Contents - Previous - Next

This is the old United Nations University website. Visit the new site at

B. Steps in the treaty-making process

Although the international legislative process is by no means as standardized and centralized as the corresponding municipal ones, nevertheless, at least for purposes of analysis, it is possible to distinguish a number of successive steps.

1. Precursors to the treaty-making process

In certain instances an international organ, faced with a newly emerged or recognized problem as to which international action appears desirable and urgent and as to the general tenor of which a wide consensus appears to exist, will in the first instance adopt a declaration expressing that consensus, making certain recommendations (that in the parlance of international lawyers may be considered as "soft," or non-binding, law) and perhaps taking the initial steps (described below) towards the formulation of a law-making treaty.3

Though in some instances the adoption of such a decision occurs as soon as the organ is seized of the subject (i.e. at the same session), in others there is a lengthier process of consideration, including by subsidiary organs, which itself constitutes an abbreviated version of the treaty-making process.4 Indeed, in some instances the organ may in effect embark on the quest for a treaty, only to discover that that may be a difficult goal to attain and that at the current stage only the adoption of a non-binding resolution can be achieved.

2. Initiating the treaty-making process

Evidently an idea that eventually becomes an international convention originates somewhere in the brain of some person, though in retrospect it may be impossible to identify the author and indeed the creative process may from the very beginning have been a substantially collective one. However, for official purposes a proposal generally enters the consciousness of the international community when it is first advanced, usually in some IGO organ, by the representatives of one or more member states - or possibly by those of a nongovernmental organization (NGO).

Assuming that IGO organ to be a formally competent one (or, if not, that it forwards it, as part of a resolution or report, to one that is)5 to decide on whether or not to initiate a process for formulating a treaty in the proposed sense, that organ must then consider whether it should do so. In effect it must decide if the perceived need for and the anticipated value of the proposed instrument, and the likelihood of achieving it, justify the commitment of the resources expected to be required to formulate, adopt, and bring the instrument into force. For this, each of the following points must appropriately be taken into account:

(a) The need that the new instrument is to meet

(b) The existing legal regime, including the extent of its applicability to the perceived problem

(c) Any relevant legislative efforts in other fore

(d) The likelihood of success in developing an instrument, i.e. is it foreseeable that the required measure of agreement can be reached on the solution aimed for?

(e) The optimal form for the proposed instrument: treaty, solemn declaration, model law or rule, etc.

(f) The likelihood that the proposed instrument will be accepted by a sufficient number of significant states

(g) An anticipated time-schedule for the project

(h) The expected costs of formulating and adopting the proposed instrument, both to the IGO concerned and to the states participating in the process

(i) Particularly in formulating instruments in relation to technical or scientific problems (such as outer space or the environment) it may be necessary to carry out extensive scientific studies or research to determine the parameters of the problem and the lines of potential solutions6

To develop answers to these several questions, various devices may be used, ranging from secretariat research carried out in a library, to surveys of member states and of interested IGOs and NGOs, to meetings of experts. Sometimes the initiator of the proposal will have anticipated some or all of these issues and presents a report addressing them.

In any event, in due course a decision must be taken as to whether to proceed with a full-scale effort to formulate the instrument in question. In taking such a decision, the organ concerned should be conscious (but often apparently is not, at least sufficiently) that by the nature of institutional inertia a project of this type, once undertaken, is not likely to be abandoned, even if the prospects of success should fade, due to either a later, better understanding of the problem or actual changes in circumstances, and even if time and cost projections are wildly exceeded.

Other types of unsatisfactory outcomes must also be anticipated. One is the eventual production of an emasculated instrument, reflecting an inability to agree on actually useful rules, and that in particularly unfortunate circumstances actually constitutes a retreat from a higher level of international obligation previously existing or in the course of development. Alternatively, an instrument may be formulated and adopted that contains such a high level of obligations that many states, or at least certain crucial ones, refuse to participate. In either event, an ill-planned project may then constitute, at least for a time and in a particular forum, a bar to further productive work.

