RAPPORTEUR GROUP

Legal co-operation

GR-J(2017)3

27 January 2017[1]

Tacit acceptance / Opting out clauses   Item to be considered by the GR-J at its meeting on 31 January 2017

 

Introduction

1.         In conformity with international law, the Parties to a treaty have the right to agree on the specific mean of expressing their consent to by bound by such treaty, which includes the possibility of tacit acceptance. Indeed, there is no rule of international law according to which States must necessarily give their consent expressly in order to be bound by a treaty. According to Article 11 of the Vienna Convention on the Law of Treaties:

“The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed”.

2.         In conformity with this Article, the “tacit acceptance”, also called “opting out clause” is increasingly used for the entry into force of regulations adopted by international organisations or bodies and for the amendment of treaties. The opting-out clauses have been used in treaties concluded within the Council of Europe as well as in other international organisations in particular for treaties relating to the protection of the environment (WHO, ICAO, IMO and the International Whale Commission).

Functioning and aim of the tacit acceptance / opting out clauses

3.         The tacit acceptance/opting out clauses set a fixed period after which the treaty would automatically enter into force unless a State has notified an objection. The clauses would not prevent States which wish to do so, or are obliged to do so by their domestic law, from signing or depositing an instrument of ratification, acceptance or approval.

4.         The aim of opting out clauses is to accelerate the entry into force of treaties and to enable States to avoid using the traditional procedures of signature and ratification. As stated earlier, States may sign, and/or deposit an instrument of ratification, acceptance or approval if this is required according to national law or practice or if they so wish. The only obligation for States in this matter is to respect the time limit at the end of which States will be automatically bound by the treaty.

5.         States may, within this time limit, make an objection which would result in preventing the entry into force of the treaty in question for all contracting parties to the treaty – at least until the objecting State deposits its instrument of ratification, acceptance or approval.

Use of tacit acceptance/opting out clauses within the Council of Europe

6.         A procedure quite similar to the tacit acceptance/opting out clauses has been used at the Council of Europe for the amendment of technical appendixes to treaties. According to this procedure, following the expiry of a certain period of time, amendments to appendixes shall enter into force, unless one-third of the Contracting Parties have notified objections, for those Contracting Parties which have not objected (see, for example, Article 17 of the Convention on the Conservation of European Wildlife and Natural Habitats (ETS No. 104); Article 30 of the Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment (ETS No. 150); Article 2 par. 3 of the Protocol of Amendment to the European Convention for the Protection of Vertebrate Animals used for Experimental and other Scientific Purposes (ETS No. 170); Article 28 of the Council of Europe Convention on the Prevention of Terrorism (CETS No. 196) and Article 17 of the Council of Europe Convention on Cinematographic Co-Production (revised)).

7.         Opting out clauses have, although rather exceptionally, also been included within the Council of Europe in Protocols amending the main convention or agreement.

8.         There are five examples where such clauses have been inserted in Council of Europe treaties (the text of the relevant provisions appears in the Appendix).

9.         Such clauses were included for amending the following three agreements in the public health field:

– European Agreement on the Exchange of Therapeutic Substances of Human Origin (ETS No. 26, 1958);

– Agreement on the Temporary Importation, Free of Duty, of Medical, Surgical and Laboratory Equipment for Use on Free Loan in Hospitals and Other Medical Institutions for Purposes of Diagnosis or Treatment (ETS No. 33, 1960);

– European Agreement on the Exchanges of Blood-Grouping Reagents (ETS No. 39, 1962).

10.       The respective protocols (ETS Nos. 109, 110 and 111, 1983) opened the original agreements to an accession by the European Economic Community (now the EU). In addition to providing for an entry into force following the deposit of instruments of acceptance by all parties to the agreements, they contained a tacit acceptance clause.

11.       Since no party formulated an objection, the three Additional Protocols entered into force on 1 January 1985. The tacit acceptance clause did not prevent a certain number of states from depositing an instrument of acceptance (Belgium, Cyprus, France, Italy and the Netherlands).

12.       Opting out clauses were included also in the Protocol amending the European Convention on Transfrontier Television (ETS No. 171, 1998). The reason behind was the urgent need to bring the convention into line with the provisions of the newly adopted EU Directive.

13.       The Protocol follows to a certain extent the aforementioned example of the protocols in the public health field (ETS Nos. 109, 110 and 111, 1983). However, instead of providing that an objection entails the application of the usual procedure for all parties, that is, the deposit of an instrument of acceptance, this consequence is only foreseen for the party which has notified the objection. For the other parties, the tacit acceptance procedure remains applicable. The clause foreseen in the draft Protocol amending Convention ETS No.108 has followed the example of Convention ETS No. 171.

