VERIFICATION RESEARCH AND TRAINING INFORMATION CENTRE (VERTIC - www.vertic.org)
The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction (the Ottawa Convention) creates various obligations for those countries which are parties to it. The most visible of these are the destruction of existing stocks of landmines, the destruction of deployed stocks and the assistance to be provided to victims. This part of the Annual Report is concerned with the legal framework which will underlie these actions.
This report has two parts.1
Part I examines the legal process by which a country becomes bound by international obligations under a treaty. It also examines the nature and implications of declarations and reservations which may be made at the time of ratification.
Part II addresses the question of national implementation, including an examination of what is required by international law and, more specifically, what is required by the Ottawa Convention.
Consent to be bound
As a matter of international law, the consent of a state to be bound by a treaty may be expressed by signature, exchange of instruments , ratification, acceptance, approval or accession, or by any other means if so agreed.2 The Ottawa Convention sets out the means by which those states wishing to become parties to the Convention may express their consent to be bound. Article 16 of the Ottawa Convention provides that:
1.This Convention is subject to ratification, acceptance or approval of the signatories.
2. It shall be open for accession by any State which has not signed the Convention.
By virtue of Article 16(1) the act of signing does not constitute an expression of a states consent to be bound by the terms of the Convention. The act of signing simplyqualifies a state to proceed to ratification, acceptance or approval. The act of signature does not create a binding obligation to proceed to ratification.3 It is possible, therefore, that not all of the signatories to the Ottawa Convention will ratify, accept or approve it.
However, the act of signing a treaty, while not constituting an expression of consent to be bound, nevertheless carries with it some consequences for the status, rights and, arguably, the obligations of a signatory state.4 The act of signing arguably creates an obligation of good faith to refrain from acts which would defeat the object and purpose of a treaty,5 which obligation continues until a party has ratified a treaty or has made clear its intention not to become a party to that treaty.6
Ratification constitutes a solemn act on the part of a sovereign or by the president of a republic whereby he[/she] declares that a treaty, convention or other international instrument has been submitted to him[/her] and that after examining it he[/she] has given his approval thereto, and undertaken its complete and faithful observance.7 The term is, on occasion, extended to include the approval of the legislature if the approvalis constitutionally necessary as a condition precedent to the head of state signifying consent.
The term ratification is sometimes confused with the process by which a treaty formally enters into force following a states ratification, generally by the exchange or deposit of an instrument of ratification by the state concerned.8 The Ottawa Convention provides that instruments of ratification are to be deposited with the Depositary, the Secretary- General of the UN. 9 Only following the deposit of that instrument can the Convention enter into force in respect of that state.10 The Ottawa Convention will enter into force in respect of that state either on the entry into force of the Convention as a whole (Article 17(1)) or if the Convention itself has already entered into force, on the first day of the sixth month after the date of the deposit by the state (Article 17(2)).11
Accession contemplates a state becoming party to a treaty or convention to which it is not a signatory.12 The Ottawa Convention expressly contemplates accession as a means by which a state may establish its consent to be bound by the Convention, notwithstanding that that state has not signed the Convention.13 The Convention makes clear that a state may accede to it either before or after the entry into force of the Convention itself.14 Since the Convention has now entered into force the former option is no longer possible.
As in the case of ratification, the Ottawa Convention requires that an instrument of accession be deposited with the depositary. It is on the deposit of this instrument thatthe acceding state formally establishes internationally its consent to be bound by the terms of the Convention.15
The entry into force of the Ottawa Convention following a states accession is determined in the same way as its entry into force following a states ratification of the Convention - either on entry into force of the Convention as a whole or, if the Convention itself has already entered into force, on the first day of the sixth month after the date of the deposit by the state.16
Acceptance and approval
Acceptance and approval have emerged in comparatively recent practice as alternative means of facilitating a states participation in a treaty.17 Acceptance refers to the process whereby a states consent to be bound by a treaty may, by virtue of its constitutional arrangements, be expressed by executive action alone, rather than by the more formal process often associated with ratification and which may, as noted above, require the approval of the states legislature.18 Approval refers to a states acceptance of the terms of a treaty in accordance with its municipal law processes. It is distinguished from acceptance, which indicates the formal act of accepting the terms of the treaty by the state.19
Depending on their context, use of the terms acceptance and approval may reflect the expression of consent to be bound by a treaty in ways akin either to ratification or accession that is, either following signature, or without any requirement for prior signature of the treaty. Under Article 16(1) of the Ottawa Convention, the terms acceptance and approval are used analogously to ratification. That is, only signatory states may express their consent to be bound by acceptance or approval.
