Foreign Relations of the United States, 1949, The United Nations; The Western Hemisphere, Volume II

501/9–1249

Informal Memorandum Prepared in the Department of State¹

[Washington, December 14, 1949.]

The Use in International Agreements of the Provision for “Acceptance”

As pointed out by Mr. Clive Parry in his memorandum of August 5, 1949 to Professor Clyde Eagleton, fairly frequent use is being made in international agreements of the procedural formula which provides that States may become parties by

(1) signature without reservation as to acceptance; or

(2) signature subject to reservation as to acceptance, followed by acceptance; or

(3) acceptance.

As Mr. Parry intimates, the formula is designed to offer governments greater freedom in regard to the methods used to approve the agreement.² This will permit a government to use that method of acceptance which seems preferable in the circumstances, perhaps the one that is easiest or politically most feasible to achieve. Mr. Parry’s analysis of the formula, however, reflects at several points the widespread and generally erroneous notion that it is more difficult to secure consent of the Senate to ratification of an instrument as a treaty than it is to secure legislative approval or implementation of an agreement by both houses of Congress. If agreements are often sent to Congress for approval by both houses, it is not because that is considered easier to achieve than Senate consent to a treaty, but because for adequate reasons it may be desirable to give the House of Representatives an opportunity to consider the agreement. One factor, for example, is the fact that our international agreements increasingly involve expenditure of funds so that ultimately, at the appropriation stage, the House of Representatives must approve the project. There may also be reasons relating to the particular agreement or the state of the legislative calendar for seeking approval by both houses.

In his paragraph 4 Mr. Parry refers to “instances of failure on the part of the USA to take advantage” of the “acceptance” formula. Of course, if the “acceptance” formula is designed to give greater freedom in determining the form of legislative approval to be sought, it does not necessarily mean that when the time for action arrives the less formal procedure for acceptance will be chosen. Occasionally, too, the formula might be used even if the particular agreement, in the framework of the executive power and existing United States Law, needs no further legislation. In that case the purpose of the formula might be to withhold effectiveness as to the United States, until, for instance, there is satisfactory assurance concerning the effectiveness of the agreement in one or more other countries.

Until comparatively recent times—the past decade or so—instruments intended to have the formal character of treaties contained almost invariably the customary provisions, hallowed by long usage, for ratification or adherence—ratification by countries signatories to the treaty, followed by the exchange or deposit of instruments of ratification, and adherence by countries not signatories to the treaty, followed by the giving or deposit of notifications of adherence. The term “ratification” has had equal application as to both bilaterals and multilaterals. The term “adherence” has been applicable in the main to multilaterals. Through long-established usage, the terms “ratification” and “adherence” came to be recognized as terms of art so that they came to be associated inseparably with the idea of the most formal procedure applicable to treaties in their more formal sense. In short, these terms have become, generally speaking, quite inflexible in signifying formal treaty procedure. The term “accession” is also in some measure a term of art in treaty terminology. Its original signification seems to have been something less than “adherence” as applied to nonsignatories (for example, any party might give notice of accession on behalf of colonies, territories, etc.), but for a long while the terms, “accession” and “adherence” have often been used interchangeably. Apparently there is no fixed rule.

It seems always to have been recognized that there are certain types of intergovernmental agreements that have not required the formal treaty procedure in order to make this fully effective between the countries parties to them. It was possible for the governments concerned to enter into such arrangements and to make them effective either upon signature or upon the occurrence of some specified contingency determinable on the executive level. This applied mainly in the field of bilateral arrangements, the most common procedure being the exchanging of diplomatic notes, although the signing of a single instrument by the respective representatives of the two governments was a more efficient and satisfactory procedure in some cases.

During the past fifty years, keeping pace with the rapid advances in international intercourse and the increasing complexities of foreign relations, international agreements have been negotiated in increasingly greater numbers and covering wider and wider areas of the world, as well as a greater variety of problems.

One of the most significant developments has been the increasing use of the multipartite instrument, whereby many countries join in formulating an arrangement. Out of sheer necessity, governments have found it necessary, so far as practicable and in harmony with their respective constitutional requirements, to develop flexible procedures, for the making of international agreements. There is no apparent intention to supplant the well-established treaty procedure with respect to matters which must be dealt with by treaty. In the case of a bilateral agreement there is no special problem; with only two countries concerned, it is fairly easy to spell out with precision the procedure for bringing the agreement into force. In the formulation of multilateral agreements, on the other hand, it has been found that, because of the wide variations in national procedures, it is not always easy to be precise in spelling out a formula that will, to a considerable degree, leave it to each of the governments concerned to follow whatever procdure may be required by its constitution and laws in order to become a party to the agreement.

