Anthony Aust. Handbook of International Law
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treaty into force for the ratifying state depends entirely on the provisions of the treaty.
Who can sign the instrument of ratification?
An instrument of ratification has to be signed on behalf of the state. Usually the head of state, head
of government or foreign minister (the ‘Big Three’) sign it. Anyone else needs full powers.
Acceptance or approval
Consent to be bound can be expressed by ‘acceptance’ or ‘approval’ under similar conditions to
those which apply to ratification (Article 14(2)). There is no substantive difference between
acceptance or approval and ratification. It is now common for multilateral treaties to provide that
signature shall be ‘subject to ratification, acceptance or approval’. The rules applicable to ratification
apply equally to acceptance or approval, and, unless the treaty provides otherwise, acceptance and
approval have the same legal effect as ratification.
Accession
Accession is the primary means for a state to become a party to a multilateral treaty if, for whatever
reason, it is unable to sign it. The treaty may restrict signature to certain, or a specified category of,
states, or a deadline for signature may simply have passed. No state has a right to accede unless the
treaty so provides or the parties agree to it (Article 15)). Multilateral treaties that are subject to
ratification – which is most of them – will almost always include an accession clause, and the right
to accede will usually be exercisable even before the entry into force of the treaty. This is commonly
done by making entry into force conditional on the deposit of a certain number of instruments of
ratification (or acceptance or approval) or accession. The rules on deposit of instruments of
ratification apply also to instruments of accession, which has the same legal effect as ratification.
Any other agreed means
Article 11 is a good example of the flexibility of the law of treaties in providing that the consent of a
state to be bound may be expressed by ‘any other agreed means’. Thus it is possible for a treaty to be
adopted,
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without signature
50
or any other particular procedure, and enter into force instantly for all the
adopting states. The treaty which established the Preparatory Commission of the Comprehensive
Nuclear Test-Ban Treaty 1996 (CTBT) was adopted by a resolution of the states which had signed
the CTBT and was binding in international law immediately without any further act by those
states.
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‘Signatory’, ‘party’ and ‘adherence’
All too often one reads or hears that a state is a ‘signatory’ of a treaty, with the implication that it is a
party. Signature is only one way of consenting to be bound, and it is often subject to ratification.
But, even when a treaty has been ratified, that does not mean that it has entered into force, so making
the ratifying state a ‘party’. ‘Signatory’ is therefore a loose and misleading term, and should be
avoided except when it is clear from the context that it refers only to the fact that a state has signed,
and nothing more. (Similarly, one should avoid the English idiomatic term ‘signed up to’.) An
acceptable generic alternative may be to say that the state has ‘adhered’ to the treaty, although this
may lead to more misunderstandings, although the term will sometimes be used in this book.
Note that, unless otherwise indicated, in this book the terms ‘ratification’, ‘consent to be bound’
and ‘adherence’ are used to cover also approval, acceptance and accession.
The ‘all states’ and ‘Vienna’ formulas
During the Cold War, problems arose over treaties which provided that ‘all states’ could become
parties. There were some entities over which there were disputes as to whether they were states: the
German Democratic Republic, North Korea and North Vietnam.
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So the so-called ‘Vienna
formula’ was included in new treaties. Article 81 of the Convention is typical: a disputed entity was
entitled to become a party if it was a member of at least one of a number of specified international
organisations. There has been no need for such a formula since 1973.
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Many older treaties will still
have the formula, but in most cases this will, as in the past, cause no
50. See p. 55 above.
51. UKTS (1999) 46.
52. See p. 17 above.
53. See M. Wood, ‘The Convention on the Prevention and Punishment of Crimes Against Internationally
Protected Persons, Including Diplomatic Agents’ (1974) ICLQ 791 at 816–7; UN Juridical YB (1974) 157
and (1976) 186.
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problem. ‘All states’ clauses should therefore now be used for all treaties that are intended to have
universal application.
Rights and obligations before entry into force
In the period before the entry into force of a treaty, the acts of adopting, signing and ratifying will
create certain rights and obligations for the negotiating states. The most obvious relate to those
matters that have to be dealt with so that the treaty can enter into force. As from adoption of the text,
the provisions on depositary functions, authentication, consent to be bound, reservations, and other
matters arising necessarily before entry into force, will apply (Article 24(4)).
Obligation not to defeat the object and purpose of a treaty before its entry into force
Article 18 requires a state ‘to refrain from acts which would defeat the object and purpose of a
treaty’ before its entry into force for that state. When the treaty is subject to ratification, this
obligation lasts until the state has made clear its intention not to become a party. This is what the
United States did when it famously ‘unsigned’ the Statute of the International Criminal Court by
sending a note to the UN Secretary-General saying that it did not intend to become a party.
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When
a state has already ratified, the Article 18 obligation continues pending entry into force of the treaty,
provided this event is ‘not unduly delayed’.
But there is uncertainty as to the extent of the obligation, and one can determine whether the
obligation applies only by examining the treaty in the light of all the circumstances. There is
virtually no practice, but it is possible to formulate the following propositions.
It is sometimes argued (especially by students) that a state that has not yet ratified a treaty must, in
accordance with Article 18, nevertheless comply with it, or at least do nothing inconsistent with its
provisions. This is clearly wrong because the act of ratification would then have no purpose since
the obligation to perform the treaty would not then be dependent on ratification. All that the
signatory state must not do is anything which would affect its ability to comply fully with the treaty
once it has entered into force; it does not have to abstain from all acts
54. See UN Multilateral Treaties, Ch. .10, note to US entry.
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which will be prohibited after entry into force. Thus the state must not do any act that would
invalidate the basic purpose of the treaty.
