Making a Treaty: From Full Powers to Entry Into Force

Authentication is not consent. It fixes the words. It settles what the treaty says, so that no party may later argue about the wording, and it says nothing about who is bound.

Consent to be bound: the heart of the topic

Article 11. Consent may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

That is a closed list only in appearance. The last words, or by any other means if so agreed, leave the parties free.

Signature, article 12

Signature expresses consent to be bound when the treaty so provides, when it is otherwise established that the negotiating States so agreed, or when the intention appears from the full powers of the representative or was expressed during negotiation. Initialling counts as signature if the negotiating States so agreed, and a signature ad referendum becomes a full signature when the State confirms it.

Treaties concluded by signature alone are treaties in simplified form.

Exchange of instruments, article 13

Where the treaty is constituted by instruments exchanged between the States, consent is expressed by the exchange, if the instruments so provide or it is otherwise established that the States so agreed. This is the ordinary machinery of an exchange of notes.

Ratification, acceptance, approval, article 14

Consent is expressed by ratification when the treaty so provides, when it is otherwise established that the negotiating States agreed ratification should be required, when the representative signed subject to ratification, or when the intention to sign subject to ratification appears from the full powers or was expressed during negotiation. Acceptance and approval work on conditions similar to ratification.

What ratification is, and is not. Ratification is an international act: the State informs the others that it consents to be bound. It is not the domestic approval that precedes it. A State's parliament may approve a treaty, and until the instrument of ratification is exchanged or deposited the State is not bound.

Why ratification exists. It gives the State time to examine the text, to consult its legislature, and to enact the implementing law before it becomes liable to perform. Article 27, in [Rights and Duties of the Parties, and Third States], is the reason the time matters: once bound, the State cannot plead its internal law.

Accession, article 15

Consent is expressed by accession by a State that did not sign, when the treaty so provides, when it is otherwise established that the negotiating States so agreed, or when all the parties have subsequently agreed that the State may accede. Accession is the ordinary route into an open multilateral convention years after it was concluded, and it is a single act, with no prior signature.

The moment of consent, article 16

Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of the State upon their exchange between the contracting States, their deposit with the depositary, or their notification to the contracting States or the depositary, if so agreed.

So for a modern multilateral convention the operative moment is the moment of deposit, not the date the President signed the instrument at home.

Article 17 permits consent to part of a treaty only if the treaty so permits or the other contracting States agree, and requires that where the treaty offers a choice between differing provisions, the State make clear which provisions its consent relates to.

The interim obligation, article 18

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when it has signed the treaty, or exchanged instruments constituting it, subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party, or when it has expressed its consent to be bound, pending entry into force, provided that entry into force is not unduly delayed.

This is the article that answers the puzzle a student meets when a State signs but does not ratify. It is not bound by the treaty. It is bound not to destroy the treaty's object while its position is undecided, and it may end even that duty by making clear it will not become a party.

Two limits are worth marking. The duty is not to perform the treaty; it is to refrain from acts defeating its object and purpose. And it lapses where entry into force is unduly delayed.

Entry into force, article 24

A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree. Failing any provision or agreement, it enters into force as soon as consent to be bound has been established for all the negotiating States.

Article 24(3). Where a State's consent is established after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides. So a convention has a general date of entry into force and, for every later party, its own.

Article 24(4), the provisions that apply early. The provisions regulating authentication, the establishment of consent, the manner or date of entry into force, reservations, the functions of the depositary and other matters arising necessarily before entry into force apply from the time of the adoption of the text. Without that paragraph the machinery would be unusable, because the clauses that tell States how to become parties would not operate until they had.

Article 25, provisional application. A treaty or part of it is applied provisionally pending entry into force if the treaty so provides or the negotiating States have otherwise agreed, and provisional application ends when a State notifies the others of its intention not to become a party.

The depositary and registration

Article 76. The depositary may be one or more States, an international organisation or its chief administrative officer, and its functions are international in character, so it is under an obligation to act impartially.

Article 77 lists the functions: keeping custody of the original text and of full powers; preparing certified copies; receiving signatures and instruments; examining whether an instrument is in due and proper form and if need be raising it with the State concerned; informing the parties of acts and notifications; informing them when the number of instruments required for entry into force has been received; registering the treaty with the Secretariat of the United Nations.

Article 79 provides the procedure for correcting errors in texts, by initialled correction, by an instrument setting out the correction, or by a corrected text.

Article 80. Treaties shall, after entry into force, be transmitted to the Secretariat for registration or filing and recording, and for publication.

Charter article 102. Every treaty and every international agreement entered into by any Member after the Charter comes into force shall as soon as possible be registered with the Secretariat and published by it. No party to an unregistered treaty may invoke that treaty or agreement before any organ of the United Nations.

