Expression of Consent to be Bound by a Treaty in the Light of the 1969 Vienna

Convention
Author(s): Alexandru Bolintineanu
Source: The American Journal of International Law , Oct., 1974, Vol. 68, No. 4 (Oct.,
1974), pp. 672-686
Published by: Cambridge University Press

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EXPRESSION OF CONSENT TO BE BOUND BY A TREATY
IN THE LIGHT OF THE 1969 VIENNA CONVENTION

By Alexandru Bolintineanu *

The questions which will be examined in this paper relate to the pro-
visions of Articles 11 to 15, contained in Part II, Section I ("Conclusion of
Treaties") of the 1969 Vienna Convention on the Law of Treaties. These
articles deal with "the means of expressing consent to be bound by a treaty"
(as enumerated in Art. 11): signature (Art. 12), exchange of instruments
constituting a treaty (Art. 13), ratification, acceptance, or approval (Art.
14) and accession (Art. 15).1
It is not necessary to insist upon the importance of the 1969 Vienna Con-
vention.2 Although it has not yet entered into force,3 the convention has
reduced "a new and substantial part of customary law to writing"4 and
c<. . . its impact and influence on the treaty-making practices of govern-
ments will be [and indeed already is] considerable." 5
The consent of states to be bound by a treaty constitutes the mechanism
through which a treaty comes into being as a juridical act. The technical
or procedural character of the rules concerning the expression of this con-

* Member of the United Nations Secretariat, formerly chief of the Section of inter-
national law of the Institute for Legal Research of the Romanian Academy for Social
and Political Sciences. The opinions expressed herein are those of the author and are
not to be attributed to the United Nations Secretariat.
1 "Signature," as used in this article, designates "full" signature binding, as such, the
state which expressed its consent through it. Comments on ratification also apply, in
general, to acceptance or approval, as they are considered by the Vienna Convention
as similar to ratification (Art. 14, para. 2). For the text of Articles 11 to 15, see UN
Document A/coNF.39/11/Add.2, at 290-91. Text also in 63 AJIL 878-80 (1969) and
8 ILM 684-85 (1969).
2 See, for instance, Richard D. Kearney and Robert E. Dalton, The Treaty
Treaties 64 AJIL 495 (1970); S. E. Nahlik, The Groutnds of Invalidity and Termina-
tion of Treaties 65 AJIL 736 (1971).
3 The convention will not enter into force until thirty-five states have deposited in-
struments of ratification or accession with the Secretary-General of the United Nations.
As of January 1, 1974, the following 18 states had deposited instruments, either of
ratification or of accession: Argentina, Barbados, Canada, Central African Republic,
Jamaica, Lesotho, Mauritius, Morocco, New Zealand, Niger, Nigeria, Paraguay, Phil-
ippines, Spain, Syria, Tunisia, United Kingdom, and Yugoslavia.
' United Nations Conference on the Law of Treaties, Second Session (9 April-22 May
1969), UN Document A/coNF.39/11/Add.1, at 170, para. 21 (the representative of
Switzerland). In its advisory opinion on "The Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding
Security Council Resolution 276 (1970)," the ICJ invoked certain provisions of Article
60 of the Convention concerning termination of a treaty relationship on account of
breach which had been adopted without a dissenting vote. The Court stated that these
provisions "may in many respects be considered as a codification of existing customary
law on this subject" [1971] ICJ REP. 3 at 47.
5 J. M. SINCLAMR, TnE VIENNA CONVENTION ON THIE LAW OF TBEATIES 145 (1973).

672

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1974] EXPRESSION OF CONSENT TO TREATY 673

sent cannot therefore blur the fact that it is only through their proper
application that the formal conditions of the validity of a treaty are com-
plied with."

CHARACTERISTICS OF RULES CONCERNING EXPRESSION OF CONSENT

TO BE BOUND BY A TREATY

The underlying principle of the provisions concerning the expression of

consent to be bound by a treaty is the autonomy of the will 7 of the negoti-
ating states.8 This is a consequence of the generally "classical" character
of the Convention which is based on the principle of the sovereignty of
states.9
The rules stipulated in Articles 12 to 15 of the Convention have a sub-
sidiary character.10 Their purpose is to indicate how to establish the con-
sent of the negotiating states. Moreover, according to Article 11, the
negotiating states can establish means of expressing consent other than
those dealt with in the Convention, if they so agree.-"
In addition, what has been called "a decline of form" in international
practice,'2 in contradistinction to the reign of formalities and solemnities
which had accompanied the conclusion of treaties from ancient times until
the 19th century, manifests itself vividly in the relevant provisions of the
Vienna Convention.13 No hierarchy was established between more formal
or complex procedures, such as ratification, implying the accomplishment of
two successive international acts (signature followed by an exchange or
deposit of an instrument of ratification), and the less formal or simplified

