Wales & The World VIII: Treaties & Agreements

(Title Image: ITV)

This one’s for hardcore constitutional anoraks. Despite that, it’s one of the more important questions surrounding independence and foreign policy : Would the UK’s current international treaty obligations extend to newly-independent states (like Wales and Scotland)?

Treaties: How do they work?

The UK is currently a signatory of up to 14,000 different treaties and agreements – bilateral (between two states or entities) and multilateral (between multiple signatory states). They’re available at UK Treaties Online, though most of them are amendments to existing treaties and some of the states don’t even exist anymore.Treaties go through several stages:

  • 1. Formal negotiations – Any parties involved agree on what needs to be included within the text of the treaty. The treaty could be related to, amongst other things: trade, a specific problem (such as climate change) or to end a conflict. This process can sometimes take years – the Transatlantic Trade & Investment Partnership (a free trade agreement between the US and EU, known as TTIP) has been developed as a concept over 20 years, though formal negotiations only started in 2013.
  • 2. Drafting – The parties agree on the text of the treaty itself. Some treaties might go through several drafts. Reservations might be added as concessions in order for individual states to accept the treaty (in the same way some EU states have negotiated policy opt-outs). Drafting could include consultation with governments, and sometimes the public.
  • 3. Signature – Once a final version of the text is agreed by all parties, nominated representatives (usually the head of state or government) sign the treaty itself. This doesn’t in itself mean the treaty is legally binding.
  • 4. Ratification – Formal approval by a signatory state. I come back to this in more detail later, but ratification can happen in a number of ways : automatically; with approval of the national legislature; via a referendum – such as the Good Friday Agreement, a treaty approved by referendum in Northern Ireland and the Republic of Ireland (because it altered the Irish Constitution).
  • 5. Entry into force – The agreed date upon which the treaty comes into legal effect.

Currently, all ratified treaties have to be registered with the United Nations in order for the International Court of Justice (ICJ) to have jurisdiction over treaty disputes. All treaties also have to comply with the UN’s Office of Legal Affairs procedures.
Once a treaty has entered into force, amendments can be added at a later date if provisions within the treaty allow for amendments. On some occasions amendments need formal negotiation and ratification in their own right; sometimes it can be done via a form of executive instrument. In other cases, signatory states use protocols to update a treaty (the Kyoto Protocol updated the 1992 UN Framework Convention on Climate Change, for example).Treaties and agreements form the backbone of international law. Although they’re not permanently binding – meaning states can withdraw from them at any time – from a diplomatic perspective it’s a good idea not to withdraw from treaties without a good reason, as it’s (figuratively-speaking) the same as an individual breaking a contract.

In some cases, treaty violations might provide justification for war, suspension of a member state from an international organisation or the imposition of sanctions.

Treaties, “Clean Slates” & The Vienna Convention

It’s traditionally assumed that newly-independent states start with a “clean slate” with regard the treaty obligations of their predecessor state, meaning the choice of whether or not to become a party to treaties signed by their predecessor lies with them.There’s an international treaty relating of how newly-independent states deal with this very issue – The 1978 Vienna Convention on Succession of States with respect of Treaties (pdf).

The Vienna Convention outlines that newly-independent states can become a party to multilateral treaties which were in force prior to independence through the submission of a “notification of succession” to the depositary of said treaties; which could be an international organisation to which the treaty relates (like the EU or WTO), a nation state’s foreign department or the the United Nations. This is what the Scottish Government intended to do as outlined in Scotland’s Future (pdf p63).

Treaty obligations would still apply to the designated successor state – in this case, England/UK. So only the newly-independent states (Scotland, Wales etc.) would start with a “clean slate”. This would become complicated if the UK ceases to exist entirely meaning England is also counted as a “newly-independent state”, which is something the House of Commons’ Foreign Affairs Committee believes.

There’s one small problem: the UK never signed the treaty, so I understand it doesn’t apply to the UK and wouldn’t apply to any state newly-independent of the UK, including Scotland and Wales. So that avenue appears to be out.