The sanction is precisely stated. Non-registration does not make the treaty void or unenforceable between the parties. It makes it uninvokable before United Nations organs, including the International Court of Justice.

The Convention's own final clauses

Part VII closes with provisions a candidate is not examined on and should be able to place, because several of them are the Convention practising what it preaches.

Article 74. The severance or absence of diplomatic or consular relations between two or more States does not prevent the conclusion of treaties between them, and the conclusion of a treaty does not in itself affect the situation as to diplomatic or consular relations. Compare article 63, the same principle stated for treaties already in force.

Article 75, the aggressor State. The Convention is without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the Charter with reference to that State's aggression. So a treaty imposed on an aggressor under Charter authority is not defeated by article 52 on coercion.

Article 78 governs notifications and communications under the Convention: they go direct to the States intended if there is no depositary, otherwise to the depositary; they take effect on receipt by the State or the depositary; and a communication sent to a depositary is treated as received by the State for which it was intended only when the depositary has informed it under article 77(1)(e).

Articles 81 to 85, the Convention's own conclusion, are the machinery this chapter has set out, applied by the Convention to itself. Article 81 opened it for signature to Members of the United Nations, of the specialized agencies or of the International Atomic Energy Agency, to parties to the Statute of the International Court of Justice, and to any other State invited by the General Assembly. Article 82 makes it subject to ratification, instruments being deposited with the Secretary-General. Article 83 keeps it open for accession by any State in those categories. Article 84 brought it into force on the thirtieth day following the deposit of the thirty-fifth instrument, and for each later State on the thirtieth day after its own deposit, which is article 24(3) in operation. Article 85 provides that the original, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, is deposited with the Secretary-General, so article 33 governs its own construction. It was done at Vienna on 23 May 1969.

India: who makes treaties, and what follows

Making. The treaty-making power in India is executive. It is exercised by the Union under article 73 read with entries 13 and 14 of List I, and Parliament is not required to approve a treaty before ratification.

Implementing. Article 253 gives Parliament power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country, or any decision made at any international conference, association or other body, notwithstanding the ordinary distribution of legislative power. So a treaty may be implemented even in a field that would otherwise belong to the States.

Effect without legislation. As [International Law in Indian Courts] sets out, a treaty does not by itself alter Indian law, and where it does not conflict with a statute the courts will read domestic law consistently with it.

A worked example

The Convention on YY is adopted at a conference on 1 March by the vote of 90 States out of 120 present and voting. It provides that it is open for signature until 31 December, is subject to ratification, is open to accession thereafter, and enters into force on the ninetieth day after the deposit of the twentieth instrument of ratification or accession. State AA's ambassador to the host State signs on 1 April. State AA deposits its instrument of ratification on 1 October. The twentieth instrument is deposited on 1 November. State BB accedes on 1 December.

Was the text validly adopted? Yes. Article 9(2) requires two thirds of the States present and voting at a conference, and 90 of 120 is three quarters.

Was the signature valid? Only if the ambassador had full powers. Article 7(2)(b) dispenses with full powers for a head of mission only for adopting the text of a bilateral treaty with the receiving State. Signing a multilateral convention is outside it. If he lacked full powers, article 8 makes the signature without legal effect unless State AA afterwards confirms it.

Is State AA bound on 1 April? No. The Convention is subject to ratification, so signature does not express consent, and article 18(a) binds State AA only to refrain from acts defeating the object and purpose until it makes clear it will not become a party.

Is State AA bound on 1 October? It has consented to be bound, by deposit under article 16(b), but the Convention is not yet in force. Article 18(b) applies: it must refrain from defeating the object and purpose pending entry into force, provided entry into force is not unduly delayed.

When does the Convention enter into force? On the ninetieth day after 1 November, by its own terms, which article 24(1) gives effect to.

When is State BB bound? Article 24(3): on the date its accession takes effect under the Convention's terms, that being after general entry into force.

Change one fact: nobody registers the Convention. It binds the parties all the same. Article 102(2) of the Charter means only that no party may invoke it before any organ of the United Nations, which includes the Court.

Distinctions table

What it does NOT mean

Signature does not usually bind. It binds only in the cases in article 12.

Ratification is not parliamentary approval. It is the international act of deposit, exchange or notification under article 16.

Consent to be bound is not entry into force. A State may have consented and still owe only the article 18(b) interim duty.

A treaty not registered is not void. Article 102(2) makes it uninvokable before United Nations organs, and nothing more.

An unauthorised signature is not a breach. Article 8 makes it without legal effect, subject to later confirmation.

India's Parliament does not ratify treaties. Ratification is executive; article 253 concerns the law that implements the treaty.

Limits and criticism

Article 18 is easier to state than to apply. What acts defeat the object and purpose of a treaty before it is in force, and when entry into force becomes unduly delayed, are questions the Convention leaves open, and State practice on withdrawing a signature is thin.

