Lok Sabha Question No. 652 (UNSTARRED), answered on 2015-12-02
Subject: Negotiating Political Ttreaties
Ministry: EXTERNAL AFFAIRS
Asked by: KUNWAR HARIBANSH SINGH, SUDHEER GUPTA, SUNIL BALIRAM GAIKWAD, NARANBHAI KACHHADIA, BIDYUT BARAN MAHATO, GAJANAN CHANDRAKANT KIRTIKAR

## GOVERNMENT OF INDIA

## MINISTRY OF EXTERNAL AFFAIRS

## LOK SABHA UNSTARRED QUESTION NO.652 TO BE ANSWERED ON 02.12.2015

## NEGOTIATING POLITICAL TREATIES

## 652. KUNWAR HARIBANSH SINGH:

SHRI SUDHEER GUPTA: DR. SUNIL BALIRAM GAIKWAD: SHRI NARANBHAI KACHHADIYA: SHRI BIDYUT BARAN MAHATO: SHRI GAJANAN KIRTIKAR:

Will the Minister of EXTERNAL AFFAIRS be pleased to state:

- (a) whether  her  Ministry  is  entrusted  with  the  task  of  negotiating  all  political treaties, agreements and conventions with foreign countries;

- (b) if so, whether the Government has proper system for participation, formulation and implementation of such international agreements and if so, the details thereof;

- (c) whether there is any proposal for the creation of a new body to ensure that matters related to international treaties and agreements are formulated and implemented in a better way; and

- (d) if so, the details thereof?

## ANSWER [GEN. (DR) V. K. SINGH (RETD)]

## THE MINISTER OF STATE IN THE MINISTRY OF EXTERNAL AFFAIRS

- (a) As  per  the  Government  of  India  (Allocation  of  Business)  Rules,  1961,  the Ministry of External Affairs is entrusted with the task of negotiating and concluding all  political  treaties,  agreements  and  conventions  with  foreign  countries  and Commonwealth Countries.

- (b) In  consultation  with  the  Ministry  of  External  Affairs,  Cabinet  Secretary  had issued guidelines in 2007 for concluding International Treaties/Agreements with the foreign countries. Copy of guidelines is annexed for reference.

- (c) There is no proposal for the creation of a new body.

- (d) Does not arise.

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## GUIDELINES FOR CONCLUDING INTERNATIONAL TREATIES BETWEEN INDIA AND FOREIGN COUNTRIES

Detailed  guidelines  regarding  negotiation,  conclusion,  signature  and  ratification/accession  of treaties  (which  includes  treaties,  agreements,  MOUs,  Protocols,  agreements  by  exchange  of  letters, etc.) are set out below.

## A. Negotiation:

Delegations  to  an  international  conference  at  which  negotiation  of  an  agreement,  treaty  or convention  takes  place  may  be  required  to  produce  credentials  signed  by  the  Minister  for  External Affairs. These credentials constitute the authority to participate in the negotiations as representatives of the Government of India, and to initial the agreement or treaty at the conclusion of the negotiations. The  purpose  of  initialing  is  to  confirm  the  text  of  the  agreement  or  treaty  so  concluded.      The credentials will be obtained by the UNES Division of the Ministry.

In case of bilateral negotiations, no formal credentials are required. However, the schedule of negotiations,  and  the  composition  of  delegations  must  be  finalized  and  conveyed  through  the concerned Territorial Division of the Ministry of External Affairs.

## B. Required Approvals:

According to the Transaction of Business Rules, all international agreements or treaties require Cabinet Approval before they are signed and ratified, except those which are specifically exempted.

Before any agreement/treaty/MoU, etc. is put up for approval of the Cabinet for signing and ratification,  the  text  of  the  treaty  should  be  cleared  by  Ministry  of  External  Affairs  from  legal  and drafting angle by the Legal and Treaties Division and by the concerned Territorial Division from the political angle. The draft note for Cabinet circulated by the Administrative Ministry should also be sent for  the  Ministry's  clearance  and  the  note  should  indicate  such  clearance.  The  Legal  and  Treaties Division must also be consulted during the negotiations for advice and guidance on the legal aspects.

## C. Exceptions to seeking Cabinet Approval:

According to Rule 7 of the Second Schedule of the Transaction of Business Rules, 1961, Cabinet approval is not required in  case of the following bilateral agreements/MoUs, which may be signed and ratified with the approval of the Minister for External Affairs and the Minister in charge of the subjectmatter and later circulated to the Cabinet for information:

- (a) Cultural Agreements and Agreements on Science and Technology;
- (b) Foreign  Aid  Agreements  and  Commercial  Agreements  which  are  within  the  broad framework already approved by the Cabinet.

## D. Full Powers:

Once the prescribed approvals are obtained, the person authorized to sign the treaty/agreement on behalf of India requires to be invested with the necessary 'Full Powers' to sign the  said  treaty  or  agreement.    The  Legal  and  Treaties  Division  prepares  the  instruments  of  'Full Powers'  for  signature  of  the  President  of  India  under  which  the  person  specifically  named  in  the instrument is authorized to sign the treaty on behalf of India.

## E. When are Full Powers required?

Based on the international law and practice relating to treaties, the following procedure is being followed:

1. President, Prime Minister and Minister for External Affairs do not require Full Powers.
2. Ambassadors/High Commissioners may adopt/initial MoUs or Agreements with the country to which they are accredited.
3. Full Powers are not required when Agreements are signed in the presence of President or Prime Minister during high level visits.
4. In  all  other  cases,  Full  Powers  are  required  for  signing  international  agreements/treaties with foreign countries.

## F. Entry into force:

A treaty enters into force in accordance with the requirements stipulated in its provisions. If so provided,  a  treaty  may  enter  into  force  on  signature.  In  other  cases,  it  may  require  ratification. Multilateral  treaties  may  enter  into  force  through  signature  followed  by  ratification  or  through accession.

## G. Ratification:

The instruments of ratification or accession are prepared by the Legal and Treaties Division and put up for the President's signature.

In case of a bilateral treaty, the Instruments of Ratification become effective only after they are exchanged, which may be done through the concerned Territorial Division. In case of a multilateral treaty, the instrument of ratification is to be deposited with the depositary to the treaty.

In view of the above, all Ministries and Departments of the Government of India are requested to adhere to the following procedures:

1. The concurrence of the Ministry of External Affairs from political and legal angles must be obtained in case of all treaties and agreements, etc.
2. The Legal and Treaties Division must be consulted during the negotiations for advice and guidance on the legal aspects.
3. Proposals  for  seeking  Cabinet  approval  for  signing  and  ratification/accession  of  treaties must be sent to the Ministry of External Affairs for approval/concurrence from the political and legal angles.
4. Requests for obtaining Instruments of Full Powers, Ratification or Accession must be sent to the Legal and Treaties Division along with copies of the required approvals.
5. Requests for credentials for participation in international conferences should be sent to the UNES Division.
6. In case of bilateral negotiations, all correspondence regarding the scheduling of negotiations,  composition  of  delegations,  dates  of  signing,  exchange  of  ratifications,  etc. should be forwarded through the concerned Territorial Division.
7. The Territorial Division and the Legal and Treaties Division must be kept informed of all treaty actions, such as signature, ratification and entry into force, and certified copies of all treaties may also be sent for their reference and record.

[Should any clarification be required on the above guidelines, it could be sought from Joint Secretary (L&T), Ministry of External Affairs (Tel: 23381839; Fax: 23389724)]

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