Tue Ricut or LEcATION 145 powers or attributes. It is nonetheless important in watch- ing over diplomatic privileges and honors and has at times pated officially in the protection of the rights of its mem- rs. Appointment of Envoys The Diplomatic Convention provides that the class to which the heads of their missions are to be assigned shall be agreed upon between the states concerned.” Moreover, the sending state must make certain that the agrément of the receiving state has been given for the person it pro- poses to accredit as head of the mission to that state.’ The appointment of diplomats is not merely a matter of municipal law because the receiving state is not obliged to accept any representative who is persona non grata to it. Indeed, there have been cases when accredited repre- sentatives were rejected, resulting in strained relations between the sending and receiving states. For example, an American minister was not received in Italy for having previously protested in a speech the annexation of the Papal States by Italy; and when next accredited to Austria he was also rejected, this time because he was married in a civil ceremony to a Jewess. The United States govern- ment considered these reasons inadequate but could not, of course, insist on its appointment. To avoid such awkward situations, most states now observe the practice of the agneation, by means: of which informal inquiries are addressed, to the receiving state arding a proposed diplomatic representative of the sending state. It is only when the receiving state manifests its agrémentyor consent, also informally, that the. diplo- matig;representative is appointed and formally accredited. * Art. 15. * Art. 4.INTERNATIONAL Law 346 4 of the Diplomatic Convention provides that “the ati state is not obliged to give reasons for a refusal of ment.” Pte, a. ‘Under our Constitution, it is the President who is one red to appoint ambassadors, other public minis- sy aa 1s, subject to the consent of the Commission is Appointments. His discretion is exclusive when it mes 1 receiving ambassadors and other public ministers a ied Ww tire ove: nment of tiie Philippincs.” Commencement of the Diplomatic Mission ‘The head of the mission is considered as having taken up his functions in the receiving state either when he has ted his credential or when he has notified his arri- val and a true copy of his credentials has been presented tothe foreign ministry of the receiving state." credentials of the diplomatic agent include chiefly the * of credence, or Jettre de créance, by means of which he is accredited to the receiving state with the re- quest that full faith and credit be given to his official acts on behalf of the sending state. In addition to this docu- ment, the envoy usually also carries his diplomatic pass- Port, his official instructions and a cipher or code book for use in secret communications to his government. marked with solemnity and sometimes even tion of the envoy is not a mere ceremony. state had previously given its ent, the diplomatic re wresenta the usual privileges and immunities of is formally accepted. Oppenheim cites anu, who was convicted of certain erland despite his assertion that he had48 INTERNATIONAL Law conduct of Diplomatic Mission the performance of his functio: i i ne exercise the utmost Pectin eres care always to preserve the goodwill of the sending ah and to avoid interference with its internal affairs. The envoy is not justified in pitting or aiding one political party ; gt another, or publicly criticizing the policies or acts of the receiving state, or employing threatening or offen- _. give guage OF metkods in the protection of t! Perea of his state or its nationals. His mission is also under no i ce to be used for espionage, the dissemination of propaganda against the receiving state, or subversion of its government. The Philippine government ordered the closure of the Cuban embassy here when it was discovered to be engaged in subversive activities. Ambassador Hanihara was re- placed in 1924 when he suggested in a letter to the US. State Department that the passage of a bill limiting Jape” nese immigration was likely to produce “grave conse- quences.” Sending states have on occasion, voluntarily or on request, recalled their diplomatic representatives for improper discharge of their functions. Diplomatic Immunities and Privileges Diplomats enjoy a number of privileges and immuni- I can bo traced to xs far beck a» be Gresk and Roman era, The reason orginally give” 7 special treatment of the envoy was ion of ridlity by which he was considered an exten’) aise as representing, But this view bas eld ‘justification that his privileges °° oy or latiTue Ricxt or LEeGATION 149 Based largely on international custom, most of the diplomatic privileges and imm' ities have been reaf- firmed and are now expressly pro’ ided for in the Diplo- matic Convention of 1961. Some of the more important of these are briefly discussed hereunder. (a) Personal Inviolability Like the head of state. the envoy is regarded as sac sanct and is entitled to the special protection of his person, honor and liberty. An attack on any of these is deemed a serious offense and must be with the most se- vere penalties by the