Chapter 3

Trick or Treaty? Commonwealth Power to Make and Implement Treaties

Chapter 3

Introduction to International Law

What is a treaty?

3.1 Professor D.P. O'Connell has described the difficulty in defining a treaty as follows:

3.2 International law concerning treaties has been partially codified in the Vienna Convention on the Law of Treaties. The treaty was drafted in two sessions in 1968 and 1969 and came into force internationally on 27 January 1980. Australia acceded to this treaty on 13 June 1974. The Convention sets out international agreement on the procedure and consequences of entering into treaties, reservations to treaties, interpretation of treaties, termination of treaties and withdrawal from treaties.

3.3 Article 2(1)(a) of the Vienna Convention on the Law of Treaties defines a treaty as '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 designation.' Like contracts in domestic legal systems, treaties are binding in accordance with their terms.[2]

3.4 The major distinguishing characteristic of a treaty is that it is concluded between sovereign nation states with full international personality.[3] Individuals, or groups without international personality, cannot be parties to a treaty.[4]

3.5 Under international law, a treaty becomes binding on any nation state which enters into it.[5] A treaty can, therefore, only be signed or ratified by an official representative of the nation state. The Vienna Convention on the Law of Treaties recognises Heads of State, Heads of Government and Ministers for Foreign Affairs as having the capacity to enter into treaties on behalf of their nations. In certain cases diplomats or official representatives to an international conference are also recognised as having such capacity. Otherwise, a document authorising the person to enter into the treaty must be provided by the 'competent authority' of the nation.[6]

3.6 The term 'treaty' is a general one which covers a range of international instruments, including charters, conventions, covenants, protocols, agreements, pacts and exchanges of notes.

When do treaties come into force for a country?

3.7 Bilateral treaties usually come into force upon signature, or at an agreed date in the future.

3.8 Multilateral treaties, on the other hand, do not usually come into force upon signature. A second step of 'ratification' or 'accession', by which parties commit themselves to fulfilling the terms of the treaty, is required. Even then, a treaty does not usually come into force at an international level until a certain number of ratifications have been deposited, depending on the terms of the treaty. Treaties may also stipulate that any ratification or accession deposited after the treaty has come into force, will not take effect until a certain period has elapsed.

2.9 An example is article 49 of the International Covenant on Civil and Political Rights. It provides that the Covenant shall enter into force three months after the date of the deposit of the thirty-fifth instrument of ratification or accession. It further provides that if a country ratifies or accedes to the Covenant after that date, then it shall enter into force in respect of that country three months after the date of the deposit of its instrument of ratification or accession.

What is the effect of a treaty being signed on behalf of a country?

3.10 'Signature' is the formal term used to show that a party agrees with the content of an agreement. It does not necessarily signify an intention to be bound. Its significance, in part, is historical and harks back to the time when absolute monarchies were the norm, transport and communications awkward and representatives of states were given 'full powers' meaning the power to bind their sovereign.

3.11 Whether signature is effective in bringing the treaty into operation will depend on the intention of the parties.[7] If the parties intend that they will only be bound by the treaty once they commit the further act of ratifying the treaty, then signature itself will not bind the parties.

3.12 Where a treaty has been signed on behalf of a country, but not yet ratified, there is an obligation on the part of the signatory country to proceed to ratification in good faith. The Department of Foreign Affairs and Trade has advised that it is Australia's policy to adhere to this duty of good faith and that Australia does not sign treaties without an intention to ratify them.[8]

3.13 Signature also gives rise to a duty to refrain from acts which would defeat the object and purpose of a treaty, until such time as a signatory makes it clear that it is no longer intending to become a party to the treaty.[9]

Ratification

3.14 Ratification literally means 'confirmation' and in the days of absolute monarchies the Monarch would 'confirm' his agent's signature. In a formal sense the act was fairly meaningless and only really added solemnity to the process. The reverse is the situation in modern treaty making practice.

3.15 Today ratification denotes two distinct acts in the treaty making process. It has domestic meaning denoting the procedures peculiar to the country for that country to bind itself. Ratification in this sense for Australia is the decision by the Governor-General in Council to approve the Treaty.

3.16 The second sense of ratification is the international act whereby the country expresses its consent to be bound. In modern treaty practice this is often a deposit of an instrument of ratification. In Australia this instrument will be drafted by the legal office of the Department of Foreign Affairs and Trade. It will express Australia's acceptance of the terms of the treaty including any qualifications or reservations to that approval. It will occur after the relevant domestic procedures have taken place, allowing ratification.

