Yesterday, the House of Lords debated three international treaties, in line with the process established by the Constitutional Reform and Governance Act 2010 (see here for the transcript of the debates). Holger Hestermeyer discusses how the process of treaty ratifaction works, how it has been affected by the meaningful vote mechanism created by Brexit, and what lessons can be learned from the way in which other countries and organisations ratify treaties.
There has hardly been a day in the last two years in which treaties have not taken centre stage in the public debate. From the Withdrawal Agreement to the future trade relationship with the EU, from discussions about leaving the European Convention on Human Rights to proposals to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) treaties have become essential for the future economic and political outlook of the UK. But as treaties have obtained a central role in the debate, the question of how treaties are made has also become a topic of discussion, in particular the role of parliament. In the UK, that role is limited: parliament can merely delay treaty ratification. It can also vote down implementing legislation, but it does not (or did not, before the Withdrawal Agreement) get a vote on the treaty itself. A separate system is in place for the scrutiny of EU treaties, but this is outside of the scope of this blogpost and will be coming to an end with Brexit.
The UK constitutional setup is somewhat unusual. In many countries, the executive needs to obtain parliamentary consent for certain types of treaties to be able to ratify. Whether and to what extent the UK system of treaty scrutiny is in need of reform is now the subject of an inquiry in the House of Lords’ Constitution Committee, but treaty scrutiny has also played an important role in the discussions on the Trade Bill 2017-2019 and is the subject of EDM 128, which was tabled on 4 July 2017 has attracted 125 supporters. This blogpost will briefly describe how treaties are made with particular regard to the UK. It will then discuss why there is a call for reform. Finally it will turn to what such a reform could look like and what lessons can be drawn from other systems, such as the US, the EU, France or Germany.
How treaties are made
The treaty-making process can vary according to a number of factors, such as whether a treaty is formally concluded as a treaty or through an exchange of notes or whether a treaty is bilateral or multilateral. In general, the parties decide to try and negotiate a treaty with a defined partner, prepare internally (e.g. though consultations) setting their objectives, and then conduct the negotiations. Once the negotiators have reached agreement, the text is finalised and the parties can sign. Usually the signature does not yet bring the treaty into force – most treaties require another formal act expressing the consent of the state to be bound, referred to as ‘ratification’. Continue reading