A note – many years ago I was head of the Treaty Law Section in the old Department of External Affairs. What follows deals with the kinds of issues I covered on a daily basis, coming back into prominence so many years later.
Signing the Agreement – What Does That Do?
There’s been a fair amount of media reporting on signature of the TPP Agreement, some of which resulted from comments in Manila by President Obama that he welcomes Prime Minister Trudeau’s commitment to sign the Agreement on behalf of Canada.
There’ve also been many reports on the signing of the deal by the US President under so-called fast track authority, which requires 90 days’ advance notice to be given to the Congress before he can do that.
With all this discussion about who signs and when, it’s important to be clear about the concept of treaty signature in international law.
Believe it or not, there’s even an international treaty on the subject, concluded in Vienna decades ago. Not surprisingly, it’s called the Vienna Convention on the Law of Treaties. Canada and the US are parties to that Convention.
For years, the Vienna Convention was an obscure instrument reserved for academic discussion or arcane application by public international lawyers toiling away in foreign ministries, far outside the hurly-burly of international politics. In recent years, however, the VCLT has become much more prominent as a feature in international relations.
The Convention deals with the legalities of signature, ratification and entry into force of international agreements – treaties – like the TPPA. The key point is that each of these are separate acts and each has separate significance under international law.
Take signature. The Vienna Convention says that States can be legally bound when its representatives sign a treaty – but only if that’s what the treaty says. The TPPA doesn’t say anything about signature.
When a treaty is silent on signature but requires other steps to be taken before takes effect legally, the Vienna Convention says that, in such case, signature means the country must refrain from doing anything that would “defeat the object and purpose” of the treaty pending its entry into force.
That means that when representatives of Canada, the US or other States sign the final text of the TPPA – which isn’t even officially ready yet – these countries are not bound by the TPPA but only have to behave as set out in the Vienna Convention.
What Happens Next?
The Vienna Convention says that you then have to look to the terms of the treaty to find out what follows after signing. In the case of the TPPA, Article 30.5 says that it will enter into force when signatory States have notified the Depository that they have completed all their applicable internal legal procedures. That step is generally called ratification.
By the way, a Depository is the country or organization that has been designated as the record keeper of a treaty. In many cases, the UN or some other international organization is the designated Depository. In the case of the TPPA, the designated Depository is New Zealand.
So where do we go from here?
Signing Ceremony in New Zealand
There’s discussion among the 12 TPP governments to have an official signing ceremony in New Zealand early next February. That’s the appropriate place since it’s the Depository. But before that occurs, the final, official legal text, translated into Spanish and French, will be needed.
Once the official text is ready, what’s called the Final Act of the TPP negotiations will be prepared. That’s the official document that will record the results of the process and append the final TPP Agreement for signature. There will be a lot of hype in the lead-up to the signing ceremony and a media flurry when 12 representatives march to the podium, pens in hand.
Then Back to Capitals
Once the signature ceremony is over, the process reverts to the 12 participating countries to complete their internal legal procedures to bring the TPPA into effect – i.e., to complete the steps needed to ratify the treaty.
The Canada’s case, that will mean a thorough review by at least one Parliamentary committee (I’ve previously recommended a joint Commons-Senate committee) and full debate in the House of Commons. Who knows?
The Trudeau government may even commission cross-country hearings on the TPPA After all that there will be a report to Parliament and legislation introduced and a bill passed to make the necessary changes to Canadian law to implement the TPPA’s obligations.
The point is, even after Canada signs the deal next February, there is a long way to go before Canada is in a position to be bound by it and before the TPPA enters into force as an international treaty.
The same applies in the US, where the Congress will have several months to debate the TPPA after Obama signs it. Once that debate is over, or possibly before, the Administration will present Congress with a draft implementing bill. The Congressional debate over that bill will take many months, possibly extending beyond the presidential election in 2016. After that, it’s anybody’s’ guess.
It’s important not to be too fixated on signature of the TPPA. That’s only a station along the way to ratification and entry into force. As I’ve said before, the American government drove the TPP process all along and before any country commits to the treaty, they’ll want to see what the US Congress will be doing about it.