Negotiation, Adoption and Authentication

Negotiation, Adoption and Authentication are important preliminary stages in the treaty-making process under International Law. They occur before a State finally expresses its consent to be bound by a treaty. The Vienna Convention on the Law of Treaties, 1969 (VCLT) provides the principal rules governing these stages.

The basic sequence is:

Negotiation → Adoption → Authentication → Consent to be Bound

Negotiation

Negotiation is the process through which States discuss and formulate the terms of a proposed treaty.

States negotiate matters such as:

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

Negotiations may take place directly between States or through an international conference or international organisation.

Participation in Negotiations

States normally participate through authorised representatives.

Under Article 7 VCLT, certain persons are considered to represent their State by virtue of their functions and generally do not need to produce full powers.

These include:

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

Other representatives generally require full powers or appropriate authority.

Full Powers

Full powers are formal authority granted by a State to a person authorising them to represent the State for specified treaty-related acts.

The purpose is to ensure that the person negotiating or acting on behalf of the State has the necessary authority.

However, a State may subsequently confirm an act performed without proper authorisation under Article 8 VCLT.

Stages of Negotiation

Negotiations generally involve:

Identification of subject

↓

Exchange of proposals

↓

Discussion and drafting

↓

Compromise

↓

Agreement on final text

↓

Adoption

The precise procedure varies according to the nature of the treaty.

Good Faith in Negotiations

States are expected to conduct international negotiations in good faith.

Good-faith negotiations require States to genuinely participate in the process rather than using negotiations merely to obstruct an agreement.

However, the mere participation of a State in negotiations does not necessarily mean that it has consented to be legally bound by the eventual treaty.

Adoption of Treaty Text

After negotiations have produced an agreed text, the treaty text is formally adopted.

The rules concerning adoption are primarily contained in Article 9 VCLT.

Adoption means that the negotiating States agree upon the text of the treaty.

It is therefore important to distinguish:

Adoption of text

from

Consent to be bound

Adoption establishes the agreed wording of the treaty but does not necessarily make every participating State legally bound by it.

Adoption at an International Conference

When a treaty is negotiated at an international conference, the VCLT provides a specific rule for adoption.

Under Article 9(2) VCLT, adoption of the text generally requires a two-thirds majority of the States present and voting, unless those States decide by the same majority to apply a different rule.

Adoption and Consent

Adoption does not itself necessarily establish consent to be bound.

For example:

States negotiate

↓

Treaty text adopted

↓

State signs

↓

Ratification required

↓

State becomes bound after valid consent and entry into force

Therefore:

Adoption concerns the treaty text; consent to be bound concerns the legal obligation of the State.

Authentication

After adoption, the treaty text must be authenticated.

Authentication is the process through which the negotiating States establish that the text is authentic and definitive.

The rules are contained in Article 10 VCLT.

Purpose of Authentication

Authentication serves to:

• establish the final and authoritative treaty text;
• prevent disputes about the agreed wording;
• confirm that the text is the version adopted by the negotiating States.

After authentication, the text cannot ordinarily be altered except through the appropriate legal procedures.

Methods of Authentication

Under Article 10 VCLT, the text of a treaty may be authenticated by:

• a procedure provided for in the treaty;
• a procedure agreed upon by the States participating in its drawing up;
• signature;
• signature ad referendum;
• initialling.

Signature as Authentication

Signature can perform more than one function.

It may:

Authenticate the treaty text

and, depending upon the treaty:

Express consent to be bound

Therefore, the legal effect of signature must be determined from the treaty and the circumstances.

Initialling

Initialling involves placing the initials of representatives on the treaty text.

It may serve as a means of authenticating the text where the parties agree to use it.

Initialling does not necessarily mean that the State has given its final consent to be bound.

Signature Ad Referendum

A signature ad referendum is a conditional signature subject to confirmation by the competent authority of the State.

Once properly confirmed, it may have the legal effect specified under the applicable treaty rules.

Difference Between Negotiation, Adoption and Authentication

Negotiation	Adoption	Authentication
States discuss and formulate the treaty	States formally agree on the treaty text	States establish the authentic and definitive text
Involves drafting and compromise	Concludes the text-setting stage	Confirms the final version
Proposals are exchanged	Text is formally adopted	Text becomes authoritative
Article 7 relevant to representation	Article 9 VCLT	Article 10 VCLT
Does not itself create treaty obligation	Does not necessarily create consent to be bound	Does not necessarily create consent to be bound

Negotiation vs Adoption

Negotiation

Answers:

“What should the treaty contain?”

Adoption

Answers:

“What is the agreed treaty text?”

Adoption vs Authentication

Adoption

The negotiating States formally accept the text as the agreed text.

