Workshop Presentation to the Republic of Namibia's Ministry of Justice on Drafting of Treaties and Domestication into National Legislation, Walvis Bay, Namibia, November 2012

1. Drafting of Treaties and
Domestication into
National Legislation
Prof. William Kosar
UNDP/Rwanda

2. Today we will discuss:
•What is a Treaty?
•Enabling a treaty
by national law
•Types of Treaties
•VCOLT
•The Treaty Process

3. 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

4. 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

6. What is a Treaty?

7. 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”

8. • 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”

9. 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

10. 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

11. 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

12. 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.

13. 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

14. 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

15. 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

16. 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.

17. 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;

18. 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;

19. VCOLT STATUS
•Rwanda acceded 3 January 1980
•What about Namibia?

20. Enabling a treaty by
national law

21. 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

22. 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

23. 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‖)

24. 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

25. 3 Approaches
Dualist vs. Monist

27. 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

28. 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

30. 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‖

31. 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

32. 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. . . .“

33. 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]‟.

34. Different Approaches
in Africa

35. 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.

36. 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.

37. 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.

38. 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.

39. 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.

40. 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.

41. WHAT IS THE SITUATION
HERE IN NAMIBIA?

42. 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;

43. 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;

44. 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;

45. Article 96 Foreign Relations
The State shall endeavour to ensure that in
its international relations it:
(d) fosters respect for international law
& treaty obligations;

46. 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.

47. 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.

48. 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.

49. The Treaty Process

50. 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

51. 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

52. 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.

53. 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.

54. 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

55. 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

56. 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.

57. 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.

58. 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.

59. 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

60. Questions?

61. Today we discussed:
•Sources of International Law
•What is a Treaty?
•VCOLT
•Enabling a treaty by national law
•The treaty process