Law 111 Public International Law

Atty. GILBERT R. HUFANA

Professor

The Law on Treaties

Parameters in the Formulation of Foreign Policy

1. Article II, Section 2. The Philippine renounces war as an instrument of national policy 2. Article II, Section 7. The State shall pursue an independent foreign policy. In its relations with other states 3. President Chief Architect of Foreign Policy and his secretary of foreign affairs

Parameters in the Formulation of Foreign Policy

Article VII, Section 21. No treaty or international agreement shall be valid and effective The ruling of the Supreme Court in Commissioner of Customs vs. Eastern Sea Trading Executive Order No. 459, series of 1997, which sets the guidelines in the negotiation, conclusion and ratification of international agreements.

What is a treaty?
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
Article 2(1), Vienna Convention on the Law of Treaties (VCLT)

Synonymous Terms
There are many other terms used for a treaty or international agreement, some of which are:
act, protocol, agreement, compromis d' arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus vivendi.

Elements
1. International agreement an agreement has to have an international character 2. Concluded between states a treaty is between states, governments or their agencies or instrumentalities acting on behalf of states
Concluded by head of states or governments, their ministers or other state agencies

Elements
3. In written form 4. Governed by international law intent to create obligations under international law 5. Whether embodied in a single instrument or in two or more related instruments

2 Kinds of Treaties
traites-lois
law making treaties

traits-contrats
contract treaties

1969 Convention on the Law of Treaties

Adopted by the Conference of the Law of Treaties (Vienna Convention). It was adopted on 22 May 1969 and opened for signature on 23 May 1969. The Convention entered into force on 27 January 1980. ratified by 113 states as of January 2013 Some countries that have not ratified the Convention recognize it as a restatement of customary law and binding upon them as such.

1969 Convention on the Law of Treaties

The Convention codifies several bedrocks of contemporary international law. It defined a treaty as "an international agreement concluded between states in written form and governed by international law," as well as affirming that "every state possesses the capacity to conclude treaties." Most nations, whether they are party to it or not, recognize it as the preeminent "Treaty of Treaties"

Party to a Treaty
a State which has consented to be bound by the treaty and for which the treaty is in force (Article 2 (1)(g), VCLT) Rule: Only States may enter into treaties or international agreements. Agreements between State and individuals or entities other than States DO NOT come within the category of treaties. Exceptions: States may enter into treaties or international agreements with International Organizations & Belligerent States

4 Essential Validity
Capacity of parties Competence of particular organs concluding the treaty Reality of Consent Legality of Object

Capacity of Parties
Rule: Every state possesses the capacity to conclude treaties Article 6, VCLT President Chief Executive and head of state
has the power to conduct foreign relations chief architect of foreign policy he has the power to enter and make treaties sole spokesperson of the Government in foreign relations

Capacity of Parties
Exceptions:
When it limits itself; or When it is limited by some other international arrangements respecting some matters.

Competence of particular organs concluding the treaty

Rule: The municipal law of the State concerned shall determine what organ may conclude a treaty. As a rule, it is the Head of State who possesses the treatymaking power to be concurred in by the legislative branch.

Competence of particular organs concluding the treaty

Exceptions:
When it is in estoppel When it has performed acts validating or curing the defects in competence. When it has received benefits or has exercised its rights under the subject treaty without expressly reserving its non-liability or without interposing other valid reasons for receiving or exercising it.

Reality of Consent
Rule: The plenipotentiaries of States or the State itself must possess the capacity to consent which consent is given in a manner that is voluntary and free from fear, force, coercion, intimidation, or corruption. Exceptions:
Ratification, Estoppel, Prescription

Legality of Object
Rule: Immorality, illegality or impossibility of purpose or obligations makes a treaty null and void. e.g. a treaty by which a State agrees with another to appropriate a portion of the high seas.

Legality of Object
Exceptions: a)If the immorality, illegality or impossibility does not run counter to a universally recognized peremptory norm of international law but only against a remote and minor norm. b)If it does not contravene or depart from an absolute or imperative rule or prohibition of international law. e.g. jus dispositivum.

Binding Effects of a Treaty

As a rule, a treaty is binding only on the contracting parties, including not only the original signatories but also other states, which, although they may not have participated in the negotiation of the agreement, have been allowed by its terms to sign it later by a process known as accession. Non-parties are usually not bound under the maxim of pacta tertiis nec noceat nec prosunt.

Question
Question 1: May a third State who is non-signatory to a treaty be bound by that treaty? Question 2: If answer is in the affirmative, in what specific instances?

