Upload
gilberthufana446877
View
223
Download
0
Embed Size (px)
Citation preview
7/27/2019 Lecture 03 Law on Treaties
1/55
The Law on
Treaties
Law 111 Public International Law
Atty. GILBERT R. HUFANAProfessor
7/27/2019 Lecture 03 Law on Treaties
2/55
Parameters in the Formulation
of Foreign Policy
1. Article II, Section 2. The Philippine
renounces war as an instrument of
national policy2. Article II, Section 7. The State shall
pursue an independent foreign policy. In
its relations with other states3. President Chief Architect of Foreign
Policy and his secretary of foreign affairs
7/27/2019 Lecture 03 Law on Treaties
3/55
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.
7/27/2019 Lecture 03 Law on Treaties
4/55
What is a treaty?
an international agreement concluded
between States in written form and
governed by international law, whetherembodied in a single instrument or in two
or more related instruments and whatever
its particular designation Article 2(1), Vienna Convention on the Law of
Treaties (VCLT)
7/27/2019 Lecture 03 Law on Treaties
5/55
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.
7/27/2019 Lecture 03 Law on Treaties
6/55
Elements
1. International agreement an agreement
has to have an international character
2. Concluded between states a treaty isbetween states, governments or their
agencies or instrumentalities acting on
behalf of states
Concluded by head of states or
governments, their ministers or other state
agencies
7/27/2019 Lecture 03 Law on Treaties
7/55
Elements
3. In written form
4. Governed by international law intent to
create obligations under international law5. Whether embodied in a single instrument
or in two or more related instruments
7/27/2019 Lecture 03 Law on Treaties
8/55
2 Kinds of Treaties
traites-lois
law making treaties
t rai ts-contrats
contract treaties
7/27/2019 Lecture 03 Law on Treaties
9/55
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.
7/27/2019 Lecture 03 Law on Treaties
10/55
1969 Convention on the Law of
Treaties
The Convention codifies several bedrocks of
contemporary international law.
It defined a treaty as "an internationalagreement concluded between states in
written form and governed by international
law," as well as affirming that "every state
possesses the capacity to conclude treaties."
Most nations, whether they are party to it or
not, recognize it as the preeminent "Treaty of
Treaties"
7/27/2019 Lecture 03 Law on Treaties
11/55
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
7/27/2019 Lecture 03 Law on Treaties
12/55
4 Essential Validity
Capacity of parties
Competence of particular organs
concluding the treaty Reality of Consent
Legality of Object
7/27/2019 Lecture 03 Law on Treaties
13/55
Capacity of Parties
Rule: Every state possesses the capacity
to conclude treaties Article 6, VCLT
President Chief Executive and head ofstate
has the power to conduct foreign relations
chief architect of foreign policy he has the power to enter and make treaties
sole spokesperson of the Government in
foreign relations
7/27/2019 Lecture 03 Law on Treaties
14/55
Capacity of Parties
Exceptions:
When it limits itself; or
When it is limited by some other internationalarrangements respecting some matters.
7/27/2019 Lecture 03 Law on Treaties
15/55
Competence of particular
organs concluding the treaty
Rule: The municipal law of the State
concerned shall determine what organ
may conclude a treaty. As a rule, it is theHead of State who possesses the treaty-
making power to be concurred in by the
legislative branch.
7/27/2019 Lecture 03 Law on Treaties
16/55
Competence of particular
organs concluding the treaty
Exceptions:
When it is in estoppel
When it has performed acts validating orcuring the defects in competence.
When it has received benefits or has
exercised its rights under the subject treaty
without expressly reserving its non-liability orwithout interposing other valid reasons for
receiving or exercising it.
7/27/2019 Lecture 03 Law on Treaties
17/55
Reality of Consent
Rule: The plenipotentiaries of States or
the State itself must possess the capacity
to consent which consent is given in amanner that is voluntary and free from
fear, force, coercion, intimidation, or
corruption.
Exceptions:
Ratification, Estoppel, Prescription
7/27/2019 Lecture 03 Law on Treaties
18/55
Legality of Object
Rule: Immorality, illegality or impossibility
of purpose or obligations makes a treaty
null and void. e.g. a treaty by which aState agrees with another to appropriate a
portion of the high seas.
7/27/2019 Lecture 03 Law on Treaties
19/55
Legality of Object
Exceptions:
a)If the immorality, illegality or impossibility
does not run counter to a universallyrecognized peremptory norm of international
lawbut only against a remote and minor
norm.
b)If it does not contravene or depart from anabsolute or imperative rule or prohibition of
international law. e.g.jus dispositivum.
