Negotiating Treaties

Treaties in the Global Environment

Mr Andrew Serdy, International Legal Division, DFAT - November 17, 2004

Good morning.

It is my pleasure to speak to you on some of the more intricate aspects of negotiating treaties. There are certain formalities and processes which need to be followed during treaty negotiations, which may be completed quickly but sometimes they take quite some time to finalise. 

Multilateral negotiations and multilateral treaties are a relatively new phenomenon. You may ask, ‘how can that be?’ There have been agreements which involve a number of States going back millennia, including agreements that were reached between States within the Roman Empire. But the idea of one instrument which reflects the will of a large number of states is actually something fairly new and really only arose at the earliest as a result of the Vienna Congress of 1815.

An example of how it was done in the “good old days” is the Treaty of Westphalia of 1648. This may be one of the most significant treaties in the history of the world because after it was signed at the end of the Thirty Years War, it defined the face of Europe until the Napoleonic Era. The English name is a little misleading. Westphalia is in Germany and in German the name translates as the Peace of Westphalia. In some ways this is more accurate because it was a peace constructed out of a whole patchwork of bilateral agreements. And that is the way they used to do it. Even in a major negotiation with many States, they would go off on a bilateral basis and negotiate their own agreements and then attempt to coordinate those. Not easy, because the number of pairings rises proportionally to the square of the number of participants. Even with half a dozen countries you would end up with 15 bilateral agreements; with ten you would get 45. Nor would they be identical, because their content would depend upon the particular circumstances of the States involved. I will come back to the 1815 innovation shortly, but first a few words about

Credentials

Whenever Australia is represented at a diplomatic conference, credentials, issued under the seal and signature of the Minister for Foreign Affairs, are required to be presented to the organising body, either at the conference itself or before it begins. The modern basis for this practice is the 1969 Vienna Convention on Law of the Treaties (Article 7). This says that for the purposes of adopting or authenticating treaties, Heads of States, Heads of Governments and Ministers for Foreign Affairs have that capacity ipso facto as a result of their office. The Foreign Minister can delegate the authority to negotiate treaties to relevant officials and credentials are necessary to demonstrate this authority to other negotiating parties and the relevant international organisation. 

The presentation of credentials is unique to multilateral negotiations and is not necessary for bilateral negotiations. On a bilateral level, there is enough communication and understanding among States that credentials are not necessary – in many cases, the delegates working on a particular issue will already know one another when they arrive for formal discussions. 

In the multilateral context a very large number of people may take part – sometimes hundreds from around the world – so it is necessary to be able to ascertain, in a formal sense, the capacity of the individuals involved to represent their countries and to take decisions or participate in the making of decisions and later on in adopting treaties.

And of course within that context it is very important to be able to specify the status of the participants - whether they are representatives, or observers or advisers. This is particularly important in fora where the parties will reach a decision by voting. 

Rules of Procedure

The rules of procedure are basically the guide for how a negotiation will be conducted and how decisions will be made in the formal process. In international relations, many decisions are made through informal discussions outside the main meeting hall and “corridor chat” can often be a very persuasive tool. Negotiations tend to involve a combination of formal and informal mechanisms, and quite often it is the informal side of things which is more important. The crucial thing is getting the right people together, getting constructive dialogue happening and keeping it going.

Nonetheless, it is what happens in the main forum that counts in terms of negotiating the final text of a treaty. A successful negotiator can merge the informal substantive discussions with the formal process, creating an instrument that can be formally adopted.

In multilateral negotiations, it is generally preferable to adopt a consensus-based system. The definition of consensus is not as you might expect positive agreement by everyone, rather it is the absence of a formal objection. Formal objection is not a step to be taken lightly. In any given multilateral negotiation States are aiming to achieve agreement that will advance the interests of us all at the same time, otherwise they would not be there. Whether a particular instrument in the end, satisfies our or another country’s national interest is another question. Staying silent doesn’t necessarily mean that you are entirely comfortable with a particular clause of an agreement or an agreement as a whole, but in general you are not so uncomfortable with it that you need to object to it. 

It is not always possible to reach agreement by consensus and, in the case of complex treaty negotiations, the rules of procedure will themselves be negotiated in detail at great length as the first item of business. It may take more than a session before the rules of procedure are actually completed and adopted. 

It is very important to take seriously negotiations on rules of procedure, that is the framework which will shape the negotiations, and be sure the delegation is involved there to influence them in a manner which will stand you and your country in good stead through the course of the negotiations.

One example that illustrates the importance of rules of procedure and credentials comes from the Indian Ocean Tuna Commission in 1999. At that time we were in the middle of our dispute with Japan over southern bluefin tuna. Japan wanted to set up a working party within the Commission that might have intervened in the dispute to Japan's advantage, which we saw as contrary to the provisional measures – the international law equivalent of an interim injunction - handed down earlier that year by the Law of the Sea Tribunal. The IOTC Rules provide for majority voting, and at one stage it looked as though Japan was going to insist on calling a vote. But if had it done so, Japan would have been in the odd position of not being able to vote for its own proposal, because the meeting was being held in Kyoto and the two senior people named in its credentials as having the authority to cast Japan’s vote had both returned to Tokyo after the first day. In the end there was no vote because bodies such as these often have a strong tradition or attachment to consensus despite what the Rules of Procedure may say - but that is by no means always the case.

