TREATIES The UNBut before again we dive into the main topic, let us first increase a little bit our understanding about the United Nation. Dean discuss the 2 important organs of the UN

1. GENERAL ASSEMBLY Composed of all the member-states. The GA may discuss any question or matter within the scope of the Charter or relating to the powers and functions of any other organ.

2. SECURITY COUNCIL Composition: 15 members:

a) 5 Permanent Members (China, France, UK, US, Russia)b) 10 non-permanent: elected for 2 year terms by the General Assembly.

Function: the maintenance of international peace and security.

3. SECRETARIAT - CHIEF ADMINISTRATIVE ORGAN OF THE UN

4. ECONOMIC AND SOCIAL COUNCIL - organ charged with promoting social progress and better standards of life in larger freedom

5. TRUSTEESHIP COUNCIL - organ charged with administration of Int'l Trusteeship System. for the supervision of Trust Territories placed under it by individual agreements with the States administering them.the Trust Territory of the Pacific Islands (Palau), administered by the United States - after it chose self-government in a 1993 plebiscite. Palau became independent in 1994, joining the United Nations as its 185th Member State.With no Territories left in its agenda, the Trusteeship System had completed its historic task.

6. INTERNATIONAL COURT OF JUSTICE - judicial organ of the UN.The jurisdiction of the International Court of Justice (ICJ) deals with contentious proceedings between States. On the other hand, the jurisdiction of the ICJ covers legal disputes which the States refer to it. This includes disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; and (d) the nature or extent of the reparation to be made for the breach of an international obligation. (Article 36, ICJ Statute)

International Criminal CourtNote that there is another court independent of the UN. This was created by a Treaty called the Rome Statute the treaty that established the International Criminal Court (ICC), which has the power to try and punish the “most serious violations of human rights in cases when international justice systems fail.”

As to subject matter jurisdiction (ratione materiae), the jurisdiction of the ICC is limited to the most serious crimes of concern to the international community as a whole, particularly: (a) the Crime of Genocide; (b) Crimes against Humanity; (c) War crimes; and (d) the Crime of Aggression.

As a court of last resort, it does not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine. The ICC differs from the UN International Court of Justice (ICJ), which has no jurisdiction over individuals accused of war crimes or crimes against humanity

TREATIES

DEFINITION

A 'treaty' is:(1) an international agreement

(2) concluded between States [China National Machinery & Equipment Corp. (Group) v. Sta. Maria, et al. (2012)

First, the Supreme Court said that CNMEG, the Chinese contractor, is neither a government nor a governmentagency, noting that Contract Agreement was not concluded between the Philippines and China, but between Northrail and CNMEG. Indeed, By the terms of the Contract Agreement, Northrail is a government-owned or -controlled corporation, while CNMEG is a corporation duly organized and created under the laws of the People’s Republic of China. Thus, both Northrail and CNMEG entered into the Contract Agreement as entities with personalities distinct and separate from the Philippine and Chinese governments, respectively.

(3) in written form and3. Q: If not in writing, is it still considered a treaty?SUGGESTED ANSWER: Yes. Oral agreements between States are recognized as treaties under customary international law (but are extremely rare nowadays).The verbal agreement by telephone is binding between the parties on the basis of customary international law. (In 1992 the dispute between Denmark and Finland about the construction of a bridge was settled by a telephone conversation between the Danish and Finnish Prime Ministers. In return for payment by Denmark, Finland agreed to discontinue the case filed. (Aust, Modern Treaty Law and Practice, p.7.))

B: Assuming the answer to (a.) is in affirmative, does that agreement constitute a Treaty under the 1969 Vienna Convention on the Law on Treaties? (2%) SUGGESTED ANSWER The verbal agreement does not constitute a treaty under the Vienna Convention on the Law of treaties. Article 3 requires that for an international agreement to be a treaty, it must be in written form.

(4) governed by international law,

(5) whether embodied in a single instrument or in two or more related instruments and

(6) whatever its particular designation [Art.2(1), Vienna Convention on the Law of Treaties or VCLOT]

Does it have to be named “Treaty”?Under the VCLOT, the term “treaty” includes all agreements between states, regardless of how they are called. Thus, for purposes of international law, treaties, executive agreements, exchanges of notes, etc. are all treaties.

TREATIES UNDER PHIL LAW.

