LANDMINES IN INTERNATIONAL LAW:
RATIFICATION AND NATIONAL IMPLEMENTATION
Produced for the Landmine Monitor by the
VERIFICATION RESEARCH AND TRAINING INFORMATION
CENTRE (VERTIC - www.vertic.org)
Introduction
The Convention on the Prohibition of the
Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on
their Destruction (the Ottawa Convention) creates various obligations
for those countries which are parties to it. The most visible of these
are the destruction of existing stocks of landmines, the destruction of
deployed stocks and the assistance to be provided to victims. This part
of the Annual Report is concerned with the legal framework which will underlie
these actions.
Part I examines the legal process by which
a country becomes bound by international obligations under a treaty. It
also examines the nature and implications of declarations and reservations
which may be made at the time of ratification.
Part II addresses the question of national
implementation, including an examination of what is required by international
law and, more specifically, what is required by the Ottawa Convention.
PART I
Consent to be bound
As a matter of international law, the
consent of a state to be bound by a treaty may be expressed by signature,
exchange of instruments , ratification, acceptance, approval or accession,
or by any other means if so agreed.2 The Ottawa
Convention sets out the means by which those states wishing to become parties
to the Convention may express their consent to be bound. Article 16 of
the Ottawa Convention provides that:
1.This Convention is subject to ratification,
acceptance or approval of the signatories.
2. It shall be open for accession by any
State which has not signed the Convention.
By virtue of Article 16(1) the act of signing
does not constitute an expression of a states consent to be bound by the
terms of the Convention. The act of signing simplyqualifies a state to
proceed to ratification, acceptance or approval. The act of signature does
not create a binding obligation to proceed to ratification.3
It is possible, therefore, that not all of the signatories to the Ottawa
Convention will ratify, accept or approve it.
However, the act of signing a treaty, while
not constituting an expression of consent to be bound, nevertheless carries
with it some consequences for the status, rights and, arguably, the obligations
of a signatory state.4 The act of signing arguably
creates an obligation of good faith to refrain from acts which would defeat
the object and purpose of a treaty,5 which
obligation continues until a party has ratified a treaty or has made clear
its intention not to become a party to that treaty.6
Ratification
Ratification constitutes a solemn act
on the part of a sovereign or by the president of a republic whereby he[/she]
declares that a treaty, convention or other international instrument has
been submitted to him[/her] and that after examining it he[/she] has given
his approval thereto, and undertaken its complete and faithful observance.7
The term is, on occasion, extended to include the approval of the legislature
if the approvalis constitutionally necessary as a condition precedent to
the head of state signifying consent.
The term ratification is sometimes confused
with the process by which a treaty formally enters into force following
a states ratification, generally by the exchange or deposit of an instrument
of ratification by the state concerned.8 The
Ottawa Convention provides that instruments of ratification are to be deposited
with the Depositary, the Secretary- General of the UN. 9
Only following the deposit of that instrument can the Convention enter
into force in respect of that state.10 The
Ottawa Convention will enter into force in respect of that state either
on the entry into force of the Convention as a whole (Article 17(1)) or
if the Convention itself has already entered into force, on the first day
of the sixth month after the date of the deposit by the state (Article
17(2)).11
Accession
Accession contemplates a state becoming
party to a treaty or convention to which it is not a signatory.12
The Ottawa Convention expressly contemplates accession as a means by which
a state may establish its consent to be bound by the Convention, notwithstanding
that that state has not signed the Convention.13
The Convention makes clear that a state may accede to it either before
or after the entry into force of the Convention itself.14
Since the Convention has now entered into force the former option is no
longer possible.
As in the case of ratification, the Ottawa
Convention requires that an instrument of accession be deposited with the
depositary. It is on the deposit of this instrument thatthe acceding state
formally establishes internationally its consent to be bound by the terms
of the Convention.15
The entry into force of the Ottawa Convention
following a states accession is determined in the same way as its entry
into force following a states ratification of the Convention - either
on entry into force of the Convention as a whole or, if the Convention
itself has already entered into force, on the first day of the sixth month
after the date of the deposit by the state.16
Acceptance and approval
Acceptance and approval have emerged in
comparatively recent practice as alternative means of facilitating a states
participation in a treaty.17 Acceptance refers
to the process whereby a states consent to be bound by a treaty may, by
virtue of its constitutional arrangements, be expressed by executive action
alone, rather than by the more formal process often associated with ratification
and which may, as noted above, require the approval of the states legislature.18
Approval refers to a states acceptance of the terms of a treaty in accordance
with its municipal law processes. It is distinguished from acceptance,
which indicates the formal act of accepting the terms of the treaty by
the state.19
Depending on their context, use of the
terms acceptance and approval may reflect the expression of consent
to be bound by a treaty in ways akin either to ratification or accession
that is, either following signature, or without any requirement for prior
signature of the treaty. Under Article 16(1) of the Ottawa Convention,
the terms acceptance and approval are used analogously to ratification.
