THE AMENDMENT OF THE CONSTITUTIVE INSTRUMENTS OF

INTERNATIONAL ORGANIZATIONS

*1Nanyak Dindam Dashe LLB, BL, LLM

INTRODUCTION

Constitutions of International Institutions, like domestic constitutions of states, are subject to

amendment. This is either because new circumstances have emerged that were not contemplated

by the drafters at the time of drafting the instrument or the application of the instrument has

revealed some Conflicts or inconsistencies that need amendment.

In this paper, we intend to discuss the amendment of constitutions of International Organizations,

the principles governing the said amendment and the consequences of amendments. In

discussing this topic, we intend to answer questions like: who determines when a constitution of

an international organization would be amended? What are the questions that arise from the

interpretation of amended constitutions and their application?

This work is divided into four parts. The first part will deal with the conceptual clarification of

terms; the second covers the law governing amendments, the third will discuss other forms of

alteration and changes to Constitutive Instruments., fourth will discuss the Consequences of an

amendment.

1* Nanyak Dindam Dashe, Senior State Counsel, Plateau State Ministry of Justice is the Assistant Secretary Nigerian Bar Association Jos Branch, Secretary, Law Officers Association of Nigeria, Plateau State Chapter. He holds a Bachelor of laws (LLB) and a Master of Laws(LLM) from the University of Jos. He also holds a Barrister at Law (BL) from the Nigerian Law School. He can be accessed through his email address nanyak4real@yahoo.com

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1.0 CONCEPTUAL CLARIFICATION OF TERMS

1.1 AMENDMENT.

Amendment is a noun word for Amend. “Amend” means: “To correct or make small changes to

something that is written or spoken”2The Black’s law dictionary defines the word Amend as

follows3: “...To change the wording of; specif., to formally alter (a statute, constitution,

motion, etc) by striking out, inserting, or substituting words.”.

Amendment to treaties has been defined as:4

“The formal alteration of treaty provisions affecting all the parties to the particular

agreement. Such alterations must be effected with the same formalities that attended

the original formation of the treaty…”

1.2 CONSTITUTIVE INSTRUMENTS OF INTERNATIONAL ORGANIZATIONS

“Constitutive Instrument” of International Organization also called “Constitutive treaty” or

“Constitution of International Organization” is defined as follows:

“…is a treaty among states that establishes an institution with one or more organs with

a will distinct from that of those states creating it. Thus the Constitutive Instrument

establishes the IO and in doing so, details its functions and competences. But a

constitutive treaty can also create substantive rights or obligations for state parties…”5

2 Longmans Dictionary of Contemporary English. pg 513 Black’s Law Dictionary 8th Edition. page 894 United Nations Treaty Collection: Treaty Reference Guide. www.gc.noaa.gov/documents/gcil-trea... Accessed on the29/01/20145 Brolmann. C. “Specialized rules of treaty Interpretation: International Institutions” .see www.dare.uva.nl/document/508768 accessed on the 28/01/2014

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Constitutive Instrument is also described as: “The Basis of the legal order of an international

Organization6”. It is also seen as the instrument that: “Represents the top of the Hierarchy of

legal rules of International Organizations.7”A constitutive Instrument is also seen as:8

“The back Bone of the International Organization and aids in the process of identifying and

organizing the competence of the organization.”

1.3 A CONSTITUTIVE INSTRUMENT AS A DISTINCT TYPE OF MULTILATERAL

TREATY.

constitutive instruments are a class of multilateral treaties. In a landmark ruling in responds to a

request of the World Health Organizations (WHO) for an advisory opinion on the legality of the

use of nuclear weapons, the court emphasized that constitutive treaties are a hybrid instruments,

combining a multilateral treaty with a self-contained or “Institutional” aspect. The International

Court of justice opined as follows:

