Treaty-Making Process

The Treaty-Making Process refers to the series of legal and diplomatic steps through which States negotiate, adopt, authenticate, accept and ultimately become bound by an international treaty. The process is principally regulated by the Vienna Convention on the Law of Treaties, 1969 (VCLT).

The basic process can be remembered as:

Negotiation → Adoption → Authentication → Signature → Ratification/Acceptance/Approval → Consent to be Bound → Entry into Force → Registration → Performance

Negotiation

Treaty-making generally begins with negotiations between the States concerned.

States discuss and settle:

• subject matter;
• rights and obligations;
• definitions;
• procedures;
• implementation mechanisms;
• dispute settlement;
• duration and termination.

Negotiations may take place through:

• diplomatic representatives;
• government officials;
• international conferences;
• specialised international organisations.

The negotiating States prepare a draft treaty text based on the negotiations.

Representation of States

A State participates in treaty-making through representatives authorised to act on its behalf.

Under Article 7 of the VCLT, certain officials are considered to represent their State by virtue of their functions and generally do not need to produce full powers for treaty-related acts.

These include:

• Heads of State;
• Heads of Government;
• Ministers for Foreign Affairs.

Other representatives normally require appropriate full powers.

Full Powers

Full powers are formal authority granted by a State to a person to represent it in performing specified acts relating to a treaty.

For example:

State → grants full powers

↓

Representative → negotiates/signs treaty

↓

State → may become bound according to applicable procedure

The requirement of full powers ensures that a person negotiating or signing a treaty has the necessary authority to act for the State.

Adoption of the Treaty Text

Once negotiations have produced an agreed draft, the treaty text is adopted.

Article 9 VCLT deals with adoption of the text.

At this stage, the States agree on the text of the treaty.

It is important to distinguish:

Adoption of text

from

Consent to be bound

Adoption means agreement on the wording of the treaty. It does not necessarily mean that every State has already accepted the treaty as legally binding upon itself.

Authentication of the Treaty Text

After adoption, the treaty text is authenticated.

Authentication establishes that the text is the definitive and authentic version agreed by the negotiating States.

Under Article 10 VCLT, authentication may take place through:

• procedure provided in the treaty;
• procedure agreed by participating States;
• signature;
• signature ad referendum;
• initialling.

Signature

Signature may have different legal effects depending upon the treaty.

In some treaties:

Signature = Consent to be bound

In others:

Signature → Authentication / preliminary acceptance

↓

Ratification required

Therefore, signature does not necessarily mean that the State has become fully bound by the treaty.

Ratification

Ratification is the formal international act by which a State establishes its consent to be bound by a treaty where the treaty requires or permits ratification.

A common process is:

Negotiation

↓

Signature

↓

Domestic approval

↓

Ratification

↓

Deposit/exchange of instrument

↓

Entry into force

Ratification should be distinguished from domestic approval.

Domestic ratification procedure → internal constitutional process

International ratification → international act expressing consent to be bound

Acceptance and Approval

Acceptance and approval are alternative methods through which a State may express its consent to be bound.

Under the VCLT, they generally have effects comparable to ratification.

The particular procedure depends upon the treaty and the constitutional requirements of the State.

Accession

Accession is the method by which a State becomes a party to a treaty that it did not sign during the period when the treaty was open for signature.

For example:

Treaty adopted

↓

State does not sign

↓

Treaty remains open for accession

↓

State deposits instrument of accession

↓

State becomes bound according to treaty conditions

Accession is particularly common with multilateral treaties.

Consent to Be Bound

Under Article 11 VCLT, the consent of a State to be bound by a treaty may be expressed through various methods, including:

• signature;
• exchange of instruments constituting a treaty;
• ratification;
• acceptance;
• approval;
• accession;
• other means if agreed.

The particular method depends upon the treaty and the intention of the parties.

Exchange of Instruments

In some cases, States express their consent to be bound through an exchange of instruments.

The exchanged documents collectively constitute the international agreement.

This method may be used where the States have agreed that an exchange of instruments will establish their treaty relationship.

Entry into Force

A treaty becomes legally operative when it enters into force according to its provisions or the agreement of the negotiating States.

Article 24 VCLT provides the general rules concerning entry into force.

