|
 What
are Conventions?
Conventions are specific forms of treaties which can be bilateral (between
two countries) or multilateral (between more than two countries). If done under
the auspices of the United Nations, Covenants and Conventions are first adopted
by resolution by the General Assembly and then opened for both signature and
ratification. All treaties entered into by member states to the UN are registered
with the UN secretariat. The term "convention" can have both a generic
and a specific meaning.
(a) Convention as a generic term: Art.38 (1) (a) of the Statute of the International
Court of Justice refers to "international conventions, whether general
or particular" as a source of law, apart from international customary
rules and general principles of international law and - as a secondary source
- judicial decisions and the teachings of the most highly qualified publicists.
This generic use of the term "convention" embraces all international
agreements, in the same way as does the generic term "treaty". Black
letter law is also regularly referred to as "conventional law", in
order to distinguish it from the other sources of international law, such as
customary law or the general principles of international law. The generic term "convention" thus
is synonymous with the generic term "treaty".
(b) Convention as a specific term: Whereas in the last century the term "convention" was
regularly employed for bilateral agreements, it now is generally used for formal
multilateral treaties with a broad number of parties. Conventions are normally
open for participation by the international community as a whole, or by a large
number of states. Usually the instruments negotiated under the auspices of
an international organization are entitled conventions (e.g. Convention on
Biological Diversity of 1992, United Nations Convention on the Law of the Sea
of 1982, Vienna Convention on the Law of Treaties of 1969). The same holds
true for instruments adopted by an organ of an international organization (e.g.
the 1951 ILO Convention concerning Equal Remuneration for Men and Women Workers
for Work of Equal Value, adopted by the International Labour Conference or
the 1989 Convention on the Rights of the Child, adopted by the General Assembly
of the UN).
What is a Treaty?
The term "treaty" can be used as a common generic term or as a particular
term which indicates an instrument with certain characteristics.
(a) Treaty as a generic term: The term "treaty" has regularly been
used as a generic term embracing all instruments binding at international law
concluded between international entities, regardless of their formal designation.
Both the 1969 Vienna Convention and the 1986 Vienna Convention confirm this
generic use of the term "treaty". The 1969 Vienna Convention defines
a treaty as "an international agreement concluded between States in written
form and governed by international law, whether embodied in a single instrument
or in two or more related instruments and whatever its particular designation".
The 1986 Vienna Convention extends the definition of treaties to include international
agreements involving international organizations as parties. In order to speak
of a "treaty" in the generic sense, an instrument has to meet various
criteria. First of all, it has to be a binding instrument, which means that
the contracting parties intended to create legal rights and duties. Secondly,
the instrument must be concluded by states or international organizations with
treaty-making power. Thirdly, it has to be governed by international law. Finally
the engagement has to be in writing. Even before the 1969 Vienna Convention
on the Law of Treaties, the word "treaty" in its generic sense had
been generally reserved for engagements concluded in written form.
(b) Treaty as a specific term: There are no consistent rules when state practice
employs the terms "treaty" as a title for an international instrument.
Usually the term "treaty" is reserved for matters of some gravity
that require more solemn agreements. Their signatures are usually sealed and
they normally require ratification. Typical examples of international instruments
designated as "treaties" are Peace Treaties, Border Treaties, Delimitation
Treaties, Extradition Treaties and Treaties of Friendship, Commerce and Cooperation.
The use of the term "treaty" for international instruments has considerably
declined in the last decades in favor of other terms.
What
is an Agreement?
The term "agreement" can have a generic and a specific meaning. It
also has acquired a special meaning in the law of regional economic integration.
(a) Agreement as a generic term: The 1969 Vienna Convention on the Law of Treaties
employs the term "international agreement" in its broadest sense.
On the one hand, it defines treaties as "international agreements" with
certain characteristics. On the other hand, it employs the term "international
agreements" for instruments, which do not meet its definition of "treaty".
Its Art.3 refers also to "international agreements not in written form".
Although such oral agreements may be rare, they can have the same binding force
as treaties, depending on the intention of the parties. An example of an oral
agreement might be a promise made by the Minister of Foreign Affairs of one
State to his counterpart of another State. The term "international agreement" in
its generic sense consequently embraces the widest range of international instruments.
(b) Agreement as a particular term: "Agreements" are usually less
formal and deal with a narrower range of subject-matter than "treaties".
There is a general tendency to apply the term "agreement" to bilateral
or restricted multilateral treaties. It is employed especially for instruments
of a technical or administrative character, which are signed by the representatives
of government departments, but are not subject to ratification. Typical agreements
deal with matters of economic, cultural, scientific and technical cooperation.
