PUBLIC INTERNATIONAL LAW

TOPIC: TREATIES making procedure

In india.

SUBMITTED TO;
Mr. MOHIB ANWAR

SUBMITTED BY;
ROOPALIRAGHAV
16BALLB-53
GrOUP-3 RD

(GI5106)
 Introduction

The term treaty means a written agreement by which two or more States or
international organizations create or intend to create a relation between themselves
operating within the sphere of International Law. It contains four important
elements. Firstly, treaties should be in writing. Although classical International
Law did not prescribe that treaties should always be in writing, it is rare to find an
oral agreement between the States. Oral agreements are neither precise nor
permanent, and therefore at present, it has become essential that treaties should be
concluded in written form only. Secondly, parties to a treaty may be either States,
or a State and international organization, or international organizations. Thirdly,
the purpose of a treaty is to create a relationship between the parties. The
relationship may be legal relations or political or moral relations. It implies that
treaties or provisions of treaties may impose no binding obligations, or be intended
not to create legal relations between the parties. Fourthly, a treaty should operate
within the sphere of International Law. It is submitted that International Law is not
the only legal system within which the States can contract. Some contracts may be
governed by general principles of law including private International Law. Such
contracts may be helpful in resolving difficulties but they do not come within the
scope of the term in which it is used in International Law. A treaty may also be
called a ‘treaty', ‘convention', ‘protocol', ‘covenant' or ‘exchange of letters'.
 Kinds of Treaties

Treaties may be classified into three categories on the basis of the parties becoming
members to treaties. They are as follows:-

1) Bilateral Treaties.- Bilateral treaties are described as those treaties in which

participation and rights and obligations arising from the treaty is limited only to
two parties. They are sometimes also called ‘bipartite’ treaties’ although the word
is not apt. Many bilateral treaties bear the closest analogy to the private law
contract’ and therefore,they are sometimes referred to as treaty-contract.1

2) Plurilateral Treaties.-Those treaties where the participation is open to a

restricted number of States are described as plurilateral treaties. The minimum
number of parties in such treaties should be more than two. Although the
maximum member may differ from one to another, it should not be open to all or
most of the members of the international community as in the case of multilateral
treaties. The purpose of the conclusion of plurilateral treaties varies from treaty to
treaty.

3) Multilateral Treaties.- Multilateral treaties are those which are open to

participation for all the States without restriction or to a considerable number of
parties.2 Some multilateral treaties set-up an international organization for a
specific purpose or a variety of purposes. They may, therefore, be referred to as
constituent agreements. These treaties lay down general norms of International
Law, or to deal in a general manner with matters of general concern to other States
as well as to the parties to the treaties. These treaties are sometimes, described as
law-making treaties.3

1
Dr. H.O. Agarwal, International Law and Human Rights, 326 (Central Law Publications, Allahabad, 20thedn.2014).
2
Ibid.
3
Id. 327.
 Parties competent to make a treaty

The treaty-making power of a State is limited to its sovereignity. Semi-sovereign

States can be parties to a treaty only if they are competent to conclude it.
Everything depends upon the individual case.
Not only States , but organisations of States, too, can be parties to treaties. The
UNO has concluded treaties with member States, non-member States and also with
various specialized agencies which themselves are organisations of States. Again,
the exigencies of modern international intercourse have made it necessary to
recognize, even in some non-political organisations of States, a certain degree of
international personality so that they may also enter into treaties with states, eg, the
Universal Postal Union, World Health Organisation, the International Trade
Organisations, etc.4

4
NK Jayakumar, International Law and Human Rights, 230(Lexis Nexis Butterworths, New Delhi, 2011).
 Formation of a Treaty
Treaty-making process ordinarily involves the following stages:

1) Accrediting of Persons by the Contracting States:

The first step in the conclusion of a treaty is the appointment of the representatives
or plenipotentiary by the States. The representatives should be equipped with the
necessary authority for the conclusion of a treaty. Normally, the representatives of
the states are provided with the formal instrument which is given either by the
Head of the State or by the Minister of Foreign Affairs. The instrument is called
‘full powers’. The Vienna Convention under Article 2(1)(c) lays down that ‘full
powers’ means a document emanating from the competent authority of a state
designating a person or persons to represent the state for negotiating, adopting or
authenciating the text of a treaty, or for accomplishing any other act with respect to
a treaty. The representatives are required to exchange their full powers.5

2) Negotiation:

This is a stage wherein the participating states negotiate and vet various terms of
the proposed treaty. Having negotiated the terms, States settle on the exact form
and content of the proposed treaty.6

3) Adoption:

After settling the treaty text, States proceed to adopt it. Adoption of the treaty text
indicates that the states are in agreement over the form in which treaty has been
drafted, and the manner in which terms of a treaty have been worded. Adoption
only indicates adopting state’s agreement over the draft text of the treaty.

Modes of Adoption

i) General rule is that adoption of the treaty text is done by consent of all the
participating states. Adoption is usually done by means of voting.

