Making a Treaty: From Full Powers to Entry Into Force

In one line

A treaty is made in five steps, negotiation, adoption, authentication, consent to be bound and entry into force, and only the fourth binds the State while only the fifth makes the treaty operate.

Students lose marks by collapsing the last two. A State may have consented to be bound by a treaty that has not yet entered into force, in which case it owes only the interim duty in article 18. A treaty may be in force among other States while a particular State is still not a party.

Who may act for the State

Article 7(1). A person represents a State for the purpose of adopting or authenticating a text, or of expressing consent to be bound, if he produces appropriate full powers, or if it appears from the practice of the States concerned or other circumstances that their intention was to consider that person as representing the State and to dispense with full powers.

Article 7(2), the three classes who need no full powers.

(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for all acts relating to the conclusion of a treaty.

(b) Heads of diplomatic missions, for adopting the text of a treaty between the accrediting State and the State to which they are accredited, and no further.

(c) Representatives accredited to a conference or an organisation, for adopting the text in that conference, organisation or organ, and no further.

Notice how narrow (b) and (c) are. An ambassador may adopt a bilateral text with the host State; he may not sign a multilateral convention or express consent to be bound without full powers.

Article 8, the cure. An act relating to the conclusion of a treaty performed by a person who cannot be considered under article 7 as authorised is without legal effect unless afterwards confirmed by that State. So an unauthorised signature is a nullity, not a wrong, and the State may adopt it later if it wishes.

Article 6 underlies all of this: every State possesses capacity to conclude treaties.

Adoption and authentication

Article 9(1). The adoption of the text takes place by the consent of all the States participating in drawing it up.

Article 9(2), the conference rule. At an international conference, adoption takes place by the vote of two thirds of the States present and voting, unless by the same majority they decide to apply a different rule. That saving is why the great modern conventions were adopted by consensus: the conference resolved to proceed differently.

Article 10, authentication. The text is established as authentic and definitive by such procedure as the text provides or the participating States agree, or, failing that, by signature, signature ad referendum or initialling of the text or of the Final Act of a conference incorporating it.