Lecture 03 Law on Treaties

7/27/2019 Lecture 03 Law on Treaties

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The Law on

Treaties

Law 111 Public International Law

Atty. GILBERT R. HUFANAProfessor


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Parameters in the Formulation

of Foreign Policy

1. Article II, Section 2. The Philippine

renounces war as an instrument of

national policy2. Article II, Section 7. The State shall

pursue an independent foreign policy. In

its relations with other states3. President Chief Architect of Foreign

Policy and his secretary of foreign affairs


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Parameters in the Formulation

of Foreign Policy

Article VII, Section 21. No treaty or

international agreement shall be valid and

effective

The ruling of the Supreme Court in

Commissioner of Customs vs. Eastern Sea

Trading

Executive Order No. 459, series of 1997,

which sets the guidelines in the negotiation,

conclusion and ratification of international

agreements.


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What is a treaty?

an international agreement concluded

between States in written form and

governed by international law, whetherembodied in a single instrument or in two

or more related instruments and whatever

its particular designation Article 2(1), Vienna Convention on the Law of

Treaties (VCLT)


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Synonymous Terms

There are many other terms used for a

treaty or international agreement, some of

which are: act, protocol, agreement, compromis d'

arbitrage, concordat, convention, declaration,

exchange of notes, pact, statute, charter and

modus vivendi.


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Elements

1. International agreement an agreement

has to have an international character

2. Concluded between states a treaty isbetween states, governments or their

agencies or instrumentalities acting on

behalf of states

Concluded by head of states or

governments, their ministers or other state

agencies


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Elements

3. In written form

4. Governed by international law intent to

create obligations under international law5. Whether embodied in a single instrument

or in two or more related instruments


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2 Kinds of Treaties

traites-lois

law making treaties

t rai ts-contrats

contract treaties


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1969 Convention on the Law of

Treaties

Adopted by the Conference of the Law of

Treaties (Vienna Convention).

It was adopted on 22 May 1969 and opened for

signature on 23 May 1969.

The Convention entered into force on 27

January 1980.

ratified by 113 states as of January 2013 Some countries that have not ratified the

Convention recognize it as a restatement of

customary law and binding upon them as such.


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1969 Convention on the Law of

Treaties

The Convention codifies several bedrocks of

contemporary international law.

It defined a treaty as "an internationalagreement concluded between states in

written form and governed by international

law," as well as affirming that "every state

possesses the capacity to conclude treaties."

Most nations, whether they are party to it or

not, recognize it as the preeminent "Treaty of

Treaties"


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Party to a Treaty

a State which has consented to be bound by the

treaty and for which the treaty is in force

(Article 2 (1)(g), VCLT)

Rule: Only States may enter into treaties or

international agreements.Agreements between

State and individuals or entities other than States

DO NOT come within the category of treaties. Exceptions: States may enter into treaties or

international agreements with International

Organizations & Belligerent States


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4 Essential Validity

Capacity of parties

Competence of particular organs

concluding the treaty Reality of Consent

Legality of Object


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Capacity of Parties

Rule: Every state possesses the capacity

to conclude treaties Article 6, VCLT

President Chief Executive and head ofstate

has the power to conduct foreign relations

chief architect of foreign policy he has the power to enter and make treaties

sole spokesperson of the Government in

foreign relations


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Capacity of Parties

Exceptions:

When it limits itself; or

When it is limited by some other internationalarrangements respecting some matters.


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Competence of particular

organs concluding the treaty

Rule: The municipal law of the State

concerned shall determine what organ

may conclude a treaty. As a rule, it is theHead of State who possesses the treaty-

making power to be concurred in by the

legislative branch.


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Competence of particular

organs concluding the treaty

Exceptions:

When it is in estoppel

When it has performed acts validating orcuring the defects in competence.

When it has received benefits or has

exercised its rights under the subject treaty

without expressly reserving its non-liability orwithout interposing other valid reasons for

receiving or exercising it.