“…From a formal Standpoint, the constitutive instruments of International

Organizations are a Multilateral treaties, to which the well established rules of treaty

apply.[…]but the Constitutive instruments of international organizations are also

treaties of a particular type; their object is to create new subjects of the law endowed

with a certain autonomy, to which the parties entrust the task of realizing common

goals. Such treaties can raise specific problems of interpretation owing, inter alia, to

their Character which is conventional and at the same time institutional.9”

6 Ibid.7 Ibid. 8 Ibid.9 Legality of the use by a state of nuclear weapons in armed conflict: Advisory opinion of the international Court Of justice see www.worldcourts.com/icj/eng/decisio... accessed on the 29/01/2014

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Some salient points to be noted in the above definitions of a Constitutive Instrument are:

A Constitutive Instrument is a multilateral treaty

It establishes an International Organization and

With distinct will from that of its members.

It bestows on the organization some functions and on member states, competences and

rights and

Most often than not, creates a new subject of the law

2.0. LAW GOVERNING THE AMENDMENT OF CONSTITUTIONS OF

INTERNATIONAL ORGANIZATIONS.

The law and procedures for the amendment of constitutions of international organizations are

always provided for in the various constitutions or constitutive instruments10however, where they

are not provided for, the customary law or practice governing amendments of laws will apply.

2.1 EXPRESS CONSTITUTIONAL PROVISION.

In most cases, the constitutions of international organizations expressly provide for the law and

procedure(s) of amending the instruments11. For example, Articles 108 and 109 of the United

Nations Charter provide for the amendment of the Charter. Article 108 provides as follows:

“Amendment to the present charter shall come into force for all members of the

United Nations when they have been adopted by a vote of two thirds of the members

of the General Assembly and ratified in accordance with their respective

10 This does not in any way mean that there is uniformity in the law and procedure for the amendment of the various constitutions of International organizations; see article 108 and 109 of the United nations Charter that provide for its Amendment.11 See also Article xxviii of the IMF articles of agreement; Article 60 of the AFDB; Article 58 of the CBD Agreement, article 12 of the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict,etc.

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constitutional processes by two thirds of the members of the United Nations,

including all the permanent members of the Security Council”

Article 109 which also provides for amendment of the charter provides as follows:

1. “A General Conference of the Members of the United Nations for the purpose of

reviewing the present Charter may be held at a date and place to be fixed by a two-

third vote of the members of the General Assembly and by a vote of any ten

members of the Security Council. Each member of the United Nations shall have

one vote in the conference.

2. Any alteration of the present Charter recommended by a two thirds vote of the

conference shall take effect when ratified in accordance with their respective

constitutional processes by two thirds of the members of the United Nations

including all the permanent members of the Security Council.

3. If such a conference has not been held before the tenth annual session of the

General Assembly following the coming into force of the present Charter, the

proposal to call such conference shall be placed on the agenda of that session of the

General Assembly, and the conference shall be held if so decided by a majority vote

of the members of the General Assembly and by a vote of any seven members of the

Security Council.

The above provision is clear on the procedure for the amendment of the United Nations Charter.

It provides that Amendment to the charter can only come into force when it has been adopted by

a vote of two thirds members of the General Assembly and ratified in accordance with the

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respective Constitutional Processes of the two thirds members including all permanent members

of the Security Council.

Though most constitutions of international organizations, like the United Nations Charter,

expressly provide for their amendments, there is no uniformity in the procedures prescribed in

the various constitutions12. While some Instruments provide for amendment by an organ of the

Organization13, others require that amendment can only be done where a “Special Review”

conference is called14 and in most cases, instruments provide separately for “Amendments” and

“Review Conferences”.15 While most constitutive instruments expressly provide for two stages in

amendment procedure16, some instrumentss provide for only one stage.17While some will

prescribe the legislative principle for the first stage of amendment and Consent for the second

stage; some will prescribe the consent principle for the first stage and legislative principle for the

second18.

