PUBLIC INTERNATIONAL LAW

VI. TREATIES

A.
 A 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 instruments and whatever its particular
designation” [Vienna Convention on the Law of Treaties, 1969].
 Other names used to designate international agreements besides “treaty”, are
“convention”, “pact”, “protocol”, “agreement”, “arrangement”, “accord”, “final act”, general
act” and “exchange of notes”
 An executive agreement may, within the context of municipal law, not be considered as a
treaty [Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351], but from the
standpoint of international law, they are equally binding as treaties
 Case: In the case concerning maritime delimitation and territorial questions between
Qatar and Bahrain [Qatar v. Bahrain, Jurisdiction, First Phase, ICJ Rep. 1994 112], the
ICJ ruled that Minutes to a meeting and exchange of letters constitute an international
agreement creating rights and obligations for the parties
 Form. Under Art. 2, 1969 Vienna Convention on the Law of Treaties, treaties should be in
writing; but under Art. 3 thereof, the fact that a treaty is unwritten shall not affect its legal
force, but that convention rules on matters governed by international law independently of
convention shall apply and that convention rules shall apply to the relations of the States
among themselves.
 The 1969 Vienna Convention on the Law of Treaties covers only treaties executed
between States. It is the 1986 Vienna Convention on Treaties for International
Organizations which applies to treaties executed between States and International
Organizations.

