Law of treaties

Title used
• International instruments are not designated (named)
systematically, and so the name, in itself, does not determine
legal status. What is decisive is whether the negotiating States
intend the instrument to be (or not to be) legally binding.

• Although it is reasonable to assume that an instrument called a

Treaty, Agreement or Convention is a treaty, one should still
examine the text to make quite sure.
• Most other names are problematic. Both the UN Charter and the
Charter of the Commonwealth of Independent States 1991 (CIS)
are treaties, but the OSCE Charter of Paris 1990 and the Russia –
United States Charter of Partnership and Friendship 1992 are
MOUs.

• Calling an instrument a ‘Memorandum of Understanding’ does

not establish its status, since – and most confusingly – some
treaties are also given that name. Only by studying the text can
one (it is hoped) determine its legal status.
Exchange of Notes
• An exchange of notes (or letters) may constitute either a treaty
or an MOU. If the exchange is intended to be a treaty, it is
customary to provide expressly that it ‘shall constitute an
agreement between our two Governments’; if intended as an
MOU, it is usual to specify that the exchange ‘records the
understanding of our two Governments.
• In 1992, a treaty between Lithuania and Russia on the
withdrawal of Russian forces from Lithuania was concluded
with the simple title ‘Timetable’.
MOUs
• The practice of States shows that they indicate their intention to
conclude a treaty by consciously employing terminology such
as ‘shall’, ‘agree’, ‘undertake’, ‘rights’, ‘obligations’ and ‘enter
into force’. These terms suggest strongly that the instrument
was intended to be a treaty.
• In contrast, when States intend to conclude an MOU (which is
merely shorthand for the most common name for a non-treaty:
a Memorandum of Understanding), instead of ‘shall’ they use a
term such as ‘will’. Terms like ‘agree’ or ‘undertake’ (or the
other treaty terms mentioned above) are avoided.
• Instead of ‘enter into force’ an MOU is expressed to ‘come into
operation’ or ‘come into effect’.

• An MOU will normally be called a ‘Memorandum of

Understanding’ or ‘Arrangement’, some, like the Helsinki Final
Act 1975,lack any indication in the title as to its status, but may
have an express provision to the effect either that it is not
eligible for registration (as a treaty) under Article 102 of the UN
Charter, or that it is only ‘politically binding’.

• Today, MOUs are employed in most areas of international

relations –diplomatic, defence, trade, aid, transport, etc.
• A common reason for preferring an MOU is confidentiality.
Many arrangements, particularly in the defence field, must be
kept confidential and are therefore found only in MOUs. Often,
a defence treaty will be supplemented by numerous MOUs.

• MOUs do not need elaborate final clauses or the formalities

(international or national) which surround treaty-making. Most
often, an MOU will become effective on signature. Not being a
treaty, an MOU is generally not subject to any constitutional
procedures, such as presentation to parliament, although that
will depend on the constitution, laws and practice of each State.
The lack of formalities also means that an MOU is easier to
amend.
• But can an MOU sometimes have legal consequences? Although
this will depend on the circumstances and the precise terms of
the MOU, in exceptional cases the intention of a State as
expressed in an MOU may have legal consequences. In general,
when a clear statement is made by one State to another, and the
latter relies upon that statement to its detriment, the first State is
estopped from going back on its statement and thus may be
liable for the consequences. Underlying this is the fundamental
international law principle of good faith.
The Making of Treaties: Formalities
• Treaties may be made or concluded by the parties in virtually
any manner they wish. There is no prescribed form or
procedure, and how a treaty is formulated and by whom it is
actually signed will depend upon the intention and agreement
of the states concerned.
• the power to make treaties is to be found depends upon each
country’s municipal regulations and varies from state to state.
In the United Kingdom, the treaty-making power is within the
prerogative of the Crown, whereas in the United States it
resides with the President ‘with the advice and consent of the
Senate’ and the concurrence of two-thirds of the Senators.
• Nevertheless, there are certain rules that apply in the formation
of international conventions.
Credentials and full powers
• Credentials are issued by a State, usually by the foreign
minister, to a delegate to an international conference at which a
multilateral treaty is to be negotiated, authorising him to
represent that State. They are then presented to the host
government or international organisation.

• But the representative only has authority to negotiate and adopt

the text of the treaty and to sign the final act.
• He will need specific instructions from his government before
he can sign the treaty itself, as well as full powers if these are
required. Credentials and full powers can be combined in one
document.
• Full powers
Article 2(1)(c) defines ‘full powers’ as:

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 the State to be bound by a treaty, or for accomplishing any
other act with respect to a treaty.
• This provision provides security to the other parties to the
treaty that they are making agreements with persons competent
to do so.

