Tuesday, 4 May 2021

Concluding a Treaty - I. Instruments of Ratification or Denunciation


States make agreements with each other every day. These range from the almost bafflingly mundane [1] to treaties which have reshaped the global order [2]. But how does this work in practice?

Well, as with everything it is mostly simple with lots of exceptions and corner cases. The fundamental idea is that states [3][4] make agreements and that these then bind them [5]. In a change from my usual style, we will start by considering a simple - and quite boring - example and then move on to the spectacular display of the British Constitution moment!

Effective on Signature

The simplest examples of these are agreements [6] which, when signed, take effect immediately. These are comparatively rare in the modern world, and usually restricted to very technical or low impact things. A very recent example in the UK would be the Agreement between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland regarding Mutual Assistance in Customs Matters between their Customs Administrations [7]. This agreement provides (in part) at Article 14

ARTICLE 14

Entry into Force and Termination

1. This Agreement shall enter into force on the first day of the month following signature. 

[...]

There does not appear to be, technically, any great need for any treaty to be ratified, but the approach of binding a state on signature has two obvious downsides. The first is that it does not provide a window (however long that might be) for the state in question to implement the agreement in domestic law [8] . The second, which is probably the more significant in the modern political world is that it does not provide for any form of Parliamentary  (or equivalent) approval.

A similar form of agreement to this is an agreement by an exchange of notes. Here, two (or more) states exchange formal letters containing identical text of some agreement, and by that exchange become bound. This is often used for highly technical changes to existing agreements, or to correct simple errors. One example is the Exchange of Notes to amend the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America for the Sharing of Visa, Immigration, and Nationality Information, done at Queenstown on 18 April 2013, as amended by an Exchange of Notes on 28 and 29 September 2016 [9]. 

Despite the highly prolix name, this is actually worth a quick look by the curious because these letters are still written in the highly formal diplomatic style, e.g. the UK's note ends with

The Foreign, Commonwealth and Development Office avails itself of the opportunity to renew to the Embassy of the United States of America the assurances of its highest consideration.

This lack of any confirmatory process to finalise the agreement is what leads us to ratification

Ratification of Treaties

This is, at its simplest, a formal declaration by a state that it now accepts and is bound by some agreement it has signed. The Vienna Convention on the Law of Treaties requires that even before this signatories not act contrary to the treaty thusly 
Article 18 
Obligation not to defeat the object and purpose of a treaty prior to its entry into force  
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: 
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or 
(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. 

That said the treaty is not in force, nor is it truly 'complete' until ratified [10]. One reason, mentioned above, for wanting to do this is to involve the legislature. In the United Kingdom, this takes the form of section 20 of the Constitutional Reform and Governance Act 2010 [11] [12]

20. Treaties to be laid before Parliament before ratification

(1) Subject to what follows, a treaty is not to be ratified unless—

(a) a Minister of the Crown has laid before Parliament a copy of the treaty,

(b) the treaty has been published in a way that a Minister of the Crown thinks appropriate, and

(c) period A has expired without either House having resolved, within period A, that the treaty should not be ratified.

(2) Period A is the period of 21 sitting days beginning with the first sitting day after the date on which the requirement in subsection (1)(a) is met.

  [various further provisions omitted]
 This is the codification of the 'Ponsonby Rule'. Prior to this Act, there was no domestic requirement to do pretty well anything to ratify a treaty. It was purely a matter for the executive. Although not ever unique to the United Kingdom, this had become somewhat anomalous by the 21st century. The said 'Rule' was a convention that treaties were laid before Parliament for twenty-one days before being ratified [13]. 

That's the domestic legal bit over and done with. What does this look like in practice? Well, as usual there is more than one way to do this, because it wouldn't be diplomacy, or the British Constitution, if there was not.

Ratification by Her Majesty the Queen

Certain treaties, usually but not always those of the most significant nature, are not concluded between 'governments' or 'states' but this mysterious entity - a High Contracting Party.