A treaty may specify that it enters into force:

• on a particular date;
• after a specified number of ratifications;
• upon fulfilment of particular conditions;
• upon exchange or deposit of instruments.

Deposit of Instruments

For many multilateral treaties, instruments of:

• ratification;
• acceptance;
• approval;
• accession

are deposited with a designated depositary.

The depositary performs administrative functions relating to the treaty.

These may include:

• receiving instruments;
• notifying States;
• circulating information;
• maintaining treaty records;
• informing parties of signatures and ratifications.

Depositary

A treaty may designate:

• a State;
• an international organisation;
• an official of an international organisation

as its depositary.

For major multilateral treaties, the Secretary-General of the United Nations frequently acts as depositary.

Reservations

A State may seek to limit the legal effect of particular treaty provisions through a reservation, where permitted.

Under Article 2(1)(d) VCLT, a reservation is a unilateral statement made by a State when signing, ratifying, accepting, approving or acceding to a treaty, by which it purports to exclude or modify the legal effect of certain provisions in their application to that State.

Reservations are principally governed by Articles 19–23 VCLT.

Permissibility of Reservations

Under Article 19 VCLT, a State may formulate a reservation unless:

• the treaty prohibits reservations;
• the treaty permits only specified reservations and the proposed reservation is not among them; or
• the reservation is incompatible with the object and purpose of the treaty.

Objection to Reservations

Other States may:

• accept a reservation; or
• object to it.

The legal consequences depend upon the nature of the objection and the intention of the States concerned.

Registration and Publication

After a treaty enters into force, it may be registered and published in accordance with applicable international requirements.

Article 102 of the UN Charter requires treaties and international agreements entered into by UN Members to be registered with and published by the UN Secretariat.

An important consequence is that a party cannot invoke an unregistered treaty or international agreement before an organ of the United Nations.

Performance of the Treaty

Once a treaty has entered into force, the parties are required to perform their obligations.

The fundamental principle is pacta sunt servanda.

Under Article 26 VCLT:

Every treaty in force → binding upon the parties

↓

Must be performed → in good faith

Domestic Law and Treaty-Making

The treaty-making process may also involve domestic constitutional requirements.

For example, a State’s constitution may require:

• parliamentary approval;
• legislative authorisation;
• executive approval;
• other constitutional procedures.

These domestic requirements determine how the State internally authorises treaty-making.

However, under Article 27 VCLT, a State generally cannot invoke its internal law as justification for failure to perform a treaty.

Invalidity at the Treaty-Making Stage

A treaty may be affected by defects in the process of obtaining consent.

Important grounds include:

• error;
• fraud;
• corruption of a representative;
• coercion of a representative;
• coercion of a State by threat or use of force;
• conflict with jus cogens.

These are primarily addressed in Articles 46–53 VCLT.

Coercion

Under Article 52 VCLT, a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of International Law embodied in the UN Charter.

This ensures that treaty obligations cannot lawfully be created through prohibited coercion of States.

Treaty-Making Process in Sequence

The complete process can be simplified as follows:

Negotiation

States negotiate the contents of the treaty.

↓

Representation

Authorised representatives participate.

↓

Adoption

The treaty text is formally adopted.

↓

Authentication

The definitive treaty text is established.

↓

Signature

States sign the treaty according to the applicable procedure.

↓

Ratification / Acceptance / Approval

Where required, States formally express their consent.

↓

Accession

A State that did not sign may join where the treaty permits accession.

↓

Deposit / Exchange of Instruments

Relevant instruments are deposited or exchanged.

↓

Entry into Force

The treaty becomes legally operative according to its terms.

↓

Registration

The treaty may be registered under applicable international requirements.

↓

Performance

States perform their obligations in good faith.

Treaty-Making Process and Consent

The most important distinction is between adoption of a treaty text and consent to be bound.

Adoption

Means:

“We agree on this text.”

Consent to Be Bound

Means:

“We accept legal obligations under this treaty.”

A State may therefore participate in adopting and signing a treaty without immediately becoming fully bound by it if ratification or another subsequent act is required.

Treaty-Making Process and Ratification

Ratification is not always required.

It depends upon:

• treaty provisions;
• intention of the negotiating States;
• method selected for expressing consent.

Therefore:

Every treaty does not necessarily require ratification.