As in the case of ratification, the Ottawa Convention requires that instruments of acceptance or approval be deposited with the depositary. It is on the deposit of the relevant instrument that the accepting or approving state formally establishes, on theinternational plane, its consent to be bound by the terms of the Ottawa Convention.20 The entry into force of the Ottawa Convention following a states acceptance or approval is determined in the same way as its entry into force following a states ratification of the Convention.21
Declarations and Reservations
On signing, or expressing their consent to be bound by, the Ottawa Convention, a number of states have submitted declarations. As at 3 December 1998,22 eight declarations had been made. Five of these simply indicated that they intended to apply the terms of the Ottawa Convention provisionally pending its entry into force, as contemplated by Article 18 of the Convention. These countries were Austria, Mauritius, South Africa, Sweden and Switzerland. The effect of these declarations has been to render the Ottawa Convention binding on these countries prior to it entering into force on 1 March 1999. Another of the declarations, by Greece, simply confirmed its intention to implement the Convention.23
The remaining two declarations, those submitted by Canada and the United Kingdom, were described as expressing their understanding of the nature of the obligations contained in the Ottawa Convention. The existence of these understandings raises the question of whether they constitute reservations. The issue arises because Article 19 of the Ottawa Convention expressly prohibits reservations.24 Accordingly, the Convention abrogates the general liberty under international law25 to formulate a reservation when signing, ratifying, accepting, approving or acceding to a treaty.26
A full report on these declarations is available from VERTIC and analysis is also included in the relevant country reports.
Once a Convention is drafted, signed and ratified and any reservations or declarations made known, the next step is implementation at the national level. This part of the Report will examine two aspects of national implementation: first, the general position in international law with regard to the relationship between treaties and national laws; and second, the specific requirements of the Ottawa Convention.
The Relationship between International Obligations of States and National Law
The international law relating to the relationship between a state's treaty or customary obligations and its municipal law is well settled. A state cannot plead provisions of its own law, or an absence thereof, to answer a claim against it for an alleged breach of its obligations under international law.27 There is in general an obligation on parties to a treaty to bring their internal law into conformity with their international obligations.28
The process whereby a country translates its international obligations into domestic law is often described as incorporation. The legal requirements of incorporation will vary from country to country. In the United Kingdom and most other Commonwealth countries the conclusion and ratification of treaties are within the prerogative of the head of state (the Crown or its equivalent). However, under the so-called transformation doctrine, treaties only become part of domestic law if an enabling Act of Parliament has been passed. Otherwise the Crown could legislate without parliamentary consent simply by entering a treaty.
For other countries, treaties entered into by the executive bind the courts without any further specific act of incorporation into domestic law (such ratifications are known as self-executing. Provided the correct process is adhered to, which will involve executive approval, the treaty becomes, in effect, municipal law. In practice however this principle is often applied with significant qualifications. For example, in the case of the United States, a treaty obligation may be overridden by subsequent federal legislation overrides a treaty. Furthermore, a self-executing treaty may not be enforced internally until it has been published.29 The whole subject resists generalisation and each states practice reflects the characteristics of its constitution.
Once an international treaty is incorporated into a countrys domestic law, by whatever method, there remains the question of what legal effect it has. Once again this is a subject which cannot be generalised. If the method of incorporation is a statutecontaining the treaty provisions it will have the same effect as any other piece of legislation. There is a well-established common law rule of construction which provides that where domestic legislation is passed to give effect to an international convention there is a presumption that Parliament intended to fulfil its international obligations.30 Where a treaty becomes part of national law simply through ratification its effect and interpretation are less clear. There is a general rule however, that in the case of a conflict, statute prevails over treaty.
What legal measures must be taken to implement a treaty?
The Ottawa Convention requires states parties to undertake many actions and cease to engage in others. Some of the more visible acts that have or will be facilitated by the Convention are the destruction of existing stocks of landmines, the cessation of production of landmines, the destruction of deployed stocks and the provision of assistance to victims.
Before discussing the requirements of the Convention two issues need to be considered. The first, as mentioned above, is that there is a general duty arising from the nature of treaty obligations and from customary law to bring internal law into conformity with international obligations. However, in general, a failure to bring about such conformity is not in itself a direct breach of international law. A breach only arises when a state fails to observe its obligations on a specific occasion.31 This means that if a state is required, by virtue of its ratification of the Ottawa Convention, its constitution and its situation vis a vis landmines to pass implementing legislation or other administrative measures and it fails to do so there is no breach of international law. A breach will only occur when, as a result of the absence of such laws or regulations, a prohibited act is performed.
