The National Council and the National Assembly deliberated the filing of reservation to Article 66(2) of the United Nations Convention against Corruption (UNCAC) in the joint sitting last week. The Parliament ratified UNCAC with reservation to paragraph 2 of Article 66 in 2016 with the grant of Royal Assent. However, the second Government failed to file the reservation while depositing the instrument of ratification with the Office of the Secretary General of the United Nations in accordance with international law.
After desperately failing to register the reservation and with objections from Finland and the Netherlands, the Minister of Foreign Affairs tabled the motion to revoke the reservation to Article 66 (2) during the 5th session of the third Parliament. When the two Houses of Parliament could not come to a consensus, it was put for deliberation in the joint sitting according to the constitutional norm of passing a Bill.
While the failure of the previous government and the ministry in question is apparent, what passed as discussion and resolution in the joint sitting yesterday was far more far-reaching. Certain political ideas left uncontested will have a significant bearing in the future on issues of parliamentary sovereignty, the idea of consent under international law and Bhutan’s take on International Court of Justice (ICJ). This short article will discuss and contest what transpired in the joint sitting of the Parliament while discussing reservation to the UNCAC treaty.
Reservation is a unilateral statement made by a State when ratifying or acceding to a treaty. The purpose of reservation is to exclude or modify the legal effect of certain provisions of the treaty in their application to the State making the reservation. The Vienna Convention on Law of Treaties 1969, where many of the provisions are customary international law, states that a reservation must not be incompatible with the object and purpose of the treaty. The UNCAC allows reservation to the dispute settlement clause of the treaty. A reservation to Article 66 (2) would mean that Bhutan is not bound by Article 66(2) which confers jurisdiction to the ICJ with regard to disputes concerning the interpretation and application of the Convention. Without a reservation, any State party to UNCAC can sue Bhutan before the ICJ in the event of a dispute as long as the minimal conditions stipulated in Article 66(2) are fulfilled.
While discussing the Joint Committee’s recommendation to denounce and re-accede to the Convention with reservation to Article 66 (2), members made diverse arguments, informed and uninformed. However, the government’s reasons as to why it does not support the Joint Committee’s recommendation need careful scrutiny. The Prime Minister reported some of the fundamental bases to support the revocation of the Parliament’s earlier reservation to the treaty. The arguments are that irrespective of a reservation, State Parties to UNCAC can take Bhutan to ICJ in the event of default; that the decision of ICJ is not legally binding, and it is up to the State concerned to implement it or not; and that it is time to build legal competence and capacity to navigate such international dispute settlement bodies. Such arguments and bases need proper consideration.
The jurisdiction of the ICJ is based on the principle of consent. According to jurisprudence constante of international law, no State can be compelled to accept the jurisdiction of the ICJ. The parties to any dispute have the right to resort to methods of dispute resolution of their own choice. Although the ICJ is the principal judicial organ of the United Nations, membership to the UN, and thereby as a party to the Statute of the Court, does not amount to submission to the jurisdiction of the ICJ. Specific consent is required. Allowing reservation to the compromissory clause in the UNCAC honors this time-tested principle of consent. The ICJ has invariably upheld the principle of consent in its jurisprudence. Therefore it is not true that any State Party to UNCAC can drag Bhutan to ICJ even if there is a specific reservation. When we register reservation to Article 66(2) of UNCAC, we are not consenting to the jurisdiction of ICJ. This is a fundamental and material difference between filing and not filing the said reservation.
Another fundamentally flawed idea is the argument that the decision of the Court is not binding. Article 59 of the Statute of the Court states that “[t]he decision of the Court has no binding force except between the parties and in respect of that particular case” (emphasis mine). By virtue of Article 59, the decision of the Court will have binding force between the parties, but not against third States. Simply put, Article 59 merely prevents legal principles accepted by the Court in a particular case from being binding also upon other States or in other disputes. Thus, the argument that ICJ judgment is not legally binding does not hold water. While there are issues of enforcement, and instances of non-compliance and defiance of judgment, it does not mean the nonbinding nature of ICJ decisions. It simply indicates that there are rogue States who do not follow international rules of law. Bhutan has never been one. Moreover, international law (Article 94 of the UN Charter) mandates parties before the Court comply with the decision.
Members during the joint sitting also argued that it is time for Bhutan to boldly engage in such courts and build legal competence. The premise is that as a sovereign nation we cannot shy away from it. I think this is a wrong determination and false optimism. We must not let our nation be held captive in the international courts by blindly consenting to their sovereign jurisdictions. By consenting to an international court, a State is giving its sovereign prerogative to settle disputes through methods of its own choice. Now one could say, as some politicians pointed out, that ICJ adjudicates disputes fairly and justly. In reality, it is not so true. ICJ can be politicized, albeit legally they must be independent. The best example is the recent ICJ judgment in the case between Ukraine and the Russian Federation. Further, the joint sitting also saw politicians in favor of revoking the reservation pointing out that there are many international conventions to which Bhutan had accepted the compromissory jurisdiction of the ICJ. The point is why we should not this time like we always have done. Well, the fact that we have not registered reservations in several earlier conventions is more of a reason to file a reservation this time. We cannot confer floodgates of unthought international jurisdictions where many States can sue Bhutan at any time. While international engagement is inevitable, Bhutan must seek to explore dispute resolution systems that are more appropriate and in Bhutan’s best interest.
The recommendation of the Joint Committee to denounce and re-accede to UNCAC could not get the two-thirds majority in the joint sitting. The Joint Sitting ended discussions on it and did not discuss an alternative. This is an anomaly because the failure to pass the Joint Committee’s recommendation cannot mean endorsement of revoking the reservation. Two Houses concluded very differently on the same resolution. The National Assembly wrote that the resolution of the Joint Sitting on the Convention will be submitted to the Druk Gyalpo, while the National Council not only declared the Bill a dead Bill but also wrote that the UNCAC with reservation on Article 66(2) ratified in 2015 by the Parliament is the law of the Kingdom. The National Council further stated that the government cannot continue to be a party to the UNCAC without resolving the legal anomaly pertaining to Bhutan’s reservation.
It is uncertain how the two Houses will deal with the resolution after having come to entirely different conclusions. However, it is worth noting that the National Assembly’s position is flawed in several ways. First, the Joint Sitting did not discuss and ratify an alternative. It cannot assume endorsement of revoking the reservation. Second, the House’s decision to submit it to His Majesty is tantamount to submitting all the legal anomalies and indecision to the Monarch. Parliament cannot submit empty resolutions, particularly when it is from a failure of a government. It must first rectify the mistake and solve legal anomalies before putting it for Royal Assent.
Research intern, DHI