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Colonial Clauses and Federal Clauses in United Nations Multilateral Instruments

Published online by Cambridge University Press:  20 April 2017

Yuen-li Liang
Yuen-li Liang*
Affiliation:
Associé of the , Institute of International Law. Acknowledgment is made to Mr. H. T. Liu, Legal Counselor in the Legal Department of the Secretariat of the United Nations, for assistance in the preparation of the notes.
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Extract

The question of including in an international multilateral instrument provisions defining the application of the instrument to the dependent territories of the contracting states has been a controversial subject in the United Nations. Such provisions, generally known as “colonial clauses,” may take one of three forms. They may provide for the optional application of an instrument to the dependent territories of the contracting states, so that the instrument does not apply to the dependent territories of any contracting state unless the latter chooses to extend the application of the instrument to all or any of its dependent territories. On the other hand, they may provide for the optional exclusion from the application of the instrument of the dependent territories of the contracting states, so that the instrument applies to the dependent territories unless a contracting state chooses to exclude from the application of the instrument all or any of its dependent territories. A third type of colonial clauses may provide for the automatic application of the instrument to the dependent territories of all contracting states. However, there are instruments, notably the Convention on the Privileges and Immunities of the United Nations, which do not contain any reference at all with respect to their application to dependent territories. In such cases, the general rule seems to be that, subject to express or implied provisions to the contrary, the instruments apply to all the territories of the contracting states, including their dependent territories. The following is an account of the developments in connection with several multilateral instruments considered by the General Assembly of the United Nations or concluded under the auspices of the United Nations.

Type
Notes on Legal Questions Concerning the United Nations
Information
American Journal of International Law , Volume 45 , Issue 1 , January 1951 , pp. 108 - 128
Copyright
Copyright © American Society of International Law 1951

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References

1 See McNair, The Law of Treaties, p. 77. Cf. Fawcett, , “Treaty Relations of British Overseas Territories,” British Year Book of International Law, Vol. 26 (1949), pp. 86–107 Google Scholar.

2 Previously, the General Assembly had, during the second part of its first session in 1946, approved the “Protocol amending the Agreements, Conventions and Protocols on Narcotic Drugs concluded at The Hague on 23 January 1912, at Geneva on 11 February 1925 and 19 February 1925 and 13 July 1931, at Bangkok on 27 November 1931 and at Geneva on 26 June 1936.” One of the conventions referred to in the protocol, namely, the Convention for the Suppression of Illicit Traffic in Dangerous Drugs, signed at Geneva, June 26, 1936, contained a colonial clause in Art. 18. This provided that any party may declare that “he does not assume any obligation in respect of all or any of his colonies, protectorates, overseas territories or territories under suzerainty or mandate,” and that any such party may subsequently extend the application of the convention to all or any such territories. No discussion, however, took place on this clause which was left intact.

3 The text of the Convention for the Suppression of the Traffic in Women and Children is found in 9 League of Nations Treaty Series (Art. 14), at p. 427. The text of the Convention for the Suppression of the Traffic in Women of Pull Age is found in 150 ibid. (Art. 10), at p. 441. The text of the International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications may be found in 27 ibid. (Art. 13), at p. 229.

4 Resolution of the Economic and Social Council No. 81 (V), adopted on Aug. 14, 1947. U.N. Doc. E/573, pp. 45-53; also Docs. A/372, A/372/Add.1.

5 The Soviet amendment is contained in U.N. Doc. A/C.3/165, par. 3, reproduced in General Assembly, 2nd Sess., Official Records, 3rd Committee, p. 238. For proceedings, see ibid., pp. 92, 93. The report of the 3rd Committee is U.N. Doc. A/412, General Assembly, 2nd Sees., Official Records, Plenary Meetings, Vol. II, pp. 1507-1509.

6 See Records of the 96th and 97th plenary meetings, General Assembly, 2nd Sess., Official Records, Plenary Meetings, pp. 340-355.