In some cases, the constitutive instrument provides for two modes of amendment and

distinguishes between minor amendments and amendments involving new obligations for

members19. In any case, where the constitutive instrument expressly provides for the amendment

12 Sands.P. et al: Bowetts Law Of International Institutions, (5th ed London: Sweet&Maxwel.2001).pg 45113 Ibid.14 See Article 109 of the United Nations Charter, Article 48 of the European Union Treaty,15 See Articles 108 and 109 of the United Nations charter and Article 122 and 123 of the Rome Statute of International Criminal Court.16 See article 108 of the United Nations Charter. most Instruments provide for two stages of Amendment17 See article 95 0f the European Coal and Steel Community, 235 of the European Economic Community,41 of Council Of Europe, Article 20 of Food and Agricultural Organization.18 See infra at page 10 and 11 for the meanings of consent and legislative principles and also for stages of amendment.19 Article 20 of the Food and Agricultural Organization which distinguishes between amendment not involving new Obligations for members which enters into force to all members upon adoption by two thirds of the conference and others amendments which require some adoption but followed by ratification by two thirds and subject to the condition that amendments enter into force for each member ratifying and thereafter for each member on accepting Amendment

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of an instrument; no any other procedure will apply other than that provided for in the

instrument.

2.2 CUSTOMARY LAW.

Where there is no express provision governing the amendment of an instrument, customary law

will apply. This customary law has been codified in Article 40 of the Vienna Convention on the

Law of Treaties 1969. The said Article 40 provides as follows.

1. Unless the treaty otherwise provides, the amendment of multilateral treaties

shall be governed by the following paragraphs.

2. Any proposal to amend a multilateral treaty as between all the parties must

be notified to all the contracting states, each of which shall have the right to

take part in:

a) The decision as to the action to be taken in regard to such proposal;

b) The negotiation and conclusion of any agreement for the amendment

of the treaty.

3. Every state entitled to be a party to the treaty shall also be entitled to become

a party to the treaty as amended.

4. The amending agreement does not bind any state already a party to the

treaty which does not become a party to the amending agreement; article 30

paragraph 4(b) applies in relation to such state.

5. Any state which becomes a party to the treaty after entry into force of the

amending agreement shall, failing an expression of a different intention by

that state:

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a) Be considered as a party to the treaty as amended ;and

b) Be considered as a party to the unamended treaty in relation to

any party not bound by the amending agreement.

Article 40 of the Vienna Convention on the Law of Treaties 1969 appears to have aptly provided

for the amendment of Multilateral Treaties where the treaty itself does not make any provision20.

The most important features of the article are itemized; in as far as amendments are concerned,

as follows:

a) The need to notify all Contracting Parties on the proposal for an amendment21.

b) The right of each party to take part in the negotiation and conclusion of any agreement

for the amendment of the treaty.

The above basic requirements of: the notification of all members as regards the proposal for an

amendment as well as the right of each party to take part in the negotiation and conclusion of any

agreement for amendment appear to lie at the heart of the amendment procedure. Interestingly,

paragraph 3 forbids the barring of any member of the party from attending the meeting. The most

confusing and problematic provisions are the provisions as contained in sub Article 4 and 5. This

is because the said sub articles or Paragraphs provide for the applicability of two different

regimes of law after amendment. The above law presupposes that where a vote of adoption has

been taken, the amended treaty will only bind the members of the Organization who consented to

the amendment22. To those that did not consent to the amendment, they will only be bound by the

20 Prof Dr. Oliver Dorr LMM (Lond) “Article 40. Amendment of Multilateral treaties”www.link.springger.com/content/pdf/10.10... accessed on the 28/01/201421 Note the difference between amendment between all parties and modification between some of the contracting parties.see supra at page….22 Consenting to the Amendment means act of depositing of documents of accession or ratification by the required number of members need to enable the Amendment come into force.

