Blame the Drafter or the Treaty? Towards Uniformity in the Implementation of Treaties in Domestic Law.

<p><b>Domestic courts are often confronted with circumstances in which their interpretation of municipal legislation which purports to implement an international treaty differs significantly from that of other jurisdictions that have implemented that same treaty. States parties often come to realise these differences when they are called upon to cooperate in facilitating the execution of the relevant treaty. This is clearly undesirable as it defeats the purpose of treaty negotiation which is to attain consistency in approach amongst states parties.</b></p> <p>This dissertation proposes a solution to that problem. It is based on the hypothesis that uniformity in the drafting techniques used to implement different types of international treaties will eliminate, or at least reduce, the incidence of domestic legislation's deviating from the true intentions of the treaty it proposes to implement. The dissertation tests this hypothesis by examining the approach taken by different jurisdictions in implementing selected treaties. The study reveals that there is merit to the hypothesis. However, there are several factors which determine which drafting technique will best implement the terms of a treaty in a particular jurisdiction. Therefore, the same implementation technique may not be suitable for all contracting states. What is required is a structured approach to treaty implementation. This comes with an appreciation of the factors that will indicate and should be used to determine which drafting technique is the most suitable.</p> <p>By way of solution to the problem posed, a guide is formulated. It provides a set of best practices for treaty implementation.</p>

Blame the Drafter or the Treaty? Towards Uniformity in the Implementation of Treaties in Domestic Law.

<p><b>Domestic courts are often confronted with circumstances in which their interpretation of municipal legislation which purports to implement an international treaty differs significantly from that of other jurisdictions that have implemented that same treaty. States parties often come to realise these differences when they are called upon to cooperate in facilitating the execution of the relevant treaty. This is clearly undesirable as it defeats the purpose of treaty negotiation which is to attain consistency in approach amongst states parties.</b></p> <p>This dissertation proposes a solution to that problem. It is based on the hypothesis that uniformity in the drafting techniques used to implement different types of international treaties will eliminate, or at least reduce, the incidence of domestic legislation's deviating from the true intentions of the treaty it proposes to implement. The dissertation tests this hypothesis by examining the approach taken by different jurisdictions in implementing selected treaties. The study reveals that there is merit to the hypothesis. However, there are several factors which determine which drafting technique will best implement the terms of a treaty in a particular jurisdiction. Therefore, the same implementation technique may not be suitable for all contracting states. What is required is a structured approach to treaty implementation. This comes with an appreciation of the factors that will indicate and should be used to determine which drafting technique is the most suitable.</p> <p>By way of solution to the problem posed, a guide is formulated. It provides a set of best practices for treaty implementation.</p>

Intergenerational Justice in Sustainable Development Treaty Implementation

Economic, technological, social and environmental transformations are affecting all humanity, and decisions taken today will impact the quality of life for all future generations. This volume surveys current commitments to sustainable development, analysing innovative policies, practices and procedures to promote respect for intergenerational justice. Expert contributors provide serious scholarly and practical discussions of the theoretical, institutional, and legal considerations inherent in intergenerational justice at local, national, regional and global scales. They investigate treaty commitments related to intergenerational equity, explore linkages between regimes, and offer insights from diverse experiences of national future generations' institutions. This volume should be read by lawyers, academics, policy-makers, business and civil society leaders interested in the economy, society, the environment, sustainable development, climate change, and other law, policy and practices impacting all generations.

Strengthening the Paris Agreement by Holding Non-State Actors Accountable: Establishing Normative Links between Transnational Partnerships and Treaty Implementation

While the intergovernmental climate regime increasingly recognizes the role of non-state actors in achieving the goals of the Paris Agreement (PA), the normative linkages between the intergovernmental climate regime and the non-state dominated ‘transnational partnership governance’ remain vague and tentative. A formalized engagement of the intergovernmental climate regime with transnational partnerships can increase the effectiveness of partnerships in delivering on climate mitigation and adaptation, thereby complementing rather than replacing government action. The proposed active engagement with partnerships would include (i) collecting and analyzing information to develop and prioritize areas for transnational and partnership engagement; (ii) defining minimum criteria and procedural requirements to be listed on an enhanced Non-state Actor Zone for Climate Action platform; (iii) actively supporting strategic initiatives; (iv) facilitating market or non-market finance as part of Article 6 PA; and (v) evaluating the effectiveness of partnerships in the context of the enhanced transparency framework (Article 13 PA) and the global stocktake (Article 14 PA). The UNFCCC Secretariat could facilitate engagement and problem solving by actively orchestrating transnational partnerships. Constructing effective implementation partnerships, recording their mitigation and adaptation goals, and holding them accountable may help to move climate talks from rhetoric to action.

