William Kosar_Drafting of Treaties and Domestication into National Legislation_ Namibia Ministry of...

Drafting of Treaties and Domestication into National Legislation

Prof. William KosarUNDP/Rwanda

Today we will discuss:

• What is a Treaty?

• Enabling a treaty by national law

• Types of Treaties

• VCOLT

• The Treaty Process

JUS COGENS

• Jus cogens ("compelling law") is a principle of international law considered so fundamental that it overrides all other sources of international law, including even UN Charter

• Rules of jus cogens generally require or forbid the State to do particular acts or respect certain rights

• Some define criminal offences which the State must enforce against individuals

• Generally included on lists of such norms are prohibitions on aggressive war, war crimes, crimes against humanity, piracy, genocide, slavery & torture (VCOLT 53)

Sources of International Law

Treaties--AKA International Conventions.

• Treaties are a deliberate method of creating law.

• Treaties can also be known as Charters, Covenants, General Acts, Declarations, International Agreements, Pacts, Protocols and Statutes.

• They all refer to the process where States legally bind themselves to written agreements that obligate them to act in a particular way or to create a particular norm for behaviour

What is a Treaty?

Broad definition adopted of the term "treaties or international agreements".

This broad definition is a key reason for the high number of registrations.• An instrument between 2 entities capable of concluding treaties

• Governed by international law• Enforceable at international law• An agreement between 2 companies is not a treaty

• Some entities are not recognized as States by the UN (e.g., Taiwan)

What is a “Treaty”

• Characterization adopted by negotiating parties is not the determining factor

• The instrument itself could be called a treaty, convention, agreement, MOU, exchange of notes, etc.

• All subsequent actions are also required to be registered • Extensions, amendments, denunciations, etc.

What is a “Treaty”

Sources of International Law

• TREATIES have gradually displaced much customary international law

• This development is similar to the replacement of customary or common law by codified law in municipal legal settings, but customary international law continues to play a significant role in International law

I. Treaty Process:

• Adoption: Nations conclude their treaty negotiations and agree on a treaty’s text.

• Signature: Representatives of participating nations sign/initial treaty.

• NOTE: Today, signature often does not equal consent of a nation to be legally bound by a treaty

II. Treaty Process:

• Ratification: Definitive consent to be bound. Applies to nations that negotiated the treaty and signed the text.

1. International component = Treaty text often requires an exchange of ratification instruments among contracting nations, or a deposit of ratification instruments with a depository

2. Domestic component = A Nation’s municipal rules apply

III. Treaty Process:

• Accession = Consent to be bound. This principle applies to nations that did not originally negotiate and sign the treaty, but now wish to abide by the agreement

• NOTE: A treaty often specifies the means by which nations may accede to the agreement. Nations will have their own domestic constitutional rules on accession.

What is the difference between a Treaty & a Convention?

• No difference

• Both have the same effect & treatment

• Over history, however, treaties have usually come to be signed by a limited number of parties whereas conventions agreed upon by a larger number of nations, even as they remain open for more to join and efforts continue to bring them aboard

About Treaty Law & the Law of Treaties

• There is a slight (albeit rarely understood) difference between Treaty Law and the Law of Treaties.

• Treaty Law deals with the subject matter of treaties, i.e. how treaties addresses particular issues such as the Law of the Sea or extradition measures.

• The Law of Treaties deals with how treaties come into being & how to process of making and administering treaties is regulated

Vienna Convention on the Law of Treaties between States (“VCOLT”)

Convention de Vienne sur le droit des traités

• Law of Treaties between States and

International Organizations or

between International

Organizations

Vienna Convention on the Law of Treaties Between States

• The 1969 VCOLT is the authoritative treaty on the international law of treaties, establishing the procedures by which treaties are adopted, interpreted, and invalidated.

• It is considered mostly a codification of already existing and binding customary law on treaties.

• It is not therefore viewed as a change in existing international law.

• This means that unlike most treaties, the VCOLT could arguably be binding to even non-parties.

VCOLT Article 2 (1)

(a) Treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;

(b) ratification, acceptance, approval & accession mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty;

VCOLT Article 2 (1)

(c) 'full powers' means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty;

VCOLT STATUS

• Rwanda acceded 3 January 1980

• What about Namibia?

