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Greetings, I'm Duncan Hollis of Temple University law School and this is then Third of
five lectures in a miniseries on treaties and international law.
In my first two talks we situated the:
o Treaty as a CONCEPT in history, functions and sources, and then we
unpacked
o The concept of the Treaty from within,
o Examining the Treaty definition in the 1969 Vienna Convention on the Law of
treaties
o And variations on its ingredients that have emerged in customary practice
since
o We also compared the treaty form to its competitors, including chiefly non
legally binding agreements. Also known as “political commitments”.
But in this lecture, I want to cover the processes by which treaties get made.
I want to identify some of the key concepts and the relevant rules that govern treaty
formation.
To talk about TREATY FORMATION, however, begs the question of:
o WHO CAN MAKE TREATIES IN THE 1ST PLACE, and
o WHAT ARE THE ROLE OR ROLES THAT VARIOUS INTERNATIONAL
ACTORS PLAY IN THE TREATY MAKING PROCESS.
Obviously, States have a capacity to make treaties. Indeed, the Permanent Court
of International Justice suggested Treaty making was a necessary attribute of state
sovereignty in the case of the s.s Wimbledon, a sentiment similarly expressed in Vienna
Convention on the Law of Treaties (VCLT), Article 6.
But recall from Illinois Declaration discussed in my second lecture. The question of:
o Who within the state that exist that can bind it to a treaty who is authorized to
consent on behalf of a state to a particular treaty or treaty Set of commitment.
Fortunately, Article 7 of the VCLT sets out some clear rules.
o It gives actual treaty making authority to the head of state, whether it's a
president or monarch.
o The head of government say a Prime Minister, the foreign minister,
o As well as certain diplomatic officials with respect to treaties directly connected
to the mission in which they serve.
 EXAMPLE:
 A head of a diplomatic mission can make treaties with the state
that hosts them.
For others to make treaties, the VCLT suggests they must present “FULL
POWER”, and this is a document signed by one of the officials with actual authority who
is authorizing the bearer of the full power to sign or otherwise consent to a treaty on behalf
of a state.
NOTE: States may dispense with the need for full powers, and so as such, it really
is always useful to identify and consult the relevant practices of the form in which the
Treaty is being negotiated or consume.
 IN PRACTICE FOR EXAMPLE:
 I would recommend you consult the UN Treaty Handbook, which
has detailed descriptions of the role and contents that full powers
play in multilateral treaty making today.
Bilaterally, the practice varies widely in terms of requiring full powers and which
officials or state organs can make treaties.
 EXAMPLE:
 What happens if a State Minister of Trade seeks to conclude a
treaty governed by international law in the name of the ministry
with a counterpart ministry elsewhere. Can a Malaysian Ministry
of International Trade and Industry conclude a treaty? Or what
happens if a sub-National territorial unit, say a province or
overseas territory, seeks to do so. Can the Commonwealth of
Pennsylvania where I live concluded treaty? What about the state
of Rio de Jannero?
The treaty-making capacities of such institutions are not actually addressed in
the VCLT. Nonetheless, customary practice suggests that such inter-institutional treaty
making is possible subject to three requirements:
1. The treaty must be a matter within the competence of the institution, seeking
to conclude a treaty.
 EXAMPLE:
 A finance ministry may have a capacity to enter a treaty
exchanging tax information, but presumably its competence does
not extend to an agreement – sharing military intelligence.
2. The institution must be authorized by the state of which it forms a part to
conclude treaties within those matters where it has confidence. Now sometimes
this authorization is ex ante, as in the provisions of the Austrian and German
law authorizing treaty making by their respective Lander on certain topics.
a. In other cases, the authorization emerges by practice. The US Federal
government regularly allows treaty making by government agencies,
such as its Department of Defense are within its respective areas of
competence.
b. In other cases, treaty-making may be authorized on an ad hoc basis.
 When the United Kingdom, for example, issues instruments of
entrustment for treaties involving, say, Bermuda or Jersey.
3. In addition to competence and in internal authorization, the potential negotiation
partners must also accept the identity of their treaty partner. Sometimes those
partners will accept a subnational entity into a treaty regime.
