect any right, obligation or legal situation of the parties created
through the execution of the treaty prior to its termination, provided that those
rights, obligations or situations may thereafter be maintained only to the extent
that their maintenance is not in itself in conflict with the new peremptory norm
of general international law.
Article 72. CoNSEQUE1'CES Of THE SUSPENSION
OF THE OPERATION OF A TREATY
1. Unless the treaty otherwise provides or the parties otherwise agree, the
suspension of the operation of a treaty under its provisions or in accordance with the
present Convention:
(a) Releases the parties between which the operation of the treaty is suspended
from the obligation to perform the treaty in their mutual relations during the
period of the suspension;
(b) Does not otherwise affect the legal relations between the parties established by
the treaty.
2. During the period of the suspension the parties shall refrain from acts tending
to obstruct the resumption of the operation of the treaty.
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PART v1. MISCELLANEOUS PROVISIONS
Article 73. CASES OF STATE SUCCESSION, STATE RESPONSlBlUTY
AND OUTBREAK OF HOSTILITIES
1980
The provisions of the present Convention shall not prejudge any question that
may arise in regard to a treaty from a succession of States or from the international
responsibility of a State or from the outbreak of hostilities between States.
Article 74. DIPLOMATIC AND CONSULAR RELATIONS
AND THE CONCLUSION OF TREATIES
The severance or absence of diplomatic or consular relations between two or
more States does not prevent the conclusion of treaties between those States. The
conclusion of a treaty does not in itself affect the situation in regard to diplomatic or
consular relations.
Article 75. CASE OF AN AGGRESSOR STATE
The provisions of the present Convention are without prejudice to any obligation
in relation to a treaty which may arise for an aggressor State in consequence of
measures taken in conformity with the Charter of the United Nations with reference
to that State's aggression.
PART vu. DEPOSITARIES, NOTIFICATIONS, CORRECTIONS
AND REGISTRATION
Article 76. DEPOSITARlES OF TREATIES
1. The designation of the depositary of a treaty may be made by the
negotiating States, either in the treaty itself or in some other manner. The depositary
may be one or more States, an international organization or the chief administrative
officer of the organization.
2. The functions of the depositary of a treaty are international in character
and the depositary is under an obligation to act impartially in their performance. In
particular, the fact that a treaty has not entered into force between certain of the parties
or that a difference has appeared between a State and a depositary with regard to
the performance of the latter's functions shall not affect that obligation.
Article 77. FUNCTIONS OF DEPOSITARlES
1. The functions of a depositary, unless otherwise provided in the treaty or
agreed by the contracting States, comprise in particular:
(a) Keeping custody of the original text of the treaty and of any full powers
delivered to the depositary;
(b) Preparing certified copies of the original text and preparing any further text of
the treaty in such additional languages as may be required by the treaty and
transmitting them to the parties and to the States entitled to become parties to
the treaty;
(c) Receiving any signatures to the treaty and receiving and keeping custody of any
instruments, notifications and communications relating to it;
(d) Examining whether the signature or any instrument, notification or communication
relating to the treaty is in due and proper form and, if need be,
bringing the matter to the attention of the State in question;
(e) Informing the parties and the States entitled to become parties to the treaty of
acts, notifications and communications relating to the treaty;
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(I) Informing the States entitled to become parties to the treaty when the number
of signatures or of instruments of ratification, acceptance, approval or accession
required for the entry into force of the treaty has been received or
deposited;
(g) Registering the treaty with the Secretariat of the United Nations;
(h) Performing the functions specified in other provisions of the present Convention.
2. In the event of any difference appearing between a State and the depositary
as to the performance of the latter's functions, the depositary shall bring the question
to the attention of the signatory States and the contracting States or, where appropriate,
of the competent organ of the international organization concerned.
Article 78. NOTIFICATIONS AND COMMUNICATIONS
Except as the treaty or the present Convention otherwise provide, any notification
or communication to be made by any State under the present Convention shall:
(a) If there is no depositary, be transmitted direct to the States for which it is intended,
or if there is a depositary, to the latter;
(b) Be considered as having been made by the State in question only upon its
receipt by the State to which it was transmitted or, as the case may be, upon its
receipt by the depositary;
(c) If transmitted to a depositary, be considered as received by the State for which
it was intended only when the latter State has been informed by the depositary
in accordance with article 77, paragraph l(e).
Article 79. CORRECTION OF ERRORS IN TEXTS
OR IN CERTIFIED COPIES OF TREATIES
1. Where, after the authentication of the text of a treaty, the signatory States
and the contracting States are agreed that it contains an error, the error shall, unless
they decide upon some other means of correction, be corrected:
(a) By having the appropriate correction made in the text and causing the correction
to be initialled by duly authorized representatives;
(b) By executing or exchanging an instrument or instruments setting out the correction
which it has been agreed to make; or
(c) By executing a corrected text of the whole treaty by the same procedure as in
the case of the original text.
2. Where the treaty is one for which there is a depositary, the latter shall notify
the signatory States and the contracting States of the error and of the proposal to correct
it and shall specify an appropriate time-limit within which objection to the proposed
correction may be raised. If, on the expiry of the time-limit:
(a) No objection has been raised, the depositary shall make and initial the correction
in the text and shall execute a proces-verbal of the rectification of the text
and communicate a copy of it to the parties and to the States entitled to become
parties to the treaty;
(b) An objection has been raised, the depositary shall communicate the objection
to the signatory States and to the contracting States.
3. The rules in paragraphs 1 and 2 apply also where the text has been authenticated
in two or more languages and it appears that there is a lack of concordance
which the signatory States and the contracting States agree should be corrected.
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352 United Nations - Treaty Series • Nations Unies - Recueil des Traites 1980
4. The corrected text replaces the defective text ab initio, unless the signatory
States and the contracting States otherwise decide.
5. The correction of the text of a treaty that has been registered shall be
notified to the Secretariat of the United Nations.
6. Where an error is discovered in a certified copy of a treaty, the depositary
shall execute a proces-verbal specifying the rectification and communicate a copy of
it to the signatory States and to the contracting States.
Article 80. REGISTRATION AND PUBLICATION OF TREATIES
1. Treaties shall, after their entry into force, be transmitted to the Secretariat
of the United Nations for registration or filing and recording, as the case may be, and
for publication.
2. The designation of a depositary shall constitute authorization for it to perform
the acts specified in the preceding paragraph.
PART VIII. FINAL PROVISIONS
Article 81. SIGNATURE
The present Convention shall be open for signature by all States Members of the
United Nations or of any of the specialized agencies or of the International Atomic
Energy Agency or parties to the Statute of the International Court of Justice, and by
any other State invited by the General Assembly of the United Nations to become a
party to the Convention, as follows: until 30 November 1969, at the Federal Ministry
for Foreign Affairs of the Republic of Austria, and subsequently, until 30 April 1970,
at United Nations Headquarters, New York.
Article 82. RATIFICATION
The present Convention is subject to ratification. The instruments of ratification
shall be deposited with the Secretary-General of the United Nations.
Article 83. ACCESSION
The present Convention shall remain open for accession by any State belonging
to any of the categories mentioned in article 81. The instruments of accession shall be
deposited with the Secretary-General of the United Nations.
Article 84. ENTRY INTO FORCE
1. The present Convention shall enter into force on the thirtieth day following
the date of deposit of the thirty-fifth instrument of ratification or accession.
2. For each State ratifying or acceding to the Convention after the deposit of
the thirty-fifth instrument of ratification or accession, the Convention shall enter into
force on the thirtieth day after deposit by such State of its instrument of ratification
or accession.
Article 85. ALJTHENTIC TEXTS
The original of the present Convention, of which the Chinese, English, French,
Russian and Spanish texts are equally authentic, shall be deposited with the
Secretary-General of the United Nations.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, being duly authorized
thereto by their respective Governments, have signed the present Convention.
DoNE at Vienna, this twenty-third day of May, one thousand nine hundred and
sixty-nine.
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1980 United Nations - Treaty Series • Nations Unies - Recueil des Traites 353
ANNEX
1. A list of conciliators consisting of qualified jurists shall be drawn up and maintained
by the Secretary-General of the United Nations. To this end, every State which is a Member of
the United Nations or a party to the present Convention shall be invited to nominate two conciliators,
and the names of the persons so nominated shall constitute the list. The term of a conciliator,
including that of any conciliator nominated to fill a casual vacancy, shall be five years
and may be renewed. A conciliator whose term expires shall continue to fulfil any function for
which he shall have been chosen under the following paragraph.
2. When a request has been made to the Secretary-General under article 66, the
Secretary-General shall bring the dispute before a conciliation commission constituted as
follows:
The State or States constituting one of the parties to the dispute shall appoint:
(a) One conciliator of the nationality of that State or of one of those States, who may or
may not be chosen from the list referred to in paragraph 1; and
(b) One conciliator not of the nationality of that State or of any of those States, who shall be
chosen from the list.
The State or States constituting the other party to the dispute shall appoint two conciliators
in the same way. The four conciliators chosen by the parties shall be appointed within
sixty days following the date on which the Secretary-General receives the request.
The four conciliators shall, within sixty days following the date of the last of their own appointments,
appoint a fifth conciliator chosen from the list, who shall be chairman.
If the appointment of the chairman or of any of the other conciliators has not been made
within the period prescribed above for such appointment, it shall be made by the SecretaryGeneral
within sixty days following the expiry of that period. The appointment of the chairman
may be made by the Secretary-General either from the list or from the membership of the International
Law Commission. Any of the periods within which appointments must be made may
be extended by agreement between the parties to the dispute.
Any vacancy shall be filled in the manner prescribed for the initial appointment.
3. The Conciliation Commission shall decide its own procedure. The Commission, with
the consent of the parties to the dispute, may invite any party to the treaty to submit to it its
views orally or in writing. Decisions and recommendations of the Commission shall be made by
a majority vote of the five members.
4. The Commission may draw the attention of the parties to the dispute to any measures
which might facilitate an amicable settlement.
5. The Commission shall hear the parties, examine the claims and objections, and make
proposals to the parties with a view to reaching an amicable settlement of the dispute.
6. The Commission shall report within twelve months of its constitution. Its report shall
be deposited with the Secretary-General and transmitted to the parties to the dispute. The
report of the Commission, including any conclusions stated therein regarding the facts or questions
of law, shall not be binding upon the parties and it shall have no other character than that
of recommendations submitted for the consideration of the parties in order to facilitate an
amicable settlement of the dispute.
7. The Secretary-General shall provide the Commission with such assistance and facilities
as it may require. The expenses of the Commission shall be borne by the United Nations.
Vol.1155, l-18232
Annex 1
480 United Nations - Treaty Series • Nations Unies - Recueil des Traites
For Japan:
Pour le Japan :
El J.f. :
3a .Hnomno:
Par el Japan:
For Jordan:
Pour la Jordanie :
1!] .§_ :
3a Hopnamno:
Par Jordania:
For Kenya:
Pour le Kenya :
1r /l .:Il:
3a Kemuo:
Par Kenya:
For Kuwait:
Pour le Kowe'it :
=+4 ~H·:
3a KyBefiT:
Par Kuwait:
For Laos:
Pour le Laos :
-:t .fij_ :
3a Jlaoc:
Par Laos:
Vol. 1155, l-18232
1. S. BHOI
1980
Annex 1
1980 United Nations - Treaty Series • Nations Unies - Recueil des Traites 489
For Sierra Leone:
Pour le Sierra Leone :
'.t.µ1/J~ r*J:
3a Cbeppa-JleoHe:
Por Sierra Leona:
For Singapore:
Pour Singapour :
,l,r/Jo~:
3a C1rnranyp:
Por Singapur:
For Somalia:
Pour la Somalie :
it.EJ.£:
3a CoMrum:
Por Somalia:
For South Africa:
Pour l'Afrique du Sud :
if},1~:
3a IO)KHYJO A<bpm,y:
Por Sudafrica:
For Southern Yemen:
Pour le Yemen du Sud :
m -ttt r, =
3a IQ)KHblil: 11eMeH:
Por el Yemen Meridional:
Vol. IISS, 1-18232
Annex 2
Memorandum of Understanding between the Members of the African Union on Security,
Stability, Development and Cooperation in Durban, South Africa (July 2002), reprinted in
Africa, From Barriers to Bridges: Collection of Official Texts on African Borders
from 1963 to 2012 (2013)
From Barriers
to Bridges
Collection of Official Texts
on African Borders
from 1963 to 2012
Annex 2
2 | From Barriers to Bridges
This work is published under the sole responsibility of the Commission of
the African Union/Department of Peace and Security (African Union Border
Programme).
All rights reserved.
You can copy, download or print the contents of this book for your own use,
and you can include excerpts from this guidebook in your own documents,
presentations, blogs, websites and teaching materials, provided that suitable
acknowledgement of the source and copyright owner is given. All requests
for public and commercial use and translation rights should be submitted to
[email protected].
© Commission of the African Union, Department of Peace and Security,
Addis Ababa, May 2013
2nd edition, 2013
African Union Commission
P.O. Box 3243
Roosevelt Street
Addis Ababa, Ethiopia
Tel. +251 115 513 822
Fax +251 115 519 321
E-mail [email protected]
Design and typesetting Ira Olaleye, Eschborn
Printed by Colour Connection GmbH, Frankfurt
ISBN 978-99944-890-0-8
The African Union expresses its gratitude to the extensive support of the
Government of the Federal Republic of Germany as well as the Deutsche
Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH whose assis- tance has enabled the African Union Border Programme to record significant
results in all related activities. The document at hand serves as one piece
of evidence and successful outcome of the combined efforts of the African
Union Commission/Peace and Security Department and the German Development
Cooperation.
Annex 2
Collection of Official Texts on African Borders from 1963 to 2012 | 43
5 This Act, drawn up in four (4) original texts in the Arabic, English,
French and Portuguese languages, all four (4) being equally authentic,
shall be deposited with the Secretary-General of the OAU and,
after its entry into force, with the Chairman of the Commission who
shall transmit a certified true copy of the Act to the Government
of each signatory State. The Secretary-General of the OAU and the
Chairman of the Commission shall notify all signatory States of the
dates of the deposit of the instruments of ratification or accession
and shall upon entry into force of this Act register the same with the
Secretariat of the United Nations.
MEMORANDUM OF UNDERSTANDING ON
SECURITY, STABILITY, DEVELOPMENT AND COOPERATION
IN AFRICA,
DURBAN, SOUTH AFRICA, JULY 2002
PREAMBLE
We the Member States of the OAU/AU;
1 Recalling the objectives and principles of the Constitutive Act of the
African Union;
2 Conscious of the importance of the Conference on Security, Stability,
Development and Cooperation (CSSDCA) and New Partnership
for Africa’s Development (NEPAD), and the convergence and complementarity
of their objectives in the realisation of the goals of the
Constitutive Act of the African Union;
3 Emphasising the interdependence of security and stability on the
one hand and development and cooperation on the other;
4 Recalling the CSSDCA Solemn Declaration adopted by the 36th Ordinary
Session of the Assembly of Heads of State and Government in
Lomé Togo, in July 2000;
5 Affirming that in the exercise of our sovereign right to determine
our laws and regulations, we shall conform to our legal obligations
under the OAU Charter, the Treaty Establishing the African Economic
Community (AEC), the Cairo Declaration on the Establishment of a
Mechanism for Conflict Prevention, Management and Resolution
and the Constitutive Act of the African Union, having due regard to
implementing the CSSDCA Solemn Declaration;
6 Reaffirming our commitment to the maintenance of security and
stability on the continent;
ii
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44 | From Barriers to Bridges
7 Recognising that this commitment, which reflects the interests and
aspirations of African peoples, constitutes for each participating
State a present and future responsibility, heightened by experience
of the past;
8 Committed to give effect and expression, by all appropriate ways
and means to the duty of ensuring security and stability arising from
the generally recognised principles and rules of international law
and those obligations arising from treaties or other agreements, in
accordance with internationally accepted norms, to which we are
parties;
9 Resolved to subscribe to a set of core values and key commitments
to buttress the process of security and stability in Africa and reflecting
the common will to act, in the application of the principles set
out in the CSSDCA Solemn Declaration;
AGREE AS FOLLOWS:
I. CORE VALUES
To respect and abide by the following indivisible core values, all of primary
importance, in guiding our relations:
(a) Every African State is sovereign. Every State respects the rights
inherent in the territorial integrity and political independence
of all other African States, without prejudice to the provisions of
Article 4 of the AU Constitutive Act, sections (h) and (j) and other
relevant international instruments.
(b) The centrality of security as a multi-dimensional phenomenon
that goes beyond military considerations and embraces all
aspects of human existence, including economic, political and social
dimensions of individual, family, community and national life.
(c) Peace and security are central to the realisation of development
of both the state and individuals. Thus the security of the African
people, their land and property must be safeguarded to ensure
stability, development and cooperation of African countries.
(d) The security of each African country is inseparably linked to that
of other African countries and the African continent as a whole.
(e) The plight of African Refugees and Internally Displaced Persons
constitutes a scar on the conscience of African governments and
people.
(f) Africa’s strategic and natural resources are the property of the
people of Africa and the leadership should exploit them for the
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Collection of Official Texts on African Borders from 1963 to 2012 | 45
common good of the people of the continent, having due regard
for the need to restore, preserve and protect the environment.
(g) Uncontrolled spread of small arms and light weapons as well
as the problem of landmines constitutes a threat to peace and
security on the African continent.
(h) Good governance including, accountability, transparency, the
rule of law, elimination of corruption and unhindered exercise of
individual rights as enshrined in the African Charter on Human
and People’s Rights and those of the Universal Declaration of
Human Rights is a prerequisite for sustainable peace and security
in Africa as well as a necessary condition for economic development,
cooperation and integration.
(i) A fundamental link exists between stability, human security,
development and cooperation in a manner that each reinforces
the other.
(j) Sustainable Stability in Africa demands the establishment and
strengthening of democratic structures and good governance
based on common tenets.
(k) The rejection of unconstitutional changes of government in any
African country as a threat to order and stability in the African
continent as a whole.
(l) Respect and promotion of human rights, the rule of law and equitable
social order as the foundation for national and continental
stability.
(m) The eradication of corruption, which undermines Africa’s quest
for socio-economic development and the achievement of sustainable
stability on the continent.
(n) No political organisation should be created on the basis of religious,
sectarian, ethnic, regional or racial considerations. Political
life should be devoid of any extremism.
(o) The conduct of electoral processes in a transparent and credible
manner and a concomitant obligation by the parties and candidates
to abide by the outcome of such processes in order to
enhance national and continental stability.
(p) Development is about expanding human freedoms. The effort of
Member States at achieving development is aimed at the maximum
expansion of the freedoms that people enjoy.
(q) The freedoms that Africans seek and deserve, inter alia, include
freedom from hunger, freedom from disease, freedom from
ignorance and access to the basic necessities for enhancing the
quality of life. These freedoms can best be achieved through
expansion of the economic space including the rapid creation of
wealth.
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46 | From Barriers to Bridges
(r) Economic development is a combined result of individual action.
Africans must be free to work and use their creative energies to
improve their well-being in their own countries. The state’s involvement
in the activities of individual economic actors should
be supportive of individual initiatives.
(s) Acknowledgement of the important role of the State in economic
development not only in providing regulatory frameworks but
also through active cooperation with private sector, and civil
society, including business associations and organisations as
partners of development to promote economic growth, social
and economic justice.
(t) All priorities in economic policy-making shall be geared towards
eliminating poverty from the continent and generating rapid and
sustainable development in the shortest possible time.
(u) Cooperation and integration in Africa is key to the continent’s
socio-economic transformation and effective integration into the
world economy.
(v) Harmonisation and strengthening of the Regional Economic
Communities (RECs) in key areas as an essential component of
the integration process, through the transfer of certain responsibilities
as well as effective reporting and communication structure
involving the RECs in continental initiatives.
(w) Strong political commitment including the involvement of all
stakeholders, the private sector, civil society, women and youth
as a fundamental principle for the achievement of regional economic
integration and development.
(x) Investment in Science and Technology as a fundamental input
into the development of all sectors and raising living standards.
II. COMMITMENTS TO GIVE EFFECT TO THE CORE VALUES
To give effect to the above core values, we undertake to:
(a) Develop a collective continental architecture for promoting
security and inter-African relations that goes beyond the traditional
military definition and embraces imperatives pertaining
to human security, principles relating to good governance, the
promotion of democracy and respect for human rights and the
legitimate rights of leaders after they vacate office.
(b) Promote a policy of good neighbourliness as a foundation for
enhancing inter-state relations.
(c) Recommit to the adoption of a comprehensive response for
Annex 2
Collection of Official Texts on African Borders from 1963 to 2012 | 47
the prevention and resolution of conflict, with emphasis on the
prevention and containment of conflicts before they erupt into
violent confrontation and the creation of an African capacity for
regional peace-support operations as a measure for conflict resolution.
Commit ourselves, within this framework, to operationalise
the code of conduct on Inter-African relations adopted by
the 30th Ordinary Session of the Summit of Heads of State and
Government in Tunis in June 1994.
(d) Strengthen, consolidate and sustain regional and continental
conflict management mechanisms, with primary emphasis on
the AU Mechanism for Conflict Prevention, Management and
Resolution and its early warning system.
(e) Establish a strong cooperation framework for security between
the Regional Economic Communities (RECs), the AU and the
United Nations (UN).
(f) Undertake to address border problems that continue to threaten
the prospects of peace and security in Africa by ensuring the
delimitation and demarcation of the borders of Member States
in a peaceful manner.
(g) Create and strengthen disaster management mechanisms at
national, regional and continental levels.
(h) Implement the OAU Convention on the Prevention and Combating
of Terrorism adopted in Algiers in 1999.
(i) Develop additional protocols, as appropriate, as well as an Action
Plan to combat the occurrence and spread of terrorism in all its
forms and manifestations.
(j) Develop policies to combat the illicit proliferation, trafficking and
circulation of small arms and light weapons in Africa.
(k) Take appropriate measures for the implementation of relevant
treaties on landmines, including the Ottawa Treaty on anti-personnel
mines and the Kempton Park Plan of Action, as well as develop
policies pertaining to the prohibition of landmines in Africa
and strengthen the African capacity for landmine clearance.
(l) Implement policies and agreements designed to eliminate
Mercenarism in Africa and other forms of interventions in the
internal affairs of African states including the illegal exploitation
of the continent’s natural resources, which contributes to the
escalation of conflicts on the continent.
(m) Strengthen the mechanisms for the protection of refugees as
provided for in the 1969 OAU Convention Governing the Specific
Aspects of Refugee Problems in Africa through the full implementation
of the Comprehensive Implementation Plan drawn
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48 | From Barriers to Bridges
up in Conakry and adopted by the Council of Ministers in Lomé,
Togo, in July 2000, with the support and cooperation of the UN
and other international agencies.
(n) Develop national, regional and continental strategies to eradicate
criminal organisations and syndicates operating in Africa and
establish joint cross-border operations to investigate and apprehend
criminal elements and stop money laundering, drug and
human trafficking.
(o) Adhere to the fundamental tenets of a plural democratic society
as contained in the 1990 Declaration on the Political and SocioEconomic
Situation in Africa and the Fundamental Changes
Taking Place In the World, the 1995 Cairo Agenda for Action,
the 1999 Grand Bay (Mauritius) Declaration and Plan of Action
on Human Rights in Africa, the Lomé Declaration on Unconstitutional
Changes and the CSSDCA Solemn Declaration of 2000,
amongst others. These should include: promulgated constitution
with a Bill of Rights’ provision; free and fair elections at
constitutionally stipulated intervals; multiparty political systems;
separation of powers; an independent judiciary; a free press and
freedom of expression and assembly; effective military subordination
to civilian authority, and accountability and popular
participation in governance.
(p) Uphold the principle of constitutionalism so that the political
class and civil society at all levels, commit themselves to abiding
by and respecting the provisions of the constitutions of their
states.
(q) Ensure independence of the judiciary, particularly through an effective
separation of powers, constitutionally guaranteed tenure
of office and adequate funding.
(r) Accept the necessity for significant improvement in the African
electoral process including the establishment of truly independent
national electoral Commissions and other appropriate
mechanisms to ensure transparency, fairness, and credibility of
elections.
(s) Observance, protection and promotion of the human rights of all
Africans in accordance with the provisions of the African Charter
on Human and Peoples Rights, and the Grand Bay (Mauritius)
Declaration and Plan of Action on Human Rights in Africa including
the speedy establishment of the African Court on Human and
People’s Rights by signing and/or ratification and respect of this
legal instrument as well as of all international instruments on
human rights.
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Collection of Official Texts on African Borders from 1963 to 2012 | 49
(t) Strengthen, improve and practice good governance in public and
private domains in Africa to ensure adherence to the rule of law;
strict accountability by all and transparency in public affairs as
called for in the 1995 Cairo Agenda for Action, and other decisions
of the Assembly of Heads of State and Government.
(u) Create conditions for economic stability devoid of economic
mismanagement with focus on human security and poverty
eradication as called for in the 1995 Cairo Agenda for Action and
the Treaty Establishing the African Economic Community (Abuja
Treaty).
(v) Encourage and provide enabling conditions for popular participation
by all African people in the governance and development of
their countries as a basis of a people’s empowerment to direct
their socio-economic transformation.
(w) Provide appropriate conditions for effective participation at
national and continental levels by civil society organisations, in
particular women’s groups, trade unions, the youth and professional
associations as envisaged in the Constitutive Act of the
African Union.
(x) Develop institutional and administrative capacity for dealing effectively
with corruption and criminality, both of which threaten
the stability of Africa.
(y) Establish an impartial, efficient, transparent and accountable civil
service.
(z) Provide Central Banks with the necessary autonomy to enable
them to perform their roles effectively as vital structures for
economic stability.
(aa) Develop a shared vision on development, regional cooperation
and integration.
(bb) Pursue accelerated development of our countries as the centre
of national policies.
(cc) Promote sustainable economic growth and development through
the diversification of the production structure of our economies.
(dd) Create a conducive environment to encourage domestic savings,
reverse capital flight and attract foreign savings.
(ee) Ensure popular participation, equal opportunity and equitable
access to resources for all our people as the basis of our development
objectives and strategies.
(ff) Promote partnership, trust and transparency between leaders
and citizens as critical elements of sustainable development,
based on mutual responsibilities and a shared vision, and in particular,
establish a conducive environment for the private sector
to generate wealth.
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50 | From Barriers to Bridges
(gg) Aim at a shared economic growth that provides opportunities
to the poor and the disadvantaged groups in society, such as
women, the youth and disabled.
(hh) Work out and implement the follow-up and evaluation of reproductive
health policies and programmes in order to guarantee a
better balance between population and economic growth.
(ii) (ii) Develop and adhere to a code of conduct on good governance
aimed at establishing democratic developmental oriented
states across the continent in order to foster cooperation and
integration.
(jj) Invest in human resource development, particularly in the quality
of education, and promote cooperation between African
centres of excellence and Research and Development institutions
as well as reverse the brain drain.
(kk) Promote and protect the rights and welfare of the African child.
(ll) Provide political support for regional integration by making appropriate
institutional arrangements, including legislative measures,
process and awareness creation to support integration.
(mm) Provide adequate financial support for regional integration and
cooperation by incorporating in our annual national budgets,
Member States’ contribution to RECs and AU, and/or putting in
place a self-financing mechanism to ensure their efficient functioning.
(nn) Involve all national stakeholders in the regional integration process
including giving them an appropriate role.
(oo) Develop inter-African communications and transport to ensure
economic growth, integration and trade amongst African countries.
(pp) Develop and adhere to a common industrial strategy that takes
into account the need for a fair distribution of industries within
the RECs.
(qq) Put in place mechanisms for countries that are in a position to do
so, to provide additional support to African LDCs in their developmental
efforts.
(rr) Consolidate the links between South-South and North-South
technical cooperation through triangular models, within the
spirit of enhancing collective self-reliance in Africa.
(ss) Pursue continental solidarity in all international negotiations
including those on market access, debt relief, FDI, ODA, as well
as the setting up of the World Solidarity Fund.
(tt) Promote rural development through a public financing mechanism
and public private partnerships.
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Collection of Official Texts on African Borders from 1963 to 2012 | 51
III. KEY PERFORMANCE INDICATORS
We also agree to adopt the following key performance indicators to
evaluate compliance with the commitments we have undertaken in the
present Memorandum of Understanding:
A. SECURITY
1) Common definition of security
Establish by 2005 a framework for codifying into national laws and
legislations the concept of human security as contained in the CSSDCA
Solemn Declaration, in order to build confidence and collaborative
security regimes at national, regional and continental levels.
2) Non-aggression pacts
Conclude and ratify bilateral and regional non-aggression pacts (where
they do not yet exist) by 2006 on the basis of commonly agreed guidelines.
3) Africa’s common defence policy
Define by 2005, in accordance with Article 4 (d) of the Constitutive
Act of the African Union, Africa’s common defence policy in order to
strengthen Africa’s capacity for dealing with conflicts including dealing
with external aggression.
4) Strengthening Africa’s capacity for peace-support operations
Establish by 2003, the modalities or mechanisms for implementing the
provisions of Article 4(h) and (j) of the Constitutive Act of the African
Union, with emphasis on the enhancement of the capacity of the Peace
and Security Council to deal with issues relating to peace-support operations,
including standby arrangements that were recommended by
African Chiefs of Defence Staff.
5) National and regional crime reduction and
prevention programmes
Establish by 2005 and strengthen, in places where they already exist,
national and regional crime reduction and prevention programmes to
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52 | From Barriers to Bridges
deal effectively with the scourge of criminality in Africa. Such programmes
should, through the harmonisation of criminal and penal
codes and effective information sharing system, promote, strengthen
and foster joint strategies for the management and control of all forms
of crimes within the region. The programme should incorporate a
mechanism for annual performance assessment. By 2005, establish
effective monitoring of crime statistics by policing agencies in each
country.
6) Small arms and light weapons
Take appropriate measures for the effective implementation of the
Bamako Declaration on an African Common Position on the illicit Proliferation,
Circulation and Trafficking of Small Arms and Light Weapons
and the UN Programme of Action to prevent, combat and eradicate the
illicit trade in small arms and light weapons in all its aspects. In particular,
Member States must take the following steps by 2003:
` Establish, where they do not exist, national and regional coordination
agencies or frameworks and institutional infrastructure for policy
guidance, research and monitoring.
` Adopt the necessary legislative and other measures to establish as
criminal offences, the illicit manufacture, possession and trade in
small arms and light weapons.
` Adopt appropriate national legislations or regulations to prevent the
breaching of arms embargo as decided by the UN Security Council.
Establish at national, regional and continental levels, a framework for
regular dialogue with arms manufacturers and suppliers with a view to
checking illicit supply of Small Arms and Light weapons.
Convene, by 2004, the Second Ministerial Conference on the Illicit Proliferation,
Circulation and Trafficking of Small Arms and Light Weapons
to review the status of implementation of the Bamako Declaration, the
UN Program of Action and the status of implementation of relevant
treaties on landmines, including the Ottawa Treaty on anti-personnel
mines and the Kempton Park Plan of Action. Heads of RECs should also
provide status reports on the implementation of their regional programmes.
7) National institutions for prevention and management of conflicts
Establish by 2004, national institutions or mechanisms for prevention,
management and resolution of conflicts at community and national
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levels with active involvement of Civil Society Organisations (CSOs)
and Community Based Organisations (CBOs). It should include indigenous
conflict resolution mechanisms, Emergency Relief Assistance
and confidence building measures between ethnic, racial and national
groups. Such institutions could be national focal points for regional and
continental early warning.
8) Early Warning System
Operationalise by 2005, requisite infrastructure and capacity for effective
Early Warning System to deal with conflicts in Africa. This should
be based on a model of indicators that provides a Vulnerability Index
of African countries, which would serve as an objective basis for early
warning action. That mechanism should incorporate effective interlinkages
and coordination at regional, continental, and international levels.
As part of this process, Member States undertake to facilitate early
response aimed at the prevention of conflicts.
9) Resource-based conflicts
Given the links between illegal exploitation of resources and conflicts,
the Peace and Security Council should develop by 2005, a framework
for addressing the problem of illegal exploitation of resources in Africa
and combating, in a concerted manner, all networks plundering the
resources of Africa and using them to fuel conflicts.
10) African borders
In conformity with the Cairo Summit Decision on borders, conclude by
2012, with the assistance of the UN cartographic unit where required,
the delineation and demarcation of borders between African states,
where it has not been done, to strengthen peaceful inter-state relations.
The outcome of such exercises should be deposited with the
African Union and the United Nations. Prior to 2012 when the process
should be completed, there should be bi-annual review of the state of
implementation.
11) Refugees
By 2003, all OAU/AU Member States that have not done so, should
ratify or accede to the 1969 OAU Convention on Refugees and take appropriate
measures to adopt the necessary national legislations and/or
administrative measures to give full effect to its provisions.
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By 2005, the OAU/AU should complete the review of the legal scope
of the 1969 Convention to adapt it to current circumstances and to
strengthen the implementation of the Comprehensive Implementation
Plan adopted in Conakry 2000. In particular, the supervisory mechanism
and oversight functions of the OAU/AU should be strengthened to ensure
that Member States provide the Secretariat with information and
statistics concerning the condition of refugees, the protection of their
human rights and mechanisms for mitigating the situation of refugees,
separating armed elements from the refugee population and devising
measures to compel rebel groups to respect the rights of refugees,
returnees and displaced persons in territories under their control.
12) Confidence building measures
Strengthen as soon as possible, existing confidence building measures
through, among other means, annual border post activities, joint border
patrols, joint border development and management, regular consultations
amongst security agencies operating along the borders, joint
training programmes for personnel operating at the borders, including
workshops and seminars to educate them on regional and continental
agreements on free movement of persons, goods and services and stabilising
measures for localised crisis situations for inter-state relations.
13) Terrorism
All Member States to sign and ratify the OAU Convention on the Prevention
and Combating of Terrorism of 1999 so that it can enter into
force by the end of 2002 and fully implement the obligations entered
into therein by 2004.
To facilitate a comprehensive response to the problem of terrorism
in Africa, consider by 2003, an Action Plan and a Protocol which will
provide for, among other things, national, regional and continental
strategies to eradicate criminal organisations and syndicates operating
in Africa, effective monitoring of the movement of persons and goods
across borders by utilising crime analysis and information gathering
capability and establishment of joint border operations to investigate
and apprehend criminal elements and to stop money laundering, drug
and human trafficking.
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B. STABILITY
14) Tenets of democratic society
By 2004 adopt, and in some cases recommit, to the fundamental tenets
of a democratic society as stipulated in the CSSDCA Solemn Declaration
as an African common position, namely, a Constitution and a Bill of
Rights provision, where applicable, free and fair elections, an independent
judiciary, freedom of expression and subordination of the military
to legitimate civilian authority; rejection of unconstitutional changes of
government; and implement these principles by 2005, where they are
not already applicable.
15) Democratisation and good governance
Elaborate by 2004 principles of good governance based on sound
management of public finances and commonly agreed set of indicators
to be included in national legislations, including decentralisation of
administration and effective, transparent control of state expenditure.
By 2003, all African countries should enact legislation to provide for the
impartiality of public services, the independence of the judiciary and
the necessary autonomy of public institutions such as the Central bank
and the office of the Auditor-general.
16) Limitation to the tenure of political office holders
Adopt by 2005 a commonly derived Code of Conduct for Political Office
Holders that stipulates, among others, an inviolate constitutional limitation
on the tenure of elected political office holders based on nationally
stipulated periodic renewal of mandates and governments should
scrupulously abide by it.
17) Anti-corruption Commission
Adoption, signing and ratification of an OAU Convention on Combating
Corruption. Establish by 2004 in each African country (where it is not
presently in existence) an independent anti-corruption Commission,
with an independent budget that must annually report to the national
parliament on the state of corruption in that country.
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18) Independent national electoral commissions
Establish by 2003 where they do not exist, independent national
electoral commissions and/or other appropriate mechanisms and
institutions to ensure free, fair, and transparent elections in all African
countries.
19) Election observation
Adopt and standardise by 2003, guidelines for independent and effective
observations of elections in AU Member States, with the provision
of an effective electoral unit within the AU Commission. The guidelines
must include provisions for strengthening civil society and local
monitoring groups in individual African countries and the continent as a
whole to support the process of ensuring free and fair elections.
The Commission should be gradually equipped and funded to conduct
independent election observation by 2003. The reports of the various
election observation teams of the AU should be made public.
20) Campaign finance reforms
Conclude by 2004 legal mechanisms for the institution of campaign finance
reform including disclosure of campaign funding sources and for
proportionate state funding of all political parties, to ensure transparency,
equity and accountability in electoral contests.
21) Inclusive systems of governance
Conclude by 2004 appropriate arrangements, including electoral reforms,
for the institution of more inclusive systems of government.
22) Popular participation
Implement the provisions of the Charter for Popular Participation for
development and transformation in Africa, adopted by the Assembly
of Heads of State and Government in 1990 by creating more enabling
conditions for increased participation of women, the youth and civil
society organisations.
23) Political parties
Adopt by 2004, where it does not exist, enabling legislations on the
formation and operation of political parties to ensure that such parties
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are not formed and operated on the basis of ethnic, religious, sectarian,
regional or racial extremism and establish a threshold of voter support
as criteria for public funding, without compromising freedom of association
and the principle of multi-party democracy.
24) Rights of the child
By 2003, all Member States should sign and ratify the African Charter
on the Rights and Welfare of the Child and by 2005, fully implement the
obligations entered into therein.
By 2003, all Member States to ratify the UN Optional Protocol to the
Convention on the Rights of the Child on the involvement of Children in
Armed Conflict, the Protocol on the Trafficking and Sexual Exploitation
of Children and all other instruments related to the Rights of the Child
and implement the Protocols by 2005, including effective plans of action,
in regions where they do not exist, for the demobilisation of child
soldiers.
25) Enact key elements of Bill of Rights
By 2004, pending inclusion of a Bill of Rights, including the embedded
obligations of citizens, where applicable, in every constitution in Africa,
all Member States should incorporate into national codes or laws,
where it does not exist, provisions of habeas mandamus and habeas
corpus to protect every citizen of Africa from arbitrary arrest or detention
without trial and other forms of cruel and degrading treatment and
put in place mechanisms for the monitoring and effective implementation
of these codes.
26) Observance, protection and promotion of human rights
By 2003, all African countries that have not done so, should ratify the
Protocol to the African Charter on Human and People’s Rights establishing
the African Court on Human and People’s Rights, as well as all other
relevant international instruments for the protection and promotion of
human rights; and vigorously proceed with the implementation of such
requirements including all provisions of the Charter on Peoples and
Human Rights and the Grand Bay Declaration and Plan of Action on Human
Rights in Africa, including the provision of required resources for
the work of these bodies.
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By 2004, all African countries should submit annual reports on the status
of human and peoples’ rights within their countries to the African
Commission of Human and Peoples Rights. The African Commission on
Human and Peoples’ Rights should be provided with adequate resources
to enable it to produce comprehensive, independent and publicly
available annual surveys by 2006.
27) Status of women
By 2005, take measures to promote equality of women, and ensure the
representation of women in all national, regional and continental institutions,
as well as the elimination of all laws that discriminate against
women in African countries. They should also adopt, sign and ratify
the Protocol to the African Charter relating to the Rights of Women in
Africa as well as other instruments and mechanisms to guarantee and
preserve the rights of women.
By 2005, all Member States to sign, ratify and accede to the UN Optional
Protocol to the Convention on the Elimination of all forms of
Discrimination against Women (CEDAW).
28) The criminal justice system
Set up by 2005 in every African country an independent Commission to
determine measures for improving critical aspects of correction, reform
and parole in the Criminal justice system, with particular emphasis on
improving prison conditions in Africa, setting up, where they do not
exist, Parole Boards, increasing the focus on rehabilitation and finding
alternatives to incarceration particularly among juvenile offenders, and
placing more emphasis on restorative justice.
C. DEVELOPMENT
29) Economic growth and development
Increase the rate of growth of the economies of Africa by an average
annual growth rate of 7 %, which is the minimum needed to reduce
poverty as stipulated in the International Development Goals and reaffirmed
in NEPAD and in previous agreements and commitments.
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30) Savings and investments
Increase the savings and investment ratio to the level needed to
achieve the 7 % growth rate mentioned above.
31) Capital flight
Reduce levels of capital flight by half by 2008 through appropriate
policy measures, with a view to eliminating it by 2015.
32) Foreign direct investment
Increase Africa’s share of Foreign Direct Investment (FDI) inflows from
the current 1 % of total global FDI, to a minimum of 2 % in 5 years and
increase by 2 % every year until it reaches 10 % of total global FDI flows.
33) Infrastructure
Increase investment in physical infrastructure, (transport and telecommunications)
as a ratio to GDP to the level that obtains in middleincome
countries and social infrastructure to about 10 % of GDP by the
year 2020 and the development and interconnection of intra-African
transport and communication networks and services.
34) Common standards
Development of a common system of standards and specifications to
help foster intra-African exchange of goods and services.
35) Industrialisation
Increase value added in manufacturing in the Continent from the
current 17 % to 25 % by the year 2010. For countries that have not
achieved the average African level, to double the level of manufacturing
every 10 years until it reaches the average for African countries.
36) Intra-African trade
Increase share of intra-African trade to 20 % of the total trade of Member
States by 2005 in accordance with various resolutions of OAU and
RECs.
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37) Trade
Increase Africa’s share of world trade from its current 2 % level to 4 %
by 2010, as well as diversified Africa’s exports to reflect this change in
the structure of production.
38) Agricultural productivity
Increase agricultural productivity at a rate twice that of population
growth.
39) Poverty alleviation and equitable income distribution
In line with the International Development Goals, and as recognised in
the NEPAD, attain the goal of reducing the proportion of people living in
extreme poverty by half by the year 2015.
D. COOPERATION
40) Customs Union and common market
Establish a firm and binding commitment by all Member States for all
the RECs to attain full Customs Union status by 2005, and full Common
Market status by 2010, in line with AU integration objectives and the
call by the CSSDCA Solemn Declaration to work towards a shortened
timetable for the full realisation of the African Economic Community.
41) Policy harmonisation and market integration
Harmonise macro-economic policies including comprehensive convergence
criteria and sectoral policy coordination to be completed by 2005
in all RECs, in order to achieve the goal of 7 % GDP growth rate annually
as called for in the NEPAD – within the context of integration arrangement.
42) Investment code
Conclusion and adoption by 2005 of a single investment code in each
REC to provide a common enabling environment, in conformity with the
projected Customs Union.
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43) Physical integration and infrastructure
Adoption by 2005, in regions where they do not exist, of binding Agreements
and protocols on all the major physical integration projects that
have been identified, including priority access for landlocked countries
and the participation of all countries in projects such as the Regional
African Satellite Communicating System (RASCOM) being one of the
vital African projects prior to the planned launching of RASCOM by
the last quarter of 2002. Similarly the implementation by 2005 of the
Yamoussoukro Declaration concerning the Liberalisation of Air Transport
Markets in Africa.
44) Industrial policy
Binding agreement reached by 2005 on common industrial policy
within RECs.
45) Common natural resources
Early take off of the African Energy Commission (AFREC) to assure the
completion of the energy development plans by 2003 bearing in mind
the NEPAD target of 35 % access to reliable and affordable commercial
energy supply for the African population in 20 years; and encouragement
of all RECs to conclude plans, binding agreements and protocols
by 2003 for the development of other projects on the utilisation of
common natural resources. In this connection, immediate steps should
be taken to mobilise African entrepreneurs to establish multinational
companies for the execution of large scale projects in Africa.
46) Rationalisation of RECS
Complete by 2005, the harmonisation and rationalisation of all RECs, in
order to facilitate convergence into the African Union.
47) Intra-RECs cooperation
Strengthened framework and programme for deepening horizontal
interactions among RECs starting 2002 in fulfilment of the Protocol on
relations between the AEC and the RECs, and, in line with the Lusaka
Summit decision on the establishment of the AU.
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48) Cooperation in health matters
Strengthened cooperation in health matters, including the adoption
of a Health Protocol in all RECs by 2003 and implementation of the
binding commitment on allocating 15 % of our national budget to the
improvement of the health sector as agreed to in the Abuja Summit
Declaration on HIV/AIDS, Tuberculosis and other related Infectious
Diseases.
49) Harmonisation and coordination of education policies
Attainment of set targets in the Plan of Action on the Decade of Education
as adopted by the Summit of OAU Heads of State and Government
in 1999, particularly universal basic education by 2015.
50) Information and Communication Technology (ICT)
Adoption of policy regulatory ICT frameworks that are transparent,
predictable, and ensure fair competition and open markets by 2005.
Improvement of access for households and firms, with a short-term objective
to double teledensity to two lines per 100 people by 2005, with
an adequate level of access for households. Simultaneously, lowering of
the cost and improvement of reliability of service, and achievement of
e-readiness for all countries of Africa.
IV. FRAMEWORK OF IMPLEMENTATION
We further agree to the following framework of implementation as a
means of carrying out the commitments contained in this Memorandum
of Understanding:
1 To incorporate CSSDCA principles and guidelines in our national institutions
that would have responsibility for helping in the monitoring
of the CSSDCA activities as prescribed in the Solemn Declaration
on the CSSDCA. To this end we shall initiate, appropriate actions,
including legislative, executive or administrative actions to bring
national laws or regulations in conformity with CSSDCA.
2 To take all necessary measures in accordance with the constitutional
procedures, in each of our Member States, to ensure the dissemination
of such legislation as may be necessary for the implementation
of the fundamental objectives.
3 To designate focal points within our existing national institutions
(states, civil society, the private sectors, etc.) for CSSDCA proAnnex
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grammes. The focal point shall be responsible for coordinating and
monitoring all activities relating to the CSSDCA. In addition, the
focal point shall undertake, on annual basis, monitoring of the country’s
compliance with the CSSDCA process.
4 To also establish within our existing national institutions a national
coordinating committee, consisting of all stakeholders dealing with
the various calabashes of the CSSDCA framework, to develop and
coordinate the overall strategies and policies towards the four calabashes
of the CSSDCA.
5 To create favourable conditions for the development of the African
continent, in particular by harmonising our national strategies and
policies and refrain from any unilateral action that may hinder the
attainment of the general and specific principles of the CSSDCA
as contained in the Solemn Declaration and undertakings derived
thereof.
6 To provide, within all the RECs, appropriate institutional framework
for the implementation of the CSSDCA Solemn Declaration and the
Memorandum of Understanding on Security, Stability, Development
and Cooperation.
7 To use the monitoring process of the CSSDCA to establish best current
knowledge and practices that would strengthen democratic
practices, the protection of human rights and the promotion of
good governance in the continent.
8 To strengthen and enlarge the CSSDCA Unit, including endowing it
with adequate human resources and funds, as well as an enhanced
technical analytic capacity to take initiatives within the structure
of the envisaged Commission of the African Union and to enable it
perform its tasks efficiently and effectively, particularly in respect of
coordination and harmonisation of policies of Member States.
9 To ensure that the CSSDCA Process forms part and parcel of the
work programme of the Commission of the African Union.
10 To consolidate and strengthen political will among Member States
as a necessary and sufficient condition for the attainment of the
goals set forth by Member States in the CSSDCA process.
V. MONITORING PERFORMANCE
We finally agree to the following mechanisms for measuring performance:
1 To convene, in accordance with the Solemn Declaration on the
CSSDCA, a Standing CSSDCA Conference at Summit level every two
years during ordinary sessions of Summit, review meetings of pleniAnnex
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64 | From Barriers to Bridges
potentiaries and senior officials in between sessions of the Standing
Conference.
2 The commitments entered into by Member States for the Security
and Stability Calabashes shall form part of these reviews. These
commitments will serve as agreed benchmark criteria and indices,
with key performance indicators as instruments for measurement of
compliance in monitoring progress towards agreed goals.
3 In preparing for those reviews, the national mechanisms for
monitoring the core values and commitments of the Security and
Stability Calabashes shall work closely with the CSSDCA Unit, which
will elaborate a comprehensive work programme and time schedule
for its activities including, administrative arrangements for overseeing
the monitoring process, with diagnostic tools and measurement
criteria for assessing performance, as well as deficiencies and capacity
restraints that impede them. All stakeholders in providing inputs
for the review process will use the diagnostic tools and measurement
criteria and highlight capacity restraints or gaps that should
be bridged to enable higher standards of performance along with
resources that should be mobilised to support this process. This process
of peer scrutiny will facilitate the development of best practices
and suggest ways in which they can be effectively transferred to
where they are not in operation.
4 The national mechanisms for evaluation will, according to predetermined
criteria, produce country reports. These inputs shall be
obtained from specialised agencies, the private sector, civil society
organisations, and parliamentarians as part of a general process of
evaluation. The different inputs will be cross-referenced to provide a
clear and accurate representation.
5 Regional Economic Communities shall also play a role in these
reviews. The Executive Heads of Regional Economic Communities
should thus be invited to the Review Meetings of plenipotentiaries
and senior officials.
6 In carrying out the tasks of monitoring performance, the Coordinating
Unit of the CSSDCA in the OAU/AU shall coordinate closely with
the national and regional focal points. It shall seek the cooperation
of regional and international bodies in the context of the relevant
Calabashes on Security, Stability, Development and Cooperation, as
well as support and assistance from other relevant international organisations
or institutions and other cooperation agencies especially
the ECA, ADB, UNDP, IMF, IOM and IBRD to promote the realisation
of the objectives of the CSSDCA process.
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7 The CSSDCA Process will also be supported by visitation panels
composed of eminent, reputable Africans to carry out professional,
independent and objective on spot assessments in two-year circles
as part of the preparation for the bi-annual Standing Conferences of
the CSSDCA. Such visitation panels will raise the visibility and credibility
of the process and augment the permanent and continuous
monitoring process.
We express our determination to respect and apply fully the undertakings,
as set forth in the present Memorandum of Understanding in all
aspects, in our mutual relations and cooperation, in order to assure
each of our Member States the benefits resulting from the respect and
application of these undertakings by all.
We are convinced that respect for these undertakings will encourage
the development of normal and friendly relations and the progress of
cooperation among our countries and peoples. We are also convinced
that respect for the core values and commitments contained in this
Memorandum of Understanding will encourage the development of
contacts among our countries, which, in time, would contribute to better
mutual understanding of our commitments. We commit ourselves
to respect and implement all the above undertakings in conformity with
Articles 9 (e) and 23 (2) of the Constitutive Act of the African Union.
FIRST DECLARATION ON THE AFRICAN UNION
BORDER PROGRAMME AND ITS IMPLEMENTATION
MODALITIES AS ADOPTED BY THE
CONFERENCE OF AFRICAN MINISTERS IN
CHARGE OF BORDER ISSUES, ADDIS ABABA,
ETHIOPIA, 4 to 7 JUNE 2007, EX.CL/352(XI)
PREAMBLE
1 We, the Ministers in Charge of Border Issues in the Member States
of the African Union, meeting in Addis Ababa, Ethiopia, on 7 June
2007 to deliberate on the African Union Border Programme and its
implementation modalities:
(a) Inspired by the conviction that the achievement of greater unity
and solidarity among African countries and peoples require the
reduction of the burden of borders separating African States;
(b) Convinced that, by transcending the borders as barriers and
promoting them as bridges linking one State to another, Africa
iii
Annex 2
Annex 3
Transitional Federal Government of Somalia, The Transitional Federal Charter of the Somali
Republic (Feb. 2004)
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Somalia: Somali Transitional Charter.
Transitional Federal Charter for the Somali
Republic
Publisher National Legislative Bodies / National Authorities
Publication Date February 2004
Cite as
Somalia: Somali Transitional Charter. Transitional Federal Charter for the
Somali Republic [], February 2004, available at:
http://www.refworld.org/docid/4795c2d22.html [accessed 28 January
2016]
Disclaimer
This is not a UNHCR publication. UNHCR is not responsible for, nor does
it necessarily endorse, its content. Any views expressed are solely those
of the author or publisher and do not necessarily reflect those of UNHCR,
the United Nations or its Member States.
PREAMBLE
In the Name of Allah, the most Merciful, the Beneficent.
WE, THE DELEGATES REPRESENTING THE PEOPLE OF THE SOMALI REPUBLIC have
solemnly resolved to enact a Transitional Federal Charter for the Somali Republic;
DETERMINED to live in peace and unity as one indivisible, free and sovereign nation;
RECOGNIZING the gross violations of human rights inflicted upon the Somali people and
the need to re-establish peace, democracy, the rule of law, social justice, the dignity and
integrity of all Somalis;
COMMITTED to establishing and nurturing a Transitional Federal Government for the Somali
Republic;
DETERMINED to foster reconciliation, national unity, and good governance;
DO HEREBY ADOPT, ENACT AND GIVE TO THE SOMALI PEOPLE THIS CHARTER.
CHAPTER ONE
SOVEREIGNTY AND TERRITORY
ARTICLE 1
ESTABLISHMENT OF TRANSITIONAL FEDERAL GOVERNMENT
1. There shall be a Transitional Federal Government of the Somali Republic based on the
sovereign will of the Somali people.
2. The name of the National Government shall be "The Transitional Federal Government of
the Somali Republic."
3. In this charter "Somali Republic" has the same meaning as "Somalia", "The Somali
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Republic", "The Somali Democratic Republic".
ARTICLE 1:1
THE SOVEREIGNTY OF THE SOMALI PEOPLE.
1. All the sovereign authority belongs to the people of Somalia and may be exercised
directly or indirectly through their representatives, in accordance with this Charter and the
laws of the country.
2. The right to exercise sovereignty shall not be delegated to any individual, group or class,
and no person shall arrogate to him or herself, or exercise any State authority, which does
not emanate from this Charter or any laws of the Land not inconsistent with this charter.
1. The Government shall encourage the unity of the Somali people by promoting their
cultures, customs and traditions.
ARTICLE 2
THE TERRITORY OF SOMALIA
1. The Territorial Integrity and Sovereignty of the Somali Republic shall be inviolable and
indivisible.
2. The territorial sovereignty of the Somali Republic shall extend to the land, the islands,
territorial sea, the subsoil, the air space and the continental shelf.
3. The Somali Republic shall have the following boundaries.
(a) North; Gulf of Aden.
(b) North West; Djibouti.
(c) West; Ethiopia.
(d) South south-west; Kenya.
(e) East; Indian Ocean.
ARTICLE 3
SUPREMACY OF LAW
1. The Transitional Federal Government of the Somali Republic shall be founded on the
supremacy of the law and shall be governed in accordance with this Charter.
2. This Charter for the Transitional Federal Government shall be the supreme law binding all
authorities and persons and shall have the force of law throughout the Somali Republic. If
any law is inconsistent with this Charter the Charter shall prevail.
3. The validity, legality or procedure of enactment or promulgation of this Charter shall not
be subject to challenge by or before any court or other State organ.
ARTICLE 4
INTERPRETATION OF THE CHARTER
1. The Charter shall be interpreted in a manner: - (a) That promotes national reconciliation,
unity and democratic values;
a) That promotes the values of good governance;
b) That advances human dignity, integrity, rights and fundamental freedoms and the Rule
of Law.
2. A person may bring an action in the Supreme Court for a declaration that any Law or
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action of the state is inconsistent with, or is in contravention of this Charter.
3. The Supreme Court shall determine all such applications on a priority basis.
CHAPTER TWO
THE SOMALI REPUBLIC
ARTICLE 5
THE CAPITAL CITY
1. The Capital of the Somali Republic shall be Mogadishu (Hamar - Xamar).
2. Parliament shall pass legislation governing the Administration of the Capital City.
ARTICLE 6
THE FLAG AND EMBLEM
1. The National flag for the Transitional Federal Government shall be of rectangular shape,
azure in colour with a white star and five equal points emblazoned in the centre.
2. The emblem of Transitional Federal Government shall be composed of an azure
escutcheon with a gold border, which shall bear a Silver five-pointed star.
3. The escutcheon shall be surmounted by embattlement with five equal points in Moorish
style, two lateral points halved, borne by two leopards rampant in natural form facing each
other, resting on two lances crossing under the point of the escutcheon with two palm
leaves in natural form interlaced with a white ribbon.
ARTICLE 7
LANGUAGES
1. The official languages of the Somali Republic shall be Somali (Maay and Maxaatiri) and
Arabic.
2. The second languages of the Transitional Federal Government shall be English and
Italian.
ARTICLE 8
RELIGION
1. Islam shall be the religion of the Somali Republic.
2. The Islamic Sharia shall be the basic source for national legislation.
ARTICLE 9
THE NATIONAL SYMBOLS
1. The national symbols of the Somali Republic shall consist of: -
(a) The National Flag;
(b) The National Anthem
(c) The National Emblem and
(d) The Public Seal.
CHAPTER THREE
CITIZENSHIP
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ARTICLE 10
CITIZENSHIP
1. Every person who at the time of the coming into force of this Charter was a citizen of
the Somali Republic shall be deemed to be a citizen of the Somali Republic.
2. Every person of Somali origin shall be entitled to citizenship of the Somali Republic
provided that: -
(a) He/she was born in the Somali Republic; or
(b) His/her father is a citizen of the Somali Republic;
3. A person who is a citizen of Somalia under this Article cannot be deprived of that
citizenship.
4. Every Citizen of the Somali Republic shall be entitled to retain their citizenship
notwithstanding the acquisition of the citizenship of any other country.
5. Parliament shall within twelve months pass legislation regulating matters relating to
citizenship.
CHAPTER FOUR
THE TRANSITIONAL FEDERAL GOVERNMENT
ARTICLE 11
1. The Transitional Federal Government of the Somali Republic shall have a decentralised
system of administration based on federalism.
2. The Somali Republic shall comprise of :-
a) The Transitional federal Government.
b) State Governments (Two or more regions federated, according to their free will)
c) Regional Administrations
d) District Administrations
3. The present Charter shall be the basis for the federal constitution.
a) While the new Constitution is being drafted, a National Census shall be undertaken
simultaneously.
b) After which an internationally supervised National Referendum shall be undertaken to
approve the new Constitution.
c) The Transitional Federal Government will request the International Community to provide
both technical and financial support.
4. The Transitional Federal Government shall promote and develop the State Governments,
Regional and District Administrations subject to the legislation and the guidelines of the
Federal Constitutional Commission on the formation of the Transitional Federal Government.
5. The State Governments, Regional and District Administrations shall cover all the regions
of Somalia.
6. The Council of Ministers of the Transitional Federal Government shall within 90 days of
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assuming office propose to the President names of persons to be appointed to an
independent Federal Constitution Commission to ensure that a Federation is achieved
within the time set out under this charter;
7. Parliament shall make laws relating to the mandate of the Commission and the
qualifications and terms of service of its members;
8. Notwithstanding any other provisions in this Charter relating to the formation of
government ministries, there shall be established a Ministry of Federal and Constitutional
affairs that shall be charged with the task of implementing Constitutional and Federal
affairs;
9. The Transitional Federal Government shall ensure that the process of federating Somalia
shall take place within a period of two and a half years from the date that the commission
is established;
10. In the event that the Transitional Federal Government is unable to complete the
process of federalism all over Somalia within the prescribed period of two and half years,
the Government shall request Parliament for a vote of confidence, failing which the
Transitional Federal Parliament shall withdraw its support and a new Transitional Federal
Government shall be formed in the manner set out in this charter;
11. The new Transitional Federal Government formed under Clause (8) herein shall
undertake to complete the process of federalism all over Somalia within a period of one (1)
year failing which the provisions of article 11(8) above shall apply.
ARTICLE 12
AUXILARY ORGANS
1. There shall be the following support institutions of the Transitional Federal Government:
-
(a) Auditor General;
(b) Attorney General;
(c) Accountant General;
(d) Governor of Central Bank.
2. Parliament shall make laws defining the functions of the auxiliary organs set out under
(1).
3. The above organs shall execute their functions and responsibilities in the whole country
in conformity to their respective mandates established by law.
ARTICLE 13
DISTRIBUTION OF RESOURCES AND POSITIONS
1. The Transitional Federal Government, shall on the coming into force of this charter pass
legislation ensuring equitable appropriation and allocation of resources in the country.
2. The Transitional Federal Government shall ensure that all appointments in the service of
the Government shall be based on qualifications and fair distribution among the Citizens.
CHAPTER FIVE
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PROTECTION OF THE FUNDAMENTAL RIGHTS & FREEDOMS OF THE PEOPLE
ARTICLE 14
HUMAN RIGHTS & DIGNITY.
1. The Somali Republic shall recognize and enforce all international human rights
conventions and treaties to which the Republic is a party.
2. Every citizen shall have the right to:
a. Reside, work and travel freely in any part of the country.
b. Organize, form or take part in political, labour, professional or social entities in
conformity to the law, without prior government authorization.
c. Vote upon attainment of 18 years of age.
d. Subject to this charter, contest for any vacant seat.
3. There shall be no interference of personal communication.
ARTICLE 15
EQUALITY OF THE CITIZENS BEFORE THE LAW.
1. All citizens of the Somali Republic are equal before the law and provisions of this
Transitional Federal Charter and have the right to equal protection and equal benefit of the
law without distinction of race, birth, language, religion, sex or political affiliation.
2. Equality shall include the full and equal enjoyment of all rights and freedoms.
ARTICLE 16
RIGHT TO LIFE, PERSONAL LIBERTY AND SECURITY
1. Everyone shall have the right to life and no person shall be deprived of his/her life.
2. No person shall be deprived of his/her personal liberty, personal freedom and personal
security.
3. No person shall be subjected to inspection, personal search of his/her house or his/her
property without the permission of competent judicial authority related to health and tax. In
every case, the self-respect and moral dignity of the person concerned must be preserved.
4. Any physical or moral violence or action against a person subject to restriction of
personal liberty shall be punishable as a crime and hence is prohibited.
5. No person shall be liable to any form of detention in prison or other restrictions of
personal liberty except when apprehended flagrante delicto or pursuant to any act of the
competent judicial authority.
6. As is explicitly defined by any law, any person arrested for suspicion or restricted from
his/her personal liberty, shall have access within 48 hours to competent judicial authority
and confirmed by it within the time prescribed by law.
ARTICLE 17
RIGHTS RELATING TO LEGAL PROCEEDINGS
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1. Every person shall have right to institute legal proceedings in a competent court.
