International Treaties: Stages of Conclusion

An international diplomatic conference is a circumstance in which countries can conclude international treaties. © CS Media.

The conclusion of a treaty is a complex process, primarily regulated by the Vienna Convention on the Law of Treaties of 1969 (VCLT/69). This convention refers only to treaties that are “an international agreement concluded in writing between States and governed by International Law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” The conclusion of treaties depends on several stages, such as negotiation, adoption, authentication, signing and/or ratification, and entry into force.

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Negotiation of a Treaty

Negotiation constitutes a preliminary phase in the formation of a treaty, though it is not mandatory according to international regulations. However, it is customary for it to take place, offering States the opportunity to discuss and define the terms of the agreement. According to the VCLT/69, “negotiating States” are those that participate in this process.

Negotiations can be conducted in two main ways: through the exchange of diplomatic notes or through international diplomatic conferences. The exchange of notes is a process of distant negotiations, commonly conducted to address less complex issues or when there are few negotiating States. On the other hand, international diplomatic conferences are in-person negotiations, ideal for dealing with more complex issues or debates involving many States. Both processes allow the negotiating States to develop a text that reflects their common interests.

Adoption of a Treaty

Once the negotiation phase is concluded, the negotiated text is adopted. Adoption is the act by which the negotiating States express their agreement with the text of the treaty, without this generating obligations for them. According to the VCLT/69, the general rule for the adoption of a treaty requires unanimity among the negotiating States. However, there is an exception applicable to negotiations conducted in international diplomatic conferences, where a favorable vote of two-thirds of the States present and voting is sufficient. If the negotiating States wish, they may change the quorum for adoption, following the same two-thirds rule. The adoption phase is crucial as it establishes consent of the States to the content of the treaty.

Authentication of a Treaty

Authentication is the subsequent act that “locks” the text of a treaty, making it definitive and closed to future amendments. This process can occur simultaneously with the adoption or at a later time. Authentication ensures that the agreed text is the official and final reference for all parties involved.

At this point, the authentic versions of the treaty are drafted, in each of the languages decided by the negotiating States. They are usually valid in the realm of International Law, and normally there is no authentic translation that prevails over the others — except if the States so wish. It is important to differentiate the authentic versions from the official versions of a treaty. The latter are translations of the authentic texts made by the parties separately, and, despite their name, they do not have international legal effects. The official versions serve only for the parties to use them domestically — for example, to send them to parliament.

Consent to be Bound by a Treaty

After the authentication of the text, the negotiating States move towards expressing their consent to be definitively bound by the treaty, a process that can occur through different methods depending on the nature and specific requirements of the treaty in question.

In treaties with a simplified procedure, the signature by the negotiating States symbolizes the expression of their consent to be definitively bound by the treaty. This act implies that, immediately after signing, the treaty is ready to create international obligations, dispensing with the need for ratification. The determination of whether a treaty follows this simplified procedure is made during negotiations and is reflected in the final text of the treaty.

On the other hand, in treaties following a more extended procedure, the signature by the States does not automatically imply their definitive consent. Instead, it acts more as a signal of the intention to be bound by the treaty in the future. In this context, ratification, along with other forms of consent such as acceptance, approval, and accession, plays a crucial role in definitively expressing will of the States to be bound by the treaty. Specifically, ratification allows the negotiating States to submit the treaty to their respective internal procedures before formally assuming the obligations contained in the agreement.

Nevertheless, once a treaty following the extended procedure is signed, the signatory States have one important obligation: to refrain from acts that would defeat the object and purpose of the treaty, even before its entry into force. This is provided for in Article 18 of the VCLT/69.

Acceptance and approval are synonymous with ratification, while accession is a special type of definitive consent that occurs when a State joins a treaty after its entry into force. Through accession, these States can assume the obligations of the treaty on equal terms with the original negotiating States. It is important to note that this process generally has only one phase — that is, one should not speak of accession if the State is not yet ready to be definitively bound by the treaty. Accession reflects the flexibility of the treaty system to incorporate new members into previously established agreements.

Publication and Entry into Force of a Treaty

Traditionally, international treaties could be secret, or they could contain hidden clauses. However, secret diplomacy has been heavily criticized because it facilitated the establishment of secret military alliances, which would lead to World War I. After this conflict, the Covenant of the League of Nations determined that all treaties should be public, through registration with the Secretariat of this organization. The change was intended to ensure transparency in international relations, and this ideal has been maintained and strengthened under the regime of the United Nations (UN).

According to Article 102 of the UN Charter, all treaties and international agreements concluded by its Member States must be registered and published by the Secretariat of the United Nations. Furthermore, the regulation governing Article 102, adopted by the UN General Assembly in 1946, specifies that treaties involving the UN must be registered ex officio by the Secretary-General.

Besides registration with the Secretariat of the United Nations, treaties can also be registered in publicity systems of regional or thematic organizations. This additional level of registration allows the agreements to be more widely known within specific contexts.

It should be mentioned that, in some cases, States choose not to register certain treaties, considering them to be of lesser importance. According to the principle of “relative inapplicability,” treaties not registered with the Secretariat of the United Nations cannot be invoked before the organs of the UN. However, these treaties maintain their validity under the principle of pacta sunt servanda, that is, agreements must be respected.

After their publication, as per Article 24 of the VCLT/69, treaties enter into force in the manner and on the date agreed upon by the negotiating States.

The entry into force of a treaty can be immediate upon the definitive expression of will by its parties, meaning the treaty begins to have legal effect as soon as the parties express their consent in accordance with the terms stipulated in the agreement. Alternatively, the entry into force can be deferred, establishing a waiting period before the treaty becomes effective. This approach is particularly common in multilateral treaties, where a minimum quorum of consent by the States is often required before the treaty can enter into force. The definition of this quorum and the specific procedure for entry into force are determined during the treaty negotiations and are included in its text.

In the case of treaties whose entry into force is deferred, a period of vacatio legis is established. This term refers to the time elapsed from the signing or ratification of the treaty until its effective entry into force. The purpose of this period is twofold:

On one hand, it allows States to prepare for the implementation of the treaty’s provisions, adapting their internal legal systems if necessary.
On the other hand, it prevents uncertainty and ambiguity by ensuring that all parties are clearly aware of the norms before they are applied, thus facilitating an orderly transition towards the new obligations and rights stipulated in the treaty.

Conclusion

Treaties are essential for global governance, as they facilitate cooperation and understanding between States. The conclusion of treaties is rigorously regulated by the 1969 Vienna Convention, through a process that includes negotiation, adoption, authentication, and the expression of consent, up to the publication and entry into force of the treaty. This process ensures transparency, legality, and mutual respect in the international realm, promoting stability and predictability in the relations between nations. Thus, it significantly contributes to the maintenance of peace, security, and diplomacy as a tool for solving global challenges.