 EXAMPLE:
 As to United Nations did when Ukraine and Belarus were allowed
to join while still part of the Soviet Union.

WTO Member States agreeing that Hong Kong could consent to
the WTO agreements.
In some cases, however, potential partners may reject the capacity of an
agency or subnational entity to conclude a treaty. In the central and Western
Pacific Tuna convention negotiations for example, certain states declined to
follow Francis Overseas territory, New Caledonia interests in joining the treaty
in its own name and insisted that any membership by New Caledonia be
subsidiary to the French signature and consent to that treaty.
Now, what legal effects follow treaty making by government agencies or subnational actors? To put it in another way:
 To whom does an inter-institutional treaties legal effects apply? The province
alone? Or the whole of the state with which it is associated?
And although a few states have suggested the idea of limiting responsibility to the
entity concluding the treaty, the majority of states appear to endorse the view that the
state remains responsible to the performance of the obligations even if they are assumed
by one of its ministers or sub-national territorial units in their own names.
That position aligns with the Articles of State Responsibility, where Article 4,
paragraph 1 provides “the conduct of any state organ, shall be considered an act of that
state under international law, whether the organ exercises legislative, executive, judicial
or any other functions, whatever position it holds in the organization of the state and
whatever its character as an organ of the central government or of a territorial unit of the
state.”
DIVERSE VIEWS ON THESE POINTS:
States may rely on the consensual nature of the international legal order to avoid
them. In cases where two states hold different views of how far in inter-institutional treaties
legal liability extends, they may agree to a uniform position.
 EXAMPLE:
o States could agree to treat Their institutions treaty commitments as
equivalent to treaties made in the name of the state, or the two states in
question.
o Or States could, specifically, consent to having the effects of treaties
concluded by such institutions extend only to the institutions involved.
There are separate questions about what, if any, legal effects we should extend
where states, or other stakeholders encounter inter-institutional agreements that did not
satisfy the three requirements that I met. More specifically, that did not satisfy the
requirement of internal authorization.
PRACTICE IS QUITE DIVERSE. Some states reject agreements done by their
sub-national territorial units or their institutions if they did not have appropriate authority
to enter into them.
In other cases, a state can opt to ratify the otherwise unauthorized agreement.
 EXAMPLE:
o The United States and Canada did, while in concluding the Skagit River
tree that reflected an earlier agreement concluded between the US City
of Seattle and the province of British Columbia.
o United Kingdom on several instances has stepped in with respect to
agreements that the Cayman Islands wish to conclude and has ratified
them under British Authority.
What about treaty making capacity of actors that are not part of a state?
What about the you know, outside the what I called in the other my second lecture,
other subjects of international law?
And I think as we discussed in the earlier lecture on the Treaty Concept,
international laws come to recognize treaty making by these other subjects, most
prominently international organizations.
The ICJ reparations case marked an early affirmation of the international legal
personality of IOs (International Organizations). Adopting a functional approach to IO
Treaty-Making akin to our discussion of international inter-institutional treaties that we've
just had.
Simply put, IOs can make treaties on matters within the scope of their
competencies in accordance with the organization’s relevant rules or subsequent
practice, and where other parties are willing to enter into Treaty relations with them. In
other words, IOs do not have a general treaty making capacity the way states do.
The 1986 Vienna Convention affirms this approach, and at this point I should add
a quick aside that the contents of the 1986 Vienna Convention regularly mimic those of
the 1969 VCLT and so as such, my lectures are only really going to address the 1986
treaty where there are major departures from the interstate regime.
But when it comes to treating making, the limitation of treaties to those within the
competence of the IO and an alignment with its relevant rules is a departure from the
General Treaty-Making Capacity of States. So I think it's worth flagging here.
That really does narrow what treaties and IO might seek to join. I think similarly,
the views of potential treaty partners can do so as well. So whatever role UN
peacekeepers may play in international peace and security, the Geneva Conventions
outlining international humanitarian law are open only to states, IOs are not permitted to
join. In practice there for iOS treaty making capacity is often limited to matters regarding
their headquarters or the operation of the organization itself, with limited involvement in
so-called “law-making treaties” like we discussed in my first lecture.