Instead, the process would be dependent on customary international law and the viewpoints of other parties to treaties.

The Foreign Affairs Committee believe this would mean, in practice, that the UK would be the “successor state” and would retain all treaty obligations, while any newly-independent state of the UK would start with a “clean slate”….which is pretty much the same as the Vienna Convention anyway.

A newly-independent Wales wouldn’t be party to bilateral treaties (between the UK and another country/organisation), meaning Wales would have to negotiate to become a party to whichever treaties we wish to be party to. Some bilateral treaties might have no bearing on Wales at all – like those relating to the Channel Tunnel, for example.

For multilateral treaties, Wales would issue notices of succession – on those multilateral treaties Wales would wish to be a party to – to the relevant depositary, presumably after formal negotiations have taken place on signing the treaty or after a transitional period.

Nevertheless, the process by which Wales becomes a full party to all the treaties (we would like to be party to) could take the best part of a decade. Some poor sod will have to go through every single treaty the UK has signed to determine which ones we would “inherit” and which ones we can leave.

That means Wales is likely to be party to fewer treaties than the UK, but those treaties we do become a party to would be more relevant to Welsh interests (Part II).

How should new treaties be negotiated and ratified?

Currently, treaties are the responsibility of the Foreign & Commonwealth Office. Depending on which model an independent Wales would follow (Part III), whoever has responsibility for foreign affairs would be in charge.When it comes to treaty negotiations, it would be sensible to – when drawing up negotiating teams – include ministers with responsibility for the subject of the treaty. If a treaty deals with exports for example, the Economy Minister or a deputy would be involved; similarly with Home Affairs Minister and policing/crime-related treaties.

When it comes to ratification there are perhaps three relevant models for Wales to approach it:

  • The UK Model – From 2011, the UK Parliament has had a statutory role with regard treaties. Treaties must be laid in front of Parliament for 21 days prior to ratification, where either house can pass a motion requesting that ratification be postponed. Although, theoretically, treaties can be blocked indefinitely using these statutory powers, the UK Parliament plays no other role, with treaties ratified by royal prerogative powers held by the UK Government.
  • The American Model – Any treaty has to be approved by the legislature (by two-thirds vote in the US Senate) before the President can ratify it. Some executive agreements can be made by the President alone as long as they fall within the President’s constitutional powers; executive agreements which fall outside the President’s powers have to be approved by both houses of Congress.
  • The Irish Model (also used in Denmark) – Ordinary treaties and international agreements must be laid in front of the legislature, though the government has the authority to ratify them on the State’s behalf. Any international treaty that would require public funds needs the approval of the legislature. Any international treaty that would alter the Irish Constitution requires a referendum.

I would prefer a twist on the Irish model for Wales.

Treaties would be considered in the same way statutory instruments/secondary legislation is at present – going through either an affirmative or negative procedure depending on the technical detail involved, or its relative importance to the state. This means some treaties would require a debate and the approval of the National Assembly (affirmative procedure) others would be approved automatically unless there’s an objection from the Assembly (negative procedure).

For example, a treaty updating a previous treaty on something like standardisation of fishing nets would be subject to the negative procedure. A bilateral trade agreement worth hundreds of millions of pounds to the Welsh economy would be subject to the affirmative procedure. Presumably, a Foreign Affairs Committee would decide which treaties would be subject to which procedure (Part III)

Treaties which would alter any written Welsh Constitution should be subject to a referendum.

The Assembly wouldn’t get bogged down in technical or administrative treaties, but they would get a chance to scrutinise, debate and approve more significant international agreements and treaties (like TTIP or something akin to the Kyoto Protocol). In rare cases, the Welsh public would get a say. All that’s more democratic that the flick of a ministerial or monarch’s pen.

Also, the “threat” of major treaties being subject to ratification by referendum can be useful in drawing concessions from international organisations – as Denmark did after rejecting the Maastricht Treaty in 1992.

Part IX looks at some of the obligations and duties an independent Wales would be expected to uphold as a responsible member of the international community.