Public Law - Session 6 Negotiating Int'l Law

Question 1

What does the ‘multilateral executive agreement’ doctrine stipulate? Is it accepted?

Answer 1

A vote in an international organ equals to agreement to consent and a wish to be bound by it. No further steps are required to make it an international agreement. The doctrine’s idea is that the agreement ascents to become a binding agreement under the 1969 Vienna Convention on the Law of Treaties.

It is not accepted.

Question 2

What is the theory of ‘tacit consent’? Is it accepted?

Answer 2

A state always has the option of leaving a conference. By continuing to participate, the state implies that it accepts the ‘rules of the game’. Acquiescence (“Duldung”) would amount to common consent. It is not accepted.

Question 3

Where does one find the sources of obligations in international law?

Answer 3

Art. 38(1) of the Statute of the International Court of Justice.

Question 4

Customary international law is clearly a source of international law. Where does one find its legal basis?

Answer 4

1) Modern international law
2) Art. 38(1)(b) of the ICS Statute

Question 5

What are the requirements for a custom to become customary international law?

Answer 5

Generally accepted:

1) Comprises state practice
2) Comprises opinio juris

Question 6

How is state practice called that has no legal significance?

Answer 6

Mere habit or usage.

Question 7

Where can we find a definition of opinio juris?

Answer 7

North Sea Continental Shelf Case

‘a general recognition that a rule of law or legal obligation is involved’

Question 8

In the reading “Obligation of States Attending a Conference”, what is the author’s view on states complying with rules of procedure at international conferences fulfils opinio juris?

Answer 8

It does. He states that certain rules of procedure now have become customary international law. However, if such rules exist, they are jus dispositivum, and a conference can decide to change or waive them. As long as delegates attend the conference, they have to follow these rules.

Question 9

Does international law know state decisis?

Answer 9

No. International law knows no stare decisis. ICJ and international arbitrators base their decisions on precedents, it is done so not on the assumption that precedents are binding on them.

Question 10

Do conferences usually have procedural rules?

Answer 10

No, usually delegates respect the authority of the president, raising points of order and following other accepted norms of behaviour that allow an international conference to proceed in an organized fashion.

Question 11

Do decisions made by consensus have the same legal effect as a vote?

Answer 11

Yes.

Question 12

When can decisions NOT be made by consensus?

Answer 12

As soon as one state raises objection. Then it has to go to a vote (according to UN paper).

Question 13

What other terms can be used for consensus?

Answer 13

General agreement or without a vote.

Question 14

How are most UNGA decisions taken?

Answer 14

By consensus. It is now more than before (1980s).

Question 15

Regarding consensus, what rule did the the Third Law of the Sea Conference introduce?

Answer 15

The Third Law of the Sea Conference started the rule that all means regarding consensus must have been exhausted before it comes to a vote. This is to ensure that the minority’s objections have been heard instead of just been overruled with a majority vote. It has also been construed as a “de facto veto for minority countries”.

Question 16

Consensus, leaving no option for voting, has this been implemented in any treaty?

Answer 16

No treaty-making conference has adopted such a pure form of consensus. It is unlikely to be adopted in the future.

Question 17

Does a reservation stop a decision from being taken by consensus?

Answer 17

A UN opinion states that even a reservation made formally at the time of adoption of the text, while indicative of a qualified assent, does not prevent the adoption of the consensus text in question.

Question 18

What is the relationship between consensus decision-making and the concept of the “tyranny of the majority”?

Answer 18

Consensus decision-making aims to prevent the “tyranny of the majority” by allowing each participant, including the minority, to voice concerns, object, or withhold consent. Unlike traditional voting systems, consensus emphasizes reaching an agreement acceptable to all, ensuring that decisions consider the rights and perspectives of both the majority and the minority. If consensus cannot be achieved, the process may transition to voting, but the overall goal remains to avoid arbitrary and unilateral decision-making by a numerical majority.

Question 19

The constitutive negotiation contains three elements, which?

Answer 19

Referential Elements (Looking Back): This part refers to things agreed upon in the past, like decisions or plans made during earlier negotiations. It uses these past agreements as a starting point for the new negotiations.

Methodological Elements (How We’ll Do It): This section outlines how the negotiations will happen. It specifies the rules and structure for the treaty, such as the conventions or protocols to be developed. It also defines the scope of what the treaty will cover.

Procedural Elements (How and When): This involves deciding when and where the negotiations will take place. It sets a timeframe for the negotiations and determines the location based on political, economic, and administrative factors. It also gives a mandate to the secretariat to organize and coordinate the negotiation process.

