THE LAW OF TREATIES

01 SEPTEMBER 2012 PUBLIC INTERNATIONAL LAW ARELLANO LAW

WHY TREATIES? WHAT IS THEIR RELEVANCE?

Air services Mail Trade No visa Cultural exchanges Diplomatic relations And more

SOURCES OF LAW
Article 38, ICJ Statute 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
Law making or normative treaties Vs Treaty contracts

PACTA SUNT SERVANDA

The fundamental principle of treaty law Treaties are binding upon the parties to them and must be performed in good faith Article 26 VCLT Because why enter into a treaty if youre not certain that the other state will perform its obligations on good faith?

THE VCLT
1969 Vienna Convention on the Law of Treaties Done at Vienna on 23 May 1969. Entered into force on 27 January 1980 111 States Parties

DEFINITION OF TREATIES
Article 2 Use of Terms 1. For the purposes of the present Convention: (a) treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;

ELEMENTS
international agreement between States whether embodied in a single instrument or in two or more related instruments whatever its particular designation

EFFECT ON SOVEREIGNTY Is entering into treaties a surrender or manifestation of sovereignty?

BINDING EFFECT
Between Parties Must express intent to create legally binding obligations Except if embodies customary law and norms (normative treaties)

THE MAKING OF TREATIES

CAPACITY: WHO CAN MAKE/CONCLUDE TREATIES? HOW IS THIS CAPACITY SHOWN? HOW DO STATES EXPRESS CONSENT TO BE BOUND TO A TREATY?

CAPACITY
Article 6 Capacity of States to Conclude Treaties Every State possesses capacity to conclude treaties. 1. Permanent population 2. Defined territory 3. Government 4. Capacity to enter into relations with other states (independence) (1933 Montevideo Convention on Rights and Duties of States)

FULL POWERS
a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty;

MALACAANG MANILA

SPECIAL AUTHORITY WHEREAS, the Air Services Agreement between the Philippines and the Republic of Korea was signed on 22 July 1969;

WHEREAS, the last air consultation talks between the Republic of the Philippine and the Republic of Korea was held on 31 May 2007 in Davao City and this resulted in the signing of a Confidential Memorandum of Understanding;
WHEREAS, under Executive Order No. 28, s. 2011, the Philippine Air Consultation Panel chaired by the Department of Transportation and Communications (DOTC) shall be responsible for succeeding negotiations on air services agreements entered into by the Philippines; WHEREAS, Executive Order 29, s. 2011 authorized the Philippine Air Panels to pursue more aggressively the international civil aviation liberalization policy to promote the growth, development and viability of the Philippine aviation industry;

WHEREAS, due to the increase in traffic and number of Philippine airlines, there is a need to update and expand the existing air traffic rights between the Philippines and Republic of Korea to serve and meet the air transport requirements between them;
WHEREAS, the civil aviation authorities of the Republic of Korea have agreed to hold a new round of air consultation talks on 02-03 April 2012 in Seoul, South Korea;

NOW, THEREFORE, I, BENIGNO S. AQUINO III, President of the Republic of the Philippines, by virtue of the powers vested in me by the Constitution and laws of the Philippines hereby designate and authorize:
JOSE PERPETUO M. LOTILLA Undersecretary Department of Transportation and Communications Chairman, Philippine Air Consultation Panel to meet and confer with the person or persons duly authorized by the Government of the Republic of Korea, vested with like power and authority, and negotiate, conclude, sign, execute and deliver, in accordance with law, for and on behalf of the Republic of the Philippines, a Memorandum of Understanding on Air Services between the Republic of the Philippines and the Republic of Korea and any deed or other documents of whatever kind and nature, which may be necessary or proper for the purpose of executing or implementing the Memorandum of Understanding. Undersecretary Lotilla, as Chairperson of the Philippine Air Consultation Panel is hereby granted Full Powers and authority to do and perform every act and thing which may be requisite and necessary to be done for the accomplishment of the Special Authority herein granted as fully to all intents and purposes as I, the President of the Republic of the Philippines, might or could do if acting personally, hereby ratifying and confirming all that they shall lawfully do or could cause to be done by virtue of these presents. IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed.

WHO DOESNT NEED FULL POWERS?

In virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; (c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.