That is, only signatory states may express their consent to be bound by
acceptance or approval.
As in the case of ratification, the Ottawa
Convention requires that instruments of acceptance or approval be deposited
with the depositary. It is on the deposit of the relevant instrument that
the accepting or approving state formally establishes, on theinternational
plane, its consent to be bound by the terms of the Ottawa Convention.20
The entry into force of the Ottawa Convention following a states acceptance
or approval is determined in the same way as its entry into force following
a states ratification of the Convention.21
Declarations and Reservations
On signing, or expressing their consent
to be bound by, the Ottawa Convention, a number of states have submitted
declarations. As at 3 December 1998,22 eight
declarations had been made. Five of these simply indicated that they intended
to apply the terms of the Ottawa Convention provisionally pending its entry
into force, as contemplated by Article 18 of the Convention. These countries
were Austria, Mauritius, South Africa, Sweden and Switzerland. The effect
of these declarations has been to render the Ottawa Convention binding
on these countries prior to it entering into force on 1 March 1999. Another
of the declarations, by Greece, simply confirmed its intention to implement
the Convention.23
The remaining two declarations, those submitted
by Canada and the United Kingdom, were described as expressing their understanding
of the nature of the obligations contained in the Ottawa Convention. The
existence of these understandings raises the question of whether they constitute
reservations. The issue arises because Article 19 of the Ottawa Convention
expressly prohibits reservations.24 Accordingly,
the Convention abrogates the general liberty under international law25
to formulate a reservation when signing, ratifying, accepting, approving
or acceding to a treaty.26
A full report on these declarations is
available from VERTIC and analysis is also included in the relevant country
reports.
PART II
National Implementation
Once a Convention is drafted, signed and
ratified and any reservations or declarations made known, the next step
is implementation at the national level. This part of the Report will examine
two aspects of national implementation: first, the general position in
international law with regard to the relationship between treaties and
national laws; and second, the specific requirements of the Ottawa Convention.
The Relationship between International
Obligations of States and National Law
The international law relating to the relationship
between a state's treaty or customary obligations and its municipal law
is well settled. A state cannot plead provisions of its own law, or an
absence thereof, to answer a claim against it for an alleged breach of
its obligations under international law.27
There is in general an obligation on parties to a treaty to bring their
internal law into conformity with their international obligations.28
The process whereby a country translates
its international obligations into domestic law is often described as incorporation.
The legal requirements of incorporation will vary from country to country.
In the United Kingdom and most other Commonwealth countries the conclusion
and ratification of treaties are within the prerogative of the head of
state (the Crown or its equivalent). However, under the so-called transformation
doctrine, treaties only become part of domestic law if an enabling Act
of Parliament has been passed. Otherwise the Crown could legislate without
parliamentary consent simply by entering a treaty.
For other countries, treaties entered into
by the executive bind the courts without any further specific act of incorporation
into domestic law (such ratifications are known as self-executing. Provided
the correct process is adhered to, which will involve executive approval,
the treaty becomes, in effect, municipal law. In practice however this
principle is often applied with significant qualifications. For example,
in the case of the United States, a treaty obligation may be overridden
by subsequent federal legislation overrides a treaty. Furthermore, a self-executing
treaty may not be enforced internally until it has been published.29
The whole subject resists generalisation and each states practice reflects
the characteristics of its constitution.
Once an international treaty is incorporated
into a countrys domestic law, by whatever method, there remains the question
of what legal effect it has. Once again this is a subject which cannot
be generalised. If the method of incorporation is a statutecontaining the
treaty provisions it will have the same effect as any other piece of legislation.
