Treaties“A treaty may be defined as a

formal agreement, usually but not necessarily in writing, which is entered into by states or entities possessing the treaty-making capacity, for the purpose of regulating their mutual relations under the law of nations.”

Treaties“In its generic sense, the term treaty may embrace such compacts as conventions, declaration, covenants, acts, concordats, pacts, etc., which have recognized variations in their extent or purposes. All such agreements, when intended to create legal as distinguished from moral obligations, are binding on the parties.”

Functions of Treaties“Treaties are supposed to perform the

following important functions:(1) To enable the parties to settle finally

actual and potential conflicts.(2) To make it possible for the parties to

modify rules of international customary law by means of optional principles or standards.”

Functions of Treaties“(3) To pave the way for the

transformation of unorganized international society into one which may be organized on any chosen level of social integration.

(4) To provide the humus for the growth of international customary law. (Schwarzenberger, 141).”

Essential Requisites of a Valid Treaty

“To be valid, a treaty must be:(1) Entered into by parties having the treaty-

making capacity;(2) Through their authorized organs or

representatives;(3) Without the attendance of duress, fraud,

mistake or other vice of consent;(4) On a lawful subject;(5) In accordance with their respective

constitutional processes.”

Treaty-making Capacity“All states have full treaty-making

capacity unless limited by pre-existing agreements or self-imposed inhibitions. Thus, the protectorate is restricted in the control of its external affairs; a neutralized state may not join an offensive or defensive alliance.”

Treaty-making Capacity“On the other hand, there are

instances when even mere colonies have been allowed to sign treaties and participate in international conferences together with full-fledged states.

Treaty-making CapacityThe United Nations and its organs,

such as the Security Council and the Economic and Social Council, and international agencies like the World Health Organization, may also enter into treaties.”

Authorized Representatives“It is for municipal law to determine which organ of the state shall be empowered to enter into treaties on its behalf. The Constitution of the Philippines, for example, provides that ‘the President may enter into international treaties or agreements as the national welfare and interest may require.’ (Art. XIV, Sec. 16).”

Authorized Representatives“This is in consonance with the

general practice of assigning the negotiation of treaties to the executive department of the government, subject usually to the consent of the legislature or one of its branches.”

Freedom of ConsentFreedom of consent on the part of the plenipotentiaries concluding a treaty is a condition of its validity. Any intimidation or coercion exercised on their person would render the treaty invalid. However, the duress may not be against the person of the negotiator but against the State itself. Coercion of a State by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations renders the treaty thus entered into void and without legal effect.”

Freedom of Consent“Where the consent of a party has been given in error or induced through fraud on the part of the other party, the treaty would be voidable. Similarly, where the consent of a State is obtained through corruption of its representative, directly or indirectly, by another negotiating State, the former State may invoke such corruption as invalidating its consent to be bound by the treaty.”

Freedom of Consent“The consent of a State to be

bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.”

Lawful Subject Matter“While the range of matters which may be the object of treaties is very wide, it is well-settled that immoral, illegal or impossible obligations can not be the object of a valid treaty. Thus, a treaty having for its object a purpose forbidden by universally recognized principles of international law would be null and void. A treaty by which, for example, a State agrees with another to appropriate a portion of the high seas would be invalid.”

Lawful Subject Matter“The fact that the object of a treaty is in conflict with a rule of international law does not necessarily invalidate the treaty. The object of a treaty is illegal only if it contravenes or departs from an absolute or imperative rule or prohibition of international law. States are free to agree upon a rule or regime which modified or departs from rules of customary international law as long as those rules are in the nature of jus dispositivum. The Vienna Convention provides that a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general internal law (i.e., jus cogens).”

Treaty-making Process“The usual steps in the treaty-

making process “are: (1) negotiation; (2) signature; (3) ratification; and (4) registration with the United Nations.”

Treaty-making ProcessNegotiation “refers to the discussion of the provisions of the proposed treaty, undertaken by the representatives of the contracting parties who are provided with credentials known as full powers or pleins pouvoirs. It is customary for one of the parties to submit a draft proposal which, together with the counter-proposals, becomes the basis of the negotiation. When agreement is reached, the resultant instrument is ready for signature.”

