The Government of Canada appreciates the work of the Committee of the Rights of the Child in monitoring States Parties’ implementation of the Convention on the Rights of [the] Child (the “Convention”) and the work on this General Comment. Canada wishes to thank the Committee for the opportunity to comment on Draft [revised] General Comment No. 10 on juvenile justice. Canada welcomes constructive dialogue and engagement between the United Nations treaty bodies and States Parties on issues such as the content of General Comments.

Canada recognizes the independence and impartiality of the Committee, and its ability to issue General Comments. Canada reiterates, however, that General Comments are capable only of providing guidance to States Parties in their interpretation of their obligations. The Comments do not create binding legal obligations in and of themselves, nor do they reflect an interpretation of the Covenant that is necessarily agreed upon by States Parties.

The specific comments below are not exhaustive, but rather highlight areas for potential further development and identify some areas of concern. Silence in respect of other areas does not constitute acquiescence in the Committee’s interpretation of States’ obligations.

Canada would suggest using non-gendered language where possible (for example, using the terms “they/them/their” instead of “he/she”, “his/her(s)” and “him/her”. Using binary gendered language excludes children who identify outside these binary distinctions.

As a general comment, the Committee may wish to add a brief discussion about the use of release and sentencing conditions for young offenders. As a best practice, States should curtail the use of release and sentencing conditions to ensure these are only imposed for valid criminal law purposes (such as securing a young person’s attendance, or protection of the public) and not for social welfare purposes. The overuse of conditions risks contributing to an increasing number of young persons (particularly those from vulnerable populations) facing the criminal justice system for behavior that in and of itself would not be criminal in nature.

With regards to the right to education (Article 28), paragraph 9 of the Draft General Comment discusses how youth in conflict with the law face discrimination in the education system. Many youth in conflict with the law are deprived of education through suspension and expulsion from school, or other forms of school exclusion. States should take steps to avoid denying access to education and should ensure that all actors in the justice system recognize the education and skills training needs of youth in conflict with the law.

Comments on Specific Paragraphs

1. 1. Regarding the first sentence of paragraph 8, Canada notes that “treated equally” can be interpreted as “everyone must be treated the same”. A youth justice system that ensure[s] everyone was treated the same could in fact lead to further discrimination for some youth, as it would not recognize the diversity of youth, their needs and the interventions/supports that may best fit their needs. Canada would therefore rephrase paragraph 8 as follows: “States parties have to take all necessary measures to respond to the diverse situations and needs of individual children in conflict with the law.”

2. 2. In the final sentence of paragraph 8, we recommend clarifying that any redress, remedies and compensation would be “for victims”.

3. 3. Canada cautions against the broader implications of paragraph 10, which recommends ensuring “any conduct not considered an offence or not penalized if committed by an adult” not be “considered an offence and not penalized if committed by a young person” in order to reduce future stigmatization/ discrimination against the child. The Draft General Comment cites vagrancy, truancy, and runaways. Canada agrees that this rule should be restricted to status offences and should not apply to measures that protect the well-being of children. Canada would therefore rephrase paragraph 10 as follows: “The Committee recommends that States Parties establish an equal treatment under the law for children and adults by abolishing status offences that do not serve to protect children.”

4. 4. In paragraph 18, Canada agrees that parents have the responsibility to provide their child with appropriate direction and guidance in the exercise of their rights, as recognized in the Convention. Canada suggests the addition of “parents and legal guardians” to recognize that children may not always benefit from the presence of parents in their lives.

5. 5. Canada would highlight the importance of targeted programs for racialized or Indigenous groups, who are disproportionately represented in the justice system. Canada would therefore rephrase paragraph 19 as follows: “Prevention programmes should focus on support for families in particular those in vulnerable situations or belonging to a minority group, including Indigenous families, the involvement of schools in teaching basic values, and extending special care and attention to young persons at risk.”

6. 6. With regard to paragraph 44, Canada agrees that a birth certificate should be provided free of charge in circumstances where there is an inability to pay. There is a cost to the government of producing birth certificates, and in many cases it is reasonable to charge a nominal fee for the provision or replacement of a birth certificate. Canada would therefore rephrase paragraph 44 as follows: “A child who does not have a birth certificate must be provided with one promptly and at a reasonable cost, or where the child does not have an ability to pay, free of charge, whenever it is required to prove age.”

