Sharing of best practices in the implementation of multilateral treaties Thursday, 30 June 2016

Summary

The Permanent Missions of Romania and the Republic of Singapore to the United Nations, in cooperation with the Rule of Law Unit on behalf of the UN Rule of Law Coordination and Resource Group organised a panel discussion on “Sharing of best practices in the implementation of multilateral treaties” in New York, on 30 June 2016.  The event was organised as a side event in preparation of the discussion of the Sixth Committee of the General Assembly on the “Sharing of best national practices in the implementation of multilateral treaties”, as one of the subtopics of its annual discussion on “The Rule of Law at the National and International Levels”, during the 71^st main session of the General Assembly.

The event provided an opportunity for an informal and open exchange of views and for the sharing of practices in multilateral treaty implementation, with an appreciation for different regional and cultural experiences. The speakers shared their views and experiences on how the implementation of multilateral treaties by State – both individually and collectively – and, in cooperation with international institutions, contribute to an international law based on the rule of law as well as the rule of law at the national level.

The speakers shared about some of the domestic processes that States have in place for the implementation of multilateral treaties, as well as the roles that international institutions can play in respect of such implementation.  The discussion covered a number of thoughtful aspects such as the traditions of common law and civil law and their impacts on treaty practice.  There was a discussion on monist and dualist legal systems, and how an international law once ratified could or could not be transposed automatically into domestic legislation in different systems, recognising that in some cases an additional law passed by parliament may be needed, while in others it could be automatic as can sometimes be the case in the EU.  The sharing of best practices was recognised as a valuable way of improving capacities to deal with challenges not just with the law, but also challenges related with everyday life and international relations.  Further, UN assistance to implement international treaties at the national level was acknowledged as essential for many States that may face capacity and resource constraints, which States were no less important contributors to international law and the rule of law.  The speakers agreed that the rule of law at the national and international levels was important to the ability to live in dignity, and recognised the essential contribution that multilateral treaties could make, through international law, to the 2030 Agenda.  All agreed that the rule of law was an important framework for national and international relations.  Multilateral treaties, in particular, were a valuable tool in strengthening the rule of law at both the national and international levels. 

Ambassador Karen Tan, Permanent Representative of the Permanent Mission of the Republic of Singapore to the United Nations, introduced the event.

Ambassador Ion Jinga, Permanent Representative of the Permanent Mission of Romania to the United Nations, underlined that we witness nowadays a proliferation of multilateral treaties, covering various fields. He said that this proliferation was transforming the dynamics of international relations and contributed to the promotion of a more stable and comprehensive legal order. In his remarks he reflected that Romania is committed to observe the rule of law in international relations and is devoted to the implementation of its obligations resulting from bilateral and multilateral treaties. Romania’s process concerning the conclusion and application of treaties was regulated by the Romanian Constitution and – at a more detailed level – by Law no. 590 of 2003 - the Law on treaties.

Ambassador Jinga presented the safeguards provided in the Romanian legal system that ensured the internal legislation consistency with the provisions of international treaties. In accordance with article 11 of the Romanian Constitution, Romania undertook to fulfil exactly and in good faith the obligations incumbent upon it, stemming from international treaties to which it is a party. This article incorporated into the internal legal order the treaties to which Romania is a party and provides that the ratification of a treaty containing provisions which are contrary to the Romanian Constitution may be carried out only after the revision of the Constitution. In accordance with article 20 of the act representing the supreme law in Romania, the provisions of the Constitution concerning human rights and liberties must be interpreted in a manner consistent with the international treaties in this field; in case of a contradiction, the international law would prevail (unless the Constitution contained more favourable norms). Presenting more details about the Romanian Law on treaties, the Ambassador emphasised that the Law put in place various procedures for treaties which have an impact on the internal legislation. In cases where a treaty implies the modification of internal legislation, the internal act which embodies the consent of Romania to become a party to the treaty has to include specific provisions completing or modifying the norms of the internal law concerned. Other provisions are meant to ensure the adoption of subsequent implementing legislation, if required by Romania’s participation to a treaty.