At international conferences within the past decade serious thought has been given to the devising of a procedural formula that would take into account the changing tempo of international intercourse and the need for such flexibility as may be possible, while at the same time allowing each government to determine for itself the national action which it must take. It was only natural, therefore, that in devising such a formula there would be an effort to find and use terms which, although they may have been used on some occasions previously, had not acquired the dignity of terms of art with more or less inflexible significance.

At the United Nations Monetary and Financial Conference, Bretton Woods, July 1944, there was devised and included in the Articles of Agreement of the International Monetary Fund. (Article XX, Section 2) and the Articles of Agreement of the International Bank for Reconstruction and Development (Article II, Section 2) the following formula:

• “(a) Each government on whose behalf this Agreement is signed shall deposit with the Government of the United States of America an instrument setting forth that it has accepted this Agreement in accordance with its law and has taken all steps necessary to enable it to carry out all of its obligations under this Agreement.
• “(b) Each government shall become a member of the Fund [Bank] as from the date of the deposit on its behalf of the instrument referred to in (a) above, except that no government shall become a member before this Agreement enters into force under Section 1 of this Article.”

Under other provisions in the Fund and Bank agreements it was necessary for the agreements to enter into force by a specified date by final action taken by countries representing specified percentages of quotas or minimum contributions. It was highly desirable, therefore, to have the procedural provisions fairly flexible to assure that as many of the countries as could do so, in accordance with the requirements of their constitutions and laws, could take the necessary final action before the date specified. Formal instruments of ratification of the kind that would normally be executed in the case of a treaty, in the strict sense, were deposited by certain countries. In most instances, however, it was possible for governments to deposit instruments differing in form from the usual instrument of ratification but setting forth precisely, as required by the Bank and Fund Agreement, that “it has accepted this Agreement in accordance with its law and has taken all steps necessary to enable it to carry out all of its obligations under this Agreement”. In the case of the United States, it was possible to obtain from the Congress the requisite legislative authorization, including money appropriations necessary for fulfilling the obligations of membership, then to execute a simple instrument of acceptance, which was signed by the President. In other words, it was possible, upon the basis of United States law, to make the Bank and Fund Agreements effective for the United States without the need for transmitting the Agreements to the Senate with a view to ratification as treaties in the constitutional sense.

The flexibility of the “acceptance” procedure worked well in the cases of the Bank and Fund Agreements. Since that time the formula has been expanded along the lines indicated in the opening paragraph of this memorandum.

It is believed that the first use of this three-way provision, with some variations, was in the Protocol dated at Rome, March 30, 1946, for the termination of the 1905 convention for the creation of an International Institute of Agriculture and the transfer of the Institute’s functions and assets to the Food and Agriculture Organization of the United Nations. Paragraph 2 of Article VI of that Protocol provides:

“2. This Protocol shall come into force upon its acceptance in respect to at least thirty-five Governments Members of the Institute. Such acceptance shall be effected by:

(a) signature without reservation in regard to ratification, or

(b) deposit of an instrument of ratification in the archives of the Organization by Governments on behalf of which this Protocol is signed with a reservation in regard to ratification, or

(c) notice of accession in accordance with Article V.”

The signature to that Protocol on behalf of the United States was affixed “Subject to ratification” because, since the 1905 convention to which it related was a formally ratified treaty, it was considered necessary to follow the same procedure with respect to the Protocol. Accordingly, it was sent to the Senate and, with its advice and consent, was ratified. Because of the flexibility of the formula, however, it was possible for certain other governments to follow a less formal procedure and the Protocol actually entered into force, by virtue of the deposit of the thirty-fifth acceptance, before the deposit of the United States instrument of ratification.

The simplified formula now being used with some frequency is not essentially different in its purpose from that set forth in the 1946 Rome Protocol. It makes it possible for any signatory government, which does not require further constitutional or legislative authorization to bring the agreement into force, to become a party upon signature, subject to such other provisions as the agreement may have regarding other contingencies (such as the requisite number of countries) which must occur to make the agreement definitive and effective. On the other hand, the formula makes it possible for a signatory government which considers it necessary either to follow formal treaty procedure toward ratification or to take action for obtaining legislative approval or implementation, to reserve its position in this respect and to take whatever steps may be essential in accordance with its own national processes. The third item in the formula (“acceptance”) takes care of the situation with respect to a nonsignatory government, which also is left free to take nationally any steps deemed by it to be essential as a basis for becoming a party.

