Key Provisions in Treaties - Things to Watch Out For

Treaties in the Global Environment

Mr Jonathan Chew, International Legal Division, DFAT - November 17, 2004

Preamble, Object and Purpose

People sometimes think that the preamble to a treaty is a pretty harmless way of putting in a few flowery statements about the intention of the parties to the treaty.

But you should keep in mind that all parts of the treaty are considered in interpreting it – a tribunal will look at everything between the title at the start and the signatures at the end. And sometimes they’ll look even beyond that. A good example of this is the Bio-Safety Protocol which provides in its preamble that “the Protocol shall not be interpreted as implying a change in the rights and obligations of a Party under any existing international agreements”. This is as equally binding on the Parties to that Protocol as anything else in the Protocol.

Similar warnings apply to any article setting out the objects and purposes of the treaty. Like a preamble, the primary function of such an article is as an interpretational guide – it helps to set the parameters around how the treaty can be interpreted. The Vienna Convention on the Law of Treaties, in fact, specifically provides for this when it says that “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. And articles setting out the objects and purposes of treaties have been used by tribunals in that way – some good examples can be found in some of the cases under the North American Free Trade Agreement, where the tribunals have referred to the trade and investment liberalisation objective in their interpretation of provisions.

You should also remember that the Vienna Convention on the Law of Treaties says that, in the period between signature and entry into force, a country must refrain from acts that would defeat the object and purpose of a treaty. Now, it’s pretty unlikely that Australia would get into trouble under this one, but it’s worth emphasising as a means of pointing out that the object and purposes article is more than just window dressing.

So don’t be blasé about what you are putting in the preamble or the object and purpose article – they might be important one day.

Scope and Coverage

Another key provision that you should consider including in a treaty is a paragraph or two covering the scope and coverage of the treaty. Such provisions can be important in limiting the operation of what might otherwise be read as wide ranging obligations in the rest of the treaty. Such provisions limit the potential for disputes between countries as to the operations of treaties because, if properly drafted, they can put a fence around the operation of the treaty and confine it to the areas the parties intended. For this reason it is a very useful tool to put a brake on imaginative lawyers who might read more into an obligation than the parties ever intended.

So, in a sense, the scope and coverage article has a more powerful application than the preamble to the treaty or the object and purposes article. This is because a scope and coverage article does more than provide an interpretational guide – it limits what the agreement applies to.

A good example of the use of articles on scope and coverage appears in the Australia Singapore Free Trade Agreement – that treaty is broken up into seventeen different chapters, a number of which have “Scope and Coverage” Articles. And some of these Articles don’t only set out what actions a particular Chapter applies to. Some of them go as far as to set out, for good measure, what a particular Chapter definitely does not apply to. So if you are really trying to get rid of something, you can specifically write that down, too.

Provisions regarding signature and entry into force

Australia’s practice in the area of signature and entry into force, particularly for bilateral treaties, is governed mainly by the domestic arrangements regarding treaty making.

As you would be aware, the treaty making power is vested in the Executive. Theoretically, therefore, the Executive branch can conclude treaties without recourse to the Parliament if the treaty requires no change to legislation.

However, the Joint Standing Committee on Treaties of the Parliament now has a role in treaty making.

It is thus now Australian practice to have a two step treaty making process – the first step being signature and the second step being an additional action signalling Australia’s consent to become bound by the treaty. In this regard, it’s also worth remembering that the text of a bilateral treaty is confidential between the parties until it is signed. This also is a reason for the two stage process – tabling of a proposed treaty before Parliament obviously involves publication of it. So, if you wanted to do that before signature, you would have to get the permission of the other party to the treaty. It’s much easier to go for the two stage process – that way the treaty has already been signed before it goes to JSCOT and it can thus be publicised.

It is important to keep this in mind when negotiating a treaty so as to ensure that our negotiating partners are fully aware that signature does not mean that the treaty has entered into force. It is only after the conclusion of all domestic procedures that a treaty can be in force for Australia. And these domestic procedures can include more than JSCOT consideration – if, for example, a treaty requires changes to domestic law before we can be in compliance then that has to obviously be done before entry into force.

Concluding a treaty without this two step process i.e. concluding a treaty which states that it enters into force upon signature would put Australia in a very uncomfortable position if we had not been to JSCOT before signature or implemented required legislation. The end result might be Australia being bound to a treaty that has not gone through the required domestic processes and that our domestic law is inconsistent with – other countries aren’t generally interested in our internal requirements. If the treaty says it enters into force on signature then that’s what they’ll be looking at. And we couldn’t argue that we weren’t bound because we hadn’t been before JSCOT or because we hadn’t implemented the required domestic legislation. The last position we want to be in is to be in breach of the treaty immediately upon its entry into force – but that’s what would happen if required domestic legislation was not in place.

