Lecture 8

LAW ON TREATIES

I. Primary and Secondary Rules

In the scheme of rules, advanced by different legal philosophers, these would be called secondary rules.
These are the rules that tell you what to do and not what to do. Remember rules alone will not
constitute a legal system because if you have primary rules alone that command what you ought to do
and what not to do, your problem would be, suppose you need to change those rules, how do you
recognize what are rules and which are not rules? And what happens when you deal with people who
violate those rules? That is why Dworkin says you cannot have a system of law consisting only of primary
rules. There is need for a set of secondary rules which will be rules of recognition – how do you
recognize what a law is – how do you do you recognize a law as distinct from a preset as distinct from
advice as distinct from admonition. Next, you also need rules of interpretation. How do you interpret
the rules? And, you need remedial rules. What happens when these rules are violated? That is exactly
what is taken up in the section of international law on the law of treaties.

II. Law of Treaties

The Law of Treaties is embodied in the Vienna Convention on the Law of Treaties of 1969. However, like
many parts of international law, the Vienna Convention on the Law of Treaties does not completely lay
down new law. At the beginning of this course, I already told you that the only parties that are bound to
the provisions of a treaty are the parties that concluded the treaty between themselves. However, if a
treaty embodies in its provisions principles and rules of customary international law, they will be binding
even on non-parties to the treaty precisely because they are rules of customary international law. They
are rules of general international law.

What is a treaty? Generally speaking, a treaty is any agreement between states. It is an agreement that
creates rights or obligations; and while, in the history of states, these agreements have always taken
some solemn form – documents carrying seals etc. – theoretically, there is nothing to prevent two states
or more from entering into an oral agreement. Let us say that hostilities exist between two or more
states and the president of one of the warring states calls the president of the other state and says,
“Let’s stop this non-sense. Too many of our people have died and we are both suffering because of this.”
So through that telephone conversation, they agree that hostilities will end at 12 midnight. Is that a
treaty? Yes it is a treaty. It is a treaty that brings about an end to hostilities. BUT even if theoretically,
treaties can be oral, the Vienna Convention will apply only to treaties that are written in form. Let me
make that clear because many interpret Article 2 paragraph (a) of the Vienna Convention as requiring
that all treaties should be in written form. That is not correct. The example that I gave you is a very
plausible example of an agreement between states that is not written but is nonetheless binding and it
derives its binding force from the general principle of international law pacta sunt servanda –
agreements must be observed. That is a principle without which international order would not be
possible. HOWEVER, for a treaty to be under the coverage of the Vienna Convention on the Law of
Treaties, the treaty has to be in written form.
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A bilateral treaty is a treaty made between or concluded between two states. A multilateral treaty is a
treaty entered into by many states and most of the time, I had the occasion to say that multilateral
treaties create a legal regime such as UNCLOS, the General Agreement on Tariffs and Trade, the World
Trade Organization, etc.

III. Other Elements

The second element of a treaty that is covered by the Vienna Convention on the Law of Treaties is that it
is concluded between states. Now, is it possible for a state to enter into an agreement with the force of
a treaty with an international organization? (For example, the ASEAN, the UN, the EU, and the
Organization of African States) YES. BUT such a treaty would be governed by a different set of rules
under a different convention- not the convention we are currently studying which is the Vienna
Convention on the Law of Treaties.

Third requirement: it must be governed by international law. If the Philippine government enters into an
agreement with an American arms manufacturer to sell to the Philippines a quantity of firearms and
ammunition, even if that arms dealer were an agency or bureau of the United States of America,
actually what would be happening would be a commercial transaction between the government of the
Philippines and this arms dealer. It would be governed not by international law but by the domestic law
either of the US or of the Philippines, in which case that transaction would fall into private international
law or conflict of laws but would not be governed by the Vienna Convention on the Law of Treaties.
Therefore, essential to treaties that are governed by the Vienna Convention on the Law of Treaties is
that there is an intention that can be gleaned from the conduct as well as the expression of the parties
that their agreement will be governed by international law.