B. Requisites for validity

1. Treaty-making capacity.
a. Every State possesses the capacity to conclude treaties, as an attribute of
sovereignty. Under customary international law, international organizations are
deemed to possess treaty-making capacity, although such capacity may be limited
by the purpose and the constitution of such organizations.
2. Competence of the representative/organ concluding the treaty.
a. Generally, the Head of State exercises the treaty-making power. In the
Philippines, it is the President who exercises the power, subject to concurrence by
2/3 of all the members of the Senate.
3. Parties must freely give consent.
a. The consent of a State may be expressed by signature, exchange of instruments
constituting a treaty, ratification, acceptance, approval or accession, or by other
means manifesting consent. Where the consent of a party has been given in error
or induced through fraud on the party of the other, the treaty is voidable. Where
the consent of the State is obtained through the corruption of its representative by
 another negotiating State, the former may invoke such corruption in invalidating its
consent to be bound by the treaty.
b. Doctrine of Unequal Treaties. Treaties which have been imposed (through
coercion or duress) by a State of unequal character, is void
4. Object and subject matter must be lawful, within the commerce of nations and in
conformity with international law
a. However, the object is deemed illegal only when it contravenes or departs from
an absolute or imperative rule or prohibition of international law.
b. Doctrine of jus cogens. Customary international law has the status of a
peremptory norm of international law, accepted and recognized by the
international community of states as a rule from which no derogation is permitted.
Accordingly, a treaty whose provisions contravene such norms/rules may be
invalidated. See Human Rights Cases v. Marcos, where it was held that official
torture of prisoners or dissenters is a violation of the principle of jus cogens.
5. Ratification in accordance with constitutional processes of the parties concerned.
a. Sec. 21, Art. VII, Philippine Constitution, provides: “No treaty or
international agreement shall be valid and effective unless concurred in by at least
2/3 of all the members of the Senate”.
C. Treaties and Executive Agreements.
1. In Commissioner of Customs v. Eastern Sea Trading, supra., the Supreme Court
held that treaties (which will require Senate concurrence for validity) generally refer to
basic political issues, changes in national policy and permanent international
arrangements; while executive agreements (which do not require such concurrence)
refer to adjustments of detail carrying out well-established national policies, and
temporary arrangements. See USAFFE Veterans v. Treasurer of the Philippines,
where the Court held that the Romulo-Snyder Agreement, involving a loan of $35M,
was a purely executive act which the President may validly enter into by virtue of the
authority granted to him under existing law.
2. In Bayan v. Executive Secretary, G.R. No. 138570, October 10, 2000, the Supreme
Court held that the Visiting Forces Agreement (VFA) is constitutional, having been
duly concurred in by the Philippine Senate. The Republic of the Philippines cannot
require the United States to submit the agreement to the US Senate for concurrence,
for that would be giving a strict construction to the phrase “recognized as a treaty”.
Moreover, it is inconsequential that the US treats the VFA as merely an executive
agreement because, under international law, an executive agreement is just as
binding as a treaty.
3. Under Memorandum Circular No. 89, Office of the President, it is provided that, in
case there is a dispute as to whether or not an international agreement is purely an
executive agreement, the matter is referred to the Secretary'of Foreign Affairs who
will then seek the comments of the Senate Representative and the legal adviser of
the Department, and after consultation with the Senate leadership, the Secretary of
Foreign Affairs shall then, on the basis of his findings, make the appropriate
recommendation to the President.
4. Exchange of Notes. An “exchange of notes” is a record of a routine agreement that
has many similarities with the private law contract. The agreement consists of the
exchange of two documents, each of the parties being in the possession of the one
signed by the representative of the other. The usual procedure is for the accepting
State to repeat the text of the offering State to record its assent. The signatories of
the letters may be government Ministers, diplomats or department heads. The
technique of exhange of notes is frequently resorted to either because of its speedy
 procedure, or sometimes, to avoid the process of legislative approval [Abaya v.
Ebdane, G.R.No. 167919, February 14, 2007]
D. Treaty-making Process. negotiation, signature, ratification, and exchange of instruments of
ratification.
1. Negotiation. The representatives of the parties are usually armed with
credentials known as pleine pouvoirs, or full powers, which is a document emanating
from competent authority of a State designating a person or persons to represent
the State for negotiating, adopting or authenticating the text of a treaty, expressing
the State’s consent to be bound by a treaty, or accomplishing any other act with
respect to a treaty. However, even without such full powers, it has been the general
practice to consider the following as representatives of the State for treaty
negotiation: the Head of State, Head of Government, the Foreign Minister [as in the
East Greenland Case, where the Ihlen declaration recognizing the Danish claim was
held binding on Norway]; the head of diplomatic missions (in treaties between his
State and the receiving State); and the representative accredited by the State to an
international conference or to an international organization (to adopt the text of a
treaty in that conference or organization).
a. HISTORIC CONFIDENTIALITY. While the final text of the Japan-
Philippines Economic Package Agreement (JPEPA) may not be kept
perpetually confidential, the offers exchanged by the parties during
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, July 16, 2008].
2. Signing of the treaty. The principle of alternat is observed, according to which the
order of the naming of the parties and of the signatures of the plenipotentiaries is
varied so that each party is named and its plenipotentiary signs first in the copy of the
instrument to be kept by it.
3. Ratification. The act by which the provisions of a treaty are formally confirmed and
approved by a State, and by which the State expresses its willingness to be bound by
the treaty.
1. In the Philippines, the power to ratify a treaty is vested in the President,
subject to concurrence by 2/3 of all the members of the Senate [Sec. 21,
Art. VII, Philippine Constitution],
2. In Pimentel v. Office of the Executive Secretary,G.R. No. 158088, July 6,
2005, the Supreme Court said that in our system of government, the
President, being the head of State, is regarded as the sole organ and
