Negotiation

To agree on the text to be discussed, an essential requirement is negotiation. Negotiating States are considered to be those that participate in the preparation and adoption of the text. In Spanish law, the initiation of the Treaty corresponds to the Government of the Nation (neither the Cortes Generales nor the Autonomous Communities can force a treaty, but they can incite the Government to do so).

To achieve these goals, the Minister of Foreign Affairs will ask the Council of Ministers to obtain plenipotence (absolute powers). Said Minister will deposit these powers in representatives of the State, who will represent the country in the negotiation.

The negotiation phase is the longest, it can even last for a period of 10 years to produce a definitive text that satisfies the parties. During this phase, the object, purpose and content of the treaty must be determined, as well as its wording, especially in Treaties between states that speak different languages.

Adoption of the text

After this phase we move on to adoption of the text. Adopting means allowing all participants to agree on its final wording. Previously, the favorable vote of all negotiating States was necessary. This remains in force in bilateral Treaties. With the proliferation of multilateral international treaties, the majority system was adopted (art. 9 of the 1969 Vienna Convention). This article establishes the general practice of favorable and unanimous voting but it is a residual practice. Its second point is mostly applied, which establishes that the adoption of the text will be done by a two-thirds majority of the States present and voting unless the States decide in order to be able to carry it out.

"Article 9. Adoption of the text. 1. The adoption of the text of a treaty shall be carried out by consent of all the States participating in its preparation, except as provided in paragraph 2.

2. The adoption of the text of a treaty at an international conference shall be effected by a two-thirds majority of the States present and voting, unless those States decide by an equal majority to apply a different rule."

Authentication

The next phase is authentication. This agreement is solemnly established as the authentic and unalterable definitive content of the treaty. According to article 10 of the 1969 Vienna Convention, authentication will be carried out in a manner provided for by the Convention or by another agreement of the States. In general, the signature ad referendum, the signature or the rubric is used. This does not require compliance with the Treaty. In countries like Spain, authentication is produced by the signature of the King.

"Article 10. Authentication of the text. The text of a treaty will be established as authentic and definitive.

a) through the procedure prescribed therein or agreed upon by the States that have participated in its preparation; either.

b) in the absence of such a procedure, by signature, the signature "ad referendum" or the signature affixed by the representatives of those States to the text of the treaty or to the final act of the conference in which the text appears.

Provision of consent

The final phase is providing consent. The participating States decide at this stage whether or not they want to be part of the Treaty. If they accept, they submit to the Treaty. Those who do not accept are not obliged.

In practice, this provision of consent is carried out either in a solemn manner or in a simplified manner.

This route is used in cases in which, due to the importance of the matter, solemnity is required in the form of consent. This solemnity is required through ratification.

The meaning of this term has been evolving. Traditionally it was an act of the sovereign confirming a Treaty entered into by an agent or representative of the sovereign.

Starting in the 20th century (modern constitutionalism), ratification was configured as a control mechanism of the legislative power over the executive power. In this way, the government cannot be bound by other States in relation to certain matters without the authorization of the legislature.

Agreements in simplified form -agreements or reversal notes- are international agreements whose conclusion process includes only a negotiation stage and the signature, commonly materializing in several instruments.

According to article 2.1.d) of the 1969 Vienna Convention "reservation means a unilateral declaration, regardless of its wording or designation, made by a State when signing, ratifying, accepting, approving or acceding to a Treaty "for the purpose of excluding or modifying the legal effects of certain provisions of the treaty as they apply to that State."

Reservations, therefore, only make sense with respect to multilateral Treaties. Well, as the International Law Commission states, «reservations to bilateral Treaties do not pose any problem, because they are equivalent to a new proposal that resumes negotiations between the two States [...] If they reach an agreement, accepting or rejecting the reservation, the treaty will be concluded; otherwise it will not be celebrated.

As an example: States A, B, C and D sign a Treaty. At the time of giving its consent, State D makes a reservation to an article of the treaty. The reaction of other States may be different:

A accepts the reservation, in which case the Treaty with the content according to the reservation will apply between A and D.

B makes a simple objection to the reservation, in which case the Treaty between B and D will apply, except for the reservation part.