Treaty-text Loyalists’ Burden with Subsequent State Practice

The role of subsequent state practice in the procedural law of treaties, and in the determination of consent in the implementation of treaties have become the subject of much scholarly debate in recent times. The UN International Law Commission has devoted copious amounts of study time into these issues under the distinguished guidance of Georg Nolte as Special Rapporteur. Ph.D. theses and research monographs, journal articles and commentaries have appeared on the matter, but the debate persists. At one end of this debate are treaty-text loyalists that reject the potential of subsequent state practice to modify what they regard as ‘solemn oaths’ taken by states when they conclude and adopt a treaty. That ‘temporal declaration of consent’ by states to be bound by a treaty regime is for them sacrosanct. At the other end are analytical jurisprudence scholars who appear to insist upon a purpose test approach to the matter. This article evaluates treaty-text loyalists’ arguments under current state practice on treaty implementation across a number of disciplines. It shows that the view that ‘temporal consent’ supremely prohibits the modification of treaties through subsequent state practice is exaggerated. Moreover, the ‘solemn oaths’ perception of treaties is not supported by recent examples of treaty implementation.

First Nation of Nacho Nyak Dun and Others v. Government of Yukon

422Treaties — Nature of treaty — Interpretation — Treaty rights — Agreement between Canada, First Nations and Government of Yukon establishing consultative process for development of land use plans in Yukon portion of the Peel Watershed — Umbrella Final Agreement between Government of Canada, Council for Yukon Indians and Government of Yukon, 1993 — Whether subject to international law principles for treaty interpretation — Whether Yukon Government’s approval of proposed land use plan contravening consultative process set out in agreement — Modern treaties — Role of courts in resolving disputes concerning modern treaty implementationTerritory — Agreement recognizing traditional territories of First Nations in Yukon portion of the Peel Watershed, and their right to participate in management of public resources in that area — The law of Canada

ICCPR Article 27 as a Basis for Multilingual Library Services: Implications of Treaty Implementation in the US Context

In response to a rapidly diversifying population, American libraries have invested considerable effort in improving collections and services in non-English languages. For the past decade, the American Library Association’s Guidelines for the Development and Promotion of Multilingual Collections and Services and its Guidelines for Library Services to Spanish-Speaking Library Users have represented the aspirations of the professional community to achieve best practices in this area. At the same time, a growing interest in critically aligning librarianship with human rights work has generated rich reflection on the application of the principles of the Universal Declaration of Human Rights (UDHR). Largely overlooked in this process, however, has been the International Covenant on Civil and Political Rights (ICCPR) which, in contrast to the UDHR, is legally binding on states parties and has been ratified by the United States. This article examines the implications of ICCPR Article 27’s guarantees of cultural and language rights for minorities on the provision of non-English library collections and services, arguing that the treaty provides a legal foundation for library advocacy to support the work envisioned in the ALA’s guideline documents.

Dispute Resolution in Modern Treaties: Evolutions, Observations and Next Steps

In Canada, comprehensive land claims agreements – often called modern treaties – between the government and Indigenous nations include provisions prescribing how disputes between treaty parties are to be resolved. Experiences with these dispute resolution mechanisms vary across treaty contexts and there is substantial variance in the terms of these treaties. To date, this dimension of modern treaty implementation has received minimal scholarly attention, despite calls for such research. Drawing on specific examples, this article sets a foundation for further research by examining the significant variation across different treaties’ dispute resolution mechanisms and commenting on key differences, similarities and other notable features. A key focus of the analysis is on the observable evolution of these mechanisms from a relatively narrow arbitration board model to a more flexible “staged approach”. The analysis suggests that the latter may provide a stronger basis for joint problem-solving and integrative bargaining, notwithstanding open questions about the extent to which such approaches are warranted in fraught Crown-Indigenous relationships in Canada. The article also discusses the conspicuous absence of dispute resolution mechanisms that accommodate, let alone require, approaches rooted in the traditional or cultural practices of Indigenous treaty parties. Observations throughout are contextualized in relation to a growing body of jurisprudence and a broader context of fast-changing federal law and policy in Canada, which may set the stage for amendments to the dispute resolution provisions of modern treaties.