receiving state. The Diplomatic Convention provides: “The person ofa diplomatic agent shall be invi able. He shall not be liable XN to any form of arrest or detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person freedom or dig- But these rules are not without exception. The envoy cannot complain if he is injured because he himself caused the initial aggression and thereby provoked retaliation or himself to danger as by mixing with a disorderly assemblage.” The local authorities may also, in exceptional cases, lay hands on him if he has committed fan act of violence and it is necessary to place him in pre- yentive restraint. In the Philippines, R.A. No. 7 punishes, on the basis of reciprocity, “any person who assaults, strikes, wounds, imprisons or'in any other manner offers violence to the ambassador or public minister, in violation of the law nations” with imprisonment for not more than hundred pesos in * Art. 29. ™ Fenwick, 469.INTERNATIONAL Law 160 F to the penalties prescribed by the Revised at js to be noted, though, that the attack is co pod to the n of the envoy and does not include his honor or reputation. 0) Immunity from Jurisdiction accepted principle of international It is a generally pw that the diplomatic agent shall be immune from the eer and administrative jurisdiction of the re- ceiving state except in a few specified cases. This does not mean that he can violate the local laws with impunity; on the contrary, he is expected to observe them meticulously as befits a person of his rank and prestige. If he does not, he may not be punii for his offense by the receiving state, but it can and usually will ask for his recall. So strictly observed is this immunity that the envoy can escape the rigor of the local laws even if he commits the most serious offense in the receiving state. Thus, when in 1584 the Spanish ambassador to England plotted against the life of Queen Elizabeth I, he was merely or- dered to leave the country, as so too was the French am- pessador when he was involved in a conspiracy to kill Cromwell in 1654. Interestingly, however, when in 1587 the French ambassador committed a similar offense simply givenTue Ricur oF Lecarion 151 the mission; (b) an action relating to succession in which the diplomatic agent is involved as executor, administra- tor, heir or legatee as a private person and not on behalf of the sending state; (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.”” Immunity from jurisdiction may be waived expressly by the sending state, or under its authority, by the head of stiasion. Waiver may also be fos th person entitled to the immunity commences proceedings i the local state and thereby opens himself to any counter- claim directly connected with the principal claim. How- ever, waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary.” R.A. No. 75 provides that “any writ of process sued out or prosecuted by any person in any court of the Re- public of the Philippines, or by any judge or justice, whereby the person of any ambassador or public minister of any foreign state, authorized and received as such by the President, or any domestic servant of any such ambas- sador or minister is arrested or imprisoned, or his goods or chattels are distrained, seized, or attached, shall be deemed void, and every person by whom the same is ob- tained or prosecuted, whether as party or as attorney, and every officer concerned in executing it, shall, upon convic- tion, be punished by imprisonment for not more that three years and a fine of not exceeding two hundred pesos in the discretion of the court.” In World Health Organization v. Aguino,™ the re- spondent judge issued a warrant for the search and sei- “Art. 31, " Art. 32. "48 SORA 242.INTERNATIONAL Law 152 of tain goods alleged to have been brought i be ry illegally by an official of the World Health Gra jon. ThE WHO and the official moved to quash the t on the ground of the latter's diplomatic immunity the Host Agreement concluded between the Philip- psa Racy °F Foveien Affairs Ped them in this representation, as so too later did the Solicitor General. Nevertheless, the judge denied the mo- tion, holding that there were “strong and positive indica- tions of violations of loca) laws” In annulling the search warrant, the Supreme Court held as follows: under 1, The executive branch of the Philippine Government has expressly recognized that petitioner Verstuyf is entitled to diplomatic immunity, pursuant to the provisions of the Host ‘Agreement. The Department of Foreign Affairs formally ad- vised respondent judge of the Philippine Government's official position that accordingly ‘Dr. Verstuyft cannot be the subject of Philippine court summons without violating an obligation in international law of the Philippine Government’ and asked for the quashal of the search warrant, since his personal effects and baggage, after having been allowed free entry from all cus- toms and duties and taxes, may not be baselessly claimed to have been ‘unlawfully imported’ in violation of the tariff and ‘customs code as claimed by respondent COSAC officers. The Solicitor General, as principal law officer of the Government, - likewise expressly affirmed said petitioner's right to diplomatic immunity and asked