The notable exception to this rule is the European Union. Assuming one thinks
of it as an IO at all and might describe itself as a supranational organization rather than a
merely international one. But given its competencies and authorities in a wide range of
foreign affairs topics, many multilateral treaties now include specific provisions
accommodating EU participation in its own right alongside its Member States. These
provisions are often a framed under the heading of regional economic organizations or
regional integrated economic organizations.
So it is possible, if another regional economic organization besides the EU or to
emerge, they too could take advantage of these multilateral treaty provisions, allowing
them to consent. These provisions also are explicit in excluding an extra vote to the
European Union beyond its Member States, so you know just by joining it doesn't get to
expand the capacity that those states would otherwise exercise if operating collectively.
Now, like inter institutional treaties between government agencies or subnational
territorial units, there are questions about:
 What's the legal effect of an IO treaty?
 Specifically, who's responsible for their breach?
 Article 26 of the 1986 VCLT affirms that the IO itself is clearly bound, but
what about the Member States? Is there joint and several liability?
And that question goes to a fundamental issue about what an IO is. Is the
international organization merely representing the states acting collectively in which case
pass through liability might make sense? Or is it a truly autonomous and independent
legal person under the law in which case liability should stop with it?
The International Law Commission's efforts to negotiate an exemption for
Member State liability through draft Article 36 this did not survive the 1986 Vienna
Convention negotiations, although more recent work by the ILC, particularly on the draft
Articles of Responsibility for International Organizations, suggests the autonomy
approach remains alive and well.
In any case, it's a mistake to limit any discussion of IOs and treaty making to adjust
their own capacities to make treaties, because it plays a much more important role in
treaties than those they conclude directly.
 IOs regularly host treaty-making conferences by states, witnessed the role the
United Nations serves on treaties like the Law of the Sea Convention or upcoming
negotiations on a global cybercrime treaty.
 IOs offer a forum to collect expertise and information around relevant topics in a
permanent setting that can better inform drafting, and indeed the subsequent
operation of treaty commitments.
 IOs expand access to States and other stakeholders to treaty processes they might
otherwise not be able to participate in, and they do so in ways that are more
transparent and less exclusive.
 And for proponents of a managerial approach to international regulation, IOs
perform critical functions in ensuring treaties operate effectively. But maybe the
WTO being a prominent example of the promise and perils of such an approach.
That said, it is clear that not everybody has celebrated the rise of IOs and treaty
making. For a time, it did seem to incentivize more treaty making, overall, as a way for an
IO and its staff to justify their existence. Others complain that some IOs exhibit certain
biases or interests of their own, which create risks of IO forum shopping.
When it comes to a treaty negotiation, it really matters whether it's being hosted by
the Council of Europe or a different venue like the United Nations. Just as the WTO has
a different approach than the conferences of the parties for various multilateral
environmental agreements.
In short, any understanding of treaty making must accommodate the role of IOs play,
not just themselves as treaty makers, but the way they facilitate or organize treaty making
by states.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
Non-governmental organizations represent various interest groups, whether drawn
from civil society or industry, and they've gained increasing prominence in international
treaty making over the years. Their role in bilateral treaty making is a little bit less visible,
but we certainly see them in most major multilateral treaty contexts.
Their role, though, is usually informal rather than formal. They'll act as observers
to the negotiations. They don't have a capacity to join the treaty that results. That said,
depending on the relevant rules of procedure, NGOs maybe able to attend plenary
sessions and other negotiation meetings and to voice their opinions in ways that can
impact the outcome.
Research tends to show though, that NGO impact on negotiations is most often
prominent at the time of the outset, rather than in catalyzing the final treaty negotiations.
 EXAMPLE:
 NGOs having more impact as say the coalition to ban landmines did on getting
started the negotiations that led to the Ottawa Convention setting out the
Treaties overarching object, and purpose for it. They tend to have less access
and less influence the further along the negotiations proceed when we get
down to finding that last bit of overlapping consensus, as was the case, for
example in the WHO Framework Convention on Tobacco Control.