7/27/2019 Lecture 03 Law on Treaties
20/55
Binding Effects of a Treaty
As a rule, a treaty is binding only on the
contracting parties, including not only the
original signatories but also other states,
which, although they may not have
participated in the negotiation of the
agreement, have been allowed by its terms to
sign it later by a process known as accession. Non-parties are usually not bound under the
maxim ofpacta tert i is nec noceat nec
prosunt.
7/27/2019 Lecture 03 Law on Treaties
21/55
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?
7/27/2019 Lecture 03 Law on Treaties
22/55
Answer
1. When a treaty is a mere formal
expression of customary international law
2. Under Article 2 of its charter, the UN shallensure that non-member States act in
accordance with the principles of the
Charter so far as may be necessary for
the maintenance of international peace
and security
7/27/2019 Lecture 03 Law on Treaties
23/55
Answercontinuation
3. The treaty itself may expressly extend its
benefits to non-signatory states.
4. Parties to apparently unrelated treatiesmay also be linked by the most-favored
nation clause.
7/27/2019 Lecture 03 Law on Treaties
24/55
Nature of International
AgreementsTreaty/Memorandum of
Agreement (MOA) Memorandum of Understanding(MOU)Creates legally binding rights andobligations on the parties Non-legally binding instrumentUsed when the agreement describes the
specific responsibilities of, or actions to beundertaken by the partiesUsed when the participants have agreed on
general principles of cooperation, intendednot to be enforceable by one participantagainst another
Intention is to bind each other to conductagreed upon that failure to do so may giverise to certain obligations
Intention is to record mutual understandingsas to how they will conduct themselves
It may contain anything as long as it doesnot contradictjus cogens norms Used when dealing with sensitive defense &national security matters or to protect
delicate informationThere is a need of publication No international requirement to publish
themMay require other means for effectivity Usually effective upon their signature
7/27/2019 Lecture 03 Law on Treaties
25/55
Pacta Sunt Servanda
(AGREEMENT MUST BE KEPT)
Every treaty in force is binding upon the
parties to it and must be performed by them
in good faith. Means that treaties must be performed in goodfaith. One of the oldest and most fundamental
rules of international law.
Thus, if a treaty creates legally bindingobligations, then a breach of a treaty by one
of its parties is a breach of international law
7/27/2019 Lecture 03 Law on Treaties
26/55
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)
7/27/2019 Lecture 03 Law on Treaties
27/55
Influences to ensure
observance to PSS
national self-interest
a sense of duty
respect for promises solemnly given desire to avoid the obloquy attached to
breach of contracts
Breach involves the obligation to make reparations.There is, however, no necessity to state this rule of
reparation in the treaty itself because they are
indispensable complementof failure to comply to
ones obligations.
7/27/2019 Lecture 03 Law on Treaties
28/55
REBUS SIC STANTIBUS (RSS)(THINGS REMAINING AS THEY ARE)
This doctrine involves the legal effect of
change in conditions underlying the
purposes of a treaty.
Simply stated, the disappearance of the
foundation upon which it rests.
The key element of this doctrine is the vitalchange in the condition of the contracting
parties that they could not have foreseen
at the time the treaty was concluded.
7/27/2019 Lecture 03 Law on Treaties
29/55
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.
7/27/2019 Lecture 03 Law on Treaties
30/55
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
7/27/2019 Lecture 03 Law on Treaties
31/55
Treaty in the Philippines
International agreements involving political
issues or changes of national policy and those
involving international arrangements of a
permanent character usually take the form oftreaties. But international agreements
embodying adjustments of detail carrying out
well-established national policies and traditions
and those involving arrangements of a more or
less temporary nature usually take the form of
executive agreements. (Commissioner of
Customs vs. Eastern Sea Trading (1961))
7/27/2019 Lecture 03 Law on Treaties
32/55
Treaty in the Philippines
As defined by Executive Order No. 459
(1997):
treaty is international agreements enteredinto by the Philippines which require
legislative concurrence after executive
ratification
7/27/2019 Lecture 03 Law on Treaties
33/55
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
7/27/2019 Lecture 03 Law on Treaties
34/55
What are those agreements which
require legislative concurrence?
