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Chapter 3 The Law of Treaties Treaties can assume various names o o o o o o o o Conventions Pacts Covenants Charters Protocols Concordat

t Modus Vivendi International agreement- generic term that is used

rights and obligations in international law for the parties. Further, the Court held that the intentions of the Foreign Ministers of Qatar and Bahrain are unnecessary. Having signed the 1990 Minutes, they cannot retract from their positions.

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2. Norway vs. Denmark oral declaration by the Norwegian Minister of accepting concessions offered by Denmark regarding Danish plans for Greenland are regarded by the Court as sufficient to bind the Norwegian government. Nuclear Test Cases: Australia vs. France , New Zealand vs. France The Court held as binding upon France the unilateral declarations made by the French Government that it would conduct no further nuclear test on the South Pacific after 1973. Two characteristics the Court found which convinced it that a binding obligation had been incurred First, the commitment was very specific and second, there was clear intent to be bound. Trade Act of 1974 between Europe and the USA the Court declared that the statements made by the US before the Dispute Settlement Body are binding upon it. The statements were regarded as a reflection of pre-existing official US policy, intended to express US understanding of its international obligations as incorporated in domestic US law. Functions of Treaties 1. 2. 3. 4. 5. 6. 7. Source of international law Charter of an international organization Used to transfer territory Regulate commercial relations Settle disputes Protect human rights Guarantee investments

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Multilateral treaties open to all states of the world; create norms which are basis for a general rule of law. They are either a. Codification treaties b. Law-making treaties c. Or both Treaties that create collaborative mechanisms. They can be a. Universal in scope b. Regional in scope Bilateral treaties they are in the nature of contractual agreements which create shared expectations; sometimes called contract treaties

Governing laws o o 1969 Vienna Convention on the Law of Treaties- govern treaties between states; entered into force in January 1980 Convention on the Law of Treaties Between States and International Organizations (1986)

Q: Can treaties acquire the status of a universal law the same as customary law? A: Yes, the number of contracting parties and the generality of the acceptance of specific rules created by the treaty can have the effect of creating a universal law Treaty-making Process NEGOTIATION Q: How is negotiation done? A: Through foreign ministries or diplomatic conferences in larger multilateral treaties. Q: What must be possessed by negotiators in order for them to enter into agreements that binds their State? A: They must possess powers to negotiate Q: What is the effect if treaties are entered into by one without proper authorization? A: They have no legal effect unless confirmed by the State. Q: When is a person considered as representing a State in treaty making? 1. If he produces appropriate full powers

Definition of Treaties Under the Vienna Convention, treaty is defined as an international agreement concluded between States in written form and governed by international law, whether embodies in a single instrument or in two or more related instruments and whatever particular designation. Vienna Convention only applies to international agreements which satisfy its definition. No particular form prescribed There are some writers who hold that oral agreements can be binding Qatar vs. Bahrain- The exchange of notes between two heads of state was considered an international agreement In this case, the ICJ held that the 1990 Minutes do not merely give an account of discussions and summarized points of agreements and disagreement but that they enumerate the commitments of which the Parties have consented, creating

Kinds of Treaties

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If it appears from practice of the States concerned that their intention was to consider such person as representing the State and dispense with full powers

2. Q: What is the difference between adoption and authentication of a text of a treaty? A: Adoption is the formal act by which the form and content of a proposed treaty text are established whereas authentication refers to the procedure whereby the text of a treaty is established as authentic and definitive. Once a treaty has been authenticated, states cannot unilaterally change its provisions. CONSENT TO BE BOUND Q: What are the means of expressing the States consent to be bound? A: Consent to be bound may be expressed by signature, exchange of instruments, ratification, acceptance, approval or accession or by any other means agreed upon. Q: When is consent to be bound expressed by signature? 1. 2. 3. When the treaty provides that such signature shall have that effect If it is established that the negotiating states agreed that such signature should have that effect If the intention of the State to give that effect to such signature appears from the full powes of its representative or expressed during negotiation

If it is established that participating States agreed that such exchange will have that effect

Q: When is consent to be bound expressed by ratification? 1. 2. 3. 4. When the treaty provides for such consent to be expressed by means of ratification When it is established that the negotiating State agreed that ratification should be required If the representative of the State has signed the treaty subject to ratification If the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during negotiation.

