C.

TREATY-MAKING PROCESS

Negotiation Signature Ratification 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
person or persons to represent the Sate 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.
Who are considered representatives of the State for
treaty negotiation?
• Head of State
• Head of Government
• Foreign Minister
• Head of Diplomatic missions
• Those accredited by the State to an international
conference or organization
AKBAYAN vs. Aquino
GR No. 170516, July 16, 2008
Facts:
Petitioners, non-government organizations, Congresspersons, citizens and taxpayers requested, via the petition
for mandamus and prohibition, to obtain from respondents the full text of the Japan-Philippines Economic Partnership
Agreement (JPEPA) including the Philippine and Japanese offers submitted during the negotiation process and all
pertinent attachments and annexes thereto. The Congress, through the House Committee called for an inquiry into the
JPEPA, but at the same time, the Executive refused to give them the said copies until the negotiation was completed.
JPEPA was the bilateral free trade agreement entered between the Philippine government with Japan, concerned with
trade in goods, rules of origin, customs procedures, paperless trading, trade in services, investment, intellectual property
rights, government procurement, movement of natural persons, cooperation, competition policy, mutual recognition,
dispute avoidance and settlement, improvement of the business environment, and general and final provisions.
Issue: W/N offers submitted during the JPEPA negotiation process and all pertinent attachments and annexes thereto
shall also be disclosed to the petitioners
Held :
NO. The Court held that while JPEPA is a matter of public concern, the demand for copies of the Philippine and
Japanese offers submitted during the JPEPA negotiations must be denied since these are covered by executive
privilege. The Court explained that 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. And that a ruling
that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage future Philippine
representatives from frankly expressing their views during negotiations.
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.
a. Adoption and Authentication
Adoption takes place when the states that took part
in the creation of the instrument certify that they
have reached a consensus to adopt the same.
Authentication, which comes after adoption is, the
process of certifying that the final copy of the
document which they are supposed to sign is the
same as that which they agreed upon.
Note that…
 The mere adoption or authentication of an
instrument does not bind a State because
adoption and authentication are mere processes
meant to safeguard the integrity of the instrument.
Ultimately, the rules still stands that a State is not
bound to any instrument unless it has signed the
same.
b. Types of Signature
• Simple – where the instrument was signed
initially but the State is not completely bound
unless the signature is later ratified.
c. Consequence of Signature Subject to Ratification
• Where an instrument is signed but not yet ratified,
and such ratification is material to bind the State
fully, Article 18 of the VCLT provides that the
signing State must nevertheless refrain from acts
which would defeat the object and purpose of the
instrument until it is ratified or the State clearly
expresses its intention to not become a party to
the instrument.
3. Ratification
• The act by which the provisions of a treaty are
formally confirmed and approved by the State,
and by which the State expresses its willingness
to be bound by the treaty.

 In the Philippines, the power to

ratify is vested in the President,
subject to concurrence by 2/3 of
all Members of the Senate.
Pimentel v. Executive Secretary
GR No. 158088, July 6,2005

Facts:
The petitioners filed a petition for mandamus to compel the Office of the Executive Secretary and the Department
of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the
Philippines for its concurrence pursuant to Sec. 21, Art VII of the 1987 Constitution. The Rome Statute established the
International Criminal Court which will have jurisdiction over the most serious crimes as genocide, crimes against
humanity, war crimes and crimes of aggression as defined by the Statute. The Philippines signed the Statute through the
Charge d’ Affairs of the Philippine Mission to the United Nations. The provisions of the Statute however require that it be
subject to ratification, acceptance or approval of the signatory state. Petitioners contend that ratification of a treaty, under
both domestic and international law, is a function of the Senate, hence it is the duty of the Executive Department to
transmit the signed copy to the senate to allow it to exercise its discretion.
Issue: W/N the Exec. Secretary and the DFA have the ministerial duty to transmit to the Senate the copy of the Rome
Statute signed by a member of the Philippine mission to the U.N. even without the signature of the President.
Held:
No. The President as the head of state is the sole organ and authorized in the external relations and he is also the
country's sole representative with foreign nations and he is the mouthpiece with respect to the country's foreign affairs. In
treaty-making, the President has the sole authority to negotiate with other states and enter into treaties but this power is
limited by the Constitution with the 2/3 required vote of all the members of the Senate for the treaty to be valid. (Sec. 21,
Art VII). The legislative branch part is essential to provide a check on the executive in the field of foreign relations, to
ensure the nation's pursuit of political maturity and growth.
 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.
 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
Limitation of Bad Faith Interpretation
Reservation… Although States may
Under Article 19 of the enact laws and make
VCLT, a reservation is declarations as to how
void if: they interpret a treaty,
 Expressly prohibited these interpretations
by the treaty; cannot go as far as to
vary the legal effect of
 It is beyond the
the treaty.
scope of allowable
reservations provided
in 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
parties to be bound by the treaty is established.
 Generally, a treaty must first enter
into force before it can officially be
considered international law.
Article 18 of the Vienna Convention:
 Pending the entry into force of the treaty, the State
which has signed or ratified a treaty has the
obligation “to refrain from acts which would defeat
the object and purpose” of the treaty.

a. Domestic Considerations – Following Article 27

of the VCLT, the entry into force of a treaty cannot
be hampered by domestic laws since a State
cannot invoke domestic law to justify failing
perform a treaty. Exception to this rule (Article 46,
b. Exchange of instruments of ratification- consent
is deemed established with the exchanged 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.
c. Registration with and publication by the United
Nations- Article 102 of the UN Charter 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 UN.
d. Philippine Domestic Concerns- No instrument
will be given provisional effect unless it is shown
that a pressing national interest will be upheld
thereby, as determined by the Department of
Foreign Affairs. (EO No. 459, Section 6)
 EO No. 459, Section 7
i. Domestic Requirements for Executive
Agreements:
 Submission to DFA for signing and preparation of
ratification papers.
 Transmission of the agreement by the DFA to the
president for ratification, pursuant to the
endorsement of the concerned agency, and the
return of the signed copy to the DFA for
appropriate action.
 ii. Domestic Requirements for Treaties:
 Compliance with the domestic requirement for
executive agreements.
 Submission by the DFA of the signed instrument
to the Senate for concurrence
 The return to the DFA of the instrument with the
concurrence of the senate for appropriate action.
Thank you for listening 