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PS 114: International Law

Atty. Ida Marie V. Escolano-Canton


New Era University
TREATIES
Treaties
• Formal agreements which is entered
into by states or entities possessing
treaty-making capacity, for the
purpose of regulating their mutual
relations under the law of nations.
• Declarations, covenants, acts,
concordats, pacts
• Derived from consent of states
Functions of Treaties
• To enable the parties to settle finally
actual and potential conflicts
• To make it possible for the parties to
modify rules of international customary
law by means of optional principals or
standards
• To pave the way for the transformation
of unorganized international society into
one which may be organized on any
chosen level of social integration
• To provide the humus for the growth of
international customary law
Requisites of a valid treaty
• Entered into by parties having treaty-
making capacity
• Through their authorized organs or
representatives
• Without the attendance of duress,
fraud, mistake or other vice of consent
• On a lawful subject
• In accordance with their respective
constitutional processes
Treaty-making capacity

SUBJECTS
Who is authorized to represent the
state in the conclusion of treaties?
• It is for municipal law to determine
which organ of the state shall be
empowered to enter into treaties on its
behalf.
• In the Philippines, it is the President who
is vested with this power, but „no treaty
or international agreement shall be valid
and effective unless concurred in by at
least two-third of all the Members of the
Senate‟ (Art. VII, Sec. 21, 1987
Constitution)
What is the legal effect of a treaty concluded by
an organ of the state without authority to do so?

• A state is not bound by a treaty made


in its behalf by an organ of authority
not competent under the law to
conclude the treaty.
• Good faith defense available
Examples of invalid treaties

• A treaty apportioning the open sea to


the exclusive uses of the contracting
parties
• A treaty dealing with traffic in white
slavery or narcotics
• A treaty for the operation of piratical
activities
Steps in the treaty making process

NEGOTIATION SIGNATURE

REGISTRATION
RATIFICATION
WITH UN
NEGOTIATION

• Refers to the discussion of the


provisions of the proposed treaty,
undertaken by the representatives of
the contracting parties, with
credentials known as full powers or
pleins pouvoirs
NEGOTIATION

Counter
Proposals Agreement
Proposals
Steps in the treaty making process

NEGOTIATION SIGNATURE

REGISTRATION
RATIFICATION
WITH UN
SIGNATURE

• The signature is primarily intended as


a means of authenticating the
instrument and symbolizing the good
faith of the contracting parties
• It does not indicate consent where
ratification of the treaty is required
• BUT, if ratification is dispensed with,
the signature will signify consent, to
bind parties to the treaties
ALTERNAT

• This is an arrangement under which


each negotiator is allowed to sign first
on the copy of the treaty which he will
bring home to his own country
• To preserve the formal appearance of
equality among contracting states and
to avoid delicate questions of
precedence among the signatories
Steps in the treaty making process

NEGOTIATION SIGNATURE

REGISTRATION
RATIFICATION
WITH UN
RATIFICATION

• The act by which a state formally


accepts the provisions of a treaty
concluded by its representative
• To enable the contracting states to
examine the treaty more closely and to
give them an opportunity to refuse to
be bound by it should they find it
inimical to their interests
RATIFICATION

• An unratified treaty cannot be a


source of obligation between the
parties.
• Refusal to ratify a treaty must be
based on substantial grounds,
otherwise, the other party would be
justified in taking offense
RATIFICATION

• The power to ratify treaties is vested in


the President of the Philippines, NOT as
is commonly believed, in the legislature,
particularly the Senate.
• The role of Senate is confined simply to
withholding consent to the ratification
proposed to be made by the President.
The President cannot ratify a treaty
without the concurrence of two-thirds of
all the members of the Senate.
When does a treaty become
effective?
• On the date agreed by the parties.
• If none, upon exchange of the
instrument of ratification.
• Where ratification is dispensed with
and no effectivity date is provided,
upon signature
Steps in the treaty making process

NEGOTIATION SIGNATURE

REGISTRATION
RATIFICATION
WITH UN
UN REGISTRATION

• Art. 102 of the UN Charter provides, a


treaty not registered with the UN
Secretariat, by which it shall be
published, cannot be invoked before
any organ of the United Nations
• Nevertheless, the treaty remains to be
binding between parties, before other
bodies, outside the UN
Who are bound by the provisions of
treaties?
• Contracting states
• Original signatories
• Other states who sign later, even
though not part of the negotiations,
through a process called as accession
Instances when third party states
may be bound by a treaty
• GR: Non-parties to a treaty are not
bound.
• EXC:
1. Treaty is merely a formal expression of
customary international law
2. Non-member states of UN Charter are still
bound, so far as may be necessary for the
maintenance of international peace and
security
3. The treaty itself expressly extend its
benefits to non-signatories
4. Parties to apparently unrelated treaties may
be linked by the most-favored-nation clause
Most favored nation clause

