TANADA vs.

ANGARA Facts: On April 15, 1994, RP represented by Secretary of DTI signed a final act binding the RP to submit the WTO agreements to seek approval. On Dec 14, 1994, resolution 97 was adopted by the senate to ratify the WTO agreement. A petition was passed assailing the constitutionality of the WTO agreement as it violates sec 19, article 2, providing for the development of a self-reliant and independent national economy, and Sections 10 and 12 of article XII, and providing for the Filipino First policy. Issue: Whether the resolution ratifying the WTO agreement was unconstitutional. Held: No The constitution also recognizes business exchange with the rest of the world and not the isolation list policy. Self-reliant and independent national economy does not mean ruling out foreign investments, neither economic seclusion nor mendicancy in the international community The ratification of the WTO agreement limits or restricts the absoluteness of sovereignty. A treaty engagement is not a mere obligation but creates a legally binding obligation on the parties. A state which has contracted valid international obligations is bound to make its legislations such modifications as may be necessary to ensure the fulfilment of the obligations undertaken. BAYAN vs. ZAMORA Facts: US and RP had a meeting about possibility of elements of VFA and FVR approved the VFA. When Erap became president, he ratified the VFA and the senate approved it by 2/3 votes. Petitioners argued that Sec. 25, Art XVIII, under the provision cited, the foreign military bases, troops, or facilities may be allowed in the Philippines unless the following conditions are sufficiently met: a) It must be a treaty, b) It must be duly concurred in by the senate, ratified by a majority of the votes cast in a national

referendum held for that purpose if so required by congress, and c) Recognized as such by the other contracting state. Respondents argue that Section 21 Article VII is applicable - what is requires for such treaty to be valid and effective is the concurrence in by at least two-thirds of all the members of the senate. Issue: Article VII or article XVIII? Held: XVIII but article VII will be applicable with the issue determining the number of votes required to obtain the valid concurrence of the senate. The Constitution makes no distinction between transient and permanent. We find nothing in section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines. It is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty. CASE CONCERNING MARITIME DELIMITATION AND TERRITORIAL QUESTIONS BETWEEN QATAR AND BAHRAIN (QATAR v. BAHRAIN) (JURISDICTION AND ADMISSIBILITY) Judgment of 1 July 1994 The Court delivered a Judgment in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain. The Court was composed as follows: President Bedjaoui; VicePresident Schwebel; Ju dges Oda, Sir Robert Jennings, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma; Judges ad hoc Valticos, Ruda; Registrar Valencia-Ospina. The operative paragraph of the Judgment reads as follows: PIL - The Law of Treaties 1 "41. For these reasons, THE COURT, (1) By 15 votes to 1, Finds that the exchanges of letters between the King of Saudi Arabia and the Amir of Qatar dated 19 and 21 December 1987, and between the King of Saudi Arabia and the Amir of Bahrain dated 19 and 26 December 1987, and the document headed "Minutes" and signed at Doha on 25 December 1990

by the Ministers for Foreign Affairs of Bahrain, Qatar and Saudi Arabia, are international agreements creating rights and obligations for the Parties; ... (2) By 15 votes to 1, Finds that by the terms of those agreements the Parties have undertaken to submit to the Court the whole of the dispute between them, as circumscribed by the text proposed by Bahrain to Qatar on 26 October 1988, and accepted by Qatar in December 1990, referred to in the 1990 Doha Minutes as the "Bahraini formula"; ... (3) By 15 votes to 1, Decides to afford the Parties the opportunity to submit to the Court the whole of the dispute; ... (4) By 15 votes to 1, Fixes 30 November 1994 as the time-limit within which the Parties are, jointly or separately, to take action to this end; ... (5) By 15 votes to 1, Reserves any other matters for subsequent decision." Those who voted in favour were: President Bedjaoui; VicePresident Schwebel; Judges Sir Robert Jennings, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma; Judges ad hoc Valticos, Ruda; and Against: Judge Oda. * Judge Shahabuddeen appended a declaration to the Judgment; Vice-President Schwebel and Judge ad hoc Valticos appended separate opinions; Judge Oda appended a dissenting opinion. History of the case (paras. 1-14) In its Judgment the Court recalls that on 8 July 1991 the Minister for Foreign Affairs of the State of Qatar filed in the Registry of the Court an Application instituting proceedings against the State of Bahrain in respect of certain disputes between the two States relating to sovereignty over the Hawar islands, sovereign rights over the shoals of Dibal and Qit'at Jaradah, and the delimitation of the maritime areas of the two States. The Court then recites the history of the case. It recalls that in its Application Qatar founded the jurisdiction of the Court upon two agreements between the Parties stated to have been concluded in December 1987 and December 1990 respectively, the subject and scope of the commitment to jurisdiction being determined, according to the Applicant, by a formula proposed by Bahrain to Qatar on 26 October 1988 and accepted by Qatar in December 1990. Bahrain contested the basis

of jurisdiction invoked by Qatar. The Court then refers to the different stages of the proceedings before it and to the submissions of the Parties. Summary of the circumstances in which a solution to the dispute between Bahrain and Qatar has been sought over the past two decades (paras. 15-20) Endeavours to find a solution to the dispute took place in the context of a mediation, sometimes referred to as "good offices", beginning in 1976, by the King of Saudi Arabia with the agreement of the Amirs of Bahrain and Qatar, which led, during a tripartite meeting in March 1983, to the approval of a set of "Principles for the Framework for Reaching a Settlement". The first of these principles specified that "All issues of dispute between the two countries, relating to sovereignty over the islands, maritime boundaries and territorial waters, are to be considered as complementary, indivisible issues, to be solved comprehensively together." Then, in 1987, the King of Saudi Arabia sent the Amirs of Qatar and Bahrain letters in identical terms, in which he put forward new proposals. The Saudi proposals which were adopted by the two Heads of State, included four points, the first of which was that "All the disputed matters shall be referred to the International Court of Justice, at The Hague, for a final ruling binding upon both parties, who shall have to execute its terms." The third provided for formation of a Tripartite Committee, composed of representatives of the States of Bahrain and Qatar and of the Kingdom of Saudi Arabia, "for the purpose of approaching the International Court of Justice, and satisfying the necessary requirements to have the dispute submitted to the Court in accordance with its regulations and instructions so that a final ruling, binding upon both parties, be issued". Then, in 1988, following an initiative by Saudi Arabia, the Heir Apparent of Bahrain, when on a visit to Qatar, transmitted to the Heir Apparent of Qatar a text (subsequently known as the Bahraini formula) which reads as follows: "Question The Parties request the Court to decide any matter of territorial right or other title or interest which may be a matter of difference between them; and to draw a single maritime boundary between their respective maritime areas of seabed, subsoil and superjacent waters."

