Parliamentary oversight of treaties
Senator Mian Raza Rabbani introduces a bill on ‘Ratification of Foreign Agreements by Parliament’
The writer is a Senior Lecturer in Commercial Law at the University of Sussex, UK. He can be reached at a.a.ghouri@sussex.ac.uk
Senator Mian Raza Rabbani has recently introduced a bill on ‘Ratification of Foreign Agreements by Parliament’. The bill’s objectives are to ensure parliamentary oversight of treaties and foreign agreements signed by the government as these agreements have serious consequences for the economic, political and fundamental rights of Pakistani citizens. The bill certainly deals with a significant subject of public interest requiring legislation. Although treaty ratification powers in many countries are typically exercised by government executives, several countries have taken steps to ensure some kind of parliamentary oversight of the treaty-making process. Australia has created a parliamentary ‘Joint Standing Committee on Treaties’, and the UK and Kenya have made laws requiring parliamentary approval of treaties before their ratification by government executives.
There are several reasons why treaties should have parliamentary oversight. Treaties are agreements between countries and form an important part of a government’s foreign policy. They are key instruments for governments to create, strengthen or redirect their relations with other countries. They are also a means to create legally-binding commitments between countries enforceable under international law. Treaties may also impose positive legal obligations on a country requiring its government to take certain actions. Treaties may also contain provisions ousting jurisdiction of national courts in favour of international arbitration and indirectly operate as a means to avoid accountability of public officials before national courts. As the bill’s objectives highlight, treaties as international agreements may create rights and obligations for citizens or impose conditions on domestic legal and constitutional settings.
The demands of globalisation have made countries exceedingly active in their international relations producing various types of treaties and international agreements. Countries are increasingly seeking to strengthen their international relations by taking up both legally-binding and informal commitments that have significant implications at the national level. Such avid use and varied implications of treaties require that they are made subject to parliamentary oversight.
A system of parliamentary oversight and approval of treaties will, in fact, have several advantages. It will give democratic legitimacy to treaties and foreign agreements and ensure checks on the government to make treaties that may bind the country into unnecessary and burdensome international obligations requiring changes to national law and public policy. It will also enable national executives and judicial institutions to make necessary readjustments for the proper implementation of treaties while operating within the national constitutional and legal frameworks. Furthermore, it will ensure that Pakistan does not breach its international obligations if parliament refuses to pass changes to domestic law or legislation to implement treaties.
Like every other country, successive Pakistani governments have signed numerous highly important treaties and international agreements. An indicative categorisation of treaties sufficiently demonstrates their economic, political and fundamental rights implications. On broader political objectives, Pakistan has concluded many international agreements, including the Indus Waters Treaty and the China-Pakistan Boundary Agreement. Likewise, Pakistan is a party to many international conventions concerning fundamental rights mostly framed under the auspices of the United Nations, including the International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights. Free Trade Agreements (FTAs), Preferential Trade Agreements (PTAs), Bilateral Investment Treaties (BITs), and Double Taxation Treaties are just a few examples of important international economic agreements that Pakistan has signed.
More recently, the government has concluded several international agreements — including with Russia on training of military personnel; with 10 different countries on cooperation to bring back the looted money of the nation; with China on transfer of sentenced persons; and with the UK on swap of prisoners. These are in addition to several other agreements with China under the framework of the China-Pakistan Economic Corridor (CPEC) in multiple areas, including economy, agriculture, law enforcement and technology. Pakistan has also been negotiating with the International Monetary Fund (IMF) on a possible loan agreement which falls within the bill’s definition of ‘foreign agreements’.
All these treaties and agreements have different political, economic and fundamental rights significance. Many of the earlier agreements between China and Pakistan have been widely criticised for lack of transparency and public engagement in their negotiation and conclusion. There have been repeated calls to subject government’s negotiations, agreements and relations with other countries to the democratic process by an open discussion in parliament.
