Anthony Aust. Handbook of International Law
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Attention may be drawn to an error by a state or the depositary. If there is a dispute as to whether
there is an error, the problem may have to be decided in accordance with Article 48 (Error),
209
not
Article 79 that deals with corrections only where there is no dispute as to the existence of an error. It
is more likely, however, that there will be no dispute, merely a difference of view as to how to deal
with the matter. Since the subject of corrections is discrete, the reader is referred to the text of
Article 79 in which the procedure for correcting errors is set out in detail.
Registration and publication
Registration
Article 102(1) of the UN Charter requires that ‘every treaty and every international agreement’
entered into by any Member of the United Nations is registered with the Secretariat as soon as
possible, and then published by it. By the end of 2004, over 50,000 treaties had been registered,
more than 1,000 being registered each year.
The term ‘international agreement’ embraces unilateral engagements of an international character.
Thus declarations under Article 36(2) of the Statute of the International Court of Justice are
registered.
210
Regulations and procedure
Detailed regulations and guidance on registration have been adopted by the UN General Assembly in
consultation with the Secretariat, and are explained in detail in the UN Treaty Handbook.
211
The
main ones are:
A treaty is not registered until it has entered into force. There is no time limit for registration.
Registration may be done by any party and relieves all other parties of the obligation to
register.
All subsequent actions effecting changes in a treaty, such as amendment or termination, must
also be registered.
To register a treaty, one must file certain documents with the Treaty Section of the Office of Legal
Affairs of the United Nations. These are described in detail in the Treaty Handbook.
209. See p. 108, n. 203 above.
210. See p. 452 below.
211. Access: http://untreaty.un.org/English/access.asp.
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Associated documents
Provided it meets the basic conditions of the Regulations, any document lodged with the Secretariat
for registration will be registered. Protocols, annexes, maps, etc. that are integral to the treaty must
be registered and will be published with the treaty in the United Nations Treaty Series (UNTS) even
if they are ephemeral. Care must be taken with MOUs.
212
Before any MOU referred to in a treaty, or
associated with it, is supplied to the Secretariat, it is important that its non-treaty, and non-
confidential, status has been confirmed in writing by all the states concerned.
Legal effect of registration or non-registration
Although the vast majority of instruments presented for registration are without doubt treaties, some
MOUs are on rare occasions registered.
213
But the act of registration, as such, has no effect on the
status of the instrument. It does not confer any status that the instrument does not already have, and a
non-registered treaty is still a treaty.
214
When there is a dispute as to status, the fact that the instrument has (or has not) been submitted
for registration may, depending on the circumstances, be evidence of the intention of the states
concerned as to its status. Registration by one party (which is usual) is evidence only that that party
regards the instrument as a treaty. The lack of any protest about the registration is not necessarily
evidence that another party accepts that the instrument is a treaty; states do not routinely monitor
registrations. Equally, non-registration is, in itself, not evidence that the instrument is not a treaty.
There are many reasons why what are obviously treaties are not registered: ignorance, inertia, lack of
staff or simple oversight.
Article 102(2) of the UN Charter provides that no party to a treaty entered into by a UN Member,
which has not been registered, may invoke it before any organ of the United Nations. However, the
principal judicial organ of the United Nations, the International Court of Justice, does not apply the
provision strictly, or perhaps at all. In Qatar v. Bahrain, the 1987 parallel Exchanges of Notes that
the parties agreed constituted a treaty were invoked before the Court, which gave full regard to their
terms even though they had not been registered.
215
Other organs of the United
212. See p. 53 above.
213. See Aust, p. 29.
214. See generally D. Hutchinson, ‘The Significance of the Registration or Non-Registration of an
International Agreement in Determining Whether or Not It Is a Treaty’ (1993) Current Legal Problems
257–90.
215. ICJ Reports (1994), p. 112; ILM (1994) 1461; 102 ILR 1.
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Nations have on occasion allowed states to invoke an unregistered treaty; and it is unthinkable that
the Security Council would ignore a treaty that is relevant to a matter of international peace and
security just because it was not registered.
Publication
There is no international rule requiring a state to publish a treaty. Finding its text, especially that of a
recent treaty, or even finding proof of a treaty’s existence, is not at all easy, although the Internet has
made it much easier.