PIL - The Law of Treaties

The matter was again the subject of discussion two years later, on the occasion of the annual meeting of the Co-operation Council of Arab States of the Gulf at Doha in December 1990. Qatar then let it be known that it was ready to accept the Bahraini formula. The minutes of the meeting which then took place stated that the two parties had reaffirmed what was agreed previously between them; had agreed to continue the good offices of King Fahd of Saudi Arabia until May 1991; that after this period, the matter might be submitted to the International Court of Justice in accordance with the Bahraini formula, while Saudi Arabia's good offices would continue during the submission of the matter to arbitration; and that, should a brotherly solution acceptable to the two parties be reached, the case would be withdrawn from arbitration. The good offices of King Fahd did not lead to the desired outcome within the time-limit thus fixed, and on 8 July 1991 Qatar instituted proceedings before the Court against Bahrain. According to Qatar, the two States: "have made express commitments in the Agreements of December 1987 ... and December 1990 ..., to refer their disputes to the ... Court". Qatar therefore considers that the Court has been enabled "to exercise jurisdiction to adjudicate upon those disputes" and, as a consequence, upon the Application of Qatar. Bahrain maintains on the contrary that the 1990 Minutes do not constitute a legally binding instrument. It goes on to say that, in any event, the combined provisions of the 1987 exchanges of letters and of the 1990 Minutes were not such as to enable Qatar to seise the Court unilaterally and concludes that the Court lacks jurisdiction to deal with the Application of Qatar. The nature of the exchanges of letters of 1987 and of the 1990 Doha Minutes (paras. 21-30) The Court begins by enquiring into the nature of the texts upon which Qatar relies before turning to an analysis of the content of those texts. It observes that the Parties agree that the exchanges of letters of December 1987 constitute an international agreement with binding force in their mutual relations, but that Bahrain maintains that the Minutes of 25 December 1990 were no more than a simple record of negotiations, similar in nature to the Minutes of the Tripartite Committee; that accordingly they did not rank as an international agreement and could not, therefore, serve as a basis for the jurisdiction of the Court. After examining the 1990 Minutes (see above, p. 4) the Court observes that they are not a simple record of a meeting, similar to those drawn up within the

framework of the Tripartite Committee; they do not merely give an account of discussions and summarize points of agreement and disagreement. They enumerate the commitments to which the Parties have consented. They thus create rights and obligations in international law for the Parties. They constitute an international agreement. Bahrain maintains that the signatories of the 1990 Minutes never intended to conclude an agreement of that kind. The Court does not however find it necessary to consider what might have been, in that regard, the intentions of the Foreign Minister of Bahrain or, for that matter, those of the Foreign Minister of Qatar. Nor does it accept Bahrain's contention that the subsequent conduct of the Parties showed that they never considered the 1990 Minutes to be an agreement of this kind. The content of the exchanges of letters of 1987 and of the 1990 Doha Minutes (paras. 31-39) Turning to an analysis of the content of these texts, and of the rights and obligations to which they give rise, the Court first observes that, by the exchanges of letters of December 1987 (see above, pp. 3-4), Bahrain and Qatar entered into an undertaking to refer all the disputed matters to the Court and to determine, with the assistance of Saudi Arabia (in the Tripartite Committee), the way in which the Court was to be seised in accordance with the undertaking thus given. The question of the determination of the "disputed matters" was only settled by the Minutes of December 1990. Those Minutes placed on record the fact that Qatar had finally accepted the Bahraini formula. Both Parties thus accepted that the Court, once seised, should decide "any matter of territorial right or other title or interest which may be a matter of difference between [the Parties]"; and should "draw a single maritime boundary between their respective maritime areas of seabed, subsoil and superjacent waters". The formula thus adopted determined the limits of the dispute with which the Court would be asked to deal. It was devised to circumscribe that dispute, but, whatever the manner of seisin, it left open the possibility for each of the Parties to present its own claims to the Court, within the framework thus fixed. However, while the Bahraini formula permitted the presentation of distinct claims by each of the Parties, it nonetheless pre-supposed that the whole of the dispute would be submitted to the Court. The Court notes that at present it has before it solely an Application by Qatar setting out the particular claims of that State within the framework of the

PIL - The Law of Treaties

Bahraini formula. Article 40 of the Court's Statute provides that when cases are brought before the Court "the subject of the dispute and the parties shall be indicated". In the present case the identity of the parties presents no difficulty, but the subject of the dispute is another matter. In the view of Bahrain the Qatar Application comprises only some of the elements of the subject-matter intended to be comprised in the Bahraini formula and that was in effect acknowledged by Qatar. The Court consequently decides to afford the Parties the opportunity to ensure the submission to the Court of the whole of the dispute as it is comprehended within the 1990 Minutes and the Bahraini formula, to which they have both agreed. The Parties may do so by a joint act or by separate acts; The result should in any case be that the Court has before it "any matter of territorial right or other title or interest which may be a matter of difference between" the Parties, and a request that it "draw a single maritime boundary between their respective maritime areas of seabed, subsoil and superjacent waters". COMMISSIONER OF CUSTOMS & COLLECTOR OF CUSTOMS vs. EASTERN SEA TRADING October 29, 2011 Facts: EST was a shipping company charged in the importation from Japan of onion and garlic into the Philippines. In 1956, the Commissioner of Customs ordered the seizure and forfeiture of the import goods because EST was not able to comply with Central Bank Circulars 44 and 45. The said circulars were pursuant to EO 328 w/c sought to regulate the importation of such nondollar goods from Japan (as there was a Trade and Financial Agreement b/n the Philippines and Japan then). EST questioned the validity of the said EO averring that the said EO was never concurred upon by the Senate. The issue was elevated to the Court of Tax Appeals and the latter ruled in favor of EST. Issue: Whether or not the EO is subject to the concurrence of at least 2/3 of the Senate. Held: No Executive Agreements are not like treaties which are subject to the concurrence of at least 2/3 of

the members of the Senate. Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments treaties and conventions. They sometimes take the form of exchanges of notes and at other times that of more formal documents denominated agreements or protocols. The point where ordinary correspondence between this and other governments ends and agreements whether denominated executive agreements or exchanges of notes or otherwise begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the large variety of executive agreements as such, concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade- agreements act, have been negotiated with foreign governments. . . . It would seem to be sufficient, in order to show that the trade agreements under the act of 1934 are not anomalous in character, that they are not treaties, and that they have abundant precedent in our history, to refer to certain classes of agreements heretofore entered into by the Executive without the approval of the Senate. They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil aircraft, customs matters, and commercial relations generally, international claims, postal matters, the registration of trade-marks and copyrights, etc. Some of them were concluded not by specific congressional authorization but in conformity with policies declared in acts of Congress with respect to the general subject matter, such as tariff acts; while still others, particularly those with respect to the settlement of claims against foreign governments, were concluded independently of any legislation. USAFFE VETERANS ASSOCIATION, INC. vs. THE TREASURER OF THE PHILIPPINES, ET AL. Facts: In October 1954, the USAFFE Veterans Associations Inc. (Usaffe), prayed in its complaint before the Manila court of first instance that the Romulo-Snyder Agreement (1950) whereby the Philippine Government undertook to return to the United States Government in ten annual installments, a total of about 35-million dollars advanced by the United States to, but unexpanded by, the National Defense Forces of the Philippines be annulled, that payments thereunder be declared illegal and that defendants as officers of the Philippine Republic be PIL - The Law of Treaties 4

restrained from disbursing any funds in the National Treasury in pursuance of said Agreement. Said Usaffe Veterans further asked that the moneys available, instead of being remitted to the United States, should be turned over to the Finance Service of the Armed Forces of the Philippines for the payment of all pending claims of the veterans represented by plaintiff. The complaint rested on plaintiff's three propositions: first, that the funds to be "returned" under the Agreement were funds appropriated by the American Congress for the Philippine army, actually delivered to the Philippine Government and actually owned by said Government; second, that U.S. Secretary Snyder of the Treasury, had no authority to retake such funds from the P.I. Government; and third, that Philippine foreign Secretary Carlos P. Romulo had no authority to return or promise to return the aforesaid sums of money through the so-called Romulo-Snyder Agreement. The defendants moved to dismiss, alleging Governmental immunity from suit. But the court required an answer, and then heard the case merits. Thereafter, it dismissed the complaint, upheld the validity of the Agreement and dissolved the preliminary injunction i had previously issued. The plaintiff appealed. Issue: Whether the Romulo-Snyder Agreement is void. Held: There is no doubt that President Quirino approved the negotiations. And he had power to contract budgetary loans under Republic Act No. 213, amending the Republic Act No. 16. The most important argument, however, rests on the lack of ratification of the Agreement by the Senate of the Philippines to make it binding on this Government. On this matter, the defendants explain as follows: That the agreement is not a "treaty" as that term is used in the Constitution, is conceded. The agreement was never submitted to the Senate for concurrence (Art. VII, Sec. 10 (7). However, it must be noted that treaty is not the only form that an international agreement may assume. For the grant of the treaty-making power to the Executive and the Senate does not exhaust the power of the government over international relations. Consequently, executive agreements may be entered with other states and are effective even without the concurrence of the Senate. It is observed in this connection that from the point of view of the international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned as long as the negotiating functionaries have remained within their powers. "The distinction between so-called executive

