Treaty

V

Conclusion and Ratification

International law prescribes neither a fixed form for a treaty nor any fixed procedure for its conclusion. It may be concluded by an exchange of diplomatic notes incorporating an agreed-upon text signed by authorized officials or by the signing of one or more copies of the text by officials authorized to express the consent of their respective governments to be bound by the treaty. Many important treaties require ratification by each of the contracting parties. In such cases the negotiators, after reaching agreement on the final text, sign the document and then submit the proposed treaty for ratification to the constitutionally authorized authority, usually the head of state or head of the government.

VI

Termination

Treaties may be terminated in various ways. The treaty itself may provide for its termination at a specified time or it may allow one party to give notice of termination, effective either at the time of receipt or following the expiration of a specified period. A treaty may be terminated by one signatory's repudiation of its obligations; such a unilateral termination, however, may provoke retaliatory measures. A treaty may also be terminated by reliance on the principle rebus sic stantibus (“things remaining that way”), that is, when the state of affairs assumed by the signatory parties (when they signed the treaty, and therefore the real basis of the treaty), no longer exists, and a substantial change in conditions has taken place.

VII

The Vienna Convention

Rules of international law governing the conclusion, validity, effects, interpretation, modification, suspension, and termination of treaties were codified in the Vienna Convention on the Law of Treaties, adopted in 1969 at a conference convened by a resolution of the UN General Assembly. Representatives from 110 nations participated, including the United States, Great Britain, France, the Soviet Union, and most other United Nations members, as well as several nonmembers including Switzerland. The draft was prepared by the International Law Commission. The convention went into force in January 1980 after ratification by 35 nations. The U.S. signed but has not yet ratified the convention; however, the U.S. considers most of the Vienna Convention's rules as representing customary international law.

VIII

U.S. Treaties

Most modern constitutions vest the power to conclude treaties in the head of state, but require prior approval by the legislature. Under the U.S. Constitution the treaty-making power is vested in the president, with the advice and consent of the Senate. An important treaty usually is negotiated by the State Department and then submitted to the Senate for approval by a two-thirds vote of the members present. The Senate may make its approval dependent on the inclusion of amendments, reservations, or other declarations that require acceptance by the other parties involved. After final approval, the treaty goes to the president for ratification. The president may conclude agreements on his own authority if the conclusion of such agreements is authorized by a treaty already approved by the Senate, or by statute or joint resolution adopted by Congress within its constitutional powers, or by the constitutional powers of the president as chief executive and commander-in-chief. The scope of the president's power to conclude agreements without congressional consent has caused political controversy.

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