Law of Treaties: Conclusion, Consent and Entry into Force

Treaties are the main instrument by which states create binding rules among themselves. The law governing them is largely set out in the Vienna Convention on the Law of Treaties, 1969, adopted on 23 May 1969 and in force from 27 January 1980, and much of it reflects customary law. This note, the first of five on treaties, covers what a treaty is and how it is concluded and brought into force.

1. What Is a Treaty?

• Article 2(1)(a). An international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation.
• Name does not matter. A treaty may be called a convention, covenant, charter, protocol, pact, agreement or exchange of notes; even signed minutes of a meeting can be a treaty (Qatar v Bahrain, 1994), while a joint communiqué may or may not be one depending on its terms (Aegean Sea Continental Shelf, 1978)
• Intention to create legal relations. Political instruments, such as many memoranda of understanding, are not treaties if the parties did not intend to be legally bound.
• Kinds. Bilateral and multilateral; law making treaties laying down general rules and treaty contracts settling particular matters; open treaties allowing accession and closed treaties.

2. Scope of the Convention

• Coverage. Written treaties between states; oral agreements and agreements with other subjects remain valid but fall outside it (Article 3); treaties of international organisations are covered by a separate Convention of 1986, not yet in force.
• Non-retroactivity. The Convention applies only to treaties concluded after it entered into force for the states concerned (Article 4), but its customary rules apply in any event.
• India. India has neither signed nor ratified the Convention, but Indian courts apply its principles as customary law; in AWAS Ireland v Directorate General of Civil Aviation (2015), the Delhi High Court relied on Articles 26, 27 and 31.

3. Concluding a Treaty

Figure 1: Stages in the life of a treaty

Figure 2: Full powers under Article 7

• Capacity and full powers. Every state can conclude treaties (Article 6); an act by a person without authority has no legal effect unless the state later confirms it (Article 8)
• Adoption and authentication. Adoption by consent of all participating states, or by two thirds of those present and voting at an international conference (Article 9); authentication fixes the text as definitive (Article 10)
• Signature. May itself express consent where the treaty or the parties so provide (Article 12); otherwise it is subject to ratification.
• Ratification, acceptance, approval. Formal confirmation of consent by a state that has signed (Article 14); in India this is an executive act (Topic 6)
• Accession. Consent by a state that did not sign, where the treaty allows (Article 15)

4. Before and After Entry into Force

• Article 18. A state that has signed subject to ratification, or has consented pending entry into force, must refrain from acts that would defeat the object and purpose of the treaty, until it makes clear its intention not to become a party.
• Entry into force, Article 24. In the manner and on the date the treaty provides, often after a set number of ratifications; failing that, once all negotiating states have consented.
• Provisional application, Article 25. A treaty may be applied provisionally pending entry into force if it so provides or the parties agree.
• Pacta sunt servanda, Article 26. Every treaty in force is binding on the parties and must be performed by them in good faith.
• Internal law, Article 27. A party may not invoke its internal law to justify failure to perform a treaty (Topic 4)
• Scope, Articles 28 and 29. No retroactive effect unless intended; a treaty binds each party in respect of its entire territory unless otherwise intended.

5. Third States and Registration

Figure 3: Treaties and third states

• Pacta tertiis. A treaty does not create obligations or rights for a third state without its consent (Article 34); this protects the sovereignty of non-parties.
• Registration. Under Article 102 of the UN Charter, every treaty entered into by a member must be registered with the Secretariat and published; an unregistered treaty remains valid but cannot be invoked before any UN organ.
• Depositary. Usually the UN Secretary-General or a state; it keeps the original, receives instruments of ratification and notifies the parties (Articles 76 to 78)

6. Frequently Asked Questions

Is a state bound by a treaty it has signed but not ratified?

Not by the treaty itself, unless signature was agreed to express consent. But under Article 18 it must not act to defeat the treaty's object and purpose until it makes clear that it does not intend to become a party.

Is an unregistered treaty void?

No. Article 102 of the Charter does not invalidate it; it only prevents the parties from invoking it before an organ of the United Nations, including the ICJ.

7. Related Topics

• Topic 6: Treaty Making and Implementation in India. The executive power.
• Topic 14: Law of Treaties II. Reservations.
• Topic 15: Law of Treaties III. Interpretation.