SHORT BRIEFING ON RATIFICATION OF THE MAPUTO PROTOCOL
This short briefing discusses the terminology used in relation to international treaties and the different stages through which a treaty passes before it enters into force, before concluding with the current status of the Maputo Protocol.
There are three basic stages an international treaty will pass through following negotiations on the text: adoption, signing and ratification/accession. Adoption means that the text of the treaty has been negotiated and agreed upon, without States necessarily agreeing to be bound by it, following which a treaty is generally opened for signature.
A treaty may be adopted by vote, as was the case with the Rome Statute for the ICC, or by consensus, as was the case with the Maputo Protocol, which was adopted by the 53 Heads of State of the African Union at the African Summit in Maputo, Mozambique, on 11 July 2003. A treaty will generally be open for signature for a period of time specified in the treaty itself or, where no time limit is expressed, until the treaty enters into force. For example, the Rome Statute was open for signature until 31 December 2000; after that time, States could no longer simply sign, they had to ratify or accede. There is no time limit specified for signature in the Maputo Protocol, so States will be able to sign the Maputo Protocol until such time as it enters into force. When a State signs a treaty, it means that they are obliged to refrain from acts that would defeat the object or purpose of the treaty, although they are not formally bound by the terms of the treaty. For example, with the Maputo Protocol, if a State has signed the treaty, they would be obliged to refrain from enacting laws that discriminate against women. Since the Maputo Protocol requires 15 ratifications to enter into force and since there is no time limit expressed within the Protocol for signature, States can still sign the Maputo Protocol.
Ratification occurs after signature (or contemporaneously with signature) and is an indication of a State’s commitment to be legally bound by the treaty. Accession has the same legal effect as ratification - namely the State’s commitment to being legally bound by the treaty - but occurs after a treaty has already entered into force or after any specified time limit for signature has expired. Ratification generally takes place when a formal instrument of ratification is deposited with the entity named in the treaty as the depository; in the case of the Maputo Protocol, this is the Chairperson of the Commission of the African Union. In general, when a State ratifies a treaty, it may enter a reservation, which it must do at the same time as the instrument of ratification is deposited. However, a State will not be allowed to enter a reservation where: (a) the treaty expressly prohibits it, either completely (as the Rome Statute does in article 120) or in relation to specific articles; or (b) the reservation is incompatible with the object and purpose of the treaty. In the case of the Maputo Protocol, there is nothing in the treaty to forbid reservations, either in relation to the treaty as a whole or in relation to specific articles. As such, States are able to enter reservations when they ratify the Maputo Protocol, provided such a reservation is not incompatible with the object and purpose of the treaty.
