Treaties

The 1969 Vienna Convention on the Law of Treaties defines a treaty 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 instruments and whatever its particular designation."  International organizations can be made parties to treaties. Treaties are intended to create legal rights and obligations for the parties who enter into them. Alternate terms for "treaty" include "convention," "pact," "agreement," "protocol," accord," "general act," "final act" and "exchange of notes." An "executive agreement" is not a treaty but is equally binding as a treaty. If there is a dispute of whether the agreement is a treaty of executive agreement, the DFA and the Senate must agree and submit their findings to the president.

Treaties deal generally with basic political issues and need concurrence. They can restrict the sovereignty of a state. Executive agreements deal with details in enforcing national policies and temporary arrangements; they don't need senatorial concurrence. 

An exchange of notes is a record of a routine agreement similar to a private law contract. It's merely exchanging 2 documents where the accepting state repeats the text of the offering to record its acceptance. It's a technique used often because of speed and it avoids legislative approval.

If one state ratifies a treaty, it can't make the other state that signed it ratify it as well.

For a treaty to be valid, the following must be present:

1.) Treaty-making capacity

This is an attribute of sovereignty. Both states and international organizations have this capacity.

2.) Competence of the representative/body concluding the treaty

This power generally belongs to the head of state. In the Philippines, the president has this power, but the conclusion must be ratified by a 2/3vote of the Senate.

3.) Freely-given consent of the parties

If the consent wasn't free or if fraud or errors were committed, the treaty is voidable (valid until its validity is questioned.) If the representative of one state was corrupted in the negotiation by another negotiating state, the treaty is invalid. Unequal treaties imposed by force are void (doctrine of unequal treaties.) The subject matter of the treaty must be lawful. A treaty is illegal if violates an absolute rule in international law. Derogations of customary international law is not allowed (jus cogens.) Accordingly, treaties with provisions contrary to international law are invalid (ex. torture of prisoners.)

4.) Ratification under the constitutional processes of the participants

In the Philippines, a treaty requires a 2/3 vote of the whole Senate to complete the ratification process.

The steps in making a treaty are the following:

1.) Negotiation

The representatives bear documents of full powers (pleine pouvoirs) of their states to enter into treaties with the willingness to observe them. There are cases, however, when certain people (like heads of state, foreign ministers, etc.) enter into the negotiations. The negotiations are privileged and can't be published or it would affect the way the country deals with future negotiations (AKBAYAN vs. Aquino, GR 170516, July 16, 2008.)

2.) Signing

The order of naming the parties and plenipotentiaries is varied so each party is named and each plenipotentiary signs first in the document to be kept by it (principle of alternat.) Ex. in a treaty between the US and the Philippines, the Philippine chief negotiator signs the Philippine copy first while the American chief negotiator signs the american copy first.

3.) Ratification

The states approve and confirm the treaty, signifying their willingness to abide by it. In the Philippines, ratification is done by the president with a 2/3 concurring vote from the Senate. In case there is an existing treaty another state can become a party to it by accession; the new member is invited or permitted to join by any of the existing contracting parties. When a state signs a treaty but wants to modify it, it's called a reservation; the state that made the reservation is still a party to the treaty, provided that the reservation is compatible with the treaty's object and purpose.

4.) Entry into force

Every international treaty is to be registered with the UN. Enforcement of the terms is dependent on what the negotiating parties agreed on. If no agreement was made, a treaty enters into force when all the parties consent to it. There is already consent when there is an exchange of instruments, ratification, approval, accession or if the treaty provides so, upon deposit of the instruments with a named depositary and notification to the parties of the deposit.

Treaties can't impose obligations on non-parties (pacta tertiis nocent nec prosunt) except by accession or adhesion. Other states can be bound to a treaty by a "most favored nation" clause.

Treaties must be observed in good faith. The state, if necessary, must modify its laws accordingly to prevent an international embarrassment (pacta sunt servanda.) In the Philippines, however, if a treaty is contrary to the constitution it will be declared invalid. The obligations under a treaty are terminated when a fundamental or vital change happens that allows the state to withdraw from the treaty (rebus sic stantibus.) For withdrawal to be invoked, the following must be present:

1.) The change is substantial that it removes the treaty's foundation

2.) The change was unforeseeable when the treaty was concluded

3.) The change wasn't caused by the party who wants to withdraw

4.) Withdrawal must be invoked at a reasonable time

5.) The treaty's duration must be indefinite

6.) Withdrawal will not have retroactive effect

Treaties are to be interpreted in good faith and in the ordinary meaning. Later agreements, annexes, text, etc. are to be considered in its interpretation. Modification requires the consent of all the parties (but the treaty may sometimes allow modification.)

Treaties are terminated for the following reasons:

1.) Expiration or withdrawal of a party in accordance with the treaty.

2.) Extinction of one of the parties (in case of bipartite treaties) when the rights and obligations of the extinct state will not be inherited by its successor.

3.) Mutual agreement.

4.) Denunciation by a party (the right to give notice of withdrawal or termination is called the right of denunciation.)

5.) Supervening impossibility of performance.

6.) Loss of the subject matter.

7.) A later inconsistent treaty concluded by the parties.

8.) Material violation or breach.

9.) Rebus sic stantibus

10.) War between the parties, unless the treaty relates to the conduct of war.

11.) Severing of diplomatic relations if the relations are indispensable for the treaty's application.

12.) Jus cogens or if a new norm of international law comes out that revises or replaces the old norm or makes the existing treaty void.