THE LAW OF TREATIES

1969 Vienna Convention on the Law of Treaties

is a treaty concerning the international law on

treaties between states. was adopted on 22 May 1969 and opened for signature on 23 May 1969. entered into force on 27 January 1980. The VCLT has been ratified by 113 states as of 2013.

VIENNA CONVENTION
VIENNA CONVENTION & CUSTOMARY LAW 1. Treaties as agreements intended to have legal effect versus non-binding or political undertakings

2.

Vienna Convention (1969) viewed generally as codification of customary law rules Vienna Convention, however, covers only treaties between states in written form, thus leaving out unwritten treaties (recognized in customary law), treaties involving international organizations as parties (UN, etc.)

3.

Treaty defined
Article 2 par. 1 (a) of VCLT defines treaty as: 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

Treaties entered into by the Republic of the Philippines

Mutual Defense Treaty (U.S.-Philippines)

Visiting Forces Agreement

Treaty of General Relations and Protocol Extradition Treaties

How about the Treaty of Paris? Philippines is not a signatory but the treaty affected Philippines

Treaties
Generally in written form; others believe that even

an oral agreement can be binding. No particular form is prescribed as shown in Qatar vs. Bahrain wherein the exchange of notes was considered an international agreement. In its judgement of 1 July 1994, the Court concluded that the 1987 exchange of letters and the 1990 minutes were international agreements binding upon the parties. The Court found that the minutes were not only a simple record of negotiations, but enumerated commitments to which the parties had consented. They thus created rights and duties in international law for the parties.

Function of Treaties
Sources of international

Charter of international organization

Used to transfer territory Regulate commercial relations Settle disputes Protect human rights

Classification of Treaties
Multilateral Treaties open to all states; create

norms which are the basis for a general rule of law; either codification treaties or law-making treaties or both Bilateral Treaties in the nature of contractual agreements; sometimes called as contract treaties

The Making of Treaties

1. Negotiation
Originate from the foreign ministries done through foreign ministries larger multilateral treaties are negotiated in

diplomatic conferences like a legislative body

Powers to Negotiate
Article 7 of VCLT provides for the persons who have pwoers to negotiate. 1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: (a) he produces appropriate full powers; or (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers. 2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; (c) representatives accredited by States to an international conference or to an international organization or one of its organs,

2. Authentication of Text
Signatures serve as authentication of document

Articles 9 and 10 of VCLT provides for the

Adoption and Authentication of the text respectively

3. Consent to be Bound
The most important step which culminates in

making the document binding Articles 11 16 provide for the various ways by which consent to be bound is expressed. may be expressed by signature; exchange of instruments; ratification, acceptance, approval or accession, or by any other means if so agreed.

4. Reservations
Defined as a unilateral statement, however

phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. This makes treaties different from statutes where the latter must apply to all. Articles 19 to 23 of VCLT provide for the rules on reservations.

Reservations contd..
Reservations are meant only for multilateral

treaties because in bilateral reservation by one party means a rejection of the treaty. Must a reservation be consented to by all parties for it to be effective? The answer is a qualified no if the reservation is compatible with the object and purpose of the Convention. Philippines reservations on the Convention of the Law of the Sea- Archipleagic waters found in UNCLOS not compatible with Philippine Constitutions internal waters.

Entry into Force of Treaties

G.R. treaties enter into force on the date agreed

upon by the parties. No date- enters into force once consent has been given Multilateral treaties contain a provision which says how many states have to accept the treaty before it can come into force. Article 24 provides for the rules on entry into force.

Application of Treaties
Pacta Sunt Servanda- pacts must be kept

Article 26 provides that every treaty in force is

binding upon the parties to it and must be performed by them in good faith Article 46 provides for a fundamental rule where a party may not invoke the provisions of its internal rule as justification for its failure to perform a treaty. As to territorial scope- binding upon the entire territory unless otherwise provided

Interpretation of Treaties
Article 31 provides for the interpretation of

treaties in good faith Objective approach- accdng to the ordinary meaning of the word Teleological approach- according to the purpose of the treaty Subjective approach- honors special meaning given by the parties. Ambiguities- resort may be made to supplementary sources

CAPACITY
CAPACITY AND AUTHORITY TO CONCLUDE AGREEMENTS

1.

Remember one of four elements of being a state (constitutive vs declarative views)

Capacity being judged at state level (ie, non-self governing territory like a colony, also problems of federal states) Authorization being judged at level of individual representative, although less an issue in practical terms in todays world of instant communications

2.

3.

4.