NEGOTIATIONS
BILATERAL REGIONAL MULTILATERAL

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

 Article 16 Exchange or Deposit of Instruments of Ratification, Acceptance, Approval or Accession Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon: (a) their exchange between the contracting States; (b) their deposit with the depositary; or (c) their notification to the contracting States or to the depositary, if so agreed.

ADOPTION AND AUTHENTICATION

Article 9 Adoption of the Text 1. The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2. 2. The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule. Article 10 Authentication of the Text The text of a treaty is established as authentic and definitive: (a) by such procedure as may be provided for in the text or agreed upon by the States participating in its drawing up; or (b) failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text.

OBLIGATIONS PRIOR TO ENTRY INTO FORCE

Article 18 Obligation Not to Defeat the Object and Purpose of A Treaty Prior to Its Entry into Force A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

RESERVATIONS
Article 19 Formulation of Reservations A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.

Article 20 Acceptance of and Objection to Reservations

1. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides. 2. When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties. 3. When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.

 unless the treaty otherwise provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.

 Article 21 Legal Elects of Reservations and of Objections to Reservations Article 22 Withdrawal of Reservations and of Objections to Reservations Article 23 Procedure Regarding Reservations

ENTRY INTO FORCE

WHEN DOES TREATY BECOME OPERATIVE? in such manner and upon such date as it may provide or as the negotiating States may agree. as soon as consent to be bound by the treaty has been established for all the negotiating States.

Provisional Application
1. A treaty or a part of a treaty is applied provisionally pending its entry into force if: (a) the treaty itself so provides; or (b) the negotiating States have in some other manner so agreed.

OBSERVANCE OF TREATIES
Article 26 Pacta Sunt Servanda Every treaty in force is binding upon the parties to it and must be performed by them in good faith. Article 27 Internal Law and Observance of Treaties A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.

APPLICATION OF TREATIES
Article 28 Non-Retroactivity of Treaties Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party. Article 29 Territorial Scope of Treaties Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory. Article 30 Application of Successive Treaties Relating to the Same Subject Matter

INTERPRETATION OF TREATIES
Article 31 General Rule of Interpretation 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 the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.

Supplementary Means of Interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

TREATIES AND THIRD STATES

Article 38 Rules in A Treaty becoming Binding on Third States through International Custom Nothing X X X precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such.

INVALIDITY, TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES

Article 46 Provisions of Internal Law Regarding Competence to Conclude Treaties 1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

GROUNDS
ERROR FRAUD CORRUPTION OF REPRESENTATIVE OF STATE COERCION OF A REPRESENTATIVE COERCION OF A STATE BY THREAT OR USE OF FORCE

 Article 53 Treaties Conflicting with A Peremptory Norm of General International Law (Jus Cogens) A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

TERMINATION AND SUSPENSION

under Its Provisions or by Consent of the Parties Reduction of the Parties to A Multilateral Treaty below the Number Necessary for Its Entry into Force Treaty Implied by Conclusion of A Later Treaty Material breach
(a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.

 Supervening Impossibility of Performance permanent disappearance or destruction of an object indispensable for the execution of the treaty. Fundamental Change of Circumstances occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties

 Severance of Diplomatic or Consular Relations Article 64 Emergence of A New Peremptory Norm of General International Law (Jus Cogens) If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

PHILIPPINE PRACTICE
Who has the power to enter into treaties? What is constitutional/legal basis? Role of Legislative Department? Role of Judicial Department?

EXECUTIVE
Article VII, Section 1. The executive power shall be vested in the President of the Philippines.
Treaty making power is part of the foreign relations power of the President

EXECUTIVE
As regards the power to enter into treaties or international agreements, the Constitution vests the same in the President, subject only to the concurrence of at least two-thirds vote of all the members of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.[53] Consequently, the acts or judgment calls of the President involving the VFA-specifically the acts of ratification and entering into a treaty and those necessary or incidental to the exercise of such principal acts - squarely fall within the sphere of his constitutional powers and thus, may not be validly struck down, much less calibrated by this Court, in the absence of clear showing of grave abuse of power or discretion.

