ANNEX C

SURVEY OF FOREIGN TREATY PROCEDURES

The Department of State, on January 19, 1953, requested its diplomatic officers abroad to obtain from the governments to which they are respectively accredited summary statements of the treaty procedures of those governments. Portions of some of the replies to date in response to that request are quoted below: Brazil (note from Mrazilian Ministry of Foreign Affairs, dated March 4, 1953, translation):

Two clauses of the Federal Constitution of the United States of Brazil refer to international agreements:

(a) ART. 66. The National Congress shall have exclusive power:

"I-to decide definitively upon treaties and conventions concluded by the President of the Republic;"

(b) ART. 87. The President of the Republic shall have exclusive power :

"VII-to conclude international treaties and conventions ad referendum to the National Congress;"

(1) Treaties or other international agreements enter into force, in Brazil

(a) In the case of an agreement submitted to the approval of the National Congress, on the date of its promulgation by the Head of the Executive Power, even though an international obligation may rise at the moment of exchange or of deposit of the instrument of ratification; (b) In the case of an administrative or executive agreement, on the date as agreed, usually the date of the signature of the instrument. Publication in the Diario Oficial is, however, required. It should be noted in this connection that the publication of the agreement in the Diario Oficial, although merely an external fact, has practical importance for the application of the agreement, since "the treaty' isbinding by virtue of its ratification, enforceable by virtue of its promulgation, applicable by virtue of its publication." (Charles Rousseau, cited by H. Accioly, Bulletin of the Brazilian Society of International Law, No. 7, p. 10.)

(2) International agreements are incorporated into domestic legislation through the decree of promulgation. Normally this presupposes approval by the Legislative Power and ratification by the Head of the Executive Power.

(3) In general, agreements which are not subject to ratification do not require the approval of the Legislative Power. For this reason, the matter agreed upon in executive agreements is incorporated into our domestic law in a manner similar to that which occurs in the exclusively domestic field with regulations issued by competent authority.

(4) Once an international agreement is incorporated into domestic legislation it is substituted for or repeals legislation until then in force on the subject. From a strictly constitutional viewpoint, however, it does not prevail as against provisions of the Federal Constitution. If any stiplation agreed upon in an international instrument is contrary to constitutional principles, it is invalid, since the Constitution can only be amended by special procedure and not by ordinary legislation, such as promulgated international agreements. In the hypothetical case of conflict between a provision of domestic law and a promulgated international agreement, the latter repeals the former automatically, without the requirement of any special or explicit act of repeal.

(5) Brazilian legislation makes no reference to executive agreements. However, within the system of competence of the Powers, we conclude that the Executive Power may conclude international agreements falling exclusively within its competence. As the Legislative Power has competence over the discussion and approval of laws, the aforesaid agreements may not deal with legislative matter. Thus, as we have said, executive agreements enter into force when agreed upon by the Contracting Parties. Agreements

1 TRANSLATOR'S NOTE-Apparently the word "treaty" in this quotation is used broadly in the sense of "international agreement."

and other international acts submitted to the approval of the National Congress are ratified after the publication of the Legislative Decree approving them. After the exchange or deposit of instruments of ratification, the moment at which the international obligation arises, the decree of promulgation, whereby the provisions of the agreement become incorporated in domestic legislation, is issued. The agreement is then published in the Diario Oficial.

Canada (note from Department of External Affairs, Canada, dated February 17, 1953):

No distinction is made between treaties and other international agreements respecting the procedure for bringing them into force. The negotiation and entry into a treaty or other international agreement is an exceutive act, exercised in virtue of the prerogative power of the Crown, by or on the recommendation of the Secretary of State for External Affairs. Consequently, a treaty or international agreement may come into force as a binding international obligation on Canada, upon signature, or upon signature and ratification depending upon its terms. The signature is executed by a plenipotentiary, under a full power authorized by the Governor General in Council. Agreements which require ratification to give them force internationally are ratified by an instrument of ratification issued by the Governor General in Council. The signature of agreements entered into by Exchanges of Notes by the Secretary of State for External Affairs or a Canadian Ambassador acting on the instructions of the Secretary of State for External Affairs is an exercise of the prerogative power of the Crown.