For these reasons, the question of whether any limits should be placed on the initiation of the multilateral treaty-making process was one of those most intensively explored by the General Assembly in its above-mentioned review exercise. In the end the Assembly refrained from establishing or even endorsing any explicit restraints, as allegedly incompatible with the sovereign right of any state to introduce proposals in any international organ in which it participates. Nevertheless, the General Assembly in effect appealed to states to show self-restraint in initiating proposals of this type, and by indicating the criteria by which IGO organs should study such proposals it at least implied that those that do not measure up should be rejected.7 In addition, the studies that were carried out as part of the review exercise brought to light several examples, particularly in IGOs that are systematically engaged in the legislative process, such as the International Labour Organisation (ILO) or the Council of Europe (C/E),8 of elaborate safeguards against formally starting up the treaty-making machinery without establishing in advance the prospect of success within a reasonable time.

In this connection it should be pointed out that one distinctive feature of the international legislative process, compared to municipal ones, is its highly decentralized and consequently at best poorly coordinated nature. Competence to deal with particular questions, such as environmental ones, may exist simultaneously in political organizations such as, on the worldwide level, the United Nations, and, on regional ones, the Organization of American States (OAS) or the Organization of African Unity (OAU), in certain technically oriented specialized agencies on the worldwide or the regional level, in specialized worldwide (e.g., UNEP) or regional organs, in regional organs of worldwide organizations (such as the Regional Commissions of the United Nations), or even in some treaty organizations or organs (such as the Meeting of Parties to the Vienna Ozone Convention). Which of these chooses to initiate a particular project may thus depend on chance, on the aggressiveness of an executive head, or on obscure political considerations that lead interested states to approach a particular institution. Though the UN General Assembly can of course issue directives to its own subsidiary organs and those of the Economic and Social Council (ECOSOC), in respect of specialized agencies it can only issue recommendations, which the latter are obliged to duly consider, while independent regional organizations are not even under such a gentle restraint. Though within the UN system there are coordinating organs, such as the Administrative Committee on Co-ordination (ACC), these operate primarily on the inter-secretariat level and therefore can influence the political organs only indirectly by facilitating the flow of information about what activities are underway or planned in the various organizations participating in the system.9 Ultimately, it may therefore be left to states, acting through their representatives in the various IGOs, to prevent or discourage overlaps and duplications, and selectively to eliminate lacuna.

3. Formulating multilateral treaties

Once a competent IGO organ decides formally to initiate the process of formulating a multilateral law-making treaty - or, for that matter, some other type of norm-establishing instrument - the second major stage in the international legislative process commences. This stage, in turn, consists of a number of steps, which, however, do not necessarily follow each other in a neat sequence but may overlap, iterate, in part be omitted, and in any event be structured in many different ways. All that is possible is to give a general description of the purpose and preferred means of executing each of these steps, on the understanding that the actual process may differ in respect of any given exercise, driven either ad hoc by the internal dynamics of the particular process or by certain more or less rigid schedules that may be characteristic of a particular organ (such as the International Law Commission, the ILC) or organization (such as ILO).

(a) Preliminary studies

Depending on what studies were carried out before the project was first proposed or in any event as part of the decision to initiate it, it may or may not be necessary to carry out further investigations before beginning to formulate the instrument. Such studies may deal, especially in respect of proposed environmental instruments, with scientific or technical matters, or with the current state of national and international activities and laws in the area.

As to how any necessary studies are carried out, this depends in part on their nature and in part on the usages of the IGO concerned. Often this task is assigned to the organization's secretariat, which can either perform it with its own resources, with specially engaged staff (especially if the exercise is a large-scale one - such as the Third UN Conference on the Law of the Sea, UNCLOS III), or with consultants. Another favoured approach is to convene expert groups, the members of which are either appointed by the executive head of the lGO (who is likely to do so on the basis of governmental recommendations and will in any event take into account various political balances) or by particular states interested in and able to participate in the project. Finally, the task may be carried out by a particular subsidiary organ of the sponsoring IGO, especially if such organ has itself an expert character (such as ILC).