Treaty-making Process“x x x x x x x x xThe signature is primarily intended as a means of authenticating the instrument and symbolizing the good faith of the contracting parties. Significantly, it does not indicate consent where ratification of the treaty is required, as is usual. But where ratification is dispensed with, the signature will operate to bind the parties to the treaty.”

Treaty-making ProcessRatification “is the act by which a

state formally accepts the provisions of a treaty concluded by its representative. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests.”

Treaty-making Process“x x x under Article 102 of the

United Nations Charter, a treaty not registered with the U.N. Secretariat, by which it shall be published, cannot be invoked before any organ of the United Nations.”

Binding Effect of Treaties“As a rule, a treaty is binding only

on the contracting parties, including not only the original signatories but also other states which, although they may not have participated in its negotiation, have been allowed by its terms to sign it later by a process known as accession.”

Observance of TreatiesPacta sunt servanda “simply

means that treaties must be observed in good faith despite hardship on the contracting state, such as conflicts between the treaty and its constitution or prejudice to the national interest as a result of the operation of the treaty.

Observance of TreatiesAs a general rule, a party must

comply with the provisions of a treaty and cannot ignore or modify it without the consent of the other signatory. Willful disregard or violation of treaties without just cause is frowned upon by the society of nations.”

Observance of TreatiesRebus sic stantibus “‘would justify

non-performance of a treaty obligation if the conditions in relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be unreasonable’”

Treaty Interpretation“A treaty shall be interpreted in

good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

Treaty Interpretation“x x x x x x x x xThe method of historical interpretation, by which the so-called preparatory work or travaux preparatoires of the treaty is examined for the purpose of ascertaining the intention of the parties, has on several occasions been resorted to by international tribunals. There is, however, no occasion to have regard to preparatory work, if the text of a treaty is sufficiently clear, nor should it be used for the purpose of changing the plain meaning of a text. Recourse to preparatory work is merely a supplementary means of interpretation.”

Treaty Interpretation“Each contracting party to a treaty, in giving effect to the treaty internally, may interpret its provisions. The question as to what organs within a State are competent to apply and interpret treaties is determined by its municipal law. However, the interpretation given by the municipal organs of a State, while binding internally within that State, is not conclusive on the other party or parties to the treaty. The interpretation of international engagements does not, according to international law, fall solely within the domestic jurisdiction of a single State. A treaty can only be authority interpreted either by mutual agreement of the parties or by resort to interpreted either by mutual agreement of the parties or by resort to a court of arbitration or international tribunal. Many treaties contain provisions relating to the method of their interpretation.”

Termination of Treaties“A treaty may be terminated in any of

the following ways:(1) By expiration of the term, which may

be fixed or subject to a resolutory condition.

(2) By accomplishment of the purpose.(3) By impossibility of performance.(4) By loss of the subject-matter.(5) By novation.”

Termination of Treaties“(6) By desistance of the parties, through

mutual consent, by desuetude, or by the exercise of the right of denunciation (or withdrawal) when allowed.

(7) By extinction of one of the parties if the treaty is bipartite.

(8) By occurrence of a vital change of circumstance under the doctrine of rebus sic stantibus.”

Termination of Treaties“(9) By the outbreak of war between the

parties, except where the treaty is intended precisely to regulate their relations during war.

(10) By voidance of the treaty because of defects in its conclusion, violation of its provisions by one of the parties, or incompatibility with international law, the U.N. Charter, or a subsequent government.”

BAYAN, et al. v. Executive Secretary Ronald Zamora, et al., October 10, 2000, G.R. No. 138570

 Fisheries Jurisdiction Case (United Kingdom v.

Iceland) (Jurisdiction) 1974 I.C.J. 3 Namibia Case (Advisory Opinion) 1971 I.C.J. 16 Danube Dam Case (Hungary v. Slovakia) 37

ILM 162 (1998)

ReferencesBernas, Joaquin G. An Introduction to

Public International Law. Manila: Rex Book Store, 2002.

 Cruz, Isagani A. International Law

Reviewer. Quezon City: Central Lawbook Publishing Co., Inc., 1993.

 Salonga, Jovito R. and Pedro L. Yap.

Public International Law. Manila. 1992.