Ambassador Jinga underlined that the Law on treaties reaffirms the “pacta sunt servanda” principle already enshrined in the Constitution and it specifically provides that the application of treaties constitutes an obligation for all Romanian authorities, including the judicial authorities, as well as for Romanian citizens and legal persons. Further, it stated that the Government, the Ministry of Foreign Affairs and the other State authorities have the duty to ensure the application of treaties in force and to control the manner of this implementation. The Romanian law specifically provides that international treaties may not be modified, supplemented or terminated by means of internal legislation.

Ambassador Jinga also pointed out that Romania during her 2016 - 2022 UNCITRAL membership will actively work together with the member States, observers and related organisations on the important topics, such as the revision of notes for arbitration rules, reducing legal obstacles for small and medium-sized enterprises, online dispute resolution, regulating the recording of online transactions, facilitating cross-border insolvency for multinational companies and a model law for regulating securities.

Ambassador Jinga highlighted that the rule of law is a key for mutual trust and predictable relations between individuals, entities, institutions and States, at the national and international level, and he concluded his remarks with a brief presentation on Romania’s experience and challenges in implementing the European Union aquis.

Mr. Jeffrey Chan, Senior Counsel, Deputy Solicitor-General of the Attorney-General’s Chambers, Singapore, first discussed the distinction between the thin and the thick conceptions of the rule of law. The former emphasised that outcomes of actions be based on certain, accessible and enforceable rules which applied equally to all, and thus ensured the predictability of outcomes.  The latter, which was often the assumption in language used by the UN, emphasised values and postulated that rules must promote human rights, good governance and fairness. Common to both conceptions was that the rules must be accessible and transparent. In other words, that rules were available to those affected in a language that they could understand, and that the process of rule-making was in the public view. Crucially any changes to rules must be in accordance with the rules for such change. This ensured that those affected would know that the rules had changed. 

Mr. Chan underscored the distinction between rule of law and rule by law, the latter being the use of legal rules to justify actions, especially by authorities.  He opined that treaties marked the conjunction between the rule of law in inter-State relations and in domestic law.  States which entered into treaties incurred obligations to each other and to their own populations.  Treaties were generally negotiated and entered into by the executive branch of governments.  The transposition of treaties into domestic law depended on the legal systems in different States.  In monist systems, treaties were self-executing once ratified. The rules in such treaties would then have effect as domestic law.  The process for ratification differed from State to State. In dualist systems, treaties were binding under international law but did not have effect domestically unless given effect to by laws enacted by the legislature. Whichever may be the legal system of a State, governments, when negotiating international treaties, needed to be aware of their domestic considerations in order to ensure that their State was able to give effect to the obligations under the treaty.

When negotiating or considering accession to treaties, governments may need to consider what actions may need to be taken domestically, including public consultations. These could differ from treaty to treaty. Defence treaties may not be susceptible to wide public consultations, while for trade agreements consultations with affected parties may be appropriate. For private international law treaties such as those formulated by UNCITRAL, consultations with specialised groups such as lawyers and experts may be helpful.

Traditionally in States where treaties were not self-executing, the provisions of a treaty generally did not have domestic effect without implementing legislation.  The High Court of Australia had ruled in the case of Minister of State for Immigration and Ethnic Affairs vs Ah Hin Teoh that the signing of a treaty created a legitimate expectation that the government would give effect to that treaty even without implementing legislation.  Attempts to persuade the courts in Singapore to adopt this principle were however unsuccessful. 

Singapore’s present practice with regard to treaties depended on the nature of the treaty. In recent times the relevant Ministry would put out a consultation paper with a draft of the implementing legislation annexed. Views received were then considered and may be factored into the final text of the implementing legislation. In the past Singapore had made use of “Accession Kits” prepared by the Commonwealth Secretariat. This was the case with the implantation of the New York Convention on the Recognition and Enforcement of Arbitral Awards. Treaty implementation thus was one area that could usefully benefit from international cooperation.

Mr. Edric Selous, Director of the Rule of Law Unit in the Executive Office of the Secretary-General, framed his presentation around the role of international law as set forth in the UN Charter. The aims of the Organisation were to be pursued through international law, and therefore, the implementation of multilateral treaties was the main tool for the achievement of the outcomes of the United Nations. Mr. Selous explained how this founding principle had been further developed through the understanding of the work of the UN as based upon three pillars, according to which freedom from fear (peace and security) and freedom from want (sustainable development) were not enough. They needed to be anchored in the freedom to live in dignity. Such dignity and respect was afforded through the normative framework, and delivered and protected through the rule of law.

