3 Stages of International Treaty and Their Explanations

PERTANYAAN

What are the stages in the international treaty-making process? Please explain.

INTISARI JAWABAN

In short, there are 3 stages of international treaty-making until it becomes binding to a country. The three stages of the making of an international treaty are negotiation, signing, and ratification (if necessary).

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of 3 Tahapan Perjanjian Internasional dan Penjelasannya written by Nafiatul Munawaroh, S.H., M.H, and was published on Friday, 10 March 2023.

This article below is an update of the article entitled 3 Stages of International Treaty and Their Explanations as well as the Explanations(3 Tahapan Perjanjian Internasional Berikut Penjelasannya) which was first written by Saufa Ata Taqiyya, S.H. and was first published on Friday, 25 February 2022. 

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

International Treaty

International treaties are one of the main sources of international law, as described in Article 38 section (1) ICJ Statute. The definition of an international treaty if it refers to Article 2 section (1) letter a VCLT 1969 are:

“treaty” means 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.

If the above definitions are interpreted, in essence, treaties are international agreements which are made between countries in written form and are regulated by international law.

It should be noted that the VCLT 1969 is indeed one of the main instruments in international law governing international treaties. However, the applicability of the rules in the convention is limited to agreements between countries/states, and does not apply to agreements between countries and international organizations or agreements between international organizations.

Under international law, agreements between states and international organizations as well as agreements between international organizations are regulated under a separate convention, which is VCLT 1986.

Such separations are to be carried out on the basis of the consideration that the authority to draw up international treaties by international organizations is different from the authority to draw up international treaties by states, as well as the procedure to draw up international treaties which are undertaken by states differ from the procedures undertaken by international organizations.[1]

Due to these differences in procedures, in order to simplify our answers, we will focus on the process/stages of international treaty-making, which are drawn up by states only.

Stages of International Treaty

Furthermore, in answering your question, what are the stages in the process of making international treaties? In essence, there are three stages of international treaty-making. The 3 stages of international treaties are as follows.[2]

1. Negotiation/Negotiation of International Agreement

The first stage of an international treaty is negotiation, which is usually preceded by approaches by parties who intend to enter into international agreements, or in diplomatic language, this is known as lobbying. Lobbying can be conducted formally or informally. If in the lobbying there are clear points on an agreement of an issue, then an official negotiation will be held, which will be carried out by people who officially represent their country, accept the agreement that has been formulated, and ratify it.[3]

These persons who are authorized to represent their country are further regulated under Article 7 VCLT 1969, among them are the Heads of State (i.e. the President), the Head of Government (i.e. the Prime Minister), and the Ministers for Foreign Affairs.

In this stage of negotiation, there is also an adoption of the text process,[4] in which the negotiating parties formulate the text of the agreement which is then accepted by each of the negotiating parties. The adoption of the text of a treaty at an international conference takes place by the vote of 2/3 (two-thirds) of the States present and voting unless, by the same majority, they shall decide to apply a different rule.[5]

2. Signing (Signature) of International Treaty

After the adoption of the text during the negotiation stage, the next stage of the international treaty is the authentication of the text that is received by the negotiating parties.[6] The process or stage of authentication of the text of the international treaty is carried out in accordance with the agreement of the negotiating parties, or by affixing the signature of the state representative in the text of the international agreement.[7]

3. Ratification of International Treaty (if necessary)

According to Article 1 number 2 Law 24/2000, ratification is one of the legal acts to bind to an international treaty.

However, from the perspective of international treaty law, this ratification process is not always necessary in order for an international treaty to be binding to a country. This is due to the fact that the parties in the negotiation of international treaties may agree that the signing of the treaty alone is sufficient to signify the state's approval of the agreement.[8]

This ratification process is necessary if the text of the relevant international treaty states that the state's consent to be bound is indicated by way of ratification.[9]

In Indonesia, ratification as the authentication of an international agreement is conducted by law or by decree of the president.[10]

For the record, in addition to ratification, there are also various other ways to show the approval of a country to be bound to international treaties, such as accession, acceptance, and approval. The use of any of the abovementioned methods may be undertaken subject to the consent of the parties and to the provisions of international treaties.[11]

It can be concluded that in short, there are 3 stages in international treaties, namely their establishment through negotiation, signing, and ratification if necessary.

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Statute of the International Court of Justice;
2. Vienna Convention on the Law of Treaties 1969;
3. Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986;
4. Law Number 24 of 2000 on International Treaty.

Reference:

1. I Made Pasek Diantha (et.al). Buku Ajar Hukum Perjanjian Internasional. Bagian Hukum Internasional, Fakultas Hukum Universitas Udayana, 2016;
2. Sri Setianingsih Suwardi and Ida Kurnia. Hukum Perjanjian Internasional. Jakarta: Sinar Grafika, 2019.

---

[1] Sri S. Suwardi, Ida Kurnia, Hukum Perjanjian Internasional, Jakarta: Sinar Grafika, 2019, p. 4.

[2] Sri S. Suwardi, Ida Kurnia, Hukum Perjanjian Internasional, Jakarta: Sinar Grafika, 2019, p. 25; I Made Pasek Diantha (et.al), Buku Ajar Hukum Perjanjian Internasional, Bagian Hukum Internasional: Fakultas Hukum Universitas Udayana, 2016, p. 19.

[3] Sri S. Suwardi, Ida Kurnia, Hukum Perjanjian Internasional, Jakarta: Sinar Grafika, 2019, pp. 24–25.

[4] Sri S. Suwardi, Ida Kurnia, Hukum Perjanjian Internasional, Jakarta: Sinar Grafika, 2019, p. 29.

[5] Article 9 section (2) Vienna Convention on the Law of Treaties 1969 (“VCLT 1969”).

[6] Sri S. Suwardi, Ida Kurnia, Hukum Perjanjian Internasional, Jakarta: Sinar Grafika, 2019, p. 29.

[7] Article 10 VCLT 1969.

[8] Article 12 section (1) letter b VCLT 1969.

[9] Article 14 section (1) letter a VCLT 1969.

[10] Article 9 section (2) Law Number 24 of 2000 on International Treaty (“Law 24/2000”).

[11] Article 11 VCLT 1969.