(b) Preparing an initial draft

Perhaps no other step can be carried out in so many different ways as the preparation of the initial draft of a proposed norm-creating instrument. Sometimes a draft is submitted by the initiating state as part of its first proposal of the project - though, unless such submission is preceded by careful albeit informal consultations, it is likely to create suspicions and even a backlash. Sometimes the preparation of such a draft is assigned to the organ charged with preparing the above-mentioned initial studies and constitutes part of its report. Sometimes a draft is prepared entirely outside the sponsoring IGO, for example by an interested NGO. Lastly, the draft may be prepared in the negotiating forum (see next subheading) by a specially assigned rapporteur, a working group, or the secretariat, or simply evolve gradually out of the consideration of the subject.

Rather than starting with a complete draft text, with each of at least the substantive provisions spelled out completely, even if only tentatively, it is sometimes found preferable to start with only "heads of agreement," i.e. with just indications of the principal issues and how it is proposed to resolve them. In any event, the so-called "formal" or "final clauses" are often omitted entirely at this stage, unless some aspect of them (e.g., the number or type of parties; the arrangements for entry into force) impinge directly on the substance.

(c) Negotiation

The most difficult and generally the longest substage in formulating a new instrument is that required to negotiate its terms and text. It is this part of the process that is most clearly political, in that it involves the mediation of the various interests concerned: those that favour a strong and those that favour a weak instrument; those that desire a wide and those that prefer a narrow one: those that prefer different approaches based on differing scientific perceptions or legal habits; and especially those that may wish to obtain resources from the proposed new regime and those that might have to contribute resources in order to make such a regime feasible and acceptable.

The need for such negotiations naturally informs the entire legislative process - indeed, it is one of the reasons why that term is appropriate, for the negotiations required to formulate international laws may differ in scope but not in any other essential respect from those required for national or even local laws. Often negotiation starts before the treaty-formulating process has been formally initiated, in that the initiator may consult with leading states before ever introducing a proposal. The considerations involved in whether to initiate the process may also already involve advance decisions as to substance and form, which may be reflected in the terms of the IGO resolution approving the start of the process10 and also in the choice of or in the composition of any ad hoc organs (whether expert or representative) mandated to carry out or to assist in the formulating process. Though in principle the negotiations culminate in the decision on the adoption of the proposed instrument, in practice they may continue (as they have in respect of UNCLOS and especially the protection of the ozone layer11) even into the post-adoption period.

Naturally, the preferred organ for carrying out negotiations is a representative one, that is an organ consisting of the instructed representatives of states. If the sponsoring IGO is a worldwide or large regional one, then most often the designated organ is a restricted one, that is not a plenary one in which all IGO members are represented. A standing restricted organ (such as the 58-member UNEP Council or the governing organ of a specialized agency) always has a balanced composition considered appropriate for the general business of the IGO12 if the task is assigned to an ad hoc organ, then the agreement about its composition may constitute, as pointed out above, one of the initial manoeuvres in the negotiating process.13

However, it should be understood that even if certain steps in formulating an instrument are assigned to an expert organ, the latter is likely to function, in effect, as a negotiating forum. This is so because practically always such a body is established with a politically/ geographically balanced composition, and because many of the experts, whether nominally appointed ad personam or directly by governments, will in effect speak for, and only after consultations with, their national authorities; thus it is most unlikely that even an expert committee report will be entirely apolitical.

Although the negotiations are normally carried out by persons formally designated as state representatives, such as the members of IGO organs, it has become more and more customary to permit a certain participation to the representatives of non-official organizations, in particular of NGOs.14 Although such representatives cannot participate in any formal decision-making, whether by voting or in formulating consensi, they can often attend many of the meetings of representative and even some expert organs, they can sometimes address these organs orally, and often may submit written observations and sometimes even proposals. It is this device that increasingly permits the interested public, i.e. that which supports the NGOs that have standing to intervene, to participate in the international legislative process, in somewhat the same way as the public can participate in the work of certain national legislative organs. This is a most significant and relatively recent development, which is particularly important in the environmental field, where a number of well-financed and knowledgeable NGOs (including, of course, those established by interested business and industrial councils) operate and consider their participation in international norm-making to be a major aspect of their work.

(d) Consultations with governments

The international legislative process is, in spite of the increasingly frequent but still peripheral involvement of ad personam experts and of NGOs, primarily a dialogue among governments, carried out by their designated representatives for the most part in IGO organs.