55
Withdrawal of consent to be bound before entry into force
A state which has consented to be bound may nevertheless withdraw its consent before the treaty
enters into force. This happens very rarely.
56
Development of treaties
There is sometimes a need for provisions permitting the development of a legal regime created by a
treaty. This can be done in two main ways: by framework treaties and by legally binding measures
adopted by organs of international organisations. A framework treaty is a multilateral treaty which is
no different in its legal effect from other treaties, but which provides a framework for later, and
more detailed, treaties (often called Protocols) that elaborate the principles declared in the treaty.
The term is used particularly in connection with environmental treaties.
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It is not unusual when establishing an international organisation for the constituent instrument to
give one of its organs the power to impose on the member states legally binding measures by which
the object and purpose of the organisation can be more effectively achieved. If the Security Council
determines under Chapter of the UN Charter that there is a threat to international peace and
security, it can impose measures to maintain or restore international peace and security.
58
Article
of the Antarctic Treaty 1959 provides for the adoption of measures in furtherance of the principles
and objectives of the Treaty.
59
Similar provisions are found in fisheries treaties.
60
Reservations
Article 2(1)(d) defines a reservation as:
a unilateral statement, however phrased or named, made by a state, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain
provisions of the treaty in their application to that state.
55. See Aust, pp. 93–5.
56. UN Depositary Practice, paras. 157–9.
57. See Birnie and Boyle, International Law and the Environment, 2nd edn, Oxford, 2002, pp. 14 and 25.
58. See p. 214 below.
59. See p. 355 below.
60. See p. 334 below.
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Reservations must be distinguished from ‘derogations’, which are statements authorised by a treaty
by which a party is able to exclude certain provisions in their application to it during a particular
period, such as a public emergency.
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Bilateral treaties
A reservation cannot be made to a bilateral treaty, all the terms of which must be agreed before it
can bind the parties. To make a ‘reservation’ to a bilateral treaty therefore amounts to a request for a
modification. The treaty cannot be binding unless and until the other state accepts. The reservations
regime of the Convention is therefore inapplicable. The United States has a long history of making
its ratification of bilateral treaties conditional on modifications being made.
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Multilateral treaties
A state may, by means of interpretative declarations or reservations, seek to fine-tune or adjust the
way in which a multilateral treaty will apply to it. The need for either stems from the nature of the
multilateral treaty- making process. The many different constitutions, legal systems, cultures,
languages and religions, and different national policies, of negotiating states pose problems for the
successful negotiation of even a regional, let alone a multilateral, treaty. Reaching agreement
requires many compromises. Now that most multilateral treaties are adopted by consensus,
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inevitably some of the negotiating states will be dissatisfied with at least some aspects of the text.
But a state may, for political reasons, be reluctant to stand in the way of reaching consensus, and
may even sign a treaty despite its unhappiness at the result. The option of not becoming a party may
be unattractive.
Interpretative declarations
Interpretative declarations are as widely used as reservations. Their purpose is to establish an
interpretation of a particular provision of a treaty that makes that provision acceptable to the state
concerned. Often, it is used merely to make the provision consistent with existing domestic law. If
other parties do not make conflicting declarations or indicate
61. See p. 245 below.
62. See Aust, pp. 106–7.
63. See p. 60 above.
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their disagreement, they can be regarded as having tacitly accepted it. When acceding to the 1969
Convention, Syria declared that in Article 52 (Coercion) the reference to ‘force’ included economic
and political coercion. Other parties formally rejected this.
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The vast majority of interpretative
declarations do not produce any response.
65
Disguised reservations
As the definition of reservation makes clear, it does not matter how a declaration is phrased or what
name is given to it – one must look at the substance. On ratification of the Chemical Weapons
Convention 1992,
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the United States stated that, for the purposes of the Annex on Implementation
and Verification, it would be a ‘condition’ that no sample collected by an inspection team could be
removed from the United States for analysis. The Annex does not envisage any such restriction. The
statement went beyond mere interpretation and amounted to a reservation.
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Reservations generally not prohibited
A state may seek to adjust certain provisions of a treaty in their application to itself. Sometimes its
parliament will require adjustments as a condition of its approval of ratification. But, except perhaps
for some human rights treaties, reservations are generally not so numerous or so extensive as to
jeopardise the effectiveness of a treaty. Despite the impression one may get from the immense
amount of writing on the subject in recent decades, most reservations can be dealt with perfectly
well by application of the provisions in Articles 19–23.
Nor is there anything inherently wicked or even undesirable in formulating a reservation. It would
be quite wrong to think that the world is divided into reserving states and objecting states. Many
states make reservations, and most are not objected to. Many states have made reservations to the
Convention on the Rights of the Child 1989, only some of which were objected to.
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64. UN Multilateral Treaties, Ch. XXIII.1.
65. As to other declarations made on ratification of the Convention, see Sinclair, The Vienna Convention
on the Law of Treaties, 2nd edn, Manchester, 1984, p. 63–8.
66. 1974 UNTS 317 (No. 33757); ILM (1982) 800; UKTS (1997) 45.
67. See UN Multilateral Treaties, Ch. .3.
68. See UN Multilateral Treaties, Ch. .11.