LAW ON TREATIES, TREATY

MAKING AND UNCLOS

Reporters
John Andrew Gayamat
Louis Anthony B. Sarria
Jon Alphonz B. Adjijil
Terri Joe Pretta
TREATY, DEFINED.
• 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.

-Art. 2 (1), 1969 Vienna Convention

(Which contains the law on treaties)
Is there such a thing as an oral treaty?
• YES, however such treaties would not come within the contemplation of the
VCLT and therefore would not be governed by the VCLT. There is really no
required form, but the treaty, to come under the definition of the VCLT,
must at least be in writing, agreed to by the States, and governed by
international law.

• In Qatar v. Bahrain, the ICJ held that a mere exchange of letters constitutes a
valid treaty
 Treaty under Philippine Law
• Makes a distinction between treaties and executive agreements. Both are
equally binding, but treaties require the concurrence of the Senate to be
effective.

-Art. 2, 1969 Vienna Convention

 Treaty under Philippine Law
TREATY EXECUTIVE AGREEMENT
SUBJECT MATTER
Political Issues Transitory Effectivity

Changes in National Policy Adjusts details to carry out well-established national policies
Agreements of a Permanent Character and traditions

Temporary

Implements treaties, statutes and policies

RATIFICATION
Requires ratification by the two-thirds (2/3) of the Senate Does not require concurrence by the senate to be binding.
to be valid and effective.

Thus, treaties have to be “transformed” in order to be part of the Philippine Law. A Treaty is
transformed when it is ratified by the Senate. (Const. Art. VII, Sec. 2)
After Ratification, a Treaty shall be deemed as if legislated by our legislature.
FUNCTION OF TREATIES
• Generally, treaties serve as sources of international law, charters of
international organizations, means of settling disputes, among other things.
It is the closest analogy to legislation that international law has to offer.
ESSENTIAL REQUISITES TO A VALID
TREATY
Treaty-making capacity
• A treaty to be valid must be entered into by parties with treaty making capacity.
• All states have full treaty-making capacity unless limited by reason of their status and
previous self-imposed inhibitions.
• The United Nations and its organs (i.e. the Security Council, the Economic and Social
Council) and international bodies like the World Health Organization may enter into
treaties.
ESSENTIAL REQUISITES TO A VALID
TREATY
Authorized representatives
• It is for municipal law to determine which organ of the state shall be empowered to
enter into treaties in its behalf. (i.e. The Constitution authorizes the President to
make treaties subject to a concurrence of two thirds of all the members of the
Senate).
General Rule: A state is not bound by a treaty made in its behalf by an organ or
authority not competent under the law to conclude the treaty.
Exception: A state may be responsible for an injury resulting to another state for
reasonable reliance by the latter upon the misrepresentation of the former.
ESSENTIAL REQUISITES TO A VALID
TREATY
Freedom to Consent
• Fraud or mistake will invalidate a treaty as it would an ordinary contract. Where thr consent
of the State is obtained through the corruption of its representative by another negotiating
State, the former may invoke such corruption in invalidating its consent to be bound by the
treaty.
ESSENTIAL REQUISITES TO A VALID
TREATY
Lawful Subject Matter
• When the subject matter of a treaty is illegal, it is rendered null and void. However, the object is
only deemed illegal when it contravenes or departs from an absolute or imperative rule or
prohibition of international law.
• i. Doctrine of jus cogens (peremptory)- a treaty contravening such norms may be invalidated.
• ii. Emerging jus cogens- new jus cogens can and will invalidate an existing treaty repugnant to it.
• iii. Erga Omnes obligations- a State may not enter into a treaty that would result in its violation
of an egra omnes obligation.
ESSENTIAL REQUISITES TO A VALID
TREATY
Compliance with the Constitutional Processes
• Ratification processes are governed by municipal law. Non-
compliance with this requisite will prevent the enforcement of the
treaty even if already signed by the negotiators.
Treaty-Making
By: John Andrew Gayamat
 Treaty Making Process