Question 20

What is the purpose of the ad hoc body of conferential negotiation in the context of international negotiation for treaties?

Answer 20

The ad hoc body of conferential negotiation is formed to conduct formal negotiation sessions during the Constitutive Negotiation phase. It plays a crucial role in finalizing the treaty text and includes negotiating participants representing states, as well as negotiation-contributing participants like representatives of international organizations and NGOs who contribute valuable insights as observers. The ad hoc body is responsible for the textual negotiation process. It works under the coordination of the secretariat and conducts a series of sessions to reach a consensus-based finalization of the draft treaty text.

Question 21

What role does the secretariat play in the context of international negotiations for treaties?

Answer 21

The secretariat plays a key role as the guardian of the Constitutive Negotiation process. It is responsible for organizing, administering, and contributing to the negotiation process. It takes on administrative duties, facilitates the adoption of rules of procedure, and operates as a mediator between negotiating parties. Additionally, the secretariat contributes creatively by preparing the initial material for negotiation, producing explanatory notes, and playing a diplomatic role in ensuring the success of the negotiation.

Question 22

What is Constitutive Negotiation in the context of international relations?

Answer 22

Constitutive Negotiation refers to the formal process of negotiating and drafting a treaty or international agreement. It involves the collective decision to initiate negotiations, the establishment of an ad hoc body for conferential negotiation, and the active role of the secretariat in coordinating and guiding the negotiation process. Constitutive Negotiation aims to reach a consensus-based finalization of the treaty text and typically includes participation from states, international organizations, and other relevant entities. The process is crucial for shaping the content, scope, and application of the resulting international agreement.

Question 23

What are opening statements in the context of Constitutive Negotiation, and why are they significant?

Answer 23

Opening statements play a pivotal role in the Constitutive Negotiation phase, serving as the initial interactive orchestration of the negotiating process. Delivered mainly at this phase but also during Renegotiation, these statements are made by the heads of negotiating delegations at the beginning of the first session of conferential negotiation. They follow the presentation of the report by the secretariat and provide the first response to the report or the explanation of a first draft of the international agreement.

The opening statements are essential as they offer a comprehensive understanding of several crucial elements:

Negotiable Issues and Scope: The delegation’s understanding of the negotiable issues and the scope of their negotiation.

Objectives: The objectives of the negotiation and what ought to be achieved.

Priorities: The priorities established, emphasizing the more important aspects of the negotiation.

Contribution: The intended contribution of the delegation to the negotiating process, be it functional, political, scientific, or material.

Attitude and Evaluation: The delegation’s attitude and evaluation, if relevant, regarding the negotiation of similar issues in other international fora or frameworks, or previous attempts at such negotiation.

General Positioning: The general positioning and remarks on the general institutional and normative landscape related to the issues under negotiation at global, regional, and national levels.

Opening statements are not only made by negotiating countries but are also delivered by relevant international organizations, NGOs, and other non-state actors acting as observers. It is crucial for these statements to be succinct, balanced, and comprehensive, avoiding unnecessary details and complex language.

Question 24

What are inter-sessional workshops in the context of Constitutive Negotiation, and why are they significant?

Answer 24

Inter-sessional workshops are informal sessions held between formal negotiations to address complex issues, facilitate understanding, and explore new ideas crucial to the progress of the negotiation process. They are initiated by the negotiation forum, involve inclusive participation, and may lead to recommendations or alternative options for the formal negotiating forum to consider.

Question 25

What are side-events in the context of Constitutive Negotiation, and why are they significant?

Answer 25

Side events in international negotiations are open forums held outside the formal negotiation agenda, organized by various entities such as international organizations, NGOs, states, or non-state actors. They provide a platform for expert discussions on specific thematic aspects and cross-cutting issues related to the negotiation subject. Side events aim to share knowledge, present innovative ideas, facilitate networking, and explore options. They may include presentations, panel discussions, and innovative approaches, offering a learning opportunity and fostering a more comprehensive understanding of the issues involved.

Question 26

What are brainstorming sessions in the context of Constitutive Negotiation, and why are they significant?

Answer 26

Brainstorming sessions are a specialized and creative technique aimed at facilitating the spontaneous generation of ideas by a group of negotiating participants regarding a specific issue or problem. These sessions operate separately from the mainstream negotiating process.

The process of a brainstorming session involves two main stages: the quantitative production of possible seed ideas and a post-production critical evaluation and selective decision-making process.

The first stage encourages participants to freely express a flow of seed ideas, which are paratactically arranged and managed side by side. These ideas can converge, diverge, or be entirely original.

