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Section 111. THE CONCLUSION OF INTERNATIONAL AGREEMENTS
8-6. Formal Requirements. a. Traditional methods. The treaty, working papers and other guides to interpretation
traditional procedure for the conclusion of an international may be consulted. 43
agreement was for the parties to record their common in- 8-7. Authority to Negotiate and Sign. a. Historical. At a
tention, arrived at after negotiation through diplomatic or time when travel and communications were slower and
other channels or at a conference of interested states, in a less dependable than they are today, states often found it
single formal instrument. This is still the normal convenient to furnish their plenipotentiaries with docu-
procedure for those agreements, especially multilateral ar- ments known as "full powers" for the purpose of ac-
rangements, that regulate matters of political or economic crediting them as competent to negotiate and express the
importance. One of the conspicuous modern develop- state's final consent to be bound by a treaty. As years
ments in treaty-making procedure, however, has been the passed and communications improved, such an instru-
rapid increase in the number and frequency of agreements ment came to signify only authority to negotiate and to
recorded in simplified form. Probably a majority of the authenticate the test of a treaty-not authority to bind the
agreements currently concluded are effected by the simple state. Today, there are important exceptions to the re-
exchange of diplomatic notes recording the terms of the quirement of full powers. Certain classes of international
proposed agreement and the consent of each state con- agreements, e.g., those effected by an informal exchange
cerned to be bound thereby. The chief advantages of of notes or in some other manner not requiring ratifica-
agreements effected by an exchange of notes are the speed tion, are usually concluded in practice without a demand
with which they may be concluded, as we1 as the for the production by each plenipotentiary of an instru-
possibility that under the law of some states, legislative ap- ment of full powers. 44
proval may be unnecesary. 40 A treaty relationship may b. Modem practice. Article 7 of the Vienna Conven-
also be created by indirect manifestations of consent, as tion governs the authority of a representative to adopt a
when states consent to the compulsory jurisdiction of the treaty on behalf of his state. A person is considered as rep-
International Court of Justice by means of unilateral resenting a state if:
declarations deposited with common reference to Article (a) he produces appropriate full powers; or (b) it appears from the prac-
36(2) of the Court's statute. The exchange or deposit of tice of the states concerned or from other circumstances that their inten-
notes verbales may also give rise to a treaty relationship. tion was to consider that person as representing the state for such pur-
b. Oral agreements. The validity of oral agreements is poses and to dispense with full powers."
widely admitted, whether they are later reduced to writing Certain officials need not produce evidence of their full
or not. Although Article 2 of the Convention requires that powers: Heads of State and of Government and Ministers
treaties be "in written form," Article 3 provides that the for Foreign Affairs for acts concluding a treaty; heads of
fact that a treaty is not in written form shall not affect the diplomatic missions for adopting the text of a treaty with
legal force of the agreement. Thus,under existing interna- the state to which they are accredited; and representatives
tional law, there is nothing to prevent an international accredited by states to an international conference or
agreement from beii made orally, although difticulties of organization for adopting the text of a treaty in that. con-
proof make it a less desirable method. In the Eastern ference or organization. 45
Greenland Case, the Norwegian Miter for Foreign 8-8. Consent to Be Bound by an International Agree-
Affairs orally informed a Danish minister that the Nor-
wegian government ". . . would not make any mculties ment. a. Generally. The text of a treaty is considered to be
adopted upon the consent of all states participating in its
in settlement of this question. . .." in reply to Sweden's drafting or, at an international conference, by the vote of
request for recognition of Denmark's claim of sovereignty two-thirds of the states present and voting, unless, by the
over Greenland. The Permanent Court of International same mqjority, they shall decide to apply a different
Justice found the oral statement to be unconditional and
rule. 46
definitive, therefore bindii upon Norway. 41
c. The generally favored view is that the written instru- Consent may be expressed by signature, exchange of in-
ment alone should be regarded as "the treaty." Thus, struments constituting a treaty, ratification, acceptance,
akin to the "parole evidence" rule in municipal law, approval or accession, or any other means if the treaty so
working papers and other evidence of the drafters' intent provides or it is agreed upon by the states involved. 47 In-
may not be used to modifl the clear words of the written itialing of a test is a sufficient signature if so agreed, and
document. 42 However, when there are ambiguities in a the signature ad referendum of a treaty by a representa-
tive, if confied by his state, constitutes a full sig-
40. Weinstein, Exchange of Noes, Brit. Y.B. In17 L. 205 (1952).
41. Eastern Greenland Case, supra note 35. 43. See H. Briggs, The Law of Nations 838 (1952).
42. See Haward Research, supra, note 19; Jurisdiction of the Com- 44. See Blk, Treaw-Making Power 49-50 (1960).
mission of the Oder 119291 P.C.I.J., ser. A, No. 23, at 42. But see H. 45. Vienna Convention, Art. 7(2).
Lauterpacht, The Development of Inter~tional Law by the ~nternatio~l 46. Id. at Art. 9.
Court 136-37 (1958). 47. Id. at Arts. 11-15.