Note, however, that Philippine law makes a distinction between treaties and executive agreements. Both are equally binding, but only treaties require the concurrence of the Senate to be effective.

What makes it different?Treaty Executive Agreements

Ratification Requires ratification by the 2/3 of the Senate to be valid and effective (Art. VII, Sec. 21)

Does not require concurrence by Senate to be binding

How can we determine that it should be deemed treaty or Executive Agreement? Subject Matter

(2) Political Issues Changes in national policy

(2) Adjusts details to carry out well-established national policies and traditions. Implements treaties, statutes, policies

(3) Involves international agreements of a permanent character (3) Temporary

Who determines whether an international agreement be considered a Treaty or Executive Agreement?

Pimentel v. Executive Secretary DigestG.R. No. 158088 July 6, 2005Petitioners filed a petition for mandamus 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 Philippinesfor its concurrence pursuant to Sec. 21, Art VII of the 1987 Constitution.

The Rome Statute established the Int'l Criminal Court which will have jurisdiction over the most serious crimes as genocide, crimes against humanity, war crimes and crimes of aggression as defined by the Statute.

Petitioners contend that ratification of a treaty, under both domestic and international law, is a function of the Senate, hence it is the duty of the Executive Department to transmit the signed copy to the senate to allow it to exercise its discretion.

RULINGThe President as the head of state is the sole organ and authorized in the external relations and he is also the country's sole representative with foreign nations, He is the mouthpiece with respect to the country's foreign affairs.

It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification.20 Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. 21 Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, 22 such decision is within the competence of the President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties. 23 The Court, therefore, cannot issue the 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 the Senate.

What if we have an international agreement wherein the Philippines adopts it as a treaty but the other contracting state only considers it as an executive agreement?

BAYAN VS ZAMORAPetitioners argued, inter alia, that the VFA violates §25, Article XVIII of the 1987 Constitution, which provides that “foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate . . . and recognized as a treaty by the other contracting State.”

This Court is of the firm view that the phrase "recognized as a treaty" means that the other contracting party accepts or acknowledges the agreement as a treaty.32 To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution,33 is to accord strict meaning to the phrase.

DOCTRINES

1) DOCTINE OF INCORPORATION - rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere.

a) Such is recognized in art. 2, sec. 2, as the Philippines "adopts the generally accepted principles of international law as part of the law of the land."

b) Rules of international law are given equal standing with, but are not superior to, national legislative enactments. Thus, the Constitution, as the highest law of the land, may invalidate a treaty in conflict with it.

[Secretary of Justice v. Hon. Lantion and Mark Jimenez, Jan. 18, 2000]

2) DOCTRINE OF TRANSFORMATION - the generally accepted rules of int'l law are not per se binding upon the State but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal law. Only when so transformed will they become binding upon the State as part of its municipal law.

ONE VERY important treaty is VCLOT

The definition in the Vienna Convention between States in 1980 delimited treaties as between states.

However, states may also enter into treaties with international organizations. The latter class of agreements are governed by another set of rules, the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. 1986

VCLOT

CAPACITY

PROCESS 1. Negotiation, Art 72. Adoption, Art 93. Authentication, Art 104. Expression of Consent

a. Signature, Art 12b. Exchange of instruments, Art 13.c. Ratification, Acceptance Approval, Art 14d. Accession, Art 15

*Reservation

ENRTY INTO FORCE, Art 24

APPLICATION*Pacta Sunt Servanda, Art 26*No invoking of internal law, Art 46*Application to entire territory, Art 29

INTERPRETATION, Art 311. Objective2. Teleological3. Subjective

*Supplementary Means, Art 32 and Art 33

INVALIDATION, Art 48-531. Error, Art 482. Fraud, Art 493. Corruption of Representatives of State, Art 504. Coercion of Representatives of State, Art 515. Coercion of Representatives of State by Threat or Use of Force, Art 526. Jus Cogens Violation, Art 55

*Loss of Right to assert to invalidate, Art 451. Express Agreement2. Conduct showing acquiescence

AMENDMENT, Art 40 MODIFICATION, Art 41

TERMINATION / SUSPENSION1. Expiration

2. Achievement of Purpose3. Material Breach, Art 604. Supervening Impossibility of Performance, Art 615. Rebus Sic Stantibus, Art 62

SUCCESSION – Clean Slate Rule