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Module 2, Sources of International Law

John Hay, Secretary of State, signing the memorandum of ratification of the Treaty of Paris (1898) on behalf of the United States

Treaties, the principal source of Public International Law, are agreements between sovereign States, or international organizations in some cases, which is binding at international law. They are commonly called agreements, conventions, protocols or covenants , and to a lesser extent, exchanges of letters.

What Are Treaties

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 particular designation. Such definition is provided by the Vienna Convention on the Law of Treaties (VCLT), considered as the "treaty on treaties" as it establishes the ground rules for treaties and international law. A treaty need not be called a treaty, but it must be a written international agreement between States, although it need not be embodied in just a single instrument.

Executive agreements are considered politically binding to distinguish them from treaties which are legally binding. These are agreements between the heads of government of at least two States that does not require legislative concurrence.

Kinds of Treaties

A bilateral treaty, also called a bipartite treaty, is a treaty between two states or entities. It binds both the states towards the obligations mentioned therein agreed between both of them. In contrast, a multilateral treaty is a single treaty entered into by a number of states which may be regional or may involve states across the world, establishing rights and obligations between each party and every other party. Law-making treaties are international instruments that represent new general rules of law amongst a large number of states.

Who Are the Parties to a Treaty

A party refers to a State that gives its explicit consent to be bound by the treaty. This explicit consent generally is in the form of an instrument of ratification, acceptance, approval, or accession. The State submits this instrument to the appropriate authoritative body for that treaty. If all the formal requirements are met and the instrument is accepted, the State officially becomes a party to the treaty. A party is legally bound by the provisions within the treaty and accepts all the treaty’s obligations, subject to legitimate reservations, understandings, and declarations.

States

A State which has consented to be bound by the treaty and for which the treaty is in force.

International organizations

These are intergovernmental organizations under the VCLT.

Individuals and corporations

These are not governed by the VCLT.

Third States

A State that is not a party to the treaty. A treaty does not create obligations or rights for a Third State without its consent. An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.

Who Can Negotiate a Treaty on Behalf of a State?

A state will be represented by a person. The representative of the State must have full powers to do so. Full powers is a document emanating from the competent authority of the State designating a person or several persons to represent the State for negotiating, adopting, or authenticating a text of a treaty for expressing the consent of the State to be bound by a treaty or to accomplish any act with respect to a treaty. If a person is not able to produce these full powers, the representative’s actions would not produce any legal effect for the State that he is representing, unless the State later confirms the act.

A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if he produces appropriate full powers, or it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers. By virtue of their functions and without having to produce full powers, Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; and representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ, are considered as representing their States and are assumed to have full powers.

Treaty-Making Process

Negotiation

To negotiate a treaty, a nation’s representative must produce full powers, i.e., a document from the President or his delegate designating him to represent the State in relation to the treaty. Heads of state, heads of government, and ministers of foreign affairs are generally regarded as representing the state without having to produce full powers, while heads of diplomatic missions and representatives accredited to international organizations are regarded as possessing like powers within their jurisdiction. Hence, the President’s negotiating authority with respect to bilateral treaties is ordinarily exercised in his name only by the Secretary of State, Ambassadors, or other delegates who have been provided with full powers.

Adoption of the text of a treaty

The adoption of the text of a treaty generally takes place by the consent of all the States participating in its drawing. The adoption of the text of a treaty at an international conference takes place by the vote of two-thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule.

Ratification

The ratification of international treaties is always accomplished by filing instruments of ratification as provided for in the treaty.

Exchange of instruments

Representatives of the two nations meet to exchange the instruments of ratification, a procedure whereby each country gives notice to the other that it has completed its domestic constitutional processes for approval and entry into force of the agreement.

Entry Into Force

A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree, upon happening of a certain date, after a determined period, or upon ratification by a number of States. In the absence of an explicit preference by the States, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States. If a State only consents to be bound by a treaty after it already entered into force, the treaty will only produce legal effects from the date the State consented to it, not from the date the treaty entered into force (no retroactive effect).

Reservations to a Treaty

A reservation is 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. It is possible that a State who is generally satisfied with the terms of a treaty is unsatisfied with just one or two provisions. Thus, such State will refuse to be bound by the legal effects of such provision. In this case, the State may make a reservation to the treaty.

In general, a State may make reservations upon the signing, ratifying, accepting, approving or, acceding to a treaty. The exceptions are when (1) the reservation is prohibited by the treaty, (2) the treaty provides that only specified reservations, which do not include the reservation in question, may be made, or (3) in cases not falling under the two exceptions, the reservation is incompatible with the object and purpose of the treaty.

Observance and Application of Treaties

A plea of error cannot be allowed as an element vitiating consent if the party advancing it contributed by its own conduct to the error, or could have avoided it, or it the circumstances were such as to put that party on notice of a possible error.

Observance of treaties

Under the principle of pacta sunt servanda, every treaty in force is binding upon the parties to it and must be performed by them in good faith. Thus, a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

Application of treaties

The provisions of a treaty do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party, unless a different intention appears from the treaty or is otherwise established. A treaty is binding upon each party in respect of its entire territory, Unless a different intention appears from the treaty. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. When the parties to the later treaty do not include all the parties to the earlier one, as between States parties to both treaties, the same rule applies as in Art. 30 (3), VCLT; and as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.

Treaty Interpretation

General means of interpretation

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of ,the treaty in their context and in the light of its object and purpose. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes, any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty, or any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. It shall further be taken into account, together with the context, any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation, or any relevant rules of international law applicable in the relations between the parties. A special meaning shall be given to a term if it is established that the parties so intended.

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning, or to determine the meaning when the interpretation according to the general means of interpretation leaves the meaning ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable.

Validity of Treaties

The Philippine Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but also, when it runs counter to an act of Congress.

The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention. The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention. The same rule applies to suspension of the operation of a treaty.

Termination, Suspension, and Withdrawal

The termination of a treaty or the withdrawal of a party may take place in conformity with the provisions of the treaty, or at any time by consent of all the parties after consultation with the other contracting States.

The operation of a treaty in regard to all the parties or to a particular party may be suspended in conformity with the provisions of the treaty, or at any time by consent of all the parties after consultation with the other contracting States.