TREATY MAKING PROCESS Public Officers Law Seminar : Dyg Riana Dewi - - PowerPoint PPT Presentation

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TREATY MAKING PROCESS Public Officers Law Seminar : Dyg Riana Dewi - - PowerPoint PPT Presentation

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TREATY MAKING PROCESS Public Officers Law Seminar : Dyg Riana Dewi Aji www.agc.gov.bn Understanding the Law Deputy Senior Counsel 26 th and 27 th October 2016 Public Officers Law Seminar: Understanding the Law 26 th and 27 th October 2016

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Public Officers’ Law Seminar : Understanding the Law 26th and 27th October 2016

www.agc.gov.bn

TREATY MAKING PROCESS

Dyg Riana Dewi Aji Deputy Senior Counsel

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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?
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Public Officers’ Law Seminar: Understanding the Law

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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”

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Public Officers’ Law Seminar: Understanding the Law

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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”

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Public Officers’ Law Seminar: Understanding the Law

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“an international agreement”

  • International character
  • Inter-state, inter-governmental,

inter-ministerial, international

  • rganisations
  • Universal or regional
  • Bilateral, multilateral or plurilateral
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Public Officers’ Law Seminar: Understanding the Law

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“concluded between States”

State and another State State and an international

  • rganisation

χ State and international or multinational company χNon-state institution and foreign non-state institution

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Public Officers’ Law Seminar: Understanding the Law

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“in written form”

  • Excludes oral agreements
  • Allow for modern

technology eg. Fax, email

  • Permanent and readable

form

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Public Officers’ Law Seminar: Understanding the Law

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“governed by international law”

  • Two aspects:
  • 1. Rights and obligations created under

international law

  • 2. Distinct from rights

and obligations under domestic law

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Public Officers’ Law Seminar: Understanding the Law

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“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
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Public Officers’ Law Seminar: Understanding the Law

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“whatever its particular designation”

  • No systematic use of titles
  • Convention, Agreement, Treaty
  • MOUs, Declarations, Exchange of Notes
  • Content is more crucial
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Differences with MOU

  • Publicly available
  • Specific rights and obligations
  • Formal
  • Dispute settlement
  • Funding involved
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Public Officers’ Law Seminar: Understanding the Law

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Drafting Process

  • Negotiations
  • Bilateral: e.g. BJEPA, Visa Exemptions
  • Multilateral: UN Conventions
  • Plurilateral: Trans Pacific Partnership

Agreement

  • Regional: ASEAN
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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

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Public Officers’ Law Seminar: Understanding the Law

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How to Conclude

“Consent to be Bound” Vs “Entered into Force”

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Public Officers’ Law Seminar: Understanding the Law

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How to Conclude

  • Legal Scrubbing
  • Powers to Conclude
  • Signature
  • Ratification
  • Accession
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Public Officers’ Law Seminar: Understanding the Law

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Legal Scrubbing

  • Drafting Guidelines
  • Editorial amendments
  • No substantive changes
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Public Officers’ Law Seminar: Understanding the Law

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Powers to Conclude

  • Full Powers
  • Automatic:

Heads of States, Govts and Foreign Ministries Heads of diplomatic missions Accredited representatives

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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

  • ther means if so agreed”
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Signature

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Public Officers’ Law Seminar: Understanding the Law

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Ratification

  • Display of “consent to be bound” on the

international plane

  • Different from need for parliamentary

approval

  • AGC’s position: “ratify ready”
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Ratification

  • Why more time?

Require legislation

Require Parliamentary Approval

Consider any implications

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Public Officers’ Law Seminar: Understanding the Law

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Ratification

  • Instrument of Ratification( MOFAT )
  • Full Powers
  • Must identify:
  • Treaty Depository

Title

When & where Concluded

Who is signing When & where issued

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Accession

  • Usually, where State unable to sign
  • Multilateral treaties
  • Instrument of Accession
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Public Officers’ Law Seminar: Understanding the Law

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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
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Amendment

  • Bilateral
  • Multilateral
  • Supplementary Treaties (amending

Protocols)

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Duration

  • Specified time period
  • Automatic renewal vs Review process
  • Extension of Treaties
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Termination

  • Conclusion of implementation
  • Renewed by a new Treaty
  • Breach
  • Supervening impossibility of performance
  • Fundamental change of circumstances
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Public Officers’ Law Seminar : Understanding the Law 26th and 27th October 2016

www.agc.gov.bn

QUESTION AND ANSWER SESSION

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Public Officers’ Law Seminar : Understanding the Law 26th and 27th October 2016

www.agc.gov.bn

riana.aji@agc.gov.bn +673-2244872 (ext 327)

THANK YOU