Concluding treaties - Australian practice

Treaties in the Global Environment

Michael Bliss, Director, International Law and Transnational Crime Section, DFAT - November 17, 2004

Treaty negotiations are inevitably hard work. They are often complex, and can take a considerable length of time. Therefore a treaty negotiator can be forgiven if he or she, at the conclusion of negotiations, when a final text is at last agreed, pushes the chair back from the negotiating table, breathes a sigh of relief, and says, hopefully, “it is good”, but if not that, at least, “it is done”.

Unfortunately, from a domestic perspective, it is not done. In fact, an essential part of the process remains to be completed– completion of the domestic procedures required for Australia to become party to a treaty.

The domestic processes which are necessary to conclude a treaty in Australia are the less exciting counter part of the actual substantiative part of the treaty negotiations. And somewhat unfortunately, anybody who is involved in one must also have a through understanding of the other aspect of getting a treaty into force in Australia. I will discuss the steps which must be fulfilled in Australian treaty practice to bring a treaty into force for Australia.  This presentation will focus on Executive action to conclude treaties – later presentations will focus on the Parliamentary dimension to the treaty process.

So let me outline the steps required.

First, the mandate to negotiate must be established.

Secondly the text must be finalised and there are various procedures for doing that.

Third, the text must receive Executive Council approval before any signature takes place.

Fourth, it must actually be signed, and then finally, as Jonathan discussed, we have entry into force.

Moving on then to discuss the first point. Before any new treaty is negotiated a mandate must be sought from the Minister for Foreign Affairs. In a case where DFAT is not the lead agency for a treaty, the Minister of the lead agency writes to Mr Downer seeking his approval to begin negotiations.

While strictly speaking, it is Mr Downer who grants the mandate to negotiate, it is also worth considering whether any other ministers should be informed. Typically these would include the Attorney General, particularly if the treaty in question involves domestic legislation. Other ministers who could be involved are the Minister for Defence if it involves any security issues, perhaps the Treasurer if it involves substantial financial expenditure. As a matter of practice Mr Downer won't grant a mandate to negotiate until he has received letters from all of the other ministers who have been consulted and until he is comfortable that there is a whole of government approach to the negotiation of the treaty. If the subject matter of the proposed treaty is of such significance, and of such a high profile, perhaps Cabinet should approve the negotiations going ahead.

Once a mandate to negotiate has been obtained, obviously the negotiations can begin. I understand that this morning that Andrew Serdy spoke to you about processes for negotiation. At some point during negotiation, with any luck, a final text will be agreed by the various negotiating teams.

The achievement of an agreed text is normally recognised by it being initialled. In the case of a bilateral treaty, this physically entails exactly what is suggested, the initials of the head of each delegation are generally put on the bottom of each page of the treaty. In the case of a multilateral treaty, this would normally entail the head of the delegations present at the multilateral conference signing the Final Act of that conference. And commonly the Final Act may include a few things on top of the agreed text of the treaty. It could, for example, include a summary of what has gone on and perhaps a resolution encouraging states to sign and ratify the actual convention itself.

The initialling of an agreed text has no legal effect. It is merely a symbolic and political commitment that the Heads of Delegation are satisfied that the text which is being negotiated is agreed. So strictly, then, any initialled text is still subject to further consideration by the relevant agencies of the governments involved. While that is the strict position, it is very unusual for an initialled text to be revisited, and from a political perspective we would certainly rather that that not be the case. Once something is sufficiently agreed to have an initial on it, hopefully the people who have initialled it have sufficient authority to determine that that will go through the various processes unamended.

Once a text has been initialled it is important that the various different language versions of the text, if indeed it is concluded in a language other than English, are verified against each other to make sure that they have precisely the same effect and that all the provisions mean exactly the same thing. This is achieved through language verification, which normally the Department of Foreign Affairs and Trade would look after. Our Treaties Secretariat has a number of translators here in Canberra, who we use regularly for translation of English language texts into various other languages and also for verification of an English language version against other language versions. Other departments do have their own translators and are very comfortable with using those translators, and we certainly have no problem with them doing that. However, certainly if you do have any concerns about language verification or if you are not sure who could be a good translator to use, then our Treaties Secretariat here in DFAT are able to give you the names of appropriate people whom you may like to contact.

After the text has been finalised we come to perhaps the most arduous process I will discuss, which is seeking Executive Council approval for signature. The Executive Council, as you may well know, consists of the Governor General plus two Ministers or Parliamentary Secretaries. All Ministers and Parliamentary Secretaries are accredited as delegates to the council, thus it doesn't matter which two Ministers or Parliamentary Secretaries actually turn up to the meeting, however, it must be constituted with two of them plus the Governor General.

