Full Powers

Hello, cherished viewers. Welcome to the Law Lab. Here, we unpack and dissect everything legal and bring it down to the very basic minimums so that all of us who are watching would understand the principles that are espoused in the law theories. Today, we'll continue our discussions on public international law, specifically on the first source of law as is provided for by Article 38 of the Statutes of the ICJ, which is international agreements or otherwise known as treaties. In our previous episodes, we discussed and tried to fashion out the definition for treaties or international agreements as is provided for by Article 2 of the VCLTs. Today, we will continue our conversations and look at specifically how a treaty is made or who has the powers to represent any state in the drafting or in the conclusion, concluding of an international agreement or a treaty. My name is Adamu Ben-Mamoud and I am happy to join you one more time to lead these discussions going forward. Thank you very much. Now, Article 75 of the 1992 Constitution of the Republic of Ghana empowers the executive realm of the state to enter into international agreements on behalf of the Republic of Ghana. This simply means that the president or the members of his government and the ministers and so on have the authority to represent Ghana in the discussions that lead to the entering or conclusion of international agreements or treaties. However, what we want to do today is to see if this provision in the 1992 Constitution will find some bearing in the VCLT and what the VCLT expects of nation-states that are negotiating and concluding discussions. And so, for our discussions today, what we will be looking at is the making of a treaty. What we must be mindful of in our discussions of a treaty and the making or the negotiation of a treaty is that one has to have capacity, you know, as a representative of their states to enter into those agreements for the VCLT to give it recognition. Specifically, I want to draw attention to Article 6 of the Vienna Convention of the Law of Treaties, which provides that every state possesses capacity to conclude treaties. So, as a general principle, as long as you are an independent state, you have sovereignty, the VCLTs recognize that you have the capacity or you're in a position to bind your respective states into international agreements. However, states are not natural persons. States are legal entities or artificial persons and it's a certain category of natural persons that must move and do the things that a state wants to do. And so, what kind of natural persons will the VCLT recognize as having the capacity to represent the artificial person being the state in the negotiation and the conclusion of a treaty? We will then turn our minds to Section 7 of the VCLTs, Section 7 of the Vienna Convention of the Law of Treaties, and that provides that a person is considered as representing a state for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the state to be bound by a treaty if, and it gives two instances, A, he produces appropriate full powers or it appears from the practice of the state's consent or from other circumstances that their intention was to consider that person as representing the state for such purposes as to dispense with full powers. What simply this is saying is that for anybody to be able to represent a state in his or her proper capacity as representing the state, that individual or that natural person must possess what the VCLTs refer to as full powers. Right, so full powers in very layman terms would be some sort of an authority note where the, you know, powers that be in that particular state will say that we are appointing Mr. ABC as the representative of country X to enter into these negotiations for the conclusion of this particular treaty. All right, if you have such an authority note for want of a better expression from your state, then the VCLT will consider or will regard you as possessing full powers to enter into the international agreement on behalf of the states that you represent. Now these full powers, and subsequently we'll go on to define properly what full powers are as provided for by the VCLT, right, but these full powers could either be expressed or implied so that Article 7.1a will tell us that he produces appropriate full powers, that is, he actually has in his possession the documents that possesses or grants him the full powers that he requires to enter into that negotiation. And so in that instance, we'll say that the full powers that is possessed by the representative of the states is expressed in nature. 7.1b or paragraph b goes on to say that it appears from the practice of the state's consent or from other circumstances that their intention was to consider that person as representing the state for purposes, for such purposes and to dispense with full powers. This in other words is saying that impliedly by the actions or by the practice of the states, a person may be deemed to possess full powers even when they do not have the documents that grants them the full powers by virtue of the state's own practice and by virtue of, you know, how the state has conducted itself in times past or in particular reference to the agreements that is being negotiated, right. And so in such an instance, we will say that the person impliedly possesses full powers to represent the states as far as the negotiation and the conclusion of that international agreement is concerned. Now let's turn our attention to understand clearly what the VCLT means by a person possessing full powers. And for that definition, I would remind us that from our last episode, we saw or we identified article two of the VCLTs, my, pardon me, article two of the VCLTs as the definition article of the Vienna Convention of Law of Treaties. And so for the definition of full powers, we will turn our minds back to article two of the VCLTs. Article two of the Vienna Convention of the Law of Treaties would define full powers as a document emanating from the competent authority of a state designating a person or persons to for negotiating, adopting, or authenticating the text of a treaty, for expressing the consent of the states to be bound by a treaty, or for accomplishing any other acts with respect to a treaty. So like we explained earlier in this video, a treaty is a full powers or possessing is really a note or something that is given to you by the state's