Thus, in a sense, governments, at least the principal ones, are technically always up to date with the state of progress of any given legislative project

Nevertheless, especially since the bulk of this work is normally carried out in low-profile IGO organs with restricted membership, it is useful for many governments, and especially for the majority not represented on such organs, to receive periodic progress reports and in particular to be given an opportunity to make a direct input. This may be accomplished in several ways, but two are the most usual.

Organs with restricted membership, whether or not these are constitutional principal organs (i e. established directly by the treaty creating the IGO) or subsidiary ones, normally report periodically to a plenary organ, either on their work in general or by request on particular projects. In reporting on a legislative project, they may, depending on the custom of the organization, report in greater or lesser detail, ranging from a mere statement that work is continuing, to transmission of the texts of the latest draft, perhaps indicating areas of disagreement (often by the use of square brackets to designate disputed or alternative texts), or even the submission of summary or verbatim records of the relevant debates.15 These may then be discussed in the plenary organ, again at greater or lesser length as is the house custom, thus giving all the members of the organization a chance to indicate their views. The culmination of such a discussion may be a specific resolution asking that the legislative exercise proceed in a certain way or take into account certain points, or it may merely result in the relevant records of the plenary organ being transmitted to the junior organ for its information as reflecting the reaction of a larger circle of governments.

An alternative method is to inform the governments of member states directly about the progress of the legislative project, usually through communications addressed to them individually by the executive head of the IGO. Such communications may be required by the mandate of the formulating organ to be made at certain stages of the work (e.g., when a complete draft has been prepared)16 or may be required on an ad hoc basis by the plenary organ. In many instances the communication will request that reactions to the report, and sometimes answers to specific questions, be communicated within specified deadlines to the executive head for transmission to the organ concerned. This process, which is not likely to be undertaken routinely or frequently, gives an opportunity to all potential parties to the instrument under consideration, and especially to those not otherwise represented, to communicate their considered and detailed views as to all questions at issue.

(e) Consultations with the public

Although, as just pointed out, provision is frequently made in the international legislative process for formal consultations with governments, the same is rarely if ever true in respect of consultations with other entities, i.e. such as might be considered as representing the public in a different way from governments. Nevertheless, as multilateral treaty-making is generally carried out in the open, i.e. in meetings at least in principle open to the media and to interested NGOs, and at least the reports made from one organ to another or from one session of an organ to another are rarely subject to classification, the public usually has sufficient access so as to be able to exert such influence as it can - which usually means through the normal process in democratic societies by which popular views may be translated into legislative recommendations addressed to the executive, which in turn instructs the negotiators.

This process is, of course, at best unsystematic and often ineffective, in particular in respect of the views of those who do not happen to be citizens of an advanced democratic country. And even in those, certain categories of persons are traditionally politically powerless. Nor are the interests of future generations systematically protected, but only insofar as certain articulate and sensitive individuals or groups take account of them.

4. Adopting multilateral treaties

When it is judged by the competent organ (which may be the one charged with the formulation of the proposed treaty instrument or the plenary organ to which it reports) that the process of treaty formulation is complete or at least that it has progressed as far as it can at that stage, a decision as to its adoption must be taken. One possible decision of course is that the instrument under consideration should not be adopted, either at all or at the current time. If it seems otiose to return it to the formulating organ, the project may be put into indefinite abeyance or may be terminated entirely, for example if a change in circumstances, such as the formulation of a similar instrument in some other forum, makes it pointless to proceed. If, however, as is usually the case, the prospects of a carefully elaborated treaty do not appear to be entirely unpromising, a number of further decisions must be taken.

(a) Choice of forum

If it is decided to move to adoption, the forum in which this should occur must be designated. In some instances that decision is predetermined by the constitution or practices of the IGO, which may dictate a particular procedure.17 If the decision is open, the choice is normally between a standing organ and an ad hoc conference and will be based on several considerations, of which the following are the most important:

(a) The adopting organ should, as closely as possible, consist just of all the potential parties to the instrument - it being equally undesirable to have decisions as to the provisions of a treaty made by governments that may not or will not become parties as it is to exclude governments that are expected to participate. Thus, if there is no standing organ that fulfils that specification (e.g., in respect of a regional-seas agreement), then it is preferable to convene a specially composed conference.