2. Every person who is charged with a criminal offence:-
a) Shall be presumed to be innocent until he/she is proven guilty in a competent court of
law;
b) Shall be informed as soon as reasonably practicable, in a language that he/she
understands and in detail, of the nature of the offence with which he/she is charged;
c) Shall be given adequate time and facilities for the preparation of his/her defence at any
stage of the legal proceedings.
3. Every person detained, imprisoned or restricted shall be permitted the right to defend
himself/herself in a court in person or communicate with his/her relatives, lawyer of his/her
own choice whenever he/she requires.
4. The Government shall guarantee free legal services for individual citizens who cannot
afford them.
5. The penal, civil and administrative liabilities of officials and employees of the Government
shall be governed by law.
ARTICLE 18
LABOUR
1. No worker shall be discriminated, as each shall have a right to a salary and equal pay
commensurate to the work performed and other fringe benefits as shall be stipulated in the
employment and labour laws of the country.
2. Workers shall have the right to weekly rest and annual leave with pay and shall not be
compelled to forfeit.
3. The law shall establish working hours for workers.
4. The Government shall establish by law the minimum age employable and minimum
salary for workers.
5. The government shall guarantee its employees, Civil and military, the right to pension. It
shall also guarantee employees in accordance with the law, assistance in case of accident,
illness or incapacity to work. A special law shall guarantee pension for private sector
employees.
ARTICLE 19
RIGHT TO ASSEMBLE AND FREEDOM TO STRIKE
1. Every person shall have the right to : -
a) Assemble freely with other persons and in particular to form or belong to trade unions or
other associations for the protection of his/her interests;
b) Mobilize and participate in any meeting or demonstration;
c) Freely express his/her opinion orally, in written form, or in any other manner, without
censorship.
2. The workers of the Transitional Federal Government of Somalia shall have the right to
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form Trade Unions for the protection of their interests as specified by law.
ARTICLE 20
FREEDOM OF INFORMATION AND MEDIA
1. The Transitional Federal Government shall guarantee the freedom of press and
independent media in accordance with Law.
2. Every person shall have the rights to freely express his/her own opinion in any manner,
subject to any limitation which, may be prescribed by law for the purpose of safeguarding
morals and public security.
ARTICLE 21
THE RIGHT TO ESTALISH POLITICAL PARTIES
1. The Transitional Federal Government shall encourage the formation of political parties in
the Republic save that it shall be in accordance with the law.
2. In accordance with the laws, all Citizens, shall have the right to associate with political
parties, political programs interpreting clearly their national political agenda.
3. The political parties shall be open for all Citizens and be guided by General Principles of
Democracy.
4. Any Political party of a military character or tribal nature shall be prohibited.
5. Political parties shall have the right to form alliances before, during and after the election
periods.
6. All Citizens possessing the qualifications required by law have the right to vote and be
elected to Public Office.
ARTICLE 22
THE RIGHT TO ESTABLISH SOCIAL ORGANIZATIONS
1. Every person has the right to assemble freely and associate with other persons and in
particular to establish any social organization in accordance with the law.
2. No person may be compelled to join and / or continue to belong to an association of any
kind.
3. Any Non-Governmental organization with an objective of either human rights,
environmental protection shall be registered and allowed to operate in the Somali Republic
in accordance with international treaties and laws of the country.
4. Nothing contained herein shall permit the establishment of any secret associations or any
organization bearing any military defence or para-military nature and / or character.
ARTICLE 23
POLITICAL ASYLUM
1. The state may grant political asylum to a person and his close relatives who flee his or
another country on grounds of political religious, and cultural persecution unless such
asylum seeker(s) have committed crime(s) against humanity.
2. Extradition may be granted against a person accused of a crime committed in his or
another country only if an extradition treaty exists between Somalia and the country
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requesting thereof.
ARTICLE 24
EDUCATION
1. Education shall be recognized as a basic right for all Somali citizens
2. All citizens shall have a right to free primary and secondary education.
3. The Government shall give priority to the promotion, expansion and propagation of
public education.
4. Education shall be for the interest of the people and shall be extended throughout the
whole country.
5. Private schools, institutes and universities may be established according to law and in
line with the educational program and academic curriculum of the country.
6. The Government shall encourage the promotion of scientific research, the arts and their
advancement as well as the folklore and sports and shall promote positive customs and
traditions of the Somali people.
7. The Government shall adopt standardized curriculum for schools of the country and shall
oversee its implementation.
8. The Government shall promote higher education and the establishment of Technical
Institutes as well as technology and research Institutions.
9. The Government shall develop educational programmes and a united syllabus for all
schools.
10. Teaching of Islam shall be compulsory for pupils in both Public and Private Schools.
ARTICLE 25
PROTECTION OF FAMILY
1. The family shall be recognized as the basic unit of the society whereas religion, morals
and love of the country shall be the central pillars of the family.
2. The Government shall protect and encourage marriage.
3. Parents shall support their children, education and welfare, as required by law.
4. Children, who are of full age, are obliged to support their parents when the latter are
unable to support themselves.
5. It shall be an obligation on parents/guardian to register children upon birth.
ARTICLE 26
SOCIAL WELFARE
The Government shall guarantee public social welfare as follows:
a) It shall be the responsibility of the Government to protect and provide public health, safe
motherhood, childcare and control communicable diseases;
b) Welfare of persons with disabilities, orphans, widows, heroes who contributed and
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fought in defence of the country and aged persons;
c) The Government shall encourage the establishment of the Civil Society and social
development institutions for the public, that is to say, NGOs, women, youth, students,
human rights and professional organizations;
d) Forced labour or military service for children under 18 years shall not be permitted.
e) In accordance with the law, no child under 18 years of age shall be imprisoned in the
same prison and/or custody as those for adults;
f) The law shall regulate the establishment of private health centres and clinics;
g) The Government shall safeguard public morality of the society;
h) The Government shall endeavour to promote the social welfare and development of the
rural population;
i) The Government shall create a positive environment for women to participate effectively
in economic, social and political life of the society;
j) The law shall establish the relationship between the Transitional Federal Government and
former Government employees.
ARTICLE 27
ECONOMY
1. The system of economy for the country shall be based on free enterprise.
2. The Government shall encourage, support and provide full guarantee to foreign
investment in the country as specified by law.
3. The right to own private property shall be guaranteed by law, which shall define its
contents and the limits of its exercise.
4. Copyrights pertaining to the arts, science and technology shall be protected and the law
shall regulate its contents and the limits of its exercise.
5. Personal property may be expropriated for public interest in exchange for equitable and
timely compensation. However, the property shall be returned to the owner or his/her heirs
in accordance with the law.
CHAPTER SIX
THE STRUCTURE AND ORGANISATION OF THE STATE
PART 1
ARTICLE 28
PARLIAMENT
1. The legislative powers of the Transitional Federal Government of Somalia shall be vested
in Parliament.
2. The Transitional Federal Parliament of the Somali Republic shall have a single Chamber.
3. The members of the Parliament shall represent the unity of the nation.
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ARTICLE 29
THE COMPOSITION OF PARLIAMENT
The Transitional Federal Parliament of the Somali Republic shall consist of Two Hundred
and Seventy Five (275) Members of which at least Twelve Percent (12%) shall be women.
ARTICLE 30
APPOINTMENT OF MEMBERS OF PARLIAMENT
a) The Parliament envisaged under article 28 above shall be appointed as follows;
a) Selection of the Members of Parliament shall be made at the sub sub-clan level.
b) Any member of a sub sub-clan is eligible for selection as a Member of Parliament
irrespective of whether he or she is present at the conference.
c) Selection shall be undertaken in a transparent manner and the Political Leaders,
Politicians and Traditional Leaders are called upon to play their roles.
d) Having ensured full endorsement of the traditional leaders to the compiled list of
selected MPs, the Somali Management 85 Facilitation Committee will further submit the said
list to the IGAD Facilitation Committee within the timeframe specified.
2) Any vacancy that arises after the coming into force of this Charter shall be filled through
the same procedure as stated in Article 30(1) above.
ARTICLE 31
ELIGIBILITY CRITERIA FOR MEMBERSHIP OF PARLIAMENT
1. A person shall be eligible to be a Member of Parliament if that person: -
a. Is a citizen of the Somali Republic;
b. Has attained at least twenty five years (25) years of age;
c. Is of good character.
d. Is of sound mind
2) A person shall be disqualified from being a Member of Parliament if that person :-
a) Holds any other public appointment other than as member of the Cabinet;
b) Has been pronounced as being of unsound mind;
c) Has been convicted of an interdictable offence;
d) Has been removed from any public office on grounds of gross misconduct or corruption.
ARTICLE 32
THE TERM OF THE TRANSITIONAL FEDERAL PARLIAMENT
1. The term of the Transitional Federal Parliament shall be five (5) years.
2. The tenure of parliament shall commence from the date of taking the oath of office and
shall continue until the date of commencement of the next parliament.
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3. Parliament shall meet in its first session within 30 days from the date two-thirds of the
members of the Parliament shall have taken the oath of office.
4. The term of the Transitional Federal Parliament shall not be extended.
5. The first meeting of the Parliament shall be chaired by the most senior member in age
until a Speaker is elected.
ARTICLE 33
FUNCTIONS OF PARLIAMENT.
Parliament shall discharge the following functions: -
a) Election of the President of the Transitional Federal Government;
b) Election of Speaker and Deputy Speaker
c) Making legislation ;
d) Approval and adoption of the annual budget.
e) Consideration of motions of confidence in the
f) Government;
g) Making of internal parliamentary regulations;
h) Investigate any matter of public interest
i) Hold public hearings
j) Ratification of international agreements and treaties;
ARTICLE 34
PROCEDURES IN PARLIAMENT
1. The Parliament shall hold two (2) ordinary sessions annually.
2. The Parliament may be convened in extraordinary sessions by the Speaker at the request
of the President or upon requisition by one third of its members.
3. Meetings of Parliament or its committees shall be valid with the presence of half plus
one of its members.
ARTICLE 35
PRIVILEGES AND IMMUNITIES OF PARLIAMENT
1. No member of parliament may be prosecuted for any opinion or Views expressed in
parliament.
2. No criminal proceedings shall be instituted against a member of parliament unless in a
case of flagranto delicto.
3. No member of parliament shall be interrogated in connection with criminal investigation,
nor shall his person or domicile be subjected to search while executing duties of a
parliamentarian.
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4. Parliament shall make law on the emoluments of its members, which shall be limited to
sitting per diem of the parliamentary session and its committees.
ARTICLE 36
LEGISLATION
1) When a Law has been passed by Parliament, it shall be presented to the President for
Assent.
2) The President shall, within twenty-one (21) days after the Law has been presented to
him/her for assent under sub-section(1), notify the speaker that he/she assents to the Law
or refuses to assent to it.
3) Where the President refuses to assent to a Law he/she shall, within fourteen (14) days
of the refusal, submit a memorandum to the speaker indicating the specific provisions of
the Law which in his/her opinion should be reconsidered for amendments.
4) The Parliament shall reconsider a Law referred to it by the President taking into account
the comments of the presidents and shall either :-
a) Approve the recommendations proposed by the President with or without amendment
and resubmit the Law to the President for assent; or
b) Refuse to accept the recommendations and approve the Law in its original form by a
resolution supported by Votes of not less than sixty –five (65)percent of all the Members of
the Parliament in which case the president Shall assent to the Law within fourteen (14)
days of the Passing of the resolution. 5.A law made by Parliament and assented to by the
president shall not come into operation until it has been published in the official bulletin.
ARTICLE 37
OFFICERS OF PARLIAMENT
Parliament shall have the following officers:
a) The Speaker
b) Two Deputy Speakers
c) Other officers appointed by parliament
Parliament shall elect the Speaker and the two Deputy Speakers from among its members
in its first sitting.
ARTICLE 38
PROCEEDINGS OF PARLIAMENT
Every Parliamentary sitting shall be presided over by: -
a) The Speaker or
b) In the absence of the Speaker any of the Deputy Speakers;
c) In the absence of the Speaker or any of the Deputy Speakers, such other Member of
Parliament as the members shall elect.
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CHAPTER SEVEN
PART II
THE PRESIDENT
ARTICLE 39
1. There shall be a President of the Somali Republic, who shall be
(a) The Head of State
(b) Commander - in - Chief of the Armed Forces
(c) Symbol of National Unity
2. The powers of the President shall be exercised in accordance with the Charter and the
laws of the land;
3. The President shall not hold any other office for gain.
ARTICLE 40
QUALIFICATIONS
1. Any person shall be qualified and eligible to be elected the President of the Somali
Republic , if the person :-
a) Is a citizen of the Somali Republic;
b) Has attained at least 40 years of age.
c) Is a practicing Muslim whose parents are Somali citizens
d) Is not married to a foreigner nor marry a foreigner during his term of office.
e) Is of sound mind and no criminal conviction for any serious offence.
f) Is of good character.
g) Possess the capacity, competence and experience to discharge the duties of the
Presidency.
ARTICLE 41
ELECTION OF THE PRESIDENT
1. The President shall be elected by Parliament through a secret ballot, with a two-thirds
(2/3) majority of its members in the first round whereas in the subsequent ballots shall be
by simple majority.
2. In the second round of the elections, only the first six candidates shall be eligible
whereas in the third round only the first two candidates shall be eligible for the final
Presidential election.
ARTICLE 42
OATH OF THE PRESIDENT
Before assuming the office and duties of the President, the President elect shall take and
subscribe to the oath of allegiance. Such an oath shall be for the due execution of his/her
office in a manner prescribed herein: -
"In the name of Allah I swear that I will discharge faithfully all my duties as President in
the interest of the people and that I will abide by the Charter and laws of the Somali
Republic".
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ARTICLE 43
TENURE OF OFFICE
1. The President shall hold office for a term of four (5) years beginning from the date on
which he/she is sworn in as President in accordance with the Oath of Office provided for in
this Charter. The President shall, unless his/her office becomes vacant by reason of his/her
death, resignation or ceasing to hold office by virtue of the provisions of this Charter,
continue to hold office until the person elected as President at a subsequent election
assumes office.
2. The President shall be impeached for the violation of the Charter only if a charge against
him or her has been preferred to Parliament.
3. Where a motion for impeachment of the President is laid before Parliament -
a) The charge shall be preferred in a resolution moved after at least fourteen (14) days
notice in writing and signed by not less than one third of the total number of members of
Parliament of their intention to move such a resolution;
b) An investigation shall be conducted of the charge preferred or the cause of the charge
and the President shall have the right to appear and to be represented at such
investigation;
c) As a result of the outcome of the investigation, such resolution shall be passed and
voted by at least two-third majority of the members of Parliament;
d) Such resolution shall have the effect of removing the President from his/her office as
from the date on which the resolution is so passed.
ARTICLE 44
RESPONSIBILITIES OF THE PRESIDENT
4. The President shall undertake the following State duties: -
a. Address the opening of the Parliament;
b. Address a special sitting of Parliament once a year;
c. May address Parliament any other time;
d. The President shall nominate the President of the Supreme Court and other Judicial
Officers on the proposal of the Council of Ministers;
e. The President shall appoint persons to offices in the public service and Heads of
government organs on the proposal of the Council of Ministers;
f. The President shall appoint persons to be, Ambassadors, Diplomatic or Consular
representatives to foreign countries on the proposal of the Council of Ministers;
g. The President shall receive foreign Diplomatic or Consular representatives in the country;
h. The President shall confer state honours on the proposal of the Council of Ministers.
2) The President shall appoint and dismiss the Prime Minister and/or dismiss the
government if it fails to obtain the required vote of confidence from Parliament.
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3) The President shall dismiss Ministers and Assistant Ministers on the proposal of the
Prime minister.
4) The President shall have authority to: -
(a) Sign international treaties on the proposal of the Council of Ministers and upon
ratification by Parliament;
(b) Assent and Sign into law, legislation passed by the parliament and regulations and
decrees approved by the Council of Ministers;
ARTICLE 45
VACANCY IN THE OFFICE OF THE PRESIDENT
If the office of the President becomes vacant by reason of the resignation, death or
permanent disability of the President of the Republic, the Speaker of Parliament shall with
immediate effect exercise the functions of the President and Parliament shall meet to elect
a new President within thirty- (30) days.
CHAPTER EIGHT
PART III
THE EXECUTIVE
ARTICLE 46
THE PRIME MINISTER
1. The Executive power shall vest in the Council of Ministers.
2. The President shall appoint the Prime Minister who shall be the leader and chair of the
Council of Ministers.
DEPUTY PRIME MINISTERS AND MINISTERS
3. The Prime Minister shall propose to the President 3 names of persons to be appointed
Deputy Prime Ministers;
4. The Prime Minister shall propose to the President names of persons to be appointed
Ministers and Assistant Ministers;
5. The Prime Minister shall propose to the President names of persons eligible to be
appointed as Ministers and Assistant Ministers.
6. Each Deputy Prime Ministers shall have a ministerial portfolio and shall supervise a group
of related ministries in the political, social and economic sectors. Their specific duties shall
be specified by legislation.
ARTICLE 47
QUALIFICATION OF THE PRIME MINISTER AND DEPUTY PRIME MINISTERS
1. The Prime Minister, the Deputy Prime Ministers, Ministers and Assistant Ministers shall
have the following qualifications:
a) Be a citizen of the Somali Republic;
b) Be a member of Parliament;
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c) Have attained the age of forty (40) years in the case of the Prime Minister and the
thirty-five (35) years in the case of the Deputy Prime Ministers, Ministers and Assistant
Ministers;
d) Have proven leadership qualities and political experience.
ARTICLE 48
RESPONSIBILITIES OF THE PRIME MINISTER
1. The Prime Minster shall have the following responsibilities –
(a) Preside over the meetings of the Council of Ministers.
(b) Be responsible for the promotion, co-ordination and supervision of government policy
and general administration.
ARTICLE 49
TENURE OF OFFICE OF THE PRIME MINISTER
1. A person whose appointment as Prime Minister has been confirmed by the Parliament
shall assume office upon taking the oath hereunder.
"In the name of Allah I swear that I will discharge faithfully all my duties as Prime Minister
in the interest of the people and that I will abide by the Charter and laws of the Somali
Republic".
2. The term of office of the Prime Minister shall continue until:
a) He/ She dies, resigns or is dismissed from office; or
b) Until another person is appointed to that office.
ARTICLE 50
RESIGNATION OF THE PRIME/DEPUTY MINISTER
1. The Prime Minister and/or the Deputy Prime Ministers may resign from office by
delivering a written statement of resignation to the President.
2. The resignation stated under Clause (1) shall take effect on the date and the time
specified in the resignation and upon acceptance by the President.
ARTICLE 51
DISMISSAL OF THE PRIME/DEPUTY PRIME MINISTER (s).
1. If Parliament, by a vote supported by more than fifty per cent (50%) of its members,
passes a motion of no confidence in the Prime Minister, the President shall dismiss the
Prime Minister, and other Members of the Council of Ministers.
ARTICLE 52
COUNCIL OF MINISTERS
1. There shall be a Council of Ministers, which shall consist of:
a) The Prime Minister
b) The Deputy Prime Ministers
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c) The Ministers
2. The Council of Ministers shall: -
a) Develop government policy and implement national budgets;
b) Prepare and initiate Government legislation for introduction to Parliament;
c) Implement and administer Acts of Parliament;
d) Co-ordinate the functions of government Ministries
e) Perform any other functions provided for by the Charter or an Act of Parliament, except
those reserved for the President.
3. Each person appointed as Deputy Prime Minister, Minister or Assistant Minister:
a) Assumes office by swearing in the name of Allah and allegiance to the Somali Republic
'and obedience to the Charter.
b) May resign by delivering a written statement of resignation to the Prime Minister and the
President;
c) Shall continue in office until he/she dies, resigns or is dismissed or until another person
is appointed to that office.
ARTICLE 53
ROLE OF THE COUNCIL OF MINISTERS
1) Unless otherwise stated, the decision of the Council of Ministers shall be in writing.
2) The Deputy Prime Ministers and Ministers shall assist and advise the Prime Minister.
3) The Council of Minister shall be accountable collectively based on the principles of
collective responsibility, to Parliament for all things done including:
a) The exercise of their powers and the performance of their functions;
b) The administration and implementation of legislation assigned to them.
4) The Three (3) Deputy Prime Ministers and Ministers shall be individually accountable to
the Prime Minister for the exercise of the powers and the performance of the functions
assigned to each of them.
5) A Minister shall attend before Parliament, or a Committee of Parliament, when required
to do so, and answer any question concerning a matter assigned to that Minister and
his/her Ministry.
6) The Council of Ministers shall set the General policy of the Government in accordance
with the Charter and laws of the land.
7) If parliament, by a vote supported by more than fifty percent of its members, passes a
motion of no confidence against member of the cabinet, except the Prime Minister & his
deputies, the President shall dismiss that member.
CHAPTER NINE
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PART IV
THE JUDICIARY
ARTICLE 54
JUDICIAL AUTHORITY
1. The judicial power of the Somali Republic shall vest in the courts.
2. The judicial power shall encompass jurisdiction over Civil, Criminal, Administrative and
Commercial matters and any matter specified by this Charter or any other laws of the land.
ARTICLE 55
INDEPENDENCE OF THE JUDICIARY
1. The Judiciary shall be independent of the legislative and executive branches of
Government and in the exercise of their judicial functions; the members of the judiciary
shall be subject only to the law.
2. A Judge shall be removed from office only for inability to perform the functions of
his/her office (whether arising from infirmity of body or mind or from any other cause) or
for misbehaviour, and shall not be removed except in accordance to this Clause.
3. A Judge shall be removed from office by the President if the question of his/her removal
has been referred to a Tribunal appointed by the Parliament and the Tribunal has
recommended to the Parliament that the Judge ought to be removed from office for
inability as aforesaid or misbehaviour.
4. Members of the judiciary shall not hold offices, perform services, or engage in activities
incompatible with their functions.
5. Administrative and disciplinary measures relating to members of the judiciary shall be
adopted, as provided by law, by decree of the President of the Republic on the proposal of
the minister of Justice and Religious Affairs and in conformity to the decision of the Judicial
Service Council.
6. The Judiciary shall not be subject to the direction of any other organ or body.
7. The Judiciary shall interpret and implement the law in accordance with the Charter and
laws.
8. Parliament shall make law setting the terms of the appointment, dismissal, discipline and
terms of service of Judges.
ARTICLE 56
THE JUDICIAL PROCESS
1. Judicial proceedings shall be open to the public, but the court may decide, for reasons of
morals, hygiene or public order, that the proceedings be held in camera.
2. No judicial decision shall be taken unless all the parties have had the opportunity of
presenting their case.
3. All judicial decisions and measures concerning personal liberty shall state the grounds
thereof.
ARTICLE 57
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JUDICIAL PRINCIPLES
1. No extraordinary or special courts shall be established, except for military tribunals,
which shall have jurisdiction only over military offences committed by members of the
armed forces both during war and peacetime.
2. The public, both civilian and military shall directly participate in Judiciary proceedings in
conformity with those laws defining such participation.
ARTICLE 58
JUDICIAL IMMUNITY
No criminal proceedings shall be instituted against a sitting judge, nor be interrogated as
object of criminal investigation, or his person or domicile be searched nor shall be arrested
unless caught in the commission of a crime, or without the authorization of the Judicial
Service Council.
ARTICLE 59
APPOINTMENT OF JUDGES
1. All the Judges shall be appointed by the President acting in accordance with the advice of
the Judicial Service Council.
2. The appointment of Judges shall be based on legal qualifications and competence.
3. A person shall not qualify to be appointed a Judge of the Supreme Court unless:
I. He/she is, or has been, a Judge of the Appeal Court having unlimited jurisdiction in Civil,
Commercial and Criminal matters; or
II. He/she is an advocate of the High Court of Somalia of not less than five (5) years
standing; or
4. 4 If the office of a Judge is vacant, or if a Judge for any reason is unable to discharge
the functions of his/her office, or a judge retires at the attainment of sixty-five (65) years
of age; the a new judge shall be appointed on the proposal of the Judicial Service Council
by the President.
ARTICLE 60
THE COURT SYSTEM
1. The court system shall consist of :
(a) The Transitional Supreme Court
(b) The Transitional Appeal Court
(c) Other Courts established by Law
ARTICLE 61
THE SUPREME COURT
1. There shall be a Supreme Court, which shall be the highest court in the Somali Republic
and shall have unlimited original jurisdiction in the whole territory in Civil, Criminal,
Commercial and such other powers as may be conferred on it by this Charter or any other
law.
2. In addition to any other jurisdiction under this Charter or any other law, the Supreme
Court shall have the power to hear and determine judgement on any dispute about the
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Transitional Federal Charter and other laws.
3. One of the Judges of the Supreme Court shall be the President of the Court and such
other Judges as may be prescribed by Law.
4. The Judges of the Supreme Court shall have the security of Tenure while in office.
5. Parliament shall make law regarding the structure and composition of the Supreme
Court.
ARTICLE 62
SEAT OF THE SUPREME COURT
The seat of the Supreme Court shall be in the capital of the Somali Republic.
ARTICLE 63
THE JUDICIAL SERVICE COUNCIL
1. There shall be a Judicial Service Council, which shall undertake and direct the General
Policy and the Administration of the Judiciary as prescribed by law.
2. The Judicial Service Council shall comprise:-
a) President of the Supreme Court.
b) The Attorney General of the Republic.
c) Three (3) Judges elected from the Supreme Court.
d) Four (4) Lawyers selected from the private law practitioners by the Law Society of
Somalia.
3. Members of the Council shall enjoy similar privileges and immunity as that of the Judges.
4. 4. The Council shall be responsible for the appointment, transfers conduct, discipline and
remuneration of Judges.
5. The term of each council member shall be four years.
ARTICLE 64
THE OFFICE OF THE ATTORNEY GENERAL.
1. The office of the Attorney General shall be a division of the judicial institution and shall
comprise of :-
a) The Attorney General whose duty shall be to safeguard the implementation of the laws
in the whole Republic. His duties, responsibilities and scope of duties shall be specified by
law ;
b) The Attorney General shall be appointed by the President on the recommendation of the
Council of Ministers ;
c) The Attorney General shall be the principal legal adviser to the Transitional Federal
Government;
d) (d)The State and Districts Attorney Generals whose powers are limited to specific
regions and districts will be appointed as specified in sub section (b).
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2. It shall be the responsibility of the Attorney General to promote and uphold the Rule of
Law.
CHAPTER TEN
ARTICLE 65
SECURITY AND DEFENCE FORCES
1. The Somali Republic shall have a national armed force consisting of the army and police.
2. The Armed forces shall faithfully abide and preserve the Charter , the laws of the land
and unity of the country.
3. The law shall regulate the structure and function of the armed forces and the system of
co-operation and co-ordination amongst them in the fulfillment of their institutional duties.
CHAPTER ELEVEN
LAND AND PROPERTY
ARTICLE 66
THE POLICY FOR LAND
1. Land being Somalia’s primary resources and the basis of Livelihood for the people shall
be held, used and managed in a Manner which is equitable, efficient, productive and
sustainable.
2. The Government shall define and keep constant the national Land policy and framework
of the land in the Somali Republic which shall ensure the registration, use, ownership,
access, occupation, management rights, security, interests and title of the land.
ARTICLE 67
NATURAL RESOURCES AND ENVIRONMENT PROTECTION.
1. The natural resources of the country such as the minerals, water, flora and fauna shall
be public property and a law shall be enacted which defines the manner of exploitation for
the common good.
2. The Transitional Federal Government shall give priority to the protection, conservation,
and preservation of the environment against anything that may cause harm to the natural
bio- diversity and ecosystem.
3. Every person in the Somali Republic shall have a duty to safeguard and enhance the
environment and participate in the development, execution, management, conservation and
protection of the natural resources and environment.
4. The Transitional Federal Government shall adopt urgent measures to clean up the
hazardous waste dumped on and off shores of the Somali Republic. Compensation shall be
demanded of those found liable for such crimes.
5. The Transitional Federal Government shall take urgent steps to reverse the trend in
desertification, deforestation, environmental degradation, illegal charcoal burning and
export of endangered wildlife species.
CHAPTER TWELVE
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NATIONAL COMMISSIONS
ARTICLE 68
INDEPENDENT COMMISSIONS AND ADMINISTRATIVE COMMITTEES
1. There shall be established such independent Commissions and Committees as may be
necessary.
2. The establishment of independent commission s, their structures and functions shall be
proposed by the Council of Ministers and approved by Parliament.
3. The respective ministers shall propose the components of these commissions to the
Council as stated below: -
a) Federal constitutional Commission
b) National Commission for Reconciliation.
c) National Population and Demographic Census Commission.
d) Civil Service Commission.
e) National Commission for the recovery and registration of public and private property.
f) National Resettlement Commission.
g) Somalia Olympic Commission.
h) State Boundary Demarcation Commission.
i) Disarmament and demobilization Commission.
j) Economic recovery Commission;
k) Land and Property Disputes Commission.
l) Electoral Commission
CHAPTER THIRTEEN
INTERNATIONAL RELATIONS
ARTICLE 69
INTERNATIONAL AND BILATERAL RELATIONS
1. The Transitional Federal Government of the Somali Republic shall uphold the rules of
international law and all international treaties applicable to the Somali Republic and subject
to the legislative Acts of Parliament, international laws accepted and adopted shall be
enforced.
2. The Transitional Federal Government of the Somali Republic shall uphold all bilateral
agreements concluded by the Somali Republic
CHAPTER FOURTEEN
AMENDMENT OF THE CHARTER
ARTICLE 70
AMENDMENT OF THE CHARTER.
1. Subject to this Article, Parliament shall have the power to add, amend, alter, vary or
otherwise revise this Charter.
2. An Amendment of this Charter may be initiated only by the introduction of a Motion for
that purpose supported by not less than one third (1/3) and passed by not less than twothirds
(2/3) of the total members of parliament.
Annex 3
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CHAPTER FOURTEEN
TRANSITORY CLAUSE AND ENTRY INTO FORCE OF THE CHARTER
ARTICLE 71
TRANSITIONAL PERIOD
1. The Charter shall have legal effect pending the eventual enforcement of the National
Federal Constitution.
2. The 1960 Somalia Constitution and other national laws shall apply in respect of all
matters not covered and not inconsistent with this Charter.
3. The Transitional Federal Government shall endeavour to repossess and restore to the
state all public properties, either movable or immovable, within or outside the country.
4. In respect of private property currently held illegally, Government shall endeavour to
restore it to the rightful owners.
5. The Transitional Federal Government shall devote the necessary efforts to restore peace
and security, free movement of people, goods and services, disarmament and collection of
illegal weapons in the hands of the public for safekeeping rehabilitation and reintegration of
all militia in co-operation
1. with regional administrations, traditional elders and members of the international
community.
6. The Transitional Federal Government shall make necessary efforts to resettle refugees
and displaced persons.
7. The ongoing development projects in the country may continue, provided they do not
infringe on the sovereignty of the state and do not harm the environment. All new projects
are subject to Transitional Federal Government guidelines and approval.
8. Effective from the conclusion of the Somali National Reconciliation Conference held in
Kenya, all militia organizations, armed groups and factions in the territory of the Somali
Republic shall cease to exist and shall turn in their weapons to the Transitional Federal
Government.
9. The present Charter shall be the basis for the federal constitution whose draft shall be
completed within two and half (2 1/2) years and be adopted by popular referendum during
the final year of the transitional period.
10. The Transitional Federal Government shall take all necessary measures to combat
tribalism, nepotism, looting of public properties, corruption and all fraudulent activities,
which may undermine the functioning of state organs and decent traditions of the society.
11. The Transitional Federal Government shall audit and assess all ongoing foreign funded
development projects with a view to establishing whether they infringe on Sovereignty or
state security or impair the culture, environment or health of the people.
12. For the avoidance of doubt, this Charter shall come into force on the date the delegates
at the Somali National Reconciliation Conference in Kenya approve it and continue to be
operational until the approval and enforcement of the federal constitution.
SCHEDULE I
THE POWER OF THE TRANSITIONAL FEDERAL GOVERNMENT
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The Transitional Federal Government shall have authority throughout the Somali Republic
over the following matters –
1. Foreign Affairs.
2. Defence and Security.
3. Finance and Central Bank.
4. Establishment of State structures.
5. Posts and Telecommunications.
6. Immigration and Naturalization.
7. Ports Administration.
8. Planning and Economic Development.
9. Natural Resources.
10. Acceptance and licensing of private companies specifically at national level.
11. Collecting import/export and indirect taxes.
SCHEDULE II
POWERS OF THE STATE GOVERNMENTS
The State Governments shall control the following functions within their territories :–
1. Education.
2. Health.
3. Regional Roads.
4. Environment protection.
5. Regional police.
6. Housing.
7. Water and Electricity Development.
8. Agricultural Development and Water
9. Management.
10. Livestock and rangeland development.
11. Development of small businesses and states
12. business co-operations
13. Settlement of population.
14. Develop state constitutions their state flags and
15. state emblem.
16. Appoint their state election committees and
17. implement the state elections.
18. Collect all direct taxes
19. Promote sports, arts, literature and folklore.
20. Business licenses.
21. Town planning and construction permits.
22. Public sanitation.
23. Recreation centres and child gardens.
24. General Public Health.
SCHEDULE III
The reports of the six Reconciliation Committees of the Somali National
Reconciliation Conference in Kenya 2002-2003.
SCHEDULE IV
List of the delegates, political leaders and political groups.
Annex 3
Annex 4
M. Al-Sharmani and M. Omar, Representatives of the Ministry of Foreign Affairs of the Federal
Republic of Somalia, Report to the File of the Meeting between the Federal Republic of Somalia
and the Republic of Kenya On Maritime Boundary Dispute, Nairobi, Kenya, 28-29 July 2014 (5
Aug. 2014)
Report to the File
of the Meeting between
The Federal Republic of Somalia and The Republic of Kenya
On Maritime Boundary Dispute
Nairobi, Kenya, 28-29 July 2014
Prepared by Mona Al-Sharmani and Mohamed Omar for the Somali Ministry of
Foreign Affairs
5 August 2014
The Somali delegation met with their Kenyan counterparts in Nairobi, Kenya on 28 and
29 of July 2014 as agreed between both parties during the first negotiation meeting that
took place on 26-27 March 2014. The Somali delegation consisted of Ms. Mona AlSharmani
(Senior Adviser and head of delegation) and Mr. Omar Mohamed (Senior
Adviser). The Kenyan delegation was led by Ms. Juster Nkori in addition to several
other members from different branches of the Kenyan Government. The two-day
meetings took place at the Ministry of Foreign Affairs of Kenya and were also attended
by the Somali Minister of Foreign Affairs, H.E. Abdirahaman Beileh and the Kenyan
Minister of Foreign Affairs, H.E. Amina Mohamed. The two Ministers had a private
meeting in the morning of 28 July 2014 to exchange updates on areas of common
interest between the two countries. Thereafter, both Ministers joined the technical
teams from both countries in a conference room to start the negotiation. After
welcoming remarks by Minister Mohamed and a brief statement by Minister Beileh, the
two delegations agreed to allow each technical team to make a presentation on its legal
and technical position in the presence of both Ministers. The Somali delegation agreed
to go first and made a comprehensive presentation on 28 July 2014.
The Somali delegation recapped the initial discussions that took place between the
Somali and Kenyan delegations in Nairobi on 26-27 March 2014 and addressed the
deficiencies in the Kenyan legal and technical positions in its advocacy of adopting a
parallel of latitude methodology in delimiting the maritime boundary between Somalia
and Kenya. The Somali delegation reiterated its position (advocated in the initial
meeting between both delegations in March 2014) that the equidistance line is a widely
accepted principle of international law and is the cornerstone of international
jurisprudence on boundary delimitation between countries. The Somali delegation
further proceeded to review case law at the International Court Justice, International
Tribunal of the Law of the Sea and ad-hoc arbitrations that demonstrate the centrality of
the equidistance line methodology in adjudicating maritime boundary disputes between
States. The Somali delegation demonstrated in charts (attached hereto) the fairness of
the outcome if both parties used the equidistance line and also demonstrated in a chart
the unfairness that would result from using a parallel of latitude method. Following its
presentation, the Somali delegation responded to questions from the Kenyan
delegation. Both parties engaged in heated discussions as to each delegation’s view and
understanding of the case law. The Ministers of both countries concluded the meeting
by thanking both delegations and asking the Kenyan technical and legal team to deliver
Report to the File
of the Meeting between
The Federal Republic of Somalia and The Republic of Kenya
On Maritime Boundary Dispute
Nairobi, Kenya, 28-29 July 2014
Prepared by Mona Al-Sharmani and Mohamed Omar for the Somali Ministry of
Foreign Affairs
5 August 2014
The Somali delegation met with their Kenyan counterparts in Nairobi, Kenya on 28 and
29 of July 2014 as agreed between both parties during the first negotiation meeting that
took place on 26-27 March 2014. The Somali delegation consisted of Ms. Mona AlSharmani
(Senior Adviser and head of delegation) and Mr. Omar Mohamed (Senior
Adviser). The Kenyan delegation was led by Ms. Juster Nkori in addition to several
other members from different branches of the Kenyan Government. The two-day
meetings took place at the Ministry of Foreign Affairs of Kenya and were also attended
by the Somali Minister of Foreign Affairs, H.E. Abdirahaman Beileh and the Kenyan
Minister of Foreign Affairs, H.E. Amina Mohamed. The two Ministers had a private
meeting in the morning of 28 July 2014 to exchange updates on areas of common
interest between the two countries. Thereafter, both Ministers joined the technical
teams from both countries in a conference room to start the negotiation. After
welcoming remarks by Minister Mohamed and a brief statement by Minister Beileh, the
two delegations agreed to allow each technical team to make a presentation on its legal
and technical position in the presence of both Ministers. The Somali delegation agreed
to go first and made a comprehensive presentation on 28 July 2014.
The Somali delegation recapped the initial discussions that took place between the
Somali and Kenyan delegations in Nairobi on 26-27 March 2014 and addressed the
deficiencies in the Kenyan legal and technical positions in its advocacy of adopting a
parallel of latitude methodology in delimiting the maritime boundary between Somalia
and Kenya. The Somali delegation reiterated its position (advocated in the initial
meeting between both delegations in March 2014) that the equidistance line is a widely
accepted principle of international law and is the cornerstone of international
jurisprudence on boundary delimitation between countries. The Somali delegation
further proceeded to review case law at the International Court Justice, International
Tribunal of the Law of the Sea and ad-hoc arbitrations that demonstrate the centrality of
the equidistance line methodology in adjudicating maritime boundary disputes between
States. The Somali delegation demonstrated in charts (attached hereto) the fairness of
the outcome if both parties used the equidistance line and also demonstrated in a chart
the unfairness that would result from using a parallel of latitude method. Following its
presentation, the Somali delegation responded to questions from the Kenyan
delegation. Both parties engaged in heated discussions as to each delegation’s view and
understanding of the case law. The Ministers of both countries concluded the meeting
by thanking both delegations and asking the Kenyan technical and legal team to deliver
Annex 4
2
its presentation the following day on 29 July 2014. The meeting was adjourned until the
next morning.
On the morning of 29 July 2014, the Somali and Kenyan delegations met again at the
Ministry of Foreign Affairs of Kenya. The meeting was again attended by both Ministers.
The Kenyan delegation proceeded to make its presentation as agreed. The Kenyan team
argued that the principles of equity and fairness demanded the application of the
parallel of latitude methodology in delimiting the maritime boundary between both
countries. The Kenyan delegation reviewed certain cases particularly the
India/Bangladesh case and the Bangladesh/Myanmar case and noted the importance of
identifying the correct relevant coastlines for both countries for purposes of
determining the fairness of the delimitation exercise. It stated that in the case between
Somalia and Kenya, the relevant coastline for Kenya is its entire coastline and for
Somalia the coastline starting from the tip of Horn of Africa and going in the southern
direction all the way to the land-boundary terminal between both countries. The
Kenyan delegation further argued that due to the concavity of the Kenyan coastline, the
parallel of latitude method would result in a more equitable and fair solution.
The Somali and the Kenyan delegation engaged in a heated discussion following the
completion of the presentation made by the Kenyan delegation. The Somali delegation
requested the Kenyan delegating to cite one case that a court or a tribunal applied the
parallel of latitude as a legally accepted and widely applied principle in international
jurisprudence. The Kenyan delegation mentioned bilateral agreements between certain
African countries such as Kenya/Tanzania and Tanzania/Mozambique as examples of the
applicability of this principle, particularly in Africa. The Somali delegation responded
that the existing agreements between Kenya/Tanzania and Tanzania/Mozambique are
bilateral agreements that each country voluntarily agreed to. It further stated that no
case law exists where a court or a tribunal adopted the parallel of latitude as an
internationally accepted method in the delimitation of maritime disputes unless the
disputing parties voluntarily agree to this method in a separate agreement as in the case
of Kenya and Tanzania.
Minister Beileh asked Minister Mohamed as to how long would both countries continue
to have their delegations entangled in these heated discussions without any possible
solution. Minister Mohamed stated that although both delegations are far part, she
would like both teams to meet again and to attempt one final time to find an amicable
solution. Minister Mohamed further stated that if no agreement could be reached
between both countries, both countries might resort to international arbitration.
Minister Beileh stated that his Government would be happy to have both delegations
meet one more time to see if an amicable solution could be found but he expressed
strong doubts as he stated that the positions of both countries are far apart. Minister
Beileh remarked that both delegations can not even agree on the applicable principles
of international law that should frame their discussions and believed that an agreed
3
upon solution was difficult to contemplate given the current stalemate but agreed to
host the final round of meetings in Mogadishu on 25-26 August 2014. Both Ministers
agreed that both delegations had to finalize a draft joint report summarizing the twoday
meeting. The Ministers reviewed a draft of the joint report to be signed by both
delegations and provided some comments and thereafter departed to have a meeting in
private.
The Somali and Kenyan delegations continued, after the departure of both Ministers, to
work on the draft joint report and agreed to sign the final report in the next few days.
The Somali and Kenyan delegations proceeded to outline the issues to be discussed in
the upcoming August meetings in Mogadishu. The Somali delegation urged the Kenyan
delegation to reconsider its position on the applicability of “parallel of latitude” as an
appropriate method used in delimiting boundaries and stated that Kenya’s recognition
of the “equidistance line” as the applicable principle would enhance the possibilities of
having a more meaningful discussion in August.
The Somali delegation ended the meeting by stating that they looked forward to
welcoming the entire delegation, this time in Mogadishu as the previous two meetings
were held in Nairobi.
Annex 4
2
its presentation the following day on 29 July 2014. The meeting was adjourned until the
next morning.
On the morning of 29 July 2014, the Somali and Kenyan delegations met again at the
Ministry of Foreign Affairs of Kenya. The meeting was again attended by both Ministers.
The Kenyan delegation proceeded to make its presentation as agreed. The Kenyan team
argued that the principles of equity and fairness demanded the application of the
parallel of latitude methodology in delimiting the maritime boundary between both
countries. The Kenyan delegation reviewed certain cases particularly the
India/Bangladesh case and the Bangladesh/Myanmar case and noted the importance of
identifying the correct relevant coastlines for both countries for purposes of
determining the fairness of the delimitation exercise. It stated that in the case between
Somalia and Kenya, the relevant coastline for Kenya is its entire coastline and for
Somalia the coastline starting from the tip of Horn of Africa and going in the southern
direction all the way to the land-boundary terminal between both countries. The
Kenyan delegation further argued that due to the concavity of the Kenyan coastline, the
parallel of latitude method would result in a more equitable and fair solution.
The Somali and the Kenyan delegation engaged in a heated discussion following the
completion of the presentation made by the Kenyan delegation. The Somali delegation
requested the Kenyan delegating to cite one case that a court or a tribunal applied the
parallel of latitude as a legally accepted and widely applied principle in international
jurisprudence. The Kenyan delegation mentioned bilateral agreements between certain
African countries such as Kenya/Tanzania and Tanzania/Mozambique as examples of the
applicability of this principle, particularly in Africa. The Somali delegation responded
that the existing agreements between Kenya/Tanzania and Tanzania/Mozambique are
bilateral agreements that each country voluntarily agreed to. It further stated that no
case law exists where a court or a tribunal adopted the parallel of latitude as an
internationally accepted method in the delimitation of maritime disputes unless the
disputing parties voluntarily agree to this method in a separate agreement as in the case
of Kenya and Tanzania.
Minister Beileh asked Minister Mohamed as to how long would both countries continue
to have their delegations entangled in these heated discussions without any possible
solution. Minister Mohamed stated that although both delegations are far part, she
would like both teams to meet again and to attempt one final time to find an amicable
solution. Minister Mohamed further stated that if no agreement could be reached
between both countries, both countries might resort to international arbitration.
Minister Beileh stated that his Government would be happy to have both delegations
meet one more time to see if an amicable solution could be found but he expressed
strong doubts as he stated that the positions of both countries are far apart. Minister
Beileh remarked that both delegations can not even agree on the applicable principles
of international law that should frame their discussions and believed that an agreed
3
upon solution was difficult to contemplate given the current stalemate but agreed to
host the final round of meetings in Mogadishu on 25-26 August 2014. Both Ministers
agreed that both delegations had to finalize a draft joint report summarizing the twoday
meeting. The Ministers reviewed a draft of the joint report to be signed by both
delegations and provided some comments and thereafter departed to have a meeting in
private.
The Somali and Kenyan delegations continued, after the departure of both Ministers, to
work on the draft joint report and agreed to sign the final report in the next few days.
The Somali and Kenyan delegations proceeded to outline the issues to be discussed in
the upcoming August meetings in Mogadishu. The Somali delegation urged the Kenyan
delegation to reconsider its position on the applicability of “parallel of latitude” as an
appropriate method used in delimiting boundaries and stated that Kenya’s recognition
of the “equidistance line” as the applicable principle would enhance the possibilities of
having a more meaningful discussion in August.
The Somali delegation ended the meeting by stating that they looked forward to
welcoming the entire delegation, this time in Mogadishu as the previous two meetings
were held in Nairobi.
Annex 4
Annex 4
Annex 4
Annex 5
National Oil Corporation of Kenya, “Expression of Interest for Provision of a 3D Multi-Client
Broadband Seismic Offshore Survey in the Shallow Waters of the Lamu Offshore Basin”,
NOCK/PRC/03(1057) (25 Sept. 2015)
National Oil Corporation of Kenya
EXPRESSION OF INTEREST FOR PROVISION OF A 3D
MULTI-CLIENT BROADBAND SEISMIC OFFSHORE SURVEY
IN THE SHALLLOW WATERS OF THE LAMU OFFSHORE
BASIN
Ref:
NOCK/PRC/03(1057)
Page 1 of 6
The National Oil Corporation of Kenya (National Oil) invites Expressions of Interest
(EOI) from eligible companies to acquire a multi-client 3D broadband seismic survey
including processing over the shallow waters of the offshore Lamu basin , Kenya.
Background
National Oil Corporation of Kenya (National Oil) is a company wholly owned by the
Government of Kenya charged with the mandate to participate in all aspects of petroleum
business with a view to ensure security of supply and stability of pricing of petroleum in the
country as well as carrying out exploration activities in Kenya’s sedimentary basins.
The corporation works closely with the Ministry of Energy and Petroleum in efforts to
promote petroleum exploration activities, often by applying approaches that enhance the
quantity and quality of data in areas open for exploration licensing. An effective approach
that has proved successful in the recent past is partnership between seismic and other data
acquisition contractors and National Oil in conducting surveys on a non-exclusive and a
multi-client basis in open acreage at much lowered cost due to the shared mobilization and
demobilization costs and ultimately shared exploration risks. The current low price
environment whereby exploration spending by many companies has been significantly
reduced and the market for the utilization survey vessels is in a slump creates an ideal
opportunity to spend the next one-half years putting together a series of multi-client survey
and studies that will help de-risk the open acreage, particularly in the offshore area to
enhance its attractiveness by lowering initial capital required to de-risk the area, while
accelerating exploration programmes that could lead to development and production.
Recent drilling particularly in the Sunbird Well has shown encouraging signs of possible oil
and gas accumulation in both carbonate (reefs) and clastic depositional settings in Kenya
offshore area which is still largely unexplored.
The multi-client surveys and studies are part of the preparation of an open licensing round
tentatively scheduled for the year 2017. A formal announcement on the date from the
Ministry of Energy and Petroleum is expected soon.
During the past exploration work in the Kenya offshore area seismic surveys have been
dominated by 2D data acquisition. 3D data has been acquired in only a few blocks. The
intention of National Oil and the Ministry is to increase the amount of 3D data coverage so
as to better image drillable structures and accelerate exploration through drilling in the
earliest phases of exploration, potentially the Initial Exploration Period of any Block licensed
under the new PSC. This strategy coincides with the recent world-class successes
encountered offshore East Africa and the growing interest in the region. Kenya which has
not witnessed similar success in the offshore area is keen to attract and accelerate
exploration in the area while ensuring the cost of investment in the country are
comparatively low, fair and conducted on a competitive basis.
Thus, invitations are requested from seismic contractors to present proposals to undertake
a 3D broadband seismic survey on a multi-client basis, the detailed terms of which will be
Annex 5
National Oil Corporation of Kenya
EXPRESSION OF INTEREST FOR PROVISION OF A 3D
MULTI-CLIENT BROADBAND SEISMIC OFFSHORE SURVEY
IN THE SHALLLOW WATERS OF THE LAMU OFFSHORE
BASIN
Ref:
NOCK/PRC/03(1057)
Page 2 of 6
subject to further discussion and negotiations with the successful contractor. The area of
planned survey is shown on the attached map and the successful contractor will be granted
access to the existing data and its distribution to assist in designing and costing the survey.
The 3D acquisition and processing may include the deep water blocks held by ANADARKO
(L12 & L11A) and CAMAC (L27 & L28) and possibly L25 and L26 depending on prior
commitments being made by the licensees’.
Project Objectives
National Oil Corporation of Kenya in partnership with Ministry of Energy and Petroleum is
promoting Kenya as the next big frontier for oil and gas. In this quest National Oil seeks to
engage a competent contactor for the following:
1. Increasing the amount 3D Seismic area over the most prospective blocks previously
mapped using 2D Seismic and determining the volume of data that will be required
to cover gaps in 3D data coverage while offering a better definition of existing
prospective structure.
2. Processing the acquired 3D data and compiling data packages that can be offered for
sale to interested companies in a scheme that ensures cost recovery for the
contractor and proposes a profit sharing arrangement from the sales with National
Oil (this may be subject to further negotiations with the best bidder).
3. Supporting National Oil and the Ministry in brokering and marketing the data prior
to and after the licensing and any specialized reprocessing that may be required by
the licensees of any block.
4. A preliminary interpretation of the data to demonstrate the prospectivity of each
block and rank their relative value
5. Engaging National Oil staff in the acquisition, processing and interpretation of the 3D
data as an integral part of technology transfer and capacity building.
Design and Costing of Survey
1. The contractor will be required to provide the seismic data technology it intends to
deploy in the survey.
2. Seismic contractors will be permitted to visit National Oil to view existing data to
enable them provide a design of the survey as well as the total number of sq. km
planned or envisaged for acquisition. This will form a critical criteria in evaluating
each proposal received.
3. The contractor will be required to provide a cost of the survey based on (1 and 2)
above and which will offer a further basis for proposals for revenue share between
the contractor and National Oil.
4. The contractor will be required to propose the revenue sharing scheme.
5. A time frame for the acquisition programme will also be required and will
additionally form a criteria for evaluating proposals.
Annex 5
National Oil Corporation of Kenya
EXPRESSION OF INTEREST FOR PROVISION OF A 3D
MULTI-CLIENT BROADBAND SEISMIC OFFSHORE SURVEY
IN THE SHALLLOW WATERS OF THE LAMU OFFSHORE
BASIN
Ref:
NOCK/PRC/03(1057)
Page 3 of 6
Processing
The contractor will also be required to propose the processing sequence of the acquire
data and the duration for its completion, which shall provide sufficient time to avail the data
to through brokering and marketing.
Requirements
1. Contractors will be required to submit EOI for both seismic data acquisition and
processing.
2. Contractors should have proven experience of 3D multi-client offshore Seismic Data
Acquisition and /or processing on schedule within specific timelines.
3. Contractors are required to have sufficient personnel, equipment, management and
highly effective QA/QC procedures and organizational processes to conduct the
works as required.
4. Contractors should be able to demonstrate a full understanding of internationally
accepted Health, Safety and Environmental policies, practices and procedures while
carrying out marine seismic data acquisition.
5. Only contractors complying with these requirements and demonstrating successful
track record, listing projects, clients and provide client contacts details for reference
should respond to this EOI.
Other Requirements
In addition contractors are required to submit the following for both acquisition and
processing:
Acquisition
1. Provide the earliest date of 3D seismic crew availability mobilization.
2. Lists of similar 3D offshore seismic data acquisition work undertaken successfully in
the last five years and projects currently under execution.
3. Details of any previous experience of a similar type in Kenya.
4. Details of key personnel to be involved in the project including their bio-data
5. Management structure of the company.
6. Acquisition methodology and QA/QC procedures.
7. Detailed list and specification and age of equipment to be utilized in the survey
8. Health, Safety and Environment policies, procedures and statistics covering the last 3
years.
9. Company's financial performance documents (Audited Balance Sheets and Profit and
Loss Statements etc.) for last 3 years.
10. Details of any court proceedings against the contractor.
11. Timeline and description of project deliverables.
12. Any other relevant information.
Annex 5
National Oil Corporation of Kenya
EXPRESSION OF INTEREST FOR PROVISION OF A 3D
MULTI-CLIENT BROADBAND SEISMIC OFFSHORE SURVEY
IN THE SHALLLOW WATERS OF THE LAMU OFFSHORE
BASIN
Ref:
NOCK/PRC/03(1057)
Page 4 of 6
Processing
1. Lists of similar 3D marine seismic processing work successfully completed in the last
five years and projects currently under execution
2. Technology available to effectively attenuate marine seismic noise and merge
different 3D azimuthal data. Effective technology available to attenuate short period
multiple and handle azimuthal anisotropy. Personnel details including bio-data of key
personnel.
3. Available software and hardware details.
4. QA/QC procedures (internal and remote) details
Evaluation Criteria
The evaluation criteria below will be used to ascertain the responsiveness of the candidates
to the EOI:
No. EVALUATION CRITERIA FOR THE EOI FOR 3D MULTICLIENT
BROADBAND SEISMIC SURVEY IN THE SHALLOW
LAMU OFFSHORE BASIN
Score
1. List of similar 3D offshore seismic data acquisition work undertaken
successfully in the last 5 years and projects currently under execution
10
2. Management structure of the company 10
3. Details of key personnel to be involved in the project including their
qualifications (Resumes to be provided)
15
4. Description of the equipment, giving as a minimum the age of the
equipment and its availability
15
5. List of policies, procedures and quality assurance practices currently in
place for the execution of similar work
10
6. Health, Safety and Environment policies, procedures and statistics
covering the last 3years
10
TOTAL 70
To be considered responsive, candidates are to score a minimum of 80% of the total score
above (i.e. minimum of 56 out of 70). Those who score the passmark of 80% and above will
be invited to submit proposals and will be sent the Requests for Proposals.
Submission of the EOI
National Oil requests interested contractors who can fulfill all of the specifications listed
above to submit their EOI along with associated documents (including the details and
references stated above) to submit their EOIs as below:
Annex 5
National Oil Corporation of Kenya
EXPRESSION OF INTEREST FOR PROVISION OF A 3D
MULTI-CLIENT BROADBAND SEISMIC OFFSHORE SURVEY
IN THE SHALLLOW WATERS OF THE LAMU OFFSHORE
BASIN
Ref:
NOCK/PRC/03(1057)
Page 5 of 6
Interested candidates are to view/obtain/download more details of the Expression of
Interest (EOI) at www.nationaloil.co.ke on the tenders link or at Procurement
Department, National Oil Corporation of Kenya, AON Minet House, 5th Floor,
Mamlaka Road, off Nyerere Road, Nairobi, Kenya.
Expressions of Interest (EOI) in plain sealed envelopes clearly marked “Expression of
Interest for Provision of 3D Multi-Client Broadband Seismic Offshore Survey in
The Shallow Waters of The Lamu Offshore Basin – Ref. No.
NOCK/PRC/03(1057)” with the instructions “Do not open before 5th October 2015
at 1500hrs (East Africa Time)”, should be addressed to:
The Chief Executive Officer
National Oil Corporation of Kenya
AON Minet House, 7th Floor
Mamlaka Road, off Nyerere Road
P O Box 58567 – 00200, Nairobi
and deposited in the Tender Box located at AON Minet House, 5th Floor, Mamlaka
Road, off Nyerere Road, Nairobi between 0800hrs and 1700hrs (East Africa Time), so
as to be received on or before 5th October 2015 at 1500hrs (East Africa Time).
Late submissions shall automatically be disqualified whatever the circumstances.
Expressions of Interest will be opened soon thereafter at National Oil Head Office –
Boardroom, 5th Floor, AON Minet House, Mamlaka Road, off Nyerere Road,
Nairobi, in the presence of tenderers and/or their representatives who may wish to attend.
The EOI documents are not transferable.
For CHIEF EXECUTIVE OFFICER
Encl: Appendix 1: Map of the Oil Exploration Blocks in Kenya
Annex 5
National Oil Corporation of Kenya
EXPRESSION OF INTEREST FOR PROVISION OF A 3D
MULTI-CLIENT BROADBAND SEISMIC OFFSHORE SURVEY
IN THE SHALLLOW WATERS OF THE LAMU OFFSHORE
BASIN
Ref:
NOCK/PRC/03(1057)
Page 6 of 6
Annex 5
Annex 6
U.N. International Law Commission, “Draft Articles on the Law of Treaties” in Yearbook of
the International Law Commission 1966, Vol. II, Part II
Annex 6
A/CN ,4/SF.R..A/1966/Add,1
YEARBOOK
OF THE
INTERNATIONAL
LAW COMMISSION
1966
I VolumeIII
Documents of the second part
of the seventeenth session
and of the eighteenth session
including the reports of the Commission
to the General Assembly
UNITED NATIONS.
~~JI
Annex 6
172 Yearbook of the International Law Commission, 1966, Vol. Il
Part II
Report of the International Law Commission on the work of its eighteenth session
Geneva, 4 May - 19 July 1966
CONTENTS
Chapter Paragraphs
I. ORGANIZATION OF THE SESSION , , . , • , • , , .. , , , ..• , • , , •.•••.•. , ..• , , , •. , , ... , . , , , , .
A. Membership and attendance ................................................. .
B. Officers ................................................................... .
C. Agenda ................................................................... .
II. LAW OF TREATIES
A. Introduction
1. Summary of the Commission's proceedings ................................. .
2. Form of the draft articles ................................................. .
3. Scope of the draft articles ............................................... .
B. Recommendation of the Commission to convene an international conference on the
law of treaties ............................................................. .
C. Resolution adopted by the Commission ....................................... .
DRAIT ARTICLES ON THE LAW OF TREATIES , , , , , , , , , , , , . , . , , , ... , , ••• , , ..• , ..• , , • , ,
DRAIT ARTICLES ON THE LAW OF TREATIES WITH COMMENTARIES , ...• , , ... , , • , . , , •• , , •
Part l.-!11troduction ......................................................... .
Part II.-Conclusion and entry into force of treaties ............................... .
Section 1. Conclusion of treaties ............................................ ..
Question of participation in a treaty ............................... .
Section 2. Reservations to multilateral treaties ................................. .
Section 3. Entry into force of treaties ......................................... .
Part III.-Observance, application and i11terpretation of treaties ..................... .
Section 1. Observance of treaties ............................................ ..
Section 2. Application of treaties ............................................. .
Section 3. Interpretation of treaties ........................................... .
Section 4. Treaties and third States ........................................... .
Part IV.-Ame11dment and modification of treaties
Part V.-lnvalidity, termination and suspension of the operation of treaties ........... .
Section 1. General provisions ............................................... .
Section 2. Invalidity of treaties ............................................. .
Section 3. Termination and suspension of the operation of treaties ............... .
Section 4. Procedure ....................................................... .
Section 5. Consequences of the invalidity, termination or suspension of the operation
of a treaty ....................................................... .
Part VI.-Miscellaneous provisions ............................................. .
Part VII.-Depositaries, notifications, corrections and registration ................... .
III. SPECIAL MISSIONS •...•.••.•.....•..••••..••.•...•••....••..•••••.••••••.•••.•...•
A. Historical background ..................................................... .
B. Summary of the Commission's discussions at its eighteenth session ............... .
C. Other decision of the Commission ........................................... .
IV. OTHER DECISIONS AND CONCLUSIONS OF THE CoMMJSSION . , • , ...•.... , , .... , , .. , , , , .•
A. Organization of future work ................................................. .
B. Date and place of the nineteenth session ....................................... .
C. Co-operation with other bodies ............................................. .
D. Representation at the twenty-first session of the General Assembly ............... .
E. Seminar on International Law ............................................... .
Annex
1-8
2-3
4-6
7-8
9-38
9-35
9-22
23-27
28-35
36-37
38
39-71
39-56
57-70
71
72-84
72-74
75
76-79
80
81-84
Comments by Governments on parts I, II and III of the draft articles on the law of treaties drawn up by
Page
173
173
173
173
173
173
173
176
176
177
177
177
187
187
191
191
200
202
209
210
210
211
217
226
231
236
236
240
249
261
264
267
268
274
274
275
277
277
277
278
278
278
278
the Commission at its fourteenth, fifteenth and sixteenth sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362
Annex 6
Reports of the Commission to the General Assembly 173
CHAPTER I
Organization of the session
I. The International Law Commission, established in
pursuance of General Assembly resolution 174 (II) of
21 November 1947 and in accordance with its Statute
annexed thereto, as subsequently amended, held its eighteenth
session at the United Nations Office at Geneva
from 4 May to 19 July 1966. The Commission thus
availed itself of the possibility of extending its session
which was granted by the General Assembly at its
twentieth session in the interest of allowing the Commission
to complete as much work as possible during
the term of office of the present members. The work of
the Commission during this session is described in this
report. Chapter II of the report, on the law of treaties,
contains a description of the Commission's work on
that topic, together with seventy-five draft articles and
commentaries thereto, as finally approved by the Commission.
Chapter III, relating to special missions, contains
a description of the Commission's work on that topic.
Chapter IV relates to the programme of work and
organization of future sessions of the Commission, and
to a number of administrative and other questions.
