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DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Public international law

Submitted To Submitted By
Dr. Manwendra kumar Tiwari Ayush Pratap singh
Assistant Professor, Law B.A. LLB(HONS)
IVth semester
SECTION-
“A”

170101042
ACKNOWLEDGEMENT

It is of great satisfaction and a matter of privilege to work on a project of Public International Law.

I express my deep gratitude to my teacher Dr. Manewendra Kumar Tiwari Prof. (Law). He helped

me to understand and remember important details of the project work. I am thankful to the Hon’ble

Vice Chancellor, Prof. S.K. Bhatnagar who provided me all possible resources for making of this

project. At last but not the least, I am thankful to my parents and friends who encouraged and

motivated me to make the best possible efforts for the completion of this project
DELAYED RATIFICATION :-
THE DOMESTIC FATE OF BILATERAL INVESTMENT TREATY

The above stated article is written by Yoram Z. Haftel and Alexander Thompson which tries to
give a detailed explanation on how the signing and ratification of the treaties is done in different
nations of the world and the long tedious methods followed in some of the countries while in other
countries it is ratified comparatively with a lot of ease. The writers of this article have given five
points on which the speedy or late ratification of a treaty is based and it can be used as a scale to
measure it. The above article has also emphasized on BILATERAL INVESTMENT TREATIES
(BIT’S). The writer has also discussed the major drawbacks of the international investment treaties
and how the member state become a signatory to the treaties but these treaties are never ratified
back in home for example the Kyoto protocol on climate change was signed by more than hundred
states after required negotiations and concluded in 1997 but many nations took a lot of time in
ratifying the treaty and it did not come in to force until 2005. Also, after Maastricht treaty was
signed by the European government in 1992 ratification problems in France , UK and Denmark
imperiled and delayed its entry into force. On the other hand the BIT’S are signed between two
nations and are east to get ratified and hence getting implemented.

The procedure involved in treaty ratification is that first they are negotiated at the international
level , then signed by leaders and the ratified through a procedure that roots the obligation in
domestic law. The ratification of a treaty is also important because it is doubtful whether legal
obligations can serve a commitment function if they are not ratified.

1
“The added credibility from ratification explains why some capital exporting states require the
existence of a BIT in force as a condition for protection under national investment insurance
scheme.2” Moreover the investor state dispute settlement mechanism established in almost all BITs

1
Dolzer and Stevens 1995,12-13
2
Franck2007
an increasingly popular and valuable tool for companies seeking redress from host governments
can be implemented only in case of mutual ratification.”

In the article given above the writers have discussed five points which can be used as scale to
measure the amount of difficulty or with ease a treaty can be ratified which are:-

1. The more significant the formal requirements faced by an executive , the more difficult the
ratification is to be achieved .
Through this point the writers have tried to introduce the hindrances which an executive
faces in their domestic institutions which generally are the legislative hindrance that the
executive faces for ex. 3“The European union and international trade agreements shows
that variations in these procedures has an important influence on ratification outcomes.”
Also the comprehensive test ban treaty was very popular in united states thus president
Bill Clinton signed it in 1996 but he was unable to find the amount of votes necessary to
in the republican controlled senate to achieve ratification.
In some countries , no legislative approval is required and whereas in some countries it
must be achieved only in one house and in others in two houses which turns out to be a
very rigid procedure.

2. The more politically constrained the executive at the domestic level, the more difficult
ratification is to achieve.

The second point goes beyond formal ratification and explores the wide range of political
constrains faced by the executive in treaty ratification. Through this point the writer wants
to give a glimpse of the bad politics that the executive might face back at home for example
Barack Obama’s effort to get senate ratification of the New START arms control treaty
with Russia were held up by the oppositions due to broad political propaganda. The role
of the opposition who are the veto players takes on more importance when there preference
does not match with the government in power.

3
See Hug and Konig 2002; and Pahre 2008
3. The more open and predictable the political system , the easier ratification is to achieve.

When both the parties can anticipate the positive intentions of their counterparts they ratify
the treaty with a lot of ease and without any intentional delay and hence the
implementation of the treaty is rather quick, but in some cases where the leaders predict
some domestic problems to international agreements they might not give their assent to
the treaty. In short it can be said that executive faces a high level of uncertainty regarding
the preferences of other domestic leaders mainly legislature. Such uncertainty is a by
product of a political system that lacks transparency at its root or where institutions are
unstable and produce results which can not be predicted easily.
Democracies tend to supply more information about the position and policies of the elected
leaders also it has been found that law making procedure in democracies is highly
transparent and hence slow , it is also due to the high liberty given to the media and press
which constitutes a very essential part of a healthy democracy.

4. The greater the government capacity, the easier ratification is to achieve.

Through this point the writer wants to explain that the government should know about
their capacity to judge the obstacles that they might face in their country and they should
we well prepared to face them and overcome them for the treaty ratification. The writer
also suggests the governments that rather than being preoccupied with more basic tasks
such as finding potential partners and learning technical details they should focus on to
increase their capacity to reduce the risk of signing BITs that face ratification problems.
Larger economies have more physical and human resources at their diposal this facilitates
to collect the the information . the capacity can also be measured through GDP which is
a natural logarithm .
5. Greater political and cultural affinity in a pair of states make ratification easier to
achieve.
The last point that the author has used to measure the overall compatibility between two
states planning to ratify a treaty and also can enhance or diminish political obstacles to
ratification is the cultural and social affinity between the two states according to the article
social and historical affinities reduce cultural distance and enhance mutual understanding
between the two countries it has been brought to the knowledge of the raders that
executives are likely to wrongly interpret the policy and conditions of a stated which are
more culturally distant and the opposition parties back home are less likely to have a
detailed knowledge about their counterparts and tend to judge them on broader cultural
and political cues.
To scrutinize H5 dyad level variables have been used where two measures have been used
which are cultural affinity or distance which has been designed to capture the level of
mutual understanding of the society and politics of the other state we have been also told
that shared language reduces the risk of ratification getting postponed due to legal
uncertainty. Also similar colonial heritage turns out to be a great promoter for cooperation
between the two states as the legal systems in the two states are similar.
CONCLUSION
The study of BIT ratification shows us clearly that politically interesting situations are there when
it comes to signing of a treaty at the international level and the getting it ratified at the domestic
level. Our study also helps us to conclude that political and cultural affinity for example increases
investment flows and the prospensity of dyads to sign BITs. We also get to know that common
law countries are less attracted to BITs but quickly ratify them once they are signed and
democracies are not that attractive as BIT partners even though they are more reliable ratifiers
weak checks and and balances at domestic levels has been a major motivation for seeking a
credible commitments through BITs. As there is an increase in in the controversies relating to the
BITs especially in the developing world we could see longer ratification delays in the near future.
All of this is a clear indication for the people who are interested in studying politics, economics
and law of BITs show learn how to make an analytical distinction between signature and
ratification.

It seems that the international politics and international law literatures have not taken the critical
role of ratification seriously and it remains poorly understood by the diaspora inspite of the major
role it plays for treaties structuring international cooperation. Politics of treaty ratification has been
explored in this article in context BITs which continues to be a primary means of regulating FDI.
While some BITs are signed and then ratified quickly by bot the sides others take years to be
ratified or never enter into force at all.

While a lot of topics have been covered in this article about treaty ratification and BITs a
considerable amount of area still needs to be researched about and explored.