Colonial Clauses and Federal Clauses in United Nations Multilateral Instruments

In: American journal of international law: AJIL, Volume 45, Issue 1, p. 108-128

Abstract

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.