agreements" and "treaties" is purely a constitutional one and has no international legal significance". There are now various forms of such pacts or agreements entered into by and between sovereign states which do not necessarily come under the strict sense of a treaty and which do not require ratification or consent of the legislative body of the State, but nevertheless, are considered valid international agreements. In the leading case of Altman vs, U. S., 224, U. S. 583, it was held that "an international compact negotiated between the representatives of two sovereign nations and made in the name and or behalf of the contracting parties and dealing with important commercial relations between the two countries, is a treaty both internationally although as an executive agreement it is not technically a treaty requiring the advice and consent of the Senate. Nature of Executive Agreements. Executive Agreements fall into two classes: (1) Agreements made purely as executive acts affecting external relations and independent of or without legislative authorization, which may be termed as presidential agreements and (2) Agreements entered into in pursuant of acts of Congress, which have been designated as Congressional-Executive Agreements. The Romulo-Snyder Agreement may fall under any of these two classes, for precisely on September 18, 1946, Congress of the Philippines specifically authorized the President of the Philippines to obtain such loans or incur such indebtedness with the Government of the United States, its agencies or instrumentalities. Even granting, arguendo, that there was no legislative authorization, it is hereby maintained that the Romulo-Snyder Agreement was legally and validly entered into to conform to the second category, namely, "agreements entered into purely as executive acts without legislative authorization." This second category usually includes money agreements relating to the settlement of pecuniary claims of citizens. It may be said that this method of settling such claims has come to be the usual way of dealing with matters of this kind. Such considerations seems persuasive; indeed, the Agreement was not submitted to the U.S. Senate either; but we do not stop to check the authorities above listed nor test the conclusions derived therefrom in order to render a definite pronouncement, for the reason that our Senate Resolution No. 153 practically admits the validity and binding force of such Agreement.

PIL - The Law of Treaties

Furthermore, the acts of Congress Appropriating funds for the yearly installments necessary to comply with such Agreements constitute a ratification thereof, which places the question the validity out of the Court's reach, no constitutional principle having been invoked to restrict Congress' plenary power to appropriate funds-loan or no loan. Petition denied. ABAYA vs. EBDANE Facts: The Government of Japan and the Government of the Philippines, through their respective representatives, namely, Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Republic of the Philippines, and then Secretary of Foreign Affairs Domingo L. Siazon, have reached an understanding concerning Japanese loans to be extended to the Philippines. These loans were aimed at promoting our countrys economic stabilization and development efforts. The assailed resolution recommended the award to private respondent China Road & Bridge Corporation of the contract for the implementation of civil works for Contract Package No. I (CP I), which consists of the improvement/rehabilitation of the San Andres (Codon)-Virac-Jct. Bago-Viga road, with the length of 79.818 kilometers, in the island province of Catanduanes.The DPWH caused the publication of the Invitation to Prequalify and to Bid for the implementation of the CP I project, in two leading national newspapers, namely, the Manila Times and Manila Standard on November 22 and 29, and December 5, 2002. A total of twenty-three (23) foreign and local contractors responded to the invitation by submitting their accomplished prequalification documents on January 23, 2003. In accordance with the established prequalification criteria, eight contractors were evaluated or considered eligible to bid as concurred by the JBIC. Prior to the opening of the respective bid proposals, it was announced that the Approved Budget for the Contract (ABC) was in the amount of P738,710,563.67. The bid goes to private respondent China Road & Bridge Corporation was corrected from the original P993,183,904.98 (with variance of 34.45% from the ABC) to P952,564,821.71 (with variance of 28.95% from the ABC) based on their letter clarification dated April 21, 2004. The petitioners anchor the instant petition on the contention that the award of the contract to private respondent China Road & Bridge Corporation violates RA 9184, particularly Section 31 thereof which reads:

SEC. 31. Ceiling for Bid Prices. The ABC shall be the upper limit or ceiling for the Bid prices. Bid prices that exceed this ceiling shall be disqualified outright from further participating in the bidding. There shall be no lower limit to the amount of the award. The petitioners insist that Loan Agreement is neither an international nor an executive agreement that would bar the application of RA 9184. They point out that to be considered a treaty, an international or an executive agreement, the parties must be two sovereigns or States whereas in the case of Loan Agreement No. PH-P204, the parties are the Philippine Government and the JBIC, a banking agency of Japan, which has a separate juridical personality from the Japanese Government. The respondents however contend that foreign loan agreements, including Loan Agreement No. PH-P204, as executive agreements and, as such, should be observed pursuant to the fundamental principle in international law of pacta sunt servanda. The Constitution, the public respondents emphasize, recognizes the enforceability of executive agreements in the same way that it recognizes generally accepted principles of international law as forming part of the law of the land.34 This recognition allegedly buttresses the binding effect of executive agreements to which the Philippine Government is a signatory. It is pointed out by the public respondents that executive agreements are essentially contracts governing the rights and obligations of the parties. A contract, being the law between the parties, must be faithfully adhered to by them. Guided by the fundamental rule of pacta sunt servanda, the Philippine Government bound itself to perform in good faith its duties and obligations under Loan Agreement. Issue: Whether or not the the loan agreement violates RA 9184. Held: The court ruled in favor of the respondents. Significantly, an exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without the need of a vote by the Senate or Congress. Executive agreements, they sometimes take the form of exchange of notes and at other times that of more formal documents denominated agreements or protocols. The fundamental principle of international law of pacta sunt servanda,73 which is, in fact, embodied in Section 4 of RA 9184 as it provides that [a]ny treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be

PIL - The Law of Treaties

observed, the DPWH, as the executing agency of the projects financed by Loan Agreement No. PH-P204, rightfully awarded the contract for the implementation of civil works for the CP I project to private respondent China Road & Bridge Corporation. THE PROVINCE OF NORTH COTABATO vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES GR NO.183591, October 14, 2008 Facts: The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement of Peace of 2001 (MOA) is assailed on its constitutionality. This document prepared by the joint efforts of the Government of the Republic of the Philippines (GRP) Peace Panel and the Moro Islamic Liberation Front (MILF) Peace Panel, was merely a codification of consensus points reached between both parties and the aspirations of the MILF to have a Bangsamoro homeland. Issue: When the Executive Department pronounced to abandon the MOA, is the issue of its constitutionality merely moot and academic and therefore no longer justiciable by the Court? Held: Yes. Since the MOA has not been signed, its provisions will not at all come into effect. The MOA will forever remain a draft that has never been finalized. It is now nothing more than a piece of paper, with no legal force or binding effect. It cannot be the source of, nor be capable of violating, any right. The instant Petitions, therefore, and all other oppositions to the MOA, have no more leg to stand on. They no longer present an actual case or a justiciable controversy for resolution by this Court. An actual case or controversy exists when there is a conflict of legal rights or an assertion of opposite legal claims, which can be resolved on the basis of existing law and jurisprudence. A justiciable controversy is distinguished from a hypothetical or abstract difference or dispute, in that the former involves a definite and concrete dispute touching on the legal relations of parties having adverse legal interests. A justiciable controversy admits of specific relief through a decree that is conclusive in character, whereas an opinion only advises what the law would be upon a hypothetical state of facts. The Court should not feel constrained to rule on the Petitions at bar just because of the great public interest these cases have generated. We are, after all, a court of law, and not of public opinion. The power of judicial review of this Court is for settling real and