Just to put all of this into some perspective, I would again refer to the Australia Singapore Free Trade Agreement. Now, that was signed on 17 February of this year. It had a two stage process built in, and it didn’t come into force until 28 July. One of the things the treaty did was reduce tariffs on Singaporean imports to zero. Now, this required changes to legislation so as to introduce the new tariff rate. So, in the period between 17 February and 28 July, JSCOT considered the treaty and the required legislation was passed by the Parliament. The treaty couldn’t enter into force until the legislation had passed – to do so would mean that we would not comply with the treaty obligations because our law would still require the imposition of tariffs on imports from Singapore.

As another example, we recently had a bilateral treaty where negotiations concluded and the text did not incorporate the two stage procedure. Now, so as to protect the guilty, I will not go into too much detail. But suffice it to say that there were reasons why we couldn’t go back to the other country and seek the inclusion of a clause setting out the two stage process. So we had to get the permission from the other country to publicise the text of the treaty before signature and then take the proposed treaty to JSCOT. So, in that case, signature happened after JSCOT and there was a one-step entry into force procedure. But, really, we like to avoid going down that route if at all possible – not least of which because it is quite a job explaining to the other country exactly why things are taking so long.

In the area of multilateral treaties, a two step process is usually always available as an option for becoming bound. That is, signature subject to a later act such as ratification, acceptance or approval. When negotiating a multilateral treaty there is often pressure to limit the time that a treaty will be open for signature, such as maybe a year or two. Our preference is generally for there to be a relatively generous time for signature, but that signature be subject to a later act of ratification.

One additional thing to keep in mind when dealing with multilateral treaties is the crafting of the provision about entry into force. For some multilateral treaties, it’s sensible for the treaty to come into force once two countries have ratified. But for others, it doesn’t make any sense. Take, for example, the treaty regarding the establishment of the international criminal court. Now that only entered into force when sixty countries had lodged their instruments of ratification – that made sense because there’s not much use setting up an international court if only two countries have made themselves subject to it. Most cases will be somewhere between two countries and sixty, but it’s worth thinking about early.

Amendment

I’d also like to say something about the amendment provisions in treaties. In the bilateral context things are relatively easy. The parties can set out how to go about amending the treaty or they can just leave it up to what the Vienna Convention on the Law of Treaties says. But please remember that an amendment to a treaty is a treaty action just like entering into it in the first place. So you need to keep in mind that there will probably be a two step process for the amendment as well. That is, the parties will need to have some instrument setting out the amendment but the amendment won’t come into force until all internal procedures, including JSCOT, have been completed. It’s best to put something along those lines in the original treaty itself – ie saying that amendments to the treaty will only enter into force when the sides have notified each other than the domestic requirements for bringing the amendment into force have been completed.

In the multilateral area, amendments can get a bit more difficult, particularly where you are dealing with the creation of international institutions or organisations. You need to decide whether everyone has to agree to an amendment before it enters into force for anyone – that is, do you want the position to be that a proposed amendment has to be ratified by all of the countries to the treaty before it comes into force? With that approach, you ensure that everyone is subject to identical treaty provisions – but of course, you can also have an amendment process stopped by only one country or have it delayed for a long time while every country goes through its laborious internal treaty making procedures.

If you’re not going to go down the “all in or none in” route, then you need to think about how many countries need to agree to a particular amendment before it comes into force. And then you are going to have to decide what’s going to happen to those countries that don’t agree to the amendment. Are they going to continue to be governed by the old regime, or will they be forced to be part of the new regime? Would a two-regime situation be feasible? As an example, consider a hypothetical multilateral treaty where an amendment comes into force for everyone once two-thirds of the countries have ratified it. If Australia is against the particular amendment then it might come into force for Australia if enough of the other countries want it. This might not be the result we’re looking for – of course, we might be able to withdraw from the treaty, but we should at least be certain that withdrawal can be done before any amendment we don’t like would kick in. This is a complex area and you shouldn’t hesitate to seek us out for some advice.

Previous treaties on the same subject matter

You may find yourself in the situation where you are working on a treaty that relates to the same subject matter as an already existing treaty. If that’s the case, then you should give serious consideration as to whether you intend for the new treaty to fully replace the old treaty or you intend for them to somehow operate together.