3.17 Ratification is only necessary if the treaty or the parties require it. In other cases, the treaty will enter into force upon signature.

Accession

3.18 Accession describes the situation where a country was not originally a signatory to the treaty but subsequently accepts its provisions. 'Acceptance' and 'approval' also describe the same process. Generally how a country accedes to a treaty will depend on the treaty itself. Typically it may involve the deposit of an instrument of accession.[10]

What does it mean when a country enters a reservation to a treaty?

3.19 Article 2 of the Vienna Convention on the Law of Treaties describes a reservation as:

3.20 Article 19 of the Vienna Convention on the Law of Treaties provides that a nation state may not make a reservation if the reservation is prohibited by the treaty, or if it does not fall within the type of reservations that the treaty allows, or if the reservation is incompatible with the object and purpose of the treaty. Many major multilateral treaties have specific provisions dealing with the type of reservations which are permissible, and those which are not.

When can a country withdraw from or denounce a treaty?

3.21 Under customary international law, treaties are legal agreements which must be obeyed. This is summed up by the Latin maxim: pacta sunt servanda.[11] A treaty is evidence of the consent of all the parties to be bound by its provisions. This consent can usually be withdrawn and this process is generally termed 'denunciation'.[12]

3.22 A treaty may stipulate the terms on which a party can withdraw from, or denounce, the treaty. For example, the Convention on the Elimination of All Forms of Racial Discrimination provides that a party may denounce the Convention by written notification to the Secretary-General of the United Nations. Denunciation is to take effect one year after the date of receipt of the notification by the Secretary-General.

3.23 In some cases denunciation is subject to very strict conditions. For example, the ILO Convention Concerning Discrimination in Respect of Employment and Occupation 1958 (No. 111) provides in Article 9 that a party to the Convention may denounce it after the expiration of ten years from the date on which it first came into force, or at intervals of 10 years thereafter, and that denunciation will take effect from the date one year after the denunciation is registered.

3.24 If a treaty does not provide for denunciation or withdrawal, article 56 of the Vienna Convention on the Law of Treaties provides that denunciation or withdrawal is not allowed unless it is established that the parties intended to allow for denunciation or a right of denunciation or withdrawal may be implied by the nature of the treaty.

3.25 A party may also denounce a treaty if it has the consent of all the other parties to the treaty. Unilateral denunciation is a fact of treaty practice although some theoreticians argue that it can only be done where the treaty has been substantially breached by the other party.[13]

What are the consequences of a breach of a treaty?

3.26 A breach of international law has different consequences as compared to a breach of domestic law. There is no international court that can compel parties to appear before it. This is in contrast to the consequences of a breach of domestic law where domestic courts can compel parties to appear before them. In international law disputes, such as the breach of a treaty, political pressure and diplomatic negotiations are relied upon as important ways to resolve disputes and encourage compliance with treaty obligations.[14]

3.27 The International Court of Justice in the Hague adjudicates disputes between countries on international law matters. All members of the United Nations are members of the Statute of the International Court of Justice and there is also provision in the Statute for other countries to become parties to it.

3.28 However, the International Court of Justice only has jurisdiction over a matter if parties consent to its jurisdiction. Under art.36(2) of the Statute of the International Court of Justice, countries can declare that they recognise the jurisdiction of the Court. Australia has made an unconditional declaration under art.36(2) of the Statute of the International Court of Justice. Indonesia has not made such a declaration. Accordingly, in the East Timor dispute, Portugal took action in the International Court of Justice against Australia, rather than Indonesia, because the Court did not have any jurisdiction to bind Indonesia.[15]

3.29 Article 94(1) of the United Nations Charter provides that in cases where the International Court of Justice has jurisdiction, the decision of the Court is binding on the parties to the case. However, it has been the case that defendant countries have boycotted the Court's proceedings or not complied with judgments of the Court.[16] Article 94(2) of the United Nations Charter provides that in cases where judgments of the Court are breached, the other party may seek the assistance of the United Nations Security Council to enforce the Court's judgment. For example, the Council may recommend the implementation of economic sanctions against the nation in breach of the Court's judgment.[17]

3.30 Some treaties provide their own enforcement procedures.[18] For example, an arbitration mechanism was included in the bilateral Australia/United States Air Transport Agreement. In 1993, Australia triggered this arbitration mechanism in relation to the dispute concerning the US airline, Northwest Airlines. Although the dispute was settled, it has been argued that 'the triggering of arbitration was a motivating force in reaching settlement.'[19]