6 In his First Report on the Law of Treaties, Sir Gerald Fitzmaurice listed the draft
articles on the means of expressing consent to be bound by a treaty under the title
"General conditions of formal validity." [1956] 2 ILC Y.B. 109.
7 See, for instance, ALFREDo MARESCA, IL DIRUTO DEI TRATATTI: LA CONVENZIONE
CODIFICATRICE DI VIENNA DEL 23 MACGIO 1969, at 126 (1971).
8According to Article 2(e) of the Convention "'negotiating state' means a state
which took part in the drawing up and adoption of the text of the treaty."
9 See PAUL REurER, LA CONVENTION DE VIENNE SUR LE DROIr DES TRAITkS 15 (1970).
10 MARESCA, supra note 7, at 155-56. See also Introductory study by Francesco Ca-
potorti, CONVENZIONNE DI VIENNA SUL DIRITTO DEI TRATATTI 24 (1969).
11 The text of Article 11 of the Convention which did not have a counterpart in the
ILC draft was proposed at the Conference by Poland and the United States (A/cONF.
39/C.1/L.88 and Add 1), to indicate that the following articles did not exhaust the
list of the means of expressing consent to be bound by a treaty (United Nations Con-
ference on the Law of Treaties, First Session, Vienna, March 26-May 24, 1968, A/CoNF.
39/11, paras. 43-48). However, read together with Articles 12 to 15, this prefatory
article seems to indicate the decisive role attributed by the Convention to the will of
the negotiating states. Other means than those provided in these articles are, for in-
stance, the proclamation or publication of a treaty (see examples in Hans Blix, The
Requirement of Ratification, 30 B.Y.I.L. 352 at 357-58, 363-64 (1953)) and the notifi-
cation that the relevant internal procedures for the entering into force of the treaty have
been complied with.
12 Manfred Lachs, Substance and Form in International Law, TRANSNATIONAL LAW
IN A CHANGING SOCMTY, EssAYs IN HONOR OF PHILIP C. JESSUP (W. Friedmann,
L. Henkin and 0. Lissitzyn, eds.) 101 (1972).
is Id., at 102-03.

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 674 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 68

procedures requiring a single international act, such as signature and ex-

change of instruments constituting a treaty.
In this way, the rules provided in Articles 12 to 15 of the Vienna Conven-
tion reflect the new trends and the diversity of contemporary state practice.
The requirements of a rapidly developing international cooperation have
brought into existence new, accelerated, and simplified procedures of ex-
pressing consent to be bound by a treaty. International law "not being a
formalistic system, holds states legally bound by their undertakings in a
variety of circumstances..." 14
In the light of the principle of the autonomy of the negotiating states
and of the lack of formalism, the rules prescribed by Articles 12 to 15 of
the Vienna Convention will be dealt with here as rules providing for the
"liberty of forms" 15 or "the procedural autonomy of the negotiating
states" "I and as rules which sanction this will, as the only source for deter-
mining the specific means to be employed by a state in order to become
bound by a treaty.

PROCEDURAL AUTONOMY OF NEGOTIATING STATES

The Convention gives effect to this principle through not placing any
restrictions or limitations upon the freedom of the negotiating states in
choosing between complex and simplified means of expressing consent to
be bound by a treaty.
In this connection, the following questions were raised in the literature
and in the process of preparing and putting into final form the relevant
provisions of the Vienna Convention:

(1). Is there no general customary rule of international law to be applied

in this choice which could also be used as a residuary rule, when the intent
of the negotiating states to use a certain means of expressing consent can-
not be established?
(2). Are there no rules to be deduced from the international practice of
concluding treaties in simplified form?
(3). Have the constitutional or other provisions of municipal law any
relevance for the international law of treaties?

(1). Existence of a General Rule of International Law

The practice of states in the use of the means of expressing consent to

be bound by a treaty was considered by some writers in the past as indi-
cating the existence of a general rule of customary international law which
would, in principle, have required the ratification of treaties. Signature
was seen as only an exception to the general rule-an exception operative

14 Separate opinion of Judge Jessup in South West Africa Case [1962] ICJ REP.,
319 at 411.
15 3 A. P. SERENI, Dnurro INTERNAZIONALE 1317 (1962); 2 G. DAHM, V6LKERRECHT
68 (1961).
16 MARESCA, supra note 7, at 154.

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1974] EXPRESSION OF CONSENT TO TREATY 675

when the treaty explicitly provided that it would enter into force upon
signature.17 The rule amounted to a general presumption or to a residuary
rule stipulating the necessity of ratification. The presumption was only
juris tantum, rebuttable if the proof of a contrary intention of the parties
could be produced.
A number of international instruments and decisions of international and
municipal court were invoked as evidence in favor of the existence of a
rule that ratification was, in principle, required. However, as has already
been noted, the "evidence" was of a limited character, subject to various
interpretations and, therefore, of little value.'8
On the contrary, the evolution of the practice whereby states resorted to
signature or to other simplified procedures (which began to develop in the
last decades of the 19th century and to expand substantially during the
20th century) abundantly proves the nonexistence of a general customary
rule requiring, in principle, the use of ratification.19 At the same time, the
variety of state practice did not permit any general presumption or a
residuary rule in principle requiring the use of signature as an expression
of the consent to be bound.20