C makes a qualified objection to the reservation; In this case the Treaty will not apply between C and D.

Representatives of States with full powers have the authority to conclude international treaties (art. 7 of the 1969 Vienna Convention). However, there are certain state officials who have the power to celebrate all these acts without it being necessary for them to have a specific State power since international law confers powers on them by virtue of their functions. These are the Head of State, the Head of Government and the Minister of Foreign Affairs. The Heads of Diplomatic Mission" (ambassadors) also have certain powers (negotiation and adoption), prior to a specific authoritative resolution, which in resolution practice is called extension of full powers for the signature.

International organizations also have the capacity to conclude international Treaties, they are governed by the rules of the 1986 Vienna Convention, but this capacity depends on what is established in their founding charters or statutes.

Therefore, a country that wants to export needs sufficient preparation and competence to make a treaty.

The figure of the deposit appeared with the multilateral Treaties, especially from the 19th century onwards. Prior to the 19th century, a time in which most Treaties were bilateral, a depositary was not necessary because, when a treaty was concluded between two States, they exchanged, and continue to do so, the appropriate instruments for its eventual subsequent ratification.

The government of the day, after legislative approval. In this way the validity of the application of the bilateral treaty begins.

Furthermore, to be a depositary you must have the approval of the states.

Prior to the century, international treaties were not required to be published or registered. This gave rise to the practice of "Secret Treaties" which turned out to be extremely pernicious for the rest of the countries since secret alliances were formed that, for example, were decisive for the outbreak of the First World War.

In order to ensure that situations like this were not repeated, it was wanted to establish, through the League of Nations system, a system of open diplomacy. In this sense, Article 18 of the League of Nations Covenant established that unregistered Treaties would not be obligatory.

Within the Vienna Convention (part IV) it talks about possible amendments and modifications to international treaties concluded between States. Amendment and modification are two different concepts. An amendment "Amendment (law)") in an international treaty refers to a type of alteration and modification in the provisions included in the treaty, these open to each of the participating parties to the treaties.[2]​.

Rodolfo Walss indicates that an amendment in an international treaty refers to a type of alteration and modification in the provisions included in the treaty, these are open to each of the participating parties to the treaties.[3]​.

According to article 39 of the Vienna Convention, the general rule for making amendments or modifications is established, which dictates that the amendment/modification can only be made with the consent of the parties.

However, this does not end up being the most important point to comply with for an amendment to be valid as such, but what is important is that the amendment originally proposed is accessible to each of the state parties.

Speaking specifically about amendments to treaties, any proposed amendment must be notified to all contracting States of the treaty, each of which has the right to participate in decisions on measures to be taken in relation to the proposed amendment, in the negotiation of the amendment and in the conclusion of any agreement for the purpose of amendment. Likewise, the Vienna convention establishes that any State that can be part of a treaty can also be part of the treaty in its amended form, although it is important to emphasize that the amendment is not mandatory for the States, only for those that are within the agreement; The Convention also establishes that the State that becomes a party to the amended treaty after its entry into force will be considered a party to it if it does not express a different intention regarding the amended part.

As a complement, the amendment in its origin has its effect intended for all participating parties, but will only apply to those parties that express their consent to it. States that express themselves to the contrary will be subject to the effects of the original version of the treaty.

It is important that the process to amend the treaty is correct for it to have effects, where it is the same for the creation of a treaty, that is, following the four points that are negotiation, adoption of the text, authentication of the text and manifestation of the text. By complying with these four steps, the amendment that alters the provisions of the treaty can be authentically celebrated.

Moving on to the issue of modifications to treaties, the Vienna Convention specifies that only two or more parties to a treaty may enter into the agreement of their choice where its object is to modify the treaty, it only works in their mutual relations, not for all parties to the treaty; The modification can only be made if the treaty allows it or if the modification is not prohibited by the treaty, with the condition that this modification does not affect the rights and compliance with obligations of the other parties to the treaty, and that the modification is not incompatible with the object of the treaty, that it is consistent with the object and purpose. Parties to the treaty that wish to modify it must notify all parties of their intention and the modification that will be made.