The second issue arises from the fact that states parties to the Convention have made a binding international undertaking not to perform certain acts, for example producing landmines, and to engage in certain others where required, for example clearing landmines. The issue is whether a country which does not participate and has never participated in the production, use or transfer of landmines still fulfils its obligations if it takes no action, passes no new laws or takes no new administrative measures.
This is, for example, the case with Fiji. According to the constitution of Fiji, treaties are self-executing, which as outlined above means that once ratified, in accordance with constitutional procedures, the Ottawa Convention became binding in the courts of Fiji. The fact that a country's constitution operates in this way does not mean that this country need not enact implementing legislation for any treaty obligations. For example, in relation to the Ottawa Convention one requirement, which will be discussed below, is the provision of criminal sanctions for individuals caught engaging in prohibited conduct. The nature and extent of these sanctions is not provided in the Convention and must therefore be supplied by national law to giveeffect to treaty obligations. It is arguable that as there is no prohibited activity undertaken in Fiji there is no need for it to pass any law. That view should be challenged on several grounds.
First, one is unable to anticipate whether prohibited activity may occur in a country in the future. In the event of a prohibited activity in the future, whether anticipated or not, a country such a Fiji would require legislation to meets its international obligation. Further the legislative prohibitions, unless repealed, would bind the executive thus ensuring that no prohibited activity is conducted by any future Government.
In addition the country that submits that it does not engage in prohibited activity may have citizens who are engaged in undertaking prohibited activity in another country. While those citizens are subject to the laws of the country in which the prohibited activity is being undertaken the country of which they hold citizenship is also able to criminalize the actions notwithstanding they have been committed in another country. The nexus for the criminal sanction being the citizenship of the person breaching the prohibition.
The enacting of legislation would also assist other countries that find that one of their citizens is seeking refuge from criminal prosecution in that other country. As Brownlie notes, With the exception of alleged crimes under international law, in the absence of treaty, surrender of an alleged criminal cannot be demanded as of right.32 While extradition depends on issues of internal constitutional law and the effect of treaties on municipal laws, there exists a general principle of international law of double criminality. The principle requires that the act charged must be criminal under the laws of both the state of refuge and the requesting state. Therefore the enacting of legislation creating criminal sanctions in respect to the acts prohibited by the Convention would assist any future extradition proceedings.
A final consideration is that the enacting of legislation by all countries enhances the possibility that a ban on the use of landmines could become part of customary international law. In the meantime, as customary international law evolves, each piece of municipal legislation becomes one part of the movement to ban landmines. The role of the legislation internationally is one of moral suasion to other nations to also ratify and implement.
It is submitted therefore that all countries, notwithstanding the fact they consider that they have no landmine activity should legislate.
Obligations Imposed By The Ottawa Convention
Article 1 of the Convention sets out the general obligations of the Convention as follows:
1. Each State Party undertakes never under any circumstances:
a) to use antipersonnel mines;
b) to develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines;
c) to assist, encourage or induce, anyone to engage in any activity prohibited to a State Party under this Convention.
2. Each State Party undertakes to destroy or ensure the destruction of all anti-personnel mines in accordance with the provisions of this Convention.
The few exceptions to the general obligations are set out in Article 3, which provides that a minimum number of landmines may be retained or transferred to develop or train in mine detection, mine clearance or mine destruction. It also provides that anti-personnel mines may be transferred for the purpose of destruction.
Article 9 of the Convention addresses national implementation measures and requires that[e]ach State Party... take all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any activity prohibited...under this Convention...
To ensure that these prohibitions are enforced in practice, the ratifying countries will have to take a number of regulatory steps at national level. Specifically, countries must adopt appropriate legal, administrative and other measures to prevent and punish any prohibited activity by persons on territory under its jurisdiction or control. This will require the adoption of specific municipal criminal legislation.
The fact that the Ottawa Convention not only prohibits certain conduct but requires the provision of criminal sanctions places an extra burden on states parties. For example, a state party, which has never had any dealings with landmines, could, in theory, find itself in breach of its international obligations. If a transaction involving landmines or components thereof was conducted on its territory a state party would be obliged under the Convention to punish the individuals involved. If that country did not have relevant criminal legislation it may find itself unable to do so. The direct incorporation of the Convention into the law of a country on ratification will not suffice. The Convention does provide the penal framework or the specific penalties for a breach of the prohibitions. Municipal legislation is therefore required to enforce the Convention through criminal sanctions.