Q: Who may negotiate without having produce full powers? 1. Heads of State, Heads of Government and Ministers for Foreign Affairs- for conclusion of a treaty Heads of diplomatic missions for adopting the text of a treaty between the accrediting State and the State to which they are accredited Representatives accredited by States to an international conference or international organization or one of its organs- for adopting the text of a treaty in that conference, organization or organ

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Q: When is consent to be bound expressed by acceptance or approval? A: Under conditions similar to those which apply to ratification Q: How is ratification done in the Philippines? A: By concurrence of the Senate through 2/3 votes of its members (Art. VII Section 21, 1987 Constitution) Q: What follows after ratification, acceptance or approval or accession? 1. 2. 3. Exchange of instruments in bilateral treaties; or Deposit of instruments in multilateral treaties; or Notification to the contracting States or to the depositary

Q: What concludes negotiation? A: the signing of the document which serve as authentication of the document ADOPTION OF THE TEXT Q: How does adoption of the text of a treaty take place? 1. 2. By consent of all States participating In a text of a treaty at an international conference, it takes place by votes of 2/3 of the States present and voting unless they shall decide to apply a different rule

Q: When does the initialing of a text constitute signature of a treaty? 1. 2. If the negotiating States so agreed If the signature and referendum of a treaty by a representative, if confirmed by his State, constitutes a full signature of the treaty

AUTHENTICATION OF THE TEXT Q: How does it take place? 1. 2. By the procedure provided in the text or agreed upon by the States participating In the absence of such procedure, by signature, signature ad referendum or initialing by the representatives of those States or by Final Act of a conference incorporating the text

Q: When is consent to be bound by a part of a treaty permitted? 1. 2. If the treaty so permits If the other contracting States agree

Q: When is consent to be bound expressed by exchange of instruments constituting a treaty? 1. When the instruments provide that their exchange shall have that effect

Q: When is consent to be bound by a treaty which permits a choice between differing provisions effective?

A: It is effective only if it is made clear to which of the provisions the consent relates. ACCESSION TO A TREATY Q: May States which did not participate in the initial negotiation allowed to express their consent to the treaty? A: Yes.

Q: When may reservations be formulated? A: During the signing, ratifying, accepting, approving or acceding to a treaty. Q: When are States not allowed to formulate reservations? 1. 2. If the making of reservation is prohibited by the treaty; or If the treaty provides that only specified reservation may be made which do not include the reservation in question; or If the reservation is incompatible with the object and purpose of the treaty

Q: How does acceptance of a reservation affect the relations of the reserving State and the accepting State? A: It constitutes the reserving State a party to the treaty in relation to the accepting State if or when the treaty is in force for those States. Q: How does objection to a reservation affect the relations of the reserving State and the objecting State? A: It does not preclude the entry into force of the treaty between the objecting and reserving States unless a contrary intention to the entry into force of such treaty is expressed by the objecting State. Legal effects of reservations and objections

Q: How? A: By accession Q: When is consent to be bound expressed by accession? 1. 2. 3. When the treaty provides that such consent may be express by accession; or If the negotiating States agreed that such consent may be expressed by accession; or All the parties subsequently agreed that such consent may be expressed by means of accession. 3.

Q: When is acceptance of the other contracting States of a reservation not required? A: When the reservation is expressly authorized by the treaty Q: When does reservation require the acceptance by all state parties? 1. When it appears from the limited number of the negotiating States and the object and purpose of the treaty that the application of the treaty in its entirety between all the parties is an essential to the consent of each one to be bound by the treaty. When the treaty is a constituent instrument of an international organization, a reservation requires acceptance of the competent organ of that organization unless otherwise provided.

State which accepted the reservation Opposed the entry into force of the treaty Did not oppose to the entry into force of the treaty

State which objected to the reservation

RESERVATIONS Q: What are reservations to a treaty? A: Reservations are unilateral statements, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State (Art. 2, Vienna Convention) Q: What is the difference between reservation and interpretative declaration? A: Reservation is a declaration made by a state by which it purports to exclude or alter the legal effect of certain provisions of the treaty in their application to the reserving State while interpretative declaration are not meant to be a derogation of the treaty but only as an expression of how a state understands its adoption of the treaty.

Not a contracting party

State which neither accepted nor objected to the reservation Not a contracting party

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Modified form of the treaty with reservation will apply

Treaty in its original form will apply

Treaty in its original form will apply

Q: When is reservation considered to have been accepted by a State? A: If it shall have raised no objection to the reservation by the end of the 12 month period after it was notified of such reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.

