By Melaku Mulualem
Nowadays international relations are being governed by international agreements between and among States. Treaties or Conventions are international “agreements concluded between States in written form and governed by International Law”.
According to Article 11 of the Vienna Convention on the Law of Treaties(1969) a State may express its consent to be bound by a treaty by “signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed”
In most cases, however, international treaties pass through the process of adoption, signature and subsequent ratification of the agreement. At the stage of adoption States should first agree about the importance of the convention and then open it for signature. A country that signs a treaty becomes a signatory, and a country that ratifies it becomes a State Party.
Signatory States ratify the agreement in accordance with their own constitutional provisions. This is to mean that the representative of the State first sign a treaty, and based on the constitution the parliament or the monarch or other designated body ratify it to make the treaty binding to the State. After ratification of a Convention a State will legally be obliged to apply the agreement. A non-negotiating State can express its consent to the treaty through accession, which has the same legal effect as ratification.
Having seen the above background to international agreements, I will focus on the agreements of the Heads of State and Government of African Countries in the African Union. So far the leaders have agreed on a total of forty-three agreements (treaties, conventions, protocols and charters). Of which only twenty seven agreements are ratified and entered into force. The reason of not ratifying a convention can be varied from country to country. Of course some of the ratified agreements are registered in the United Nations. I would like to argue on the non-ratified Conventions of the organization.
One of my points on the conventions of the African Union is that ratification should not be the task of the next generation. In order to concretize my argument I will mention only two of the Conventions. The “Phyto-Sanitary Convention For Africa” was adopted by the Heads of State and Government of African Countries in Kinshasa,The Democratic Republic of the Congo, on 13 September,1967. The problem of this convention is that it has no any provision relating to its entry into force. Even if this Convention is 46 years old, it has been ratified by only ten members of the organization.
Similarly the Convention called “Inter-African Convention Establishing An African Technical Co-Operation Programme” was adopted in Kampala, Uganda by leaders of African countries on 1 August,1975. Article 28 of the Convention says “The Convention shall come into force 30 days after the date of the receipt of the tenth instrument of ratification”. Since only six African countries had ratified it, this 38 years old Convention could not enter into force.
In addition to the above mentioned two old Conventions there are also other non-ratified old Conventions of the Organization. Of course almost all African leaders who adopted these old Conventions are not now in office. As a result of this situation these old Conventions are left to be ratified by the leadership of the present generation. My core argument is that the present African leadership should seek solution to them rather than to pass these old conventions to the next third generation.
According to the principle of International Law, all states have sovereign right in signing a treaty or refusing the signing of a treaty. Many of the Conventions of the African Union provide that entry into force shall take place based on the ratification of a specified number of States. My argument is that as long as the Heads of State and Government of African Countries agree on the need of a Convention and shows their interest through adoption and signature, why does the ratification of the Convention takes many decades? One can also argue that taking many decades to ratify a convention means that the convention is not so important to the signatory States.
In my opinion, if the ratification period takes longer time it may lead to the death of the treaty. It also seems an anomaly to ratify the convention which had been adopted at the time of the Organization of the African Unity in the present day African Union. To begin with the fact on the ground is changed through time, such as the Organization of African Unity (OAU) is already formally replaced by the African Union. But some non-ratified Conventions have mentioned in their preambles about the purpose of the OAU, which may not coincide with the present purpose of the African Union.
Prime Minister Hailemariam Desalegn is the current Chairperson of the African Union. In my opinion it is good to table the matter to the assembly through his chairmanship. It would be a good opportunity to solve the problem of non-ratified conventions of the organization. There are two possibilities in solving the problem. The first one is that the Assembly can cancel the adopted convention because of taking many decades to be ratified. The other possibility is to revise them through adjustment and to make it the convention of the African Union.
In my opinion all non-ratified conventions of the former organization i.e the period of the Organization of African Unity should be tabled again to the present organization (the African Union) by putting adjustments in accordance with the facts on the ground. It is good to mention that the African Union has established a forum on “International Law and African Union Law”. This forum discusses about legal issues of the African Union. Such forum can also entertain the issue of non-ratified Conventions of the African Union.
It is also good to mention here is that the Vienna Convention on the Law of Treaty doesn’t have an article that limits the life of one convention for ratification. Because of this a convention can stay for hundred years without being ratified. The funny part of this condition is that the concerned body (in the case of this article the African Union Commission) always asks the member states to ratify the very old convention again and again.
Based on the above mentioned premises I would like to argue that the Convention on the Law of Treaty should put the maximum period of ratification of an international convention. International treaties should not remain open for ratification indefinitely. If the maximum period of ratification of a convention is set internationally, member countries of any international organizations will decide to ratify a convention or to cancel it within the limited period of time.
In concluding my article I would like to say that the African Union should revisit the many-decade old non-ratified conventions. Rather than passing the task of ratification to the next third generation, the African Union should re-examine the old Conventions and provide solutions. Currently the African Union is trying to find African solutions to African problems. The AU Commission has disclosed the fact that it will receive “inputs informing Agenda 2063 until November 2013. The Agenda will be tabled for adoption and subsequent implementation in June 2014”. I believe that the organization will give attention to the issue of the old non-ratified Conventions in the African Union. I hope my recommendation on the subject will be considered by the organization.