for the quashal of ‘the search warrant. It is a recognized principle of international law and un- .der our system of separation of powers that diplomatic immu- nity is essentially a political question and courts should ref- use to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is -tecognized and affirmed by the executive branch of the gov- ernment as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, the Solicit? : General in this ease, or other officer acting under his direction in adherence to the settled principle that courts may ‘exercise their jurisdiction by seizure and dete! to embarrass the executive arm of the governmentTue Ricut or LecaTion 153 \ in conducting foreign relations, it is accepted doctrine that ‘in such cases the judicial department of (this) government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction’ | 2. The unfortunate fact that respondent judge chose to rely on the suspicion of respondents COSAC officers ‘that the | other remaining crates unopened contain contraband items’ | rather than on the categorical assurance of the Solicitor Gen- eral than petitioner Verstuyft did not abuse his diplomatic immunity, which was based in turn on the official positions | Mada eater ed = tela with compete Sen ly the highest oxe of 6 authority to act on the matter, namely, the Secretaries of For- eign Affairs and of Finance, could not justify respondent judge's denial of the quashal of the search warrant, ‘As already stated above, and brought to respondent court's attention, the Philippine Government is bound by the procedure laid down in Article VII of the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations for consultations between the Host State and the United Nations agency concerned to determine, in the first instance the fact of occurrence of the abuse alleged, and if so, to ensure that no repetition occurs and for other recourses. This is a commitment voluntarily assumed by the Philippine Government and as such has the force and effect of law. Hence, even assuming arguendo as against the categori- cal assurance of the executive branch of government that re- spondent judge had some ground to prefer respondent COSAC officers’ suspicion that there had been an abuse of diplomatic immunity, the continuation of the search warrant proceedings before him was not the proper remedy. He should, neverthe- eas, in deference to the exclusive competence and jurisdiction of the executive branch of government to act on the matter, have acceded to the quashal of the search warrant, and for- warded his findings or grounds to believe that there had been guch abuse of diplomatic immunity to the Department of For- eign Affairs for it to deal with, in accordance with the afore- mentioned Convention, if so warranted. Inthe case of The Holy See v. Rosario, the Supreme Court dismissed a civil cOmplaint against the petitioner ™ 238 SCRA 524.INTERNATIONAL Law 154 nt of Foreign Affairs had “offici on that the Embassy of the Holy See 5 e geal cesited diplomatic mission to the Republic of the Philip, pines exempt from local jurisdiction as entitled to all the ght, privileges and immunities of a diplomatic mission or embassy in this country.” It was further affirmed that the determination of the executive arm of the government that a state OF instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclu- ive upon the courts. Where the plea of immunity is recog- wed and affirmed by the executive branch, it is the duty of the courts to accept this claim 5 as not to embarrass the executive arm of the government in conducting the country’s foreign relations.” (c) Inviolability of Diplomatic Premises ‘The Diplomatic Convention provides: “The premises of the mission shall be inviolable. The agents of the re- ceiving state may not enter them except with the consent of the head of mission.” It also places on the receiving state “a special duty to take all appropriate steps to pro- tect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.”" Furthermore, “the premises of the mission, their furnishings and other prop- ao inerean, and the means of transport of the mission from search, requisition, attachment or ived from the principle of exterritorial- justified on more pragmatic grounds, e de Vhotel extends immunity from atic premises. ‘These include theTue Riou oF LeGaTION 155 his residence and out-buildings, his means compound where these are by the local authorities envoy’s offices, of transportation, and the found, which may not be entered without his permission. But this rule is not of clear and urgent necessity, for the take forcible measures to arrest any person subject to their jurisdiction. The so-called right of diplomatic asylum hae not received universal recognition excep when it is extended for humanitarian reasons, a5 when the fugitive seeking sanctuary is in immediate danger of his life or safety. In other cases, asylum is granted only on the strength of local usage, particularly in favor of political refugees, or of treaty stipulations. Of particular interest is the case of Sun Yat Sen, who was detained in 1895 in the Chinese legation in London in defiance of a writ of habeas corpus. When the British gov- Srment threatened to use force to carry out the order of the