Q: When can a reservation be withdrawn? A: At any time unless the treaty otherwise provides Q: Is consent of a State which accepted the reservation required for its withdrawal? A: No Q: When can an objection to a reservation be withdrawn? A: At any time unless the treaty otherwise provides Q: When does withdrawal of a reservation become operative? A: When notice of it has been received by the other contracting State unless the treaty otherwise provides or it is otherwise agreed Q: When does withdrawal of an objection to a reservation become operative? A: When notice of it has been received by the reserving State unless the treaty otherwise provides or it is otherwise agreed Q: What is the procedure for formulating reservations? 1. 2. It must be in writing It must be communicated to the contracting States and other States entitled to become parties to the treaty It must be formally confirmed by the reserving state when expressing its consent to be bound Withdrawal of a reservation must be made in writing

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It must be communicated to the contracting States and other States entitled to become parties to the treaty An acceptance prior confirmation of the reservation does not itself require confirmation

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3. Q: What is the procedure for formulating an objection to a reservation? 1. 2. A: It must be in writing It must be communicated to the contracting States and other States entitled to become parties to the treaty An objection prior confirmation of the reservation does not itself require confirmation Withdrawal of an objection to a reservation must likewise be made in writing

On the date agreed upon by the parties. If not date is indicated, it enters into force once consent has been given. (In the case of multilateral treaties, they generally contain a provision of how many states have to accept before the treaty can come into force). If the consent to be bound is established after the treaty has come into force (as when a date is indicated), the treaty enters into force for that State on the date indicated unless the treaty otherwise provide.

Q: May a treaty or part of a treaty be applied provisionally pending its entry into force? A: Yes if 1. 2. The treaty itself so provides The negotiating States have agreed

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Effect of reservations 1. In bilateral treaties a reservation by one party means a rejection of the treaty and necessitates re-negotiation In multilateral treaties a proliferation of reservations can very well defeat the purpose of the treaty

Q: How may this provisional application be terminated? A: If the State notifies the other States of which the treaty is being applied provisionally of its intention not to become a party thereto. Application of Treaties Article 26 (Principle of Pacta Sunt Servanda)- Every treaty in force is binding upon the parties to it and must be performed by them in good faith. Article 46 A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty, Article 29 (territorial scope/applicability) Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect to its entire territory. INTERPRETATION OF TREATIES (Art. 31) Objective approach

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Q: Must a reservation be consented to by all parties to be effective? A: No. A state which has made a reservation objected by other parties but not by others, can be regarded as a party to the treaty as long as the reservation is compatible with the object and purpose of the treaty. The compatibility could be decided by states individually such that a party who objects to the reservation which considers it incompatible with the object and purpose of the treaty may treat the reserving state not a party to such treaty. ENTRY INTO FORCE

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Q: What is the procedure for accepting a reservation? 1. Acceptance must be express and be formulated in writing

The treaty shall be Q: When does a treaty enter into force? 1. Interpreted in good faith

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In accordance with the ordinary meaning given to the terms of the treaty in its context In light of its object and purpose

Supplementary sources may be resorted only when the interpretation according to Art. 31 1. 2. Leaves the meaning ambiguous or obscure Leads to a result which is manifestly absurd or unreasonable

Q: When is error of fact not a ground for invalidating a treaty? 1. 2. 3. If the State invoking it contributed by its own conduct to the error; or If the circumstances were such as to put the State on notice of a possible error; An error relating only to the wording of the text of a treaty does not affect its validity.

Teleological approach according to the purpose of the treaty; reference is made to the context thereof Q: What constitutes the context of a treaty? 1. 2. 3. The text of the treaty The preamble and annexes of the treaty Any agreement o relating to the treaty; o made between ALL the parties o in connection to the conclusion of the treaty Any instrument o which was made by one or more parties o in connection with the conclusion of the treaty and o accepted by the other parties as an instrument related to the treaty

Rules n the interpretation of treaties authenticated in two or more languages 1. The text is equally authoritative in each language unless the treaty provides or the parties agree that in case of divergence, a particular text shall prevail. A version of the treaty other than the authenticated version shall be considered authentic text only if the treaty so provides or the parties so agree The terms of the treaty are presumed to have the same meaning in each authentic text When a comparison of the authentic texts discloses a difference which interpretation cannot reconcile, the meaning which best reconciles the texts, having regard of the object and purpose of the treaty shall be adopted.