• However, certain persons do not need to produce such full

powers, by virtue of their position and functions. This exception
refers to heads of state and government, and foreign ministers
for the purpose of performing all acts relating to the conclusion
of the treaty; heads of diplomatic missions for the purpose of
adopting the text of the treaty between their country and the
country to which they are accredited; and representatives
accredited to international conferences or organisations for the
purpose of adopting the text of the treaty in that particular
conference or organisation.
Adoption and Authentication
• Once the negotiations are complete, it is necessary for the
negotiating States to adopt the text.
• A bilateral treaty is often adopted by initialing the text.
• The act of adoption does not amount to consent to be bound by
the treaty.
• Unanimity for adoption (Article 9(1)) is now restricted to
bilateral treaties or treaties drawn up by only a few States
(plurilateral treaties).
• Adoption at an international conference requires a two-thirds
vote of the States ‘present and voting’ (which excludes
abstentions) unless, by the same majority, they decide to apply
a different rule (Article 9(2)).
• Authentication:
• Before a negotiating State can decide whether to consent to be
bound by a treaty, it needs to have the adopted text thoroughly
checked and cleaned up (the toilette finale).
• then authenticated by a document certifying that it is the
definitive and authentic text and thus not susceptible to
alteration.
• Initialing the text of a bilateral treaty is normally regarded as
amounting to both adoption and authentication, at least if the
treaty is to be in only one authentic language.
• However, in practice each State is free to suggest technical, or
even substantive, changes at any time before signature.
• The business of negotiating a multilateral treaty is often a
confused affair.
• In the final hectic stages, errors and inconsistencies invariably
creep into the text.
• It is not unusual for the basic negotiating text to be in English,
and only at the end of the conference will some of the other
language texts be available in final form.
• There is then a need not only to check the adopted text for
typographical inconsistencies and errors, but also to check the
translations into other authentic languages.
Final act
• A final act is a formal statement or summary of the proceedings of a
diplomatic conference.
• Treaties adopted by the conference and other related documents,
such as resolutions and agreed or national interpretative statements,
will be attached to the final act.
• It is usual for each negotiating State to sign the final act, although
this is optional, and anyway signature does not commit the State to
sign or ratify a treaty attached to the final act.
• Full powers are not needed to sign a final act, the credentials of the
representative being enough. The Convention mentions final acts
only in Article 10(b).
Consent to be bound
• Two steps are necessary to become a party (consent to be bound
plus entry into force) sometimes they take place
simultaneously.
• A ‘contracting State’ is one that has consented to be bound by a
treaty, even though it may not yet have entered into force
(Article 2(1)(f)).
• A State can express its consent to be bound by signature, by an
exchange of instruments constituting a treaty, by ratification, by
acceptance or approval, by accession or by any other agreed
means (Article 11). Either the treaty will specify how consent is
to be expressed or it will be implicit.
Signature

• A state may regard itself as having given its consent to the text
of the treaty by signature in defined circumstances noted by
article 12, that is, where the treaty provides that signature shall
have that effect, or where it is otherwise established that the
negotiating states were agreed that signature should have that
effect, or where the intention of the state to give that effect to
the signature appears from the full powers of its representative
or was expressed during the negotiations.
• Often in the more important treaties, the head of state will
formally add his signature in an elaborate ceremony.

• In multilateral conventions, a special closing session will be

held at which authorised representatives will sign the treaty.
However, where the convention is subject to acceptance,
approval or ratification, signature will in principle be a
formality and will mean no more than that state representatives
have agreed upon an acceptable text, which will be forwarded
to their particular governments for the necessary decision as to
acceptance or rejection.
• Signature has additional meaning in that in such cases and
pending ratification, acceptance or approval, a state must
refrain from acts which would defeat the object and purpose of
the treaty until such time as its intentions with regard to the
treaty have been made clear
‘Open for signature’
• Many multilateral treaties, especially UN treaties, provide that
they will be ‘open for signature’ until a specified date, after
which signature will no longer be possible. Thereafter, a State
may only accede
Witnessing

• Because of the political importance of some treaties, such as the

Camp David Accords 1979 or the Dayton Agreement 1995, the
signing may be witnessed by Heads of State of third States, or
their heads of government or foreign ministers.

• But the signature of a witness has no legal effect. In itself, it will

not make the witness’s State a guarantor of performance of the
treaty
Exchange of instruments
• It is the act of exchange that constitutes consent to be bound if
the instruments so provide, or the States so agree (Article 13).