 There is no concrete way of creating a treaty. It may be presented in
different forms such as a contract or an exchange of notes
 Most treaties, however, follow a similar structure. Every treaty begins by
introducing its preamble, which states the object of the treaties and the
parties to it. It is then followed by what the parties agreed upon. A
statement of the period may or may not follow; it depends on the time
period for which the treaty shall exist.
NEXT UP
 Reservations and then ratification clauses follow. Then, it ends with the
signatures of the parties involved along with the date and venue of
ratification.
Going by the Law of Treaty,
the following steps form the
essentials of formation of a
treaty :
 Adoption of the text
 Consent of all parties to a treaty is essential for adopting a text. If the treaty
is being adopted at an international conference, a two-thirds majority shall
be required for the adoption of text unless agreed upon otherwise.
 Authentication of the text
 As per the procedure mentioned in the text, a treaty shall be established to
be authentic. On the failure of such procedure, signatures or initials of
representatives of the participating states may be sufficient to deem the
text to be definitive.
 Expression of consent
 This may be by way of signatures, ratification, acceptance, approval or
accession or by exchanging instruments required for the treaty.
 Consent by signature
 Provided that the treaty explicitly states that signature by the representative
of a state shall be sufficient to be declared as a party, or the negotiating
states have mutually consented to signature be sufficient, the
representative’s signature expresses a state’s full intention to enter into a
treaty.
Consent by exchange of
instruments required by the
treaty
 If the states agree that exchange shall be equivalent to
the expression of the consent to enter into the treaty,
then so shall be the case.
 Consent by ratification, acceptance or
approval
 If the negotiating states are of the opinion that ratification shall be
equivalent to expressing consent, or the treaty provides for ratification, then
it shall be an acceptable way of obtaining consent to the treaty. Similarly,
the same condition applies to consent expressed by approval or
acceptance.
 Consent expressed by accession
 Consent to the treaty shall be obtained If the treaty provides for it or the
negotiating states agree upon accession.
 Formulation of reservations
 A state may while concluding the treaty expresses its reservations unless
it’s prohibited by the treaty, or if permitted shall violate with the object and
intent of the treaty.
Treaty-Making in the
Philippines
By: John Andrew Gayamat
 What is a treaty?
 Under Philippine Laws, Treaties are
international agreements entered into by
the Philippines which require legislative
concurrence after executive ratification.
This term may include compacts like
conventions, declarations, covenants and
acts.
 Under International Law, Treaty means
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.
 Not all international agreements are governed by
international law. The convention applies only to those
which are “governed by the domestic law of one of the
parties or some other national law chosen by the parties.
 What is an executive
Agreement?
 Executive Agreements — similar to
treaties except that they do not require
legislative concurrence.
 What is the distinction
between a treaty and an
executive agreement?
 The difference between the two is
sometimes difficult of ready ascertainment.
Under international law, there is no
difference between treaties and executive
agreements in their binding effect upon
states concerned, as long as the negotiating
functionaries have remained within their
powers.
 International law continues to make no
distinction between treaties and
executive agreements: they are equally
binding obligations upon nations.
 In our jurisdiction, we have recognized
the binding effect of executive
agreements even without the
concurrence of the Senate or Congress.
Generally, treaties of any kind, whether
bilateral or multilateral, require Senate
concurrence while executive agreements
may be validly entered into without such
concurrence.
United Nations Convention on the
Law of the Sea (UNCLOS)

