treaty making process slides... · 2016-10-26 · public officers’ law seminar: understanding the...
TRANSCRIPT
![Page 1: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/1.jpg)
Public Officers’ Law Seminar :Understanding the Law
26th and 27th October 2016
www.agc.gov.bn
TREATY MAKING PROCESS
Dyg Riana Dewi AjiDeputy Senior Counsel
![Page 2: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/2.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
Outline of Presentation
What is a Treaty?
How to make a Treaty?
How to conclude a Treaty?
How to change or stop a Treaty?
![Page 3: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/3.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
What?
Vienna Convention on the Law of Treaties 1969
Article 2(1) 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 particular designation”
![Page 4: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/4.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
6 elements of a Treaty
“an international agreement”
“concluded between states”
“in written form”
“governed by international law”
“whether embodied in a single or more
number of instruments”
“whatever its designation”
![Page 5: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/5.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
“an international agreement”
International character
Inter-state, inter-governmental, inter-ministerial, international organisations
Universal or regional
Bilateral, multilateral or plurilateral
![Page 6: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/6.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
“concluded between States”
State and another StateState and an international organisation
χ State and international or multinational company
χNon-state institution and foreign non-state institution
![Page 7: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/7.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
“in written form”
Excludes oral agreements
Allow for modern technology eg. Fax, email
Permanent and readable form
![Page 8: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/8.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
“governed by international law”
Two aspects: 1. Rights and obligations created under
international law
2. Distinct from rights and obligations under domestic law
![Page 9: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/9.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
“whether embodied in a single instrument or in two or more related instruments”
Framework Agreement
Additional Protocols
Annexes, appendices and schedules
Side letters and exchange of notes
![Page 10: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/10.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
“whatever its particular designation”
No systematic use of titles
Convention, Agreement, Treaty
MOUs, Declarations, Exchange of Notes
Content is more crucial
![Page 11: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/11.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
Differences with MOU
Publicly available
Specific rights and obligations
Formal
Dispute settlement
Funding involved
![Page 12: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/12.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
Drafting Process
Negotiations
• Bilateral: e.g. BJEPA, Visa Exemptions
• Multilateral: UN Conventions
• Plurilateral: Trans Pacific Partnership Agreement
• Regional: ASEAN
![Page 13: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/13.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
Drafting Terminology
Treaties (Legally Binding) MOUs ( Non Legally Binding)
Shall May
Have agreed as follows Have entered into the following undertaking
Agree Accept/approve
Done Signed
Article Paragraph
Enter into force Come into effect
![Page 14: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/14.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
How to Conclude
“Consent to be Bound”
Vs
“Entered into Force”
![Page 15: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/15.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
How to Conclude
Legal Scrubbing
Powers to Conclude
Signature
Ratification
Accession
![Page 16: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/16.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
Legal Scrubbing
Drafting Guidelines
Editorial amendments
No substantive changes
![Page 17: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/17.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
Powers to Conclude
Full Powers
Automatic:Heads of States, Govts and Foreign MinistriesHeads of diplomatic missionsAccredited representatives
![Page 18: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/18.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
Consent to be bound
Article 11, VCLT
“The consent of a State to be bound by a treaty may be expressed by signature, exchange of
instruments constituting a treaty, ratification, acceptance, approval or accession, or by any
other means if so agreed”
![Page 19: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/19.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
Signature
![Page 20: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/20.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
Ratification
Display of “consent to be bound” on the international plane
Different from need for parliamentary approval
AGC’s position: “ratify ready”
![Page 21: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/21.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
Ratification
Why more time?
Require legislation
Require Parliamentary Approval
Consider any implications
![Page 22: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/22.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
Ratification
Instrument of Ratification( MOFAT )
Full Powers Must identify:
Treaty Depository
Title When & where
Concluded
Who is signing
When &
where issued
![Page 23: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/23.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
Accession
Usually, where State unable to sign
Multilateral treaties
Instrument of Accession
![Page 24: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/24.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
Entry into force
Legally bound
Only on countries who have expressed CTTB
Manner of entry into force:• Specified date
• After a certain number of countries expressed CTBB
• Proportion of GDP
![Page 25: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/25.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
Amendment
Bilateral
Multilateral
Supplementary Treaties (amending Protocols)
![Page 26: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/26.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
Duration
Specified time period
Automatic renewal vs Review process
Extension of Treaties
![Page 27: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/27.jpg)
Public Officers’ Law Seminar: Understanding the Law 26th and 27th October 2016
Termination
Conclusion of implementation
Renewed by a new Treaty
Breach
Supervening impossibility of performance
Fundamental change of circumstances
![Page 28: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/28.jpg)
Public Officers’ Law Seminar :Understanding the Law
26th and 27th October 2016
www.agc.gov.bn
QUESTION AND ANSWER SESSION
![Page 29: TREATY MAKING PROCESS Slides... · 2016-10-26 · Public Officers’ Law Seminar: Understanding the Law 26 thand 27 October 2016 Outline of Presentation What is a Treaty? How to make](https://reader033.vdocuments.net/reader033/viewer/2022041520/5e2e2fcafa16dc45713b35ac/html5/thumbnails/29.jpg)
Public Officers’ Law Seminar :Understanding the Law
26th and 27th October 2016
[email protected] +673-2244872 (ext 327)
THANK YOU