At the same time, it's worth emphasizing that NGOs do play a role in observing
and commenting on treaties operations, even after they are formed.
 They can call out compliance issues.
 They can challenge the effectiveness of the existing treaty regime as various
environmental NGOs have done in the climate change or endangered species
context.
As with IOs, not all states have equal enthusiasm for NGO participation in treaty
making. Many do celebrate the more direct representation of civil society that's afforded
by their participation and the expertise and attention they bring to the Treaty context.
But there are some who expressed some concerns about a democratic deficit in
the sense that NGOs are free to lobby domestically on an issue, and then when that state
fails to adopt that issue to turn to the international plane and seek the very same
outcomes. Kind of two bites at the apple problem if you will. For others, it's a question
more of accountability. Who does the NGO represent and how transparent is the NGO in
terms of the amount and identity of support it has.
Well, whatever one's view, it remains clear that NGOs like IOs play critical roles in
the treaty space today, especially in the formation and negotiation processes. Good
negotiators will regularly attend to how open they'll have their negotiations be, and what
role to accord NGOs who do participate.
With that background on questions of treaty making capacity, I'd like to turn to the
process of treaty formation itself. Here I'll begin with a concrete case.
In 2022, the UN Third Committee is set to host talks on potential, a potential treaty
negotiation for a UN Convention on cybercrime. I'd like to ask you to take a moment to
write down a list of things that the negotiators must decide in concert with these
negotiations. Things like we just discussed with respect to the extent and identity of any
NGO participants. But besides that, besides NGO participation, what else do you think
they should decide in advance?
Again, pause the video if you need to write down your list and come back and we'll
come up with some potential answers.
So what issues require attention in most treaty negotiations?
First and foremost is that one that's aligned with the NGO question, and that's
PARTICIPATION. Who gets a seat at the negotiating table?
In the UN context? It'll be all UN member states. But at a more general level, the
state interested in negotiating a treaty must decide with whom it wants to treat. And
whether to do so via a bilateral or multilateral process? States can like the United Nation
does leave the process open to all who have legal personality to participate. Or it can
close them to afford access to certain specifically identified states.
Examples of this abound in the regional context; Where we see regional treaty
making in the African Union or the Organization of American States, where the Treaties
are only open to states from that designated region. It's also possible to limit participation
to qualities beyond geography. So, you could have treaties for states engaged in the
export of oil or of the production and consumption of rubber or other commodities.
Beyond participation, there is a question of institutionalization. Will the
negotiations remain in that third committee for cybercrime? Or would they move to
another international organization? Council of Europe, for example, has already played
host to a successful Cybercrime convention in a regional context? Or will you establish
an ad hoc process which although rare, does still occur as was the case with the Ottawa
Convention to ban landmines. Then there of course, what do you want the Treaty to say?
Treaties are like Swiss army knives. They can perform multiple functions all
through the same instrument. Normatively, they can prohibit behavior. They can require
behavior. They can permit behavior.
And with an eye, as we discussed in my first lecture to, you know, creating a basis
of obligation or broader, reaching ambitions to seek a law making itself. And they can do
all this with various levels of precision, whether via ex ante rules of behavior or ex post
standards or in terms of sine-ogmatic obligations between one party and each and every
other party or things like obligations erga ominous owed by each party to every other
party.
Treaties can even constitute new actors, such as an international organization or
a conference or meeting of the parties. You want to ask, then, if that sort of issue will be
on the table in any negotiation. The law of treaties itself does very little to differentiate its
rules for the different types of treaties we're talking about here.
WITH 2 EXCEPTIONS:
1. Humanitarian treaties get special rules for breach; and
2. IO treaties get special rules that can trump the VCLT rules.
But that's it. Beyond the Treaty substantive rules, we must think instead about
issues of enforcement or compliance, verification, dispute settlement, if any, and it's up
to the parties to think about how they want to craft these, again, because there's not really
any specific rules VCLT provides to limit that.