(b) If all that remains to be done is to agree on the formality of the adoption, then this can usually be handled as part of the routine business of the competent standing organ; however, if extensive work still has to be done, it may be difficult to accomplish this within the crowded work programme of a standing organ, and for that reason a specially convened conference with no other business may be preferable.

(c) Depending on the nature and importance of the subject-matter, it may be thought preferable to arrange for adoption in a high profile senior IGO organ, such as the UN General Assembly; alternatively, in certain circumstances a special conference, even if convened for only a few days, may be considered as the better launching platform.18

(b) Tasks of the adopting forum

The adopting forum must, at the end of its work, be able to approve the texts of one or more instruments to be then submitted for formal action by states. In effect, therefore, it must complete whatever the formulating organ has not, since the work of the two organs is complementary - indeed, in certain situations one organ can perform both sets of tasks. These include:

(i) Completion of the substantive negotiations - usually only on a few especially difficult points that the primary negotiating forum was not able to resolve;19

(ii) Perfection of the text, which may require the addition, at this stage, of further languages, and the use of a Drafting Committee;

(iii) Formulation of the final clauses, which determine inter alia what international entities can become parties to the proposed instrument and on what terms - requiring political decisions for which a technical formulating organ may not have been competent;

(iv) Consideration of potential reservations, to be regulated either by a clause in the instrument itself or in a Final Act (see section 5(b) below);

(v) The making of a formal record to enable all potential parties to announce and have preserved their interpretations of the instrument and politically important statements and reservations.

The final product of the adopting forum will, particularly if it is an ad hoc conference, consist of one or more instruments meant for action by states (which instruments may include several coordinated treaties or a principal treaty and subordinated protocols), of resolutions presenting the collective views of the adopting forum, and of a Final Act that pulls all of these together and supplies or refers to a sufficient record to put the entire exercise into context and to permit differing views to be formally preserved, whether for political or for eventual legal reasons.20

(c) Decision-talking

All the fore so far referred to, but particularly the adopting one, must take a series of decisions in advancing the legislative process and especially in completing each stage thereof. In principle all these decisions can be taken by votes, but in practice increasingly more of them are taken without that formality - which again is a feature in which the international differs from the municipal legislative process.

The gradual decrease in the amount of voting in international organs is by no means a casual phenomenon. The one-nation-one-vote rule is increasingly recognized as being entirely unrealistic, by pretending to equate in this single respect the influence of individual states that differ drastically in all others: population, size, military or economic power, and contribution to the international community. However, since on the one hand there was no immediate possibility of changing this rule (which has been incorporated into most international constitutional instruments and is even considered by many as constituting one of the basic principles of international organization law) while on the other the more powerful states are steadily more reluctant to subject themselves to this artificial type of "majority rule," it has become necessary in order to ensure the continued participation of these states in important political processes to avoid voting as much as possible. This avoidance is most frequently expressed as an attempt to attain "consensus" or "general agreement."

In the first instance it would appear that this development represents a giant step backwards, in effect to the League of Nations, whose principal organs operated on the unanimity principle and thus were rarely able to take effective action. Indeed, the need to obtain consensus is likely on the one hand to be time-consuming, for progress can be held up almost indefinitely by any participant, and on the other to tend to reduce the content of substantive decisions to no more than just the low highest common denominator21 on which general agreement can be reached.