For example we see at the beginning of the Treaty of Nice [14] a list of the parties thereto
HIS MAJESTY THE KING OF THE BELGIANS,
HER MAJESTY THE QUEEN OF DENMARK,
THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY,
THE PRESIDENT OF THE HELLENIC REPUBLIC,
HIS MAJESTY THE KING OF SPAIN,
THE PRESIDENT OF THE FRENCH REPUBLIC,
THE PRESIDENT OF IRELAND,
THE PRESIDENT OF THE ITALIAN REPUBLIC,
HIS ROYAL HIGHNESS THE GRAND DUKE OF LUXEMBOURG,
HER MAJESTY THE QUEEN OF THE NETHERLANDS,
THE FEDERAL PRESIDENT OF THE REPUBLIC OF AUSTRIA,
THE PRESIDENT OF THE PORTUGUESE REPUBLIC,
THE PRESIDENT OF THE REPUBLIC OF FINLAND,
HIS MAJESTY THE KING OF SWEDEN,
HER MAJESTY THE QUEEN OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

(capitals as original), which rather than being a list of countries or governments is a list of Heads of State - in years ago a list of sovereigns [15]. Later we find at Article 12

This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.

So what does such a ratification look like? Well, this is the United Kingdom so it is quite spectacular [16]

Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith, &c., &c., &c., To all and singular whom these Presents shall come, Greeting!

WHEREAS, a Protocol No. 15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms [17] was signed at Strasbourg on the Twenty-fourth day of June in the Year of Our Lord Two thousand and Thirteen by the Plenipotentiaries of Us in respect of Our United Kingdom of Great Britain and Northern Ireland and the Plenipotentiaries of the Heads of the other member states of the Council of Europe, duly and respectively authorised for that purpose;

Now there We, having seen and considered the Protocol aforesaid, have approved, accepted and confirmed the same in all and every one of its Articles and Clauses, as We do by these Presents approve, accept, confirm and ratify it, for Ourselves, our Heirs and Successors; engaging and promising upon Our Royal Word that We will sincerely and faithfully perform and observe all and singular the things which are contained and expressed in the Protocol aforesaid, and that We willl never suffer the same to be violated by any one, or transgressed in any manner, as far as it lies in Our power. For the greater testimony and validity of all which, We have caused Our Great Seal to be affixed to these Presents, which We have signed with Our Royal Hand.

GIVEN at Our Court of Saint James's, the nineteenth day of March in the Year of Our Lord Two thousand and Fifteen and in the Sixty-fourth Year of Our Reign.

L.S. [18]

First off - diplomatic et ceteras - don't see those that often anymore! This actually (see blogs passim) does look rather like Letters Patent, and I suppose in a way it is, albeit one for foreign not domestic consumption. 

having seen and considered the Protocol aforesaid

I think this harks back to an earlier time, where ratification was more used a tool for sovereigns to check and approve what their plenipotentaries were up to, rather than its modern purposes. I also notice the claim to ratify not just for now but for future Kings too. Finally, and this perhaps is the key big, is the promise, 

We willl never suffer the same to be violated by any one, or transgressed in any manner, as far as it lies in Our power

or, in other words pacta sunt servanda. One also notes that unlike almost all domestic Letters Patent, this is signed by the Queen. 

This is the system used for the most significant of treaties, which require the greatest formality. What about, then, the 'lesser' ones [19].

Ratification by the Secretary of State

When a treaty is not between the somewhat mysterious High Contracting Parties it is concluded between governments or states (which terms seem to be used almost interchangeably [20]). These are not ratified by the Queen but instead by the Secretary of State for Foreign, Commonwealth, and Development Affairs. 
WHEREAS the Marrakesh Treaty to Faciliate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled [21] was adopted by the Diplomatic Conference to Conclude a Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities on 27 June 2013 and the United Kingdom of Great Britain and Northern Ireland became a signatory to that Treaty on 28 June 2013;

AND WHEREAS paragraph (b) or Article 19 provides that each other eligible party referred to in Article 15 may become party to the said Treaty following the expiration of three months from the date on which it has deposited its instrument of ratification or accession with the Director General of the World Intellectual Property Organisation;

AND WHEREAS the procedures necessary to this end have been completed by the United Kingdom of Great Britain and Northern Ireland;

NOW THEREFORE the Government of the United Kingdom of Great Britain and Northern Ireland, having considered the aforementioned Treaty, hereby confirms and ratifies the same in respect of:
     The United Kingdom of Great Britain and Northern Ireland
     The Bailiwick of Guernsey
     The Bailiwick of Jersey
     Gibraltar
     The Isle of Man

and undertakes faithfully to perform and carry out all the stipulations therein contained.

IN WITNESS WHEREOF this Instrument of Ratification is signed and sealed by Her Majesty's Principal Secretary of State for Foreign, Commonwealth, and Development Affairs.

Done at London on the 24th day of September Two thousand and Twenty.

Dominic Raab

L.S.

This has a very different structure indeed. It begins with some recitals, but in more detail that the ratification by Her Majesty, including the conditions necessary for it to come into force. 