And so ultimately, these regime design issues, if you will, are going to be resolved
by negotiation. Negotiations can be in person. They can be in writing or these days
virtually. They usually entail multiple sessions. They can be over years or days or hours
depending on the urgency of the subject matter and the political will of the negotiators.
At some point though, people start typing or writing and the question becomes,
“How do we know when we have a treaty text?”
In a Bilateral Agreement, a treaty is done when the two states agree that it's
done. There can be an informal agreement or in more formal cases, negotiators may
initial the text, although there's little legal consequences in doing so.
In plurilateral or multilateral context, the treaty text will usually be adopted and
the rules for adoption or laid out. VCLT Article 9, subparagraph 2, which supports a 2/3
majority of participants as the number needed to adopt to treaty. In practice, however, the
deviations from this threshold are OK, especially if the IO allows the negotiations to adopt
a text according to different rules.
Indeed, VCLT Article 5 specifically provides that the VCLT terms are without
prejudice to the relevant rules of an international organization. So as such, adoption may
more often be done pursuant to the IOs own rules or by consensus.
In multilateral treaties, the authentication of the Treaty will often be treated as a
separate step. And authentication is the point at which the definitive text of the Treaty is
established as correct and authentic. This will include all the different language versions
if the treaty is concluded in multiple languages.
According to VCLT Article 10, authentication will occur as provided for in the
Treaty text or is agreed upon by the states who participate in drawing it up. Ups and that,
it can happen on signature or initialing by participating states of either the Treaty text or
initialing of the final act the precise processes for authentication will vary according to the
rules and practices of the entity hosting the negotiation, just as they do with adoption.
VCLT articles 76 to 80 and the UN Handbook titled the Summary of Practice of the
Secretary General, as depositary of multilateral treaties for further discussion of this topic,
and particularly the use of depositories in multilateral treaties as the entity that will engage
in the authentication of the Treaty text and maybe hopefully not if there is a need to correct
a previously authenticated treaty text that will be the depositories duty to effectuate.
Now, in addition to the Treaty text, it's important to recognize that negotiations may
also produce either other document, contemporaneous agreements, that as we'll discuss
in my final lecture, may have interpreted value, and you'll also often see what's called the
final act of the negotiating conference.
The final act is a formal record of the conference proceedings contains:
 Statements about the conferences purpose.
 “Who did what? Who said what?”
 And it represents part of the treaties so-called travel preparatoire or
legislative history and can have interpretive significance, again, something
we'll discuss in my final lecture in this series.

Let's get back to our hypothetical UN Cybercrime Convention Negotiation.
EXAMPLE:



Let's say, over 100 states successfully negotiate and adopt a text of a UN
Convention on Cyber Crime. It's authenticated in all the official UN languages, and
it has a robust final act.
Now assume you work in a Foreign Ministry of one of the negotiating states and
your Foreign Minister comes to you and wants to know how your state can join this
treaty on behalf of that state. More simply, how do all these steps into a binding
treaty commitment finally emerged into that triggering condition of pactus and
servanda applying. In other words, when will your state be bound?
And here there are two steps:
o First, your state must consent to be bound by the Convention; and
o Second, the Convention must subsequently enter into force or already be
enforced at the time you consent.
Let's talk about consent to be bound first. Since it's a cybercrime treaty, let's
say negotiating states wanted to have their consent done innovatively. They've agreed to
use an encrypted app, messaging app to express their consent at the appropriate time.
Can they do this?
Well, if we look at VCLT Article 11, it would appear that they can. It provides the
consent to be bound by a treaty can be expressed by quote any means if so, agreed. And
this raises an important theme, not just for this lecture, but across all these lectures.
Article 11, like many of the VCLT provisions, is a default rule. States may alter or agree
on different approaches if they so desire.
Indeed, looking to the VCLT itself, 29 of its articles endorsed the application of
whatever the Treaty provides. 9 articles authorize the parties to, “otherwise agree”
and 11 articles allow the establishment of a different intention to vary the
application of the rule of VCLT would otherwise are provided by default.
