The (Reform) Treaty of Lisbon: What’s in it? How Significant. Jean Monnet/Robert Schuman Paper Series Vol. 9 No. 1, January 2009

[From the Introduction]. The European Union is currently based on the treaty framework which emerged as the Treaty of Nice entered into force in 2003 (European Union, 2003). The Constitutional Treaty elaborated during the Convention on the Future of Europe, 2002-2003, and finally negotiated during the Intergovernmental Conference (IGC), 2003-2004, proposed a number of changes in that framework, but the treaty was rejected in referenda in France and the Netherlands in May and June 2005 (Laursen, 2008). After a reflection period it was decided to negotiate a so-called Reform Treaty. The German Presidency played an important role in securing agreement on a mandate for a new IGC in June 2007. During the Portuguese Presidency in the autumn of 2007 that IGC then produced a new treaty, the Lisbon Treaty (European Union 2007). In this paper we shall outline the most important provisions of the Lisbon Treaty. Will the Lisbon Treaty improve the efficiency, democratic legitimacy “as well as the coherence of its external action,” as the mandate from June 2007 claimed it should? (Council of the European Union, 2007)

Unratified Treaties, Domestic Politics, and the U.S. Constitution

Under contemporary treaty practice, a nation\u27s signature of a treaty typically does not make the nation a party to the treaty. Rather, nations become parties to treaties through an act of ratification or accession, which sometimes occurs long after signature. Nevertheless, Article 18 of the Vienna Convention on the Law of Treaties, which many commentators regard as reflecting customary international law, provides that when a nation signs a treaty it is obligated to refrain from actions that would defeat the object and purpose of the treaty until such time as it makes clear its intent not to become a party to the treaty. Some commentators further claim that this object and purpose obligation means that a nation that has signed a treaty is prohibited either from violating the treaty altogether or from violating the treaty\u27s core or important provisions. Attaching legal obligations to the signing of a treaty, however, poses a constitutional issue for the United States because the U.S. Constitution divides the treaty power between the President and Senate, whereas only the President and his agents are involved in the signing of treaties. This constitutional issue has broad significance because, for a variety of political and other reasons, the United States often signs but fails to ratify treaties. The constitutional issue is not eliminated by the president\u27s authority to conclude sole executive agreements, since both constitutional structure and historical practice suggest that this authority is significantly narrower than the power of the President and Senate to jointly conclude treaties. The drafting history of Article 18, however, offers a partial solution to this difficulty, since it indicates that the object and purpose obligation was intended to prohibit only actions that would substantially undermine the parties\u27 ability to comply with or benefit from a treaty after ratification, an obligation that has little relevance to the treaties for which signing obligations would be most constitutionally problematic

Stopping Illegally Caught Fish at the Dock How the Port State Measures Agreement Will Curb Illegal Fishing

Can one international treaty help reverse years of rampant and widespread disregard for fisheries laws and policies? We believe the answer is yes, but a treaty is only as good as the parties that ratify and enforce it. The treaty in question is the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, commonly called the Port State Measures Agreement, or the PSMA. Adopted in 2009 by the U.N. Food and Agriculture Organization, or FAO, the treaty requires parties to exert greater port controls on foreign-flagged vessels, and as a result to keep illegal, unreported, and unregulated, or IUU, fish out of the world's markets by removing the incentive for dishonest fishing operators to continue their illegal activities. But the PSMA will take effect only after 25 parties have ratified it. (For a current list of port States that have ratified the treaty.) Signatories to the PSMA should confirm their commitment to ending illegal fishing by ratifying, accepting, or approving the treaty now. Countries that did not sign the treaty can accede to it at anytime

Book Review: The Treaty of Waitangi in New Zealand’s law and constitution

The Treaty of Waitangi occupies an unsettled place in New Zealand’s constitution, law and life. Although there is almost universal agreement that it is a foundation document, this is not reflected in the legal status of the Treaty, or necessarily in its treatment by government. The Treaty engenders strong emotions on both sides of the political divide. Many New Zealanders are ambivalent about it. For some, it is a private issue; for others, it is very public, and very political. Both the legal and constitutional status of the Treaty is uncertain and unsettled, and so is the question of who exercises public power in relation to it. Harris has described the Treaty as one ingredient of a ‘cauldron of quietly simmering constitutional issues’. In this well-researched book, Matthew Palmer confronts these issues head on, and argues his vision for settling the legal and constitutional position of the Treaty

The use of the conservation estate in the settlement of Treaty of Waitangi claims : a thesis presented in partial fulfillment of the requirements for the degree of Master of Science in Ecology/Zoology at Massey University