17W. E. HALL, INTERNATIONAL LAW Sect. 110 (8th ed., 1924); DE LOUTER, LE
DRorr INTERNATIONAL PUBLIC POSITIF 488-91 (1920); 1 CH. ROUSSEAU, PRINCIPES
GENEhRAUX DE DRorr INTERNATIONAL PUBLIC 189-95 (1944); I OPPENHEIm, INrERNA-
TIONAL LAW 906-07 (8th ed. H. Lauterpacht, 1957); MCNAUI, THE LAW OF TREATES
134 (1961); Art. 7 and commentaries of the Harvard Draft Convention, 29 AJIL SuPP.
756 (1935); Art. 4 of the articles provisionally adopted by the ILC, [1951] 2 ILC
Y.B. 74.
18 Protocol No. 9 of the Berlin Congress of 1878 and Article 5 of the Convention on
treaties approved by the 6th Inter-American Conference (Havana 1928) were quoted
as examples of international instruments. But due to the limited number of the parties
(5 and 8 respectively to these compacts, the last one having moreover a regional char-
acter) and to the fact that they may be construed to refer only to "treaties," in the
narrow sense of the term, and not to agreements in simplified form (concluded by
signature alone), it is difficult to ascertain that they expressed a general rule of inter-
national law. In its decision of September 10, 1929 ("Territorial jurisdiction of the
International Commission of the Oder") and in its advisory opinion of October 15, 1931,
("Railway traffic between Poland and Lithuania") the PCIJ held that a convention not
ratified by Poland, in the first case, and by Lithuania, in the second case, was not
binding on those countries. The Court's dicta was not of a general character, but
applied only to the specific cases with which the Court had to deal; they amounted to
an assessment that, if a treaty so provides, it has to be ratified. See also in this sense
H. Blix, supra note 11, at 370-71 and H. Lauterpacht [1953] 2 ILC Y.B. 117.
19 After an examination of 1,760 treaties published in the League of Nations Treaty
Series from 1932 to 1940 and 1,300 treaties published in the United Nations Treaty
Series (vol. 1, 1946 to vol. 79, 1951), Blix assessed that 53% of the treaties published
by the League were ratified, while for only 23% of the treaties published by the United
Nations was the same procedure followed. H. Blix, supra note 11, at 359-60. Accord-
ing to more recent statistics, nine of the 1,579 treaties published in the United Nations
Treaty Series between 1963-1965 required ratification. Maria Frankowska, De la
pretendue pr4somption en faveur de la ratification, 73 REV. GEN. DROrr INT. PUBLIC
78 (1969).
20 See A. BOLINTINEANU AND D. POPESCU, LEGAL MEANS WHEiREBY STATES BECOME
PARTIES OF TREATiEs (in Romanian) 110 (1967). A rule or a presumption in favor of

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 676 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 68

The question of providing for a residuary rule arose early in the work
of the International Law Commission.21 After including in its 1962 draft a
residuary rule in favor of ratification, the Commission decided not to main-
tain any residuary rule in the 1966 final draft submitted to the Vienna
Conference.22
At the Vienna Conference, the participating states adopted divergent
positions. A certain number of states were of the opinion that a Conven-
tion on the Law of Treaties would fail to provide -the desirable clarity and
legal certainty if it did not lay down a residuary rule as to the expression
of consent to be bound.23 But those who held this position were divided
as to the content of such a rule. Some, invoking especially constitutional
requirements,24 were in favor of providing for ratification.25 Other rep-
resentatives supported formulation of a residuary rule providing for sig-
nature,28 taking into account the contemporary practice of states.27 Several
delegations supported the ILC decision not to include any residuary rule,
because of its very limited practical value, as the overwhelming majority
of treaties explicitly provide either for their signature or ratification.28 This
last position, finally, prevailed. Some misgivings were expressed in con-
nection with the failure of the Conference to adopt a residuary rule, not
for any substantive reasons, but because neither the "necessity of ratifica-
tion" nor the opposite rule obtained the required majority of votes.29
In this writer's opinion, the divergent attitudes of states at the Confer-
ence and the outcome-the absence of any residuary rule in the Vienna
Convention-reflect in reality the lack of a general international law rule
relating to the matter. It also seems significant that none of the delega-
tions at the Vienna Conference which supported the adoption of a residuary
rule establishing a presumption in favor of signature referred to an existing
rule of law, but only to the practice of states.

signature, operating unless the negotiating states have not provided explicitly for ratifi-
cation, was proposed by Sir Gerald Fitzmaurice in his First Report on the Law of
Treaties [1956] 2 ILC Y.B. 113-14. He thus reiterated the opinion expressed in his
study Do Treaties Need Ratification? 15 B.Y.I.L. 129 (1934). H. Blix (supra note 11,
at 537 ff.) seems to share the same opinion.
21This question was debated by -the ILC for the first time in 1954. See [1954]
2 ILC Y.B. 27-34.
22This ILC position was explained by reference to the divergent views contained in
the comments of governments and to the controversial character of any residuary rule.
(See ILC commentary on Art. 12 of its 1966 draft, corresponding to Art. 14 of the
Vienna Convention, A/coNF.39/11/Add. 2, at 18, para (7)).
23 See, for instance, A/CONF.39/11, at 85, para. 6; 86, para. 9, and 89, paras. 7 and 8.
24 Proposals to this effect were submitted to the Conference by Venezuela, (A/CONF
39/C.1/L.71), Bolivia, Chile, Colombia, Guatemala, Honduras, Mexico, and Venezuela
(A/coNr.39/C.1/L.105), and Switzerland (A/cONF.39/C.1/L/87).
25 See, for instance, A/cONF.39/11, at 85, paras. 4 and 9, and 86, para. 9.
26A proposal to this effect was submitted by Czechoslovakia, Sweden, and Poland
(A/coNF.39/1/L/38 and Add. 1 and 2) and was later withdrawn.
27See, for instance, A/coNF.39/11, at 86, paras. 13 and 14; 87, para. 28; and 88,
para. 32.
28 See, for instance, id., 87, paras. 21 and 30; 88, para. 31; 89, para. 15.
29Frankowska, supra note 19, at 86-87.