14.       France first formulated an objection to the amending Protocol within the two years’ time limit foreseen by the Protocol. It then deposited its instrument of acceptance on 5 February 2002 and the Protocol entered into force on 1 March 2002, i.e. three and a half years after the opening.

15.       The last Protocol to make use of the tacit acceptance clause was the Protocol amending the European Landscape Convention (CETS No. 219,) opened for ratification, acceptance and approval on 1 August 2016. This Protocol opens for the accession to the European Landscape Convention (ETS No. 176, 2000) by non-European States which are not members of the Council of Europe. It has not yet entered into force. The time limit for objections to its entry into force will expire only on 1 August 2018.

16.       In 1988, the addition of “opting-out clauses” to the Model Final Clauses for Conventions and Agreements concluded within the Council of Europe was considered by the Committee of Experts on Public International Law (CJ-DI). The Secretariat drafted a number of model clauses and proposed that their inclusion into certain types of treaties (in particular protocols or agreements on technical matters) should be considered on a case- by- case basis.

17.       During the discussion in the Committee of Ministers about the inclusion of such opting-out clauses into the Model Final Clauses, the extraordinary character of such procedures was stressed by several delegations. Due to opposition by some member states, the proposed opting-out clauses were eventually not included in the Model Final Clauses. The proposal by the Committee of Experts on Public International Law was inspired by the successful use of such clauses for amending the three agreements in the public health field.

Appendix

Treaties providing for an entry into force through tacit acceptance

1.         Additional Protocol to the European Agreement on the Exchange of Therapeutic Substances of Human Origin (ETS No. 109, 1983)

2.         Additional Protocol to the Agreement on the Temporary Importation, free of duty, of Medical, Surgical and Laboratory Equipment for use on free loan in Hospitals and other Medical Institutions for purposes of Diagnosis or Treatment (ETS No. 110, 1983)

3.         Additional Protocol to the European Agreement on the Exchanges of Blood-Grouping Reagents (ETS No. 111, 1983)

“Article 2

1        This Additional Protocol shall be open for acceptance by the Contracting Parties to the Agreement. It shall enter into force on the first day of the month following the date on which the last of the Contracting Parties has deposited its instrument of acceptance with the Secretary General of the Council of Europe.

2        However, this Additional Protocol shall enter into force on the expiration of a period of two years from the date on which it has been opened for acceptance, unless one of the Contracting Parties has notified an objection to the entry into force. If such an objection has been notified, paragraph 1 of this article shall apply. “

4.         Protocol amending the European Convention on Transfrontier Television (ETS No. 171, 1998)

“Article 35

1        This Protocol shall enter into force on the first day of the month following the date on which the last of the Parties to the Convention has deposited its instrument of acceptance with the Secretary General of the Council of Europe.

2        However, this Protocol shall enter into force following the expiry of a period of two years after the date on which it has been opened to acceptance, unless a Party to the Convention has notified the Secretary General of the Council of Europe of an objection to its entry into force. The right to make an objection shall be reserved to those States or the European Community which expressed their consent to be bound by the Convention prior to the expiry of a period of three months after the opening for acceptance of this Protocol.

3        Should such an objection be notified, the Protocol shall enter into force on the first day of the month following the date on which the Party to the Convention which has notified the objection has deposited its instrument of acceptance with the Secretary General of the Council of Europe.

4        A Party to the Convention may, at any time, declare that it will apply the Protocol on a provisional basis.”

5.         Protocol amending the European Landscape Convention (CETS No. 219, 2016)

“Article 8 – Ratification, acceptance or approval, entry into force

1        This Protocol shall be open for ratification, acceptance or approval by the Parties to the Convention.

2        Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

3        This Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date on which all Parties to the Convention have expressed their consent to be bound by the Protocol, in accordance with the provisions of this article.

4        However, this Protocol shall enter into force following the expiry of a period of two years after the date on which it has been opened to ratification, acceptance or approval, unless a Party to the Convention has notified the Secretary General of the Council of Europe of an objection to its entry into force. The right to make an objection shall be reserved to those States or the European Union which were Parties to the Convention at the date of opening for ratification, acceptance or approval of this Protocol.

5        Should such an objection be notified, the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date on which the Party to the Convention which has notified the objection has deposited its instrument of ratification, acceptance or approval with the Secretary General of the Council of Europe.”