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An Introduction to the Nature of Treaties

David Favre


Animal Legal & Historical Center
Publish Date:
2002
Place of Publication: Michigan State University College of Law
Printable Version

An Introduction to the Nature of Treaties

A. Introduction

The term "treaty" can have at least two connotations in international law. In the narrower, traditional sense, a "treaty" is the title found at the top of a number of important international agreements. In the broader sense of the word, it refers to an entire class of international agreements which may or may not have the word "treaty" in its title. In general, the term is usually used in the broader sense of the word. Thus, under the heading of treaties will be found such documents as Conventions, Agreements, Declarations, Protocols or Acts.

Consider the following definitions of the word "treaty":

(1) Lord McNair, Law of Treaties:

[A] written agreement by which two or more States or international organizations create or intend to create a relationship between themselves operating within the sphere of international law. (Lord McNair, Law of Treaties 4 (Clarendon Press, Oxford) reissued 1986.)

(2) Vienna Convention on the Law of Treaties:

"[T]reaty" means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. (Article 2. U.N. Doc. A/Conf. 39/27, (1969), 63 A.J.I.L. 875 (1969), 8 I.L.M. 679 (1969).

This treaty was drafted with the goal of codifying existing international practice. It entered into force on Jan. 27, 1980. The U.S. has not become a Party to this treaty.

Oral statements, even those between heads of States, do not create international treaties. In effect, there is a customary Statute of Frauds in international law. This custom or tradition is founded on the same policy reasons that support the Common Law and statutory statements of the Statute of Frauds. Agreements in writing provide certainty as to language and objective evidence of the subjective intent of the parties involved.

B. International Capacity and States

Only certain entities are recognized by the international community as having the legal capacity to create a treaty. Traditionally, only sovereign States can enter into treaties. The Vienna Convention, in this tradition, limits the scope of its provisions to agreements between States. Lord McNair's more liberal position allows agreements with or between international organizations to also be referred to as treaties.

A full discussion of what constitutes a "State" is beyond the scope of this article. Briefly, while geographic areas such as the United States, United Kingdom, Brazil, or India are clearly States, there are a number of problems that can arise in deciding Statehood. Neither geographic size, physical isolation nor number of citizens will determine an area's Statehood status. Luxembourg, consisting of 998 sq. miles (2,586 km2) and a population of 380,000 is one of the oldest States in Europe. Greenland, with an area of 840,000 sq. miles (2,175,600 km2) and population of 58,000 is a province of Denmark, and has never been recognized as a State.

People of a particular geographic area often have multiple layers of political organizations seeking to govern them. In the United States a group of people may be part of a village, town or city, as well as the county, state and national levels of government. These people can also be considered part of the United Nations and other international institutions. But any one geographic area can be represented in the international legal arena by only one level of government, referred to as a "State." The determination that a particular level of government constitutes a State is the critical step. But, who decides which political organization is a State? There is no court or other authority which can decide the issue. States are recognized as States only by other States. While during several periods of human history States have gone though periods of territorial expansion, the 1990's is witnessing a period of territorial break up. Political organizations that were previously subparts of a State now seek and obtain the status of State. Thus, Lithuania broke off from the USSR. The disintegration of Yugoslavia into a group of States is another example of the process at work.

The wishes of the people within the boundaries of a territory is not necessarily sufficient to transform them into a State. Consider the case of Taiwan. Taiwan has had military self control and independent foreign relations since World War II. It asserts itself as a State, and has all the normal trappings of a sovereign State. Yet most States consider it to be a part of the State of China, rather than a separate State. Taiwan is thus denied its self-asserted status as a State within the international community. For example, it has not been allowed to become a party to the treaty protecting endangered species, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), even though Taiwan has significant trade in wildlife. In this treaty, as in many, the term "State" is used without any attempt to define what constitutes a State.

Another example is Hong Kong, a territory denied the status of State. Hong Kong had been a part of the British Protectorate for over ninety years. London, under the provisions of a long term lease, has controlled its foreign affairs and provided its military protection. Without regards to the wishes of the citizens of Hong Kong, the British Government signed a treaty transferring back the territory to China as of 1997.