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Reality of Consent

Rule: The plenipotentiaries of States or

the State itself must possess the capacity

to consent which consent is given in amanner that is voluntary and free from

fear, force, coercion, intimidation, or

corruption.

Exceptions:

Ratification, Estoppel, Prescription


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Legality of Object

Rule: Immorality, illegality or impossibility

of purpose or obligations makes a treaty

null and void. e.g. a treaty by which aState agrees with another to appropriate a

portion of the high seas.


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Legality of Object

Exceptions:

a)If the immorality, illegality or impossibility

does not run counter to a universallyrecognized peremptory norm of international

lawbut only against a remote and minor

norm.

b)If it does not contravene or depart from anabsolute or imperative rule or prohibition of

international law. e.g.jus dispositivum.


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Binding Effects of a Treaty

As a rule, a treaty is binding only on the

contracting parties, including not only the

original signatories but also other states,

which, although they may not have

participated in the negotiation of the

agreement, have been allowed by its terms to

sign it later by a process known as accession. Non-parties are usually not bound under the

maxim ofpacta tert i is nec noceat nec

prosunt.


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Question

Question 1: May a third State who is

non-signatory to a treaty be bound by

that treaty? Question 2: If answer is in the

affirmative, in what specific instances?


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Answer

1. When a treaty is a mere formal

expression of customary international law

2. Under Article 2 of its charter, the UN shallensure that non-member States act in

accordance with the principles of the

Charter so far as may be necessary for

the maintenance of international peace

and security


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Answercontinuation

3. The treaty itself may expressly extend its

benefits to non-signatory states.

4. Parties to apparently unrelated treatiesmay also be linked by the most-favored

nation clause.


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Nature of International

AgreementsTreaty/Memorandum of

Agreement (MOA) Memorandum of Understanding(MOU)Creates legally binding rights andobligations on the parties Non-legally binding instrumentUsed when the agreement describes the

specific responsibilities of, or actions to beundertaken by the partiesUsed when the participants have agreed on

general principles of cooperation, intendednot to be enforceable by one participantagainst another

Intention is to bind each other to conductagreed upon that failure to do so may giverise to certain obligations

Intention is to record mutual understandingsas to how they will conduct themselves

It may contain anything as long as it doesnot contradictjus cogens norms Used when dealing with sensitive defense &national security matters or to protect

delicate informationThere is a need of publication No international requirement to publish

themMay require other means for effectivity Usually effective upon their signature


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Pacta Sunt Servanda

(AGREEMENT MUST BE KEPT)

Every treaty in force is binding upon the

parties to it and must be performed by them

in good faith. Means that treaties must be performed in goodfaith. One of the oldest and most fundamental

rules of international law.

Thus, if a treaty creates legally bindingobligations, then a breach of a treaty by one

of its parties is a breach of international law


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Pacta Sunt Servanda

(AGREEMENT MUST BE KEPT)

A treaty engagement is not a mere moral

obligation but creates a legally binding

obligation on the parties xxx A state which has contracted valid

international obligations is bound to make

in its legislations such modifications as

may be necessary to ensure the fulfillment

of the obligations undertaken.

(Tanada v. Angara, 272 SCRA 18)


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Influences to ensure

observance to PSS

national self-interest

a sense of duty

respect for promises solemnly given desire to avoid the obloquy attached to

breach of contracts

Breach involves the obligation to make reparations.There is, however, no necessity to state this rule of

reparation in the treaty itself because they are

indispensable complementof failure to comply to

ones obligations.


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REBUS SIC STANTIBUS (RSS)(THINGS REMAINING AS THEY ARE)

This doctrine involves the legal effect of

change in conditions underlying the

purposes of a treaty.

Simply stated, the disappearance of the

foundation upon which it rests.

The key element of this doctrine is the vitalchange in the condition of the contracting

parties that they could not have foreseen

at the time the treaty was concluded.