A. MEMBERSHIP AND ATTENDANCE
2. The Commission consists of the following members:
Mr. Roberto AGO (Italy)
Mr. Gilberto AMADO (Brazil)
Mr. Milan BARTOS (Yugoslavia)
Mr. Mohammed BEDJAOUI (Algeria)
Mr. Herbert W. BRIGGS (United States of America)
Mr. Marcel CADIEUX (Canada)
Mr. Erik CASTREN (Finland)
Mr. Abdullah EL-BRIAN (United Arab Republic)
Mr. Taslim 0. ELIAS (Nigeria)
Mr. Eduardo JIMENEZ DE ARECHAGA (Uruguay)
Mr. Manfred LACHS (Poland)
Mr. LIU Chieh (China)
Mr. Antonio DE LUNA (Spain)
Mr. Radhabinod PAL (India)
Mr. Angel M. PAREDES (Ecuador)
Mr. Obed PESSOU (Togo)
Mr. Paul REUTER (France)
Mr. Shabtai ROSENNE (Israel)
Mr. Jose Maria RUDA (Argentina)
Mr. Abdul Hakim TABIBI (Afghanistan)
Mr. Senjin TSURUOKA (Japan)
Mr. Grigory I. TuNKIN (Union of Soviet Socialist
Republics)
Mr. Alfred VERDROSS (Austria)
Sir Humphrey WALDOCK (United Kingdom of Great
Britain and Northern Ireland)
Mr. Mustafa Kamil YASSEEN (Iraq)
3. Except for Mr. Mohammed Bedjaoui, Mr. Marcel
Cadieux, Mr. Taslim 0. Elias, Mr. Liu Chieh and
Mr. Radhabinod Pal, who were unable to be present,
all the members attended.
B. OFFICERS
4. At its 844th meeting, held on 4 May 1966, the Commission
elected the following officers:
Chairman: Mr. Mustafa Kamil Yasseen
First Vice-Chairman: Mr. Herbert W. Briggs
Second Vice-Chairman: Mr. Manfred Lachs
Rapporteur: Mr. Antonio de Luna
5. At its 845th meeting, held on 5 May 1966, the Commission
appointed a Drafting Committee composed as
follows:
Chairman: Mr. Herbert W. Briggs
Members: Mr. Roberto Ago; Mr. Erik Castren;
Mr. Abdullah El-Brian; Mr. Eduardo Jimenez de
Arechaga; Mr. Manfred Lachs; Mr. Antonio de Luna;
Mr. Paul Reuter; Mr. Shabtai Rosenne; Mr. Grigory
I. Tunkin; Sir Humphrey Waldock.
6. Mr. Constantin A. Stavropoulos, Legal Counsel,
attended the 878th, 879th and 880th meetings, held on
27, 28 and 29 June 1966 respectively, and represented
the Secretary-General at those meetings. Mr. Constantin
A. Baguinian, Director of the Codification Division of
the Office of Legal Affairs, represented the SecretaryGeneral
at the other meetings of the session, and acted
as Secretary to the Commission.
C. AGENDA
7. The Commission adopted an agenda for the eighteenth
session, consisting of the following items:
I. Law of treaties
2. Special missions
3. Organization of future work
4. Date and place of the nineteenth session
5. Co-operation with other bodies
6. Other business.
8. In the course of the session, the Commission held
fifty-one public meetings. In addition, the Drafting
Committee held twenty-three meetings. The Commission
considered all the items on its agenda. At the invitation
of the Legal Counsel of the United Nations and in accordance
with suggestions made in the Sixth Committee at
the twentieth session of the General Assembly, the
Commission discussed the procedural and organizational
problems involved in a possible diplomatic conference
on the law of treaties, and also the question of the
responsibilities of United Nations organs in furthering
co-operation in the development of the law of international
trade and in promoting its progressive unification
and harmonization.
CHAPTER II
Law of treaties
A. INTRODUCTION
I. Summary of the Commission's proceedings
9. At its first session in 1949, the International Law
Commission at its sixth and seventh meetings placed
the law of treaties amongst the topics listed in its report 1
1 Official Records of the General Assembly, Fourth Session,
Supplement No. JO (A/925), para. 16.
Annex 6
Reports of the Commission to the General A~_e_m_b_l::.__y ___________ 2_1_7
the question whether the case of an earlier treaty containing
obligations of an "interdependent" or "integral"
character should be subject to a special rule, the rules
generally applicable in such cases appeared to the Commission
to work out automatically as follows:
(a) As between States parties to both treaties the same
rule applies as in paragraph 3;
(b) As between a State party to both treaties and a
State party only to the earlier treaty, the earlier treaty
governs their mutual rights and obligations;
(c) As between a State party to both treaties and a
State party only to the later treaty, the later treaty
governs their mutual rights and obligations.
The rules contained in sub-paragraphs (a) and (c) are,
again, no more than an application of the general principle
that a later expression of intention is to be presumed
to prevail over an earlier one; and sub-paragraph (b)
is no more than a particular application of the rule in
article 30. These rules, the Commission noted, are the rules
applied in cases of amendment of a multilateral treaty, as
in the case of the United Nations protocols for amending
League of Nations treaties, 118 when not all the parties to
the treaty become parties to the amending agreement.
(11) The rules in paragraph 4 determine the mutual
rights and obligations of the particular parties in each
situation merely as between themselves. They do not
relieve any party to a treaty of any international responsibilities
it may incur by concluding or by applying a
treaty the provisions of which are incompatible with its
obligations towards another State under another treaty.
If the conclusion or application of the treaty constitutes
an infringement of the rights of parties to another treaty,
all the normal consequences of the breach of a treaty
follow with respect to that other treaty. The injured party
may invoke its right to terminate or suspend the operation
of the treaty under article 57 and it may equally invoke
the international responsibility of the party which has
infringed its rights. Paragraph 5 accordingly makes an
express reservation with respect to both these matters.
At the same time, it makes a reservation with respect to
the provisions of article 37 concerning inter se modification
of multilateral treaties. Those provisions lay down
the conditions under which an agreement may be made
to modify the operation of a multilateral treaty as between
some of its parties only, and nothing in paragraph 4
of the present article is to be understood as setting aside
those provisions.
(12) The Commission re-examined, in the light of the
comments of Governments, the problem whether an
earlier treaty which contains obligations of an "interdependent"
or "integral" type should constitute a special
case in which a later treaty incompatible with it should
be considered as void, at any rate if all the parties to
the later treaty were aware that they were infringing the
rights of other States under the earlier treaty. An analogous
aspect of this problem was submitted to the
Commission by the Special Rapporteur in his second
m See Resolutions of the General Assembly concerning the
Law of Treaties (document A/CN.4/154, Yearbook of the International
Law Commission, 1963, vol. 11, pp. 5-9).
report, 119 the relevant passages from which were reproduced,
for purposes of information, in paragraph (14)
of the Commission's commentary to the present article
contained in its report on the work of its sixteenth
session. 120 Without adopting any position on the detailed
considerations advanced by the Special Rapporteur, the
Commission desired in the present commentary to draw
attention to his analysis of certain aspects of the problem.
(13) Certain members of the Commission were inclined
to favour the idea of a special rule in the case of an
earlier treaty containing obligations of an "interdependent"
or "integral" character, at any rate if the parties
to the later treaty were all aware of its incompatibility
with the earlier one. The Commission, however, noted
that under the existing law the question appeared to be
left as a matter of international responsibility if a party
to a treaty of such a type afterwards concluded another
treaty derogating from it. The Commission also noted
that obligations of an "interdependent" or "integral"
character may vary widely in importance. Some, although
important in their own spheres, may deal with essentially
technical matters; others may deal with vital matters,
such as the maintenance of peace, nuclear tests or human
rigbts. It pointed out that in some cases the obligations,
by reason of their subject-matter, might be of ajus cogens
character and the case fall within the provisions of
articles 50 and 61. But the Commission felt that it should
in other cases leave the question as one of international
responsibility. At the same time, as previously mentioned,
in order to remove any impression that paragraph 4(c)
justifies the conclusion of the later treaty, the Commission
decided to reorient the formulation of the article so as
to make it refer to the priority of successive treaties
dealing with the same subject-matter rather than of treaties
having incompatible provisions. The conclusion of the
later treaty may, of course, be perfectly legitimate if it
is only a development of or addition to the earlier treaty.
Section 3: Interpretation of treaties
Article 27. 121 General rule of interpretation
1. A treaty shall 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 the light of its object and
purpose.
2. The context for the purpose of the interpretation of
a treaty shall comprise, in addition to the text, including
its preamble and annexes:
(a) Any agreement relating to the treaty which was
made between all the parties in connexion with the conclusion
of the treaty;
(b) Any instrument which was made by one or more
parties in connexion with the conclusion of the treaty and
accepted by the other parties as an instrument related to
the treaty.
119 Commentary to article 14 of that report, paras. 6-30;
Yearbook of the International Law Commission, 1963, vol. II,
pp. 54-61.
120 Yearbook of the International Law Commission, 1964, vol. II,
pp. 189-191. 121 1964 draft, article 69.
Annex 6
218 Yearbook of the International Law Commission, 1966, Vol. II
3. There shall be taken into account, together with the
context:
(a) Any subsequent agreement between the parties
regarding the interpretation of the treaty;
(b) Any subsequent practice in the application of the
treaty which establishes the understanding of the parties
regarding its interpretation;
(c) Any relevant rules of international law applicable in
the relations between the parties.
4. A special meaning shall be given to a term if it is
established that the parties so intended. 122
Article 28. 123 Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and
the circumstances of its conclusion, in order to confirm
the meaning resulting from the application of article 27,
or to determine the meaning when the interpretation according
to article 27:
(a) Leaves the meaning ambiguous or obscure; or
(b) Leads to a result which is manifestly absurd or
unreasonable.
Commentary
Introduction
(1) The utility and even the existence of rules of international
law governing the interpretation of treaties
are sometimes questioned. The first two of the Commission's
Special Rapporteurs on the law of treaties
in their private writings also expressed doubts as to
the existence in international law of any general rules
for the interpretation of treaties. Other jurists, although
they express reservations as to the obligatory character
of certain of the so-called canons of interpretation,
show less hesitation in recognizing the existence of some
general rules for the interpretation of treaties. Sir G. Fitzmaurice,
the previous Special Rapporteur on the law of
treaties, in his private writings deduced six principles
from the jurisprudence of the Permanent Court and the
International Court which he regarded as the major
principles of interpretation. In 1956, the Institute of
International Law 124 adopted a resolution in which it
formulated, if in somewhat cautious language, two
articles containing a small number of basic principles
of interpretation.
(2) Jurists also differ to some extent in their basic approach
to the interpretation of treaties according to the relative
weight which they give to:
(a) The text of the treaty as the authentic expression
of the intentions of the parties;
(b) The intentions of the parties as a subjective element
distinct from the text; and
(c) The declared or apparent objects and purposes
of the treaty.
122 1964 draft, article 71.
12s 1964 draft, article 70. 124 Annuaire de /'/nstitut de droit international, vol. 46 (1956),
p. 359.
Some place the main emphasis on the intentions of the
parties and in consequence admit a liberal recourse to
the travaux preparatoires and to other evidence of the
intentions of the contracting States as means of interpretation.
Some give great weight to the object and
purpose of the treaty and are in consequence more
ready, especially in the case of general multilateral
treaties, to admit teleological interpretations of the text
which go beyond, or even diverge from, the original
intentions of the parties as expressed in the text. The
majority, however, emphasizes the primacy of the text
as the basis for the interpretation of a treaty, while at
the same time giving a certain place to extrinsic evidence
of the intentions of the parties and to the objects and
purposes of the treaty as means of interpretation. It is
this view which is reflected in the 1956 resolution of
the Institute of International Law mentioned in the
previous paragraph.
(3) Most cases submitted to international adjudication
involve the interpretation of treaties, and the jurisprudence
of international tribunals is rich in reference
to principles and maxims of interpretation. In fact, statements
can be found in the decisions of international
tribunals to support the use of almost every principle
or maxim of which use is made in national systems of
law in the interpretation of statutes and contracts.
Treaty interpretation is, of course, equally part of the
everyday work of Foreign Ministries.
(4) Thus, it would be possible to find sufficient evidence
of recourse to principles and maxims in international
practice to justify their inclusion in a codification of the
law of treaties, if the question were simply one of their
relevance on the international plane. But the question
raised by jurists is rather as to the non-obligatory character
of many of these principles and maxims. They are,
for the most part, principles of logic and good sense
valuable only as guides to assist in appreciating the meaning
which the parties may have intended to attach to the
expressions that they employed in a document. Their
suitability for use in any given case hinges on a variety
of considerations which have first to be appreciated by
the interpreter of the document; the particular arrangement
of the words and sentences, their relation to each
other and to other parts of the document, the general
nature and subject-matter of the document, the circumstances
in which it was drawn up, etc. Even when a
possible occasion for their application may appear to
exist, their application is not automatic but depends on
the conviction of the interpreter that it is appropriate
in the particular circumstances of the case. In other
words, recourse to many of these principles is discretionary
rather than obligatory and the interpretati9n of documents
is to some extent an art, not an exact science.
(5) Any attempt to codify the conditions of the application
of those principles of interpretation whose appropriateness
in any given case depends on the particular
context and on a subjective appreciation of varying
circumstances would clearly be inadvisable. Accordingly
the Commission confined itself to trying to isolate
and codify the comparatively few general principles
which appear to constitute general rules for the inter-
Annex 6
Reports of the Commission to the General Assembly 219
pretation of treaties. Admittedly, the task of formulating
even these rules is not easy, but the Commission considered
that there were cogent reasons why it should
be attempted. First, the interpretation of treaties in good
faith and according to law is essential if the pacta sunt
servanda rule is to have any real meaning. Secondly,
having regard to the divergent opinions concerning
methods of interpretation, it seemed desirable that the
Commission should take a clear position in regard to the
role of the text in treaty interpretation. Thirdly, a number
of articles adopted by the Commission contain clauses
which distinguish between matters expressly provided
in the treaty and matters to be implied in it by reference
to the intention of the parties; and dearly, the operation
of such clauses can be fully appreciated and determined
only in the light of the means of interpretation admissible
for ascertaining the intention of the parties. In addition
the establishment of some measure of agreement in
regard to the basic rules of interpretation is important
not only for the application but also for the drafting of
treaties.
(6) Some jurists in their exposition of the principles cf
treaty interpretation distinguish between law-making
and other treaties, and it is true that the character of a
treaty may affect the question whether the application
of a particular principle, maxim or method of interpretation
is suitable in a particular case (e.g. the contra
proferentem principle or the use of travaux preparatoires).
But for the purpose of formulating the general
rules of interpretation the Commission did not consider
it necessary to make such a distinction. Nor did it consider
that the principle expressed in the maxim ut res
magis valeat quam pereat should not be included as one
of the general rules. It recognized that in certain circumstances
recourse to the principle may be appropriate and
that it has sometimes been invoked by the International
Court. In the Corfu Channel case, 126 for example, in
interpreting a Special Agreement the Court said:
"It would indeed be incompatible with the generally
accepted rules of interpretation to admit that a provision
of this sort occurring in a Special Agreement
should be devoid of purport or effect."
And it referred to a previous decision of the Permanent
Court to the same effect in the Free Zones of Upper
Savoy and the District of Gex 126 case. The Commission,
however, took the view that, in so far as the maxim ut
res magis valeat quam pereat reflects a true general rule of
interpretation, it is embodied in article 27, paragraph I,
which requires that a treaty shall be interpreted in good
faith in accordance with the ordinary meaning to be given
to its terms in the context of the treaty and in the light
of its object and purpose. When a treaty is open to two
interpretations one of which does and the other does not
enable the treaty to have appropriate effects, good faith
and the objects and purposes of the treaty demand that
the former interpretation should be adopted. Properly
12& l.C.J. Reports 1949, p. 24.
12e P.C.I.J. (1929), Series A, No. 22, p. 13; cf. Acquisition of
Polish Nationality, P.C.I.J. (1923), Series B, No. 7, pp. 16 and 17,
and Exchange of Greek and Turkish Populations, P.C.l.J. (1925),
Series B, No. 10, p. 25.
limited and applied, the maxim does not call for an
''extensive" or "liberal" interpretation in the sense of an
interpretation going beyond what is expressed or necessarily
to be implied in the terms of the treaty. Accordingly,
it did not seem to the Commission that there was any need
to include a separate provision on this point. Moreover,
to do so might encourage attempts to extend the meaning
of treaties illegitimately on the basis of the so-called
principle of "effective interpretation". The Court, which
has by no means adopted a narrow view of the extent
to which it is proper to imply terms in treaties, has
nevertheless insisted that there are definite limits to the
use which may be made of the principle ut res magis
valeat for this purpose. In the Interpretation of Peace
Treaties Advisory Opinion 127 it said:
"The principle of interpretation expressed in the
maxim: ut res magis valeat quam pereat, often referred
to as the rule of effectiveness, cannot justify the Court
in attributing to the provisions for the settlement of
disputes in the Peace Treaties a meaning which ...
would be contrary to their letter and spirit."
And it emphasized that to adopt an interpretation which
ran counter to the clear meaning of the terms would not
be to interpret but to revise the treaty.
(7) At its session in 1964 the Commission provisionally
adopted three articles (69-71) dealing generally with
the interpretation of treaties, and two articles dealing
with treaties having plurilingual texts. The Commission's
attempt to isolate and codify the basic rules of interpretation
was generally approved by Governments
in their comments and the rules contained in its draft
appeared largely to be endorsed by them. However, in
the light of the comments of Governments and as part
of its normal process of tightening and streamlining the
draft, the Commission has reduced these five articles to
three by incorporating the then article 71 (terms having
a special meaning) in the then article 69 (general rule of
interpretation). and by amalgamating the then articles 72
and 73 (plurilingual treaties) into a single article. Apart
from these changes the rules now proposed by the Commission
do not differ materially in their general structure
and substance from those transmitted to Governments
in 1964.
(8) Having regard to certain observations in the comments
of Governments the Commission considered it desirable
to underline its concept of the relation between the various
elements of interpretation in article 27 and the relation
between these elements and those in article 28. Those
observations appeared to indicate a possible fear that the
successive paragraphs of article 27 might be taken as
laying down a hierarchical order for the application of
the various elements of interpretation in the article. The
Commission, by heading the article "General rule of
interpretation" in the singular and by underlining the
connexion between paragraphs I and 2 and again between
paragraph 3 and the two previous paragraphs, intended
to indicate that the application of the means of interpretation
in the article would be a single combined
operation. All the various elements, as they were present
m I.C.J. Reports 1950, p. 229.
Annex 6
220 Yearbook of the International Law Commission, 1966, Vol. Il
in any given case, would be thrown into the crucible, and
their interaction would give the legally relevant interpretation.
Thus, article 27 is entitled "General rule of
interpretation" in the singular, not "General rules" in
the plural, because the Commission desired to emphasize
that the process of interpretation is a unity and that the
provisions of the article form a single, closely integrated
rule. In the same way the word "context" in the opening
phrase of paragraph 2 is designed to link all the elements
of interpretation mentioned in this paragraph to the word
"context" in the first paragraph and thereby incorporate
them in the provision contained in that paragraph.
Equally, the opening phrase of paragraph 3 "There shall be
taken into account together with the context" is designed
to incorporate in paragraph I the elements of interpretation
set out in paragraph 3. If the provision in
paragraph 4 ( article 71 of the 1964 draft) is of a different
character, the word "special" serves to indicate its relation
to the rule in paragraph I.
(9) The Commission re-examined the structure of article
27 in the light of the comments of Governments and
considered other possible alternatives. It concluded,
however, that subject to transferring the provision
regarding rules of international law from paragraph I to
paragraph 3 and adding the former article 71 as paragraph
4, the general structure of the article, as provisionally
adopted in 1964, should be retained. It considered
that the article, when read as a whole, cannot
properly be regarded as laying down a legal hierarchy
of norms for the interpretation of treaties. The elements
of interpretation in the article have in the nature of
things to be arranged in some order. But it was considerations
of logic, not any obligatory legal hierarchy,
which guided the Commission in arriving at the arrangement
proposed in the article. Once it is established-and
on this point the Commission was unanimous-that the
starting point of interpretation is the meaning of the
text, logic indicates that "the ordinary meaning to be
given to the terms of the treaty in their context and in
the light of its object and purpose" should be the first
element to be mentioned. Similarly, logic suggests that
the elements comprised in the "context" should be the
next to be mentioned since they form part of or are
intimately related to the text. Again, it is only logic
which suggests that the elements in paragraph 3-a subsequent
agreement regarding the interpretation, subsequent
practice establishing the understanding of the
parties regarding the interpretation and relevant rules
of international law applicable in the relations between
the parties-should follow and not precede the elements
in the previous paragraphs. The logical consideration
which suggests this is that these elements are extrinsic
to the text. But these three elements are all of an obligatory
character and by their very nature could not be considered
to be norms of interpretation in any way inferior
to those which precede them.
(10) The Commission also re-examined in the light of
the comments of Governments the relation between
the further (supplementary) means of interpretation
mentioned in former article 70 and those contained in
former article 69, giving special attention to the role
of preparatory work as an element of interpretation.
Although a few Governments indicated a preference for
allowing a larger role to preparatory work and even
for including it in the present article, the majority appeared
to be in agreement with the Commission's treatment
of the matter. Certain members of the Commission
also favoured a system which would give a more automatic
role to preparatory work and other supplementary
means in the process of interpretation. But the Commission
considered that the relationship established between
the "supplementary" elements of interpretation in present
article 28 and those in present article 27-which accords
with the jurisprudence of the International Court on the
matter-should be retained. The elements of interpretation
in article 27 all relate to the agreement between the
parties at the time when or after it received authentic
expression in the text. Ex hypothesi this is not the case
with preparatory work which does not, in consequence,
have the same authentic character as an element of interpretation,
however valuable it may sometimes be in
throwing light on the expression of the agreement in
the text. Moreover, it is beyond question that the records
of treaty negotiations are in many cases incomplete or
misleading, so that considerable discretion has to be
exercised in determining their value as an element of
interpretation. Accordingly, the Commission was of the
opinion that the distinction made in articles 27 and 28
between authentic and supplementary means of interpretation
is both justified and desirable. At the same
time, it pointed out that the provisions of article 28 by
no means have the effect of drawing a rigid line between
the "supplementary" means of interpretation and the
means included in article 27. The fact that article 28
admits recourse to the supplementary means for the purpose
of "confirming" the meaning resulting from the
application of article 27 establishes a general link between
the two articles and maintains the unity of the process
of interpretation.
Commentary to article 27
(11) The article as already indicated is based on the
view that the text must be presumed to be the authentic
expression of the intentions of the parties; and that, in
consequence, the starting point of interpretation is the
elucidation of the meaning of the text, not an investigation
ab initio into the intentions of the parties. The Institute
oflnternational Law adopted this-the textual-approach
to treaty interpretation. The objections to giving too
large a place to the intentions of the parties as an independent
basis of interpretation find expression in the proceedings
of the Institute. The textual approach, on the
other hand, commends itself by the fact that, as one
authority 128 has put it, "le texte signe est, sauf de rares
exceptions, la seule et la plus recente expression de la
volonte commune des parties". Moreover, the jurisprudence
of the International Court contains many pronouncements
from which it is permissible to conclude that the
textual approach to treaty interpretation is regarded by
it as established law. In particular, the Court has more
than once stressed that it is not the function of inter-
128 A11n11aire de l'I11stit11t de droit international, vol. 44, tome 1
(1952), p. 199.
Annex 6
Reports of the Commission to the General Assembly 221
pretation to revise treaties or to read into them what
they do not, expressly or by implication, contain. 129
(12) Paragraph J contains three separate principles. The
first-interpretation in good faith-flows directly from
the rule pacta sunt servanda. The second principle is the
very essence of the textual approach: the parties are to
be presumed to have that intention which appears from
the ordinary meaning of the terms used by them. The
third principle is one both of common sense and good
faith; the ordinary meaning of a term is not to be determined
in the abstract but in the context of the treaty
and in the light of its object and purpose. These principles
have repeatedly been affirmed by the Court. The present
Court in its Advisory Opinion on the Competence of the
General Assembly for the Admission of a State to the
United Nations said: 130
·'The Court considers it necessary to say that the
first duty of a tribunal which is called upon to interpret
and apply the provisions of a treaty, is to endeavour
to give effect to them in their natural and ordinary
meaning in the context in which they occur. If the
relevant words in their natural and ordinary meaning
make sense in their context, that is an end of the
matter."
And the Permanent Court in an early Advisory Opinion 131
stressed that the context is not merely the article or section
of the treaty in which the term occurs, but the treaty as
a whole:
.. In considering the question before the Court upon
the language of the Treaty, it is obvious that the
Treaty must be read as a whole, and th~t its meaning
is not to be determined merely upon particular phrases
which, if detached from the context, may be interpreted
in more than one sense."
Again the Court has more than once had recourse to
the statement of the object and purpose of the treaty
in the preamble in order to interpret a particular provision.132
(13) Paragraph 2 seeks to define what. is compri~ed in
the "context" for the purposes of the mterpretatmn of
the treaty. That the preamble forms part of a treaty ~or
purposes of interpretation is to.o well settled to :eqmre
comment as is also the case with documents which are
specifically made annexes to the treaty. The question is
how far other documents connected with the treaty are
to be regarded as forming part of the "context" for the
purposes of interpretation. Paragraph 2 proposes that
two classes of documents should be so regarded: (a) any
agreement relating to the treaty which was ma~e between
all the parties in connexion with the conclusion of the
treaty; and (b) any instrument which was made in connexion
with the conclusion of the treaty and accepted by
the other parties as an instrument related to the treaty.
ia& E.g., in the United States Nationals in Morocco case, I.C.J.
Reports 1952, pp. 196 and 199.
1ao J.C.J. Reports 1950, p. 8.
1s1 Competence of the ILO to Regulate Agricultural Labour,
P.C.l.J. (1922), Series B, Nos. 2 and 3, p. 23.
1112 E.g., United States Nationals in Morocco case, I.C.J. Reports
1952, pp. 183, 184, 197 and 198.
The principle on which this provision is based i~ that a
unilateral document cannot be regarded as formmg part
of the "context" within the meaning of article 27 unless
not only was it made in connexion with the conclusion
of the treaty but its relation to the tr~aty was accepted
in the same manner by the other parties. On the other
hand the fact that these two classes of documents are
recognized in paragraph 2 as forming part of the "context"
does not mean that they are necessarily to be considered
as an integral part of the treaty. Whether they are an
actual part of the treaty depends on the intention of the
parties in each case. iss What is proposed in paragraph 2
is that, for purposes of interpreting the treaty, these
categories of documents should not be treated as mere
evidence to which recourse may be had for the purpose
of resolving an ambiguity or obscurity, but as part of
the context for the purpose of arriving at the ordinary
meaning of the terms of the treaty.
(14) Paragraph 3(a) specifies as a further authentic
element of interpretation to be taken into account together
with the context any subsequent agreement between
the parties regarding the interpretation of the treaty.
A question of fact may some~mes arise as. t~ whether an understanding reached dunng the negotiations concerning
the meaning of a provision was or was not
intended to constitute an agreed basis for its interpretation.
134 But it is well settled that when an agreement
as to the interpretation of a provision is established as
having been reached before or at the time of the c~>nclusion
of the treaty, it is to be regarded as formmg
part of the treaty. Thus,. ~ the Ambatielos cas: 135 the
Court said: " ... the prov1S1ons of the Declaration are
in the nature of an interpretation clause, and, as such,
should be regarded as an integral part of the Treaty ... ".
Similarly, an agreement as to the i~terpretation of a
provision reached after the conclusion of the tre~ty
represents an authentic interpretation by the parti_es
which must be read into the treaty for purposes of its
interpretation.
(15) Paragraph 3(b) then similarly spec!1'1es as an element
to be taken into account together with the context:
"any subsequent practice in the application of the treaty
which establishes the understanding of the parties regarding
its interpretation". The importance of such subsequent
practice in the application of the treaty,. as an el.em~nt
of interpretation, is obvious; for it constlt~tes obJect1ve
evidence of the understanding of the parties as to the
meaning of the treaty. 130 Recourse to it as a means of
133 Amhatielcs case (Preliminary Objection), J.C.!. Reports 1952,
pp. 43 and 75. 1:w. Cf. the Conditions of Admission of a State to Membership in
the United Nations (Article 4 of the Charter) case, l.C.J. Reports
1948, p. 63.
135 (Preliminary Objection), l.C.J. Reports 1952, p. 44.
1ae In the Russian Indemnity case the Permanent Court of Arbi·
tration said: " ... rexecution des engage_ments est, entre Etats, com1~; entre particuliers, le plus sur commenta1re du sens de ces engagements ,
Reports of Jntematio11al Abitral Awards, vol. XI, p. 433. (" •.. the
fulfilment of engagements between States, as between individuals,
is the surest commentary on the effectiveness of those engagements".
English translation from J. B. Scott, The Hague Court Reports
(1916), p. 302.)
Annex 6
222 Yearbook of the International Law Commission, 1966, Vol. II
interpretation is well-established in the jurisprudence of
international tribunals. In its opinion on the Competence
of the /LO to Regulate Agricultural Labour 137 the Permanent
Court said:
"If there were any ambiguity, the Court might, for
the purpose of arriving at the true meaning, consider
the action which has been taken under the Treaty."
At the same time, the Court 138 referred to subsequent
practice in confirmation of the meaning which it had
deduced from the text and which it considered to be
unambiguous. Similarly in the Corfu Channel case, 139 the
International Court said:
"The subsequent attitude of the Parties shows it
has not been their intention, by entering into the
Special Agreement, to preclude the Court from fixing
the amount of the compensation."
The value of subsequent practice varies according as it
shows the common understanding of the parties as to
the meaning of the terms. The Commission considered
that subsequent practice establishing the understanding
of the parties regarding the interpretation of a treaty
should be included in paragraph 3 as an authentic means
of interpretation alongside interpretative agreements. The
text provisionally adopted in 1964 spoke of a practice
which "establishes the understanding of all the parties".
By omitting the word "all" the Commission did not
intend to change the rule. It considered that the phrase
"the understanding of the parties" necessarily means
"the parties as a whole". It omitted the word "all" merely
to avoid any possible misconception that every party
must individually have engaged in the practice where it
suffices that it should have accepted the practice.
(16) Paragraph 3(c) adds as a third element to be taken
into account together with the context: "any relevant
rules of international law applicable in the relations
between the parties''. This element, as previously indicated,
appeared in paragraph 1 of the text provisionally
adopted in 1964, which stated that, inter a/ia, the ordinary
meaning to be given to the terms of a treaty is to be
determined "in the light of the general rules of international
law in force at the time of its conclusion". The
words in italics were a reflection of the general principle
that a juridical fact must be appreciated in the light
of the law contemporary with it. When this provision
was discussed at the sixteenth session 140 some members
suggested that it failed to deal with the problem of the
effect of an evolution of the law on the interpretation of
legal terms in a treaty and was therefore inadequate.
Some Governments in their comments endorsed the provision,
others criticized it from varying points of view.
On re-examining the provision, the Commission considered
that the formula used in the 1964 text was unsatisfactory,
since it covered only partially the question of
137 P.C.I.J. (1922), Series B, No. 2, p. 39; see also Interpretation
of 1rticle 3, paragraph 2, of the Treaty of Lausanne, P.C.I.J. (1925),
Ser\es B, No. 12, p. 24; the Brazilian Loans case, P.C.I.J. (1929),
Senes A, No. 21, p. 119. 188 Ibid., pp. 40 and 41.
189 I.C.J. Reports 1949, p. 25. 140 Paragraph (11) of the commentary to articles 69-71; Yearbook
of the International Law Commission, 1964, vol. II, pp. 202 and 203.
the so-called intertemporal law in its application to the
interpretation of treaties and might, in consequence, lead
to misunderstanding. It also considered that, in any
event, the relevance of rules of international law for the
interpretation of treaties in any given case was dependent
on the intentions of the parties, and that to attempt to
formulate a rule covering comprehensively the temporal
element would present difficulties. It further considered
that correct application of the temporal element would
normally be indicated by interpretation of the term in
good faith. The Commission therefore concluded that
it should omit the temporal element and revise the
reference to international law so as to make it read
"any relevant rules of international law applicable in the
relations between the parties". At the same time, it
decided to transfer this element of interpretation to paragraph
3 as being an element which is extrinsic both to
the text and to the "context" as defined in paragraph 2.
(17) Paragraph 4 incorporates in article 27 the substance
of what was article 71 of the 1964 text. It provides for
the somewhat exceptional case where, notwithstanding
the apparent meaning of a term in its context, it is
established that the parties intended it to have a special
meaning. Some members doubted the need to include
a special provision on this point, although they recognized
that parties to a treaty not infrequently employ a term
with a technical or other special meaning. They pointed
out that technical or special use of the term normally
appears from the context and the technical or special
meaning becomes, as it were, the ordinary meaning in
the particular context. Other members, while not disputing
that the technical or special meaning of the term may
often appear from the context, considered that there was
a certain utility in laying down a specific rule on the point,
if only to emphasize that the burden of proof lies on the
party invoking the special meaning of the term. They
pointed out that the exception had been referred to more
than once by the Court. In the Legal Status of Eastern
Greenland case, for example, the Permanent Court had
said:
"The geographical meaning of the word 'Greenland',
i.e. the name which is habitually used in the maps
to denominate the whole island, must be regarded as
the ordinary meaning of the word. If it is alleged by
one of the Parties that some unusual or exceptional
meaning is to be attributed to it, it lies on that Party
to establish its contention." 141
Commentary to article 28
(18) There are many dicta in the jurisprudence of international
tribunals stating that where the ordinary meaning
of the words is clear and makes sense in the context,
there is no occasion to have recourse to other means of
interpretation. Many of these statements relate to the
use of travaux preparatoires. The passage from the
Court's Opinion on the Competence of the General
Assembly for the Admission of a State to the United
Nations cited in paragraph (12) above is one example,
m P.C.I.J. (1933), Series A/B, No. 53, p. 49.
Annex 6
Reports of the Commission to the General Assembly 223
and another is its earlier Opinion on Admission of a State
to the United Nations: 142
"The Court considers that the text is sufficiently
clear; consequently it does not feel that it should
deviate from the consistent practice of the Permanent
Court of International Justice, according to which
there is no occasion to resort to preparatory work if
the text of a convention is sufficiently clear in itself."
As already indicated, the Commission's approach to
treaty interpretation was on the basis that the text of
the treaty must be presumed to be the authentic expression
of the intentions of the parties, and that the elucidation
of the meaning of the text rather than an investigation
ab initio of the supposed intentions of the parties
constitutes the object of interpretation. It formulated
article 27 on that basis, making the ordinary meaning
of the terms, the context of the treaty, its object and
purpose, and the general rules of international law,
together with authentic interpretations by the parties,
the primary criteria for interpreting a treaty. Nevertheless,
it felt that it would be unrealistic and inappropriate
to lay down in the draft articles that no recourse
whatever may be had to extrinsic means of interpretation,
such as travaux preparatoires, until after the application
of the rules contained in article 27 has disclosed
no clear or reasonable meaning. In practice, international
tribunals, as well as States and international organizations,
have recourse to subsidiary means of interpretation,
more especially travaux preparatoires, for the purpose of
confirming the meaning that appears to result from an
interpretation of the treaty in accordance with article 27.
The Court itself has on numerous occasions referred to
the travaux preparatoires for the purpose of confirming
its conclusions as to the "ordinary" meaning of the text.
For example, in its opinion on the Interpretation of the
Convention of 1919 concerning Employment of Women
during the Night 143 the Permanent Court said:
"The preparatory work thus confirms the conclusion
reached on a study of the text of the Convention that
there is no good reason for interpreting Article 3
otherwise than in accordance with the natural meaning
of the words."
(19) Accordingly, the Commission decided to specify
in article 28 that recourse to further means of interpretation,
including preparatory work, is permissible for
the purpose of confirming the meaning resulting from the
application of article 27 and for the purpose of determining
the meaning when the interpretation according
to article 27:
(a) Leaves the meaning ambiguous or obscure; or
(b) Leads to a result which is manifestly absurd or
unreasonable.
The word "supplementary" emphasizes that article 28
does not provide for alternative, autonomous, means of
u2 J.C.J. Reports /948, p. 63.
us P.C.J.J. (1932), Series A/B, No. 50, p. 380; cf. the Serbian
and Brazilian Loans cases, P.C.I.J. (1929), Series A, Nos. 20-21,
p. 30.
interpretation but only for means to aid an interpretation
governed by the principles contained in article 27. Subparagraph
(a) admits the use of these means for the purpose
of deciding the meaning in cases where there is no
clear meaning. Sub-paragraph (b) does the same in cases
where interpretation according to article 27 gives a
meaning which is "manifestly absurd or unreasonable".
The Court has recognized 144 this exception to the rule
that the ordinary meaning of the terms must prevail.
On the other hand, the comparative rarity of the cases
in which it has done so suggest that it regards this exception
as limited to cases where the absurd or unreasonable
character of the "ordinary" meaning is manifest. The
Commission considered that the exception must be
strictly limited, if it is not to weaken unduly the authority
of the ordinary meaning of the terms. Sub-paragraph (b)
is accordingly confined to cases where interpretation under
article 27 gives a result which is manifestly absurd or
unreasonable.
(20) The Commission did not think that anything would
be gained by trying to define travaux preparatoires;
indeed, to do so might only lead to the possible exclusion
of relevant evidence. It also considered whether, in regard
to multilateral treaties, the article should authorize the
use of travaux preparatoires only as between States which
took part in the negotiations or, alternatively, only if
they have been published. In the Territorial Jurisdiction
of the International Commission of the River Oder case 145
the Permanent Court excluded from its consideration the
travaux preparatoires of certain provisions of the Treaty
of Versailles on the ground that three of the States before
the Court had not participated in the conference which
prepared the Treaty of Versailles; and in making this
ruling it expressly refused to differentiate between published
and unpublished documents. The Commission
doubted, however, whether this ruling reflects the actual
practice regarding the use of travaux preparatoires in the
case of multilateral treaties that are open to accession
by States which did not attend the conference at which
they were drawn up. Moreover, the principle behind the
ruling did not seem to be so compelling as might appear
from the language of the Court in that case. A State
acceding to a treaty in the drafting of which it did not
participate is perfectly entitled to request to see the
travaux preparatoires, if it wishes, before acceding. Nor
did the rule seem likely to be practically convenient,
having regard to the many important multilateral treaties
open generally to accession. These considerations apply
to unpublished, but accessible, travaux preparatoires as
well as to published ones; and in the case of bilateral
treaties or "closed" treaties between small groups of
States, unpublished travaux preparatoires will usually be
in the hands of all the parties. Accordingly, the Commission
decided that it should not include any special provision
in the article regarding the use of travaux preparatoires
in the case of multilateral treaties.
144 E.g., Polish Postal Service in Danzig, P.C.I.J. (1925), Series B,
No. 11, p. 39; Competence of the General Assembly for the Admission
of a State to the United Nations, J.C.J. Reports 1950, p. 8.
m P.C.J.J. (1929), Series A, No. 23.
Annex 7
U.N. Convention on the Law of the Sea, Eleventh Meeting of States Parties, Decision regarding
the date of commencement of the ten-year period for making submissions to the Commission on
the Limits of the Continental Shelf set out in article 4 of Annex II to the U.N. Convention on the
Law of the Sea, U.N. Doc. SPLOS/72 (29 May 2001)
United Nations Convention on the Law of the Sea SPLOS/72
Meeting of States Parties Distr.: General
29 May 2001
Original: English
01-38764 (E) 310501
*0138764*
Meeting of States Parties
Eleventh Meeting
New York, 14-18 May 2001
Decision regarding the date of commencement of the ten-year
period for making submissions to the Commission on the Limits
of the Continental Shelf set out in article 4 of Annex II to the
United Nations Convention on the Law of the Sea
The States Parties to the United Nations Convention on the Law of the Sea,
Recalling the responsibility of all States Parties to fulfil in good faith the
obligations assumed by them under the Convention,
Recalling also that the members of the Commission on the Limits of the
Continental Shelf were elected in March 1997 and that the Commission commenced
its work as from 16 June 1997,
Recalling further that the first task before the Commission was to complete its
organizational work,
Noting that it was only after the adoption by the Commission of its Scientific
and Technical Guidelines on 13 May 1999 that States had before them the basic
documents concerning submissions in accordance with article 76, paragraph 8, of
the Convention,
Considering the problems encountered by States Parties, in particular
developing countries, including small island developing States, in complying with
the time limit set out in article 4 of Annex II to the Convention,
Decides that:
(a) In the case of a State Party for which the Convention entered into force
before 13 May 1999, it is understood that the ten-year time period referred to in
article 4 of Annex II to the Convention shall be taken to have commenced on
13 May 1999;
(b) The general issue of the ability of States, particularly developing States,
to fulfil the requirements of article 4 of Annex II to the Convention be kept under
review.
United Nations Convention on the Law of the Sea SPLOS/72
Meeting of States Parties Distr.: General
29 May 2001
Original: English
01-38764 (E) 310501
*0138764*
Meeting of States Parties
Eleventh Meeting
New York, 14-18 May 2001
Decision regarding the date of commencement of the ten-year
period for making submissions to the Commission on the Limits
of the Continental Shelf set out in article 4 of Annex II to the
United Nations Convention on the Law of the Sea
The States Parties to the United Nations Convention on the Law of the Sea,
Recalling the responsibility of all States Parties to fulfil in good faith the
obligations assumed by them under the Convention,
Recalling also that the members of the Commission on the Limits of the
Continental Shelf were elected in March 1997 and that the Commission commenced
its work as from 16 June 1997,
Recalling further that the first task before the Commission was to complete its
organizational work,
Noting that it was only after the adoption by the Commission of its Scientific
and Technical Guidelines on 13 May 1999 that States had before them the basic
documents concerning submissions in accordance with article 76, paragraph 8, of
the Convention,
Considering the problems encountered by States Parties, in particular
developing countries, including small island developing States, in complying with
the time limit set out in article 4 of Annex II to the Convention,
Decides that:
(a) In the case of a State Party for which the Convention entered into force
before 13 May 1999, it is understood that the ten-year time period referred to in
article 4 of Annex II to the Convention shall be taken to have commenced on
13 May 1999;
(b) The general issue of the ability of States, particularly developing States,
to fulfil the requirements of article 4 of Annex II to the Convention be kept under
review.
Annex 7
Annex 8
U.N. Security Council, Resolution 1744 (2007): Adopted by the Security Council at its 5633rd
meeting, on 20 February 2007, U.N. Doc. S/RES/1744 (21 Feb. 2007)
United Nations S/RES/1744 (2007)*
Security Council Distr.: General
21 February 2007
07-24531* (E)
*0724531*
Resolution 1744 (2007)
Adopted by the Security Council at its 5633rd meeting,
on 20 February 2007
The Security Council,
Recalling its previous resolutions concerning the situation in Somalia, in
particular resolution 733 (1992), resolution 1356 (2001), resolution 1425 (2002) and
resolution 1725 (2006), the statements of its President, in particular those of 13 July
2006 (S/PRST/2006/31) and 22 December 2006 (S/PRST/2006/59),
Reaffirming its respect for the sovereignty, territorial integrity, political
independence and unity of Somalia,
Reiterating its commitment to a comprehensive and lasting settlement of the
situation in Somalia through the Transitional Federal Charter, and stressing the
importance of broad-based and representative institutions reached through an allinclusive
political process, as envisaged in the Transitional Federal Charter,
Reiterating its strong support for the Special Representative of the SecretaryGeneral,
Mr. François Fall,
Reiterating its appreciation of the efforts of the African Union, the League of
Arab States and the Intergovernmental Authority on Development to promote peace,
stability and reconciliation in Somalia, and welcoming their continued engagement
in this regard,
Taking note of the communiqué of the African Union Peace and Security
Council of 19 January 2007, which states that the African Union shall deploy for a
period of six months a mission to Somalia (AMISOM), aimed essentially at
contributing to the initial stabilization phase in Somalia, and that the mission will
evolve into a United Nations operation that will support the long-term stabilization
and post-conflict restoration of Somalia,
Welcoming the African Union’s intention to establish a mission in Somalia
and underlining the urgency of the development,
Welcoming the decision of Ethiopia to withdraw its troops from Somalia,
taking note of the fact that Ethiopia has already started withdrawing its troops, and
underlining that the deployment of AMISOM will help avoid a security vacuum and
create the conditions for full withdrawal and the lifting of emergency security
measures currently in place,
* Reissued for technical reasons.
United Nations S/RES/1744 (2007)*
Security Council Distr.: General
21 February 2007
07-24531* (E)
*0724531*
Resolution 1744 (2007)
Adopted by the Security Council at its 5633rd meeting,
on 20 February 2007
The Security Council,
Recalling its previous resolutions concerning the situation in Somalia, in
particular resolution 733 (1992), resolution 1356 (2001), resolution 1425 (2002) and
resolution 1725 (2006), the statements of its President, in particular those of 13 July
2006 (S/PRST/2006/31) and 22 December 2006 (S/PRST/2006/59),
Reaffirming its respect for the sovereignty, territorial integrity, political
independence and unity of Somalia,
Reiterating its commitment to a comprehensive and lasting settlement of the
situation in Somalia through the Transitional Federal Charter, and stressing the
importance of broad-based and representative institutions reached through an allinclusive
political process, as envisaged in the Transitional Federal Charter,
Reiterating its strong support for the Special Representative of the SecretaryGeneral,
Mr. François Fall,
Reiterating its appreciation of the efforts of the African Union, the League of
Arab States and the Intergovernmental Authority on Development to promote peace,
stability and reconciliation in Somalia, and welcoming their continued engagement
in this regard,
Taking note of the communiqué of the African Union Peace and Security
Council of 19 January 2007, which states that the African Union shall deploy for a
period of six months a mission to Somalia (AMISOM), aimed essentially at
contributing to the initial stabilization phase in Somalia, and that the mission will
evolve into a United Nations operation that will support the long-term stabilization
and post-conflict restoration of Somalia,
Welcoming the African Union’s intention to establish a mission in Somalia
and underlining the urgency of the development,
Welcoming the decision of Ethiopia to withdraw its troops from Somalia,
taking note of the fact that Ethiopia has already started withdrawing its troops, and
underlining that the deployment of AMISOM will help avoid a security vacuum and
create the conditions for full withdrawal and the lifting of emergency security
measures currently in place,
* Reissued for technical reasons.
Annex 8
S/RES/1744 (2007)
2 07-24531
Reiterating its support for Somalia’s Transitional Federal Institutions,
underlining the importance of maintaining and providing stability and security
throughout Somalia, and underscoring in this regard the importance of disarmament,
demobilization and reintegration of militia and ex-combatants in Somalia,
Condemning all acts of violence and extremism inside Somalia, deploring the
recent bombings in Mogadishu, and expressing its concern regarding the continued
violence inside Somalia,
Determining that the situation in Somalia continues to constitute a threat to
international peace and security in the region,
Acting under Chapter VII of the Charter of the United Nations,
1. Stresses the need for broad-based and representative institutions reached
through an all-inclusive political process in Somalia, as envisaged in the
Transitional Federal Charter, in order to consolidate stability, peace and
reconciliation in the country and ensure that international assistance is as effective
as possible;
2. Welcomes the initiative of the Transitional Federal Institutions to pursue
an inclusive intra-Somali political process, particularly the announcement made by
President Abdullahi Yusuf Ahmed at the African Union Summit of his intention to
convene urgently a national reconciliation congress involving all stakeholders
including political leaders, clan leaders, religious leaders, and representatives of
civil society, looks forward to the sustained and all-inclusive political process that is
needed as a result of that commitment and that will help pave the way to democratic
elections at the local, regional and national levels as set out in Somalia’s
Transitional Federal Charter, and encourages those in the Transitional Federal
Government and the other Transitional Federal Institutions to unite behind efforts to
promote such an inclusive dialogue;
3. Requests the Secretary-General to assist the Transitional Federal
Institutions with the national reconciliation congress, and, more widely, promoting
an ongoing all-inclusive political process, working together with the African Union,
the League of Arab States and the Intergovernmental Authority on Development,
requests the Secretary-General to report back to the Security Council within sixty
(60) days of adoption of this resolution on progress made by the Transitional
Federal Institutions in pursuing an all-inclusive political process and reconciliation,
and reiterates its intention to consider taking measures against those who seek to
prevent or block a peaceful political process, threaten the Transitional Federal
Institutions by force, or take action that undermines stability in Somalia or the
region;
4. Decides to authorize member States of the African Union to establish for
a period of six months a mission in Somalia, which shall be authorized to take all
necessary measures as appropriate to carry out the following mandate:
(a) To support dialogue and reconciliation in Somalia by assisting with the
free movement, safe passage and protection of all those involved with the process
referred to in paragraphs 1, 2 and 3;
(b) To provide, as appropriate, protection to the Transitional Federal
Institutions to help them carry out their functions of government, and security for
key infrastructure;
S/RES/1744 (2007)
07-24531 3
(c) To assist, within its capabilities, and in coordination with other parties,
with implementation of the National Security and Stabilization Plan, in particular
the effective re-establishment and training of all-inclusive Somali security forces;
(d) To contribute, as may be requested and within capabilities, to the creation
of the necessary security conditions for the provision of humanitarian assistance;
(e) To protect its personnel, facilities, installations, equipment and mission,
and to ensure the security and freedom of movement of its personnel;
5. Urges member States of the African Union to contribute to the above
mission in order to create the conditions for the withdrawal of all other foreign
forces from Somalia;
6. Decides that the measures imposed by paragraph 5 of resolution 733
(1992) and further elaborated in paragraphs 1 and 2 of resolution 1425 (2002) shall
not apply to:
(a) Supplies of weapons and military equipment, technical training and
assistance intended solely for the support of or use by the mission referred to in
paragraph 4 above; or
(b) Such supplies and technical assistance by States intended solely for the
purpose of helping develop security sector institutions, consistent with the political
process set out in paragraphs 1, 2 and 3 above and in the absence of a negative
decision by the Committee established pursuant to resolution 751 (1992) within five
working days of receiving the notification described in paragraph 7 below;
7. Decides that States providing supplies or technical assistance in
accordance with paragraph 6 (b) above shall notify the Committee established
pursuant to resolution 751 (1992) in advance and on a case-by-case basis;
8. Urges Member States to provide personnel, equipment and services if
required, for the successful deployment of AMISOM, and encourages Member
States to provide financial resources for AMISOM;
9. Requests the Secretary-General to send a Technical Assessment Mission
to the African Union headquarters and Somalia as soon as possible to report on the
political and security situation and the possibility of a UN Peacekeeping Operation
following the AU’s deployment, and to report to the Security Council within sixty
(60) days of the adoption of this resolution with recommendations covering the
UN’s further engagement in support of peace and security in Somalia, as well as
further recommendations on stabilization and reconstruction;
10. Emphasizes the continued contribution made to Somalia’s peace and
security by the arms embargo, demands that all Member States, in particular those
of the region, fully comply with it, and reiterates its intention to consider urgently
ways to strengthen its effectiveness, including through targeted measures in support
of the arms embargo;
11. Expresses its deep concern over the humanitarian situation in Somalia,
demands that all parties in Somalia ensure complete and unhindered humanitarian
access, as well as providing guarantees for the safety and security of humanitarian
aid workers in Somalia, and welcomes and encourages the ongoing relief efforts in
Somalia;
Annex 8
S/RES/1744 (2007)
2 07-24531
Reiterating its support for Somalia’s Transitional Federal Institutions,
underlining the importance of maintaining and providing stability and security
throughout Somalia, and underscoring in this regard the importance of disarmament,
demobilization and reintegration of militia and ex-combatants in Somalia,
Condemning all acts of violence and extremism inside Somalia, deploring the
recent bombings in Mogadishu, and expressing its concern regarding the continued
violence inside Somalia,
Determining that the situation in Somalia continues to constitute a threat to
international peace and security in the region,
Acting under Chapter VII of the Charter of the United Nations,
1. Stresses the need for broad-based and representative institutions reached
through an all-inclusive political process in Somalia, as envisaged in the
Transitional Federal Charter, in order to consolidate stability, peace and
reconciliation in the country and ensure that international assistance is as effective
as possible;
2. Welcomes the initiative of the Transitional Federal Institutions to pursue
an inclusive intra-Somali political process, particularly the announcement made by
President Abdullahi Yusuf Ahmed at the African Union Summit of his intention to
convene urgently a national reconciliation congress involving all stakeholders
including political leaders, clan leaders, religious leaders, and representatives of
civil society, looks forward to the sustained and all-inclusive political process that is
needed as a result of that commitment and that will help pave the way to democratic
elections at the local, regional and national levels as set out in Somalia’s
Transitional Federal Charter, and encourages those in the Transitional Federal
Government and the other Transitional Federal Institutions to unite behind efforts to
promote such an inclusive dialogue;
3. Requests the Secretary-General to assist the Transitional Federal
Institutions with the national reconciliation congress, and, more widely, promoting
an ongoing all-inclusive political process, working together with the African Union,
the League of Arab States and the Intergovernmental Authority on Development,
requests the Secretary-General to report back to the Security Council within sixty
(60) days of adoption of this resolution on progress made by the Transitional
Federal Institutions in pursuing an all-inclusive political process and reconciliation,
and reiterates its intention to consider taking measures against those who seek to
prevent or block a peaceful political process, threaten the Transitional Federal
Institutions by force, or take action that undermines stability in Somalia or the
region;
4. Decides to authorize member States of the African Union to establish for
a period of six months a mission in Somalia, which shall be authorized to take all
necessary measures as appropriate to carry out the following mandate:
(a) To support dialogue and reconciliation in Somalia by assisting with the
free movement, safe passage and protection of all those involved with the process
referred to in paragraphs 1, 2 and 3;
(b) To provide, as appropriate, protection to the Transitional Federal
Institutions to help them carry out their functions of government, and security for
key infrastructure;
S/RES/1744 (2007)
07-24531 3
(c) To assist, within its capabilities, and in coordination with other parties,
with implementation of the National Security and Stabilization Plan, in particular
the effective re-establishment and training of all-inclusive Somali security forces;
(d) To contribute, as may be requested and within capabilities, to the creation
of the necessary security conditions for the provision of humanitarian assistance;
(e) To protect its personnel, facilities, installations, equipment and mission,
and to ensure the security and freedom of movement of its personnel;
5. Urges member States of the African Union to contribute to the above
mission in order to create the conditions for the withdrawal of all other foreign
forces from Somalia;
6. Decides that the measures imposed by paragraph 5 of resolution 733
(1992) and further elaborated in paragraphs 1 and 2 of resolution 1425 (2002) shall
not apply to:
(a) Supplies of weapons and military equipment, technical training and
assistance intended solely for the support of or use by the mission referred to in
paragraph 4 above; or
(b) Such supplies and technical assistance by States intended solely for the
purpose of helping develop security sector institutions, consistent with the political
process set out in paragraphs 1, 2 and 3 above and in the absence of a negative
decision by the Committee established pursuant to resolution 751 (1992) within five
working days of receiving the notification described in paragraph 7 below;
7. Decides that States providing supplies or technical assistance in
accordance with paragraph 6 (b) above shall notify the Committee established
pursuant to resolution 751 (1992) in advance and on a case-by-case basis;
8. Urges Member States to provide personnel, equipment and services if
required, for the successful deployment of AMISOM, and encourages Member
States to provide financial resources for AMISOM;
9. Requests the Secretary-General to send a Technical Assessment Mission
to the African Union headquarters and Somalia as soon as possible to report on the
political and security situation and the possibility of a UN Peacekeeping Operation
following the AU’s deployment, and to report to the Security Council within sixty
(60) days of the adoption of this resolution with recommendations covering the
UN’s further engagement in support of peace and security in Somalia, as well as
further recommendations on stabilization and reconstruction;
10. Emphasizes the continued contribution made to Somalia’s peace and
security by the arms embargo, demands that all Member States, in particular those
of the region, fully comply with it, and reiterates its intention to consider urgently
ways to strengthen its effectiveness, including through targeted measures in support
of the arms embargo;
11. Expresses its deep concern over the humanitarian situation in Somalia,
demands that all parties in Somalia ensure complete and unhindered humanitarian
access, as well as providing guarantees for the safety and security of humanitarian
aid workers in Somalia, and welcomes and encourages the ongoing relief efforts in
Somalia;
Annex 8
S/RES/1744 (2007)
4 07-24531
12. Decides that, having regard to the establishment of AMISOM, the
measures contained in paragraphs 3 to 7 of resolution 1725 (2006) shall no longer
apply;
13. Decides to remain actively seized of the matter.
Annex 8
Annex 9
African Union Border Programme, Declaration on the African Union Border Programme and
its Implementation Modalities as Adopted by the Conference of African Ministers in Charge of
Border Issues held in Addis Ababa, Ethiopia (7 June 2007)
DECLARATION ON THE AFRICAN UNION BORDER
PROGRAMME AND ITS IMPLEMENTATION
MODALITIES AS ADOPTED BY THE CONFERENCE
OF AFRICAN MINISTERS IN CHARGE OF BORDER
ISSUES HELD IN ADDIS ABABA (ETHIOPIA),
ON 7 JUNE 2007
AFRICAN UNION
Annex 9
DECLARATION ON THE AFRICAN
UNION BORDER PROGRAMME AND ITS
IMPLEMENTATION MODALITIES AS ADOPTED
BY THE CONFERENCE OF AFRICAN
MINISTERS IN CHARGE OF BORDER ISSUES
HELD IN ADDIS ABABA (ETHIOPIA),
ON 7 JUNE 2007
PREAMBLE
1. We, the Ministers in charge of Border Issues in
the Member States of the African Union, meeting in
Addis Ababa, Ethiopia, on 7 June 2007 to deliberate
on the African Union Border Programme and its
implementation modalities:
a) Inspired by the conviction that the achievement
of greater unity and solidarity among African countries
and peoples require the reduction of the burden
of borders separating African States;
b) Convinced that, by transcending the borders as
barriers and promoting them as bridges linking one
State to another, Africa can boost the on-going efforts
to integrate the continent, strengthen its unity,
and promote peace, security and stability through
the structural prevention of conflicts;
Annex 9
c) Guided by:
(i) the principle of the respect of borders existing
on achievement of national independence, as enshrined
in the Charter of the Organization of African
Unity (OAU), Resolution AHG/Res.16(I) on border
disputes between African States, adopted by the 1st
Ordinary Session of the Assembly of Heads of State
and Government of the OAU, held in Cairo, Egypt,
in July 1964, and article 4 (b) of the Constitutive Act
of the African Union,
(ii) the principle of negotiated settlement of border
disputes, as provided for notably in Resolution CM/
Res.1069(XLIV) on peace and security in Africa
through negotiated settlement of boundary disputes,
adopted by the 44th Ordinary Session of the Council
of Ministers of the OAU, held in Addis Ababa, in July
1986, as well as in the relevant provisions of the
Protocol relating to the establishment of the Peace
and Security Council of the African Union,
(iii) the shared commitment to pursue the work
of border delimitation and demarcation as factors
for peace, security and economic and social
progress, as affirmed notably in Resolution CM/
Res.1069(XLIV), as well as in the Memorandum of
Understanding on Security, Stability, Development
and Cooperation in Africa (CSSDCA), adopted by
the Assembly of Heads of State and Government,
Annex 9
held in Durban (South Africa), in July 2002, which
provides for the delimitation and demarcation of African
boundaries by 2012, where such an exercise
has not yet taken place,
(iv) the will to accelerate and deepen the political
and socio-economic integration of the continent
and provide it with a popular base, as stipulated in
the Constitutive Act, and
(v) the decision adopted by the 8th Ordinary Session
of the Assembly of Heads of State and Government
of the African Union, held in Addis Ababa in January
2007, encouraging the Commission to pursue
its efforts at structural prevention of conflicts, especially
through the implementation of the Border
Programme of the African Union;
d) Having considered the report of the meeting
of government experts [BP/EXP/3(II)], held in Addis
Ababa from 4 to 5 June 2007, and on the basis
of the Summary Note on the African Union Border
Programme and its Implementation Modalities [BP/
EXP/2(II)].
HAVE AGREED AS FOLLOWS:
On the justification of the AU Border Programme
Annex 9
2. We underscore the relevance of the African Union
Border Programme, based on the need:
a) to address the persistence of the border delimitation
and demarcation issue: Subject to an inventory
to be undertaken, it is estimated that less than a
quarter of African borders have been delimited and
demarcated. This situation is fraught with risks, as
the lack of delimitation and demarcation gives rise
to ‘undefined zones’, within which the application
of national sovereignty poses problems, and constitutes
a real obstacle to the deepening of the integration
process;
b) to address cross-border criminal activities;
c) to consolidate the gains made in the regional
integration process, as demonstrated by the existence
of the Regional Economic Communities
(RECs) and of numerous large-scale cooperation
initiatives; and
d) to facilitate the development of cross-border integration
dynamics, which are sustained by local
stakeholders.
3. We stress the need to put in place a new form of
pragmatic border management, aimed at promoting
peace, security and stability, but also at facilitating
Annex 9
the integration process and sustainable development
in Africa.
On the objectives of the AU Border Programme
4. We request the Commission of the African Union
to coordinate the implementation of this Programme
whose overall goal is the structural prevention of
conflicts and the promotion of regional and continental
integration and, more specifically:
a) the facilitation of, and support to, delimitation and
demarcation of African boundaries where such exercise
has not yet taken place;
b) the reinforcement of the integration process,
within the framework of the RECs and other largescale
cooperation initiatives;
c) the development, within the framework of the
RECs and other regional integration initiatives, of
local initiative cross-border cooperation; and
d) capacity building in the area of border management,
including the development of special education
and research programmes.
Annex 9
On the implementation principles of the AU Border
Programme
5. We note that the implementation of the AU Border
Programme will be effected at several levels
– national, regional and continental, and that the
responsibility of each of these levels should be determined
on the basis of the principle of subsidiarity
and respect of the sovereignty of States.
a) Border delimitation and demarcation
(i) The delimitation and demarcation of boundaries
depend primarily on the sovereign decision of the
States. They must take the necessary steps to facilitate
the process of delimitation and demarcation
of African borders, including maritime boundaries,
where such an exercise has not yet taken place,
by respecting, as much as possible, the time-limit
set in the Solemn Declaration on the CSSDCA. We
encourage the States to undertake and pursue bilateral
negotiations on all problems relating to the
delimitation and demarcation of their borders, including
those pertaining to the rights of the affected
populations, with a view to finding appropriate solutions
to these problems.
