Treaties: Fundamentals,

Interpretations, Amendment, and

Termination

By: Ryan de Guzman

I. Fundamental Principles
Concerning Treaties
Territorial application
Vienna Convention on the Law of Treaties
Article 29
Territorial scope of treaties
“Unless a different intention appears from the
treaty or is otherwise established, a treaty is
binding upon each party in respect of its entire
territory.”
Pacta sunt servanda
(“agreements must be kept”)

Vienna Convention on the Law of Treaties

Article 26
“Every treaty in force is binding upon the parties
to it and must be performed by them in good
faith.”
“The question is sometimes asked whether treaties
are law or are merely obligations which the law says
must be carried out…
…The distinction, perhaps, is not very useful because
all treaties must be observed by the parties under the
principle of pacta sunt servanda.”

Father Joaquin Bernas

Introduction To Public International Law
Illustrative cases
Tanada v. Angara, 272 SCRA 18
 Facts:
• Petitioners prayed for the nullification, on constitutional
grounds, of the concurrence of the Philippine Senate in the
ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization.

• This goes the same for the prohibition of its implementation and
enforcement through the release and utilization of public funds,
the assignment of public officials and employees, as well as the
use of government properties and resources by respondent-
heads of various executive offices concerned therewith.
Facts:
• They contended that WTO agreement violates the mandate of the
1987 Constitution to “develop a self-reliant and independent
national economy effectively controlled by Filipinos x x x (to) give
preference to qualified Filipinos (and to) promote the preferential
use of Filipino labor, domestic materials and locally produced
goods” because:

(1) the WTO requires the Philippines “to place nationals and
products of member-countries on the same footing as Filipinos and
local products” and
(2) that the WTO “intrudes, limits and/or impairs” the
constitutional powers of both Congress and the Supreme Court.
Ruling:
• No, the WTO agreement does not unduly limit, restrict, and impair the
Philippine sovereignty, particularly the legislative power granted by the
Philippine Constitution.

• By the doctrine of incorporation, the country is bound by generally

accepted principles of international law, which are considered to be
automatically part of our own law, puruant to Art II, Section 2 of the
Constitution.

• One of the oldest and most fundamental rules in international law is

pacta sunt servanda — international agreements must be performed
in good faith.
Ruling:
• In its Declaration of Principles and State Policies, the Constitution
“adopts the generally accepted principles of international law as part
of the law of the land, and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity, with all nations.”

• A treaty engagement is not a mere moral obligation but creates a

legally binding obligation on the parties, and said State is bound to
make in its legislations such modifications as may be necessary to
ensure the fulfillment of the obligations undertaken.”
Lim v. Executive Secretary, G.R. No. 151445
 Facts:
• In 2002, US sent armed forces to PH, Basilan, “joint military
manueuvers” called “Balikatan 02-1” pursuant to MDT.

• Petitioners (Arthur Lim et al) filed a petition for certiorari and

prohibition (questioning the constitutionality of join exercise),
in their capacity as citizens, lawyers and taxpayers. Their
contention:

a) MDT is for mutual military assistance against external

threats, Abu Sayyaf is not “external”; does not warrant MDT
b) VFA – soldiers not allowed to “engage in combat”
Facts:
• Citizens, lawyers, and taxpayers Arthur D. Lim and Paulino P.
Ersando challenged the constitutionality of the joint
exercise, while partylists Sanlakas and Partido Ng
Manggagawa, residents of Zamboanga and Sulu directly
affected by the operations, filed a petition-in-intervention.
Ruling:
• From the perspective of public international law, a treaty is
favored over municipal law pursuant to the principle of pacta
sunt servanda.
• Hence, "every treaty in force is binding upon the parties to it
and must be performed by them in good faith.“
• Further, a party to a treaty is not allowed to "invoke the
provisions of its internal law as justification for its failure to
perform a treaty."
II. Interpretation of Treaties
 Vienna Convention on the Law of Treaties
Article 31
General rule of interpretation
“1. A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in
the light of its object and purpose.”
 2. The context for the purpose of the interpretation
of a treaty shall comprise, in addition to the text,
including its preamble and annexes:

(a) any agreement relating to the treaty which was made

between all the parties in connection with the conclusion of the
treaty;

(b) any instrument which was made by one or more parties in

connection with the conclusion of the treaty and accepted by the
other parties as an instrument related to the treaty.
 3. There shall be taken into account, together with
the context:
(a) any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations
between the parties

4. A special meaning shall be given to a term if it is

established that the parties so intended.
Illustrative cases
Lim v. Executive Secretary, G.R. No. 151445
 Facts:
• VFA permits United States personnel to engage, on an
impermanent basis, in “activities,” which is an
ambiguous word, has wide a scope.

