Democratizing Foreign Policy: Parliamentary Oversight of Treaty Ratification in Pakistan
- For policymakers
- Summary created: 2024
This paper critically examines the Ratification of Foreign Agreements by Parliament Bill once debated in the Pakistan’s Senate. It emphasises the need for stronger parliamentary oversight in treaty ratification and withdrawal processes, arguing that such oversight is essential for ensuring the democratic legitimacy and accountability of foreign agreements.
Pakistan’s treaty-making process has long been dominated by the executive, with no formal laws governing the negotiation or ratification of treaties. This absence of parliamentary involvement contrasts with international practices in countries such as Australia, Kenya, and the UK, where parliamentary oversight enhances democratic legitimacy. Given the potential political, economic, and rights implications of foreign agreements, parliamentary approval in Pakistan is essential.
The Bill’s broad scope, covering all foreign agreements, is assessed through a comparative lens, offering recommendations for improvement. These include procedures for treaty withdrawal and enhanced parliamentary scrutiny in the ratification phase to safeguard Pakistan’s legal and political frameworks and avoid long-term commitments that risk national sovereignty.
Key findings
Pakistan’s current treaty-making process is dominated by the executive with little to no parliamentary involvement.
Evidence
Since independence, treaty-making powers have rested with the government, with no formal legal requirement for parliamentary oversight. A 1951 submission to the UN noted the lack of laws or regulations governing the negotiation and conclusion of treaties in Pakistan. This practice continues, relying on custom rather than legislative scrutiny.
What it means
This executive-driven process creates a democratic deficit in treaty-making, contrasting with international norms where parliamentary oversight ensures transparency and accountability.
The Bill proposed parliamentary oversight for all foreign agreements, though some technical or minor agreements may not require such scrutiny.
Evidence
The Bill required parliamentary ratification of all foreign agreements, without distinguishing between agreements of major significance and minor technical agreements. Certain agreements "of non-political character or minor importance" should be handled by the executive without needing full parliamentary approval.
What it means
A one-size-fits-all approach to parliamentary oversight may be impractical and could hinder executive efficiency. Differentiating the level of scrutiny based on the agreement’s importance would streamline the process.
International best practices emphasise parliamentary approval before ratification by the executive, not parliamentary ratification itself.
Evidence
In the UK, for example, the Ponsonby Rule allows Parliament to scrutinise treaties but leaves final ratification with the executive, unless Parliament disapproves. The paper suggests adopting this model, replacing "ratification" with "approval" to align the Bill with international standards.
What it means
This shift would preserve executive flexibility in foreign relations while ensuring democratic oversight, avoiding potential delays in treaty execution.
The Bill did not address treaty withdrawals, though parliamentary approval for withdrawal is logically necessary for consistency with ratification procedures.
Evidence
The Bill lacked provisions for parliamentary oversight of treaty withdrawals, despite the significant legal and political implications. The UK's withdrawal from the EU, which required parliamentary consent, is cited as an example. The paper argues that withdrawal from treaties should follow the same process as ratification to ensure democratic legitimacy.
What it means
To ensure consistent oversight and accountability, the Bill should require parliamentary approval for treaty withdrawals, safeguarding against unilateral executive actions.
The Bill’s definition of "foreign agreements" was broader than international norms, covering agreements with non-state actors like banks and donor agencies.
Evidence
The Bill’s definition included agreements with foreign governments, banks, donors, and lending agencies, which expands beyond the Vienna Convention’s narrower definition of treaties as state-to-state agreements governed by international law.
What it means
This broader scope is more suited to Pakistan’s needs, where many agreements involve non-governmental actors and should be subject to parliamentary oversight.
Proposed action
Differentiate treaty types to streamline oversight, exempting technical or minor agreements from full parliamentary scrutiny.
Shift from parliamentary 'ratification' to 'approval' before executive ratification.
Require parliamentary approval for treaty withdrawals.
Introduce guiding principles for treaty negotiations to ensure alignment with national interests and constitutional values.
Establish a Registrar of Treaties to maintain a comprehensive record of ratified treaties.
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