authority in external relations and is the country’s sole representative with
foreign nations.
3. As the chief architect of foreign policy, the President acts as the country’s
mouthpiece with respect to international affairs.
4. The President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations,
enter into treaties, and otherwise transact the business of foreign relations.
5. Thus, the President has the discretion, even after the signing of the treaty by
the Philippine representative, whether or not to ratify the same.
 6. Accordingly, without the President’s consent, the Executive Secretary and
the Secretary of Foreign Affairs may not be compelled by mandamus to
transmit a copy of the Rome Statute signed by a member of the Philippine
mission to the UN to the Senate for concurrence.
7. Accession. Also known as “adhesion”, this is the process by which a non-
signatory State becomes a party to a treaty. Thus, upon invitation or
permission of the contracting parties, a third party who did not participate or
who did not ratify on time, may be bound by a treaty
8. Reservation. A unilateral statement, made by a State when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports
to exclude or modify the legal effect of certain provisions of the treaty in their
application to that State. The State making the reservation remains a party to
the treaty, provided that the reservation is compatible with the object and
purpose of the treaty;
4. Entry into force. A treaty enters into force in such manner and on such date as it
may provide, or as the negotiating parties may agree. In the absence of such a
provision, the treaty enters into force as soon as the consent of all the parties
to be bound by the treaty is established.
1. Exchange of instruments of ratification. Consent is deemed established
with the exchange of the instruments of ratification, acceptance, approval or
accession; or, if the treaty so provides, upon deposit of such instruments with
a named depository, coupled with the notification to the contracting States of
such deposit.
2. Registration with and publication by the United Nations. Art. 102 of the
Charter of the United Nations requires that every treaty and international
agreement entered into by any member of the UN should be registered as
soon as possible with the Secretariat and published by it. Failure to register
would not, however, affect the validity of the treaty; however, the
unregistered instrument cannot be invoked by any party thereto before any
organ of the United Nations.
5. When non-signatories may be bound by a treaty. As a rule, treaties cannot
impose obligations upon States not parties to them. Pacta tertiis nocent necprosunt.
However, as mentioned above, through the process of accession or adhesion, States
not originally parties to the agreement may become bound. Other States may also be
bound by the terms of a treaty if linked by the most favored nation clause, under
which a contracting State entitled to the clause may claim the benefits extended by
the latter to another State in a separate agreement. Likewise, if the treaty is merely a
formal expression of customary international law, or where the treaty expressly
extends benefits to non-signatory States.
6. Fundamental principles concerning treaties.
1. Pacta sunt servanda, which requires that treaties must be observed in
good faith. If necessary, the State concerned must even modify its national
legislation and constitution to make them conform to the treaty, in order to
avoid international embarrassment. In the Philippines, however, treaties may
be declared invalid if contrary to the Constitution
 In Tanada v. Angara, 272 SCRA 18, the Supreme Court ruled that
treaties do indeed limit or restrict the sovereignty of a State. By their
voluntary act, States may surrender some aspects of their power in
exchange for greater benefits granted by or derived from a
convention or pact. Under the rule of pacta sunt servanda, a State is
 bound to make such modifications in its laws as may be necessary to
ensure the fulfilment of the obligations undertaken under the treaty.
2. Rebus sic stantibus, which means that a contracting State’s obligations
under a treaty terminates when a vital or fundamental change of
circumstances occurs, thus allowing a State to unilaterally withdraw from a
treaty, because of the “disappearance of the foundation upon which it rests”.
 In Santos III v. Northwest Orient Airlines, 210 SCRA 256, the
Supreme Court ruled that this doctrine does not operate
automatically.
 There is a necessity for a formal act of rejection, usually by the
Head of State, with the statement of the reasons why compliance
with the treaty is no longer required.
 Thus, the contention that the Warsaw Convention (of 1933, to which
the Philippines acceded in 1950 and became bound thereby on
February 9, 1951) should not apply because of the change in present
circumstances as compared with the 1933 situation, is not tenable.
 The requisites for valid invocation of this principle are:
a. The change must be so substantial that the foundation of the
treaty must have altogether disappeared;
b. The change must have been unforeseen or unforeseeable at
the time of the perfection of the treaty;
c. The change must not have been caused by the party
invoking the doctrine;
d. The doctrine must be invoked within a reasonable time;
e. The duration of the treaty must be indefinite; and
f. The doctrine cannot operate retroactively, i.e., it must not
adversely affect provisions which have already been
complied with prior to the vital change in the situation.
7. 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. To be considered in the interpretation are its text,
preamble, annexes, as well as other agreements relating to the treaty and
subsequent agreements entered into by the contracting parties.
8. Amendment/Modification. To amend or modify provisions of the treaty, the consent
of all the parties is required. However, if allowed by the treaty itself, two States may
modify a provision only insofar as they are concerned.
9. Termination of treaties.
1. Expiration of the term, or withdrawal of a party in accordance with the treaty.
2. Extinction of one of the parties to the treaty (in case of bipartite treaties),
when the rights and obligations under the treaty would not devolve upon
the State that may succeed the extinct State.
3. Mutual agreement of all the parties.
4. Denunciation or desistance by one of the parties. The right to give
notice of termination or withdrawal is known as the right of denunciation.
5. Supervening impossibility of performance.
6. Conclusion of a subsequent inconsistent treaty between the parties.
7. Loss of the subject matter.
8. Material breach or violation of the treaty.
 9. The application of the doctrine of rebus sic stantibus.
10. The outbreak of war between the parties, unless the treaty precisely
relates to the conduct of the war.
11. Severance of diplomatic relations, only if the existence of such
relationship is indispensable for the application of the treaty.
l) The doctrine of jus cogens, or the emergence of a new peremptory
norm of general international law which renders void any existing treaty
conflicting with such norm.