BY: JOHN ANDREW GAYAMAT

 DEFINITION

 According to the Permanent Court of Arbitration

(2009), An international treaty that provides a
regulatory framework for the use of the world’s
seas and oceans, inter alia, to ensure the
conservation and equitable usage of resources and
the marine environment and to ensure the
protection and preservation of the living resources
of the sea. It was adopted in 1982 and entered into
force in 1994.
 UNCLOS is an acronym for the United Nations Convention
for the Law of the Sea. The convention is also sometimes
referred to as the Law of the Sea Convention or the Law of
the Sea treaty.
 UNCLOS, as a law of the sea, came into operation and
became effective from 16th November 1982.
 However, the first time such a proposal was announced
before the United Nations was in the year 1973. Over the
course of nine years, with representations from over 160
countries coming forward, UNCLOS came into existence.
 UNCLOS Background

 Before the nautical law of UNCLOS came into force, there

existed a school of thought known as freedom-of-the-seas.
This doctrine had first come into operation during the
17th century.
 As per this law, there were no limits or boundaries set to the
aspect of marine business and commercial activities.
 Over the years and centuries as technology developed and the needs
of the people across the world grew, there emerged a problem. Over-
exploitation of the sea’s resources was immensely felt towards the
middle of the 20th century and many nations started feeling the need
to ensure the protection of their marine resources.
 Starting with the United States in 1945, many countries across the
world brought under their jurisdiction, the natural resources found
on their oceans’ continental shelf.
 Some of the countries that exercised this power were Argentina,
Canada, Indonesia, Chile, Peru, Ecuador and even countries like
Saudi Arabia, Egypt, Ethiopia and Venezuela.
 Since the usage of the marine reserves rose even more in the 1960s
and since missile launch pads also starting getting based in the
oceanic bed, it became imperative that a specific regulation be placed
to ensure proper protection and jurisdiction of the marine reserves.
 In 1967, the Third United Nations Conference on the Law of
the Sea was convened. In this conference, the UN
ambassador from Malta Mr Arvid Pardo requested a legal
power that could bring about international governance over
the oceanic floor and bed.
 Such a legal power would also ensure that there would not
be any problems arising between various countries over the
oceanic floor and bed space.
 In a major way, it was this UNCLOS III that paved the way
for the now existing nautical law.
BINDING EFFECT OF TREATIES
• General Rule: Treaties are binding only on the contracting parties
• Exception: Third states may be validly held to the observance of or benefit
from the provisions of a treaty.
• The treaty may be merely a formal expression of customary international law
which is enforceable in all civilized states.
• A treaty may expressly extend benefit to non-signatory states
INVALIDITY OF TREATIES
Grounds for invalidating a treaty are:
1. error of fact
2. fraud
3. corruption of the State’s representative
4. duress
5. the treaty is a violation of jus cogens
Generally, a State may invoke the aforesaid grounds to invalidate a treaty. EXCEPT
when the State expressly agrees that it remains effective, or when the state acquiesces.
AMENDMENT AND MODIFICATION
OF TREATIES
Amendment – formal revision done with the participation of all the parties to the treaty.
Rules on amending treaties: (Art. 40)
• Proposal to amend must be made known to all the contracting States.
• These States shall take part in the decision-making, negotiation and conclusion of any
agreement for the amendment of the treaty.
AMENDMENT AND MODIFICATION
OF TREATIES
Amendment
• Parties to the pre-amendment treaty are entitled to be parties to the amended treaty.
• If the State is a party to one treaty but is no a party to the amended treaty, then Article 30 par.
4(b) governs.
• Any State which becomes party to a treaty after entry into force of the amending agreement
shall:
o be considered a party to the amended treaty
o be considered a party to the unamended treaty in relation to any party not bound by the
amended treaty.
AMENDMENT AND MODIFICATION
OF TREATIES
Modification – formal amendment involving some of the parties
Rules on modifying treaties:
• A treaty can only be modified when:
o Modification is provided for by the treaty
o Modification is not prohibited by the treaty
o Modification does not affect the rights and obligations of other States
o Modification is not incompatible with the object and purpose of the treaty.
TERMINATION OF TREATIES
Treaties are terminated by:
• Lapse of definite period provided for by the treaty
• Purpose for which it was established has already been achieved
• Material Breach
• A material breach of a treaty, consist in
• A repudiation of the treaty not sanctioned by the present Convention
• The violation of a provision essential to the accomplishment of the object or
purpose of the treaty
TERMINATION OF TREATIES
• Impossibility of performance
• In order to constitute impossibility of performance, the impossibility must result from
the permanent disappearance or destruction of an object indispensable for the execution
of the treaty.
• Rebus Sic Stantibus
• Rebus sic stantibus is the principle of fundamental change in circumstances allowing States
to suspend or terminate the application of a treaty.
• Basically, it can be said that the general rule is pacta sunt servanda and rebus sic statibus is one
exception.
AUTHORITY TO TERMINATE
Who can terminate treaties?
The Convention does not provide. In the Philippines, however, the power to
enter into treaties is shared between the President and the Senate. The law does
not specify who has the authority to terminate, but as a corollary, those
empowered to enter into them can be deemed the same ones empowered to
terminate them.
SUCCESSION TO TREATIES
A new State succeeding another State previously a party to a treaty is not obliged
to maintain in force that treaty or to become a party thereto. This is called the
clean slate rule.
SUCCESSION TO TREATIES
Exceptions to the clean slate rule:
1. Boundary Regimes – succession does not affect boundaries already set by a
treaty, or obligations and rights established relating to the regime of a boundary.
2. Other territorial regimes – succession does not affect use of any territory, or
restrictions thereof, or rights established by a treaty for the benefit of any
territory.
• The provisions on other territorial regimes do NOT apply to treaty
obligations of the predecessor State providing for establishment of foreign
military bases.