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The Role of the Parliament in the Ratification of International Treaties and Agreements

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The Role of the Parliament in the Ratification of International Treaties and Agreements The Knesset - Research and Information Center Background Document on: The Role of the Parliament in the Ratification of International Treaties and Agreements Comparative Survey Presented to the Constitution, Law and Justice Committee July 10, 2003 Written by Ms. Dafna Ben-Porat and Ms, Hodaya Kain Research Assistants, Professional supervision and approval: Ms. Dana Neufeld, Head of Team Translated from Hebrew, Dr. Susan Hattis Rolef Table of Contents 1. Introduction 2. Australia 3. The Czech Republic 4. Denmark 5. Finland 6. France 7. Germany 8. Great Britain 9. Ireland 10. Italy 11. The Netherland 12. New Zealand 13. Portugal 14. South Africa 15. Sweden 16. The United States 1. Introduction This document was prepared at the request of attorney Sigal Kogut, the Legal Advisor of the Constitution, Law and Justice Committee, for the deliberations of the Committee on the subject of "A Proposed Constitution with Broad Consensus". The document reviews the role of parliament in the approval of international treaties and agreements in Australia, the Czech Republic, Denmark, Finland, France, Germany, Great Britain, Ireland, Italy, the Netherlands, New Zealand, Portugal, South Africa, Sweden, and the United States. An international treaty, as defined in the Vienna Convention regarding the Law of Treaties, 1969 is "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". A distinction is made between an "ordinary agreement" and a treaty: an ordinary agreement goes into effect by force of the signature by the representatives of the states that are party to the agreement, while a treaty goes into force only after being ratified. This distinction is made to facilitate the task of the executive branch in its international contacts, and free it from the requirement to ask for the approval of parliament for every agreement.1 The issue of the role of parliament in the approval of international agreements and treaties, is on the agendas of many parliaments around the world, especially in this period, in which many public matters are settled by means of international law, and the status of international bodies is becoming progressively stronger. These processes create the need of parliaments to be more involved in foreign policy and the ratification of treaties.2 The survey below incidcates, that on the whole, foreign policy and the signing of international treaties and agreements, are almost exclusively under the responsibility of the executive branch. Nevertheless, in all the countries, parliament has a certain role to play in the approval of international treaties and agreements. In most of the countries surveyed there is an obligation of approval by the parliament of treaties, and only of certain agreements (the Czech Republic, Denmark, Finland, France, Germany, Ireland, Italy, South Africa, and Sweden). In several countries the approval of parliament is required for every treaty or agreement, with few exceptions (the Netherlands, the United States). In several countries the parliament's approval is not required, but the treaty or agreement must be laid on the parliament's table, by force of law or custom (Australia, Great Britain, New Zealand). In Israel the Government has the authority to sign international treaties and ratify them.3 According to the Basic Law: the President of the State, the President signs "treaties with foreign countries, that were approved by the Knesset".4 1 The Knesset Research and Information Center, The Role of Parliament in the Approval of International Agreements and Treaties, written by Judith Galili, May 15, 2002. (Hebrew) 2 The Israel Democracy Institute, "The Role of Parliaments in the Approval of International Treaties", Parliament No. 22, December 1998, pp. 8-10. (Hebrew) 3 Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel, fifth edition, Jerusalem and Tel-Aviv, Shocken Publishers, 1996, pp. 8-10 (Hebrew) 4 Article 14(a)(5) in the Basic Law: the President of the State The process of ratifying treaties in Israel is not laid down by means of explicit legislation, but on the basis custom. In general, there is no obligation to receive the consent of the Knesset for the signing of treaties, but over the years a custom has evolved under which the Government brings to the Knesset for its approval, treaties of special importance, before they are ratified and go into force. The Government Rules of Procedure stipulate that it is possible to bring to the Government for its ratification an international treaty only after it has been deposited with the Knesset secretariat for at least two weeks, in the course of a session.5 Over the years several bills have been tabled on this issue. For example, MK Nahum Langental, Tsahi Hanegbi, Tamar Gozansky, and Avraham Hirschson,6 proposed that the existing custom in the Government Rules of Procedure and the Instructions of the State Attorney, according to which