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Chapter 3 Kinds of Treaties

THE LAW OF TREATIES (1) Multilateral- open to all states of the


world. They create norms which are the basis
for a general rule of law. They are either
 They can be conventions, pacts, codification treaties or “law-making treaties”
covenants, charters, protocols, or they may have the character of both.
concordat, modus vivendi, etc.
 The generic term that is used is
(2) Bilateral- “contract treaties”; in the nature
international agreements.
of contractual agreements which create
 1969 Vienna Convention on the Law of shared expectations such as trade
Treaties governs treaties between states. agreements of various forms

 “an international agreement concluded


between States in written form and governed Making of treaties
by international law, whether embodied in a
single instrument or in two or more related (1) Negotiation- done through foreign
instruments and whatever its particular ministries.
designation.”- Vienna Convention *Bilateral treaties, and multilateral treaties
among a small number, generally originate
from the foreign ministries. Negotiation is
 No particular form is prescribed. Thus for Larger multilateral treaties are negotiated in
instance, in Qatar v. Bahrain,' the diplomatic conferences which are run like a
exchange of notes between the two legislative body. Power to negotiate The
heads of state was considered an negotiators must possess powers to
international agreement. negotiate. An act relating to the conclusion of
a treaty by one who has no proper
authorization has no legal effect unless
Function of treaties
confirmed by his state:
(1) sources of international law
(2) charter of international organizations
Article 7. Full powers
(3) transfer territory
1. A person is considered as
(4) regulate commercial relations representing a State for the purpose of
adopting or authenticating the text of a
(5) settle disputes
treaty or for the purpose of expressing
(6) protect human rights the consent of the State to be bound by a
treaty if:
(7) guarantee investments, etc.
(a) he produces appropriate full 2. The adoption of the text of a
powers; or treaty at an international conference
takes place by the vote of two-thirds of
(b) it appears from the practice of
the States present and voting, unless by
the States concerned or from other
the same majority they shall decide to
circumstances that their intention was to
apply a different rule.
consider that person as representing the
State for such purposes and to dispense Article 10. Authentication of the
with full powers. text:
2. In virtue of their functions and The text of a treaty is established as
without having to produce full powers, authentic and definitive:
the following are considered as
(a) by such procedure as may be
representing their State:
provided for in the text or agreed upon
(a) Heads of State, Heads of by the States participating in its drawing
Government and Min-isters for Foreign up; or
Affairs, for the purpose of performing all
(b) failing such procedure, by the
acts relating to the conclusion of a treaty;
signature, signature ad referendum or
(b) heads of diplomatic missions, for initialing by the representatives of those
the purpose of adopting the text of a States of the text of the treaty or of the
treaty between the accrediting State and Final Act of a conference incorporating
the State to which they are accredited; the text.
(c) representatives accredited by The authentication of a treaty makes
States to an inter-national conference or the text authoritative and definitive. It is
to an international organization or one of necessary so that the states will know
its organs, for the purpose of adopting definitively the contents of the text and
the text of a treaty in that conference, avoid any misunderstanding as to the
organization or organ. terms.

(2) Authentication of text- Negotiations (3) Consent to be bound- The most important
conclude with the signing of the document. step is the consent to be bound. There are
The signatures serve as authentication of the various ways by which consent to be bound is
document. expressed:
Article 9. Adoption of the text: Article 11. Means of expressing
consent to be bound by a treaty:
1. The adoption of the text of a
treaty takes place by the consent of all The consent of a State to be bound
the States participating in its drawing up by a treaty may be expressed by
except as provided in paragraph 2. signature, exchange of instruments
constituting a treaty, ratification,
acceptance, approval or accession, or by States were agreed that the exchange of
any other means if so agreed. instruments should have that effect, xxx