Speaking about the two specific points so that the modification can be made, in the point of prohibitions, it can be these two specific ones, it can be express or implicit. The prohibition to modify the treaty is considered implicit when it affects the rights and obligations of the participating parties or if the modification is incompatible with the objects and purposes that the treaty mentions.

Unlike the amendment, the modification of treaties does not have a specific process to follow given by the Vienna Convention, so this process will have to be established by the states participating in the modification or the treaty itself that is planned to be modified, so it ends up being the responsibility of the states to create this process to reach an agreement on the validity of the modification to the treaty.

Rodrigo and Casanova point out that the causes of nullity of international treaties, there are different assumptions, expressed in the Vienna Convention, by which an international treaty between different states can be left without legal effects. The invalidity of a treaty is due to causes that can be alleged by the party to a treaty whose consent is vitiated by any of said causes and can be remedied if, after becoming aware of the existence of the cause, said party has agreed that the treaty is valid or, by its behavior, tacitly recognizes its validity.[4]​.

Article 48 of the Convention indicates “error (law)” as a cause for nullity of a treaty; “A State may allege an error in a treaty as a vice of its consent to be bound by the treaty if the error relates to a fact or situation the existence of which that State took for granted at the time of the conclusion of the treaty and constitutes an essential basis of its consent to be bound by the treaty.” However, if the State contributes to the error with its conduct, it will not be considered an error. If the error consisted only of the drafting, it will not be considered an error and Article 79 of the same Convention on the correction of errors in texts or in certified copies of treaties will apply.

They also point out that Corruption of the representative happens when the representative of a State is directly or indirectly corrupted. The affected State may allege its corruption as a vice of its consent and therefore, it will be a cause for nullity of the treaty. Therefore, another cause of nullity consists of coercion on the representative of the State, caused if the representative is forced by threat to accept or make a resolution. There is also coercion on a State by threat or an obligation to use force as a cause of nullity.

One of the ways to end a treaty is to celebrate one after this one in an area of ​​the same subject matter. Article 58 of the Vienna Convention provides:

Termination of a treaty or suspension of its application implied as a consequence of the conclusion of a subsequent treaty.

Negotiation

To agree on the text to be discussed, an essential requirement is negotiation. Negotiating States are considered to be those that participate in the preparation and adoption of the text. In Spanish law, the initiation of the Treaty corresponds to the Government of the Nation (neither the Cortes Generales nor the Autonomous Communities can force a treaty, but they can incite the Government to do so).

To achieve these goals, the Minister of Foreign Affairs will ask the Council of Ministers to obtain plenipotence (absolute powers). Said Minister will deposit these powers in representatives of the State, who will represent the country in the negotiation.

The negotiation phase is the longest, it can even last for a period of 10 years to produce a definitive text that satisfies the parties. During this phase, the object, purpose and content of the treaty must be determined, as well as its wording, especially in Treaties between states that speak different languages.

Adoption of the text

After this phase we move on to adoption of the text. Adopting means allowing all participants to agree on its final wording. Previously, the favorable vote of all negotiating States was necessary. This remains in force in bilateral Treaties. With the proliferation of multilateral international treaties, the majority system was adopted (art. 9 of the 1969 Vienna Convention). This article establishes the general practice of favorable and unanimous voting but it is a residual practice. Its second point is mostly applied, which establishes that the adoption of the text will be done by a two-thirds majority of the States present and voting unless the States decide in order to be able to carry it out.

"Article 9. Adoption of the text. 1. The adoption of the text of a treaty shall be carried out by consent of all the States participating in its preparation, except as provided in paragraph 2.

2. The adoption of the text of a treaty at an international conference shall be effected by a two-thirds majority of the States present and voting, unless those States decide by an equal majority to apply a different rule."

Authentication

The next phase is authentication. This agreement is solemnly established as the authentic and unalterable definitive content of the treaty. According to article 10 of the 1969 Vienna Convention, authentication will be carried out in a manner provided for by the Convention or by another agreement of the States. In general, the signature ad referendum, the signature or the rubric is used. This does not require compliance with the Treaty. In countries like Spain, authentication is produced by the signature of the King.