existent dispute, it is not for allaying fears or addressing public clamor. In acting on supposed abuses by other branches of government, the Court must be careful that it is not committing abuse itself by ignoring the fundamental principles of constitutional law. PIMENTEL, JR. vs. EXECUTIVE SECRETARY 462 SCRA 622 (2005) Facts: The Rome Statute established the International Criminal Court which shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary to the national criminal jurisdictions. Its jurisdiction covers the crime of genocide, crimes against humanity, war crimes and the crime of aggression as defined in the Statute. The Philippines signed the Statute on December 28, 2000. Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states. Hence this petition for mandamus filed by petitioners to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in accordance with Sec. 21, Art. VII of the 1987 Philippine Constitution. Petitioners contend that ratification of a treaty, under domestic law and international law, is a function of the Senate and it is the duty of the executive department to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. Respondents, however argue that it has no duty to transmit the copy of Rome Statute to Senate for concurrence. Issue: Whether or not the Executive Secretary and the DFA have a ministerial duty to transmit to the Senate the copy of the Rome Statute. Held: Petition is dismissed. In our system of government, the President, being the head of the state, is regarded as the sole organ and authority in external relations and is the countrys sole representative with foreign nations. As chief architect of foreign policy, the President acts as the countrys mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact PIL - The Law of Treaties 7

business of foreign relations. In the realm of treatymaking, the President has the sole authority to negotiate with other states. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides for a limitation to his power by requiring the concurrence of 2/3 votes of all the members of the Senate for the validity of the treaty entered into by him. The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations. Petitioners equate signing of the treaty with ratification, which are two different and distinct steps in the treaty-making process. Signature is primarily intended as a means of authenticating the instrument and as a symbol of good faith of the parties. Ratification, the other hand, is a formal act, executive by nature, undertaken by the head of the state or of the government. The signature does not signify the final consent of the state to the treaty. It is ratification that binds the state to the provisions thereof. Under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate is limited only to giving or withholding its consent, or concurrence to the ratification. Such power of the President cannot be encroached by the courts via mandamus and the courts has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties. Therefore, the Court cannot issue a writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of Rome Statute to Senate. AKBAYAN vs. AQUINO 558 SCRA 468 (2008) Facts: The signing of the Japan-Philippines Economic Partnership Agreement (JPEPA) at the sidelines of the Asia-Europe Summit in Helsinki in September 2006 was hailed by both Japanese Prime Minister Junichiro Koizumi and Philippine President Gloria Macapagal Arroyo as a milestone in the continuing cooperation and collaboration, setting a new chapter of strategic partnership for mutual opportunity and growth (for both countries). JPEPA which has been referred to as a mega treaty is a comprehensive plan for opening up of markets in goods and services as well as removing barriers and restrictions on investments. It is a deal that encompasses even our commitments to the WTO.

The complexity of JPEPA became all the more evident at the Senate hearing conducted by the Committee on Trade and Commerce last November 2006. The committee, chaired by Senator Mar Roxas, heard differing views and perspectives on JPEPA. On one hand the committee heard Governments rosy projections on the economic benefits of JPEPA and on the other hand the views of environmental and trade activists who raised their very serious concerns about the country being turned into Japans toxic waste basket. The discussion in the Senate showed that JPEPA is not just an issue concerning trade and economic relations with Japan but one that touches on broader national development concerns. Issues: 1. Do the therein petitioners have standing to bring this action for mandamus in their capacity as citizens of the Republic, as taxpayers, and as members of the Congress 2. Can this Honorable Court exercise primary jurisdiction of this case and take cognizance of the instant petition. 3. Are the documents and information being requested in relation to the JPEPA exempted from the general rules on transparency and full public disclosure such that the Philippine government is justified in denying access thereto. Held: The Supreme Court en banc promulgated last July 16, 2008 its ruling on the case of Akbayan Citizens Action Party et al vs. Thomas G. Aquino et al (G.R. No. 170516). The Highest Tribunal dismissed the Petition for mandamus and prohibition, which sought to compel respondents Department of Trade Industry (DTI) Undersecretary Thomas Aquino et al to furnish petitioners the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA) and the lists of the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes thereto. In its Decision, the Court noted that the full text of the JPEPA has been made accessible to the public since 11 September 2006, and thus the demand to be furnished with copy of the said document has become moot and academic. Notwithstanding this, however, the Court lengthily discussed the substatives issues, insofar as they impinge on petitioners' demand for access to the Philippine and Japanese offers in the course of the negotiations. The Court held: Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidential since there should be 'ample opportunity for discussion before [a treaty] is

PIL - The Law of Treaties

approved' the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japenese representatives submitted their offers with the understanding that 'historic confidentiality' would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. It also reasoned out that opening for public scrutiny the Philippine offers in treaty negotiations would discourage future Philippine representatives from frankly expressing their views during negotiations. The Highest Tribunal recognized that treaty negotiations normally involve a process of quid pro quo, where negotiators would willingly grant concessions in an area of lesser importance in order to obtain more favorable terms in an area of greater national interest. In the same Decision, the Court took time to address the dissent of Chief Justice Reynato S. Puno. It said: We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our people's right to information against any abuse of executive privilege. It is a zeal that We fully share. The Court, however, in its endeavour to guard against the abuse of executive privilege, should be careful not to veer towards the opposite extreme, to the point that it would strike down as invalid even a legitimate exercise thereof. FISHERIES JURISDICTION CASE (UNITED KINGDOM v. ICELAND) (JURISDICTION OF THE COURT) Judgment of 2 February 1973 In its Judgment on the question of its jurisdiction in the case concerning Fisheries Jurisdiction (United Kingdom v. Iceland), the Court found by 14 votes to 1 that it had jurisdiction to entertain the Application filed by the United Kingdom on 14 April 1972 and to deal with the merits of the dispute. The Court was composed as follows: President Sir Muhammad Zafrulla Khan, VicePresident Ammoun and Judges Sir Gerald Fitzmaurice, Padilla Nervo, Forster, Gros, Bengzon, Petrn, Lachs, Onyeama, Dillard, Ignacio-Pinto, de Castro, Morozov and Jimnez de Archaga. The President of the Court appended a declaration to the Judgment. Judge Sir Gerald Fitzmaurice appended a separate opinion, and Judge Padilla Nervo a dissenting opinion. Facts: (paras. 1-12 of the Judgment)

In its Judgment the Court recalls that on 14 April 1972 the Government of the United Kingdom instituted proceedings against Iceland in respect of a dispute concerning the proposed extension by the Icelandic Government of its exclusive fisheries jurisdiction to a distance of 50 nautical miles from the baselines around its coasts. By a letter of 29 May 1972 the Minister for Foreign Affairs of Iceland informed the Court that his Government was not willing to confer jurisdiction on it and would not appoint an Agent. By Orders of 17 and 18 August 1972 the Court indicated certain interim measures of protection at the request of the United Kingdom and decided that the first written pleadings should be addressed to the question of its jurisdiction to deal with the case. The Government of the United Kingdom filed a Memorial, and the Court heard oral argument on its behalf at a public hearing on 5 January 1973. The Government of Iceland has filed no pleadings and was not represented at the hearing. It is, the Court observes, to be regretted that the Government of Iceland has failed to appear to plead the objections to the Court's jurisdiction which it is understood to entertain. Nevertheless the Court, in accordance with its Statute and its settled jurisprudence, must examine the question on its own initiative, a duty reinforced by Article 53 of the Statute, whereby, whenever one of the parties does not appear, the Court must satisfy itself that it has jurisdiction before finding on the merits. Although the Government of Iceland has not set out the facts and law on which its objection is based, or adduced any evidence, the Court proceeds to consider those objections which might, in its view, be raised against its jurisdiction. In so doing, it avoids not only all expressions of opinion on matters of substance, but also any pronouncement which might prejudge or appear to prejudge any eventual decision on the merits. Compromissory clause of the 1961 Exchange of Notes (paras. 13-23 of the Judgment) To found the Court's jurisdiction, the Government of the United Kingdom relies on an Exchange of Notes which took place between it and the Government of Iceland on 11 March 1961, following an earlier dispute over fisheries. By that Exchange of Notes the United Kingdom undertook to recognise an exclusive Icelandic fishery zone up to a limit of 12 miles and to withdraw its fishing vessels from that zone over a period of 3 years. The Exchange of Notes featured a compromissory clause in the following terms: "The Icelandic Government will continue to work for the implementation of the Althing Resolution of May 5, 1959,