LEGISLATIVE
ART VII, Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

LEGISLATIVE
As to the power to concur with treaties, the constitution lodges the same with the Senate alone. . For the role of the Senate in relation to treaties is essentially legislative in character; the Senate, as an independent body possessed of its own erudite mind, has the prerogative to either accept or reject the proposed agreement, and whatever action it takes in the exercise of its wide latitude of discretion, pertains to the wisdom rather than the legality of the act. In this sense, the Senate partakes a principal, yet delicate, role in keeping the principles of separation of powers and of checks and balances alive and vigilantly ensures that these cherished rudiments remain true to their form in a democratic government such as ours. The Constitution thus animates, through this treaty-concurring power of the Senate, a healthy system of checks and balances indispensable toward our nations pursuit of political maturity and growth. True enough, rudimentary is the principle that matters pertaining to the wisdom of a legislative act are beyond the ambit and province of the courts to inquire.

JUDICIAL
ART VIII, Section 5. The Supreme Court shall have the following powers: 1. XXX 2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
A. All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

JUDICIAL
For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope of judicial inquiry into areas normally left to the political departments to decide, such as those relating to national security, it has not altogether done away with political questions such as those which arise in the field of foreign relations.[54] The High Tribunals function, as sanctioned by Article VIII, Section 1, is merely (to) check whether or not the governmental branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a showing (of) grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its corrective powerIt has no power to look into what it thinks is apparent error.[55]

PH TREATY MAKING PRACTICE

EXECUTIVE ORDER 459, s. 1997
PROVIDING FOR THE GUIDELINES IN THE NEGOTIATION OF INTERNATIONAL AGREEMENTS AND ITS [sic] RATIFICATION

WHEREAS, Executive Order No. 292, otherwise known as the Administrative Code of 1987, provides that the Department of Foreign Affairs shall be the lead agency that shall advise and assist the President in planning, organizing, directing, coordinating and evaluating the total national effort in the field of foreign relations; WHEREAS, Executive Order No. 292 further provides that the Department of Foreign Affairs shall negotiate treaties and other agreements pursuant to the instructions of the President, and in coordination with other government agencies;

TREATIES VS EXECUTIVE AGREEMENTS

International agreement shall refer to a contract or understanding, regardless of nomenclature, entered into between the Philippines and another government in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments. Treaties international agreements entered into by the Philippines which require legislative concurrence after executive ratification. This term may include compacts like conventions, declarations, covenants and acts. Executive Agreements similar to treaties except that they do not require legislative concurrence.

TREATIES VS EXEC AGMTS

Political issues Changes in national policy Permanent character Vs Adjustment of detail Carrying out well-established national policies Temporary nature
(USAFFE VETERANS ASSOC vs TREASURER OF PHIL, 105 PHIL 1030)

executive agreements
Thus, in 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.[38] International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations.[39] In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading,[40] we had occasion to pronounce: x x x the right of the Executive to enter into binding agreements without the necessity of subsequent congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, mostfavored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts. (Bayan vs Zamora)

Executive agreements vs commercial contracts

China National vs Santamaria In Bayan Muna v. Romulo, this Court held that an executive agreement is similar to a treaty, except that the former (a) does not require legislative concurrence; (b) is usually less formal; and (c) deals with a narrower range of subject matters.[50] Despite these differences, to be considered an executive agreement, the following three requisites provided under the Vienna Convention must nevertheless concur: (a) the agreement must be between states; (b) it must be written; and (c) it must governed by international law. The first and the third requisites do not obtain in the case at bar.

NEGOTIATION Review draft agreements Provide legal assistance in inter-office & inter-agency meetings Provide legal assistance in actual negotiations, if necessary (air services) and/or requested

RATIFICATION Determine nature of agreement Prepare ratification or accession papers of agreement

Forward ratification or accession papers to the Office of the President

CONCURRENCE Prepare backgrounder and DFA position paper of agreement in cooperation with geographic/policy office Appear before Senate hearings on concurrence of agreement

NOTIFICATION and DEPOSIT Notify DFA offices, agencies, & other contracting state of ratification and/or entry into force of agreement Deposit original Intsrument of Ratification of bilateral agreement with FSI Library and retain copy Request Post to deposit original Instrument of Ratification/Accession in appropriate depositary

CASE SAMPLE

THE PH-US VISITING FORCES AGREEMENT (VFA)