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treaty as it was before amendment23. The question that begs for an answer is: where the Part of

the constitutive Instrument sought to be amended is the law regulating voting in the General

Congress of either the I.T.U(International Telecommunications Union)24 or

O.E.A.C(Organization for Economic cooperation and Development)25, long after the amendment

is successful, which of the laws will apply as between those that consented to the Amendment

and those that did not consent to it. Is it the old law relating to voting which is supposed to

regulate only the voting of those that did not consent to the amendment or the new one which

regulates the right to voting of those that consented to the amendment? How can two separate

rules of voting concurrently apply to two sets of people on a common issue at the same time? It

is practically impossible.

In the light of the above problem, as regards amendment, it is advisable that an international

organization adopt either the unanimity principle which will make an amendment to any

constitutive instrument impossible where there is a veto or adopt the majority rule which will

make the decision of majority bind dissenting members who intend to remain members of the

organization. For dissenting members that would not concede, they can quit membership of the

organization where they will not allow the decision of the majority bind them26. This will go a

long way in resolving the problem associated with adopting the customary law principle27.

2.3 AMENDMENT OF PROTOCOLS AND ANNEXES TO CONSTITUTIVE

INSTRUMENTS.

23 See article 40(4) and Article 30(4)(b) of the Vienna Convention on the Law of Treaties 196924 Amerasinghe.E.F. principles of the Institutional Law of International Organizations.(2nd ed.Cambridge:Cambridge University press.2005).pg 45225 Ibid.26 Just like stipulate in Article 26 of the Covenant of the League of Nations27Amerasinghe.E.F. Op cit at 453

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Most constitutive instruments are accompanied by protocols28 and Annexes. These protocols are

also part of the constitutive instruments there for, just like a need will arise to amend a

Constitutive Instrument, There can also be the need to amend an Annexes or a protocol.

2.3.1 AMENDMENT OF PROTOCOLS TO A TREATY/CONSTITUTIVE

INSTRUMENTS

A treaty may contain a provision for amendments of its accompanying protocols. Where this is

the case, the said provision will apply29. Where the provision for the amendment of the treaty is

not provided for in the treaty instead, the Protocol itself, the said provision will govern the said

amendment30. For example article 45 of the Protocol for the court of Justice of The African

Union provides for the amendment of the Protocol as follows:

1. Protocol may be amended if a State Party makes a written request to that effect to

the Chairperson of the Assembly.

2. Proposals for amendment shall be submitted to the Chairperson of the

Commission who shall transmit same to Member States within thirty (30) days of

receipt thereof.

3. The Assembly may adopt by a simple majority, the draft amendment after the

Court has given its opinion on the amendment.

2.3.2 AMENDMENT OF ANNEXES TO CONSTITUTIVE INSTRUMENTS.

28 See protocol of the Court Of justice of the African Union, Additional Protocol to the Constitutive Treaty of UNASUR on Commitment to Democracy. All of these protocols are protocols to Constitutive Instruments of International Organizations.29 See Final Clauses of Multilateral Treaties: Handbook. United Nations Publications page 102. see www.treaties.un.org/../English.pdf accessed on the 28/01/2014. see also Article 9 of the Vienna Convention for the Protection of the Ozone Layer, 1985.30 See Article 18 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the 2000 United Nations Convention against Transnational Organized Crime, 2000

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The parent treaty may provide for the amendment of its Annexes31. Where it provides for the

amendment, the said provision will apply. For example, The Kyoto protocol to the 1992 United

Nations Framework Convention on Climate Change 1997, provides in detail the rules governing

the proposal, adoption, consent to be bound, entry into force and legal effects of amendment to

its annexes32.Where the treaty is silent on amendments to Annexes, the general rule governing

amendment and modification of treaties will apply.33

3.0 PRINCIPLES AND STAGES OF THE AMENDMENT OF CONSTITUTIVE

INSTRUMENTS OF INTERNATIONAL INSTITUTIONS

3.1 PRINCIPLES OF AMENDMENT

There are basically two principles that apply to the amendment of Constitutive Instruments.

These principles are34:

i. The Consent or Unanimity rule

ii. The Legislative or Majority rule

Either of these principles or both of them apply to any amendments irrespective of whether the

amendment is done pursuant to an amendment clause in the Instrument or Article 40 of the

Vienna Conventions on the Law of Treaties where the instrument does not provide for its

Amendment.