A unique problem in this area is that of Antarctica. This continent, having no permanent or historic human population, contains no States. Historically, a number of States have asserted claims over portions of its territory but, these claims have been held in abeyance by the Antarctica Treaty.

Sometimes political subparts of a State have state-like attributes but are not recognized as having international legal capacity. Within the United States, Michigan, Iowa and all the other states can be referred to as sovereign states in domestic jurisprudential analysis. Yet, if the state of Michigan was to sign a Great Lakes Clean Up Agreement with the Province of Ontario, the agreement could not be called a treaty, as neither party has the international capacity to create treaties. Under the U.S. Constitution, Article 1, the power to enter into international obligations has been delegated to the federal government of the United States. (Article 1, Section 10 - "No State shall enter into any Treaty, Alliance or Confederation...") Likewise, Indian tribes within the United States are sometimes referred to and treated as sovereign States under U.S. law. (Under the federal Clean Air Act, both states and Indian tribes are given the power to set the level air quality within their land for purposed of the Prevention of Significant Deterioration provisions, 42 U.S.C. § 7474.) Yet, they would not be considered to have the international capacity to enter into treaties. Within Canada, where the provinces have more autonomy of action than states within the United States, the federal government nevertheless is recognized as possessing the treaty-making power for all of that territory. (Because of the historical legal development of Canada, it's federal Constitution is silent on the issue of authority to engage in treaty making. See Peter Hogg, Constitutional Law of Canada, ch. 11 Treaties (2d ed. 1985).)

Some organizations other than States are considered to have international legal capacity, the best example being those organizations which are composed of States. Thus, the United Nations and its associated organizations such as the United Nations Environment Programme have treaty capacity. Less clear is the status of economic or military organizations created by States. Does NATO, itself created by treaty, have the legal capacity to enter into treaties? Most likely not. What about the European Economic Community (EEC) Perhaps yes, for under the provisions of the treaty creating it, the EEC has been delegated authority to act on behalf of its member States within limited areas, such as economic trade. Thus, the EEC, having the power to control the movement of trade between its member States, has sought the status of a voting Party within the treaty which deals with plant and wildlife trade (CITES). As the EEC is not within the traditional definition of a sovereign State, an amendment to the treaty has been proposed, but not yet adopted, which allows economic unions such as the EEC to have voting status within the treaty structure. The Biological Diversity Treaty of 1992 ( 31 I.L.M. 818 (1992)) contains a specific provision which will allow the EEC to have voting status under the treaty. Article 33 allows that the Convention shall be open for signature by "all States and any regional economic integration organization." While the term State is not defined the later phase of "regional economic integration organization" is defined as "an organization constituted by sovereign States of a given region, to which its members States have transferred competence in respect of matters governed by this Convention and which has been duly authorized, in accordance with its internal procedures, to sign, ratify, accept, approve or accede to it." (Article 2) Thus, the Treaty does not consider the EEC a State, but does acknowledge its international legal status.

International private organizations, whether they are profit seeking, such as Exxon, or nonprofit, such as Greenpeace, do not normally have international legal standing. While a State may enter into agreements with private organizations, such agreements are more in the nature of contracts rather than treaties.

Problems

1. The Forest Service of the Department of Interior of the U.S. government meets with its counterpart in Brazil several times, ultimately producing a document which outlines a tropical forest management plan, a timber export control plan for Brazil, and an old growth forestry management plan for the United States. It is signed by both department heads. The United States then refuses to implement the plan. Brazil claims a violation of treaty obligations and seeks remedies in the International Court of Justice. What initial defenses would the U.S. raise?

2. At the annual meeting of the G7 governments (the "Economic Summit") a final declaration is normally issued by the States present. Recently, portions of these declarations have spoken of a duty to preserve the environment. Do these declarations give rise to international obligations or individual rights?

3. You are a U.S. lawyer representing the Hughmongus Oil Co. The President of the Corporation gives you a call and tells you that he just heard that the U.S. has signed a treaty whose goal is the reduction of greenhouse gas emissions by 50% over the next decade. He wants to know what he should tell his plant managers to do. What advice do you give?

4. Did the World Charter of Nature or the Rio Declaration create any legal environmental rights for U.S. citizens?

C. Creation of a Treaty

Any and all environmental topics or concerns have been, or may be made, the subject of an international agreement. There are no specific limitations on the subject matter of treaties. However, the concern of this chapter is not the substance of treaties, but their creation, form and interpretation.

