Multilateral treaties are tools for global governance
By Dr. Dayantha Laksiri Mendis
“Multilateral treaties are the bones and sinews of global politic, making it possible for states to move from talk through compromise to solemn commitment.”– Professor Thomas M. Frank
BACKGROUND
The UN system is the catalyst for the creation of multilateral treaties. It is the greatest achievement of the UN system during the last 75 years. These treaties contain binding international rules relating to peace, security, trade, commerce, human rights, international humanitarian law (IHL), protection of the environment, transnational organised crime, cyber-crime, intellectual property rights, international waters, law of the sea and air transport, trafficking in illicit drugs, trade in arms, anti-corruption, money laundering, terrorism, ozone depletion, climate change, nuclear non-proliferation, etc. These multilateral treaties require the consent of States to be bound by them.
The UN Charter of 1945 is the most important multilateral treaty dealing with global governance. It outlaws war, subject to a few exceptions, and recognizes state sovereignty and equality of States. The UN Charter needs to expand the composition of the Security Council to include new regional powers in the UN system. It must incorporate a chapter on Peace Keeping and limit the use of veto powers, restrictively, to three-fourths majority. Unless these changes are made expeditiously, a new global order might emerge very soon as they have emerged already on the horizon
Multilateral treaties are the most important source of international law. They have grown exponentially since World War II. The Australian Jurist, Julius Stone, said in 1954 that in one single year, more treaties were concluded than in the whole of the 19th century. Professor Clive Parry of Cambridge said it is not possible today to understand international law or international relations without the full grasp of multilateral treaties.
Multilateral Treaty is a generic term. It includes conventions, protocols, agreements, concordats, exchanges of letters and note verbales. Treaties relating to Regional Economic Integration, such as EU, CARICOM, ECOWAS, ASEAN, etc., can be treated as multilateral treaties, but they are not universal in their application.
Multilateral treaties must be distinguished from multilateral non-treaty instruments. These constitute Resolutions of the United Nations Security Council and the Resolutions of the Specialized Agencies, MOUs, Codes of Conduct, etc. Some of the non-treaty instruments are considered “hard law” and others “soft law”. Hard law is binding on States and soft law is not binding on States. For example, Resolutions of the Security Council or the Resolutions of ICAO or IMO are binding on State Parties. These Resolutions do not require the consent of States.
Legislation giving effect to multilateral treaties and multilateral non-treaty instruments are described as implementing legislation. Such legislation is also referred to as “enabling” or “uniform” legislation. The way in which implementing legislation are drafted are of capital importance for global governance. In monist States, multilateral treaties constitute law at national level on ratification/accession by states. In dualist states, treaties do not constitute law at the national level on ratification/accession by States. Sometimes, it is necessary to enact implementation legislation in monist and dualist states to ensure compliance with international obligations.
Professor James Rosenau has described “global governance” as governance without a government. He said that the United Nations system and national governments are central to global governance, but they are only part of the full picture as many other international organisations are involved in global governance in a similar manner.
Multilateral treaties are an indispensable tool for Global Governance. It is inextricably interwoven with the UN System. Hence, any multilateral treaty violations relating to Israel, Palestine and Ukraine must cease as soon as possible. It is the most important function of the Security Council. Unfortunately, they were unable to implement a good resolution due to veto powers.
In this context, it is necessary to identify the birth and development of multilateral treaties in the global community.
BIRTH AND DEVELOPMENT OF MULTILATERAL TREATIES
The birth of multilateral treaties dates back to the 1815 Concert of Europe. In Vienna, almost all European states, whether big or small, met for the first time to determine the future of Europe after the disastrous Napoleonic wars. The former US Secretary of State, Dr Henry Kissinger wrote his doctoral dissertation on the 1815 Concert of Europe and observed its importance to multilateral relations and diplomacy. In his book, he illustrated the relevance of the Vienna spirit of “give and take” as an indispensable requirement for the negotiation and conclusion of multilateral treaties to arrive at consensus. In drafting the UN Charter 1945 a more liberal give and take approach was adopted than League of Nations 1919. (Henry A. Kissinger, A World Restored: Metternich, Castlereagh and the Problems of Peace 1812-1822, Literary Licensing, LLC, 2011).
Multilateral treaty drafting is different in today’s world and includes actors such as inter-governmental organisations (IGOs), non-governmental organisations (NGOs) and the International Law Commission. It is a protracted process in which the “rolling text” undergoes many changes. A diplomat or a legal practitioner involved in treaty drafting must have a good knowledge of the legal character of treaties and the widely differing functions of treaty provisions. A treaty drafter must have an interdisciplinary knowledge of the subject matter of the draft treaty and the form and structure of treaties, including the final clauses. (Anthony Aust, Modern Treaty Law and Practice, (Cambridge University Press: Cambridge, 2000; Jan Klabbers, The Concept of Treaty in International Law (Martinus Nijhoff Publishers: The Hague, 1996).
Interpretation of multilateral treaties is crucial for global governance Such interpretation must be undertaken by state parties, legal counsel or by international and national courts and tribunals in accordance with Vienna Rules enshrined in articles 31 and 32 of the VCLT, 1969. It is a moot point (1) whether Article 51 of the UN Charter allows pre-emptive self-defence (Bush doctrine) and the right to protection in a humanitarian crisis; (2) whether the use of drones is legal in the fight against terrorism vis-à-vis international humanitarian law principles; and (3) whether enhanced interrogation techniques fall within the definition of “torture”.