IV. Single or Multiple Documents

A treaty does not have to be embodied in a single document. A treaty can be embodied in several
documents taken together. A very good example is the General Agreement on Tariffs and Trades. One
document that is constitutive of that is TRIPS or Trade Related Aspects of Intellectual Property Rights but
there are other documents. So these documents collectively make up that, but that, although dispersed
through several documents, make up a treaty.

V. Expression of Acceptance of a Treaty

What is the significance of the signing of a treaty? It is the expression by the parties that they accept the
text of the treaty- that they approve of the text of the treaty. When the Philippine representative signs
the treaty, he is not yet accepting the treaty provisions in behalf of the Republic of the Philippines. He is
only saying, “We accept that this is the text that we shall discuss or mull over,” and more importantly,
signing commences the process of ratification. You cannot ratify a treaty that is not even signed. If that
is the case that the signing of a treaty signifies the commencement of the ratification process and
signifies that the states to the treaty accept the text of the treaty, what effect if any does it have on the
parties? The fact that the representatives signed the treaty is not an acceptance of the binding nature of
the treaty provisions. It is merely an acceptance of the wording or phraseology or terms of the treaty
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and a commencement of the process of ratification. That notwithstanding, here is a very important
point: the moment a state signs a treaty, the state is duty-bound to refrain from those actions that
violate or frustrate the objectives of the treaty. You consider that part on good faith that is exacted on
all states. Pumirma ka nga. Ibig sabihin umpisa na ng pagdedebate, pagtatalakay, at pag-iisip kung
tatanggapin man ang kasunduan na yan o hindi. Kung ganoon, iwasan mo naman yung mga bagay-bagay
na kumokontra sa mga pakay ng kasunduan na yan.

Let us say one of the treaties that the world has been interested in is the reduction of Carbon emissions
considering our interests on global warming, and our worries about the future of our planet. Let us say
that the ASEAN countries arrive at the text of a treaty that sets Carbon emissions in the ASEAN region at
a certain level and our representatives signed them. Now, at the time of signing, we are not yet bound
to implement that Carbon emission limits embodied in that treaty. That is to say that the treaty has not
yet entered into effect. But our signature makes it incumbent upon us the duty to refrain from acts that
frustrate the objectives of the treaty. So if right after signing the treaty, we immediately put up 20 or 50
or even a hundred coal plants with all their emissions up in the atmosphere, we are evidently in bad
faith. What we talked about as the doctrine of state responsibility would then lie which means that we
could be sued before an international tribunal for our reckless behavior.

VI. Capacity to Enter into Treaties

Who has the capacity to enter into treaties? Well, the capacity to enter into treaties is a matter of
domestic law. So, whether it is the Queen of England or Prime Minister Boris Johnson who may enter
into a treaty is a matter of the Constitutional Law of the United Kingdom. It is not a matter of
international law. Similarly, if you ask, it is the King of Malaysia or the Prime Minister who may enter
into treaties? Again, that is a matter of the Constitutional law of Malaysia.

VII. Full PAWERZ

One very important feature on the conferral of power to a representative in concluding a treaty is what
is known as “Full Powers.” It is defined as a document emanating from a competent authority of a state
designating a person or persons to represent the state for negotiating, adopting, or authenticating the
text of a treaty, for expressing the consent of the state to be bound to a treaty, or for accomplishing any
other act with respect to a treaty. Let us say that the ASEAN countries meet in Bangkok, do we have an
ambassador in Bangkok? Yes. Can he represent the Philippines while the treaty is being drafted or
crafted? He can BUT on top of his being ambassador, he must be issued what we know as Full Powers.
That is why in Latin this was called plenipotentia, and the bearer was called a plenipotentiary. I just want
to emphasize that a diplomat or a representative of the Philippines possessing full powers need not be
empowered to accept the terms of the treaty or to commit the Philippines to abide by the treaty. We
can give him full powers merely for the purpose of authenticating the text of a treaty, for negotiating the
text of a treaty, for bargaining in behalf of the Philippines on the terms of a treaty.