7. 7. With regard to paragraph 80, while Canada agrees with the automatic removal of youth criminal records, it is not necessarily feasible to remove such records upon a child reaching the age of 18. There are instances where records may need to be kept beyond the age of 18, such as when a young person is still serving a sentence beyond the age of 18. In some cases, records may also be relevant for deciding on appropriate diversions or sentences in incidents of subsequent offending.

8. 8. With regard to paragraph 81, Canada disagrees with the recommendation that youth justice court proceedings be conducted behind closed doors. Allowing members of the public to observe youth court proceedings is important and aligned with the notion that court proceedings should be open and transparent. Canada also notes that freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds, is recognized as a human rights (sic) at international law. That being said, consistent with article 40 of the Convention, Canada agrees that children should have their privacy fully respected at all stages of the proceedings. Canada recommends that the Committee re-examine its recommendation at paragraph 81 in order to find a better balance between the right of the public to information and the privacy rights of young persons who come into contact with the law.

9. 9. Canada would rephrase paragraph 87 to reflect that States may have multiple different cultures and traditions: “As far as non-custodial measures are concerned, there is a wide range of experience with the use and implementation of such measures. States parties should benefit from this experience, and develop and implement such measures by adjusting them to their own cultures and traditions.”

10. 10. Canada recommends that paragraph 92 more closely mirror Article 37(a) of the Convention. It is Canada’s position that, in some exceptional circumstances, life sentences with possibility of parole for older adolescents are both appropriate and consistent with the Convention. Canada would therefore rephrase paragraph 92 as follows: “Given the likelihood that life imprisonment of a child will make it very difficult, if not impossible, to achieve the aims of juvenile justice despite the possibility of release, the Committee strongly recommends States parties to abolish all forms of life imprisonment without eligibility for parole for offences committed by persons who were under the age of 18 at the time of commission of the offence.”

11. 11. In paragraph 101, Canada would be hesitant to specify an age below which deprivation of liberty could not be used. While we agree that in all cases the deprivation of liberty should only be used as a measure of last resort, it is our view that circumstances can arise where deprivation of liberty is required, even in cases involving young persons under 16, such as where deprivation of liberty may be necessary in order to ensure public safety. Canada would therefore rephrase paragraph 101 as follows: “The Committee encourages the State parties to fix an age limit for the use of deprivation of liberty and recommends that no child in conflict with the law below the age of 16 years old be deprived of liberty or create a presumption against the use of deprivation of liberty, for any child in conflict with the law below the age of 16 years old, unless there are legitimate public safety concerns, either at the pre-trial or post-trial stage.”

12. 12. In paragraph 108, it is unclear what is meant by “close, direct, and continuous control”. Canada notes that situations can arise whereby the restraint of a child will not always be supervised by a medical or psychological professional. For example, in a group home setting, a child who is being violent may need to be restrained by on-site staff that is trained in conflict de-escalation techniques, but are not medical or psychological professionals. Canada understands that certain restraints may need to be exercised in emergency situations. It is not necessarily feasible to have medical and psychological personnel providing constant and continuous oversight. Canada agrees that staff should be trained and that failures to observe standards should be investigated and addressed.

13. 13. Increased use of restorative justice and Indigenous justice could serve to reduce reliance on the formal justice system and on incarceration for young people, which is likely to be beneficial. Adding recognition of customary justice systems is also broadly consistent with Article 30. Canada would therefore rephrase paragraph 115 as follows:

    “Reconciling custom with state justice may pose difficulties for adherence to human rights standards in the formal justice system, but ways should be found to infuse the principles of the Convention into customary law justice mechanisms. Restorative justice responses are likely to be achievable through customary justice systems, and may provide opportunities for learning that can benefit the formal juvenile justice system. In countries where customary justice systems are used by communities, interventions using such systems should be included in all strategies for holistic reform; strategies and reforms should be designed for specific contexts and the process must be driven by national actors. Further, recognition of customary justice systems can contribute to increased respect for the traditions of Indigenous societies, which could have benefits for children from these societies.”