Article 12. Consent to be bound by a Article 14. Consent to be bound by a


treaty expressed by signature: treaty expressed by ratification,
acceptance or approval:
1. The consent of a State to be
bound by a treaty is ex-pressed by the 1. The consent of a State to be
signature of its representative when: bound by a treaty is ex-pressed by
ratification when: (a) the treaty provides
(a) the treaty provides that signature
for such consent to be expressed by
shall have that effect; (b) it is otherwise
means of ratification; (b) it is otherwise
established that the negotiating States
established that the negotiating States
were agreed that signature should have
were agreed that ratification should be
that effect; or
required; (c) the representative of the
(c) the intention of the State to give State has signed the treaty subject to
that effect to the signature appears from ratification; or (d) the intention of the
the full powers of its representative or State to sign the treaty subject to
was expressed during the negotiation. ratification appears from the full powers
of its representative or was expressed
2. For the purposes of paragraph 1:
during the negotiation.
(a) the initialing of a text constitutes
2. The consent of a State to be
a signature of the treaty when it is
bound by a treaty is ex-pressed by
established that the negotiating States so
acceptance or approval under conditions
agreed; (b) the signature and referendum
similar to those which apply to
of a treaty by a representative, if
ratification.
confirmed by his State, constitutes a full
signature of the treaty.
*The manner of ratification differs from state
to state. In the Philippines, it is governed by
Article 13. Consent to be bound by a
Article VII, Section 21 of the Constitution.
treaty expressed by an exchange of
But between signature and ratification a state
instruments constituting a treaty:
is required by Article 18(a) not to engage in
The consent of States to be bound by acts which can defeat the purpose of the
a treaty constituted by instruments treaty.
exchanged between them is expressed
by that exchange when:
Article 16. Exchange or deposit of
(a) the instruments provide that
instruments of ratification, acceptance,
their exchange shall have that effect; or
approval or accession:
(b) it is otherwise established that those
Unless the treaty otherwise provides, (c) all the parties have subsequently
instruments of ratification, acceptance, agreed that such consent may be expressed
approval or accession establish the consent by that State by means of accession.
of a State to be bound by a treaty upon:
(a) their exchange between the
Reservations
contracting States; (b) their deposit with the
depositary; or (c) their notification to the - “a unilateral statement, however phrased or
contracting States or to the depositary, if so named, made by a State, when signing,
agreed. ratifying, accepting, approving or acceding to
a treaty, whereby it purports to exclude or to
modify the legal effect of certain provisions of
Article 17 Consent to be bound by part of the treaty in their application to that State.”
a treaty and choice of differing provisions: Article 2, Vienna Convention.
1. Without prejudice to Articles 19 to 23,
the consent of a State to be bound by part of
Entry into force of treaties
a treaty is effective only if the treaty so
permits or the other contracting States so - on the date agreed upon by the parties.
agree. Where no date is indicated, the treaty enters
into force once consent has been given.
2. The consent of a State to be bound by
Multilateral treaties generally contain a
a treaty which permits a choice between
provision which says how many states have to
differing provisions is effective only if it is
accept the treaty before it can come into
made clear to which of the provisions the
force.
consent relates.

Rules on entry into force are as follows:


Accession to a treaty
States which did not participate in the
initial negotiation may also express their Article 24. Entry into force:
consent to be bound by “accession.” Article
1. A treaty enters into force in such
15 of the Convention says:
manner and upon such date as it may provide
The consent of a State to be bound by a or as the negotiating States may agree.
treaty is expressed by accession when:
2. Failing any such provision or
(a) the treaty provides that such consent agreement, a treaty enters into force as soon
may be expressed by that State by means of as consent to be bound by the treaty has
accession; been established for all the negotiating
States.
(b) it is otherwise established that the
negotiating States were agreed that such 3. When the consent of a State to be
consent may be expressed by that State by bound by a treaty is established on a date
means of accession; or after the treaty has come into force, the
treaty enters into force for that State on that 1. “Objective” approach. A treaty shall be
date, unless the treaty otherwise provides. interpreted in good faith in accordance
with the ordinary meaning to be given to
4. The provisions of a treaty regulating
the terms of the treaty in their context
the authentication of its text, the
and in the light of its object and purpose.
establishment of the consent of States to be
bound by the treaty, the manner or date of its
entry into force, reservations, the functions
2. “Teleological” approach. The context
of the depositary and other matters arising
for the purpose of the interpretation of a
necessarily before the entry into force of the
treaty shall comprise, in addition to the
treaty apply from the time of the adoption of
text, including its preamble and annexes:
its text.
*according to the telos or purpose of the
treaty*
Application of treaties (a) any agreement relating to the
treaty which was made between all the
First rule: pacta sunt servanda
parties in connection with the conclusion
Article 26 of the Convention says that “every of the treaty;
treaty in force is binding upon the parties to
(b) any instrument which was made
it and must be performed by them in good
by one or more parties in connection
faith.”
with the conclusion of the treaty and
accepted by the other parties as an
instrument related to the treaty.
Second rule: Article 46, is that a “party may
not invoke the provisions of its internal law as
justification for its failure to perform a
*Article 31(3) and (4) follow a “subjective”
treaty.”
approach which honors special meaning
given by the parties.*

As to the territorial scope of its applicability: 3. There shall be taken into account,
Article 29 says: “Unless a different intention together with the context:
appears from the treaty or is otherwise
(a) any subsequent agreement
established, a treaty is binding upon each
between the parties regarding the
party in respect of its entire territory.”
interpretation of the treaty or the
application of its provisions;