As might be expected, the road to a formal treaty usually starts with much informal discussion: discussions between States, between private interest groups, scientists and others. States, through their foreign affairs offices (i.e., the U.S. State Department), may initiate discussion with any party they choose. Often the initial discussions may be done by a nongovernmental organization (NGO) until some preliminary consensus is found. A State then sponsors the final phase of the creation process. In the case of CITES, the International Union for the Conservation of Nature and Natural Resources (IUCN) was the non-state party that did the initial drafting and consultation with States. The IUCN also prepared the draft of the Polar Bear Agreement discussed below. After a number of draft documents, the United States agreed to sponsor the CITES treaty by holding a formal negotiation session to which all interested States were invited. Thus, in 1973, the United States invited several dozen States to send their official representative to a plenipotentiary conference in Washington D.C. to decide on the final language of the proposed treaty.

At these formal negotiation conferences, State representatives arrive with their authority expressed in writing. This is in the nature of an expressed agency. Several hundred years ago, such representatives might also have had the power to bind the State to a treaty without having to return home. Today, the presence of a representative is not an assurance that a State will ultimately become bound by the treaty drafted at a Conference, only that the State is interested in the drafting process.

Under standard international rules of negotiations, a draft treaty will be finalized when it is adopted by a two-thirds vote of the States at the plenipotentiary conference or, if negotiated in another manner, upon agreement of all parties. (See Article 9, Vienna Convention on the Law of Treaties.) Once the text is finalized, no further compromises in the language of the proposed treaty can be made. At this point the representatives may sign the treaty. This signature is not binding on the State, but represents general support for the treaty and attests to the fact that the signed document is the final, negotiated text.

1. Ratification

After the final text is adopted, each State eligible to become a Party State under its terms, can begin its review process for deciding whether to ratify the treaty. If the decision is yes, then an instrument of ratification is drafted, signed by the State and delivered to the specified Depositary Government. There is no universal form for this instrument of assent.

Each treaty sets forth those steps necessary to bring the treaty into full legal effect. When all of the steps have been fulfilled, the treaty "comes into force". With bilateral treaties, the ratification of both parties are necessary before the treaty can come into force. With multilateral treaties, a minimum number of parties must agree to be bound by the treaty's provisions. In the case of CITES, Article XXII states:

1. The present Convention shall enter into force 90 days after the date of deposit of the tenth instrument of ratification, acceptance, approval or accession, with the Depository Government.

The Convention on Long-Range Transboundary Air Pollution (1979) required 24 instruments of ratification, acceptance, or approval.

The Vienna Convention on the Law of Treaties, Article 2 states:

(b) "ratification", "acceptance", "approval" and "accession" mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty;

"Ratification" is a positive expression of a State's willingness to be bound by a treaty that it helped negotiate. The terms "acceptance" or "approval" are slightly less formal terms, but ultimately mean the same thing as ratification. If, under a State's domestic law, there is more than one way by which the government can decide to be bound, by using the phrase "ratification, acceptance or approval", the treaty is allowing the State to choose whichever method it deems appropriate.

The time period involved in this process is normally one of years. The Polar Bear Agreement, set out below, was signed on November 15, 1973; it went into force May 26, 1976 after three of the signatories had deposited instruments of ratification. It was not until January 25, 1978, over four years from the signing of the agreement, that all five of the signatories had ratified it.

Under the Constitution of the United States, only the President is authorized to negotiate treaties. However, as part of the checks and balances of the U.S. system, the President alone can not make a treaty binding on the United States. He must have the "advice and consent" of two-thirds of the U.S. Senate to ratify a proposed treaty. In the United Kingdom, the decision of whether to ratify a treaty rests with the Crown, with the "advice" of the appropriate government Minister. (The advice is more in the nature of a directive, as the Crown always accepts the "advice".). In Canada the power to ratify a treaty is solely within the executive branch, although, on some important issues, the executive branch seeks support in the form of legislative resolutions.