Conclusion

1. 14. In conclusion, Canada reiterates its appreciation of the opportunity to review the Draft General Comment, and more generally its support for the work of the Committee. Canada avails itself of the opportunity to renew to the Committee the assurances of its highest consideration.

What are the changes to the state-to-state dispute settlement process?

• • Changes were made to the provisions on creating arbitral panels to remove the requirement of involvement by the Commission of Minsters.

• • This eliminates the possibility that a country could block the creation of an arbitral panel by refusing to engage in a Commission meeting or refusing to join consensus on the establishment of the panel.

• • Other changes were made in the panel creation stage so that panelists can be selected from a roster (that the Parties are required to establish before the treaty enters into force) even if a party refuses to cooperate. For example if a party does not pick a panelist when they are required to, the other party can do so.

• • An additional provision has also been added to provide direction on the rules of procedure clarify how certain evidentiary questions will be addressed before panels.

How can a Party block the formation of a panel?

• • The CUSMA outcome carried forward the dispute settlement process of the NAFTA.

• • Under both agreements, in order to appoint a dispute settlement panel, after consultations at the officials level, the FTA Commission must first convene to consider the issue.

• • If one Party refuses a meeting of the Commission a panel can not be created, thus effectively blocking panel formation.

• • The new changes will remove the FTA Commission from the process and allow a panel to be created on request of the complaining party after the consultations stage at the officials level.

• • These new measures will improve the effectiveness of dispute settlement and are very much in line with Canada’s objectives in the renegotiation of NAFTA.

Why weren’t the issues with the Commission under NAFTA addressed in CUSMA?

• • Canada made proposals to improve the overall operation of the dispute settlement process as a part of the NAFTA modernization process.

• • We are pleased that the changes we are now making to the new NAFTA will improve the effectiveness of the dispute settlement mechanism to the benefit of all three parties.

What is the relevance of the new requirements related to the rules of procedure?

• • The new guidance on the rules of procedure provide greater clarity on procedures regarding the operation of panel hearings, thus ensuring additional flexibility for the Parties.

• • These new procedures may be particularly useful in the context of disputes relating to labour obligations, since issues such as the admissibility of anonymous testimony was particularly at issue in a case related to labour obligations that the United States brought against Guatemala.

I. Summary

To mark the 50th anniversary of the Vienna Convention on the Law of Treaties (VCLT or the Convention) on Thursday, May 23, 2019, Canada and Colombia partnered to organize several events in New York City. The proceedings included a high-level event at the United Nations (UN) Headquarters with keynote addresses by UN, Canadian, and Colombian officials. Afternoon technical sessions included a panel discussion on the future of the VCLT; a presentation by the UN Office of Legal Affairs, Treaty Section; and a series of four Roundtable Discussions with treaty experts and practitioners.

II. High-Level Event with Keynote Addresses

Invited speakers included: Miguel de Serpa Soares, Under-Secretary-General [USG] for Legal Affairs and UN Legal Counsel, representing the Secretary-General; Alejandra Valencia Gärtner, Director International Legal Affairs, Ministry of Foreign Affairs of Colombia; [and] Olufemi Elias, Assistant Secretary-General [ASG] and Registrar of the UN International Residual Mechanism for Criminal Tribunals. …

(i) The Convention Today and Role as Depositary

USG Soares noted that most of the VCLT’s provisions are widely regarded as customary international law. The Convention establishes a versatile regime of flexible residual rules, which are relied upon in treaty-making. The VCLT reserves its role to those situations where States have not agreed otherwise. But, its flexibility and residual nature are among its strengths that have kept the VCLT vital 50 years after its adoption.

USG Soares stated that the Office of Legal Affairs (OLA) refers to the VCLT at all stages of the treaty-making process, from negotiation to adoption, and later when called on for the interpretation and application of treaties. The VCLT has also codified the obligation contained in the UN Charter for all States to submit to the Secretariat of the UN their treaties in force for registration and publication, and determines the Secretariat’s functions as the depositary of a treaty. The Secretariat’s registration and publication function, and the functions of the Secretary-General as depositary of over 600 multilateral treaties, are carried out by the OLA.