Interpretation of treaties b) any subsequent practice in the


application of the treaty which
Article 31 contains the rules for the
establishes the agreement of the parties
interpretation of treaties:
regarding its interpretation;
(c) any relevant rules of international
law applicable in the relations between
Article 50. Corruption of a representative of
the parties.
a State:
If the expression of a State’s consent to be
4. A special meaning shall be given to a bound by a treaty has been procured through
term if it is es-tablished that the parties the corruption of its representative direcdy or
so intended. indirectly by another negotiating State, the
State may invoke such corruption as
invalidating its consent to be bound by the
treaty.
Invalidity of Treaties

Grounds: (1) error of fact (2)Fraud Article 51. Coercion of a representative of a


(3)corruption or duress State:
The expression of a State’s consent to be
Article 48. Error: bound by a treaty which has been procured
by the coercion of its representative through
1. A State may invoke an error in a treaty as acts or threats directed against him shall be
invalidating its consent to be bound by the without any legal effect.
treaty if the error relates to a fact or situation
which was assumed by that State to exist at
the time when the treaty was concluded and Article 52. Coercion of a State by the threat
formed an essential basis of its consent to be or use of force:
bound by the treaty.
A treaty is void if its conclusion has been
2. Paragraph 1 shall not apply if the State in procured by the threat or use of force in
question contributed by its own conduct to violation of the principles of international law
the error or if the circumstances were such as embodied in the Charter of the United
to put that State on notice of a possible error. Nations.
3. An error relating only to the wording of the
text of a treaty does not affect its validity;
Article 79 then applies. *violation of jus cogens invalidates a treaty
Article 53. Treaties conflicting with a
peremptory norm of general international
Article 49. Fraud: law (jus cogens):
If a State has been induced to conclude a A treaty is void if, at the time of its
treaty by the fraud-ulent conduct of another conclusion, it conflicts with a peremptory
negotiating State, the State may invoke the norm of general international law. For the
fraud as invalidating its consent to be bound purposes of the present Convention, a
by the treaty. peremptory norm of general international
law is a norm accepted and recognized by the (b) it must by reason of its conduct be
international community of States as a whole considered as having acquiesced in the
as a norm from which no derogation is validity of the treaty or in its maintenance in
permitted and which can be modified only by force or in operation, as the case may be.
a subsequent norm of general international
law having the same character.

Amendment and Modification of Treaties


Jus Cogens rules:
(a) a treaty contemplating an
unlawful use of force contrary to the  Amendment- a formal revision done with
provisions of the Charter; the participation, at least in its initial stage,
by all the parties to the treaty.
(b) a treaty contemplating the
performance of any other act criminal Article 40. Amendment of multilateral
under international law; treaties:

(c) a treaty contemplating or 1. Unless the treaty otherwise provides,


con-niving towards the commission of the amendment of multilateral treaties shall
acts such as trade in slaves, piracy, or be governed by the following paragraphs.
genocide. 2. Any proposal to amend a multilateral
treaty as between all the parties must be
notified to all the contracting States, each
* A state, however, can lose the right to assert one of which shall have the right to take part
the invalidity of a treaty. The following rules in:
apply:
(a) the decision as to the action to be
Article 45. Loss of a right to invoke a taken in regard to such proposal; (b) the
ground for invalidating, terminating, negotiation and conclusion of any agreement
withdrawing from or suspending the for the amendment of the treaty.
operation of a treaty:
3. Every State entitled to become a party
to the treaty shall also be entitled to become
A State may no longer invoke a ground for a party to the treaty as amended.
invalidating, terminating, withdrawing from 4. The amending agreement does not
or suspending the operation of a treaty under bind any State already a party to the treaty
Articles 46 to 50 or Articles 60 and 62 if, after which does not become a party to the
becoming aware of the facts: amending agreement; Article 30, paragraph
4(b), applies in relation to such State.

