The depositary and the registration of treaties
The documents by which States express their consent to be bound by a treaty (instruments of ratification, acceptance etc.) are kept by an organ designated by the respective treaties, the "depositary". His tasks are enumerated in in Article 77 of the Vienna Convention and can be compared to those of notary public in the context of civil law.
The Director General of the International Atomic Energy Agency (IAEA) or the Secretary General of the United Nations are examples of such organs who act, inter alia, as depositaries of various conventions; since 1945 more than 500 multilateral treaties have been deposited with the latter. Nevertheless, this task can also be conferred upon a government as in the case of the Swiss Federal Council which acts as depositary for approximately 60 international conventions. 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 (Article 76 (2)).
According to Article 102 of the Charter of the United Nations no party to an international agreement which has not been registered it with the Secretariat of the United Nations may invoke that agreement before any organ of the United Nations and in particular not before the International Court of Justice.
Settlement of disputes
The Vienna Convention considers the invalidity of a treaty being claimed by one or more parties, but contested by other States Parties as the most likely case for a dispute settlement (Article 65 (3)). Since the Vienna Convention does not intend to be prejudicial to other dispute settlement mechanisms which might have been agreed upon between the States (Article 65 (4)), it expresses its preference for a dispute settlement through one of the means listed in Article 33 of the Charter of the United Nations, i.e.
- negotiation,
- enquiry,
- mediation,
- conciliation,
- arbitration,
- judicial settlement,
- resort to regional agencies or arrangements
- or other peaceful means of their own choice
In the special case of a dispute concerning the issue of a conflict between a treaty on one hand and a peremptory norm of general international law on the other (jus cogens, see Articles 53 and 64), the Vienna Convention, as a recourse of last resort, provides for the mandatory settlement of the dispute by the International Court of Justice. Of course, the States Parties can also submit such a dispute by common consent to arbitration (Article 66 (a)).
Any other dispute concerning the invalidity, the termination or the suspension of a treaty can, upon a request addressed to the Secretary-General of the United Nations, be submitted to the conciliation commission foreseen in the Annex to the Vienna Convention (Article 66 (b)). Three out of the five conciliators constituting the conciliation commission must be chosen by the parties from a list held by the Secretary-General. Until today, the conciliation commission has not entered into function.