While ratification normally refers to the acts of those States which were signatories to the treaty at the end of the drafting process, accession refers to an act by a States which wishes to become a party to a treaty it did not help negotiate. This was very important to CITES, as only a limited number of States were part of the drafting process; yet, to be effective, CITES needed to be adopted by as many countries as possible. Thus a specific provision for accession is found in Article XXI. There is no time limitation on when a State may become a Party: "the present Convention shall be open indefinitely for accession." As with ratification, the process of accession is internal to each State. The end result of the process is an instrument of accession which declares that the State wishes to join the treaty and agrees to be bound by its provision. Since 1976 over 150 countries have become Party States to CITES, most by accession. Normally, once a State is a party to a treaty, whether by ratification or accession, the obligations and rights are identical.

2. Reservations

As discussed above, when considering the adoption of a treaty, a State may not unilaterally change the language of the treaty. However, there is a method by which a State can either reject some provisions of a treaty or give its own interpretation of the language of the treaty. This is referred to as a "reservation". The Vienna Convention defines the term as follows:

(d) "reservation" means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State;

The specific provisions of each treaty must be examined to determine whether, or to what degree, reservations are allowed. The extent to which reservations are to be allowed is one of the significant points of negotiation at a plenipotentiary conference. A general reservation is one which might deal with any responsibility or duty under the treaty. Article 18 of the Montreal Protocol on Substances that Deplete the Ozone Layer (1987) states succinctly, "No reservations may be made to this Protocol". Article XXIII of CITES does not allow any general reservations. However, CITES does allow specific reservations as to species listed for protection. When Japan submitted its instrument of ratification, it took reservations on the species of sea turtles protected under CITES. Thus, even though most countries were bound by the treaty limitation that imported sea turtle parts could not be used for commercial purposes, Japan could and did make commercial use of sea turtles products. Because of the formal reservations, Japan was not considered in violation of its international legal obligations. (In 1991, after considerable international pressure, Japan announced its intention to withdraw its reservations relating to sea turtles after existing stock is consumed.)

3. Depository

The depository government is the official keeper of the documents. This obligation does not result in the granting of any executive or legislative powers under a treaty. The depository government must be one that is respected and trusted by all Parties to carry out certain fundamental functions. In Article XX of CITES, the Government of the Swiss Confederation is designated as the Depositary Government. It is the keeper of official documents with duties both to keep documents and provide official notice to the Parties of certain events. The determination of which government shall be the depository government is a point of negotiation at the plenipotentiary conference.

Articles XX and XXI of CITES require that a State's instrument of ratification or accession be deposited with the depository government. Acceptance of the instrument triggers the obligation of compliance with the provisions of CITES. Additionally, under the provisions of Article XXV(2), the Swiss government is under a duty to notify other Party States of the receipt of instruments of ratification, acceptance, approval or accession to the treaty itself or any amendments thereto. It is also from the Swiss government that official word is received as to the taking and withdrawal of reservations, and notification of denunciation. The depository government has the obligation to determine the legal adequacy of any document presented to it by a State.

D. Analysis of a Modest Treaty

The short treaty on conservation of polar bears provides a working example of the structure and operation of a treaty. A treaty usually contains the following elements:

  1. Statement of policy and purpose - precatory language.
  2. Substantive provisions - action language - that which the States agree to do or not to do.
  3. Implementation requirements - what States agree to do within their domestic law system.
  4. Internal procedure - the provisions for how the Party States will make future decisions, including the modification of the treaty. This can also include provisions for dispute resolution and enforcement provisions for treaty violations.
  5. Creation procedure - those steps necessary to bring the treaty into force and any limitation on who may be a Party State.

Review the provisions of the Polar Bear treaty and decide which article performs which function.

Agreement on the Conservation of Polar Bears, 1973

27 UST 3918, TIAS 8409

The Governments of Canada, Denmark, Norway, the Union of Soviet Socialist Republics, and the United States of America,

Recognizing the special responsibilities and special interests of the States of the Arctic Region in relation to the protection of the fauna and flora of the Arctic Region;

Recognizing that the polar bear is a significant resource of the Arctic Region which requires additional protection;

Having Decided that such protection should be achieved through co-ordinated national measures taken by the States of the Arctic Region;

Desiring to take immediate action to bring further conservation and management measures into effect;

Have Agreed as follows:

Article I

1. The taking of polar bears shall be prohibited except as provided in Article III.

2. For the purposes of this Agreement, the term "taking" includes hunting, killing and capturing.

Article II

Each Contracting Party shall take appropriate action to protect the ecosystems of which polar bears are a part, with special attention to habitat components such as denning and feeding sites and migration patterns, and shall manage polar bear populations in accordance with sound conservation practices based on the best available scientific data.