3.1.1 THE CONSENT OR UNANIMITY PRINCIPLE

31 Final Clauses of multilateral Treaties. op cit at 104.32 See also Article 23 of the International Convention for the Suppression of the Financing of Terrorism. 1999.33 Final Clauses of Multilateral Treaties. loc cit.34 Amerasinghe.E.F. Op cit at pages 455

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The consent or unanimity principle stipulates that all members of the organization must consent

to the amendment of the constitutive instrument before there can be any amendment35. This

consent can either be relevant in the first stage of the amendment or the second as the Instrument

itself may provide in the amendment clause. The meaning of the principle can be deduced from

the words themselves: i.e “Consent” or “Unanimity”.

3.1.2 LEGISLATIVE PRINCIPLE OR MAJORITY RULE

The legislative Principle which is also called the majority rule provides that the decision of the

majority binds all the members of the organization.36 The majority here could mean two thirds or

a simple majority of members of the organization .This legislative principle is always provided

for in the constitutive Instrument of amendment as the second stage of amendment where the

amending clause provides for two stages of amendment.

3.2 THE STAGES OF AMENDMENT.

The process of amendment usually involves two stages though the law may stipulate one stage.

These two stages are;

1. Vote of adoption

2. Deposition of ratification.

3.2.1 VOTE OF ADOPTION

This is the first stage of amendment. It is a stage where a vote is taken, usually within an organ

of the organization, in order to determine whether to amend or not37. This Stage is usually 35 Ibid. 36 Ibid at 456.37 Article 18 of the African Union Convention on The protection and Assistance of Internally displace Person In Africa (Kampala Convention) which provides that vote of adoption for Amendment can only be taken by the simple majority of The Conference of State Parties.

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preceded by a proposal either by a member state or an organ of such state38. The proposal will be

drafted by the state proposing an amendment and notified to either the Secretary General of the

AU, The United Nations or anybody charge with the responsibility of receiving the proposal.

Upon receipt of the proposal, the Office will, according to the prescription in the instrument,

forward to all the member states or organs the said proposal and await their responds. Usually, it

is only where the required majority of the members of the organization signify their intention to

consider the proposal that a conference or meeting for amendment will be called by the said

secretary general of the UN or AU. It is when the meeting is called that the members of the organ

will consider the proposal to amend the constitutive instrument. After considering the proposal,

they will vote on whether to proceed with the amendment or not. Where the required majority

members vote in the affirmative, it is then said that a “vote of adoption” has been taken. Where

members of the organization fail to vote in the affirmative, the plan to amend is truncated and

there will be no amendment. Most organizations vest in an organ of the said organization the

right to amend.

3.2.2 DEPOSITION OF RATIFICATION.

This is a stage where members of the organization deposit there instruments of ratification with

the depository39.The act of deposition of ratification is the final stage of accenting to a treaty in

international law. The whole process begins with the signing of a treaty40 by a plenipotentiary

who will then return the treaty to his country and have the appropriate authority which, in most 38 See Article 39 of the Convention on the Protection of Cultural Property. the said article requires that a party making proposal shall 39 A depository is a body or state that is mandated by the organization to receive Instruments of Ratification from member states and register them and in most instruments, the designated depository is the office of the Secretary General of the United Nations see Article 53 of the Conventions of the Right of The Child 1989, Article 29 of the Rotterdam Convention On the prior Informed Consent Procedure for certain Hazardous Chemicals and Pesticides in international Trade 1998, The United Nations Convention , .e.g.40 Most times the diplomatic officers sign the treaty first where the treaty provides a clause that the treaty will not bind a state upon signing alone until an Instrument of ratification is deposited with the Depository. see

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cases is the legislative house, scrutinize and endorse it following the laid down constitutional

process41. Practically speaking, the legislative house will pass a resolution assenting to the

ratification. Where a resolution is passed, an instrument of ratification is then drown up by the

ratifying state and taken to the depository who will receive the instrument from the appropriate

representative of the state and register it. It is when the instrument of the ratification has been

received and registered that it can rightly be said that there is a “DEPOSITION OF

RATIFICATION”. Even where there is a deposition by a state, or states, in most occasions the

instrument will provide that the amended instrument will not “come into force” until a required

and prescribed majority is reached42. Where it is the case, the amended instrument will not come

into force until the said number of majority deposit their ratification with the depository43.

