JDIH - Biro Hukum Bappenas DRAFTING TREATY
PRACTICAL ASPECT OF TREATY
MAKING PROCESS
Abdulkadir Jailani
Direktur Perjanjian Ekososbud
OUTLINE
STEPS
BASIC PROVISIONS
TITLE
PREAMBLE
DEFINITIONS
OPERATIONAL PROVISIONS
FINAL PROVISIONS
TITLE
PREAMBLE
DEFINITIONS
• A DEFINITION SHOULD BE DRAWN FOR A PARTICULAR
TERM IF THE CONCEPTUAL UNDERTSTANDING OF THE
TERM WOULD BE OPERATIONALLY IMPORTANT TO THE
APPLICATION OF THE TREATY
• IT SHOULD BE REPEATEDLY REFERRED IN THE TEXT
• NOT ONLY DOES A DEFINITION ESTABLISH A MEANING
OF SOMETHING, BUT IT ALSO DETERMINES WHETHER
SOMETHING FALLS WITHIN A PARTICULAR CONCEPT
OPERATIONAL PROVISIONS
• AREAS / SCOPES OF COOPERATION
• FORMS OF COOPERATION
• RIGHTS AND OBLIGATIONS
• DETAILED ARRANGEMENT
FINAL PROVISIONS
• SETTLEMENT OF DISPUTES (NEGOTIATION /
CONSULTATION / INTERNATIONAL COURT OF JUSTICE /
ARBITRATION OR OTHER SPECIFIC MODE OF
SETTLEMENT
• AMENDMENT (MUTUAL WRITTEN CONSENT /
CONSTITUTE AS INTEGRAL PART / ENTRY INTO FORCE)
FINAL PROVISIONS
• ENTRY INTO FORCE (UPON SIGNATURE /
RATIFICATION / OTHER AGREED PROCEDURES)
• DURATION (INDEFINITE / SPECIFIC PERIOD OF TIME /
AUTOMATIC EXTENSION / EXTENSION THROUGH
EXCHANGE OF NOTE)
• TERMINATION (AT ANY TIME / PRIOR NOTICE /
TRANSITIONAL APPLICATION OR ARRANGEMENT)
FINAL PROVISIONS
TESTIMONIUM
•
In WITNESS whereof, the undersigned, [being duly authorized
thereto by their respective Governments], have signed this ………
• DONE in duplicate at [place] on the [date] day of [month] in the year
of [year], in Indonesia*), [other Party’ s national language], English
languages, all text are being equally authentic. In case of any
divergence of interpretation the [agreed language, usually
English] language shall prevail.
*) Sesuai Pasal 31 UU No. 24 Tahun 2009 tentang Bendera, Bahasa
dan Lambang Negara, serta Lagu Kebangsaan, bahasa Indonesia
wajib digunakan
PRACTICAL TIPS
• Prepare an outline on the basis of the TOR, if any
• a single principle of division and use that principle to divide the
subject matter into major topics.
• Use commonly used technical terms relevant to the subject of
the agreement
• Don’t use diifferent words to denote the same things / same
words to denote different things
• Use simple sentence and active voice
• Maintain coherence and consistency of all provisions
• Ensure all provisions are legally sound
DRAFTING PROBLEMS
1. NO DOGS MUST BE BROUGHT TO THIS PARK EXCEPT
ON A LEAD
2. DOGS ARE NOT ALLOWED IN THIS PARK WITHOUT
LEAD
3. OWNER OF DOGS ARE NOT ALLOWED IN THIS PARK
UNLESS THEY KEEP THEM ON LEADS
4. NOBODY WITHOUT HIS DOG ON LEADS IS ALLOWED IN
THIS PARK
5. DOGS MUST BE LED IN THIS PARK
6. ALL DOGS IN THIS PARK MUST BE KEPT ON THE LEAD
•
Capacity Building means programmes, activities and aids aimed
to improve product and services competitiveness, labor skills,
institutions capabilities, and investment climate in order to
achieve market access enhancement of both Parties. Should it
be built on the existing capacity building, it shall be
additional to the existing capacity building between the
Parties.