Article III

1. Subject to the provisions of Articles II and IV, any Contracting Party may allow the taking of polar bears when such taking is carried out:

  • a) for bona fide scientific purposes; or
  • b) by that Party for conservation purposes; or
  • c) to prevent serious disturbance of the management of other living resources, subject to forfeiture to that Party of the skins and other items of value resulting from such taking; or
  • d) by local people using traditional methods in the exercise of their traditional rights and in accordance with the laws of that Party; or
  • e) wherever polar bears have or might have been subject to taking by traditional means by its nationals.

2. The skins and other items of value resulting from taking under sub-paragraphs (b) and (c) of paragraph 1 of this Article shall not be available for commercial purposes.

Article IV

The use of aircraft and large motorized vessels for the purpose of taking polar bears shall be prohibited, except where the application of such prohibition would be inconsistent with domestic laws.

Article V

A Contracting Party shall prohibit the exportation from, the importation and delivery into, and traffic within, its territory of polar bears or any part or product thereof taken in violation of this Agreement.

Article VI

1. Each Contracting Party shall enact and enforce such legislation and other measures as may be necessary for the purpose of giving effect to this Agreement.

2. Nothing in this Agreement shall prevent a Contracting Party from maintaining or amending existing legislation or other measures or establishing new measures on the taking of polar bears so as to provide more stringent controls than those required under the provisions of this Agreement.

Article VII

The Contracting Parties shall conduct national research programmes on polar bears, particularly research relating to the conservation and management of the species. They shall as appropriate co-ordinate such research with research carried out by other Parties, consult with other Parties on the management of migrating polar bear populations, and exchange information on research and management programmes, research results and data on bears taken.

Article VIII

Each Contracting Party shall take action as appropriate to promote compliance with the provisions of this Agreement by nationals of States not party to this Agreement.

Article IX

The Contracting Parties shall continue to consult with one another with the object of giving further protection to polar bears.

Article X

1. This Agreement shall be open for signature at Oslo by the Governments of Canada, Denmark, Norway, the Union of Soviet Socialist Republics and the United States of America until 31 March 1974.

2. This Agreement shall be subject to ratification or approval by the signatory Governments. Instruments of ratification or approval shall be deposited with the Government of Norway as soon as possible.

3. This Agreement shall be open for accession by the Governments referred to in paragraph 1 of this Article. Instruments of accession shall be deposited with the Depositary Government.

4. This Agreement shall enter into force ninety days after the deposit of the third instrument of ratification, approval or accession. Thereafter, it shall enter into force for a signatory or acceding Government on the date of deposit of its instrument of ratification, approval or accession.

5. This Agreement shall remain in force initially for a period of five years from its date of entry into force, and unless any Contracting Party during that period requests the termination of the Agreement at the end of that period, it shall continue in force thereafter.

6. On the request addressed to the Depositary Government by any of the Governments referred to in paragraph 1 of this Article, consultations shall be conducted with a view to convening a meeting of representatives of the five Governments to consider the revision or amendment of this Agreement.

7. Any Party may denounce this Agreement by written notification to the Depositary Government at any time after five years from the date of entry into force of this Agreement. The denunciation shall take effect twelve months after the Depositary Government has received the notification.

8. The Depositary Government shall notify the Governments referred to in paragraph 1 of this Article of the deposit of instruments of ratification, approval or accession, of the entry into force of this Agreement and of the receipt of notifications of denunciation and any other communications from a Contracting Party specifically provided for in this Agreement.

9. The original of this Agreement shall be deposited with the Government of Norway which shall deliver certified copies thereof to each of the Governments referred to in paragraph 1 of this Article.

10. The Depositary Government shall transmit certified copies of this Agreement to the Secretary-General of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations.

In Witness Whereof the undersigned, being duly authorized by their Governments, have signed this Agreement.

Done at Oslo, in the English and Russian languages, each text being equally authentic, this fifteenth day of November, 1973.