VII. NATIONALITY AND STATELESSNESS

1. Nationality. Membership in a political community with its concomitant rights and duties.

1. Determination of a person’s nationality.

 The 1930 Hague Convention on Conflict of Nationality Laws states:
1. It is for each State to determine under its own law who are its nationals.
2. Any question as to whether a person possesses the nationality of a particular State
shall be determined in accordance with the law of that State.
2. Acquisition of nationality
 The modes of acquiring nationality are:
1. Birth:
i. jus sanguinis, i.e., by blood; and
ii. jus soli, i.e., by place of birth.
2. Naturalization.
 This mode may be accomplished through marriage, legitimation, option
(election), acquisition of domicile, appointment to government
office, or grant on application.
 In the Philippines, naturalization may be by judicial process, legislative process,
election or marriage [Moy Ya Lim Yao v. Commissioner of Immigration, 41 SCR
A 292].
 However, there is no obligation on the part of the State of his nationality to
recognize a person’s newly acquired nationality.
 Municipal law may even prohibit the renunciation of one’s nationality under
certain circumstances, as in the application of the doctrine of indelible allegiance.
An example is Commonwealth Act No. 63 which provides that one of the modes
of losing Philippine citizenship is by subscribing to an oath of allegiance to
support the Constitution or the laws of a foreign country, but a Filipino may not
divest himself of Philippine citizenship in this manner while the Republic of the
Philippines is at war with any country. See also Joyce v. Director of Public
Prosecution. House of Lords, December 18, 1945
3. Repatriation.
 Recovery of nationality by individuals who were natural born citizens of a State
but who had lost their nationality.(Miiiidss..pls Read Republic Act No. 8171,
which governs repatriation of Filipino women who have lost Filipino citizenship by
reason of marriage to aliens, as well as the repatriation of former natural-born
Filipinos who lost Filipino citizenship)
4. Subjugation
5. Cession
 3. Loss of nationality
 Nationality is lost by any of the following modes:
1. Release e.g., Germany gives its citizens the right to ask for release from their
nationality;

2. Deprivation, e.g., Philippines, which deprives its citizens of nationality

upon entry into the military service of another State [C.A. No. 63];
3. Renunciation, exemplified in C. A. No. 63; and
4. Substitution, such as what happens when the former nationality is lost ipso
facto by naturalization abroad.

2. Multiple Nationality.

 A person may find himself possessed of more than one nationality because of the concurrent
application to him of the municipal laws of two or more States claiming him as their national.
 Reason: May arise by the concurrent application of the principles of jus sanguinis and jus
soli, naturalization without renunciation of the original nationality, legitimation, or legislative
action.
 Policy in the Philippines: “Dual allegiance of citizens is inimical (unfriendly) to the national
interest and shall be dealt with by law" [Sec. 5, Art. IV, Philippine Constitution], See Aznarv.
Comelec, supra..
 Resolution of Conflicts in Multiple Nationality Cases. The 1930 Hague Convention on the
Conflict of Nationality Laws provides the following solutions to multiple nationality cases:
o A person having two or more nationalities may be regarded as its national by each of
the States whose nationality he possesses, and a State may not give diplomatic
protection to one of its nationals against a State whose nationality that person
possesses. See the Nottenbohm Case, ICJ Reports, 1955.
b) If a person has more than one nationality, he shall, within a third State,
be treated as if he had only one; the third State shall recognize exclusively either
the nationality of the State in which he is habitually and principally resident, or the
nationality of the State with which he appears in fact to be most closely connected.
This is known as the principle of effective nationality