Provisional application under article 25 has grown far beyond what the article contemplates. Whole regimes now operate for years provisionally, which puts States under obligations without the domestic scrutiny that ratification was designed to permit.

Registration is widely ignored and the sanction is weak, so the publicity that article 102 was meant to guarantee, in reaction to the secret treaties that preceded the First World War, is imperfectly achieved.

In India the executive alone binds the State, and Parliament's role is confined to implementing legislation under article 253. Whether that is right is a live constitutional debate, and it is worth a sentence in an answer, not a paragraph.

Quick revision

Five steps: negotiation, adoption (article 9: all participating States, or two thirds at a conference), authentication (article 10: signature, signature ad referendum, or initialling), consent to be bound (article 11), entry into force (article 24).

Article 7(2): no full powers needed for Heads of State, Heads of Government, Foreign Ministers (all acts); heads of mission (adopting a bilateral text with the receiving State); conference delegates (adopting the text there).

Article 8: an unauthorised act is without legal effect unless afterwards confirmed.

Consent by signature (article 12), exchange of instruments (13), ratification, acceptance, approval (14), accession (15). Article 16: consent is established on exchange, deposit or notification.

Article 18: a signatory must not defeat the object and purpose, until it makes clear it will not become a party, or pending entry into force if not unduly delayed.

Article 24(3): a later party is bound from its own date. Article 24(4): the machinery clauses apply from adoption of the text. Article 25: provisional application.

Depositary: articles 76 and 77, functions international in character, duty of impartiality. Article 80 and Charter article 102: registration and publication; unregistered treaties cannot be invoked before any United Nations organ.

India: executive makes treaties; article 253 lets Parliament legislate to implement them.

Test yourself

1. Set out the stages in the conclusion of a treaty.

Negotiation, in which the text is settled by persons authorised under article 7. Adoption, governed by article 9, which requires the consent of all the States drawing up the text, or the vote of two thirds of the States present and voting at an international conference unless by the same majority they decide otherwise. Authentication under article 10, by the procedure the text provides or, failing that, by signature, signature ad referendum or initialling of the text or of the Final Act. Consent to be bound under article 11, by signature, exchange of instruments, ratification, acceptance, approval or accession, established at the moment fixed by article 16. Entry into force under article 24, on the date the treaty provides or, failing provision, when consent has been established for all the negotiating States.

2. Distinguish signature from ratification.

Signature ordinarily authenticates the text and does not bind. It binds only where article 12 applies, namely where the treaty so provides, where it is otherwise established that the negotiating States so agreed, or where the intention appears from the full powers or was expressed during negotiation. Ratification is the international act by which the State establishes its consent to be bound, and by article 16 it is effective on exchange, deposit or notification. Ratification is not the same as the internal approval that may precede it, so a State whose legislature has approved a treaty is still not bound until the instrument is deposited or exchanged.

3. State AA signs a convention subject to ratification and never ratifies. What does it owe?

Not performance of the convention, because it has not consented to be bound. By article 18(a) it is obliged to refrain from acts which would defeat the object and purpose of the treaty, and that obligation lasts until it has made its intention clear not to become a party. So a signatory may free itself of even this interim duty by an unequivocal statement that it will not proceed, and until then it must not act so as to destroy what the treaty was for.

4. What is the effect of failing to register a treaty under article 102 of the Charter?

The treaty remains valid and binding between the parties. The only consequence is the one article 102(2) states: no party to an unregistered treaty may invoke that treaty or agreement before any organ of the United Nations, which includes the International Court of Justice. Article 80 of the Vienna Convention requires transmission to the Secretariat for registration or filing and recording, and for publication, and article 77(1)(g) makes registration a function of the depositary, so in practice the depositary performs it.

5. Who may bind a State without producing full powers?

By article 7(2), Heads of State, Heads of Government and Ministers for Foreign Affairs, for all acts relating to the conclusion of a treaty. Heads of diplomatic missions, but only for adopting the text of a treaty between the accrediting State and the State to which they are accredited. Representatives accredited to an international conference or organisation, but only for adopting the text in that conference, organisation or organ. Everyone else needs full powers, and by article 8 an act by a person who is not authorised is without legal effect unless the State afterwards confirms it.

6. How is a treaty made and implemented in India?

The treaty-making power is executive, exercised by the Union under article 73 of the Constitution read with entries 13 and 14 of List I, and Parliament's approval is not a condition of ratification. Implementation is separate: article 253 empowers Parliament to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country, or any decision made at any international conference, association or other body, notwithstanding the ordinary distribution of legislative power, so a treaty may be implemented even in a subject otherwise reserved to the States. A treaty does not by itself change Indian law, and until Parliament legislates the courts give it effect only by construing existing law consistently with it where there is no conflict.