The Lifecycle Of A Treaty- A Comprehensive Guide

Introduction

According to the Vienna Convention on the Law of Treaties (VCLT), a treaty is an “international agreement concluded between states in written form and governed by international law.”^[1] The mandatory character of treaties is based on the customary international law notion that agreements are legally binding (PACTA SUNT SERVANDA).

The creation of a treaty is not merely a bureaucratic exercise, but a dynamic interplay of negotiation, consent, and commitment. It reflects the evolving nature of international relations and the ongoing effort to create a more stable and predictable world order.

Furthermore, the Vienna Convention on the Law of Treaties, in its wisdom, has given structure to this intricate process. It’s as if the convention provides a common language for nations to speak, allowing them to navigate the delicate balance between their sovereignty and the need for a harmonious global community.

Even though there exists no specific form or procedure prescribed by international law as established in the case of Temple Of Preah Vihear.^[2] The following steps are generally adopted in concluding a treaty:

1. Accrediting of Persons by the Contracting States

   Under international law, nations possess the ability to enter into agreements. However, as states are not individual human beings, specific criteria have developed to verify that those representing states have the authority to do so in order to finalize the relevant treaty.

   Individuals must show “full powers” in accordance with Article 7 of the Convention to be recognized as authorized representatives of their respective nations. The term ‘full powers’ denotes official papers issued by the competent authorities of a certain state to confirm their position.

   This section ensures the other parties to the treaty that they are entering into agreements with individuals who have the necessary authority to do so, providing them with security.

   However, some individuals are exempt from the need to provide comprehensive powers of attorney due to their specific roles and responsibilities. This exception pertains to:

   • Heads of state and government
   • Foreign ministers
   • Heads of diplomatic missions who have the authority to approve the text of the treaty
   • Representatives accredited to international conferences or organizations

   These individuals are authorized to adopt the text of the treaty within that specific conference or organization.^[3]
   

2. Negotiation

   Generally, the longest stage in the treaty-making process, especially in the case of multilateral treaties. Competing political, economic, and strategic interests come to the fore during this stage.

   In case of multilateral treaties, the negotiating process usually takes place in a succession of organs, starting with smaller groups with a limited membership and moving towards larger organs with more representative membership.

3. Adoption and Authentication of the Text

   The text is adopted with the consent of all participating states unless otherwise specified. At an international conference, adoption occurs through a vote of two-thirds of the states present and voting, unless an alternative rule is agreed upon by the same majority.^[4]

   Article 10 of the Vienna Convention addresses the establishment of the treaty text as authentic and definitive. This can be achieved through a procedure outlined in the text itself or agreed upon by the participating states. Alternatively, in the absence of such a procedure, authenticity can be established through:

   • Signature
   • Signature ad referendum
   • Initialling by representatives of the involved states on the treaty text or the Final Act

   In case of multilateral treaties, the process typically followed is:

   • Adoption of the final text by the negotiating IGO/ad-hoc by way of a resolution
   • Authentication of the final text by way of a Final Act bearing the signatures of participating States

4. Consent of the State

   The consent of the parties involved in the treaty is crucial, as states are only bound by their consent. In this context, treaties function as agreements between states, and their provisions only hold legal weight if they are approved by the respective states involved.

   There are various ways to indicate the formal acceptance of a treaty, such as through:

   • Signatures
   • Exchanging treaty documents
   • Ratification
   • Acceptance
   • Approval
   • Accession

   Furthermore, it can be achieved through alternative methods, if mutually agreed upon.^[6]

   The 1969 Vienna Convention states that when a state ratifies a treaty, it is expressing its consent to be bound by it. This requirement for ratification was agreed upon by the negotiating states. Ratification can be indicated by the state’s representative signing the treaty subject to ratification, or by expressing the intention to do so during negotiations.^[7]

   The provisions related to accession are provided in Article 15 of VCLT. Multilateral treaties generally provide for the possibility of accession to encourage more States to join. Accession is used as a means of expressing consent to be bound by a treaty by States that did not participate in the negotiation of a treaty and/or are not original signatories.^[8]

5. Entry into Force

   A treaty invariably has an “entry into force” provision that sets out how and when a treaty shall come into force. A multilateral treaty generally comes into force once a certain number of States have ratified and acceded to it by depositing instruments of ratification/accession with the designated depository, such as the UN Secretary General.^[9]

   Some multilateral treaties require a minimum number of a certain category of States with a special interest in the subject matter of the treaty to ratify such a treaty for it to come into force.

   If no provisions are there, it enters into force as soon as consent to be bound by the treaty has been established by all the negotiating states.

6. Registration and Publication

   The mandate to register and publish treaties takes its origin in the provisions of Article 102 of the UN Charter, which provides that:

   Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall, as soon as possible, be registered with the Secretariat and published by it.

   No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations.^[10]

Lastly, according to Article 102 of the United Nations Charter, treaties and international agreements must be registered with the Secretary-General of the United Nations to be invoked before any organ of the UN.

However, failure to register a treaty does not automatically imply that it is invalid, as held in the case of Qatar v. Bahrain.^[11]

The main purpose of registration is to promote transparency and the availability of texts of treaties to the public. Additionally, registered treaties cannot be invoked before any organ of the United Nations if they have not been registered.

Therefore, while registration is important for treaties to gain full recognition under international law, its absence does not directly affect a treaty’s validity.

Conclusion
In conclusion, the lifecycle of a treaty is a complex yet fascinating journey that embodies the essence of international cooperation and diplomacy. From the initial accreditation of representatives to the final registration and publication, each stage plays a crucial role in shaping the global legal landscape.

This process, while intricate, serves as a testament to the power of mutual agreement and the importance of clear communication between nations. The Vienna Convention on the Law of Treaties has provided a robust framework that allows countries to navigate the delicate balance between national sovereignty and international obligations. Thus, in an era of increasing global challenges, understanding the lifecycle of treaties becomes even more critical. These international agreements serve as the building blocks for addressing transnational issues, from climate change to human rights, from trade to security.

Lastly, as we look to the future, the process of treaty-making will undoubtedly continue to evolve. However, its fundamental purpose remains unchanged: to foster cooperation, resolve conflicts, and create a shared framework for international conduct. By comprehending this process, we gain insight into the intricate workings of global governance and the ongoing quest for a more harmonious world.

References:

• VCLT 1969, Article 2
• Cambodia v Thailand, Merits, Judgment, [1962] ICJ Rep 6, ICGJ 160 (ICJ 1962)
• VCLT 1969, Article 7
• VCLT 1969, Article 9
• VCLT 1969, Article 10
• VCLT 1969, Article 11
• VCLT 1969, Article 14
• VCLT 1969, Article 15
• VCLT 1969, Article 24
• The UN Charter 1941, Article 102
• Qatar v Bahrain, [1994] ICJ Rep 112, ICGJ 81 (ICJ 1994)