PIL REVIEWER BY DKGS

PUBLIC INTERNATIONAL LAW • The law on treaties executed between State is

TREATY contained in the 1969 Vienna Convention of Law of

Treaties (VCLT); entered into force in 1980
A. What is a treaty?
• The 1986 Vienna Convention on Treaties for
• A treaty is an international agreement concluded
International Organizations applies to treaties
between States, in written form and governed by
executed between States and International
international law, whether embodied in a single
Organizations.
instrument or in two or more instruments and
C. Form
whatever its particular designation.
• Under Art. 2 of VCLT, treaties should be in writing
• Other names: pact, convention1, protocol2,
HOWERVER under Art. 3 thereof, the fact that a
agreement, arrangement, accord, final act3, general
treaty is unwritten shall not affect its legal force;
act and exchange of notes4.
intent is necessary to establish its binding force.
• Usually reserved for those which contain
D. Registration
agreements involving matters such as peace,
• Under Art. 80 of VCLT, treaties, after their entry into
borders, extradition, friendship and commerce.
force, shall be transmitted to the Secretariat of the
• An executive agreement, within the context of
United Nations for registration and publication.
municipal law is not a treaty. But from international
• Art. 102 of UN Charter provides that treaty or an
law standpoint, it’s equally binding as a treaty.
international agreement entered into by any UN
B. What governs the law on treaties?

1 4
For multilateral agreements Record of routine agreement that has many similarities with the private
2
Subsidiary to a treaty law contract.
3
Records winding up conference proceedings
 PIL REVIEWER BY DKGS
member only comes into force once it is registered
with and published by the UN Secretariat.
• Registration does NOT affect the treaty’s validity; it
will only affect the remedy for its breach. The only
consequence of non-registration or late registration
is that it cannot be invoked before any organ of the
UN.
E. Requisites for Validity
• Every State possesses the capacity to conclude
treaties, as an attribute of sovereignty.
• International Organizations are deemed to possess
treaty-making capacity as well, albeit, it’s limited by
the purpose and constitution of such organizations.
• Generally, Heads of State exercises the treaty-
making power. RATIONALE: FULL POWER is
necessary to negotiate on behalf of a State.
• Section 21, Art. VII, In the Philippines, the President
exercises the power of treaty-making, subject to the
concurrence of 2/3 of all the members of the
Senate.
• E.O. 459: the following persons do not require a
separate grant of full powers prior to negotiating or
signing a treaty of executive agreement or any
amendment thereto:
a) Secretary of Foreign Affairs;
b) Heads of Diplomatic Missions (only insofar as
between the Philippines and the State to
which he is deployed to)
c) Accredited Philippine representative to an
international conference, international
organization and any of their organs (for the
purpose of adopting the text of an
agreement made therein)
• CONSENT – may be expressed by signature,
exchange of instruments constituting a treaty,
ratification, acceptance, approval or accession or by
any other means manifesting consent.
a) Where the consent of a party has been given
in error or induced through fraud = TREATY
IS VOIDABLE
 PIL REVIEWER BY DKGS

b) Where the consent is obtained through • Treaties (require Senate concurrence for validity)
corruption of its representative by another generally refer to basic political issues, changes in
negotiating State = former may invoke such national policy and permanent international
corruption to invalidate consent agreements.
c) DOCTRINE OF UNEQUAL TREATIES – treaties • Executive agreements (do not require concurrence
have been imposed through coercion or for validity) refer to adjustment of detail carrying
duress by a State of unequal character = out well-established national policies and
TREATY IS VOID temporary arrangements; May be Presidential or
d) Other vices of consent: signed by Congressional Executive agreement.
unauthorized representative • HOW TO DETERMINE WHETHER TREATY OR
• When State deals with and concludes a EXECUTIVE AGREEMENT? Under E.O. 459, the
treaty with a known unauthorized Department of Foreign Affairs shall be tasked with
representative, they are estopped from determination whether an agreement is a treaty or
invalidating such consent or treaty. an executive agreement.
e) DOMESTIC LAW IS NOT A SHIELD – Under G. Treaty-making process: the usual steps are:
Art. 27 of VCLT, a State may not invoke its negotiation, signature, ratification, and exchange of
own domestic laws in order to escape treaty instruments of ratification.
liabilities. UNLESS, there is a manifest a. NEGOTIATION
violation of an internal rule of fundamental
importance (Art. 47, VCLT).
F. Treaties v. Executive Agreements
 PIL REVIEWER BY DKGS
• Representatives are usually armed with credentials
known as full powers5, except in EO 459.
• Representative are: Head of State, Head of
Government, the Foreign Minister, Head of
diplomatic missions, representative accredited by
the State to an international organization or
conference.
b. SIGNING OF THE TREATY
• Alternat is observed – order of the naming of the
parties and of the signature of the plenipotentiary is
varied so that each party is named and its
plenipotentiary signs first in the copy of the
instrument to be kept by it.
• Adoption – when the States that took part in the
creation of instrument certify that have reached a
consensus to adopt the same.
• Authentication – comes after adoption; process of
certifying that the final copy of the document which
5 7
Document emanating from competent authority of a State.
6
Instrument was signed initially but the State is not completely bound
unless the signature is later ratified.
they are supposed to sign is the same as that which
agreed upon.
• Types of Signature: SIMPLE6 and DEFINITIVE7.
c. RATIFICATION
• Act by which the provisions of a treaty are formally
confirmed and approved by a State and by which the
State expresses its willingness to be bound by the
treaty.
• In the Philippines, the power to ratify is vested in the
President, subject to the concurrence of 2/3 of all
the members of the Senate.
H. Domestic requirements for Executive Agreements:
a) Submission to the Department of Foreign Affairs for
signing and preparation of ratification papers.
b) Transmission of the agreement by the Department
of Foreign Affairs to the President for ratification.
I. Domestic requirements for Treaties:
State is bound as soon as the instrument is signed, regardless of whether
it later ratifies the instrument or not.
 PIL REVIEWER BY DKGS

a) Compliance with the domestic requirements for 1. Expiration of the term or withdrawal of a party in
executive agreements. accordance with the treaty.
b) Submission by the Department of Foreign Affairs of 2. Extinction of one of the parties to the treaty, when
the signed instrument to the Senate for the rights and obligations under the treaty would
concurrence. not devolve upon the State that may success the
c) The return to the Department of Foreign Affairs of extinct State.
the instrument with the concurrence of the Senate 3. Mutual agreement of all the parties.
for appropriate action. 4. Denunciation of desistance by one of the parties.
J. Application (rules) 5. Supervening impossibility of performance.
a) Lex posterior; 6. Conclusion of a subsequent inconsistent treaty
b) Lex specialis; and between the parties.
c) UN Charter dominance – Obligation of UN members 7. Loss of the subject matter.
as found in the Charter shall prevail over their treaty 8. Material breach or violation of the treaty.
obligations in case of conflict. 9. The application of the doctrine of rebus sic
K. Amendment/Modification – Consent of all the parties stantibus8.
is required. If allowed by the treaty itself, two States 10. The outbreak of war between the parties, unless the
may modify a provision only insofar as they are treaty precisely relates to the conduct of the war.
concerned. 11. Severance of diplomatic relations.
L. Termination of Treaties 12. Doctrine of Jus Cogens.

8
When a vital of fundamental change or circumstances occur –
“disappearance of the foundation upon which it rests”