There is a well-established common law rule of construction which provides
that where domestic legislation is passed to give effect to an international
convention there is a presumption that Parliament intended to fulfil its
international obligations.30 Where a treaty
becomes part of national law simply through ratification its effect and
interpretation are less clear. There is a general rule however, that in
the case of a conflict, statute prevails over treaty.
What legal measures must be taken to
implement a treaty?
The Ottawa Convention requires states parties
to undertake many actions and cease to engage in others. Some of the more
visible acts that have or will be facilitated by the Convention are the
destruction of existing stocks of landmines, the cessation of production
of landmines, the destruction of deployed stocks and the provision of assistance
to victims.
Before discussing the requirements of the
Convention two issues need to be considered. The first, as mentioned above,
is that there is a general duty arising from the nature of treaty obligations
and from customary law to bring internal law into conformity with international
obligations. However, in general, a failure to bring about such conformity
is not in itself a direct breach of international law. A breach only arises
when a state fails to observe its obligations on a specific occasion.31
This means that if a state is required, by virtue of its ratification of
the Ottawa Convention, its constitution and its situation vis a vis landmines
to pass implementing legislation or other administrative measures and it
fails to do so there is no breach of international law. A breach will only
occur when, as a result of the absence of such laws or regulations, a prohibited
act is performed.
The second issue arises from the fact that
states parties to the Convention have made a binding international undertaking
not to perform certain acts, for example producing landmines, and to engage
in certain others where required, for example clearing landmines. The issue
is whether a country which does not participate and has never participated
in the production, use or transfer of landmines still fulfils its obligations
if it takes no action, passes no new laws or takes no new administrative
measures.
This is, for example, the case with Fiji.
According to the constitution of Fiji, treaties are self-executing, which
as outlined above means that once ratified, in accordance with constitutional
procedures, the Ottawa Convention became binding in the courts of Fiji.
The fact that a country's constitution operates in this way does not mean
that this country need not enact implementing legislation for any treaty
obligations. For example, in relation to the Ottawa Convention one requirement,
which will be discussed below, is the provision of criminal sanctions for
individuals caught engaging in prohibited conduct. The nature and extent
of these sanctions is not provided in the Convention and must therefore
be supplied by national law to giveeffect to treaty obligations. It is
arguable that as there is no prohibited activity undertaken in Fiji there
is no need for it to pass any law. That view should be challenged on several
grounds.
First, one is unable to anticipate whether
prohibited activity may occur in a country in the future. In the event
of a prohibited activity in the future, whether anticipated or not, a country
such a Fiji would require legislation to meets its international obligation.
Further the legislative prohibitions, unless repealed, would bind the executive
thus ensuring that no prohibited activity is conducted by any future Government.
In addition the country that submits that
it does not engage in prohibited activity may have citizens who are engaged
in undertaking prohibited activity in another country. While those citizens
are subject to the laws of the country in which the prohibited activity
is being undertaken the country of which they hold citizenship is also
able to criminalize the actions notwithstanding they have been committed
in another country. The nexus for the criminal sanction being the citizenship
of the person breaching the prohibition.
The enacting of legislation would also
assist other countries that find that one of their citizens is seeking
refuge from criminal prosecution in that other country. As Brownlie notes,
With the exception of alleged crimes under international law, in the absence
of treaty, surrender of an alleged criminal cannot be demanded as of right.32
While extradition depends on issues of internal constitutional law and
the effect of treaties on municipal laws, there exists a general principle
of international law of double criminality. The principle requires that
the act charged must be criminal under the laws of both the state of refuge
and the requesting state. Therefore the enacting of legislation creating
criminal sanctions in respect to the acts prohibited by the Convention
would assist any future extradition proceedings.
A final consideration is that the enacting
of legislation by all countries enhances the possibility that a ban on
the use of landmines could become part of customary international law.
In the meantime, as customary international law evolves, each piece of
municipal legislation becomes one part of the movement to ban landmines.
The role of the legislation internationally is one of moral suasion to
other nations to also ratify and implement.
It is submitted therefore that all countries,
notwithstanding the fact they consider that they have no landmine activity
should legislate.
Obligations Imposed By The Ottawa Convention
Article 1 of the Convention sets out the
general obligations of the Convention as follows:
1. Each State Party undertakes never under
any circumstances:
a) to use antipersonnel mines;
b) to develop, produce, otherwise acquire,
stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel
mines;
c) to assist, encourage or induce, anyone
to engage in any activity prohibited to a State Party under this Convention.