The legislative, or other authority to implement a treaty or other international agreement is quite distinct from the authority to conclude or ratify. A treaty or agreement does not automatically become part of the law of Canada at the time when it becomes a binding international obligation. If a treaty does not accord with existing Canadian law, it will be necessary to alter that law, or enact new law. This is done by the Parliament of Canada or the legislatures of the Provinces, or by both, depending upon whether the subject matter of the international agreement is within federal or provincial jurisdiction.

There is no legal obligation upon the Government of Canada under the Canadian constitution to refer treaties to Parliament for approval, prior to ratification. In recent years however it has been the policy of the Government to submit, prior to ratification, agreements which require for their implementation new statute law, or amendments to existing law, especially if they involve large public expenditures, important national obligations, or far-reaching political considerations.

Parliamentary approval, when new legislation is not required is obtained by means of a joint resolution of both the House of Commons and the Senate. Such a resolution has not the force of law but is merely an expression of approval by Parliament of the action taken, or to be taken by the Government of the day.

In the event that a treaty or agreement requires implementing legislation in Canada to give it domestic force, this may be effected

(a) Immediately upon the coming into forces of the implementing legislation, if the statute so provides. Usually statutes take effect on the day when they are given Royal assent by the Governor General; or

(b) On a day fixed by official proclamation; or

(c) At a date prescribed in a subsequent Order-in-Council, if the statute delegates discretion to the executive concerning the time and circumstances in which the international obligation shall become effective in domestic law. This Order-in-Council cannot be issued, however, until the statute has come into force.

Under Canadian procedure or practice no distinction is made between a self-executing treaty and a non-self-executing treaty.

France (unofficial statement prepared by the Ministry of Foreign Affairs, France, February 1953, translation):

The general principles of French law and procedure concerning the conclusion and implementation of international treaties may be summarized as follows:

I. NEGOTIATION AND CONCLUSION OF TREATIES

The negotiation and conclusion of treaties come within the exclusive jurisdiction of the executive power.

This principle is set forth in article 31, paragraph 1 of the Constitution of October 27, 1946: "The President of the Republic is kept informed of international negotiations. He signs and ratifies treaties."

II. SIGNING AND RATIFICATION

According to the provisions of article 31 of the Constitution, "The President of the Republic * * signs and ratifies treaties."

(a) Signing. The signing is made by an agent having received authority from the President of the Republic.

Some treaties do not provide that ratification must follow signing. In such case where the signing is unconditional (an ad referendum signing is conditional), it is completely binding on the State.

(b) Ratification.-The President of the Republic signs the instruments of ratification, which in the case of a bilateral convention are delivered to the other party and which in the case of a multilateral convention are filed either with the international institution whose organ has drafted the treaty or with the government acting as secretariat of the treaty.

It must be kept in mind that article 38 of the Constitution, which embodies one of the fundamental principles of the parliamentary regime, stipulates: "Each act of the President of the Republic must be countersigned by the President of the Council of Ministers and by a Minister." Consequently, the acts mentioned above are countersigned by the President of the Council and the Minister of Foreign Affairs. The acts thus countersigned are binding not only on the two Ministers in question but also on the Government as a whole insofar as they concern the general policy of the Cabinet. Treaties of importance which tend to establish the international policy of France are submitted in various stages of procedure to the Council of Ministers for discussion.

The requirement of ministerial countersigning sometimes gives rise to delicate problems of constitutional validity when the countersigning is done by ministers who have already resigned. This is a situation which may develop during the various stages of the preparation of a treaty.

