(from the United
Nations Treaty Collection)
This glossary is intended as a general guide and is not
presumed to be exhaustive
- Adoption
- Acceptance or Approval
- Accession
- Act of Formal Confirmation
- Amendment
- Authentication
- Correction of Errors
- Declarations
- Definitive Signature
- Deposit
- Entry into Force
- Exchange of Letters/Notes
- Full Powers
- Modification
- Notification
- Objection
- Provisional Application
- Ratification
- Registration and Publication
- Reservation
- Revision
- Signature ad referendum
- Signature Subject to
Ratification, Acceptance or Approval
1. Adoption
"Adoption" is the formal act by which the form
and content of a proposed treaty text are established. As a general rule, the adoption of
the text of a treaty takes place through the expression of the consent of the states
participating in the treaty-making process. Treaties that are negotiated within an
international organization will usually be adopted by a resolution of a representative
organ of the organization whose membership more or less corresponds to the potential
participation in the treaty in question. A treaty can also be adopted by an international
conference which has specifically been convened for setting up the treaty, by a vote of
two thirds of the states present and voting, unless, by the same majority, they have
decided to apply a different rule.
[Art.9, Vienna Convention of the Law of Treaties 1969]
2. Acceptance and Approval
The instruments of "acceptance" or
"approval" of a treaty have the same legal effect as ratification and
consequently express the consent of a state to be bound by a treaty. In the practice of
certain states acceptance and approval have been used instead of ratification when, at a
national level, constitutional law does not require the treaty to be ratified by the head
of state.
[Arts.2 (1) (b) and 14 (2), Vienna Convention on the Law of
Treaties 1969]
3. Accession
"Accession" is the act whereby a state accepts
the offer or the opportunity to become a party to a treaty already negotiated and signed
by other states. It has the same legal effect as ratification. Accession usually occurs
after the treaty has entered into force. The Secretary-General of the United Nations, in
his function as depositary, has also accepted accessions to some conventions before their
entry into force. The conditions under which accession may occur and the procedure
involved depend on the provisions of the treaty. A treaty might provide for the accession
of all other states or for a limited and defined number of states. In the absence of such
a provision, accession can only occur where the negotiating states were agreed or
subsequently agree on it in the case of the state in question.
[Arts.2 (1) (b) and 15, Vienna Convention on the Law of
Treaties 1969]
4. Act of Formal Confirmation
"Act of formal confirmation" is used as an
equivalent for the term "ratification" when an international organization
expresses its consent to be bound to a treaty.
[Arts.2 (1) (b bis) and 14, Vienna Convention on the Law of
Treaties between States and International Organizations or between International
Organizations 1986]
5. Amendment
The term "amendment" refers to the formal
alteration of treaty provisions affecting all the parties to the particular agreement.
Such alterations must be effected with the same formalities that attended the original
formation of the treaty. Many multilateral treaties lay down specific requirements to be
satisfied for amendments to be adopted. In the absence of such provisions, amendments
require the consent of all the parties.
[Art.40, Vienna Convention of the Law of Treaties 1969]
6. Authentication
The term "authentication" refers to the procedure
whereby the text of a treaty is established as authentic and definitive. Once a treaty has
been authenticated, states cannot unilaterally change its provisions. If states which
negotiated a given treaty do not agree on specific procedures for authentication, a treaty
will usually be authenticated by signature, signature ad referendum or the initialing by
the representatives of those states.
[Art.10, Vienna Convention on the Law of Treaties 1969]
7. Correction of Errors
If, after the authentication of a text, the signatory and
contracting states are agreed that it contains an error, it can be corrected by initialing
the corrected treaty text, by executing or exchanging an instrument containing the
correction or by executing the corrected text of the whole treaty by the same procedure as
in the case of the original text. If there is a depositary, the depositary must
communicate the proposed corrections to all signatory and contracting states. In the UN
practice, the Secretary-General, in his function as depositary, informs all parties to a
treaty of the errors and the proposal to correct it. If, on the expiry of an appropriate
time-limit, no objections are raised by the signatory and contracting states, the
depositary circulates a proces-verbal of rectification and causes the corrections to be
effected in the authentic text(s).
