Steps in the Formation of Treaties

[Note: This article is primarily meant for students of International Law studying the subject at the graduate or post-graduate level]

Introductory Note

According to Martin Dixon and Robert McCorquodale , treaties are evidence of the express consent of states to regulate their interests according to international law. It is important to remember that treaties are the most important source of international law and are increasingly used to codify and develop international law. Since international legal relationship between States and international organizations came to be increasingly governed by written agreements, a need was felt for developing a set of general rules to govern the obligations of the parties to treaties. In 1966, the International law Commission adopted its final report on the law of treaties and in a Conference attended by representatives of more than 100 states, held in Vienna, Austria in two sessions, in 1968 and 1969, the Vienna Convention on the Law of Treaties came to be adopted. The Convention entered into force on January 27, 1980. Another Convention was held in 1986 at Vienna on the Law of Treaties between States and International Organizations or between International Organizations. The 1969 Convention deals with the formation of treaties, entry into force, reservations, and procedure relating to invalidity, termination, withdrawal, and suspension of operation of treaties as well as their interpretation.

Definition and Meaning of the term ‘Treaty’

(1) Oppenheim : International treaties are agreements, of a contractual character, between States, or organizations of States, creating legal rights and obligations between the parties.

(2) McNair : The term treaty means a written agreement by which two or more states or international organizations create or intend to create a relation between themselves operating within the sphere of international law.

Article 2(1)(a) of the Vienna Convention on the Law of Treaties, 1969 defines the term treaty: Treaty means an international agreement concluded between States in a 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.

The term ‘treaty’ is used in a generic sense rather than a reference to a particular form of international agreement. The term treaty covers convention, agreement, arrangement, protocol, exchange of notes, exchange of letters, etc. International law makes no distinction between agreements referred to as treaties and other types of agreements. The name or designation given to an agreement is in itself unimportant and of no legal consequence.

There is no formal requirement in international law for a treaty to come into existence Treaties usually are in written form and the Vienna Convention on the Law of Treaties applies only to those treaties which are in written form. However, it cannot be categorically stated that oral agreements have no legal validity.

Unilateral statements-whether binding: A question that has not infrequently arisen is whether the unilateral statements or pronouncements of a State create any legally binding international obligations. The Legal Status of Eastern Greenland is a case in point. In 1919, the Danish government through its representative in Norway informed the Norwegian government that they would not raise any objection to Norway’s claim over Spitzbergen at the Paris Peace Conference if Norway refrained from challenging Danish claims of sovereignty over all Greenland. M. Ihlen, the Norwegian foreign minister, informed his Danish counterpart that Norway would not create any difficulties in respect of the Danish claim of sovereignty over Eastern Greenland. When the matter came up before the PCIJ, Denmark argued that Norway by the “Ihlen Declaration” had recognized Danish sovereignty over Eastern Greenland. The Court denied that the “Ihlen Declaration” constituted recognition of Danish sovereignty. However, it held that Norway had incurred a legally binding obligation to refrain from contesting Danish sovereignty over Eastern Greenland. The Court did not characterize the “Ihlen Declaration” as an oral agreement, nor did not delineate the circumstances, if any, when a unilateral statement could be binding. The Court in this case appeared to regard the Norwegian statement as being given in return for a Danish commitment not to oppose a Norwegian claim to Spitzbergen.

The agreement entered into between the parties must be governed by international law. Agreements which are subject to some national system of law will not constitute treaties. Where the parties do not possess international legal personality, the agreements entered into by and between such parties will not be governed by international law.

Formation of treaties

No specific form or procedure has been prescribed in international law for the conclusion of a treaty. The parties negotiating a treaty are free to agree upon a language or languages in which the treaty is to be expressed. Though a precise procedure or standard does not exist, following steps are generally adopted in concluding a treaty.

1) Accrediting of Persons by the Contracting States

2) Negotiation

3) Adoption of the text

4) Consent of the States

5) Entry into force

Accrediting of Persons by Contracting States

Normally, the treaty-making capacity of States is exercised by Heads of State or by their governments. However, today, this treaty-making power is rarely exercised by them in person, and is done through representatives. If they appoint a representative for the purpose of negotiating, adopting or authenticating the text of a treaty, or for expressing the consent of a State to be bound by a treaty, he is provided with a formal instrument called Full Powers. Art. 2(1)(c) of the Vienna Convention defines Full Powers: ‘full powers’ means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of a State to be bound by a treaty, or for accomplishing any other act with respect to a treaty.