Treaty-Making Process and Accession

The difference is:

Signature → State signs while treaty is open for signature

Accession → State joins later without having signed

Both may ultimately result in consent to be bound.

Treaty-Making Process and Reservations

Reservations may generally be made at the stage of:

• signature;
• ratification;
• acceptance;
• approval;
• accession.

But they are subject to the treaty and the VCLT rules.

Important VCLT Provisions

Article	Subject
Article 6	Capacity of States
Article 7	Representatives and full powers
Article 8	Subsequent confirmation of unauthorised acts
Article 9	Adoption of text
Article 10	Authentication
Article 11	Methods of expressing consent
Article 12	Consent expressed by signature
Article 13	Exchange of instruments
Article 14	Ratification, acceptance or approval
Article 15	Accession
Article 16	Exchange/deposit of instruments
Article 17	Consent to part of treaty and choice of differing provisions
Article 18	Obligation not to defeat object and purpose
Articles 19–23	Reservations
Article 24	Entry into force
Article 25	Provisional application
Article 26	Pacta sunt servanda
Article 27	Internal law and performance

Important Cases

Qatar v. Bahrain, 1994

The ICJ considered whether written instruments constituted international agreements capable of creating binding legal obligations.

The case demonstrates that the substance and intention of an instrument are important in determining whether it creates treaty obligations.

Reservations to the Genocide Convention, 1951

The ICJ Advisory Opinion is a leading authority concerning reservations and the object and purpose of multilateral treaties.

Nuclear Tests, 1974

The ICJ considered unilateral declarations by States and their potential to create international legal obligations.

The case is important for understanding that international obligations may arise from certain unilateral acts, although such acts are distinct from the ordinary treaty-making process.

Treaty-Making Process: Exam Flowchart

Negotiation

↓

Adoption of Text

↓

Authentication

↓

Signature

↓

Ratification / Acceptance / Approval

OR

Accession

↓

Deposit / Exchange of Instruments

↓

Entry into Force

↓

Registration

↓

Performance in Good Faith

Quick Revision

• Treaty-making begins with negotiation.
• States act through authorised representatives.
• Article 7 VCLT → representatives and full powers.
• Article 9 → adoption of treaty text.
• Article 10 → authentication.
• Signature does not always mean immediate consent to be bound.
• Article 11 → methods of expressing consent.
• Article 12 → consent by signature.
• Article 14 → ratification, acceptance or approval.
• Article 15 → accession.
• Article 16 → exchange or deposit of instruments.
• Article 18 → obligation not to defeat the object and purpose of a treaty before entry into force in the specified circumstances.
• Articles 19–23 → reservations.
• Article 24 → entry into force.
• Article 25 → provisional application.
• Article 26 → pacta sunt servanda.
• Article 27 → internal law generally cannot justify non-performance.
• Adoption of text and consent to be bound are different stages.
• Ratification is not required for every treaty.
• Accession allows a State that did not sign to become a party where permitted.
• Article 102 UN Charter → registration of treaties with the UN.
• The basic sequence is:

Negotiation → Adoption → Authentication → Signature → Ratification/Acceptance/Approval or Accession → Deposit/Exchange → Entry into Force → Registration → Performance.

Conclusion

The Treaty-Making Process is the procedure through which States negotiate, formulate, authenticate, accept and become legally bound by international agreements. The process is principally regulated by the Vienna Convention on the Law of Treaties, 1969. It normally begins with negotiation, followed by the adoption and authentication of the treaty text. States then express their consent to be bound through methods recognised by the VCLT, including signature, ratification, acceptance, approval, accession or exchange of instruments. Ratification is not mandatory in every case; its necessity depends upon the treaty and the method chosen by the States. Reservations may be formulated at specified stages but are subject to the limitations established by Articles 19–23. Once the required conditions are fulfilled, the treaty enters into force and becomes binding upon its parties. Under Article 26 VCLT, the principle of pacta sunt servanda requires treaties in force to be performed in good faith. Registration under Article 102 of the UN Charter is also significant for treaties involving UN Members. The treaty-making process therefore reflects both State sovereignty and international legal consent, while the VCLT provides a structured framework ensuring that international agreements are properly negotiated, authenticated, accepted and performed.