USG Soares noted that in 2018 around 1000 treaty actions were discharged by the OLA. Since the year 2000, 2,200 signatures, ratifications and similar actions have been undertaken by States in the context of the UN’s annual Treaty Event in relation to hundreds of treaties covering all facets of human existence: from protection of human rights and gender equality to environmental sustainability, disarmament, and the prevention of terrorism.

(ii) [Application in Latin American States]

… Ms. Gärtner highlighted, as a main source of concern for many Latin American States, the interplay between the Convention and these States’ internal regulations on negotiation, signature, and entry into force of treaties. For these States, international agreements may take several years to enter into force, and provisional application is uncommon or restricted. Ms. Gärtner speculated that these challenges may stem from Latin American States’ civil law traditions, which require them to issue codified statutes and follow strict legal procedures.

(iii) [Global Reach, Flexibility and Central Role of the VCLT]

… ASG Elias highlighted that while the VCLT is a crucial set of rules that covers all aspects of treaty-making, the VCLT does not cover all aspect of treaty law. He noted that the VCLT has remained untouched despite the fact the basic text was drafted over a period of 15 years more than 50 years ago. In his remarks, three main points were highlighted: (i) the global reach of the VCLT; (ii) the flexibility of the VCLT, and (iii) the central role played by treaties in relations between States.

Global Reach of the VCLT: ASG Elias noted that while most rules contained within the Convention were based on customary international law, some rules reflected the progressive development of international law (i.e., adoption, reservations, amendments to multilateral treaties, invalidity, termination, etc). ASG Elias stated that, over the last 50 years, many of these developments have become established, due in part to case law decided on the basis of the VCLT, even in some instances where neither party in a dispute were parties to the VCLT. As a result, the VCLT can be considered a unifier of international legal rules, which is significant in light of the fragmented nature of many aspect[s] of international law.

Flexibility of the VCLT: ASG Elias continued by stating that it would appear the VCLT is well equipped to deal with any challenges presented by contemporary relations and international law. The VCLT provides this flexibility, in part, by relying on the ordinary meaning of a treaty. Moreover, rules of production of full powers; authentication; means of expressing consent to be bound; entry into force, and amendments are also clarified. Residual issues appear only in the absence of an agreement.

Central Role Played by Treaties in Relations between States: ASG Elias noted that despite the proliferation of international norms, States will continue to be confronted with issues surrounding treaty interpretation. As a result, States will continue to rely on the VCLT as a common point of reference. This makes the VCLT as relevant today as 50 years ago. While a number of issues remain, such as objections to reservations (i.e., human rights); fundamental change of circumstances; rules of interpretation in articles 31–33; all the discussions acknowledge the essential features of the rules contained in the VCLT are the cornerstone of modern international law.

III. Technical Sessions: Second International Conference on Treaty Practice

Summary: Afternoon technical sessions, attended by treaty experts and practitioners from 30 countries and organizations, [were] held with a goal to contribute to an international legal order supported by clear treaty-making practices.

(i) Panel Discussion: The Future of the VCLT: A Basis for Cooperation or Source of Conflict? (Moderator: Gary Luton, Director, Treaty Law Division, Canada)

1. The VCLT as a Triptych for the Law of Treaties (Professor Duncan B. Hollis)Footnote ¹

Professor Hollis explored the idea of the VCLT as a “triptych” for the law of treaties. He did so for two reasons: First, the religious connotations of triptychs, given their presence in Christian, Islamic and Buddhist art, serves as a reminder of how much international lawyers have come to regard the VCLT as “received wisdom” – a document held in universally high regard and treated in many ways as sacrosanct. Second, as a triptych, the VCLT’s legacy may be imagined through three discrete images: “settlements”, “stumps”, and “semantics”.