[Art.79, Vienna Convention on the Law of Treaties 1969]
8. Declarations
Sometimes states make "declarations" as to their
understanding of some matter or as to the interpretation of a particular provision. Unlike
reservations, declarations merely clarify the state's position and do not purport to
exclude or modify the legal effect of a treaty. Usually, declarations are made at the time
of the deposit of the corresponding instrument or at the time of signature.
9. Definitive Signature
When the treaty is not subject to ratification, acceptance
or approval, "definitive signature" establishes the consent of the state to be
bound by the treaty. Most bilateral treaties dealing with more routine and less
politicized matters are brought into force by definitive signature, without recourse to
the procedure of ratification.
[Art.12, Vienna Convention on the Law of Treaties 1969]
10. Deposit
After a treaty has been concluded, the written instruments,
which provide formal evidence of consent to be bound, and also reservations and
declarations, are placed in the custody of a depositary. Unless the treaty provides
otherwise, the deposit of the instruments of ratification, acceptance, approval or
accession establishes the consent of a state to be bound by the treaty. For treaties with
a small number of parties, the depositary will usually be the government of the state on
whose territory the treaty was signed. Sometimes various states are chosen as
depositaries. Multilateral treaties usually designate an international organization or the
Secretary-General of the United Nations as depositaries. The depositary must accept all
notifications and documents related to the treaty, examine whether all formal requirements
are met, deposit them, register the treaty and notify all relevant acts to the parties
concerned.
[Arts.16, 76 and 77, Vienna Convention on the Law of
Treaties 1969]
11. Entry into Force
Typically, the provisions of the treaty determine the date
on which the treaty enters into force. Where the treaty does not specify a date, there is
a presumption that the treaty is intended to come into force as soon as all the
negotiating states have consented to be bound by the treaty. Bilateral treaties may
provide for their entry into force on a particular date, upon the day of their last
signature, upon exchange of the instruments of ratification or upon the exchange of
notifications. In cases where multilateral treaties are involved, it is common to provide
for a fixed number of states to express their consent for entry into force. Some treaties
provide for additional conditions to be satisfied, e.g., by specifying that a certain
category of states must be among the consenters. The treaty may also provide for an
additional time period to elapse after the required number of countries have expressed
their consent or the conditions have been satisfied. A treaty enters into force for those
states which gave the required consent. A treaty may also provide that, upon certain
conditions having been met, it shall come into force provisionally.
[Art.24, Vienna Convention on the Law of Treaties 1969]
12. Exchange of Letters/Notes
States may express their consent to be bound by an
"exchange of letters/notes". The basic characteristic of this procedure is that
the signatures do appear not on one letter or note but on two separate letters or notes.
The agreement therefore lies in the exchange of both letters or notes, each of the parties
having in their possession one letter or note signed by the representative of the other
party. In practice, the second letter or note, usually the letter or note in response,
will typically reproduce the text of the first. In a bilateral treaty, letters or notes
may also be exchanged to indicate that all necessary domestic procedures have been
completed.
[Art.13, Vienna Convention on the Law of Treaties 1969]
13. Full Powers
"Full powers" means a document emanating from the
competent authority of a state designating a person or persons to represent the state for
negotiating, adopting, authenticating the text of a treaty, expressing the consent of a
state to be bound by a treaty, or for accomplishing any other act with respect to that
treaty. Heads of State, Heads of Government and Ministers for Foreign Affairs are
considered as representing their state for the purpose of all acts relating to the
conclusion of a treaty and do not need to present full powers. Heads of diplomatic
missions do not need to present full powers for the purpose of adopting the text of a
treaty between the accrediting state and the state to which they are accredited. Likewise,
representatives accredited by states to an international conference or to an international
organization or one of its organs do not need to present full powers for the purpose of
adopting the text of a treaty in that conference, organization or organ.
[Art.2 (1) (c) and Art.7 Vienna Convention on the Law of
Treaties 1969]
14. Modification
The term "modification" refers to the variation
of certain treaty provisions only as between particular parties of a treaty, while in
their relation to the other parties the original treaty provisions remain applicable. If
the treaty is silent on modifications, they are allowed only if the modifications do not
affect the rights or obligations of the other parties to the treaty and do not contravene
the object and the purpose of the Treaty.