• Contracting states grant other state


the most favored-nation treatment
• a specific treaty provision whereby a
State [the granting State] undertakes
an obligation towards another State
[the beneficiary State] to accord most-
favored treatment in an agreed sphere
of relations
• „I want what they‟re having‟
Most favored nation clause
MFNC

A B
TREATY WITH
BENEFIT MUST ALSO BE
GIVEN THE SAME

C BENEFIT, THOUGH
NO TREATY
RELATIONS
Doctrine of Pacta Sunt Servanda

• „agreements must be kept‟


• Treaties must be observed in good faith
despite hardship on the contracting state
• A party must comply with the provisions
of a treaty and cannot ignore or modify it
without consent of the other signatory.
Willful disregard or violation of treaties
without just cause is frowned upon by
the society of nations
Doctrine of Rebus sic stantibus

• „things thus standing‟


• An equivalent exception of pacta sunt
servanda
• It would justify non-performance of a
treaty obligation if the conditions in
relation to which the parties contracted
have changed so materially and so
unexpectedly as to create a situation in
which the exaction of performance would
be unreasonable
• When state is no longer able to perform
its treaty obligations
Limitations to the Doctrine of Rebus
sic stantibus
1. Applies only to treaties of indefinite
duration
2. The vital change must have been
unforeseen or unforeseeable and must not
have been caused by the party invoking
the doctrine
3. Must be invoked within a reasonable time
from the occurrence of the change asserted
4. The doctrine cannot operate retroactively
upon the provisions of the treaty already
executed prior to the change in
circumstance
How may a treaty be terminated?

1. Expiration of term, fulfillment of condition


2. Accomplishment of purpose
3. Impossibility of performance
4. Loss of subject matter
5. Novation
6. Desistance of parties, denunciation/
withdrawal
7. Extinction as state
8. Rebus sic stantibus
9. Outbreak of war
10.When treaty is rendered void or illegal
NATIONALITY AND
STATELESSNESS
Citizenship vs. Nationality
CITIZENSHIP NATIONALITY
Formal membership Informal membership
Membership in a political properly understood
community as social categories,
characterized by
common language, culture and
territory, and sometimes also
by a common religious
faith and a purportedly
shared ancestry.
Confer political and civil rights Does not necessarily include
to its members right or privilege of exercising
civil or political rights
Significant in Significant in international law
domestic/municipal law
Nationality

• Membership in a political community


with all its concomitant rights and
obligations
• The terms nationality and citizenship
are interchangeably used
• Nationality used more in
international law
Statelessness

• The condition or status of an


individual who is born without any
nationality or who loses his
nationality without retaining or
acquiring another
Significance of nationality

• An individual ordinarily can participate


in international relations only through
the instrumentality of the state to
which it belongs, as when his
government asserts a claim on his
behalf for injuries suffered by him in a
foreign jurisdiction
• This remedy would not be available to a
stateless individual, no international
personality to intercede for him
Nationality of an individual

• It is for each state to determine under


its laws who are its nationals.
• These laws shall be recognized, so long
as it is consistent with international
conventions, international customs and
GAPIL on nationality.
• In the Philippines, the basis of
Philippine citizenship is cited in our
Constitution, specifically, the Art. IV,
1987 Constitution.
Modes of Acquiring
Nationality
• By birth
–Jus sanguinis
–Jus soli (loci)
• By naturalization
• By marriage
Kinds of Nationals
• Natural born – those who are
nationals of the Philippines from
birth without having to perform
any act to acquire or perfect their
Philippine nationality.
• Naturalized – nationals who
acquired their nationality by
naturalization
Sec. 1, Art. IV, 1987 Constitution

“The following are citizens of the Philippines:


1. Those who are citizens of the Philippines at
the time of the adoption of this Constitution;
2. Those whose fathers or mothers are citizens of
the Philippines;
3. Those born before January 17, 1973, of
Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority;
and
4. Those who are naturalized in accordance with
law”
Modes of naturalization
• Direct
– Individual (judicial or administrative)
– Special act of Legislature
– Collective change of nationality (due to
cession or subjugation)
• Derivative – Citizenship conferred on
(1) wife of naturalized husband, (2)
minor children of naturalized person
Is Grace Poe, Filipino?
• Art. 2 of the 1961 International
Convention on Statelessness, “[a]
foundling found in the territory of a
Contracting State shall, in the
absence of proof to the contrary, be
considered to have been born within
the territory of parents possessing the
nationality of that State.”
Multiple Nationality
• The possession by an individual of
more than one nationality. It is
acquired as the result of the
concurrent application to him of the
conflicting municipal laws of two or
more states claiming him as their
national.
Examples: Multiple Nationality
• Child born in US to Filipino parents
• Woman marrying a foreigner, retains
her nationality and acquires
nationality of husband
• Doctrine of indelible allegiance
• RA 9225
Principle of Effective Nationality
• Within a third state, a person
having more than one nationality shall
be treated as if he had only one
• The third state shall recognize
conclusively in its territory either the
nationality of the country in which he
is habitually and principally present
or the nationality of the country with
which he appears to be in fact most
closely connected.
Statelessness

• The condition or status of an


individual who is born without any
nationality or who loses his
nationality without retaining or
acquiring another
How acquired

1. A person born in a state where only


the jus sanguinis is recognized to
parents whose state observes only
the jus soli (Conflict of Law)
2. An individual who, after renouncing
his original nationality in order to be
naturalized in another state, is
subsequently denaturalized, and
thereafter denied repatriation
(Renunciation)
How acquired

3. State succession
4. When state cease to exist
5. Non-state territories
6. Discrimination as to ethnicity or
gender
Nationality of an individual

• It is for each state to determine


under its laws who are its nationals.
• These laws shall be recognized, so
long as it is consistent with
international conventions,
international customs and GAPIL
on nationality.
Consequences of statelessness

• The stateless individual is powerless to


assert any right that otherwise would be
available to him under international law
were he a national of a particular state.
• Any wrong suffered by him through the act
or omission of a state would be damnum
absque injuria (loss without injury) for in
theory no state has been offended and no
international delict committed
• A stateless individual will not enjoy any
protection of any state
IL governing statelessness

• Covenant Relating to the Status of


Stateless Persons
• UN Declaration of Human Rights
• Hague Convention of 1930
TREATMENT OF ALIENS
Doctrine of State Responsibility

• The doctrine which holds a state


responsible for any injury sustained
by an alien within its jurisdiction
because of an international wrong
imputable to it.
International Wrong
• The state is not an insurer of the life or
property of the alien.
• If he suffers injury at the hands of a private
person, his recourse will be against that
person and not against the state.
• The state will be responsible only if it is
shown that it participated in the act or
omission complained or was remiss in
redressing the resultant wrong.
• An alien may be denied rights available to
nationals
• An alien may complain if the laws of the
state do not conform to the international
standard of justice
International Standard of Justice

• The standard of the reasonable state


and calls for compliance with the
ordinary norms of official conduct
observed in civilized jurisdiction
• May refer to the intrinsic validity of the
laws passed by the state or to the
manner in which such laws are
administered and enforced
• Ex: imposing death penalty for petty
crimes; arbitrary punishment of accused
without compliance of due process
State Responsibility

