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Difference between ratification and accession of a treaty

BARRiSTER HARuN uR RASHiD
A State may be come a party to a Treaty either by ratification or by accession. Ordinarily, provisions of a Treaty lay down the procedure for a State to become formally a party to a Treaty either by ratification or accession.
The discussion is related to a multilateral treaty that is applicable to more than two or more states. For instance, the UN Charter or the SAARC Charter is a multilateral Treaty. The 1998 Rome Statute establishing the International Criminal Court is a multilateral Treaty.
The following discussion will make clear the difference between ratification and accession of a multilateral Treaty.
Processes to become a party to a Treaty
Ordinarily, powers of a State are distributed among its three organs: executive, legislative and judiciary. The executive runs the state in accordance with the Constitution and law, the legislature enacts laws and the judiciary implements laws.
The division of powers of a State is known as doctrine of separation of powers. The Bangladesh Constitution of 1972 distributes powers among the three organs of the Republic. Part IV of the Constitution relates to the executive, Part V to the legislature and Part VI to the judiciary of the Republic.
The decision to become a party to a Treaty is an executive decision. That means the government of the day decides to be a party to a Treaty. Ordinarily, this means that a representative of a government signs a Treaty. Signing of a Treaty is to indicate only the intention of the government to become a party to a Treaty.
why ratification clause in a Treaty?
Ordinarily all multilateral Treaties have ratification clauses. A question arises as to why ratification provision is incorporated in a Treaty. It is because the process of ratification provides time or a second thought for a country as to whether or not it should become a party to a Treaty.
Once a country has become a party, it has to assiduously comply with the provisions of a Treaty. Therefore, it is necessary for a government to ensure whether it can comply with the provisions of a Treaty. If it is too burdensome or onerous, it may decide finally not become a party to a Treaty, despite its signature by its representative.
For example, Bangladesh has signed the 1998 Rome Statute on International Criminal Tribunal but has not yet ratified it. Until ratification is executed by the government, Bangladesh is not a party to the Rome Statute. About 139 countries have signed the Rome Statue but only 97 signatory countries have ratified it as of March 2005. Bangladesh signed the 1982 UN Convention on the Law of the Sea in the same year but it ratified only in 2001 after a lapse of nineteen years.
Ratification of a Treaty in Bangladesh
The Bangladesh Constitution does not require the Parliament to ratify a Treaty. Article 145A of the Constitution provides that all treaties with foreign countries ( not with foreign or international organizations, such as the World Bank ,International Monetary Fund or World Trade Organisation) shall be submitted to the President , who shall cause them to be laid before Parliament, provided that any such treaty connected with national security shall be laid in a secret session of Parliament.
The above Constitutional provision requires that a Treaty with foreign countries needs to be laid only for discussion, not for ratification. Discussion by the members of Parliament is very useful because members of the Parliament may raise various issues relating to a Treaty, providing awareness to the government of potential difficulties, thus resulting a pressure on the government of the day not to ratify a Treaty.
The bottom line in Bangladesh is that the executive ratifies the Treaty. Both acts of signing and ratification are executed by the government.
Requirement of ratification by Parliament
In many countries, such as USA, Parliament has to ratify the Treaty. The Covenant of the League of Nations of 1920, although virtually "a child" of President Wilson of the US, was not ratified by the US Senate and as a result the US could not become a member of the League of Nations.
During the term of President Clinton, despite his request to the Senate members, the 1996 Comprehensive Test Ban Treaty (CTBT) was not ratified by the Senate and the US again could not be a party to the CTBT. Many experts believe that non-ratification of the CTBT by the US has weakened the US's moral high ground to ask other countries to become a party to CTBT
( India and Pakistan have not become parties to CTBT).
The above paragraphs indicate how a State formally becomes a party to a Treaty through ratification. Ratification may be either executed by the government of the day or by Parliament, depending on the provisions of the Constitution of the country.
Certain stages followed by countries to
become a party to a Treaty
Generally speaking, to become formally a party to the Treaty, a country has to go through certain stages. The stages are as follows:
(a) after signing, a detailed examination of provisions of a Treaty by the various agencies of the government as to whether the government will be able to comply with the provisions of a Treaty, given its human and material resources,
(b) if, a positive decision is arrived at by the government and if the Constitutional provision requires the treaty to be approved by the Parliament, the government remits the Treaty to Parliament that has to approve the treaty for ratification,
(c) if the government representative was not able to sign a Treaty document (called Final Act) and a country wishes to be a party to a Treaty, it can do so by accession and the procedure followed for accession remains the same as that of in the case of ratification.
Accession of a Treaty
Ratification can only apply when a state has signed a Treaty after conclusion. However many states may not attend the conference leading to the conclusion of a Treaty and therefore are not in a position to sign the Treaty.
Another situation is that many Treaties have come into operation before a country attains its independence. There are many Treaties which have been concluded before Bangladesh was born as a sovereign country. In such two cases, ratification procedure is not applicable but accession is only the procedure through which a country becomes formally party to a Treaty. Either the executive or Parliament can accede to a Treaty.
Bangladesh has acceded to many Treaties after its independence. If Bangladesh does not attend a conference that concludes a Treaty, the only procedure left for Bangladesh is to a party through accession.
Conclusion
To sum up: the difference between the two is only procedural and not substantive. Both procedures are essentially designed as to how a country may become a party to a Treaty. Ratification implies that a country has first signed the Treaty, whereas accession connotes that a country has not signed or was not in a position to sign a Treaty, whatever may be the reasons.
The document of ratification or accession is known as "Instrument of Ratification or Accession", ordinarily prepared by the Ministry of Foreign Affairs and signed by the Foreign Minister, once the head of the state/government (whoever is the chief executive under the Constitution) or the Parliament has consented to either ratification or accession of a Treaty as the case may be.
The author is a former Bangladesh Ambassador to the UN, Geneva.