(a) it shall have expressly agreed that the 5. Any State which becomes a party to
treaty is valid or remains in force or continues the treaty after the entry into force of the
in operation, as the case may be; or amending agreement shall, failing an
expression of a different intention by that
State:
(a) be considered as a party to the treaty Termination of Treaties
as amended; and (b) be considered as a party
to the unamended treaty in relation to any *may be terminated or suspended
party to the treaty not bound by the according to the terms of the treaty or with
amending agreement. the consent of the parties.
*A treaty with a definite period may also
expire.
 Modification- involves only some of the
parties *It may also end when the purpose for
the treaty has already been achieved.
Article 41. Agreements to modify
multilateral treaties between certain of the
parties only — *But a mere change of government or
1. Two or more of the parties to a severance of diplomatic relations does not
multilateral treaty may conclude an terminate or suspend a treaty.
agreement to modify the treaty as between
themselves alone if:
Modes of terminating:
(a) the possibility of such a modification
is provided for by the treaty ; or (b) the (1) Material breach
modification in question is not prohibited by Article 60. Termination or suspension of
the treaty and: the operation of a treaty as a consequence of
(i) does not affect the enjoyment by the its breach:
other parties of their rights under the treaty 1. A material breach of a bilateral treaty
or the performance of their obligations; (ii) by one of the parties entitles the other to
does not relate to a provision, derogation invoke the breach as a ground for
from which is incompatible with the effective ter-minating the treaty or suspending its
execution of the object and purpose of the operation in whole or in part.
treaty as a whole.
2. A material breach of a multilateral
2. Unless in a case falling under treaty by one of the parties entitles:
paragraph 1(a) the treaty
(a) the other parties by unanimous
otherwise provides, the parties in agreement to suspend the operation of the
question shall notify the other treaty in whole or in part or to terminate it
parties of their intention to conclude the either:
agreement and of the modification to the (i) in the relations between themselves
treaty for which it provides. and
the defaulting State, or
(ii) as between all the parties; ground for terminating or withdrawing
from it if the impossibility results from
(b) a party specially affected by the
the permanent disappearance or
breach to invoke it as a ground for
destruction of an object indispensable
suspending the operation of the treaty in
for the execution of the treaty. If the
whole or in part in the relations between
impossibility is temporary, it may be
itself and the defaulting State;
invoked only as a ground for suspending
(c) any party other than the defaulting the operation of the treaty.
State to invoke the breach as a ground for
2. Impossibility of performance may
suspending the operation of the treaty in
not be invoked by a party as a ground for
whole or in part with respect to itself if the
terminating, withdrawing from or
treaty is of such a character that a material
suspending the operation of a treaty if
breach of its provisions by one party radically
the impossibility is the result of a breach
changes the position of every party with
by that party either of an obligation
respect to the further performance of its
under the treaty or of any other
obligations under the treaty.
international obligation owed to any
3. A material breach of a treaty, for the other party to the treaty.
purposes of this article, consists in:
(a) a repudiation of the treaty not
(3) Rebus sic stantibus
sanctioned by the present Convention; or
Article 62. Fundamental change of
(b) the violation of a provision essential
circumstances:
to the accomplishment of the object or
purpose of the treaty. 1. A fundamental change of
circumstances which has oc-curred with
4. The foregoing paragraphs are without
regard to those existing at the time of the
prejudice to any provision in the treaty
conclusion of a treaty, and which was not
applicable in the event of a breach.
foreseen by the parties, may not be invoked
5. Paragraphs 1 to 3 do not apply to as a ground for terminating or withdrawing
provisions relating to the protection of the from the treaty unless:
human person contained in treaties of a
(a) the existence of those circumstances
humanitarian character, in particular to
constituted an essential basis of the consent
provisions prohibiting any form of reprisals
of the parties to be bound by the treaty; and
against persons protected by such treaties.
(b) the effect of the change is radically to
transform the extent of obligations still to be
performed under the treaty.
(2) Supervening impossibility of performance
2. A fundamental change of
Article 61. Supervening impossibility of
circumstances may not be invoked as a
performance:
ground for terminating or withdrawing from a
1. A party may invoke the treaty:
impossibility of performing a treaty as a
(a) if the treaty establishes a boundary; of the fact that at the date of the succession
or of States the treaty was in force in respect of
the territory to which the succession of States
(b) if the fundamental change is the
relates.”
result of a breach by the party invoking it
either of an obligation under the treaty or of
any other international obligation owed to
*The “clean slate" rule, however, does not
any other party to the treaty.
apply to treaties affecting boundary regimes.
3. If, under the foregoing paragraphs, a
Article 11. Boundary regimes
party may invoke a fundamental change of
circumstances as a ground for terminating or A succession of States does not as
withdrawing from a treaty it may also invoke such affect:
the change as a ground for suspending the
(a) a boundary established by a
operation of the treaty.
treaty ; or
(b) obligations and rights established
Procedure for the Termination of Treaties: by a treaty and relating to the regime of
Articles 65-68 a boundary.

Authority to Terminate: the authority to


terminate should also belong to the one who
has the authority to enter into the treaty

In the Philippines, the authority to conclude


treaties is shared between the Senate and
the President.

Succession to treaties

When one state ceases to exist and is


succeeded by another on the same territory,
the question arises whether the new state is
bound by the commitments made by its
predecessor.
The Convention follows the “clean slate”
rule. Article 16 says: “A newly independent
State is not bound to maintain in force, or to
become a party to, any treaty by reason only