Letter to WCO on Kyoto Convention Revisions--September 11, 1998

Technical Comments to the World Customs Organization on the Amendment Procedures Concerning the Draft Revised Kyoto Convention

Joint Industry Group
International Agreements Committee

September 1998

The Permanent Technical Committee ("PTC") of the World Customs Organization ("WCO") is considering substantial revisions to the body of and annexes to the International Convention on Simplification and Harmonization of Customs Procedures ("Kyoto Convention"). Most significantly, the PTC and the Kyoto Working Group ("KWG") is considering the adoption of a binding General Annex to supercede in part the existing thirty-one annexes, adherence to which is voluntary.

Article 8 of the Convention provides that "any Annex . . . to which a Contracting Party is bound shall be construed to be an integral part of the Convention." Thus, the amendment provisions found in the body of the Convention should be generally applicable to the amendment of annexes.

It appears that the PTC intends to have the Contracting Parties adopt the new General Annex using the current Article 15 amendment procedure. However, this approach appears to be explicitly disallowed by the commentary to Article 7, which states in pertinent part: "[T]he insertion of a new Annex is not to be regarded as an amendment to the Convention. Provision for such insertions, which is made in Article 6, paragraph 1, cannot, therefore, be made by the amendment procedure prescribed in Article 15 or 16."¹ The Convention does not state whether the notes in the commentary are intended to have binding force; at the very least, the Commentary should be regarded as reflecting the intent of the original drafters and should therefore be viewed as at least persuasive. Practically speaking, if all Contracting Parties wished to proceed in this manner, and no Contracting Party would object, then there should be no difficulty. But the legal uncertainty inherent in this course of action would provide any Contracting Party that was not completely satisfied with the revised Convention to raise procedural objections and prevent the completion of work on the revisions. Moreover, the inappropriate use of the Article 15 amendment procedure might raise questions and create difficulties for Contracting Parties in meeting their respective domestic approval requirements.

Based on our understanding of the Convention, there appear to be at least three other options for the adoption of the General Annex. First, the existing Article 16 process for the "amendment" of annexes might be employed. Second, the Contracting Parties may denounce the existing thirty-one annexes, amend current Article 15 to permit its use in the creation of new annexes, and then adopt the proposed General Annex using the amended Article 15. Third, the Contracting Parties may enter into an "amending agreement" in a manner consistent with customary international law as reflected in Part IV of the Vienna Convention on the Law of Treaties.

Of these options, the second or third option would appear to serve well the interests of the Contracting Parties.

1. Article 16 procedure for the amendment of annexes

Article 16(1) provides that "any Annex . . . may be modified by a decision of the Council." Unlike Article 15, Article 16 does not grant to the Contracting Parties a right of veto. Rather, it is a simplified procedure for the amendment of annexes, which the commentary regards as the "preferred [method] for the amendment of the provisions of the Annexes."

However, the Article 16 procedure does not appear to apply to the situation at hand and should be avoided. First, its commentary states that "the provisions in respect of which reservations are not permitted . . . can be amended only by the Article 15 procedure." The proposed General Annex, together with its Standards, must be accepted by all Contracting Parties without the option of entering reservations. Thus, the Article 16 procedure would not apply. Second, the proposed General Annex is not a "modifi[cation]" as that word is used in Article 16; instead, it involves the introduction of a new annex. Third, as discussed above, the commentary to Article 7 explicitly disallows the adoption of a new annex using the Article 16 procedure. Finally, Article 16 has been deleted in the draft revised Convention, indicating that the PTC proposes to eliminate this procedure altogether.

2. Denunciation of the existing thirty-one annexes followed by the introduction of an amended Article 15 and adoption of the proposed General Annex using the amended Article 15

Alternatively, the Contracting Parties could denounce the existing thirty-one annexes under current Article 14, amend the existing Article 15, and then adopt the proposed General Annex using the amended Article 15.

