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Protocol
Glossary of the Second Optional Protocol
Article by Pierre Désert published on June 25th, 2008From "Acceptance" to "Treaty", discover the vocabulary of international law and get a clearer picture of the Second Optional Protocol.
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Acceptance/approval/ratification
Ratification, acceptance and approval all refer to the act, undertaken on the international scene, whereby a State establishes its consent to be bound by a treaty.
Ratification, acceptance or approval of an international treaty indicates a State’s commitment to undertake the obligations under that treaty to the international community. There is no standard process for the adoption of an instrument of ratification, it all depends on the domestic constitutional dispositions: generally, either the legislative or the executive branch is competent to do so.
See articles 2(1)(b), 11, 14 and 16 of the Vienna Convention.
See also: accession, State Party, signature.
Accession
Accession is the act whereby a State that has not signed a treaty expresses its consent to become a party to that treaty by depositing an “instrument of accession”. Accession has the same legal effect as ratification, acceptance or approval. Accession is generally employed by States wishing to express their consent to be bound by a treaty where the deadline for signature has passed.
The Second optional Protocol to the ICCPR provides for the possibility of accession (Art. 7§3)
See articles 2(1)(b) and 15 of the Vienna Convention.
See also: Ratification/acceptance/approval, State Party, signature.
Denunciation/Withdrawal
Denunciation, like withdrawal, in International Treaty Law is an act whereby a State expresses its will to put an end to its obligations regarding this particular treaty. Some international conventions provide for a possibility of denunciation (e.g. Article 58 of the European Convention on Human Rights).
If the treaty remains silent on denunciation or withdrawal, it is presumed to be impossible. This presumption can be overthrown if it is proved that denunciation was admitted by the parties and if it is not incompatible with the object and purpose of the treaty.
The Human Rights Committee, the UN body in charge of the monitoring of the International Covenant on Civil and Political Rights and of its two Protocols, considered in its General Comment No. 26 (December 8th 1997) that the Covenant “is not the type of treaty which, by its nature, implies a right of denunciation”. Thus it is the same for the two Protocols, which are a continuation of the Covenant.
See Article 58 of the Vienna Convention.
Declaration
Interpretative declaration
An interpretative declaration is a declaration by a State as to its understanding of some legal matter covered by a treaty or its interpretation of a particular provision. Unlike reservations, declarations merely clarify a State’s position and do not purport to exclude or modify the legal effect of a treaty.
The Secretary-General, as depositary, pays specific attention to declarations to ensure that they do not amount to reservations.
Moldova, when it ratified the Second Optional Protocol to the ICCPR, made an interpretative declaration to define the territorial application of the Protocol: "Until the full re-establishment of the territorial integrity of the Republic of Moldova , the provisions of the Convention shall be applied only on the territory controlled effectively by the authorities of the Republic of Moldova."
Mandatory declaration
A mandatory declaration is a declaration specifically required by the treaty itself. Unlike an interpretative declaration, a mandatory declaration is binding on the State making it.
Optional declaration
An optional declaration is a declaration that a treaty specifically provides for, but does not require. Unlike an interpretative declaration, an optional declaration is binding on the State making it.
The declaration of acceptance of the competence of the Human Rights Committee under Article 41 ICCPR to receive inter-States complaints is an optional declaration, made so far by 48 States.
Entry into force
Definitive entry into force
Entry into force of a treaty is the moment in time when a treaty becomes legally binding on the parties to the treaty. The provisions of the treaty determine the moment of its entry into force. This may be a date specified in the treaty or a date on which a specified number of ratifications, approvals, acceptances or accessions have been deposited with the depositary.
The Second Optional Protocol provides in its Article 8§1 that it shall enter into force three months after the deposit of the tenth instrument of ratification. It entered into force on July 11th, three months after the deposit of the Spanish instrument, Spain being the tenth State party.
Entry into force for a State
A treaty that is already applicable may enter into force in a manner specified in it for a State or international organization that expresses its consent to be bound by it.
As for the Second Optional Protocol, the entry into force takes place three months after the deposit of the instrument of ratification. (Article 8§2)
See Article 24 Vienna Convention.
See also: ratification/acceptance/approval, State Party, signature
Human Rights Committee
The Human Rights Committee is a body of eighteen independent experts that monitors the implementation of the International Covenant on Civil and Political Rights by its State parties.
All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee examines each report and voices its concerns and recommendations to the State party under the form of "concluding observations”.
In addition to the reporting procedure, article 41 of the Covenant provides for the Committee to consider inter-state complaints. Furthermore, the First Optional Protocol to the Covenant gives the Committee competence to examine individual complaints with regard to alleged violations of the Covenant by States parties to the Protocol.
The full competence of the Committee extends to the Second Optional Protocol with regard to States who have accepted the Protocol.
The Committee meets in Geneva or New York and normally holds three sessions per year.
The Committee also publishes its interpretation of the content of human rights provisions, known as general comments on thematic issues or its methods of work. For example, General Comment No. 6 (1982) deals wit the right to life and General Comment No. 26 (1997) deals with the continuity of obligations and states that there is no possibility to denounce the ICCPR.
See: International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights (ICCPR)
The International Covenant on Civil and Political Rights is a treaty adopted by the United Nations General Assembly on December 16th 1966 that is considered as the extension of the 1948 Universal Declaration on Human Rights (UDHR). Along with the UDHR and the International Covenant on Economic, Social and Cultural Rights, it forms the “International Bill of Human Rights”. The ICCPR entered into force on March, 23rd 1976 and is to date ratified by 169 States.