Full Powers is not necessary if the treaty is concluded by the Heads of States or Governments, Minister of Foreign Affairs and heads of diplomatic mission.

Negotiation

The stage of negotiation is the most crucial stage in the formation of a treaty where the participating States put forth proposals for discussions. After detailed deliberations, the proposals are harmonized and the parties arrive at a tentative agreement.

Adoption of the Text

After negotiations, the form and content is settled by drawing up a text setting out its provisions. The normal rule is that consent of all the participating states is required for adopting the text of the treaty. The principle of unanimity in preparing the text of the treaty in the case of international conferences is unrealistic and is not normally the rule. Article 9 (2) of the Vienna Convention provides that adoption of the text of a treaty at an international conference takes place by two-thirds of the states present and voting, unless by the same majority they decide to apply a different rule.

Consent of the States

The treaties may bind states only when they have given their consent. Some of the ways in which a State may express its consent to be bound by a treaty are by means of signature, exchange of instruments, ratification or accession.

Authentication

In many cases authentication is not seen as a distinct step as the act of signature serves as authenticating and an expression of willingness to be bound by the treaty. However, in cases where the unsigned text of a treaty is incorporated in the final act of a conference, or where the treaty adopted in an international organization is authenticated by the president of the organization, authentication may be a separate step.

Signature

The act of affixing the signature by a State’s representative may express the consent of the State to be bound by the treaty. This can happen only where the negotiating or participating States have agreed that signature should have that effect, by providing in the treaty itself or where it appears from the full powers that a State had intended to give that effect to the signature of its representative or it was so expressed during negotiations. Sometimes, a representative’s signature may be qualified, that is to say it may be affixed ad referendum, i.e. subject to the State’s confirmation. In such a case, the State’s subsequent confirmation constitutes signature of the treaty. In certain cases, where the signature may be subject to ratification, a State will not be bound by the treaty till ratification is complete.

Exchange of Instruments

Article 13 of the Vienna Convention provides the consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when:

(a) the instruments provide that their exchange shall have that effect; or
(b) it is otherwise established that those States were agreed that the exchange of instruments should have that effect.

Ratification

Article 2(1) (b) of the Vienna Convention on the Law of Treaties 1969 defines ratification as ‘the international act so named whereby a States establishes on the international plane its consent to be bound by a treaty’.

Ratification is mainly required for the States to re-examine the over-all effect of the treaties on their national interests. The other reason for having the step of ratification is to give the States sufficient time to enact legislation to give effect to the obligations which they would assume under the treaty.

Article 14 of the Vienna Convention provides that the consent of a State to be bound by a treaty is expressed by ratification when:

(a) the treaty provides for such consent to be expressed by means of ratification;

(b) it is otherwise established that the negotiating States were required that ratification should be required;

(c) the State’s representative has signed the treaty subject to ratification; or

(d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation.

Form and Mode of Ratification

International law does not prescribe any form of ratification. According to Oppenheim, ratification normally takes the form of a document signed by the Heads of the States or their foreign ministers. It is usual to draft as many documents as there as parties to the treaty, and to exchange these copies between the parties.

Entry into Force

A treaty enters into force in accordance with its provisions. Article 24 of the Vienna Convention provides that a treaty enters into force in such manner and upon such date as it may provide or as the states negotiating the treaty may agree. If the treaty is silent, it enters into force as soon as consent to be bound by the treaty has been established for all the negotiating states. Bilateral treaty enters into force when States exchange documents of ratification. Where ratification is not required, the treaty comes into force after signature and exchange or deposit of signed copies. Multilateral treaties enter into force from date when prescribed number of ratifications or accessions has been made.

References:
1. Martin Dixon and Robert McCorquodale, Cases and Materials on International Law (1995) p 48
2. Oppenheim, International Law Vol. 1 (8th Edition) p 877
3. McNair, Law of Treaties p 4