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Difference
between ratification and accession of a treaty
Barrister
Harun ur Rashid
A
State may be come a party to a Treaty either by ratification
or by accession. Ordinarily, provisions of a Treaty lay
down the procedure for a State to become formally a party
to a Treaty either by ratification or accession.
The
discussion is related to a multilateral treaty that is
applicable to more than two or more states. For instance,
the UN Charter or the SAARC Charter is a multilateral
Treaty. The 1998 Rome Statute establishing the International
Criminal Court is a multilateral Treaty.
The
following discussion will make clear the difference between
ratification and accession of a multilateral Treaty.
Processes
to become a party to a Treaty
Ordinarily, powers of a State are distributed among its
three organs: executive, legislative and judiciary. The
executive runs the state in accordance with the Constitution
and law, the legislature enacts laws and the judiciary
implements laws.
The
division of powers of a State is known as doctrine of
separation of powers. The Bangladesh Constitution of 1972
distributes powers among the three organs of the Republic.
Part IV of the Constitution relates to the executive,
Part V to the legislature and Part VI to the judiciary
of the Republic.
The
decision to become a party to a Treaty is an executive
decision. That means the government of the day decides
to be a party to a Treaty. Ordinarily, this means that
a representative of a government signs a Treaty. Signing
of a Treaty is to indicate only the intention of the government
to become a party to a Treaty.
Why
ratification clause in a Treaty?
Ordinarily all multilateral Treaties have ratification
clauses. A question arises as to why ratification provision
is incorporated in a Treaty. It is because the process
of ratification provides time or a second thought for
a country as to whether or not it should become a party
to a Treaty.
Once
a country has become a party, it has to assiduously comply
with the provisions of a Treaty. Therefore, it is necessary
for a government to ensure whether it can comply with
the provisions of a Treaty. If it is too burdensome or
onerous, it may decide finally not become a party to a
Treaty, despite its signature by its representative.
For
example, Bangladesh has signed the 1998 Rome Statute on
International Criminal Tribunal but has not yet ratified
it. Until ratification is executed by the government,
Bangladesh is not a party to the Rome Statute. About 139
countries have signed the Rome Statue but only 97 signatory
countries have ratified it as of March 2005. Bangladesh
signed the 1982 UN Convention on the Law of the Sea in
the same year but it ratified only in 2001 after a lapse
of nineteen years.
Ratification
of a Treaty in Bangladesh
The Bangladesh Constitution does not require the Parliament
to ratify a Treaty. Article 145A of the Constitution provides
that all treaties with foreign countries ( not with foreign
or international organizations, such as the World Bank
,International Monetary Fund or World Trade Organisation)
shall be submitted to the President , who shall cause
them to be laid before Parliament, provided that any such
treaty connected with national security shall be laid
in a secret session of Parliament.
The
above Constitutional provision requires that a Treaty
with foreign countries needs to be laid only for discussion,
not for ratification. Discussion by the members of Parliament
is very useful because members of the Parliament may raise
various issues relating to a Treaty, providing awareness
to the government of potential difficulties, thus resulting
a pressure on the government of the day not to ratify
a Treaty.
The
bottom line in Bangladesh is that the executive ratifies
the Treaty. Both acts of signing and ratification are
executed by the government.
Requirement
of ratification by Parliament
In many countries, such as USA, Parliament has to ratify
the Treaty. The Covenant of the League of Nations of 1920,
although virtually "a child" of President Wilson
of the US, was not ratified by the US Senate and as a
result the US could not become a member of the League
of Nations.
During
the term of President Clinton, despite his request to
the Senate members, the 1996 Comprehensive Test Ban Treaty
(CTBT) was not ratified by the Senate and the US again
could not be a party to the CTBT. Many experts believe
that non-ratification of the CTBT by the US has weakened
the US's moral high ground to ask other countries to become
a party to CTBT ( India and Pakistan have not become parties
to CTBT).
The
above paragraphs indicate how a State formally becomes
a party to a Treaty through ratification. Ratification
may be either executed by the government of the day or
by Parliament, depending on the provisions of the Constitution
of the country.
Certain
stages followed by countries to become a party to a Treaty
Generally speaking, to become formally a party to the
Treaty, a country has to go through certain stages. The
stages are as follows:
(a)
after signing, a detailed examination of provisions of
a Treaty by the various agencies of the government as
to whether the government will be able to comply with
the provisions of a Treaty, given its human and material
resources,
(b)
if, a positive decision is arrived at by the government
and if the Constitutional provision requires the treaty
to be approved by the Parliament, the government remits
the Treaty to Parliament that has to approve the treaty
for ratification,
(c)
if the government representative was not able to sign
a Treaty document (called Final Act) and a country wishes
to be a party to a Treaty, it can do so by accession and
the procedure followed for accession remains the same
as that of in the case of ratification.
Accession
of a Treaty
Ratification can only apply when a state has signed a
Treaty after conclusion. However many states may not attend
the conference leading to the conclusion of a Treaty and
therefore are not in a position to sign the Treaty.
Another
situation is that many Treaties have come into operation
before a country attains its independence. There are many
Treaties which have been concluded before Bangladesh was
born as a sovereign country. In such two cases, ratification
procedure is not applicable but accession is only the
procedure through which a country becomes formally party
to a Treaty. Either the executive or Parliament can accede
to a Treaty.
Bangladesh
has acceded to many Treaties after its independence. If
Bangladesh does not attend a conference that concludes
a Treaty, the only procedure left for Bangladesh is to
a party through accession.
Conclusion
To sum up: the difference between the two is only procedural
and not substantive. Both procedures are essentially designed
as to how a country may become a party to a Treaty. Ratification
implies that a country has first signed the Treaty, whereas
accession connotes that a country has not signed or was
not in a position to sign a Treaty, whatever may be the
reasons.
The
document of ratification or accession is known as "Instrument
of Ratification or Accession", ordinarily prepared
by the Ministry of Foreign Affairs and signed by the Foreign
Minister, once the head of the state/government (whoever
is the chief executive under the Constitution) or the
Parliament has consented to either ratification or accession
of a Treaty as the case may be.
The
author is a former Bangladesh Ambassador to the UN, Geneva.