III. THE ROLE OF THE LEGISLATIVE POWER CONCERNING TREATIES

Article 27 of the Constitution stipulates:

"27. Treaties relative to an international organization, peace treaties, commercial treaties, treaties involving State financial commitments, those concerning the status of persons and property rights of French citizens abroad, those which modify French internal legislation, as well as those which entail transfer, exchange, or adjunction of territory, do not become final until they I have been ratified by virtue of a law.

"No transfer, exchange, or adjunction of territory is valid without the consent of the interested populations."

1. Legislative action when required occurs only at one of the last stages of procedure. Parliament by means of a law authorizes the Executive to give ratification as result of which France will be bound by the treaty.

2. The Parliament's intervention for the purpose of authorizing the Executive to ratify a treaty is required for certain categories of treaties only, of which article 26 [27] gives the following list:

(a) Treaties relating to international organization;

(b) Peace treaties;

(c) Trade treaties;

(d) Treaties involving financial commitments for the State;

(e) Treaties relating to the rights of individuals;

(f) Treaties relating to property rights of French citizens abroad; (g) Treaties modifying French internal laws;

(h) Treaties covering transfer, exchange, or adjunction of territories. As regards the latter treaties, the Constitution requires, in addition, the consent of the interested populations.

In the case of treaties covering subjects which are listed in article 26 [27], the Executive cannot evade the obligation of requesting Parliament's authorization for ratification by concluding treaties requiring signature only and not providing for ratification. In such circumstances the Executive would have to request the Parliament's authorization before giving a final signature.

3. In some cases the Government approaches Parliament in advance of the time of conclusion of the treaty in order to explain its position and inform it of its intentions as regards the treaty under consideration, so that it may be assured of the Parliament's approval when the latter is subsequently called upon to authorize ratification.

IV. IMPORT OF TREATIES ON INTERNAL LAW

1. Priority of treaties over law.—Such priority is established by articles 26 and 27 of the Constitution.

Article 26 of the Constitution is worded as follows:

"26. Diplomatic treaties which may have been regularly ratified and published have the force of law even should they be contrary to French legislation, no legal measures being necessary to ensure their implementation other than those which were required for their ratification."

This article primarily establishes two principles: that of the independence of a treaty as regards a law and that of the priority of a treaty over a law. (a) Treaties have force of law; that is, there is no need for a law to be enacted covering their provisions in order to make them operative. A treaty, as such, is binding and obligatory on public authorities as well as on individuals.

(b) In the event of conflict between a treaty and a law, preference is given to the treaty. The treaty has priority over the law regardless of whether the conflicting law was enacted before or after the treaty. In effect, priority of a treaty over a law is the rule. It comes from the priority vested in treaty over law by the Constitution, by virtue of the above-mentioned article and of article 27 [28] which stipulates: "Diplomatic treaties which have been regularly ratified and published having an authority superior to that of internal laws *

The regulations established by a treaty cannot be abolished or amended except by denunciation of the treaty.

2. Conditions required for the implementation of treaties.-Two conditions are required:

(a) In the first place, when authorization by law for the ratification of a treaty is required under article 27 of the Constitution, it is necessary for the law to have been enacted.

(b) In the second place, it is necessary for the text of the treaty to have been published. This is the application of the principle that a legal regulation, whatever may be its origin (treaty, law, administrative rules, etc.) cannot be binding unless it has been brought to the cognizance of those whom it concerns. Publication is made in the form of a notice in the Journal

Officiel.

The offices of the Ministry of Foreign Affairs are now studying means of assuring publication of all international agreements of every type coneluded by the French Government.

V. DENUNCIATION OF TREATIES

Article 28 of the Constitution stipulates:

"28. Diplomatic treaties which have been duly ratified and published, having an authority superior to that of internal laws, their dispositions may not be abrogated, amended, or suspended unless by normal denunciation notified through diplomatic channels. In the case of treaties mentioned in article 27, denunciation must be authorized by the National Assembly, except as regards commercial treaties."

1. Since treaties "enjoy an authority superior to that of internal laws," a law cannot abrogate, amend, or suspend a treaty.