court, the Chinese minister immediately ordered the prisoner's release. ol Inviolability of Archives : quite obvious reasons, the receiving state has no nto the official papers and records of a foreign n. Accordingly, absolute as it is allowed, in cases local authorities to , the Diplomatic Conven- ides that “the archives and documents of be inviolable at any time and wherever ‘is is true even in case of armed conflict, ives must remain sealed and mayINTERNATIONAL Law 156 @ {nviolability of Communication -, essential to the proper discharge avsataal Serif to frve corsacece oer and protected by international law. According fe fe Diplomatic Convention, “The receiving state shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the government and other missions and consulates of the sending state, wherever situated, the mission may employ all appropriate means, inciuding diplomatic couriers and messages in code or cipher.”” Such communications are “inviolable” and the diplo- matic bag containing it “shall not be opened or detained.” Even the diplomatic courier carrying the diplomatic bag “shall be protected by the receiving state in the perform- ance of his functions. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.”* () Exemption from Testimonial Duties | The Diplomatic Convention also provides that “a dip- lomatic agent is not obliged to give evidence as a wit- ness Nevertheless, he is not prohibited by international law from doing so and may waive this privilege when authorized by his government. For example, the Venezue- lanenvoy testified at the trial of the assassin of President Garfisld in 1881, On the other hand, the Dutch env” to Washington invoked this right in 1856 when he rejected # connection with a homicide committe d for the prosecution of which his testi- The American government [str2 INTERNATIONAL Law 1 aque Diplomatic Suite or Retinue immunities and privileges suble not only to the head of mission and his family aval'igo to the other members of the diplomatic retinue it not in the same degree. The diplomatic retinue con- fists of the diplomatic staff, the administrative and techni- tal staff and the service staff. The administrative and staff enjoys the same rights as the divlomatic Z aff exceot that immunity from civil and administrative jurisdiction shall not extend to unofficial acts, On the other hhand, the private servants of the official members of the mission, if they are not nationals or permanent residents of the receiving state, enjoy only exemption from dues and taxes on their income from the mission and such other immunities and privileges as may be granted by the re- ceiving state.” person entitled to diplomatic privileges and‘Tue Ricur or Lecarion 159 Posed to have i aisiees ee ry to him personally but to the These privi ‘i ra at Petes and immunities are available to him. that is cae not only in situ but as well in transitu, , When traveling through a third state on the way to or from the receivi vt iving state, so fe may be necess: secure his transit or return.” ar8s, necessaryato Terminati # Diplomatic Missiex: A diplomatic mission may come to an end by any of Ge usual methods of terminating official relations, like leath, resignation, removal, abolition of the office, etc. These are governed by municipal law. Under international law, the more important modes are recall and dismissal. Recall may be demanded by the receiving state when the foreign diplomat becomes persona non grata to it for any reason. An example is the request made by the U.S.S.R. in 1953 for the recall of U.S. Ambassador Kennan for making derogatory statements against the Soviet Gov- ernment, Where the demand is rejected by the receiving state, or even without making a request for recall, the receiving state may resort to the more drastic method of dismissal, by means of which the offending diplomat is simply asked to leave the country. In October 1971, for instance, the British Govern- ment ordered no less than 105 Soviet diplomatic officials to Jeave Great Britain—the largest diplomatic expulsion in peacetime history—for espionage. The U.S.S.R. later re- taliated by ousting 5 British diplomats and refusing to accept 13 others. In 1976, the North Korean ambassador and several members of his diplomatic mission were ex- eS * Ibid. ™ Art, 40INTERNATIONAL Law 160 the Scandinavian states to which pa fr alleged involvement in illicit oe — The outbreak of war between the sending and re- odin ae terminates their diplomatic relations, which in fact usually severed even before the actual com- of hostilities. Extinction of either state will also have the same effect. As for change of government, diplomatic relations are not disturbed if the change is peaceful but may be auspendec where it is effected by f-viclence and the new government las not yet by the receiving state. In either case, ac- heim, there is a necessity for the diplo- provided with a new letter of credence.”Chapter 13 CONSULS CONSULS are state agents residing abroad for various Purposes but mainly in the interest of commerce and navi- gation. Unlike diplomatic agents, they are not charged with the duty of representing their states in political mat- ters nor are they accredited to the state where they are supposed to