In addition to formal treaties, the government has been involved in many informal agreements and commitments which have influenced its actions both nationally and internationally. Although these agreements are not legally binding, non-compliance can result in political consequences, including loss of credibility and repute in international relations, and reprisals by partner states. The importance of such informal commitments is obvious from the Point of Public Importance raised by Senator Mian Raza Rabbani in a recent Senate session regarding the Pakistani government’s failure to allow parliamentary scrutiny of its involvement in the ongoing dialogue between the US and the Taliban. Similar concerns have been raised regarding conditions supposedly included in the recent financial support agreement between Pakistan and Saudi Arabia.
Significance of such informal foreign agreements is undeniable and there is clearly a need for parliamentary oversight of these important matters of foreign policy. However, such foreign agreements are primarily political decisions and it is unlikely that any government would like to present all such agreements before parliament for an open discussion and approval. Unless they are formally written and concluded by way of legally-binding treaties, it will be practically impossible to require any government to present all such agreements before parliament for formal approval or ratification. Some of these agreements may also contain sensitive information precluding disclosure or a public debate. All these types of informal agreements are unlikely to be effectively regulated by any single legislation such as the bill.
However, some kind of parliamentary oversight of such informal agreements is in the interest of democracy. It will strengthen the role of parliament and give those agreements democratic legitimacy. It will also develop political consensus on important aspects of foreign policy, and successive governments will have the desire and responsibility to maintain those agreements, resulting in sustained relations with partner states. In view of the difficulties in regulating informal agreements through the proposed bill, the role of Foreign Affairs Committees that has been created at both Houses of the Pakistani parliament can be made more effective in the making and scrutiny of such agreements.
The bill has undoubtedly proposed an important piece of legislation. However, several aspects of the bill, including its ambitious approach to regulate the ratification of all types of treaties and foreign agreements through a single uniform procedure, need careful scrutiny. The broader issues can be framed as follows: Do all types of formal and informal foreign agreements need parliamentary oversight and in the same manner? If yes, does the bill seek out a balance between democratic legitimacy and transparency on the one hand, and practical difficulties that may arise from presenting treaties of highly technical, urgent, or confidential nature before parliament on the other? Pakistan is traditionally a ‘dualist’ country where treaties do not automatically become part of national law enforceable in national courts unless specific implementing legislation is passed by parliament. Will ratification by parliament make a treaty enforceable in domestic courts without a separate implementing legislation? Considering these challenges, lawmakers will need to deliberate on how parliament’s role in the making of treaties and foreign agreements can be increased without being too disruptive of an effective foreign policy and friendly relations with other countries.
Published in The Express Tribune, January 17th, 2019.
There are several reasons why treaties should have parliamentary oversight. Treaties are agreements between countries and form an important part of a government’s foreign policy. They are key instruments for governments to create, strengthen or redirect their relations with other countries. They are also a means to create legally-binding commitments between countries enforceable under international law. Treaties may also impose positive legal obligations on a country requiring its government to take certain actions. Treaties may also contain provisions ousting jurisdiction of national courts in favour of international arbitration and indirectly operate as a means to avoid accountability of public officials before national courts. As the bill’s objectives highlight, treaties as international agreements may create rights and obligations for citizens or impose conditions on domestic legal and constitutional settings.
The demands of globalisation have made countries exceedingly active in their international relations producing various types of treaties and international agreements. Countries are increasingly seeking to strengthen their international relations by taking up both legally-binding and informal commitments that have significant implications at the national level. Such avid use and varied implications of treaties require that they are made subject to parliamentary oversight.
A system of parliamentary oversight and approval of treaties will, in fact, have several advantages. It will give democratic legitimacy to treaties and foreign agreements and ensure checks on the government to make treaties that may bind the country into unnecessary and burdensome international obligations requiring changes to national law and public policy. It will also enable national executives and judicial institutions to make necessary readjustments for the proper implementation of treaties while operating within the national constitutional and legal frameworks. Furthermore, it will ensure that Pakistan does not breach its international obligations if parliament refuses to pass changes to domestic law or legislation to implement treaties.