(a) Denunciation of the existing thirty-one Annexes

Article 14(1)-(3) allows any Contracting Party to denounce the Convention, and Article 14(4) makes explicit what is already implicit in Article 8 -- that the denunciation procedures of Article 14(2)-(3) apply with equal force to annexes. Accordingly, the Contracting Parties may denounce the existing thirty-one annexes by notifying the Secretary General of the Council of such intention. The denunciation would then be effective six months after receipt of the written instrument by the Secretary General. Should the Contracting Parties choose to use this option, they should act as soon as possible to denounce the existing thirty-one annexes.

As different sets of Contracting Parties are bound by each existing annex, the PTC should consider attempting to streamline the process of denunciation. The best approach would be for all Contracting Parties to enter into a single Act of denunciation of all annexes to which they are parties. This would allow the WCO to assist the Contracting Parties to manage the subsequent process of meeting domestic approval requirements (if any). It would, however, require the cooperation of all Contracting Parties. In the alternative, each Contracting Party would proceed autonomously to denounce the annexes to which it is a party, on its own schedule and according to its own procedures. Although such a process would be technically sound, it could lead to rather chaotic results if some Contracting Parties had not completed their domestic procedures and were still bound to "old" annexes.

(b) Amendment of Article 15

The Contracting Parties could amend Article 15 to eliminate the restrictions on its use in the future for the creation of new annexes.

Judging from the documents provided to us, Article 15 has generated a great deal of debate within the PTC and KWG, especially regarding the tacit agreement provision found in paragraph six. In particular, the delegations from Australia, Canada, and the United States have expressed their concerns about the implications of the tacit amendment process; they assert that it provides them insufficient time to satisfy their domestic legislative approval requirements. In addition, the U.S. delegation suggested that the tacit amendment process be replaced by a requirement of affirmative approval.

In considering how to revise Article 15, the Contracting Parties will have many models from which to choose. Sir Ian Sinclair in his treatise on the Vienna Convention remarks that today’s multilateral treaties illustrate a wide variety of amendment clauses. These provisions vary dramatically in their complexity, ranging from straightforward provisions, such as those found in Articles 108-109 of U.N. Charter, to more complex provisions, such as those found in Article IX of the Convention on the Facilitation of International Maritime Traffic. The complexity of these clauses depends on the nature of the treaty or convention. For example, the amendment clauses of maritime treaties tend to be quite detailed because they contain technical annexes that require continual updating. The Intergovernmental Marine Consultative Organization ("IMCO"), which is a specialized U.N. agency devoted to activities in the maritime field, recognized this problem in studies it conducted between 1972 and 1973. Accordingly, IMCO reached a compromise and decided that the most efficacious approach for the amendment of conventions with technical annexes was to have two separate amendment procedures: a tacit acceptance procedure for amending technical annexes, and an affirmative action procedure for amending articles contained in the body of the convention.

One commentator notes that tacit acceptance is "objectionable precisely because its application increases the chances that a State will be bound by default and thereby denied the discretionary use of its treaty-making powers." However, realizing the importance of ensuring that all states are bound by the same rules, the parties were able to reach a compromise through the adoption of the two-tier system. Consequently, technical annexes could enter into force without the excessive delay inherent in the explicit amendment procedure. Regarding the issue of insufficient time for certain states’ legislative approval requirements, the commentator recommends that the time period provided for in the tacit acceptance provision might be extended to take into account the varying legislative practices of each state.

This approach has proved to be quite successful and has been employed in many of today’s multilateral treaties. Attached is a copy of Article 16 of the International Convention for the Prevention of Pollution from Ships, which uses this two-tier amendment system. In particular, note the differences between paragraph (f)(i) (amendment to an Article of the Convention) and paragraph (f)(ii) (amendment to an Annex to the Convention). Article 16(f)(i) retains an explicit acceptance procedure for amendments to the body of the Convention, whereas Article 16(f)(ii) uses a tacit agreement procedure. Also attached you will find a copy of draft tacit acceptance provisions suggested by the IMCO.

Likewise, the Contracting Parties to the Kyoto Convention might consider retaining the tacit amendment procedure for amendments to its Annexes while adopting an explicit acceptance procedure for amendments to the body of the Convention. Moreover, the tacit amendment procedure might be limited only to certain chapters of the General Annex; for example, Chapters 1 (General Principles) and 2 (Definitions) of the proposed General Annex might be considered too fundamental to be subject to amendment by tacit acceptance. In contrast, Chapter 7, dealing with the application of information technology, is ideal for amendment by tacit acceptance; the ever-changing nature of information technology necessitates that amendments be made by an accelerated and simple amendment procedure.