There are, however, some mitigating factors. One is that the extended consideration that the search for consensus almost always entails frequently results in an improvement in the text under consideration, as ingenuity is applied to ways of overcoming real and perceived obstacles to particular solutions. The other is that in most instances the consensus requirement is not an absolute one; while an absolute requirement in effect allows any participant, great or small, to prevent a decision for any reason, whether important or trivial or merely capricious, the usual consensus requirement merely constitutes a political overlay on the fundamental decision-taking rules of the IGO concerned. This means that if a representative is generally perceived as acting unreasonably in preventing the taking of decisions and cannot be moved by other appeals, then a resort to voting under the standard rules can always be threatened and, if necessary, carried out.22

If resort is had to voting, then it is in effect useful to have in mind a dual count: one relating to the formal majority requirements, which in most IGO organs and IGO-convened conferences requires that substantive matters be approved by two-thirds of those casting yes or no votes - i.e. absentees and abstainers are disregarded; the other relates to the importance, for the issue at hand, of the dissenters or non-participants. Thus, even if adoption in a formal sense can be attained, but it is clear that implementation will be fatally crippled by the non-participation of important states, it is often regarded as sensible to suspend the process until a more generally satisfactory solution can be secured through continued negotiations - or, and this is particularly important in respect of environmental matters, until international or domestic pressures bring dissenting governments around.23

5. Bringing multilateral treaties into force

(a) General considerations

As already mentioned, the international legislative process differs from the municipal one in one important feature: once a municipal law is adopted by the legislature and, if necessary, approved by the executive and perhaps even vetted by the judiciary, then it automatically binds all who are subject to the government in question; in contrast, the adoption of an international treaty by an IGO or a conference normally has no immediate legal effect at all. What is required is that individual states take action in respect of the instrument -normally by having an authorized representative sign it and then having that signature ratified by appropriate governmental action, which may involve parliamentary approval - and also that enough states do so, sometimes within a specified time limit. Even then the treaty only enters into force for the states that have ratified, and subsequently for those that do so later.

Consequently, some approved treaties do not enter into force for many years, and even some that do may only be in force for a few states, thus rendering them ineffective. Indeed, the international legal landscape is littered with treaties not yet in force but still capable of becoming so,24 others as to which all hope has been abandoned,25 while still others lead a shadow existence for want of sufficient participation.26

Evidently an important determinant of the fate of any treaty is its specific provision concerning its entry into force. There is no general rule about what such a provision should be, though naturally it must reflect the special nature of the instrument concerned. If the substantive provisions are such that they can sensibly and beneficially apply if only a few states are parties, then this can be provided.27 In other situations, however, there is no point in bringing a particular regime into force without the participation of all or substantially all the states concerned, or of particular states, and in that event it should be so provided.28 There are also situations in which a regime might function even with uneven participation, but certain states consider themselves disadvantaged if they are bound if their neighbours or rivals are not.29 Finally, some treaties foresee large potential expenditures, for example for establishing an IGO, and until sufficient contributors agree to participate others will hesitate to enter lest they be required to finance the entire operation.30

In principle it should not be difficult to specify entry-into-force conditions to take into account the appropriate factors of the type listed above. In practice, however, not only may there be disagreement about the weights to be assigned to each factor, but certain ways of expressing conditions may be politically precluded. For example, even if it is generally understood that a number of potentially large contributors must become parties to a proposed treaty in order to make it effective, it is likely to be unacceptable to specify these by name or even to provide that entry into force requires that contributors responsible for a certain percentage of the potential contributions of all eligible states join; to articulate such conditions would in effect give a veto or an unduly large "vote" to certain states as to entry into force, which may be unpalatable to the large majority of states dedicated to the principle of equal voting powers. The actual formulae adopted may, in trying to achieve indirectly what may not be said directly, therefore create controversy or be difficult to implement.31

(b) Reservations and options

Domestic legislation generally applies uniformly throughout the jurisdiction in question, for any exceptions or variations have to be expressed in the legislative instrument itself. International treaties are different, because usually states can accept them with reservations that modify the obligations as between the reserving state and the other parties, in part depending on how the latter react to the reservation. Furthermore, reservations may create problems as to whether the reserving state is a party at all, if there is a question about the compatibility of a reservation with express or implied conditions of the treaty. Some treaties also include optional provisions (typically as to disputes settlement) offering choices to potential parties. The result is that there may be considerable variations in the respective obligations of the parties, and a most complicated network of non-uniform bilateral relations among them.