Like every other country, successive Pakistani governments have signed numerous highly important treaties and international agreements. An indicative categorisation of treaties sufficiently demonstrates their economic, political and fundamental rights implications. On broader political objectives, Pakistan has concluded many international agreements, including the Indus Waters Treaty and the China-Pakistan Boundary Agreement. Likewise, Pakistan is a party to many international conventions concerning fundamental rights mostly framed under the auspices of the United Nations, including the International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights. Free Trade Agreements (FTAs), Preferential Trade Agreements (PTAs), Bilateral Investment Treaties (BITs), and Double Taxation Treaties are just a few examples of important international economic agreements that Pakistan has signed.
More recently, the government has concluded several international agreements — including with Russia on training of military personnel; with 10 different countries on cooperation to bring back the looted money of the nation; with China on transfer of sentenced persons; and with the UK on swap of prisoners. These are in addition to several other agreements with China under the framework of the China-Pakistan Economic Corridor (CPEC) in multiple areas, including economy, agriculture, law enforcement and technology. Pakistan has also been negotiating with the International Monetary Fund (IMF) on a possible loan agreement which falls within the bill’s definition of ‘foreign agreements’.
All these treaties and agreements have different political, economic and fundamental rights significance. Many of the earlier agreements between China and Pakistan have been widely criticised for lack of transparency and public engagement in their negotiation and conclusion. There have been repeated calls to subject government’s negotiations, agreements and relations with other countries to the democratic process by an open discussion in parliament.
In addition to formal treaties, the government has been involved in many informal agreements and commitments which have influenced its actions both nationally and internationally. Although these agreements are not legally binding, non-compliance can result in political consequences, including loss of credibility and repute in international relations, and reprisals by partner states. The importance of such informal commitments is obvious from the Point of Public Importance raised by Senator Mian Raza Rabbani in a recent Senate session regarding the Pakistani government’s failure to allow parliamentary scrutiny of its involvement in the ongoing dialogue between the US and the Taliban. Similar concerns have been raised regarding conditions supposedly included in the recent financial support agreement between Pakistan and Saudi Arabia.
Significance of such informal foreign agreements is undeniable and there is clearly a need for parliamentary oversight of these important matters of foreign policy. However, such foreign agreements are primarily political decisions and it is unlikely that any government would like to present all such agreements before parliament for an open discussion and approval. Unless they are formally written and concluded by way of legally-binding treaties, it will be practically impossible to require any government to present all such agreements before parliament for formal approval or ratification. Some of these agreements may also contain sensitive information precluding disclosure or a public debate. All these types of informal agreements are unlikely to be effectively regulated by any single legislation such as the bill.
However, some kind of parliamentary oversight of such informal agreements is in the interest of democracy. It will strengthen the role of parliament and give those agreements democratic legitimacy. It will also develop political consensus on important aspects of foreign policy, and successive governments will have the desire and responsibility to maintain those agreements, resulting in sustained relations with partner states. In view of the difficulties in regulating informal agreements through the proposed bill, the role of Foreign Affairs Committees that has been created at both Houses of the Pakistani parliament can be made more effective in the making and scrutiny of such agreements.
The bill has undoubtedly proposed an important piece of legislation. However, several aspects of the bill, including its ambitious approach to regulate the ratification of all types of treaties and foreign agreements through a single uniform procedure, need careful scrutiny. The broader issues can be framed as follows: Do all types of formal and informal foreign agreements need parliamentary oversight and in the same manner? If yes, does the bill seek out a balance between democratic legitimacy and transparency on the one hand, and practical difficulties that may arise from presenting treaties of highly technical, urgent, or confidential nature before parliament on the other? Pakistan is traditionally a ‘dualist’ country where treaties do not automatically become part of national law enforceable in national courts unless specific implementing legislation is passed by parliament. Will ratification by parliament make a treaty enforceable in domestic courts without a separate implementing legislation? Considering these challenges, lawmakers will need to deliberate on how parliament’s role in the making of treaties and foreign agreements can be increased without being too disruptive of an effective foreign policy and friendly relations with other countries.
Published in The Express Tribune, January 17th, 2019.