We then see a territorial extent. For the vast majority of countries this is not necessary. For the United Kingdom (and, in particular France and the Netherlands, but there are others too), however, it is. The UK has series of territories, comprising the British Overseas Territories and the three Crown Dependencies for which it is responsible in international law, but which are not [22] part of the UK. It is now settled British practice that treaties only apply to these territories if the UK explicitly says it does. Here we some, but not all, listed. Whether a territory does have a treaty extended to it depends on whether it actually wants it to be extended, which is another bit of democracy in this whole process that ratification allows.

Some treaties within them actually contain more expansive extent clauses, but the UK maintains a practice that it can unilaterally make these declarations even if the treaty is silent. Everyone in the world seems content to go along with this, so it works.

The seal attached to this would not be the Great Seal but instead the Secretary of State's seal. The photo of the EU Withdrawal Agreement in the Annexe (which is also discussed below) is clearer I think.

So that's how signed treaties are perfected. What about a treaty - perhaps a multilateral convention - that the UK has not signed but now wishes to join?

Accession by Her Majesty

When a treaty is no longer open for signature it may provide for other states to nontheless sign up. This process is called accession. In some cases, there is little difference to the two processes. In others, whereas ratification may be an automatic right of a signatory - those negotiating have total freedom to decide who is allowed to sign - accession may come with conditions [23].

Either way, an instrument of accession must be deposited. This might be an unilateral act if there are no conditions, or it may be after those conditions are satisfied. When Her Majesty does this, it looks a bit like this

Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith, &c., &c., &c., To all and singular whom these Presents shall come, Greeting!

WHEREAS, a Second Protocol [24] to the Hague Convention of 1954 [25] for the Protection of Cultural Property in the Event of Armed Conflict 1999 was done at The Hague on the Twenty-sixth day of Match in the Year of Our Lord One thousand Nine hundred and ninety-nine.

Now there We, having seen and considered the Second Protocol aforesaid, have approved, accepted and confirmed the same in all and every one of its Articles and Clauses, as We do by these Presents approve, accept, confirm and accede it, for Ourselves, our Heirs and Successors; engaging and promising upon Our Royal Word that We will sincerely and faithfully perform and observe all and singular the things which are contained and expressed in the Second Protocol aforesaid, and that We willl never suffer the same to be violated by any one, or transgressed in any manner, as far as it lies in Our power. For the greater testimony and validity of all which, We have caused Our Great Seal to be affixed to these Presents, which We have signed with Our Royal Hand.

GIVEN at Our Court of Saint James's, the 31st day of July in the Year of Our Lord Two thousand and Seventeen and in the Sixty-sixth Year of Our Reign.

L.S.

This looks, aside from some words being changed, all but identical to ratification. And it is, because from the stand point of the law - domestic and international - there is not much difference at all.

Now we have to move on to something a little less florid (an accession by the Secretary of State just changes the words from ratify to accede so we can skip it).

Acceptance

Acceptance of a treaty is confusingly used in two overlapping ways. Some states use it for all - or essentially all - ratifications and accessions. Others, like the UK, use it for a very simple form of ratification which consists of just notifying a depositary that the UK is ok with something.

A simple example of this was the accession of North Macedonia to NATO, where the the protocol in question simply required the parties to go 'ok' - albeit diplomatically. Expressed by the Secretary of State thusly

WHEREAS the Protocol to the North Atlantic Treaty [26] on the Accession of the Republic of North Macedonia [27] was signed at Brussels on 6 February 2019, by the Parties to the North Atlantic Treaty;

AND WHEREAS Article II of the said Protocol provides that each of the Parties to the North Atlantic Treaty shall give notification of their acceptance to the Government of the United States of America;

NOW THEREFORE the undersigned, Her Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs, hereby notifies the Government of the United States of America of the acceptance by the Government of the United Kingdom of Great Britain and Northern Ireland of the Protocol aforesaid.

Done at London the SIXTEENTH day of OCTOBER, Two thousand and nineteen.

Dominic Raab

L.S.

Those dates in capitals are as original. Irks me too, don't worry. Nice and simple, it is sort of a minature, cut down version of a ratification by the Secretary of State. Which does make sense since that is how the UK perceives this: it is simply notifying the United States, who are depository of the treaty (more on them later, that term has come up a few times now) that the UK agrees to North Macedonia joining.

