«TREATIES AND MEMORANDA OF UNDERSTANDING (MOUs) GUIDANCE ON PRACTICE AND PROCEDURES TREATY SECTION LEGAL DIRECTORATE FOREIGN AND COMMONWEALTH OFFICE ...»
GUIDANCE ON PRACTICE AND PROCEDURES
FOREIGN AND COMMONWEALTH OFFICE
Second Edition April 2000
Revised May 2004
Revised April 2012
Updated March 2014 CONTENTS 1 TREATIES AND MOUs Responsibility for concluding treaties What is a treaty?
What is an MoU?
How do you distinguish an MoU from a treaty?
Documents required by FCO Treaty Section
2 MORE ABOUT TREATIESTreaty drafts Signature of treaties Checklist for signature ceremonies Ratification of treaties Reservations, interpretive declarations and objections Laying before Parliament and publication 3 EXPLANATORY MEMORANDA (EMs) Guidelines on EMs for treaties Example of an EM 4 MOUs Terminology Specimen paragraphs Form of words to be used for an exchange of notes Recording an MoU
5 DEVOLVED ADMINISTRATIONSIntroduction Extract from the International Relations Concordat
6 APPLICATION OF TREATIES TO THE CHANNEL ISLANDS,
THE ISLE OF MAN AND OVERSEAS TERRITORIES7 GLOSSARY
8 FCO TREATY SECTION CONTACT NUMBERS
1. TREATIES AND MOUs
RESPONSIBILITY FOR CONCLUDING TREATIESThe responsibility for concluding treaties involving the UK lies with the Secretary of State for Foreign and Commonwealth Affairs. The FCO is responsible for Foreign and Commonwealth policy aspects of all treaties, as well as for dealing with questions of form and procedure. It must also consider points of international law.
This remains the case even when the negotiation of the treaty is led by other government departments (OGDs) i.e. the department which will carry out the treaty's provisions. FCO Legal Advisers and FCO Treaty Section must be given the opportunity to comment on the drafts of all treaties under negotiation to ensure that they are drafted in accordance with correct international practice. The same applies to MoUs (see below).
WHAT IS A TREATY?
The term treaty describes an international agreement concluded in writing between states which creates rights and obligations in international law. Treaties are known by a variety of names, for example agreement, convention, protocol, treaty etc. They may be in the form of a single instrument with numbered articles or in the form of an exchange of notes. There can also be treaties between a state and an international organisation.
WHAT IS AN MoU?
An MoU records international "commitments", but in a form and with wording which expresses an intention that it is not to be binding as a matter of international law. An MoU is used where it is considered preferable to avoid the formalities of a treaty - for example, where there are detailed provisions which change frequently or the matters dealt with are essentially of a technical or administrative character; in matters of defence or technology where there is a need for such documents to be classified; or where a treaty requires subsidiary documents to fill out the details. Like a treaty, an MoU can have a variety of names and can also be either in the form of an exchange of notes or a single document. However, the formalities which surround treatymaking do not apply to it and it is not usually published. Confusingly some treaties are called memoranda of understanding.
HOW DO YOU DISTINGUISH AN MOU FROM A TREATY?
The predetermined method of distinguishing an MoU from a treaty is by the terms in which they are written. The key difference between MoUs and treaties is whether or not there is an intention to create legally binding obligations. It is the international practice to show clearly by the form of the document and its terminology the intention either to create legally binding obligations, or not, i.e. either a treaty or an MoU. Thus, in order to ensure that MoUs are not worded in such a way as to amount to treaties care should be taken to avoid the use of "treaty language". Guidance on the terminology to be used (and to be avoided) as well as on the form is given on pages 15-18.
Although an MoU is not legally binding it should be no less carefully drafted than if it were a treaty, given that it is always the intention to perform all HMG's commitments, whether legally binding or not. As with treaties, all draft MoUs should be sent to the relevant FCO department for clearance by their legal adviser, and foreign language versions should be checked. Moreover, there should be the same level of inter-departmental consultation as for treaties (see page 3).
DOCUMENTS REQUIRED BY FCO TREATY SECTION
Original treaty documents should always be sent to Treaty Section, which arranges for their publication as command papers and laying before Parliament. It also arranges for their transfer to the National Archives for permanent preservation upon entry into force for the UK and for their registration with the United Nations in accordance with Article 102 of the UN Charter.
In addition, all notifications about treaties (i.e. notifications about the signature or ratification of treaties by the UK and by other states, about declarations, reservations and objections made by other states, and about the entry into force of treaties), which are received by OGDs directly from a depositary should be forwarded to FCO Treaty Section. States may act as a legal depositary for multilateral treaties and are responsible for ensuring the proper execution of all treaty actions relating to that treaty. The depositary‟s duties are international in character, and the depositary is under obligation to act impartially in the performance of those duties.
MoUs, as opposed to treaties, are entered on departmental files. However, a photocopy of the final (and preferably signed) text of an MoU should be sent to FCO Treaty Section.
2. MORE ABOUT TREATIES
TREATY DRAFTSOGDs should normally deal with the appropriate FCO geographical or functional department, who should seek advice from their departmental legal adviser and Treaty
Section on text and format of treaty drafts. Particular points to note are:
(a) It is for the department responsible for the subject of the treaty to prepare the initial draft and to maintain an up to date version as amendments are made during the course of negotiations. All drafts and subsequent amended versions should be dated.