•
Capacity Building Commitment means infrastructural
commitment in the form of any tangible or any physical
requirements and non-infrastructural commitment in the
form of any non-tangible capacity building supports
Goals and Objectives
This MOU is entered into to collaborate on the
Improved Contraceptive Method Mix and ensure that it
meets the goals and objectives outlined by the
Sponsors and the Government of the Republic of
Indonesia
This MoU shall serve as a framework for cooperation
on the Improved Contraceptive Method Mix which aims
at achieving targets as provided for in Article……
With respect to any invention, discovery, copyright
work, software or other intellectual property that is
created or conceived of under any this MOU, unless
otherwise agreed to, all rights, tittle to, and interest
in any intellectual property that is created under
this MoU shall be jointly owned by both Parties
Unless agreed otherwise, any intellectual
proper
rights arising from activities under this MoU shall
be jointly owned by both Parties
Article 6.2 ASEAN CHARTER
Admission of New Members
Admission shall be based on the following criteria:
a.Location in the recognized geographical region of
Southeast Asia;
b.Recognition by All ASEAN Member States;
c.Agreement to be bound and to abide by the Charter;
d.Ability and willingness to carry out the obligations
of Membership
Article 5.3 ASEAN CHARTER
In case of a serious breach of the Charter or non-compliance, the
matter shall be referred to Article 20
Article 20.4
In case of a serious breach of the Charter of non-compliance, the
matter shall be referred to the ASEAN Summit for decision
Article 27 on Compliance
The Secretary General, assisted by the ASEC or any other
designated ASEAN Body, shall monitor the compliance with the
finding, recommendations or decision resulting from an
ASEAN dispute Settlement Mechanism, and may refer the
matter to the ASEAN Summit for A decision
Article 26 ASEAN Charter
When a dispute remains unresolved after the application
of the preceding provisions of this Chapter, this dispute shall
be referred to the ASEAN Summit, for its decision.
Article 51 ASEAN Charter
Upon request of any Member State, the interpretation of
the
Charter
shall
be
undertaken
by
the
ASEAN
Secretariat in accordance with the rules of procedure
determined by ASEAN Coordinating Council
LATIHAN:
Negara – negara ASEAN sedang merundingkan suatu klausula
penyelesian sengketa sebuah Konvensi mengenai lingkungan
hidup. Mereka sepakat bahwa sengketa yang berkaitan dengan
penafsiran dan penerapan Konvesi tersebut akan dibawah ke
forum pengadilan internasional, yaitu International Court of
Justice (ICJ). Namun demikian, mekanisme tersebut hanya dapat
dilakukan setelah upaya negosiasi dan mediasi tidak dapat
menyelesaikan persoalan dalam waktu 1 bulan, dan apabila
semua pihak yang bersengketa setuju untuk bersama -sama
membawa persoalan tersebut ke ICJ
Any dispute arising from the
interpretation and application of the
provisions of this Convention shall be
settled through negotiation and or
mediation. If within one month such
modes of settlement are unable to
resolve the dispute, the Parties to the
dispute may jointly refer the matter to
the International Court of Justice
MAKING PROCESS
Abdulkadir Jailani
Direktur Perjanjian Ekososbud
OUTLINE
STEPS
BASIC PROVISIONS
TITLE
PREAMBLE
DEFINITIONS
OPERATIONAL PROVISIONS
FINAL PROVISIONS
TITLE
PREAMBLE
DEFINITIONS
• A DEFINITION SHOULD BE DRAWN FOR A PARTICULAR
TERM IF THE CONCEPTUAL UNDERTSTANDING OF THE
TERM WOULD BE OPERATIONALLY IMPORTANT TO THE
APPLICATION OF THE TREATY
• IT SHOULD BE REPEATEDLY REFERRED IN THE TEXT
• NOT ONLY DOES A DEFINITION ESTABLISH A MEANING
OF SOMETHING, BUT IT ALSO DETERMINES WHETHER
SOMETHING FALLS WITHIN A PARTICULAR CONCEPT
OPERATIONAL PROVISIONS
• AREAS / SCOPES OF COOPERATION
• FORMS OF COOPERATION
• RIGHTS AND OBLIGATIONS
• DETAILED ARRANGEMENT
FINAL PROVISIONS
• SETTLEMENT OF DISPUTES (NEGOTIATION /
CONSULTATION / INTERNATIONAL COURT OF JUSTICE /
ARBITRATION OR OTHER SPECIFIC MODE OF
SETTLEMENT
• AMENDMENT (MUTUAL WRITTEN CONSENT /
CONSTITUTE AS INTEGRAL PART / ENTRY INTO FORCE)
FINAL PROVISIONS
• ENTRY INTO FORCE (UPON SIGNATURE /
RATIFICATION / OTHER AGREED PROCEDURES)
• DURATION (INDEFINITE / SPECIFIC PERIOD OF TIME /
AUTOMATIC EXTENSION / EXTENSION THROUGH
EXCHANGE OF NOTE)
• TERMINATION (AT ANY TIME / PRIOR NOTICE /
TRANSITIONAL APPLICATION OR ARRANGEMENT)
FINAL PROVISIONS
TESTIMONIUM
•
In WITNESS whereof, the undersigned, [being duly authorized
thereto by their respective Governments], have signed this ………
• DONE in duplicate at [place] on the [date] day of [month] in the year
of [year], in Indonesia*), [other Party’ s national language], English
languages, all text are being equally authentic. In case of any
divergence of interpretation the [agreed language, usually
English] language shall prevail.