In addition to new legislation the Ottawa Convention also requires most countries to adopt administrative measures to make sure that the necessary changes in military doctrine, codes of conduct, training procedures and manuals are made. Other necessary measures will include giving notification to companies involved in the production or transfer of landmines and the review by relevant ministries of import and export licenses in light of the Convention's requirements.
Article 4 addresses the destruction of existing stockpiles of mines and Article 5 the clearing of mined areas. States will need to take appropriate administrative and regulatory measures to implement these provisions.
Article 7 requires each state party to file a report with the Secretary-General of the United Nations six months after entry into force of the treaty.33 This report must provide detail of national implementation measures, for example stockpiles oflandmines and mined areas. States parties will need to take appropriate administrative measures to authorise the collection of this information.
Article 8 provides for the facilitation and clarification of compliance. In complying with this Article, states will need to provide a process for receiving and responding to requests, as well as the appropriate measures for hosting and cooperating with fact-finding missions should these become necessary.
Finally, in implementing the Convention states will need to allocate funding at a national level in order to contribute, as required by Article 14, to the cost of Meetings of States Parties.
3 M. Whiteman,Digest of International Law, 1970, Department of State Publication, Washington DC, Vol. 14, p. 50. See, however, I. Brownlie,Principles of Public International Law (5th Ed.), 1998, p. 611 and references to Lauterpacht and Fitzmaurice.
4 That the act of signing is a first step to participation in a convention, which establishes a provisional status in favour of a state, with certain resulting rights for that state, was expressly recognised by a majority of the International Court of Justice in itsAdvisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) ICJ 15, p. 28.
5 Cf Article 18 Vienna Convention on the Law of Treaties 1969. See also Ian Brownlie, Principles of Public International Law (5th Ed.) 1998, p. 611. Debate continues amongst international scholars as to whether the obligation contained in Article 18 of the Vienna Convention on the Law of Treaties 1969 constitutes a codification or a progressive development of customary international law principles. The arguments for and against each position are canvassed in J.S. Charme, The Interim Obligation of Article 18 of the Vienna Convention on the Law of Treaties: Making Sense of an Enigma (1991), 25 Geo. Wash. J. Intl L. and Econ. 71. Charme argues that Article 18 does constitute a codification, so that it can be said that the obligation in Article 18 exists as a matter of customary international law also. For a discussion to the contrary, see also Sir I. Sinclair, The Vienna Convention on the Law of Treaties (2nd ed) 1984, Manchester University Press, p. 43.
6 It should be noted that this obligation is quite different to the obligation which signatories to the Ottawa Convention may elect to adopt under Article 18 of the Ottawa Convention, namely to apply the Ottawa Convention provisionally between their ratification and the Conventions entry into force.
8 Lord Gore-Booth and D. Pakenham (eds)Satows Guide to Diplomatic Practice, 1979, Longman, London, p. 273. See also M. Whiteman,Digest of International Law, 1970, Department of State Publication, Washington DC, Vol. 14, p. 62.
10 This much is implicit in the fact that the entry into force of the Convention is determined by reference to the date of the deposit of a states instrument of ratification cf also article 16 of theVienna Convention on the Law of Treaties 1969.
12 Lord Gore-Booth and D. Pakenham (eds)Satows Guide to Diplomatic Practice, 1979, Longman, London, p. 276. See also M. Whiteman,Digest of International Law, 1970, Department of State Publication, Washington, Vol. 14, pp. 93-4.
17 The International Law Commission has described acceptance as an innovation which is more one of terminology than of method: see the references to the comments of the International Law Commission on acceptance and approval generally in M. Whiteman,Digest of International Law, 1970, Department of State Publication, Washington, Vol. 14, p. 109. See also Lord Gore-Booth and D. Pakenham (eds)Satows Guide to Diplomatic Practice, 1979, Longman, London, p. 282.
23 This was the declaration made by Greece at the time of its signing of the Convention, which confirmed its commitment to the principles in the Convention:Greece fully subscribes to the principles enshrined within the [said Convention] and declares that ratification of this Convention will take place as soon as conditions relating to the implementation of its relevant provisions are fulfilled.