the Government does not approve a treaty, which requires ratification, unless it has been laid on the Knesset table for 14 days, be applied by law. Furthermore, a special procedure was proposed regarding treaties, whose ratification is urgent. The proposal also included a provision, according to which a debate should take place in the Knesset plenum on a certain treaty at the request of twenty Knesset Members, and the Government will not be entitled to ratify this treaty before it is approved by the Knesset.7 2. Australia The Australian Constitution grants Parliament legislative powers in the sphere of foreign affairs.8 Nevertheless, there are no stipulations in the Constitution regarding the establishment of contacts by means of international treaties, or their ratification. In practice, the Government is authorized to join treaties and ratify them, and Parliament decides whether to implement them by means of legislation.9 According to custom, treaties, including the amendment of treaties, or withdrawal from them, are laid on the table of the Parliament for at least 15 sitting days, before being ratified.10 The Government lays the proposed text of the treaty on Parliament's table, together with a "National Interest Analysis", that provides background about the proposal, and details regarding it.11 There is a divergence from this procedure only when the Foreign Secretary 5 The Knesset Rules of Procedure, Decisions on Matters of Procedure, Bringing Treaties for the Consideration of the Knesset Members, before Ratification. 6 International Treaties Bill (approval by the Knesset), 5760- 2000, Bills P/2164 7 It should be noted that that the Bill includes a provision, which enables the Minister for Foreign Affairs, in certain cases, to dispose in writing of the requirement to lay certain treaties on the Knesset's table, after consulting the Minister of Defense and the Minister of Justice. 8 Article 51 in the Australian Constitution. 9 Parliament of Australia - Department of Parliamentary Library, Federal Parliament's Changing Role in Treaty Making and External Affairs, Anne Twomey (consultant), March 7, 2000. 10 Ibid. 11 Such an analysis must include details regarding the economic, environmental, social and cultural ramifications of joining the treaty, the undertakings that it imposes, the manner in which it is to be implemented in the country, the costs involved, and consultations that took place with the regional governments, community bodies, and other bodies concerned. declares that a certain treaty is especially urgent or sensitive, and involves foreign trade, strategy or foreign policy interests.12 It should be noted that there is a Joint Standing Parliamentary Committee on Treaties, for the two Houses. The function of this Committee is to examine all the Government proposals regarding treaties, and to report on them, before the Government takes any binding action in this regard. This Committee is authorized to investigate issues that emerge from the treaties, and it is used to getting representatives of the Government, and others, to testify, in public hearings. At the end of its work, the Committee presents a report to Parliament, that includes recommendations on the question whether Australia ought to join the treaty, and additional issues that came up during the examination.13 3. The Czech Republic According to the Czech Constitution, the consent of the Poslanecka Snemovna (the Czech parliament) is required for the ratification of international agreements on the following subjects: agreements that concern the rights and duties of persons, peace agreements, alliances or any political treaty, agreements by which the Czech Republic would be joining an international organization, agreements of an economic nature, or agreements on other issues that require legal arrangements.14 According to the Rules of Procedure, the Poslanecka Snemovna debates international agreements that require ratification, before the ratification, or upon withdrawal from them.15 Regarding the procedure, it is necessary to lay on the table of the Poslanecka Snemovna at least one copy of the original version of the agreement, and one copy of a translation into Czech. The instructions of the Rules of Procedure that apply to debates on bills, also apply to debates on international agreements (with the exception of several articles). After the debate on the agreement in first reading, the Committee that deliberates the agreement shall inform the President of the Poslanecka Snemovna whether it has decided to recommend that the House express its consent to the agreement's ratification. The President shall ensure that the Committee’s decisions are referred to the Members of the Poslanecka Snemovna at least 24 hours before the debate in second reading. A parliamentary debate takes place on the agreement and on the Committee’s recommendations, after which the Poslanecka Snemovna will decide whether it will give its consent to the ratification. 4. Denmark16 The Danish Constitution stipulates that the authority regarding international matters is in the hands of the King.
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