The interpretation of the relevant multilateral treaties has become complex as the global order is threatened by abominable acts – terrorism, aggression, money-laundering and other transnational organised crimes. In Ukraine and Palestine, there is a requirement to apply International Humanitarian Law (IHL) and Human Rights Law standards to resolve problems and challenges encountered in Ukraine and Palestine in the long term.
Multilateral treaties are necessary for global governance at national and international level. At the national level, all three organs of the State must play a pro-active role regarding implementation of such treaties and implementing legislation as illustrated by Lord McNair in his monumental work on Law of Treaties. At the international level, state parties, international organisations and international courts and tribunals play an important role in the implementation process.
UNSC is authorised to impose sanctions or engage in the use of force – as Kofi Annan said – if diplomacy fails, in the first Iraq war, under the collective security paradigm. Unfortunately, sanctions have been imposed or concessions have been given to some states selectively for geo-political reasons.
Resolutions of the UN Human Rights Council are also important for global governance. Their binding nature on States is controversial. Sri Lanka has had difficulties regarding Geneva Resolution 30/1 of 2015 and 40/1 of 2021. These Resolutions deal with the establishment of a hybrid court to investigate accountability during the North-East armed conflict which ended in 2009.
These Resolutions have raised constitutional and legal issues regarding their implementation. Unfortunately, Sri Lanka has not raised up to now Article 46 of VCLT 1969 as a defense for non-implementation.
Implementing Legislation contributes to global governance at the national level. It is a specialised branch of legislative drafting. According to Francis Bennion, treaties are transformed directly by incorporating the treaty in a Schedule or indirectly by re-drafting/re-phrasing the treaty in a manner consistent with the style and form of national legislation.
Implementing legislation also plays an important role in global governance at the national level. Literal interpretation is not suitable for the interpretation of implementing legislation as there is a need to harmonise the legislative provisions with treaty norms and standards in the interpretation of implementing legislation. Various Interpretation Acts across the world have been amended to enable the courts and tribunals to consult extrinsic material in the interpretation of implementing legislation. This paradigm shift in the interpretative technique augurs well for global governance.
Implementing legislation are subject to international compliance and control measures by UN treaty regimes. These treaty regimes require submission of reports, establish verification processes, review mechanisms or engage in diplomatic efforts to ensure compliance. Any intervention by treaty regimes with respect to the implementation of treaty standards must not be construed as an infringement of state sovereignty.
IMPACT OF MULTILATERAL TREATIES ON STATE SOVEREIGNTY
The ratification or accession to multilateral treaties impact on state sovereignty as states are bound (pacta sunt servanda) to implement them. State sovereignty and multilateral treaties may collide at times.
These collisions need to be resolved by state parties by reference to treaty law and practice
In monist states, ratification/accession to multilateral treaties requires the consent of Parliament, Congress or the Senate. In the US, the consent of two-thirds of the Senate is necessary for ratification of treaties. It is a difficult process. President Obama was unable to obtain the consent of the Senate for the ratification of the United Nations Convention on the Law of the Sea, 1982. Likewise, President Woodrow Wilson in 1919 was unable to obtain its consent to ratify the Covenant of the League of Nations as the US Senate was bent on “isolationism”. Perhaps, the history of the world would have been very different in the 20th century if the US Senate had provided its consent.
In dualist States, multilateral treaties require implementing legislation. However, there is an emerging constitutional and parliamentary practice to enact implementing legislation before the ratification of important treaties. Many Commonwealth countries now require States to undertake ratification of multilateral treaties with the approval of Parliament.
CONCLUDING REMARKS
Multilateral treaties and multilateral non-treaty instruments impact on global governance and rule-based order. When major multilateral treaties relating to global governance are ratified or acceded by majority of states, it might help the community of states to co-exist without a violent confrontation. No state has a right to override Geneva Conventions or human rights conventions except in exceptional circumstances. Palestine and Ukraine are no exceptions.
The US and Russian exceptionalism to certain international standards and norms create difficulties in the emerging global order. In a multipolar world, it is up to the middle powers and powerful regional economic organisations such as EU, ASEAN, UNASUR, AU, CARICOM, etc., to create a balance between global interest and national interest if these two interests are to co-exist in the emerging world order.
Multilateral treaties and multilateral non-treaty instruments are increasing in volume. At least one-fourth of the Legislative Agenda of Parliaments in developed and developing countries relates in one way or another to these treaties. These two legal instruments are indispensable for international cooperation, international coordination, inter-dependence and above all in maintaining peace and security in a rapidly changing world.
In the 21st century, everything is changing – bit by bit – in front of our very eyes through multilateral treaties and multilateral non-treaty instruments. Unless UNSC is reformed in a multipolar world, UNSC will become a toothless Council in a changing world where new Organisations are emerging to resolve international problems and challenges in a more equitable manner. Unfortunately, USA is losing an opportunity to be the leader of the free world by not balancing the regional interest and national interest in Ukraine and Palestine in an equitable manner
(The author was the former Ambassador and Permanent Representative to the United Nations in Vienna, Austria. He served the UN/DTCD, New York, for many years. He is, at present, the President of the Association of Former International Civil Servants (AFICS). Email : mendis_law@yahoo.com
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