Modern Treaty Law and Practice

Adoption

Once negotiations are complete, it is necessary for the states that took part in drawing up the treaty to adopt the text. This is the first decisive stage in the conclusion of a treaty. Then, the text has to be authenticated. Thereafter, states can express their consent to be bound by the treaty (see Chapter 7).

The term adoption is not defined in the Convention, but is the formal act by which the form and content of the treaty are settled; and a state that takes part in the drawing up and adoption of the text is known as a ‘negotiating state’ (Article 2(1)(e)). Unless the circumstances suggest otherwise, the act of adoption does not amount to authentication of, or consent to be bound by, the treaty or mean that the treaty has entered into force. However, as will be explained, in the case of bilateral treaties these various stages are sometimes run together.

The rules on adoption in Article 9 embody the classic principle that, unless otherwise agreed, adoption needs the consent of all the states that participated in drawing up the text. Until recent times, this was the norm. The article, however, recognises that, since the Second World War, in drawing up treaties in large international conferences or within international organisations, the practice had been for adoption by the affirmative vote of a specified majority of the states. The pre-war unanimity rule is now restricted to the adoption of bilateral treaties or treaties drawn up by only a few states (so-called plurilateral treaties). However, consensus is now frequently sought for multilateral treaties even though it is not always attainable.