Anthony Aust. Handbook of International Law

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and the states of the United States have no such power.

Some federal constitutions authorise their

constituent units to enter into agreements on certain matters or to do so if they have the specific

consent of the federation,

and, given the need for such general or specific federal consent, in

international law those agreements will ultimately be the responsibility of the federal state.

Overseas territories

Overseas territories do not have the power to conclude treaties in their own right, but they may be

authorised by the state to which they belong to enter into treaties either ad hoc or generally in certain

specific subject areas. The Hong Kong Special Administrative Region is a party to many treaties.

But the ‘parent’ state remains ultimately responsible for the performance of the treaties.

Some multilateral treaties permit territorial entities that are not independent to be parties to the

treaty. Article 305 of the UN Convention on the Law of the Sea 1982 permits certain self-governing

associated states and internally self-governing territories to become parties, provided they have

competence over matters governed by the Convention, including competence to enter into treaties on

such matters.

International organisations

An international organisation has the capacity to conclude treaties if this is provided for in its

constituent instrument or if it is indispensable for the fulfilment of its purposes.

There are now

numerous treaties between international organisations and states (e.g. headquarters agreements) and

between international organisations. The rules governing such treaties are set out in the Convention

on the Law of Treaties between States and International Organizations or between International

Organizations 1986.

Increasingly, multilateral treaties, especially in fields such as the

34. B. Opeskin, ‘Federal States in the International Legal Order’ (1996) NILR. 353–86, n. 45 and

generally.

35. Oppenheim, pp. 248–55.

36. See p. 29 above.

37. See p. 405 below.

38. UN Convention on the Law of the Sea 1982, 1833 UNTS 397 (No. 31363); ILM (1982) 1261; UKTS

(1999) 81. The Cook Islands is a party (see p. 30 above). See also p. 383 about WTO membership.

39. Reparations advisory opinion, ICJ Reports (1949), p. 174; 16 ILR 318.

40. ILM (1986) 543. It is not yet in force.

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environment, trade and commodities, provide for certain international organisations to become

parties. The UN Convention on the Law of the Sea 1982 allows this if their member states have

transferred competence to the organisation, including the competence to enter into treaties, over

matters governed by that Convention.

Credentials and full powers

Credentials

Credentials are issued by a state, usually by the foreign minister, to a delegate to an international

conference at which a multilateral treaty is to be negotiated, authorising him to represent that state. It

is then presented to the host government or international organisation.

But the representative only

has authority to negotiate and adopt the text of the treaty and to sign the final act.

He will need

specific instructions from his government before he can sign the treaty itself, as well full powers if

these are required. Credentials and full powers can be combined in one document.

Full powers

Article 2(1)(c) defines ‘full powers’ as:

a document emanating from the competent authority of a state designating a person or persons to represent

the state for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the

state to be bound by a treaty, or for accomplishing any other act with respect to a treaty.

But it is only those acts that are actually specified in the document that will be authorised. A person

is considered as representing a state for the purpose of adopting or authenticating the text of a treaty

if he produces appropriate full powers or if it appears from the practice of the states concerned, or

from other circumstances, that their intention was to dispense with full powers (Article 7(1)).

Full powers are simply written evidence that the person named in them is authorised to represent

the state in performing certain acts in relation to the treaty, but normally only in relation to its

signature. Their

41. See Article 305(1)(f) and Annex .

42. See R. Sabel, Procedure at International Conferences, Cambridge, 1997, pp. 43–51.

43. See p. 61 below.

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production is a fundamental safeguard for the other representatives, and for the depositary of a

multilateral treaty, that they are dealing with a person with the necessary authority. But, before doing

any act covered by full powers, the holder must still obtain specific instructions from his

government.

The general trend towards rather more informality in treaty-making does not mean that full

powers are now seldom needed, although there is a tendency to dispense with them for bilateral

treaties and, in practice, full powers are usually dispensed with for an exchange of notes. Full

powers are required to sign a multilateral treaty, unless the negotiating states agree to dispense with

them. The UN Secretary-General will insist on full powers being produced for the signature of

treaties for which he is to be the depositary. Heads of State or government or foreign ministers (the

‘Big Three’) do not need full powers to sign or ratify a treaty (Article 7(2)).

A state may issue its permanent representative to an international organisation, especially the

United Nations, with continuing full powers, known as general full powers.

(For procedure generally, see Aust, pp. 62–4.)

Adoption and authentication

Adoption

Once the negotiations are complete, it is necessary for the negotiating states to adopt the text. A

bilateral treaty is often adopted by initialling the text. The act of adoption does not amount to

consent to be bound by the treaty. Unanimity for adoption (Article 9(1)) is now restricted to bilateral

treaties or treaties drawn up by only a few states (plurilateral treaties). Adoption at an international

conference requires a two-thirds vote of the states ‘present and voting’ (which excludes abstentions)

unless, by the same majority, they decide to apply a different rule (Article 9(2)). In practice,

consensus, or ‘general agreement’, is now the norm for adoption of most multilateral treaties.

Consensus

Consensus is often incorporated in the rules of procedure of an international conference.

Its three

main features are that it is not the same as

44. See generally R. Sabel, Procedure at International Conferences, Cambridge, 1997, pp. 303–13.

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unanimity, a state can join a consensus even if it could not vote in favour; and it is not incompatible

with ‘indicative voting’ (a straw poll). It has been expressed succinctly as ‘the absence of any formal

objection’.