Enabling a treaty by national law

VCOLT• After the fanfare of the international

Conference, the treaty signing should have effect on national soil

• VCOLT does not address the issue of how a State may then bring about the domestic implementation of a Treaty

• A matter of National rather than International Law

VCOLT

• Treaties may be seen as “self-executing” or “non-self executing” depending on the legal system of the State

• Civil law systems are the former while common law systems are the latter and require 'implementing legislation'--a change in the domestic law to fulfill treaty obligations

Article 18 requires that

• A State is obliged to refrain from acts which would defeat the object and purpose of a treaty…

• Un État doit s’abstenir d’actes qui priveraient un traité de son objet et de son…

This reinforces the maxim “pacta sunt servanda” (“Let the Agreement Stand”)

VCOLT & Municipal Law

• VCOLT Art 27, stipulates that a country shall not plead its municipal law to defeat its international obligations

• Art 27 is subject to Art 46, which allows a state to invalidate its consent to be bound by a treaty on the ground that the consent was given in violation of a provision of its internal law of fundamental importance

3 Approaches

Dualist vs. Monist

Monist Approach• Monism maintains that there is a unity

between municipal law and international law in a relationship in which international law is superior.

• Legal system of a State is considered to include treaties to which a State has given its consent to be bound

• Some treaties may then become directly applicable (self-executing) without involving the legislature

Monist Approach• This means the Courts would look directly

to the treaty as a source of law

• However some “democratic participation”

• In Rwanda, a treaty is debated but the final act of accession or ratification is done by Presidential decree

Dualist Approach• Treaties are regarded as a separate

legal system

• Do not directly form part of domestic law

• Doesn’t automatically become law until appropriate national (and perhaps provincial) legislation has been enacted

• “The Act of Transformation”

Dualist Approach• Those Commonwealth countries

who have followed the “British Approach”

• Can ratify 1st without involving the legislature thus making the treaty applicable to it internationally & then involve the legislature (s) to make it applicable domestically

The US Approach• In between Monist & Dualist

approaches

• US Constitution: Article VI , paragraph 2, known as the supremacy clause, provides

"all treaties made, or which shall be made, under the authority of the US, shall be the supreme law of the land; and the judges in every state shall be bound thereby. . . .“

The US Approach• US definition of Treaty is more

restricted than under International Law

• TransWorld Airlines Inc. v. Franklin Mint Corp 466 US 243, 252 (1984),the US Supreme Court defined a self-executing treaty as one for which, ‘no domestic legislation is required to give it the force of law in the United States [the domestic realm]’.

Different Approaches in Africa

Nigeria• Art 12(1) provides:

• No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.

Uganda• Ratification of Treaties in Uganda in

accordance with its Constitution (art 123 (2) and Ratification of Treaties Act

• Parliament shall make laws to govern the ratification of treaties, conventions, agreements or other arrangements made under clause (1) of this Article.

Uganda“All treaties shall be ratified as follows:

• by the Cabinet in case of any treaty other than a treaty referred to in paragraph (b) of this section; or

• by Parliament by resolution

-where the treaty relates to armistice, neutrality or peace; or

- in the case of a treaty in respect of which the Attorney General has certified in writing that its implementation in Uganda would require an amendment of the Constitution.

Kenya—Constitution Article 2

(5) The general rules of international law shall form part of the law of Kenya.

(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.

Constitution of Rwanda—Art 190

Upon their publication in the official gazette, international treaties and agreements which have been conclusively adopted in accordance with the provisions of law shall be more binding than organic laws and ordinary laws except in the case of non compliance by one of the parties.

Les traités ou accords internationaux régulièrement ratifiés ou approuvés ont, dès leur publication au journal officiel, une autorité supérieure à celle des lois organiques et des lois ordinaires, sous réserve, pour chaque accord ou traité, de son application par l’autre partie.

Other African Countries• Article 79 of the Mauritania Constitution,

• Article 97 of the Constitution of Senegal

• Article 129 of the Constitution of Niger

• All of these embrace dualism – that a treaty which contains a clause which is contrary to the constitution shall not be ratified until the constitution is amended or revised.

WHAT IS THE SITUATION HERE IN NAMIBIA?

Article 32-Functions Powers and Duties

(1) As the Head of State, the President shall uphold, protect and defend the Constitution as the Supreme Law

(3) Without derogating from the generality of the functions and powers contemplated by Sub-Article (1) hereof, the President shall preside over meetings of the Cabinet and shall have the power, subject to this Constitution to:

(e) negotiate & sign international agreements, and to delegate such power;

National Assembly—Art 40

(i) to assist the President in determining what international agreements are to be concluded, acceded to or succeeded to and to report to the National Assembly thereon;

Art 63

(2) The National Assembly shall further have the power and function, subject to this Constitution:

(e) to agree to the ratification of or accession to international agreements which have been negotiated & signed in terms of Article 32(3)(e) hereof;

Article 96 Foreign Relations

The State shall endeavour to ensure that in its international relations it:

(d) fosters respect for international law & treaty obligations;

Art 143--Existing International Agreements

• All existing international agreements binding upon Namibia shall remain in force, unless and until the National Assembly acting under Article 63(2)(d) hereof otherwise decides.