I will outline six basic steps which must be gone through in order to achieve Executive Council approval for signature. The first is the approval of the text of the treaty by all relevant ministers, or if necessary by Cabinet. Again, as with the case with obtaining the mandate to negotiate, this is normally achieved by the relevant Minister writing to the Minister for Foreign Affairs, and any other Ministers who may have an interest, seeking their approval of the negotiated text. It is also worth noting that in addition to asking the Minister for Foreign Affairs to approve the text of the treaty, the letter to Mr Downer should ask him to submit it before the Executive Council when all other Ministers have approved of the text.

Assuming that process goes ahead without a hitch, and all Ministers are satisfied with the agreed treaty text, we then come to the stage of preparing documents for the Executive Council, or as I have used on the slide, ExCo, which is generally the abbreviation used for it. Three documents must be presented to the Executive Council in order to obtain its approval for signature. The first of those is the text of the treaty itself, which hopefully by this stage is well and truly taken care of.

The second is an Executive Council Minute. ExCo Minutes are prepared by the Department of Foreign Affairs and Trade, and thus are not something other Agencies need to be too concerned about. Formally, the ExCo Minute is the piece of paper approved by the Governor General in Council which authorises signature of the particular treaty. The Governor General in Council approves that a person nominated by the Minister of Foreign Affairs be authorised to sign, for and on behalf of Australia, an agreement on what ever the title of the agreement may be. Furthermore, the ExCo Minute authorises the Minister for Foreign Affairs to draw up an appropriate instrument of full powers for the purpose of full signature.

The other document which must be prepared, which represents a more arduous requirement for Agencies other than DFAT, is the Explanatory Memorandum. The Explanatory Memorandum, as the name suggests, explains the effect of the treaty in a very summarised form to the Executive Council. It begins with a very formal paragraph, saying that Australia's treaty making power is exercisable by the Governor General by virtue of the Chapter Two of the Constitution, which provides among other things that the Executive Power of the Commonwealth is vested in the Queen and is exercisable by the Governor General in Council. That is a standard form paragraph, which appears as the first paragraph of every Explanatory Memorandum.

Similarly the final line of the Explanatory Memo is standard, and reads that 'this minute recommends that approval be given in the form proposed'. So the job that we would ask other Agencies to do when submitting a treaty for Executive Council approval is to fill in between those opening and closing paragraphs – that is, provide a short explanation of the treaty.

Once those various Executive Council documents have been prepared they must be approved by the Executive Council Secretariat before they are actually submitted to the Executive Council. The ExCo Secretariat is located in the Department of the Prime Minister and Cabinet. Normally it would be DFAT who would submit the draft documents to the ExCo Secretariat for them to be approved. Generally the Secretariat makes very minor amendments so that the form of the documents is standard for the Executive Council.

We can move on to the fourth step, which is approval of the Executive Council Documents by the Minister for Foreign Affairs. This entails us, DFAT, submitting the Executive Council documents to our Minister and asking him to sign off on them in various ways. Generally by signing the front page of the Treaty, initialling the Explanatory Memorandum and approving the Executive Minute.

Once the documents have been approved we can move onto the fifth stage, which is the submission of those documents for ExCo's approval. ExCo meetings are generally held every fortnight, although there are some variations in that pattern due to public holidays, the availability of the Governor General and so on and so forth. Final papers are due with the ExCo Secretariat a week before the actual meeting is held. The cut off for draft papers is generally two days prior to the final approved papers being submitted to the Executive Council.

All of this makes timing rather crucial, and from DFAT's perspective, the key point is: please give us enough time to get everything approved in time for the cut off for final papers. Remember that firstly the Draft Explanatory Memorandum must be agreed by all relevant agencies and that ministers must approve the agreed text of the treaty. The draft ExCo documents must then go to the ExCo Secretariat. When they come back, we must then submit them to Mr Downer and that can often take up to a week and perhaps longer, depending on his travel schedule and other commitments. And all that must be done before the cut off for final papers. While none of these steps is particularly complicated, they can take some time, so I would ask: please when you are considering putting a treaty forward to the Executive Council for approval, get in touch with us as early as you possibly can in order to prepare an Explanatory Memo and the other necessary papers.

Having emphasised the strictness of the time lines that ExCo follows there are two ways around that timelines, although the last thing I would like anyone to walk away with is the idea that we routinely encourage people to follow either of these procedures. However, in cases where there is an urgent need to get something before ExCo and the timelines have proved too tight to do it in the normal fashion, it is possible to submit papers late, provided we do so with an explanatory letter from a Deputy Secretary.