It is possible, of course, for a particular agreement to specify without qualification that it enters into force on the date of signature. In that event, each government must decide for itself whether it can constitutionally or legally bind itself as a party to the agreement by signature only or whether further national action must be taken. If further national action is necessary, then the government should make a reservation to that effect at the time of signature. In the cases of certain agreements, such as the sugar protocols, the signature on behalf of the United States has been affixed with a reservation “Subject to ratification” or “Subject to approval”. In any case where the reservation refers specifically to ratification, it is the invariable practice to send the agreement to the Senate as a treaty in the constitutional sense. If the reservation is “Subject to approval” or “Subject to acceptance”, the agreement may still be sent to the Senate with a view to ratification, depending on the character of the agreement; for example, an agreement which amended or modified a treaty to which the United States is a party would be sent to the Senate with a view to ratification in the same way as the original treaty itself. On the other hand, a reservation “Subject to approval” or “Subject to acceptance” avoids the necessity for the negotiators to decide what national procedure shall be followed; this is sometimes a matter that requires careful consideration after the close of a conference at which an agreement has been formulated.

In the case of an agreement which provides that it shall be open for signature for a specified period only, signature by any government subject to a reservation as to ratification or approval would not seem to affect the status of that government as a “signatory”; the reservation would not of itself put that government in the status of a non-signatory unless the agreement itself so stated.

As to the national action which must be taken in the event of a reservation for that purpose, it may be pointed out that so far as the United States is concerned, and no doubt so far as most other countries are concerned, this depends primarily on the character of the agreement, involving such factors as these: (1) whether it affects substantively the provisions of an existing treaty; (2) whether the substantive provisions of the agreement are already consistent with or within the framework of existing national law; (3) whether, if the argeement’s provisions do not already have an adequate basis in national law, it would be sufficient and practicable to obtain legislative action to lay such a basis in national law, than to take the necessary international action in accordance with such law; or (4) whether the terms of the agreement would, in and of themselves, establish fundamental law of a kind which, in the light of established constitutional concepts, makes it necessary to follow the customary treaty procedures. It probably would be unwise to attempt to lay down an inflexible rule-of-thumb applicable in all circumstances.

In any event, the national action which a particular government considers necessary in order to reach the point where it may take the requisite international action to become a full-fledged party to an agreement is not the concern of the other governments eligible to become parties to the agreement. So long as the terms of the agreement with respect to the method by which governments may become parties thereto are couched in sufficiently precise language, the way should be left open as far as practicable for each of the governments to handle its national procedure as it sees fit. That would seem to be the primary, if not the whole, object of the flexible formula which has lately gained popularity among negotiators; that is, the formula which provides for governments becoming parties to an agreement either (1) by unqualified signature, (2) by signature subject to reservation as to acceptance, followed by acceptance, or (3) acceptance in the case of a nonsignatory.

1. This memorandum was sent to Clyde Eagleton, consultant to the International Law Commission of the United Nations, by Durward V. Sandifer, Deputy Assistant Secretary of State for United Nations Affairs, under cover of a letter of December 14, 1949, not printed. This was done in response to a letter of September 12, 1949, from Professor Eagleton (not printed, 501/9–1249), in which he transmitted to Mr. Sandifer a memorandum by Clive Parry of the United Nations Secretariat (Parry to Eagleton, August 5, 1949, 501/9–1249). The Secretariat memorandum solicited an authoritative opinion, especially as regarded U.S. usage, concerning “a formula” which had “appeared in recent years” for the conclusion of multipartite agreements, whereby States might become parties to such instruments “by less formal processes” than the ratification procedure, such as an “acceptance” clause. Professor Eagleton wrote, “This, as you know, is for a Secretariat document raising questions for consideration by the International Law Commission (Brierly, Rapporteur) [James L. Brierly, United Kingdom Member for the Commission] on the Law of Treaties, which is one of the three subjects the ILC is first to work upon.”

   The General Assembly established the International Law Commission on November 21, 1947, and elected the Commission’s members on November 3, 1948; the first session of the Commission was held at Lake Success, New York, from April 12 to June 9, 1949; the other two topics listed for consideration by the ILC besides the Law of Treaties were Arbitral Procedure and the Regime of the High Seas; by General Assembly resolution on December 6, 1949, there had just been annexed to the latter item the subject of the Regime of Territorial Waters.

2. Parry wrote: “An obvious, though not necessarily completely correct, explanation for the adoption of this formula, in preference to a ratification clause, is the difficulty encountered in certain States, notably in the United States, of securing constitutional consent to ratification, as opposed to whatever may be necessary for the conclusion of less formal instruments, such as executive agreements, by less formal processes, such as ‘acceptance’.”