Of course, if it is the President himself who represents the country, he does need full powers because he
is understood to possess full powers. After all, the Constitution entrusts to him the conduct of foreign
relations. I join Dr. Gatdula in the observation that it is not only the executive who conducts foreign
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relations. Congress also does and in a more limited manner, the Supreme Court, insofar as it has the
power to declare treaties unconstitutional. So all branches of the government are involved in foreign
relations, but the branch that is directly tasked with attending to the business of the negotiation of
treaties and the conclusion and ratification of treaties is the executive branch of government. It is only
when we send a representative in the President’s place that such a person has to be given full powers.

VIII. DAGAtification

Let me clarify the term ratification. Many times professors, authors, and students say that after the
President has perused the treaty, he then sends it to the senate for ratification. Article VII of the
Constitution requires all treaties and international agreements have to be concurred in by 2/3 of the
senate. Many call that ratification. THAT IS INCORRECT. The power to ratify lies with the president. The
moment the plenipotentia says Mr. President here is the text of the treaty that I signed in behalf of the
Philippines. The president studies the treaty in all probability he consults his cabinet and then decides to
ratify the treaty or not. Whether the president ratifies a treaty or not is a matter of executive discretion.
The president looks at the interest of the country and decides whether the treaty is in its best interest or
not. He decides whether the treaty furthers or detracts from the cause of world peace. If the president
decides not to ratify the treaty, that is the end of the story, and even if the treaty enters into effect for
other states, the Philippines will not be governed by the terms of the treaty. If he however decides to
ratify it, the next step is for him to send it to the Senate for its concurrence. If Senate resolves by 2/3 of
its membership to allow the treaty, then the treaty is to enter into force for the Philippines. So,
ratification is finished at the executive stage. It is sent to the Senate for its concurrence because that is
what our constitution requires.

What is the reason that a chamber of the legislature should intrude into the power of treaty making, a
power that is supposed to be exclusively executive? One plausible reason by international jurists is that
when a treaty enters into force, a treaty has the same force as a statute in our jurisdiction. In one case
decided by our Supreme Court, the Supreme Court was asked, “Can a treaty provision that has no
correspondent in domestic law support a cause of action?” and the SC writing through Justice Puno said
YES, because a treaty once concluded, ratified, and concurred in by the Senate has the force of a statute
in the Republic of the Philippines and precisely because a treaty alters and modifies the legislative
system, it is only apt and proper that there be legislative participation even if it may be in the limited
form of senate concurrence.

When the Statute of Rome which establishes the International Criminal Court and provides for its
organization was sent to our president for ratification, President GMA at that time was prevailed upon
by the United States not to ratify. Why? Even if the US was at the inception of the ICC and an ardent
supporter of the ICC, it turned lukewarm when it realized that because of its dispersal of its troops
around the world, its troops and officers could be harassed by the filing of cases before the ICC for
genocide, for crimes against humanity, for the violations of the laws and customs of war. Aggression is
not yet decided with legal definitiveness. The US has since launched a relentless campaign against the
treaty of Rome and prevailed upon GMA not to sign it. So GMA did not send it to the Senate. Prof. Harry
Roque together with others were of the belief that she was obligated to send it to the Senate and to let
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the Senate decide whether to concur or not to concur. So they brought the matter to the Supreme Court
which replied, “The president’s prerogative in respect to the conduct of foreign relations, includes the
prerogative to decide whether to send a treaty to the Senate for its concurrence or not.” Please be
careful. I am not saying that the President can bypass the Senate. If the president decides to accept a
treaty, she has no other recourse but to ask Senate for its concurrence. Notice: that this is what
happened in respect to the extension of US bases in the Philippines in the time of Cory Aquino. She was
herself in favor of extending the stay of US bases but Senate through one vote: Sen. Jovito Salonga
turned down the Presidential request and withheld its concurrence, resulting in the end of US bases
presence in the Philippines. However, if the president refuses to send the treaty to the senate, that is
practically a statement of the President that he or she rejects the treaty and will not ratify it. As such,
the SC ruled that she cannot be commanded by mandamus to send a treaty to the Senate even if she
does not want to ratify it because that would be tantamount to letting Senate override the Presidential
decision in regard to a treaty.