4.0 OTHER FORMS OF ALTERATIONS/CHANGES TO MULTILATERAL

TREATIES.

Amendment to constitutive instruments of international organizations is only one of the various

ways the content of an instrument of international organization can be altered. Other forms are:

4.1 REVISION

Revision (or Review) of a treaty means amendment of a comprehensive nature. It is always

provided for alongside Amendment. Revision is resorted to where there is a need for a lot of

41 Section 12 of the constitution of the Federal republic Of Nigeria 1999 (as Amended) provides for the ratification and domestication of a treaty and the effect thereof. see also the case of Abacha. v. Fawhimi(2001)4 S. C.N.J. 4oo42 Usually the Instrument will provide that the ratification will not come into force until either a simple majority or two thirds majority has deposited their instrument of Ratification. see Article 43 Note that by virtue of article 102 of the United Nations Charter, which article is in line with Article 18 of the Covenant of the League of Nations, the secretary General of the United Nations is expected to receive, register and publish the treaties. The objective of the article is to ensure that all treaties and international treaties remain in the public domain so as to eliminate the likely hood of secret diplomacy. A treaty and an international agreement cannot be invoked before the international court of justice or any organ of the United Nations if it is not registered. See the case of Qater v Bharain, 1994I.C.J 112.

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changes which in most cases will alter the rights of member44 states. Where Revision is sought to

be made after the entry into force of the instrument and the said revision is provided for in a

clause in the instrument, the said clause will govern the process of revision45. Where it is not

provided for, it becomes a problem as the Vienna Convention on the Law of Treaties does not

provide for revision like it did for amendments.

Where the Revision is sought to be made before the treaty enters into force, states may agree that

the text needs to be revised. In other words, Where Revision is sought to be made subsequent to

the treaty’s adoption but prior to its entry into force, the negotiating parties including signatories

and contracting parties will meet to adopt additional Protocols to address the problem; Such as

was in the case of the agreement relating to the implementation of part xi of the convention of the

1982 United Nations convention on the law of the sea, 1994. Here certain difficulties relating to

the seabed mining provisions contained in part xi of the Convention were raised primarily by

industrialized states. To address these concerns, which would have created a situation where

most industrialized states would not have become parties to the Convention, the secretary

General convened in 1990 a series of informed consultations which culminated in the adoption,

on the 28 July 1994, of the 1994 agreement relating to the implementation of part XI. The

agreement entered into force on the 28th of July 199646.

4.2 MODIFICATION.

Modification of treaties refers to the alterations of certain provisions of a treaty only among

certain parties to that treaty. Among other parties, the treaty applies.

44 See supra at page 5. 45 See Article 109 of the United Nations charter.46 See Final Clauses of Multilateral Treaties: United Nations Handbook. Page 106.

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Before there can be any modification, the treaty sought to be modified must expressly provide

for such modification47 or permit it. The provisions of the Vienna Convention on the Law of

Treaties 1969 will apply. Article 41 of the Vienna Convention provides as follows:

1. Two or more of the parties to a multilateral treaty may conclude an agreement

to modify the treaty as between themselves alone if:

(a) The possibility of such a modification is provided for by the treaty; or

(b) The modification in question is not prohibited by the treaty and:

(i) does not affect the enjoyment by the other parties of their rights under the treaty or

the performance of their obligations;

(ii) does not relate to a provision, derogation from which is incompatible with the

effective execution of the object and purpose of the treaty as a whole.