discharge their functions. For this reason, consuls do not ordinarily enjoy all the traditional diplo- matic immunities and privileges, although they are to a certain extent entitled to special treatment under the law of nations. The institution of consul dates back to as far as six centuries before Christ, when the Egyptians allowed the Greeks at Naucratis to choose from among themselves a magistrate who would apply to them the laws of their own country. Later, the Greeks began sending to foreign juris- dictions their own protectors or prostrates (proxenoi), a i the Romans with the appointment of i who interpreted the law between Romans and foreigners. Following the conquest of Rome, the Visigoths established a special court that applied to foreigners their own national laws rather than the law of the territorial sovereign. Similar courts were created by the Chinese during the eighth century and by the Arabs in the ninth century. i With the development of commerce in the Mediterra- Near East, numerous treaties of ca- the local jurisdiction and nean cities and the pitulation, as they were tionals in the Near East from 161Consuts 163 is the commission issued by the sending state,’ and the exequatur, which is the authority given to them by the receiving state to exercise their duties therein.‘ Hence, consuls are public officers not only of the sending state but. of the receiving state as well, and are governed by the laws of both. As in the case of diplomats, states may refuse to receive consuls and to withhold the exequatur from them without explanation. The consent given tw ite estabiishment vi diplomatic relations between two states implies, unless otherwise stated, consent to the establishment of consular relations.’ However, the severance of diplomatic relations shall not ipso facto involve the severance of consular relations,’ and vice versa. Functions Generally speaking, the functions of consuls may be divided into duties pertaining to commerce and navigation, duties respecting the issuance of passports and visas, and duties of protection of nationals. The principal duty of consuls is to promote the com- mercial interests of their country in the receiving state and to observe the commercial trends and developments therein for report to their home government. They also perform duties relating to navigation, such as visiting and inspecting vessels of their own states which may be in the consular district, exercising a measure of supervision over such vessels, adjusting matters pertain- ing to their internal order and discipline, as well as visit- * Ibid., Art. 11, Sec. 1. * Tbid., Art. 12, Sec. 1. * Ibid., Art, 2, Sec, 2. ‘ Ibid., Art. 2, Sec. 3.INTERNATIONAL Law fl inspecting foreign vessels destined for a port of the sending state. Consuls are also empowered to issue passports to na- nell of the sending state, to visa passports and to issue ‘ents relating to entry into and travel within the territory of the sending state, and to visa invoices and origin of goods destined for the territory of that state. . ‘. i. It is likewise the responsibility of consuls to look after the interests of fellow nationals and to extend them official : whenever needed. Thus, they may authenticate Ee saat solemnize marriages, register births and deaths, ily administer the estates of deceased jonals within the consular district, advise and adjust differences between their fellow nationals, visit them when they are arrested or detained by the receiving state, assist them in proceedings before or in relation with the local horiti _ and inquire into, any incidents which have é . s ular district affecting the interests iConsus 165 may be curtailed or restricted whe i i the prejudice of the Bei wenaete it is exercised to Caan also enjoy inviolability of their archives,’ ets ae not be examined or seized by the receiving “ ler any circumstance, nor may their production or testimony concerning them be compelled in official pro- ceedings.” But this immunity does not extend to the con- sular ‘Premises themselves, where legal process ray be served and arrests mude without violation of ixter ca law, except only in that part where consular work is being performed." In the famous case of Mrs. Kasenkina, for example, the United States rejected-a protest made by Russia against the service of a writ of habeas corpus upon the latter’s consul at his official residence in New York for the production of a Russian schoolteacher alleged to be detained in the premises. In fact, the consular offices may even be expropriated for purposes of national defense or public utility.” Respecting criminal offenses, the rule is that consuls are exempt from the local jurisdiction for crimes commit- ted by them in the discharge of their official functions. But with regard to other offenses, they are fully subject to the Jocal law and may be arrested, prosecuted and punished in proper proceedings. For reasons of comity, however, con- suls usually are not prosecuted for minor offenses and, when arrested, are given adequate opportunity to secure their release on bail at the earliest possible time.”” Civil suits may be instituted against consuls in their personal or private capacity but not in matters connected elec *Ibid., Art. 35. * Tbid., Art. 33. x * Tbid., Art, 44, See. 3. " Tbid., Art. 31. # Tbid., Art, 31, Sec. 4. 