To a considerable extent these problems of uncertainty and inhomogeneity may be resolved through the careful drafting of the reservation provisions of the proposed treaty, which may range from absolutely prohibiting any reservations to permitting almost all. But even more important than careful drafting is the policy decision meant to be implemented through these provisions. In general, liberal reservation and option provisions will on the one hand facilitate the participation of states that have different views as to some substantive provisions of the treaty; at the same time they may permit variations in obligations that are damaging and possibly even fatal to the instrument. A restrictive provision on the other hand will help preserve the unity of the instrument but may reduce, again perhaps fatally, the number of participants. The optimal balance must be determined carefully for each instrument, in a highly political decision, that in a nuanced way takes into account both the substantive contents of the treaty and the attitudes of the potential parties.

(c) The domestic aspects of ratification

Although ratification itself is an international act, what precedes it is carried out subject to domestic law and domestic political and administrative considerations. While the representatives who participated on the international plane may have been impatient to achieve the formulation and adoption of a treaty, the domestic actors who must approve ratification (who in any event include executive officials, but may also involve those of the legislature) may have at best different priorities and at worst different substantive objectives. In particular, in democratic states a whole series of steps may have to be taken to ensure that the proposed treaty is both politically and legally acceptable, each such step constituting an obstacle to speedy, or even to any action.

That this constitutes a real problem is confirmed by any examination of the spotty record of ratifications of practically all multilateral treaties, very few of which can boast even one-half of the potential participation. If one tries to establish the reasons for this widespread abstention,32 one will generally find few objective reasons but rather the sheer administrative difficulty that most states have in coping with the decisions concerning the desirability of ratifying, possibly with reservations, hundreds of treaties that may be of interest to them or to their neighbours - with perhaps two to three dozen increasingly complex multilateral instruments added each year. This is true of states ranging from the developing, with perhaps simple procedures but minimal trained manpower, to the developed, with potentially adequate staffs but extremely complex devices for securing and coordinating the reactions of all potentially interested domestic organs and entities.

It has indeed been recognized that the volume of international legislation has become such that states are practically unable to keep up with the backlog and with new instruments.33

However, except for defeatist suggestions that the flow should be reduced -which would mean that international norms that are needed and as to which agreement can be reached would have to be delayed - little effective action has been taken or planned to assist states in coping. Only a few treaty-sponsoring lGOs provide technical assistance in translating treaty instruments into local languages, in preparing presentations to parliamentary and other bodies, and in drafting domestic legislation and regulations to facilitate implementation of treaty obligations. Instead, IGOs sometimes unintentionally add to the burden of domestic administrations by well-meaning demands for periodic progress reports on treaty actions and implementation - which may be designed to stimulate ratification but may also reduce the time of those available to take such action.

There is no doubt that in many fields, and this is particularly true of the environment, numerous states need assistance to enable them to participate in the international legislative process so that their interests be adequately represented, but in particular at the stage where the new international norms must be accepted and then be implemented by domestic legal processes.

One persistent problem that should be easy to solve - particularly in the age of automated information systems - is the making of up-to-date information about the status of multilateral treaties {e.g., list of signatories, ratifications and other corresponding actions, withdrawals, reservations and objections thereto) readily and currently available. While good annual reports are available on those treaties of which the UN Secretary-General is the depositary,34 this is less true of treaties deposited with other entities, and in particular with states - such as all the regional-seas conventions and their protocols.35

6. The process of keeping international legislation up to date

In today's fast-moving world, international law, just as its domestic counterpart, must be kept up to date- and that sometimes at almost breakneck speed, as witness the developments concerning the ozone protection regime. The following are certain devices for accomplishing this in an effective manner.

(a) Simplified treaty-adopting and -amending practices

Traditionally, treaty law has been adjusted from time to time by additional treaty actions, either by amending existing instruments, by creating others to complement older texts, or by entirely superseding those that cannot easily be adapted to serve modern purposes. Generally, all these measures technically require full-scale treaty initiating, -formulating, -adopting, and entry-into-force procedures, with all the work and complications described above. Furthermore, because each such amendment or new treaty is subject to the same domestic treaty-acceptance procedures as the original instrument, and these procedures are accomplished with uneven speed and efficiency by different states, the pattern of ratifications becomes yet more complicated, creating an entirely uneven and ultimately unintelligible pattern of obligations among states that are parties to the same agreement but with different amendments, or that participate in different supplementary or superseding agreements.36 Instead of progressing towards a generally applicable international regime, the volume of international law may be growing at the cost of uniformity of coverage.