Full powers (Vienna Convention art 2(1)(c))versus authority by virtue of position (Vienna Convention art 7; head of state, head of government, foreign minister conclusively presumed to be authorized)

PROCESS II
TREATY PROCESS (CONTD) 6. Reservations (for multilateral treaties)
a. Permissibility (is it inconsistent with basic object and purpose of the treaty) re Vienna Convention art 19
[Off the record]

b.

Acceptance (assuming permissibility, states can refuse reservation with effect of differentiated obligations as to different states under multilateral treaties re Vienna Convention art 20)) May be excluded specifically (i.e., package deal under LOS)
[Off the record] [Off the record]

c.

[Off the record]

GOOD FAITH
GOOD FAITH ISSUES

1.

Obligation not to defeat object of treaty between reservation and accession

[Off the record]

2.

Changed circumstances problem and when basic assumptions underlying treaty have changed sufficiently to justify releasing obligations
Pacta sunt servanda as including good faith

3.

INTERPRETATION
PROBLEMS OF TREATY INTERPRETATION 1. Unilateral party interpretations versus authentic interpretations of all concerned (reservation vs interpretation) Domestic interpretation problems (ie, legislative versus executive as under antiballistic missile treaty) Primary reliance on textual interpretation (art 31 Vienna Convention, versus interpretation of parties intent based on preparatory materials (art 32 Vienna Convention) (opposition to US legislative interpretation approaches) a. Objective or ordinary meaning of text approach b. Subjective or intention of the parties approach c. Teleological or treaty aims & objectives

2. 3.

REMEMBER, TREATIES NOW WITH REAL DOMESTIC LAW EFFECT LIKE NAFTA AGREEMENT FOLLOWS THESE RULES & NOT LEGISLATIVE INTERPRETATION RULES

AMENDMENT & MOD

PROBLEMS OF TREATY AMENDMENT VERSUS MODIFICATION Difference between amendment (Vienna art 40) and modification (Vienna art 41) lies in modification being a side agreement between parties concerning the treaty with no effect on 3-P treaty members, while amendment is circulated among all parties to treaty for comment. After the amendment is circulated and approved, it will normally be binding only upon those who are parties to the amendment (often called in practice a protocol, like the Montreal Protocol on Ozone Protection in a framework approach context)

TREATY VALIDITY
BASES FOR CHALLENGING TREATY VALIDITY 1. Municipal law non-compliance (manifest)(Vienna Convention art 46) 2. Error (art 48) 3. Fraud & corruption (art 49 & 50) 4. Coercion (art 51 & 52) 5. Jus cogens (art 53)

MUNI LAW
BASES FOR CHALLENGING TREATY VALIDITY (CONTD) Municipal law non-compliance (Vienna art 46)

Normal rule is that foreign states need not worry about municipal law, so requirement must be manifest and objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith.

ERROR
BASES FOR CHALLENGING TREATY VALIDITY (CONTD) Error (Vienna art 48)

[E]rror relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty.
In practice, error recognized mostly in territorial boundary context.

FRAUD
BASES FOR CHALLENGING TREATY VALIDITY (CONTD) Fraud and corruption (Vienna art 49 & 50) Basically, fraudulent inducement to conclude a treaty at State level plus bribery of other States negotiating representative

COERCION
BASES FOR CHALLENGING TREATY VALIDITY (CONTD) Coercion (Vienna art 51 & 52) Either at the level of individual representative negotiating, or at the State level if violation of UN Charter art 2(4), but political and economic coercion not enough at State level

JUS COGENS
BASES FOR CHALLENGING TREATY VALIDITY (CONTD) Jus cogens (Vienna art 53)

No derogation of preemptory norms, mostly genocide, slavery, use of unlawful force

[Off the record]

TERMINATION I
TERMINATION OF A TREATY

1.
2. 3. 4.

Provision or consent (Vienna Convention art 54)

Material breach (art 60) Supervening impossibility (art 61) Fundamental change of circumstances (art 62)
Off the record] [Off the record] [Off the record]

TERMINATION II
TERMINATION OF A TREATY (CONTD)

1. Termination normally of agreement as a whole (but can be selective as to parties (Vienna Convention art 57 & 58) 2. Prospective effect only, not disturbing (art 70)
[Off the record]

3. Suspension of a treaty is effective temporary termination with possibility springs back to life (art 57 & 58)

SUCCESSION
TREATY OBLIGATIONS AND STATE SUCCESSION 1. Vienna Convention specifically takes no position on succession (Vienna Convention art 73)

2.

1978 ILC Vienna Succession Treaty follows clean slate view, contentious, with US view that customary law broader
[Off the record] [Off the record]

3.

Consensus that border treaties enjoy succession