Agreement that comes in conflict with existing
laws
Those which may be in conflict with national
policy and require a change in policy
Agreements which would require the enactment
of a law for its implementation
Those which may contravene constitutional ornational policies, ex. No imposition of death
penalty or no establishment of foreign military
bases, policy of freedom from nuclear weapons
in Philippine territory
7/27/2019 Lecture 03 Law on Treaties
35/55
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
7/27/2019 Lecture 03 Law on Treaties
36/55
Executive Agreements
Air services agreement
Cultural agreement
Defense cooperation agreement Mutual logistics support agreement
Tourism cooperation agreement
Investment promotion and protectionagreement
Labor promotion and protection agreement
7/27/2019 Lecture 03 Law on Treaties
37/55
Treaty-making Process, VCLT
VCLT, Article 11: Means of expressing
consent to be bound by a treaty:
Treaties usually specify how states giveconsent
Article 12: Signature can be a sign of
consent
in processes with a signature and ratification, thesignature demonstrates commitment and intent to
ratify, but not necessarily consent to be bound
7/27/2019 Lecture 03 Law on Treaties
38/55
Treaty-making Process, VCLT
Article 14: ratification used to refer to an
act by which a state demonstrates its consent
to be bound by a treaty
may involve an exchange or deposit of instrumentsof ratification
Article 15: accession an act by which a
state expresses its consent to be bound when
it has not previously signed a treaty
sometimes treaties provide in their text that a
treaty is open for signature until a certain date,
after which parties may join the treaty by accession
7/27/2019 Lecture 03 Law on Treaties
39/55
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
7/27/2019 Lecture 03 Law on Treaties
40/55
Treaty-making process, PHL
1 Issuance of Full Powers or Special Authority
2 Negotiations
3 Signing of the Agreement
4 Ratification by the President
5 Concurrence by the Senate
6 Declaration or Reservation
7 Notification after Ratification
8 Entry into force
I f F ll P
7/27/2019 Lecture 03 Law on Treaties
41/55
Issuance of Full Powers or
Special Authority
Full Powers the authority granted by a
head of state or Government to a delegation
head enabling the latter to bind his country to
the commitments made in the negotiations tobe pursued
negotiation of treaties & executive
agreements shall be coordinated and madeonly with the participation of the DFA
I f F ll P
7/27/2019 Lecture 03 Law on Treaties
42/55
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
I f F ll P
7/27/2019 Lecture 03 Law on Treaties
43/55
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
7/27/2019 Lecture 03 Law on Treaties
44/55
Negotiations
Consultation with appropriate government
agencies through inter-office/agency meetings
Head of agency convenes members of the
negotiating panel prior to negotiation to establishparameters of the negotiating positions
No deviation from the agreed parameters
without consultations with the members of thenegotiating panel.
Done through foreign ministers or through
diplomatic conferences
7/27/2019 Lecture 03 Law on Treaties
45/55
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)
7/27/2019 Lecture 03 Law on Treaties
46/55
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
7/27/2019 Lecture 03 Law on Treaties
47/55
Concurrence by the Senate
The Senate does not ratify a treaty, it
concurs in the Presidents ratification
The relevant DFA office coordinates withproponent/implementing agency in
preparing the papers for perusal of the
Senate Committee on Foreign Relations
It undergoes 3 readings
7/27/2019 Lecture 03 Law on Treaties
48/55
Declaration or Reservation
Declaration
Unilateral declaration
Clarify the meaning or scope attributed to the
treaty or certain of its provisions.
Reservation
Unilateral statement
Exclude or to modify the legal effect of certainprovisions of the treaty in their application to that
State
May be part of the negotiating parameters
during negotiation
7/27/2019 Lecture 03 Law on Treaties
49/55
Notification after Ratification
OLA notifies concerned agencies of the date of
the signature of the Instrument of Ratification as
well as the date of Senate resolution
OLA transmit a note verbale to the embassy ofthe other contracting states determines the
date of entry into force
If agreement requires deposit of originalinstrument , OLA transmit original instrument to
concerned DFA geographic office which makes
the deposit
7/27/2019 Lecture 03 Law on Treaties
50/55
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
7/27/2019 Lecture 03 Law on Treaties
51/55
Invalidity of Treaties
Grounds: error of fact, fraud corruption or
duress
A state can loose the right to assert theinvalidity of a treaty
Remains to be bound expressly or through by
conduct
A state may not plead its municipal law as
a ground for invalidating a treaty that has
been entered
Amendment/Modification of
7/27/2019 Lecture 03 Law on Treaties
52/55
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
7/27/2019 Lecture 03 Law on Treaties
53/55
Termination of Treaties
May be terminated/suspended:
according to the terms of the treaty
consent of the parties
Expiration of the period
Achievement of the purpose
Material breach
Impossibility of performance Change in fundamental conditions (RSS)
Mere change of government or severance of
diplomatic relations does not terminate or
sus end a treat
7/27/2019 Lecture 03 Law on Treaties
54/55
Succession to Treaties
1978 Convention on the Succession of
States with respect to Treaties
Follows the clean slate rule
a newly independent state is not bound to
maintain in force, or to become a party to, any
treaty by reason only of the fact that at the date of
the succession of States the treaty was in force in
respect of the territory to which the succession ofStates relates
It does not apply to treaties affecting boundary
regimes
7/27/2019 Lecture 03 Law on Treaties
55/55
END OF LECTURE
The Law on Treaties