2. Each State Party undertakes to destroy
or ensure the destruction of all anti-personnel mines in accordance with
the provisions of this Convention.
The few exceptions to the general obligations
are set out in Article 3, which provides that a minimum number of landmines
may be retained or transferred to develop or train in mine detection, mine
clearance or mine destruction. It also provides that anti-personnel mines
may be transferred for the purpose of destruction.
Article 9 of the Convention addresses national
implementation measures and requires that [e]ach State Party... take
all appropriate legal, administrative and other measures, including the
imposition of penal sanctions, to prevent and suppress any activity prohibited...under
this Convention...
To ensure that these prohibitions are enforced
in practice, the ratifying countries will have to take a number of regulatory
steps at national level. Specifically, countries must adopt appropriate
legal, administrative and other measures to prevent and punish any prohibited
activity by persons on territory under its jurisdiction or control. This
will require the adoption of specific municipal criminal legislation.
The fact that the Ottawa Convention not
only prohibits certain conduct but requires the provision of criminal sanctions
places an extra burden on states parties. For example, a state party, which
has never had any dealings with landmines, could, in theory, find itself
in breach of its international obligations. If a transaction involving
landmines or components thereof was conducted on its territory a state
party would be obliged under the Convention to punish the individuals involved.
If that country did not have relevant criminal legislation it may find
itself unable to do so. The direct incorporation of the Convention into
the law of a country on ratification will not suffice. The Convention does
provide the penal framework or the specific penalties for a breach of the
prohibitions. Municipal legislation is therefore required to enforce the
Convention through criminal sanctions.
In addition to new legislation the Ottawa
Convention also requires most countries to adopt administrative measures
to make sure that the necessary changes in military doctrine, codes of
conduct, training procedures and manuals are made. Other necessary measures
will include giving notification to companies involved in the production
or transfer of landmines and the review by relevant ministries of import
and export licenses in light of the Convention's requirements.
Article 4 addresses the destruction of
existing stockpiles of mines and Article 5 the clearing of mined areas.
States will need to take appropriate administrative and regulatory measures
to implement these provisions.
Article 7 requires each state party to
file a report with the Secretary-General of the United Nations six months
after entry into force of the treaty.33 This
report must provide detail of national implementation measures, for example
stockpiles oflandmines and mined areas. States parties will need to take
appropriate administrative measures to authorise the collection of this
information.
Article 8 provides for the facilitation
and clarification of compliance. In complying with this Article, states
will need to provide a process for receiving and responding to requests,
as well as the appropriate measures for hosting and cooperating with fact-finding
missions should these become necessary.
Finally, in implementing the Convention
states will need to allocate funding at a national level in order to contribute,
as required by Article 14, to the cost of Meetings of States Parties.
1 A third part
of the report examines specific instances of national legal implementation
and assesses the extent to which they comply with the Ottawa Convention.
It is available in full from VERTIC.
2 Lord Gore-Booth
and D. Pakenham (eds), Satows Guide to Diplomatic Practice, 1979,
Longman, London, p. 270.
3 M. Whiteman,
Digest of International Law, 1970, Department of State Publication,
Washington DC, Vol. 14, p. 50. See, however, I. Brownlie, Principles
of Public International Law (5th Ed.), 1998, p. 611 and references
to Lauterpacht and Fitzmaurice.
4 That the act
of signing is a first step to participation in a convention, which establishes
a provisional status in favour of a state, with certain resulting rights
for that state, was expressly recognised by a majority of the International
Court of Justice in its Advisory Opinion on Reservations to the Convention
on the Prevention and Punishment of the Crime of Genocide (1951) ICJ
15, p. 28.
5 Cf Article
18 Vienna Convention on the Law of Treaties 1969. See also Ian Brownlie,
Principles of Public International Law (5th Ed.) 1998, p. 611. Debate
continues amongst international scholars as to whether the obligation contained
in Article 18 of the Vienna Convention on the Law of Treaties 1969
constitutes a codification or a progressive development of customary international
law principles. The arguments for and against each position are canvassed
in J.S. Charme, The Interim Obligation of Article 18 of the Vienna
Convention on the Law of Treaties: Making Sense of an Enigma (1991),
25 Geo. Wash. J. Intl L. and Econ. 71. Charme argues that Article
18 does constitute a codification, so that it can be said that the obligation
in Article 18 exists as a matter of customary international law also. For
a discussion to the contrary, see also Sir I. Sinclair, The Vienna Convention
on the Law of Treaties (2nd ed) 1984, Manchester University
Press, p. 43.