The effect of the Treaty of Waitangi on New Zealand's conservation estate through the settlement of Treaty of Waitangi claims, and the Department of Conservation's requirement under the Conservation Act 1987 to have regard for the principles of the Treaty of Waitangi is introduced. The importance of the Treaty of Waitangi Settlement process and the controversy surrounding the role of the conservation estate in this process is also discussed. A background to the Treaty of Waitangi settlement process is presented and three major land claims and their resulting settlements are examined as case studies. These are the Tainui-Waikato raupatu claim, the Whakatohea claim, and the Ngai Tahu claim. The potential impact of each of these settlements on the ownership and management of New Zealand's conservation estate is discussed and compared with the impact of the Department of Conservation's current commitment to the Treaty of Waitangi through it's Kaupapa Atawhai Strategy on the management of the conservation estate. It was found that the settlement of Treaty of Waitangi claims has had little impact on New Zealand's conservation estate. Only very small areas of the conservation estate have had ownership transferred to claimants, and the area of land managed by the Department of Conservation has increased as a result of Treaty settlements. Treaty of Waitangi settlements have also had little impact on the management of New Zealand's conservation estate, as many of the redress instruments included in settlements are similar to the objectives and policies included in the Departments of Conservation's Kaupapa Atawhai Strategy. Future Treaty of Waitangi settlements are also unlikely to have a significant impact on New Zealand's conservation estate, and are likely to become more effective through improved consultation with the public and conservation interest groups and the closer involvement of the Department of Conservation's Kaupapa Atawhai section in the settlement process

Treaty Signature

This chapter is a contribution to The Oxford Guide to Treaties (Duncan Hollis, ed., Oxford University Press, forthcoming 2012). Under international law, in order for a State to become a party to a treaty, it must express its consent to be bound by the treaty. Such consent can be expressed in a variety of ways, including through signature of the treaty by a proper representative of the State. Under modern treaty practice, however, States often express their consent to be bound by a separate act of ratification that is carried out after signature. When a treaty is subject to discretionary ratification after signature, the signature is referred to as a \u27simple signature,\u27 whereas a signature that indicates consent to be bound is referred to as a \u27definitive signature\u27. Part I of the chapter considers why States often prefer simple signature subject to ratification in lieu of other methods of joining a treaty. Part II discusses the international legal consequences of a simple signature. Part III reviews the process by which a State can terminate its signatory obligations. The chapter concludes with a brief consideration of the strategic issues raised by the ability of States to decide not to ratify a treaty after signature

Hong Kong\u27s Future: Can the People\u27s Republic of China Invalidate the Treaty of Nanking as an Unequal Treaty?

This Note analyzes the PRC\u27s claim that, according to accepted principles of international law, it is justified in abrogating the Treaty of Nanking. The basis for the PRC\u27s position is that the treaty is not reciprocal in its terms and is the product of coercion. Therefore, according to the PRC, the Treaty is unequal and nonbinding. The first part of this Note provides the historical background surrounding the conclusion of the Treaty of Nanking. Part II briefly defines the principle of pacta sunt servanda and examines problems that arise when the rule is applied to unequal treaties. Part III presents a two-part analysis of whether execptions to pacta sunt servanda exist, and, if so, whether the Treaty of Nanking falls within the exceptions

\u3ci\u3eBreard\u3c/i\u3e, \u3ci\u3ePrintz\u3c/i\u3e, and the Treaty Power

This article considers whether the anti-commandeering principle of New York v. United States and Printz v. United States applies to exercises of the Treaty Power. It illustrates the problem with an analysis of the treaty provision involved in Breard v. Greene, 118 S. Ct. 1352 (1998), which requires state officials to notify certain aliens they arrest that they have a right to consult with their consul. Whether exercises of the treaty power are subject to the commandeering prohibition depends on the resolution of two ambiguities in the Supreme Court\u27s anti-commandeering doctrine. The first concerns the distinction between commandeering and mere encouragement. Specifically, can a treaty such as the one involved in Breard be upheld as an exercise of conditional preemption, on the theory that it gives the state the choice between providing notification and refraining from arresting aliens? The answer to that question depends on whether a treaty barring states from arresting aliens would be valid, and the answer to that question turns on where the line falls between commandeering and valid preemption. If, as some lower courts have found, Printz and New York prohibit legislation that imposes obligations on states but not individuals, or regulates the states in their roles as governments, then a treaty barring the arrest of aliens would contravene the anti-commandeering principle. But, if so, the anti-commandeering principle could not be applicable to the treaty power, as it would call into question too much Supreme Court precedent. If the anti-commandeering principle is narrower, there would appear to be no reason to exempt the Treaty Power from its scope. Under the narrow interpretation of Printz and New York, the sorts of obligations to which the treaty-makers would legitimately want to subject the states would be valid encouragement under the conditional preemption doctrine. The anti-commandeering principle, narrowly construed, would thus not represent much of a burden on the Treaty Power. (Whether the anti-commandeering principle is broad or narrow is before the Supreme Court this Term in Condon v. Reno.