… [I]n terms of “settlement”, Professor Hollis recalled just how much the VCLT settled outstanding issues (e.g., defining the treaty concept to include exchanges of notes, delineating the processes for its formation and termination). At the same time, looking across its provisions, there are also “stumps” – areas where the VCLT’s original vision (e.g., dispute settlement procedures, including conciliation provisions) never matured and now lie fallow. Third, the VCLT’s main image – its main legacy – may be in terms of “semantics”; establishing shared language and logics for not just all treaty lawyers, but all public international lawyers. Concepts like “object and purpose” and article 31 of the VCLT structure legal arguments, whether or not the participants opt to create their own treaty rules or turn to the VCLT by default. Professor Hollis concluded by predicting all three trend lines will continue – with future settlements, future stumps, and new iterations of semantics. …

2. The Politics of Treaty Conflict and the International Law Commission’s Project of International Law (Dr. Surabhi Ranganathan)Footnote ²

In her remarks, Dr. Ranganathan reflected on the context in which the VCLT was drafted. She suggested that looking back to the challenges that confronted the ILC, as it set about codifying and developing the law of treaties, is important for evaluating the VCLT’s success. She noted that in some ways similar to the present, that period was also one raising many questions about the durability of a rules-based international order (RBIO). The doubts were owed to the immediate past (i.e. the failure of the League of Nations), the context of the Cold War, and, with decolonization, the express articulation of third world disenchantment with international legal rules and institutions. The ILC faced many questions about the legitimacy and likely effectiveness of its codification project.

Dr. Ranganathan noted the dominant voices in the ILC who shared not just a liberal orientation — a belief that international relations should be founded on the rule of law — but also a constructivist sensibility. They took the view that the more intensely States might be brought to participate in a legal discourse — a practice of claim-making and justification in the idiom of the law — the more they would become habituated users and respecters of international law. This intuition not only leavened their overtly expressed anxieties about the impact that the failure of codification might have on their project of international law, it also afforded them a strategy for addressing tricky questions. This was to avoid stipulating rigid outcomes, but rather to provide a platform — and subtle encouragement — for States to engage in legal discourse. Dr Ranganathan illustrated this by reference to the VCLT’s rules on treaty conflicts, particularly in the situation where the treaties have non-identical parties (i.e. a State “A” has concluded conflicting treaties with States “B” and “C”).

Drawing on her book, Strategically Created Treaty Conflicts and the Politics of International Law [Cambridge University Press, 2014], Dr. Ranganathan explained that writing the “principle of political decision” into the law of treaties (article 30 of the VCLT) reflected a considered choice that moved away from earlier efforts that had sought to determine the order of priority between such conflicting treaties. Dr. Ranganathan noted that the book additionally explores how such treaty conflicts have played out in the contexts of nuclear governance, international criminal justice, and the law of the sea.

In conclusion, Dr. Ranganathan noted that the ILC’s strategic approach was material not only to the acceptability of the VCLT, but also to the development of a densely networked RBIO. Our current concerns about its decline must acknowledge the feat — and underlying assumptions — of its building in the first place. …

3. The Life and Times of Consensualism in Treaty Commitments: Reassessing the Vienna Convention on the Law of Treaties (Dr. Fuad Zarbiyev)Footnote ³

After defining consensualism in its procedural (a State is not bound by a treaty without its consent to be bound by it) and substantive dimensions (a State cannot be bound by a content to which it has not consented), Dr. Zarbiyev argued that some choices made by the ILC and later at the Vienna Conference on the Law of Treaties have significantly reduced the place of substantive consensualism in the law of treaties. He illustrated this phenomenon with respect to two issues: interpretation and reservations.

The VCLT did not make a decisive choice among competing schools of treaty interpretation. Dr. Zarbiyev noted that it is true that the Special Rapporteur described the text as “the dominant factor in the interpretation of the treaty” and referred to the “primacy of the text.” But commentators often overlook that the ILC did so because it viewed the text as “evidence of the intentions” of the parties, and that for the ILC, the primacy of the text was a matter of its primacy as evidence of the intention of the parties. Most commentators and third party adjudicators operate on the assumption that the intention of the parties is not a relevant parameter in treaty interpretation. The recent conclusions of the ILC on Subsequent Practice and Subsequent Agreements take this approach to its logical extreme by challenging the wide-spread view that interpretive agreements entered into by all the treaty parties are binding. This invites reflections, since the intention of the parties is the closest thing to consensualism in the interpretive regime set forth in the VCLT.