PIL - The Law of Treaties

regarding the extension of fisheries jurisdiction around Iceland, but shall give to the United Kingdom Government six months' notice of such extension, and, in case of a dispute in relation to such extension, the matter shall, at the request of either party, be referred to the International Court of Justice." The Court observes that there is no doubt as to the fulfilment by the Government of the United Kingdom of its part of this agreement or as to the fact that the Government of Iceland, in 1971, gave the notice provided for in the event of a further extension of its fisheries jurisdiction. Nor is there any doubt that a dispute has arisen, that it has been submitted to the Court by the United Kingdom and that, on the face of it, the dispute thus falls exactly within the terms of the compromissory clause. Although, strictly speaking, the text of this clause is sufficiently clear for there to be no need to investigate the preparatory work, the Court reviews the history of the negotiations which led to the Exchange of Notes, finding confirmation therein of the parties' intention to provide the United Kingdom, in exchange for its recognition of the 12-mile limit and the withdrawal of its vessels, with a genuine assurance which constituted a sine qua non for the whole agreement, namely the right to challenge before the Court the validity of any further extension of Icelandic fisheries jurisdiction beyond the 12-mile limit. It is thus apparent that the Court has jurisdiction. Validity and duration of the 1961 Exchange of Notes (paras. 24-45 of the Judgment) The Court next considers whether, as has been contended the agreement embodied in the 1961 Exchange of Notes either was initially void or has since ceased to operate. In the above-mentioned letter of 29 May 1972 the Minister for Foreign Affairs of Iceland said that the 1961 Exchange of Notes had taken place at a time when the British Royal Navy had been using force to oppose the 12-mile fishery limit. The Court, however, notes that the agreement appears to have been freely negotiated on the basis of perfect equality and freedom of decision on both sides. In the same letter the Minister for Foreign Affairs of Iceland expressed the view that "an undertaking for judicial settlement cannot be considered to be of a permanent nature" and the Government of Iceland had indeed, in an aidemmoire of 31 August 1971, asserted that the object and purpose of the provision for recourse to judicial

settlement had been fully achieved. The Court notes that the compromissory clause contains no express provision regarding duration. In fact, the right of the United Kingdom to challenge before the Court any claim by Iceland to extend its fisheries zone was subject to the assertion of such a claim and would last so long as Iceland might seek to implement the 1959 Althing resolution. In a statement to the Althing (the Parliament of Iceland) on 9 November 1971, the Prime Minister of Iceland alluded to changes regarding "legal opinion on fisheries jurisdiction". His argument appeared to be that as the compromissory clause was the price that Iceland had paid at the time for the recognition by the United Kingdom of the 12-mile limit, the present general recognition of such a limit constituted a change of legal circumstances that relieved Iceland of its commitment. The Court observes that, on the contrary, since Iceland has received benefits from those parts of the agreement already executed, it behoves it to comply with its side of the bargain. The letter and statement just mentioned also drew attention to "the changed circumstances resulting from the ever-increasing exploitation of the fishery resources in the seas surrounding Iceland". It is, notes the Court, admitted in international law that if a fundamental change of the circumstances which induced parties to accept a treaty radically transforms the extent of the obligations undertaken, this may, under certain conditions, afford the party affected a ground for invoking the termination or suspension of the treaty. It would appear that in the present case there is a serious difference of views between the Parties as to whether there have been any fundamental changes in fishing techniques in the waters around Iceland. Such changes would, however, be relevant only for any eventual decision on the merits. It cannot be said that the change of circumstances alleged by Iceland has modified the scope of the jurisdictional obligation agreed to in the 1961 Exchange of Notes. Moreover, any question as to the jurisdiction of the Court, deriving from an alleged lapse of the obligation through changed circumstances, is for the Court to decide, by virtue of Article 36, paragraph 6, of its Statute. CASE CONCERNING GABCKOVO-NAGYMAROS PROJECT (HUNGARY/SLOVAKIA) Summary of the Judgment of 25 September 1997 Review of the proceedings and statement of claims (paras. 1-14) The Court begins by recalling that proceedings had been instituted on 2 July 1993 by a joint notification, by Hungary and Slovakia, of a Special Agreement, signed at Brussels on 7 April 1993. After setting out the text of the Agreement, the Court recites

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the successive stages of the proceedings, referring, among other things, to its visit, on the invitation of the parties, to the area, from 1 to 4 April 1997. It further sets out the submissions of the Parties. History of the dispute (paras. 15-25) The Court recalls that the present case arose out of the signature, on 16 September 1977, by the Hungarian People's Republic and the Czechoslovak People's Republic, of a treaty "concerning the construction and operation of the GabckovoNagymaros System of Locks" (hereinafter called the "1977 Treaty"). The names of the two contracting States have varied over the years; they are referred to as Hungary and Czechoslovakia. The 1977 Treaty entered into force on 30 June 1978. It provides for the construction and operation of a System of Locks by the parties as a "joint investment". According to its Preamble, the system was designed to attain "the broad utilization of the natural resources of the Bratislava-Budapest section of the Danube River for the development of water resources, energy, transport, agriculture and other sectors of the national economy of the Contracting Parties". The joint investment was thus essentially aimed at the production of hydroelectricity, the improvement of navigation on the relevant section of the Danube and the protection of the areas along the banks against flooding. At the same time, by the terms of the Treaty, the contracting parties undertook to ensure that the quality of water in the Danube was not impaired as a result of the Project, and that compliance with the obligations for the protection of nature arising in connection with the construction and operation of the System of Locks would be observed. The sector of the Danube River with which this case is concerned is a stretch of approximately 200 kilometres, between Bratislava in Slovakia and Budapest in Hungary. Below Bratislava, the river gradient decreases markedly, creating an alluvial plain of gravel and sand sediment. The boundary between the two States is constituted, in the major part of that region, by the main channel of the river. Cunovo and, further downstream, Gabckovo, are situated in this sector of the river on Slovak territory, Cunovo on the right bank and Gabckovo on the left. Further downstream, after the confluence of the various branches, the river enters Hungarian territory. Nagymaros lies in a narrow valley at a bend in the Danube just before it turns south, enclosing the large river island of Szentendre before reaching Budapest (see sketch-map No. 1 (85 Kb) ). The 1977 Treaty describes the principal works to be constructed in pursuance of the Project. It provided for the building of two series of locks, one at Gabckovo (in Czechoslovak territory) and the other at Nagymaros (in Hungarian territory), to constitute "a