Not only does the Covenant protect the right to life and the freedom from torture or any inhuman or degrading treatment or punishment, which are considered as the most fundamental and inviolable rights, it also protects rights and liberties in the criminal (right to a fair trial, human treatment of detainees, prohibition of imprisonment because of debts, etc), and civil fields (freedom of speech, conscience and religion, prohibition of discriminations of any kind, etc).
The Covenant and its two Protocols are monitored by the Human Rights Committee, a UN body in charge of scrutinising the periodic reports presented by the States parties (Article 40 ICCPR). It also examines complaints if the States have decided to accept the competence of the Human Rights Committee, for inter-States complaints by a declaration under Article 41 ICCPR, and for individual complaints by the ratification of the First Optional Protocol to the ICCPR.
See also: Protocol, Treaty
Protocol
A protocol has the same legal characteristics as a treaty. Generally, a protocol amends, supplements or clarifies a multilateral treaty.
The advantage of a protocol is that, while it is linked to the parent agreement, it can focus on a specific aspect of that agreement in greater detail.
The First Optional Protocol to the ICCPR was adopted by the United Nations General Assembly at the same moment as the Pact, on December 15th 1966. It provides for the possibility of individual complaints before the Human Rights Committee, enabling the individuals to complain about the violation of their rights which are guaranteed by the Covenant, to the Human Rights Committee. The Committee shall therefore act like a judicial body.
The Second Optional Protocol to the ICCPR is, like the First Optional Protocol, a treaty that completes the dispositions of the Covenant, particularly Article 6 of the ICCPR which deals with the right to life. The last paragraph of Article 6 of the ICCPR states that “nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.” It is as a complement to the ICCPR that the Protocol recognises the competence of the Human Rights Committee to receive the inter States complaints, if the States parties to the ICCPR have accepted this possibility.
See also: International Covenant on Civil and Political Rights, Treaty
Reservation
A reservation is a statement made by a State by which it purports to exclude or alter the legal effect of certain provisions of a treaty in their application to that State. A reservation may enable a State to participate in a multilateral treaty that it would otherwise be unable or unwilling to participate in.
States can make reservations to a treaty when they sign, ratify, accept, approve or accede to it. When a State makes a reservation upon signing, it must confirm the reservation upon ratification, acceptance or approval. Since a reservation purports to modify the legal obligations of a State, it must be signed by the Head of State, Head of Government or Minister for Foreign Affairs. Reservations cannot be contrary to the object and purpose of the treaty. Some treaties prohibit reservations or only permit specified reservations.
Reservations can be withdrawn at any time.
The Second Optional Protocol, in its article 2, specifies the type of reservation that the States can make: States parties can only make a reservation which “provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime”, only if such dispositions already exist in its domestic law. To date, only Azerbaijan, Brazil, Chile, Salvador and Greece have maintained such reservations. Cyprus, Malta and Spain used to have such reservations, but they withdrew them respectively in 2003, 2000 and 1998.
See articles 2(1)(d) and 19-23 of the Vienna Convention 1969.
Signature
Definitive signature (signature not subject to ratification)
Definitive signature occurs where a State expresses its consent to be bound by a treaty by signing the treaty without the need for ratification, acceptance or approval. A State may definitively sign a treaty only when the treaty so permits. A number of treaties deposited with the Secretary-General permit definitive signature.
The Second Optional Protocol doesn’t provide for the possibility of definitive signature.
See article 12 of the Vienna Convention 1969.
Simple signature (signature subject to ratification)
Simple signature applies to most multilateral treaties. This means that when a State signs the treaty, the signature is subject to ratification, acceptance or approval. The State has not expressed its consent to be bound by the treaty until it ratifies, accepts or approves it. Signature alone does not impose obligations on the State under the treaty. However, a State that signs a treaty is obliged to refrain, in good faith, from acts that would defeat the object and purpose of the treaty.
See articles 14 and 18 of the Vienna Convention 1969.
See also: acceptance/approval/ratification, accession, State Party
State Party
A party to a treaty is a State or other entity with treaty-making capacity that has expressed its consent to be bound by that treaty by an act of ratification, acceptance, approval or accession, where that treaty has entered into force for that particular State. This means that the State is bound by the treaty under international law.
See article 2(1)(g) of the Vienna Convention 1969.
See also: acceptance/approval/ratification, accession, signature
Treaty
Treaty is a generic term embracing all instruments binding under international law, regardless of their formal designation, concluded between two or more international juridical persons (States and/or international organizations with treaty-making capacity, like the UN).
The application of the term treaty, in the generic sense, signifies that the parties intend to create rights and obligations enforceable under international law.
The Vienna Convention 1969 defines a treaty as “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” (article 2(1)(a)).
No international rules exist as to when an international instrument should be entitled a treaty. However, the term treaty is usually employed for instruments of some gravity and solemnity.
See article 2(1)(a) of the Vienna Convention 1969, and generally Vienna Convention 1969 and Vienna Convention 1986
See also: acceptance/approval/ratification, accession, International Covenant on Civil and Political Rights, Protocol, signature, State Party.
Source: United Nations Treaty Handbook
The Vienna Convention referred to in this glossary is the 1969 Convention on the Law of Treaties.
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