authority or the powers that be in the state, indicating that you are designated to represent the state in doing three things. Number one, negotiating, adopting, or authenticating the text of the treaty, for expressing, number two, the consent of the states to be bound by the treaty, and number three, for accomplishing any act with respect to a treaty. In subsequent videos, we will look at what we mean by expressing consent to be bound by a treaty. Now let's juxtapose this, you know, with the provisions in article 75 of the 1992 Constitution of the Republic of Ghana. Article 75 of the 1992 Constitution confers on the executive organ of government the power to represent the states in international agreements. All right, and so if article 2 of the Vienna Convention is saying that it is a document emanating from the competent authority by virtue of article 75 of the 1992 Constitution of Ghana, as far as Ghana is concerned, the competent authority to issue out this full powers document would be the executive branch of government, specifically the president and his ministers of states, would be the persons who are considered to be the competent authority to issue out the full powers that anybody needs to enter into negotiations on behalf of the Republic of Ghana. This competent authority, I dare say, would be very different, or would be different from state to state, and per the constitution of every nation, they may have designated persons who would represent their states, or who would be there, would be recognized by their constitutions as the authentic or competent authority to issue out full powers, but chances are that, or the general practice has been that, it is the executive realm of the government that enters, that usually possesses this authority to give out the, or issue out the full powers document. Moving forward, moving forward, there are some general provisions that the VCLT would consider. In article 7.1b, or paragraph b of article 7.1 of the VCLT, we said that by practice of the states, it could be implied that anybody, a person that is representing the states, has the implied full powers from the states, all right? And so when we go into article 7.1.2, the Vienna conventions will give us, so article 7.2, the Vienna conventions will give us those instances where categories of persons are deemed to have the implied full powers of the states to represent them in the conclusion of those agreements. And article 7.2 of the Vienna conventions will provide as follows. In virtue of their functions, and without having to produce full powers, the following are considered as representing their state. A, the head of states, heads of government, and ministers for foreign affairs, for the purpose of performing all acts relating to the conclusion of a treaty. So article 7.2a is saying, like I mentioned a few seconds earlier, that the executive realm of power, of government, particularly the president of a country, the head of states, or the head of governments, if it is, you know, a prime minister that is the head of a government in any particular state, will be deemed to possess full powers. And such persons do not have to produce a full powers document to give credence to their representation of the states in the conclusion of that treaty. It will go on further to provide that in the presence of the head of states, the minister for foreign affairs would be a competent authority to represent the state to do all things pertaining or relating to the conclusion of a treaty. And in defining full powers from article 7.1, we saw that there are three things that would pertain to the conclusion of a treaty. The adoption or the negotiation of the treaty, providing consent of the states to be bound by the treaty, and the third one being all other acts that may be necessary to be performed for the conclusion of that treaty. And so article 7.2a is saying that the head of states and the minister of foreign affairs would possess or would be deemed to possess full powers to do all of these three things without having to necessarily produce a full powers document. And so in these circumstances, we'll say that the president and the minister of foreign affairs has an implied full powers to represent the states in all of its international agreements negotiations. Article 7.2b of the Vienna Conventions will also say that heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting states and the states to which they are accredited. The second category of persons that the VCLTs would deem to possess full powers for the adoption of an international agreement or a treaty is the head of a diplomatic mission. However, for heads of a diplomatic mission, 7.2b will place a certain restriction on the heads of diplomatic missions. And that restriction is that the treaty they can only enter into is a treaty between the states that has sent them, that is the accrediting state, and the states to whom they have been posted, which is the accredited state. And so if the high commissioner of the United Kingdom has the full powers to enter into a treaty pertaining to or relating to the government of the United Kingdom and the government of Ghana only, and not any other country which they are not accredited to. So article 7.2b gives the heads of the diplomatic missions the same authority, but it places some restrictions to who they can enter such treaties with. The second level of restrictions that 7.2b places on the heads of diplomatic missions is that they do not have the power to do two of the last things that the definition of full powers entitles persons possessing full powers to do. Remember, we said that the three things are adopting the text of the treaty, the second one being providing consent of the states to be bound by the treaty, and the third one being any other acts that are required for the conclusion of the treaty. 