single and indivisible operational system of works" (see sketch-map No. 2, (85 Kb) ). The Treaty further provided that the technical specifications concerning the system would be included in the "Joint Contractual Plan" which was to be drawn up in accordance with the Agreement signed by the two Governments for this purpose on 6 May 1976. It also provided for the construction, financing and management of the works on a joint basis in which the Parties participated in equal measure. The Joint Contractual Plan, set forth, on a large number of points, both the objectives of the system and the characteristics of the works. It also contained "Preliminary Operating and Maintenance Rules", Article 23 of which specified that "The final operating rules [should] be approved within a year of the setting into operation of the system." The Court observes that the Project was thus to have taken the form of an integrated joint project with the two contracting parties on an equal footing in respect of the financing, construction and operation of the works. Its single and indivisible nature was to have been realized through the Joint Contractual Plan which complemented the Treaty. In particular, Hungary would have had control of the sluices at Dunakiliti and the works at Nagymaros, whereas Czechoslovakia would have had control of the works at Gabckovo. * The schedule of work had for its part been fixed in an Agreement on mutual assistance signed by the two parties on 16 September 1977, at the same time as the Treaty itself. The Agreement made some adjustments to the allocation of the works between the parties as laid down by the Treaty. Work on the Project started in 1978. On Hungary's initiative, the two parties first agreed, by two Protocols signed on 10 October 1983 to slow the work down and to postpone putting into operation the power plants, and then, by a Protocol signed on 6 February 1989 to accelerate the Project. As a result of intense criticism which the Project had generated in Hungary, the Hungarian Government decided on 13 May 1989 to suspend the works at Nagymaros pending the completion of various studies which the competent authorities were to finish before 31 July 1989. On 21 July 1989, the Hungarian Government extended the suspension of the works at Nagymaros until 31 October 1989, and, in addition, suspended the works at Dunakiliti until the same date. Lastly, on 27 October 1989, Hungary decided to abandon the works at Nagymaros and to maintain the status quo at Dunakiliti. During this period, negotiations took place between the parties. Czechoslovakia also started investigating alternative solutions. One of them, an alternative solution subsequently known as "Variant C", entailed a unilateral diversion of the Danube by

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Czechoslovakia on its territory some 10 kilometres upstream of Dunakiliti (see sketch-map No. 3, (90 Kb) ). In its final stage, Variant C included the construction at Cunovo of an overflow dam and a levee linking that dam to the south bank of the bypass canal. Provision was made for ancillary works. On 23 July 1991, the Slovak Government decided "to begin, in September 1991, construction to put the Gabckovo Project into operation by the provisional solution". Work on Variant C began in November 1991. Discussions continued between the two parties but to no avail, and, on 19 May 1992, the Hungarian Government transmitted to the Czechoslovak Government a Note Verbale terminating the 1977 Treaty with effect from 25 May 1992. On 15 October 1992, Czechoslovakia began work to enable the Danube to be closed and, starting on 23 October, proceeded to the damming of the river. The Court finally takes note of the fact that on 1 January 1993 Slovakia became an independent State; that in the Special Agreement thereafter concluded between Hungary and Slovakia the Parties agreed to establish and implement a temporary water management rgime for the Danube; and that finally they concluded an Agreement in respect of it on 19 April 1995, which would come to an end 14 days after the Judgment of the Court. The Court also observes that not only the 1977 Treaty, but also the "related instruments" are covered in the preamble to the Special Agreement and that the Parties, when concentrating their reasoning on the 1977 Treaty, appear to have extended their arguments to the "related instruments". Suspension and abandonment by Hungary, in 1989, of works on the Project (paras. 27-59) In terms of Article 2, paragraph 1 (a), of the Special Agreement, the Court is requested to decide first "whether the Republic of Hungary was entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabckovo Project for which the Treaty attributed responsibility to the Republic of Hungary". The Court observes that it has no need to dwell upon the question of the applicability or nonapplicability in the present case of the Vienna Convention of 1969 on the Law of Treaties, as argued by the Parties. It needs only to be mindful of the fact that it has several times had occasion to hold that some of the rules laid down in that Convention might be considered as a codification of existing customary law. The Court takes the view that in many respects

this applies to the provisions of the Vienna Convention concerning the termination and the suspension of the operation of treaties, set forth in Articles 60 to 62. Neither has the Court lost sight of the fact that the Vienna Convention is in any event applicable to the Protocol of 6 February 1989 whereby Hungary and Czechoslovakia agreed to accelerate completion of the works relating to the Gabckovo-Nagymaros Project. Nor does the Court need to dwell upon the question of the relationship between the law of treaties and the law of State responsibility, to which the Parties devoted lengthy arguments, as those two branches of international law obviously have a scope that is distinct. A determination of whether a convention is or is not in force, and whether it has or has not been properly suspended or denounced, is to be made pursuant to the law of treaties. On the other hand, an evaluation of the extent to which the suspension or denunciation of a convention, seen as incompatible with the law of treaties, involves the responsibility of the State which proceeded to it, is to be made under the law of State responsibility. The Court cannot accept Hungary's argument to the effect that, in 1989, in suspending and subsequently abandoning the works for which it was still responsible at Nagymaros and at Dunakiliti, it did not suspend the application of the 1977 Treaty itself or then reject that Treaty. The conduct of Hungary at that time can only be interpreted as an expression of its unwillingness to comply with at least some of the provisions of the Treaty and the Protocol of 6 February 1989, as specified in the Joint Contractual Plan. The effect of Hungary's conduct was to render impossible the accomplishment of the system of works that the Treaty expressly described as "single and indivisible". The Court then considers the question of whether there was, in 1989, a state of necessity which would have permitted Hungary, without incurring international responsibility, to suspend and abandon works that it was committed to perform in accordance with the 1977 Treaty and related instruments. The Court observes, first of all, that the state of necessity is a ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation. It considers moreover that such ground for precluding wrongfulness can only be accepted on an exceptional basis. The following basic conditions set forth in Article 33 of the Draft Article on the International Responsibility of States by the International Law Commission are relevant in the present case: it must have been occasioned by an "essential interest" of the State which is the author of the act conflicting with one of its international obligations; that interest must have been threatened by a "grave and imminent peril"; the act being

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challenged must have been the "only means" of safeguarding that interest; that act must not have "seriously impair[ed] an essential interest" of the State towards which the obligation existed; and the State which is the author of that act must not have "contributed to the occurrence of the state of necessity". Those conditions reflect customary international law. The Court has no difficulty in acknowledging that the concerns expressed by Hungary for its natural environment in the region affected by the GabckovoNagymaros Project related to an "essential interest" of that State. It is of the view, however, that, with respect to both Nagymaros and Gabckovo, the perils invoked by Hungary, without prejudging their possible gravity, were not sufficiently established in 1989, nor were they "imminent"; and that Hungary had available to it at that time means of responding to these perceived perils other than the suspension and abandonment of works with which it had been entrusted. What is more, negotiations were under way which might have led to a review of the Project and the extension of some of its time-limits, without there being need to abandon it. The Court further notes that Hungary when it decided to conclude the 1977 Treaty, was presumably aware of the situation as then known; and that the need to ensure the protection of the environment had not escaped the parties. Neither can it fail to note the positions taken by Hungary after the entry into force of the 1977 Treaty. Slowly, speeded up. The Court infers that, in the present case, even if it had been established that there was, in 1989, a state of necessity linked to the performance of the 1977 Treaty, Hungary would not have been permitted to rely upon that state of necessity in order to justify its failure to comply with its treaty obligations, as it had helped, by act or omission to bring it about. In the light of the conclusions reached above, the Court finds that Hungary was not entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabckovo Project for which the 1977 Treaty and related instruments attributed responsibility to it. Czechoslovakia's proceeding, in November 1991, to "Variant C" and putting into operation, from October 1992, this Variant (paras. 60-88) By the terms of Article 2, paragraph 1 (b), of the Special Agreement, the Court is asked in the second place to decide "(b)whether the Czech and Slovak Federal Republic was entitled to proceed, in November 1991, to the 'provisional solution'