The second process is to call an emergency Executive Council meeting. As I said the Executive Council is formed with the Governor General and two Ministers or Parliamentary Secretaries. Obviously these are busy people and trying to call an emergency meeting at the drop of the hat is not the easiest thing to do. Normally at emergency meetings we would prefer that the Ministers or Parliamentary Secretaries who attend those meetings have some relevance to the subject matter which will be considered. However, sometimes that is not possible and recently at an emergency ExCo meeting a defence-related treaty was considered by the Minister for Health and the Parliamentary Secretary for Health, which I am sure was a very informed and lengthy discussion of the various provisions in the treaty text. So let me stress again: we do not encourage you to follow either of those two emergency procedures. But please do be aware that they are there, and if need be we can get around the time lines to some degree.

Having achieved Executive Council approval then we can move on to of the treaty itself. And I have outlined three steps here, which I will very briefly explain. The first is the arrangement of a signing ceremony which our Treaties Secretariat can provide advice on. The second step is to obtain an instrument of full powers authorising someone to go and sign the treaty on behalf of Australia. An instrument of full powers must be obtained when anybody other than the Minister for Foreign Affairs, the Prime Minister or the Governor General will be signing the treaty. Again that is something that DFAT will take care of, if you inform us that you would like an instrument of full powers to be arranged. Again, that must be done through a submission to our Minister in order to ask him to sign an instrument of full powers, and again be aware of timelines in realising that we do have to get a submission up to our Minister's office and back again before signature can take place.

Finally then the third step is to actually go and sign the treaty at the arranged signing ceremony. Very briefly the signature of a treaty establishes an obligation to refrain from acts which would defeat the object and purpose of that treaty, so it does have some legal effect. However, it does not mean that Australia becomes bound by the particular and exact terms of the treaty; that happens upon entry into force.  This is one reason why, when drafting treaties, it can be very useful to include an object and purpose clause, because then upon signature it is very clear what sort of commitments we have taken on as opposed to leaving it open to interpreting what the object and purpose may be and whether a particular provision falls within that.

A previous speaker mentioned that Australian treaty practice uses a two stage process for becoming party to a treaty. The first stage commonly being signature and the second being some form of binding treaty action. However, in talking about entry into force, it is important to discuss bilateral and multilateral treaties individually.

Fundamentally entry into force depends on the terms of the treaty and that will always be the basis for what States must do to become party to a treaty. However, there are some standard forms which multilateral treaties commonly take and which Australian treaty practice would prefer bilateral treaties take. I hasten to add too, that entry into force does follow a range of other procedures, primarily the requirement to table the treaty in parliament for fifteen sitting days and the consideration of that treaty by JSCOT. I understand that Ruth and others will be presenting information on that a little later on.

The Australian preference, and we would encourage you to be aware of this in negotiating a bilateral treaty, is to bring it into force by an exchange of notes. Those notes would confirm that domestic procedures necessary to give effect to the treaty have been satisfied. By that we would normally mean that the treaty has been tabled in Parliament and it has been considered by JSCOT and any cases where domestic legislation must be enacted or amended, that indeed has been done. I guess the beauty of getting a bilateral treaty into force this way is that further Executive Council approval is not required. We only require ExCo approval for signature and not for handing across a note which certifies our domestic procedures are completed and entry into force can occur. The timing of when a note will be handed across will also depend on the other side having completed their domestic procedures. And rather than have us issue a note in one month and the other side perhaps issue their note in return six months later, we would normally informally liaise such that the two notes are issued at the same time and the treaty is neatly brought into effect, by exchange of notes, hopefully on the same day.

As Jonathan mentioned, commonly multilateral treaties are open for signature for a set period of time. And thereafter they are open for accession - which is a binding treaty action which brings the treaty into force for that particular state party - but no longer open for signature. Thus the terms used for the entry into force for multilateral treaties differ depending on the time at which we are aiming to get the treaty into force for Australia. If Australia is a signatory to the treaty, then generally the treaty will provide for ratification. In that case an instrument of ratification must be drawn up and approved by the Executive Council before it can be deposited with the ratification body.

If however Australia is not a signatory to the treaty, which would normally mean that the period for which the treaty was open for signature has expired and Australia has not taken any action within that period, then we could choose to accede to the treaty. As with ratification, an instrument of accession must be drawn up and that too must be approved by the Executive Council. Now you may note on the slide there also a couple of other terms, specifically being acceptance or approval. Acceptance or approval normally occurs when a treaty is an amending treaty. And you will quite commonly find that is called a Protocol. However, as they tend to be a bit rarer we normally find ourselves looking at instruments of accession to allow a treaty to enter into force for Australia after the period for signature has elapsed.

Hopefully then this introduction to the Australian process required for conclusion of a treaty has made the waters a little less muddy. Some of the processes can be a little complicated, and running through them reasonably quickly this morning, they may still appear a little confusing, and we certainly appreciate that. However, we are here to help and we are more than happy to receive phone calls on any of these issues and to answer any questions, however basic you may think they are. It is important that we do get the processes right.

Thank you.