• The exchange usually takes the form of an exchange of notes or

letters.
Ratification
• Ratification is ‘the international act so named whereby a State
establishes on the international plane its consent to be bound by
a treaty’ (Article 2(1)(b)).
• It was originally devised to ensure that the representative did
not exceed his powers or instructions with regard to the making
of a particular agreement.
• Ratification (or approval) was originally a function of the
sovereign, it has in modern times been made subject to
constitutional control.
 It consists of

• (1) the execution of an instrument of ratification by or on behalf

of the State and

• (2) either its exchange for the instrument of ratification of the

other State (bilateral treaty) or its lodging with the depositary of
the treaty (multilateral treaty)
Why Ratification is needed?
• One or more of the negotiating States needs time before it can
give its consent to be bound. The treaty may require new
implementing legislation, which should be done before the
treaty enters into force for the State.
• Even if no legislation is needed, the constitution may require
parliamentary approval of the treaty or some other procedure,
like publication, before the State can ratify.
• Or, the government of the State may just need time to consider
the political and legal implications of becoming a party.
Article 14 of the 1969 Vienna Convention notes that ratification will
• express a state’s consent to be bound by a treaty where the treaty so
provides;
• it is otherwise established that the negotiating states were agreed
that ratification should be required;
• the representative of the state has signed the treaty subject to
ratification or
• the intention of the state to sign the treaty subject to ratification
appears from the full powers of its representative or was expressed
during negotiations.
Ratification and State’s law
• The rules relating to ratification vary from country to country.

• In the United Kingdom, although the power of ratification

comes within the prerogative of the Crown, it has become
accepted that treaties involving any change in municipal law, or
adding to the financial burdens of the government or having an
impact upon the private rights of British subjects will be first
submitted to Parliament and subsequently ratified.
Cont.
• There is, in fact, a procedure known as the Ponsonby Rule
which provides that all treaties subject to ratification are laid
before Parliament at least twenty-one days before the actual
ratification takes place.

• Different considerations apply in the case of the United States.

However, the question of how a state effects ratification is a
matter for internal law alone and outside international law.
Ratification and Entry into Force.
• Ratification does not make the treaty binding on the State
unless and until the treaty has entered into force for that State.
When that happens, the State becomes a ‘party’ to the treaty
(Article 2(1)(g)).
• Ratification will or will not bring the treaty into force for the
ratifying State depends entirely on the provisions of the treaty.
Who can sign the instrument of Ratification?

• An instrument of ratification has to be signed on behalf of the

State. Usually either the Head of State, head of government or
foreign minister (the ‘Big Three’) sign. Anyone else needs full
powers in order to sign the instrument.
Acceptance or approval
• Consent to be bound can be expressed by ‘acceptance’ or ‘approval’
under similar conditions to those which apply to ratification (Article
14(2)).
• There is no substantive difference between acceptance or approval
and ratification. Such variation in terminology is not of any real
significance and only refers to a somewhat simpler form of
ratification. It is now common for multilateral treaties to provide
that signature shall be ‘subject to ratification, acceptance or
approval’.
• The rules applicable to ratification apply equally to acceptance or
approval, and, unless the treaty provides otherwise, acceptance and
approval have the same legal effect as ratification.
Accession
• This is the normal method by which a state becomes a party to a
treaty. It has not signed either because the treaty provides that
signature is limited to certain states, and it is not such a state, or
because a particular deadline for signature has passed.
• Article 15 notes that consent by accession is possible where the
treaty so provides, or the negotiating states were agreed or
subsequently agree that consent by accession could occur in the
case of the state in question.
• Important multilateral treaties often declare that states or, in
certain situations, other specific entities may accede to the treaty
at a later date, that is after the date after which it is possible to
signify acceptance by signature
Reservations
• Article 2(1)(d) defines a reservation as:

a unilateral statement, however phrased or named, made by a State,

when signing, ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or modify the legal effect of certain
provisions of the treaty in their application to that State.
• Where a state is satisfied with most of the terms of a treaty, but
is unhappy about particular provisions, it may, in certain
circumstances, wish to refuse to accept or be bound by such
provisions, while consenting to the rest of the agreement.
• By the device of excluding certain provisions, states may agree
to be bound by a treaty which otherwise they might reject
entirely.
• This may have beneficial results in the cases of multilateral
conventions, by inducing as many states as possible to adhere to
the proposed treaty.
• To some extent it is a means of encouraging harmony amongst
states of widely differing social, economic and political systems,
by concentrating upon agreed, basic issues and accepting
disagreement on certain other matters.
• The capacity of a state to make reservations to an international
treaty illustrates the principle of sovereignty of states, whereby
a state may refuse its consent to particular provisions so that
they do not become binding upon it.

• In bilateral treaties an agreement between two parties cannot

exist where one party refuses to accept some of the provisions
of the treaty.

• This is not the case with respect to multilateral treaties, and here
it is possible for individual states to dissent from particular
provisions, by announcing their intention either to omit them
altogether, or understand them in a certain way.