8 Jpid., Arts. 40, 43.INTERNATIONAL Law 166 ‘ jal duties.“ In Walthier v. Tho, : . Thomson, with where @ consul was sued for damages tt sent ee remenis allegedly made by hic wea from “consular official is immune from suit when Jained of were performed in the course of his ‘Thus, if the statements allegedly made to : were uttered in pursuance of Thom- sci J functions as a consular officer, then the sug- “ambassador of Canada shoulé be are thedefondant held immune.” Oi nsuls are also generally exempted from taxation, duties, ies, ice in the militia, and social security - , privileged to display their national flag and te although these concessions are ial” to the proper discharge of their unities and privileges are available not nsul ut also to the members of the consular e families, and the private staffs. be made by the sending state.” d by the consul or a consular the exercise of his functions, immu- will subsist without limitation ofConsuLs 167 like. The exequatur may also be withdrawn by the receiv- ing state, either of the appointing or receiving state may be extinguished, or war may break out between them. In the event of war, the consulate is closed and the archives are sealed and left in the custody of a caretaker, usually a consul from a neutral state. The consul from the belliger- ent state is allowed to depart for his own country as soon as possible and without unnecessary molestation. It should he noted that severance of consular re!2- tions does not necessarily terminate diplomatic relations. Thus, as an offshoot of the Kasenkina case, Russia and the United States discontinued consular relations for more than fifteen years. During that period, however, they maintained diplomatic relations.‘TREATIES 163 into i actin may be organized on any chosen level of HARES gration. Finally, they frequently provide the for the growth of international customary law.” Essential Requisites of a Valid Treaty Ae eee a treaty must: (a) be entered into by par ese ice e treaty-making capacity; (b) through their ites a Bee eearaue (c) without the attendance of 1 ess, faud. mistake, or other vice of consent; (2? on = lawful subject-matter;-(e) in accordance with their respec tive constitutional processes. (a) Treaty-making Capacity Wag All states have full treaty-making capacity unless limited by reason of their status or by previous self- imposed inhibitions. Thus, the protectorate is restricted in the control of its external affairs by the protector-state; a neutralized state may not agree to a defensive or offensive alliance. On the other hand, there are instances, as al- ready pointed out, when even mere colonies have been allowed to sign treaties or join international conferences as full-fledged members along with sovereign states. The United Nations and its organs, such as the Security Coun- cil and the Economic and Social Council, and international bodies like the World Health Organization, may also enter into treaties. (b) Authorized Representatives Tt is for municipal law to determine which organ of state shall be empowered to enter into treaties in its f the Philippines, for example, The Constitution o izes the President to make treaties, subject to theTs 171 by N; tease ir that the Spanish monarch would be tried for ferent, quegtl sn ey aoe aang plied not conte arise, however, if the pressure is ap- in dbaeage Re negotiator but upon the state itself, as ictated treaty of peace. an aiteecoee Was upheld by earlier writers when war With the =P as a legitimate means of compulsion. that outlawry of war, however, it is now suggested treaties of peace exacted from the vanquished hellig- erent should be regarded “not as voluntary compacts en- tered into as the price of peace, but rather as a sentence imposed by the international community upon aggressors for crimes committed against international law and the general peace.” The flaw in this explanation is that it automatically convicts the defeated state as the aggressor and would, in effect, sanction the acts of the victorious state even if essentially and undoubtedly illegal. Lauterpacht perhaps states the better rule when he observes: “The position has now probably changed insofar as war has been prohibited by the Charter of the United Nations and the General Treaty for the Renunciation of War. The state which has resorted to war in violation of its obligations under these instruments cannot be held to ree in a manner permitted by law. Accordingly. apply fo1 duress in such cases must, jt is submitted, be regarded as vitiating the treaty.”