Q: When is fraud a ground for invalidating a States consent to be bound? A: If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State. Q: When is corruption a ground for invalidating a States consent to be bound? A: If the States consent has been procured through corruption of its representative directly or indirectly by another negotiating State. Q: Is the coercion of a representative a ground to invalidate the States consent to be bound by the treaty? A: If the States consent was procured through coercion of its representatives through acts or threats directed against him, it shall be without any legal effect. Q: What is the effect if the States consent was procured through coercion by the threat or use of force against that State? A: The treaty is void Q: What are other grounds for invalidation of a treaty? A: If a treaty conflict with a peremptory norm of general international law (jus cogens) Q: What is jus cogens? A: It is a peremptory norm of general international law accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and

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Subjective approach 1. In the interpretation of treaties, the following shall be taken into account in addition to the context of the treaty o any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation any relevant rules of international law applicable in the relations between parties.

In case there is conflict among official texts, the language agreed upon by the parties as authoritatice is followed . INVALIDITY OF TREATIES Grounds for invalidating a treaty 1. 2. 3. Error of fact Fraud Corruption or duress

2. A special meaning shall be given to a term if it is established that the parties so intended Supplementary sources for interpretation of treaties 1. 2. Preparatory work of the treaty Circumstances of its conclusion

Q: When may a State invoke error as ground to invalidate its consent to be bound? 1. If the error relates to a fact or situation which was assumed by the State to exist at the time when the treaty was concluded; and If it formed an essential basis for its consent to be bound to the treaty

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which can be modified only by a subsequent norm of general international law having the same character. Q: What is derogation of such peremptory norm not allowed? A: Because of its status as jus cogens. It is the intrinsic nature of the rule that disallows derogation. Q: What are the rules considered to be jus cogens? A: No concrete list of what is considered jus cogens but the following are examples of jus cogens: 1. 2. 3. A treaty contemplating an unlawful use of force A treaty contemplating the performance of any other act criminal under international law Treaty contemplating towards the commission of acts such as slave trade, piracy or genocide

Q: When is violation manifest? A: If it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. Q: Is the omission of a representative of a state to observe restrictions on his authority to express consent of the State to be bound by a particular treaty a ground for invalidating such consent? A: No, unless the restriction was notified to the other negotiating States prior to his expressing such consent. AMENDMENT AND MODIFICATION OF TREATIES Q: What is the difference between amendment and modification of treaties? A: Amendment is a formal revision done with the participation at least in its initial stage, by ALL the parties to the treaty. Modification only involves some of the parties. GR: A treaty may be amended by agreement of the parties. Q: How is a treaty amended? A: Same process as the formation of treaties Q: How is amendment of multilateral treaties done? 1. 2. Proposal to amend must be notified to all contracting parties. Each of the contracting parties has the right to take part in o The decision as to the action to be taken to such proposal o The negotiation and conclusion of any agreement for the amendment of the treaty Every state entitled to become a party to the treaty shall also be entitled to become a party to the treaty as amended.

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The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement. Any state which becomes a party to the treaty after entry into force of the amending agreement shall o Be considered as party to the treaty as amended; and o Be considered as party to the unamended treaty in relation to any party of the treaty not bound by the amending agreement.

Q: When can parties to a treaty modify such treaty as between them alone? 1. When the possibility of such modification is provided for in the treaty; o The parties shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides. When the modification in question is not prohibited and o Does not affect the enjoyment of the other parties of their rights under the treaty or the performance of their obligations o Does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole

Q: Can a State lose its right to invalidate a treaty? A: Yes Q: When may a State no longer invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty? A: If, after it becomes aware of the facts: 1. 2. It shall have expressly agreed that the treaty is valid or remains in force or continues in operation If by reason of its conduct, it can be considered to have acquiesced to the validty of the treaty or in its maintenance in force or operation

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GR: A State may not invoke violation of its municipal law as ground for invalidating its consent to be bound by a treaty. EXC: A state may invoke such if 1. 2. The violation was manifest; and It concerned a rule of its internal law of fundamental importance 3.