The EU Withdrawal Agreement

This is a bit of an odd one [28]. Let's see the text
WHEREAS the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community was signed at Brussels and London on 24 January 2020;

AND WHEREAS Article 185 of the said Agreement provides that this Agreement shall enter into force on one of the following dates, whichever is the earliest:
(a) the day following the end of the period provided for in Article 50(3) Treaty on European Union, as extended by the European Council in agreement with the United Kingdom, provided that, prior to that date, the depositary of this Agreement has received the written notifications by the Union and the United Kingdom regarding the completion of the necessary internal procedures;
(b) the first day of the month following the receipt by the depositary of this Agreement of the last of the written notifications referred to in point (a).
AND WHEREAS the procedures necessary to this end have been completed by the United Kingdom of Great Britain and Northern Ireland and by the territories for which it is internationally responsible; 
NOW THEREFORE the Government of the United Kingdom of Great Britain and Northern Ireland, having considered the aforementioned Agreement, hereby notifies in accordance with Article 185 thereof completion of the necessary internal procedures for the purpose of entry into force of this Agreement and undertakes to faithfully perfom and carry out all the stipulations therein contained. 
IN WITNESS WHEREOF this Instrument is signed and sealed by Her Mjaesty's Principal Secretary of State for Foreign and Commonwealth Affairs. 
Done at London the TWENTY-NINTH day of JANUARY, Two thousand and twenty.

Dominic Raab

L.S.

This to me feels a bit like a conflation of an acceptance and a ratification, having elements of both. The key bit is that it is specifically notifying not a consent to be bound but the completion of necessary internal procedures. Which is one facet of the purpose behind ratification we noted earlier. This may - though I speak without authority here - be simply due to the anomalous nature of an exiting member of a supranational union negotiating an agreement with the union itself. 

Either way, for such a key international treaty in the modern political life of the United Kingdom, it is worth paying it some attention.  

It is also worth noting this line

and by the territories for which it is internationally responsible

The EU treaties applied - somewhat unusually in modern times - to all the Overseas Territories and Crown Dependencies [29]. This is therefore actually a statement that the United Kingdom is disapplying its normal practice and explicitly stating this notification is for it and all the BOTs and Crown Dependencies. [30]

But sometimes a state wishes instead to end its treaty obligations. This is obviously a somewhat fraut process at times, but sometimes it can be rather simple.

Denunciations

Article 15 of the London Fisheries Convention [31] provides that,
The present Convention shall be of unlimited duration. However at any time after the expiration of a period of twenty years from the initial entry into force of the present Convention, any Contracting Party may denounce the Convention by giving two years' notice in writing to the Government of the United Kingdom of Great Britain and Northern Ireland. The latter shall notify the denunciation to the Contracting Parties.

On 3rd July 2018, Boris Johnson - the then Secretary of State - did just this. By, it seems, writing to one of his own Civil Servants.

Dear Mr Harrison

I refer to the Fisheries Convention, done at London on 9 March 1964, and which the United Kingdom of Great Britain and Northern Ireland ratified on 11 September 1964.

In accordance with the provisions of Article 15 of the Convention, I hereby give notice of the denunciation of this Convention by the United Kingdom of Great Britain and Northern Ireland to take effect 2 years from the date of this letter or on the date on which the United Kingdom ceases to be a Member State of the European Union, whichever is the later date.

I should be grateful if you will kindly notify the Contracting Parties of the UK's denunciation.

Yours Sincerely

Boris Johnson

L.S. THE RT HON BORIS JOHNSON MP

This actually shows the role of the depositary very clearly. They are the conduit through which the ratification and - if necessary - denunciation process flows. Even if the state which is the depositary is the one doing the denouncing [32] .

That letter suffices to trigger the process. There does not seem to be a formal serious document which does so. In a way, this may be unsurprising, states probably don't want to parade about their cessation of treaty obligations. 

That concludes part one of this pair of blogs. In part two, which is actually almost finished so hopefully a short wait, we will look at two things: reservations and declarations, and the other side of the coin entirely, viz.what do depositaries do.

Annexe

These are the images corresponding to the things I have OCRed and fixed above




Colophon

Back to writing it seems. Did find the last six months or so to be an eternal curse of writers block, but there we go. Usual comment applies, please let me know about any errors or omissions, and I'll gladly correct or clarify.

I am indebted to the little known UK Treaties Online system the FCDO run, without which this blog would be very light on citations. The instruments of ratification themselves, etc, came from an FOI request.