* (d) Lawful Subject-Matter The Treaty of Tordesillas in 1494 is an example of an invalid treaty because of the illegality of its subject-matter insofar as it sought to divide between Spain and Portugal parts of the Atlantic, Pacific and Indian Oceans, which are i * Fenwick, 442. a Oppenheim-Lauterpa 4t, Sec. 499.172 LyrernationaL Law open seas under the law of nations. B; treaty with such unlawful purposes esata slavery or narcotics, which is contrary to intern: i fi conventions and public morality, or the See ae activities of pirates, who are hostes humani : we would be null and void. et eer (e) Compliance with Constitutional Processes The treaty-making prevess ie governe: tional law except with respect to the method of ratification ~ as required by the municipal law of most states at present. Non-compliance with this requisite will prevent enforce- ment of the treaty even if already signed by the authorized negotiators. Treaty-making Process ‘The usual steps in the treaty-making process are: ne- gotiation, signature, ratification, and exchange of the in- struments of ratification. The treaty may then be submit- ted for registration and publication under the UN. Char- ter, although this step is not essential to the validity of the agreement as between the parties. Negotiation may be undertaken directly by the head his of state but he now usually assigns this task to ' ives, These representatives ar> credentials known as full powers, which i he start of the= 173 If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indi- cate the final consent of the state in cases where ratifica- tion of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotistore ic cllowed to sign first on tha which he will bring home to his own state. Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is 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. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them. While most treaties now expressly provide that they shall be subject to ratification according to the constitu- tional processes of the negotiating states, the weight of authority is that the requirement would still hold true even without a provision to this effect in the instrument. Hence, in the absence of a stipulation to the contrary, and more 60 if ratification is expressly required, an unratified treaty cannot be a source of obligations between the par- ties. But what if the treaty is ratified in yomon of the ituti ify i t pre- constitution of the ratifying state, a8 when it has no viously received the required approval of the legislature? The majority view on this question is that foreign Ee ernments should be held to a knowledge of the cue tional prerequisites for ratification in each country Be oe dealing, and. tat 9 teks hh Mt wi174 INTERNATIONAL Law peen ratified without proper observ; sani s. % ‘ance of these + ments is pee ee invalid, whatever the precereto the head of state may assert in that ee of Dirac en Tatty a eta ; goes without saying that refusal to ratify must ie but it ased on substantial grounds and not on superficial or whimsi ; otherwise the other state would be ae aera tified in ing offense. At times, to avoi Sic the ratification ie qualified eee reservations. in which event the ecme must ae ies the other party if these would constitute a ne 4 ‘ ication of Finally, it should be stressed that un ‘ tion of the Philippines, the power to See vested in the President and not, as is Renee in the legislature. Tis role ofthe Genste is confined simply in qving or withholding its consent (a “veto Sr i Corwin calls it) to the ratification. For that matter, it is for the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratifica- tion, to refuse to ratify it. But as a rule, of course, he can- not ratify a treaty without the concurrence of two-thirds of all members of the Senate. ‘The last step in the treaty-making process is the ex- change of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratifies with and no effectivity clause is embod: the instrument is deemed effective upon 102 of the U.N. Charter, a treaty not » Secretarist, by which it shall be PUP, od before any organ of the Uni‘Treaties 175 Nations, » Such ikelees as the Internati the parties and say sens cass ty HelWiidtig Waaweon other arbitral may. be the basis of a aaraeti ee United Nada nae ann conned. with the Halted Nations. This is a moifcation of the ae te, Covenant of the League of Nations, whieh eerie oat registered and published shall be null and Binding Effect of Treaties As a rul An per a a tence se other states which, iteaah they ee Poe pated in the negotiation of the eee a eeatal lowed by its terms to sign it later by a ea accession. Non-parties are usually not bound under the maxim pacta tertiis nec nocent nec prosunt. = There are instances, however, when third states may validly held to the observance of or benefit from the provisions of a treaty. Firstly, the treaty may be merely 2 formal expression of customary international law which, as such, is enforceable on all civilized states because of their membership in the family of nations. ‘An example Hague Conventions of 1899 and 1907. Sec- ‘ded under Article 2 of the UN. Charter Organization “shall that non-member rdance with the principles of the Charter ary for the maintenance of interna- and security,” and under Article 103 that the fF member-states shall prevail in case of international ent,” including with on-members. TAZ the = 7 stg benefits to non-s sly extend i ity of 4901, which, -Pauncefote ane i the United States and Greata6, INTERNATIONAL Law Britain, opened the Panama C; merce and of war of all natio1 terms of entire equality.” Parties to apparently unrelated treaties may linked by the most-favored-nation clause, seas contracting state entitled to most-favored-nation treat- ment from the other may claim the benefits extended by the latter to