Pacific Islands Treaty Series

Acceptance and Approval

The instruments of "acceptance" or "approval" of a treaty have the same legal effect as ratification and consequently express the consent of a state to be bound by a treaty. In the practice of certain states acceptance and approval have been used instead of ratification when, at a national level, constitutional law does not require the treaty to be ratified by the head of state.

[Arts.2 (1) (b) and 14 (2), Vienna Convention on the Law of Treaties 1969]

Accession

This is the usual method by which a State, which has not taken part in the negotiations or signed the treaty, may subsequently consent to be bound by its terms. It has the same legal effect as ratification. The conditions under which accession may occur and the procedure involved depend on the provisions of the treaty. A treaty may stipulate accession by certain States. In that case, these States have a right to accede to the treaty. In the absence of such a provision, accession can only occur where the negotiating states were agreed or subsequently agree on it in the case of the state in question. In general, accession is permitted after the entry into force of the treaty.

[Arts.2 (1) (b) and 15, Vienna Convention on the Law of Treaties 1969]

Adoption

"Adoption" is the formal act by which the form and content of a proposed treaty text are established. As a general rule, the adoption of the text of a treaty takes place through the expression of the consent of the states participating in the treaty-making process. Treaties that are negotiated within an international organization will usually be adopted by a resolution of a representative organ of the organization whose membership more or less corresponds to the potential participation in the treaty in question.

Adoption can also take place at an international conference by a vote of two-thirds of the states present and voting, unless by the same majority they decide to apply a different rule.

[Art.9, Vienna Convention of the Law of Treaties 1969]

Bilateral Treaty

Declaration

Depositary

Usually this is one country, an international organization or its chief administrative office so designated in a multilateral treaty. The depositary performs, in an impartial manner, various functions with regard to the Treaty. Responsibilities include receiving signatures and instruments of ratification and communicating comprehensive and up-to-date information on the status of the treaty.

[ Articless 76 - 79 of the Vienna Convention on the Law of Treaties]

Entry into Force

Typically, the provisions of the treaty determine the date on which the treaty enters into force. Where the treaty does not specify a date, there is a presumption that the treaty is intended to come into force as soon as all the negotiating states have consented to be bound by the treaty. Bilateral treaties may provide for their entry into force on a particular date, upon the day of their last signature, upon exchange of the instruments of ratification or upon the exchange of notifications. In cases where multilateral treaties are involved, it is common to provide for a fixed number of states to express their consent for entry into force. Some treaties provide for additional conditions to be satisfied, e.g., by specifying that a certain category of states must be among the consenters. The treaty may also provide for an additional time period to elapse after the required number of countries have expressed their consent or the conditions have been satisfied. A treaty enters into force for those states which gave the required consent. A treaty may also provide that, upon certain conditions having been met, it shall come into force provisionally.

[Art.24, Vienna Convention on the Law of Treaties 1969]

Exchange of Letters / Notes

The act of exchange will constitute a treaty if this is the intention of the States concerned. Such intention is usually evidenced by an express statement in the letters/notes that together they constitute an agreement.

The basic characteristic of this procedure is that the agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. The agreement therefore lies in the exchange of both letters or notes. In practice, the second letter or note, usually the letter or note in response, will typically reproduce the text of the first. In a bilateral treaty, letters or notes may also be exchanged to indicate that all necessary domestic procedures have been completed. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval. 

[Art.13, Vienna Convention on the Law of Treaties 1969]

Framework Treaty

A multilateral treaty establishing a structure that is built upon by future treaties of greater intricacy, such as protocols or national legislation. An example is the United Nations Framework Convention on Climate Change, which was elaborated by the Kyoto Protocol.

Initialling

Unless otherwise indicated, signifies only provisional assent to the text of a treaty by delegates following negotiation.

Memorandum of Understanding

A memorandum of understanding is an international instrument of a less formal kind. It often sets out operational arrangements under a framework international agreement. It is also used for the regulation of technical or detailed matters. It is typically in the form of a single instrument and does not require ratification. They are entered into either by States or International Organizations.

The United Nations usually concludes memoranda of understanding with Member States in order to organize its peacekeeping operations or to arrange UN Conferences. The United Nations also concludes memoranda of understanding on cooperation with other international organizations.

Modification

The term "modification" refers to the variation of certain treaty provisions only as between particular parties of a treaty, while in their relation to the other parties the original treaty provisions remain applicable. If the treaty is silent on modifications, they are allowed only if the modifications do not affect the rights or obligations of the other parties to the treaty and do not contravene the object and the purpose of the treaty.

