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18XX-1999 Acts of Parliament
2000-present Acts of Parliament
White columns – government actions
Shaded columns – parliamentary activity
Of the various treaty-related actions the government might undertake, those involved in the making of new treaties are the most high-profile.
What are bilateral and multilateral treaties? A bilateral treaty has only two participating sides. Either side or both sides can consist of more than one country. For example, the 2019 trade agreement between the UK on one side, and Colombia, Ecuador and Peru on the other, is a bilateral treaty. Multilateral treaties have more than two participating sides. A common type of multilateral treaty is an international agreement which a country can join long after it was first signed, like the UN Charter.
The process of making a new treaty can vary significantly from case to case. This applies to the number and types of steps involved, and the time taken between each one and overall. The process can differ especially between bilateral and multilateral treaties, but even among bilateral treaties there can be considerable variation. The states involved have significant flexibility to decide which steps to include in the making of a treaty, and what any step might signify in international law.
What is ratification? Ratification of a treaty is one of the main ways in which a country can give its ‘consent to be bound’ by it. A country ratifies a treaty when a representative of the national executive signs a written ‘instrument of ratification’, and this is then either exchanged with the other side (which is possibly only for a bilateral treaty), or deposited with the country or international organisation which is designated by the treaty to receive and keep such instruments. There is a range of other potential steps which, like ratification, may take place after signature and may express a country’s ‘consent to be bound’. These include ‘accession’ (to a multilateral treaty), ‘approval’ and ‘acceptance’. The 2010 Constitutional Reform and Governance Act, which governs the UK’s ratification process, includes these steps in its definition of ‘ratification’.
In particular, treaties can make varying provisions about when and under what conditions they enter into force (including on whether and when they require ratification), and about whether they may be provisionally applied.
However, in broad terms, at the international level there are potentially three main decision-making stages in the making of a treaty:
- opening of negotiations;
- signature;
- ratification.
Each of these is a step undertaken at the international level, by the government. They represent three key stages around which Parliament might undertake scrutiny of the government in the treaty-making process.
What is the difference between entry into force of a treaty and provisional application of a treaty? Each treaty provides for its own entry into force. For a treaty to enter into force, all the conditions that it specifies for this to take place must be fulfilled. For a treaty that requires ratification, such conditions include ratification – either by all participating countries, or by whatever required threshold of countries is specified in the treaty. A treaty may also provide for its provisional application. Provisional application takes place when the conditions for a treaty to enter into force have not yet been met. A treaty may provide that it will be provisionally applied from a certain date. The 2020 UK-EU Trade and Cooperation Agreement is such a case. Alternatively, a treaty may allow provisional application, in which case a participating country may be able to decide to so apply it.
After negotiations are opened, the negotiations phase is another important stage in the treaty-making process that Parliament might scrutinise – including any decision to halt or abandon the negotiations.
If the negotiations end with an agreement, the UK’s ‘dualist’ approach to international law means that there may be a fourth major decision-making stage in the treaty-making process: legislating to implement the treaty in domestic UK law, in case in which such legislation is required. This is a domestic, rather than international, stage in the process.
Although there may be rare exceptions, it is the UK’s well-established practice to make any domestic legislation that is needed to implement a treaty after signing it, and before ratifying.
This practice means that there are potentially four main stages in the UK’s treaty-making process. These are normally arranged as follows:
Potential main stages in the UK’s making of a new treaty
Level of action ↓ | ← Stages → | |||
---|---|---|---|---|
International level – steps carried out by government | 1.Opening of negotiations | 2.Signature | 4.Ratification (if needed) | |
National level – steps carried out by Parliament/government | 3.Making of domestic implementing legislation (if needed) |