Environmental Audit CommitteeFurther written evidence submitted by the Foreign and Commonwealth Office

The Foreign and Commonwealth Office would like to take this opportunity to provide supplementary information to the Committee on UK treaty practice and the extension of multilateral environmental agreements (MEAs) to the UK Overseas Territories (OTs). We recognise that this is a complex area which is open to differing views and interpretations. I hope this letter will provide you with a steer on the UK Governments position on this matter.

In relation to MEAs, the UK is ultimately responsible for its Overseas Territories where it comes to the performance of treaty obligations extended to them. This is exemplified by the care exercised to ensure that treaty rights and obligations can be fully implemented in the OTs both in terms of political commitment, and underpinned where necessary by adequate implementing legislation. The Ministry of Justice, the FCO’s Overseas Territories Department and other Government Departments (where appropriate) consult with the governments of the OTs before the UK consents to be bound by new treaties. If it is not appropriate or possible to include an OT within the territorial scope of the UK’s ratification at the time of ratification, the UK works with the OTs to ensure that they are fully compliant with the treaty’s obligations before subsequently extending the treaty to the OT.

It is important to distinguish between responsibility for the performance of treaty obligations and responsibility for determining how those obligations are met. It is for each OT to decide for itself, in accordance with its own legal and constitutional arrangements, the appropriate system or measures to put in place to meet the obligations under treaties that have been extended to it. The UK Government can and will assist OTs in determining whether the measures proposed are sufficient to meet the obligations but will not impose a particular system or measures on OTs.

It is the UK’s consistent practice (and has been for several decades) when consenting to be bound by treaties by ratification, accession or other means, to clearly indicate at that time, whether ratification of the treaty applies only to the metropolitan territory (the “United Kingdom of Great Britain and Northern Ireland”), or whether it further includes a specified Overseas Territory or Territories. Reference in a ratification instrument to “the United Kingdom of Great Britain and Northern Ireland” in this context does not include the Crown Dependencies (Bailiwicks of Jersey, Guernsey and the Isle of Man) and/or the Overseas Territories.

Article 29 of the 1969 Vienna Convention on the Law of Treaties (VCLT) to which the UK is a Party, states as follows; “Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory”. The UK’s practice in this regard has established a “different intention” to the general provision set out in the VCLT. This is described in paragraph 7 of the “Memorandum on Application” which is available on the .gov website.

With specific reference to the current status of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, adopted at Aarhus on 25 June 1998 (“Aarhus Convention”), the answer provided by Mr Simmonds to the PQ tabled by Dr Offord (2 July 2013: Column 591W), is entirely correct. The UK’s ratification of the Aarhus Convention did not make any reference to the Overseas Territories or the Crown Dependencies. Consistent with the UK’s treaty practice therefore, the Aarhus Convention currently applies to the metropolitan territory, ie the United Kingdom of Great Britain and Northern Ireland, but not the OTs. The information supplied by the United Nations as depositary which is referenced in the UK Overseas Territories Conservation Forum’s (UKOTCF) further written evidence, is not inconsistent with this fact; had the UK included any OT in its ratification instrument, this would be reflected in the Notes appended to the UN’s own status list for the Convention.

It is our view that the electronic map referenced in the UKOTCF’s further written evidence does not clearly indicate that the UK’s OTs are excluded from the UK’s ratification of the Aarhus Convention. This is an issue that we will raise with the UN publisher responsible.

3 December 2013