2. Treaties cannot be abrogated except "by regular denunciation notified through diplomatic channels."

This clause of the Constitution intends to ensure respect for international law. The legality of the denunciation is in conformity with international law.

If, for example, a treaty contains a clause outlining the conditions of denunciation, denunciation shall be accordingly made.

Netherlands (note from Netherlands Ministry of Foreign Affairs, dated February 11, 1953):

1. No procedures are required to bring into force treaties or other international agreements, except those prescribed in the treaty or agreement it

self. A treaty can only be ratified by the Queen after it has been approved by the States-General.

2/3. No legislative or executive action is required by the present Constitution in order that a treaty or an agreement may be applied as part of the domestic law. All treaties and agreements are published, if possible, by the Minister of Foreign Affairs in the "Tractatenblad" (Netherlands Treaty Series).

4/5. When a treaty or other international agreement contains provisions in conflict with existing law, no special legislative action is required by the present Constitution before it is considered to override such existing law. However, it is customary practice that legislation be enacted before the entry into force of the treaty or agreement, in order to enable effect to be given to such provisions.

6. No scientific distinction is made, in the Netherlands, between selfexecuting treaties and non-self-executing treaties. United Kingdom (no summary statement has as yet been received from the United Kingdom. A despatch from the American Embassy in London, dated March 13, 1953, calls attention to discussion on March 11, 1953, in the House of Lords on the desirability of Parliamentary ratification of treaties before they come into force. An extract from Hansard (Lords), vol. 180, no. 43, March 11, 1953 (cols. 1284-1290), transmitted as an enclosure to the despatch contains a statement of the British position as summarized by Viscount Swinton. A portion of that statement is set out below).

Ratification of treaties

2.45 p. m.

Lord VANSITTART. My Lords, I beg to ask the Question which stands in my name on the Order Paper.

[The Question was as follows: "To ask Her Majesty's Government whether it should not in future be a rare exception that important Treaties rightly negotiated in privacy, should come into force on the day of signature, without need for ratification, thus depriving Parliament of any opportunity for discussions before being confronted with an accomplished fact."]

Viscount SWINTON. My Lords, I am afraid the answer is rather long, but as this is an important subject I think the House would probably prefer that I should read it rather than circulate it in the OFFICIAL REPORT. The noble Lord has raised a question relating to the practice of Her Majesty's Government, but before I deal with that it is perhaps necessary for me to restate the position in regard to the ratification of international Agreements, both in International Law and in relation to our Constitution.

Internationally, there is never any necessity for ratification unless the Agreement so provides. It is entirely for the parties to decide, in the light of their own internal constitutional and political positions, whether or not they will make the Agreement subject to ratification. If an Agreement is not made subject to ratification and is expressly to come into force at the moment of its signature, that is, internationally, perfectly valid.

So far as our own constitutional position goes, as the noble Marquess, Lord Reading, said on February 18, when the noble Lord raised this question apropos of the Sudan Agreement, ratification is part of the treaty-making power in the Prerogative and is the executive act of the Government of the day. There is, under our Constitution, nothing corresponding to the neces sity for Senatorial ratification of Treaties obtaining under the United States constitution. Strictly speaking, Her Majesty's Government never have to obtain Parliamentary consent before making or ratifying a Treaty.

Having said that, I should now come down to what happens in practice, which I understand is really the main object of the noble Lord's question. Ratification occurs in practice, and it is desirable that it should so occur, in two types of international Agreement. The first is where we should not, in fact, be able to implement the Treaty without legislation. It is then necessary to ask Parliament for the legislation, and since Her Majesty's Government cannot be certain that Parliament will grant it, it is necessary that the Treaty should be subject to ratification, and that we should get the legislation passed between the time when we signed the Treaty and the time when we propose to ratify it. The other case is that in which the political importance of a Treaty is so great that Her Majesty's Government feel obliged, as a political necessity, but not as a legal necessity, to consult Parliament about it before becoming committed. Here again, it would be