Turning to the issue of reservations, Dr. Zarbiyev focused on the broad ramifications of the rule limiting the possibility of formulating a reservation to the time when the State expresses its consent to be bound. The premise of this choice is that a State is always in a position to appreciate the meaning and implications of a treaty provision on the face of it. The ILC did not contemplate and could not have contemplated the rise of third party adjudication of treaty rights and obligations. One consequence of that phenomenon is that a third party adjudicator may interpret a treaty provision in a way that could not have been contemplated or accepted by the parties or a party when they joined the treaty. The VCLT provides no mechanism for that more-than realistic scenario. In such circumstances, the option of leaving a treaty and re-joining it with reservations to react to third party interpretations is likely to look attractive. This will come at the price of decreased stability in treaty relations. …

(ii) Roundtable Discussions on Treaty Practice

1. Internal Procedures for the Entry into Force of Treaties (Chair: Naomi Elimelech, Director, Treaties Department, Israel)

… The goal of this roundtable was to learn about the differences and similarities between the entry into force process in the various States. Key points:

• • The nature of internal procedures for entry into force of treaties varies widely between States. Democratic involvement in procedures between participants’ States range from silent tabling of treaties in one chamber of Parliament to obtaining the consent of one or both chamber(s) of Parliament. In some instances, States obtain the consent of the President, while in others, the consent of both federal and sub-federal legislatures is required in some cases.

• • Some participants noted that the level of participation or consent required from democratic institutions depends on the treaty’s subject matter. One participant noted that bringing a treaty into force in the participant’s State requires the consent of the King.

• • A representative from Europe also outlined the EU’s processes. For the EU, the European Parliament is involved in bringing a treaty into force but is less involved for areas under the EU’s Common Foreign and Security Policy.

Questions Raised: The issue was raised that the length and complexity of a State’s internal procedures for entry into force often influences the State’s decision of whether to pursue a legally binding instrument or a non-legally binding instrument. This ties into the concerns raised at the high-level panel regarding the rise of non-binding instruments as a means of avoiding democratic treaty-making procedures.

Possible Next Steps: A more detailed discussion on this topic in the future would be beneficial, such as examining comparative approaches between federal States. A study by the Inter-American Juridical Committee of the Organization of American States (OAS) currently underway on binding and non-binding instruments is to be shared among the Working Group.

2. State Succession (Chair: Anne Frenette, Deputy Director, Treaty Law Division, Canada)

… The chair noted that treaties are at the heart of succession of States, and, as a result, succession to treaties is highly politicized. The context of decolonization and the Cold War provide examples. Furthermore, there is little generalized practice or established customary international law surrounding state succession. As a result, succession questions can lead to disagreements between States as to which treaties are in force between them. Key points:

• • Several participants noted that they had entered into exchanges of notes (whether binding or non-binding) with other States on the issue of succession to treaties (and in some cases, to non-binding instruments), setting out which instruments continue to apply. Some of the participants present represented successor States.

• • One participant pointed out that trying to set out every treaty that is eligible to continue in force, via an exchange of notes or a list of treaties, can create issues if some treaties are inadvertently omitted. Another issue that arises is whether to continue to apply treaties that are now obsolete. Participants noted that even obsolete or old treaties often raise questions for practitioners regarding State succession.

• • Participants identified several categories that could be identified in relation to succession to treaties, including: succession to multilateral and bilateral treaties, the latter being perceived as more political; subject matter of a treaty, and dissolution of a State versus separation.

Questions Raised:

• • A key question the chair raised was whether States should enter into agreements [and/or] arrangements with other States on the issue of succession to treaties (and non-binding instruments). A different approach would be to rely on successor States’ general declarations of their continued adherence to treaty obligations, such as declarations filed with the UN Secretary-General. Another potential approach would be to simply assume a rule of devolution (perhaps time-limited) or, by contrast, tabula rasa (e.g. because of illegal annexation).

• • When asked by the chair, several participants generally agreed a distinction should be made based on subject matter. Most participants agreed that human rights treaty obligations continue. It was recognized that similar arguments could be made that obligations under other treaties with third party beneficiaries, such as investment treaties, may also continue.

