Frequently Asked Questions

What is a Treaty?

A Treaty means 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 and includes a convention. What is the difference betweena bilateral, a multilateraland a plurilateral Treaty? A bilateral Treaty is an agreement between two States.A multilateral is an agreement between several States. A plurilateral Treaty is a special kind of multilateral Treaty with a narrower/limited number of signatories. Here,States come together in small groups to negotiate a mutual issue outside multilateral frameworks.

What is an Agreement?

The term “Agreement” has the same meaning as Treaty. “Treaty” means an international agreement concluded between international entities (States and/or Organizations). A Treaty must be, (1) a binding instrument which creates rights and obligations; (2) governed by international law; and (3) in writing, whether embodied in a single instrument or in two or more related instruments. The term Treaty includes: accord, convention, covenant, charter, protocol, and pact.

What is a contracting party?

A contracting party is a State or an Intergovernmental Organization or other entity with Treaty making capacity that has expressed its consent to be bound by a Treaty whether or not the Treaty has entered into force or whether or not it has entered into force for that State or Intergovernmental Organization.

What is Signature?

Signature means an act whereby the State expresses its willingness to consent to the text of a Treaty and has the effect of obligating the said State, even though it may not be a party to the Treaty, to refrain, in good faith, from acts that would defeat the object and purpose of the Treaty.

What is Ratification?

Ratification means the international act by which the State signifies its consent to be bound by a Treaty and includes acceptance, approval and accession where the Treaty so provides.

What is Accession?

This is the procedure by which a Nation becomes a party to an Agreement already in force between other Nations.

What are Full Powers?

Full powers are all those powers conferred, by way of a legal document, to a person or person designated by a competent State authority, to represent the State for negotiating, adopting, or authenticating the text of a Treaty, for expressing the consent of the State to be bound by a Treaty, or for accomplishing any other act with respect of a Treaty.

What is Reservation?

Reservation means a unilateral statement made by a State when signing, ratifying, accepting, approving or acceding to Treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the Treaty in the application to the State.

What does Entry into Force mean?

The entry into force of a Treaty is determined by the Treaty itself. Where the Treaty does not specify a date, there is a presumption that the Treaty is intended to come into force as soon as all the negotiating States have consented to be bound by the Treaty. Bilateral treaties may provide for their entry into force on a particular date, upon the day of their last signature, upon exchange of the instruments of ratification or upon the exchange of notifications. In cases where multilateral treaties are involved, it is common to provide for a fixed number of States to express their consent for entry into force.

What is a Depositary?

A depositary is a place designated in the terms of a multilateral Treatywhere an instrument is to be placed after signature by the parties.

What does a Depositary do?

A depositary performs various functions with regard to the Treaty. These include: receiving signatures and instruments of ratification; accepting all notifications and documents related to the Treaty; examine whether all formal requirements have been met; deposit them; and register the Treaty and communicate up-to-date information on the status of the Treaty to all the relevant parties concerned.

How can I check the status and the parties to a Treaty?

The official source of information on the status of a Treaty (which parties have ratified or acceded, what date it comes into force, reservationsthat have been made etc.) is the depositary named in the Treaty. If the information is not available in the published indexes, online or in the Treaty itself, you can always contact the depositary and request for the same to be availed.

What is Denunciation?

This is the act of withdrawal of a State or Organization by giving notice that it no longer considers itself bound by a Treaty.

What are “travaux preparatoires” and where can I find them?

“Travaux preparatoires” is a French term for “preparatory materials”. They provide an official record of the negotiation of a Treaty. They help in clarifying a Treaty’s intention and generally,they are available at the depositary, or posted on an official site for the Treaty.

Who can sign international agreements?

The President and the Cabinet Secretary for Foreign Affairs have the authority to sign international agreements. A person designated by a competent State authority can also sign international agreements on behalf of the State once the powers are conferred upon them by way of a legal document called “Full Powers.”

Why do countries enter into treaties?

Treaties are an important source of international law. They develop peaceful cooperation among nations, whatever their constitutional and social systems. States enter into treaties to supplement and reinforce their National laws.