7.2b is saying that as far as diplomatic missions are concerned, all they have the power to do is to negotiate and adopt the text of the treaty. They do not have the power to express the consent of the states to be bound by that treaty, neither do they have the power to do any other acts apart from adopting the text of a treaty, you know, in a negotiation with the states they are accredited to. And so in the example we have given, the High Commissioner of the UK government will not have the power to sign or to express their consent of the consent of the UK government to be bound by the treaty. They can negotiate the text, negotiate the obligations that are placed on the government of the UK, negotiate the obligations that the government of Ghana is willing to take upon itself, but they cannot conclude or finalize the treaty or international agreement, according to Article 7.2b of the Vienna Convention. Moving forward, there's a third category that Article 7.2 of the Vienna Convention provides for, and that category are representatives accredited by states to an international conference or to an international organization or one of its organs for the purpose of adopting the text of a treaty in that conference organization or organ. And so every now and then as, you know, states practice, we hear that certain ministers or certain category of public officials have been sent out of the country to represent the states in international conferences. Examples being when there's the conference of parties on the environment, what we call the COP conferences, you would have certain public officials representing the states or the country Ghana in those international conferences by international organizations. What Article 7.2c is saying is that if you are the official representative of a state to an international conference, then you are deemed to have the full powers of that state. But again, it places restrictions on what you can do at that conference. Article 7.2c will provide that number one, you have full powers to only negotiate a treaty or an international agreement that will emanate from the conference to which you have been sent as a representative. You cannot enter into international agreements outside the scope of that international conference you have been sent to. Again, it says that you do not have the power to adopt or you do not have the power to conclude or to finalize a treaty or you do not have the power to express the state's consent to be bound by the treaty. Like the heads of diplomatic missions, you only have the power to adopt the text of the treaty. You have the power to negotiate the obligations that the country Ghana or the state you are representing is taking upon itself and the obligations that all other parties will be taking upon themselves. So let's be mindful of these three categories of persons. Number one, heads of states and ministers of foreign affairs. They have full powers to do all three things. Adopt the text of a treaty, express the consent of the states to be bound in that treaty and do all acts that are necessary for the conclusion of that treaty. Second category are heads of diplomatic missions, that is ambassadors and high commissioners to Ghana or to the states that they've been accredited to. They possess full powers to adopt the text of the treaty only and nothing more. And the third category are people who are representatives of the states to international conferences or international organizations. They have the power to adopt the text of a treaty that will emanate from the conference or the international organization to whom to which they have been sent to as representatives of the state. Now let us look at some case law and what case law has said regarding who has power to enter into negotiations on behalf of any state or who possesses full powers for the conclusion or the making of a treaty. The first one we'll look at is the case of Bosnia versus Serbia. That is the genocide convention which is a case or a dispute that the ICJ adjudicated upon in the year 1996. And a very important statement from that case which speaks to the topic we have discussed today is that the court said according to international law there is no doubt that every head of state is presumed to be able to act on behalf of the states in its international relations. All right and so the case of Bosnia versus Serbia will give credence or would go on to give some more you know backing to what we saw in article 72a of the Vienna convention. Another case that we may more relate to in this part of the world is the case of Cameroon versus Nigeria which is a more recent case adjudicated upon by the ICJ in the year 2002. And the courts in that matter said that heads of states are considered as representing their state for the purpose of performing all acts in relation to the conclusion of a treaty. Also giving or acknowledging the power that heads of states possess in as far as concluding an international agreement is concerned. Now to conclude all of this discussion we will turn our attention to what then happens if an individual who does not possess full powers goes on to negotiate and conclude an international agreement on behalf of the states without possessing the requisite full powers. Article 8 of the Vienna convention will go on to say that an act relating to the conclusion of a treaty performed by a person who cannot be considered under article 7 as authorized to represent a state for that purpose is without legal effect unless afterwards confirmed by the state. In more simple terms what article 8 of the VCLT is saying is that if a person who does not possess full powers goes on to enter into or to conclude an international agreement on behalf of the states without possessing the requisite full powers, such an international agreement is voidable. It is voidable because the states can extricate itself from it because the person who did or who concluded that treaty did not possess full powers. Alternatively, the states may rectify the person's actions and accept the obligations or the international agreements that the representative has placed on its shoulders. All right and so the states will have two options in such an instance. One rejects the international agreements or two agree or accept the terms of that international agreement under which case then becomes binding on the states that the wrongful person has entered into an agreement on its behalf. I hope that these discussions have been very useful to you and you've understood how and who is in a position to enter into international agreements on behalf of any given state. In subsequent episodes we will look at what is meant by the term expressing consent to be bound by an international agreement and the many ways by which a state may express its consent to be bound in an international agreement. And so until next time my name remains Adamu Ben Mahmoud and I have been very happy to take you through the making of the negotiation of a treaty. Until next time have a good day.