Upon the completion of amendments to Article 15 (and the remainder of the body of the Convention) and their entry into force, the Contracting Parties could adopt the proposed General Annex together with its ten chapters and any Specific Annexes that the Contracting Parties agree to under the amended Convention.

3. "Amending agreement" pursuant to Part IV of the Vienna Convention on the Law of Treaties

Unlike the options discussed above, this option would not use the provisions of Kyoto Convention to terminate the existing thirty-one Annexes and adopt the proposed General Annex. Rather, this alternative uses the residuary amendment rules contained in Articles 39-40 of the Vienna Convention. Article 39 of the Vienna Convention provides: "A treaty may be amended by agreement between the parties." Further, Article 40(1) states: "Unless the treaty provides otherwise, the amendment of multilateral treaties shall be governed by [the amendment rules contained in the Vienna Convention]."

Thus, the first issue is whether the existing Kyoto Convention contains adequate amendment provisions. If this question is answered in the negative, the Contracting Parties may use the residuary amendment rules of the Vienna Convention.

Even if there are express provisions concerning some detailed procedure to amend a treaty, the parties can always, by a unanimous decision, deviate from these and amend the treaty by an amending agreement. This is the "unanimity rule" of international law as recognized by the International Court of Justice in the International Status of South-West Africa case. In that case the Court noted that Contracting States were free to replace the League of Nations with the United Nations without having to use the amendment provisions of the Covenant of the League of Nations. The Court reasoned that it was "a general principle of law recognised by civilised nations" that "[a]ny legal position, or system of legal relationships, can be brought to an end by the consent of all persons having legal right or interests which might be affected by their termination." The rule is now codified in Article 40(4) of the Vienna Convention, which provides: "The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement." Note that Article 39, by reference to Article 9(2), only requires a two-thirds majority for the adoption of an amended text. However, entry into force of the amended text would require the consent of all states, unless otherwise agreed.

Assuming the Contracting Parties choose to enter into an amending agreement for the adoption of the proposed General Annex, the second question is how the parties should devise an amending agreement that will also supersede the current annexes. Failure to terminate the existing annexes would result in confusion and uncertainty; the existing annexes would continue in effect alongside the new General Annex. "To avoid such an outcome, it should be provided . . . that after each amendment the initial convention disappears and only the amended convention is left; the only choice for the parties would be either to be freed of all their obligations under the convention or to accept the amended convention." This is the system used in certain postal conventions and by the United Nations Charter.

As demonstrated above, the existing Kyoto Convention does not contain adequate rules for the termination of the existing annexes and concurrent adoption of the proposed General Annex. Accordingly, the Contracting Parties may choose to consider the possibility of entering into an amending agreement that would expressly state that the new General Annex replaces the existing annexes. As to the legal form of such agreement, Reuter explains that "any form in general could be resorted to. A treaty may be modified by another written treaty emanating from lower-ranking organs or by an agreement in a less solemn form. According to the [ILC], a written treaty may even be modified by a treaty based on oral or tacit consent." The key is that all Contracting Parties participate.

CONCLUSION

As between the third and fourth alternatives, the deciding factor is one of time constraints. If there are no fixed deadlines for the adoption of the new body of the Convention and General Annex, the preferred approach would be for the Contracting Parties to denounce the existing annexes, amend existing Article 15, and then adopt the proposed General Annex using the amended Article 15. This approach has the advantage of using, for the most part, the existing provisions of the Kyoto Convention without resort to the residuary rules of The Vienna Convention. The only disadvantage with this approach is that it will take some time to complete. First the body of the Convention would have to be adopted and ratified; only then, and after some delay, could the General Annex be adopted and subsequently ratified.