DIRECT INDIRECT
Wrongful act/omission by Wrongful act/omission by
its superior organs inferior government
official/private individuals
Give rise to immediate Can be excused by proof
responsibility, no that it was not negligent
recourse in preventing the injury or
in vindicating the rights
of the alien
Conditions for the enforcement of
the doctrine of state responsibility
• The injured alien must first exhaust all
local remedies
– The state must be given an opportunity to
do justice in its own regular way without
unwarranted interference with its
sovereignty by other states
– Only if it sought in vain does diplomatic
interposition become proper
• He must be represented in the
international claim for damages by his
own state
IMMIGRATION
• Refers to the authorized movement or
entries into, sojourns within and exits
of foreigners from the territory of a
state.
ALIENS/FOREIGNERS
• Not citizen of the Philippines.
• To know who are aliens/foreigners is
to know who are Filipino citizens
• Philippine citizenship laws
Nature of Immigration Laws
• Vary from state to state
• Forms part of municipal law, not
international law. The latter is a
medium.
• A matter of privilege, not of right
• Every state has the absolute and
exclusive power to regulate
immigration.
• Incidents of sovereignty
Matter of privilege
• The entry and admission of foreigners
into the Philippines is a matter of
privilege, because every foreign state
has absolute and exclusive power of
government in its own territory.
Matter of privilege
Once admitted, all foreigners:
• are bound to respect the laws of the
territory
• owe a local or temporary allegiance of the
government of the state
• they must obey its laws and may be
prosecuted for violating them
• may be fairly be called upon to bear their
share of the general public burden.
Incidents of Sovereignty
• A state is under no duty, in the
absence of treaty obligations, to admit
aliens into its territory. If it does admit
them, it may do so on such terms and
conditions as may be deemed by it to
be consonant with its national
interest. A state may deport from its
territory, aliens whose presence may
be regarded as undesirable.
Immigration laws are incidents of
sovereignty.
Deportation
• The expulsion of an alien who is
considered undesirable by the local
state, usually but not necessarily to
his own state
Extradition
• The surrender of a fugitive by one
state to another where he wanted for
prosecution or if already convicted, for
punishment
• Assignment  Extradition Treaties
with Philippines
DEPORTATION VS. EXTRADITION
DEPORTATION EXTRADITION
- Immigration law concept - International and criminal law
concept
- Administrative procedure, - A penal process based on an
preventive not penal process inter-government (international)
agreement
- Does not necessarily require a - Formal request of one state for
request of a foreign state prior to the delivery of a person for the
delivery of foreigner to receiving commission of a crime while the
state or government person is in the territory of
another state.
- Act of one state - Act of two states
- Does not need a treaty to - There must be an extradition
implement a final order treaty
- Against a foreigner - Against any person
- Exercise of police power, not a - Punishment, crime
crime
SETTLEMENT OF
INTERNATIONAL DISPUTES
International Dispute
• An actual disagreement between states
regarding the conduct to be taken by one
of them for the protection or vindication
of the interests of the other
• May be legal or political
• There is yet no adequate machinery for
the settlement of international dispute
such as is available under municipal
law.
How settled?
• Basic principles of UN, „by peaceful
means in such manner that
international peace and security and
justice, are not endangered.
Amicable methods of settling
disputes
• Negotiation
• Inquiry
• Good offices
• Mediation
• Conciliation
• Arbitration
• Judicial Settlement
Negotiation
• The discussion by the parties
themselves of their respective claims
and counterclaims with a view to their
just and orderly adjustment
• Where the talks prosper and
agreement is react, it is usually
formalized in a treaty
Inquiry
• An investigation of the points in question
• Most disputes are caused by
misunderstanding
• Elucidation/clarification will contribute
to the solution of the problem
• Clarification by an impartial and
conscientious body can limit/remove
areas of disagreement
Good office
• Method by which a third party
attempts to bring the disputing states
together in order that they may be
able to discuss the issues in
contention
• Provide opportunity for states to
negotiate
Mediation
• Mediator/third party not merely
provide the opportunity for states to
negotiate, but actively participates in
the discussion in order to reconcile
their conflicting claims and appease
their feelings of resentment
Conciliation
• Like mediation, third party actively
participate to attempt to settle conflict
among disputants
• But unlike mediation, the service of
the conciliator are not volunteered by
the third party but solicited by the
parties in dispute
Arbitration
• A process by which the solution of a
dispute is entrusted to an impartial
tribunal, usually created by the
parties themselves under a charter
known as the compromis  provides
for the composition of the body, rules
of proceedings, etc.
• Unlike in conciliation, the proceedings
are essentially judicial and the award
is binding on the parties
Judicial Settlement
JUDICIAL TRIBUNAL ARBITRAL TRIBUNAL
Pre-existing and Ad Hoc Body created and
permanent body filled by the parties
themselves
Jurisdiction is Jurisdiction is voluntary
compulsory
Legal disputes Political disputes
What generally follows the failure to settle
a dispute by amicable methods?

• The states sever their diplomatic


relations
• Hostile methods are utilized
• Hostile methods may either be a
retorsion or a reprisal
RETORSION

• Retaliation where the acts complained


of do not constitute a legal ground of
offense but are rather in the nature of
unfriendly acts done primarily in
pursuance of legitimate state interests
but indirectly hurtful to other states
• Unfriendly but not illegal
REPRISALS

• Unlawful acts taken by one state in


retaliation for the unlawful acts of
another state
• Essentially forcible and are taken only
by strong states with sufficient power
to back up their demands
Common acts of Reprisals

• Display of force
• Occupation of territory
• Embargo (detention of vessel/goods)
• Suspension of treaties
• Pacific blockade
War

• If disputes remain unsettled, and


reprisals escalate, despite UN
involvement, state conflict may lead to
war
Peace

• But it is hoped that with lessons


learned from history and tenets of
international law, diplomacy,
coordination and amicable modes of
settlement, state disputes and
conflicts will always lead to peace.