Memorandum by Mr Anthony Aust (Ev 16)
1. I will deal only with the clauses in
Part 4 on ratification of treaties.
2. As a former FCO Deputy Legal Adviser,
I am well acquainted with treaties and treaty procedures. In 2000,
two years before I retired, Cambridge University Press published
my monograph, Modern Treaty Law and Practice. (A second
edition was published in 2007.) The book deals with treaties from
a practical perspective. I am also well aware of the relationship
between Parliament and the Government. I shall not comment on
the policy, but will stick to technicalities.
3. As with the power to go to war (which
is not the subject of the draft Bill), the constitutional power
of the Crown/Government to ratify a treaty (generally without
the prior consent of Parliament), and the supreme power of Parliament
to make laws, is a product of the seventeenth-century constitutional
struggle between the King of England and Parliament. This resulted
in the power to legislate being almost completely vested in Parliament,
yet with the Government retaining certain prerogatives, including
the decision to ratify treaties or to go to war. This particular
division of powers was inherited by most former colonies of the
United Kingdom, the United States being the principal exception.
4. The treaty-making power of the Government
is exercised by the Secretary of State for Foreign and Commonwealth
Affairs. Although there is no general requirement for Parliament
to consent to the entering into a treaty, under a constitutional
convention (known as the Ponsonby Rule) a treaty which is subject
to ratification, or an analogous procedure, is laid before Parliament
with a short explanatory memorandum for 21 sitting days so that
Parliament can be informed of the treaty. It may debate the treaty
it if it wishes, but this seldom happens unless legislation is
needed or the treaty is of major political importance, in which
case the Government would normally arrange for a debate anyway.
If a select committee needs more than 21 days to inquire into
a treaty, the Government will usually agree to this; and a copy
of the treaty is sent to the relevant departmental select committee.
Extra-parliamentary consultations are also held.
5. Many treaties to which the United Kingdom
wishes to be bound do not need any UK legislation, or at least
no new Act of Parliament; either the treaty obligations can be
carried out under an existing Act (see Clause 23(1)) or subsidiary
legislation could be made under an existing Act (see Clause 23(2)).
In the latter case, Parliament has the possibility of withholding
consent to the making of the necessary subsidiary legislation.
This is very rarely done, mainly because the subject matter is
usually unobjectionable or the Government can, by use of its majority
and whipping, force through the matter. But, when a new Act is
needed, both Houses of Parliament can debate the treaty and, if
necessary, could withhold necessary legislation. This would make
it impossible for the Government to ratify the treaty.
6. The purpose of the draft Bill is therefore
twofold: to put the Ponsonby Rule on a statutory basis and to
enable Parliament to resolve that a treaty may not be ratified.
7. What is not clear is the relationship
between the power of Parliament to refuse a new Act (or the making
of subsidiary legislation under an existing Act), so preventing
the ratification of a treaty, and the new power suggested in Clause
21(4) that either House may resolve that a treaty should not be
ratified. It may well be that, in practice, the new power would
be exercised before Parliament is asked to legislate (should that
be necessary). If so, this should be explained by the Government
if and when Part 4 of the draft Bill is presented to Parliament.
8. I have only two other comments to make
on the draft clauses. First, although I follow the meaning
of Clause 21(5), the wording is not as clear as it might be. Could
it be improved?
9. Second, Clause 13(1)(b) largely
reflects Articles 2(1)(a) of both the Vienna Convention of the
Law of Treaties 1969 and the Vienna Convention on the Law of Treaties
between States and International Organizations or between International
Organizations 1986. But, the Clause describes a treaty as "binding
under international law" whereas both Vienna Conventions
define a treaty as "governed by international law".
It is not clear why "governed by" is not used in the
Clause. Although I consider both terms should mean the same thing,
if the Bill uses a different term there could be a problem. When
the Bill is debated in Parliament, it might be argued that there
is a difference between "binding under" and "governed
by". The point might be raised at the suggestion of an NGO
which wants to establish that the phrase "binding under"
was deliberately chosen in an attempt to exclude MOUs which the
NGO might argue are within the definition of treaties in the Vienna
10. MOUs are international instruments which
may look like treaties but are not because the States involved
do not intend them to be "governed by" international
law. (MOU is short for Memorandum of Understanding, which is what
most MOUs are formally called.)
If the Bill becomes law, certain acts of the Government in relation
to treaties would be open to judicial review, and it would be
unfortunate if an applicant were to question whether a departure
from the definition of treaty in the Vienna Conventions is material.
The matter is important since MOUs are crucial to the transaction
of international relations by States, not just the United Kingdom.
They are especially important for many defence arrangements, which
need to be classified, and so cannot to embodied in treaties.
2 June 2008
1 On MOUs generally, see A Aust, Modern Treaty Law
and Practice, 2nd edn, Cambridge, 2007, pp 20-1 and Ch 3. Recent
examples of MOUs are the so-called "diplomatic assurances"
concluded with certain Arab States. The international lawyer who
believes most strongly that MOUs are treaties is Professor Jan
Klabbers: see his book, The Concept of Treaty in International
Law, The Hague, 1996. Regarding Klabbers' theory, see Aust, pp