So we can then think in the VCLT as evincing, a very consensual thesis for
Treaties. One where states are in the driver seat capable of using their mutual agreement
to adjust a very what the law of treaties might otherwise provide. That said, of course, not
all the rules operate by default. We'll talk about validity rules in my next lecture, where
derogation is not available, and we'll also see an emphasis on treaty continuity,
particularly when we get to the issue of treaty exit and how treaty withdrawal or the
suspension or termination of Treaty obligations can occur.
It's true that in treaty formation terms the VCLT favors party autonomy, and the
freedom of states to divide their own ground rules. So I'd invite you to reflect on this a little
bit more, especially when you think about the mini-series as a whole.
“Does the VCLT appropriately balance the interest in giving parties freedom to
contract with the need to have the operation of law constraining unwanted processes or
products in treaty contexts? Is the balance the right one, or does it need some adjustment
in your mind?”
But let's assume for now, our negotiating states are not going to be innovative.
They're not going to reset the balance and their consent. What are the standard ways a
treaty provides for consent to be bound? Here, VCLT Article 11 designates several other
available means for consent besides whatever the parties agreed to:
 Signature itself, which we call definitive signature.



Exchange of instruments like diplomatic notes.
Ratification, acceptance, or approval, which are usually preceded by a state
signature, which we often will call simple signature to distinguish it from the
definitive signature category I just mentioned.
Accession joining a treaty that you never signed.
For bilateral treaties, signatures often enough to constitute consent.
But for major multilateral treaties like the law of the Sea Convention, the Rome
Statute of the International Criminal Court, or the Paris Agreement, the usual course is
for states to sign and follow up with ratification.
Now, how will you know which options are available? It's going to almost always
be delimited in the Treaty text in what are known as its so-called final clauses.
Treaties regularly included an article on how states or other subjects of
international law like IOs or others can “consent to be bound”.
Let's walk through each of these options just in a little more detail.
Signature or definitive signature is most often going to be specified as
something that's available by the Treaty text and definitive signature, and the bilateral
context may fulfill not only consent to be bound, but simultaneously bring the Treaty into
force. From multilateral treaties, though it's important that just because some states may
do definitive signature and have their signature be their consent to be bound doesn't mean
all have to. Treaties can provide and often do provide a menu of potential options for
consenting to be bound so different states can consent to be bound by different means.
In terms of the exchange of instruments, it's the latter instrument that creates
the Treaty, and this is traditionally done via an exchange of notes, the stereo approaches,
the first note makes a proposal for some sort of an agreement and offer if you will and the
second note repeats the first note and accepts the offer they're in, and then indicates
there after that the states’ acceptance combined with the earlier note, together forms an
agreement between the two that will be concluded, either with an entry into force as the
date of the second note, or at some later purpose or some later date as device.
Then there's ratification. In these cases, there is a signature, but the signature
doesn't create any treaty obligations for the signing states. It's simpler than that. It just
indicates an intent to pursue consent the completion of any necessary domestic
procedures, and it's once that proof approval is received, the state will then indicate its
consent to be bound by exchanging or depositing an instrument of ratification approval or
acceptance. I should be clear that doesn't mean that simple signature is without legal
effects?
Under VCLT Article 18, “A state that signs a treaty is under an obligation to refrain
from acts that would defeat the treaties object in purpose until such time as it actually
consents to be bound by the Treaty or makes clear its intent not to become a party.” The
Article 18 obligation is only infrequently raised, but it has led to some interesting
declinations by states where ratification is a listed option, whether alone or alongside
options for acceptance or approval. The Treaty will also usually include an additional
clause on this signature. It will spell out where and for how long the treaty is open for
signature, usually a set time period, although sometimes indefinitely.
Ratification itself will occur with the deposit or exchange of that instrument of
ratification, and they usually when it's deposited, it's deposited with that depository and
the depository serves that important role in multilateral treaty making that again I won't
discuss but do take a look at the UN Secretary General summary of practice I mentioned
earlier for further details.
