Symposium on Ljubljana – The Hague Convention on Mutual Legal Assistance: Critical Reflections – Lessons Learned: Civil Society Engagement in Treaty Negotiations

[Priya Pillai is an international lawyer, heads the Asia Justice Coalition secretariat and is a contributing editor at Opinio Juris.]

She participated in the MLAT negotiations in Ljubljana, Slovenia on behalf of the Asia Justice Coalition. All views are personal.

The negotiations over two weeks in Ljubljana, Slovenia in May this year for the Mutual Legal Assistance Treaty (MLAT) were eye-opening in many ways. While the dust has barely settled, this is an opportunity to assess what we have learned from this convention – the process as well as the final outcome – and to ascertain what this means, not just for the future of this convention, but for other initiatives relating to international accountability. The last significant treaty process in relation to international justice and accountability were the negotiations towards the Rome Statute – 25 years ago – and so it is worth revisiting some aspects of this recent process.   

The Treaty Journey: Process and Outcome  

As a first point, a bit about the journey towards these treaty negotiations in 2023. The negotiations have been sometime in the making, with the treaty process lead by a core group of six states. The need for such a legal instrument crystallized in 2011 and the core group of states embarked upon a process towards treaty negotiation that was not under the aegis of the UN. While there can be many debates about the pros (flexibility of process, less procedural restrictions) and cons (less buy-in) of this approach, there are a few implications to note. One is that the lack of UN imprimatur perhaps led some to ignore the process and the potential passage of this treaty. This is problematic, as regardless of whether under UN aegis, the treaty process is nonetheless relevant as it has the potential to develop (or regress) international law. This may have also been one of the factors that resulted in less engagement of some states and civil society. 

In treaty negotiations, the role of states is obvious. But what is often overlooked is the role that other actors – civil society organizations (CSOs) – play in these law making processes. Per the rules of procedure of the Diplomatic Conference, the approach of the negotiations was as follows – simply put – there were plenary sessions in which the treaty was discussed by themes, with breakout working groups which then delved into the language in detail, to redraft contentious provisions. At the MLAT conference, ‘observers’ were a distinct category – which included non-supporting states, IOs, regional organizations as well as CSO’s (See, Rule 1(d), Rules of Procedure, MLA/3, 15 May 2023) and were included in participation at the Diplomatic Conference, at the invitation of the Core Group of States (Rule 3(3), Rules of Procedure). Observers had the ability to engage in the plenary sessions of the conference, as well as in the discussions in the working groups (Rule 33, ‘General Rights of Observers’, Rules of Procedure). This included the opportunity to make statements on the floor, as well as submit written statements and observations. While it was important to be engaged in the plenary sessions, the ability to provide input in the latter working group sessions was also invaluable, particularly as the negotiations entered a more complex phase. This inclusive approach, embodied in the rules of procedure, was crucial for the passage of the treaty.

Admittedly, while this may seem self-congratulatory, it is undeniable that the role of CSOs was critical in monitoring the trajectory of the negotiations and also in taking an active part in shaping the discussions and the final outcome (as indicated in another post in this symposium, see here). This ‘watchdog’ role – was used effectively in the context of the negotiations – externally to raise the alarm (see statements at a critical juncture in the negotiations, by Amnesty International, International Commission of Jurists, and Asia Justice Coalition update), as well as by substantive suggestions and input, in written and oral remarks. In particular, aspects of the treaty negotiations that could have rolled back developments in international law – aut dedere aut judicare and victims’ rights, among them (see posts in this symposium covering these topics in detail) – resulted in concerted efforts by many states as well as civil society to right the ship.   

Another important aspect to note was the skillful handling of the negotiation process. The appointment of Silvia Fernández de Gurmendi from Argentina, as President of the Diplomatic Conference, with decades of experience was crucial to the proceedings, given the contentious issues as well as the tight timeline (two weeks) within which to achieve consensus and have a final treaty text adopted. This was also buttressed by leadership of the coordinators in the working groups, responsible for reaching consensus on the issues being addressed by each working group. Also noteworthy was the leadership of women from the core group of states in setting the tone for the negotiations, which included the Ministers of Foreign Affairs of Slovenia, Belgium and Mongolia, and the Ministers of Justice of the Netherlands and Slovenia. 

The MLA Treaty has now been adopted, ending one phase of the life of this treaty and entering another as crucial. With the signing conference notified as 14-15 February  2024, there is now a need for concerted action and engagement, for widespread ratification and adoption.

Looking Ahead: Coordination and Strategic Action 

While the treaty negotiations concluded a little over two months ago, it would not be an exaggeration to say that many are still processing the treaty negotiation process as well as the final outcome. With that caveat, a few initial reflections on what we need to learn and build on, from these negotiations, not just for the next steps in this process but also for other international law-making processes. 

As a first point, the role of Civil Society, mentioned above. What this negotiation process did see was extremely effective coordination – CSOs had engaged in joint calls and discussions before the negotiations, strategized and coordinated on areas to focus on – a division of labour if you will – and were all the more effective for this joint action and complementary work during the negotiations. This was particularly important given the small (but mighty!) contingent of CSOs in Ljubljana. At the negotiations, coordination ranged from in person sharing of information to a Whatsapp group so all could be informed of developments across the negotiation process and could focus on their issues of interest. It may be a truism but a key part of the effective coordination and joint efforts were the camaraderie and clear intent on the part of all the CSO representatives present to work together – the real recognition of the value of presenting a joint front and achieving results which may not have been possible going solo. While some of this was also organic and down to the individuals present and the bonds formed in Ljubljana, what could be useful for other initiatives is much more concerted coordination and organization – well in advance and perhaps different ways to reimagine roles and responsibilities among these actors – a much more targeted approach. 

Despite this positive development, overall there were too few CSOs engaged in the process, with scant awareness among many in the Global South, and this is a problem that must be rectified. For the future, there is a need to include more states and in particular, CSOs from the Global South more effectively. This can be assistance in terms of financial and human resources if needed, as well as other ways to ensure inclusion. 

Another important point is to make a concerted effort to put together ‘Coalitions of the willing’. In Ljubljana, what emerged in the course of the negotiations was a split among states in the room – those that were worried about the obligations about to be created by the treaty and wanted to water these down, those that were worried about alienating some of these powerful states and damaging the chance of consensus, and others that were keen on ensuring the obligations remained intact. The last two categories consisted of the majority of states, many from the Global South, which found their voices and were more vocal in pushing back as the negotiations continued. Building alliances – among these states, as well as between these states and CSOs – became crucial as the discussions continued. What is necessary is building these coalitions beforehand, and in a strategic manner (realizing naturally, that there may be distinct agendas and being mindful of any fault lines).      

In the ultimate analysis, there is a need to keep an eye on the ball – monitor, engage and be at the table. We cannot afford to ignore these developments and there is a critical need for civil society to be engaged, and to be engaged early in the process. The importance of this was evident in the negotiations process in Ljubljana. As we potentially move towards other treaty processes relating to international justice and accountability – the crimes against humanity treaty initiative is gaining momentum – the implications of the process and outcomes achieved in Ljubljana is a crucial checkpoint for our approach, moving forward.