(ii) The Regional Economic Communities and the
African Union should assist the States in mobilizing
Annex 9
the necessary resources and expertise, including
by facilitating exchange of experiences and promoting
inexpensive border delimitation and demarcation
practices.
(iii) The Commission of the African Union should
conduct a comprehensive inventory of the state of
African boundaries and coordinate the efforts of
the Regional Economic Communities, and launch
a large-scale initiative aimed at sensitizing the international
community on the need to mobilize
the required resources and any other necessary
support. On their part, the former colonial powers
should submit all information in their possession regarding
the delimitation and demarcation of African
borders.
b) Local cross-border cooperation
(i) The local stakeholders should be the direct initiators
of cross-border cooperation under the auspices
of the States.
(ii) The States should, with the assistance of the African
Union, facilitate local initiatives and mandate
the Regional Economic Communities to implement
regional support programmes for cross-border cooperation.
Annex 9
(iii) The Regional Economic Communities should
provide the legal framework necessary for the formalization
of cross-border cooperation and establish
regional funds for financing such cooperation.
(iv) The Commission of the African Union should
take the necessary steps to ensure that cross-border
cooperation is included in the major international
initiatives launched in favour of the continent, as
well as play a coordination role and facilitate the exchange
of information and good practices between
the Regional Economic Communities.
c) Capacity building
The African Union Border Programme should, on
the basis of close coordination between the different
levels concerned, carry out an inventory of African
institutions that offer training in this domain, explore
avenues for collaboration with relevant training centres
outside Africa, and, on the basis of the above,
design a capacity building programme in the area of
border management.
On partnership and resource mobilization
6. We request the Commission of the African Union
to coordinate and implement the Border Programme
on the basis of an inclusive governance inAnnex
9
volving the member States, the Regional Economic
Communities, parliamentarians, locally elected representatives
and civil society, as well as the European
border movement, particularly the Association
of European Border Regions, the United Nations
and other African Union partners having experience
in cross-border cooperation.
On the initial measures for launching the Border
Programme and the follow-up of this Declaration
7. We request the Commission of the African Union
to take the following initial measures:
a) launching of a Pan-African survey of borders,
through a questionnaire to be sent to all member
States, in order to facilitate the delimitation and demarcation
of African borders;
b) identification of pilot regions or initiatives for the
rapid development of regional support programmes
on cross-border cooperation, as well as support for
the establishment of regional funds for financing local
cross-border cooperation;
c) working out modalities for cooperation with other
regions of the world to benefit from their experiences
and to build the necessary partnerships;
Annex 9
d) initiating an assessment with regard to capacity
building;
e) initiating the preparation of a continental legal instrument
on cross-border cooperation; and
f) launching a partnership and resource mobilization
process for the implementation of the AU Border
Programme.
8. We recommend to institutionalize the Conference
of African Ministers in charge of Border Issues,
which should be held on a regular basis.
9. We request the Chairperson of the Commission
of the African Union, as soon as the present Declaration
is endorsed by the Executive Council, to take
the necessary steps for its implementation, including
the enhancement of the capacity of the Conflict
Management Division of the Peace and Security
Department of the Commission, and to report regularly
to the relevant organs of the African Union on
the status of implementation.
Annex 9
DECISION ON THE CONFERENCE OF AFRICAN
MINISTERS IN CHARGE OF BORDER ISSUES
HELD IN ADDIS ABABA, ON 7 JUNE 2007
The Executive Council:
1. TAKES NOTE of the Report of the Conference of
African Ministers in charge of Border Issues held in
Addis Ababa, Ethiopia, on 7 June 2007;
2. ENDORSES the Declaration on the African Union
Border Programme and its implementation modalities
as adopted by the Ministerial Conference;
3. REQUESTS the Chairperson of the Commission
and Member States to take all appropriate measures
to implement the Declaration and to submit
regular reports thereon to the policy organs of the
African Union.
Annex 9
CONTACT
African Union Border Programme
(AUBP) AU Commission, Addis Ababa,
Ethiopia
Tel. (251-11) 371 6577
Fax (251-11) 551 9371
E-mail:[email protected]
Annex 9
AFRICAN UNION
June 2008
Annex 9
Annex 10
U.N. General Assembly, Sixty-Fourth Session, Thirtieth Plenary Meeting, Agenda Item 72:
Report of the International Court of Justice, U.N. Doc. A/64/PV.30 (29 Oct. 2009)
United Nations A/64/PV.30
General Assembly
Sixty-fourth session
30th plenary meeting
Thursday, 29 October 2009, 3 p.m.
New York
Official Records
This record contains the text of speeches delivered in English and of the interpretation of
speeches delivered in the other languages. Corrections should be submitted to the original
languages only. They should be incorporated in a copy of the record and sent under the signature
of a member of the delegation concerned to the Chief of the Verbatim Reporting Service, room
U-506. Corrections will be issued after the end of the session in a consolidated corrigendum.
09-58351 (E)
*0958351*
President: Mr. Ali Abdussalam Treki . . . . . . . . . . . . . . . . . . . . . . . . . . . (Libyan Arab Jamahiriya)
The meeting was called to order at 3.20 p.m.
Agenda item 72
Report of the International Court of Justice
Report of the International Court of Justice
(A/64/4)
Report of the Secretary-General (A/64/308)
The President (spoke in Arabic): May I take it
that the General Assembly takes note of the report of
the International Court of Justice for the period
1 August 2008 to 31 July 2009?
It was so decided.
The President (spoke in Arabic): In connection
with this item, the Assembly also has before it a report
of the Secretary-General on the Secretary-General’s
Trust Fund to Assist States in the Settlement of
Disputes through the International Court of Justice,
which has been circulated in document A/64/308.
It is now my pleasure to give the floor to
Mr. Hisashi Owada, President of the International
Court of Justice.
Mr. Owada: Before I turn to the report of the
International Court of Justice (ICJ), I wish on behalf of
the Court that I represent to convey our deepest
sympathy and condolences to the families of the five
United Nations staff members who were killed in the
recent shocking and shameless raid by terrorists in
Afghanistan. I join the Secretary-General and the
President of the General Assembly in condemning all
threats and acts of violence against humanitarian
personnel and United Nations personnel. The
International Court of Justice is engaged in the
promotion of the rule of law in the international
community and it is important to reaffirm the need to
hold accountable those who are responsible for such
acts of atrocity.
It is an honour and a privilege for me to address
the General Assembly for the first time as President of
the International Court of Justice on the report of the
International Court of Justice for the period from
1 August 2008 to 31 July 2009 (A/64/4).
I take this opportunity to congratulate you,
Mr. Treki, on your election as President of the General
Assembly at its sixty-fourth session and to wish you
every success in that distinguished office.
Over the course of the last decades, the trust and
respect of the international community for the
activities of the Court as the principal judicial organ of
the United Nations has been growing. This growth is
reflected in the increased number and broadened
subject matter of the cases brought before the Court by
Members of the United Nations. The past year was no
exception.
To give the Assembly a schematic view of the
judicial activities of the Court over the period under
review: the Court had more than 16 cases on its docket
and rendered two judgments on the merits — one
judgment in a request for interpretation and one
judgment on preliminary objections — and two orders
on requests for the indication of provisional measures.
United Nations A/64/PV.30
General Assembly
Sixty-fourth session
30th plenary meeting
Thursday, 29 October 2009, 3 p.m.
New York
Official Records
This record contains the text of speeches delivered in English and of the interpretation of
speeches delivered in the other languages. Corrections should be submitted to the original
languages only. They should be incorporated in a copy of the record and sent under the signature
of a member of the delegation concerned to the Chief of the Verbatim Reporting Service, room
U-506. Corrections will be issued after the end of the session in a consolidated corrigendum.
09-58351 (E)
*0958351*
President: Mr. Ali Abdussalam Treki . . . . . . . . . . . . . . . . . . . . . . . . . . . (Libyan Arab Jamahiriya)
The meeting was called to order at 3.20 p.m.
Agenda item 72
Report of the International Court of Justice
Report of the International Court of Justice
(A/64/4)
Report of the Secretary-General (A/64/308)
The President (spoke in Arabic): May I take it
that the General Assembly takes note of the report of
the International Court of Justice for the period
1 August 2008 to 31 July 2009?
It was so decided.
The President (spoke in Arabic): In connection
with this item, the Assembly also has before it a report
of the Secretary-General on the Secretary-General’s
Trust Fund to Assist States in the Settlement of
Disputes through the International Court of Justice,
which has been circulated in document A/64/308.
It is now my pleasure to give the floor to
Mr. Hisashi Owada, President of the International
Court of Justice.
Mr. Owada: Before I turn to the report of the
International Court of Justice (ICJ), I wish on behalf of
the Court that I represent to convey our deepest
sympathy and condolences to the families of the five
United Nations staff members who were killed in the
recent shocking and shameless raid by terrorists in
Afghanistan. I join the Secretary-General and the
President of the General Assembly in condemning all
threats and acts of violence against humanitarian
personnel and United Nations personnel. The
International Court of Justice is engaged in the
promotion of the rule of law in the international
community and it is important to reaffirm the need to
hold accountable those who are responsible for such
acts of atrocity.
It is an honour and a privilege for me to address
the General Assembly for the first time as President of
the International Court of Justice on the report of the
International Court of Justice for the period from
1 August 2008 to 31 July 2009 (A/64/4).
I take this opportunity to congratulate you,
Mr. Treki, on your election as President of the General
Assembly at its sixty-fourth session and to wish you
every success in that distinguished office.
Over the course of the last decades, the trust and
respect of the international community for the
activities of the Court as the principal judicial organ of
the United Nations has been growing. This growth is
reflected in the increased number and broadened
subject matter of the cases brought before the Court by
Members of the United Nations. The past year was no
exception.
To give the Assembly a schematic view of the
judicial activities of the Court over the period under
review: the Court had more than 16 cases on its docket
and rendered two judgments on the merits — one
judgment in a request for interpretation and one
judgment on preliminary objections — and two orders
on requests for the indication of provisional measures.
Annex 10
A/64/PV.30
09-58351 15
adequate resources to discharge its role effectively and
efficiently.
In conclusion, Singapore has and will continue to
place great emphasis on the rule of law. My delegation
will continue to support the work of the Court and to
monitor with great interest every decision of the Court.
We wish the Court every success in the coming year.
Mr. Repetto (Chile) (spoke in Spanish): At the
outset, I should like to express my thanks to the
President of the International Court of Justice, Judge
Hisashi Owada, for his detailed presentation of the
Court’s report on the period from 1 August 2008 to
31 July 2009 (A/64/4).
My country recognizes the important work
undertaken by the International Court of Justice as the
principal judicial organ of the United Nations and its
role under the Charter in the peaceful resolution of
disputes and advisory matters. My country believes
that its work makes an ongoing contribution to the
construction and strengthening of a multilateral system
that promotes an international legal order based on
respect for the rule of law, which contributes to the
maintenance of international peace and security.
As an expression of my Government’s
recognition of the important functions of the
International Court of Justice, Chile has accepted the
jurisdiction of the Court to resolve all disputes relating
to the interpretation and application of the many
multilateral treaties to which it is party. We also
believe that the advisory role of the International Court
of Justice is of particular relevance, as demonstrated by
its many opinions on various spheres of international
law. Our country shares the view that the Court should
be granted the necessary means and material and
human resources to effectively undertake its growing
workload.
We should also like to commend the efforts of the
International Court of Justice to publicize its work
through modern methods that are broad and accessible
to the international public. International law is
strengthened by such efforts, and we express our firm
support for continued funding to the Court to ensure
that it has sufficient resources for administration and so
that it can continue publicizing its work effectively
both through its yearbook and by electronic means. My
country also appeals to the International Court of
Justice to issue Spanish-language versions of its
judgments.
In relation to the case before the International
Court of Justice to which Chile has been summoned,
my Government affirms that it will set out its position
on that topic before the Court at the appropriate time.
Let me conclude by reiterating our appreciation
for the work of the Court and its invaluable
contribution to the development of and compliance
with international law.
Mr. Muita (Kenya): I would like at the outset to
join previous speakers in commending you, Madam
Vice-President, for the excellent manner in which you
are guiding our deliberations.
I would also like to take this opportunity to thank
Judge Rosalyn Higgins for her successful tenure and to
congratulate Judge Hisashi Owada on his election as
President of the International Court of Justice and for
his very comprehensive report. I wish to reiterate
Kenya’s support.
Kenya has consistently supported the
International Court of Justice and its international
adjudication mechanisms. We highly value the Court’s
contribution to the development of international law
and its important work in the judicial settlement of
international disputes. The high number and scope of
cases submitted to the Court for judicial settlement,
highlighted in the report, and the number of parties that
have submitted cases are testimony of the Court’s
universality as the main judicial organ of the United
Nations. We therefore urge Member States to actively
utilize the Court for settling any emerging international
disputes.
The steps the Court has taken to expedite the
global administration of justice are encouraging. The
determination of cases by summary procedure at the
request of parties and the ongoing review of the
Court’s procedures and working methods are all
positive developments.
My delegation welcomes the presentations of the
Court’s Registrar and the Information Department on
the activities of the Court to a broad-based audience.
Equally significant is the work of the Publication
Division in disseminating the Court’s decisions and
other documents. We believe all those efforts will
contribute immensely to creating greater awareness of
the work of the Court.
As we are all aware, in this century the
International Court of Justice is facing new and
A/64/PV.30
16 09-58351
challenging developments that are emerging from areas
which have previously not been of concern to
international jurisdiction. That change has been
brought on by increasing global interdependence.
However, considering the number of years it has taken
us to reach our current position, and taking into
account the fact that the development of international
law is by nature a process, Kenya is confident that the
Court and parties will be able to address the issue of
the role of national jurisdiction in the context of the
implementation of international norms.
Finally, my delegation urges all parties to engage
positively in the law-making process in international
law. It is only by doing so that all our voices can be
heard, thereby ensuring the legitimacy and universality
of international law and institutions. It is important that
we support and utilize the adjudication mechanisms of
the International Court of Justice.
Mr. Sher Bahadur Khan (Pakistan): I wish to
thank Judge Owada, President of the International
Court of Justice, for his excellent report on the work of
the Court over the past year.
The ever increasing globalization and
interdependence of our societies constantly remind us
that justice and the rule of law are keys to an orderly
international society. They are critical to the realization
of all human rights and the noble aspirations of peace,
sovereign equality of States and justice. The
International Court of Justice, being the principal
judicial organ of the United Nations, provides the best
platform to Member States and the United Nations
organs for this endeavour.
According to the latest report of the Court
(A/64/4), 192 States are party to its Statute, but only
66 States have accepted compulsory jurisdiction of the
Court. Pakistan is one of those 66 countries.
The United Nations Charter recognizes that
settlement of international disputes by peaceful means
and in conformity with the principle of justice and
international law is one of the basic purposes of the
United Nations. Under Chapter VI, the Charter offers
vast possibilities for the United Nations and its organs
to play an important role in the pacific settlement of
disputes and in conflict prevention.
Article 36 of the Charter gives the role of the
Court in the settlement of disputes. The Court’s
advisory opinions and jurisdiction, in accordance with
Chapter IV of its Statute, covers consultations by the
General Assembly and the Security Council on legal
questions arising within the scope of their activities. In
addition, some 300 bilateral or multilateral treaties
provide for the Court to have jurisdiction in the
resolution of disputes arising from their application
and interpretation. States may also submit a specific
dispute to the Court by way of special agreement. The
Court also enjoys jurisdiction in forum prorogatum
situations.
Yet these possibilities remain grossly underutilized.
We strongly believe that better utilization of
the Court for the peaceful settlement of disputes and
conflict prevention can serve as the basis for long-term
peaceful coexistence in the international community.
The Court plays a valuable role in its handling of
cases related to its primary jurisdiction. We are happy
to note that the number of cases decided by the Court
in the last few years has substantially increased, due to
the efficient handling of the cases brought before it.
However, problems come from States that are reluctant
to accept the Court’s jurisdiction in dispute settlement
due to political considerations. We hope that with time
even those reluctant today will accept the Court’s
jurisdiction for the peaceful settlement for disputes and
conflict prevention.
In cases of non-compliance with the judgment of
the Court, Article 94, paragraph 2, of the Charter sets
out a procedure to address such situations. The
Secretary-General, through his good offices and upon
request of the party or parties concerned, should play
an ever more active role in facilitating and securing the
due implementation of the judgments.
We have noted with appreciation that the Court
has been regularly and systematically re-examining its
ongoing proceedings and working methods. The
Court’s efforts to enhance its productivity, especially
through regular meetings devoted to strategic planning
of its work, deserve our appreciation. We also note that
the Court has set for itself a particularly demanding
schedule of hearings and deliberations and has cleared
its case backlog. We appreciate the Court’s assurance
to Member States that oral proceedings on cases can
now be started in a timely manner, immediately after
the completion of the written exchanges.
We believe that the Court should have at its
disposal all the resources necessary to perform the
tasks assigned to it. The General Assembly should
Annex 10
A/64/PV.30
09-58351 15
adequate resources to discharge its role effectively and
efficiently.
In conclusion, Singapore has and will continue to
place great emphasis on the rule of law. My delegation
will continue to support the work of the Court and to
monitor with great interest every decision of the Court.
We wish the Court every success in the coming year.
Mr. Repetto (Chile) (spoke in Spanish): At the
outset, I should like to express my thanks to the
President of the International Court of Justice, Judge
Hisashi Owada, for his detailed presentation of the
Court’s report on the period from 1 August 2008 to
31 July 2009 (A/64/4).
My country recognizes the important work
undertaken by the International Court of Justice as the
principal judicial organ of the United Nations and its
role under the Charter in the peaceful resolution of
disputes and advisory matters. My country believes
that its work makes an ongoing contribution to the
construction and strengthening of a multilateral system
that promotes an international legal order based on
respect for the rule of law, which contributes to the
maintenance of international peace and security.
As an expression of my Government’s
recognition of the important functions of the
International Court of Justice, Chile has accepted the
jurisdiction of the Court to resolve all disputes relating
to the interpretation and application of the many
multilateral treaties to which it is party. We also
believe that the advisory role of the International Court
of Justice is of particular relevance, as demonstrated by
its many opinions on various spheres of international
law. Our country shares the view that the Court should
be granted the necessary means and material and
human resources to effectively undertake its growing
workload.
We should also like to commend the efforts of the
International Court of Justice to publicize its work
through modern methods that are broad and accessible
to the international public. International law is
strengthened by such efforts, and we express our firm
support for continued funding to the Court to ensure
that it has sufficient resources for administration and so
that it can continue publicizing its work effectively
both through its yearbook and by electronic means. My
country also appeals to the International Court of
Justice to issue Spanish-language versions of its
judgments.
In relation to the case before the International
Court of Justice to which Chile has been summoned,
my Government affirms that it will set out its position
on that topic before the Court at the appropriate time.
Let me conclude by reiterating our appreciation
for the work of the Court and its invaluable
contribution to the development of and compliance
with international law.
Mr. Muita (Kenya): I would like at the outset to
join previous speakers in commending you, Madam
Vice-President, for the excellent manner in which you
are guiding our deliberations.
I would also like to take this opportunity to thank
Judge Rosalyn Higgins for her successful tenure and to
congratulate Judge Hisashi Owada on his election as
President of the International Court of Justice and for
his very comprehensive report. I wish to reiterate
Kenya’s support.
Kenya has consistently supported the
International Court of Justice and its international
adjudication mechanisms. We highly value the Court’s
contribution to the development of international law
and its important work in the judicial settlement of
international disputes. The high number and scope of
cases submitted to the Court for judicial settlement,
highlighted in the report, and the number of parties that
have submitted cases are testimony of the Court’s
universality as the main judicial organ of the United
Nations. We therefore urge Member States to actively
utilize the Court for settling any emerging international
disputes.
The steps the Court has taken to expedite the
global administration of justice are encouraging. The
determination of cases by summary procedure at the
request of parties and the ongoing review of the
Court’s procedures and working methods are all
positive developments.
My delegation welcomes the presentations of the
Court’s Registrar and the Information Department on
the activities of the Court to a broad-based audience.
Equally significant is the work of the Publication
Division in disseminating the Court’s decisions and
other documents. We believe all those efforts will
contribute immensely to creating greater awareness of
the work of the Court.
As we are all aware, in this century the
International Court of Justice is facing new and
A/64/PV.30
16 09-58351
challenging developments that are emerging from areas
which have previously not been of concern to
international jurisdiction. That change has been
brought on by increasing global interdependence.
However, considering the number of years it has taken
us to reach our current position, and taking into
account the fact that the development of international
law is by nature a process, Kenya is confident that the
Court and parties will be able to address the issue of
the role of national jurisdiction in the context of the
implementation of international norms.
Finally, my delegation urges all parties to engage
positively in the law-making process in international
law. It is only by doing so that all our voices can be
heard, thereby ensuring the legitimacy and universality
of international law and institutions. It is important that
we support and utilize the adjudication mechanisms of
the International Court of Justice.
Mr. Sher Bahadur Khan (Pakistan): I wish to
thank Judge Owada, President of the International
Court of Justice, for his excellent report on the work of
the Court over the past year.
The ever increasing globalization and
interdependence of our societies constantly remind us
that justice and the rule of law are keys to an orderly
international society. They are critical to the realization
of all human rights and the noble aspirations of peace,
sovereign equality of States and justice. The
International Court of Justice, being the principal
judicial organ of the United Nations, provides the best
platform to Member States and the United Nations
organs for this endeavour.
According to the latest report of the Court
(A/64/4), 192 States are party to its Statute, but only
66 States have accepted compulsory jurisdiction of the
Court. Pakistan is one of those 66 countries.
The United Nations Charter recognizes that
settlement of international disputes by peaceful means
and in conformity with the principle of justice and
international law is one of the basic purposes of the
United Nations. Under Chapter VI, the Charter offers
vast possibilities for the United Nations and its organs
to play an important role in the pacific settlement of
disputes and in conflict prevention.
Article 36 of the Charter gives the role of the
Court in the settlement of disputes. The Court’s
advisory opinions and jurisdiction, in accordance with
Chapter IV of its Statute, covers consultations by the
General Assembly and the Security Council on legal
questions arising within the scope of their activities. In
addition, some 300 bilateral or multilateral treaties
provide for the Court to have jurisdiction in the
resolution of disputes arising from their application
and interpretation. States may also submit a specific
dispute to the Court by way of special agreement. The
Court also enjoys jurisdiction in forum prorogatum
situations.
Yet these possibilities remain grossly underutilized.
We strongly believe that better utilization of
the Court for the peaceful settlement of disputes and
conflict prevention can serve as the basis for long-term
peaceful coexistence in the international community.
The Court plays a valuable role in its handling of
cases related to its primary jurisdiction. We are happy
to note that the number of cases decided by the Court
in the last few years has substantially increased, due to
the efficient handling of the cases brought before it.
However, problems come from States that are reluctant
to accept the Court’s jurisdiction in dispute settlement
due to political considerations. We hope that with time
even those reluctant today will accept the Court’s
jurisdiction for the peaceful settlement for disputes and
conflict prevention.
In cases of non-compliance with the judgment of
the Court, Article 94, paragraph 2, of the Charter sets
out a procedure to address such situations. The
Secretary-General, through his good offices and upon
request of the party or parties concerned, should play
an ever more active role in facilitating and securing the
due implementation of the judgments.
We have noted with appreciation that the Court
has been regularly and systematically re-examining its
ongoing proceedings and working methods. The
Court’s efforts to enhance its productivity, especially
through regular meetings devoted to strategic planning
of its work, deserve our appreciation. We also note that
the Court has set for itself a particularly demanding
schedule of hearings and deliberations and has cleared
its case backlog. We appreciate the Court’s assurance
to Member States that oral proceedings on cases can
now be started in a timely manner, immediately after
the completion of the written exchanges.
We believe that the Court should have at its
disposal all the resources necessary to perform the
tasks assigned to it. The General Assembly should
Annex 10
Annex 11
African Union, Second Conference of African Ministers in Charge of Border Issues, Preparatory
Meeting of Governmental Experts, Addis Ababa, Ethiopia, AUBP/EXP_MIN/2 Concept Note
(22-25 Mar. 2010)
AFRICAN UNION UNION AFRICAINE
UNIÃO AFRICANA
Addis Ababa, Ethiopia, P.O. Box: 3243 Tel.: (251‐11) 5513 822 Fax: (251‐11) 5519 321
Email: situationroom@africa‐union.org, situationroom@ausitroom‐psd.org
2nd CONFERENCE OF AFRICAN MINISTERS
IN CHARGE OF BORDER ISSUES, PREPARATORY
MEETING OF GOVERNMENTAL EXPERTS
ADDIS ABABA, ETHIOPIA
(United Nations Conference Centre)
22‐25 March 2010
AUBP/EXP‐MIN/2 (II)
Original: English
CONCEPT NOTE
AFRICAN UNION UNION AFRICAINE
UNIÃO AFRICANA
Addis Ababa, Ethiopia, P.O. Box: 3243 Tel.: (251‐11) 5513 822 Fax: (251‐11) 5519 321
Email: situationroom@africa‐union.org, situationroom@ausitroom‐psd.org
2nd CONFERENCE OF AFRICAN MINISTERS
IN CHARGE OF BORDER ISSUES, PREPARATORY
MEETING OF GOVERNMENTAL EXPERTS
ADDIS ABABA, ETHIOPIA
(United Nations Conference Centre)
22‐25 March 2010
AUBP/EXP‐MIN/2 (II)
Original: English
CONCEPT NOTE
Annex 11
AUBP/EXP‐MIN/2 (II)
Page 1
CONCEPT NOTE
I. INTRODUCTION
1. At its 11th Ordinary Session held in Accra, Ghana, from 25 to 29 June 2007, the
Executive Council endorsed the Declaration on the African Union Border Programme (AUBP)
and its Implementation Modalities, as adopted by the Conference of African Ministers in
charge of Border Issues, held in Addis Ababa, on 7 June 2007. The Council requested the
Chairperson of the Commission and Member States to take all necessary steps for the
implementation of the AUBP and submit regular reports thereon to the AU policy organs.
II. BACKGROUND
2. Since African countries gained independence, the borders – which were drawn
during the colonial period in a context of rivalries between European countries and their
scramble for territories in Africa – have been a recurrent source of conflicts and disputes in
the continent. Most of the borders are poorly defined. The location of strategic natural
resources in cross‐border areas poses additional challenges.
3. This challenge was taken up early enough by African leaders who were inspired by
the conviction that the achievement of greater unity and solidarity among African States
and peoples requires the reduction of the burden of borders separating them. They were
thus convinced that by transcending the borders as barriers and promoting them as bridges
linking one State to another, Africa can boost the ongoing efforts to integrate the continent,
strengthen its unity and promote peace, security and stability through the structural
prevention of conflicts.
4. It is against this background that the Member States adopted a number of political
and legal instruments to guide their efforts in the management of border issues. In this
respect, the following are worth mentioning:
• the principle of the respect of borders existing on achievement of national
independence, as enshrined in the Charter of the Organization of African Unity
(OAU), resolution AHG/Res.16(I) on border disputes between African States,
adopted by the 1st Ordinary Session of the Assembly of Heads of State and
Government of the OAU, held in Cairo, Egypt, in July 1964, and Article 4 (b) of
the AU Constitutive Act;
• the principle of negotiated settlement of border disputes, as provided for in
resolution CM/Res.1069(XLIV) on peace and security in Africa through
negotiated settlement of boundary disputes, adopted by the 44th Ordinary
Session of the Council of Ministers of the OAU, held in Addis Ababa, in July
1986; and
• the Memorandum of Understanding on Security, Stability, Development and
Cooperation in Africa (CSSDCA), adopted by the OAU Assembly of Heads of State
and Government held in Durban, South Africa, in July 2002 [Decision
CM/Dec.666(LXXVI)], which provides for the delineation and demarcation of
AUBP/EXP‐MIN/2 (II)
Page 2
inter‐African borders by 2012, with the assistance of the UN Cartographic Unit,
where required.
5. During the 8th Ordinary Session of the Assembly of the Union, held in Addis Ababa
from 29 to 30 January 2007, the Commission was encouraged to pursue its efforts with
regard to the structural prevention of conflicts, including through the implementation of the
AUBP [Decision Assembly/AU/ Dec.145(VIII)]. As a follow‐up to this decision, the
Commission convened, in Addis Ababa, on 7 June 2007, the first‐ever Conference of African
Ministers in charge of border issues. The Conference adopted a Declaration on the AUBP
and its Implementation Modalities, which, as indicated above, was endorsed by the
Executive Council in Accra.
III. KEY ELEMENTS OF THE AUBP
6. As spelt out in the Declaration, the AUBP aims at:
• addressing the issue of border delimitation and demarcation;
• consolidating the gains made in the regional integration process, as
demonstrated by the existence of the Regional Economic Communities (RECs)
and of numerous large‐scale cooperation initiatives; and
• facilitating the development of cross‐border integration dynamics sustained by
local stakeholders.
7. In the Declaration, the Ministers stressed that the implementation of the AUBP
should be effected at several levels ‐ national, regional and continental ‐ and that the
responsibility of each of these levels should be determined on the basis of the principle of
subsidiarity and respect for the sovereignty of States. In this regard, the Declaration
specifies the respective roles to be played by Member States, RECs and the AU with respect
to the various components of the AUBP, namely border delimitation and demarcation, local
cross‐border cooperation and capacity building.
8. With respect to resource mobilization and partnership, the Ministers requested the
Commission to coordinate and implement the AUBP on the basis of an inclusive governance
involving the Member States, the RECs, parliamentarians, locally elected representatives
and civil society, as well as the European border movement, particularly the Association of
European Border Regions (AEBR), the United Nations and other AU partners having
experience in cross‐border cooperation.
9. In order to launch the AUBP, the Ministers identified a number of initial measures to
be taken by the Commission. These are the following:
• launching of a Pan‐African survey of borders, through a questionnaire to be sent
to all Member States, in order to facilitate the delimitation and demarcation of
African borders;
• identification of pilot regions or initiatives for the rapid development of regional
support programmes on cross‐border cooperation, as well as support for the
establishment of regional funds for local cross‐border cooperation;
Annex 11
AUBP/EXP‐MIN/2 (II)
Page 1
CONCEPT NOTE
I. INTRODUCTION
1. At its 11th Ordinary Session held in Accra, Ghana, from 25 to 29 June 2007, the
Executive Council endorsed the Declaration on the African Union Border Programme (AUBP)
and its Implementation Modalities, as adopted by the Conference of African Ministers in
charge of Border Issues, held in Addis Ababa, on 7 June 2007. The Council requested the
Chairperson of the Commission and Member States to take all necessary steps for the
implementation of the AUBP and submit regular reports thereon to the AU policy organs.
II. BACKGROUND
2. Since African countries gained independence, the borders – which were drawn
during the colonial period in a context of rivalries between European countries and their
scramble for territories in Africa – have been a recurrent source of conflicts and disputes in
the continent. Most of the borders are poorly defined. The location of strategic natural
resources in cross‐border areas poses additional challenges.
3. This challenge was taken up early enough by African leaders who were inspired by
the conviction that the achievement of greater unity and solidarity among African States
and peoples requires the reduction of the burden of borders separating them. They were
thus convinced that by transcending the borders as barriers and promoting them as bridges
linking one State to another, Africa can boost the ongoing efforts to integrate the continent,
strengthen its unity and promote peace, security and stability through the structural
prevention of conflicts.
4. It is against this background that the Member States adopted a number of political
and legal instruments to guide their efforts in the management of border issues. In this
respect, the following are worth mentioning:
• the principle of the respect of borders existing on achievement of national
independence, as enshrined in the Charter of the Organization of African Unity
(OAU), resolution AHG/Res.16(I) on border disputes between African States,
adopted by the 1st Ordinary Session of the Assembly of Heads of State and
Government of the OAU, held in Cairo, Egypt, in July 1964, and Article 4 (b) of
the AU Constitutive Act;
• the principle of negotiated settlement of border disputes, as provided for in
resolution CM/Res.1069(XLIV) on peace and security in Africa through
negotiated settlement of boundary disputes, adopted by the 44th Ordinary
Session of the Council of Ministers of the OAU, held in Addis Ababa, in July
1986; and
• the Memorandum of Understanding on Security, Stability, Development and
Cooperation in Africa (CSSDCA), adopted by the OAU Assembly of Heads of State
and Government held in Durban, South Africa, in July 2002 [Decision
CM/Dec.666(LXXVI)], which provides for the delineation and demarcation of
AUBP/EXP‐MIN/2 (II)
Page 2
inter‐African borders by 2012, with the assistance of the UN Cartographic Unit,
where required.
5. During the 8th Ordinary Session of the Assembly of the Union, held in Addis Ababa
from 29 to 30 January 2007, the Commission was encouraged to pursue its efforts with
regard to the structural prevention of conflicts, including through the implementation of the
AUBP [Decision Assembly/AU/ Dec.145(VIII)]. As a follow‐up to this decision, the
Commission convened, in Addis Ababa, on 7 June 2007, the first‐ever Conference of African
Ministers in charge of border issues. The Conference adopted a Declaration on the AUBP
and its Implementation Modalities, which, as indicated above, was endorsed by the
Executive Council in Accra.
III. KEY ELEMENTS OF THE AUBP
6. As spelt out in the Declaration, the AUBP aims at:
• addressing the issue of border delimitation and demarcation;
• consolidating the gains made in the regional integration process, as
demonstrated by the existence of the Regional Economic Communities (RECs)
and of numerous large‐scale cooperation initiatives; and
• facilitating the development of cross‐border integration dynamics sustained by
local stakeholders.
7. In the Declaration, the Ministers stressed that the implementation of the AUBP
should be effected at several levels ‐ national, regional and continental ‐ and that the
responsibility of each of these levels should be determined on the basis of the principle of
subsidiarity and respect for the sovereignty of States. In this regard, the Declaration
specifies the respective roles to be played by Member States, RECs and the AU with respect
to the various components of the AUBP, namely border delimitation and demarcation, local
cross‐border cooperation and capacity building.
8. With respect to resource mobilization and partnership, the Ministers requested the
Commission to coordinate and implement the AUBP on the basis of an inclusive governance
involving the Member States, the RECs, parliamentarians, locally elected representatives
and civil society, as well as the European border movement, particularly the Association of
European Border Regions (AEBR), the United Nations and other AU partners having
experience in cross‐border cooperation.
9. In order to launch the AUBP, the Ministers identified a number of initial measures to
be taken by the Commission. These are the following:
• launching of a Pan‐African survey of borders, through a questionnaire to be sent
to all Member States, in order to facilitate the delimitation and demarcation of
African borders;
• identification of pilot regions or initiatives for the rapid development of regional
support programmes on cross‐border cooperation, as well as support for the
establishment of regional funds for local cross‐border cooperation;
Annex 11
AUBP/EXP‐MIN/2 (II)
Page 3
• working out modalities for cooperation with other regions of the world to
benefit from their experiences and to build the necessary partnerships;
• initiation an assessment with regard to capacity building;
• preparation of a continental legal instrument on cross‐border cooperation; and
• launching of a partnership and resource mobilization process for the
implementation of the AUBP.
10. At the 14th Ordinary Session of the Executive Council held in Addis Ababa, from 29 to
30 January 2009, the Commission presented a report on the implementation of the AU
Border Programme(Document EX.Cl/459 XIV ). On its part, the Council adopted the decision
(EX.CL/461 (XIV), in which:
• welcomed the progress made in the implementation of the AUBP;
• encouraged the Commission to persevere in its efforts, in particular through the
pursuit of the enhancement of its capacities, notably in terms of human
resources, the sensitization campaign on the AUBP, the launching of
consultancies on the key components of the AUBP, the elaboration of a legal
instrument on cross‐border cooperation, the initiation of a programme of
exchange of experiences and best practices and the convening of the Second
Conference of African Ministers in charge of Border Issues;
• invited Member States to take all the necessary measures to fully play their role
in the implementation of the AUBP; and
• encouraged the Commission to take initiatives to develop cross‐border
cooperation, both as an indispensable complement of delimitation and
demarcation of African borders, where this has not yet been done.
IV. IMPLEMENTATION OF THE AU BORDER PROGRAMME
11. Three years into the implementation of the AUBP, the Commission has recorded
milestone achievements. These include:
• Adoption of a Declaration on the AUBP by African Ministers in charge of border
issues on 7 June 2007;
• Endorsement of the Declaration and its Implementation Modalities at the 11th
Session of AU Executive Council on 27 June 2007;
• Establishment of a special unit within the Conflict Management Division of the
Peace and Security Department of AU Commission in charge of the
implementation of the Programme;
• Articulation and systematic sensitization of the AUBP at RECs and member
states’ levels by means of Joint Sensitization Workshops with the RECs;
• Launching of a continent‐wide survey of African borders by means of a
questionnaire sent to all member states;
• Establishment of the Boundary Information System (BIS) ‐ a data bank of
information on African boundaries;
• Partnership with development partners such as the German Technical
Cooperation (GTZ) and specialized institutions such as the United Nations (UN),
the European Union (EU), OAS, etc.;
AUBP/EXP‐MIN/2 (II)
Page 4
• Securing direct GTZ support for some Member States’ efforts towards
delimitation and demarcation of their boundaries and for capacity building;
• Organizing along with the Republic of Mozambique of the Second International
Symposium on Land, River and Lake Boundaries Management in December
2008;
• Publication of books on AUBP entitled “From Barriers to Bridges…” and a Good
Practice Handbook on Delimitation of African Boundaries (in Press);
• Organizing the first ever Pan African Conference on Maritime Boundaries and
the Continental Shelf in Accra, Ghana, 9‐10 November 2009;
• Preparation of a Draft Convention for Cross‐Border Corporation.
V. THE SECOND CONFERENCE OF AFRICAN MINISTERS IN CHARGE OF BORDER ISSUES
12. As a follow‐up to the aforementioned activities, the Commission is organizing the
Second Conference of African Ministers in Charge of Border Issues in Addis Ababa, Ethiopia,
from 22 to 25 March 2010, which will be preceded by a meeting of Governmental experts.
The Conference is expected to:
• review the progress of the implementation of the AU border Programme;
• devise, where necessary, further implementation strategies for the programme;
and
• prepare and adopt an Action Plan for the Implementation of the programme
for the period 2010‐2012.
Annex 11
AUBP/EXP‐MIN/2 (II)
Page 3
• working out modalities for cooperation with other regions of the world to
benefit from their experiences and to build the necessary partnerships;
• initiation an assessment with regard to capacity building;
• preparation of a continental legal instrument on cross‐border cooperation; and
• launching of a partnership and resource mobilization process for the
implementation of the AUBP.
10. At the 14th Ordinary Session of the Executive Council held in Addis Ababa, from 29 to
30 January 2009, the Commission presented a report on the implementation of the AU
Border Programme(Document EX.Cl/459 XIV ). On its part, the Council adopted the decision
(EX.CL/461 (XIV), in which:
• welcomed the progress made in the implementation of the AUBP;
• encouraged the Commission to persevere in its efforts, in particular through the
pursuit of the enhancement of its capacities, notably in terms of human
resources, the sensitization campaign on the AUBP, the launching of
consultancies on the key components of the AUBP, the elaboration of a legal
instrument on cross‐border cooperation, the initiation of a programme of
exchange of experiences and best practices and the convening of the Second
Conference of African Ministers in charge of Border Issues;
• invited Member States to take all the necessary measures to fully play their role
in the implementation of the AUBP; and
• encouraged the Commission to take initiatives to develop cross‐border
cooperation, both as an indispensable complement of delimitation and
demarcation of African borders, where this has not yet been done.
IV. IMPLEMENTATION OF THE AU BORDER PROGRAMME
11. Three years into the implementation of the AUBP, the Commission has recorded
milestone achievements. These include:
• Adoption of a Declaration on the AUBP by African Ministers in charge of border
issues on 7 June 2007;
• Endorsement of the Declaration and its Implementation Modalities at the 11th
Session of AU Executive Council on 27 June 2007;
• Establishment of a special unit within the Conflict Management Division of the
Peace and Security Department of AU Commission in charge of the
implementation of the Programme;
• Articulation and systematic sensitization of the AUBP at RECs and member
states’ levels by means of Joint Sensitization Workshops with the RECs;
• Launching of a continent‐wide survey of African borders by means of a
questionnaire sent to all member states;
• Establishment of the Boundary Information System (BIS) ‐ a data bank of
information on African boundaries;
• Partnership with development partners such as the German Technical
Cooperation (GTZ) and specialized institutions such as the United Nations (UN),
the European Union (EU), OAS, etc.;
AUBP/EXP‐MIN/2 (II)
Page 4
• Securing direct GTZ support for some Member States’ efforts towards
delimitation and demarcation of their boundaries and for capacity building;
• Organizing along with the Republic of Mozambique of the Second International
Symposium on Land, River and Lake Boundaries Management in December
2008;
• Publication of books on AUBP entitled “From Barriers to Bridges…” and a Good
Practice Handbook on Delimitation of African Boundaries (in Press);
• Organizing the first ever Pan African Conference on Maritime Boundaries and
the Continental Shelf in Accra, Ghana, 9‐10 November 2009;
• Preparation of a Draft Convention for Cross‐Border Corporation.
V. THE SECOND CONFERENCE OF AFRICAN MINISTERS IN CHARGE OF BORDER ISSUES
12. As a follow‐up to the aforementioned activities, the Commission is organizing the
Second Conference of African Ministers in Charge of Border Issues in Addis Ababa, Ethiopia,
from 22 to 25 March 2010, which will be preceded by a meeting of Governmental experts.
The Conference is expected to:
• review the progress of the implementation of the AU border Programme;
• devise, where necessary, further implementation strategies for the programme;
and
• prepare and adopt an Action Plan for the Implementation of the programme
for the period 2010‐2012.
Annex 11
Annex 12
U.N. General Assembly, Sixty-Sixth Session, Report of the International Law Commission
on the work of its sixty-third session (26 April-3 June and 4 July-12 August 2011), U.N. Doc.
A/66/10/Add.1 (2011)
A/66/10/Add.1
United Nations
Report of the International
Law Commission
Sixty-third session
(26 April-3 June and 4 July-12 August 2011)
General Assembly
Official Records
Sixty-sixth Session
Supplement No. 10
A/66/10/Add.1
United Nations
Report of the International
Law Commission
Sixty-third session
(26 April-3 June and 4 July-12 August 2011)
General Assembly
Official Records
Sixty-sixth Session
Supplement No. 10
Annex 12
Report of the International
Law Commission
Sixty-third session
(26 April-3 June and 4 July-12 August 2011)
General Assembly
Official Records
Sixty-sixth Session
Supplement No. 10
United Nations • New York, 2011
A/66/10/Add.1
Annex 12
Report of the International
Law Commission
Sixty-third session
(26 April-3 June and 4 July-12 August 2011)
General Assembl
y
Official Records
Sixty-sixth Session
Supplement No. 10
United Nations
• New York, 2011
A/66/10/Add.1
Annex 12
Note
Symbols of United Nations documents are composed of letters combined with
figures. Mention of such a symbol indicates a reference to a United Nations
document.
The word Yearbook followed by suspension points and the year (e.g. Yearbook ...
1971) indicates a reference to the Yearbook of the International Law Commission.
A typeset version of the report of the Commission will be included in Part Two
of volume II of the Yearbook of the International Law Commission 2011.
ISSN 0251-822X
iii
Contents
Chapter Paragraphs Page
IV. Reservations to treaties (continued) ..................................................................... 1–2 1
F. Text of the Guide to Practice on Reservations to Treaties, adopted by the
Commission at its sixty-third session............................................................ 1–2 1
1. Text of the guidelines constituting the Guide to Practice, followed by
an annex on the reservations dialogue (A/66/10, para. 75) ................. 1 1
2. Text of the Guide to Practice, comprising an introduction, the guidelines
and commentaries thereto, an annex on the reservations dialogue and a
bibliography ....................................................................................... 2 34
Guide to Practice on Reservations to Treaties
(a) Introduction .................................................................................................... 34
(b) Text of the guidelines with commentaries thereto ........................................... 37
1. Definitions ......................................................................................... 37
1.1 Definition of reservations................................................................... 37
Commentary....................................................................................... 38
1.1.1 Statements purporting to limit the obligations of their author ............ 45
Commentary....................................................................................... 45
1.1.2 Statements purporting to discharge an obligation by equivalent means 48
Commentary....................................................................................... 48
1.1.3 Reservations relating to the territorial application of the treaty.......... 48
Commentary....................................................................................... 49
1.1.4 Reservations formulated when extending the territorial application
of a treaty ........................................................................................... 51
Commentary....................................................................................... 51
1.1.5 Reservations formulated jointly ......................................................... 53
Commentary....................................................................................... 53
1.1.6 Reservations formulated by virtue of clauses expressly authorizing the
exclusion or the modification of certain provisions of a treaty........... 55
Commentary....................................................................................... 55
1.2 Definition of interpretative declarations............................................. 62
Commentary....................................................................................... 63
1.2.1 Interpretative declarations formulated jointly..................................... 72
Annex 12
Note
Symbols of United Nations documents are composed of letters combined with
figures. Mention of such a symbol indicates a reference to a United Nations
document.
The word Yearbook followed by suspension points and the year (e.g. Yearbook ...
1971) indicates a reference to the Yearbook of the International Law Commission.
A typeset version of the report of the Commission will be included in Part Two
of volume II of the Yearbook of the International Law Commission 2011.