Now acceptance and approval, are methods equivalent to ratification process
wise. They are just terms that are used when a state domestic procedure has a specific
type or process for ratifications that aren't being followed and so the state wants to say,
yeah, we didn't use our domestic ratification procedure, but we will follow our signature
with an acceptance or approval.
It's also a vehicle for non-states to join like the European Union will accept treaty
commitments. Finally, there's exception, and this is the vehicle for consenting to be a
treaty that the state did not sign previously. Whether because it didn't participate in the
negotiations or maybe it couldn't participate in the negotiations, or because the earlier
government didn't agree at the time with the Treaties outcome at the time of its adoption,
but a new government say, has decided that does want to consent to be bound.
To this list of signature exchange of instruments, ratification, acceptance, approval
and accession, the 1986 Vienna Convention on the Law of Treaties involving international
organizations adds an additional means for IO consent and that “An act of formal
confirmation”. Although as I said, many IOs like the European Union prefer to accept a
treaty instead of going this route.
ENTRY INTO FORCE.
As I already noted, consent is only one of two steps necessary to bind a state to a
treaty. International law only implicates pactus and servanda upon the Treaties entry into
force. Treaties only bind states who have consented at that time of entry into force.
Note, moreover, that where treaties open to additional participants, they may
consent to a treaty after its entry into force. In that case, the Treaty will enter into force
for them individually on the date of their consent or some date, thereafter, usually as
specified in the Treaty text.
How do we know when entry into force occurs, or whether the Treaty generally
weather for the Treaty generally? Or for specific parties to it? It's up to the negotiating
states to decide. Again, the default sense of guilt is on display here.
VCLT Article 24 provides; “a treaty, enters into force quote in such manner, and
upon such date as it may provide, or as the negotiating states may agree.”
Bilateral treaties will often tend to enter into force on consent via signature or
exchange of notifications on the entry into force will be on that date of exchange or
signature or some designated period of time thereafter, say, 90 days.
Multilateral treaties exhibit more variation. Some treaties tie entry into force to
the consent of a specified number of states with entry into force occurring on the date the
number is reached or some spirit specified period of time after the NTH state consents. It
can be as few as two states, as many as all designated states or numbers in between like
20 states, 30 states, 50 states. But entry into force does not depend only on the number
of consenting states. It can also tie. We can also see entry into force tie to having certain
numbers or certain types of states consent. Say exporting states in a commodity, treaty
or nuclear states are those with nuclear capacities and others.
Now there are clear tradeoffs. In the negotiators decision on the conditions for
entry into force. So, the 1949 Geneva Conventions entering the force of following two
states consent signaling the states interest in getting that treaty in force as soon as
possible.
In contrast, the Rome Statute that set up the ICC had a requirement of 60 states
consent before entering the force providing a guarantee to earlier consenting states that
they would only be locked into a treaty with such robust commitments when a sufficient
number of other states had also signaled similar consent.
IOs that consent to be bound or not usually counted for entry into force purposes.
They're excluded because of the that resistance, the so-called idea of additionality. We
don't want to give the IO additional votes or additional powers beyond those. The Member
States would themselves possess collectively.
You can see the UN transitional organized Crime convention if you want to see an
example of this exclusion in action. Now, who decides whether and when the conditions
for entry into force are satisfied? Usually, a function of the Treaty depository as
designated in the Treaty text, but in the absence of one, it will be up to the parties
themselves.
Now, as discussed earlier, entry into force doesn't equate with legal
effectiveness. Certain treaty provisions such as those on signature or consent or entry
into force for that matter, those provisions must have legal effect before the Treaty enters
into force, otherwise it wouldn't work. So, they usually have effects from the treaty’s
conclusion. VCLT Article 24, paragraph 4 elaborates this.
So those provisions apply from the time of the Treaties adoption, and so we can
say the Treaty exists once it's concluded or adopted, even if it never does come into force.
Also, don't confuse the operation of a treaty provisions with entry into force state. The
law of treaties has a default principle of non-retroactivity, since VCLT Article 28, but it is
subject to a different attention being established in the Treaty text or otherwise by the
parties, so parties can and have applied their treaties retroactively.