6 It should
be noted that this obligation is quite different to the obligation which
signatories to the Ottawa Convention may elect to adopt under Article 18
of the Ottawa Convention, namely to apply the Ottawa Convention provisionally
between their ratification and the Conventions entry into force.
7 Lord Gore-Booth
and D. Pakenham (eds) Satows Guide to Diplomatic Practice, 1979,
Longman, London, pp. 270-1.
8 Lord Gore-Booth
and D. Pakenham (eds) Satows Guide to Diplomatic Practice, 1979,
Longman, London, p. 273. See also M. Whiteman, Digest of International
Law, 1970, Department of State Publication, Washington DC, Vol. 14,
p. 62.
9 Article 21
Ottawa Convention.
10 This much
is implicit in the fact that the entry into force of the Convention is
determined by reference to the date of the deposit of a states instrument
of ratification cf also article 16 of the Vienna Convention on the Law
of Treaties 1969.
11 The Ottawa
Convention may be provisionally applied by a state following its deposit
of an instrument of ratification and pending the entry into force of the
Convention: Article 18.
12 Lord Gore-Booth
and D. Pakenham (eds) Satows Guide to Diplomatic Practice, 1979,
Longman, London, p. 276. See also M. Whiteman, Digest of International
Law, 1970, Department of State Publication, Washington, Vol. 14, pp.
93-4.
13 Article 16(2)
Ottawa Convention.
14 By implication
from the terms of Article 17.
15 Cf Article
16 of the Vienna Convention on the Law of Treaties 1969.
16 Article 17
Ottawa Convention.
17 The International
Law Commission has described acceptance as an innovation which is more
one of terminology than of method: see the references to the comments
of the International Law Commission on acceptance and approval generally
in M. Whiteman, Digest of International Law, 1970, Department of
State Publication, Washington, Vol. 14, p. 109. See also Lord Gore-Booth
and D. Pakenham (eds) Satows Guide to Diplomatic Practice, 1979,
Longman, London, p. 282.
18 Lord Gore-Booth
and D. Pakenham (eds) Satows Guide to Diplomatic Practice, 1979,
Longman, London, p. 283.
19 Lord Gore-Booth
and D. Pakenham (eds) Satows Guide to Diplomatic Practice, 1979,
Longman, London, p. 283.
20 Cf Article
16 of the Vienna Convention on the Law of Treaties 1969.
21 Article 17
Ottawa Convention.
22 Declarations
as published on UN Treaties web site, http://www.un.org/Depts/Treaty, updated
to 3 December 1998.
23 This was
the declaration made by Greece at the time of its signing of the Convention,
which confirmed its commitment to the principles in the Convention: Greece
fully subscribes to the principles enshrined within the [said Convention]
and declares that ratification of this Convention will take place as soon
as conditions relating to the implementation of its relevant provisions
are fulfilled.
24 Not surprisingly
therefore, no states have sought to make express reservations to any provision
of the Ottawa Convention.
25 See generally
the decision of the International Court of Justice in its Advisory Opinion
on Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide (1951), ICJ 15.
26 This general
liberty to make reservations is reflected in Article 19 of the Vienna
Convention on the Law of Treaties 1969.
27 See Article
27 Vienna Convention on the Law of Treaties 1969. See also Alabama
Claims Arbitration (1872), Moore, Arbitrations, i. 653.
28 However,
see below under National Implementation. I. Brownlie, Principles of
Public International Law (5th Ed.), 1998, p. 25.
29 See Seidl-Hohenveldern,
12 ICLQ (1963), pp. 105-7.
30 Salomom
v Commissioners of Customs and Excise [1967] 2QB 116, CA at 141 per
Lord Denning.
31 See below.
I. Brownlie, Principles of Public International Law (5th Ed.) 1998,
p 25.
32 Brownlie,
Ian, Principles of Public International Law, Fifth Edition, 1998,
p. 318.