[1] Literally every tax treaty ever signed ever is baffling. Even if  I did benefit as a result of the Convention between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland for the avoidance of Double Taxation and the prevention of Fiscal Evasion with respect to Taxes on Income and Capital Gains, aka the USA-UK Tax Treaty
[2] The Treaty of Versailles springs to mind here.
[3] Let's elide non-state things which can do this with states for now, little turns on it in practice.
[4] Some might right 'powers' here to capture the Holy See and the Sovereign Military Order of Malta, again, I will elide them with states.
[5] The Latin maxim is pacta sunt servanda.
[6] I will use the terms agreement, pact, treaty, convention, protocol,  etc. pretty much interchangeably because for our purposes nothing turns on whatever limited distinctions exist between them. Amazing how much of this is just different words for the same things, really!
[7] Treaty Series No. 2 (2021) CP 385. All treaties once they come into force are presented to Parliament and numbered in the Treaty Series, so, e.g. the Treaty of Versailles was Treaty Series No. 4 (1919). This is done 'by Command of Her Majesty', hence they are also 'Command Papers'. These are numbered also in a series of series, the current one being the 'CP' series. Versailles was Cmd. 153.
[8] Sometimes 'municipal law' or 'internal law', cf. Article 27 of the Vienna Convention of the Law of Treaties which (attempts to) prohibit states from leaving treaties unimplemented in domestic law.
Article 27 
Internal law and observance of treaties 
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.

(Treaty Series No. 58 (1980), Cmnd. 7964) 

[10] And any other requirements necessary for it to come into force have been met, e.g. a certain number of parties have ratified, or some period of time has elapsed. This is what paragraph (b) or Article 18 is envisaging.
[11] 2010 c. 25; this has on occaision been dispensed with by Act, e.g. by sec. 36 of the European Union (Future Relationship) Act 2020 (c. 29); and in one case enhanced by Act, cf. what was sec. 13 of the European Union (Withdrawal) Act 2018 (c. 16), although this provision was subsequently repealed, and the 2010 Act disapplied, by secs. 31 and 32 of the European Union (Withdrawal Agreement) Act 2020 (c. 1); there was also for a time a bespoke procedure for certain non-withdrawal related EU  treaties contained in sec. 2 of the European Union Act 2011 (c. 12).
[12] Similarly, American readers may be familiar with Article II section 2 of the US Constitution which provides that
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur [...]
[13] This then begat the Country Series and the Miscellaneous Series of unratified treaties; prior to 2018 there was also a European Series for EU (and former EEC, etc) treaties. 
[14] Treaty Series No. 22 (2003) Cm. 5879.
[15] The presence of this list does not appear to be essential, e.g. the European Convention on Human Rights (Treaty Series No. 71 (1953), Cmd. 8969) refers to the High Contracting Parties but omits it, but as we shall see are still ratified by Her Majesty.
[16] On request, I have OCRed (and fixed, muchly) this and the other documents we will see. In the Annexe above is a PNG of the original image. Best of both worlds!
[17] This protocol does not seem to be in force yet, it was however published in the Miscellaneous Series No. 7 (2014) Cm. 8951.
[18] locus sigilli, here the Great Seal of the Realm is attached.
[19] They're not really lesser, they are no less binding and not really different, legally, at all.
[20] Except sometimes as a tool by states with awkward ratification requirements (the US....) to avoid something being a 'treaty' (as domestic law sees it).
[21] Not yet in force, published in the Miscellaneous Series as No. 025 (2019), CP 174.
[22] Really, they're not. Not at all. Not even an iota.
[23] Accession to the EU is a very extreme example of this, but even some anodyne commodities treaties have no automatic right of accession.
[24] Miscellaneous Series No. 1 (2017), Cm. 9411; not yet in force.
[25] Miscellaneous Series No. 6 (1956), Cmd. 9837; however, the UK only ratified this in 2017  (yes, really) and it doesn't seem to have meandered its way into the Treaty Series. This does provide an interesting demonstration of the difference between ratification and accession, though. The UK did sign the original convention back in 1956, but never signed the Second Protocol in 1999. So it had to ratify one and accede to the other!
[26] Treaty Series No. 56 (1949) Cmd. 7789
[27] Miscellaneous Series No. 20 (2019) CP 116; came into force in March 2020.
[28] At least from the perspective of the United Kingdom, I think this form of 'ratification' is not unique, just rarely used in UK diplomatic relations.
[29] E.g. Article 52 of the consolidated version of the Treaty on European Union.
[30] This is one of those things you don't spot until you're actually writing the blog itself
[32] There is in actuality no requirement for the depositary to be a party to the treaty at all, so this looks absurd but is inconsequential in practice.
 

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