A.  Introduction

1  Treaties are concluded between States or, as the case may be, other entities: international organizations (see also International Organizations or Institutions, External Relations and Cooperation), national liberation movements, or other politically relevant actors. Yet these entities are abstractions, capable only of acting through people of flesh and blood and, as a result, both international law and constitutional law have drawn up rules relating to representation (Representatives of States in International Relations). In addition, those entities are mostly multi-layered, comprising different groupings which all might have an interest in political decision-making, including the conclusion of treaties. Hence, international law and constitutional law have also seen the development of procedures relating to the conclusion of treaties. To the extent that these rules are part of international law, they have been laid down in the Vienna Convention on the Law of Treaties (1969) (‘VCLT’); in addition, the topic is governed by the municipal laws of States, the internal rules of international organizations (International Organizations or Institutions, Internal Law and Rules), or similar rules within yet different entities.

B.  The Treaty-Making Process

2  The conclusion of treaties typically goes through a number of stages. There is, first of all, the pre-negotiation stage: domestic actors need to acquire the approval of the competent domestic authorities to engage in negotiations. Then follows the negotiation stage: representatives of the entities involved, duly empowered by their respective authorities, sit down together in order to reach agreement. The text of the said agreement will typically be authenticated, adopted, and signed. In some cases, signature acts as the final expression of consent to be bound; in such case, the treaty can be said to enter into force upon signature. In other cases—often the politically more sensitive ones—the text itself will specify that ratification or a similar procedure will still be required. In such a case, the municipal authorities are expected to submit the treaty to some domestic body for approval; often this will be a parliament. Once approval has been given, the competent domestic authority can proceed to ratify the treaty, after which it may enter into force.

3  Multilateral treaties are often prepared under the auspices of international organizations, utilizing the technical support of the organization in question. While the formation of the political will to become bound will follow domestic processes and procedures similar to those engaged with bilateral treaty-making, there may be technical differences on the international level: there may, for example, be a requirement that the treaty can only be amended upon approval by the organization in question or one of its organs (see also Treaties, Amendment and Revision). Multilateral treaties may, of course, also be concluded outside organizational channels, by convening ad hoc conferences. Often, multilateral treaties will not require for their entry into force that all signatory States will ratify; usually, a minimum number of ratifications will suffice, although the precise number may differ from treaty to treaty.

4  While the above may be the classical (if highly stylized) rendition of the treaty-making process, it is becoming increasingly common for international commitments to be made through informal channels, eg by networks of civil servants or through the concerted action of regulatory agencies. There is some debate, however, as to whether the resulting agreements can be considered treaties, or whether other designations (Soft Law, informal agreements) would be more appropriate.

5  The main challenge these days resides, as many would agree, in trying to find the right balance between flexibility and democracy. On the one hand, it is deemed necessary that governments can proceed quickly once they reach agreement—an overdose of formalities might hamper international co-operation. On the other hand, it is also necessary to protect democracy and parliamentary prerogatives: surely, the legislative space for parliaments should not be limited by granting governments the possibility to tie parliaments’ hands by entering into international commitments. There is a deeper aspect to this as well: the involvement of democratic institutions is generally thought to enhance the political legitimacy of the agreements concerned which, in turn, would increase the probability of compliance.

C.  Historical Background

6  Historically, treaties used only to enter into force upon ratification (see also History of International Law, Ancient Times to 1648). Emperors and kings would consider themselves the personification of their states (‘L’Etat, c’est moi’, in the famous words of Louis XIV), and would insist that the plenipotentiaries they would send to conduct negotiations would not actually bind the State; for that, the king’s or emperor’s approval was deemed necessary (see also Treaty Making Power). Domestic procedure, as a result, could be fairly limited: the king was expected somehow to present his plenipotentiaries with a document summing up the scope of their powers—nowadays generally referred to as full powers—and the king was supposed either to approve or disapprove of the negotiated outcome. And when a treaty was silent as to whether ratification was actually required, it was safe to assume that mere signature would not suffice. Still, there was an understanding that treaties would be ratified, unless the envoy had exceeded his authority, and refusals to ratify met with objections.

7  With the fading away of absolutism and the rise of popular democracy towards the end of the 18th century, this old practice changed somewhat: domestic approval typically became, in democracies at least, the preserve of representative institutions (see also History of International Law, 1648 to 1815). There would be two vital differences though. First, consulting a parliament will, in the normal course of events, take more time than consulting a king. Hence, the system would run the risk of becoming less flexible, less responsive to changing international power configurations. Second, a duty to ratify would be difficult to reconcile with democratic theory, as it would render democratic control over foreign policy illusory. Hence, ratification became discretionary.

D.  Conclusion and Entry into Force of Treaties under the VCLT

8  The VCLT is fairly agnostic on the issue of whether signature or ratification expresses consent to be bound, and simply holds that both would qualify, given the right circumstances, as would less solemn variations upon ratification (acceptance or approval) or the rather different institution of accession. Consent to be bound may also be expressed by exchanging instruments which together constitute a treaty, and Art. 11 VCLT underlines the limited interest of international law in issues of form by specifying that ‘any other means if so agreed’ may constitute an expression of consent to be bound. Here one might predominantly think of acting in accordance with the terms of a treaty: if done for a long period of time and with an apparent intent to be bound, then it would not be unreasonable to conclude that such behaviour may be construed as expressing consent to be bound, as Canada’s Supreme Court concluded in 1974 in its decision in Chateau-Gai Wines Ltd v Institut National des Appellations d’origine des Vins et Eaux-de-vie (69 ILR 284). The International Court of Justice (ICJ), moreover, in the Aegean Sea Continental Shelf Case (Greece v Turkey), seemed to work on the assumption that an unsigned and un-initialled press communiqué could nonetheless constitute a valid treaty.