In the second stage, the ideas undergo a hypotactic arrangement, forming a hierarchy through collective evaluations and an eliminative reduction procedure. The most effective solutions are reached through qualitative promotion and selection of the best ideas, either independently or in combination.

These sessions are distinctive in their separation from formal negotiating sessions and are designed as an informal, facilitative procedure fostering creative collaboration among participants.

The brainstorming process includes a coordinator, often a representative of the conferential secretariat, who facilitates the session by directing discussions, observing the procedure, and stimulating the building of creative solutions.

Question 27

What different parts of the Constitutive Textual Negotiation did we look at?

Answer 27

Opening Statements
Inter-Sessional Workshops
Side-Events
Brainstorming Sessions

Question 28

What different techniques of the Constitutive Textual Negotiation did we look at?

Answer 28

“System of Brackets.” It involves both horizontal and vertical operations. Horizontally, diverse positions are expressed side by side in initial drafts with alternative proposals. Vertically, the depth and scope of the meaning of a single draft text are negotiated. The purpose is to achieve a clear, consensus-based text by negotiating reductions and merging paratactically placed alternative proposals.

“Recording Names of Negotiating Participants.” Names are recorded during opening statements but avoided in substantive negotiations to maintain flexibility. Exceptions are made when special obligations, exemptions, offers, or distinctive positions are expressed. This practice facilitates the solidification of positions while ensuring necessary flexibility in the negotiation process.

“Non-Negotiation Text” or “Non-Paper.” This informal, non-attributable instrument supports textual negotiation by mapping the zone of consensus and the area of feasible focus. It may be proposed by the chair or negotiating parties, providing a working basis for current or future negotiation sessions. The value lies in encouraging progress without committing parties to official positions, allowing for discussions on sensitive issues, and exploring topics.

Question 29

Give an advantage and disadvantage for each technique of the Constitutive Textual Negotiation.

Answer 29

System of Brackets:

Advantage:

Facilitates Consensus: Enables a progressive minimization of diverse positions, leading to a clear, consensus-based text through negotiated reductions and merging.

Disadvantage:

Potential Repetitiveness: Paratactic formulations may be variably repetitive, especially when dealing with alternative formulations, potentially making the text less concise.

Recording Names of Negotiating Participants:

Advantage:

Solidification of Positions: Recording names during opening statements helps solidify positions and allows for transparency regarding which entities express specific positions.

Disadvantage:

Reduced Flexibility: Avoiding the recording of names in substantive negotiations may reduce flexibility, making it challenging to attribute specific positions.

Non-Negotiation Text (“Non-Paper”):

Advantage:

Informal Progress: Supports textual negotiation without committing parties to official positions, encouraging progress in mapping consensus and exploring sensitive issues.

Disadvantage:

Potential Imposition: Care must be taken to avoid the imposition of uncontested language, as the non-paper might be perceived as an attempt to influence negotiations without open consensus.

Question 30

What is the outcome of constitutive negotiation? Explain the difference between the treaty text and Final Act

Answer 30

In the outcome of constitutive negotiation, the approval of the negotiated draft text of a treaty or protocol by the conferential negotiation forum triggers the organization of a diplomatic conference by the Secretariat. This conference leads to the creation of the Final Act, a comprehensive document that includes a concise narration of the constitutive negotiation process, organizational details of the conference, and deliberations on the treaty text.

Deliberations on the treaty text during the diplomatic conference involve in-depth discussions and negotiations regarding the wording, provisions, and implications of the proposed treaty or protocol. This phase is crucial for achieving consensus among negotiating states and international organizations, ensuring that the final text is acceptable to all participants.

The Final Act, distinct from the treaty text, serves as an official record of the diplomatic conference. It encapsulates key elements such as the evolution of the constitutive negotiation process, organizational aspects of the conference, details of the deliberations on the treaty text, and the adoption of implementing resolutions. It also includes any recorded reservations, declarations, and statements made during the conference.

While the treaty text constitutes the substantive legal agreement, providing the agreed-upon rules and obligations, the Final Act is a procedural and historical document. It marks the formal completion of the constitutive negotiation process and the official adoption of the treaty text. The Final Act and the treaty text are formulated in all official languages provided in the treaty, under the supervision of the secretariat.

Question 31

What happens at and after the diplomatic conference?

Answer 31

The diplomatic conference is a pivotal event as it initiates the ceremonial signing of the treaty by accredited representatives. The signatory period, specified in the treaty’s final provisions, allows states and international organizations to become parties by depositing instruments of ratification, acceptance, or approval with the treaty’s depositary. Those who haven’t signed within the stipulated period can join as parties through a one-step action by depositing an instrument of accession at any time.