ISSN 0251-822X
iii
Contents
Chapter Paragraphs Page
IV. Reservations to treaties (continued) ..................................................................... 1–2 1
F. Text of the Guide to Practice on Reservations to Treaties, adopted by the
Commission at its sixty-third session............................................................ 1–2 1
1. Text of the guidelines constituting the Guide to Practice, followed by
an annex on the reservations dialogue (A/66/10, para. 75) ................. 1 1
2. Text of the Guide to Practice, comprising an introduction, the guidelines
and commentaries thereto, an annex on the reservations dialogue and a
bibliography ....................................................................................... 2 34
Guide to Practice on Reservations to Treaties
(a) Introduction .................................................................................................... 34
(b) Text of the guidelines with commentaries thereto ........................................... 37
1. Definitions ......................................................................................... 37
1.1 Definition of reservations................................................................... 37
Commentary....................................................................................... 38
1.1.1 Statements purporting to limit the obligations of their author ............ 45
Commentary....................................................................................... 45
1.1.2 Statements purporting to discharge an obligation by equivalent means 48
Commentary....................................................................................... 48
1.1.3 Reservations relating to the territorial application of the treaty.......... 48
Commentary....................................................................................... 49
1.1.4 Reservations formulated when extending the territorial application
of a treaty ........................................................................................... 51
Commentary....................................................................................... 51
1.1.5 Reservations formulated jointly ......................................................... 53
Commentary....................................................................................... 53
1.1.6 Reservations formulated by virtue of clauses expressly authorizing the
exclusion or the modification of certain provisions of a treaty........... 55
Commentary....................................................................................... 55
1.2 Definition of interpretative declarations............................................. 62
Commentary....................................................................................... 63
1.2.1 Interpretative declarations formulated jointly..................................... 72
Annex 12
iv
Commentary....................................................................................... 73
1.3 Distinction between reservations and interpretative declarations ....... 74
Commentary....................................................................................... 74
1.3.1 Method of determining the distinction between reservations and
interpretative declarations .................................................................. 75
Commentary....................................................................................... 75
1.3.2 Phrasing and name ............................................................................. 79
Commentary....................................................................................... 79
1.3.3 Formulation of a unilateral statement when a reservation is prohibited...... 83
Commentary....................................................................................... 83
1.4 Conditional interpretative declarations............................................... 84
Commentary....................................................................................... 84
1.5 Unilateral statements other than reservations and interpretative
declarations ........................................................................................ 89
Commentary....................................................................................... 89
1.5.1 Statements of non-recognition............................................................ 94
Commentary....................................................................................... 95
1.5.2 Statements concerning modalities of implementation of a treaty
at the internal level............................................................................. 98
Commentary....................................................................................... 98
1.5.3 Unilateral statements made under a clause providing for options....... 101
Commentary....................................................................................... 101
1.6 Unilateral statements in respect of bilateral treaties ........................... 107
Commentary....................................................................................... 107
1.6.1 “Reservations” to bilateral treaties ..................................................... 108
Commentary....................................................................................... 108
1.6.2 Interpretative declarations in respect of bilateral treaties ................... 115
Commentary....................................................................................... 115
1.6.3 Legal effect of acceptance of an interpretative declaration made
in respect of a bilateral treaty by the other party ................................ 117
Commentary....................................................................................... 117
1.7 Alternatives to reservations and interpretative declarations ............... 118
Commentary....................................................................................... 118
1.7.1 Alternatives to reservations................................................................ 119
Commentary....................................................................................... 119
v
1.7.2 Alternatives to interpretative declarations .......................................... 129
Commentary....................................................................................... 130
1.8 Scope of definitions ........................................................................... 131
Commentary....................................................................................... 131
2. Procedure ........................................................................................... 132
2.1 Form and notification of reservations................................................. 132
2.1.1 Form of reservations .......................................................................... 132
Commentary....................................................................................... 132
2.1.2 Statement of reasons for reservations ................................................. 135
Commentary....................................................................................... 135
2.1.3 Representation for the purpose of formulating a reservation
at the international level..................................................................... 138
Commentary....................................................................................... 138
2.1.4 Absence of consequences at the international level of the violation
of internal rules regarding the formulation of reservations................. 142
Commentary....................................................................................... 142
2.1.5 Communication of reservations.......................................................... 145
Commentary....................................................................................... 145
2.1.6 Procedure for communication of reservations .................................... 153
Commentary....................................................................................... 154
2.1.7 Functions of depositaries.................................................................... 160
Commentary....................................................................................... 161
2.2 Confirmation of reservations.............................................................. 165
2.2.1 Formal confirmation of reservations formulated when signing a treaty...... 165
Commentary....................................................................................... 166
2.2.2 Instances of non-requirement of confirmation of reservations
formulated when signing a treaty ....................................................... 170
Commentary....................................................................................... 170
2.2.3 Reservations formulated upon signature when a treaty expressly so
provides.............................................................................................. 171
Commentary....................................................................................... 172
2.2.4 Form of formal confirmation of reservations...................................... 173
Commentary....................................................................................... 173
2.3 Late formulation of reservations ........................................................ 173
Commentary....................................................................................... 173
Annex 12
iv
Commentary....................................................................................... 73
1.3 Distinction between reservations and interpretative declarations ....... 74
Commentary....................................................................................... 74
1.3.1 Method of determining the distinction between reservations and
interpretative declarations .................................................................. 75
Commentary....................................................................................... 75
1.3.2 Phrasing and name ............................................................................. 79
Commentary....................................................................................... 79
1.3.3 Formulation of a unilateral statement when a reservation is prohibited...... 83
Commentary....................................................................................... 83
1.4 Conditional interpretative declarations............................................... 84
Commentary....................................................................................... 84
1.5 Unilateral statements other than reservations and interpretative
declarations ........................................................................................ 89
Commentary....................................................................................... 89
1.5.1 Statements of non-recognition............................................................ 94
Commentary....................................................................................... 95
1.5.2 Statements concerning modalities of implementation of a treaty
at the internal level............................................................................. 98
Commentary....................................................................................... 98
1.5.3 Unilateral statements made under a clause providing for options....... 101
Commentary....................................................................................... 101
1.6 Unilateral statements in respect of bilateral treaties ........................... 107
Commentary....................................................................................... 107
1.6.1 “Reservations” to bilateral treaties ..................................................... 108
Commentary....................................................................................... 108
1.6.2 Interpretative declarations in respect of bilateral treaties ................... 115
Commentary....................................................................................... 115
1.6.3 Legal effect of acceptance of an interpretative declaration made
in respect of a bilateral treaty by the other party ................................ 117
Commentary....................................................................................... 117
1.7 Alternatives to reservations and interpretative declarations ............... 118
Commentary....................................................................................... 118
1.7.1 Alternatives to reservations................................................................ 119
Commentary....................................................................................... 119
v
1.7.2 Alternatives to interpretative declarations .......................................... 129
Commentary....................................................................................... 130
1.8 Scope of definitions ........................................................................... 131
Commentary....................................................................................... 131
2. Procedure ........................................................................................... 132
2.1 Form and notification of reservations................................................. 132
2.1.1 Form of reservations .......................................................................... 132
Commentary....................................................................................... 132
2.1.2 Statement of reasons for reservations ................................................. 135
Commentary....................................................................................... 135
2.1.3 Representation for the purpose of formulating a reservation
at the international level..................................................................... 138
Commentary....................................................................................... 138
2.1.4 Absence of consequences at the international level of the violation
of internal rules regarding the formulation of reservations................. 142
Commentary....................................................................................... 142
2.1.5 Communication of reservations.......................................................... 145
Commentary....................................................................................... 145
2.1.6 Procedure for communication of reservations .................................... 153
Commentary....................................................................................... 154
2.1.7 Functions of depositaries.................................................................... 160
Commentary....................................................................................... 161
2.2 Confirmation of reservations.............................................................. 165
2.2.1 Formal confirmation of reservations formulated when signing a treaty...... 165
Commentary....................................................................................... 166
2.2.2 Instances of non-requirement of confirmation of reservations
formulated when signing a treaty ....................................................... 170
Commentary....................................................................................... 170
2.2.3 Reservations formulated upon signature when a treaty expressly so
provides.............................................................................................. 171
Commentary....................................................................................... 172
2.2.4 Form of formal confirmation of reservations...................................... 173
Commentary....................................................................................... 173
2.3 Late formulation of reservations ........................................................ 173
Commentary....................................................................................... 173
Annex 12
vi
2.3.1 Acceptance of the late formulation of a reservation ........................... 181
Commentary....................................................................................... 182
2.3.2 Time period for formulating an objection to a reservation that is
formulated late ................................................................................... 184
Commentary....................................................................................... 184
2.3.3 Limits to the possibility of excluding or modifying the legal effect of
a treaty by means other than reservations........................................... 185
Commentary....................................................................................... 185
2.3.4 Widening of the scope of a reservation............................................... 187
Commentary....................................................................................... 187
2.4 Procedure for interpretative declarations............................................ 190
Commentary....................................................................................... 190
2.4.1 Form of interpretative declarations .................................................... 191
Commentary....................................................................................... 191
2.4.2 Representation for the purpose of formulating interpretative
declarations ........................................................................................ 192
Commentary....................................................................................... 192
2.4.3 Absence of consequences at the international level of the violation of
internal rules regarding the formulation of interpretative declarations........ 193
Commentary....................................................................................... 193
2.4.4 Time at which an interpretative declaration may be formulated ......... 193
Commentary....................................................................................... 194
2.4.5 Communication of interpretative declarations.................................... 195
Commentary....................................................................................... 195
2.4.6 Non-requirement of confirmation of interpretative declarations
formulated when signing a treaty ....................................................... 195
Commentary....................................................................................... 195
2.4.7 Late formulation of an interpretative declaration ............................... 196
Commentary....................................................................................... 196
2.4.8 Modification of an interpretative declaration ..................................... 197
Commentary....................................................................................... 197
2.5 Withdrawal and modification of reservations and interpretative
declarations ........................................................................................ 198
2.5.1 Withdrawal of reservations................................................................. 198
Commentary....................................................................................... 198
2.5.2 Form of withdrawal............................................................................ 204
vii
Commentary....................................................................................... 204
2.5.3 Periodic review of the usefulness of reservations............................... 207
Commentary....................................................................................... 207
2.5.4 Representation for the purpose of withdrawing a reservation at
the international level......................................................................... 208
Commentary....................................................................................... 209
2.5.5 Absence of consequences at the international level of the violation
of internal rules regarding the withdrawal of reservations.................. 213
Commentary....................................................................................... 213
2.5.6 Communication of withdrawal of a reservation.................................. 214
Commentary....................................................................................... 215
2.5.7 Effects of withdrawal of a reservation................................................ 217
Commentary....................................................................................... 217
2.5.8 Effective date of withdrawal of a reservation ..................................... 220
Commentary....................................................................................... 220
2.5.9 Cases in which the author of a reservation may set the effective date of
withdrawal of the reservation ............................................................. 224
Commentary....................................................................................... 224
2.5.10 Partial withdrawal of reservations ...................................................... 225
Commentary....................................................................................... 226
2.5.11 Effect of a partial withdrawal of a reservation.................................... 232
Commentary....................................................................................... 232
2.5.12 Withdrawal of interpretative declarations........................................... 234
Commentary....................................................................................... 234
2.6 Formulation of objections .................................................................. 235
2.6.1 Definition of objections to reservations.............................................. 235
Commentary....................................................................................... 235
2.6.2 Right to formulate objections ............................................................. 246
Commentary....................................................................................... 246
2.6.3 Author of an objection ....................................................................... 249
Commentary....................................................................................... 250
2.6.4 Objections formulated jointly............................................................. 252
Commentary....................................................................................... 252
2.6.5 Form of objections ............................................................................. 253
Commentary....................................................................................... 253
Annex 12
vi
2.3.1 Acceptance of the late formulation of a reservation ........................... 181
Commentary....................................................................................... 182
2.3.2 Time period for formulating an objection to a reservation that is
formulated late ................................................................................... 184
Commentary....................................................................................... 184
2.3.3 Limits to the possibility of excluding or modifying the legal effect of
a treaty by means other than reservations........................................... 185
Commentary....................................................................................... 185
2.3.4 Widening of the scope of a reservation............................................... 187
Commentary....................................................................................... 187
2.4 Procedure for interpretative declarations............................................ 190
Commentary....................................................................................... 190
2.4.1 Form of interpretative declarations .................................................... 191
Commentary....................................................................................... 191
2.4.2 Representation for the purpose of formulating interpretative
declarations ........................................................................................ 192
Commentary....................................................................................... 192
2.4.3 Absence of consequences at the international level of the violation of
internal rules regarding the formulation of interpretative declarations........ 193
Commentary....................................................................................... 193
2.4.4 Time at which an interpretative declaration may be formulated ......... 193
Commentary....................................................................................... 194
2.4.5 Communication of interpretative declarations.................................... 195
Commentary....................................................................................... 195
2.4.6 Non-requirement of confirmation of interpretative declarations
formulated when signing a treaty ....................................................... 195
Commentary....................................................................................... 195
2.4.7 Late formulation of an interpretative declaration ............................... 196
Commentary....................................................................................... 196
2.4.8 Modification of an interpretative declaration ..................................... 197
Commentary....................................................................................... 197
2.5 Withdrawal and modification of reservations and interpretative
declarations ........................................................................................ 198
2.5.1 Withdrawal of reservations................................................................. 198
Commentary....................................................................................... 198
2.5.2 Form of withdrawal............................................................................ 204
vii
Commentary....................................................................................... 204
2.5.3 Periodic review of the usefulness of reservations............................... 207
Commentary....................................................................................... 207
2.5.4 Representation for the purpose of withdrawing a reservation at
the international level......................................................................... 208
Commentary....................................................................................... 209
2.5.5 Absence of consequences at the international level of the violation
of internal rules regarding the withdrawal of reservations.................. 213
Commentary....................................................................................... 213
2.5.6 Communication of withdrawal of a reservation.................................. 214
Commentary....................................................................................... 215
2.5.7 Effects of withdrawal of a reservation................................................ 217
Commentary....................................................................................... 217
2.5.8 Effective date of withdrawal of a reservation ..................................... 220
Commentary....................................................................................... 220
2.5.9 Cases in which the author of a reservation may set the effective date of
withdrawal of the reservation ............................................................. 224
Commentary....................................................................................... 224
2.5.10 Partial withdrawal of reservations ...................................................... 225
Commentary....................................................................................... 226
2.5.11 Effect of a partial withdrawal of a reservation.................................... 232
Commentary....................................................................................... 232
2.5.12 Withdrawal of interpretative declarations........................................... 234
Commentary....................................................................................... 234
2.6 Formulation of objections .................................................................. 235
2.6.1 Definition of objections to reservations.............................................. 235
Commentary....................................................................................... 235
2.6.2 Right to formulate objections ............................................................. 246
Commentary....................................................................................... 246
2.6.3 Author of an objection ....................................................................... 249
Commentary....................................................................................... 250
2.6.4 Objections formulated jointly............................................................. 252
Commentary....................................................................................... 252
2.6.5 Form of objections ............................................................................. 253
Commentary....................................................................................... 253
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viii
2.6.6 Right to oppose the entry into force of the treaty vis-à-vis the author
of the reservation................................................................................ 255
Commentary....................................................................................... 255
2.6.7 Expression of intention to preclude the entry into force of the treaty..... 258
Commentary....................................................................................... 258
2.6.8 Procedure for the formulation of objections ....................................... 260
Commentary....................................................................................... 260
2.6.9 Statement of reasons for objections.................................................... 262
Commentary....................................................................................... 262
2.6.10 Non-requirement of confirmation of an objection formulated prior to
formal confirmation of a reservation .................................................. 264
Commentary....................................................................................... 265
2.6.11 Confirmation of an objection formulated prior to the expression of
consent to be bound by a treaty .......................................................... 266
Commentary....................................................................................... 266
2.6.12 Time period for formulating objections.............................................. 269
Commentary....................................................................................... 269
2.6.13 Objections formulated late ................................................................. 272
Commentary....................................................................................... 272
2.7 Withdrawal and modification of objections to reservations ................ 275
Commentary....................................................................................... 275
2.7.1 Withdrawal of objections to reservations ........................................... 277
Commentary....................................................................................... 278
2.7.2 Form of withdrawal of objections to reservations............................... 278
Commentary....................................................................................... 278
2.7.3 Formulation and communication of the withdrawal of objections to
reservations ........................................................................................ 279
Commentary....................................................................................... 279
2.7.4 Effect on reservation of withdrawal of an objection ........................... 279
Commentary....................................................................................... 280
2.7.5 Effective date of withdrawal of an objection ...................................... 281
Commentary....................................................................................... 281
2.7.6 Cases in which the author of an objection may set the effective date
of withdrawal of the objection............................................................ 283
Commentary....................................................................................... 283
ix
2.7.7 Partial withdrawal of an objection...................................................... 283
Commentary....................................................................................... 284
2.7.8 Effect of a partial withdrawal of an objection .................................... 285
Commentary....................................................................................... 285
2.7.9 Widening of the scope of an objection to a reservation ...................... 286
Commentary....................................................................................... 286
2.8 Formulation of acceptances of reservations........................................ 287
2.8.1 Forms of acceptance of reservations................................................... 287
Commentary....................................................................................... 287
2.8.2 Tacit acceptance of reservations ......................................................... 291
Commentary....................................................................................... 291
2.8.3 Express acceptance of reservations .................................................... 294
Commentary....................................................................................... 294
2.8.4 Form of express acceptance of reservations ....................................... 296
Commentary....................................................................................... 296
2.8.5 Procedure for formulating express acceptance of reservations ........... 297
Commentary....................................................................................... 297
2.8.6 Non-requirement of confirmation of an acceptance formulated prior
to formal confirmation of a reservation .............................................. 297
Commentary....................................................................................... 298
2.8.7 Unanimous acceptance of reservations............................................... 298
Commentary....................................................................................... 298
2.8.8 Acceptance of a reservation to the constituent instrument of an
international organization................................................................... 300
Commentary....................................................................................... 300
2.8.9 Organ competent to accept a reservation to a constituent instrument...... 303
Commentary....................................................................................... 303
2.8.10 Modalities of the acceptance of a reservation to a constituent
instrument .......................................................................................... 304
Commentary....................................................................................... 304
2.8.11 Acceptance of a reservation to a constituent instrument that has
not yet entered into force.................................................................... 306
Commentary....................................................................................... 306
2.8.12 Reaction by a member of an international organization to a reservation
to its constituent instrument ............................................................... 308
Annex 12
viii
2.6.6 Right to oppose the entry into force of the treaty vis-à-vis the author
of the reservation................................................................................ 255
Commentary....................................................................................... 255
2.6.7 Expression of intention to preclude the entry into force of the treaty..... 258
Commentary....................................................................................... 258
2.6.8 Procedure for the formulation of objections ....................................... 260
Commentary....................................................................................... 260
2.6.9 Statement of reasons for objections.................................................... 262
Commentary....................................................................................... 262
2.6.10 Non-requirement of confirmation of an objection formulated prior to
formal confirmation of a reservation .................................................. 264
Commentary....................................................................................... 265
2.6.11 Confirmation of an objection formulated prior to the expression of
consent to be bound by a treaty .......................................................... 266
Commentary....................................................................................... 266
2.6.12 Time period for formulating objections.............................................. 269
Commentary....................................................................................... 269
2.6.13 Objections formulated late ................................................................. 272
Commentary....................................................................................... 272
2.7 Withdrawal and modification of objections to reservations ................ 275
Commentary....................................................................................... 275
2.7.1 Withdrawal of objections to reservations ........................................... 277
Commentary....................................................................................... 278
2.7.2 Form of withdrawal of objections to reservations............................... 278
Commentary....................................................................................... 278
2.7.3 Formulation and communication of the withdrawal of objections to
reservations ........................................................................................ 279
Commentary....................................................................................... 279
2.7.4 Effect on reservation of withdrawal of an objection ........................... 279
Commentary....................................................................................... 280
2.7.5 Effective date of withdrawal of an objection ...................................... 281
Commentary....................................................................................... 281
2.7.6 Cases in which the author of an objection may set the effective date
of withdrawal of the objection............................................................ 283
Commentary....................................................................................... 283
ix
2.7.7 Partial withdrawal of an objection...................................................... 283
Commentary....................................................................................... 284
2.7.8 Effect of a partial withdrawal of an objection .................................... 285
Commentary....................................................................................... 285
2.7.9 Widening of the scope of an objection to a reservation ...................... 286
Commentary....................................................................................... 286
2.8 Formulation of acceptances of reservations........................................ 287
2.8.1 Forms of acceptance of reservations................................................... 287
Commentary....................................................................................... 287
2.8.2 Tacit acceptance of reservations ......................................................... 291
Commentary....................................................................................... 291
2.8.3 Express acceptance of reservations .................................................... 294
Commentary....................................................................................... 294
2.8.4 Form of express acceptance of reservations ....................................... 296
Commentary....................................................................................... 296
2.8.5 Procedure for formulating express acceptance of reservations ........... 297
Commentary....................................................................................... 297
2.8.6 Non-requirement of confirmation of an acceptance formulated prior
to formal confirmation of a reservation .............................................. 297
Commentary....................................................................................... 298
2.8.7 Unanimous acceptance of reservations............................................... 298
Commentary....................................................................................... 298
2.8.8 Acceptance of a reservation to the constituent instrument of an
international organization................................................................... 300
Commentary....................................................................................... 300
2.8.9 Organ competent to accept a reservation to a constituent instrument...... 303
Commentary....................................................................................... 303
2.8.10 Modalities of the acceptance of a reservation to a constituent
instrument .......................................................................................... 304
Commentary....................................................................................... 304
2.8.11 Acceptance of a reservation to a constituent instrument that has
not yet entered into force.................................................................... 306
Commentary....................................................................................... 306
2.8.12 Reaction by a member of an international organization to a reservation
to its constituent instrument ............................................................... 308
Annex 12
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Commentary....................................................................................... 308
2.8.13 Final nature of acceptance of a reservation ........................................ 310
Commentary....................................................................................... 310
2.9 Formulation of reactions to interpretative declarations ...................... 311
2.9.1 Approval of an interpretative declaration ........................................... 311
Commentary....................................................................................... 311
2.9.2 Opposition to an interpretative declaration......................................... 313
Commentary....................................................................................... 313
2.9.3 Recharacterization of an interpretative declaration ............................ 318
Commentary....................................................................................... 318
2.9.4 Right to formulate approval or opposition, or to recharacterize ......... 321
Commentary....................................................................................... 321
2.9.5 Form of approval, opposition and recharacterization.......................... 322
Commentary....................................................................................... 322
2.9.6 Statement of reasons for approval, opposition and recharacterization ..... 323
Commentary....................................................................................... 323
2.9.7 Formulation and communication of approval, opposition of
recharacterization............................................................................... 324
Commentary....................................................................................... 324
2.9.8 Non-presumption of approval or opposition....................................... 325
Commentary....................................................................................... 325
2.9.9 Silence with respect to an interpretative declaration .......................... 328
Commentary....................................................................................... 328
3. Permissibility of reservations and interpretative declarations............. 329
General commentary .......................................................................... 329
3.1 Permissible reservations..................................................................... 331
Commentary....................................................................................... 331
3.1.1 Reservations prohibited by the treaty ................................................. 335
Commentary....................................................................................... 335
3.1.2 Definition of specified reservations.................................................... 340
Commentary....................................................................................... 340
3.1.3 Permissibility of reservations not prohibited by the treaty ................. 347
Commentary....................................................................................... 347
3.1.4 Permissibility of specified reservations.............................................. 350
xi
Commentary....................................................................................... 350
3.1.5 Incompatibility of a reservation with the object and purpose of the treaty . 351
Commentary....................................................................................... 351
3.1.5.1 Determination of the object and purpose of the treaty ........................ 359
Commentary....................................................................................... 359
3.1.5.2 Vague or general reservations............................................................. 363
Commentary....................................................................................... 363
3.1.5.3 Reservations to a provision reflecting a customary rule ..................... 368
Commentary....................................................................................... 368
3.1.5.4 Reservations to provisions concerning rights from which no derogation
is permissible under any circumstances.............................................. 377
Commentary....................................................................................... 377
3.1.5.5 Reservations relating to internal law .................................................. 380
Commentary....................................................................................... 380
3.1.5.6 Reservations to treaties containing numerous interdependent rights
and obligations................................................................................... 383
Commentary....................................................................................... 383
3.1.5.7 Reservations to treaty provisions concerning dispute settlement or
the monitoring of the implementation of the treaty ............................ 387
Commentary....................................................................................... 387
3.2 Assessment of the permissibility of reservations................................ 391
Commentary....................................................................................... 391
3.2.1 Competence of the treaty monitoring bodies to assess the permissibility
of reservations.................................................................................... 399
Commentary....................................................................................... 400
3.2.2 Specification of the competence of treaty monitoring bodies to assess
the permissibility of reservations ....................................................... 400
Commentary....................................................................................... 400
3.2.3 Consideration of the assessments of treaty monitoring bodies............ 401
Commentary....................................................................................... 401
3.2.4 Bodies competent to assess the permissibility of reservations in the event
of the establishment of a treaty monitoring body ............................... 402
Commentary....................................................................................... 402
3.2.5 Competence of dispute settlement bodies to assess the permissibility
of reservations.................................................................................... 403
Commentary....................................................................................... 403
Annex 12
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Commentary....................................................................................... 308
2.8.13 Final nature of acceptance of a reservation ........................................ 310
Commentary....................................................................................... 310
2.9 Formulation of reactions to interpretative declarations ...................... 311
2.9.1 Approval of an interpretative declaration ........................................... 311
Commentary....................................................................................... 311
2.9.2 Opposition to an interpretative declaration......................................... 313
Commentary....................................................................................... 313
2.9.3 Recharacterization of an interpretative declaration ............................ 318
Commentary....................................................................................... 318
2.9.4 Right to formulate approval or opposition, or to recharacterize ......... 321
Commentary....................................................................................... 321
2.9.5 Form of approval, opposition and recharacterization.......................... 322
Commentary....................................................................................... 322
2.9.6 Statement of reasons for approval, opposition and recharacterization ..... 323
Commentary....................................................................................... 323
2.9.7 Formulation and communication of approval, opposition of
recharacterization............................................................................... 324
Commentary....................................................................................... 324
2.9.8 Non-presumption of approval or opposition....................................... 325
Commentary....................................................................................... 325
2.9.9 Silence with respect to an interpretative declaration .......................... 328
Commentary....................................................................................... 328
3. Permissibility of reservations and interpretative declarations............. 329
General commentary .......................................................................... 329
3.1 Permissible reservations..................................................................... 331
Commentary....................................................................................... 331
3.1.1 Reservations prohibited by the treaty ................................................. 335
Commentary....................................................................................... 335
3.1.2 Definition of specified reservations.................................................... 340
Commentary....................................................................................... 340
3.1.3 Permissibility of reservations not prohibited by the treaty ................. 347
Commentary....................................................................................... 347
3.1.4 Permissibility of specified reservations.............................................. 350
xi
Commentary....................................................................................... 350
3.1.5 Incompatibility of a reservation with the object and purpose of the treaty . 351
Commentary....................................................................................... 351
3.1.5.1 Determination of the object and purpose of the treaty ........................ 359
Commentary....................................................................................... 359
3.1.5.2 Vague or general reservations............................................................. 363
Commentary....................................................................................... 363
3.1.5.3 Reservations to a provision reflecting a customary rule ..................... 368
Commentary....................................................................................... 368
3.1.5.4 Reservations to provisions concerning rights from which no derogation
is permissible under any circumstances.............................................. 377
Commentary....................................................................................... 377
3.1.5.5 Reservations relating to internal law .................................................. 380
Commentary....................................................................................... 380
3.1.5.6 Reservations to treaties containing numerous interdependent rights
and obligations................................................................................... 383
Commentary....................................................................................... 383
3.1.5.7 Reservations to treaty provisions concerning dispute settlement or
the monitoring of the implementation of the treaty ............................ 387
Commentary....................................................................................... 387
3.2 Assessment of the permissibility of reservations................................ 391
Commentary....................................................................................... 391
3.2.1 Competence of the treaty monitoring bodies to assess the permissibility
of reservations.................................................................................... 399
Commentary....................................................................................... 400
3.2.2 Specification of the competence of treaty monitoring bodies to assess
the permissibility of reservations ....................................................... 400
Commentary....................................................................................... 400
3.2.3 Consideration of the assessments of treaty monitoring bodies............ 401
Commentary....................................................................................... 401
3.2.4 Bodies competent to assess the permissibility of reservations in the event
of the establishment of a treaty monitoring body ............................... 402
Commentary....................................................................................... 402
3.2.5 Competence of dispute settlement bodies to assess the permissibility
of reservations.................................................................................... 403
Commentary....................................................................................... 403
Annex 12
xii
3.3 Consequences of the non-permissibility of a reservation.................... 403
3.3.1 Irrelevance of distinction among the grounds for non-permissibility........ 403
Commentary....................................................................................... 404
3.3.2 Non-permissibility of reservations and international responsibility.... 407
Commentary....................................................................................... 407
3.3.3 Absence of effect of individual acceptance of a reservation on the
permissibility of the reservation ......................................................... 409
Commentary....................................................................................... 409
3.4 Permissibility of reactions to reservations.......................................... 412
Commentary....................................................................................... 412
3.4.1 Permissibility of the acceptance of a reservation................................ 413
Commentary....................................................................................... 413
3.4.2 Permissibility of an objection to a reservation.................................... 414
Commentary....................................................................................... 414
3.5 Permissibility of an interpretative declaration .................................... 420
Commentary....................................................................................... 420
3.5.1 Permissibility of an interpretative declaration which is in fact
a reservation....................................................................................... 423
Commentary....................................................................................... 424
3.6 Permissibility of reactions to interpretative declarations.................... 426
Commentary....................................................................................... 426
4. Legal effects of reservations and interpretative declarations .............. 427
Commentary....................................................................................... 427
4.1 Establishment of a reservation with regard to another State or
international organization................................................................... 433
Commentary....................................................................................... 433
4.1.1 Establishment of a reservation expressly authorized by a treaty......... 437
Commentary....................................................................................... 437
4.1.2 Establishment of a reservation to a treaty which has to be applied
in its entirety ...................................................................................... 442
Commentary....................................................................................... 442
4.1.3 Establishment of a reservation to a constituent instrument of an
international organization................................................................... 445
Commentary....................................................................................... 445
4.2 Effects of an established reservation .................................................. 446
xiii
Commentary....................................................................................... 446
4.2.1 Status of the author of an established reservation............................... 446
Commentary....................................................................................... 446
4.2.2 Effect of the establishment of a reservation on the entry into force
of a treaty ........................................................................................... 451
Commentary....................................................................................... 451
4.2.3 Effect of the establishment of a reservation on the status of the author
as a party to the treaty ........................................................................ 452
Commentary....................................................................................... 453
4.2.4 Effect of an established reservation on treaty relations ...................... 454
Commentary....................................................................................... 454
4.2.5 Non-reciprocal application of obligations to which a reservation relates... 464
Commentary....................................................................................... 464
4.2.6 Interpretation of reservations ............................................................. 467
Commentary....................................................................................... 467
4.3 Effect of an objection to a valid reservation ....................................... 472
Commentary....................................................................................... 472
4.3.1 Effect of an objection on the entry into force of the treaty as between
the author of the objection and the author of a reservation................. 474
Commentary....................................................................................... 474
4.3.2 Effect of an objection to a reservation that is formulated late............. 476
Commentary....................................................................................... 476
4.3.3 Entry into force of the treaty between the author of a reservation and
the author of an objection................................................................... 477
Commentary....................................................................................... 477
4.3.4 Non-entry into force of the treaty for the author of a reservation when
unanimous acceptance is required ...................................................... 477
Commentary....................................................................................... 478
4.3.5 Non-entry into force of the treaty as between the author of a reservation
and the author of an objection with maximum effect.......................... 478
Commentary....................................................................................... 478
4.3.6 Effect of an objection on treaty relations............................................ 481
Commentary....................................................................................... 482
4.3.7 Effect of an objection on provisions other than those to which
the reservation relates......................................................................... 492
Commentary....................................................................................... 493
Annex 12
xii
3.3 Consequences of the non-permissibility of a reservation.................... 403
3.3.1 Irrelevance of distinction among the grounds for non-permissibility........ 403
Commentary....................................................................................... 404
3.3.2 Non-permissibility of reservations and international responsibility.... 407
Commentary....................................................................................... 407
3.3.3 Absence of effect of individual acceptance of a reservation on the
permissibility of the reservation ......................................................... 409
Commentary....................................................................................... 409
3.4 Permissibility of reactions to reservations.......................................... 412
Commentary....................................................................................... 412
3.4.1 Permissibility of the acceptance of a reservation................................ 413
Commentary....................................................................................... 413
3.4.2 Permissibility of an objection to a reservation.................................... 414
Commentary....................................................................................... 414
3.5 Permissibility of an interpretative declaration .................................... 420
Commentary....................................................................................... 420
3.5.1 Permissibility of an interpretative declaration which is in fact
a reservation....................................................................................... 423
Commentary....................................................................................... 424
3.6 Permissibility of reactions to interpretative declarations.................... 426
Commentary....................................................................................... 426
4. Legal effects of reservations and interpretative declarations .............. 427
Commentary....................................................................................... 427
4.1 Establishment of a reservation with regard to another State or
international organization................................................................... 433
Commentary....................................................................................... 433
4.1.1 Establishment of a reservation expressly authorized by a treaty......... 437
Commentary....................................................................................... 437
4.1.2 Establishment of a reservation to a treaty which has to be applied
in its entirety ...................................................................................... 442
Commentary....................................................................................... 442
4.1.3 Establishment of a reservation to a constituent instrument of an
international organization................................................................... 445
Commentary....................................................................................... 445
4.2 Effects of an established reservation .................................................. 446
xiii
Commentary....................................................................................... 446
4.2.1 Status of the author of an established reservation............................... 446
Commentary....................................................................................... 446
4.2.2 Effect of the establishment of a reservation on the entry into force
of a treaty ........................................................................................... 451
Commentary....................................................................................... 451
4.2.3 Effect of the establishment of a reservation on the status of the author
as a party to the treaty ........................................................................ 452
Commentary....................................................................................... 453
4.2.4 Effect of an established reservation on treaty relations ...................... 454
Commentary....................................................................................... 454
4.2.5 Non-reciprocal application of obligations to which a reservation relates... 464
Commentary....................................................................................... 464
4.2.6 Interpretation of reservations ............................................................. 467
Commentary....................................................................................... 467
4.3 Effect of an objection to a valid reservation ....................................... 472
Commentary....................................................................................... 472
4.3.1 Effect of an objection on the entry into force of the treaty as between
the author of the objection and the author of a reservation................. 474
Commentary....................................................................................... 474
4.3.2 Effect of an objection to a reservation that is formulated late............. 476
Commentary....................................................................................... 476
4.3.3 Entry into force of the treaty between the author of a reservation and
the author of an objection................................................................... 477
Commentary....................................................................................... 477
4.3.4 Non-entry into force of the treaty for the author of a reservation when
unanimous acceptance is required ...................................................... 477
Commentary....................................................................................... 478
4.3.5 Non-entry into force of the treaty as between the author of a reservation
and the author of an objection with maximum effect.......................... 478
Commentary....................................................................................... 478
4.3.6 Effect of an objection on treaty relations............................................ 481
Commentary....................................................................................... 482
4.3.7 Effect of an objection on provisions other than those to which
the reservation relates......................................................................... 492
Commentary....................................................................................... 493
Annex 12
xiv
4.3.8 Right of the author of a valid reservation not to comply with the treaty
without the benefit of its reservation .................................................. 495
Commentary....................................................................................... 495
4.4 Effect of a reservation on rights and obligations independent of
the treaty ............................................................................................ 497
4.4.1 Absence of effect on rights and obligations under other treaties ........ 497
Commentary....................................................................................... 497
4.4.2 Absence of effect on rights and obligations under customary
international law................................................................................. 498
Commentary....................................................................................... 498
4.4.3 Absence of effect on a peremptory norm of general international
law (jus cogens) ................................................................................. 501
Commentary....................................................................................... 501
4.5 Consequences of an invalid reservation.............................................. 502
Commentary....................................................................................... 502
4.5.1 Nullity of an invalid reservation......................................................... 509
Commentary....................................................................................... 509
4.5.2 Reactions to a reservation considered invalid..................................... 520
Commentary....................................................................................... 520
4.5.3 Status of the author of an invalid reservation in relation to the treaty ...... 524
Commentary....................................................................................... 525
4.6 Absence of effect of a reservation on the relations between the other
parties to the treaty............................................................................. 542
Commentary....................................................................................... 542
4.7 Effect of interpretative declarations ................................................... 545
Commentary....................................................................................... 545
4.7.1 Clarification of the terms of the treaty by an interpretative declaration .... 547
Commentary....................................................................................... 547
4.7.2 Effect of the modification or the withdrawal of an interpretative
declaration.......................................................................................... 557
Commentary....................................................................................... 557
4.7.3 Effect of an interpretative declaration approved by all the contracting
States and contracting organizations................................................... 559
Commentary....................................................................................... 559
5. Reservations, acceptances of reservations, objections to reservations,
and interpretative declarations in cases of succession of States.......... 560
xv
Commentary....................................................................................... 560
5.1 Reservations in cases of succession of States ..................................... 563
5.1.1 Newly independent States .................................................................. 563
Commentary....................................................................................... 563
5.1.2 Uniting or separation of States ........................................................... 572
Commentary....................................................................................... 572
5.1.3 Irrelevance of certain reservations in cases involving a uniting of States ... 578
Commentary....................................................................................... 578
5.1.4 Maintenance of the territorial scope of reservations formulated by
the predecessor State .......................................................................... 579
Commentary....................................................................................... 580
5.1.5 Territorial scope of reservations in cases involving a uniting of States....... 580
Commentary....................................................................................... 581
5.1.6 Territorial scope of reservations of the successor State in cases of
succession involving part of territory ................................................. 583
Commentary....................................................................................... 584
5.1.7 Timing of the effects of non-maintenance by a successor State of a
reservation formulated by the predecessor State................................. 585
Commentary....................................................................................... 585
5.1.8 Late formulation of a reservation by a successor State ....................... 585
Commentary....................................................................................... 586
5.2 Objections to reservations in cases of succession of States ................ 587
5.2.1 Maintenance by the successor State of objections formulated by the
predecessor State................................................................................ 587
Commentary....................................................................................... 587
5.2.2 Irrelevance of certain objections in cases involving a uniting of States...... 590
Commentary....................................................................................... 590
5.2.3 Maintenance of objections to reservations of the predecessor State ... 590
Commentary....................................................................................... 591
5.2.4 Reservations of the predecessor State to which no objections have
been made .......................................................................................... 591
Commentary....................................................................................... 591
5.2.5 Right of a successor State to formulate objections to reservations ..... 592
Commentary....................................................................................... 592
5.2.6 Objections by a successor State other than a newly independent State in
respect of which a treaty continues in force ....................................... 594
Annex 12
xiv
4.3.8 Right of the author of a valid reservation not to comply with the treaty
without the benefit of its reservation .................................................. 495
Commentary....................................................................................... 495
4.4 Effect of a reservation on rights and obligations independent of
the treaty ............................................................................................ 497
4.4.1 Absence of effect on rights and obligations under other treaties ........ 497
Commentary....................................................................................... 497
4.4.2 Absence of effect on rights and obligations under customary
international law................................................................................. 498
Commentary....................................................................................... 498
4.4.3 Absence of effect on a peremptory norm of general international
law (jus cogens) ................................................................................. 501
Commentary....................................................................................... 501
4.5 Consequences of an invalid reservation.............................................. 502
Commentary....................................................................................... 502
4.5.1 Nullity of an invalid reservation......................................................... 509
Commentary....................................................................................... 509
4.5.2 Reactions to a reservation considered invalid..................................... 520
Commentary....................................................................................... 520
4.5.3 Status of the author of an invalid reservation in relation to the treaty ...... 524
Commentary....................................................................................... 525
4.6 Absence of effect of a reservation on the relations between the other
parties to the treaty............................................................................. 542
Commentary....................................................................................... 542
4.7 Effect of interpretative declarations ................................................... 545
Commentary....................................................................................... 545
4.7.1 Clarification of the terms of the treaty by an interpretative declaration .... 547
Commentary....................................................................................... 547
4.7.2 Effect of the modification or the withdrawal of an interpretative
declaration.......................................................................................... 557
Commentary....................................................................................... 557
4.7.3 Effect of an interpretative declaration approved by all the contracting
States and contracting organizations................................................... 559
Commentary....................................................................................... 559
5. Reservations, acceptances of reservations, objections to reservations,
and interpretative declarations in cases of succession of States.......... 560
xv
Commentary....................................................................................... 560
5.1 Reservations in cases of succession of States ..................................... 563
5.1.1 Newly independent States .................................................................. 563
Commentary....................................................................................... 563
5.1.2 Uniting or separation of States ........................................................... 572
Commentary....................................................................................... 572
5.1.3 Irrelevance of certain reservations in cases involving a uniting of States ... 578
Commentary....................................................................................... 578
5.1.4 Maintenance of the territorial scope of reservations formulated by
the predecessor State .......................................................................... 579
Commentary....................................................................................... 580
5.1.5 Territorial scope of reservations in cases involving a uniting of States....... 580
Commentary....................................................................................... 581
5.1.6 Territorial scope of reservations of the successor State in cases of
succession involving part of territory ................................................. 583
Commentary....................................................................................... 584
5.1.7 Timing of the effects of non-maintenance by a successor State of a
reservation formulated by the predecessor State................................. 585
Commentary....................................................................................... 585
5.1.8 Late formulation of a reservation by a successor State ....................... 585
Commentary....................................................................................... 586
5.2 Objections to reservations in cases of succession of States ................ 587
5.2.1 Maintenance by the successor State of objections formulated by the
predecessor State................................................................................ 587
Commentary....................................................................................... 587
5.2.2 Irrelevance of certain objections in cases involving a uniting of States...... 590
Commentary....................................................................................... 590
5.2.3 Maintenance of objections to reservations of the predecessor State ... 590
Commentary....................................................................................... 591
5.2.4 Reservations of the predecessor State to which no objections have
been made .......................................................................................... 591
Commentary....................................................................................... 591
5.2.5 Right of a successor State to formulate objections to reservations ..... 592
Commentary....................................................................................... 592
5.2.6 Objections by a successor State other than a newly independent State in
respect of which a treaty continues in force ....................................... 594
Annex 12
xvi
Commentary....................................................................................... 594
5.3 Acceptances of reservations in cases of succession of States ............. 595
5.3.1 Maintenance by a newly independent State of express acceptances
formulated by the predecessor State ................................................... 595
Commentary....................................................................................... 595
5.3.2 Maintenance by a successor State other than a newly independent State
of express acceptances formulated by the predecessor State .............. 597
Commentary....................................................................................... 597
5.3.3 Timing of the effects of non-maintenance by a successor State of an
express acceptance formulated by the predecessor State .................... 598
Commentary....................................................................................... 598
5.4 Legal effects of reservations, acceptances and objections in cases of
succession of States............................................................................ 598
Commentary....................................................................................... 598
5.5 Interpretative declarations in cases of succession of States ................ 599
Commentary....................................................................................... 599
Annex
Conclusions on the reservations dialogue........................................... 601
Bibliography ............................................................................................................. 603
A/66/10/Add.1
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Chapter IV
Reservations to treaties (continued)
F. Text of the Guide to Practice on Reservations to Treaties, adopted by the
Commission at its sixty-third session
1. Text of the guidelines constituting the Guide to Practice, followed by an
annex on the reservations dialogue (A/66/10, para. 75)
1. The text of the guidelines constituting the Guide to Practice on Reservations to Treaties
adopted by the Commission at its sixty-third session, followed by an annex on the reservations
dialogue, is reproduced below:
Guide to Practice on Reservations to Treaties
1. Definitions
1.1 Definition of reservations
1. “Reservation” means a unilateral statement, however phrased or named, made by a
State or an international organization when signing, ratifying, formally confirming, accepting,
approving or acceding to a treaty, or by a State when making a notification of succession to a
treaty, whereby the State or organization purports to exclude or to modify the legal effect of
certain provisions of the treaty in their application to that State or to that international
organization.
2. Paragraph 1 is to be interpreted as including reservations which purport to exclude or to
modify the legal effect of certain provisions of a treaty, or of the treaty as a whole with respect
to certain specific aspects, in their application to the State or to the international organization
which formulates the reservation.
1.1.1 Statements purporting to limit the obligations of their author
A unilateral statement formulated by a State or an international organization at the time
when that State or that organization expresses its consent to be bound by a treaty, by which its
author purports to limit the obligations imposed on it by the treaty, constitutes a reservation.
1.1.2 Statements purporting to discharge an obligation by equivalent means
A unilateral statement formulated by a State or an international organization at the time
when that State or that organization expresses its consent to be bound by a treaty, by which
that State or that organization purports to discharge an obligation pursuant to the treaty in a
Annex 12
xvi
Commentary....................................................................................... 594
5.3 Acceptances of reservations in cases of succession of States ............. 595
5.3.1 Maintenance by a newly independent State of express acceptances
formulated by the predecessor State ................................................... 595
Commentary....................................................................................... 595
5.3.2 Maintenance by a successor State other than a newly independent State
of express acceptances formulated by the predecessor State .............. 597
Commentary....................................................................................... 597
5.3.3 Timing of the effects of non-maintenance by a successor State of an
express acceptance formulated by the predecessor State .................... 598
Commentary....................................................................................... 598
5.4 Legal effects of reservations, acceptances and objections in cases of
succession of States............................................................................ 598
Commentary....................................................................................... 598
5.5 Interpretative declarations in cases of succession of States ................ 599
Commentary....................................................................................... 599
Annex
Conclusions on the reservations dialogue........................................... 601
Bibliography ............................................................................................................. 603
A/66/10/Add.1
12-20318 1
Chapter IV
Reservations to treaties (continued)
F. Text of the Guide to Practice on Reservations to Treaties, adopted by the
Commission at its sixty-third session
1. Text of the guidelines constituting the Guide to Practice, followed by an
annex on the reservations dialogue (A/66/10, para. 75)
1. The text of the guidelines constituting the Guide to Practice on Reservations to Treaties
adopted by the Commission at its sixty-third session, followed by an annex on the reservations
dialogue, is reproduced below:
Guide to Practice on Reservations to Treaties
1. Definitions
1.1 Definition of reservations
1. “Reservation” means a unilateral statement, however phrased or named, made by a
State or an international organization when signing, ratifying, formally confirming, accepting,
approving or acceding to a treaty, or by a State when making a notification of succession to a
treaty, whereby the State or organization purports to exclude or to modify the legal effect of
certain provisions of the treaty in their application to that State or to that international
organization.
2. Paragraph 1 is to be interpreted as including reservations which purport to exclude or to
modify the legal effect of certain provisions of a treaty, or of the treaty as a whole with respect
to certain specific aspects, in their application to the State or to the international organization
which formulates the reservation.
1.1.1 Statements purporting to limit the obligations of their author
A unilateral statement formulated by a State or an international organization at the time
when that State or that organization expresses its consent to be bound by a treaty, by which its
author purports to limit the obligations imposed on it by the treaty, constitutes a reservation.
1.1.2 Statements purporting to discharge an obligation by equivalent means
A unilateral statement formulated by a State or an international organization at the time
when that State or that organization expresses its consent to be bound by a treaty, by which
that State or that organization purports to discharge an obligation pursuant to the treaty in a
Annex 12
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2. A State or an international organization that intends to treat an interpretative
declaration as a reservation should take into account guidelines 1.3 to 1.3.3.
2.9.4 Right to formulate approval or opposition, or to recharacterize
An approval, opposition or recharacterization in respect of an interpretative declaration
may be formulated at any time by any contracting State or any contracting organization and by
any State or any international organization that is entitled to become a party to the treaty.
2.9.5 Form of approval, opposition and recharacterization
An approval, opposition or recharacterization in respect of an interpretative declaration
should preferably be formulated in writing.
2.9.6 Statement of reasons for approval, opposition and recharacterization
An approval, opposition or recharacterization in respect of an interpretative declaration
should, to the extent possible, indicate the reasons why it is being formulated.
2.9.7 Formulation and communication of approval, opposition or recharacterization
Guidelines 2.1.3, 2.1.4, 2.1.5, 2.1.6 and 2.1.7 are applicable mutatis mutandis to an
approval, opposition or recharacterization in respect of an interpretative declaration.
2.9.8 Non-presumption of approval or opposition
1. An approval of, or an opposition to, an interpretative declaration shall not be presumed.
2. Notwithstanding guidelines 2.9.1 and 2.9.2, an approval of an interpretative declaration
or an opposition thereto may be inferred, in exceptional cases, from the conduct of the States
or international organizations concerned, taking into account all relevant circumstances.
2.9.9 Silence with respect to an interpretative declaration
An approval of an interpretative declaration shall not be inferred from the mere silence
of a State or an international organization.
3. Permissibility of reservations and interpretative declarations
3.1 Permissible reservations
A State or an international organization may, when signing, ratifying, formally
confirming, accepting, approving or acceding to a treaty, formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations, which do not include the
reservation in question, may be made; or
(c) in cases not falling under subparagraphs (a) and (b), the reservation is
incompatible with the object and purpose of the treaty.
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18 12-20318
3.1.1 Reservations prohibited by the treaty
A reservation is prohibited by the treaty if it contains a provision:
(a) prohibiting all reservations;
(b) prohibiting reservations to specified provisions to which the reservation in
question relates; or
(c) prohibiting certain categories of reservations including the reservation in
question.
3.1.2 Definition of specified reservations
For the purposes of guideline 3.1, the expression “specified reservations” means
reservations that are expressly envisaged in the treaty to certain provisions of the treaty or to
the treaty as a whole with respect to certain specific aspects.
3.1.3 Permissibility of reservations not prohibited by the treaty
Where the treaty prohibits the formulation of certain reservations, a reservation which
is not prohibited by the treaty may be formulated by a State or an international organization
only if it is not incompatible with the object and purpose of the treaty.
3.1.4 Permissibility of specified reservations
Where the treaty envisages the formulation of specified reservations without defining
their content, a reservation may be formulated by a State or an international organization only
if it is not incompatible with the object and purpose of the treaty.
3.1.5 Incompatibility of a reservation with the object and purpose of the treaty
A reservation is incompatible with the object and purpose of the treaty if it affects an
essential element of the treaty that is necessary to its general tenour, in such a way that the
reservation impairs the raison d’être of the treaty.
3.1.5.1 Determination of the object and purpose of the treaty
The object and purpose of the treaty is to be determined in good faith, taking account of
the terms of the treaty in their context, in particular the title and the preamble of the treaty.
Recourse may also be had to the preparatory work of the treaty and the circumstances of its
conclusion and, where appropriate, the subsequent practice of the parties.
3.1.5.2 Vague or general reservations
A reservation shall be worded in such a way as to allow its meaning to be understood,
in order to assess in particular its compatibility with the object and purpose of the treaty.
3.1.5.3 Reservations to a provision reflecting a customary rule
The fact that a treaty provision reflects a rule of customary international law does not in
itself constitute an obstacle to the formulation of a reservation to that provision.
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2. A State or an international organization that intends to treat an interpretative
declaration as a reservation should take into account guidelines 1.3 to 1.3.3.
2.9.4 Right to formulate approval or opposition, or to recharacterize
An approval, opposition or recharacterization in respect of an interpretative declaration
may be formulated at any time by any contracting State or any contracting organization and by
any State or any international organization that is entitled to become a party to the treaty.
2.9.5 Form of approval, opposition and recharacterization
An approval, opposition or recharacterization in respect of an interpretative declaration
should preferably be formulated in writing.
2.9.6 Statement of reasons for approval, opposition and recharacterization
An approval, opposition or recharacterization in respect of an interpretative declaration
should, to the extent possible, indicate the reasons why it is being formulated.
2.9.7 Formulation and communication of approval, opposition or recharacterization
Guidelines 2.1.3, 2.1.4, 2.1.5, 2.1.6 and 2.1.7 are applicable mutatis mutandis to an
approval, opposition or recharacterization in respect of an interpretative declaration.
2.9.8 Non-presumption of approval or opposition
1. An approval of, or an opposition to, an interpretative declaration shall not be presumed.
2. Notwithstanding guidelines 2.9.1 and 2.9.2, an approval of an interpretative declaration
or an opposition thereto may be inferred, in exceptional cases, from the conduct of the States
or international organizations concerned, taking into account all relevant circumstances.
2.9.9 Silence with respect to an interpretative declaration
An approval of an interpretative declaration shall not be inferred from the mere silence
of a State or an international organization.
3. Permissibility of reservations and interpretative declarations
3.1 Permissible reservations
A State or an international organization may, when signing, ratifying, formally
confirming, accepting, approving or acceding to a treaty, formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations, which do not include the
reservation in question, may be made; or
(c) in cases not falling under subparagraphs (a) and (b), the reservation is
incompatible with the object and purpose of the treaty.
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18 12-20318
3.1.1 Reservations prohibited by the treaty
A reservation is prohibited by the treaty if it contains a provision:
(a) prohibiting all reservations;
(b) prohibiting reservations to specified provisions to which the reservation in
question relates; or
(c) prohibiting certain categories of reservations including the reservation in
question.
3.1.2 Definition of specified reservations
For the purposes of guideline 3.1, the expression “specified reservations” means
reservations that are expressly envisaged in the treaty to certain provisions of the treaty or to
the treaty as a whole with respect to certain specific aspects.
3.1.3 Permissibility of reservations not prohibited by the treaty
Where the treaty prohibits the formulation of certain reservations, a reservation which
is not prohibited by the treaty may be formulated by a State or an international organization
only if it is not incompatible with the object and purpose of the treaty.
3.1.4 Permissibility of specified reservations
Where the treaty envisages the formulation of specified reservations without defining
their content, a reservation may be formulated by a State or an international organization only
if it is not incompatible with the object and purpose of the treaty.
3.1.5 Incompatibility of a reservation with the object and purpose of the treaty
A reservation is incompatible with the object and purpose of the treaty if it affects an
essential element of the treaty that is necessary to its general tenour, in such a way that the
reservation impairs the raison d’être of the treaty.
3.1.5.1 Determination of the object and purpose of the treaty
The object and purpose of the treaty is to be determined in good faith, taking account of
the terms of the treaty in their context, in particular the title and the preamble of the treaty.
Recourse may also be had to the preparatory work of the treaty and the circumstances of its
conclusion and, where appropriate, the subsequent practice of the parties.
3.1.5.2 Vague or general reservations
A reservation shall be worded in such a way as to allow its meaning to be understood,
in order to assess in particular its compatibility with the object and purpose of the treaty.
3.1.5.3 Reservations to a provision reflecting a customary rule
The fact that a treaty provision reflects a rule of customary international law does not in
itself constitute an obstacle to the formulation of a reservation to that provision.
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3.1.5.4 Reservations to provisions concerning rights from which no derogation is permissible
under any circumstances
A State or an international organization may not formulate a reservation to a treaty
provision concerning rights from which no derogation is permissible under any circumstances,
unless the reservation in question is compatible with the essential rights and obligations
arising out of that treaty. In assessing that compatibility, account shall be taken of the
importance which the parties have conferred upon the rights at issue by making them nonderogable.
3.1.5.5 Reservations relating to internal law
A reservation by which a State or an international organization purports to exclude or
to modify the legal effect of certain provisions of a treaty or of the treaty as a whole in order
to preserve the integrity of specific rules of the internal law of that State or of specific rules of
that organization in force at the time of the formulation of the reservation may be formulated
only insofar as it does not affect an essential element of the treaty nor its general tenour.
3.1.5.6 Reservations to treaties containing numerous interdependent rights and obligations
To assess the compatibility of a reservation with the object and purpose of a treaty
containing numerous interdependent rights and obligations, account shall be taken of that
interdependence as well as the importance that the provision to which the reservation relates
has within the general tenour of the treaty, and the extent of the impact that the reservation has
on the treaty.
3.1.5.7 Reservations to treaty provisions concerning dispute settlement or the monitoring of the
implementation of the treaty
A reservation to a treaty provision concerning dispute settlement or the monitoring of
the implementation of the treaty is not, in itself, incompatible with the object and purpose of
the treaty, unless:
(i) the reservation purports to exclude or modify the legal effect of a provision of
the treaty essential to its raison d’être; or
(ii) the reservation has the effect of excluding the reserving State or international
organization from a dispute settlement or treaty implementation monitoring mechanism
with respect to a treaty provision that it has previously accepted, if the very purpose of
the treaty is to put such a mechanism into effect.
3.2 Assessment of the permissibility of reservations
The following may assess, within their respective competences, the permissibility of
reservations to a treaty formulated by a State or an international organization:
• contracting States or contracting organizations;
• dispute settlement bodies;
• treaty monitoring bodies.
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20 12-20318
3.2.1 Competence of the treaty monitoring bodies to assess the permissibility of reservations
1. A treaty monitoring body may, for the purpose of discharging the functions entrusted to
it, assess the permissibility of reservations formulated by a State or an international
organization.
2. The assessment made by such a body in the exercise of this competence has no greater
legal effect than that of the act which contains it.
3.2.2 Specification of the competence of treaty monitoring bodies to assess the permissibility of
reservations
When providing bodies with the competence to monitor the application of treaties,
States or international organizations should specify, where appropriate, the nature and the
limits of the competence of such bodies to assess the permissibility of reservations.
3.2.3 Consideration of the assessments of treaty monitoring bodies
States and international organizations that have formulated reservations to a treaty
establishing a treaty monitoring body shall give consideration to that body’s assessment of the
permissibility of the reservations.
3.2.4 Bodies competent to assess the permissibility of reservations in the event of the
establishment of a treaty monitoring body
When a treaty establishes a treaty monitoring body, the competence of that body is
without prejudice to the competence of the contracting States or contracting organizations to
assess the permissibility of reservations to that treaty, or to that of dispute settlement bodies
competent to interpret or apply the treaty.
3.2.5 Competence of dispute settlement bodies to assess the permissibility of reservations
When a dispute settlement body is competent to adopt decisions binding upon the
parties to a dispute, and the assessment of the permissibility of a reservation is necessary for
the discharge of such competence by that body, such assessment is, as an element of the
decision, legally binding upon the parties.
3.3 Consequences of the non-permissibility of a reservation
3.3.1 Irrelevance of distinction among the grounds for non-permissibility
A reservation formulated notwithstanding a prohibition arising from the provisions of
the treaty or notwithstanding its incompatibility with the object and purpose of the treaty is
impermissible, without there being any need to distinguish between the consequences of these
grounds for non-permissibility.
3.3.2 Non-permissibility of reservations and international responsibility
The formulation of an impermissible reservation produces its consequences pursuant to
the law of treaties and does not engage the international responsibility of the State or
international organization which has formulated it.
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3.1.5.4 Reservations to provisions concerning rights from which no derogation is permissible
under any circumstances
A State or an international organization may not formulate a reservation to a treaty
provision concerning rights from which no derogation is permissible under any circumstances,
unless the reservation in question is compatible with the essential rights and obligations
arising out of that treaty. In assessing that compatibility, account shall be taken of the
importance which the parties have conferred upon the rights at issue by making them nonderogable.
3.1.5.5 Reservations relating to internal law
A reservation by which a State or an international organization purports to exclude or
to modify the legal effect of certain provisions of a treaty or of the treaty as a whole in order
to preserve the integrity of specific rules of the internal law of that State or of specific rules of
that organization in force at the time of the formulation of the reservation may be formulated
only insofar as it does not affect an essential element of the treaty nor its general tenour.
3.1.5.6 Reservations to treaties containing numerous interdependent rights and obligations
To assess the compatibility of a reservation with the object and purpose of a treaty
containing numerous interdependent rights and obligations, account shall be taken of that
interdependence as well as the importance that the provision to which the reservation relates
has within the general tenour of the treaty, and the extent of the impact that the reservation has
on the treaty.
3.1.5.7 Reservations to treaty provisions concerning dispute settlement or the monitoring of the
implementation of the treaty
A reservation to a treaty provision concerning dispute settlement or the monitoring of
the implementation of the treaty is not, in itself, incompatible with the object and purpose of
the treaty, unless:
(i) the reservation purports to exclude or modify the legal effect of a provision of
the treaty essential to its raison d’être; or
(ii) the reservation has the effect of excluding the reserving State or international
organization from a dispute settlement or treaty implementation monitoring mechanism
with respect to a treaty provision that it has previously accepted, if the very purpose of
the treaty is to put such a mechanism into effect.
3.2 Assessment of the permissibility of reservations
The following may assess, within their respective competences, the permissibility of
reservations to a treaty formulated by a State or an international organization:
• contracting States or contracting organizations;
• dispute settlement bodies;
• treaty monitoring bodies.
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3.2.1 Competence of the treaty monitoring bodies to assess the permissibility of reservations
1. A treaty monitoring body may, for the purpose of discharging the functions entrusted to
it, assess the permissibility of reservations formulated by a State or an international
organization.
2. The assessment made by such a body in the exercise of this competence has no greater
legal effect than that of the act which contains it.
3.2.2 Specification of the competence of treaty monitoring bodies to assess the permissibility of
reservations
When providing bodies with the competence to monitor the application of treaties,
States or international organizations should specify, where appropriate, the nature and the
limits of the competence of such bodies to assess the permissibility of reservations.
3.2.3 Consideration of the assessments of treaty monitoring bodies
States and international organizations that have formulated reservations to a treaty
establishing a treaty monitoring body shall give consideration to that body’s assessment of the
permissibility of the reservations.
3.2.4 Bodies competent to assess the permissibility of reservations in the event of the
establishment of a treaty monitoring body
When a treaty establishes a treaty monitoring body, the competence of that body is
without prejudice to the competence of the contracting States or contracting organizations to
assess the permissibility of reservations to that treaty, or to that of dispute settlement bodies
competent to interpret or apply the treaty.
3.2.5 Competence of dispute settlement bodies to assess the permissibility of reservations
When a dispute settlement body is competent to adopt decisions binding upon the
parties to a dispute, and the assessment of the permissibility of a reservation is necessary for
the discharge of such competence by that body, such assessment is, as an element of the
decision, legally binding upon the parties.
3.3 Consequences of the non-permissibility of a reservation
3.3.1 Irrelevance of distinction among the grounds for non-permissibility
A reservation formulated notwithstanding a prohibition arising from the provisions of
the treaty or notwithstanding its incompatibility with the object and purpose of the treaty is
impermissible, without there being any need to distinguish between the consequences of these
grounds for non-permissibility.
3.3.2 Non-permissibility of reservations and international responsibility
The formulation of an impermissible reservation produces its consequences pursuant to
the law of treaties and does not engage the international responsibility of the State or
international organization which has formulated it.
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3.3.3 Absence of effect of individual acceptance of a reservation on the permissibility of the
reservation
Acceptance of an impermissible reservation by a contracting State or by a contracting
organization shall not affect the impermissibility of the reservation.
3.4 Permissibility of reactions to reservations
3.4.1 Permissibility of the acceptance of a reservation
Acceptance of a reservation is not subject to any condition of permissibility.
3.4.2 Permissibility of an objection to a reservation
An objection to a reservation by which a State or an international organization purports
to exclude in its relations with the author of the reservation the application of provisions of the
treaty to which the reservation does not relate is only permissible if:
(1) the provisions thus excluded have a sufficient link with the provisions to which
the reservation relates; and
(2) the objection would not defeat the object and purpose of the treaty in the
relations between the author of the reservation and the author of the objection.
3.5 Permissibility of an interpretative declaration
A State or an international organization may formulate an interpretative declaration
unless the interpretative declaration is prohibited by the treaty.
3.5.1 Permissibility of an interpretative declaration which is in fact a reservation
If a unilateral statement which appears to be an interpretative declaration is in fact a
reservation, its permissibility must be assessed in accordance with the provisions of guidelines
3.1 to 3.1.5.7.
3.6 Permissibility of reactions to interpretative declarations
An approval of, opposition to, or recharacterization of, an interpretative declaration
shall not be subject to any conditions for permissibility.
4. Legal effects of reservations and interpretative declarations
4.1 Establishment of a reservation with regard to another State or international
organization
A reservation formulated by a State or an international organization is established with
regard to a contracting State or a contracting organization if it is permissible and was
formulated in accordance with the required form and procedures, and if that contracting State
or contracting organization has accepted it.
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22 12-20318
4.1.1 Establishment of a reservation expressly authorized by a treaty
1. A reservation expressly authorized by a treaty does not require any subsequent
acceptance by the other contracting States and contracting organizations, unless the treaty so
provides.
2. A reservation expressly authorized by a treaty is established with regard to the other
contracting States and contracting organizations if it was formulated in accordance with the
required form and procedures.
4.1.2 Establishment of a reservation to a treaty which has to be applied in its entirety
When it appears, from the limited number of negotiating States and organizations and
the object and purpose of the treaty, that the application of the treaty in its entirety between all
the parties is an essential condition of the consent of each one to be bound by the treaty, a
reservation to this treaty is established with regard to the other contracting States and
contracting organizations if it is permissible and was formulated in accordance with the
required form and procedures, and if all the contracting States and contracting organizations
have accepted it.
4.1.3 Establishment of a reservation to a constituent instrument of an international
organization
When a treaty is a constituent instrument of an international organization, a reservation
to this treaty is established with regard to the other contracting States and contracting
organizations if it is permissible and was formulated in accordance with the required form and
procedures, and if it has been accepted in conformity with guidelines 2.8.8 to 2.8.11.
4.2 Effects of an established reservation
4.2.1 Status of the author of an established reservation
As soon as a reservation is established in accordance with guidelines 4.1 to 4.1.3, its
author becomes a contracting State or contracting organization to the treaty.
4.2.2 Effect of the establishment of a reservation on the entry into force of a treaty
1. When a treaty has not yet entered into force, the author of a reservation shall be
included in the number of contracting States and contracting organizations required for the
treaty to enter into force once the reservation is established.
2. The author of the reservation may however be included at a date prior to the
establishment of the reservation in the number of contracting States and contracting
organizations required for the treaty to enter into force, if no contracting State or contracting
organization is opposed.
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3.3.3 Absence of effect of individual acceptance of a reservation on the permissibility of the
reservation
Acceptance of an impermissible reservation by a contracting State or by a contracting
organization shall not affect the impermissibility of the reservation.
3.4 Permissibility of reactions to reservations
3.4.1 Permissibility of the acceptance of a reservation
Acceptance of a reservation is not subject to any condition of permissibility.
3.4.2 Permissibility of an objection to a reservation
An objection to a reservation by which a State or an international organization purports
to exclude in its relations with the author of the reservation the application of provisions of the
treaty to which the reservation does not relate is only permissible if:
(1) the provisions thus excluded have a sufficient link with the provisions to which
the reservation relates; and
(2) the objection would not defeat the object and purpose of the treaty in the
relations between the author of the reservation and the author of the objection.
3.5 Permissibility of an interpretative declaration
A State or an international organization may formulate an interpretative declaration
unless the interpretative declaration is prohibited by the treaty.
3.5.1 Permissibility of an interpretative declaration which is in fact a reservation
If a unilateral statement which appears to be an interpretative declaration is in fact a
reservation, its permissibility must be assessed in accordance with the provisions of guidelines
3.1 to 3.1.5.7.
3.6 Permissibility of reactions to interpretative declarations
An approval of, opposition to, or recharacterization of, an interpretative declaration
shall not be subject to any conditions for permissibility.
4. Legal effects of reservations and interpretative declarations
4.1 Establishment of a reservation with regard to another State or international
organization
A reservation formulated by a State or an international organization is established with
regard to a contracting State or a contracting organization if it is permissible and was
formulated in accordance with the required form and procedures, and if that contracting State
or contracting organization has accepted it.
A/66/10/Add.1
22 12-20318
4.1.1 Establishment of a reservation expressly authorized by a treaty
1. A reservation expressly authorized by a treaty does not require any subsequent
acceptance by the other contracting States and contracting organizations, unless the treaty so
provides.
2. A reservation expressly authorized by a treaty is established with regard to the other
contracting States and contracting organizations if it was formulated in accordance with the
required form and procedures.
4.1.2 Establishment of a reservation to a treaty which has to be applied in its entirety
When it appears, from the limited number of negotiating States and organizations and
the object and purpose of the treaty, that the application of the treaty in its entirety between all
the parties is an essential condition of the consent of each one to be bound by the treaty, a
reservation to this treaty is established with regard to the other contracting States and
contracting organizations if it is permissible and was formulated in accordance with the
required form and procedures, and if all the contracting States and contracting organizations
have accepted it.
4.1.3 Establishment of a reservation to a constituent instrument of an international
organization
When a treaty is a constituent instrument of an international organization, a reservation
to this treaty is established with regard to the other contracting States and contracting
organizations if it is permissible and was formulated in accordance with the required form and
procedures, and if it has been accepted in conformity with guidelines 2.8.8 to 2.8.11.
4.2 Effects of an established reservation
4.2.1 Status of the author of an established reservation
As soon as a reservation is established in accordance with guidelines 4.1 to 4.1.3, its
author becomes a contracting State or contracting organization to the treaty.
4.2.2 Effect of the establishment of a reservation on the entry into force of a treaty
1. When a treaty has not yet entered into force, the author of a reservation shall be
included in the number of contracting States and contracting organizations required for the
treaty to enter into force once the reservation is established.
2. The author of the reservation may however be included at a date prior to the
establishment of the reservation in the number of contracting States and contracting
organizations required for the treaty to enter into force, if no contracting State or contracting
organization is opposed.
Annex 12
Annex 13
African Union Border Programme, Third Declaration on the African Union Border Programme
Adopted by the Third Conference of African Ministers in Charge of Border Issues, Niamey,
Niger, AUBP/EXP-MIN/7 (17 May 2012), reprinted in Africa, From Barriers to Bridges:
Collection of Official Texts on African Borders from 1963 to 2012 (2013)
From Barriers
to Bridges
Collection of Official Texts
on African Borders
from 1963 to 2012
Annex 13
2 | From Barriers to Bridges
This work is published under the sole responsibility of the Commission of
the African Union/Department of Peace and Security (African Union Border
Programme).
All rights reserved.
You can copy, download or print the contents of this book for your own use,
and you can include excerpts from this guidebook in your own documents,
presentations, blogs, websites and teaching materials, provided that suitable
acknowledgement of the source and copyright owner is given. All requests
for public and commercial use and translation rights should be submitted to
[email protected].
© Commission of the African Union, Department of Peace and Security,
Addis Ababa, May 2013
2nd edition, 2013
African Union Commission
P.O. Box 3243
Roosevelt Street
Addis Ababa, Ethiopia
Tel. +251 115 513 822
Fax +251 115 519 321
E-mail [email protected]
Design and typesetting Ira Olaleye, Eschborn
Printed by Colour Connection GmbH, Frankfurt
ISBN 978-99944-890-0-8
The African Union expresses its gratitude to the extensive support of the
Government of the Federal Republic of Germany as well as the Deutsche
Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH whose assis- tance has enabled the African Union Border Programme to record significant
results in all related activities. The document at hand serves as one piece
of evidence and successful outcome of the combined efforts of the African
Union Commission/Peace and Security Department and the German Development
Cooperation.
Annex 13
82 | From Barriers to Bridges
implementation of the AUBP, and ENCOURAGES them to continue to
provide and step up their support;
4 URGES Member States to take appropriate measures to implement
the Declaration, especially the components relating to
delimitation/demarcation, cross-border cooperation and capacity
building;
5 REQUESTS the Commission, in collaboration with the Regional
Economic Communities to fully play their respective roles in the
implementation and monitoring of the AUBP;
6 ENDORSES the recommendation by the Second Conference of
African Ministers in charge of Border Issues to institute an “African
Day for Borders” so as to further highlight the importance of the
AUBP and encourage additional efforts towards its implementation;
7 RECOMMENDS to the Assembly that the “African Day for Borders”
be celebrated every year on 7 June, in reference to the date of the
First Conference of African Ministers in charge of Border Issues;
8 REQUESTS the Commission and Member States to take advantage
of the activities programmed within the framework of “2010:
The Year of Peace and Security in Africa” to underscore the
importance of the AUBP and the contribution expected from
its implementation towards enhancing the structural prevention of
conflicts;
9 ALSO REQUESTS the Commission to report regularly to the Executive
Council on the implementation of this Decision.
THIRD DECLARATION ON THE AFRICAN UNION
BORDER PROGRAMME ADOPTED BY THE
THIRD CONFERENCE OF AFRICAN MINISTERS
IN CHARGE OF BORDER ISSUES, NIAMEY, NIGER,
17 MAY 2012, AUBP/EXP-MIN/7 (5)
1 We, the Ministers of Member States of the African Union (AU) in
Charge of Border Issues, have held our 3rd Conference in Niamey,
Niger, on 17 May 2012, to deliberate on the status of implementation
the AU Border Programme (AUBP). Our Conference was
preceded by a preparatory meeting of experts, from 14 to 16 May
2012. It also witnessed the participation in its deliberations, for
the first time, of the Republic of South Sudan, after its accession to
independence in July 2011, which we warmly welcome.
viii
Annex 13
Collection of Official Texts on African Borders from 1963 to 2012 | 83
2 Our Conference was held as the follow-up to the implementation
of Declarations BP/MIN/Decl.(II) and AUBP/EXP-MIN/7(II), issued at
the end of the First and Second Conferences of African Ministers in
Charge of Border Issues, held in Addis Ababa, Ethiopia, on 7 June
2007 and 25 March 2010, respectively, and the relevant decisions
of the Executive Council and the Assembly of the Union. More
generally, our Conference took place against the background of the
implementation of the various resolutions and decisions adopted by
African leaders on peace and security issues, as well as on regional
integration.
3 We have reviewed the status of the implementation of the AUBP. In
this regard, we welcome the gradual ownership of the Programme
by the Member States and other stakeholders, for this is a prerequisite
for attaining the AUBP objectives. We are also pleased that the
AUBP, after an initial phase of popularisation and sensitisation, has
now entered an operational phase, marked by increased support for
the delimitation and demarcation exercises, the promotion of crossborder
cooperation and capacity building. We note with satisfaction
the progress made in the field, with the multiplication of initiatives
by the Member States to implement the various aspects of
the AUBP, and the celebration, on 7 June 2011, of the First African
Border Day.
4 We also note the emergence of new security challenges, as particularly
illustrated by the crisis in the Sahelo-Saharan region, which,
beyond the delimitation and demarcation of boundaries, highlight
the need for States to ensure the effective control of their territories
and to enhance inter-African cooperation in the field of
border security. Similarly, we note, with concern, the persistent
“thickness” of African borders, which largely explains the low rate
of intra-African trade and the problems faced in the free movement
of persons. These constraints weigh heavily on landlocked countries
that depend greatly on major transport corridors for their international
trade and, therefore, impede economic development efforts.
Finally, the lack of delimitation of maritime boundaries constitutes
a hindrance to the development of energy, fishery and other marine
resources by the coastal states.
5 In this context, we stress the relevance of the principles underlying
the AUBP, as stated in the relevant instruments of the AU, particularly
the principle of the respect of borders existing at the time of
accession of our countries to independence; the principle of peaceful
settlement of border disputes; and the commitment to delimit
and demarcate African boundaries, as factors of peace, security and
economic and social progress.
Annex 13
84 | From Barriers to Bridges
6 In light of the above, we reaffirm our commitment to make renewed
efforts for the effective implementation of the different components
of AUBP, aware as we are of the fact that clearly demarcated
and well managed borders are necessary to maintain peace, security
and stability, enhance economic integration, facilitate trade and
transform borders from barriers to bridges, in particular through
local cross-border cooperation initiatives.
7 At the same time, we recognise the huge tasks that have to be carried
out to attain all the objectives we set for ourselves, as demonstrated
by:
(i) the inadequate responses to the questionnaire that
was sent to Member States within the framework of
the survey on the status of African borders (five years
after its launch, twenty-two Member States have not yet
responded to the questionnaire), which does not make
it possible to have a comprehensive view of delimitation
and demarcation needs;
(ii) the fact, based on responses received to date, that only
35 % of African borders are delimited and demarcated,
while this operation was originally to be completed in
2012, in conformity with the Memorandum of Understanding
on the Conference on Security, Stability, Development
and Cooperation in Africa(CSSDCA);
(iii) the persistence of border disputes, which can degenerate
into serious conflicts;
(iv) the low rate of cross-border cooperation, whether at
local level or within the framework of large scale integration
projects; and
(v) the inappropriate ratio between existing human capacity
and technical and financial resources, considering the
needs for the effective implementation of the AUBP.
8 We stress the need, given the current challenges, of integrated
border management, to tackle, in a holistic way, development and
security challenges in the border areas. We, therefore, encourage
Member States to develop integrated national policies and strategies
in this regard, and to establish, where appropriate, the necessary
institutional structures. We request the Commission to finalise,
as soon as possible, the strategy, currently being prepared, on
integrated border management.
9 As part of such an approach, we reiterate the urgent need for the
effective implementation of the various components of the AUBP.
Annex 13
Collection of Official Texts on African Borders from 1963 to 2012 | 85
On delimitation, demarcation and reaffirmation of
boundaries:
10 Bearing in mind the need to do everything to successfully complete
the delimitation and demarcation of African boundaries, where such
an exercise has not yet taken place, in compliance with the new
deadline of 2017 set by the Assembly of the Union, at its session in
Malabo, in July 2011, we agree to the following:
(i) the completion of the collection of all the data for the
survey of African borders by July 2012 at the latest. Member
States, which have not yet done so are requested to
respond to the questionnaire sent by the Commission
within the time specified;
(ii) the submission by each Member State of an annual report
on the progress made in the demarcation of its borders
based on the format designed by the Commission;
(iii) the acceleration by the Member States of the delimitation
and demarcation of their boundaries, where this
exercise has not yet taken place, taking, if necessary,
all appropriate legal, financial, institutional and other
measures for this purpose, so as to comply with the new
deadline of 2017. Likewise, we urge Member States involved
in border disputes, to do everything for their early
resolution, through peaceful means, with the support,
if necessary, of the AU and other appropriate African
mechanisms;
(iv) the adoption of concrete measures for regular maintenance
and, where appropriate, the densification of
boundary pillars, so as to make them more visible and
consequently reduce the risk of disputes;
(v) the inclusion of a component on the destruction of
antipersonnel mines in the delimitation and demarcation
plan; and
(vi) the speedy finalisation of the Guide currently under
preparation, on good practices in the delimitation and
demarcation of boundaries.