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19741 EXPRESSION OF CONSENT TO TREATY 677

At the same time, by not establishing a residuary rule, the Vienna Con-
ference consistently followed the principle of the autonomy of the negotiat-
ing states. Each case where there is no expressed will or intention on the
procedures to be used in order to be bound by a treaty would be solved
by the states concerned. In actuality the lack of a subsidiary rule in the
Vienna Convention will not create difficulties in practice as such difficulties
do not seem to have arisen before its adoption.30

(2). Treaties in Simplified Form

Taking as a point of departure the fact that state practice presented cer-
tain uniformities in not providing for the ratification of treaties relating to
particular matters, especially of a technical or administrative character,
some authors, mainly French,!' have attempted to establish a classification
of international conventional instruments into treaties within the strict
meaning of the term (or treaties proper) and treaties or agreements in
simplified form. If this classification had an objective character, the re-
sulting rules could limit the procedural autonomy of the negotiating states.
In case a specific transaction fell within the category of treaties in simpli-
fied form, ratification would not be required. This does not seem, how-
ever, to be the case.
(a) The only juridical criterion for distinguishing between "treaties" and
"agreements in simplified form" is the existence or absence of the require-
ment of ratification.82 Obviously, the distinction describes only the actual
choice made by the negotiating states and does not point to a rule to be
taken into account in making the choice of a specific means of expressing
consent to be bound by a treaty.
(b) The fact that, in state practice, treaties on certain matters are fre-
quently concluded in simplified form has induced some authors to establish
several categories of such treaties.8 According to a recent classification,
the following categories might be distinguished: (1) agreements between
belligerent states; (2) agreements concluded for purposes of political and
military cooperation, relating to a possible or actual armed conflict; (3)
agreements of a technical character (in the field of transport and commu-
nications, in administrative matters, etc.); (4) agreements providing for the

30 The argument using statistical figures to substantiate the view expressed by Fran-
kowska that the question of a residuary rule presents nevertheless a certain practical
importance does not seem very impressive. Out of 1,597 treaties published in the
United Nations Treaty Series 1963-1965, 151 'contained no provision on the means to
express consent to be bound by them. But 116 of these were concluded between states
and international governmental organizations and only 35, that is 2.2%, between states;
there were no objections or disputes in connection with the validity of the treaties with-
out a clause on the means of expressing consent to be bound by them. See Frankowska,
supra note 19, at 78-79.
31 See Jules Basdevant, La conclusion et la r4daction des trait4s et des instruments
diplomatiques autres que les traites, 15 ACADEME DE DROIT INTERNATIONAL, REc. DE
ComRs 615-26 (1926, V); RousSEAU, supra note 17, at 253 ff.
32 MARESCA, supra note 7, at 160; RouSSEAU, supra note 17, at 71.
53 See, for instance, Basdevant, supra note 31, at 619 ff.

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678 THE AMERICAN JOURNAL OF INTNATIONAL LAW [Vol. 68

conclusion of other agreements (pacta de contrahendo), and for the imple-

mentation or interpretation of other agreements.34 This classification seems
to be based mainly on the object and purpose of a treaty, as a criterion
used by the negotiating states when choosing a less formal and an accel-
erated procedure of conclusion.
Any classification of this kind is, however, relative. As the ILC re-
marked in its commentary to Article 1 of the 1962 draft:

In point of fact, formal and informal treaties are so often employed for
precisely the same kind of transaction . . . The distinction between
treaties in simplified form and other treaties is not altogether easy to
express, owing to the great variety in the use of treaty forms and the
somewhat indiscriminate nomenclature of treaties.35
The same draft contained an attempt at defining treaties in simplified form,
by referring to some typical examples.36 The definition was afterwards
abandoned in the 1966 draft, because the Commission, as stated in its com-
mentary, found it difficult to give it sufficient precision, Article l(b) of the
1962 draft being more a description than a definition.87
The conclusion reached by the ILC that the distinction between "treaties
in simplified form" and "other treaties" should be discarded seems well
founded; neither the procedure for their conclusion nor any other criterion
sufficiently justifies it. The expression "treaties in simplified form" may be
used, of course, as describing an agreement for which the negotiating
parties, guided by various motives not always easy to fit into a pre-estab-
lished pattern, have chosen a simplified and accelerated procedure of ex-
pressing consent to be bound by it.
Tle ILC rejection of any reference to treaties in simplified form was
confirmed at the Vienna Conference on the Law of Treaties. An attempt
to introduce certain classes of treaties in simplified form, by reference to
internal law, failed to obtain the approval of the majority of the states
represented at the Conference.38
We share, therefore, the opinion that the Vienna Convention has elimi-
nated the distinction between formal and informal treaties,39 both being
placed on the same level and thus reflecting the "decline of form" in inter-
national law and the procedural autonomy of the negotiating states.