5
Supra 1, 329.
6
Jai Kanade, Public International Law,293(Lexis Nexis, Haryana, 1stedn.2013).
ii) In case of multilateral treaties where many states are participating, unanimous
adoption may not always be feasible. Thus, in international conferences, adoption
of the treaty text requires a majority of two-third of participating states present and
voting unless the same majority decides upon different rule for adoption of the
treaty.7

iii) If treaties are concluded under auspices of the international organisations,

adoption of the treaty text is governed by the voting rules of the respective
organisations.8

4) Consent of the States:

States may be bound by the treaties only when they have given their consent. The
consent therefore is a vital stage in the formation of a treaty. There are a number of
ways in which a state may express its consent to a treaty. It may be given either by
signature, exchange of instruments, ratification or accession.

(a) Consent by Signature:

A state may be regarded as to have given its consent to the text of the treaty by
signature or initialling. The text of a treaty is regarded as authentic and definitive
by the signature, signature at referendum or initialling. It is important that the
signature or initialling is done by each representative at the same time and place
and in the presence of each other.9

The effect of signature of a treaty may be different from treaty to treaty. It depends
on whether or not the treaty is subject to ratification, acceptance or approval.
Where a provision is not made for ratification, acceptance or approval, a treaty
comes into force on signatures of the representatives.

(b) Consent by Exchange of Instruments:

Article 13 of the Vienna Convention provides that the consent of states to be bound
by a treaty constituted by instruments exchanged between them may be expressed
by that exchange when the instruments provide that their exchange shall have that

7
Ibid.
8
Id. 294.
9
Supra 1, 330.
effect or it is otherwise established that those states have agreed that the exchange
of instruments should have that effect.10

(c) Consent by Ratification:

Ratification is the final confirmation given by the parties to a treaty concluded by

them. This includes exchange of documents embodying the confirmation.
Although a treaty is concluded as soon as the mutual consent of the representatives
is manifest, its binding force is suspended until ratification. The function of
ratification is, therefore, to make the treaty binding. If the ratification is refused,
the treaty becomes non-existent. As long as ratification is not given the treaty is not
perfect, although it cannot be said that it has no effect. A treaty is concluded as
soon as the representatives of the governments give their mutual consent, and
therefore a treaty cannot be ratified in parts and no alteration is possible by
ratification. A treaty may be tacitly ratified by its execution. Once a treaty is
ratified it dates back from the day on which the representatives signed the
document.11

(d) Consent by Accession:

Accession is another important mode of state consent. The negotiating states

participating in the formulation and adoption of the treaty give their consent by
means of signature, ratification, acceptance or approval. However, the states which
have not participated in the initial treaty-making process but wish to become party
to a treaty, which has already been adopted or concluded or brought into effect,
ordinarily do so by means of accession. Thus, accession refers to a procedure
followed by the states which have not participated in the initial treaty-making
process but wish to join it on the later date.12

5) Entry into Force:

10
Id. 331.
11
Supra 4, 235.
12
Supra 6, 297.
After a treaty has been ratified it comes into force. Generally, treaty comes into
force after it has been ratified by a prescribed number of states. But sometimes, the
parties may provide that it will come into force immediately after the signature.

6) Registration and Publication:

The next important step is the registration and publication of the treaty. Article 102
of the United Nations Charter provides for the registration and publication of
every international treaty entered into by the members of the United Nations. The
object behind this provision is to prevent secret treaties. But a treaty does not
become invalid simply because it has been not registered with the United Nations.
The effect of Article 102 is that if a treaty is not registered with the United Nations,
it cannot be invoked before any organ of the United Nations.13

7) Application and Enforcement:

The last step of a treaty is its application and enforcement.14

13
Dr. S.K. Kapoor, International Law and Human Rights, 229(Central Law Agency, Allahabad,18 thedn. 2018).
14
Id. 230.
Indian Practice
According to the Indian Constitutional scheme, making of international treaties is
an executive act. A Treaty is concluded with the approval of the Union Cabinet. It
is not placed before the Parliament for discussion and approval. However, where
the performance of treaty obligations entail alteration of the existing domestic law
or requires new enactment, it would accordingly require legislative action.

Treaty making formalities:

(i) Drafting and Negotiation:

The Ministry of External Affairs is overall in-charge of international treaty

making activities. The administrative Ministry is the nodal agency for preparation
of drafts, consultations and negotiations. Multilateral treaties are mostly negotiated
in international conferences. In the case of bilateral treaties, concerned
administrative Ministry, on preparation of draft text of the treaty , in consultation
with other stake holders, submits the same with the approval of the Minister
concerned to the Ministry of External Affairs(Legal and Treaties Division) for
vetting before it is sent to the other country for consideration, through diplomatic
channels. To the extent possible, modern means of communication including
emails, video conferencing, teleconference should be used by the stakeholders to
negotiate bilateral treaties except, security related matters.

(ii) Approvals:

After the text of the Treaty has been negotiated and finalized, the administrative
Ministry processes for necessary approvals of the Minister concerned and
thereafter the External Affairs Minister’s approval is obtained.