Global AI Governance

First of all, the term “treaty” is used here in the sense defined by the 1969 Vienna Convention on the Law of Treaties (VCLT)¹:

2(1)

(a)

“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

This means that states can call their agreement “convention”, “charter”, “pact”, “protocol” or whatever they like — legally speaking there is no difference. As a matter of social convention, “constitution” (as in Constitution of the World Health Organization) and “charter” (as in Charter of the United Nations) are terms used for more foundational treaties, possibly the constituent instrument of an international organization, but there are counterexamples.

Other important terms describe the status of a participant with regard to a treaty:

2(1)

(e)

“negotiating State” means a State which took part in the drawing up and adoption of the text of the treaty;

(f)

“contracting State” means a State which has consented to be bound by the treaty, whether or not the treaty has entered into force;

(g)

“party” means a State which has consented to be bound by the treaty and for which the treaty is in force;

(h)

“third State” means a State not a party to the treaty;

These definitions apply mutatis mutandis to supranational entities lawfully participating in treaties, such as the European Union.

What these definitions show is that consent to be bound is a key notion in the Law of Treaties. VCLT article 11 sets out the means of expressing consent to be bound:

11

The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

Signature can be a means of expressing consent to be bound or it can be subject to ratification. The latter is commonly the case for large-scale multilateral treaties, including those discussed on this website, and hence “signatory” is not a synonym for “party”.

For treaty participation maps elsewhere on this website the term “contractant” is used to denote the intermediary status between signatory and party, i.e. in line with the definitions above, for “a State which has consented to be bound by the treaty, but for which the treaty has not yet entered into force”. There are two main scenarios: (i) the treaty has not yet reached the conditions for entry into force, or (ii) the treaty has specified a waiting period between expression of consent to be bound and entry into force.

Acceptance and approval are essentially the same as ratification, whereas accession is typically reserved to states not having signed the treaty. Whether and under which conditions accession is possible depends on the treaty at hand.

There are a few important events and stages in the “life” of a treaty that are frequently referred to on this website and elsewhere. Here a synopsis for multilateral treaties:

1. Negotiating and drafting phase (can take years)
2. Adoption of the final treaty text (also called conclusion)
3. Signature (often in a ceremony and serving as authentication of the text in its official languages)
4. Domestic ratification phase (can take years)
5. Deposit of the instrument of ratification/acceptance/approval with the designated treaty depositary
6. Once the conditions for entry into force are met (typically depending on the number of ratifications, but sometimes also on additional conditions), the depositary communicates the entry into force to all participants (typically after a waiting period of a few months to allow for preparations)
7. Entry into force – the treaty becomes binding for all its contracting states (but not for mere signatories and third states)
8. Accession by non-signatories (if provided for by treaty)
9. (Denunciation/withdrawal of parties — rare)
10. Treaty amendment in accordance with procedure specified by treaty (typically with adoption and ratification of the amending agreement, but simplified procedures are common as well)
11. (Possible termination of treaty — very rare)

Both the treaty itself and each party to it have an entry into force date for the treaty, and they only coincide if the participant has ratified the treaty by the date the entry into force conditions are met.

It is sometimes argued that treaties too rigid and slow to be useful for effective global governance. However, this view, if it is not implicitly arguing for a world government or for industry self-regulation, is often based on a misunderstanding of either the concept of a treaty or of the customary law of treaties (to a large extent reflected in the VCLT). The Law of Treaties imposes very few constraints, and there are many examples of flexible and agile treaties. The bottleneck is typically state consent, i.e. domestic politics, not international law.