1. Precatory Language

The "whereas" and "recognizing" clauses set the stage for the treaty by stating, or hinting at, why the treaty is being drafted. In may be full of code words which have to be deciphered. Each word has been carefully chosen. States with often differing interests and perspectives have approved the language. While the language may provide a context for interpretation of subsequent provisions, the language does not create any binding obligation on the Parties. For the Polar Bear Agreement, consider the following:

1. Why the limited number of States? What special responsibilities and interests do these States have? The polar bear is referred to as a "significant resource". Are polar bears the equal of oil fields? Why that phrase? What does this suggest about the drafters' attitudes?

2. The precatory language states that the polar bear "requires additional protection" but it does not say from what. List several reasons why the bear needs additional protection. Why is an international treaty required for this protection? The fourth paragraph suggests the nature of the action will be "through co-ordinated national measures." What does this tell us? What other approaches have implicitly been rejected?

3. In the fifth paragraph, what does the phrase "conservation and management measures" mean? "Immediate" suggests time pressure. Is there really an urgency about the problem?

4. Why did the drafters entitle this document an "Agreement"? Is it not a treaty?

2. Definitions

While the Polar Bear Treaty does not contain any definitions, many treaties follow the precatory language with a set of definitions. Sometime this is done to provide clarity to an ambiguous term. In the Vienna Convention for the Protection of the Ozone Layer (1985) the key term "ozone layer" is defined as "the layer of atmospheric ozone above the planetary boundary level," thus clarifying a point of science. The key operative phrase of the Ozone Convention requires the State to take measures that are necessary to protect against "adverse effects". This phrase is, in turn, defined as:

changes in the physical environment or biota, including changes in climate, which have significant deleterious effects on human health or on the composition, resilience and productivity of natural and managed ecosystem, or on materials useful to mankind.

Obviously, this definition gives focus to the phrase but, from a legal point of view, it is still vague and subject to various interpretations. This was the result intended by the drafters.

Often political compromises can be found in the definition section. In the CITES treaty, "species" is defined an "any species, subspecies or geographically separated population". This is not a biological definition. Instead, it establishes a fundamental policy point negotiated by the parties. With this definition, the Party States will be able to list and protect population segments of a species even when the worldwide status of the species would not justify action under the treaty.

3. Action Language

Consider Articles I and II of the Polar Bear Agreement. Article I is a prohibition, while Article II requires affirmative action. It is typical of a well drafted treaty that the critical obligation of the treaty be set out in the initial substantive articles. The starting point of this treaty is the language of Article I (1): "The taking of polar bears shall be prohibited except as provided in Article III." This gives the first sense of the scope or jurisdiction of the treaty. It deals only with the polar bear species, and seeks to control the taking thereof.

In part (2) of Article I there is a clarification of the term "taking". Why would the parties need to do this? Is this an all inclusive definition? What else might have been said? Is this a minimum or a maximum? Domestic U.S. legislation has a much more extensive list of terms.(Section 3(19) of the Endangered Species Act defines a "taking" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, or collect, or to attempt to engage in any such conduct.") What if a camera crew of ten people chase a polar bear for a week in order to obtain movies. Is this within the jurisdiction of the treaty?

What is required of the Party States under Article II? By what standard will the actions of the Parties be judged? How might a Party State carry out its promise under Article II? In Articles I and II what does the use of the word "shall" denote?

Consider the exceptions to the prohibition of Article I as set out in Article III. Are the scope of the exceptions clear? Are they capable of being monitored so that they are not abused? Do any of the exceptions represent special interests (constitute parts of the States in question) seeking to be protected? Why do you think Article IV was included?

4. Implementation Requirements

After having established the prohibited actions or required actions, there will usually be a series of articles which set out the scope of the duty of each Party State to domestically implement international obligations. Domestic law is normally required in order to impose binding law on the individual within each State. Examine Articles V - IX of the Polar Bear Treaty. Presume you are requested to draft a memo to the President of the United States setting out what legislative action is required to carry out our international obligations under the treaty. What would you include? What if the President said alternatively, a) "this is not important to me, do as little as possible" or b) "I want to satisfy the environmentalists on this one - we should go the extra mile." What might be the different results? (The polar bear is within the protection of the Marine Mammal Protection Act, 16 U.S.C. §§ 1361-1407. )

A very important aspect of implementation is the question of what will happen under a treaty, and/or international law generally, if a State does not carry out its treaty obligations. What is the "downside risk" to the United States if it decides to do nothing under the Polar Bear Treaty? What interests - legal, political, economic, environmental or social - support implementation and enforcement of treaties?