34 See MARESCA, supra note 7, at 161-62.

35 (1962] 2 ILC Y.B. 163, para. 11.
36 The definition of a treaty in simplified form read as follows: "[Al treaty concluded
by exchange of notes, exchange of letters, agreed minute, memorandum of agreement,
joint declaration or other instrument concluded by any similar procedure." Art. 1, para.
1(b) of the 1962 draft. Id., at 161.
37 See A/coNF.39/11/Add.2, at 9, para. 8 and 17-18, para. 5.
38 According to an amendment submitted by nine Latin American states to Article 10
of the ILC draft relating to signature (Art. 12 of the Convention), states could express
their consent by signature (a) when the treaty so provides or (b) when "in conformity
with the internal law of the state the treaty is an administrative or executive agree-
ment." A/coNF.39/11/Add.2, para. 119. The proposal was rejected by 60 votes to
10 with 16 abstentions.
39 Cf. ERNESTO DE LA GUARDIA and MARCELo DELPECH, EL DERECHO DE LOS
TRATADOS Y LA CONVENCI6N DE VIENA DE 1969, at 223-24 (1970).

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1974] EXPERESSION OF CONSENT TO TREATY 679

(3) Relevance in International Law of Constitutional and other Municipal

Law Rules relating to the Treatymaking Power

If international law does not limit the procedural autonomy of the negoti-
ating states, should it not, however, take into account rules of municipal
law relating to the treatymaking power? Such rules, contained in constitu-
tions and sometimes in other laws or regulations, indicate what procedures
are to be performed by internal legislative or executive organs prior to the
expression on the international level of the consent of a state to be bound
by a treaty.
Usually, constitutions mention one or several categories of treaties which
need parliamentary approval, such as treaties modifying national legislation
or requiring the adoption of legislative measures; peace treaties; treaties
regarding teiritorial cessions; treaties by which a state undertakes financial
obligations; commercial treaties; treaties establishing international organiza-
tions; treaties of alliance; treaties containing provisions regarding arbitral
or judicial adjudication; treaties regarding personal status; "important"
treaties; political treaties; or simply "treaties" (as in the United States).
Naturally, when explicitly stipulating in the text of a treaty the specific
means whereby consent to be bound by it should be expressed, the negoti-
ating states have taken into account their relevant national laws.40
At the Vienna Conference on the Law of Treaties the nine-states amend-
ment, which was rejected,4' would have considered internal law as relevant
in establishing that administrative and executive treaties can be concluded
by mere signature. The proposal was explained by one of its sponsors in
terms of the constitutional difficulties encountered by most of the Latin
American states in applying internal procedures when concluding treaties.42
Another representative felt, however, that:

It would be wrong to try to make rules of international law subject to

those of internal constitutional law. The negotiating states, aware of
their constitutional provisions, should make the necessary arrangements
to enable them to enter into international undertakings.43

40There is a widespread opinion that, as constitutions are usually concerned with

"treaties proper," executive organs are competent to conclude "treaties in simplified
form" because they relate to fields in which, according to municipal law, such organs
are competent to adopt internal regulations without any parliamentary approval; they
are thus authorized to act in the same way on the international plane. See, for instance,
1 W. WENGLER, VOLKERRECHT 220 and 225 (1964); F. 0. WILcOx, THE RATIFICATION
OF INTERNATIONAL TREATIES 233 (1935); Chayet, Les accords en forme simplifee, ANN.
FRANgAISE DE DROIT INTERNATIONAL 5 (1957'). A somewhat different opinion has
been recently expressed in the sense that in the case of "treaties in simplified form,"
the authority invested with treatymaking power (in general the head of state) had
delegated its power to the negotiators of the treaty i.e. has authorized them explicitly
or implicitly to act to this effect. DE LA GUARDIA AND DELPECH, supra note 39, at 223.
41 See supra note 38.
42 See, for instance, A/CONF.39/11, at 91-92, para. 39 (the representative of Chile).
43A/cONF.39/11, at 89, para. 6. Another representative pointed out that the accep-
tance of the nine-states amendment would imply requiring states to study the intemal
law of other states in order to detennine whether a treaty was an administrative agree-
ment; such a task is difficult enough for national lawyers and would be much more so
for foreigners. Id., at 93, para. 59.

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680 THE AMERUCAN JOURNAL OF INTERNATIONAL LAW [Vol. 68

The Convention did, however, take into account the relevance of munic-
ipal law rules in the formation of the consent of a state to be bound by a
treaty, subsequently to be declared on the international level. Article
46 of the Convention (based on Art. 43 of the ILC 1966 draft) reads
as follows:

1. A State may not invoke the fact that its consent to be bound by a
treaty has been expressed in violation of a provision of its internal law
regarding competence to conclude treaties as invalidating its consent
unless that violation was manifest and concerned a rule of its internal
law of fundamental importance.

2. A violation is manifest if it would be objectively evident to any

State conducting itself in the matter in accordance with normal prac-
tice and in good faith.