2. Unless in a case falling under paragraph 1 (a) the treaty otherwise provides, the

parties in question shall notify the other parties of their intention to conclude the

agreement and of the modification to the treaty for which it provides.

The Above provision has expressly required that the instrument sought to be modified must

expressly provide for it or not prohibit it48.

It also provided that there can only be modification if it “does not affect the enjoyment by the

other parties of their rights under the treaty or the performance of their obligations” and it

“does not relate to a provision, derogation from which is incompatible with the effective

execution of the object and purpose of the treaty as a whole”. It further provides that unless

where the instrument expressly provides for the Modification, any modification must be

modified to all other members of the organization.47 See Article 311(3) of the United Nations Convention on the Law of Sea,1982.48 Article 41(1)(a) and (b) of the Vienna Convention of the Law of Treaties.

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5.0 CONSEQUENCES OF AMENDMENT OF CONSTITUTIVE INSTRUMENTS

Where there is a successful amendment of a constitutive instrument, it is expected that the

amended instrument apply to govern members of the organization. Where there is a unanimous

decision to amend, there will be less or no questions arising as to the applicability of the

instrument but where there was dissension or where some members oppose the amendment, the

aftermath of amendment is always characterized by questions as to the applicability of the

amended instrument.

Some of these questions are:

1. Will the amended instrument apply to govern all the members of the association

including those that oppose or voted against the amendments?

2. Where members refuse to ratify the instrument, will they still be members of the

organization or they cease to be members?

3. Can they unilaterally withdraw from the treaty or they will have to be expelled from the

organization?

Where there is an express provision in the instrument providing for the amendment, usually, such

provision also states the fate of members who refuse to ratify or accept the amendment49. For

example, the article 26 of the League of Nations prescribes that dissenting members will not be

bound by the amended instrument however, they cease to members of the organization where

they refuse to be bound by the amendment. Where there is an express provision for the fate of

dissenting members in the instruments, dissenting members would even have known the

49 See article 26 of the Covenant of the League of Nations; Article 122 and 123 of the Rome statute of International criminal court

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consequences of refusing to consent to amended consequently would have prepared to accept the

fallout of not consent or ratifying the amended instrument.

Where the instrument is silent on the fate of dissenting members, Article 40 and 30 of the Vienne

Convention on the law of treaties 1969 will apply. Article 40(4) provides that:

4. the amending agreement does not bind any State already a party to the treaty

which does not become a party to the amending agreement; article 30, paragraph 4

(b), applies in relation to such State.

Article 30(4)(b) provides as follows:

4. When the parties to the later treaty do not include all the parties to the earlier

one:

(b) As between a State party to both treaties and a State party to only one of the

treaties, the treaty to which both States are parties governs their mutual rights and

obligations.

Obviously, a critical look at the above quoted provisions reveals that the membership of

dissidents to the organization is not denied them on account of falling to ratify or assent to an

amendment. The implication of the above provisions is that the original or the old instrument un

amended, governs or applies between a party to only the original instrument and a party to both

the original and the amended instrument. Where both members involved are parties to both the

old and amended instrument, the amended instrument, upon coming into force, applies50 and

between members who did not consent to the amendment, the old instrument applies51. It is then

50 See Article 40(5)(a) of The Vienna Convention on the Law of Treaties 1969.51 See Article 40(4)

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arguably right to say that two separate regimes or instruments apply concurrently amongst

members of the organization. This arrangement will definitely not be without some problems52.

As regards the third question: whether dissenting members can unilaterally withdraw from the

treaty, withdrawal from any treaty is usually provided for in the treaty53 and the said treaty will

stipulate the conditions and procedure for withdrawal. In some treaties, unilateral withdrawal is

permitted, usually subject to some conditions to be fulfilled by the member withdrawing and in

others it is not. Where there is no provision for withdrawal in the instrument, Article 56 of the

Vienna convention will apply. The said article 56 provides as follows:

1. A treaty which contains no provision regarding its termination and which does

not provide for denunciation or withdrawal is not subject to denunciation or

withdrawal unless:

(a) It is established that the parties intended to admit the possibility of

denunciation or withdrawal; or

(b) A right of denunciation or withdrawal may be implied by the nature of the

treaty.