Customary international law

3.31 Customary international law consists of international custom as evidenced by a general practice accepted as law.[20] For a practice to be accepted as an international customary law, the particular practice must be observed by the great majority of nation states and there must also be evidence that the practice is accepted as a matter of legal right or obligation.[21]

3.32 Provisions in a treaty may become customary international law and therefore become binding even on nations which are not parties to the treaty. This may happen where customary international law develops to embrace the new norm included in a treaty, that is, where the great majority of states enter the treaty and abide by the provisions.[22] Of course where a treaty merely codifies existing customary international law the provisions may already be binding on states not party to the treaty.[23]

3.33 There is some authority that customary international law may form part of the common law of Australia. The Hon. Elizabeth Evatt described the position as follows:

Treaties and the federal system

3.34 Whether internal limitations on a country's treaty making capacity will actually affect that country's treaty making capacity on the international plane is uncertain. Some contend that constitutional limitations will limit treaty making capacity on the international sphere whereas the alternate view is that a country is bound irrespective of its internal limitations so long as the consent was given by an agent properly authorised by international law.[25]

3.35 The problem most commonly arises in federations, with treaties which demand that parties legislate in a certain way, when the federal government of the particular country is not constitutionally competent to fulfil the obligation.

3.36 Article 27 of the Vienna Convention on the Law of Treaties provides that: 'A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty'. An exception is provided for in article 46 which states:

3.37 The problems arising from federal systems are sometimes dealt with explicitly in treaties in the form of a federal clause. An example is the following clause from article 34 of the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage:

3.38 Federal clauses have become less popular in the last two decades. Many non-federal countries see them as mere excuses for avoiding treaty obligations.[27] Accordingly, it is more difficult to get other countries to agree to insert a federal clause in a multilateral treaty. The only option for a federation, then, is to express its federal limitations by way of reservation.

3.39 An example of the difficulties involved in achieving federal clauses in treaties is the case of the International Covenant on Civil and Political Rights. During the course of the Covenant's negotiation, the United States, Australia and India recommended that a federal clause be included. Other countries objected 'on the grounds that it gave the federal authority a wide discretion to avoid responsibility and left non-federal states in doubt as to the legal obligations of federal states under the treaty.'[28] The Soviet Union proposed the insertion of a clause stating that the Covenant shall apply to all parts of federal states, regardless of their internal divisions of power. This proposal was accepted and became article 50 of the Covenant, which provides:

3.40 When Australia ratified the International Covenant on Civil and Political Rights in 1980, it included a reservation which explained the federal system of government in Australia, and stated:

3.41 This reservation was controversial and drew international criticism.[30] The reservation was withdrawn by the Commonwealth Government in 1984, and replaced by a 'federal statement'.

3.42 The United States of America also issued an 'understanding' at the time that it ratified the International Covenant on Civil and Political Rights. This 'understanding' has also been the subject of some criticism.[31]

3.43 The issue of whether federal clauses are viable and appropriate is discussed in Chapter 13 of this report.

The United Nations

3.44 International organisations play an important role in international law. They are established by treaties between countries and have independent legal personality.[32] Many such organisations exist today. Two major international organisations are the United Nations and the International Labour Organisation.

3.45 The United Nations is made up of six principal organs, the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the Secretariat and the International Court of Justice. There are also a range of other United Nations organs, such as the United Nations High Commission for Refugees and the World Food Council.

3.46 The United Nations system also comprises a number of specialised agencies and other autonomous organisations, including the International Telecommunications Union and the World Intellectual Property Organization.[33]

3.47 The Charter of the United Nations was signed on 26 June 1945 at the San Francisco Conference on International Organisation and came into force on 24 October 1945.[34] The United Nations General Assembly is the main representative body of the United Nations. It consists of all Member States, each of which has one vote. The regular session of United Nations General Assembly begins each year on the third Tuesday of September and usually continues until mid-December.

3.48 The fundamental objective of the United Nations Charter is the goal of ensuring international peace and security - 'saving succeeding generations from the scourge of war' as stated in the Preamble.[35]

3.49 Human rights were also recognised as important under the Charter of the United Nations. Article 13 of the United Nations Charter provides that one of the functions of the General Assembly is to initiate studies and make recommendations for the purpose of:

3.50 The United Nations Security Council has primary responsibility for the maintenance of international peace and security,[37] a function which encompasses the peaceful settlement of disputes and responses to acts threatening international peace and security. It is important to note that the Security Council has wide-ranging enforcement powers, including the power to authorise sanctions, embargoes and all other necessary means (including the use of force) for the purpose of maintaining or restoring international peace and security.[38]

3.51 The United Nations has a number of functional bodies. Under Article 62 of the United Nations Charter, the Economic and Social Council may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all. It may also prepare draft conventions for submission to the General Assembly and call international conferences on human rights matters.[39]

3.52 The United Nations Commission on Human Rights was established by the Economic and Social Council in 1946. It meets annually in Geneva and may also be convened in order to consider urgent situations. It is the main body dealing with human rights and has a wide mandate to deal with any matter relating to human rights including the consideration of country situations and also standard setting activities, including the preparation of draft treaties on human rights. Australia is currently a member of the UN Commission on Human Rights.