Despite its limitation to certain cases, this article can be construed as

recognizing the relevance in international law of municipal law rules con-
cerning the conclusion of treaties. Consent to be bound by a treaty is
embodied in a succession of interdependent internal and international acts.
The absence of the internal act or its performance in violation of municipal
law prescriptions therefore invalidates the international declaration of the
state's consent.44
In the light of these observations, the opinion of E. de la Guardia and
M. Delpech that the Vienna Convention had made an innovation in the
law of treaties, by not including an explicit reference to municipal law
rules in the section on the conclusion of treaties, seems unjustified.
The same authors further maintain, in the same context, that the states
in which the treatymaking power is divided between the legislative and
the executive would have to modify their constitutions, if they became
parties to the Vienna Convention.45 This opinion is not well founded.
The Vienna Convention has only codified an existing practice followed by
states, where the treatymaking power is divided, without the necessity of
their modifying their constitutions. In addition, as mentioned by the ILC
in its commentary to Article 12 of its 1966 draft (Art. 14 of the Conven-
tion), the provisions regarding ratification give every legitimate protection
to any negotiating state with regard to its constitutional requirements. If,
according to these requirements, a negotiating state has to resort to ratifica-
tion, while for others signature is sufficient to express consent to be bound,
it may do so either

in the treaty itself or in a collateral agreement or it may do so unilat-

erally by the form of its signature, the form of the full powers of its
representative or by making its intention clear to the other negotiating
states, during the negotiations.46

44See BOLINTINEANU AND POPESCU, supra note 20, at 77.

45 DE LA GUARDIA AND DELPECH, supra note 39, at 220.
46 A/coNF.39/11/Add. 1, at 18, para. 8. For the methods at the disposal of a negoti-
ating state to establish unilaterally the means to express its consent to be bound see
infra, pp. 68 ff.

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 1974] EXPRESSION OF CONSENT TO TREATY 681

The practice of states offers many examples of procedures applied in

order to eliminate any contradiction between international and internal
rules conceming the conclusion of treaties. For instance, some treaties
provide for ratification by only one of the negotiating states.47 In some
cases, in order to satisfy their internal law requirements, negotiating states
stipulate that their consent to be bound by the respective treaty will be
expressed by a notification that their statutory or constitutional provisions
have been complied with. As mentioned by de la Guardia and Delpech,
such a procedure may be used in cases when a treaty is a "formal" treaty
for one party and one "in simplified form" for the other.48

WILL OF NEGOTIATING STATES AS THE ONLY SOURCE FOR DETERMINATION

OF A SPECIFIC MEANS OF EXPRESSING CONSENT TO BE BOUND BY A TREATY

In order to determine what specific means have to be used to express

consent to be bound by a treaty, Articles 12 to 15 of the Vienna Conven-
tion enumerate and define the methods through which the will of the
negotiating states can be expressed. Some of the methods concern the
agreement or collective will of the negotiating states; others, the intention
or will of one or several states.

(1) Methods concerning Agreement of Negotiating States

According to Articles 12 to 15 (subparas. 1(a) and (b) ), the agreement

of the negotiating states on a certain means of expressing consent to be
bound by a treaty can be either embodied in a provision of the treaty or
"otherwise established."
(a) The provision of the treaty: Each of these articles begins the enu-
meration of the methods by which such consent can be expressed by
referring to the provision of the treaty concerning the specific means dealt
with in the respective article (Art. 12, para. 1( a), Art. 13( a), Art. 14, para.
l(a) and Art. 15(a)). These provisions reflect the current practice of
states whereby they specify in the text of the treaty the agreement of the
negotiating states on the means of expressing consent to be bound.
In the case of accession, the agreement may intervene at different mo-
ments: either at the adoption of the treaty, if the negotiating states have
so provided in the text of the treaty, or subsequently to its adoption,
if all the parties to the treaty (Art. 15(c) of the Convention) so agree.
Since, according to Article 2, paragraph l(g) of the Convention, "party
means a State which has consented to be bound by the treaty and for which
the treaty is in force," such a subseauent agreement will reflect only the

T7 Examples of such treaties are given by H. Blix, supra note 11, at 357 and MERVYN
JONES, FULL POWERS AND RATIFICATION 119 (1949).
48 DE LA GUARDIA AND DELPECH, supra note 39, at 224.

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682 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 68

will of the states which have already expressed their

ment will, however, be binding on those of the negotiating states which
subsequently become parties to the treaty. The subsequent agreement
may, it is submitted, be expressed either explicitly in an additional instru-
ment to the treaty,49 when it represents a formal amendment to it, or im-
plicitly.50 An implicit agreement was envisaged by Article 19 of the
Havana Convention on Treaties (1928), stipulating that a state, which had
not participated in the conclusion of a treaty, may accede to it if none of
the contracting parties objects.
As the ILC pointed out in the commentary to its 1966 final draft, this
subsequent agreement represents an amendment of the treaty. The term
amendment was not used by the ILC because it was felt that the proce-
dures of formal amendment by the conclusion of an amending agreement
are somewhat different from an informal agreement to permit a state to
accede to a treaty.5'
(b) The agreement of the negotiating states not recorded in the text of
the treaty: According to subparagraph l(b) of Articles 12 and 14 and
paragraphs (b) of Articles 13 and 15, the consent of a state to be bound
by a treaty can be expressed by the methods specified in these articles
when "it is otherwise established that the negotiating states were agreed"
on the use of that method.
In attributing to t-he agreement of the negotiating states on this matter
the same juridical value as to an explicit clause in the treaty, the Vienna
Convention based itself on certain precedents in state practice. According
to these precedents, in the cases of signature and ratification, when no
provision on the means of expressing consent is included in the treaty, the
intention of the negotiating states could be established by resorting to "the
circumstances of its conclusion." 52 It has been pointed out, however, that