Article 144 International Law

• Unless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia.

Article 145--Saving

(1) Nothing contained in this Constitution shall be construed as imposing upon the Government of Namibia:

(a) any obligations to any other State which would not otherwise have existed under international law;

(b) any obligations to any person arising out of the acts or contracts of prior Administrations which would not otherwise have been recognised by international law as binding upon the Republic of Namibia.

The Treaty Process

Ultra Vires Treaties

• Consent to a treaty is invalid if it was given by an agent or body without power to do so under that State's domestic law

• A strong presumption exists internationally that a head of State has acted within his proper authority

• Consent is also invalid if given by a representative who ignored restrictions he is subject to by his sovereign during the negotiations, if the other parties to the treaty were notified of those restrictions prior to his signing

Peremptory Norms

• A treaty is null and void if it is in violation of a peremptory norm.

• These norms, unlike other principles of customary law, recognized as permitting no violations & so cannot be altered through treaty obligations.

• These are limited to such universally accepted prohibitions as those against genocide, slavery, torture & piracy.

• No State can legally assume an obligation to commit or permit such acts

Reservations to Treaties

• Reservations can be qualifications or denials of specific obligations, or the insistence upon particular interpretations of treaty language.

• These must be included at the time of signing or ratification--a party cannot add a reservation after it has already joined a treaty.

• Some treaties expressly forbid all reservations or just specific ones.

• Treaties may also expressly authorize certain reservations.

• Otherwise, reservations may be permitted to the extent that they are not inconsistent with the goal and purpose of the treaty.

Reservations to Treaties

• reservations may be permitted to the extent that they are not inconsistent with the goal and purpose of the treaty.

• the allowance of reservations means that not all parties to a treaty will be bound under the same precise obligations

• States will often consent to reservations to gain as many parties to the treaty as possible for the sake of a general goal

• If a reservation is considered unacceptable, the reserving party may be excluded from the treaty, or the reservation may be considered severable from the party's ratification, meaning that the reservation is ignored but the party is still bound under the treaty.

Invalidation of a Treaty

• Articles 46-53 of VCOLT set out the only ways that treaties can be invalidated-considered unenforceable and void under international law.

• A treaty will be invalidated due to either the circumstances by which a State party joined the treaty, or due to the content of the treaty itself.

• Invalidation is separate from withdrawal, suspension, or termination

Withdrawal

• Treaties are not necessarily permanently binding upon the signatory parties.

• Many treaties expressly allow a State to withdraw as long as it follows certain procedures of notification, whereas some forbid withdrawal.

• if State withdraws on its own, a determination must be made regarding whether permitting withdrawal is contrary to the original intent of the parties

Withdrawal

• If a State party's withdrawal is successful, its obligations under that treaty are considered terminated, including a bilateral treaty.

• When a State withdraws from a multi-lateral treaty, that treaty will still otherwise remain in force between the other parties.

Suspension & Termination

• If a party has materially violated, or breached, its treaty obligations, the other parties may invoke this breach as grounds for temporarily suspending their obligations to that party under the treaty.

• A material breach may also be invoked as grounds for permanently terminating the treaty itself.

• A treaty breach does not automatically suspend or terminate treaty relations, however.

Self Termination / “Sun Set” Clause

• Treaties sometimes include provisions for self-termination, meaning that the treaty is automatically terminated if certain defined conditions are met.

• Some treaties are intended by the parties to be only temporarily binding and are set to expire on a given date.

• Other treaties may terminate if a defined event occurs if the treaty is meant to exist only under certain conditions or in the absence thereof.

Self Termination

• A party may claim that a treaty should be terminated, even absent an express provision, if there has been a fundamental change in circumstances

• Such a change is sufficient if it was unforeseen, if it undermined the “essential basis” of consent by a party, if it radically transforms the extent of obligations between the parties, and if the obligations are still to be performed

• A party cannot base this claim on change brought about by its own breach of the treaty

Questions?

Today we discussed:

• Sources of International Law

• What is a Treaty?

• VCOLT

• Enabling a treaty by national law

• The treaty process