On cross-border cooperation:
11 For the purpose of attaining our strategic objective on cross-border
cooperation, we agree on the following measures:
Annex 13
86 | From Barriers to Bridges
(i) the adoption of the AU Convention on Cross-Border
Cooperation. We call upon all the Member States to sign,
ratify or accede to this Convention and ensure its rapid
entry into force;
(ii) the effective implementation, by the AU and the Regional
Economic Communities (RECs), of an exchange
programme on cross-border cooperation among African
states and other stakeholders;
(iii) the preparation by the AU Commission, in close collaboration
with the RECs, of a Plan of Action to encourage
and support local initiative cross-border cooperation,
being understood that Member States will take all the
necessary measures to facilitate this cooperation;
(iv) the enhancement of cross-border cooperation in the prevention
and fight against terrorism, cross-border crime
and other threats, including illegal fishing, piracy and
other related acts, within the framework of the relevant
instruments of the AU. In this regard, we stress the importance
of sharing information and intelligence, and the
proper role of the African Centre for Study and Research
on Terrorism (ACSRT);
(v) the implementation and adoption, as appropriate, by
Member States of measures aimed at reducing the time
of transit and removing non-tariff barriers at the borders
so as to facilitate easy movement of goods and persons,
in accordance with the relevant decisions of the AU and
the RECs;
(vi) the encouragement of joint management of transboundary
resources, based on relevant African and international
experiences;
(vii) the finalisation of the “Guide on Enhancing Cross-border
Cooperation”, currently being prepared by the Commission;
and
(viii) the application of specific arrangements to the situation
of Island States.
Annex 13
Collection of Official Texts on African Borders from 1963 to 2012 | 87
On capacity building:
12 Aware of the critical importance of capacity building, we have identified
the following priorities:
(i) the acceleration of the implementation of the provisions
agreed upon during our Second Conference, in particular
regarding the inventory of experts and research and
training institutions on the continent dealing with border
issues, networking of existing institutions, both among
themselves and between them and similar institutions
outside Africa, and development of curricula and training
programmes on border issues;
(ii) the establishment by the Member States, which have not
yet done so, of National Boundary Commissions;
(iii) the organisation of training workshops for African border
institutions. In this regard, we request our international
partners, particularly the German Government through
the GIZ, the European Union (EU), the United Nations
(UN) and other bilateral and multilateral partners, to
provide the necessary support; and
(iv) the adoption by the Commission of a more integrated
approach, considering the multidimensional nature of
the AUBP.
On the popularisation of the AUBP
13 To enhance the popularisation of the AUBP and consequently facilitate
ownership at all levels, we have agreed as follows:
(i) the preparation of a communication and sensitisation
plan to raise greater awareness about the AUBP and
specify the respective roles of national, regional and
continental partners; and
(ii) the adoption of practical measures by Member States to
celebrate effectively the Africa Border Day.
Annex 13
88 | From Barriers to Bridges
On partnership and resource mobilisation:
14 We express our gratitude to the international partners that support
the AUBP and whose assistance has enabled us to achieve significant
results. We, particularly, welcome the support from the German
Government through the GIZ. We also appreciate the support
of the United Kingdom regarding the demarcation of the border
between The Sudan and South Sudan.
15 To strengthen existing partnerships, we have agreed as follows:
(i) the continuation and intensification of interaction with
the international partners concerned, in particular the
GIZ, the EU, the UN, the Association of European Border
Regions (AEBR) and other partners, to facilitate the exchange
of experiences and mobilise their support;
(ii) the organisation, at the latest in December 2012, of the
Conference on resource mobilisation to support the
implementation of AUBP, to which the private sector shall
be invited; and
(iii) the urgent establishment, pending the signing and entry
into force of the AU Convention on Cross-Border Cooperation,
of a Fund to support the activities of the AUBP. In
this respect, we call upon the Member States to contribute
significantly to the funding of the AUBP.
On the follow-up of this declaration:
16 We request the Executive Council to endorse this Declaration. We
call upon Member States, RECs and other stakeholders concerned to
take the necessary measures for the implementation of the provisions
of this Declaration.
17 We call upon the Commission to ensure the follow-up to this Declaration.
In particular, we urge the Commission to finalise, in consultation
with Member States and other stakeholders concerned, the
Strategic Plan for the implementation of AUBP for the period 2013
to 2017.
18 We agree to hold our next Conference in 2014 to consider the status
of the implementation of the AUBP and take any necessary action.
Annex 13
Annex 14
U.N. Commission on the Limits of the Continental Shelf, Progress of work in the Commission on
the Limits of the Continental Shelf: Statement by the Chair, U.N. Doc. CLCS/90 (1 Oct. 2015)
United Nations Convention on the Law of the Sea CLCS/90
Commission on the Limits of the
Continental Shelf
Distr.: General
1 October 2015
Original: English
15-16680 (E) 191015
*1516680*
Thirty-eighth session
New York, 20 July-4 September 2015
Progress of work in the Commission on the Limits of the
Continental Shelf
Statement by the Chair
Summary
The present statement provides information on the work carried out by the
Commission on the Limits of the Continental Shelf and its subcommissions during
its thirty-eighth session. In particular, it contains an overview of the progress made
in the examination of the submissions made by Uruguay; the Cook Islands, in respect
of the Manihiki Plateau; Argentina; Iceland, in respect of the Ægir Basin area and the
western and southern parts of Reykjanes Ridge; Norway, in respect of Bouvetøya and
Dronning Maud Land; South Africa, in respect of the mainland of the territory of the
Republic of South Africa; the Federated States of Micronesia, Papua New Guinea
and Solomon Islands, jointly, concerning the Ontong Java Plateau; France and South
Africa, jointly, in the area of the Crozet Archipelago and the Prince Edward Islands;
and Mauritius, in the region of Rodrigues Island. The statement also contains
information about the newly established subcommissions and the initial examination
of the submission made by Nigeria, as well as information about presentations to the
Commission of new or revised submissions made by Brazil, Angola, Spain and,
jointly, by Cabo Verde, the Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal and
Sierra Leone. In addition, it provides information about presentations made by the
Cook Islands and Argentina and other issues dealt with by the Commission during
the thirty-eighth session.
United Nations Convention on the Law of the Sea CLCS/90
Commission on the Limits of the
Continental Shelf
Distr.: General
1 October 2015
Original: English
15-16680 (E) 191015
*1516680*
Thirty-eighth session
New York, 20 July-4 September 2015
Progress of work in the Commission on the Limits of the
Continental Shelf
Statement by the Chair
Summary
The present statement provides information on the work carried out by the
Commission on the Limits of the Continental Shelf and its subcommissions during
its thirty-eighth session. In particular, it contains an overview of the progress made
in the examination of the submissions made by Uruguay; the Cook Islands, in respect
of the Manihiki Plateau; Argentina; Iceland, in respect of the Ægir Basin area and the
western and southern parts of Reykjanes Ridge; Norway, in respect of Bouvetøya and
Dronning Maud Land; South Africa, in respect of the mainland of the territory of the
Republic of South Africa; the Federated States of Micronesia, Papua New Guinea
and Solomon Islands, jointly, concerning the Ontong Java Plateau; France and South
Africa, jointly, in the area of the Crozet Archipelago and the Prince Edward Islands;
and Mauritius, in the region of Rodrigues Island. The statement also contains
information about the newly established subcommissions and the initial examination
of the submission made by Nigeria, as well as information about presentations to the
Commission of new or revised submissions made by Brazil, Angola, Spain and,
jointly, by Cabo Verde, the Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal and
Sierra Leone. In addition, it provides information about presentations made by the
Cook Islands and Argentina and other issues dealt with by the Commission during
the thirty-eighth session.
Annex 14
CLCS/90
4/20 15-16680
9. The Commission reiterated its view that, when matters pertaining to the
conditions of service were addressed, no distinction should be made between
members of the Commission from developing and developed States, and that the
concerns of the Commission went well beyond adequate medical coverage. 4
10. The Commission restated its understanding that the reimbursement of the costs
of medical travel insurance for those members who benefited from the trust fund
established pursuant to General Assembly resolution 55/7 for facilitating the
participation of members of the Commission from developing countries in t he
meetings of the Commission was an interim measure and that a more permanent
solution would be presented in the future. 5
11. The Commission also expressed its expectation that the Meeting of States
Parties would satisfactorily address other conditions of service of its members, as
reflected in paragraph 77 of the report of the twenty-third Meeting of States Parties
(SPLOS/263), before the end of the term of office of the current Commission in
June 2017.
Reconstitution and establishment of subcommissions
12. In the light of the progress in its work, the Commission decided to proceed
with the further consideration of three new or revised submissions by reconstituting
or establishing subcommissions, on the basis of its rules of procedure
(CLCS/40/Rev.1), in particular rule 42, paragraphs 1 and 2, and practice regarding
the establishment of subcommissions.
13. In doing so, the Commission took into account the decision taken at its
twenty-sixth session whereby revised submissions would be considered on a priority
basis notwithstanding the queue (see CLCS/68, and Corr.1, para. 57). Therefore, in
view of the receipt of the partial revised submission made by Brazil in respect of the
Southern Region on 10 April 2015,6 the Commission first proceeded to fill certain
vacancies in the subcommission for consideration of the submission made by Brazil
on 17 May 2004. These vacancies had resulted from the partial change in the
membership of the Commission since the adoption of the recommendations in
respect of the submission made by Brazil on 17 May 2004. 7
14. In this connection, the Commission noted that Messrs. Awosika, Carrera
(Chair of the subcommission for consideration of the submission made by Brazil on
17 May 2004), Lyu and Park, members of the subcommission established in 2004,
were still members of the Commission. Following consultations, the Commission
appointed Messrs. Heinesen, Madon and Oduro to fill the three vacancies. In
addition, the Commission decided that Mr. Lyu would no longer serve as a member
of the subcommission, so that he could be appointed as a member of another
subcommission with a view to ensuring an even distribution of the workload among
__________________
4 See CLCS/83, para. 10; CLCS/85, para. 11; and CLCS/88, para. 9. 5 See CLCS/88, para. 9. 6 See also the section of the present report concerning item 14. 7 See www.un.org/depts/los/clcs_new/submissions_files/submission_bra.htm. See also rule 42,
paragraph 2, of the rules of procedure of the Commission, according to which “the term of a
subcommission shall extend from the time of its appointment to the time that the submitting
coastal State deposits, in accordance with article 76, paragraph 9, of the Convention, the charts
and relevant information, including geodetic data, regarding the outer limits for that part of the
continental shelf for which the submission was originally made”.
CLCS/90
15-16680 5/20
the members of the Commission, (see para. 23 below). In this regard, the
Commission agreed that the seventh member of the subcommission would be
appointed at a subsequent stage.8 The subcommission met and elected Messrs.
Oduro and Park as Vice-Chairs. The Commission decided that the meetings of the
subcommission during the thirty-ninth session would be held from 2 to
13 November 2015.
15. Subsequently, the Commission, in accordance with its practice, reviewed the
other submissions at the head of the queue, namely, those made by Myanmar;
Yemen, in respect of south-east of Socotra Island; the United Kingdom of Great
Britain and Northern Ireland, in respect of Hatton-Rockall Area; Ireland, in respect
of Hatton-Rockall Area; Fiji; Malaysia and Viet Nam, jointly, in respect of the
southern part of the South China Sea; Kenya; and Viet Nam, in respect of North
Area.
16. Noting that, except in the case of the submission made by Kenya, there had
been no developments communicated by States to indicate that consent existed on
the part of States concerned which would allow for the consideration of those
submissions, the Commission decided to defer further the establishment of the
respective subcommissions. The Commission also decided that, since those
submissions remained next in line for consideration, as queued in the order in which
they had been received, it would review the situation at the time of establishment of
its next subcommission (see CLCS/76, paras. 22-24).
17. With regard to the submission made by Kenya, the Commission recalled the
decision taken during the thirty-fifth session (see CLCS/85, paras. 64 and 65) to
revert to the consideration of that submission at the plenary level at the time when it
would be next in line for consideration as queued in the order in which it had been
received. In this regard, the Commission took note of a communication received
since the thirty-fifth session, namely, the communication from Somalia dated 7 July
2015. In the light of that communication, the Commission determined that it was in
a position to proceed with the establishment of a subcommission.
18. After consultations, the Commission appointed Messrs. Awosika, Carrera,
Heinesen, Madon, Marques, Oduro and Park as members of the subcommission. The
subcommission met and elected Mr. Park as Chair and Messrs. Awosika and
Marques as Vice-Chairs. The Commission decided that the meetings of the
subcommission during the thirty-ninth session would be held from 19 to 30 October
and from 16 to 20 November 2015.
19. In relation to the submission by Kenya, the Commission also recalled the
communication from Sri Lanka dated 22 July 2009 (see CLCS/64, para. 96), in
which it was stated, inter alia, that:
Sri Lanka also wishes to confirm its position that the application of the
Statement of Understanding and the Commission’s mandate to make
recommendations under the said Statement, as per paragraph 1 (a) of article 3
of annex II to the Convention on the Law of the Sea, is limited to the States in
the southern part of the Bay of Bengal, as reflected in paragraph 5 of the
Statement of Understanding.
__________________
8 Thus, the current composition of the subcommission is as follows: Messrs. Awosika, Carrera,
Heinesen, Madon, Oduro and Park.
Annex 14
CLCS/90
4/20 15-16680
9. The Commission reiterated its view that, when matters pertaining to the
conditions of service were addressed, no distinction should be made between
members of the Commission from developing and developed States, and that the
concerns of the Commission went well beyond adequate medical coverage. 4
10. The Commission restated its understanding that the reimbursement of the costs
of medical travel insurance for those members who benefited from the trust fund
established pursuant to General Assembly resolution 55/7 for facilitating the
participation of members of the Commission from developing countries in t he
meetings of the Commission was an interim measure and that a more permanent
solution would be presented in the future. 5
11. The Commission also expressed its expectation that the Meeting of States
Parties would satisfactorily address other conditions of service of its members, as
reflected in paragraph 77 of the report of the twenty-third Meeting of States Parties
(SPLOS/263), before the end of the term of office of the current Commission in
June 2017.
Reconstitution and establishment of subcommissions
12. In the light of the progress in its work, the Commission decided to proceed
with the further consideration of three new or revised submissions by reconstituting
or establishing subcommissions, on the basis of its rules of procedure
(CLCS/40/Rev.1), in particular rule 42, paragraphs 1 and 2, and practice regarding
the establishment of subcommissions.
13. In doing so, the Commission took into account the decision taken at its
twenty-sixth session whereby revised submissions would be considered on a priority
basis notwithstanding the queue (see CLCS/68, and Corr.1, para. 57). Therefore, in
view of the receipt of the partial revised submission made by Brazil in respect of the
Southern Region on 10 April 2015,6 the Commission first proceeded to fill certain
vacancies in the subcommission for consideration of the submission made by Brazil
on 17 May 2004. These vacancies had resulted from the partial change in the
membership of the Commission since the adoption of the recommendations in
respect of the submission made by Brazil on 17 May 2004. 7
14. In this connection, the Commission noted that Messrs. Awosika, Carrera
(Chair of the subcommission for consideration of the submission made by Brazil on
17 May 2004), Lyu and Park, members of the subcommission established in 2004,
were still members of the Commission. Following consultations, the Commission
appointed Messrs. Heinesen, Madon and Oduro to fill the three vacancies. In
addition, the Commission decided that Mr. Lyu would no longer serve as a member
of the subcommission, so that he could be appointed as a member of another
subcommission with a view to ensuring an even distribution of the workload among
__________________
4 See CLCS/83, para. 10; CLCS/85, para. 11; and CLCS/88, para. 9. 5 See CLCS/88, para. 9. 6 See also the section of the present report concerning item 14. 7 See www.un.org/depts/los/clcs_new/submissions_files/submission_bra.htm. See also rule 42,
paragraph 2, of the rules of procedure of the Commission, according to which “the term of a
subcommission shall extend from the time of its appointment to the time that the submitting
coastal State deposits, in accordance with article 76, paragraph 9, of the Convention, the charts
and relevant information, including geodetic data, regarding the outer limits for that part of the
continental shelf for which the submission was originally made”.
CLCS/90
15-16680 5/20
the members of the Commission, (see para. 23 below). In this regard, the
Commission agreed that the seventh member of the subcommission would be
appointed at a subsequent stage.8 The subcommission met and elected Messrs.
Oduro and Park as Vice-Chairs. The Commission decided that the meetings of the
subcommission during the thirty-ninth session would be held from 2 to
13 November 2015.
15. Subsequently, the Commission, in accordance with its practice, reviewed the
other submissions at the head of the queue, namely, those made by Myanmar;
Yemen, in respect of south-east of Socotra Island; the United Kingdom of Great
Britain and Northern Ireland, in respect of Hatton-Rockall Area; Ireland, in respect
of Hatton-Rockall Area; Fiji; Malaysia and Viet Nam, jointly, in respect of the
southern part of the South China Sea; Kenya; and Viet Nam, in respect of North
Area.
16. Noting that, except in the case of the submission made by Kenya, there had
been no developments communicated by States to indicate that consent existed on
the part of States concerned which would allow for the consideration of those
submissions, the Commission decided to defer further the establishment of the
respective subcommissions. The Commission also decided that, since those
submissions remained next in line for consideration, as queued in the order in which
they had been received, it would review the situation at the time of establishment of
its next subcommission (see CLCS/76, paras. 22-24).
17. With regard to the submission made by Kenya, the Commission recalled the
decision taken during the thirty-fifth session (see CLCS/85, paras. 64 and 65) to
revert to the consideration of that submission at the plenary level at the time when it
would be next in line for consideration as queued in the order in which it had been
received. In this regard, the Commission took note of a communication received
since the thirty-fifth session, namely, the communication from Somalia dated 7 July
2015. In the light of that communication, the Commission determined that it was in
a position to proceed with the establishment of a subcommission.
18. After consultations, the Commission appointed Messrs. Awosika, Carrera,
Heinesen, Madon, Marques, Oduro and Park as members of the subcommission. The
subcommission met and elected Mr. Park as Chair and Messrs. Awosika and
Marques as Vice-Chairs. The Commission decided that the meetings of the
subcommission during the thirty-ninth session would be held from 19 to 30 October
and from 16 to 20 November 2015.
19. In relation to the submission by Kenya, the Commission also recalled the
communication from Sri Lanka dated 22 July 2009 (see CLCS/64, para. 96), in
which it was stated, inter alia, that:
Sri Lanka also wishes to confirm its position that the application of the
Statement of Understanding and the Commission’s mandate to make
recommendations under the said Statement, as per paragraph 1 (a) of article 3
of annex II to the Convention on the Law of the Sea, is limited to the States in
the southern part of the Bay of Bengal, as reflected in paragraph 5 of the
Statement of Understanding.
__________________
8 Thus, the current composition of the subcommission is as follows: Messrs. Awosika, Carrera,
Heinesen, Madon, Oduro and Park.
Annex 14
CLCS/90
6/20 15-16680
20. In addition, the Commission recalled the communication from Kenya dated
29 October 2013 (see CLCS/83, and Corr.1, para. 18), in which it was stated, inter alia,
that:
Kenya wishes to reiterate and affirm her position in regard to the application
of the Statement of Understanding as stated in her note verbale dated 30 April
2009 that referred to the Secretary-General’s circular CLCS.16.2008.LOS
(Continental Shelf Notification) dated 23 December 2008. Further, Kenya
observes that consideration of practice and principles of international Law
including, but not limited to, the Vienna Convention on the Law of Treaties,
hold with esteem the equality and fairness in treatment of States. In this regard
Kenya’s position in application of the Statement of Understanding concerning
a specific method to be used in establishing the outer edge of the continental
margin (Statement of Understanding) as provided for in annex II to the United
Nations Convention on the Law of the Sea is that of a general nature provided
that the submitting State’s continental margin exhibits special characteristics
and that application of article 76 occasions an inequity.
21. The Commission concluded that there was a difference of views as to the
interpretation and applicability of the provisions relating to the implementation of
the Statement of Understanding among States. It also acknowledged that States, not
the Commission, interpreted the Convention. While recalling its need to be kept
informed about any further developments on this matter, and bearing in mind the
definition of its mandate contained in paragraph 1 (a) and (b) of article 3 of annex II
to the Convention, the Commission instructed the subcommission to consider the
submission made by Kenya on a scientific and technical basis under the provisions
of article 76 of the Convention and the Statement of Understanding.
22. The Commission then proceeded with the establishment of a subcommission
for the consideration of the submission next in line, as queued in the order in which
it had been received, namely, the submission made by Nigeria.
23. After consultations, the Commission appointed Messrs. Heinesen, Lyu,
Mahanjane, Njuguna, Paterlini and Urabe as members of the subcommission. The
Commission agreed that the seventh member of the subcommission would be
appointed at a subsequent stage. The subcommission met and elected Mr. Mahanjane
as Chair and Messrs. Heinesen and Lyu as Vice-Chairs (see also paras. 85-89).
24. Subsequently, in order to optimize the distribution of work among its
members, the Commission appointed Mr. Marques as the seventh member of the
subcommission established to consider the joint submission made by France and
South Africa in respect of the area of the Crozet Archipelago and the Prince Edward
Islands.
Annex 14
Annex 15
U.N. Peacekeeping, “U.N. Operation in Somalia I (UNOSOM I)”, available at http://www.
un.org/en/peacekeeping/missions/past/unosomi.htm (last accessed 11 Jan. 2016)
UNITED NATIONS OPERATION IN SOMALIA I (UNOSOM I)
http://www.un.org/en/peacekeeping/missions/past/unosomi.htm[1/11/2016 11:51:57 AM]
UNITED NATIONS OPERATION IN SOMALIA I
UNOSOM I (April 1992 - March 1993)
UNOSOM I was established to monitor the ceasefire in Mogadishu and
escort deliveries of humanitarian supplies to distribution centres in the city.
The mission's mandate and strength were later enlarged to enable it to
protect humanitarian convoys and distribution centres throughout Somalia. It
later worked with the Unified Task Force in the effort to establish a safe
environment for the delivery of humanitarian assistance
Not an official document of the United Nations.
Prepared for the Internet by the Information Technology Section/ Department of Public Information (DPI).
Maintained by the Peace and Security Section of DPI in cooperation with the Department of Peacekeeping Operations.
© 2003 United Nations
Peacekeeping
Peace and Secutity
UN Home Page
Annex 15
Annex 16
U.N. Peacekeeping, “U.N. Operation in Somalia II (UNOSOM II)”, available at http://www.
un.org/en/peacekeeping/missions/past/unosom2.htm (last accessed 11 Jan. 2016)
UNITED NATIONS OPERATION IN SOMALIA II (UNOSOM II)
http://www.un.org/en/peacekeeping/missions/past/unosom2.htm[1/11/2016 12:04:49 PM]
UNITED NATIONS OPERATION IN SOMALIA II
UNOSOM II (March 1993 - March 1995)
UNOSOM II was established in March 1993 to take appropriate action,
including enforcement measures, to establish throughout Somalia a secure
environment for humanitarian assistance. To that end, UNOSOM II was to
complete, through disarmament and reconciliation, the task begun by the
Unified Task Force for the restoration of peace, stability, law and order.
UNOSOM II was withdrawn in early March 1995
Not an official document of the United Nations.
Prepared for the Internet by the Information Technology Section/ Department of Public Information (DPI).
Maintained by the Peace and Security Section of DPI in cooperation with the Department of Peacekeeping Operations.
© 2003 United Nations
Peacekeeping
Peace and Secutity
UN Home Page
Annex 16
Annex 17
U.N. Peace Operations, “UNSOM United Nations Assistance Mission in Somalia”, available at
https://unsom.unmissions.org/ (last accessed 11 Jan. 2016)
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AT A GLANCE
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Annex 17
Annex 18
U.N. Commission on the Limits of the Continental Shelf “Membership of the Commission”,
available at http://www.un.org/Depts/los/clcs_new/commission_members_1997_2012.htm (last
accessed 11 Jan. 2016)
Commission on the Limits of the Continental Shelf (CLCS)
Membership of the Commission from 1997 to 2007
Last updated: 26 June 2012
In accordance with the provisions of article 2 of Annex II to the Convention, "the Commission shall consist of twenty-one members who shall be experts in the field of geolo
hydrography, elected by States Parties to the Convention from among their nationals, having due regard to the need to ensure equitable geographical representation, who sh
personal capacities".
2007-2012
On 14 and 15 June 2007, the Seventeenth Meeting of States Parties to the United Nations Convention on the Law of the Sea elected 21 members of the Commission on t
Continental Shelf for a term of five years, commencing from 16 June 2007. These members were:
2007-2012 MEMBERSHIP OF THE COMMISSION ON THE LIMITS OF THE CONTINENTAL
SHELF
(elected on 14 and 15 June 2007 for a term of five years (2007 - 2012), commencing from 16 June 2007
Name Nationality
[Albuquerque, Alexandre Tagore Medeiros de - passed away on 29 March 2012]* (Brazil)
Astiz, Osvaldo Pedro (Argentina)
Awosika, Lawrence Folajimi (Nigeria)
Brekke, Harald (Norway)
Carrera Hurtado, Galo (Mexico)
Charles, Francis L. (Trinidad and Tobago)
Croker, Peter F. (Ireland)
Fagoonee, Indurlall (Mauritius)
German, Mihai Silviu (Romania)
Jaafar, Abu Bakar (Malaysia)
Jaoshvili, George (Georgia)
Kalngui, Emmanuel (Cameroon)
Kazmin, Yuri Borisovitch (Russian Federation)
Lu, Wenzheng (China)
Oduro, Isaac Owusu (Ghana)
Park, Yong-Ahn (Republic of Korea)
Pimentel, Fernando Manuel Maia (Portugal)
Rajan, Sivaramakrishnan (India)
Rosette, Michael Anselme Marc (Seychelles)
Symonds, Philip Alexander (Australia)
[Tamaki, Kensaku - passed away on 5 April 2011]* (Japan)
Urabe, Tetsuro [elected on 11 August 2011 for the remainder of Mr. Tamaki's term of office] (Japan)
Note: The curricula vitae of the candidates have been circulated in document SPLOS/151.
Officers of the Commission 2009-2012
Chairman: Galo Carrera Hurtado (elected on 9 April 2012 for the rest of Mr. Albuquerque's term of office)
Vice-Chairmen: Lawrence Folajimi Awosika, Harald Brekke, Yuri Borisovitch Kazmin, Yong-Ahn Park.
Subsidiary bodies:
• Committee on Confidentiality
At its twentieth session, the Commission appointed Messrs. Astiz, Croker, Kazmin, Rosette and [Tamaki]* to the Committee on Confidentiality. The Committee elected Mr. C
and Messrs. Rosette and [Tamaki]* as Vice-Chairmen. At its twenty-eighth session, the Commission appointed Mr. Urabe as member of the Committee.
• Committee on provision of scientific and technical advice to coastal States
At its twentieth session, the Commission appointed Messrs. Charles, German, Kalngui, Rajan and Symonds to the Standing Committee on provision of scientific and technica
States. The Committee elected Mr. Symonds as Chairman and Messrs. Kalngui and Rajan as Vice-Chairmen.
• Editorial Committee (open-ended)
MEMBERS 1997-2012 Page 1 of 3
http://www.un.org/Depts/los/clcs_new/commission_members_1997_2012.htm 1/27/2016
Annex 18
The Editorial Committee has open-ended membership. Nevertheless, at its twentieth session, the Commission decided that Messrs. [Albuquerque]*, Astiz, Awosika, Carrera
Jaafar, Kalngui, Kazmin, Lu, Oduro, Park, Rajan and Rosette would form the core group of the Editorial Committee. The Committee elected Mr. Jaafar as Chairman and Mes
Rajan as Vice-Chairmen.
• Training Committee (open-ended)
The Training Committee has open-ended membership. Nevertheless, at its twentieth session, the Commission decided that Messrs. Awosika, Brekke, Carrera, Charles, Ger
Oduro, Park, Rosette and [Tamaki]* would form the core group of the Training Committee. The Committee elected Mr. Carrera as Chairman and Messrs. Oduro and Park as
Second membership of the Commission - 2002-2007
On 23 April 2002, the Twelfth Meeting of States Parties to the United Nations Convention on the Law of the Sea elected 21 members of the Commission on the Limits of the
for a term of five years, commencing from 16 June 2002. These members were:
2002-2007 MEMBERSHIP OF THE COMMISSION ON THE LIMITS OF THE CONTINENTAL
SHELF
(elected on 23 April 2002 for a term of five years (2002 - 2007), commencing from 16 June 2002 and ending on
15 June 2007
Name Nationality
Al-Azri, Hilal Mohamed Sultan (Oman)
Albuquerque, Alexandre Tagore Medeiros de (Brazil)
Astiz, Osvaldo Pedro (Argentina)
Awosika, Lawrence Folajimi (Nigeria)
Betah, Samuel Sona (Cameroon)
Brekke, Harald (Norway)
Carrera Hurtado, Galo (Mexico)
Croker, Peter F. (Ireland)
Fagoonee, Indurlall (Mauritius)
Francis, Noel Newton St. Claver (Jamaica)
German, Mihai Silviu (Romania)
Jaafar, Abu Bakar (Malaysia)
Juračić, Mladen (Croatia)
Kazmin, Yuri Borisovitch (Russian Federation)
Lu, Wenzheng (China)
Park, Yong-Ahn (Republic of Korea)
Pimentel, Fernando Manuel Maia (Portugal)
Symonds, Philip Alexander (Australia)
Tamaki, Kensaku (Japan)
Thakur, Naresh Kumar (India)
Woeledji, Yao Ubuènalè (Togo)
Officers of the Commission 2004-2007
At its fourteenth session, held at United Nations Headquarters in New York, from 30 August to 3 September 2004, the Commission reelected Peter Croker as its Chai
The Commission also elected Messrs. Francis, Juračić, Park, and Woeledji as Vice-Chairmen.
Their term of office commences in December 2004 and expires in June 2007.
It is recalled that, at its eleventh session, held at United Nations Headquarters in New York, from 24 to 28 June 2002, the Commission had elected Peter Croker as it
It further recalled that at the eleventh session, the Commission had elected three Vice-Chairmen, Osvaldo Pedro Astiz, Lawrence Folajimi Awosika and Mladen Jurac
Rapporteur, Yong-Ahn Park. All officers had been elected to a term of two and a half years.
Subsidiary bodies: 2004-2007
Committee on Confidentiality
At its eleventh session, the Commission had appointed the following members to the Committee on Confidentiality: Osvaldo Pedro Astiz, Samuel Sona Betah, Hara
Abu Bakar Jaafar and Yuri Borisovitch Kazmin.
During the fourteenth session of the Commission, the Committee met briefly on 3 September 2004 and re-elected Mr. Jaafar as Chairman, and Mr. Astiz and Mr. Br
Vice-Chairmen.
It is recalled that, at the eleventh session of the Commission, the Committee had elected Mr. Jaafar as Chairman, Mr. Brekke as Vice-Chairman and Mr. Astiz as Rapp
Committee on provision of scientific and technical advice to coastal States
At its eleventh session, the Commission had also appointed the following as members of the Standing Committee on provision of scientific and technical advice
States: Lawrence Folajimi Awosika, Noel Newton St. Claver Francis, Mihai Silviu German, Philip Alexander Symonds and Kensaku Tamaki.
During the fourteenth session of the Commission, a brief meeting of the Committee was held on 3 September 2004, during which it proceeded with the election of its C
and other officers. The Committee re-elected Mr. Symonds as Chairman, and Mr. Awosika and Mr. Tamaki as Vice-Chairmen.
It is recalled that, at the eleventh session of the Commission, the Committee had elected Mr. Symonds as Chairman, Mr. Tamaki as Vice-Chairman and Mr. Awosika a
Rapporteur.
Editorial Committee (open-ended)
During the fourteenth session of the Commission, Mr. Fagoonee was elected Chairman of the Editorial Committee for the next two-and-a-half-years.
It is recalled that, at its eleventh session, the Editorial Committee had elected Harald Brekke as Chairman.
Training Committee (open-ended)
MEMBERS 1997-2012 Page 2 of 3
http://www.un.org/Depts/los/clcs_new/commission_members_1997_2012.htm 1/27/2016
Annex 18
During the fourteenth session of the Commission, Mr. Brekke was elected Chairman of the Training Committee for the next two-and-a-half-years.
It is recalled that, at its eleventh session, the Training Committee had elected Indurlall Fagoonee as Chairman.
First membership of the Commission - 1997-2002
Twenty-eight candidates for membership to the Commission were nominated by States Parties for the first election, which took place at the Sixth Meeting of States Pa
United Nations Convention on the Law of the Sea (New York, 10 - 14 March 1997). The election was conducted in accordance with article 2, paragraph 3, of Annex II
Convention (see document SPLOS/20).
On 13 March 1997, the 21 members of the Commission were elected for a term of five years and began their term of office on the date of the first meeting of the Co
16 June 1997. On that date, each of them made a solemn declaration to perform his duties as a member of the Commission honourably, faithfully, impartially and cons
The members of the Commission may be re-elected in accordance with Annex II, article 2(4) of the Convention.
MEMBERSHIP OF THE COMMISSION ON THE LIMITS OF THE CONTINENTAL SHELF FROM 1997-2002
(elected for a term of five years (1997 - 2002)
Name Nationality
Mr. Alexandre Tagore Medeiros de Albuquerque Brazil
Mr. Osvaldo Pedro Astiz Argentina
Mr. Lawrence F. Awosika Nigeria
Mr. Aly Ibrahim Beltagy Egypt
Mr. Samuel Sona Betah Cameroon
Mr. Harald Brekke Norway
Mr. Galo Carrera Hurtado Mexico
Mr. André C.W. Chan Chim Yuk Mauritius
Mr. Peter F. Croker Ireland
Mr. Noel Newton St. Claver Francis Jamaica
Mr. Kazuchika Hamuro Japan
Mr. Karl H.F. Hinz Germany
Mr. A. Bakar Jaafar Malaysia
Mr. Mladen Juracic Croatia
Mr. Yuri Borisovitch Kazmin Russian Federation
Mr. Iain C. Lamont New Zealand
Mr. Wenzheng Lu China
Mr. Chisengu Leo M'Dala Zambia
Mr. Yong-Ahn Park Republic of Korea
Mr. Daniel Rio France
Mr. Krishna-Swami Ramachandran Srinivasan India
Prepared by the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations.
Copyright © 2012 United Nations - Office of Legal Affairs
United Nations All Rights Reserved Worldwide
The use of this web site constitutes agreement with the terms and conditions of use of United Nations web sites.
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Oceans and Law of the Sea Home
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Comments and suggestions?
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MEMBERS 1997-2012 Page 3 of 3
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Annex 18
Annex 19
Email from Amb. Hans Wilhelm Longva to Hon. Prof. Abdirahman Haji Adan Ibbi, Deputy
Prime Minister and Minister of Fisheries and Marine Resources of Somalia (27 Mar. 2009)
Annex 19
1
Subject: Somalia oversendelsesbrev.doc
Attachments: Somalia oversendelsesbrev.doc
On Friday, March 27, 2009 11:47 AM, Longva Hans Wilhelm <[email protected]> wrote:
Dear Mr Minister,
Please find enclosed as agreed a draft letter from the Transitional Federal Government of the Somali Republic to the
Secretary-General of the United Nations submitting preliminary information indicative of the outer limits of the continental
shelf beyond 200 natical miles.
I look forward to see you in Nairobi next week and to my forthcoming visit to Mogadishu.
I send you my best personal regards
Yours sincerely
Hans Wilhelm Longva
Annex 19
With reference to article 76 of the United Nations Convention on the Law of the Sea
(hereinafter referred to as ”the Convention”), and article 4 of its Annex II, as well as the
decisions of the eleventh and eighteenth Meetings of States Parties contained i SPLOS/72,
paragraph (a), and SPLOS/183, paragraph 1 (a), respectively, the Transitional Federal
Government of the Somali Republic has the honour to submit to the Secretary-General of the
United Nations preliminary information indicative of the outer limits of the continental shelf
beyond 200 nautical miles and a description of the status of preparation and intended date of
making a submission in accordance with the requirements of article 76 of the Convention and
with the Rules of Procedure and the Scientific and Technical Guidelines of the Commission
on the Limits of the Continental Shelf (hereinafter referred to as “the Commission”)..
The present submission is made in accordance with SPLOS/183, paragraph 1 (a). Its purpose
is to ensure that Somalia satisfies the time period referred to in article 4 of Annex II to the
Convention and the decision contained in SPLOS/72. The present submission is without
prejudice to the future submission to be made by Somalia in accordance with the requirements
of article 76 of the Convention and with the Rules of Procedure and the Scientific and
Technical Guidelines of the Commission, and the future consideration by the Commission.
The data provided in the present submission show that Somalia passes the test of
appurtenance as described in the Scientific and Technical Guidelines of the Commission. In
all eight Foot of the Slope Points (FOS-Points) have been identified on the Somali continental
slope that makes it clear that Somalia’s continental shelf extends beyond 200 nautical miles
from the normal baselines.
In accordance with SPLOS/183, paragraph 1 (d), it is requested that the Secretary-General
inform the Commission and notify member states of the receipt from Somalia of preliminary
information in accordance with SPLOS/183, paragraph 1 (a), and make this information
publicly available, including on the website of the Commission.
Annex 20
Email from Amb. Hans Wilhelm Longva to Hon. Prof. Abdirahman Haji Adan Ibbi, Deputy
Prime Minister and Minister of Fisheries and Marine Resources of Somalia (3 Apr. 2009)
1
Subject: Somalia/Kenya. Signing of MoU.
On Friday, April 3, 2009 2:29 PM, Longva Hans Wilhelm <[email protected]> wrote:
H.E. Professor Adirahman Haji Adan Ibbi
Deputy Prime Minister and Minister of Fisheries and Marine Resources
Transitional Federal Government of the Somali Republic
Mogadishu
Dear Mr. Minister,
With reference to our telephone conversation this morning, I would suggest that the letter of authorisation to be signed by
your Prime Minister read as follows:
I the undersigned Omar Abdirashid Ali Sharmarke, Prime Minister of the Transitional Federal Government of the Somali
Republic, hereby authorise and empower Professor Abdirrahman Haji Adan Ibbi, Deputy Prime Minister and Minister of
Fisheries and Marine Resources, to sign a Memorandum of Understanding between the Government of Kenya and the
Transitional Federal Government of the Somali Republic to grant No-Objection in respect of submissions on the the Outer
Limits of the Continental Shelf beyond 200 nautical miles to the Commission on the Limits of the Continental Shelf.
Mogadishu, --- April 2009
The authorisation should be signed by the Prime Minister. Underneath the signature should be the official seal of the
Prime Minister.
I hope this is helpful.
With my best regards
Yours sincerely
Hans Wilhelm Longva
Annex 20
Annex 21
Email from Hon. Prof. Abdirahman Haji Adan Ibbi to Hon. Abdurahman Abdishakur Warsame,
Minister of Planning and International Cooperation of Somalia (7 Apr. 2009)
1
From: abdurahman aden <[email protected]>
Date: 7 April 2009 at 14:06:43 GMT+3
To: [email protected]
Cc: Longva Hans Wilhelm <[email protected]>
Subject: Re: FROM IBBI
Excellency,
This is the authoriuzation letter for Minister of Planning and International Cooperation of the TFG of Somalia
Ibbi
Annex 21
Annex 21
Xukuumadda Federaal iga KMG ah
ee Jamhuuriyadda Soomaaliya
Xafiiska Ra 'ilsu/ Wasaaraha
The Transitional Federa l Government of tho Somali Republic
Offic e of the Prime Minister
XR W J0064l06!09
I, the undersigned, Omer Abdfr.ishid Ali Shermarkc • the Prime Minister of
I.he Transitional Federal Government or the Somali Republic heJ'e by
authoriz.cd :md cmpow·ered Hon. Abdun1hman Abdishakut· \Varsame
Minister of t.hc pJannhJg and the lnten,ationaJ Co operations to Sign a
memorandum of underStanding between the Govcmme;)t of the Republic of
Kenya and the Transitional Government of the Somali Republic to grant no·
obj<:ction tu each other in 1\.->spect of submission on the outer limits of the
Continental Shelf beyc,nd 200 Nouticat Miles to the Commission on the
li mi(S of the Cootu1ental Shelf.
Mogttdi.shu tm this Sixth day of April
rwo Thousand and Nine
. ' •
Annex 22
Note Verbale from H.E. Omar Abdirashid Ali Sharmarke, Prime Minister of the Transitional
Federal Government of the Somali Republic, to H.E. Ban Ki-Moon, Secretary-General of the
United Nations, No. XRW/0065/06/09 (8 Apr. 2009)
Annex 22
Xukuumadda Federaaliga KMG ah ee
Jamhuuriyadda Soomaaliya
Xafiiska Ra'iisul Wasaaraha
'-:!llHl ~"ii ~µ1
JL...~!l...~
;uJ.,11 ~..) ~
The Transitional Federal Government of the Somali Republic
Office of the Prime Minister
XRW/0065/06/09 Mogadishu g•h April 2009
Excellency,
With reference to article 76 of the United Nations Convention on the Law of the Sea (hereinafter
referred to as "the Convention"), and article 4 of its Annex ll , as well as the decisions of the
eleventh and eighteenth Meetings of States Parties contained in SPLOS/72, paragraph (a), and
SPLOS/183, paragraph I (a), respectively, the Transitional Federal Government of the Somali
Republic has the honour to submit to the Secretary-General of the United Nations preliminary
information indicative of the outer limits of the continental shelf beyond 200 nautical miles and a
description of the status of preparation and intended date of making a submission in accordance
with the requirements of article 76 of the Convention and with the Rules of Procedure and the
Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf
(hereinafter referred to as "the Commission") ..
The present submission is made in accordance with SPLOS/183, paragraph I (a). Its purpose is to
ensure that Somalia satisfies the time period referred to in article 4 of Annex ll to the Convention
and the decision contained in SPLOS/72. The present submission is without prejudice to the
future submission to be made by Somalia in accordance with the requirements of article 76 of the
Convention and with the Rules of Procedure and the Scientific and Technical Guidelines of the
Commission, and the future consideration by the Commission.
The data provided in the present submission show that Somalia passes the test of appurtenance as
described in the Scientific and Technical Guidelines of the Commission. The location of eight
Foot of the Slope Points (FOS-Points) identified on the Somali continental slope makes it clear
that Somalia's continental shelf extends beyond 200 nautical miles from the normal baselines.
In accordance with SPLOS/183, paragraph I (d), it is requested that the Secretary-General infonn
the Commission and notify member states of the receipt from Somalia of preliminary infonnation
in accordance with SPLOS/183, paragraph I (a), and make this information publicly available,
including on the website of the Commission.
The Prime Minister
H. Excellency Ban Ki Moon
Secretary General of the United Nations
New York, USA
Annex 23
Note Verbale from the Ministry of Foreign Affairs and International Trade of the Republic of
Kenya to the Embassy of the Federal Republic of Somalia in Nairobi, No. MFA. PROT/7/8/1 (7
Mar. 2014)
Annex 23
T~\:phon,.:: 25-1 ~n, 1,:-0.;)\
•
11 \I{ \\lf!fl \\ I 'L r
P 0 . l!o, .10551 -111 f I t(l
'-AIROBI. Kl')\
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Ml'\ISTR\ OF FOREIG~ AFFAIRS .\ ,o 1:\TER:\ .HIO ., .\LTR.\D E
MFA. PROT/7/8/1
The Mirnstry of Foreign Affairs and International Trade of the Republic of
Kenya presents its complimen ts to the Embassy of the Federal Republic
8f Somalia and has the honour to inform as follows;
Amb. Am i!la Mohamed, CBS, CAV, Minister for Foreign Affairs and
Int.e:-r!atior~a! Trade of the Republic of Kenya wishes to hold bilateral
ta!ks wit h Hon. Abdirahman Duale Beileh, Minister of Foreign Affairs of
the Federai R.epL!blic of Somalia, during the w2ek of 17 th to 24th March,
20:;4 in Nairobi. The Ministry of Foreign Affairs and Intern ational Cor-,perat1on
wouici appreciate tL~ceiving ar. invitation as to when the
meeting can tai<.. e piace.
rne 11.: :;r,ist,y of Foreign _iJ.ff airs ancJ Internatior1c:1l Trade of the Republic of
Kenya ave1ils itseif of th is opportuni ty to :-ern=:w to the Embassy of the
Federal Republic of Somalia the assurances of :ts liighest consideration.
NAIROBI, 7tt, March, 2014
Embassy of the Federal Republic of Somalia
NAIROBI
Annex 24
Note Verbale from the Ministry of Foreign Affairs and International Trade of the Republic of
Kenya to the Ministry of Foreign Affairs & Investment Cooperation of the Federal Republic of
Somalia, No. MFA/REL/13/21A (24 July 2014)
Annex 24
MFA/REL/13/21A
The Ministry of Foreign Affairs and International Trade of the Republic of
Kenya presents its compliments to the Ministry of Foreign Affairs and
Investment Promotion of the Federal Government of Somalia and has the
honour to refer to the negotiations between the Government of the
Republic of Kenya and the Federal Republic of Somalia on the delimitation
of our overlapping maritime boundary.
The Ministry of Foreign Affairs and International Trade of the Republic of
Kenya furt;her informs that Amb. Amina C. Mohamed, Cabinet Secretary,
Foreign Affairs and International Trade has the honour to invite H.E. Dr.
Abdirahman Dualeh Beileh, Minister of Foreign Affairs of the Federal
Republic of Somalia to Nairobi, on Monday 28th July 2014, to discuss the
issue on the delimitation of the two countries overlapping maritime
boundary.
The Ministry of Foreign Affairs and Internat ional Trade of the Republic of
Kenya avails itself of this opportunity to renew to the Ministry of Foreign
Affairs and Investment Promotion of the Federal Republic of Somalia
assurances of its highest consideration.
24th July, 2014
MINISTRY OF THE FOREIGN AFFAIRS & INVESTMENT
COOPERATION
MOGADISHU
NAIROtH
Copy to: EMBASSY OF iHE FEDERAL REPUBLIC OF SOMALIA
NAIROBI
Annex 25
M. H. Nordquist, S. Nandan, & S. Rosenne (eds.), United Nations Convention on the Law
of the Sea 1982, A Commentary, Vol. V (1989)
Annex 25
Center for Oceans Law and Policy
University of Virginia
UNITED NATIONS CONVENTION
. ON THE LAW OF THE SEA
1982
A COMMENTARY
Volume V
Articles 279 to 320
Annexes V, VI, VII, VIII and IX
Final Act, Annex I, Resolutions I,Ill and IV
Myron H. Nordquist
Editor-In-Chief
Shabtai Rosenne and Louis B. Sohn
Volume Editors
Martinus Nijhoff Publishers
DORDRECHT I BOSTON I LONDON
Foley Hoag LLP
D.C. Library
Annex 25
Library of Congress Cataloging in Publication Data
United Nations Convention on the Law of the Sea, l9B2 : a commentary
Myron H. Nordquist, editor-in-chief, Shabtai Rosenne and Louis B. Sohn, volume editors. p. cm. At head at title: Center for Ooean9 Law and Policy, University of
Virginia.
Includes index . ISBN 9024737192 (V, 5)
1. United Nations Convention on the Law of the Sea (1982)
2. Maritime law. I. Nordquist, Myron H. II. Rosenne, Shabtai.
III. Sohn, Louis s. IV. University of Virginia. Center for Oceans
Law and Policy.
JX4421.U55 1989
341, 4' 5--dcl9 88-12691
ISBN 90-247-3719-2
Published by Martinus Nijhoff Publishers,
P .0. Box 163, 3300 AD Dordrecht, The Netherlands
Sold and distributed in the U .S.A. and Canada
by Kluwer Academic Publishers,
101 Philip Drive, Norwell, MA 02061, U.S.A.
In all other countries, sold and distributed
by Kluwer Academic Publishers Group,
P .0. Box 322, 3300 AH Dordrecht, The Netherlands
printed 011 al'id /i·ee papa
All rights reserved
© 1989. 2002 by Center for Oceans Law and Policy, Charlottesville. Virginia. USA and Kluwer Law
International. The Hague. Netherlands
Kluwer Academic Publishers incorporates the publishing programmes
of Mart inus Nijhoff Publishers.
No part of the mat erial protected by this copyright notice may be reprodu ced or utilized in any
form or by any means, electronic or mechanical, including photocopying, recordin g, or by any
informa tion storage and retrieval system, without written permission from the copyri ght owncrn.
Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham, Wiltshire
Annex 25
-
SETTLEMENT OF DISPUTES 25
Article 282
Obligations under general, regional or bilateral agreements
If the States Parties which are parties to a dispute concerning the interpretation
or application of this Convention have agreed, through a general, regional
or bilateral agreement or otherwise, that such dispute shall, at the request of
any party to the dispute, be submitted to a procedure that entails a binding
decision, that procedure shall apply in lieu of the procedures provided for in this
Part, unless the parties to the dispute otherwise agree.
SOURCES
I. A/AC.138/97, article 3, reproduced in II SBC Report 1973, at 22
(U.S.A.).
2. A/CONF.62/.L.7 ( 1974), section 3, III Off. Ree. 85 (Australia et al.)
3. A/CONF.62/WP.9 (ISNT, Part IV, 1975), article 3, V Off. Ree. 111,
ll2 (President).
4. A/CONF.62/WP .9/Rev.l (ISNT, Part IV/Rev.I, 1976), article 3, V Off.
Ree. 185, 187 (President).
5. A/CONF.62/WP.9/Rev.2 (RSNT, Part IV, 1976), article 3, VI Off. Ree.
144, 145 (President).
6. A/CONF.62/WP.10 (ICNT, 1977), article 282, VIII Off. Ree. l, 45.
7. A/CONF .62/WP.IO/Rev.l (ICNT/Rev.l, 1979, mimeo .), article 282.
Reproduced in I Platzoder 375, 490.
8. A/CONF.62/WP .10/Rev.2 (ICNT/Rev.2, 1980, mimeo .), article 282.
Reproduced in II Platzoder 3, 119.
9. A/CONF.62/WP.10/Rev.3* (ICNT/Rev.3, 1980, mimeo.), article 282.
Reproduced in II Platzoder 179, 296.
10. A/CONF.62/L.78 (Draft Convention, 1981), article 282, XV Off. Ree.
172, 218.
Drafting Committee
l l. A/CONF.62/L.75 /Add.l (1981, mimeo.).
12. A/CONF.62/L.82 (1981), XV Off. Ree. 243 (Chairman, Drafting Committee)
.
Informal Documents
13. SD.Gp/2nd Session/No.1/Rev.5 (1975, mimeo.) , article 3; reissued as
A/CONF.62/Background Paper 1 (1976, mimeo.), article 3 (CoChairmen,
SO.Gp). Reproduced in XII PlatzMer 108 and 194.
COMMENTARY
282.1. While it has been argued that the dispute settlement provisions of
the Law of the Sea Convention should prevail over earlier arrangements
between States Parties to that Convention, 1 the text of article 282 reflects
1 It was pointed out, for instance, that article 219 of the Treaty establishing the European
Economic Community provided that "Member States undertake not to submit a dispute
Annex 25
26 PART XV
the prevailing view that parties would normally prefer to have the dispute
settled in accordance with a procedure previously agreed upon by them. 2
282.2. There are several kinds of international agreements containing obligations
for the settlement of disputes between States . The parties to a
dispute might have concluded a general bilateral agreement for the settlement
of international disputes (a treaty of judicial settlement of international
disputes). Similarly, there are multilateral agreements providing various
means for the settlement of international disputes ( e.g., the General Acts
for the Pacific Settlement of International Disputes of 1928 and 1949).3
Frequently, a bilateral agreement relating to a particular subject, or a broad
category of topics (e.g., a treaty of friendship, commerce and navigation),
might contain a so-called compromissory clause for the settlement of
disputes arising under that agreement. There are also multilateral agreements,
such as those concluded under the auspices of the International
Maritime Organization (IMO), which provide for arbitration of disputes
arising under them . In some regions of the world, there are additional
arrangements for the settlement of disputes arising between States belonging
to a particular regional organization ( e.g., the American Treaty on
Pacific Settlement of 1948 (the Pact of Bogota), of the Organization of
American States; 4 the European Convention for the Peaceful Settlement
of Disputes of 1957;5 and the Protocol of the Commission of Mediation,
Conciliation and Arbitration of 1964, of the Organization of African Unity6
). Finally, by a special agreement the parties may decide that a particular
dispute or a particular group of disputes should be referred to a specific
tribunal.
282.3. Article 282 mentions that an agreement to submit a dispute to a
specified procedure may be reached "otherwise." 7 This reference was
concerning the interpretation or application of this Treaty to any method of settlement other
than those provided for in this Treaty, " 298 UNTS 11, 87 (1958); for the Treaty as amended
see UKTS 15 (1979), Cmnd . 7460. See also Source 2, section 3.
2 As the Japanese delegation emphasized in the debate, "when an agreement existed
between parties to a dispute whereby they had assumed an obligation to settle any given
dispute by recourse to a particular method, that agreement should have precedence over the
procedures agreed upon in the new Convention," 60th plenary meeting ( 1976), para. 55, V Off.
Ree. 27. Or as delegation of Argentina put it, "any system or machinery established by the
[C]onvention should be ancillary to other means of settlement which States might choose by
mutual agreement," 59th plenary meeting (1976), para. 46, ibid. 18.
3 93 LNTS 345 (1929); 71 UNTS JOI (1950); IOI, Vol. I.A, at I.A.7.a.ii.
4 30 UNTS 55 (1949); IOI, Vol. II.B-11.J, at 11.E.l.c.
5 320 UNTS 241 (1959); V Eur. YB 347 (1959).
6 3 ILM 1116 (1964); IOI, Vol. 11.B-ll.J, at II.H.l.a .i. In another connection, a group of
African States suggested that disputes relating to the delineation of the economic zon e
between adjacent and opposite States shall be settled in conformit y with the Charter of the
United Nations and "any other relevant regional arrangement s." A/ AC.138/SC.II/L.40, Article
IX, reprodu ced in III SBC Report 1973, at 89. See also the Declaration on the Issues
of the Law of the Sea by the Organiz ation of African Unity, A/AC.138/89, section D,
reproduced in II SBC Report I 973, at 5.
7 Earlier drafts also contained a reference to the possibility of the acceptance of a procedure
through "some other instrument or instruments ." This phrase was changed to "otherwise" on
recommendation of the Drafting Committee . See Source I l, at 19; and Source 12.
Annex 25
SETILEMENT OF DISPUTES 27
meant to include, in particular, the acceptances of the jurisdiction of the
International Court of Justice by declarations made under Article 36,
paragraph 2, of the Statute of that Court.
282.4. Article 282 applies only when the previously accepted procedure
"entails a binding decision," and does not apply if the other agreement
provides only for mediation or conciliation that terminates in a nonbinding
report. (With respect to conciliation, see article 284.)
282.5. There has been some disagreement as to whether article 282 should
apply only in cases where the other agreement for the settlement of disputes
has been concluded prior to the entry into force of the Law of the Sea
Convention. The prevailing view seems to be that it would apply in all cases
in which the other treaty has entered into force before a party to a dispute
has decided to submit the dispute to a dispute settlement procedure.
According to that view, even if the other treaty has been concluded ( or has
entered into force) after the date of the entry into force of the Law of the
Sea Convention, it may be invoked instead of Part XV by any party to the
dispute. In addition, the parties to the dispute can always agree to conclude
a special agreement submitting the dispute to a particular tribunal. This is
consistent with the basic principle of Part XV that the parties can agree
"at any time" to settle a dispute between them by any peaceful means of
their own choice (article 280). (See also para. 311.8 below.)
282.6. The other consequence of this right of the parties to select any
procedure they prefer is that the parties are not bound to use the procedure
under some other treaty if both of them agree at any time to use the
procedure under Part XV (article 280). Therefore, as stated in the final
clause of article 282, even if one party has referred the dispute to a
procedure under some other treaty, the parties to the dispute may still agree
at any time to resort to Part XV instead. The consultations that are
mandated by article 283 may facilitate such an agreement.
282.7. President Amerasinghe has interpreted the phrase "unless the
parties agree otherwise" as meaning that
"if the parties to a dispute have assumed the obligation referred to [in
article 282], there can be no release from that obligation without the
concurrence of all parties to the dispute who have entered into the
special agreement or other instrument referred to there. Any other
interpretation would weaken the effect of the provision. Its strength
and merit would lie in its binding character." 8
8 A/CONF.62/WP.9/Add.l (1976), para. 13, V Off. Ree. 122.
Annex 26
H. Owada, Introductory Remarks at the Seminar on the Contentious Jurisdiction of the
International Court of Justice (26 Oct. 2010)
SPEECH BY H.E. JUDGE HISASHI OWADA, PRESIDENT OF THE INTERNATIONAL COURT OF
JUSTICE, TO THE LEGAL ADVISERS OF UNITED NATIONS MEMBER STATES
Introductory Remarks at the Seminar on the Contentious
Jurisdiction of the International Court of Justice
26 October 2010
Mr. Secretary-General
Madame Deputy-Secretary-General,
Madame Legal Counsel,
Legal Advisers and distinguished guests,
I am delighted to address this conference of the Legal Advisers taking place within the
framework of the International Legal Week of the United Nations. This is the second time since
my appointment as President of the International Court of Justice that I have the honour to deliver
this address. I am especially pleased this year to address you in close relationship with the opening
of a seminar, organized by the United Nations Office of Legal Affairs, which is focused on the
issue of jurisdiction of the International Court of Justice. I understand that the present seminar is
expected to be the first in a three-year schedule of seminars organized by the Office of Legal
Affairs concerning the role of the Court in the rule of law at the national and international level.
Presenting my remarks primarily as an address to the Conference of the Legal Advisers
during “International Legal Week”, but taking advantage of this occasion by way of an introduction
to today’s seminar on the jurisdiction of the Court, I would like to make a few comments on some
specific aspects of this topic. As you may be aware, the last few years have been among the very
busiest in the Court’s history. Yet, while States have been increasingly inclined to come to the
Court to resolve their disputes, by judicial means, there is also an incessant tendency of States to
circumscribe the conditions for their acceptance of the Court’s jurisdiction. I would like to focus
my comments today on the issue of compulsory jurisdiction of the Court and especially the issue of
conditions attached to clauses providing for the compulsory jurisdiction of the Court, and their
legal implications.
As you know, the jurisdiction of the Court is based on the consent of the Parties coming
before it. This consent may manifest itself either in the form of a compromis (special agreement)
relating to a specific dispute, or a State may accept the “compulsory jurisdiction” of the Court more
generally under Article 36 of the Statute in one of two ways. First, under Article 36, paragraph 1,
of the Statute, States may express their consent to the Court’s jurisdiction by entering into a
conventional agreement that contains a compromissory clause to the effect that disputes as to the
interpretation or application of that agreement are to be adjudicated by the Court. Second, under
Article 36, paragraph 2, ⎯ commonly known as the “optional clause” of the Statute ⎯ States may
make a unilateral declaration that they recognize as compulsory ipso facto the jurisdiction of the
Court in all legal disputes concerning certain categories of questions mentioned therein. (There is
exceptionally the third means of conferring jurisdiction upon the Court, namely through the
institution of forum prorogatum, but today I am not going to touch upon this issue.)
Annex 26
- 2 -
I will begin first by discussing compromissory clauses and the problem of reservations
thereto; second, I will turn to the problem of conditions attached to optional clause declarations. I
should emphasize at the outset, in disclaimer, that these comments are made entirely in my
personal capacity, and are not to be attributed to, nor do they reflect, the view of the Court of which
I am President.
1. Reservations to compromissory clauses
The compromissory clause has become an increasingly important part of the Court’s
jurisdictional toolbox in recent years, due to a combination of two trends: While the number of
States making optional clause declarations has declined in comparative terms, the number of States
signing treaties containing compromissory clauses has increased significantly. For example, in the
era of the Permanent Court of International Justice, 76 per cent of States party to the Statute had
made optional clause declarations (42 out of 55). Today, only 34 per cent of States have made such
a declaration (66 of 192). In contrast to this marked decline in the acceptance of the optional
clause, the number of States entering into treaties containing compromissory clauses providing the
Court jurisdiction has increased significantly. Some 300 bilateral or multilateral treaties at present
provide for compulsory recourse to the International Court of Justice in the resolution of disputes
concerning the interpretation and application of the treaty in question. This is reflected also in the
increase in the number of cases brought before this Court each year, relying as their jurisdictional
basis on one or more compromissory clauses. The proportion of pending cases brought under a
compromissory clause has risen from 15 per cent in the 1980’s, to 40 per cent at the end of the last
century, to more than 50 per cent in this past decade.
This trend seems to point to the fact that the inclusion of a compromissory clause in a
multilateral convention or a bilateral treaty can have quite a significant result, because the
combination of all such clauses has indeed begun to create a new avenue to the compulsory
jurisdiction of the ICJ. This may not be what was envisioned at the time of the creation of the PCIJ
but is nevertheless significant and now represents a substantial share of the total bases for the
Court’s jurisdiction, that is: half of its pending cases. In considering ways to strengthen the role of
the Court in the international judicial landscape of the twenty-first century, therefore, the
compromissory clause is an important tool to be utilized.
While the number of treaties containing compromissory clauses has thus been on the
increase, the jurisdiction offered by these clauses has not always been as broad as it could be. This
is due to the fact that an increasing number of reservations are entered by States when signing those
international conventions that contain such compromissory clauses1
. Those reservations have
taken multiple forms. Some place limitations on the Court’s jurisdiction ratione temporis. Others
limit the Court’s jurisdiction ratione materiae. Yet others attempt to limit the Court’s jurisdiction
ratione personae.
With some international conventions, the compromissory clause itself is stipulated as a
separate optional protocol, allowing State parties to a convention to opt for the acceptance of the
compulsory jurisdiction or its total rejection. A positive aspect of this last device ⎯ a separate
optional protocol containing the compromissory clause ⎯ might be that States may become parties
to the substantive provisions, while remaining free to reject the compulsory jurisdiction of the
Court contained in the compromissory clauses and thus they may sign treaties that they otherwise
would not have signed, thus increasing the substantive obligations they have undertaken. It could
be argued on this point that, by consequence, at least the goal of the Court to strengthen the
1
The problem does not usually arise in relation to bilateral treaties containing compromissory clauses for the
obvious reason that the parties, in agreeing to insert such clauses, will agree on the exact scope of the clause.
Annex 26
- 3 -
international legal order has been achieved2
. However, this view ignores the important role of the
Court in the international legal order created by those substantive obligations. The Court plays a
crucial role in ensuring the application of the conventions in question, without which the
substantive obligations contained in the conventions would be reduced to mere words. The Court
provides a forum where State parties can raise situations of non-compliance in a concrete case, and
it thus serves to contribute to the consolidation, clarification and development of the law contained
in the conventions in question. (For this reasoning, see the joint separate opinion of five judges in
the Congo v. Rwanda case.)