5. Internal Procedures

The treaty next needs to be examined to determine what the parties contemplated concerning the administration of the treaty's provisions after the treaty comes into effect. The provisions of Articles I - VI are unilateral in nature. No further meetings or discussions between the States are necessary. Article VII contemplates co-ordination of research, which supports and allows contacts between scientists (a significant point of agreement between the US and the USSR during the height of the Cold War).

There is no provision requiring regular meeting of the Parties. Article X (6) does provide a mechanism for the calling of a meeting by any of the Party States. The CITES treaty, however, was drafted with the expectation that the Party States would need to meet on a regular basis once the treaty came into effect. Article XI (1) of CITES requires that a meeting of the Parties be called within two years of the date of its entry into force and every two years thereafter.

Another major issue in the drafting of a treaty is whether to create a structure to help with the administration and implementation of the treaty. The drafters of the Polar Bear Treaty decided not to create any administrative structure for the treaty. On the other hand the drafters of CITES created the office of the Secretariat, headed by an individual referred to as the Secretary General of the Treaty. This office is not equal to the executive branch of government with independent powers. The power of decision making is in those States which are Parties to the treaty, with the Secretariat being the support staff for the Party States. The role of the Secretariat is usually that of gathering and distributing information, coordinating research projects, and setting up the meetings of the Party States of the treaty. The Secretariat does not have any power to force compliance from States that do not fulfill their obligations under a treaty.

6. Procedural Provisions

The final articles of a treaty will set out the necessary requirements to bring the treaty into force. These articles will also contain the procedures for modification of the treaty and withdrawal from the treaty. Consider the final Article of the Polar Bear Treaty. What is necessary for the treaty to come into force?

In this final section of the treaty, there is usually a provision which states the official languages of the treaty. While French was historically the language of diplomacy and, therefore, treaties, today English is the usual language of negotiation in multilateral negotiations. However, pride and international status often result in the translation of the treaty into different languages with official recognition of each version. This always creates the risk of a treaty having slightly different meanings depending on the language being used. The Biological Diversity Treaty lists Arabic, Chinese, English, French, Russian and Spanish as equally authentic text. (Article 42.)

Questions and Problems

1. Under the provisions of the treaty, would a hunter from Texas be allowed to kill a polar bear in Canada and return to Texas (1) with a personal sport trophy, or (2) for commercial resale of the skin and head?

2. Do the provisions of this treaty have any impact on the plans of the U.S. government to allow oil drilling in the upper portions of Alaska? Could the Sierra Club or Defenders of Wildlife sue the federal government to stop oil drilling in Alaska on the basis of violation of the Polar Bear Agreement?

3. What might be entailed in a "sound conservation practice" (Article II)?

4. How do the first and last portions of Article IV fit together?

5. What would be the obligations of a Party State under the treaty if government scientists reported that the most critical threat to the polar bear was the industrial toxins found in the bears' favorite food: seal blubber?

 

E. Framework for Analysis

The following questions are presented to provide an analytical framework for understanding any treaty.

  1. Who drafted the treaty?
  2. Who may become a member?
  3. What is the purpose or policy of the treaty?
  4. What interests outside the jurisdiction of the treaty may run counter to the purpose of the treaty? Which States would be expected to support or oppose the treaty?
  5. Within the provisions of the treaty, which State actions are jointly taken and which are unilateral?
  6. Are there any unilateral decision points where conflicts between the member states might be expected (tension points)? How are they to be resolved?
  7. Is there a mechanism available for enforcing the requirements of the treaty for States not meeting their responsibilities under the treaty? How does it work?
  8. Does a Party State have the option of exempting itself from any of the provisions of the treaty? Why is this allowed? What impact does it have on the overall effectiveness of the treaty?
  9. What external problems may limit the ability of the treaty to obtain its goal?
  10. Are the legal requirements of the treaty sufficient to accomplish the goal of the treaty?
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