49That was the case of the conventions on questions of private international law
(1902 and 1903) to which additional protocols were appended for the accession of
Finland, Poland, Czechoslovakia, and Yugoslavia, since the conventions provided that
only the states represented at the conferences which had adopted them were entitled
to use this means of expressing consent to be bound.
50 As an example of a procedure of informal agreement, the commentary to Article 12
of the 1966 ILC Draft (corresponding to Art. 15 of the Vienna Convention) mentioned
the informal agreement expressed in General Assembly resolution 1903(XVIII) to open
to accession by the new states the general mulltilateral treaties concluded under the
auspices of the League of Nations. A/coNF.39/11/Add.2, at 20. A tacit agreement
intervened in the case of the accession of Finland, Poland, and Czechoslovakia to the
1907 Hague Convention on the pacific settlement of international conflicts, despite the
fact that the Convention provided (Art. 94) that the conditions under which the non-
participating states to the second Hague Peace Conference might accede to the Con-
vention must be established by a subsequent explicit agreement of the parties.
53' See the commentary to Art. 12 of the ILC Draft (corresponding to Art. 15 of the
Vienna Convention). A/coNF.39/11/Add.2, at 19, para. 4.
52 See, for instance, 3 DAHM, supra note 15, at 71, 77-78; Art. 7 and commentary,
Harvard Draft Convention, supra note 17, at 768 ff; H. Lauterpacht, First Report on the
Law of Treaties, [1953] 2 ILC Y.B. 115; Sir Humphrey Waldock, First Report on the
Law of Treaties [1962] 2 ILC Y.B. 48 ff; RoussxAu, supra note 17, at 225 ff.

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1974] EXPRESSION OF CONSENT TO TREATY 683

it is not easy to find out what circumstances were, and that any determina-
tion of such circumstances would be of only relative value.""
Nevertheless, the 1962 and 1965 drafts of the ILC employed the "classi-
cal" formula by referring to the "circumstances of the conclusion of the
treaty" as a method of establishing the intention of the negotiating states
regarding a specific means of expressing consent to be bound by it.54
The new formulation, used in the 1966 final draft of the ILC,Q5 and ac-
cepted at the Vienna Conference,"6 differs from the previous one in requir-
ing an agreement between the negotiating states and not a simple inference
of the intention of these states from the circumstances of the conclusion of
the treaty. It has been, therefore, described as having a rigid character,
in comparison with the formulation used in the 1962 and 1965 ILC drafts.57
It seems that this restrictive formulation has the advantage of not only
being more precise than the reference to the "circumstances of the con-
clusion of the treaty," 58 but also of being more accurate. What is essential
in determining what specific means of expressing consent to be bound by
a treaty should be used are not the circumstances of its conclusion but the
existence of an agreement to this effect between the negotiating states,
irrespective of whether it has been embodied in the text of the treaty.
It is true that the provision concerning the agreement of the states may
raise the problem of the evidence needed to establish the existence and
content of that agreement.59 From this point of view, this provision has
been considered as highly imprecise, since it allows any means of proof
and does not specify who has to prove the existence of the agreement (the
states or an organ for settling a possible dispute).60
But the same objections could be raised in the case of treaties concluded
orally. In any event, it was not the task of the Vienna Convention to
specify what procedure has to be followed to prove the agreement of the
negotiating states on the means of expressing consent to be bound by the
respective treaty. Obviously, it is for the states concerned to provide the
relevant evidence and to resort, if necessary, to various existing methods
for the settlement of disputes.
Another question which requires some clarification is whether the pro-
visions of the Vienna Convention relating to the agreement of the negotiat-

53See for instance H. Blix, supra note 11, at 378; Harvard Draft Convention (com-
mentary to Art. 7), supra note 17, at 769.
54 [1962] 2 ILC Y.B. 161 (Arts. 11 and 12).
65This formulation was produced by the Drafting Committee of the ILC. [1966]
2 ILC Y.B. 115.
56 ASpanish proposal to use the formulation "it is clear from the circumstances th
the negotiating states . . ." (A/cONF.39/C.11/108) in the article concerning signature
was not adopted by the Drafting Committee of the Conference to which it had been
referred.
5r See the remarks made by the Spanish representative at the Vienna Conference.
A/coNr.39/11, at 92, para. 41. See also MAmwscA, supra note 7, at 165.
58 Id., 165.
5 See also the commentary of the ILC to Art. 10 of the 1966 draft, corresponding to
Art. 12 of the Vienna Convention. A/coNF.39/11/Add.2, at 16, para. (3).
60 See Frankowska, supra note 19, at 86.

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684 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 68

ing states on a method of expressing consent to be bou

was not embodied in its text reflect existing law or rep
of the law. As regards signature and ratification, taki
practice of states referred to above, it seems that the r
the Vienna Convention, in principle, codified existing law. But these
provisions are partly new law in so far as they require an agreement.
It seems, however, that by providing in Article 13 the same rule for the
exchange of instruments constituting a treaty, the Convention does not
follow diplomatic practice and that, in the case of accession, Article 15,
paragraph (b) constitutes an important deviation from the traditional rules
in this field.61 This progressive development of the law of treaties appears
as a logical consequence of the principle of the autonomy of the will of
the negotiating states and of the lack of formalism to be discerned in
Articles 12 to 15 of the Convention.