2. A party shall give not less than twelve months’ notice of its intention to

denounce or withdraw from a treaty under paragraph.

The above provision begins by denying a right of withdrawal but went further to say that there

can be withdrawal or denunciation where it can be established that parties intended to admit the

possibility of denunciation or withdrawal and that the right of withdrawal can be implied by the

52 See supra at page 7 and 853 See Article 127 of the Rome Statute of the International Criminal Court( The United States of America has withdrawn from the statute pursuant to this Article); Article 52 of the Convention on the Rights Of the Child, 1989, 28 of the Stockholm Convention on Persistent Organic Pollutants, 2001 see also Final Clauses of Multilateral treaties: Handbook United Nations Publication. Page 109

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nature of the treaty. It concludes by saying a party that intends to withdraw or denounce shall

give not less than twelve months notice of its intention to denounce or withdraw from the treaty.

Where withdrawal is not permitted, the members of the organization can expel such a member54.

In any case members, who refuse to ratify the amendment are in practice, lured or diplomatically

pressurize into consenting to and ratifying the amendment55.

CONCLUSION.

This paper has examined the amendment of constitutive instruments of international

organization. In doing so, it clarified some concepts, tried to distinguish between constitutive

instruments and any other multilateral instrument, and discussed the law and procedure of

amendment. It discussed the applicable law where and instrument expressly provides for

amendments and were it does not.

It also discussed the stages and principles of amendment. Other forms of alterations and issues

arising from Amendments were considered. In discussing this paper, we answered questions like

who determines amendment of constitutive instruments of international organizations?.

RECOMMENDATION.

Having done an extensive discussion above, we hereby recommend as follows:

1. That Amendment Clauses should always be provided for in the instrument sought to be

amended.

2. The Provisions or Clauses dealing with amendments should always be elaborate and

explicit.

54 Amerasinghe.E.F. op cit at pg 458.55 Ibid at 459.

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3. A clause should always be provided for which will regulate the withdrawal and

denunciation of members where member states intend to withdraw.

4. The rule contained Article 26 of the League of Nations covenant which excludes all

those that did not consent to the amendment should be adopted or the consent principle to

should be adopted so that there will be no dissention and the consequent application of

two separate regimes of constitutive instruments..

5. Constitutive instruments should provide for amendment and review separately.

WORKS CITED.

BOOKS

1. Amerasinghe.E.F. principles of the Institutional Law of International Organizations.(2nd

ed.Cambridge:Cambridge University press.2005)

2. Sands.P. et al: Bowetts Law Of International Institutions, (5th ed London:

Sweet&Maxwel.2001).

DICTIONARIES

1. Longmans Dictionary of Contemporary English.

2. Black’s Law Dictionary 8th Edition.

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INTERNET SOURCE

1. Brolmann. C. “Specialized rules of treaty Interpretation: International Institutions” .see

www.dare.uva.nl/document/508768 accessed on the 28/01/2014

2. Final Clauses of Multilateral Treaties: Handbook. United Nations Publications page

102.see www.treaties.un.org/../English.pdf accessed on the 28/01/2014

3. Legality of the use by a state of nuclear weapons in armed conflict: Advisory opinion of

the international Court Of justice see www.worldcourts.com/icj/eng/decisio... accessed

on the 29/01/2014

4. United Nations Treaty Collection: Treaty Reference Guide.

www.gc.noaa.gov/documents/gcil-trea...

5. Accessed on the29/01/2014

6. Prof Dr.oliver Dorr LMM(Lond) “Article 40.Ammendmnt of Multilateral

treaties”www.link.springger.com/content/pdf/10.10... accessed on the 28/01/2014

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