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Regulation of the Treaty-Making Process 1

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Regulation of the Treaty-Making Process 1 Strasbourg, 23 January 2001 CAHDI (2000) 13 FINAL COMMITTEE OF LEGAL ADVISERS ON PUBLIC INTERNATIONAL LAW (CAHDI) EXPRESSION OF CONSENT BY STATES TO BE BOUND BY A TREATY ANALYTICAL REPORT AND COUNTRY REPORTS Secretariat memorandum Prepared by the Directorate General of Legal Affairs For any information concerning this document please contact Department of Public Law, Tel. 33 (0)388413479, Fax 33 (0)388412764, e-mail : [email protected] 2 Foreword 1. In 1986 the Committee of Experts on Public International Law (CJ-DI) - predecessor of the CAHDI -, operating under the aegis of the European Committee of Legal Co-operation (CDCJ) prepared a report on the means by which States consent to be bound by a treaty and national procedures relating thereto. 2. This report included replies by 22 States to a questionnaire. 3. The report, published by the Council of Europe in 1987, interested researchers and scholars and governmental delegations as a useful source of information and inspiration for national practices. 4. Thirteen years after the publication of the report, in the light of changes in national procedures and membership of the Council of Europe, the CAHDI decided to update the report on the basis of the questionnaire in Appendix 1, which was submitted to all delegations and observer States in the CAHDI in the last quarter of 1999. 5. The Secretariat received replies from 39 Member States, namely: Albania, Andorra, Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, “The Former Yugoslav Republic of Macedonia”, Romania, Russian Federation, San Marino, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom, and 6 Observer States, namely: Azerbaijan, Bosnia-Herzegovina, Canada, Israel, Japan and Mexico. These replies are included in Part II of this document (“Country Reports”). 6. Further to that, the CAHDI commissioned the British Institute of International and Comparative Law to prepare an analytical report on the basis of the replies received. This report appears in Part I (“Analytical Report”) of this document. 7. Following the steps undertaken by the Secretariat, Kluwer International Law has agreed to the publication of this report. Action required Members of the CAHDI are invited to examine the attached report (parts I and II) and to authorise its publication with a view to its presentation to the Secretary General on the occasion of the 22nd CAHDI meeting. 3 Foreword Treaty-making constitutes the very basis of the international legal order and influences international relations. It channels the expression by States of consent to be bound and defines the commitments they enter into. However, the national procedures by which States express their consent to be bound vary considerably, depending on constitutional, legal and political conditions which reflect the history of each country. The following report, drawn up under the aegis of the Ad Hoc Committee of Legal Advisers on Public International Law (CAHDI) of the Council of Europe, encompasses the practice of thirty-nine member States of this Organisation and a number of observer States. It provides comprehensive and up-to-date information about these States’ means of expressing consent to be bound by a treaty. Furthermore, the analysis commissioned by the CAHDI from the British Institute of International and Comparative Law casts fresh light on this matter by inferring interesting considerations from the diversity of national procedures. This report illustrates once again the key role of the CAHDI in the intergovernmental structures of the Council of Europe as the only forum where the legal advisers of the forty-one member States and a significant number of observer States and international organisations can exchange and possibly co-ordinate their views on issues of public international law. With this report, the Council of Europe wishes to pursue its practical contribution to the development of international law, facilitating the mutual understanding of its member States and thus, helping to build a stable and peaceful international community. Walter Schwimmer Secretary General of the Council of Europe 4 Introduction In 1986 the Committee of Experts on Public International Law (CJ-DI) of the Council of Europe, predecessor of the Ad Hoc Committee of Legal Advisers on Public International Law (CAHDI), operating under the aegis of the European Committee on Legal Co-operation (CDCJ), prepared a report on the means by which States consent to be bound by a treaty and national procedures relating thereto. This report included contributions by nineteen member States of the Council of Europe and three observer States of the Committee. It was published by the Council of Europe in 1987 and since then has been of great use to researchers, scholars and governmental delegations. Thirteen years after its publication, national procedures of some member States have changed considerably and the membership of the Council of Europe has increased almost two-fold. Therefore, the CAHDI decided at its 17th meeting (Vienna, 8-9 March 1999) to undertake the preparation of a new report with up-to-date information about the means by which the member States of the Council of Europe express their consent to be bound by a treaty. On the basis of a questionnaire adopted by the CAHDI, thirty-nine member States of the Council of Europe provided contributions regarding their national situation. These are Albania, Andorra, Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, “The Former Yugoslav Republic of Macedonia”, Romania, Russian Federation, San Marino, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom. In addition, six observer States of the CAHDI also provided contributions, namely: Azerbaijan, Canada, Israel, Japan, Mexico and Bosnia-Herzegovina. On the basis of the information gathered, at its 19th meeting (Berlin, 13-14 March 2000) the CAHDI commissioned the preparation of an analytical report to the British Institute of International and Comparative Law. This analytical report appears in Part I of this publication and the national contributions in Part II. The publication is completed with various documentary appendices including the questionnaire, which served as a basis for the preparation of the country reports, the Vienna Convention on the Law of Treaties and the state of signatures and ratification of this convention. This report therefore constitutes a comprehensive source of information on how States approach treaty-making and covers every step and aspect of the process relating thereto. Part I – The Analytical report deals in separate chapters with: (I) Regulation of the treaty- making process, (II) The National regulation of treaty-making at international level, (III) The domestic legal processes governing the conclusion of treaties, (IV) Reservations and Declarations to international treaties, (V) Provisional application and (VI) The place of treaties in domestic law. This analysis of the information gathered by the CAHDI is followed by an overall conclusion summarising the main findings. It should be noted that the views expressed in this part of the publication are those of the authors and do not necessarily reflect the position of individual States or of the CAHDI as a whole with regard to the procedures, facts and situations referred to therein. 5 Part II - Country reports, includes the contributions provided by States and covers thoroughly the national procedures relating to the expression of consent to be bound by a treaty, including the authorities vested with the treaty-making power and competent to authorise negotiations, and the procedures relating thereto. They describe in detail the applicable national procedures, including the distinction between signature subject or not to ratification, acceptance and approval, the cases to which these modalities apply and the steps leading to the decision to bind the State. They further deal with reservations to international treaties and objections thereto, and conclude with the various aspects relating to the incorporation of treaties in domestic law, the legal status of such treaties therein and the possibility of provisional application before its entry into force. It should be noted that the contributions provided by delegations represent the official position of their countries and are therefore a precious source of information. The CAHDI and the Secretariat of the Council of Europe wish to express their gratitude to the British Institute for International and Comparative Law and to all those involved in the preparation of the country reports for their co-operation in carrying out this valuable work. The present publication follows that of the book “State practice regarding State Succession and Issues of Recognition” which was prepared, also under the aegis of the CAHDI, on the basis of the Council of Europe Pilot Project on State practice regarding State succession and Issues of recognition and represented a contribution of the Council of Europe to the United Nations Decade of International Law (1990-1999). Chapter three of this publication dealt with State Succession in Respect of Treaties.
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