TREATY MAKING - EXPRESSION OF CONSENT BY STATES TO BE BOUND BY A TREATY

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1 A COUNCIL OF EUROPE CONSEIL DE L'EUROPE TREATY MAKING - EXPRESSION OF CONSENT BY STATES TO BE BOUND BY A TREATY CONCLUSION DES TRAITÉS - EXPRESSION PAR LES ÉTATS DU CONSENTEMENT À ÊTRE LIÉS PAR UN TRAITÉ Edited by: Council of Europe Conseil de l'europe and British Institute of International and Comparative Law Institut britannique de droit international et de droit comparé KLUWER LAW INTERNATIONAL THE HAGUE / LONDON / NEW YORK

2 IV TABLE OF CONTENTS Foreword by the Secretary General of the Council of Europe Introduction ix x PART I - ANALYTICAL REPORT 1 Introduction 1 Section I - Régulation ofthe treaty-making process 3 1. The negotiating process 4 a. Capacity 4 b. Authority to represent the State 5 c. Adoption and authentication of the text 7 2. Consent to be bound 8 a. Signature 9 b. Exchange of instruments 10 c. Ratification 10 d. Acceptance and approval 12 e. Accession Réservations Provisional application Implementation 15 Section II National régulation of treaty-making at the international level Comparison of how States express their consent at the international level 17 a. Consent to be bound expressed by the Head of State 18 b. Shared compétence between the Head of State and the government.. 20 c. Treaty-making as part of royal prérogative 25 d. Treaty-making as a government function 26 e. Compétence of fédéral or territorial units Negotiation process 29 a. Negotiations formally assigned to the Head of State 30 b. Negotiations as a government function 32 c The enhanced rôle of the Minister for Foreign Affairs 34 d. The rôle of fédéral or régional units 35 Section III - Domestic légal processes governing the conclusion oftreaties Analysis of municipal légal sources The involvement of différent State organs 40

3 v a. The rôle of the executive 40 i. Heads of State 41 a) Monarchies 42 b) Presidential powers of veto 43 c) Other Systems 45 ii. The government 47 a) Westminster tradition 48 b) Governmental control of the domestic légal process 48 c) More limited involvement of government in conclusion of treaties 53 iii. Ministry of Foreign Affairs 53 iv. Other ministries 55 b. The rôle of the parliament 57 i. Informai powers (information or consultation) 59 a) The Westminster tradition 60 b) Right to information 61 c) Consultation duties reinforcing parliamentary scrutiny 61 ii. Approval 61 a) Approval as an exception or as the rule - différent constitutional approaches 62 i) Constitutions defining the situations in which consent is required 62 ii) Constitutions with a gênerai approval requirement 67 b) Majority requirements 69 c. Plébiscite 70 i. Express referenda requirements in respect of treaties 71 ii. General powers to consult the electorate 73 d. Spécial functions of constituent units of fédéral States, provinces and dépendent territories 74 i. Constituent units of fédérations 74 ii. Provinces and régions 76 iii. Dépendent territories 76 Section IV - Réservations and déclarations Executive compétence Involvement of the parliament 79 a. Consultation and information 80 b. Approval procédure 80 c. Powers of initiative 81 d. Conditioned approval 82

4 vi Section V Provisional application Légal Systems in which provisional application is generally permissible Provisional application subject to the rules of domestic law Provisional application generally excluded 86 Section VI The place of treaties in domestic law Forms of incorporation 88 a. Automatic intégration 89 b. Formai incorporation 90 c. Substantive incorporation Self-executing treaties Direct applicabilité Hierarchy of norms 96 a. Constitutional rank 97 b. Superior to législation 97 c. Ordinary législation 98 Conclusion 100 PART II - COUNTRY REPORTS 102 Albania 103 Andorra 107 Austria 113 Azerbaijan 117 Belgium 121 Bulgaria 128 Croatia 133 Cyprus 138 Czech Republic 144 Denmark 150 Estonia 155 Finland 159 France 164 Georgia 170 Germany 175 Greece 179 Hungary 184 Iceland 188 Ireland 193 Italy 197 Liechtenstein 204 Lithuania 208

5 vii Luxembourg 212 Malta 216 Netherlands 220 Norway 224 Poland 228 Portugal 233 Romania 238 Russian Fédération 242 San Marino 246 Slovak Republic 250 Slovenia 254 Spain ' 258 Sweden 264 Switzerland 268 "The former Yugoslav Republic of Macedonia" 275 Turkey 279 Ukraine 282 United Kingdom 286 Observers Bosnia and Herzegovina 291 Canada 295 Israël 302 Japan 306 Mexico 311 APPENDICES 1. Questionnaire on expression by States of consent to be bound by a treaty Vienna Convention on the Law of the Treaties Status of signatures and ratifications of the Vienna Convention 347

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