216
The problem affects practitioners as much as scholars and students. Because
a treaty cannot be published in the UNTS until it has entered into force and been registered, one has
to rely heavily on national or commercial sources. However, the UN Treaty Collection website now
has, in order of their deposit, Texts of Recently Deposited Multilateral Treaties. Although this is
limited to those deposited with the UN Secretary-General, it does allow one to access certain treaties
well before they enter into force.
Publication by the United Nations
Article 102 requires the Secretariat of the United Nations to publish treaties registered with it. They
are published in the single series of the UNTS, although it no longer publishes in full (1) treaties of
assistance and co-operation on financial, commercial, administrative or technical matters, (2) some
ephemeral treaties, and (3) treaties that are published by a UN specialised or related agency (e.g. the
IAEA). Publication is done in all the authentic languages of the treaties and, if these do not include
English and French, with translations into those two languages. By the end of 2004, the UNTS
consisted of over 2,100 paper volumes, containing over 50,000 treaties. Publication on paper takes
some time, but all treaties that have been registered are available almost immediately at
http://untreaty.un.org/English/acces.asp.
The UNTS Cumulative Index is now also available on the website, although it does not cover
treaties registered in the last three to four years. Unfortunately, searching for a treaty on the website
is not always that easy unless one knows that it has been registered and, if so, the registration
number or at least the date of adoption or signature. Whenever
216. R. Gardiner, ‘Treaties and Treaty Materials: Role, Relevance and Accessibility’ (1997) ICLQ
643–66; S. Rosenne, Practice and Methods of International Law, New York, 1984, pp. 48–51.
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possible this book gives the registration number. But, if one has the reference to the volume of the
UNTS in which the treaty is published, or an ILM reference, it may sometimes be quicker to look up
the treaty on paper. Alternatively, a Google search will often produce the text.
The UN Secretary-General is also the depositary of over 500 multilateral treaties. The annual
publication, Multilateral Treaties Deposited with the Secretary-General (in this book referred to as
UN Multilateral Treaties), is an authoritative guide to the status of those treaties, containing as it
does information on signatures, ratifications, accessions, successions, declarations, reservations and
objections. It is published in English and French. Correct as of 31 December each year, it is normally
published in March or April of the following year. A more up-to-date English version is available on
the website. Access to the UN Treaty Collection website is free, but access to some parts of the
collection, such as the UNTS, is by subscription only, but many libraries provide free access.
Publication by states
Whether, or when, a treaty is published by a state is dependent on its constitution, legislation and
practice. Publication may be in an official gazette or journal, or in an official treaty series. In the
United Kingdom, all treaties which the United Kingdom has concluded, and which are subject to
ratification or a similar two-step procedure,
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are published as Command Papers in the Country,
European Communities or Miscellaneous Series. The United Kingdom is party to over 2,400
treaties. Since 1892, every treaty has been published in the United Kingdom Treaty Series (UKTS),
once it has entered into force for the United Kingdom. The UKTS is not published in volumes, each
treaty being published separately. Since 1974, only the English text of multilateral treaties has been
published. Earlier British treaties dating back centuries can be found in British and Foreign State
Papers (BSP). In contrast to some (chiefly monist) states, neither laying a treaty before Parliament,
nor its publication in the UKTS has legal effect, neither procedure making the treaty part of the law
of the United Kingdom.
218
Further information can be obtained by consulting
www.fco.gov.uk/treaty/ or by e-mailing treaty.fco@gtnet.gov.uk.
Sources of treaty texts
International Legal Materials (ILM), published by the American Society of International Law six
times a year since 1962, is an invaluable source
217. See p. 81 above on the Ponsonby Rule.
218. See p. 81 above.
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of texts of many recently concluded treaties of general interest, whether bilateral or multilateral. It is
often the easiest way to find a treaty whose entry into force is considerably delayed.