The Vienna Convention on the Law of Treaties provides that a treaty shall be considered to be terminated if all of the Parties to it conclude a later treaty relating to the same subject matter and one of three situations occurs. The first situation is that the earlier treaty will be terminated if it appears from the later treaty that the Parties intended that the matter should be governed by the later treaty. This frankly is the easiest way of going about things – you should simply include a provision in the later treaty saying that the earlier treaty will end upon the entry into force of the new treaty. The second situation is that the earlier treaty will be terminated if such an intention can be established in some manner other than looking at the terms of the later treaty. The third situation is where the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are incapable of being applied at the same time. Now, if you are in the situation of wanting a later treaty to terminate an earlier one then my view is that it’s best to be clear about it – just put it in the later treaty so there’s no doubt as to the Parties’ intentions.

If you want the two treaties to operate together, then you will need to think clearly about how this is to be achieved and make sure that that is clearly reflected in the later treaty. There’s another provision in the Vienna Convention on the Law of Treaties dealing with successive treaties on the same subject matter which provides some guidance. We can, of course, give you a hand with all this.

Term of a treaty and terminating it

I’d now like to say a few quick words about those provisions in treaties setting out how long the treaty is to operate for, how it can be extended (if at all) and how it can be ended.

As for how long a treaty is to operate, you have a couple of main options. The first is to set a specific period – say, five years. The second is to give the treaty an indefinite life – that is, it continues until it is terminated in accordance with the treaty termination provisions. The decision is essentially one to be taken in the light of the policy objectives of the treaty and how long you think it’s going to be needed.

As for extensions, you need to think about whether both parties are going to have to agree on whether a treaty should be extended for additional periods, or whether an extension will occur automatically unless one of the Parties says that it shouldn’t kick in within a specified period of time. Of course, a treaty can simply say that it goes for, say, five years and then ends. If the Parties then feel like extending it, they could agree to do so – but that would be another treaty action so you would be involving yourself in a bit more work.

I suppose that when you’re negotiating a new treaty, pretty much the last thing on your mind is thinking about how to end it. But it’s an important point to consider. There are a number of options. Some treaties for instances, have a set five year term. But they also say that after the expiration of that five year period, the treaty will continue indefinitely until terminated by either Party on, say, 90 days notice. This clause has been used recently by some of the partners to our bilateral trade and economic treaties – these countries are joining the EU next year so they need to terminate these agreements with us. Most of them wanted to enter into a document with us terminating the relevant treaty as of the date of their accession to the EU. But, for us, that would have been a treaty action with all of the work that that entails. So we suggested to them that they should just use the termination provision in the agreement – under that, all they have to do is provide us with a note from their embassy saying that they are giving the 90 days notice – little work is required on their side and none is required on ours.

Dispute Settlement

The final thing I’d like to say about treaty provisions regards dispute settlement. Of course, this is often a difficult subject to raise during negotiations. But things can, and do, go wrong in the life of treaties and any cordiality evident during negotiations can quickly evaporate. So it’s something that you should put a fair bit of thought into.

One option is to say nothing about what’s to happen in the event of a dispute and leave it to customary international law and the International Court of Justice if applicable. Another alternative, particularly popular in treaties about very technical matters, is to set out in some detail the dispute settlement procedures. These might even go so far as to set out the qualifications required for the members of the tribunal that is to hear the case – this can ensure that you end up with a tribunal with knowledge of the subject matter under dispute. That can make dispute settlement quicker and easier.

Another important thing worth considering in crafting dispute settlement chapter is the incorporation of a “cooling off” period – say a compulsory six months of consultation before formal dispute settlement procedures can happen. This will mean that arbitration is taken as a last, not first, resort.

Procedures prior to entry into force

On procedures prior to entry into force, I would like to start with a warning about the provisional application of treaties. Some of you might be aware that Article 25 of the Vienna Convention on the Law of Treaties sets out a procedure by which treaties can be applied provisionally before entry into force. That is, it envisages a situation where the parties to a treaty could agree that a treaty will be provisionally in force before it has officially entered into force. In our instance, that would usually mean immediately after signature but before JSCOT consideration. This course of action should only be contemplated in exceptional circumstances since it is obviously contrary to at least the spirit of the JSCOT process. And you should always seek DFAT’s advice before proceeding.

I would like to finish with a quick word on preparatory conferences and other actions that might happen before a multilateral treaty enters into force. A number of multilateral treaties set up a system where a lot of the nuts and bolts work is done in the period between adoption of the treaty text and the treaty entering into force. One example of this is the ten sessions of the Preparatory Commission for the International Criminal Court which occurred before the entry into force of the treaty establishing the International Criminal Court. So it’s not necessarily the case that nothing can happen before a treaty comes into force.