Memorandum on Application

1. This Memorandum reviews the rules of international law in relation to the application of treaties to the overseas territories as well as the practice of United Kingdom Government Departments and international organisations in the matter.

The relevant rules of international law

2. Under international law a treaty may apply to a State as an international person, or to the territory of the state, or to both. As regards the question of the extent of the territory of a state to which a treaty may apply, the basic rule is contained in Article 29 of the Vienna Convention on the Law of Treaties (1969), which reads as follows:

Territorial scope of treaties

Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.

The Vienna Convention is widely regarded as setting out rules of customary international law on this subject.

3. Although it is a short provision, some comment on its terms and scope may be helpful.

'entire territory' –

4. In the case of a complex State such as the United Kingdom, territory means all the parcels of land (including any appurtenant territorial sea) over which the Crown enjoys sovereignty. A State's territory may be divided into at least two kinds: (1) metropolitan, and

(2) non-metropolitan or 'territories for the international relations of which a State is responsible'. The decision as to which territory is metropolitan and which is non-metropolitan is one for the authorities of the State concerned to make. Apart from a few exceptions which do not concern the United Kingdom, such decisions have not been challenged by other States.

'unless a different intention appears from the treaty' –

5. Some treaties contain express provisions about particular territories or groups of territories. Where they exist, such provisions determine the scope of the territorial extent of the treaty. The matter is one of interpretation in each case.

6. A different intention may be manifested by a provision in the treaty according to which a State, which has territories for the international relations of which it is responsible may specify upon signature, ratification or accession the non-metropolitan territories to which that treaty is to extend. Such a provision is often called 'a territorial application clause'.

'unless a different intention ... is otherwise established'

7. Even if a particular treaty does not contain a territorial application clause, it is still open to a State such as the United Kingdom to specify at the time of signature, ratification or accession the territorial extent of the application of that treaty and, subsequently, to increase that extent. This is by means of wording contained in the instrument of ratification or accession, or by means of a Note addressed to the Depositary. In 1967, the United Kingdom adopted the practice of making clear in the instruments of ratification and accession the territorial extent of the application of treaties. Since that time, the practice has been followed consistently and no challenge has been mounted in any case (whether by another State or by the United Nations or another international organisation). Instead, there has been acceptance over many years of the practice of specifying the territorial extent, thereby establishing in each case the 'different intention' from the basic proposition that a treaty is binding in respect of the entire territory under the sovereignty of the Crown. Other States such as The Netherlands and Denmark follow a similar practice.

The practice of Whitehall departments

8. The Home Office and the FCO have standard operating procedures according to which the overseas territories are to be consulted about treaties which are under negotiation and which are to apply or are capable of being applied, in respect of the United Kingdom’s non-metropolitan territories. The purpose of consultation is to ascertain whether there are particular considerations in respect of any overseas territory which need to be taken into account in the text of a treaty, as well as to ascertain whether or not each overseas territory wishes the treaty to apply to it. Those particular considerations may be reflected in reservations which are particular to the overseas territory if that is appropriate.

The practice of international organisations

9. Before the mid-1960s, it was standard practice in the United Nations and other international organisations to include in treaties a 'territorial application clause'. However, with the increase in membership by States gaining independence in the early 1960s, opposition developed to the inclusion of such clauses. Following a Whitehall policy review, it was decided that the United Kingdom could no longer secure the inclusion of territorial application clauses in treaties negotiated within global bodies. Accordingly, treaties adopted under the auspices of such organisations were from 1967 dealt with by means of statements made in the United Kingdom's instruments of ratification or accession, or in Notes to the Depositary (as explained in paragraph above 7). In other organisations such as the Council of Europe, it remains the standard practice to include a territorial application clause.