The Australian Treaties Library (www.lii.edu.au/au/other/dfat/) has the texts of all the treaties
Australia has been party to since the early twentieth century, and many recent ones that are not yet in
force. Texts of multilateral treaties and related material are also available through the Multilateral
Project begun in 1992 at the Fletcher School of Law and Diplomacy at Tufts University,
Massachusetts, USA (www.tufts.edu/fletcher/multilaterals.html). The data includes a list of treaty
secretariats with their Internet servers, which is useful for more up-to-date information about the
status of treaties, lists of parties etc. Information on developments of interest to the more computer-
literate lawyer is given regularly in What’s Online in International Law, published in the newsletters
of the American Society of International Law (www.asil.org). The website of the Lauterpacht
Research Centre for International Law at Cambridge, England (www.law.cam.ac.uk/rcil/) has many
useful links and is well worth a browse.
For the text of treaties concluded between 1648 (Peace of Westphalia) and 1919, the best source is
the 231-volume Consolidated Treaty Series (CTS), although not all the treaties have been translated
into English or French. For those concluded between 1919 and 1946, one should consult the 205-
volume League of Nations Treaty Series (LNTS). For US treaties, there is the Treaties and other
International Acts Series (TIAS) issued in single pamphlets, and the United States Treaties and
other International Agreements (UST) published in annual volumes since 1950. The currently over
126 volumes of the International Law Reports (ILR), with its excellent index, are an important
source for the decisions of courts and tribunals, international and national, on, inter alia, treaty
questions.
Treaty indexes
Apart from the UN treaty publications, there are certain independent treaty indexes. A quite
comprehensive listing of treaty indexes and texts of treaties is, rather surprisingly, that of the Los
Angeles Public Library (www.lapl.org/guides/find_treaty.html). For the main multilateral treaties
since 1856, there is Bowman and Harris, Multilateral Treaties, Index and Status and its cumulative
supplements (1984–, London, Butterworths), Rohn, World Treaty Index (2nd edn, 1984, ABC-Clio),
and Parry and Irwin, Index-Guide to Treaties (2nd edn, 1984, Dobbs Ferry,
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NY, Oceana). The annual index to Treaties and other International Acts Series (TIAS) can also be a
useful source.
For United Kingdom bilateral and multilateral treaties, there is Parry and Shepherd’s four-volume
Index of British Treaties 1101 to 1988 (1970 and 1991, London, HMSO). The United Kingdom
Treaty Series has annual indexes and quarterly Supplementary Lists of Ratifications, Accessions,
Withdrawals etc., that are not limited to acts by the United Kingdom. There is also I. Kavass (ed.),
US Treaty Index 1776–1990 (1988, Buffalo, NY, Hein & Co.)
Further reading on treaties
For succession to treaties, see pp. 393-400 below; and for hints on the drafting of treaties and on
final clauses, see Aust, pp. 332–60.
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6 Diplomatic privileges and immunities
Never has there been such a big embassy from here . . . I have six pages, four dwarfs, about twenty
liveried servants, who will all be splendidly dressed, five trumpeters, musicians, a pastor, surgeons,
physicians and a company of well-equipped soldiers.
1
Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 2nd edn,
Oxford, 1998
Oppenheim. Oppenheim’s International Law, 9th edn, London, 1992, pp. 1053–131
Satow’s Guide to Diplomatic Practice, 5th edn, London, 1979
There are now 183 states parties to the Vienna Convention on Diplomatic Relations 1961 (in this
chapter, ‘the Convention’). Even for the handful of non-parties, the Convention now represents an
authoritative statement of the law, and as such is relied on heavily by the International Court of
Justice.
2
Nevertheless, the manner in which the Convention is interpreted and applied can vary to
some degree from state to state. All members of diplomatic missions and their local legal advisers
therefore need to familiarise themselves with the practice and procedures of the receiving state,
which will often publish guidance.
(In this chapter, references to specific Articles are to those of the Convention, unless otherwise
indicated.)
Since diplomacy is the means by which a state conducts relations with other states, the
Convention plays a crucial role by regulating the establishment of permanent bilateral diplomatic
missions to represent the interests of the state and the protection of its nationals, and the privileges
and immunities accorded to missions and their staff to give them the
1. Franz Lefort, writing as nominal head of the 1697–8 Russian diplomatic mission to Western Europe in
which Peter the Great travelled incognito, quoted in L. Hughes, Russia in the Age of Peter the Great, New
Haven, 1998, p. 23.
2. Case Concerning US Diplomatic and Consular Staff in Tehran (USA v. Iran), ICJ Reports (1980), p. 3,
paras. 45–55; 61 ILR 502.