Authentication

The States establish that the adopted text is the authentic and definitive version.

Thus:

Adoption → agreement on text

Authentication → confirmation of definitive text

Authentication vs Signature

Signature may authenticate the treaty, but it may also have the additional function of expressing consent to be bound.

Therefore, the effects of signature must be determined in accordance with the applicable treaty rules.

Role of International Conferences

Many important multilateral treaties are negotiated through international conferences.

The conference may establish:

• rules of procedure;
• voting arrangements;
• negotiating committees;
• drafting groups;
• methods for adoption and authentication.

The precise process depends upon the conference and the treaty.

Treaty-Making Process

Negotiation, adoption and authentication form part of the larger treaty-making process:

Negotiation

↓

Adoption

↓

Authentication

↓

Signature

↓

Ratification / Acceptance / Approval

or

Accession

↓

Deposit / Exchange of Instruments

↓

Entry into Force

↓

Performance

However, signature may itself constitute consent to be bound where the treaty so provides or where the circumstances establish that intention.

Article 18 VCLT

After signing a treaty, a State may have an obligation under Article 18 VCLT to refrain from acts that would defeat the object and purpose of the treaty in specified circumstances.

This is particularly relevant where:

• the State has signed the treaty subject to ratification; or
• it has expressed its consent to be bound but the treaty has not yet entered into force.

This obligation should be distinguished from the full binding force of the treaty under Article 26 after entry into force.

Unauthorised Treaty Acts

Where a person performs an act relating to the conclusion of a treaty without proper authority, Article 8 VCLT provides that the act has no legal effect unless subsequently confirmed by the State.

This protects States against unauthorised commitments.

Important VCLT Provisions

Article	Subject
Article 6	Capacity of States
Article 7	Representation and full powers
Article 8	Subsequent confirmation of unauthorised acts
Article 9	Adoption of text
Article 10	Authentication of text
Article 11	Methods of expressing consent to be bound
Article 12	Consent by signature
Article 13	Consent by exchange of instruments
Article 14	Ratification, acceptance or approval
Article 15	Accession
Article 16	Exchange/deposit of instruments
Article 18	Obligation not to defeat object and purpose

Important Case

Qatar v. Bahrain, 1994

In Maritime Delimitation and Territorial Questions between Qatar and Bahrain, the ICJ examined written instruments exchanged between the parties and considered whether they constituted international agreements creating binding legal obligations.

The case is important because it demonstrates that the legal character of an international instrument depends upon its substance and intention, rather than merely its title or form.

Quick Revision

• Negotiation → States discuss and formulate treaty terms.
• Article 7 VCLT → representatives and full powers.
• Heads of State, Heads of Government and Ministers for Foreign Affairs generally do not require full powers for specified treaty acts.
• Article 8 → unauthorised acts can subsequently be confirmed.
• Adoption → formal agreement on the treaty text.
• Article 9 → adoption.
• At an international conference, adoption generally requires a two-thirds majority of States present and voting, unless another rule is adopted by the same majority.
• Authentication → establishes the treaty text as authentic and definitive.
• Article 10 → authentication.
• Authentication may occur through:
  • agreed procedure;
  • signature;
  • signature ad referendum;
  • initialling.
• Adoption ≠ consent to be bound.
• Authentication ≠ necessarily consent to be bound.
• Signature may authenticate the text and may, depending on the circumstances, also express consent to be bound.
• Article 18 → obligation not to defeat the object and purpose of a treaty in specified circumstances.
• Qatar v. Bahrain (1994) → substance and intention are important in identifying binding international agreements.

Conclusion

Negotiation, Adoption and Authentication constitute important preliminary stages in the treaty-making process under International Law. During negotiation, States discuss, draft and modify proposed treaty provisions through their authorised representatives. Article 7 of the Vienna Convention on the Law of Treaties, 1969 identifies persons who may represent States without producing full powers, while other representatives generally require appropriate authority. Once negotiations are completed, the treaty text is formally adopted under Article 9. Adoption establishes the agreed text but does not, by itself, necessarily constitute the State’s consent to be legally bound. The adopted text is then authenticated under Article 10, establishing the text as the authentic and definitive version. Authentication may take place through an agreed procedure, signature, signature ad referendum or initialling. These stages must therefore be distinguished carefully: negotiation produces the proposed terms, adoption establishes the agreed text, and authentication establishes the authoritative version of that text. Only thereafter, depending upon the treaty, does the State express its consent to be bound through signature, ratification, acceptance, approval, accession or another recognised method. The distinction between these stages is essential because participation in negotiations or adoption of a treaty text does not automatically mean that a State has accepted the treaty as legally binding upon itself.