A/HRC/6/21
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Covenant, for example, a new protocol could provide for two thirds of the States parties to the
Covenant to trigger entry into force. The protocol would be binding only on those States that had
accepted it. Upon entry into force of the protocol, those States parties that had not deposited
instruments of acceptance with the Secretary-General would remain bound by the provisions of
the Covenant in its original form.
16. Under the assumption that the new protocol would not involve additional substantive
commitments for States parties, it would be most efficient to agree on a simplified procedure for
entry into force. A simplified procedure for the entry into force would be binding upon all States
parties to the Covenant and would thus maintain a unified legal framework. Such a method
would be based on the non-objection over a specified period of time of one or more than a
certain percentage of States parties to the Covenant (one third, for example), rather than through
a proactive method (such as signature subject to ratification, acceptance, approval, etc.). A
solution of this nature was incorporated in article 5 of the Agreement relating to the
implementation of Part XI of the United Nations Convention on the Law of the Sea of
12 December 1982. Article 5, paragraph 1, which provides for a simplified procedure to establish
consent to be bound, reads as follows:
“1. A State or entity […] shall be considered to have established its consent to be bound
by this Agreement 12 months after the date of its adoption, unless that State or entity
notifies the depositary in writing before that date that it is not availing itself of the
simplified procedure set out in this article.”4
17. An additional provision would need to be included to make certain that the Covenant and
new protocol are mutually binding on future parties to the Covenant once the protocol enters into
force. In addition, a provision should be included to address the situation whereby a State
becomes a party to the Covenant between the time that the new protocol, following its adoption,
is circulated for approval and the time that it enters into force. In such a case, should a simplified
entry into force provision be used, it may be specified that the State concerned should either
abide by the same deadline as the other States parties or additional time may be given for
objecting to the Protocol.
18. In the event that one State party to the Covenant (or more than a certain percentage)
objects to the entry into force of the new protocol within the period allowed, it would fail and not
enter into force, unless and until the State party (if only one is required under the protocol)
withdraws its objection. Serious political will would be required to ensure previous consensus
and avoid this scenario. Should it be expected, however, that there will be universal acceptance
by the States parties to the Covenant to the change in status of the CESCR, the simplified
procedure for entry into force of a new protocol is recommended.
4
See also article 2 of the Agreement concerning the adoption of uniform technical prescriptions
for wheeled vehicles, equipment and parts which can be fitted and/or be used on wheeled
vehicles and the conditions for reciprocal recognition of approvals granted on the basis of these
prescriptions, 1958, which provides that a new regulation annexed to the Agreement will be
considered adopted unless, within a certain period, a number of parties have informed the
United Nations Secretary-General of their disagreement with the Regulation.
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