The International Labour Organisation

3.53 Membership of the International Labour Organisation (ILO) is open only to nation states which are recognised as such in international law. In practice most members of the United Nations are also members of the ILO.[40]

3.54 The International Labour Conference (ILC) meets annually, usually in Geneva. It is composed of representatives of each of the members of the Organisation. Each member nation is entitled to a delegation of four comprising two Government representatives, and one representative each of employers and workers in the country concerned. The employers' and workers' delegates are appointed by governments in consultation with the representative industrial organisations in their respective countries. In Australia, these comprise the Australian Chamber of Commerce and Industry (ACCI) and the Australian Council of Trade Unions (ACTU).

3.55 One of the principal functions of the ILC is the adoption of formal instruments establishing international labour standards. These instruments take the form of Conventions and Recommendations. The ILC has general oversight over the operation of the Organisation, including approval of its budget.[41]

3.56 The Governing Body of the ILO is composed of twenty-eight government representatives, 14 workers' representatives and 14 employers' representatives. The Governing Body meets in Geneva three times a year. It is responsible for the planning and direction of the work of the organisation on a day-to-day basis.

3.57 With the exception of two terms (1960-63 and 1969-72), Australia has been a government member of the Governing Body since 1945, and has provided the Chairman of the Governing Body on two occasions, 1975 and 1989. In addition to the Government, both the President of the ACTU and the Executive Director of the ACCI are presently members of the governing Body (1993-95).[42]

3.58 Article 24 of the ILO Constitution allows for representations to be initiated by workers' or employers' associations in cases of alleged non-observance by members of their ILO obligations. In addition a special procedure in relation to complaints concerning infringements of the right to freedom of association has been in place since 1950. There are over 300 international labour conventions and recommendations.[43]

Endnotes:

  1. D. P. O'Connell, International Law, Vol. 1, 2nd ed., Stevens and Sons, London, 1970: p 205.
  2. I. Shearer, 'The implications of non-treaty law making customary law and its implications', unpublished paper delivered at the Australia in a Global Context: The United Nations and Law Making for the 21st Century Conference, Australian National University, May 1995.
  3. 'International personality' exists where there is general international recognition that a country, body or organisation has the legal capacity to enter into international relations. Apart from nation states, some international organisations such as the United Nations have been recognised as having international personality. In some cases, if the Constitution of a country allows it, the sub-State components of a country (such as provinces or cantons) may enter into international relations, and therefore have a limited form of international personality. See Chapter 10.
  4. A contract between a State granting concessions to a private company, for example, is not a treaty: Anglo-Iranian Oil Case, ICJ Reports (1952) 111.
  5. Article 26 of the Vienna Convention on the Law of Treaties provides that: 'Every treaty in force is binding upon the parties to it and must be performed by them in good faith'.
  6. Article 7, Vienna Convention on the Law of Treaties.
  7. Article 12 of the Vienna Convention on the Law of Treaties states that the consent of a party to be bound is expressed by signature when the treaty provides that signature shall have that effect. Likewise article 14 states that ratification will express consent when the treaty so provides.
  8. Mr C.R. Jones, Department of Foreign Affairs and Trade, Submission No. 93, Vol 6, p 1158.
  9. Article 18, Vienna Convention on the Law of Treaties. See also: Department of Foreign Affairs and Trade, Negotiation, Conclusion and Implementation of International Treaties and Arrangements, AGPS, Canberra, August 1994: p. 12; and Hansard, SCLRC, 25 July 1995, p 837, per Professor H. Charlesworth.
  10. A country may only accede to a treaty with the agreement of the parties to the treaty. Such agreement might have been given in advance by the provisions of the treaty: Article 15(a), Vienna Convention on the Law of Treaties. For example, in a number of multilateral 'law-making' treaties, like the Geneva Conventions of 1958 or the Vienna Convention on the Law of Treaties 1969, accession is possible by any state which is a member of the United Nations or of any of the Specialised Agencies: Professor D. W. Greig, Submission No. 112, Vol 7, p 1502.
  11. This principle has now been codified in Article 26 of the Vienna Convention on the Law of Treaties.
  12. The views of witnesses on whether Australia should withdraw from, or denounce, treaties, are discussed in Chapter 11.
  13. D.P. O'Connell, International Law, Vol. 1, 2nd ed., Stevens and Sons, London, 1970: p 267.
  14. C. Staker, 'Introduction to International Law', International Law, Attorney-General's Department, October 1994, p 7.
  15. A. Twomey, Procedure and Practice of Entering and Implementing International Treaties, Background Paper No. 27 1995, Parliamentary Research Service, p 14.
  16. C. Staker, 'Introduction to International Law', International Law, Attorney-General's Department, October 1994, p 8.
  17. A. Twomey, Procedure and Practice of Entering and Implementing International Treaties, Background Paper No. 27 1995, Parliamentary Research Service, p 14.
  18. See also article 60 Vienna Convention on the Law of Treaties that provides for termination or suspension of the operation of a treaty as a consequence of its breach.
  19. C. Staker, 'Introduction to International Law', International Law, Attorney-General's Department, October 1994, p 8.
  20. Article 38(1) of the Statute of the International Court of Justice.
  21. I. Shearer, 'The implications of non-treaty law making customary law and its implications', unpublished paper delivered at the Australia in a Global Context: The United Nations and Law Making for the 21st Century Conference, Australian National University, May 1995.
  22. R. Higgins, Problems and Process; International law and how we use it, Clarendon Press, Oxford, 1994: p 29. Professor Higgins referred to the North Sea Continental Shelf Cases as recognising this possibility.
  23. R. Higgins, Problems and Process; International law and how we use it, Clarendon Press, Oxford, 1994: p 29.
  24. Hansard, SLCRC, 16 May 1995, p 379, and pp. 394-5. See also Hansard, SLCRC, 13 June 1995, p 525 and pp. 546-8, per Mr B. Fitzgerald.
  25. I. Brownlie, Principles of Public International Law, 4th ed, Clarendon Press, Oxford, 1990: p 613.
  26. For further examples of federal clauses, see: H. Burmester, 'Federal Clauses: An Australian Perspective' (1985) 34 International and Comparative Law Quarterly 522.
  27. Hansard, SLCRC, 13 June 1995, p 533, per Professor K. Wiltshire.
  28. G. Triggs, 'Australia's Ratification of the International Covenant on Civil and Political Rights: Endorsement or Repudiation?' (1982) 31 International and Comparative Law Quarterly 286.
  29. See full text of the reservation in: G. Triggs, 'Australia's Ratification of the International Covenant on Civil and Political Rights: Endorsement or Repudiation?' (1982) 31 International and Comparative Law Quarterly 304-5.
  30. Hansard, SLCRC, 16 May 1995, p 373, per The Hon. E.G. Whitlam. See also: E.G. Whitlam, 'National and International Maturity', (1992) 46 Australian Journal of International Affairs 35.
  31. The understanding provides:

    That the United States understands that this Covenant shall be implemented by the Federal government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfilment of the Covenant. ST/LEGLSER.E/13 p 126.

    See discussion in: D.P. Stewart, 'United States Ratification of the Covenant on Civil and Political Rights: The Significance of the Reservations, Understandings and Declarations' (1993) 42 DePaul Law Review 1183, at 1201-2.
  32. I. Brownlie, Principles of Public International Law, 4th edition, Clarendon Press, 1990, pp 680-3.
  33. United Nations, Basic Facts About the United Nations, Department of Public Information, United Nations, New York, 1992.
  34. The following description of the United Nations is based on Department of Foreign Affairs and Trade, Human Rights Manual, AGPS, Canberra, 1993.
  35. Department of Foreign Affairs and Trade, Human Rights Manual, AGPS, Canberra, 1993: p 49.
  36. Department of Foreign Affairs and Trade, Human Rights Manual, AGPS, Canberra, 1993: p 50.
  37. Article 24, Charter of the United Nations.
  38. Department of Foreign Affairs and Trade, Human Rights Manual, AGPS, Canberra, 1993: p 51.
  39. Department of Foreign Affairs and Trade, Human Rights Manual, AGPS, Canberra, 1993: p 52.
  40. This description is based on the submission from the Australian Council of Trade Unions. Submission No. 76, Vol 4, pp 802-803.
  41. ACTU, Submission No. 76, Vol 4, pp 802-803.
  42. ACTU, Submission No. 76, Vol 4, pp 802-803.
  43. Department of Foreign Affairs and Trade, Human Rights Manual, AGPS, Canberra, 1993: p 64.