"Article 10. Authentication of the text. The text of a treaty will be established as authentic and definitive.

a) through the procedure prescribed therein or agreed upon by the States that have participated in its preparation; either.

b) in the absence of such a procedure, by signature, the signature "ad referendum" or the signature affixed by the representatives of those States to the text of the treaty or to the final act of the conference in which the text appears.

Provision of consent

The final phase is providing consent. The participating States decide at this stage whether or not they want to be part of the Treaty. If they accept, they submit to the Treaty. Those who do not accept are not obliged.

In practice, this provision of consent is carried out either in a solemn manner or in a simplified manner.

This route is used in cases in which, due to the importance of the matter, solemnity is required in the form of consent. This solemnity is required through ratification.

The meaning of this term has been evolving. Traditionally it was an act of the sovereign confirming a Treaty entered into by an agent or representative of the sovereign.

Starting in the 20th century (modern constitutionalism), ratification was configured as a control mechanism of the legislative power over the executive power. In this way, the government cannot be bound by other States in relation to certain matters without the authorization of the legislature.

Agreements in simplified form -agreements or reversal notes- are international agreements whose conclusion process includes only a negotiation stage and the signature, commonly materializing in several instruments.

According to article 2.1.d) of the 1969 Vienna Convention "reservation means a unilateral declaration, regardless of its wording or designation, made by a State when signing, ratifying, accepting, approving or acceding to a Treaty "for the purpose of excluding or modifying the legal effects of certain provisions of the treaty as they apply to that State."

Reservations, therefore, only make sense with respect to multilateral Treaties. Well, as the International Law Commission states, «reservations to bilateral Treaties do not pose any problem, because they are equivalent to a new proposal that resumes negotiations between the two States [...] If they reach an agreement, accepting or rejecting the reservation, the treaty will be concluded; otherwise it will not be celebrated.

As an example: States A, B, C and D sign a Treaty. At the time of giving its consent, State D makes a reservation to an article of the treaty. The reaction of other States may be different:

A accepts the reservation, in which case the Treaty with the content according to the reservation will apply between A and D.

B makes a simple objection to the reservation, in which case the Treaty between B and D will apply, except for the reservation part.

C makes a qualified objection to the reservation; In this case the Treaty will not apply between C and D.

Representatives of States with full powers have the authority to conclude international treaties (art. 7 of the 1969 Vienna Convention). However, there are certain state officials who have the power to celebrate all these acts without it being necessary for them to have a specific State power since international law confers powers on them by virtue of their functions. These are the Head of State, the Head of Government and the Minister of Foreign Affairs. The Heads of Diplomatic Mission" (ambassadors) also have certain powers (negotiation and adoption), prior to a specific authoritative resolution, which in resolution practice is called extension of full powers for the signature.

International organizations also have the capacity to conclude international Treaties, they are governed by the rules of the 1986 Vienna Convention, but this capacity depends on what is established in their founding charters or statutes.

Therefore, a country that wants to export needs sufficient preparation and competence to make a treaty.

The figure of the deposit appeared with the multilateral Treaties, especially from the 19th century onwards. Prior to the 19th century, a time in which most Treaties were bilateral, a depositary was not necessary because, when a treaty was concluded between two States, they exchanged, and continue to do so, the appropriate instruments for its eventual subsequent ratification.

The government of the day, after legislative approval. In this way the validity of the application of the bilateral treaty begins.

Furthermore, to be a depositary you must have the approval of the states.

Prior to the century, international treaties were not required to be published or registered. This gave rise to the practice of "Secret Treaties" which turned out to be extremely pernicious for the rest of the countries since secret alliances were formed that, for example, were decisive for the outbreak of the First World War.

In order to ensure that situations like this were not repeated, it was wanted to establish, through the League of Nations system, a system of open diplomacy. In this sense, Article 18 of the League of Nations Covenant established that unregistered Treaties would not be obligatory.

Within the Vienna Convention (part IV) it talks about possible amendments and modifications to international treaties concluded between States. Amendment and modification are two different concepts. An amendment "Amendment (law)") in an international treaty refers to a type of alteration and modification in the provisions included in the treaty, these open to each of the participating parties to the treaties.[2]​.