7 For text of convention, see 110 League of Nations Treaty Series (colonial application clause, Art. 11), at p. 189. Also reproduced in U.N. Doc. A/C.6/120.

8 U.N. Doc. E/577.

9 Resolution 114(IV), adopted at the 6th session of the Economic and Social Council, March 2, 1949. The draft resolution recommended to the General Assembly may be found in U.N. Doc. A/630, General Assembly, 3rd Sess., Pt. I, Official Records, Plenary Meetings, Annexes, pp. 101-102 ; the draft Protocol is in Doc. A/C.6/210.

10 U.N. Doc. A/C.6/250. The question was considered at the 88th, 90th and 91st meetings of the 6th Committee, Oct. 30, Nov. 3 and 4, 1948. General Assembly, 3rd Sess., Pt. I, Official Records, 6th Committee, pp. 263-272, 283-291.

11 The draft protocol was embodied in the Report of the 6th Committee, U.N. Doc. A/713, General Assembly, 3rd Sess., Pt. I, Official Records, Plenary Meetings, Annexes, pp. 336-341. For text of resolution 255(111) and draft protocol thereto annexed, see General Assembly, 3rd Sess., Pt. I, Official Records, Resolutions, pp. 160-164. For proceedings in the plenary meeting, see General Assembly, 3rd Sess., Pt. I, Official Records, Plenary Meetings, pp. 494–498.

12 The Ad Hoc Committee was composed of 7 members. For report of this Committee, including text of its draft, see U.N. Doc. E/794.

13 Secretary General’s draft, U.N. Doc. E/447; United States draft, Doc. E/623; French draft, Doc. E/623/Add.1.

14 For proceedings, see General Assembly, 3rd Sess., Pt. I, Official Records, 6th Committee, 107th and 108th meetings, Oct. 15, 16, 1948, pp. 471-479.

15 U.N. Doc. A/C.6/236, penultimate paragraph.

16 U.N. Doc. A/C.6/264.

17 U.N. Doc. A/C.6/633.

18 The texts of the resolutions and draft convention adopted by the 6th Committee may be found in the Report of the Committee, U.N. Docs. A/760 and A/760/Corr. 2, General Assembly, 3rd Sess., Pt. I, Official Records, Plenary Meetings, Annexes, pp. 494-504. The colonial clause originally proposed by the United Kingdom became Art. XII in the draft convention. The draft resolution originally proposed by Iran became resolution “C”.

19 General Assembly, 3rd Sess., Pt. I, Official Records, Plenary Meetings, 178th and 179th meetings, pp. 814-852.

20 The Soviet amendment is in U.N. Doc. A/766, par. 5, General Assembly, 3rd Sess., Pt. I, Official Records, Plenary Meetings, Annexes, p. 518. Por final text of resolution 260(111) and convention, see General Assembly, 3rd Sess., Pt. I, Official Records, Resolutions, pp. 174-178 ; see also Supplement to this Journal, p. 7.

21 The texts of these Agreements and Convention are reproduced in U.N. Doe. A/639/Rev. 1, General Assembly, 3rd Sess., Pt. I, Official Records, Plenary Meetings, Annexes, pp. 131-140. The Agreement for the Suppression of the White Slave Traffic contains no colonial application clause. The colonial clause in the Convention for the Suppression of the White Slave Traffic is in Art. 11, ibid., pp. 136-137 ; that in the Agreement for the Suppression of the Circulation of Obscene Publications is Art. 7, ibid., pp. 139-140.

22 The French proposal was made at the 99th meeting of the 5th session of the Economic and Social Council, July 29, 1947. See Economic and Social Council, 2nd Year, 5th Sess., Official Records, pp. 105-110. For text of resolution 155 (VII)D of the Economic and Social Council of Aug. 13, 1948, see Resolutions adopted by the Economic and Social Council, 7th Sess., 1948, pp. 32-36.

