Treaty – as defined in the Vienna Convention, is an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two of more related instruments and whatever its particular designation.
Functions of Treaties 1. Sources of international law 2. They serve as the charter of international organizations organizations 3. They are used: - to transfer territory - regulate commercial relations - settle disputes - protect human rights - guarantee investments, etc,
Kinds of Treaties 1. Multilateral Treaties Treaties – open to all states of the world. They create norms which are the basis for a general rule of law. They are either codification treaties or “law -making treaties” or they may have the character of both. 2. Treaties that create collaborative mechanism – these can be of universal scope (e.g., regulation of allocation of radio frequencies) or regional (e.g., fishing agreements). They operate through the organs of different states. 3. Bilateral Treaties Treaties (sometimes called “contract “contract treaties”) – many of these are in the nature of contractual agreements agreements which create shared expectations such as trade agreements agreements of various forms.
Making of Treaties 1. Negotiation – generally originate from the foreign ministries, negotiation is done through foreign ministries. Larger multilateral treaties are negotiated in diplomatic conferences which are run like a legislative legislative body. Power to negotiate –the negotiators must possess powers to negotiate. negotiate. An act relating to the conclusion of a treaty by one who has no proper authorization has no legal effect unless confirmed by his State. 2. Authentication Authentication of Text – negotiations conclude with the signing of the document. The signatures serve as authentication of the document. 3. Consent to be bound – bound – once the document has been signed, there are stages which follow which culminate in making making the document binding. The most important important step is the consent to be bound. By signature Exchange of instruments constituting a treaty Ratification, Acceptance, or Approval or accession, or By any other means if so agreed 4. Accession to a treaty – States which did not participate in the initial negotiation may also express their consent to be bound by “ accession” accession” (if agree upon or established in the negotiation that consent may be express by means of accession) 1
5. Reservations – the Vienna Convention allows for “reservations” (defines 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” ) Treaties are different from statutes, which must necessarily apply to all. Reservations, however, are different from “interpretative declaration” which are not meant to be a derogation from the treaty but an expression of how a state understands its adoption of the treaty The Philippines and the 1982 Convention on the Law of the Sea – upon its ratification of the Convention on the Law of the Sea, it added reservations: i.
It shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Philippine Constitution;
ii.
Such signing shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines as successor to the USA, under and arising out of the Treaty of Paris between Spain and the USA of December 10, 1988, and the Treaty of Washington between the USA and Great Britain of January 2, 1930;
iii.
Such signing shall not diminish or in any manner affect the rights and obligations of the Contracting Parties under the Mutual Defense Treaty between the Philippines and the USA of August 30, 1951, and its related interpretative instruments; nor those under the pertinent bilateral or multilateral treaty or agreement to which the Philippines is a party;
iv.
Etc… page 36 of book
Reservations in Human Rights Treaties 6. Entry into force of treaties – on the date agreed upon by the parties. Where no date is indicated, the treaty enters into force once consent has been given. Multilateral treaties generally contain a provision which says how many states have to accept the treaty before it can come into force. 7. Application of treaties first fundamental rule - pacta sunt servanda (every treaty in force is binding upon the parties to it and must be performed by them in good faith) second fundamental rule – party may not invoke the provisions of its internal law as justification for its failure to perform a treaty as to its territorial scope of applicability, Article 29 says: “Unless a different intention appears from the treaty or its otherwise established, a treaty is binding upon each party in respect of its entire territory.” 8. Interpretation of treaties – Article 31 (i. “objective approach” – interpretation according to the ordinary meaning of the words; ii. “teleological approach” – interpretation according to the telos or purpose of the treaty; iii. “subjective approach” – which honors special meaning given by the parties
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Invalidity of Treaties – the usual ground for invalidation of contracts can also invalidate a treaty: error of fact, fraud, corruption or duress.
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