Rodolfo Walss indicates that an amendment in an international treaty refers to a type of alteration and modification in the provisions included in the treaty, these are open to each of the participating parties to the treaties.[3]​.

According to article 39 of the Vienna Convention, the general rule for making amendments or modifications is established, which dictates that the amendment/modification can only be made with the consent of the parties.

However, this does not end up being the most important point to comply with for an amendment to be valid as such, but what is important is that the amendment originally proposed is accessible to each of the state parties.

Speaking specifically about amendments to treaties, any proposed amendment must be notified to all contracting States of the treaty, each of which has the right to participate in decisions on measures to be taken in relation to the proposed amendment, in the negotiation of the amendment and in the conclusion of any agreement for the purpose of amendment. Likewise, the Vienna convention establishes that any State that can be part of a treaty can also be part of the treaty in its amended form, although it is important to emphasize that the amendment is not mandatory for the States, only for those that are within the agreement; The Convention also establishes that the State that becomes a party to the amended treaty after its entry into force will be considered a party to it if it does not express a different intention regarding the amended part.

As a complement, the amendment in its origin has its effect intended for all participating parties, but will only apply to those parties that express their consent to it. States that express themselves to the contrary will be subject to the effects of the original version of the treaty.

It is important that the process to amend the treaty is correct for it to have effects, where it is the same for the creation of a treaty, that is, following the four points that are negotiation, adoption of the text, authentication of the text and manifestation of the text. By complying with these four steps, the amendment that alters the provisions of the treaty can be authentically celebrated.

Moving on to the issue of modifications to treaties, the Vienna Convention specifies that only two or more parties to a treaty may enter into the agreement of their choice where its object is to modify the treaty, it only works in their mutual relations, not for all parties to the treaty; The modification can only be made if the treaty allows it or if the modification is not prohibited by the treaty, with the condition that this modification does not affect the rights and compliance with obligations of the other parties to the treaty, and that the modification is not incompatible with the object of the treaty, that it is consistent with the object and purpose. Parties to the treaty that wish to modify it must notify all parties of their intention and the modification that will be made.

Speaking about the two specific points so that the modification can be made, in the point of prohibitions, it can be these two specific ones, it can be express or implicit. The prohibition to modify the treaty is considered implicit when it affects the rights and obligations of the participating parties or if the modification is incompatible with the objects and purposes that the treaty mentions.

Unlike the amendment, the modification of treaties does not have a specific process to follow given by the Vienna Convention, so this process will have to be established by the states participating in the modification or the treaty itself that is planned to be modified, so it ends up being the responsibility of the states to create this process to reach an agreement on the validity of the modification to the treaty.

Rodrigo and Casanova point out that the causes of nullity of international treaties, there are different assumptions, expressed in the Vienna Convention, by which an international treaty between different states can be left without legal effects. The invalidity of a treaty is due to causes that can be alleged by the party to a treaty whose consent is vitiated by any of said causes and can be remedied if, after becoming aware of the existence of the cause, said party has agreed that the treaty is valid or, by its behavior, tacitly recognizes its validity.[4]​.

Article 48 of the Convention indicates “error (law)” as a cause for nullity of a treaty; “A State may allege an error in a treaty as a vice of its consent to be bound by the treaty if the error relates to a fact or situation the existence of which that State took for granted at the time of the conclusion of the treaty and constitutes an essential basis of its consent to be bound by the treaty.” However, if the State contributes to the error with its conduct, it will not be considered an error. If the error consisted only of the drafting, it will not be considered an error and Article 79 of the same Convention on the correction of errors in texts or in certified copies of treaties will apply.

They also point out that Corruption of the representative happens when the representative of a State is directly or indirectly corrupted. The affected State may allege its corruption as a vice of its consent and therefore, it will be a cause for nullity of the treaty. Therefore, another cause of nullity consists of coercion on the representative of the State, caused if the representative is forced by threat to accept or make a resolution. There is also coercion on a State by threat or an obligation to use force as a cause of nullity.

One of the ways to end a treaty is to celebrate one after this one in an area of ​​the same subject matter. Article 58 of the Vienna Convention provides:

Termination of a treaty or suspension of its application implied as a consequence of the conclusion of a subsequent treaty.