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FAN QUESTION: May a treaty party later abrogate on a treaty into on the ground that the since entering
into such has become disadvantageous on the other party?

A state is always free to withdraw from a treaty as long as the treaty itself provides for what are known
as denunciations. A process of withdrawing from a treaty is known as Denunciation of a Treaty.

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Whether a treaty may be sent to the Senate or not is part of the treaty-making powers of the President
and the president may decide not to send it to the Senate for concurrence in which case it will never
enter into force in the Philippines meaning that the refusal of the President to send the treaty to the
President is concomitant to rejecting the treaty altogether. In respect to concluding of treaties, there is
no such thing as overriding a presidential rejection of a treaty. It is a power vested in the executive.

IX. Stages of Ratification

That is ratification on the domestic stage. There are however two levels of ratification: Ratification on
the domestic stage and ratification on the international stage. Why is that? Most of the time, a treaty
will provide for its ratification internationally. For example, a treaty could provide “This treaty shall enter
into force after the deposit of the 60 th instrument of ratification with the Government of the
Netherlands. What that means is that the treaty itself provides the it does not enter into force until at
least 60 states have ratified it and their instruments of ratification is deposited with a depositary state in
this case the Netherlands. In many cases, the depositary agency is the United Nations. That is ratification
on the international stage. That is the condition that the treaty lays down so that it enters into effect.

The question has recently been hotly debated whether the president as the executive officer vested
with the power to enter into treaties and to conclude them, can unilaterally withdraw or denounce from
a treaty. Sadly, this is one of the matters which the text of the Constitution does not answer. I was
Lecture 8

invited with other experts on the Constitution to testify to the Senate committee exactly on this
question. It was and is still my position that for the same reason that Senate must concur with the
President in respect to a treaty, its concurrence is likewise necessary when we withdraw from a treaty.
The argument is the same. Withdrawal from a treaty affects the legal system. For example, if the
President decides to withdraw from the UN Convention on the Law of the Sea, that changes the whole
legal regime affecting internal waters, archipelagic waters, the territorial sea, the regime of islands, the
continental shelf, the Exclusive economic zone. And all that will change by the simple expedient of a
presidential fiat. In my presentation before the senate, I did research on the history of denunciations
and it is very clear that in the very early years of the United States, treaties were denounced principally
by the Senate and upon authority of Congress and when the President attempted to denounce a treaty
without congressional consent, his attention was immediately called by the US Congress. Come to think
of it, if you maintain the thesis that a president alone can denounce a treaty and cause the withdrawal
of a treaty, then you are saying that the president alone can cause the withdrawal from the United
Nations. You are also saying that the president alone can withdraw from the world trade organization
even if it would have disastrous consequences for our economy. You are also saying that the president
alone without any congressional consent would have the right to tremendously alter maritime zones
and our authority over maritime areas by his act of denunciation. To prevent such improvident
unilateralism, it is my thesis and not my alone, that the president does not have the unilateral power to
withdraw from a treaty but let us await the Supreme Court on this.

X. Executive Agreements

Our constitution is very clear. All treaties and international agreements, by whatever title or name, need
Senate concurrence. So why is it that there are some international agreements that do not pass through
the Senate? These are known as executive agreements. And one such example is the EDCA. A treaty
needs Senate concurrence but EDCA or an executive agreement does not. Of course, what comes to
mind is the thought that Kung ganun ba naman na hindi kailangan na maghimasok ang senado edi
gawing …

-------------------Entertains fan question---------------------

As I told you, treaties can be denounced as long as the treaties allow for denunciation. So whatever a
state has for denouncing a treaty, it is free to do so, on condition that it is a treaty that allows
denunciation, because there are some treaties which do not allow denunciation like most human rights
treaties because human rights treaties attempt to make a permanent legal regime. So you may not want
it anymore or you may not want to be bound by it but since human rights treaties represent a progress
of international human rights, then the treaty will not allow treaty denunciations. So yes, a state may
denounce from a treaty as long as the treaty itself allows for denunciation. On how do they denounce it,
is a matter of the domestic law of the state that denounces. So what is our process for denunciation in
the Philippines? As I told you, our Constitution is silent about that and this is being debated now and
taken up by the Supreme Court.