What is a definitive signature?

A definitive signature establishes the consent of the State to be bound by a Treaty that is not subject to ratification, acceptance or approval. Most bilateral treaties dealing with more routine and less politicized matters are brought into force by definitive signature, without recourse to the procedure of ratification.

What is Initialing?

Initialing is commonly used as the means by which a text is adopted or authenticated. In order to avoid misunderstandings, consent to be bound should therefore not be expressed by initialing but as an indication that the text that is initialed is indeed the last version of the text discussed between the parties.

What does the Treaty making process entail?

1. Negotiation Relevant Cabinet Secretaries in consultation with the Cabinet Secretary of Foreign Affairs shall initiate Treaty making process in conformity with the Act. 2. Submission to Cabinet The Cabinet Secretary of Foreign Affairs in consultation with the relevant Cabinet Secretaries initiates the tabling of all treaties, accompanied by a Cabinet Memorandum to the Cabinet. The Cabinet then starts the process of adoption and signature prior to Kenya expressing consent to be bound by ratification, acceptance, approval or accession. • Submission to National Assembly The Cabinet Secretary of Foreign Affairs will submit two copies of the Treaty accompanied by an Explanatory Memorandum, in the official language to be tabled during Routine Proceedings in the National Assembly, pursuant to the Standing Orders. Once the Treaty and Explanatory Memorandum are tabled, copies will be distributed to Members of the National Assembly. The purpose of the Explanatory Memorandum is to provide the National Assembly with information regarding the Treaty, particularly: • Why becoming a party to the Treaty would be in Kenya’s national interest; • The advantages and disadvantages for Kenya becoming a party; • Any obligations, which would accrue from becoming a party; • The likely economic, social, cultural, political, environmental and legal effects and impacts; and • The costs of compliance. The National Assembly will issue a Certificate of Approval to the Ministry of Foreign Affairs. The adoption and/or signing of the Treaty is done at this stage. 3. Ratification Once the National Assembly gives its approval for the ratification of a Treaty, the Ministry for Foreign Affairs prepares instruments of ratification, accession or acceptance for signature. 4. Deposit Upon ratification, the instrument of ratification, accession or acceptance shall be deposited with the relevant Depository. This signifies Kenya’s consent to be legally bound by the Treaty.

Who is the custodian of treaties in Kenya?

The Office of the Registrar of Treaties established under the Treaty Making and Ratification Act, 2012 (Rev. 2014) is the custodian of the original copies of all treaties to which Kenya is a party. As a member of the United Nations, Kenya has the obligation to register its treaties with the Secretary General of the United Nations and other depositories as the case may be. Treaties in force for Kenya are published in the President’s Report on Kenya’s international obligations released annually.

What is an obligation?

An obligation is a duty that must be carried out by a party as according to a Treaty that has been concluded.

Who implements the Government’s obligations under a Treaty?

The Government implements its Treaty obligations through enactment and amendment of legislation, development and review of national policies and other administrative measures. The Treaty Making and Ratification Act, 2012 (Rev. 2014) mandates the Registrar of Treaties to create awareness and monitor implementation of treaties ratified by Kenya and to inform the lead State departments to comply with their Treaty obligations.

What is the role of the Parliament in the Treaty making process?

The Treaty Making and Ratification Act, 2012 (Rev. 2014) provides under Article 8 that after the Cabinet approves the ratification of a Treaty, the Cabinet Secretary shall submit the Treaty and a memorandum on the Treaty to the Speaker of the National Assembly. The relevant parliamentary committee shall, during its consideration of the Treaty, ensure public participation in the ratification process in accordance with laid down parliamentary procedures. Parliament will then approve the ratification of a Treaty with or without reservations to specific provisions of the Treaty.

What is the role of Ministries, State Departments and Agencies in implementing Treaty obligations?

The Ministry of Foreign Affairs is the Government’s principal adviser on Treaty-related matters.Other Ministries, State Departments and Agencies are responsible for the implementation of treaties relative to their mandates. Through the MDA’s, the Government is able to fulfil its obligations under treaties.