and to put into operation from October 1992 this system". Czechoslovakia had maintained that proceeding to Variant C and putting it into operation did not constitute internationally wrongful acts; Slovakia adopted this argument. During the proceedings before the Court Slovakia contended that Hungary's decision to suspend and subsequently abandon the construction of works at Dunakiliti had made it impossible for Czechoslovakia to carry out the works as initially contemplated by the 1977 Treaty and that the latter was therefore entitled to proceed with a solution which was as close to the original Project as possible. Slovakia invoked what it described as a "principle of approximate application" to justify the construction and operation of Variant c. It explained that this was the only possibility remaining to it "of fulfilling not only the purposes of the 1977 Treaty, but the continuing obligation to implement it in good faith". The Court observes that it is not necessary to determine whether there is a principle of international law or a general principle of law of "approximate application" because, even if such a principle existed, it could by definition only be employed within the limits of the treaty in question. In the view of the Court, Variant C does not meet that cardinal condition with regard to the 1977 Treaty. As the Court has already observed, the basic characteristic of the 1977 Treaty is, according to Article 1, to provide for the construction of the Gabckovo-Nagymaros System of Locks as a joint investment constituting a single and indivisible operational system of works. This element is equally reflected in Articles 8 and 10 of the Treaty providing for joint ownership of the most important works of the Gabckovo-Nagymaros project and for the operation of this joint property as a co-ordinated single unit. By definition all this could not be carried out by unilateral action. In spite of having a certain external physical similarity with the original Project, Variant C thus differed sharply from it in its legal characteristics. The Court accordingly concludes that Czechoslovakia, in putting Variant C into operation, was not applying the 1977 Treaty but, on the contrary, violated certain of its express provisions, and, in so doing, committed an internationally wrongful act. The Court notes that between November 1991 and October 1992, Czechoslovakia confined itself to the execution, on its own territory, of the works which were necessary for the implementation of Variant C, but which could have been abandoned if an agreement had been reached between the parties and did not therefore predetermine the final decision to be taken. For as long as the Danube had not been unilaterally dammed, Variant C had not in fact been applied. Such a

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situation is not unusual in international law or, for that matter, in domestic law. A wrongful act or offence is frequently preceded by preparatory actions which are not to be confused with the act or offence itself. It is as well to distinguish between the actual commission of a wrongful act (whether instantaneous or continuous) and the conduct prior to that act which is of a preparatory character and which "does not qualify as a wrongful act". Slovakia also maintained that it was acting under a duty to mitigate damages when it carried out Variant c. It stated that "It is a general principle of international law that a party injured by the nonperformance of another contract party must seek to mitigate the damage he has sustained." But the Court observes that, while this principle might thus provide a basis for the calculation of damages, it could not, on the other hand, justify an otherwise wrongful act. The Court further considers that the diversion of the Danube carried out by Czechoslovakia was not a lawful countermeasure because it was not proportionate. In the light of the conclusions reached above, the Court finds that Czechoslovakia was entitled to proceed, in November 1991, to Variant C in so far as it then confined itself to undertaking works which did not predetermine the final decision to be taken by it. On the other hand, Czechoslovakia was not entitled to put that Variant into operation from October 1992. Notification by Hungary, on 19 May 1992, of the termination of the 1977 Treaty and related instruments (paras. 89-115) By the terms of Article 2, paragraph 1 (c), of the Special Agreement, the Court is asked, thirdly, to determine "what are the legal effects of the notification, on 19 May 1992, of the termination of the Treaty by the Republic of Hungary". During the proceedings, Hungary presented five arguments in support of the lawfulness, and thus the effectiveness, of its notification of termination. These were the existence of a state of necessity; the impossibility of performance of the Treaty; the occurrence of a fundamental change of circumstances; the material breach of the Treaty by Czechoslovakia; and, finally, the development of new norms of international environmental law. Slovakia contested each of these grounds. State of necessity The Court observes that, even if a state of necessity is found to exist, it is not a ground for the termination of a treaty. It may only be invoked to exonerate from its

responsibility a State which has failed to implement a treaty. Impossibility of performance The Court finds that it is not necessary to determine whether the term "object" in Article 61 of the Vienna Convention of 1969 on the Law of Treaties (which speaks of "permanent disappearance or destruction of an object indispensable for the execution of the treaty" as a ground for terminating or withdrawing from it) can also be understood to embrace a legal rgime as in any event, even if that were the case, it would have to conclude that in this instance that rgime had not definitively ceased to exist. The 1977 Treaty and in particular its Articles 15, 19 and 20 actually made available to the parties the necessary means to proceed at any time, by negotiation, to the required readjustments between economic imperatives and ecological imperatives. Fundamental change of circumstances In the Court's view, the prevalent political conditions were not so closely linked to the object and purpose of the Treaty that they constituted an essential basis of the consent of the parties and, in changing, radically altered the extent of the obligations still to be performed. The same holds good for the economic system in force at the time of the conclusion of the 1977 Treaty. Nor does the Court consider that new developments in the state of environmental knowledge and of environmental law can be said to have been completely unforeseen. What is more, the formulation of Articles 15, 19 and 20 is designed to accommodate change. The changed circumstances advanced by Hungary are thus, in the Court's view, not of such a nature, either individually or collectively, that their effect would radically transform the extent of the obligations still to be performed in order to accomplish the Project. Material breach of the Treaty Hungary's main argument for invoking a material breach of the Treaty was the construction and putting into operation of Variant c. The Court pointed out that it had already found that Czechoslovakia violated the Treaty only when it diverted the waters of the Danube into the bypass canal in October 1992. In constructing the works which would lead to the putting into operation of Variant C, Czechoslovakia did not act unlawfully. In the Court's view, therefore, the notification of termination by Hungary on 19 May 1992 was premature. No breach of the Treaty by Czechoslovakia had yet taken place and consequently Hungary was not entitled to invoke any such breach of the Treaty as a ground for terminating it when it did. Development of new norms of international environmental law The Court notes that neither of the Parties contended that new peremptory norms of environmental law had emerged since the conclusion of the 1977 Treaty; and

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the Court will consequently not be required to examine the scope of Article 64 of the Vienna Convention on the Law of Treaties (which treats of the voidance and termination of a treaty because of the emergence of a new peremptory norm of general international law (jus cogens)). On the other hand, the Court wishes to point out that newly developed norms of environmental law are relevant for the implementation of the Treaty and that the parties could, by agreement, incorporate them through the application of Articles 15, 19 and 20 of the Treaty. These articles do not contain specific obligations of performance but require the parties, in carrying out their obligations to ensure that the quality of water in the Danube is not impaired and that nature is protected, to take new environmental norms into consideration when agreeing upon the means to be specified in the Joint Contractual Plan. By inserting these evolving provisions in the Treaty, the parties recognized the potential necessity to adapt the Project. Consequently, the Treaty is not static, and is open to adapt to emerging norms of international law. By means of Articles 15 and 19, new environmental norms can be incorporated in the Joint Contractual Plan. The awareness of the vulnerability of the environment and the recognition that environmental risks have to be assessed on a continuous basis have become much stronger in the years since the Treaty's conclusion. These new concerns have enhanced the relevance of Articles 15, 19 and 20. The Court recognizes that both Parties agree on the need to take environmental concerns seriously and to take the required precautionary measures, but they fundamentally disagree on the consequences this has for the joint Project. In such a case, third-party involvement may be helpful and instrumental in finding a solution, provided each of the Parties is flexible in its position. Finally, the Court is of the view that although it has found that both Hungary and Czechoslovakia failed to comply with their obligations under the 1977 Treaty, this reciprocal wrongful conduct did not bring the Treaty to an end nor justify its termination. In the light of the conclusions it has reached above, the Court finds that the notification of termination by Hungary of 19 May 1992 did not have the legal effect of terminating the 1977 Treaty and related instruments. Dissolution of Czechoslovakia (paras. 117-124) The Court then turns to the question whether Slovakia became a party to the 1977 Treaty as successor to Czechoslovakia. As an alternative argument, Hungary contended that, even if the Treaty survived the notification of termination, in any event it ceased to be in force as a treaty on 31 December 1992, as a result of the "disappearance of one of the parties" On that date Czechoslovakia ceased to exist as a legal