23 Discussed at the 111th meeting. See General Assembly, 3rd Sess., Pt. I, Official Records, 6th Committee, pp. 510-518. The French draft resolution is in TJ.N. Doc. A/C.6/266.

24 U.N. Doe. A/C.6/274.

25 The French, representative cited as evidence a letter from the Secretary General of the Trench Ministry of Foreign Affairs to the Secretary General of the United Nations, in which the former expressed agreement with the text of the draft protocols. General Assembly, 3rd Sess., Pt. I, Official Records, Annexes, pp. 129, 130.

26 For texts of resolution and draft protocols as adopted by the 6th Committee, see Report of the Committee, U.N. Doc. A/741, in General Assembly, 3rd Sess., Pt. I, Official Records, Plenary Meetings, Annexes, pp. 435-442.

27 General Assembly, 3rd Sess., Pt. I, Official Records, Plenary Meetings, 169th meeting, pp. 683-687. The votes on the Soviet amendments were 12 for, 24 against, with 15 abstentions; and 14 for, 24 against, with 14 abstentions.

28 Resolution 159 (VII) I, Aug. 3, 1948; see Resolutions adopted by the Economic and Social Council, 7th Sess., pp. 42-45.

29 For proceedings, see General Assembly, 3rd Sess., Pt. I, Official Records, 3rd Committee, 86th and 87th meetings, Sept. 29, 30, 1948, pp. 7-22. The Soviet proposal is in U.N. Doc. A/C.3/208, General Assembly, 3rd Sess., Pt. I, Official Records, 3rd Committee, p. 10.

30 The vote on the Soviet amendment was 17 for, 25 against, with 11 abstentions. That on the Economic and Social Council draft article, as amended by the proposal of Belgium, was 33 for, 8 against, with 12 abstentions.

31 U.N. Doc. A/C.3/210/Rev.1, General Assembly, 3rd Sess., Pt. I, Official Records, 3rd Committee, Annexes, p. 2. Por the draft resolution, see Report of the 3rd Committee, U.N. Docs. A/666, and Corr.1, General Assembly, 3rd Sess., Pt. I, Official Records, Plenary Meetings, Annexes, pp. 207-211.

32 General Assembly, 3rd Sess., Pt. I, Official Records, Plenary Meetings, 150th meeting, Oct. 8, 1948, pp. 348-355.

33 Resolution 211(III)A, with text of Protocol, may be found in General Assembly, 3rd Sess., Pt. I, Official Records, Resolutions, pp. 62-66. The colonial clause (Art. 8) reads as follows:

“Any State may, at the time of signature or the deposit of its formal instrument of acceptance or at any time thereafter, declare by notification addressed to the Secretary-General of the United Nations that the present Protocol shall extend to all or any of the territories for which it has international responsibility; and this Protocol shall extend to the territory or territories named in the notification as from the thirtieth day after the date of receipt of this notification by the Secretary-General of the United Nations.”

34 These were: (a) International Agreement of May 18, 1904, for the Suppression of the White Slave Traffic; (b) International Convention of May 4, 1910, for the Suppression of the White Slave Traffic; (c) International Convention of Sept. 30, 1921, for the Suppression of the Traffic in Women and Children; and (d) International Convention of Oct. 11, 1933, for the Suppression of the Traffic in Women of Full Age. ECOSOC Resolution 155(VII)E, Aug. 13, 1948.

35 U.N. Doc. E/1072.

36 Report of Social Commission, 4th Sess., U.N. Doc. E/1359, p. 34.

37 Resolution 243(IX)B, July 23, 1949, of the Economic and Social Council, U.N. Doc. E/1458.

38 U.N. Doc. A/C.3/L.10, General Assembly, 4th Sess., Official Records, 3rd Committee, Annexes, p. 23. The same amendments were proposed by the Soviet representative in the Social Commission but were rejected. See U.N. Doc. E/1359, pars. 19 and 20. For text of Art. 24 as adopted, see U.N. Doc. A/C.6/333. For proceedings of the 3rd Committee, see General Assembly, 4th Sess., Official Records, 3rd Committee, 246th-248th meetings, pp. 59-71.