*) Sesuai Pasal 31 UU No. 24 Tahun 2009 tentang Bendera, Bahasa
dan Lambang Negara, serta Lagu Kebangsaan, bahasa Indonesia
wajib digunakan
PRACTICAL TIPS
• Prepare an outline on the basis of the TOR, if any
• a single principle of division and use that principle to divide the
subject matter into major topics.
• Use commonly used technical terms relevant to the subject of
the agreement
• Don’t use diifferent words to denote the same things / same
words to denote different things
• Use simple sentence and active voice
• Maintain coherence and consistency of all provisions
• Ensure all provisions are legally sound
DRAFTING PROBLEMS
1. NO DOGS MUST BE BROUGHT TO THIS PARK EXCEPT
ON A LEAD
2. DOGS ARE NOT ALLOWED IN THIS PARK WITHOUT
LEAD
3. OWNER OF DOGS ARE NOT ALLOWED IN THIS PARK
UNLESS THEY KEEP THEM ON LEADS
4. NOBODY WITHOUT HIS DOG ON LEADS IS ALLOWED IN
THIS PARK
5. DOGS MUST BE LED IN THIS PARK
6. ALL DOGS IN THIS PARK MUST BE KEPT ON THE LEAD
•
Capacity Building means programmes, activities and aids aimed
to improve product and services competitiveness, labor skills,
institutions capabilities, and investment climate in order to
achieve market access enhancement of both Parties. Should it
be built on the existing capacity building, it shall be
additional to the existing capacity building between the
Parties.
•
Capacity Building Commitment means infrastructural
commitment in the form of any tangible or any physical
requirements and non-infrastructural commitment in the
form of any non-tangible capacity building supports
Goals and Objectives
This MOU is entered into to collaborate on the
Improved Contraceptive Method Mix and ensure that it
meets the goals and objectives outlined by the
Sponsors and the Government of the Republic of
Indonesia
This MoU shall serve as a framework for cooperation
on the Improved Contraceptive Method Mix which aims
at achieving targets as provided for in Article……
With respect to any invention, discovery, copyright
work, software or other intellectual property that is
created or conceived of under any this MOU, unless
otherwise agreed to, all rights, tittle to, and interest
in any intellectual property that is created under
this MoU shall be jointly owned by both Parties
Unless agreed otherwise, any intellectual
proper
rights arising from activities under this MoU shall
be jointly owned by both Parties
Article 6.2 ASEAN CHARTER
Admission of New Members
Admission shall be based on the following criteria:
a.Location in the recognized geographical region of
Southeast Asia;
b.Recognition by All ASEAN Member States;
c.Agreement to be bound and to abide by the Charter;
d.Ability and willingness to carry out the obligations
of Membership
Article 5.3 ASEAN CHARTER
In case of a serious breach of the Charter or non-compliance, the
matter shall be referred to Article 20
Article 20.4
In case of a serious breach of the Charter of non-compliance, the
matter shall be referred to the ASEAN Summit for decision
Article 27 on Compliance
The Secretary General, assisted by the ASEC or any other
designated ASEAN Body, shall monitor the compliance with the
finding, recommendations or decision resulting from an
ASEAN dispute Settlement Mechanism, and may refer the
matter to the ASEAN Summit for A decision
Article 26 ASEAN Charter
When a dispute remains unresolved after the application
of the preceding provisions of this Chapter, this dispute shall
be referred to the ASEAN Summit, for its decision.
Article 51 ASEAN Charter
Upon request of any Member State, the interpretation of
the
Charter
shall
be
undertaken
by
the
ASEAN
Secretariat in accordance with the rules of procedure
determined by ASEAN Coordinating Council
LATIHAN:
Negara – negara ASEAN sedang merundingkan suatu klausula
penyelesian sengketa sebuah Konvensi mengenai lingkungan
hidup. Mereka sepakat bahwa sengketa yang berkaitan dengan
penafsiran dan penerapan Konvesi tersebut akan dibawah ke
forum pengadilan internasional, yaitu International Court of
Justice (ICJ). Namun demikian, mekanisme tersebut hanya dapat
dilakukan setelah upaya negosiasi dan mediasi tidak dapat
menyelesaikan persoalan dalam waktu 1 bulan, dan apabila
semua pihak yang bersengketa setuju untuk bersama -sama
membawa persoalan tersebut ke ICJ
Any dispute arising from the
interpretation and application of the
provisions of this Convention shall be
settled through negotiation and or
mediation. If within one month such
modes of settlement are unable to
resolve the dispute, the Parties to the
dispute may jointly refer the matter to
the International Court of Justice