They can also delay the effectiveness of a treaty so that the provisions don't
operate until some period of time after entry into force weather designated date on a
calendar year basis or six months or a year thereafter. To closeout very briefly, with that
discussion of consent and entry into force in hand, I want to say briefly something about
provisional application.
Article 23 of the Arms Trade Treaty, for example, provides as follows, “any state
made the time of signature or the deposit of instrument, of its ratification, acceptance,
approval or accession, declare that it will apply provisionally, Articles 6 and 7, pending
the entry into force of this Treaty for that state.” Can states do this?
According to VCLT, Article 25, they can, whether the Treaty so provides, or the
negotiating states have in some other manner, “so agreed”, again, that default rule
approach evident here. And we might imagine various reasons states would seek to
provisionally apply a Treaty commitment in advance of its entry into force.
There might be some sort of urgent crisis that can't wait for normal treaty formation
processes to occur, which can take years, sometimes decades. Think about things like
the nuclear incident at Chernobyl, warranting faster treaty making or treaty application as
the case maybe or there may be a desire to begin to establish the institution.
A treaty will create sooner than the treaties entry into force organization the
prohibition of chemical weapons, for example, having a precursor organization operating
or maybe to avoid gaps in Treaty coverage as in the case with various commodities
treaties that last for a fixed duration where the goal is to make sure there's not a period
where no treaty applies on coffee or sugar or what have you.
Finally, provisional application may be an available option where there's a doubt
that the Treaty will actually enter into force. The General Agreement on Tariffs and Trade
or the GATT operated provisionally, for example, for decades before being superseded
by the (WTO) The World Trade Organization agreements.
At the same time, however, provisional application does purport to bypass the
usual rules and consent in entry into force, and so it raises the questions of its consistency
with some of those domestic approval procedures we've been discussing so far.
Now, what does provisional application mean? Is it more like Article 18,
obligation not to defeat a treaty object in purpose or more like entry into force itself?
I think both Article 18 and provisional application apply in advance of a treaty
entry into force, but Article 18 does is a default matter, whereas provisional application
depends on the party’s agreement and unlike Article 18, it actually does establish a
binding application to apply all the covered provisions that are subject to provisional
application.
In terms of treaty form, VCLT Article 25 is open-ended in suggesting provisional
application that can apply to all signatories or having opt in or opt out procedures to allow
for provisional application of some subset of participating states. It can be done in the
Treaty text as the Arms Trade Treaty does, or via a separate agreement such as that
protocol and the provisional application of the GAT. It can cover the whole treaty. It can
cover parts of it. And it can also be conditioned on comporting with domestic laws,
whether those laws on joining a treaty or all domestic laws, both substantive and
procedural.
It was this last point that was at the root of a multiyear set of litigations involving
the Yukos Oil Company and Russia's provisional application of the Energy Charter Treaty
led to a $50 billion judgment against Russia, an arbitral tribunal, a judgment that was
overturned by a Hague District Court ruling illustrating just, how important it is to think not
just about provisional application. But the way limitations on provisional application,
including with respect to adhering to domestic law, how these can operate to impact the
operation of provisional application.
In some in this third lecture I've sought to introduce you to The Who and the
how questions, who can make treaties, and how can they do so. We've looked at the
relevant Treaty making capacities of states, including their agencies and their other
subnational territorial institutions. As well as the relevant roles of international
organizations and NGOs, and treaty making.
We've covered the design questions that accompany the negotiation of a major
multilateral treaty, as well as the basis processes for adopting, authenticating, consenting
to, and bringing a treaty into force, and if the party is so desire to apply it provisionally.
In my next lecture, we're going to turn to two more treaty topics. First, we'll examine
the limits, the law of treaties imposes on treaty commitments by operation of law that is
the rules on treaty validity, and then we'll turn to the capability of the law to allow more
unilateral limitations on treaty making. The law of reservations. As well as the
understandings and declarations that sometimes states provide.
So thanks for watching. I hope you join me for the 4th. Lecture in this miniseries.