another state in a separate agreement. To illustrate, if X agrees to extend most-favored-nation treat- ment to Y and thereafter grants tariff preferences to Z under another treaty, Y will be entitled, by virtue of its treaty with X, to enjoy the same advantages conceded to Z. ‘anal “to the vessels of com- ns observing these Rules, on | | Observance of Treaties One of the fundamental rules of international law is sunt servanda, which requires the performance in good faith of treaty obligations. Despite supervening hard- ships such as conflicts with the municipal law or prejudice to the national interest, the parties must comply with their commitments under a treaty and cannot ignore or modify its provisions ons without the consent of the other sig- ae Willful disregard of a treaty is frowned upon by inion as a means of en- e heal of treaties can lead to more equences, including war. ; y. Angara,” the Supreme Court observed:178 INTERNATIONAL Law amend its constitution to make it conf requirement, or pay damages to the ae ee inability to comply with its commitments ere But despite the general requirem, forcement of treaties, states have on Ah Steeetg Gootrine of rebus sic stantibus, which Jessur dncna’c “the equivalent exception to the Sts ps ato emda Acsording to him, “the doctrine constinetse attempt to formulate a legal principle which Rothe $a ify of a treaty obligation if the Beier, with relation to which the parties contracted ha’ ae t ve changed so materially and so unexpectedly as to create a situation jn which the exaction of performance would be hic , fi unreason- able. ‘Thus, to use his own illustration, if states A and B ‘upon the reciprocal use of their respective i P port facili- ties and B’s only important port is thereafter ceded to “state C, A should be released from continuing to accord the treaty privileges to B, which is no longer able to perform “its obligation. Law of Treaties prepared by the Interna- nmission recognizes the doctrine as a mode in the following provision: a fundamental change has occurred with regard ‘situation existing at the time when the treaty was it may be invoked as a ground for terminating or from the treaty if: existence of that fact or situation constituted an : of the consent of the parties to the treaty; and e effect of the change is to transform in an essen character of the obligations undertaken 1 theoe 179 The doctri United States aa sic stantibus was invoked by the consider itnclt toy ncaa that would no longer vention, which d by the International Load Line Con- toma lepresea car htnet dee nly 000) a ateraas fying its Sn in the loading of cargo vessels. In justi- Plated ined claimed that the agreernent contem- ten of the thirty. commerce and voyages and that because twenty-six w -six signatories were at war and the other behets aca lee neutrality,” the different ve epaded to be regulated jnad become “a wholly Ser ee ene, Pace Roosevelt declared ee = approved principles of international law, it has the United raring of such changed conditions, the right of ae tes of America to declare the Convention pended and inoperative.” ___ It is to be noted, however, that the doctrine of mis sic stantibus is subject to the following limitations: (a) it applies only to treaties of indefinite duration; (b) the vital change must have been unforeseen or unforeseeable and Should not have been caused by the party invoking the doctrine; (c) the doctrine must be invoked within a rea- sonable time; and (d) it cannot operate retroactively upon isi executed prior to the contracts, the basic rule in the inter pretation treaties is to give effect to the intention of the of et be dacoverble te i i has official text or texts to be i. wi nf in Paterpretata0. Most treaties scworth, Vol. V, p 358. 222; ited in Hac! Re ee Pec Ae 966; Wiaoo and TuckerINTERNATIONAL Law a a “protocol” or “agreed minutes" ; % ‘ised in the body are defined and carina yal canons of statutory construction re) : tion of treaties. Thus, to Mention a must be read in light of the whole of the purposes of the treaty be given their natural ing unless 4 intended, and, when they have differ. contracting states, should be inter- with the usage of the siate where take effect. Doubts should be resolved of obligations and in favor of the y of the contracting parties. At all n that will lead to an absurdity is e rational result preferred. such as the circumstances leadingTREAT ei 181 (5) B , mutual ai — weit the parties, through express denunciation Se esuetude, or the exercise of the right of ee r withdrawal), when allowed. y novation. eel By extinction of one of the parties if the treaty is “ied ah vital change of circumstances under the doc- sic stantibus. (9) By outbreak of war be cases, save specifically when the regulate the conduct of the signatories during the hostili- ties, or to cede territory, or to fix boundaries. As held in Techt v. Hudges,” provisions of a treaty compatible with a state of hostilities, unless expressly terminated, will be enforced, and those incompatible rejected. (10) By voidance of the treaty because of defects in its conclusion, violation of its provisions by one of the par- ties, oF incompatibility with international law oF the U.N. Charter. treaty war intended to