It is for this reason that a number of devices have been developed for simplifying the process of updating treaties, devices that concern one or both of the major phases of the legislative process described above. These devices include: the use of framework or umbrella conventions that merely state general obligations and establish the machinery for the further norm-formulating devices described under this heading;37 the supplementation of such conventions and by individual protocols establishing particular substantive obligations in implementation of the general objectives of the convention;38 the use of easily amendable technical annexes.39

In respect of all these devices, the international phase of the treaty-making process - initiation, formulation, and adoption - can be simplified and accelerated by assigning them to specially designated, dedicated expert or representative organs that either meet periodically or that are easy to convene as the need for further legislative action arises, and that are serviced by a specialized secretariat thoroughly familiar with the regime in question as well as with other related regimes that must be taken into account.40 Thus the usual start-up time for these phases of the international legislative process can be largely eliminated, as well as much routine reporting and the repeated transfer of proposed texts among expert, restricted representative and plenary organs. Consequently texts ready for adoption by the states participating in the regime can be prepared in substantially shorter times - subject, of course, to the need to negotiate generally acceptable terms.

Another important saving in time and effort can, however, be achieved in respect of the second, domestic, phase of the process. This may be done by providing in the basic convention that all or certain of these new instruments do not require ratification but enter into force in some simplified way:

(a) It may be provided that supplementary instruments require only signatures in order to bind states.41 While of course the constitutional requirements of certain of these parties will require that such signatures only be affixed after the completion of domestic procedures that correspond to those required for ratification, many other states will be able to take advantage of such provisions to achieve instant participation.

(b) It may be provided that once an amendment enters into force for a sufficient number of states, it automatically enters into force for all;42 this short-circuiting of the ratification process by those states that do not act early may, however, have to be purchased at the cost of providing in the basic treaty that a state on which an amendment is thus imposed can denounce the treaty in some simplified manner.43

(c) It may be provided that certain amendments, especially to technical annexes, do not require any signatures and ratifications at all, but automatically enter into force for all parties to the basic treaty unless a sufficient number of them object within a stated time limit from the adoption of the amendment, or that such amendment enters into force for all treaty parties except those that object within a specified time period.44

Evidently, all such devices for somehow taking out of the hand of states the need for each of them to act positively on any treaty instrument before it enters into force for it will be accepted only most reluctantly by many of them and generally only if restricted to basically subordinated and technical matters; as already pointed out, it is usually necessary to preserve some method for the state to opt out simply, either from the new legislative feature or, perhaps, from the entire regime.45 Although in a sense these are instances of an IGO organ "legislating" directly for states, the legal obligation of each state ultimately derives from its consent to the underlying treaty in which the particular empowerment of the IGO is set out, and consequently one might refer to a "derivative treaty obligation."

(b) The establishment of new intergovernmental organizations and organs

It has already been pointed out that the international legislative process is one that takes place largely, indeed more and more almost exclusively, under the auspices of competent IGOs. It is also true that more and more, the new international agreements that are formulated and adopted either provide new tasks for existing organizations (usually the one sponsoring the agreement) or they provide for the creation of new organizations through which the states' parties can collectively carry out some of the objectives of the new instrument or be assisted in doing so individually, but most particularly to help develop the new law even further.

Under the previous heading various devices were discussed for accelerating the process of formulating and adopting supplementary or amending treaty provisions in respect of a basic treaty, which may indeed be merely a framework convention. Since these devices for the most part function optimally if implemented by specialized and dedicated expert, representative and secretariat organs, this can best be accomplished by creating a special international organization for that purpose - but naturally only if such a step can also be justified by the other tasks to be assigned to the new IGO.

In the event that there is no call for creating a full-blown new IGO, another device is merely to establish the necessary expert and representative organs, leaving these to be serviced by the secretariat of some existing, willing, and competent IGO - which will usually be the one under whose auspices the treaty in question was formulated.46

Contents - Previous - Next