Even when rules of procedure provide for adoption by a specified majority, it is normal

for there first to be an attempt to reach consensus, voting being used only as a last resort.

Authentication

Before a negotiating state can decide whether to consent to be bound by a treaty it needs to have the

adopted text, once it has been thoroughly checked and cleaned up (the toilette finale), authenticated

by a document certifying that it is the definitive and authentic text, and therefore is not susceptible to

alteration. Initialling the text of a bilateral treaty is normally regarded as amounting to both adoption

and authentication, at least if the treaty is to be in only one authentic language. However, in practice,

each state is free to suggest technical, or even substantive, changes at any time before signature.

The business of negotiating a multilateral treaty is often a confused affair, and in the final hectic

stages errors and inconsistencies invariably creep into the text. It is not unusual for the basic

negotiating text to be only in English, and for some of the language texts to be available in final

form only at the end of the conference. There is then a need not only to check the adopted text for

typographical inconsistencies and errors, but also to translate it into other authentic languages.

It is

common for a treaty adopted within an international organisation to be authenticated by the adoption

of a resolution by an organ of the organisation, such as the assembly, or by an act of authentication

performed by the president of the assembly or the chief executive officer of the organisation.

Final act

A final act is a formal statement or summary of the proceedings of a diplomatic conference. Treaties

adopted by the conference and other related documents, such as resolutions and agreed or national

interpretative statements, will be attached. It is usual for each negotiating state to sign the

45. Article 161(7)(e) of the UN Convention on the Law of the Sea 1982, 1833 UNTS 397 (No. 31363);

ILM (1982) 1261; UKTS (1999) 81.

46. See also p. 110 below.

47. See Aust, pp. 72–3 for the UN practice.

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final act, although this is optional, and anyway signature does not commit the state to sign or ratify

any attached treaty. Full powers are not needed to sign a final act, the credentials of the

representative being enough. The Convention mentions final acts only in Article 10(b).

The Final Act of the Helsinki Conference on Co-operation and Security in Europe 1975 is an

MOU. There is no treaty attached. But, unlike most final acts, it contained lengthy, substantive

provisions of great (political) importance.

Consent to be bound

A ‘contracting state’ is one that has consented to be bound by a treaty, even though it may not yet

have entered into force (Article 2(1)(f)). A ‘party’ is a state that has consented to be bound by a

treaty and for which the treaty is in force (Article 2(1)(g)). At that point, and only at that point, is the

state bound by the treaty (Article 26). To consent to be bound is therefore the most significant act

that a state can take in relation to a treaty. Although two steps are necessary to become a party

(consent to be bound plus entry into force) sometimes they take place simultaneously.

A state can express its consent by signature, by an exchange of instruments constituting a treaty,

by ratification, by acceptance or approval, by accession or by any other agreed means (Article 11).

Either the treaty will specify how consent is to be expressed or it will be implicit.

Signature only

This is quite common for a treaty between two or a few states if none need prior parliamentary

approval or new legislation.

It is normally evident from the terms of the treaty when signature

expresses consent to be bound (Article 12(1)(a)), the entry into force clause providing that the treaty

shall enter into force on the date of signature, or on the date of second or last signature.

‘Open for signature’

Many multilateral treaties, especially UN treaties, provide that they will be ‘open for signature’ until

a specified date, after which signature will no longer be possible. Thereafter, a state may only accede

(see below).

48. ILM (1975) 1293. And see pp. 55 above and 196 below.

49. See Aust, p. 75.

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Witnessing

Because of the political importance of some treaties, such as the Camp David Accords 1979 or the

Dayton Agreement 1995, the signing may be witnessed by heads of state or government, or foreign

ministers, of third states. But the signature of a witness has no legal effect. In itself, it will not make

the witness’s state a guarantor of the performance of the treaty.

Exchange of instruments

It is the act of exchange that constitutes consent to be bound if the instruments so provide or if the

states so agree (Article 13). The exchange usually takes the form of an exchange of notes or letters.

Ratification

Ratification is ‘the international act so named whereby a state establishes on the international plane

its consent to be bound by a treaty’ (Article 2(1)(b)). Although parliamentary approval of a treaty

may well be required – and be referred to, most misleadingly, as ‘ratification’ – it is a quite different,

purely domestic, process. Ratification is an international act. It consists of (1) the execution of an

instrument of ratification by or on behalf of the state and (2) either its exchange for the instrument of

ratification of the other state (bilateral treaty) or its lodging with the depositary (multilateral treaty).

The normal reason for requiring ratification is that after signature one or more of the negotiating

states needs time before it can give its consent to be bound. The treaty may require new

implementing legislation, which should be done before the treaty enters into force for the state. Even

if no legislation is needed, the constitution may require parliamentary approval of the treaty or some

other procedure like publication, before the state can ratify. Or the government may just need time to

consider the implications of becoming a party.

It is another common misconception that once a treaty has been ratified it is then legally binding

on the ratifying state. However, the situation is quite different from the coming into force of

legislation. Ratification does not make the treaty binding on the state unless and until the treaty has

entered into force for that state. When that happens, the state becomes a ‘party’ to the treaty (Article

2(1)(g)). Whether ratification will bring the