entity, and on 1 January 1993 the Czech Republic and the Slovak Republic came into existence. The Court does not find it necessary for the purposes of the present case to enter into a discussion of whether or not Article 34 of the 1978 Vienna Convention on Succession of States in respect of treaties (in which a rule of automatic succession to all treaties is provided for) reflects the state of customary international law. More relevant to its present analysis is the particular nature and character of the 1977 Treaty. An examination of this Treaty confirms that, aside from its undoubted nature as a joint investment, its major elements were the proposed construction and joint operation of a large, integrated and indivisible complex of structures and installations on specific parts of the respective territories of Hungary and Czechoslovakia along the Danube. The Treaty also established the navigational rgime for an important sector of an international waterway, in particular the relocation of the main international shipping lane to the bypass canal. In so doing, it inescapably created a situation in which the interests of other users of the Danube were affected. Furthermore, the interests of third States were expressly acknowledged in Article 18, whereby the parties undertook to ensure "uninterrupted and safe navigation on the international fairway" in accordance with their obligations under the Convention of 18 August 1948 concerning the Rgime of Navigation on the Danube. The Court then refers to Article 12 of the 1978 Vienna Convention on Succession of States in respect of Treaties, which reflects the principle that treaties of a territorial character have been regarded both in traditional doctrine and in modern opinion as unaffected by a succession of States. The Court considers that Article 12 reflects a rule of customary international law; and notes that neither of the Parties disputed this. It concludes that the content of the 1977 Treaty indicates that it must be regarded as establishing a territorial rgime within the meaning of Article 12 of 1978 Vienna Convention. It created rights and obligations "attaching to" the parts of the Danube to which it relates; thus the Treaty itself could not be affected by a succession of States. The Court therefore concludes that the 1977 Treaty became binding upon Slovakia on 1 January 1993. Legal consequences of the Judgment (paras. 125-154) The Court observes that the part of its Judgment which answers the questions in Article 2, paragraph 1, of the Special Agreement has a declaratory character. It deals with the past conduct of the Parties and determines the lawfulness or unlawfulness of that conduct between 1989 and 1992 as well as its effects on the existence of the Treaty. Now the Court has, on the basis of the foregoing findings, to determine what the future conduct of the PIL - The Law of Treaties 15

Parties should be. This part of the Judgment is prescriptive rather than declaratory because it determines what the rights and obligations of the Parties are. The Parties will have to seek agreement on the modalities of the execution of the Judgment in the light of this determination, as they agreed to do in Article 5 of the Special Agreement. In this regard it is of cardinal importance that the Court has found that the 1977 Treaty is still in force and consequently governs the relationship between the Parties. That relationship is also determined by the rules of other relevant conventions to which the two States are party, by the rules of general international law and, in this particular case, by the rules of State responsibility; but it is governed, above all, by the applicable rules of the 1977 Treaty as a lex specialis. The Court observes that it cannot, however, disregard the fact that the Treaty has not been fully implemented by either party for years, and indeed that their acts of commission and omission have contributed to creating the factual situation that now exists. Nor can it overlook that factual situation or the practical possibilities and impossibilities to which it gives rise when deciding on the legal requirements for the future conduct of the Parties. What is essential, therefore, is that the factual situation as it has developed since 1989 shall be placed within the context of the preserved and developing treaty relationship, in order to achieve its object and purpose in so far as that is feasible. For it is only then that the irregular state of affairs which exists as the result of the failure of both Parties to comply with their treaty obligations can be remedied. The Court points out that the 1977 Treaty is not only a joint investment project for the production of energy, but it was designed to serve other objectives as well: the improvement of the navigability of the Danube, flood control and regulation of ice-discharge, and the protection of the natural environment. In order to achieve these objectives the parties accepted obligations of conduct, obligations of performance, and obligations of result. The Court is of the opinion that the Parties are under a legal obligation, during the negotiations to be held by virtue of Article 5 of the Special Agreement, to consider, within the context of the 1977 Treaty, in what way the multiple objectives of the Treaty can best be served, keeping in mind that all of them should be fulfilled. It is clear that the Project's impact upon, and its implications for, the environment are of necessity a key issue. In order to evaluate the environmental risks, current standards must be taken into consideration. This is not only allowed by the wording of Articles 15 and 19, but even prescribed, to the extent that these articles impose a continuing and thus necessarily evolving obligation on the parties to maintain the quality of the water of the Danube and to protect

nature. The Court is mindful that, in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage. New norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. For the purposes of the present case, this means that the Parties together should look afresh at the effects on the environment of the operation of the Gabckovo power plant. In particular they must find a satisfactory solution for the volume of water to be released into the old bed of the Danube and into the side-arms on both sides of the river. What is required in the present case by the rule pacta sunt servanda, as reflected in Article 26 of the Vienna Convention of 1969 on the Law of Treaties, is that the Parties find an agreed solution within the co-operative context of the Treaty. Article 26 combines two elements, which are of equal importance. It provides that "Every treaty in force is binding upon the parties to it and must be performed by them in good faith". This latter element, in the Court's view, implies that, in this case, it is the purpose of the Treaty, and the intentions of the parties in concluding it, which should prevail over its literal application. The principle of good faith obliges the Parties to apply it in a reasonable way and in such a manner that its purpose can be realized. The 1977 Treaty not only contains a joint investment programme, it also establishes a rgime. According to the Treaty, the main structures of the System of Locks are the joint property of the Parties; their operation will take the form of a co-ordinated single unit; and the benefits of the project shall be equally shared. Since the Court has found that the Treaty is still in force and that, under its terms, the joint rgime is a basic element, it considers that, unless the Parties agree otherwise, such a rgime should be restored. The Court is of the opinion that the works at Cunovo should become a jointly operated unit within the meaning of Article 10, paragraph 1, in view of their pivotal role in the operation of what remains of the Project and for the water-management rgime. The dam at Cunovo has taken over the role which was originally destined for the works at Dunakiliti, and therefore should have a similar status. The Court also concludes that Variant C, which it considers operates in a manner incompatible with the Treaty, should be made to conform to it. It observes that reestablishment of the joint rgime will also reflect in an optimal way the concept of common utilization of

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shared water resources for the achievement of the several objectives mentioned in the Treaty. Having thus far indicated what in its view should be the effects of its finding that the 1977 Treaty is still in force, the Court turns to the legal consequences of the internationally wrongful acts committed by the Parties, as it had also been asked by both Parties to determine the consequences of the Judgment as they bear upon payment of damages. The Court has not been asked at this stage to determine the quantum of damages due, but to indicate on what basis they should be paid. Both Parties claimed to have suffered considerable financial losses and both claim pecuniary compensation for them. In the Judgment, the Court has concluded that both Parties committed internationally wrongful acts, and it has noted that those acts gave rise to the damage sustained by the Parties; consequently, Hungary and Slovakia are both under an obligation to pay compensation and are both entitled to obtain compensation. The Court observes, however, that given the fact, that there have been intersecting wrongs by both Parties, the issue of compensation could satisfactorily be resolved in the framework of an overall settlement if each of the Parties were to renounce or cancel all financial claims and counterclaims. At the same time, the Court wishes to point out that the settlement of accounts for the construction of the works is different from the issue of compensation, and must be resolved in accordance with the 1977 Treaty and related instruments. If Hungary is to share in the operation and benefits of the Cunovo complex, it must pay a proportionate share of the building and running costs.

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