It-it, Marie Sharmaine R.

Monday 5:30 – 8:30PM

Human Rights Law Friday 5:30 – 7:50PM

Life Cycle of Treaties

Under Art. 2(1)(a) of the Vienna Convention of the Law of Treaties of 1969,
“Treaty” is 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. A treaty is the most abundant
source of Public International Law and it is considered to be the most binding.
Between parties of a treaty, the stipulation constitutes the law between them.
Treaties are referred to by different names including agreements, conventions,
covenants, protocols and exchange on notes.
A treaty comes into force by ratification, immediately or after signature and
through exchange of notes. Under Art 17 of the Vienna Convention of the Law of
Treaties of 1969, A state is bound by the treaty only if the treaty permits or the other
states involved agree. The consent of a state to be bound by the treaty which allows
choice in differing provisions is effective only if it is clear what provisions the consent
relate to. In the case of Pimentel Jr. v. Exec. Secretary, signing a treaty is not
equivalent to ratification. The state can still exercise discretion whether or not to
ratify a treaty even it is already signed by an official representative. There are two
types of treaties – the Bilateral treaties and Multi-lateral treaties. In Bilateral Treaties,
a treaty comes into force once signed and documents are exchanged. This is
already enough to bring treaty into effect. On the other hand, in Multi-lateral treaties,
a signature alone is insufficient and will only adopt a treaty by a vote or rules of
procedure such as meeting the minimum required ratification as stated in a treaty. It
will only come into force when it has already been ratified or submitted to the
depository of the state. Signature alone does not make the treaty come into force
because the signature is merely symbolic, as stated in the case of Pimentel v. Exec
Secretary, it is a symbol of goodwill and good relations. In observing these treaties,
we follow the principle called “Pacta Sunt Servanda” which means that, every treaty
in force is binding upon parties to it and must be performed in good faith. In the case
of Nicaragua v. U.S., it was held that ICJ acquires jurisdiction of a case if both
courts accept the courts jurisdiction, within the jurisdiction of the International Court
of Justice. Nicaragua became a party to the Statute of the ICJ because the
declaration was made unconditionally and was valid for an unlimited period. The
intention of the current drafters of the current Statute was to maintain the greatest
possible continuity between it and the Permanent Court. Thus, when Nicaragua
accepted the Statute, this would have been deemed that the plaintiff had given its
consent to the transfer of its declaration to the ICJ.
Article 19 of the Vienna Convention of the Law of Treaties of 1969 provides
for when a state may formulate a reservation. A state may formulate a reservation
however, it has its exemptions. Such as, when the reservation is prohibited by the
treaty, when treaty provides that reservations may be made only to particular
sections, and lastly, when reservation is incompatible with the object and purpose of
the treaty. Where a treaty provides for reservations on certain sections, states do not
have to accede to the reservation but where a treaty constitutes an international
organization, the approval of the organization is necessary for reservations.
Acceptance by another state of the reservation means the treaty binds those states
while objection to reservation between the parties does not preclude entry into force
between the parties as long as the contracting states accedes. The legal effects of
reservations on treaties is only feasible to multilateral treaty obligation. This modifies
the relationship to the extent of the reservations and modifies the provisions to the
same extent for another. On the other hand, if a state objects the reservation of the
reserving state, but does not oppose the entry of force of the treaty between itself
and the reserving state, the reservation does not apply between the two states.
When a state faces a public emergency that threatens the life of their nation,
its security and continued survival, derogation becomes feasible. Derogation is a
partial revocation of a law, as opposed to abrogation or the total abolition of a law.
Some treaties allow states to derogate temporarily from some of their obligations.
However, there are certain rights that cannot be derogated or yet better known as
non-derogable rights. To name a few, these are; right to life, right against slavery,
right as a person before the law, right against torture, and right to freedom of
thought. Even in the presence of war of public emergency, these rights shall in no
way be derogated.
When a state seeks to terminate or withdraw from a treaty, denunciation
happens. Art. 54 of the Vienna Convention of the Law of Treaties of 1969 allows for
the termination of a treaty at any time from the from the consent of all other parties to
the treaty. A treaty does not terminate solely for the reason that it does not meet a
required number of parties for its entry of force unless this is specifically mentioned
in the treaty. Under Art. 56 of the same convention, the general rule is that, if a treaty
does not provide for denunciation or withdrawal, it cannot be made if the following is
not present; that it is established that the parties intended to admit the possibility of
denunciation or withdrawal, and if a right of denunciation or withdrawal may be
implied by the nature of the treaty.