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Lecture 8

Why don’t you make everything an executive agreement so that it does not need to pass through senate
scrutiny or under the requirement that requires their concurrence? Not everything is appropriate
subject matter for a treaty, and not everything is appropriate matter for an executive agreement.

Let us take EDCA. EDCA is an enhancement of the mutual defense treaty. In other words, all that you are
doing in EDCA is enhancing what has already been agreed upon under the mutual defense treaty. So
since there is already a Mutual Defense Treaty, a treaty which needed Senate concurrence, and the
Visiting Forces Agreement, which also needed senate concurrence, there is no more need to send the
EDCA to the senate for its concurrence because it is a mere executive agreement. An agreement entered
into pursuant to an antecedent treaty provision may be the subject of an executive agreement that does
not need Senate concurrence.

Here is another example, under the documents of an integrated ASEAN, the countries that are parties to
the integrated ASEAN are treaty-bound to render full faith and credit to the academic units and
diplomas conferred by the universities of their respective countries. So if an accountant from the
Philippines wishes to practice accountancy in Singapore, Singapore cannot tell you to study it all over
again as in how they do it in Singapore because under the integrated ASEAN agreements, they are
bound to give full faith and credit to our degrees here. However, the agreement was not a blanket
agreement. What was provided was that the states would enter into a negotiation course by course. For
example, there is no agreement yet in regard to law. Can a Philippine lawyer practice law in Singapore or
Vietnam? At the moment, not yet. And neither would we allow a Malaysian lawyer to practice law in the
Philippines. Neither would we allow a Vietnamese lawyer to practice law in the Philippines. On the
assumption that we would arrive on such an agreement of course with the consent of our Supreme
Court because the SC has the ultimate rule-making power in respect to the practice of law. So, if the SC
does consent, the agreement with other ASEAN countries would merely take the form of an executive
agreement and not a treaty because there is already an underlying treaty that supports the executive
agreement.

XI. VFA

Another: when an executive agreement is pursuant to an existing statute of the Philippines, there is no
need for senate concurrence. Why? The very existence of the statute is already the expression of
Congress’ support or approval of the executive agreement. The executive agreement merely brings the
provisions of the statute to fruition insofar as international relations are concerned. You cannot make
use of an executive agreement to substitute for a treaty. The treaty then serves as the legal backbone
and everything else that depends on that backbone can be supplied by international agreements that no
longer need senate concurrence. One issue that cropped up in respect to the VFA case was this: The
Constitution requires insofar as you are dealing with the presence of military troops, bases or
equipment in the Philippines, well, it has to be embodied in a document that is considered a treaty by
both parties, and if deemed necessary by congress, submitted to a plebiscite or to a referendum. We
passed VFA as a treaty, but in the US, it was passed as an executive agreement, and those who opposed
VFA said the requirement of the constitution was not fulfilled because the constitution requires that it
should be a treaty for both parties. When the representative of the US was asked why they used the
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vehicle of an executive agreement rather than a treaty, the Government of the US through its
representative replied that most foreign agreements entered into by the US take the form of an
executive agreement but whether executive agreement or a treaty, the legal effects are exactly the
same. Since the Constitution requires for foreign troops, bases, or equipment bases or equipment in the
Philippines, there has to be an agreement that has the force of a treaty for both parties, the Supreme
Court was satisfied that the requirement was fulfilled because even by its nomenclature, it was an
executive agreement in the US, it nevertheless has the force of a treaty.

XII. Denunciation

There are some treaties which as we have already seen will not allow for denunciation. I mentioned
human rights treaties. Other treaties which do not allow for denunciation are treaties establishing
boundaries, because if there is one interest that the world has, it is the stability of boundaries because
these have been known to cause wars and upheavals.

XIII. Abangan…

So in the coming lesson we shall take up what happens if treaties are not complied with, what happens
if there is a defect in the formation of a treaty, what happens when there is fraud and all other vices of a
treaty, and what the consequences are.

I will post questions relative to this lesson.

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