Federal clauses in International treaties: an analysis in light of some recent developments

Federal States, when negotiating a treaty, sometimes insist on the inclusion of a federal clause. Usually, non-federal States do not easily agree on its inclusion and wording. Both positions can be eloquently advocated. It is to be appreciated that the request for the clause is ultimately a straightforward bona fide behaviour in negotiating the treaty, since it points out prospective difficulties in the implementation of treaty obligations. On the other hand, it is also true that, under the federal clause, the extent of the legal effects produced by the treaty could in part depend on the domestic laws of federal States and, due to the great variety of federal systems, the multilateral treaty concerned would have as much variation in scope as the number of federal States which ratified it. Provisions requiring from federal States the necessary information concerning the law and practice of the federation and its constituent units with regard to the provisions of the treaty may be a solution of the problem of legal certainty, but do not address the issue of the necessary safeguard of the object and purpose of the treaty. Recently, the negotiations of the UNESCO Convention on the protection and promotion of the diversity of cultural expressions have seen renewed attention on this issue, reaching an interesting conclusion that is precisely directed at excluding any vagueness in the content of the obligations really assumed by federal States, refusing to simply reiterate a wording of the clause that had already been accepted in three other conventions concluded at UNESCO. This result shows that the ‘internationalization’ of a domestic issue through inclusion of a federal clause in a treaty is still problematic — in spite of the almost total indifference that accompanied the inclusion of an extremely disputable federal clause in other UNESCO conventions — and that such a concession’, though not pre-emptively excluded, must be carefully considered. The central issue at stake is the real effect and scope of application of the clause, which is commented in this work from the international law point of view, taking into consideration several different features included in different federal clauses.