(2) Methods concerning Intention or Will of One or Several States

As mentioned above, there are treaty clauses according to which one

state may express its consent to be bound by signature but another only
by ratification. The same result can be achieved when, depending mainly
upon their constitutional requirements, one or several states express their
intention to use signature or ratification respectively, at variance with what
is or will be stipulated in the treaty. Such cases are dealt with in Article
12(c) and Article 14(c) and (d) of the Convention. Article 12, paragraph
l(c), provides that the consent of a state is expressed by signature of its
representative when "the intention of the state to give that effect to the
signature appears from the full powers or was expressed during the negoti-
ations." According to Article 14, paragraph l(c) and (d), the consent of
a state to be bound by a treaty is expressed by ratification "when the rep-
resentative of the State has signed the treaty subject to ratification" or "the
intention of the State to sign the treaty subject to ratification appears from
the full powers of its representative or was expressed during the negotia-
tion." These methods of expressing the intention of the negotiating states
on the means of becoming parties to a treaty may, of course, be also re-
sorted to when the treaty is silent and when their agreement has not been
"otherwise established."
(a) Full powers and signature "subject to ratification: The Conveniton
codified the practice followed since the 18th century of inserting in the
full powers a clause providing that the representative is entitled to negoti-
ate and sign the treaty "subject to ratification" or some other clauses indi-
cating that his mere signature will not bind the state.62 It has been

61 See MARESCA, supra note 7, at 171 and 199.

62 Some full powers contain a solemn promise to ratify the treaty. This formula,
because inherited from the diplomatic practice of the 18th century, does not mean that
the state which has issued the full powers undertakes an obligation to ratify the treaty,
but it indicates the intention of the state to be bound by it only if ratified. See
Harvard Draft Convention, supra note 17, at 761-63.

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1974] EXPRESSION OF CONSENT TO TREATY 685

pointed out 63 that the state whose representative had received full powers
which contain such clauses will be bound by a treaty only upon ratification,
even when the treaty provides that signature constitutes the means of ex-
pressing consent for the other negotiating state or states. Under such
circumstances, the provisions of the full powers replace for the state which
has issued them the relevant clause of the treaty.64
The full powers may be resorted to in order to ascertain the intention of
a state regarding the method of expressing consent to be bound by a treaty
only when they contain explicit and clear provisions in this respect. The
drafting of the full powers may not always offer reliable elements from
which to infer the intention of t-he state as to the means of expressing its
consent to be bound by the particular treaty.65
(b) The intention expressed during the negotiations: The rule that states
can determine the procedure they may resort to in order to be bound by a
treaty by expressing their intention during the negotiations seems to be a
rule de lege ferenda. To our knowledge, there is no instance in state
practice to substantiate this rule. Its adoption has therefore given rise to
several objections.
One objection has been that it was difficult to admit that an intention
which was not reflected in the provisions of the treaty could have any legal
effect on its formation.66 It seems clear, however, that the provisions of
subparagraphs 1(b) of Articles 12 and 14 also took into account expressions
of agreement or intention not reflected in the text of the treaty. On the
other hand, the intention of the state expressed during the negotiations
would not be an uncommunicated intention and could not have a subjective
character. According to the interpretation given to the provision at the
Vienna Conference, the intention has to be embodied in statements of the
representative, which are usually recorded.67
It has further been said that the provision regarding the intention ex-
pressed during negotiations should not be accepted because it might give
rise to varying interpretations and lead to controversies and disputes.68

63 See, for instance, Sir Gerald Fitzmaurice, [1956] 2 ILC Y.B. 113-14, 124 (Art. 29,
para. 3 and Art. 32, para. 4) Harvard Draft Convention, supra note 17, at 761; OPPEN-
HEIM, supra note 17, at 907.
64 BOLINTINEANU AND POPESCU, supra note 20, at 136-37.
65 An example of a clause from which it would be difficult to infer the intention of
a state regarding the means of expressing consent to be bound by a treaty is that used
in British full powers to the effect that what has been agreed by the plenipotentiary
will be submitted to ratification if necessary. E. SATOW, A GUIDE TO DIPLOMATIC
PRAcTIcE 86-89 (4th ed., Sir Neville Bland, 1957).
66ITis objection was formulated during the 1972 debate in the ILC on a correspond-
ing provision, according to which ratification is not needed if the intention to dispense
with it clearly appears from statements made during the negotiations. This provision
was, however, included in the 1962 draft (Art. 12). See [1962] 1 ILC Y.B. 207 and
2 id., 171. The objection was reiterated at the Vienna Conference. A/coNF.39/11,
at 87, para. 27.
67 see A/cONF.39/11, at 92, para. 50.
68 See [1962] 1 ILC Y.B. 206 and A/coNF.39/11, at 92, para. 50.

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686 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 68

But such an observation could be reduced ad absurdum, if we keep in mind

the varying interpretations and controversies on concrete provisions of
treaties.
It seems, therefore, that the overruling of these objections by the Con-
ference 69 was justifiable and in keeping with the objective of ensuring a
high degree of flexibility and informality in this field and embracing any
possible method of establishing the consent of the negotiating states.

69 See for the proposals to delete subparagraph 1(c) of Art. 12 or to modify it which
were not accepted, A/coNF.39/11/Add.2, at 126, paras. 119 and 125 and A/coNF.39/11,
at 92, para. 47 and 93, para. 62.

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