Answer
1. When a treaty is a mere formal expression of customary international law 2. Under Article 2 of its charter, the UN shall ensure that non-member States act in accordance with the principles of the Charter so far as may be necessary for the maintenance of international peace and security

Answercontinuation
3. The treaty itself may expressly extend its benefits to non-signatory states. 4. Parties to apparently unrelated treaties may also be linked by the most-favored nation clause.

Nature of International Agreements

Treaty/Memorandum of Agreement (MOA)
Creates legally binding rights and obligations on the parties Used when the agreement describes the specific responsibilities of, or actions to be undertaken by the parties

Memorandum of Understanding (MOU)

Non-legally binding instrument Used when the participants have agreed on general principles of cooperation, intended not to be enforceable by one participant against another Intention is to record mutual understandings as to how they will conduct themselves Used when dealing with sensitive defense & national security matters or to protect delicate information No international requirement to publish them Usually effective upon their signature

Intention is to bind each other to conduct agreed upon that failure to do so may give rise to certain obligations It may contain anything as long as it does not contradict jus cogens norms There is a need of publication May require other means for effectivity

Pacta Sunt Servanda (AGREEMENT MUST BE KEPT)

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
Means that treaties must be performed in good faith. One of the oldest and most fundamental rules of international law.

Thus, if a treaty creates legally binding obligations, then a breach of a treaty by one of its parties is a breach of international law

Pacta Sunt Servanda (AGREEMENT MUST BE KEPT)

A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties xxx A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken. (Tanada v. Angara, 272 SCRA 18)

Influences to ensure observance to PSS

national self-interest a sense of duty respect for promises solemnly given desire to avoid the obloquy attached to breach of contracts
Breach involves the obligation to make reparations. There is, however, no necessity to state this rule of reparation in the treaty itself because they are indispensable complement of failure to comply to ones obligations.

REBUS SIC STANTIBUS (RSS)

(THINGS REMAINING AS THEY ARE)
This doctrine involves the legal effect of change in conditions underlying the purposes of a treaty. Simply stated, the disappearance of the foundation upon which it rests. The key element of this doctrine is the vital change in the condition of the contracting parties that they could not have foreseen at the time the treaty was concluded.

Limitations to RSS
It applies only to treaties of indefinite duration; The vital change must have been unforeseen or unforeseeable and should have not been caused by the party invoking the doctrine. It must be invoked within reasonable time; and It cannot operate retroactively upon the provisions of a treaty already executed prior to the change in circumstances.

Interpretation of Treaties
a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose (Article 31, VCLT) Supplementary means of Interpretation
travaux prparatoires preparatory work (drafting history) circumstances of the treatys conclusion

Treaty in the Philippines

International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements. (Commissioner of Customs vs. Eastern Sea Trading (1961))

Treaty in the Philippines

As defined by Executive Order No. 459 (1997):
treaty is international agreements entered into by the Philippines which require legislative concurrence after executive ratification

Treaty vs Executive Agreement

The distinction between treaties and executive agreements has no bearing in the international law sphere both are covered by the term treaty. An executive agreement is not a treaty in so far as its ratification may not be required under the Constitution Foreign loans, grants and commercial contracts not within the realm of VCLT

What are those agreements which require legislative concurrence?

Agreement that comes in conflict with existing laws Those which may be in conflict with national policy and require a change in policy Agreements which would require the enactment of a law for its implementation Those which may contravene constitutional or national policies, ex. No imposition of death penalty or no establishment of foreign military bases, policy of freedom from nuclear weapons in Philippine territory

What are those agreements which require legislative concurrence?

Examples:
Treaties that provide tax exemptions only Congress may grant such exemption Those that grants privileges and immunities to individuals or international organizations
Exception: diplomatic immunities and those granted to UN agencies and international organizations which are by now norm

Those that provide direct allocation f funds Those that criminalize certain conduct only the legislature may pass penal legislation

Executive Agreements
Air services agreement Cultural agreement Defense cooperation agreement Mutual logistics support agreement Tourism cooperation agreement Investment promotion and protection agreement Labor promotion and protection agreement

Treaty-making Process, VCLT

VCLT, Article 11: Means of expressing consent to be bound by a treaty:
Treaties usually specify how states give consent Article 12: Signature can be a sign of consent
in processes with a signature and ratification, the signature demonstrates commitment and intent to ratify, but not necessarily consent to be bound

Treaty-making Process, VCLT

Article 14: ratification used to refer to an act by which a state demonstrates its consent to be bound by a treaty
may involve an exchange or deposit of instruments of ratification