Agreements also frequently deal with financial matters, such as avoidance of
double taxation, investment guarantees or financial assistance. The UN and
other international organizations regularly conclude agreements with the host
country to an international conference or to a session of a representative
organ of the Organization. Especially in international economic law, the term "agreement" is
also used as a title for broad multilateral agreements (e.g. the commodity
agreements). The use of the term "agreement" slowly developed in
the first decades of this century. Nowadays by far the majority of international
instruments are designated as agreements.
(c) Agreements in regional integration schemes: Regional integration schemes
are based on general framework treaties with constitutional character. International
instruments which amend this framework at a later stage (e.g. accessions, revisions)
are also designated as "treaties". Instruments that are concluded
within the framework of the constitutional treaty or by the organs of the regional
organization are usually referred to as "agreements", in order to
distinguish them from the constitutional treaty. For example, whereas the Treaty
of Rome of 1957 serves as a quasi-constitution of the European Community, treaties
concluded by the EC with other nations are usually designated as agreements.
Also, the Latin American Integration Association (LAIA) was established by
the Treaty of Montevideo of 1980, but the subregional instruments entered into
under its framework are called agreements.
What
is a Protocol?
The term "protocol" is used for agreements less formal than those
entitled "treaty" or "convention". The term could be used
to cover the following kinds of instruments:
(a) A Protocol of Signature is an instrument subsidiary to a treaty, and drawn
up by the same parties. Such a Protocol deals with ancillary matters such as
the interpretation of particular clauses of the treaty, those formal clauses
not inserted in the treaty, or the regulation of technical matters. Ratification
of the treaty will normally ipso facto involve ratification of such a Protocol.
(b) An Optional Protocol to a Treaty is an instrument that establishes additional
rights and obligations to a treaty. It is usually adopted on the same day,
but is of independent character and subject to independent ratification. Such
protocols enable certain parties of the treaty to establish among themselves
a framework of obligations which reach further than the general treaty and
to which not all parties of the general treaty consent, creating a "two-tier
system". The Optional Protocol to the International Covenant on Civil
and Political Rights of 1966 is a well-known example.
(c) A Protocol based on a Framework Treaty is an instrument with specific substantive
obligations that implements the general objectives of a previous framework
or umbrella convention. Such protocols ensure a more simplified and accelerated
treaty-making process and have been used particularly in the field of international
environmental law. An example is the 1987 Montreal Protocol on Substances that
Deplete the Ozone Layer adopted on the basis of Arts.2 and 8 of the 1985 Vienna
Convention for the Protection of the Ozone Layer.
(d) A Protocol to amend is an instrument that contains provisions that amend
one or various former treaties, such as the Protocol of 1946 amending the Agreements,
Conventions and Protocols on Narcotic Drugs.
(e) A Protocol as a supplementary treaty is an instrument which contains supplementary
provisions to a previous treaty, e.g. the 1967 Protocol relating to the Status
of Refugees to the 1951 Convention relating to the Status of Refugees.
(f) A Proces-Verbal is an instrument that contains a record of certain understandings
arrived at by the contracting parties.
What
is an Amendment?
The term "amendment" refers to the formal alteration of treaty provisions
affecting all the parties to the particular agreement. Such alterations must
be effected with the same formalities that attended the original formation
of the treaty. Many multilateral treaties lay down specific requirements to
be satisfied for amendments to be adopted. In the absence of such provisions,
amendments require the consent of all the parties. [Art.40, Vienna Convention
of the Law of Treaties 1969]
What
is “MUELEX”?
“MUELEX” is
the Mauritian web-based Database, which provides information
on environmental law and policies to enhance public participation
in decision-making for sustainable environment and natural
resources management. The Database targets the public, legal
practitioners, public interest litigation; government officials,
the civil society, the academia, magistrates and judges that
will need readily available information for informed decision-making.
Who
can contribute to the website?
Decision-makers
in the Executive arm of Government including technical personnel
and regulators, Judiciary, Legislators, Legal Practitioners
(State Attorneys and Advocates), Academia and Researchers,
and Public are welcome to provide information, suggestions
and comments to the Webmaster. These can be forwarded by
clicking on the link “website queries to webmaster” at
the end of the website page.
Who
runs “MUELEX”?
“MUELEX” has
been implemented by the Ministry of Environment and NDU with
collaboration of the Attorney General's Office and the Ministry
of Information Technology and Telecommunications (Central
Information Systems Division [CISD] & Central Informatics
Bureau [CIB]).
“
MUELEX” was designed by CISD & hosted by the National
Computer Board
What
is environmental law?