[Art.41, Vienna Convention on the Law of Treaties 1969]

Multilateral Treaty

A treaty that (note that the definition of 'treaty' includes agreements) that is between three or more parties.

Non Party

A person, group, entity or state that is not participating in a treaty.

Notification

The term "notification" refers to a formality through which a state or an international organization communicates certain facts or events of legal importance. Notification is increasingly resorted to as a means of expressing final consent. Instead of opting for the exchange of documents or deposit, states may be content to notify their consent to the other party or to the depositary. However, all other acts and instruments relating to the life of a treaty may also call for notifications.

[Arts.16 (c), 78 etc, Vienna Convention on the Law of Treaties 1969]

Objection

Any signatory or contracting state has the option of objecting to a reservation, inter alia, if, in its opinion, the reservation is incompatible with the object and purpose of the treaty. The objecting state may further declare that its objection has the effect of precluding the entry into force of the treaty as between objecting and reserving states.

[Art.20-23, Vienna Convention on the Law of Treaties 1969]

Party

A person, group, entity or state, that agrees to abide by the requirements of a treaty. 

Protocol

A negotiated document often meant as a supplement to a treaty or agreement, stipulating specific action that should be taken to fulfil the terms of the agreement or modifying the agreement.

Ratification

Ratification follows signature and is a method whereby a state indicates its consent to be bound by a treaty if the parties intended to consent to be by such an act.

In the case of bilateral treaties, ratification is usually accomplished by exchanging the requisite instruments, while in the case of multilateral treaties the usual procedure is for the depositary to collect the ratifications of all states, keeping all parties informed of the situation.

The institution of ratification grants states the necessary time-frame to seek the required approval for the treaty on the domestic level and to enact the necessary legislation to give domestic effect to that treaty. Any process of obtaining parliamentary approval for ratification is not ratification, though often mistakenly referred to as such. This procedure is localising treaty's principles and obligations in to national law and is called Transformation.

[Arts.2 (1) (b), 14 (1) and 16, Vienna Convention on the Law of Treaties 1969]

Reservation

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.

A reservation enables a state to accept a multilateral treaty as a whole by giving it the possibility not to apply certain provisions with which it does not want to comply.

Reservations must not be incompatible with the object and the purpose of the treaty. Furthermore, a treaty might prohibit reservations or only allow for certain reservations to be made.

[Arts.2 (1) (d) and 19-23, Vienna Convention of the Law of Treaties 1969]

Signatory

Signature

Signature of a treaty is an act by which the State expresses its interest to the treaty and its intention to become a Party. The State is not bound by the signature. However, he has the obligation not to defeat the object and purpose of the treaty until it has made its intention clear not to become a Party to the treaty.

Signature of a treaty can be an act whereby a state expresses its consent to be bound by the treaty where the treaty provides that signature shall have that effect, where the negotiating states have agreed that signature should have that effect, or where the intention of the state is to give that effect to the signature.

[Articles 12 and 18 of the Vienna Convention of the Law of Teaties 1969]

Signature Subject to Ratification, Acceptance or Approval

Where the signature is subject to ratification, acceptance or approval, the signature does not establish the consent to be bound. However, it is a means of authentication and expresses the willingness of the signatory state to continue the treaty-making process. The signature qualifies the signatory state to proceed to ratification, acceptance or approval. It also creates an obligation to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty. [Arts.10 and 18, Vienna Convention on the Law of Treaties 1969]

Treaty

A treaty is 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. [Article 2 of the Vienna Convention].

The Pacific Islands Treaties Series contains conventions, agreements such as by exchange of notes or memorandum of understanding and others, charters, codes, framework convention, outline convention. All these legal instruments are treaties as defined by the Vienna Convention.

The sole difference between conventions and agreements is the form in which a State may express its consent to be bound. Agreements may be signed with or without reservation as to ratification, acceptance or approval. Conventions may, in principle, be ratified.

Symbols

The following main symbols are used in the PITS Status Reports to identify relevant treaty action:

• a - accession;

• A - acceptance;

• AA - approval;

• c - formal confirmation;

• d - succession;

• P - participation;

• Rt - ratification;

• s - definative signature; and

• n - notification (of provisional application, of special undertaking etc).

Sometimes these symbols are given a different meaning or other symbols are used. Where this is the case, the meaning of the particular symbol will be specified.