[Art.41, Vienna Convention on the Law of Treaties 1969]
15. Notification
The term "notification" refers to a formality
through which a state or an international organization communicates certain facts or
events of legal importance. Notification is increasingly resorted to as a means of
expressing final consent. Instead of opting for the exchange of documents or deposit,
states may be content to notify their consent to the other party or to the depositary.
However, all other acts and instruments relating to the life of a treaty may also call for
notifications.
[Arts.16 (c), 78 etc,. Vienna Convention on the Law of
Treaties 1969]
16. Objection
Any signatory or contracting state has the option of
objecting to a reservation, inter alia, if, in its opinion, the reservation is
incompatible with the object and purpose of the treaty. The objecting state may further
declare that its objection has the effect of precluding the entry into force of the treaty
as between objecting and reserving states.
[Art.20-23, Vienna Convention on the Law of Treaties 1969]
17. Provisional Application
A treaty or a part of a treaty can be applied
provisionally, if the treaty itself so provides or if the contracting parties have in some
other manner so agreed. The provisional application ends once the treaty enters into
force.
[Art.25, Vienna Convention on the Law of Treaties 1969]
18. Ratification
Ratification defines the international act whereby a state
indicates its consent to be bound to a treaty if the parties intended to show their
consent by such an act. In the case of bilateral treaties, ratification is usually
accomplished by exchanging the requisite instruments, while in the case of multilateral
treaties the usual procedure is for the depositary to collect the ratifications of all
states, keeping all parties informed of the situation. The institution of ratification
grants states the necessary time-frame to seek the required approval for the treaty on the
domestic level and to enact the necessary legislation to give domestic effect to that
treaty.
[Arts.2 (1) (b), 14 (1) and 16, Vienna Convention on the
Law of Treaties 1969]
19. Registration and Publication
Article 102 of the Charter of the United Nations 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". Treaties or agreements that are
not registered cannot be invoked before any organ of the United Nations. Registration
promotes transparency and the availability of texts of treaties to the public. Article 102
of the Charter and its predecessor, Article 18 of the Pact of the League of Nations, have
their origin in one of Woodrow Wilson's Fourteen Points in which he outlined his idea of
the League of Nations: "Open covenants of peace, openly arrived at, after which there
shall be no private international understandings of any kind but diplomacy shall proceed
always openly and in the public view".
[Art.80, Vienna Convention on the Law of Treaties 1969]
20. Reservation
A reservation is a declaration made by a state by which it
purports to exclude or alter the legal effect of certain provisions of the treaty in their
application to that state. A reservation enables a state to accept a multilateral treaty
as a whole by giving it the possibility not to apply certain provisions with which it does
not want to comply. Reservations can be made when the treaty is signed, ratified,
accepted, approved or acceded to. Reservations must not be incompatible with the object
and the purpose of the treaty. Furthermore, a treaty might prohibit reservations or only
allow for certain reservations to be made.
[Arts.2 (1) (d) and 19-23, Vienna Convention of the Law of
Treaties 1969]
21. Revision
Revision has basically the same meaning as amendment.
However, some treaties provide for a revision additional to an amendment (i.e., Article
109 of the Charter of the United Nations). In that case, the term "revision"
refers to an overriding adoption of the treaty to changed circumstances, whereas the term
"amendment" refers only to a change of singular provisions.
22. Signature ad referendum
A representative may sign a treaty "ad
referendum", i.e., under the condition that the signature is confirmed by his state.
In this case, the signature becomes definitive once it is confirmed by the responsible
organ.
[Art.12 (2) (b), Vienna Convention on the Law of Treaties
1969]
23. Signature Subject to
Ratification, Acceptance or Approval
Where the signature is subject to ratification, acceptance
or approval, the signature does not establish the consent to be bound. However, it is a
means of authentication and expresses the willingness of the signatory state to continue
the treaty-making process. The signature qualifies the signatory state to proceed to
ratification, acceptance or approval. It also creates an obligation to refrain, in good
faith, from acts that would defeat the object and the purpose of the treaty.
[Arts.10 and 18, Vienna Convention on the Law of Treaties
1969]
Terms Used in Treaty-making
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