Environmental Law are statutes intended to protect the environment,
wildlife, land, beauty, prevent pollution, over-cutting of
forests, save endangered species, conserve water, develop and
follow general plans and prevent damaging practices. These
laws often give individuals and groups the right to bring legal
actions or seek court orders to enforce the protections or
demand revisions of private and public activity which may have
detrimental effects on the environment.
How
do I find information?
The “MUELEX” is
a searchable database that displays information in short
summaries and/or full text. Users may opt to use the summaries
(Abstracts) or full text presented in printable "pdf" format/word
document or redirected to appropriate links. The search on
the database is guided by subjects or keywords.
What
documents can be found in “MUELEX”?
In “MUELEX” the
following information can be obtained: Legislations, MEAs,
policies/ action plans, environmental reports, Parliamentary
Questions related to environment, Case Laws, amongst others.
These information may be displayed as a summary or as a full
text (word document or printable “pdf” format).
Who
manages the database?
The CISD and the Ministry of Environment & NDU manage the database.
How
should I create links to “MUELEX”?
Click on the Contact
Us Link, give a brief description of your website
and how it could
be useful for visitors of MUELEX and provide your website
address. Needful will be done as appropriate.
How
a Bill becomes law?
A Bill is
a draft piece of legislation embodying:
1. The policy of the Government
2. The idea of a Government backbencher, i.e. one who belongs to the party
in power but who is not a Minister
3. The needs of a private company or public corporation
4. The recommendations of senior government officials.
Bills can be either Public Bills or Private
Bills. Public Bills relate to matters of public policy and
are concerned with the national interest. Private Bills,
on the other hand are concerned with particular interests
or benefits of any person or persons, association or corporate
body. It shall not be introduced except in pursuant of a
petition from the parties interested in promoting it.
A Private Member Bill is
a Public Bill which is initiated by a Member of the Legislative
Assembly, who is not a Minister, provided that the Assembly
has granted leave to proceed with the Bill.
Thus, while both Public Bills and Private
Members’ Bills are concerned with matters of national
interests, Private Bills deal with particularistic interests.
PROCEDURE IN PARLIAMENT
FIRST READING
This is purely formal, the Minister in charge
moves that the Bill be read for the 1st time, whereby the
Clerk of the Legislative Assembly reads the short title of
the Bill. No debate takes place and no vote is taken at this
stage.
Unless notice is given by the mover of the Bill that it is intended to proceed
with the 2nd Reading on the same day, an interval of 7 clear days must elapse
before the 2nd Reading is taken.
SECOND READING
This is the most important stage through
which a Bill must pass. After a motion has been made by the
Minister, that the Bill is now read for the 2nd time, a general
debate on the philosophy, the broad principles and the general
merits of the Bill follows.
If it is controversial, the Opposition would
talk against the general principles of the Bill while members
of the government would defend the Bill. The debate may be
fairly long and the Speaker would provide adequate time for
all minorities to express themselves.
The Opposition can give notice during the
2nd Reading debate of an amendment it proposes to move at
the Committee stage. However, no amendments of the clause
is possible during the 2nd Reading debates.
At the end of the 2nd Reading Debate, a vote is taken and if successful the
Bill stands committed as is 99% of the case.
The committee presents a report to the Assembly
explaining its recommendations and a copy of the Bill so
amended is distributed to every member of the Assembly.
COMMITTEE STAGE
Bills committed to a Committee of the whole
Assembly are usually taken in Committee at the same sitting
as that during which the 2nd reading has taken place.
It is at the Committee Stage that the details
of the Bill are discussed. The Bill is analyzed clause by
clause, line by line and even word by word. Certain clauses
may be amended or deleted and new clauses may be added on
to the Bill.
During the Committee Stage, it is the lawyers
on both sides of the House who play a prominent part.
THIRD READING
The purpose of the 3rd Reading is to review
the Bill in its final form after the amendments that have
been made and accepted at the Committee Stage. Generally,
there is no debate during the 3rd Reading of a Bill.
A simple majority of Members present and
voting at the end of the 2nd Reading Debate is required to
pass an ordinary piece of legislation
THE PRESIDENT OF THE REPUBLIC’S
ASSENT
After its 3rd Reading, the Bill is sent
for the assent of the President of the Republic. The President
acts in accordance with the advice of the Prime Minister
and the Cabinet. He will accordingly give his assent to Bills
which have been duly passed by the Legislative Assembly.
DATE OF OPERATION
According to section 46(3) of the Constitution
of Mauritius, when the President has assented to a Bill,
it becomes the Law of the land. The President must cause
the Bill to be published in the Government Gazette and it
is only after publication in the Gazette that the Law becomes
effective. However, Parliament can postpone the coming into
operation of a law to a future date or may make laws with
retroactive effect. All laws made by Parliament are styled “Acts
of Parliament”
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