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Limitations to RSS

It applies only to treaties of indefinite

duration;

The vital change must have been unforeseen

or unforeseeable and should have not been

caused by the party invoking the doctrine.

It must be invoked within reasonable time;

and

It cannot operate retroactively upon the

provisions of a treaty already executed prior

to the change in circumstances.


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Interpretation of Treaties

a treaty shall be interpreted in good faith in

accordance with the ordinary meaning to

be given to the terms of the treaty in their

context and in light of its object and

purpose (Article 31, VCLT)

Supplementary means of Interpretation

travaux prparatoires preparatory work

(drafting history)

circumstances of the treatys conclusion


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Treaty in the Philippines

International agreements involving political

issues or changes of national policy and those

involving international arrangements of a

permanent character usually take the form oftreaties. But international agreements

embodying adjustments of detail carrying out

well-established national policies and traditions

and those involving arrangements of a more or

less temporary nature usually take the form of

executive agreements. (Commissioner of

Customs vs. Eastern Sea Trading (1961))


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Treaty in the Philippines

As defined by Executive Order No. 459

(1997):

treaty is international agreements enteredinto by the Philippines which require

legislative concurrence after executive

ratification


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Treaty vs Executive Agreement

The distinction between treaties and executive

agreements has no bearing in the international

law sphere both are covered by the term

treaty.

An executive agreement is not a treaty in so far

as its ratification may not be required under the

Constitution Foreign loans, grants and commercial contracts

not within the realm of VCLT


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What are those agreements which

require legislative concurrence?

Agreement that comes in conflict with existing

laws

Those which may be in conflict with national

policy and require a change in policy

Agreements which would require the enactment

of a law for its implementation

Those which may contravene constitutional ornational policies, ex. No imposition of death

penalty or no establishment of foreign military

bases, policy of freedom from nuclear weapons

in Philippine territory


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What are those agreements which

require legislative concurrence?

Examples:

Treaties that provide tax exemptions only

Congress may grant such exemption

Those that grants privileges and immunities to

individuals or international organizations

Exception: diplomatic immunities and those granted to

UN agencies and international organizations which are

by now norm

Those that provide direct allocation f funds

Those that criminalize certain conduct only the

legislature may pass penal legislation


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Executive Agreements

Air services agreement

Cultural agreement

Defense cooperation agreement Mutual logistics support agreement

Tourism cooperation agreement

Investment promotion and protectionagreement

Labor promotion and protection agreement


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Treaty-making Process, VCLT

VCLT, Article 11: Means of expressing

consent to be bound by a treaty:

Treaties usually specify how states giveconsent

Article 12: Signature can be a sign of

consent

in processes with a signature and ratification, thesignature demonstrates commitment and intent to

ratify, but not necessarily consent to be bound


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Treaty-making Process, VCLT

Article 14: ratification used to refer to an

act by which a state demonstrates its consent

to be bound by a treaty

may involve an exchange or deposit of instrumentsof ratification

Article 15: accession an act by which a

state expresses its consent to be bound when

it has not previously signed a treaty

sometimes treaties provide in their text that a

treaty is open for signature until a certain date,

after which parties may join the treaty by accession


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Treaty-making process, PHL

In the Philippines, Executive Order No.

459 (1997) provides the guidelines in the

negotiation of international agreements

and their ratification.

Treaties & Executive Agreements shall be

coordinated with & made only with the

participation of the DFA - OLA


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Treaty-making process, PHL

1 Issuance of Full Powers or Special Authority

2 Negotiations

3 Signing of the Agreement

4 Ratification by the President

5 Concurrence by the Senate

6 Declaration or Reservation

7 Notification after Ratification

8 Entry into force

I f F ll P


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Issuance of Full Powers or

Special Authority

Full Powers the authority granted by a

head of state or Government to a delegation

head enabling the latter to bind his country to

the commitments made in the negotiations tobe pursued

negotiation of treaties & executive

agreements shall be coordinated and madeonly with the participation of the DFA

I f F ll P


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Special Authority

prior to negotiation, authorization should first

be secured from the President through the

Secretary of Foreign Affairs

request for authorization should be in writing

contains composition of Philippine

delegation and range of positions taken by

the delegation for agreements requiring the concurrence of

the senate, authorization shall be in the form

of Full Powers and formal instructions

I f F ll P


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Special Authority

The following shall not be required Full

powers or written authorization:

Secretary of Foreign Affairs

Heads of Philippine diplomatic missions

Representatives accredited by the Philippines

to an international conference


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Negotiations

Consultation with appropriate government

agencies through inter-office/agency meetings

Head of agency convenes members of the

negotiating panel prior to negotiation to establishparameters of the negotiating positions

No deviation from the agreed parameters

without consultations with the members of thenegotiating panel.

Done through foreign ministers or through

diplomatic conferences


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Signing of the Agreement

Signing after the negotiators have finally

decided on the terms of the treaty

Intended as a means of authenticating the

instrument

Symbolizing good faith of the parties

It does not indicate final consent of the state

where ratification is required

Signed in accordance with alternat(A usage,

among diplomats, of rotation in precedence

among representatives of equal rank)


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Ratification by the President

Power to ratify - President

After signing, the DFA geographic office

transmits to the OLA the original and/or

certified true copy of the agreement

OLA draft the memorandum for the President

recommending the ratification of the signed

agreement

If it requires Senate concurrence, a draft

letter-endorsement from the President to the

Senate President is enclosed


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Concurrence by the Senate

The Senate does not ratify a treaty, it

concurs in the Presidents ratification

The relevant DFA office coordinates withproponent/implementing agency in

preparing the papers for perusal of the

Senate Committee on Foreign Relations

It undergoes 3 readings


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Declaration or Reservation

Declaration

Unilateral declaration

Clarify the meaning or scope attributed to the

treaty or certain of its provisions.

Reservation

Unilateral statement

Exclude or to modify the legal effect of certainprovisions of the treaty in their application to that

State

May be part of the negotiating parameters

during negotiation


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Notification after Ratification

OLA notifies concerned agencies of the date of

the signature of the Instrument of Ratification as

well as the date of Senate resolution

OLA transmit a note verbale to the embassy ofthe other contracting states determines the

date of entry into force

If agreement requires deposit of originalinstrument , OLA transmit original instrument to

concerned DFA geographic office which makes

the deposit


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Entry into force

An international agreement enters into

force only upon compliance with domestic

ratification requirements

Provisional entry allowed only if it is

shown that a pressing national interest will

be upheld


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Invalidity of Treaties

Grounds: error of fact, fraud corruption or

duress

A state can loose the right to assert theinvalidity of a treaty

Remains to be bound expressly or through by

conduct

A state may not plead its municipal law as

a ground for invalidating a treaty that has

been entered

Amendment/Modification of


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Amendment/Modification of

Treaties

Amendment

Formal revision done with the participation by

all parties to the treaty

Modification

Involves only some of the parties

Art. 39, VCLT, treaty may be amended by

agreement of the parties procedure is

the same as treaty making process


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Termination of Treaties

May be terminated/suspended:

according to the terms of the treaty

consent of the parties

Expiration of the period

Achievement of the purpose

Material breach

Impossibility of performance Change in fundamental conditions (RSS)

Mere change of government or severance of

diplomatic relations does not terminate or

sus end a treat


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Succession to Treaties

1978 Convention on the Succession of

States with respect to Treaties

Follows the clean slate rule

a newly independent state is not bound to

maintain in force, or to become a party to, any

treaty by reason only of the fact that at the date of

the succession of States the treaty was in force in

respect of the territory to which the succession ofStates relates

It does not apply to treaties affecting boundary

regimes


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END OF LECTURE

The Law on Treaties

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Lecture 03 Law on Treaties