F. General Principles of Treaty Law

TREATY

A treaty is generally defined as agreements between and among States, by which parties obligate themselves to act, or refrain from acting, according to the terms of the treaty. (Art. 2, Vienna Convention on the Law of Treaties)

However, under the Vienna Convention on the Law of Treaties (VCLT), a treaty has been defined as “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.”

Provisions of a Treaty

Many treaties, particularly those of a multilateral nature designed to establish general rules of common application, exhibit a mixture of ‘legislative’ characteristics. A provision of a treaty may:

• Purport to codify existing rules of customary law, e.g., Art. 55 of the 1982 Convention on the Law of the Sea which provides for the recognition of the EEZ;
• Crystallize a developing rule of law, firmly establishing a legal footing a situation which has previously been part of the practice of a limited number of States; or
• Generate rules of law independently of the previous practice of State, e.g., prohibition on the threat or use of force in international relations. (Kaczorowska, 2010)

Pacta Sunt Servanda (2000 BAR)

International agreements must be performed in good faith. A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties. A state which has contracted a valid international agreement is bound to make in its legislation such modification as may be necessary to ensure fulfillment of the obligation undertaken.

What is the definition of treaty?

A treaty is 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. (VCLT, art. 2(1)(a)).

What are the requisites of a treaty?

• Must be concluded between States
• In written form
• Governed by International Law
• Must be embodied in a single instrument or in two or more related instruments

What is the basis of a treaty obligation?

Treaty obligation is based on consent. No state may be bound by a treaty obligation unless it has so consented. (VCLT, art. 34).

What is pacta sunt servanda?

Under the principle of pacta sunt servanda, a state party to a treaty is bound to comply with the obligations it assumed under such treaty in good faith. (VCLT, art. 26)

b. Custom

Vienna Convention on the Law of Treaties (VCLT) (2012 BAR)

The law of treaties is the body of rules which govern what is a treaty, how it is made and brought into force, amended, terminated, and generally operates. Apart from issues of jus cogens, it is not concerned with the substance of a treaty (the rights and obligations created by it), which is known as treaty law. Although the VCLT does not occupy the whole ground of the law of treaties, it covers the most important areas and is the indispensable starting point for any description of the law. For good reason, the VCLT has been called the treaty on treaties. (Aust, 2006)

It was adopted on May 22, 1969 and opened for signature on May 23, 1969. The Convention entered into force on January 27, 1980. (Vienna Convention on the Law of Treaties)

Diplomatic Negotiations

It is clear that while the final text of the JPEPA may not be kept perpetually confidential – since there should be “ample opportunity for discussion before a treaty is approved” – the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that “historic confidentiality” would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. (Akbayan v. Aquino, G.R. No. 170516)

Fundamental Principles of the Law of Treaties

• The principle of free consent – A state cannot be bound by treaty to which it has not consented. Free consent is vital for initial adoption and subsequent development of a particular treaty as it ensures that a State remains in control of the commitments it has made under the relevant treaty;
• The principle of pacta sunt servanda – Literally means agreements must be kept. Embodied in Art. 26 VCLT, which states that; ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith. Therefore, a contracting party will be held responsible for breach of a treaty.’ Applies only to treaties which are in force, not to invalid, suspended or terminated treaties; and
• The principle of good faith – Recognized as the foundation of international legal order. States and non-State actors are required to comply with binding obligations imposed upon them by international law, irrespective of whether such obligations derive from treaties, customary rules, or any other source of international law. It is all encompassing as it even imposes obligations on a State in the pre-ratification stage.

It applies throughout the life of a treaty, from its negotiation, through its performance to its termination.

Each time a State is in breach of the principle of pacta sunt servanda it also violates the principle of good faith. (Kaczorowska, 2010)

Most Favored Nation (MFN)

A most-favoured-nation (MFN) clause is a treaty provision whereby one State (the granting State) undertakes the obligation to accord to another State (the beneficiary State), in a designated sphere of economic or other relations, treatment not less favourable than the treatment it extends in the same sphere to any other third State (Rasulov, Most Favoured Nation Clause)

Ratification is so required when under Art. 14(1) of the VCLT:

• A treaty provides for such consent to be expressed by means of ratification.
• It is otherwise established that the negotiating States agreed that ratification should be required.
• The representative of the State has signed the treaty subject to ratification.
• The intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation. (Vienna Convention on the Law of Treaties)

Accession or Adherence or Adhesion

Occurs when a State, which did not participate in the negotiating and signing of the relevant treaty, formally accepts its provisions. It may occur before or after a treaty has entered into force. It is possible if the treaty provides that consent may be expressed by accession, the negotiating States agreed that consent may be expressed by accession, or all the parties subsequently agree that the State may accede. (Kaczorowska, 2010)

Interpretation of Treaties

A treaty shall be interpreted in good faith, in accordance with the ordinary meaning given to the terms of the treaty in their context and in the light of its objects and purposes. (Kaczorowska, 2010)

Amendment or Modification of Treaties

A treaty may be amended by agreement between its parties, subject to the applicable treaty rules and Article 40 of the Vienna Convention on the Law of Treaties. Certain parties may modify a multilateral treaty between themselves if the treaty permits it, or if the treaty does not prohibit it and the modification satisfies the conditions in Article 41. (Arts. 39–41, Vienna Convention on the Law of Treaties)

Instances when a third State who is a non-signatory may be bound by a treaty

Treaty rules and third States

• When a treaty is a mere formal expression of customary international law, the customary rule may bind a third State independently of the treaty (Bayan Muna v. Romulo, G.R. No. 159618, 01 Feb. 2011);
• Under Art. 2 of its charter, the UN shall ensure that non-member States act in accordance with the principles of the Charter so far as may be necessary for the maintenance of international peace and security; this does not make non-members parties to the Charter. Under Art. 103, obligations of member-states shall prevail in case of conflict with any other international agreement including those concluded with non-members (United Nations Charter);
• A treaty creates neither obligations nor rights for a third State without its consent. A treaty obligation requires the third State’s express written acceptance; a treaty right requires its assent, which is presumed unless the contrary is indicated. A treaty that expressly extends benefits to non-signatory States does not, merely for that reason, bind them to treaty obligations (VCLT, Arts. 34–36); and
• Parties to apparently unrelated treaties may also be linked by the most-favored nation clause.

Effectivity Date of a Treaty

• In such manner and upon such date as it may provide or as the negotiating States may agree; or,
• Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States. (Art. 24, Vienna Convention on the Law of Treaties)

NOTE:

GR: A State may not invoke a violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent to be bound by a treaty. (Art. 46, Vienna Convention on the Law of Treaties)

XPN: If the violation was manifest and concerned a rule of its internal law of fundamental importance. (Art. 46, Vienna Convention on the Law of Treaties)

A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. (Kaczorowska, 2010)

Modification of a treaty

GR: A treaty may be amended by agreement between the parties, subject to the applicable treaty rules. Amendments to multilateral treaties are governed by the rules in Article 40 of the Vienna Convention on the Law of Treaties. (VCLT, Arts. 39–40)

XPN: Certain parties may modify a multilateral treaty as between themselves if the treaty permits it or, if the treaty does not prohibit it, the modification does not affect other parties’ rights or obligations and does not derogate from a provision where doing so would be incompatible with the treaty’s object and purpose. Unless the treaty otherwise provides, those parties must notify the other parties of their intention to modify the treaty and of the proposed modification. (VCLT, Art. 41) (Alina, 2010)