39 Report of 3rd Committee of the General Assembly, U.N. Doc. A/1164.

40 For proceedings in the plenary meetings, see General Assembly, 4th Sess., Official Records, Plenary Meetings, 263rd and 264th meetings, Dec. 2, 1949, pp. 461-471. For final text of convention, see General Assembly, 4th Sess., Official Records, Resolutions, pp. 33-35 (Resolution 317 (IV)). The convention, according to Art. 28, supersedes the instruments enumerated in note 34.

41 Resolution 369 (IV), adopted at the 4th session, Dec. 3, 1949. General Assembly, 4th Sess., Official Records, Resolutions, pp. 65-66.

42 The conference is officially known as the “United Nations Conference on Declaration of Death of Missing Persons.” It was attended by representatives of thirty states.

43 Resolution 209(VIII), March 2, 1949, U.N. Doc. E/1220. The draft of the Ad Hoc Committee is in Doc. E/1368.

44 U.N. Doc. A/Conf.1/L. 13, par. 3. For proceedings, see U.N. Docs. A/Conf.1/SR. 9 and 10.

45 The vote was 8 to 7, with 6 abstentions. U.N. Doc. A/Conf.1/SR.10, p. 7.

46 Report of the Drafting Committee, U.N. Doc. A/Conf.1/7, p. 11.

47 The vote was 20 for, none against, with 1 abstention.

48 U.N. Doc. E/CN.4/AC.3/SB.8, p. 15.

49 U.N. Docs. E/CN.4/56, p. 13, and E/600, p. 29.

50 U.N. Doc. E/CN.4/95, p. 35.

51 Ibid., p. 36. See also U.N. Doc. E/800, p. 34, ECOSOC, 3rd Year, 7th Sess., Official Records, Supp. No. 2, p. 28.

52 ECOSOC, 4th Year, 9th Sess., Official Records, Supp. No. 10, p. 27.

53 Art. 44 of the first draft International Covenant on Human Eights, idem, 5th Year, 11th Sess., Supp. No. 5, pp. 21-22.

54 U.N. Doc. E/1849, p. 29. In addition to the repoTt of the Commission on Human Bights, the Council had before it a report by the Secretary General dealing with previous action taken by the United Nations in connection with federal and colonial clauses, U.N. Doc. E/1721.

55 U.N. Docs. A/C.3/SB.294-296 and 302

56 U.N. Doc. A/1559, p. 40.

57 U.N. Docs. A/1622 and A/P.V.317.

58 A classic example of the federal clause is that provided in the Constitution of the International Labor Organization, Art. 19, par. 7.

59 As to the background of the convention, see Section 6, supra.

60 The draft by the Secretariat (U.N. Doc. E/1072) did not contain a federal clause. U. S. proposal is in U.N. Doc. E/CN.5/115/Add.1. For proceedings in Social Commission, see U.N. Doc. E/CN.5/SB.76. See also Report of the 4th session of the Social Commission, U.N. Doc. E/1359, par. 22. For text of the draft by the Social Commission, see U.N. Doc. E/1458.

61 For proceedings of the Social Committee, see U.N. Doc. E/AC.7/SR.82, pp. 13, 14. The report of the Committee (U.N. Doc. E/1402) was considered by the Economic and Social Council at its 9th session, 1949; see U.N. Doc. E/SR.306. The draft was adopted by resolution 243 (IX) B, of the Council, ECOSOC, 9th Sess., Official Records, Resolutions, pp. 42-50.

62 U. S. proposal is in U.N. Doc. A/C.3/L.13, amendment to Art. 30, General Assembly, 4th Sess., Official Records, 3rd Committee, Annexes, pp. 24, 25. For proceedings in the 3rd Committee, see Official Records, 3rd Committee, Summary Records, p. 30; see also memorandum from 3rd Committee to 6th Committee, U.N. Doc. A/C.3/526, in Official Records, 3rd Committee, Annexes, pp. 18-22.