Drafts which undergo significant amendment should be cleared again as necessary. It is helpful to have amendments highlighted in some way.
(b) Consistent wording and layout should be used, especially when making amendments and additions. Cross-references should always be checked.
(c) Any foreign language version must be submitted to the FCO Translation Branch, by the FCO lead department, for comparison and verification against the English text at the earliest opportunity. (A linguistic check is also necessary for an MoU.) (d) At all stages of preparation of a treaty, time should be allowed for indispensable standard checks, e.g. legal, linguistic etc.
(e) Clean versions of the final agreed draft, in English and foreign languages as appropriate, should be produced in good time by the lead department, since a minimum of three weeks is normally required for preparing signature copies of a treaty.
(f) It is essential that the Devolved Administrations are consulted about negotiations that touch on devolved areas (see page 19).
(g) The Channel Islands, the Isle of Man, and the overseas territories should be consulted at the earliest possible time when a treaty is being negotiated, or consideration is being given to the signature of a treaty already adopted, which could apply to them (see page 23-24).
The lead department should never make any commitments to the other party or parties about the preparation of documents or about dates for signature without first consulting all other departments concerned (and in particular Treaty Section).
SIGNATURE OF TREATIESUnless the treaty provides that it enters into force on signature, by signing a treaty a State shows that it is in agreement with the text, but it is not bound by it until the treaty has been ratified and has entered into force. The state is not obliged to ratify it.
The UK, however, does not sign a treaty unless it has a reasonably firm intention of ratifying.
In international law a head of state, head of government or foreign minister may sign a treaty in his or her own right. Anyone else needs to produce "Full Powers" from one of those three. Full Powers are the grant to another person of authority to sign a treaty on behalf of the State. In UK practice, the Queen does not sign treaties, but the Prime Minister sometimes does. Full Powers are normally signed by the Foreign and Commonwealth Secretary except for certain EU treaties which are drawn up between heads of state and therefore require a Queen's Full Power. FCO ministers and certain UK Representatives hold general Full Powers giving them authority to sign any treaty (subject to the approval of the Foreign and Commonwealth Secretary in each case).
Anyone else signing a treaty on behalf of the UK requires a special Full Power enabling them to sign the specific treaty.
The Full Powers document is drawn up by Treaty Section and (unless it is for signature by the Queen) submitted by the lead FCO department to the Foreign and Commonwealth Secretary for signature. OGDs should therefore approach the appropriate FCO department in the first instance at director level requesting Full Powers. They should give the name, title, position and any decorations of the person to be named in the Full Power and also attach a copy of the treaty. If FCO or other departments are aware that a treaty signing is due, e.g. attendance at a conference and a signing of a treaty is likely; they should consult Treaty Section at the earliest possibility.
Full Powers are not required for a treaty in the form of an exchange of notes. It is not UK practice to issue Full Powers for agreements constituted by exchanges of notes because HM representatives abroad and ministers/heads of FCO departments in London conduct diplomatic correspondence in the name of the Secretary of State.
But a non-FCO minister or official should not sign without the specific authorisation of the Foreign and Commonwealth Secretary or an FCO minister.
CHECKLIST FOR THE SIGNATURE OF BILATERAL TREATIES INLONDON BY NON-FCO MINISTERS
When non-FCO ministers are authorised by the Foreign and Commonwealth Secretary to sign treaties it is the OGD‟s responsibility to arrange the signing ceremony. But Treaty Section now aim to attend and officiate at such ceremonies.
When that is not possible, they are available to give advice.
In any case, Treaty Section prepare the texts, and ribbon and seal them into binders for the ceremony. The latter task is done in Treaty Section‟s premises, usually in the presence of the FCO and/or OGD desk officer and an official from the other country's embassy or high commission, on the last working day before the signing.
The signature ceremony itself is divided into three parts:
(i) A table should be provided which is sufficiently long and wide to allow for the simultaneous signing of both copies of the agreement and display of the Full Powers.
Normally only the two signatories sit at the signing table, which should be put in a suitable position to allow photographs to be taken. Where possible the table, chairs, blotters, pens, treaties and Full Powers should be in place in advance of the ceremony. A "recce" a day or two before the signing could prove useful. (The rest of this assumes that Treaty Section are not present).
(ii) Immediately before signature takes place (if Treaty Section are not present), the FCO/OGD desk officer should insert the date on the English language texts and ask someone from the other side to do the same on the foreign language texts in their own language.
(i) At the signing table the other country‟s representative should sit to the right of the UK minister.
(ii) Each signatory signs first his own country's copy of the agreement, below his government's signature block. The United Kingdom original will mention the UK government first in the title and the signature blocks will be to the left, but to the right in the other state's original.
(iii) The agreements are exchanged behind the seated signatories by those attending them. They then each sign the other country's copy of the agreement.
(iv) The signatories then stand, shake hands and exchange binders. This ensures that each signatory ends up with their country's copy of the agreement. It also allows a good opportunity, if relevant, for photographs and filming.
(Again, if Treaty Section are not present), the FCO/OGD desk officer should ensure
(i) retrieves the UK original;
(ii) retains the other side's Full Powers; and (iii) records (in block capitals) the exact form of signature of the signatories in pencil under their respective signatures. This is essential for publication purposes.
All these items must be sent to Treaty Section for retention and publication as soon as possible after the ceremony.