It is therefore critically important that the international community of States take a fresh look
at the issue of reservations with a view to consolidating the jurisdictional reach of the Court. This
question has a long history before the Court, dating back to its 1951 Advisory Opinion on
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide. In
that opinion, the Court stated that:
“[I]t is the compatibility of a reservation with the object and purpose of a
Convention that must furnish the criteria for the attitude of a State in making the
reservation on accession as well as for the appraisal by a State in objecting to the
reservation”3
.
This concept was subsequently codified in Article 19 (c) of the Vienna Convention on the Law of
Treaties, and has served as an important guide to States and commentators concerning the scope of
permissible reservations4
.
In applying this rule in the context of reservations to compromissory clauses, two questions
immediately arise. First, who decides whether a reservation to a compromissory clause is contrary
to the object and purpose of the convention containing that clause ⎯ the State making the
reservation, the State opposing it, or the international Court, tribunal, or body to which the
compromissory clause refers disputes? Second, how should this question be resolved, i.e., is a
reservation to a compromissory clause providing for dispute settlement contrary to the object and
purpose of the treaty? I will consider each of these questions in turn.
First, the question of who decides whether a reservation to a compromissory clause is
contrary to the object and purpose of the treaty is more complicated than it may initially seem. The
1951 Advisory Opinion states that the test is meant to “furnish the criterion for the attitude of a
State in making the reservation on accession as well as for the appraisal by a State in objecting to
the reservation”5
. This language could be read as implying that the test is meant to be applied
prima facie by the States themselves in making the reservation. Article 19 (c) of the Vienna
Convention, however, contains no language that would allow such an interpretation. Moreover, the
compromissory clause itself would empower the Court or monitoring body in question to resolve
this question as an issue of interpretation or application of the treaty.
A variety of human rights bodies have already concluded that reservations preventing
third-party review of human rights conventions are invalid. Regarding reservations to the
International Covenant on Civil and Political Rights of 1966, the Human Rights Committee
explained in General Comment 24 that “a reservation that rejects the Committee’s competence to
interpret the requirements of any provisions of the Covenant would also be contrary to the object
2
See for example the ruling in: Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, Advisory Opinion, I.C.J. Reports 1951.
3
I.C.J. Reports 1951, p. 24.
4
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, Art. 19 (c), 1155 UNTS 331.
5
I.C.J. Reports 1951, p. 24.
Annex 26
- 4 -
and purpose of that treaty”6
. Similarly, the Human Rights Committee concluded that a reservation
made by one State party to the ICCPR excluding the Committee’s competence to consider
communications relating to a prisoner under sentence of death was not valid7
. The European Court
of Human Rights determined, in Loizidou v. Turkey, that States may not qualify their acceptance of
the Convention so as to “effectively exclude[e] areas of their law and practice within their
‘jurisdiction’ from supervision by the Convention institutions” because such practice would violate
the object and purpose of the European Convention on Human Rights8
.
The International Court of Justice is not a human rights monitoring body, and until recently
the question remained whether it had the same power to review reservations in light of the object
and purpose of the treaty containing the relevant compromissory clause. This question was
effectively answered in the recent case of Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the Congo v. Rwanda). In that case, the Applicant
had put forward the compromissory clauses in numerous treaties as a basis for the Court’s
jurisdiction, including several human rights treaties and the Convention on the Prevention and
Punishment of the Crime of Genocide. The Respondent had entered a reservation in the case of
several of these compromissory clauses, and argued before the Court that, consequently, the Court
lacked jurisdiction. The Applicant argued that the reservation either had been subsequently
withdrawn, or conflicted with the object and purpose of the treaty, or both, and that the Court had
jurisdiction to hear the case by virtue of the compromissory clauses.
Although the Court found that it lacked jurisdiction under each compromissory clause put
forward by the Applicant, the very fact that the Court considered the claims demonstrates that the
answer to the question of whether a State’s reservation is contrary to the object and purpose of the
treaty is not a matter to be left exclusively to the States making that reservation. This demonstrates
that the Court has a role to play in determining whether a reservation to a compromissory clause is
contrary to the object and purpose of the treaty at issue. With respect to the Respondent’s
reservation to Article IX of the Genocide Convention, the Court stated that:
“Rwanda’s reservation to Article IX of the Genocide Convention bears on the
jurisdiction of the Court, and does not affect substantive obligations relating to acts of
genocide themselves under that Convention. In the circumstances of the present case,
the Court cannot conclude that the reservation of Rwanda in question, which is meant
to exclude a particular method of settling a dispute relating to the interpretation,
application or fulfilment of the Convention, is to be regarded as being incompatible
with the object and purpose of the Convention.”9
In their joint separate opinion, five judges observed that the Court had “gone beyond noting a
reservation by one State and a failure by the other to object”10. It is to be noted that in this quoted
passage, the Court could be said to have taken the position that the validity of such reservations fell
to be determined not simply by the States themselves, but ultimately by the Court.
6
Human Rights Committee, General Comment No. 24, para. 11.
7
Communication No. 845/1999, Kennedy v. Trinidad and Tobago, CCPR/C/67/D/845/1999, Report of the Human
Rights Committee (A/55/40), Vol. 3, Ann. XI.A, para. 6.7.
8
European Court of Human Rights, Loizidou v. Turkey, Judgment of 23 March 1995 (Preliminary Objections),
Publication of the European Court of Human Rights, Series A., Vol. 310, paras. 77-78. See also Belilos v. Switzerland,
Judgment of 29 April 1988, Publication of the European Court of Human Rights, Series A, Vol. 132.
9
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, para. 67.
10Ibid., joint separate opinion of Judges Higgins, Kooijmans, Elaraby, Owada and Simma, para. 21.
Annex 26
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Even when the Court has the power to examine whether a reservation to a compromissory
clause is contrary to the object and purpose of the treaty, another more difficult issue arises: what
should the Court conclude following examination of such reservations? In this regard, the draft
guidelines with regard to reservations prepared by the International Law Commission provide in
Section 3.1.13, entitled “Reservations to treaty clauses concerning dispute settlement or the
monitoring of the implementation of the treaty” as follows:
“A reservation to a treaty clause concerning dispute settlement or the
monitoring of the implementation of the treaty is not, in itself, incompatible with the
object and purpose of the treaty.”11
The guideline then provides exceptions to this general rule, most notably in relation to dispute
settlement provisions that constitute “the raison d’être of the treaty”12. The question which arises,
here, is in what context would a dispute settlement clause constitute the very “raison d’être of the
treaty”, so that a reservation may be said to be contrary to the object and purpose of that treaty? I
would like to submit that because compromissory clauses are playing an increasingly crucial role as
a primary method for providing the Court with jurisdiction to resolve disputes between States,
these clauses must be considered as more likely to constitute part of the “raison d’être of the
treaty” and thus such reservations would not be permissible. These reservations are fracturing and
dividing the web of consent created by the increasing number of compromissory clauses, with the
result that the Court is made unable to adjudicate upon disputes submitted to it ⎯ as was the case
with Congo v. Rwanda case.
Arguably, Article IX of the Genocide Convention provides an example of a dispute
settlement clause which might be considered to constitute part of the “raison d’être of the treaty” to
the extent that Article IX speaks not only of disputes over the interpretation and application of the
Convention, but also disputes over the “fulfilment of the Convention, including those relating to the
responsibility of a State for genocide”. Given the nature of the crime, it is difficult to imagine how
genocide could be committed without some form of state complicity or involvement. Article IX
offers the only mechanism in the Convention for the punishment of State violations of the crimes
listed in Article III of that Convention (which include genocide, conspiracy to commit genocide,
direct and public incitement to commit genocide, attempt to commit genocide, and complicity in
genocide). It is for this reason that, while the Court concluded in Congo v. Rwanda that the
Respondent’s reservation to Article IX was not contrary to the object and purpose of the
Convention, the Joint Separate Opinion emphasized as follows:
“It is a matter for serious concern that at the beginning of the twenty-first
century it is still for States to choose whether they consent to the Court adjudicating
claims that they have committed genocide. It must be regarded as a very grave matter
that a State should be in a position to shield from international judicial scrutiny any
claim that might be made against it concerning genocide. A State so doing shows the
world scant confidence that it would never, ever, commit genocide, one of the greatest
crimes known.”13
It is my submission that the time has come to recognize the importance of compromissory
clauses as a whole and the value inherent in the dispute settlement procedures before the Court. It
would strengthen the international rule of law in a world which is increasingly governed by a web
of multilateral conventions, many of which provide for dispute settlement before the Court.
11Tenth Report on reservations to treaties, doc. A/CN.4/558/Add.1 (14 June 2005), para. 99, Sec. 3.1.13.
12Ibid., Sec. 3.1.13 (i). See also ibid., Sec. 3.1.13 (ii) (providing a second exception when “[t]he reservation has
the effect of excluding its author from a dispute settlement or treaty implementation monitoring mechanism with respect
to a treaty provision that the author has previously accepted, if the very purpose of the treaty is to put such a mechanism
into effect”).
13Joint separate opinion of Judges Higgins, Kooijmans, Elaraby, Owada and Simma, supra, para. 25.
Annex 26
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2. Conditions attached to optional clause declarations
As I said at the outset, in addition to compromissory clauses, the compulsory jurisdiction of
the Court also includes optional clause declarations made under Article 36, paragraph 2, of the
Statute. By making such a declaration, States recognize “as compulsory ipso facto and without
special agreement the jurisdiction of the Court”14. Parallel to the increasing trend to attach
reservations to compromissory clauses, States have also been increasingly attaching conditions to
their optional clause declarations, including some which have the effect of excluding certain
categories of disputes from the jurisdiction of the Court.
Since this form of acceptance of the Court’s jurisdiction is, in reality, a unilateral declaration,
the Court has concluded that it is not strictly speaking subject to the Vienna Convention on the Law
of Treaties or other rules governing reservations to treaties15. In the case of a reservation to a
compromissory clause, that compromissory clause has already been negotiated by the States taking
part in a multilateral negotiation. The reserving State can thus be considered to disrupt a balance
that has been struck through compromise among all the States participating in that treaty
negotiation. By contrast, in the case of a condition attached to an optional clause declaration made
under Article 36, paragraph 2, of the Statute, the State begins with a tabula rasa: it may decide to
accept the jurisdiction of the Court and, if it does, the State is free to decide whether to do so with
restrictions or unconditionally. As the Court stated in Military and Paramilitary activities in and
against Nicaragua,
“Declarations of acceptance of the compulsory jurisdiction of the Court are
facultative, unilateral engagements, that states are absolutely free to make or not to
make. In making the declaration a state is equally free either to do so unconditionally
and without limit of time for its duration, or to qualify it with conditions or
reservations.”16
They are thus truly “optional” declarations, as they have come to be known. However, when States
limit their acceptance of the compulsory jurisdiction of the Court in the optional clause declaration,
the ultimate effect for the Court’s jurisdiction is the same as when they enter reservations to treaties
containing compromissory clauses: the overall jurisdiction of the Court is weakened.
In principle, States are free to condition their optional clause declarations in any number of
ways, and there are several such conditions which States include in their declarations with
increasing frequency. Let me introduce some of the most typical ones.
First, out of the 66 such declarations, 63 States explicitly refer to reciprocity, i.e., that they
accept the jurisdiction of the Court only in relation to other States accepting the same obligation.
This reference to reciprocity is of course made ex abundanti cautela. The principle is implicit in
the provisions of Article 36, paragraph 2, where it speaks of “any other State accepting the same
obligation”.
Second, 32 States limit their consent to jurisdiction ratione temporis, such as specifying that
the declaration covers only disputes which arose after it was made or only disputes in relation to
situations which arose after that date. I would like to elaborate on this in more detail in a moment.
Third, 27 States have qualified their optional clause declarations by excluding matters within
their domestic jurisdiction. In theory, this again can be said to be to a large extent ex abundanti
cautela. This condition really adds very little protection for the State because, if a dispute truly
14Statute of the Court, Art. 36, para. 2.
15Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, para. 46.
16I.C.J. Reports 1984, p. 418, para 59.
Annex 26
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concerns matters that are exclusively within the domestic jurisdiction of the State, then it would be
outside the scope of Article 36, paragraph 2, of the Statute and the Court would lack jurisdiction in
any case. States could thus consider eliminating this condition with little or no change to their
consent to the Court’s jurisdiction.
Fourth, 18 States have included a condition in their declaration that the Court may not have
jurisdiction unless all parties to any treaty affected by the decision are also parties to the case
before the Court. This is the case of the “Vandenberg reservation” introduced by the United States,
which prevented the Court from applying the United Nations Charter in the case between
Nicaragua and the United States17. Five other States have opted for similar language in their
declarations.
Fifth, 40 States have limited their optional clause declarations by stipulating that any other
mechanisms of dispute settlement as agreed between the parties will prevail over the general
jurisdiction of the Court. In the few cases where this condition has been at issue, the Court found
that it did not exclude recourse to ICJ adjudication18.
Finally, certain States exclude some specific issues or categories of issues from the
jurisdiction they grant the Court in their declarations, such as territorial disputes, maritime disputes,
disputes concerning their armed forces, or “disputes between members of the British
Commonwealth of Nations”19. These are explicit conditions in the sense those issues are excluded
eo nomine from the scope of jurisdiction of the Court.
There is thus no question that a great variety of conditions have been attached to optional
clause declarations. This situation is further multiplied by the principle of reciprocity, which has
the effect of making the limitation applicable both for and against the State making it.
*
It is one of the fundamental principles of contemporary international law that the jurisdiction
of the Court International Court of Justice is based on the consent of States. It follows that any
conditions attached to the declaration accepting the jurisdiction of the Court are left to the will of
that State making that declaration. As I stated earlier, in this sense, the “optional clause” is indeed
“optional”. Moreover, as with reservations to compromissory clauses, the case could be made that
the option of attaching conditions to optional clause declarations has provided a necessary
flexibility to States, without which they may not have been able to make the declaration in the first
place. However, it must be admitted that such reservations and conditions may also complicate the
work of the Court, and serve to weaken its overall jurisdictional reach. I would like to offer in
closing one such example of a difficulty the international Court of Justice may face in this regard.
This is the common inclusion of conditions ratione temporis limiting the jurisdiction of the Court
to disputes arising after the making of the declaration. The most common formulation of this type
of condition excludes “disputes prior to the date of the declaration, including any dispute the
17I.C.J. Reports 1986, p. 38, para. 56, and p. 97, para 182.
18Electricity Company of Sofia and Bulgaria, Judgment, 1939, P.C.I.J., Series A/B, No. 77, p. 76; Case
concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, I.C.J. Reports 1991, pp. 61-62,
paras. 22-24.
19The declarations of six members of the British Commonwealth contained such a declaration with regard to the
jurisdiction of the PCIJ: Australia, Canada, India, New Zealand, South Africa and the United Kingdom. The
declarations of eight States currently contain this reservation with regard to the jurisdiction of the ICJ: Barbados,
Canada, Gambia, India, Kenya, Malta, Mauritius, United Kingdom.
Annex 26
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foundations, reasons, facts, causes, origins, definitions, allegations or bases of which existed prior
to that date, even if they are submitted or brought to the knowledge of the Court thereafter”20.
The difficulty that has arisen with such a condition is that it can be nearly impossible to
determine exactly how far back to consider the foundations, reasons, and causes of the dispute to
have begun, since ultimately everything in history is related to and results from that which
happened before it. The Permanent Court dealt with this question in the Phosphates in Morocco21
and Electricity Company of Sofia and Bulgaria22 cases, developing a test whereby the Court would
begin the clock at what it considers to be the “real cause” of the dispute. The current Court has
followed this approach in the Right of Passage case. In that case, the Court determined that
although the Applicant’s right of passage existed prior to 5 February 1930 ⎯ the date of
Respondent’s optional clause declaration which contained a condition making it non-retroactive ⎯
the dispute had not arisen until the date when the Applicant contended that Respondent had taken
measures to prevent the exercise of that right23. This issue came up again in more recent cases,
such as the case concerning Certain Properties (Liechtenstein v. Germany) and Jurisdictional
Immunities of the State (Germany v. Italy).
Certainly, there are cases when one or more parties to a treaty may wish to limit the temporal
scope of the treaty’s application. However, it cannot be denied that this comes at a cost in terms of
resources, both of the parties and of the Court, in order to determine if such a temporal limitation
applies in the case under consideration. It may be the case that certain States, in entering this type
of reservation, have in mind a very specific dispute existing prior to the optional clause declaration,
which they are interested in excluding. In such a case, a reservation drafted in more specific terms
could facilitate judicial efficiency, as it would be easier to determine whether it was applicable.
(c) Concluding comments
Mr. Secretary-General
Madame Deputy-Secretary-General,
Madame Legal Counsel,
Legal Advisers and distinguished guests,
By way of conclusion, I may recall that the importance of the Court’s compulsory
jurisdiction has been a priority within the United Nations for many years. The Manila Declaration
on the Peaceful Settlement of International Disputes, adopted by the General Assembly on
15 November 1982, placed a particular emphasis on the significance of recognizing the jurisdiction
of the Court. In its Article 5, the Declaration provides that “legal disputes should as a general rule
20See, for example, the Reservation of India.
21Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, pp. 23-24.
22Electricity Company of Sofia and Bulgaria, Judgment, 1939, P.C.I.J., Series A/B, No. 77, pp. 63, 82.
23Case concerning Right of Passage over Indian Territory (Merits), Judgment of 12 April 1960, I.C.J. Reports
1960, pp. 33-35. Most recently, in the case concerning Jurisdictional Immunities of the State (Germany v. Italy) earlier
this year, the Court also followed this approach, but with the opposite result. In that case the temporal limitation did not
come from a reservation to an optional clause declaration but was included directly in a treaty containing a
compromissory clause providing for jurisdiction of the Court. The Court decided that the dispute that Italy intended to
bring before the Court by way of its counter-claim related to facts and situations existing prior to the entry into force of
that treaty (Jurisdictional Immunities of the State (Germany v. Italy), Order of 6 July 2010, para. 30). The Court
therefore found that what Italy claimed to be the cause of the dispute was not the “real cause” of the dispute and
concluded that the counter-claim presented by Italy did not come within its jurisdiction. Ibid., paras. 26-31.
Annex 26
- 9 -
be referred by the parties to the International Court of Justice”24. It urges States to “[c]onsider the
possibility of inserting in treaties, whenever appropriate, clauses providing for the submission to
the International Court of Justice of disputes which may arise from the interpretation or application
of such treaties”25. It further stresses that States should “[s]tudy the possibility of choosing, in the
free exercise of their sovereignty, to recognize as compulsory the jurisdiction of the International
Court of Justice in accordance with Article 36 of its Statute”26.
In 1992, Secretary-General Boutros-Ghali called on States to submit to the compulsory
jurisdiction of the Court, emphasizing that that acceptance should be “without reservation”27.
Secretary-General Kofi Annan made a similar plea to States to accept the compulsory jurisdiction
of the Court in 2001, emphasizing that “the more States that accept compulsory jurisdiction of the
Court, the higher the chances that potential disputes can be expeditiously resolved through peaceful
means”28. Taking note of these efforts, a Member of the Court in his Declaration in a recent case
observed that
“[W]hile consent forms the cornerstone of the system of international
adjudication, States have a duty under the Charter to settle their disputes peacefully.
Recognition of the compulsory jurisdiction of the Court fulfils this duty.”29
Today, in 2010, recognition of the Court’s compulsory jurisdiction is as important as ever
before. It is the inter-connected web of optional clause declarations and compromissory clauses
which create a foundation upon which the Court can develop a continuous jurisdiction that does not
have to be re-established with each new dispute as does jurisdiction by special agreement. Yet, as I
have discussed today, both the compromissory jurisdiction and the optional clause jurisdiction of
the Court are riddled with many reservations and conditions, limiting the role that the Court can
have in upholding the rule of law. I am thus very happy to remain as a participant in the seminar
which will now be launched by the Office of Legal Affairs on the contentious jurisdiction of the
Court, and I look forward to hearing your ideas on ways in which that contentious jurisdiction
could be strengthened. Thank you very much for the opportunity to address you today.
___________
24Manila Declaration on the Peaceful Settlement of International Disputes, adopted by the General Assembly in
resolution 37/10 of 15 November 1982.
25Ibid.
26Ibid.
27An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping, Report of the
Secretary-General adopted by a summit meeting of the Security Council on 31 January 1992, A/47/277-S/24111,
para. 39.
28Prevention of Armed Conflict, Report of the Secretary-General, 7 June 2001, A/55/985-S/2001/574, para. 48.
29Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, declaration of Judge Elaraby, paras. 8-9.
Annex 26
Annex 27
P. Chandrasekhara Rao, “Law of the Sea, Settlement of Disputes”, Max Planck Encyclopedia of
Public International Law (last updated Mar. 2011)
Annex 27
OXFORD PUBLIC INTERNATIONAL LAW
Max Planck Encyclopedia of Public International Law
Subject(s):
Law of the Sea, Settlement of Disputes
Patibandla Chandrasekhara Rao
Content tn,e: Encyclopedia
Entries
Alticle 1ut updated: Mareb.
2011
Product: Max Planck
Encyclopedia of Public
International uiw [MPEPilJ
International Tribunal for the Law of the Sea (ITI.OS) - UNCLOS (UN Convention on the Law of the Sea)
Published under the auspic.es of the Max Planck Foundation far International Peace and the Rule of Law under the
direction of Rudiger Wolfrum.
Annex 27
A. Traditional Dispute Settlement Procedures
1 Generally speaking, the procedures for the settlement of all types of disputes in the field of international
law were, until recently, the same (Peaceful Settlement oflnternational Disputes). Dispute settlement in
international law involved recourse to such traditional methods as negotiation, inquiry (Fact- Finding),
good offices, conciliation, mediation, arbitration, and judicial settlement (Judicial Settlement of
International Disputes). The Permanent Court oflnternational Justice (PCIJ) as well as the International
Court of Justice (ICJ) decided a number of cases where questions of the law of the sea were involved. The
landmark decisions rendered by these courts and the results of other dispute settlement procedures
mentioned above include the Alabama Arbitration (1872), the Bering Sea Fur Seals Arbitration (1893;
Bering Sea), the Case of the SS Wimbledon (1923) (Wimbledon, The), the Case of the SS Lotus (1927)
(Lotus, The), the Palmas Island Arbitration (1928), the Corfu Channel Case (1949), the Fisheries Case
(United Kingdom v Norway) (1951), the North Sea Continental Shelf Cases (1969), the Fisheries
Jurisdiction Case (Spain v Canada) (1974), the Continental Shelf Arbitration (Francev United Kingdom)
(1977), the Beagle Channel Dispute (1977), the Continental Shelf Case (Libyan Arab Jamahiriya/Malta)
(1985), the Maritime Boundary between Guinea and Guinea-Bissau Arbitration (Guinea v Guinea-Bissau)
(1985), the Fisheries Jurisdiction Cases (United Kingdom v Iceland; Federal Republic of Germany v
Iceland) (1998), and the Land and Maritime Boundary between Cameroon and Nigeria Case (Cameroon v
Nigeria) (2002).
2 These traditional dispute settlement procedures are still available for the settlement oflaw of the sea
disputes, as they are for other disputes. None of the traditional procedures are compulsory. TheICJhas
dealt with law of the sea disputes on the basis of its jurisdiction as provided for in its Statute: jurisdiction
conferred on the ICJ by a special agreement or by means of the 'optional clause' in Art. 36 (2) ICJ Statute
(Compromis; International Court of Justice, Optional Clause). It is noteworthy that the ICJ handed down
several judgments, by whicli it made a significant contribution to the jurisprudence on the law of the sea,
especially on issues concerning the delimitation of territorial sea[s], the continental shelf, and the
exclusive economic zone.
3 The 1907 Hague Convention relative to the Establishment of an International Prize Court ((1908) 2 AJIL
Supp 174) to deal with the specific problem of capture of foreign vessels at sea by belligerents
(Belligerency), whicli included specific dispute settlement provisions, never came into force (International
Prize Court [IPC]). The States at the First United Nations Conference on the Law of the Sea ('UNCLOS I'
1958; Conferences on the Law of the Sea) agreed upon the 1958 Geneva Conventions on the Law of the Sea
and the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes (other than
those covered by the 1958 Geneva Convention on Fishing and ConseIVation of the Living Resources of the
High Seas; Marine Living Resources, International Protection). The 1958 Convention on Fishing and
ConseIVation of the Living Resources of the High Seas provided for the settlement of fishing disputes by a
special commission whose decisions would be binding on the States concerned, unless the parties agreed
to seek a solution by another method of peaceful settlement. None of the dispute settlement procedures
contained in the 1958 Geneva Conventions proved effective.
4 However, the initiative taken by Arvid Pardo, the then Ambassadorof Malta to the United Nations, in
the UN General Assembly in 1967 set in motion a process that involved deliberations on all aspects of the
law of the sea, including dispute settlement procedures, first in an Ad Hoe Committee to Study the
Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction (1967;
International Seabed Area), then in the Committee on the Peaceful Uses of the Sea-Bed and Ocean Floor
Beyond the Limits of National Jurisdiction ('Sea-Bed Committee' 1969-73; Peaceful Purposes), and finally
in the Third United Nations Conference on the Law of the Sea ('UNCLOS III' 1973-82). In the Sea-Bed
Committee, proposals were made for dealing in a piecemeal fashion with disputes that might arise on
Annex 27
various issues, such as seabed mining, fisheries (Fisheries, Coastal; Fisheries, High Seas; Fisheries,
Sedentary), protection of the marine environment (Marine Environment, International Protection),
conduct of marine scientific research, high seas, continental shelf, territorial sea, and straits (Straits,
International). Some proposals, however, provided for the settlement oflaw of the sea disputes in general,
and the most prominent among them was the proposal made by the United States on the last day of the
last session of the Sea-Bed Committee in August 1973. This proposal envisaged, inter alia, the
establishment of a Law of the Sea Tribunal with jurisdiction to settle disputes falling under compulsory
dispute settlement procedures and to handle cases requiring urgent action including requests for prompt
release of vessels and crews (International Tribunal for the Law of the Sea [ITLOS]). This proposal served
as a basis for informal consultations in the latter part of the second session of UNCLOS III held in Caracas
in 1974. The Caracas session established an informal working group, which prepared a working paper on
dispute settlement, including a draft statute of the proposed tribunal. This paper served as a basis for
further deliberations at the Conference's third to tenth sessions and their negotiating texts. It was only at
the fifth session of the Conference held in New York in 1976 that general approval was found for the
establishment of a Seabed Disputes Chamber within the proposed Law of the Sea Tribunal. The dispute
settlement provisions took their final form only when the UN Convention on the Law of the Sea as a whole
was adopted in 1982.
B. Part XV of the UN Convention on the Law of the Sea
5 The UN Convention on the Law of the Sea was opened for signature on 10 December 1982. More than
100 of its articles deal with dispute settlement in a comprehensive manner. The dispute settlement
provisions constitute an integral part of the Convention. It establishes both voluntary and compulsory
procedures for dispute settlement. The drafters of the UN Convention on the Law of the Sea considered that
effective dispute settlement was essential to balance the delicate compromises incorporated in the
Convention and to guarantee that it would be interpreted both consistently and equitably (Equity in
International Law; Interpretation in International Law). For the first time, the UN Convention on the Law
of the Sea provides for the access of entities other than States to an international tribunal in their disputes
with a State or international organization (International Courts and Tribunals, Standing).
6 The dispute settlement procedures in the UN Convention on the Law of the Sea are set out in its Part XV.
Part XV is analogous to the procedure of the ICJ under its Statute. It makes no difference whether a
dispute concerning the law of the sea is submitted to the ICJ either under Part XV UN Convention on the
Law of the Sea or under the Statute of the ICJ. The choice of procedure has, however, an important effect on
interim (provisional) measures of protection as Art. 290 (1) UN Convention on the Law of the Sea permits
the court or tribunal to prescribe provisional measures to prevent serious harm to the marine environment,
pending the final decision of that court or tribunal, a possibility which is not contemplated in Art. 41 ICJ
Statute. Part XV UN Convention on the Law of the Sea contains three sections; they evolve logically from
one to the other and are thus well structured.
1. Voluntary Dispute Settlement Procedures
7 Section 1 of Part XV (Arts 279-285 UN Convention on the Law of the Sea) contains dispute settlement
procedures well known in general international law. The basic principle embodied in Art. 279 UN
Convention on the Law of the Sea declares that States Parties are required to settle any dispute between
them concerning the interpretation or application of the Convention by peaceful means, as specified in Art.
33 (1) UN Charter, ie, through negotiation, inquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. Thus,
recourse to non-peaceful means is impermissible for the settlement of any dispute under the UN
Convention on the Law of the Sea. The Convention does not prefer one peaceful means of dispute
settlement over another.
Annex 27
8 The parties are given complete autonomy to choose 'at any time' the peaceful means of their own choice
to settle a dispute between them; as a consequence, they may by agreement discontinue any procedure and
have recourse to an alternative peaceful means of dispute settlement (Art. 280 UN Convention on the Law
of the Sea).
9 In further elaboration of the principle of parties' autonomy, the UN Convention on the Law of the Sea
provides that in respect of a dispute concerning the 'interpretation or application of this Convention', if the
States Parties have agreed to seek settlement of their dispute by a peaceful means of their own choice, the
procedures provided for in Part XV apply 'only where no settlement has been reached by recourse to such
means and the agreement between the parties does not exclude any further procedure' or upon the
expiration of the time limit agreed upon by the parties for reaching a settlement by a peaceful means of
their choice (Art. 281 UN Convention on the Law of the Sea). The peaceful means chosen by the parties
may even fall outside the Convention. Differences between the parties over whether or not the procedure
chosen by the parties precludes the possibility of settlement will have to be decided by the court or
tribunal to which the dispute is submitted.
10 The exclusion of the procedures provided for in Part XV will arise only if the agreement between the
parties contains procedures different from those referred to above for resolving disputes concerning 'the
interpretation or application of this Convention'. The fact that the agreement contains provisions similar
to the provisions of the UN Convention on the Law of the Sea is not material in this regard: Southern
Blue.fin Tuna Cases (New Zealand v Japan; Australia v Japan) (Provisional Measures) (27 August 1999;
Southern Bluefin Tuna Cases). Further, the words 'and the agreement between the parties does not exclude
any further procedure' in Art. 281 (1) UN Convention on the Law of the Sea signify that even if the dispute
is not settled by the chosen procedure, if the parties agreed to exclude any further procedure, then the
procedures provided for in Part XV do not apply. In its Award on Jurisdiction and Admissibility of 4
August 2000, the first Arbitral Tribunal to be established under Annex VII to the UN Convention on the
Law of the Sea, in the Southern Blue.fin Tuna Cases, held that non-binding dispute settlement provisions
of a regional fisheries agreement applied to the exclusion of the procedures provided for in Part XV
(International Courts and Tribunals, Jurisdiction and Admissibility oflnter-State Applications). The view
of theArbitral Tribunal that the agreement to exclude 'any further procedure' may be inferred from the
provisions of the regional fisheries agreement has been widely criticized. The more widely shared view is
that such exclusion of any further procedure should follow from clear wording in the agreement lest the
compulsmy dispute resolution provisions of the UN Convention on the Law of the Sea be undermined.
11 The UN Convention on the Law of the Sea also provides that a dispute must be submitted to a
procedure that entails a binding decision if the parties have so agreed, through a general, regional, or
bilateral agreement or otherwise; and in that event the procedure provided for in Part XV would not apply,
unless the parties otherwise agree (Art. 282 UN Convention on the Law of the Sea). This allows any party
to a dispute to have the dispute settled in accordance with a procedure previously agreed upon if such
procedure entails a binding decision. It matters little whether such agreement was reached prior to the
entry into force of the Convention or thereafter. The agreement referred to in Art. 282 UN Convention on the
Law of the Sea may be recorded 'otherwise', for example, through separate declarations, such as
declarations made under Art. 36 (2) ICJ Statute. To fall within the ambit of Art. 282 UN Convention on the
Law of the Sea, the agreement shall provide for the settlement of disputes concerning what the Convention
calls 'the interpretation or application of this Convention' and not of any other instrument (MOX Plant
[Ireland v United Kingdom] [Provisional Measures] [3 December 2001] para. 38; MOX Plant Arbitration
and Cases). Even if the other instrument contains rights or obligations similar to or identical with the
rights or obligations set out in the UN Convention on the Law of the Sea, the rights and obligations under
that instrument have a separate existence from those under the UN Convention on the Law of the Sea.
Consequently, the interpretation or application of that instrument cannot be said to be a case concerning
'the interpretation or application' of the UN Convention on the Law of the Sea (at paras 39-53).
Annex 27
12 When a dispute arises between States Parties to the UN Convention on the Law of the Sea, the
Convention requires the parties to the dispute to proceed 'expeditiously' to an exchange of views regarding
its settlement by negotiation or other peaceful means. Further, the obligation to exchange views
expeditiously also applies where a procedure for dispute settlement has been terminated without a
settlement or where a settlement has been reached and the circumstances require consultation regarding
the manner of implementing the settlement (Art. 283 UN Convention on the Law of the Sea). A State Party
to a dispute is not obliged to pursue negotiation or other peaceful means under Part XV, section 1, when it
concludes that the possibilities of settlement have been exhausted (Southern Blue.fin Tuna Cases [27
August 1999] para. 60). The obligation to exchange views is not an empty formality, to be dispensed with
at the whim of a disputant.
13 Where the parties agree to submit a dispute to voluntazy conciliation, they may do so in accordance
with the procedure under Annex V, section 1 UN Convention on the Law of the Sea or another conciliation
procedure. Once the dispute has been submitted to a conciliation procedure, the proceedings may be
terminated only in accordance with such procedure, unless the parties agree otherwise. If one party or the
other does not agree to submit the dispute to conciliation or the parties do not agree upon the conciliation
procedure, the conciliation proceedings are deemed to be terminated (Art. 284 UN Convention on the Law
of the Sea).
14 Section 1 of Part XV also applies to any dispute, which pursuant to Part XI, section 5 UN Convention
on the Law of the Sea is to be settled in accordance with procedures provided for in this part. If an entity
other than a State Party (including state enterprises and natural or juridical persons) is a party to such a
dispute, section 1 applies mutatis mutandis (Art. 285 UN Convention on the Law of the Sea). Thus, Art.
285 makes the means indicated in Art. 33 (1) UN Charter applicable to disputes between non-State
entities, such as international organizations and multinational corporations, as well as between those
entities and States.
15 Notwithstanding section 1 or section 3 of Part XV, there is no bar to the parties, by agreement, directly
taking recourse to a compulsozy procedure that entails a binding decision under Part XV, section 2 UN
Convention on the Law of the Sea. There is no limitation on the freedom of the parties to agree to settle any
dispute between them by compulsozy dispute settlement procedures (Art. 299 UN Convention on the Law
of the Sea). Section 1 of Part XV applies only where there is no such agreement between the parties.
2. Compulsory Dispute Settlement Procedures
16 If parties fail to settle a dispute by voluntazy means, they are obliged to resort to compulsozy
procedures entailing binding decisions provided for in section 2 of Part XV, subject to the limitations and
exceptions contained in the UN Convention on the Law of the Sea. States Parties to the Convention are
deemed to have accepted these compulsozy procedures by becoming parties to the Convention. Section 2 of
Part XV starts off with Art. 286, which states the conditions subject to which the compulsozy procedures
embodied therein come into play. By virtue of this article, the questions that need to be answered are
whether the 'limitations' on the applicability of section 2 set out in Art. 297 UN Convention on the Law of
the Sea apply to the dispute in question; and whether the disputant State has made a declaration that it
does not accept any one or more of the compulsozy procedures provided for in section 2 with respect to one
or more of the categories of disputes specified in Art. 298 of the Convention. Arts 297 and 298 UN
Convention on the Law of the Sea do not, however, stand in the way of the States concerned arriving at an
agreement for submitting their dispute to any of the compulsozy procedures specified in section 2. A
further requirement of Art. 286 UN Convention on the Law of the Sea is that compulsozy dispute
settlement procedures can be invoked only 'where no settlement has been reached by recourse to section 1',
unless, of course, the parties to the dispute otherwise agree. In short, if the limitations and exceptions to
the applicability of section 2 as specified in section 3 are not applicable and if the requirements of section 1
Annex 27
are satisfied, under Art. 286 UN Convention on the Law of the Sea, any dispute concerning the
interpretation or application of the Convention 'shall ... be submitted at the request of any party to the
dispute to the court or tribunal having jurisdiction' under section 2. It is not a requirement that both the
parties shall agree to such submission.
17 Art. 287 UN Convention on the Law of the Sea specifies which court or tribunal will have jurisdiction
under the Convention. It deals with 'choice of procedure', and, in its para. 1, it provides that a State is free
to choose one or more of the following four compulsory procedures entailing binding decisions for the
settlement of disputes concerning the interpretation or application of the UN Convention on the Law of the
Sea: a) the ITLOS; b) the ICJ; c) an arbitral tribunal constituted in accordance with Annex VII; d) a special
arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes
specified therein. Annexes VII and VIII to the UN Convention on the Law of the Sea deal with the
mechanics of institutional arrangements concerning arbitration and special arbitration, respectively.
Whereas the special arbitral procedure provided for in Annex VIII may be invoked in a dispute concerning
the interpretation or application of the Convention relating to a) fisheries, b) protection and preservation
of the marine environment, c) marine scientific research, or d) navigation, including pollution from vessels
and by dumping (Marine Pollution from Ships, Prevention of and Responses to; Navigation, Freedom of),
there is no such limitation with regard to invocation of the arbitral procedure in Annex VII.
18 The 'Montreux Compromise' embodied in Art. 287 UN Convention on the Law of the Sea, which
provides for a plurality of adjudicating bodies of equal standing, made agreement on the Convention in
general, and procedures for the settlement of disputes in particular, possible. The availability of a plurality
of options to choose the appropriate means of dispute settlement is seen by some as a step that could
undermine the unity ofinternational law (Fragmentation of International Law). Such a view runs counter
to what the drafters of the UN Convention on the Law of the Sea had intended. There is also no material to
suggest that judicial decentralization has inhibited the coherence of international law. The Resolution on
the United Nations Decade of International Law, adopted by the UN General Assembly at its 54 th Session
(UNGA Res 54/28 UN DocA/RES/54/28 [17 November 1999]), recognizes that the establishment of
tribunals in recent times constitutes 'significant events' within the United Nations Decade. Besides, the
entry of non-State disputants in international adjudication made the ICJ unsuitable for litigation of
disputes in respect of the international seabed area.
19 Resort to the ITLOS is listed as the first of a number of means for the settlement of disputes in Art. 287
UN Convention on the Law of the Sea, which the Member States are free to choose from. This was probably
due to several factors. Among others, the jurisdiction of the ITLOS under the UN Convention on the Law of
the Sea is wider than that ofany other court or tribunal referred to in Art. 287. Unless the parties agree
otherwise, the ITLOS has a residual compulsory jurisdiction in regard to the prescription of provisional
measures under Art. 290 (5) UN Convention on the Law of the Sea and prompt release of vessels and crews
under Art. 292. The Seabed Disputes Chamber of the ITLOS has compulsory jurisdiction in disputes with
respect to activities in the international seabed area to the extent provided for in Part XI, section 5 UN
Convention on the Law of the Sea. At the request of any party to the dispute, such disputes can also be
decided by an ad hoe chamber of the Seabed Disputes Chamber. The Seabed Disputes Chamber is also
authorized to give advisory opinions at the request of the Assembly or the Council of the International
Seabed Authority (ISA) on legal questions arising within the scope of its activities.
20 The choice of procedure may be affected by means of a written declaration submitted when signing,
ratifying, or acceding to the UN Convention on the Law of the Sea or 'at any time thereafter'. Such
declarations do not, however, affect the jurisdiction of the Seabed Disputes Chamber of the ITLOS as
provided for in Part XI, section 5 UN Convention on the Law of the Sea.
21 Art. 287 (3) UN Convention on the Law of the Sea provides that a State Party which is a party to a
dispute not covered by a declaration in force is deemed to have accepted arbitration in accordance with
Annex 27
Annex VII. Art. 287 (4) UN Convention on the Law of the Sea provides that if the parties to a dispute have
accepted 'the same procedure' for the settlement of the dispute, it may be submitted only to that
procedure, unless the parties otherwise agree. Art. 287 (5) UN Convention on the Law of the Sea provides
that, if the parties to a dispute have not accepted 'the same procedure', it may be submitted only to
arbitration in accordance with Annex VII, unless the parties otherwise agree. Out of the present 160 States
Parties to the UN Convention on the Law of the Sea, only 43 have filed declarations under Art. 287. When
no declaration is made, a preference for arbitration under Annex VII is presumed. It is doubtful whether
the consequences of not filing a declaration have been fully considered by States. It may be for this reason
that the UN General Assembly has, in its annual resolutions on Oceans and the Law of the Sea (eg UNGA
Res 65/37 [7 December 2010] UN DocA/R.ES/65/37), been encouraging States Parties to the UN
Convention on the Law of the Sea that have not yet done so to consider making a written declaration
choosing from the means for the settlement of disputes set out in Art. 287 UN Convention on the Law of
the Sea.
22 Art. 288 UN Convention on the Law of the Sea determines the scope of the jurisdiction of a court or
tribunal referred to in Art. 287. That jurisdiction extends primarily to disputes concerning 'the
interpretation or application' of the UN Convention on the Law of the Sea. It further extends over any
dispute concerning 'the interpretation or application of an international agreement related to the purposes
of this Convention, which is submitted to it in accordance with the agreement'. It is not necessacy that
parties to such agreements be parties to the UN Convention on the Law of the Sea before a court or tribunal
exercises its jurisdiction under Art. 288. There are currently ten such agreements. The prominent example
is the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the
Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish
Stocks and Highly Migratocy Fish Stocks ('Straddling Fish Stocks Agreement'), which provides that the
provisions relating to the settlement of disputes set out in Part XV UN Convention on the Law of the Sea
apply mutatis mutandis to any dispute arising out of the interpretation or application of these
agreements. The Straddling Fish Stocks Agreement also makes its dispute settlement mechanism
applicable to disputes concerning sub-regional, regional, or global fisheries agreements relating to
straddling or highly migratocy fish stocks which are the subject of these agreements. Art. 288 UN
Convention on the Law of the Sea further provides that the Seabed Disputes Chamber and any oilier
chamber or arbitral tribunal referred to in Part XI, section 5 UN Convention on the Law of the Sea shall
have jurisdiction in any matter which is submitted to them in accordance therewith. In the event ofa
dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by that court or
tribunal.
23 Provision is made for the appointment of scientific or technical experts to sit with the court or tribunal
but without the right to vote (Art. 289 UN Convention on the Law of the Sea). Their role is similar to that
ofassessors in the ICJ. Ifa court or tribunal to which a dispute has been duly submitted considers prima
facie tllat it has jurisdiction under Part XV or Part XI, section 5, it may prescribe, at the request of a party,
any provisional measures to 'preserve the respective rights of the parties to the dispute or to prevent
serious harm to the marine environment, pending the final decision' (Art. 290 (1) UN Convention on the
Law of the Sea). An obligation is imposed on the parties to 'comply promptly' with such measures. The
ITLOS may also prescribe provisional measures to prevent damage to fish stocks in accordance with Art. 31
(2) Straddling Fish Stocks Agreement. Provision is also made for securing prompt release of vessels or
crews upon the posting of a reasonable bond or other financial security (Art. 292 UN Convention on the
Law of the Sea).
24 A court or tribunal having jurisdiction under section 2 of Part XV is required to apply the UN
Convention on the Law of the Sea and other rules of international law not incompatible with the
Convention. It may decide a case ex aequo et bono, if the parties so agree (Art. 293 UN Convention on the
Law of the Sea). If a court or tribunal exercising compulsocy jurisdiction determines that a claim
Annex 27
'constitutes an abuse oflegal process or is prima facie unfounded', it is called upon to take no further
action in the case (Art. 294 UN Convention on the Law of the Sea). Whatever the rules of international law
relating to the exhaustion of local remedies might be, they would apply also to disputes concerning the law
of the sea (Art. 295 UN Convention on the Law of the Sea; Local Remedies, Exhaustion of). It has been held
that it is not logical to read the requirement of exhaustion of local remedies into Art. 292 UN Convention
on the Law of the Sea ('Camouco' Case [Panama v France] [Prompt Release]). It is declared that any
decision rendered by a court or tribunal exercising compulsory jurisdiction under section 2 of Part XV shall
be final and shall be complied with by all the parties to the dispute. However, such decision binds only the
parties to the dispute and then only in respect of that particular dispute (Art. 296 UN Convention on the
Law of the Sea). It is interesting to note that Art. 21 of Annex III to the UN Convention on the Law of the
Sea provides that any final decision rendered by a court or tribunal having jurisdiction under the
Convention relating to the rights and obligations of the ISA and of a contractor shall be enforceable in the
territory of each State Party.
3. Limitations and Exceptions
25 Part XV, section 3 UN Convention on the Law of the Sea contains limitations and exceptions to the
applicability of the compulsory dispute settlement procedures contained in section 2 of the Convention.
Art. 297 (1) provides that disputes with regard to the exercise by a coastal State of its sovereign rights or
jurisdiction shall be subject to the compulsory procedures provided in section 2 in three types of cases:
a) when it is alleged that a coastal State has acted in contravention of the Convention in regard
to the freedoms and rights of navigation, overflight, or the laying of submarine cables and
pipelines, or in regard to other internationally lawful uses of the sea specified in Art. 58 UN
Convention on the Law of the Sea;
b) when it is alleged that a State exercising these freedoms, rights, or uses has acted in
contravention of this Convention or oflaws or regulations enacted by the coastal State; and
c) when it is alleged that a coastal State has acted in contravention of specified international
rules and standards for the protection and preservation of the marine environment.
26 Art. 297 (2) and (3) UN Convention on the Law of the Sea, while providing for the application of
compulsory dispute settlement procedures to marine scientific research and fisheries, exempt a coastal
State from the obligation of submitting to such procedures any dispute arising out of its exercise of certain
rights with respect to marine scientific research in the exclusive economic zone or on the continental shelf,
or any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic
zone (see also Arts 264 and 265 UN Convention on the Law of the Sea).
27 Provision is made in Art. 297 (2) (b) and (3) (b) UN Convention on the Law of the Sea, for obligatory
recourse to conciliation under Annex V, section 2, in the following circumstances: in regard to a dispute
arising from an allegation by a researching State that with respect to a specific marine scientific project the
coastal State is not exercising its rights under Arts 246 and 253 in a manner compatible with the
Convention (Art. 297 (2) (b) UN Convention on theLawoftheSea); and in regard to allegations of
manifest failure by a coastal State to comply with its obligations or of aroitrary action on its part with
respect to the living resources in its exclusive economic zone (Art. 297 (3) (b) UN Convention on the Law of
the Sea). The recommendations of the conciliation commission are not, however, binding (Annex V, Arts 7
(2) and 14). A disagreement as to whether a conciliatory commission has jurisdiction 'shall be decided by
the commission' (Annex V, Art. 13).
28 In negotiating agreements pursuant to Arts 69 and 70 UN Convention on the Law of the Sea with
respect to access to coastal fisheries, coastal States and land-locked States and geographically
Annex 27
disadvantaged States shall include sufficient measures for minimizing the possibility of disagreement
concerning the interpretation or application of these agreements, as well as measures on how they shall
proceed if a disagreement nevertheless arises (Art 297 (3) (e) UN Convention on the Law of the Sea).
29 Art. 298 UN Convention on the Law of the Sea deals with three types of disputes, which States may
exclude by written declaration from any or all of the compulsmy dispute settlement procedures provided
for in section 2 of Part XV. These are:
a) disputes concerning Arts 15, 74 and 83 UN Convention on the Law of the Sea relating to sea
boundaiy delimitations or historic bays or titles;
b) disputes concerning militaiy activities or law enforcement activities by a coastal State with
respect to fisheries and marine scientific research in areas subject to its jurisdiction; and
c) disputes in respect of which the UN Security Council is exercising its functions under the UN
Charter. When a State makes a declaration that it does not accept any one or more of the
procedures in section 2 of Part XV with respect to disputes referred to in a) above, it shall, when
such a dispute arises subsequent to the entiy into force of this Convention and where no
agreement within a reasonable period of time is reached in negotiations between the parties, at
the request of any party to the dispute, accept submission of the matter to conciliation under
Annex V, section 2, provided that 'any dispute that necessarily involves the concurrent
consideration of any unsettled dispute concerning sovereignty or other rights over continental or
insular land territoiy shall be excluded from such submission'. This proviso clearly suggests that
where no declarations are made under Art. 298 UN Convention on the Law of the Sea, any of the
adjudicating bodies mentioned in Art. 287 are competent to deal with sea boundary
delimitations even when they involve consideration of disputes mentioned in the proviso.
30 Disputes excluded by Art. 297 UN Convention on the Law of the Sea or exempted by Art. 298 from
application of the compulsory dispute settlement procedures provided for in Part XV, section 2, may be
submitted to such procedures 'only by agreement of the parties to the dispute'. The parties are, however,
free to agree to some other procedure for the settlement of such disputes or to reach an amicable settlement
(Art. 299 UN Convention on the Law of the Sea).
C. Other Instruments
31 The UN Convention on the Law of the Sea is by no means a complete code on the subject of settlement
oflaw of the sea disputes, although it is undoubtedly the main instrument in that regard. Art. 288 UN
Convention on the Law of the Sea confers jurisdiction on a court or tribunal referred to in Art. 287 to deal
with disputes concerning the interpretation or application of other international agreements related to the
'purposes of the Convention'. The Statute of the ITLOS contained in Annex VI to the UN Convention on the
Law of the Sea confers jurisdiction on the ITLOS over all matters provided for in 'any other agreement' (Art.
21 m.os Statute).
32 There are several bilateral and multilateral agreements giving effect to one aspect or the other of the UN
Convention on the Law of the Sea or to the broad principles set out therein. This is so especially in relation
to fisheries and environmental matters. Such agreements may also involve obligations arising under them
as also under the Convention. Difficult problems may arise where two dispute settlement procedures-one
under the UN Convention on the Law of the Sea and the other under another agreement-run in parallel in
respect of the same or substantially the same dispute or of different aspects of tlie same dispute.
33 Questions may arise as to how to avoid a conflict of decisions on the same issue. The problems are less
severe in cases where 'self-contained' and 'distinct' disputes may be made out of the provisions concerning
Annex 27
resolution by different adjudicating bodies. Where such distinct disputes cannot be made out, and where
both adjudicating bodies are simultaneously called upon to detennine rights and obligations of the
parties, each body may have to examine, on an objective basis, which body would be required to deal with
the 'most acute' or 'main' elements of the dispute and then take a decision on suspending the proceedings
before it until such a time as the other body has had occasion to decide the most acute elements of the
dispute. No clear judicial guidelines have yet emerged in this regard. It may be that each case will have to
be dealt with on its merits, bearing in mind considerations of mutual respect and comity which should
prevail between judicial bodies (see MOX Plant Case [Ireland v United Kingdom] [Order No 31
[Suspension of Proceedings on Jurisdiction and Merits and Requests for Further Provisional Measures]
para. 28).
D. Evaluation
34 The system established by the UN Convention on the Law of the Sea with regard to the settlement of
law of the sea disputes certainly constitutes a step forward in comparison with the traditional dispute
settlement mechanisms. It forms an integral part of the Convention and includes compulsmy procedures
entailing binding decisions. Of course, several major disputes are exempted from compulsory dispute
settlement. This cannot be seen as a negative development. Some disputes require political decisions
within the framework of the UN Convention on the Law of the Sea. Direct negotiations between the parties
to a dispute play a great role in this regard.
35 While providing for more than one adjudicating body, the drafters of the UN Convention on the Law of
the Sea did not perceive any danger to the unity of international law. These bodies fulfil complementary
needs. It is to be hoped that each body, although autonomous in itself, will have due regard to the
decisions rendered by the other adjudicating bodies, thus ensuring the harmonious development of the
law of the sea. At the same time, it may be noted that the UN Convention on the Law of the Sea does not
foresee uniformity of interpretation as a necessary objective.
36 little information is available regarding the extent to which States Parties have made use of the
dispute settlement mechanisms provided for in the UN Convention on the Law of the Sea. The effect of the
provisions in Part XV, section 1 is necessarily a matter of speculation. There has been very limited
invocation of the compulsory procedures provided for in Part XV, section 2. Whereas, as of January 2011,
18 cases have been submitted to the TILOS (of these, only four cases were instituted by special agreement
of the parties and the remaining on account of the compulsory jurisdiction of the TILOS), five cases
involving important issues concerning the law of the sea have been submitted to arbitration. It is doubtful
as to how far these submissions to arbitration may be seen as preferred procedure of States Parties. The
frequency with which dispute settlement mechanisms are invoked is not the only way to measure their
significance. In some cases the very existence of these mechanisms has acted as a restraint on arbitrary
actions of States or promoted voluntary compliance.
37 Under-utilization of the dispute settlement provisions, if any, is not due to any serious shortcomings or
ambiguity in such provisions. The underlying reasons for this are political rather than legal. In the final
analysis, these provisions, however perfect they are, can come to life only when litigants make use of them.
It is worth noting that the dispute settlement mechanisms in the UN Convention on the Law of the Sea,
when tested, have underlined their usefulness in the resolution oflaw of the sea disputes 'by peaceful
means in accordance with Article 2, paragraph 3, of the Charter of the United Nations' (Art. 279 UN
Convention on the Law of the Sea). What is also important to realize is that all disputing parties under the
UN Convention on the Law of the Sea, whether they be States, international organizations, or
multinational corporations, can seek redress through independent judicial institutions. This is a step
forward in the development of a coherent international legal order based on justice and equity.
Annex 27
38 States Parties could also usefully explore having recourse to a dispute-settlement body as a partner in
preventive diplomacy rather than as an alternative of last resort. The experience of the !TI.OS in this regard
is a useful pointer in this direction.
Select Bibliography
MH Nordquist (ed) United Nations Convention on the Law of the Sea 1982 (Nijhoff Dordrecht
1985-89) vol 5.
LB Sohn "The Importance of the Peaceful Settlement of Disputes: Provisions of the United Nations
Convention on the Law of the Sea' in MH Nordquist and JN Moore (eds), Entry into Force of the
Law of the Sea Convention (NijhoffThe Hague 1995) 265-77.
J Charney "The Implications of Expanding International Dispute Settlement Systems: The 1982
Convention on the Law of the Sea' (1996) 90 AJIL 69-75.
AE Boyle 'Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and
Jurisdiction' (1997) 46 ICLQ 37-54.
TA Mensah 'The Dispute Settlement Regime of the 1982 United Nations Convention on the Law of
the Sea' (1998) 2 MaxPlanckYrbkUNL 307-23.
JG Collier and V Lowe 'Dispute Settlement in the Law of the Sea' in JG Collier and V Lowe (eds) The
Settlement of Disputes in International Law (Oxford University Press Oxford 1999) 84-95.
V Lowe 'Overlapping Jurisdiction in International Tribunals' (1999) 20 AustYBIL 191-204.
BH Oxman 'Complementary Agreements and Compulsory Jurisdiction' (2001) 95 AJIL 277-312.
N Klein,Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge University
Press Cambridge 2005).
T Treves 'A System for the Law of the Sea Dispute Settlement' in D Freestone R Barnes and D Ong
(eds), The Law of the Sea (Oxford University Press Oxford 2006) 417-32.
TM Ndiaye and R Wolfrum (eds) Law of the Sea, Environmental Law and Settlement of Disputes:
Liber Amicorum Thomas A Mensah (Nijhoff 2007).
R Wolfrum 'The Settlement of Disputes before the International Tribunal for the Law of the Sea: A
Progressive Development oflnternational Law or Relying on Traditional Mechanisms?' (2009)
Japanese Yearbook of International Law 140-163.
Select Documents
Agreement for the Implementation of the Provisions of the United Nations Convention on the Law
of the Sea oho December 1982 relating to the Conservation and Management of Straddling Fish
Stocks and Highly Migratory Fish Stocks (opened for signature 8 September 1995, entered into
force 11 December 2001) 2167 UNTS 3.
'Camouco' Case (Panama v France) (Prompt Release) (Judgment) ITLOS Case No 5 (07 February
2000).
Convention on Fishing and Conservation of the Living Resources of the High Seas (done 29 April
1958, entered into force 20 March 1966) 559 UNTS 285.
MOX Plant Case (Ireland v United Kingdom) (Order No 3) (Suspension of Proceedings on
Jurisdiction and Merits and Requests for Further Provisional Measures) Annex VII Tribunal (24
June 2003) 42 ILM 1187.
MOX Plant Case (Ireland v United Kingdom) (Provisional Measures) (Order) ITLOS Case No 10 (3
December 2001).
Optional Protocol of Signature concerning the Compulsory Settlement of Disputes Arising from the
Law of the Sea Conventions (done 29 April 1958, entered into force 30 September 1962) 450 UNTS
169.
Southern Bluefin Tuna Case (Australia and New Zealand v Japan) (Jurisdiction and
Annex 27
Admissibility) Annex VII Tribunal (4 August 2000) 119 ILR508.
Southern Blue.fin Tuna Cases (New Zealand v Japan; Australia v Japan) (Provisional Measures)
(Order) m..os Cases Nos 3 and 4 (27 August 1999).
Statute of the International Tribunal for the Law of the Sea, Annex VI to the United Nations
Convention on the Law of the Sea (concluded 10 December 1982, entered into force 16 November
1994) 1833 UNTS 561.
UNGA 'Draft Articles for a Chapter on the Settlement of Disputes' (1973) GAOR 28th Session Supp
21 vol 2, 22.
United Nations Convention on the Law of the Sea (concluded 10 December 1982, entered into force
16 November 1994) 1833 UNTS 397.
Copyright© 2016. All rights reserved.
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Annex 28
C. Lathrop, “Continental Shelf Delimitation Beyond 200 Nautical Miles: Approaches Taken by
Coastal States before the Commission on the Limits of the Continental Shelf” in International
Maritime Boundaries (D.A. Colson & R.W. Smith eds., 2011)
Annex 28
Continental Shelf Delimitation Beyond 200 Nautical
Miles: Approaches Taken by Coastal States before the
Commission on the Limits of the Continental Shelf
COALTER LATHROP
I INTRODUCTION
In the introductory note to Volume V of this series, David Colson wrote
that "the promotion and resolution of claims to the outer continental shelf
beyond 200 n.m. from the coast - a feature of maritime delimitation now in
its infancy - is likely to become an important component of many maritime
boundary negotiations that are waiting in the wings." 1 David Anderson
made note in the same volume that "[t]he delimitation, as between neighboring
states, of the continental shelf beyond 200 n.m. is a topic that will
doubtless receive greater attention as the work of the Commission gathers
momentum.' 02 In the five years since the publication of Volume V, the work
of the Commission on the Limits of the Continental Shelf (the CLCS or the
Commission) has indeed gathered momentum and delimitation of the continental
shelf beyond 200 n.m. from the coast has started to take shape, primarily
through the implicit promotion of claims embedded in submissions
to the Commission and, to a lesser extent, the resolution by agreement of
overlapping claims to extended continental shelf. 3 Because there is, as yet,
so little State practice in the actual delimitation of the extended continental
shelf, this essay focuses on the CLCS submission process and the place of
boundary delimitation in that process.
In the extended continental shelf game, States have two goals: (1) to
maximize, bolster and protect their claims to extended continental shelf
David A. Colson, Introduction, in V iNTERNATIONAL MARITIME BOUNDARIES xxvii, xxx (David A.
Colson & Robert W. Smith eds., 2005).
2 David Anderson, Developments in Maritime Boundary Law and Practice, in V International Maritime
Boundaries 3199, 3215 (David A. Colson & Robert W. Smith eds., 2005).
3 The term "extended continental shelf' is used here to indicate those areas of seabed and subsoil of
the continental shelf, slope and rise located beyond 200 n.m. from the baseline. The term "outer
continental shelf' is often used to refer to these same areas, but should be distinguished from the
same term as it is used in United States statutmy language and which refers to the continental shelf
beginning at the outer limit of each federated states' submerged lands (usually 3 n.m. from shore)
and extending to the outer limit of federal jurisdiction. See Outer Continental Shelf Lands Act, 43
u.s.c. §1301.
D.A. Colson and R.W. Smith (eds.), International Maritime Boundaries, 4139-4160.
© 2011. The American Society of International Law. Printed in the Netherlands.
Annex 28
4140 Coalter Lathrop
with respect to both the delineation of outer limits and the delimitation of
shelf boundaries with opposite or adjacent States, and (2) to receive the
Commission's imprimatur on their outer limit claim made pursuant to
Article 76. In some circumstances these two goals are in tension. lbis essay
examines the intersection between delimitation and delineation of the continental
shelf through the lens of submissions made to the Commission and
focuses on the approaches submitting States have taken to reduce the tension
created by delimitation issues embedded in those submissions.
It should be emphasized at the start that bilateral delimitation of the
continental shelf between opposite or adjacent coastal States is a distinct
and wholly separate process from the unilateral delineation and establishment
of the outer limits of the continental shelf beyond 200 n.m. from
shore on the basis of Commission recommendations: the former requires
agreement between two or more States on the division of areas encompassed
by overlapping continental shelf claims, the latter requires individual
coastal States to comply with the substantive and procedural terms of
Article 76 of the 1982 United Nations Convention on the Law of the Sea
(UNCLOS or the Convention). While these two processes - boundary
delimitation and outer limit delineation - are separate, the issues involved
are often closely linked. And, although efforts have been made to insulate
the Article 76 delineation process from related delimitation disputes, most
submissions lodged with the CLCS implicate one or more boundary
relationships.
A brief overview is provided in Part II. The submission process, the role
of the Commission on the Limits of the Continental Shelf, and the attempt
to separate bilateral delimitation issues from the Commission delineation
process is described in more detail in Part III. The approaches taken by
States to address delimitation issues embedded in extended shelf claims are
described in Part IV. Part V contains some concluding remarks.
II OVERVIEW
The Commission on the Limits of the Continental Shelf is an international
treaty body formed pursuant to Annex II of UNCLOS and composed of 21
experts in the fields of geology, geophysics or hydrography. 4 The first
members of the Commission were elected in March 1997, the Commission
adopted its initial rules in June 1997, and the Commission's Scientific and
4 1982 Law of the Sea Convention, Annex II, Art. 2(1).
