Professional Documents
Culture Documents
Ex.Heads of State & Government and Ministers for Reservation requires acceptance by all the parties
Foreign Affairs; heads of diplomatic if the number of party States to the treaty are limited
missions;representatives accredited by States to an and the acceptance of the treaty as a whole is
internationalconference or an international essential to the purpose of the treaty.
organization.
If the treaty is integral for an international
Authentication of text: When documents are organization, a reservation requires the acceptance of
signed, they are deemed authenticated, making the the organization.
text authoritative and definitive .In cases of dispute,
basis for resolution is the authenticated document. Reservation is deemed to be accepted if others
failed to raise anyobjections within one year after
Consent to be bound: The most important step notification of the reservation or after it expressed its
through which a document becomes binding as consent to be bound, whichever is later.
international law. There are various ways by which
consent to be bound is expressed. Reservations may be withdrawn at any time and
consent of the other State is not required for its
Ex.Through signature, exchange of withdrawal. Likewise, objections to reservations may
instrumentsconstituting a treaty, acceptance, be withdrawn at any time. Withdrawal becomes
approval, accession, or any other means agreed upon. operative in relation to another contracting State only
when notice has been received by other contracting
Ratification: Manner of ratification differs from states.
state to state. In the Philippines, it is done via
concurrence of two-thirds of all the members of the Form: Reservation must be in writing and
Senate (Sec. 21, Art. VII, 1987 Constitution.) Bythis, communicated to contracting States and other states
a state is required not to engage in acts which can entitled to become parties. Express acceptance of a
defeat thepurpose of the treaty. reservation by other states does not require
confirmation in itself. Withdrawal of a reservation or
Notification, Exchange and Deposit of of an objection thereto must be in writing.
Ratification: Unless the treaty provides otherwise,
Reservation in bilateral treaties is considered a If there are ambiguities, supplementary sources
rejection of the treaty. Reservations, then, are only may be used; incase of conflicts, language that is
applicable to multilateral ltreaties. agreed upon by the parties shall prevail.
The Philippines and the 1982 Law of the Sea: Air France v. Saks
The Philippinesmade a reservation conditioning its (US): WON an air carrier is liable for a passengers
acceptance of the 1982 Law of the Sea on the injuries due to the dropping of air pressure which
Philippine claim in the 1987 Constitution on occurred while the plane was in the process of
internalwaters between islands, irrespective of landing, causing the passenger to become deaf in one
breadth. USSR filed aformal protest but FJB says that ear. Despite the Warsaw Convention making the
the reservation is unnecessarybecause the new rule airline liable for injuries sustained by passengers on
only applies to waters not previouslyconsidered as the account of any accident occurring onboard the
internal waters. aircraft or in the course of any of its operations while
embarking/disembarking, the court found that the
Reservations in human rights treaties:No injuries were a result of a usual and expected event
reservations can bemade for Human Rights treaties. (the dropping of air pressure), which was not within
the meaning of the word accident in Article 17.
Entry into force of treaties:Enter into force on the
date agreed upon by theparties. Where no date is Invalidity of treaties:Error of fact, fraud,
indicated, once consent has been given.Multilateral corruption, duress
treaties come into force once the required number of
partiesconsent or accept the treaty. They may also be Error:Mistake in a factual antecedent essential to
applied provisionally. the Stateentering into the treaty in the first place;
does not apply if there wasprior notice or the State
Application of treaties: head contributed to the mistake.
The first fundamental rule on treaties is pacta sunt Fraud:Fraudulent behavior is involved in inducing
servanda,ensuring that every treaty in force is binding another to enter into a treaty with the State.
upon the parties to itand must be performed by them
in good faith. (Article 26 of theConvention)
Corruption:Consent is procured through either
The second fundamental rule is that a party may
direct or indirectcorruption of its representative.
not invoke theprovisions of its internal law as
justification for its failure to performa treaty. (Article
Duress:There is duress by procuring consent
46 of the Convention)
through the coercionof another States representative
Thirdregarding the territorial scope of its
or acquiring another Statesconsent through threat or
applicability: Unless adifferent intention appears
use of force in violation of the principlesof
from the treaty or is otherwiseestablished, a treaty or
international law.
is otherwise established, a treaty is bindingupon each
party in respect of its entire territory. (Article 29 of
theConvention) Jus cogens:A peremptory norm of international
law from which noderogation is permitted; any treaty
Interpretation of treaties:Article 31 combines which violates jus cogens is deemed void.
various approaches to treatyinterpretation
Loss of right to assert the invalidity of a
Objective approach: interpretation according to the treaty:A state loses the right toprotest a treatys
ordinary meaning of the words validity when, after knowing all of the facts,
expresslyagreed to its validity or continues to keep it
in force/in operation.
Teleological approach: interpretation according to
the telos or thepurpose of the treaty
Municipal law as a ground to invalidate a
treaty:Generally, a state cannotuse municipal law as
Subjective approach: honors the special meaning
a ground to invalidate a treaty unless there is a
given by the parties
manifestviolation.