TERMINATION OF TREATIES Q: How may treaties be terminated? 1. 2. 3. 4. According to the terms of the treaty; or With the consent of the parties Upon expiration of its period When its purpose has already been achieved

Q: What are the modes of terminating, suspending withdrawing a treaty? 1. 2. 3. Material breach Impossibility of performance Change of fundamental conditions (rebus sic stantibus)

Q: What constitutes a material breach? 1. 2. Repudiation of the treaty Violation of a provision essential to the accomplishment of the object and purpose of the treaty

Q: What are other instances when a fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty? 1. 2. If the treaty establishes a boundary If the fundamental change is the result of a breach by the party invoking it either under the treaty or any other international obligation which it owed to another party to the treaty

Supervening impossibility of performance Material breach Q: What is the effect of impossibility of performance of a treaty? Q: What is the effect of a material breach in bilateral treaties? A: It may be invoked by a party as ground for A: It is a ground for 1. 1. 2. Terminating the treaty or Suspending its operation in whole or in part 2. Terminating or withdrawing from the treaty if the impossibility is permanent in character; or Suspending the operation of the treaty if the impossibility is temporary in character

Q: When may a party invoke such fundamental change of circumstances to suspend a treaty? A: If it may invoke the same as ground for terminating or withdrawing from the treaty Procedure for the Termination of Treaties 1. There must be notification to other contracting parties which shall indicate the proposed measure that will be taken by the terminating state; The notification must be in writing. If after a period of 3 months from such notification, no party has raised any objection, the party making the notification may carry out the measure which it has proposed. If objections have been raised, the parties shall seek a solution through the means indicated in Art. 33 of the UN Charter. The fact that the state concerned has not previously made the notification shall not prevent it from making such notification in answer to another party claiming performance of the treaty or alleging its violation. Any act declaring invalid, terminating, withdrawing or suspending the operation of a treaty must be carried out through an instrument communicated to the other parties. Notification and instruments for declaring invalid, terminating, withdrawing or suspending the operation of a treaty may be revoked any time.

Q: What is the effect of a material breach in multilateral treaties by one of the contracting parties? 1. It entitles the other parties by unanimous agreement a. To suspend the operations of the treaty in whole or in part; or b. Terminate it either In the relations between themselves and the defaulting State; or As between all parties It may be invoked by a party specifically affected by such breach to suspend the operation of the treaty in whole or in part in its relations with the defaulting state It may be invoked by any party other than the defaulting state as ground to suspend the operation of the treaty in whole or in part with respect to itself if the material breach is of such character that it practically changes the position of every party with respect to the performace of its obligation under the treaty

Q: When may impossibility of performance not be invoked as ground for terminating, withdrawing or suspending a treaty? A: When the impossibility is the result of a breach by the party invoking it either of an obligation under the treaty or any other international obligation owed to the other parties Rebus sic stantibus GR: A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of the treaty and which was not foreseen by the parties, may not be invokes as a ground for terminating a treaty unless 1. The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; AND The effect of the change is radically to transform the extent of the obligation still to be performed

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Q: Are these applicable to treaties of humanitarian character? A: They do not apply to provisions relating to the protection of the human person under humanitarian treaties in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.

Q: When is such change considered to have radically transformed the obligation of parties? A: If the change has increased the obligations to be executed to the extent of rendering the performance something essentially different from the one originally undertaken.

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Q: Who has the authority to terminate a treaty?

A: The authority to terminate should also belong to the one who has authority to enter into such treaty. SUCCESSION OF TREATIES Q: When a state ceases to exist and is succeeded by another on the same territory, is the new state bound by commitment made by its predecessors? A: Clean slate theory- the new 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 to the territory to which the succession of States relate. But a new state may agree to be bound by the treaties made by its predecessors. Clean slate rule is not applicable to treaties affecting boundary regimes. Boundary regimes a succession of states does not affect 1. 2. A boundary established by a treaty Obligation and rights established by a treaty relating to the regime of a boundary

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Provision relating to the succession of treaties do not apply to treaty obligations of the predecessor State providing for the establishment of foreign military bases on the territory to which the succession of States relates.

Other territorial regimes a succession of states does not affect 1. Obligations relating to the use of any territory and to restrictions thereof and to rights established by a treaty for the benefit of a territory relating to its use and restriction of any territory of a foreign State and considered attaching to the territories in question. Obligations relating to the use of any territory and to restrictions thereof and to rights established by a treaty for the benefit of a territory relating to its use and restriction of any territory of a group of States or of all States and considered attaching to the territories in question.

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