Possible Next Steps: There was a consensus that the Vienna Conventions on Succession of States (1978 and 1983) were not very successful, in part, due to limited State practice at the time. For instance, automatic succession, as prescribed by the 1978 Convention, has not been generally accepted by States. As a result, some participants suggested that a new conference on succession should be considered.

3. Legal Effects of Non-Legally Binding Instruments/MOUs (Chair: Jongin Bae, Visiting Professor, McGill University, and former Director-General, International Legal Affairs, Korea)

… Non-binding instruments are increasingly used by States and international organizations and raise a number of important issues for treaty practitioners. A comparative survey on this topic was prepared by Canada and distributed to the Working Group of Treaty Experts and Practitioners the following day. Key points:

• • There was a general agreement that the title of Memorandum of Understanding (MOU) should not be a decisive factor in determining the legal status of an instrument, and that its substance and language have to be examined. Some participants pointed out the importance of verifying the other Party’s “intention” to avoid any misunderstanding as to its legal effect.

• • Some States have comprehensive guidelines [and/or] databases in place regarding non-binding instruments. Most participants expressed concern that those types of instruments are being signed as “deliverables”, often during high-level visits, without proper oversight (or even knowledge) by the treaty authorities at the foreign ministry. Participants agreed on the importance of improving consistency in the practice surrounding non-binding instruments.

Questions Raised:

• • The discussion raised issues such as the “fine line” between treaties and non-treaties, whether practitioners should try to revitalize the institution of treaties, and how practitioners should engage or intervene in the making of non-binding instruments.

• • Some States authorize their respective ministries to conclude legally binding international instruments, which raises the question of whether such inter-ministry/agency agreements entail liability for either the specific ministry or the whole State. In a similar vein, the capacity of a sub-territorial entity to conclude international agreements was also raised.

• • The chair inquired as to States’ parliamentary control over non-binding instruments. Several participants responded that their parliaments had recently shown interest in the non-binding Global Compact on Migration.

Possible Next Steps: Given the keen interest shown on this topic, it would be advisable to continue to discuss non-legally binding instruments in a more focused and structured way, for instance, by highlighting best practices, focusing more on the status of inter-ministry/agency agreements, and further exploring ways to understand [and] compare participants’ respective experiences. A regional approach might be also useful in this regard. For example, the Inter-American Juridical Committee of the OAS is in the process of drafting guidelines on international instruments and distinguishing between treaties, political commitments, and contracts. Asian and African States can consider sharing the OAS guidelines or the results of Canada’s Survey on Binding and Non-binding International Instruments to bring attention to this topic at the Asian-African Legal Consultative Organization (AALCO).

4. Withdrawal and Termination (Chair: Jules van Eijndhoven, Deputy Head, Treaties Division, Netherlands)

… Questions surrounding withdrawal and termination create uncertainty for Parties to a treaty. The chair noted that while the number of treaties being concluded is growing, States rarely withdraw from or terminate treaties. Nonetheless, we are seeing withdrawals or threats of withdrawal from major treaties such as the Paris Agreement (on climate change), the Rome Statute of the International Criminal Court and the North American Free Trade Agreement (NAFTA). Key points:

• • Several participants noted the difficulties in ensuring that governments’ online treaty databases contain complete and up-to-date lists of all treaties that are currently in force for that State.

• • One participant noted that, when compiling lists of treaties in force with other States, other States often wish to terminate a treaty because it is obsolete, for instance, because the project established under the treaty has been completed.

• • It was pointed out that, given events like the UK’s exit from the European Union (Brexit), in which a State withdraws from some of its treaties, it can be useful to have other treaties already in place that were previously viewed as obsolete, as these treaties regain their relevance.

Questions Raised: A question was posed as to how to address treaties that become obsolete. Several States agreed that it would be worth exploring the possibility of including a clause on the automatic termination of a treaty at a pre-determined time. This was of particular interest in relation to “project agreements”, that is, agreements that govern the funding and operation of a project, because projects are usually expected to be completed at some point in time.

Possible Next Steps: Further discussion of issues surrounding withdrawal and termination, including best practices on keeping treaty databases up-to-date and clauses on automatic termination, should be considered.