Mr. Selous elaborated on the importance of the rule of law at the international and national levels and outlined the areas supported by the UN system to ensure strong rule of law institutions at both levels, as they were presented in the annual report of the Secretary-General on UN activities on the rule of law. The report provided a compilation of illustrative examples of the work covered by the UN entities that were members of the Rule of Law Coordination and Resource Group (RoLCRG). It was structured basically around three main sections: one devoted to the rule of law at the international level; another one to the rule of law at the national level; and a third one illustrating how the Organisation was arranged to deliver assistance at different levels and in different settings.

Mr. Selous provided a brief explanation of the three-tiered structure in which the UN system was organised to coordinate its rule of law-related work: (i) The RoLCRG, composed by 20 UN entities, was responsible for policy development and the identification of strategic priorities. The Rule of Law Unit acted as its Secretariat and supported the DSG in his function of Chair of the RoLCRG and main body responsible for the rule of law in the Organisation. (ii) The Global Focal Point for the police, justice and corrections, led by DPKO and UNDP, was responsible for headquarters coordination of field-level support in conflict, post-conflict and fragile situations. (iii) The senior UN leadership at the country level was responsible for coordinating with the UN Country Team the delivery of field support.

The presentation concluded with reaffirming that the rule of law was strengthened at the international level only to the degree to which multilateral treaties were implemented at the national level. Therefore, rather than two separate realms, the national and international levels of the rule of law were intertwined. The multilateral normative framework represented our common vision and shared values, and therefore its consistent implementation was what would allow us to address the global challenges of conflict and violence, poverty and inequality, and environmental degradation.

Mr. Renaud Sorieul, Secretary of the United Nations Commission on International Trade Law (UNCITRAL), shared the perspective of UNCITRAL on treaty practices.  He noted that UNCITRAL had brought new light to a number of ideas about treaties and their roles at least in the environment of trade law.

The first generally held idea was that treaties were the main building block in the making of standards in the field of trade law.  However, UNCITRAL had demonstrated that treaties were only one possible way – but by no means the only way – of addressing issues for harmonisation.  Drawing from the last 50 years of UNCITRAL practice, one could discern a continuum of instruments, including not only treaties but also model laws, legislative guides, and commentaries.  Choices between these options were often made on practical assessments of which would likely be the more effective instrument for its purposes.  Mr. Sorieul noted that treaties, though offering a greater degree of harmonisation, had a slow rate of ratification.  Other instruments had a lesser degree of harmonisation, but could be taken up more quickly.

The idea of treaties as hard law could also be cast in a different light in view of the practice of UNCITRAL.  One of UNCITRAL’s best known treaties, the UN Convention on Contracts for the International Sale of Goods (CISG), which covers three-quarters of international trade, is one that requires little intervention by States once ratified.  The strength of the CISG is the option it offers to commercial parties for use, without the need for much State intervention.  Further, the UN Convention on the Use of Electronic Communications in International Contracts (E-Communications Convention), though it has not been ratified by many States, can be upheld as a success because of the legislative changes it has inspired in different jurisdictions.  In other words, the E-Communications Convention, although in the form of a treaty, has been used as a model law.

Third, the treaty as a closed nexus of rights and obligations created between those States that have ratified the treaty, though by and large true, does not fully encompass all of treaty practice.  The New York Convention, for instance, contained an explicit provision which enables recognition and enforcement of foreign arbitral awards according to domestic law where that would be more favourable to such enactment than the treaty itself.  This provision allows domestic law to go further than what is provided in the treaty.

Mr. Sorieul also shared about UNCITRAL’s work in the promotion and use of treaties and best treaty practices.  Specifically, UNCITRAL worked to build awareness of their instruments, promote uniform interpretation of the UNCITRAL instruments so that the purpose of harmonisation was not defeated in the implementation of the instruments, and produced guides for the interpretation of UNCITRAL treaties.  He also shared that UNCITRAL was studying if the model of the UN Convention on Transparency in Treaty-based Investor-State Arbitration could be used in other areas of investment law to “supplement” existing treaties concluded between parties.

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