Amendment of treaties:A formal revision done Change of government does not terminate a treaty.
with the participation (at thevery least in its initial
stage) by all the parties to the treaty. Other modes of terminating a treaty:Material
breach, impossible performance,rebus sic stantibus
A treaty may be amended by agreement of the
parties. The procedure to be followed is the same as Material breach:The treatys terms are breached.
formationit is much more difficult as to
multilateral treaties than bilateral treaties because it is Bilateral:Innocent party may invoke the breach of
difficult to obtain the consent of all the parties in the other partyas a ground to terminate or suspend the
multilateral ltreaties. operation, in whole or inpart.
Article 40: Applies for amendments which will Multilateral:Breach of the treaty entitles the other
affect only some consider the proposed parties (byunanimous agreement) to suspend the
amendments. operation of the treaty, inwhole or in part, either
between themselves and the defaultingState or as
Notice of the proposal to amend must be given to all between all of the parties, or to ask for the
contracting parties, because they all have the right to: terminationof the treaty
a.)the decision as to the action to be taken; b.)
thenegotiation and conclusion of any agreement for A party specially affected by the breach may invoke
theamendment. it asa ground for suspending the operation of the
treaty, or suspend the relations between itself and the
Every original contracting party-State is also entitled defaultingState.
tobecome a party to the amended treaty. Also,
theamended treaty does not bind those who do not Any other party may invoke breach as a ground
give their consent to it. A State that becomes a party tosuspend the operation of the treaty in whole or in
to the treatyafter the amendment shall (unless it is partwith respect to itself if it is of such a character
expresseddifferently) be considered as a party to the that amaterial breach by one radically changes the
treaty asamended and a party to the original treaty in position of all the other parties with respect to further
relation tothose who did consent to the amended performance.
treaty.
Examples of breach:Unsanctioned repudiation of
Modification:A formal revision that involves only atreaty, violation of a provision essential to
some of the parties. theaccomplishment of the purpose of the treaty.
Article 41: Allows for modification by two or more Note:The ground of material breach cannot apply
of the parties. toprovisions relating to the protection of the
human personcontained in humanitarian treaties.
Two or more parties in a multilateral treaty may
modifythe treaty as between themselves if the treaty Namibia Case
providesthat it may be modified or it does not (ICJ): The case is an advisory opinion on the
prohibitmodification. The lack of prohibition must legalconsequences of a breach of a resolution sought
also indicatethat it must not affect the enjoyment of by the SecurityCouncil after it had ruled that South
rights under thetreaty by other parties, or it must not Africas extended stay inNamibia was illegal. Ruling:
relate to a provision,derogation from which is The ICJ held that the two forms of material breach
incompatible with the effectiveexecution of the had occurred in this case (unsanctionedrepudiation
objective of the treaty. and violation of a treaty provision.) South Africa
wasunder an obligation to withdraw from Namibia, Ruling: The court ruled that the fundamental
and other Stateswere under no obligation to recognize changebeing pushed by Iceland (increased
any acts by South Africanadministration from exploitation of fisheryresources because of the
Namibia. increased catching capacitiesof fishing fleets) cannot
be said to have transformed theextent of the
Supervening impossibility of performance:It has jurisdictional obligation imposed in theagreement
become impossible to fulfillthe treaty because of the with the UK.
disappearance or destruction of an
objectindispensable for the execution of the treaty. If Exceptions:Fundamental change in circumstances
the impossibility is temporary,it may only be cause to cannot beinvoked as a ground for termination or
suspend. It cannot be invoked if the impossibility is withdrawal when the treatyestablishes a boundary, or
aresult of a breach by the party claiming the ground. if it is a result of a breach by the partyinvoking it.
Rebus sic stantibus (Fundamental change in The proposal may be revoked any time before it
circumstance):There is afundamental change in the takes effect.
circumstances, unforeseen by the parties, fromthose
at the conclusion of the treaty. Authority to terminate:
This may not be invoked as a ground for Vienna Convention does not enumerate those
terminating a treaty unlessthose circumstances were whohave the capacity to terminate treaties; however,
an essential basis of the consent of theparties to be it is logical that those withthe authority to enter into
bound to the treaty, and the effect of the treaties also have the authority to terminate them.
changetransforms the extent of obligations still to be
performed under thetreaty. Can the President unilaterally terminate a
Rebus sic stantibus may also be invoked to suspend treaty?
a treatysoperations. However, the modern approach In US jurisdiction(Goldwater v. Carter), the question
to its invocation isrestrictive (Fisheries Jurisdiction was raised but not resolvedbecause the case was not
case)the changes must haveincreased the burden of yet ripe for adjudication.
the obligations to be executed to the extentof
rendering performance something essentially Succession to treaties:
different from theoriginal intention. In the case of a brand new state (one state ceases
toexist and is succeeded by another occupying the
Fisheries Jurisdiction(ICJ):WON the proposed same territory), the ViennaConvention on the
extensionof Icelands exclusive fisheries jurisdiction Succession of States with Respect to Treaties
from 12 milesto 50 miles was a breach of an concludedthat the clean slate rule is applied, and a
agreement between theState and UK, on Icelands newly independent state is notbound to maintain
argument that the agreementwas no longer binding treaties entered into by the previous state. If they
because of rebus sic stantibus. choose,however, they may agree to be bound by the
treaties of its predecessor.
If an international court is called to decide a case
Exception:Treaties affecting boundary regimes. based onmunicipal and not international law, they
They areconsidered as attached to the territory, not to must apply it as it wouldbe applied in the country
the State. where it is from.