In the alternative, the Contracting Parties may choose to enter into an amending agreement. In addition to providing legal certainty, this approach has the added advantage of being completed within a shorter time frame. Rather than amending the whole Convention first and then adopting the General Annex, this option allows the Contracting Parties to accomplish both goals simultaneously.

Endnotes

¹ Emphasis added.
² Article 31(1) of the Vienna Convention provides: "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."
³ May 23, 1969, 8 I.L.M. 679 [hereinafter "Vienna Convention"].
⁴ As used in treaty law, the term "modification" generally refers to an agreement to amend a treaty or convention only as between certain of the contracting parties. After a modification, there are two categories of parties to the treaty: (1) those states that are parties only to the unamended treaty, and (2) those that are parties both to the treaty and to the amending agreement. See P. Reuter, Introduction to the Law of Treaties 134 & n.204 (2d ed. 1995); T.O. Elias, The Modern Law of Treaties 91, 95 (1974). It is important to note the difference between "amendment" and "modification." In contrast, the term "amendment" generally involves altering the terms of a treaty or convention as between all the parties: the treaty or convention as amended binds all contracting parties. Id. For treaties whose purpose is the harmonization of laws, such as the Kyoto Convention, "modification" should be avoided in order to ensure that all the contracting parties are governed by the same rules.
⁵ This could be accomplished when amendments to the body of the Convention are made.
⁶ Article 14(2).
⁷ Article 14(3).
⁸ For example, the next meeting of the KWG and the PTC is set for 14-25 September. By then, all Contracting Parties could agree to denounce the existing annexes and notify the Secretary General of their intention. This would mean that the existing annexes could be terminated by the middle of March 1999, assuming domestic requirements could be met by that time.
⁹ Doc. 42.310 E at 17. ¹⁰ Id.
¹¹ I. Sinclair, The Vienna Convention on the Law of Treaties 106 n.99 (2d ed. 1984); see also H. Blix & J.H. Emerson, The Treaty Maker's Handbook, 225-39 (1973) (this is a superb source for sample treaty clauses, some of which are attached).
¹² Convention on the Facilitation of International Maritime Traffic, April 9, 1965, 18 U.S.T. 411, 591 U.N.T.S. 265.
¹³Now called the International Maritime Organization ("IMO").
¹⁴ See A.O. Adede, Amendment Procedures for Conventions with Technical Annexes: The IMCO Experience, 17 Va. J. Int'l L. 201 (1977).
¹⁵ Id. at 202.
¹⁶ Id. at 207.
¹⁷ Id. at 209.
¹⁸ Id.
¹⁹ Id. at 207-08.
²⁰ Id. at 214-15.
²¹ Nov. 2, 1973, 12 I.L.M. 1319 (1973). The annexes to this Convention have been amended ten times since 1987 using the tacit acceptance procedure.
²² The existing and proposed Article 15 already contains a tacit amendment procedure. However, that procedure is not limited to amendments of the annexes. See Doc. 42.296E at 52-54.
²³ "Residuary rules" apply only in the absence of provisions in the Treaty or Convention sought to be amended.
²⁴ 1950 I.C.J. 128 (July 11).
²⁵ Id. at 167-68 (separate opinion of Judge Read).
²⁶ Id. at 167. The International Law Commission ("ILC"), responsible for drafting The Vienna Convention, has also endorsed this rule of law. In its final report in 1966, the ILC opined that what has been established by a consensual act, can be undone by another consensual act, however different in form from the first one. Y.I.L.C. 1966, vol. II. See also I. Detter, Essays on the Law of Treaties 73 (1967); Reuter, supra, at 137 & n.211.
²⁷ Although Article 40 is silent on entry into force, Article 39 states that Article 40 is governed by the rules set out in Part II of The Vienna Convention relating to the conclusion and entry into force of treaties. Article 24(2), which is found in Part II, provides that unless otherwise agreed, "a treaty enters into force as soon as consent to be bound by the treaty has been established for all negotiating States." See also Reuter, supra, at 135. Reuter, supra, at 135 & n.205.
²⁸ Reuter, supra, at 135 & n.205..
²⁹See The United Nations Secretariat's Handbook of Final Clauses 135 (ST/LEG/6).
³⁰ Id. at 137 & n.211.