Annex 28
Continental Shelf Delimitation Beyond 200 Nautical Miles 4141
Technical Guidelines were adopted in May 1999. The Commission received
its first submission, from the Russian Federation, in December 2001. The
primary function of the Commission is "to consider the data and other
material submitted by coastal States concerning the outer limits of the continental
shelf in areas where those limits extend beyond 200 nautical miles,
and to make recommendations in accordance with article 76."5 It is then for
the coastal State to establish its continental shelf outer limit on the basis of
those recommendations. 6
As predicted, the work of the Commission has indeed gathered momentum.
During the first ten years of the Commission's existence coastal States
made only 11 submissions. In the 12 months leading up to the May 2009
deadline for many States, 40 additional submissions were lodged.7 At the
time of writing, 51 submissions have been made to the Commission with
an additional 45 submissions of preliminary information documents which
function - essentially - as placeholders for future submissions. 8 In total, 74
coastal States have either lodged submissions or indicated their intent to
make a submission. Although this group represents the bulk of all possible
submitting States, undoubtedly other States will submit in the future. They
could include some of the approximately 30 States Parties to the Convention
5 Id. Annex II, Article 3(l)(a).
6 Id. Article 76(8).
7 Annex II, Article 4 of the Convention calls upon coastal States to make submissions ''within I O years
of the ent,y into force of [the] Convention for that State." Recognizing that the Commission did
not begin its work until mid-1997 and had not adopted Scientific and Techoical Guidelines until
May 13, 1999, thereby creating "the basic documents concerning submissions in accordance with
article 76, paragraph 8, of the Convention," the States Parties to the Convention decided to push
the commencement date for the ten-year period up to May 13, 1999, thus creating a deadline of
May 13, 2009 for any State Party for which the Convention had entered into force by May 13,
1999. Decision regarding the date of commencement of the ten-year period for making submissions
to the Commission on the Limits of the Continental Shelf set out in article 4 of Annex II to the
United Nations Convention on the Law of the Sea, SPLOS/72 (May 29, 2001).
8 A current list of submissions, recommendations and preliminary information documents along with all
executive summaries of submissions, preliminary information documents, diplomatic notes reacting
to submissions and other materials related to the Commission's work are available through the wel>-
site of the CLCS http://www.un.org/Depts/los/clcs_new/clcs_home.htm (last visited May 24, 2010).
During the eighteenth meeting of the States Parties to the Convention it was decided that the
submission deadline may be met by submitting "preliminary information documents indicative of
the outer limits of the continental shelf beyond 200 nautical miles and a description of the status of
preparation and intended date of making a submission." Decision regarding the workload of the
Commission on the Limits of the Continental Shelf and the ability of States, particularly developing
States, to falfil the requirements of article 4 of annex II to the United Nations Convention on
the Law of the Sea, as well as the decision contained in SPLOS/72, paragraph (a), SPLOS/183
(June 20, 2008), para. !(a).
Annex 28
4142 Coalter Lathrop
for which the submission deadline has not yet passed.9 Also, non-Party
States do not have access to the Commission process unless and until they
accede to the Convention. It can be hoped that at least some non-Party
States will accede and could then make claims before the Commission to
extended shelf. 10
To date, the area of shelf encompassed by submissions has topped
23 million square kilometers.11 Submissions of preliminary information
documents made through 2009 indicate at least an additional 4 million
square kilometers of continental shelf will eventually come under
Commission review.12 In addition to the areas that will be added by new
submitting States and as preliminary information documents transform into
full-fledged submissions, more than half of the submissions made thus far
are only "partial" submissions, implying that more area may be tacked on
in future submissions by those submitting States. To a greater or lesser
extent, depending on the submission, the Commission has pushed back
against coastal State expansion by rejecting some of the scientific and technical
bases on which submissions have been made.13 However, considering
all of these factors, we can expect to see a net increase in the area coming
under Commission review in the future.
9 Those States for which the Conveotion was not yet in force as of the modified commeocemeot date
created in SPLOS/72 are still subject to the original terms of Annex II, Article 4: ten years from
date of eotry into force for that State. Several of these States are likely to make submissions,
including for example Madagascar, Morocco, Canada, Deomark, and Bangladesh.
I O A partial list of non-landlocked, non-Party States includes, for example, the United States of America
and Venezuela.
11 CONTINENTAL SHELF: THE LAsT MARrnME ZoNE, (Tina Schoolmeester & Elaine Baker eds., UNEP/
GRID-Arendal 2009), at 28, available at http://www.unep.org/dewa/pdJ7AoA/Continental_Shelf.pdf
(last visited May 24, 2010).
The area encompassed in submissions has already far outstripped even recent estimates of the
total area of contineotal shelf beyond 200 n.m. Prescott and Schofield estimated 14.9 million
square kilometers of wide margin shelf around continents other than Australia. Victor Prescott &
Clive Schofield, THE MARrnME POLITICAL BOUNDARIES OF nm WoRLD 187 (2d ed. 2005).
12 CONTINENTAL SHELF, supra note 11. Submissions of preliminary information documeots often do not contain
enough specific information to know the exact contours of the contemplated future submission.
13 The average return rate (i.e. area adopted after recommeodations compared to area claimed in the
submission) on the first seveo recommendations that have beeo made public is approximately 97%.
CONTINENTAL SHELF, supra note 11. That is to say approximately 3% of the area of extended continental
shelf claimed in those submissions has been deemed to be beyond the outer limit allowed
under the terms of Article 76. In the most recent recommendations adopted by the Commission,
Barbados appears to have been denied approximately 2,500 square kilometers or 5% of the area it
claimed while the Commission rejected, in total, the submission made by the United Kingdom on
behalf of Ascension Island. See Summary of Recommendations of the Commission on the Limits of
the Continental Shelf in Regard to the Submission Made by Barbados on 8 May 2008 (Apr. 15,
2010); Summary of Recommendations of the Commission on the Limits of the Continental She/fin
Regard to the Submission made by the United Kingdom of Great Britain and Northern Ireland in
Respect of Ascension Island on 9 May 2008 (Apr. 15, 2010).
Annex 28
Continental Shelf Delimitation Beyond 200 Nautical Miles 4143
It follows that the greater the number of coastal States making submissions,
and the more expansive the areas of continental shelf covered by
those submissions, the greater the likelihood that claimed area will overlap
with area claimed by a neighboring State. The effect has been the extension
beyond 200 n.m. of existing boundary relationships and, in some instances,
the creation of entirely new boundary relationships beyond 200 n.m. 14 With
few exceptions the submissions made thus far implicate one or more boundary
relationship with a neighboring State and many of those relationships
involve a dispute regarding overlapping claims to continental shelf that
arises either from a sovereignty dispute over territory that forms the basis
of the claim or from differing perspectives on the location of the maritime
boundary that should separate overlapping areas of extended shelf. Of the
approximately 23 million square kilometers encompassed by the first 51
submissions, ten percent of that area is included in two or more submissions
and is therefore subject to overlapping claims. 15
III ROLE OF THE COMMISSION ON THE LIMITS OF
THE CONTINENTAL SHELF
The Commission on the Limits of the Continental Shelf plays an important
supervisory role in the otherwise unilateral process of establishing the outer
limits of the continental shelf pursuant to Article 76 of the Convention.
However, the Commission is not an arbiter of sovereignty or boundary disputes
between coastal States and is not competent to consider the merits of
lines of division between opposite or adjacent coastal States with overlapping
claims. Above all, the Commission is a scientific and technical body
tasked with a narrowly circumscribed review role. The Commission's focus
and sole mandate is on the seaward outer limit of wide margin shelves
claimed on the basis of the geologic, geomorphologic, hydrographic and
geographic criteria provided for in Article 76 of the Convention and elaborated
in the Commission's Scientific and Technical Guidelines. 16
Nonetheless, as indicated above, land and maritime disputes are present in
14 For example, assuming Commission recommendations that conform with the submissions and likely
future submissions of the following States, we can expect to see new boundary relationships that
exist only beyond 200 n.m. between Russia and Denmark (Greenland) and Canada in the Arctic
Ocean; France (Crozet Archipelago) and South Africa (Prince Edward Islands) in the Indian Ocean;
New Zealand and Tonga; and perhaps several others in the south Pacific Ocean.
15 CoNTINENTAL SHELF, supra note 11.
16 See Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf,
CLCS/11 (May 13, 1999).
Annex 28
4144 Coalter Lathrop
many of the submissions before the Commission. This intersection between
delineation of outer limits based on a review of scientific and technical data
and delimitation of a lateral or opposite boundary based on legal arguments
and political considerations creates an obvious tension. It is a tension that
was anticipated by the drafters of the Convention and which is addressed in
the text of the Convention and in the Commission's Rules of Procedure.
The text of Article 76 and related provisions attempts to insulate the
Commission from concerns related to overlapping claims to continental
shelf. Beginning with Article 76, the Convention is quite clear that ''the
provisions of [that] article are without prejudice to the question of delimitation
of the continental shelf between States with opposite or adjacent
coasts." 17 Annex II of the Convention further provides that ''the actions of
the Commission shall not prejudice matters relating to delimitation of
boundaries between States with opposite or adjacent coasts." 18 Rule 46
of the Commission's Rules of Procedure contains substantially similar language.19
Finally, Annex I to the Rules of Procedure emphasizes and expands
this point: "The submissions made before the Commission and the recommendations
approved by the Commission thereon shall not prejudice the
position of States which are Parties to a land or maritime dispute.''2°
Taken at face value this language should eliminate the concerns of
neighboring States with potentially overlapping claims and allow the
Commission to conduct its review of the scientific and technical merits of a
submission without regard to those outstanding disputes. Despite assurances
that the work of the Commission will be without prejudice to their boundary
positions, States appear wary of depending on this protection to safeguard
their interests. The Commission process provides an opportunity for
States to both maximize their outer limit as against the international community
(the Area) and to maximize, promote or preserve territorial sovereignty
and maritime boundary positions vis-a-vis neighboring or competing
States. Many States have taken advantage of this opportunity to try to
advance their interests. This self-serving but rational behavior, while not
unexpected, has the effect of placing at the Commission's feet extremely
contentious international disputes which the Commission is not in a position
to resolve and has the potential to freeze the Commission's work.
17 1982 Law of the Sea Convention, Art. 76(10).
18 Id. Annex II, Art. 9.
19 Rules of Procedure of the Commission on the Limits of the Continental Shelf, CLCS/40/Rev.1
(Apr. 17, 2008), Rule 46(2).
20 Id. Annex I, para. 5(b ).
Annex 28
Continental Shelf Delimitation Beyond 200 Nautical Miles 4145
The Commission adopted Annex I to its Rules of Procedure in an
attempt to balance, on the one hand, the interest in allowing the
Commission to carry out its delineation work with, on the other hand, the
interest in avoiding prejudice to Parties involved in unresolved disputes.
Annex I - titled "Submissions in case of a dispute between States with
opposite or adjacent coasts or in other cases of unresolved land or maritime
disputes" - requires submitting States to inform the Commission of disputes
and to assure the Commission that the submission will not prejudice such
disputes.21 It then sets out a menu of options for submitting States involved
in disputes which includes making a partial submission in order to avoid
the area in dispute,22 or making a joint submission by two or more coastal
States covering the area in dispute.23 Both of these approaches are designed
to allow the Commission's review process to move forward despite the
existence of a dispute: the former through coastal State self-restraint and
the latter through cooperation. Where self-restraint or cooperation is not
forthcoming, the Commission process can become stuck. Article 5(a) of
Annex I reads: "In cases where a land or maritime dispute exists, the
Commission shall not consider and qualify a submission made by any of
the States concerned in the dispute. However, the Commission may consider
one or more submissions in the areas under dispute with prior consent
given by all States that are Parties to such a dispute." The practical result
of this provision is that States are in a position to block Commission consideration
of their neighbors' submissions. 24
In addition to the requirement that the submitting State make the
Commission aware of unresolved disputes, other States have the opportunity
to inform the Commission of the existence of a dispute. The executive
summary of each submission, which is made public soon after receipt of
the full submission, must contain, among other things, charts and coordinates
indicating the outer limit claimed by the submitting State.25
Information in the executive summary should be sufficient to allow other
States to determine the location of the outer limit, the general basis of the
claim, and whether the submission involves an area which they also claim.
Other States may then react by written communication to the Commission
21 Id. Annex I, para. 2.
22 Id. Annex I, para. 3.
23 Id. Annex I, para. 4.
24 For a thorough investigation of the impact other States can have on the CLCS process, see A.G.O.
Elferink, The Establishment of Outer Limits of the Continental Shelf Beyond 200 N.m.s by the
Coastal State: The Possibilities of Other States to have an Impact on the Process, 24 Int'l
1. Marine & Coastal L. 535 (2009).
25 Scientific and Technical Guidelines, supra note 16, para. 9.1.4.
Annex 28
4146 Coalter Lathrop
via the Secretary-General of the United Nations. In addition to the executive
summaries, these written communications are also made public. The
majority of the submissions to date have elicited written communications
from other States. These communications fall into three general categories:
(1) communications expressing concerns about the scientific or technical
basis of the outer limit,26 (2) communications expressing concerns related to
undermining Article 4 of the Antarctic Treaty,27 and (3) communications
related to unresolved disputes.
This last category is the largest of the three and it is the category of
direct relevance to the topic at hand. These written communications manifest
the intersection between the Commission's delineation process and the
separate but intertwined boundary delimitation process. In communications
related to unresolved disputes States have either (1) expressly consented to
the Commission's consideration of the submission, notwithstanding the
unresolved dispute, (2) reserved their position without giving express consent,
or (3) expressly objected to Commission consideration of the submission.
It is with the last of these possible reactions in mind that States must
approach the submission process and the related boundary issues.
N APPROACHES TAKEN BY STATES
States need not effect a complete delimitation of their extended continental
shelf or resolve all outstanding disputes prior to making a submission to the
Commission. In fact, in some instances it is only after full consideration of
a submission that a State will know whether or to what extent boundaries
need be agreed with neighbors. Nonetheless, if an unresolved dispute is
26 See, e.g., the reaction of the United States to the 2001 submission by the Russian Federation. Note
verbale of the Representative of the United States of America to the United Nations to the Under·
Secretary-General for Legal Affitirs, United Nations (Feb. 28, 2002).
27 See, e.g., the reactions of the United States, Russia, Japan, the Netherlands, Germany, and India to
Australia's 2004 submission. Diplomatic note of the United States Mission to the United Nations
to 1he Secretary-General of 1he United Nations (Dec. 3, 2004); Note verbale No. 739/n of 1he
Permanent Mission of 1he Russian Federation to 1he United Nations to 1he Secretary-General of 1he
United Nations (Dec. 9, 2004); Note verbale No. SC/05/039 of 1he Pennanent Mission of Japan to
the United Nations to 1he Secretary-General of the United Nations (Jan. 19, 2005); Note verbale
No. NYV/2005/690 of 1he Pennanent Mission of 1he Ne1herlands to 1he United Nations to 1he
United Nations Division for Ocean Affirirs and 1he Law of 1he Sea (Mar. 31, 2005); Note verbale
No. 88/2005 of 1he Permanent Mission of Germany to 1he United Nations to 1he United Nations
Division for Ocean Affitirs and the Law of the Sea (Apr. 5, 2005); Note verbale No. NY/
PM/443/1/98 of the Pennanent Mission of India to the United Nations to 1he Secretary-General of
1he United Nations (July 5, 2005).
Annex 28
Continental Shelf Delimitation Beyond 200 Nautical Miles 4147
present in the area encompassed by a submission, the submitting State must
be cognizant of the possibility that its submission could be blocked.28 With
this in mind, States have engaged in behavior to avoid this outcome. The
different approaches taken by States to address unresolved disputes are to
(1) settle delimitations prior to making a submission; (2) make a partial
submission that avoids unresolved disputes; (3) make a joint submission
among several States, thereby internalizing any unresolved disputes within
the group of submitting States; (4) make a separate submission after consultation
with neighboring States in order to avoid objection; and (5) make
a separate submission without assurances of no objection.
Before launching into a more complete description of these approaches,
several general comments are in order. First, a single submission may
embody more than one approach. A State may have an agreed boundary
with one neighboring State but may need to take a different approach in the
same submission with respect to another neighbor.29 Second, a significant
amount of time can pass between lodging a submission and receiving recommendations
from the Commission.30 Relationships with neighboring
28 After lodging a submission, the submitting State is scheduled to present the submission to the
Commission. This may happen not less than three months after the publication of a submitting
State's executive summary in order that other States may react to the submission in writing. When
the Commission hears the submitting State's presentation it will also have before it the reactions of
other States, including, any objections raised by neighbors. Where there have been objections, the
Commission has used the following rather cryptic language: ''Taking into account these notes verbales
and the presentation made by the delegation, the Commission decided to defer further consideration
of the submission and the notes verbales until such time as the submission is next in line
for consideration as queued in the order in which it was received. The Commission took this decision
in order to take into consideration any further developments that might occur throughout the
intervening period during which States may wish to take advantage of the avenues available to
them including provisional arrangements of a practical nature as contained in annex I to its rules
of procedure." Statement by the Chairman of the Commission on the Limits of the Continental
Shelf on the progress of work in the Commission, CLCS/64 (Oct I, 2009), paras. 40, 46, 52, 71,
92, 106 regarding, respectively, the deferral of submissions by Myanmar, United Kingdom, Ireland,
Fiji, Malaysia/Viet Nam, and Viet Nam. Deferral at this stage of the process is in lieu of forming a
subcommission: the necessary next step on the winding road toward Commission endorsement.
29 For example, Australia succeeded in delimiting boundaries with France, New Zealand and the
Solomon Islands prior to its submission. Continental Shelf Submission of Australia; Executive
Summary (Nov. 15, 2004). However, at the time of submission there was an outstanding delimitation
issue in the Three Kings Ridge Region. While agreeing with the principles used to measure
Australia's outer limit in the undelimited area of that Region, the Commission noted that "the
establishment of the final outer limit of the continental shelf of Australia in this Region may
depend on delimitation between States." Summary of the Recommendations of the Comm'ission on
the Limits of the Continental Shelf (CLCS) in regard to the Submission Made by Australia on 15
November 2004 (Apr. 9, 2008), para. 117.
30 One assessment indicates that the Commission will not finish its review of Cuba's Submission-the
51st- until 2030. At the nineteenth meeting of the States Parties, the Chairman of the Commission
''projected a schedule for consideration of the submissions received to date and for the adoption of
Annex 28
4148 Coalter Lathrop
States could change during that time increasing or decreasing the tension
between delimitation and outer limit delineation. Concurrently, submissions
may also be changed to reflect new developments.31 Third, it should be
noted that the bulk of the Commission process is conducted in private. The
only written documents that are made public are the executive summaries
of the submissions, written reactions submitted by other States,
and- eventually- summaries of the Commission's recommendations.32 The
other parts of the submissions and the full recommendations are not made
public and meetings between the Commission (or its sub-commissions) and
submitting States - meetings in which it appears that a substantial dialogue
may occur on a number of topics related to the submission, including, presumably,
the topic of unresolved disputes with neighbors - are held in
private.33 Even with relatively little information, it is still possible to differentiate
the following five approaches taken by States and to find in the
State practice to date some examples of each.34
recommendations, based on current working practice of the Commission and availability of its
members in the work of the subcommissions. According to that projection, the recommendations
regarding the submission made by Cuba, the last submission received by the Commission to date,
would be adopted in or about 2030." Report of the nineteenth Meeting of States Parties, SPLOS/203
(July 24, 2009), para. 83, available at http://www.un.org/Depts/los/meeting_States_parties/SPWS_
documents.htm (last visited May 24, 2010).
31 For example, France, requested "the Commission to refrain from consideration of the portion of the
submission related to the area in the southeastem part of New Caledonia" after receiving Vanuatu.'s
reaction to the French submission in regard to New Caledonia. Letter No. 547/SGMER of the
French Secretary-General of the Sea to the Chairperson of the Commission on the Limits of the
Continental Shelf (July 18, 2007). In that written communication, Vanuatu - referencing the sovereignty
dispute over Matthew and Hunter Islands - asked the Commission to consider the territorial
dispute and related claims to maritime area "very seriously." Letter from Vanuatu Ministry of
Foreign Aflairs and External Trade to the Chairman of the Commission on the Limits of the
Continental Shelf (July 11, 2007). See also, Summary of Recommendations of the Commission on
the Limits of the Continental Shelf in regard to the Submission made by France in respect of
French Guiana and New Caledonia Regions on 22 May 2007 (Sepl 2, 2009), paras. 43-44.
32 To date only nine summary recommendations have been made public: Australia, Ireland (Porcupine
Abyssal Plain), New Zealand, France/Ireland/Spain/United Kingdom (Celtic Sea and Bay of
Biscay), Norway (North East Atlantic and Arctic), France (French Guiana and New Caledonia),
Mexico (W estem Gulf of Mexico), Barbados, and the United Kingdom (Ascension Island).
Recommendations have been adopted but not made public for the submissions of the Russian
Federation and Brazil.
33 The Commission process, if not entirely opaque, is, at the very least, Byzantine. For a useful road
map to this intricate and complex process the reader is directed to the Commission's Rules of
Procedure, Aonex III Modus operandi for the consideration of a submission made to the
Commission on the Limits of the Continental Shelf available on the CLCS website.
34 In a few instances the geography alone is such that a submission does not implicate aoy internstional
boundary relationship. That is, no other State may conceivably encompass within its outer limit
any of the area encompassed in these rare submissions. This requires a combination of a wide margin
and a relatively isolated position on the world map. The United Kingdom's submission on
behalf of its territory of Ascension Island provides one, rare example.
Annex 28
Continental Shelf Delimitation Beyond 200 Nautical Miles 4149
A Delimitation prior to submission
States may avoid unresolved delimitation issues in submissions before the
CLCS by resolving disputes in advance of the submission. However, no
boundaries beyond 200 n.m. have been settled by adjudication or arbitration
and only a small handful have been settled by agreement at the time of this
writing.35 Some of these delimitations may have been carried out with the
submission process specifically in mind. It has been reported that the submission
process was the main motivator for Australia and New Zealand to
complete the delimitation of their boundaries beyond 200 n.m. 36
Another example of cooperation resulting in delimitations in anticipation
of submission was demonstrated by the three States - Iceland, Norway,
and Denmark (Faroes)-with overlapping claims to extended continental
shelf in the southern part of the so called Banana Hole. Before any of the
three States lodged a submission, they negotiated agreed minutes that established
the three boundaries among them, identified their shared tripoint, and
secured an agreement to not object to Commission consideration of subsequent
submissions in the area.37 The three States have since made submissions
claiming extended continental shelf in the Banana Hole.38 Notably,
the outer limits in these submissions do not correspond to the agreed
boundaries, instead they stretch beyond them. The States recognized that,
in addition to agreeing the boundaries that would divide overlapping areas
of extended continental shelf, they must also demonstrate an entitlement to
those areas of shelf under the terms of the Convention in the Commission
process. The agreed minutes provide for the event that one or more of the
States is unable to demonstrate "that the area of its continental shelf beyond
200 nautical miles corresponds in size, as a minimum, to the area that falls
35 See, e.g., Report Numbers 1-5(2) (Mexico-United States), 2-13(3) (Trinidad and Tobago-Venezuela),
5-1 (Australia-France (New Caledonia)), 54 (Australia-Solomon Islands), 5-26 (Australia-New
Zealand), 6-1 (Australia (Heard and McDonald lslands)-France (Kergueleo Islands)), 9-7 (IrelandUnited
Kingdom), and 9-26 (Denmark-Iceland-Norway).
36 See, e.g., Report Number 5-26 (Australia-New Zealand), at 3760 (''the impetus for undertaking and
completing the process was provided by the impending submission, by both countries, of their proposed
continental shelf coordinates to the [Commission]").
37 See Report Number 9-26 (Deomark-Iceland-Norway) in this volume.
38 See Submission of Norway in respect of areas in the Arctic Ocean, the Barents Sea and the Norwegian
Sea; Executive Summary (Nov. 27, 2006); The Icelandic Continental Shelf: Partial Submission to
the Commission on the Limits of the Continental Shelf pursuant to article 76, paragraph 8 of the
United Nations Convention on the Law of the Sea in respect of the Aegir Basin area and Reykjanes
Ridge; Executive Summary (Apr. 29, 2009); Partial Submission of the Government of the Kingdom
of Denmark together with the Government of the Faroes to the Commission on the Limits of the
Continental Shelf; Executive Summary (Apr. 29, 2009).
Annex 28
4150 Coalter Lathrop
to the same State according" to the agreed boundaries.39 If this were to
occur, the boundaries would be adjusted on the basis of previously agreed
terms also found in the minutes.
In 2000 the United States and Mexico settled their boundary beyond
200 n.m. in the ''western gap" of the Gulf of Mexico.40 There is no evidence
that this delimitation was carried out in anticipation of submissions
to the Commission. Nonetheless, in 2007 Mexico lodged a submission
regarding this same area and used the negotiated boundary as its outer limit.
41 This is a different approach to that used by the three States around the
Banana Hole. Unlike the agreed minutes among Denmark, Norway and
Iceland, the agreement between the United States and Mexico does not contemplate
adjustments to the boundary on the basis of demonstrated entitlement
to the respective areas of extended continental shelf under
international law. This may reflect a high level of confidence that the States
can both demonstrate entitlement up to the agreed line. This has certainly
turned out to be true for Mexico. Recommendations were quickly forthcoming
endorsing in full Mexico's claimed outer limit. Mexico has since
accepted the recommendations and established its outer limit on the basis
of those recommendations in accordance with Article 76. Mexico is now
one of only a small number of States to have taken the Commission process
through to this final and binding step. The complete delimitation of the
area under consideration is one factor that allowed the Mexican Submission
to move quickly through the process.
It can be expected that some boundaries will be agreed during the
Commission's consideration of related submissions. The review process can
be quite drawn out giving Parties to a dispute some time to reach agreement.
For example, Russia made its initial submission in 2001 and received
recommendations from the Commission in 2002. Those recommendations
are not public and a summary of the recommendations has also not yet
been made public. From what information is available it is to be assumed
that Russia accepted some but not all of the recommendations and is now
in the process of revising its submission. In the meantime, press reports
indicate that Russia and Norway have reached agreement on their boundary
in the Barents Sea. At the current pace the Commission is not expected to
adopt recommendations on Cuba's Submission-the 51st and last in
39 Report Number 9-26 (Denmark-Iceland-Norway) in this volume.
40 Report Number 1-5(2) (Mexico-United States).
41 A Partial Submission of Data and I,iformation on the Outer Limits of the Continental Shelf of the
United Mexican States pursuant to Part VI of and Annex II to the United Nations Convention on
the Law of the Sea (Dec. 13, 2007).
Annex 28
Continental Shelf Delimitation Beyond 200 Nautical Miles 4151
line - until 2030, giving the United States, Mexico, and Cuba twenty more
years to complete their respective boundaries in their shared area in the
"eastern gap" of the Gulf of Mexico.
It is expected that if States reach agreement on boundaries related to
their submission while the submission is still before the Commission, they
will update their submissions accordingly.42 For now, delimited boundaries
beyond 200 n.m. remain the exception.
B Partial submission
Where disputes have not been resolved in advance of a submission, some
submitting States have elected to make partial submissions intended to
avoid areas in dispute. The Commission provides for this approach in
Annex I, paragraph 3 which reads in part: "A submission may be made by
a coastal State for a portion of its continental shelf in order not to prejudice
questions relating to the delimitation of boundaries between States in any
other portion or portions of the continental shelf for which a submission
may be made later." More than half of the 51 submissions have been partial
submissions.43 Other reasons exist for making partial submissions,44 but
avoiding areas in dispute is the reason given in several of the executive
summaries. Ireland, in one of the earliest submissions, noted "ongoing discussions
with neighbouring States" and elected to make a partial submission
"in order not to prejudice unresolved questions relating to the
delimitation of boundaries between Ireland and some of its neighbours in
other portions of the extended continental shelf claimed by Ireland."45 In a
more recent submission, the Philippines explained that its partial submission
42 See, e.g., the reporting on Commission recommendations to Russia regarding future entry into force
of boundaries. "In the case of the Barents aod Bering seas, the Commission recommended to the
Russiao Federation, upon entry into force of the maritime boundary delimitation agreements with
Norway in the Barents Sea, and with the United States of America in the Bering Sea, to traosmit
to the Commission the charts and coordinates of the delimitation lines as they would represent the
outer limits of the continental shelf of the Russian Federation extending beyond 200 nautical miles
in the Barents Sea and the Bering Sea respectively." Oceans and the law of the sea: Report of the
Secretary-General, N57/57/Add.l (Oct. 8, 2002), para. 39.
43 CoNTINENTAL SHELF, supra note 11, at 20.
44 States with several, non-contiguous parcels of territory, such as France, the United Kingdom, and
South Africa, have made multiple, partial submissions for diflerent parcels of territory. For other
States partial submissions have been necessary where preparation for a complete submission has
not been politically or technically possible by the submission deadline.
45 Submission to the Commission on the Limits of the Continental Shelf pursuant to Article 76, paragraph
8 of the United Nations Convention on the Law of the Sea 1982 in respect of the area abutting
the Porcupine Abyssal Plain; Executive Summary (May 25, 2005), at 4.
Annex 28
4152 Coalter Lathrop
relating only to the Benham Rise was made "as a gesture of good faith ... to
avoid creating or provoking maritime boundary disputes where there are
none, or exacerbating them where they may exist.''46
For the submitting State this approach has the advantage of removing
one possible roadblock to Commission consideration. The approach requires
only minimal communication or coordination with neighbors: only enough
to ascertain the spatial extent of their claims in the area under consideration.
A potential drawback of this approach is that it has the submitting
State asserting less than its maximum claim to area before an international
body. While these omissions have no direct legal effect on the claims of the
submitting State and could in fact contribute to regional peace and stability,
this self restraint could also, depending on the domestic climate, be politically
unpalatable if it appears to leave the submitting State open to criticism
by neighbors in future negotiations or other proceedings.
C Joint submission
Annex I also refers to the possibility of joint submissions by two or more
coastal States "without regard to the delimitation of boundaries between
those States.'"'7 Five of the 51 submissions have been joint submissions. 48
In the first joint submission, and the only one for which recommendations
have been adopted, the spokesperson for the four submitting
States - France, Ireland, Spain, and the United Kingdom - noted ''that all
four coastal States could have made potentially overlapping, separate submissions.
However, they considered it more appropriate to avail themselves
of the possibility of making a joint submission since, upon the issuance of
recommendations by the Commission, the four coastal States would be able
to establish the outer limit of their continental shelf in the region prior to
46 A Partial Submission of Data and Information on the Outer Limits of the Continental Shelf of the
Republic of the Philippines Pursuant to Article 76(8) of the United Nations Convention on the Law
of the Sea; Executive Summary (Apr. 8, 2009) at ll.
47 Rules of Procedure, supra note 19, Annex I, para. 4.
48 See the Joint Submission by France, Ireland, Spain and the United Kingdom of Great Britain and
Northern Ireland (Celtic Sea and Bay of Biscay) (May 19, 2006); Joint Submission by the Republic
of Mauritius and the Republic of Seychelles (Mascarene Plateau) (Dec 1, 2008); Joint Submission
by the Federated States of Micronesia, Papua New Guinea and Solomon Islands (Ontong Java
Plateau) (May 5, 2009); Joint Submission by Malaysia and Viet Nam (southern South China Sea)
(May 6, 2009); and the Joint Submission by France and South Africa (Crozet Archipelago and
Prince Edward Islands) (May 6, 2009).
Several preliminary information documents have also been submitted jointly by two or more
States.
Annex 28
Continental Shelf Delimitation Beyond 200 Nautical Miles 4153
its delimitation among themselves."49 This submission was both joint and
partial, so while it encompassed areas claimed by more than one submitting
State, the scope was limited to avoid area claimed by non-submitting States.
The result of this approach is that the four States have moved quickly
through the Commission process, ascertained the size and scope of their
shared area, and may now set about splitting it up through the usual bilateral
processes and at their leisure.
This will not necessarily be the outcome in all joint submissions. The
joint submission by Malaysia and Viet Nam in the southern part of the
South China Sea might have allayed Commission concerns with respect to
unresolved disputes between the two submitting States, but because it did
not include all interested Parties, it has been blocked by neighbors. This
submission elicited an immediate reaction from China, invoking Annex I,
Article 5(a), and "request[ing] the Commission not to consider the Joint
Submission."50 The Philippines soon followed suit "request[ing] the
Commission to refrain from considering the aforementioned [submission],
unless and until after the Parties have discussed and resolved their
disputes."51 The disputes referred to are of the most contentious and intractable
kind involving conflicting claims to sovereignty over insular territory
in the South China Sea and parts of the island of Borneo and overlapping
claims to the associated maritime areas. These disputes are long-standing,
multi-State, and involve valuable resources in addition to other strategic
considerations. The fact of cooperation in this environment between
Malaysia and Viet Nam is noteworthy, but was not sufficient to overcome
conflicting positions held by other States. The Joint Submission was presented
to the Commission by the submitting State representatives in August
2009 at which time the Commission also considered the flurry of written
communications it had received from the submitting States, China, and the
Philippines. At that meeting "the Commission decided to defer further consideration
of the submission and the notes verbale until such time as the
submission is next in line for consideration."52 One would expect that until
China and the Philippines withdraw their objections or join the submission,
consideration of this joint submission will continue to be deferred.
49 Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress
of work in the Commission, CLCS/62 (Apr. 20, 2009), para. 12.
50 Note verbale No. CML/17/2009 of Permanent Mission of China to the United Nations to the
Secretary-General of the United Nations, (May 7, 2009).
51 Note verbale No. 000819 of the Permanent Mission of the Philippines to the Secretary-General of
the United Nations (Aug. 4, 2009).
52 Statement by the Chairman CLCS/64, supra note 28, para. 92.
Annex 28
4154 Coalter Lathrop
Joint submissions require significant cooperation and forethought. This
will increase some transaction costs, but may result in efficiencies as well. 53
In the right circumstances the eflbrt can remove unresolved disputes from
the equation. However, as demonstrated above, without all necessary Parties
a joint submission may still fail to overcome the obstacle presented by
uncooperative neighboring States willing to invoke unresolved disputes to
block Commission consideration.
D Separate submissions: cooperation
The preponderance of all submissions and preliminary information documents
are lodged separately by single States. As noted above, many of these
separate submissions are only partial submissions, and some of those submissions
are made in that form expressly to avoid unresolved disputes. Very
few of these separate submissions involve areas of extended shelf that are
already fully delimited by agreement with neighboring States. Mexico's submission
and the submissions related to the Banana Hole provide examples
of this small subset. This leaves a large group of separate submissions that
are not partial and which cover areas subject to as yet unresolved delimitations.
States making separate submissions under these conditions take one of
two general approaches to unresolved disputes. The first involves presubmission
cooperation that might include data exchange, an exchange of
views on extended shelf boundary positions, the beginnings of the negotiation
of those boundaries, or securing some form of pre-submission agreement
from neighbors not to object. The second approach involves lodging a
separate submission that will create areas of overlap but without pre-submission
cooperation and despite the lack of a ''no objection" agreement. The
first approach is addressed here, the second in the following section.
Cooperation that does not result in an agreed boundary or amount to a
joint submission can be difficult to detect or confirm. In some instances
such cooperation is made apparent in the executive summaries and related
written communications. In others it requires some speculation. Moreover,
cooperation can take many forms.
53 Murphy lists several advantages to joint submissioos including: overcomiog unresolved boundaries,
combined datasets, pooled expertise and division of labor. See Alain Murphy, Coordinated,
Harmonized or Joint Submissions to the Commission on the Limits of the Continental Shelf, presented
at 5th ABLOS Conference, Difficulties in Implementing the Provisioos of UNCLOS,
Monaco, 15-17 October 2008, available at http://www.gmalunsw.edu.au/ablos/ABLOS08Fo1der/
ablos08_papers.htm (last visited May 21, 2010).
Annex 28
Continental Shelf Delimitation Beyond 200 Nautical Miles 4155
In a relatively well-documented example, several ECOWAS member
States including Benin, Cote d'Ivoire, Ghana, Nigeria, and Togo met in
February 2009 and agreed that "issues of the limit of adjacent/opposite
boundaries shall continue to be discussed" and that "member States would
therefore write "no objection note" to the submission of their neighboring
States."54 With the exception of the recent agreement between Benin and
Nigeria, no boundaries have been agreed among these five States either
within or beyond 200 n.m.55 Since the February 2009 multilateral "no
objection" agreement, Ghana, Nigeria and Cote d'Ivoire have lodged submissions
with the Commission and Togo and Benin have submitted separate
and joint preliminary information documents. The areas claimed by
Benin, Ghana, Nigeria, and Togo all overlap to some degree, but, presumably
on the basis of the no prejudice language of the Convention and the
Agreement of February 2009, none of the States has objected to consideration
by the Commission.
In the complex political geography of northeastern South America multiple
submissions and preliminary information documents have been lodged
with the Commission including submissions by Brazil, France (French
Guiana), Barbados, Suriname, and Trinidad and Tobago. Guyana has submitted
preliminary information documents and Venezuela - non-Party to the
Convention - has indicated a claim to extended shelf in an area included in
other submissions. 56 Here, several of the boundaries within 200 n.m. and
one delimiting areas beyond 200 n.m. have been settled by negotiation.57
Two have been the subject of recent arbitration.58 Umesolved disputes in
the region include a long-standing sovereignty dispute between Venezuela
and Guyana to territory that includes coastal area that could influence maritime
entitlements and boundaries. Some of the boundaries within and most
of the boundaries beyond 200 n.m. are also undelimited. In addition, there
is significant disagreement between Trinidad and Tobago and Barbados
54 Minutes of Experts Meeting of ECOW AS member States on the Outer Limits of the Continental
Shelf, Accra, 24-26 February 2009, Appendix A, quoted in Submission by Government of the
Republic of Ghana for the Establishment of the Outer Limits of the Continental Shelf of Ghana
pursuant to Article 76, paragraph 8 of the United Nations Convention on the Law of the Sea;
Executive Summary (Apr. 28, 2009), para. 5.2.
55 See Report Number 4-14 (Benin-Nigeria) in this volume.
56 Note verbale No. 00766 of the Ministry of the People's Power for Foreign Affilirs of Venezuela to
the Secreta,y-General of the United Nations (Sept. 9 2008) ("Venezuela ... has rights over the continental
shelf in the area referred to in the summary of Bamados as the 'southern area'.")
57 See Report Numbers 2-13(3) (Trinidad and Tobago-Venezuela), 3-3 (Brazil-France (Freoch Guiana)),
and 2-27 (Barbados-Guyana).
58 See Report Numbers 2-26 (Barbados-Trinidad and Tobago), 3-10 (Guyana-Suriname).
Annex 28
4156 Coalter Lathrop
about the effect of their boundary award on entitlement to extended continental
shelf.
Considering the many outstanding issues in this region it is not surprising
that the submissions and preliminary information documents lodged to
date indicate several areas of significant overlap. Despite these overlaps and
in the absence of a regional multilateral ''no objection" agreement, no
neighboring State has objected to Commission consideration of submissions
in this region. This level of cooperation appears to have been accomplished
through a network of bilateral consultations and agreements to not object.
For example, Suriname indicates that it held consultations with all of its
neighbors, including France, Guyana, Barbados, Trinidad and Tobago, and
Venezuela and secured agreements from all of them not to object to
Suriname's submission.59 Written communications from Barbados, France,
and Trinidad and Tobago confirm some of these agreements. Barbados
refers to no objection agreements with Suriname, Guyana, and France.60
Trinidad and Tobago refers to consultations with and agreements to not
object from Venezuela, Suriname, and Guyana.61
Less complex examples of pre-submission consultation and apparent
cooperation are available. South Africa noted an exchange of letters with
Madagascar agreeing that "their respective submissions may be considered
by the Commission on the understanding that this shall not prejudice future
delimitation."62 New Zealand noted, with respect to its unresolved delimitation
with Tonga, that it "has made extensive efforts to resolve the boundary
both prior to and since presenting its submission and that negotiations
between New Zealand and Tonga remain ongoing."63 In its submission,
Kenya refers to a memorandum of understanding between Kenya and
Somalia "granting each other no objection in respect of submissions."64
59 Government of the Republic of Suriname Submission on the Outer Limits of the Continental Shelf,·
Executive Summary (Dec. 5, 2008), at 2.
60 Government of Barbados Continental Shelf Submission; Executive Summary (May 8, 2008), para.
1.4.1.
61 Submission to the Commission on the Limits of the Continental Shelf pursuant to the Article 76,
paragraph 8 of the United Nations Convention on the Law of the Sea, Republic of Trinidad and
Tobago; Executive Summary (May 12, 2009), at 16.
62 Republic of South Africa Partial Submission to the Commission on the Limits of the Continental
Shelf pursuant to Article 76, paragraph 8 of the United Nations Convention on the Law of the Sea
1982 in respect of the area of the South African Mainland; Executive Summary (May 5, 2009), at
2-3.
63 Note verbale No. 07/08/41 of the Pennaneot Mission of New Zealand to the United Nations to the
Secretary-General of the United Nations (July 31, 2008).
64 Republic of Kenya Submission on the Continental Shelf beyond 200 n.m.s to the Commission on the
Limits of the Continental Shelf in accordance with requirement of the United Nations Convention
on the Law of the Sea; Executive Summary (May 6, 2009), para 7.3 The Transitional Federal
Annex 28
Continental Shelf Delimitation Beyond 200 Nautical Miles 4157
Norway, in its written reaction to the 2001 Russian submission, noted that
the undelimited boundary between Norway and Russia in the Barents Sea
was "the object of ongoing consultations" and gave its consent ''to an
examination by the Commission of the Russian submission. "65 The common
thread running through these examples is the avoidance of objection by
neighboring States through prior consultation despite the existence of
significant overlapping claims to areas of extended continental shelf.
E Separate submission: conflict
Separate submissions made to areas claimed by neighbors and without prior
consultation or assurances of no objection are at risk of being blocked by
any neighboring State that objects to Commission consideration under
Annex I, para S(a).66 As demonstrated above, even joint submissions are
vulnerable to this reaction. In addition to the joint submission by Malaysia
and Viet Nam in the South China Sea, several separate submissions are
currently on hold as a result of objections.
Overlapping areas of extended continental shelf in the Bay of Bengal
are subject to the separate submissions by Myanmar, Sri Lanka, and India.
Despite significant overlap among these claims, these three submitting
States have not objected to the submissions by the other two. However,
Bangladesh - the fourth coastal State on the Bay of Bengal - has not yet
lodged its own submission, but it has objected to the submissions of India
and Myanmar.67 In written reactions to both submissions, Bangladesh
invoked Annex I, para. 5(a), noted unresolved delimitations with both
neighbors, and objected to Commission consideration of the submissions.68
Parliament of Somalia subsequently refused to ratify the memorandum of understanding, but
Somalia baa not submitted a written communication objecting to consideration of Kenya's submission
by the Commission. See Note verba/e No. OPM/IC/00./016/09 from the Prime Minister of
Somalia to the Secretary-General of the United Nations (Oct. 10, 2009).
65 Note verbale of the Permanent Mission of Norway to the United Nations to the Secretary-General
of the United Nations (Mar. 20, 2002).
66 A lack of prior consultation does not necessarily result in objections from neighbors anymore than
prior consultation can guaranty protection against objections. There are instances of possible overlap
in which no apparent pre-submission consultations have been carried out and in which neighboring
States have also not objected. See, e.g., the French Submission in respect of La Reunion
Island, the undelimited boundary with Madagascar beyond 200 n.m., and the apparent lack of reaction
from Madagascar.
67 Bangladesh baa until 2011 to make its submission or to lodge preliminary information documents.
68 Note verbale No. PMBNY-UNCLOS/2009 of the Permanent Mission of Bangladesh to the United
Nations to the Secretary-General of the United Nations (Oct. 29, 2009); Note verbale No.
Annex 28
4158 Coalter Lathrop
During its twenty-fourth session held from August 10 to September 11,
2009, the Commission, taking note of the views expressed by Bangladesh
in its note verbale, "decided to defer further consideration of the
[Myanamar] submission."69 A month later, on October 8, 2009, Bangladesh
instituted arbitral proceedings against both Myanmar and India pursuant to
Annex VII of the Convention, asking separate tribunals to delimit its territorial
sea, exclusive economic zone, and continental shelf boundaries with
its two neighbors.70 Although India was initially scheduled to present its
submission during the twenty-fifth session of the Commission in March and
April 2010, for reasons that are undoubtedly related to the Bangladesh
objection and the ongoing delimitation case, India has not been given the
opportunity to present its submission to the Commission.
The United Kingdom and Argentina have both lodged claims to
extended shelf on the basis of conflicting claims to sovereignty over territory
in the South Atlantic Ocean.71 The United Kingdom reacted to
Argentina's Submission writing that it "rejects those parts of Argentina's
submission which claim rights to the seabed and subsoil of the submarine
areas appurtenant to the Falkland Islands, South Georgia and the South
Sandwich Islands, and requests that the Commission does not examine
those parts of the Argentine submission."72 Likewise, Argentina reacted to
the United Kingdom Submission writing that it "categorically rejects the
British submission and expressly requests that the Commission ... neither
consider nor qualify it."73 The Commission took note of some of the reactions
directed at the Argentine Submission that were related to Antarctica.
There is no evidence that the Commission considered the British note verbale
regarding the Argentine Submission, however, this submission appears
PMBNY-UNCWS/2009 of the Pennanent Mission of Bangladesh to the United Nations to the
Secretary-General of the United Nations regarding Myanmar (July 23, 2009).
69 Statement by the Chairman CLCS/64, supra note 28, para. 40.
70 See Report Numbers 6-23 and 6-24 in this volume. The Parties to the Bangladesh/Myanmar arbitration
issued parallel declarations accepting the jurisdiction of the International Tribunal on the Law
of the Sea. That case is now before ITLOS. The Bangladesb/India case is in its early stages before
an Annex VII tribunal.
71 See Outer Limit of the Continental Shelf, Argentine Submission; Executive Summary (Apr. 21, 2009);
Submission to the Commission on the Limits of the Continental Shelf pursuant to Article 76, paragraph
8 of the United Nations Convention on the Law of the Sea 1981 in respect of the Falkland
Islands, and of South Georgia and the South Sandwich Islands; Executive Summary (May 11,
2009).
72 Note verbale No. 84/09 of the Pennanent Mission of the United Kingdom to the Secretary-General
of the United Nations (Aug. 6, 2009).
73 Note verbale No. 290/09/600 of the Pennanent Mission of Argentina to the United Nations to the
Secretary-General of the United Nations (Aug. 20, 2009).
Annex 28
Continental Shelf Delimitation Beyond 200 Nautical Miles 4159
to be on hold.74 The fate of the British Submission is clearer: ''the
Commission decided that, in accordance with its rules of procedure, it was
not in a position to consider and qualify the submission."75
Several other submissions have suffered a similar fate. For example, the
separate submissions by Ireland and the United Kingdom in respect of the
Hatton-Rockall Area - an area in which these two States have settled their
boundary by agreement - elicited express objections from the neighboring
States of Denmark and lceland.76 Vanuatu expressed an objection to Fiji's
Submission on the basis of Vanuatu's claims to Matthew and Hunter
Islands.77 China and the Philippines have both asked the Commission not to
consider Viet Nam's separate Submission in the South China Sea.78 The
Philippines has also asked the Commission to refrain from considering
Palau's Submission.79 The Commission has deferred consideration of the
submissions by Ireland, the United Kingdom, Fiji, and Viet Nam.80 Palau's
Submission has not yet been presented to the Commission.
V CONCLUSION
The Commission process under the terms of the Convention and the
Commission's Rules of Procedure has attempted to strike a workable balance
between the establishment of the outer limits of extended continental
shelf and the process of agreeing or adjudicating the lines that divide areas
of shelf claimed by two or more States. The language in the Convention
and related texts that provides that the Commission process is without
74 See Statement by the Chairperson of the Commission on the Limits of the Continental Shelf on the
progress of work in the Commission, CLCS/66 (Apr. 30, 2010), para. 37.
75 Id. para. 60.
76 Note verbale No. FNY09050022/97.B.512 of the Permanent Mission oflceland to the United Nations
to the Secretary-General of the United Nations (May 27, 2009); Note verbale No. 119.N.8 of the
Permanent Mission of Denmark to the United Nations to the Secretary-General of the United
Nations (May 27, 2009); Note verba/e No. FNY09050023/97.B.512 of the Permanent Mission of
Iceland to the United Nations to the Secretary-General of the United Nations (May 27, 2009); Note
verbale No. 119.N.8 of the Permanent Mission of Denmark to the United Nations to the SecretaryGeneral
of the United Nations (May 27, 2009).
77 Note verbale of the Permanent Mission of Vanuatu to the United Nations to the Secretary-General
of the United Nations (Aug. 12, 2009).
78 Note verbale No. CML/18/2009 of the Permanent Mission of China to the United Nations to the
Secretary-General of the United Nations (May 7, 2009); Note verbale No. 000818 of the Permanent
Mission of the Philippines to the United Nations to the Secretary-General of the United Nations
(Aug. 4, 2009).
79 Note verbale No. 000820 of the Pennanent Mission of the Philippines to the United Nations to the
Secretary-General of the United Nations (Aug. 4, 2009).
80 Statement by the Chairman CLCS/64, supra note 28.
Annex 28
4160 Coalter Lathrop
prejudice to delimitation and sovereignty disputes appears to have allowed
the process of reviewing data related to outer limit claims to move forward
without significant interference from neighboring States. However, in some
instances neighboring States have - despite this language - objected to
Commission consideration of submissions that contain competing claims
and have been able to freeze the Commission process with respect to those
submissions.
Submitting States are aware of this possibility and have made efforts to
forestall interference by agreeing their boundaries before submitting, making
a partial submission that avoids boundary issues, making a joint submission,
or reaching an agreement to disagree and, importantly, to refrain from objection.
In a handful of highly contentious situations, these efforts - to the
extent they have been made at all - have proved insufficient and the clearly
non-prejudicial nature of the Commission process has proved unconvincing,
resulting in deferred consideration of these submissions.
Deferred consideration of a submission is a bad result for the submitting
State. Deferral represents the total failure of one of the two main goals in
the extended continental shelf game: completing the Commission process
with favorable recommendations for establishing an outer limit. And it may
do nothing to increase the likelihood of success with respect to the other
goal: maximizing area of extended continental shelf. For States that have
not yet submitted, attempts can be made to avoid this bad result using the
approaches discussed in this essay. For States that find themselves in
Commission purgatory, there are opportunities for atonement. When deferring
a submission for future consideration the Commission has noted that it
is taking this step "in order to take into consideration any further developments
that might occur throughout the intervening period during which
States may wish to take advantage of the avenues available to them including
provisional arrangements of a practical nature as contained in annex I to
its rules of procedure."81 Considering the rather extended time line over
which the Commission process is likely to unfold, this will give submitting
States and their objecting neighbors ample time to apply more successful
approaches to the unresolved disputes embedded in their submissions.
81 Id. paras. 40, 46, 52, 71, 92, 106.
Annex 29
C. Majtenyi, “Somali President in Capital for Consultations”, VOA (8 Jan. 2007)
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Somali President in Capital for Consultations
By Cathy Majtenyi
Nairobi
08 January 2007
Listen to Listen to VOA's exclusive interview with Jendayi
Frazer
Somalia's president Monday arrived in the capital
Mogadishu to hold consultations with representatives
from religious, civil society, business and other
groups. Somalia's foreign minister says the meetings
are, in part, to pave the way for the government to
move its base from Baidoa to Mogadishu. Cathy
Majtenyi reports for VOA from Nairobi.
This is the first time Abdullahi Yusuf stepped into the capital
since he took office more than two years ago.
Until now, he and other members of the transitional government, commonly known as the TFG, cited security
concerns as being the main reason why the government chose to be based in Baidoa, rather than Mogadishu.
But, says Somali foreign affairs minister Esmael Mohamud Hurreh, things are different at this time.
"It [Yusuf's visit] is a very symbolic and very important move. It symbolizes that a president of the TFG is moving
into Mogadishu. There has been an absence of governance in Mogadishu for a long period, and I think this signals
the end of the absence of governance in Mogadishu."
Sources tell VOA the reason for Yusuf's visit to Mogadishu was to soothe tensions between the Hawiya and Darod
clans, in part arising from the government's disarmament exercise.
The historical rivalry between the two clans was exacerbated in recent months with the Hawiya clan said to support
the Islamic Courts Union and the Darod clan said to back the transitional government.
Foreign Minister Hurreh denies that the president is there primarily to ease clan tensions.
He said, "The purpose of the visit is to make clear to anybody that the TFG has got every intention of moving into
the capital."
Until about two weeks ago, the capital was controlled by militiamen from the Islamic Courts Union, which rose to
power in the middle of last year and took control over much of southern Somalia.
During two weeks of air raids and combat fighting at the end of December, the Islamists abandoned areas they held
as Ethiopian-backed government troops advanced.
Now, the government and officials from the International Contact Group on Somalia among others are looking for
ways to move forward, including holding reconciliation talks with a cross-section of Somalis, sending in a
peacekeeping force, reducing the number of guns, and developing the country.
But the capital is still volatile. There were reports of gunmen firing on Ethiopian forces Sunday following antiEthiopian
protests in which two people died.
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VOA Standard English - Somali President in Capital for Consultations
http://www.51voa.com/VOA_Standard_English/VOA_Standard_9474.html 1/26/2016
Annex 29
Annex 30
E. Mutai, “Kenya, Somalia border row targeted in Sh5.6bn mapping plan”, Business Daily (20
Apr. 2014)
Annex 30
<URL:>
<URL:>
BUSINESS DAILY
POLITICS AND POLICY
Kenya, Somalia border row targeted in
Sh5.6bn mapping plan ~~~~~~~~ ....
President Uburu Kenyatta. Photo'FILE
IN SUMMARY
• Kenya is under obligation to carry out the exercises in conjunction with her neighbours-Uganda, Tanzania, Ethiopia and South Sudan- a report by President Uhuru Kenyatta says.
Kenya will spend more than Sh5.6 billion over the next five years to carry out survey, mapping and maintenance of its international boundaries .
The country is under obligation to carry out the exercises in conjunction with her neighbours-Uganda, Tanzania, Ethiopia and South Sudan- a report by President
Uhuru Kenyatta says.
The report titled "Progress Made in Fulfilling the International Obligations of the Republic", tabled by Mr Kenyatta in Parliament two weeks ago says the country
is required to submit International Boundary Surveys to the African Union (AU) and the United Nations (UN) by 2017 together with accompanying treatie s.
"Kenya has to be in agreement with her neighbouring countries as regards the common international boundaries ," Mr Kenyatta said .
"The challenges include ambiguous description of boundaries, inadequate funding for the survey and capacity building and the fact that Kenya cannot carry out
survey s alone but must do so in liaison with her neighbour s."
Mr Kenyatta says the declaration on the African Union Border Progranune (AUBP) was demanded by the persistence of border delimitation and demarcation issu es
in Africa where only less than a quart er of the boundari es have been delimitated and demarcated .
Kenya has been conducting a jo int border demarcation with Uganda after a dispute arose over the control of the fish-rich Migin go and Ugingo islands.
The Administration and National Security committee chaired by Tiaty Member of Parliament Asman Kamama told Parliament last week that the only clearly
demarcated boundary between Kenya and her neighbours is the border with Ethiopia
Kenya is already involved in a row with Somalia over the maritime border, raising concern that the feud may deter multinational oil compani es from exploring for
oil and gas offshore .
READ: Kenya, Somalia border row threatens oil exploration <URL: http:/lw ww.busin essdailyafrica .com/Kenya--Somalia-border-row-threatens-oil-explorationl-
/539546!1390440/-lephkc5zl-/ index.html>
The two nations disagree over the location of their boundary in the Indian Ocean.At stake are legal claims to sell rights for exploration and collect revenue from any
discovery .
Kenya bad identifi ed eight new offshore explor ation blocks available for licensing, and all but one of them are located in the contested area .
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“U.N. Secretary Council makes historic visit to Somalia”, Dhanaanmedia.com (13 Aug. 2014)
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UN Security Council makes historic visit to
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August 13, 2014 // admin1 // News in English95 Views
Mogadishu, 13 August 2014 – Members of the United Nations Security Council arrived in Mogadishu
this morning on a landmark visit to Somalia to review progress made by the Federal Government with
assistance from the international community, and to demonstrate their continued support for the
country’s efforts to ensure a sustainable peace.
The visit by the fifteenmember body is led by the UK Permanent Representative to the United Nations,
Ambassador Mark LyallGrant, and Ambassador Usman Sarki of Nigeria. During the visit the Council
members met with President Hassan Sheikh Mohamud, Prime Minister Abdiweli Sheikh Ahmed, senior
members of the Government and the Federal Parliament, and the leaders of the Interim Jubba
Administration and Galmudug, Ahmed Islaan Madobe and Abdi Hassan Awale Qeybdid. They also held
discussions with the senior leadership of the United Nations Assistance Mission in Somalia (UNSOM),
the African Union Mission in Somalia (AMISOM) and members of Somalia’s civil society.
The visit comes at an important time for Somalia as the country prepares to launch the next phase of
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military operations against AlShabaab, addresses a worsening humanitarian situation and pushes
forward with political reforms to agree a federal system of governance.
Speaking at Mogadishu International Airport, the UK’s Permanent Representative, Ambassador Mark
LyallGrant said, “We are pleased to have this opportunity to visit Somalia. Our visit underlines the
commitment of the international community to Somalia’s progress toward peace and stability. The
Council welcomes recent political agreements to form interim regional administrations, including the
establishment of the Interim Jubba Administration and agreements on the Interim South West State
Administration and on the Central Regions.
“Members of the Council also expressed their expectation that the Federal Government of Somalia will
urgently establish a national independent electoral commission, lead a process to revise the constitution
and hold a referendum on it by the end of 2015, and hold elections in 2016. The members of the Security
Council stand ready to support the people and government of Somalia to deliver this vision. The
members of the Security Council also underlined the importance of women being represented at all
levels of the political process in Somalia.” Ambassador LyallGrant added.
The UN Security Council delegation includes representatives from Argentina, Australia, Chad, Chile,
China, France, Jordan, Lithuania, Luxembourg, Nigeria, Republic of Korea, Russian Federation,
Rwanda, UK and USA.
Source:UNSOM.UNMISSION.ORG
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Madaxda Soomaalidu Gacan maroojin shisheeye kama maaranto!
Himilada shirka Kismaayo iyo Humaaga dul heehaaban
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“IGAD Foreign Affairs Ministers Arrive in Mogadishu”, AMISOM (10 Jan. 2015)
IGAD Foreign Affairs Ministers Arrive in Mogadishu
Four Foreign Affairs Ministers from Djibouti, Ethiopia, Kenya, and South Sudan are in Mogadishu
for a historic IGAD Ministerial meeting, last held in Somalia in 1985.
Ethiopia’s Foreign Affairs Minister and current chairman of the IGAD Council of Ministers Dr.
Tedros Adhanom is leading the delegation which includes Kenya’s Cabinet Secretary for Foreign
Affairs Amina Chawahir Mohamed, South Sudan Foreign Affairs Minister Dr. Barnaba Marial
Benjamin, Uganda’s State Minister of Foreign Affairs Asuman Kiyingi and Djibouti’s Foreign Affairs
Minister Mahamud Ali Yusuf. Sudan is represented by a senior government official.
The IGAD Executive Secretary Eng. Mahboub Maalim and IGAD Special Envoy to Somalia
Ambassador Mohamed Abdi Affey are accompanying the ministers.
The Acting Somalia Minister of Foreign Affairs and Investment Promotion Dr. Abdirahman Beileh,
senior Somali government officials and AMISOM commanders received the delegation at Aden
Abdule International Airport shortly after 4pm on Thursday.
Dr. Beileh thanked the visiting ministers for accepting Somalia’s request to host the precedent
setting meeting and promised successful deliberations.
“It is an honor for us. As you know such a conference has never taken place in Somalia. I
understand the last IGAD meeting held in Mogadishu was in 1985,” said Dr. Beileh.
Ethiopia’s Dr. Tedros Adhanom expressed gratitude that Somalia was hosting this meeting and
added that the ministers were impressed by the achievements of the Federal Government of
Somalia.
“The reason for hosting this IGAD meeting here is to discuss on the progress so far and also to
consult on the implementation of vision 2016. IGAD believes that vision 2016 will be implemented
as planned because as I said earlier the progress is commendable and we don’t expect any
problems to implement the vision 2016. Hosting the IGAD Ministerial meeting is to show our
solidarity first and also to give our full support for the progress Somalia is making,” Dr. Tedros said.
IGAD Foreign Affairs Ministers Arrive in Mogadishu - AMISOM
http://amisom-au.org/so/2015/01/igad-foreign-affairs-ministers-arrive-i… 1/27/2016
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IGAD Foreign Affairs Ministers Arrive in Mogadishu - AMISOM
http://amisom-au.org/so/2015/01/igad-foreign-affairs-ministers-arrive-i… 1/27/2016
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“Speaker of the Somali Parliament receives parliamentary delegation from Kenya”, Radio
Muqdisho (3 Feb. 2015)
Annex 33
1/27/2016 Speaker of the Somali Parliament receives parliamentary delegation from Kenya I Radio Muqdisho
Wednesday 27th January 2016 Seardl and hit enter I 0
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News Indian President greets Somalia on National Day
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Speaker of the Somali Parliament receives parliamentary delegation from Kenya
Posted on Tuesday 3rd February 2015 by radio muqdisho in NEWS// 0 Comments
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Speaker, Jawari
COME WITH BRAND
NEW THREATS.
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English
Mogadishu(RM)Speaker of the Somali federal Parliament , Hon . Mohamed Osman Jawari received a delegation from neighboring Kenya and arrived in
the capital Mogadishu a day before.
Osman Jawari, the speaker and members from Kenyan parliament had meeting over strengthening relations and collaboration between the parliaments and
discussed other issues including trade, economics of the two nations.
Speaking to Radio Mogadishu, Mohamed Osman Jaware after the meeting said he was very much pleased with talks he had Somali Kenyan members of
parliament and their wishes over the two states' persp ective in the future.
The lawmakers from Kenya arrived in Mogadishu yesterda y to visit and meet their counterparts with Somalia and they are expected to have meeting with
some commissions of Somali parliament tomorrow and then go home.
On the other hand , the Speaker met with Swedish ambassador to Somalia, Ambassador Maka'el here in Mogadishu today .
By Cobra
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