63 For proceedings of the 6th Committee, see General Assembly, 4th Sess., Official Records, 6th Committee, Summary Records, pp. 170, 321, 405-418. The report of the working group does not hear a document number and has not been distributed. Report of subcommittee, Sec. II, in U.N. Doc. A/C.6/L.88, Official Records, 6th Committee, Annexes, pp. 38-39. Joint amendment by India, Australia and Argentina is U.N. Doc. A/C.6/L.97, Official Records, 6th Committee, Summary Records, p. 414. For proceedings of the 3rd Committee, see Official Records, 3rd Committee, Summary Records, pp. 174, 175. The draft convention was adopted at the 264th plenary meeting; see Official Records, Plenary Meetings, Summary Records, p. 471.

64 U.N. Docs. E/CN.4/37, p. 6, and E/CN.4/56, p. 13.

65 Economic and Social Council, 3rd Year, 6th Sess., Official Records, Supp. No. 1, p. 29. An identical text was embodied in the draft Covenant considered at the third session of the Commission on Human Eights. U.N. Docs. E/CN.4/95, p. 35, and E/800, p. 34, ECOSOC, 3rd Year, 7th Sess., Official Records, Supp. No. 2, p. 27.

66 Economic and Social Council, 4th Year, 9th Sess., Official Records, Supp. No. 10, pp. 25-26; idem, 5th Year, 11th Sess., Supp. No. 5, pp. 20-21 (new Art. 43).

67 Resolution 303 (XI) I, U.N. Doc. E/1849, p. 29.

68 U.N. Docs. A/1620, and A/P.V.317.

69 See remarks of the United Kingdom representative at the 96th Plenary Meeting of the General Assembly. General Assembly, 2nd Sees., Official Records, Plenary Meetings, Vol. I, pp. 341-345. See also U.N. Doc. A/C.3/SB.294, p. 5.

70 General Assembly, 3rd Sess., Pt. I, Official Records, 6th Committee, Summary Records, p. 289. See also U.N. Doc. A/C.3/SB.294, p. 9.

71 General Assembly, 2nd Sess., Official Records, Plenary Meetings, Vol. I, p. 342.

72 General Assembly, 4th Sess., Official Records, 3rd Committee, Summary Records, p. 71.

73 General Assembly, 3rd Sess., Pt. I, Official Records, 6th Committee, Summary Records, p. 294.

74 General Assembly, 2nd Sess., Official Records, Plenary Meetings, p. 343. See also U.N. Doc. E/AC.7/SR.152, p. 12.

75 General Assembly, 2nd Sess., Official Records, Plenary Meetings, p. 347.

76 U.N. Doc. A/C.3/SR.294.

77 General Assembly, 2nd Sess., Official Records, Plenary Meetings, pp. 353, 354. See also idem, 5th Sess., Official Records, 3rd Committee, Summary Records, p. 160.

78 General Assembly, 3rd Sess., Pt. I, Official Records, 6th Committee, Summary Records, p. 264.

79 U.N. Doc. E/AC.7/SB.153. See also U. N. Doc. A/C.3/SR.294, p. 7.

80 General Assembly, 4th Sess., Official Records, 3rd Committee, Summary Records, pp. 60, 61; idem, 5th Sess., Official Records, 3rd Committee, Summary Records, p. 158.

81 General Assembly, 4th Sess., Official Records, 3rd Committee, Summary Records, p. 62; U.N. Doc. A/C.3/SB.294, p. 14.

82 U.N. Doc. E/AC.7/SB.151, pp. 14-15.

83 General Assembly, 4th Sess., Official Records, 6th Committee, Summary Records, p. 405.

84 Ibid., p. 406.

85 U.N. Docs. E/AC.7/SE.151 and 152; A/C.3/SR.292 and 293.