9  The VCLT respects the importance of domestic treaty-making procedures, but does not place a premium on them. Under Art. 46 VCLT, it is possible to invoke a violation of domestic treaty-making rules in order to establish the treaty’s invalidity (Treaties, Validity; see also International Law and Domestic [Municipal] Law), but only if the violation concerned a domestic norm of fundamental importance (violating an internal ministry circular will not do) and if the violation was manifest, which Art. 46 VCLT defines as being objectively evident to the treaty partner acting in good faith (bona fide). As the precise scope and meaning of domestic treaty-making procedures is often uncertain and contested, it should come as no surprise that Art. 46 VCLT has rarely (if at all) been invoked successfully. As the ICJ suggested in the Land and Maritime Boundary between Cameroon and Nigeria Case (Cameroon v Nigeria), one would expect such domestic rules to be ‘at least properly publicized’ ([2002] ICJ Rep 303 para. 265), in particular when such rules are thought to limit the treaty-making powers certain individuals possess by virtue of international law.

10  Under Art. 7 VCLT, heads of State, heads of government (Heads of Governments and other Senior Officials), and Foreign Ministers are ex officio empowered to perform all acts relating to the conclusion of treaties. The position of Heads of State and Heads of Government is fairly self-explanatory; the position of Foreign Ministers was confirmed by the Permanent Court of International Justice (PCIJ) in the Eastern Greenland Case, holding that a reply by Norway’s Foreign Minister to a question posed by the Danish ambassador was binding on Norway by virtue of the Foreign Minister’s function. Ambassadors (Heads of Diplomatic Missions and Consular Posts) and representatives to conferences or international organizations carry more limited functional powers; their powers under Art. 7 VCLT do not extend beyond adopting a text, and are limited to the state, conference, or organization to which they are accredited

E.  Special Legal Problems

11  It would seem fair to say that most legal and political issues surrounding the conclusion and entry into force of treaties have to do with reservations (Treaties, Multilateral, Reservations to).

12  However, other legal problems may arise from time to time. One of these is the question of whether State agencies can conclude agreements which would bind them, but not their States (often referred to as administrative agreements or, in US parlance, sometimes also as executive agreements). The general consensus seems to be that this is not possible in international law. While it is generally accepted that administrative agencies or government branches may enter into agreements with their counterparts, those agreements are nonetheless typically regarded (as by the European Court of Justice in Case C-327/91 France v Commission [1994] ECR I-3641) as having been concluded on behalf of their States, and as binding those States and, if things go wrong, as incurring the responsibility of the State (State Responsibility) rather than the agency, regardless of whether domestic rules would militate against the conclusion of such agreements (see also International Administrative Law).

13  Another legal question relates to the scope of the so-called interim obligation: the obligation, laid down in Art. 18 VCLT, not to defeat the object and purpose of a treaty pending ratification, or pending entry into force (Treaties, Object and Purpose). This rule is particularly useful with bilateral, contractual treaties, such as treaties ceding territory (see also Cession) or selling military installations. On the few occasions on which Art. 18 VCLT has come before a court in connection with a legislative treaty, the court in question has tended to focus on manifest bad intent or, as the European Court of First Instance did in Case T-115/94 Opel Austria GmbH v Council ([1997] ECR II-39), on protection of legitimate expectations.

14  While treaties may sometimes be applied on a provisional basis (Treaties, Provisional Application), they usually enter into force in accordance with their own provisions. This, however, creates something of a logical problem: why should a State follow those treaty provisions on entry into force if it has no obligation to do so? After all, the treaty is not yet in force, so neither will be its provisions on entry into force. To prevent this from stifling any form of co-operation, Art. 24 VCLT stipulates that a treaty’s provisions on entry into force and, indeed, all matters ‘arising necessarily before the entry into force of the treaty’ apply from the moment the text of the treaty has been adopted. These provisions then derive their legal force from Art. 24 VCLT, rather than from the treaty itself. This in turn could raise the question of whether Art. 24 also binds States that are not parties to the VCLT; it would seem fair to suggest that the rule is one of customary international law, and therefore also applicable to those States.

15  While many consider the conclusion and entry into force of treaties to be dry lawyer’s law, it does have political aspects as well, in particular when it comes to what is fashionably referred to as ‘treaty design’. Questions such as whether or not a treaty should enter into force upon signature or ratification; or whether the treaty should include a dispute settlement mechanism in order to stimulate compliance; or whether or not it should facilitate the making of reservations; and perhaps even the question of whether the treaty-form is the most appropriate for the transaction concerned, are all eventually political questions, the answers to which will eventually be reflected in a treaty.

F.  Assessment

16  The rules on conclusion and entry into force need to find a balance between flexibility and stability. Too flexible an approach might undermine legal certainty and democratic prerogatives; too little flexibility might make it impossible to respond to changing political circumstances, and render the law obsolete. The VCLT strikes a fair balance between these two desiderata: it promotes stability, but has an open mind (sometimes somewhat underestimated) to flexibility as well, as exemplified by the possibility of applying treaty regimes provisionally and the facility of making reservations. Most often then, the complaint that treaty-making is slow and cumbersome applies to domestic procedures rather than to international requirements. It is useful to remember, though, that those domestic procedures typically aim to protect democratic prerogatives, and allow parliaments to exercise control over foreign policy in a meaningful way. Surely that in itself is nothing to frown upon.