Final Acts

The text of a multilateral treaty negotiated at an international conference is often incorporated into what is known as the Final Act of the conference. This is, in effect, a record of the proceedings of the conference at which the text was drawn up and includes, besides the text of the treaty, such matters as the way in which the work of the conference was organised, the countries represented, the names of the delegates and any resolutions adopted by the conference. 

The origin of the Final Act is from the Congress of Vienna in 1815. This was the first time a single instrument had been signed by multiple parties. The Final Act was the glue which bound together a range of bilateral treaties creating a single instrument. And that was the only thing that everyone signed, the Final Act.

Today, the Final Act is a thorough record of what happened in the course of negotiations and can also be very useful in interpreting treaties later on. Further, it plays a crucial formal role of authenticating the text. By signing the Final Act of a conference or a negotiation you are simply confirming that this is the text as negotiated. 

That sometimes creates a little bit of confusion. By signing the Final Act you are not expressing any view upon the negotiated instrument at all; it neither binds the State nor commits it eventually to sign, ratify or otherwise express consent to be bound by that treaty.

Today, it is customary for the Final Act to be signed by the leader of each delegation present. In most cases, this signature basically acknowledges the accuracy of the record and therefore does not require specific authority.

Financial Implications

An important aspect of treaty negotiations is the consideration of financial implications. There are a number of ways of arranging multilateral negotiations, some of them can be extremely expensive. The classic UN approach is extremely expensive if you take into the account the opportunity cost of the salaries of the people involved.

Take the Vienna Convention on the Law of Treaties itself as it was negotiated. It started off with the International Law Commission being tasked with looking at the issue of the law of treaties. Its deliberations extended over well over a hundred sessions between 1950 and 1966 (it was doing other things at the same time, I hasten to add) before it came up with draft articles on the Law of Treaties. It was a very worthwhile exercise in the long term, because the Vienna Convention is such a crucial document and serves us very well in so many contexts. But it was not cheap.

After that, we had the conference in 1968 and 1969 to negotiate and adopt that treaty in all the official languages of the United Nations. The simultaneous interpretation of all those deliberations in various committees is extremely expensive. You have got then the translation of the records of those meetings in all the official languages, you have got press releases each day out of the conference - it all mounts up very quickly.

There are other ways of doing it that are less costly: if a particular State agrees to host negotiations, that can result in lower costs, if you can get agreement to negotiate in just one language that of course will reduce the costs greatly, but of course there are States which will always have difficulties, and understandable ones, with that. For defraying those costs, a basic question is whether the host country or organisation is going to bear them or whether they will be met through assessed or voluntary contributions from the participating States.

An example that springs to mind is the Antarctic Treaty. For several decades we managed to get by without actually establishing a secretariat for this important Treaty. New negotiations for further Protocols took place and meetings were held each year in various member states of the Antarctic Treaty. However the inefficiencies stemming from not having a secretariat to administer the Antarctic Treaty system became ever clearer, though for years we could do nothing about it for various political reasons. But finally some years ago, it was agreed to establish a secretariat, which began operations on a provisional basis a few weeks ago. That will inevitably result in slightly higher visible costs, for the States Parties to the Antarctic Treaty, but we believe it will be money well spent because the State whose turn it is to host the meeting will have a large administrative burden lifted from its shoulders.

Australia’s view on the structure of any secretariat is that it should be as small and as efficient as possible to fulfil the tasks that need to be achieved. And there it is important to consult very closely with those domestic portfolios which hold the purse strings and ensure that they are satisfied with the kinds of structures that are being proposed and to ensure that they conform with what we see as being efficient and effective use of resources.

The final point I would make is that one of the most important things you require in negotiations is the long view and to have patience. The modern post-war law of the sea negotiating process commenced in the late 1950s when four conventions were negotiated in 1958 and then there was a further conference in 1960 which did not succeed. Then in 1967 the concept of the Common Heritage of Mankind, the principle that the seabed areas beyond national jurisdiction should belong to all, was launched by Ambassador Pardo of Malta at the United Nations. This led to a Seabed Committee being established by the General Assembly in 1967, which in turn led to the Third United Nations Conference on the Law of the Sea with its first session in 1973.

Those negotiations went on until 1982, involving three formal committees as well as a drafting committee and credentials committee. Within those committees there were a multitude of informal negotiations where the real negotiations in a sense occur. At many of the sessions there were several thousand delegates, some delegations numbered well over two hundred. That was to cope with the multiplicity of negotiations going on in a range of forums at any given time. Once that negotiation had been completed in 1982 and the Law of the Sea Convention as we know it was adopted. It then went on because there were difficulties with the seabed regime in Part XI of that Convention. Major industrialised countries were not willing to participate in the Convention as it existed. There was a Preparatory Commission which attempted to iron out the difficulties and then a further negotiation was commenced through the United Nations Secretary General in 1990 which went through to 1994 and produced the Part XI Implementing Agreement.

So in retrospect we have an almost continuous series of negotiations between 1958 and 1994 leading to what is now a more or less universally acceptable regime for two-thirds of the world’s surface. So the basic message is don’t hold your breath. It can take a long time and you’ve got to have the patience, the stamina and the will to see it through. 

There is more that I could say but I can see that time is slipping away so perhaps I will stop there and invite questions from the floor.