Key Steps in Concluding International Treaties
Understanding the Treaty Conclusion Process
The conclusion of international treaties is a fundamental aspect of international law and diplomacy. This process typically involves several distinct stages, ensuring that States formally express their consent to be bound by international agreements.
1. The Negotiation Phase
The negotiation of a treaty takes place between representatives of States, who are invested with full powers. These powers are issued by the competent domestic authority, typically the Head of State, Prime Minister, or Minister of Foreign Affairs (in the Chilean context, this could include the Vice President, among others). Full powers specifically indicate the stage of treaty conclusion in which a representative can participate. This participation may relate to a specific subject, a particular part of the negotiation, or the negotiation of any document.
Before the negotiation begins, plenipotentiaries should verify each other’s full powers to ensure they are in good and due form. Where negotiations occur within an international conference, full powers are examined by a credentials committee, which reports its findings to the conference.
At the end of negotiations, plenipotentiaries adopt or authenticate the treaty text. Typically, a delegation from each stakeholder attends and collaborates on what will become the working document. The parties then begin to negotiate the specific articles, leading to the final text.
2. The Signature of the Treaty
The text of the treaty, once adopted by the negotiators, is then signed by them. The signature gives an authentic character to the respective treaty text and expresses the intention to continue with the procedure. It is crucial to understand that a treaty text, once signed, is not yet binding. However, signatory States are obliged to refrain from acts that would defeat its object and purpose. It is important not to confuse signature with ratification; a treaty does not enter into force merely upon signature or accession.
3. Domestic Approval
Before ratification, international treaties often require domestic approval. For instance, the President of the Republic may submit international treaties for approval or rejection. In many legal systems, the treaty requires approval from each house of the legislature, with the rightful quorum, and must comply with specific formalities of law.
There is a theoretical discussion regarding whether a treaty constitutes domestic law. While a treaty may be adopted through a legislative act, it differs from domestic law formally in its elaboration, as well as in its extinction and effects.
4. The Ratification Process
Following parliamentary or congressional approval, the State must then ratify the treaty. Through this act, the State expresses its consent on the international plane to be bound by the final character of the respective treaty. Ratification is a solemn instrument, signed and sealed, signifying acceptance of the treaty and committing the State to its observance, often engaging national honor.
A State is not obligated to ratify treaties it has signed; this is a free or discretionary act. Historically, under absolutism, ratification allowed the monarch to reject a treaty if their representatives had exceeded their full powers. Today, this requirement ensures that before committing, the legislature (congress or parliament) is consulted to reconsider the treaty.
5. Exchange or Deposit of Instruments of Ratification
The instrument of ratification emanating from each contracting State must be made known to the other States. In bilateral treaties, this is straightforward, occurring through the exchange of instruments of ratification between the two States becoming bound.
In multilateral treaties, however, such instruments are deposited with a custodian designated in the treaty. The depositary may be one of the contracting governments or, more commonly, the Secretary-General of the United Nations. In principle, the treaty becomes binding upon each contracting State from the date of the exchange or deposit of its instrument of ratification, though this may be contingent on the treaty’s general entry into force.