Article 15: accession an act by which a state expresses its consent to be bound when it has not previously signed a treaty
sometimes treaties provide in their text that a treaty is open for signature until a certain date, after which parties may join the treaty by accession

Treaty-making process, PHL

In the Philippines, Executive Order No. 459 (1997) provides the guidelines in the negotiation of international agreements and their ratification.
Treaties & Executive Agreements shall be coordinated with & made only with the participation of the DFA - OLA

Treaty-making process, PHL

1 2 3 4 5 6 7 8

Issuance of Full Powers or Special Authority Negotiations Signing of the Agreement Ratification by the President

Concurrence by the Senate

Declaration or Reservation Notification after Ratification Entry into force

Issuance of Full Powers or Special Authority

Full Powers the authority granted by a head of state or Government to a delegation head enabling the latter to bind his country to the commitments made in the negotiations to be pursued negotiation of treaties & executive agreements shall be coordinated and made only with the participation of the DFA

Issuance of Full Powers or Special Authority

prior to negotiation, authorization should first be secured from the President through the Secretary of Foreign Affairs request for authorization should be in writing contains composition of Philippine delegation and range of positions taken by the delegation for agreements requiring the concurrence of the senate, authorization shall be in the form of Full Powers and formal instructions

Issuance of Full Powers or Special Authority

The following shall not be required Full powers or written authorization:
Secretary of Foreign Affairs Heads of Philippine diplomatic missions Representatives accredited by the Philippines to an international conference

Negotiations
Consultation with appropriate government agencies through inter-office/agency meetings Head of agency convenes members of the negotiating panel prior to negotiation to establish parameters of the negotiating positions No deviation from the agreed parameters without consultations with the members of the negotiating panel. Done through foreign ministers or through diplomatic conferences

Signing of the Agreement

Signing after the negotiators have finally decided on the terms of the treaty
Intended as a means of authenticating the instrument Symbolizing good faith of the parties It does not indicate final consent of the state where ratification is required Signed in accordance with alternat (A usage, among diplomats, of rotation in precedence among representatives of equal rank)

Ratification by the President

Power to ratify - President After signing, the DFA geographic office transmits to the OLA the original and/or certified true copy of the agreement OLA draft the memorandum for the President recommending the ratification of the signed agreement If it requires Senate concurrence, a draft letter-endorsement from the President to the Senate President is enclosed

Concurrence by the Senate

The Senate does not ratify a treaty, it concurs in the Presidents ratification The relevant DFA office coordinates with proponent/implementing agency in preparing the papers for perusal of the Senate Committee on Foreign Relations It undergoes 3 readings

Declaration or Reservation
Declaration
Unilateral declaration Clarify the meaning or scope attributed to the treaty or certain of its provisions.

Reservation
Unilateral statement Exclude or to modify the legal effect of certain provisions of the treaty in their application to that State

May be part of the negotiating parameters during negotiation

Notification after Ratification

OLA notifies concerned agencies of the date of the signature of the Instrument of Ratification as well as the date of Senate resolution OLA transmit a note verbale to the embassy of the other contracting states determines the date of entry into force If agreement requires deposit of original instrument , OLA transmit original instrument to concerned DFA geographic office which makes the deposit

Entry into force

An international agreement enters into force only upon compliance with domestic ratification requirements Provisional entry allowed only if it is shown that a pressing national interest will be upheld

Invalidity of Treaties
Grounds: error of fact, fraud corruption or duress A state can loose the right to assert the invalidity of a treaty
Remains to be bound expressly or through by conduct

A state may not plead its municipal law as a ground for invalidating a treaty that has been entered

Amendment/Modification of Treaties
Amendment
Formal revision done with the participation by all parties to the treaty

Modification
Involves only some of the parties

Art. 39, VCLT, treaty may be amended by agreement of the parties procedure is the same as treaty making process

Termination of Treaties
May be terminated/suspended:
according to the terms of the treaty consent of the parties Expiration of the period Achievement of the purpose Material breach Impossibility of performance Change in fundamental conditions (RSS)

Mere change of government or severance of diplomatic relations does not terminate or suspend a treaty

Succession to Treaties
1978 Convention on the Succession of States with respect to Treaties
Follows the clean slate rule
a newly independent state is not bound to maintain in force, or to become a party to, any treaty by reason only of the fact that at the date of the succession of States the treaty was in force in respect of the territory to which the succession of States relates It does not apply to treaties affecting boundary regimes

The Law on Treaties

END OF LECTURE