• What does “activities” entail? Supreme Court looked

to the “Vienna Convention on the Law of Treaties” for
guidance, and concluded that:
 Ruling:
• The usage of the ambiguous word “activities” was
intentional: to give both parties a leeway in negotiation of
what American troops can actually do.
• “As conceived, joint exercises may include training on new
techniques of patrol and surveillance to protect the nation’s
marine resources, sea search-and-rescue operations to
assist vessels in distress, disaster relief operations, civic
action projects such as the building of school houses,
medical and humanitarian missions, and the like.
• These are all “activities.” So, also included: mutual anti-
terrorism advising, assisting and training exercise.
III. Amendment/Modification of
Treaties
 Vienna Convention on the Law of Treaties
Article 39
General Rule Regarding the
Amendment Of Treaties
“1. Unless the treaty otherwise provides, the
amendment of multilateral treaties shall be
governed by the following paragraphs.”
2. Any proposal to amend a multilateral treaty as between
all the parties must be notified to all the contracting States,
each one of which shall have the right to take part in:
(a) the decision as to the action to be taken in regard to such
proposal;
(b) the negotiation and conclusion of any agreement for the
amendment of the treaty.

3. Every State entitled to become a party to the treaty shall

also be entitled to become a party to the treaty as
amended.
4. The amending agreement does not bind any State already
a party to the treaty which does not become a party to the
amending agreement; article 30, paragraph 4(b), applies in
relation to such State.

5. Any State which becomes a party to the treaty after the

entry into force of the amending agreement shall, failing an
expression of a different intention by that State:
(a) be considered as a party to the treaty as amended; and
(b) be considered as a party to the unamended treaty in relation to
any party to the treaty not bound by the amending agreement.
• A treaty may be amended by the agreement of the Parties. Every
Party to a treaty is entitled to participate in the amendment’s
negotiations and to become a Party to the new amendment.
• Parties are not required to adopt amendments. In fact, in accordance
with the Vienna Convention on the Law of Treaties (part IV), the pre-
amendment terms remain binding for any Party that does not adopt
the amendment, even in dealings with a Party that is bound by the
amendment.
• Article 14 concerns amendments to the Convention and to annexes:
who can propose them (para. 1), the process for submission (para. 2),
how they are to be adopted (para. 3) and how they enter into force
(paras. 4, 5 and 6).
IV. Invalidation of Treaties
Illustrative cases
Temple of Preah Vihear (Cambodia v. Thailand)
Facts:
• Preah Vihear
Temple is an
ancient Khmer
temple situated
close to
Cambodia's
border with
Thailand.
Facts:
• When the temple was declared as a UNESCO World
Heritage Site, Thailand claimed it is supposed to be part
of their territory but was given to Cambodia as a
mistake when setting up the boundary between the two
countries.

• Thailand sought to invalidate the 1904 boundary

agreement between them and Cambodia because of an
error in the resulting boundary.
 Ruling:
• The International Court of Justice rejected Thailand’s
argument that a particular map contained an error and
therefore it was not bound to observe it.

• The Court held that the plea of error cannot be allowed

as an element of vitiating consent if the country
contributed to the error.

• The Court also ordered Thai military forces to vacate the

border.
Fisheries Jurisdiction Case (UK v. Iceland)
Facts:
• On March 11th 1961
both Iceland and the
UK ratified the treaty
of 1961 this
agreement
established Iceland's
nautical territory 12
miles off the
coastline.
Facts:
• The Treaty also established that any future disputes in
relation to the Treaty of 1961 would be brought to the
International Court of Justice.

• On July 17th 1971, Iceland stated that it would withdraw

out of the Treaty of 1961 as a way to extend its nautical
territory from 12 to 50 miles off its coast.

• As per the ICJ provision of the treaty the case was then
brought to the ICJ.
Facts:
• Iceland argued that their withdrawal is due to a
“change in circumstance”

• They claimed that the twelve-mile exclusive zone

was undergoing a depletion of fish which is
detrimental to Iceland's economic well-being.
 Ruling:
• The Court decided that Iceland and the United Kingdom had to
undertake negotiations in good faith to find a solution to their
differences with their respective fishery rights.

• The parties should also consider that Iceland was entitled to a

preferential share in the distribution of fishing resources
because of its people’s special dependence on coastal fisheries.

• Also, well regarded is the principle that each state must pay due
regard to the interests of the other in the conservation and
equitable exploitation of these resources.
Danube Dam Case (Hungary v. Slovakia)
Facts:
• In 1977 Hungary and Czechoslovakia signed a treaty to
construct the Gabcíkovo-Nagymaros Dam.

• In 1989, as a result of intense criticism which the project

had generated in Hungary, the Hungarian Government
decided to suspend the works at Nagymaros pending the
completion of various studies.

• Czechoslovakia continued construction work of the

Gabcíkovo Project.
Facts:
• In 1992 Hungary notified Czechoslovakia that it was
terminating the treaty.

• Five months later Czechoslovakia diverted the river's

waters into a bypass canal which caused environmental
harm.

• Czechoslovakia - now named Slovakia, and Hungary inter

alia requested the Court to decide whether the Republic
of Hungary had been entitled to suspend and abandon the
project.
Facts:
• The Hungarian Government took its decision on the basis
of the following considerations:

• state of necessity
• impossibility of performance
• fundamental change of circumstances
• substantial breach of the Treaty by the other party; and,
finally,
• protection of the environment
 Ruling:
• The Court respects the provisions of the Vienna Convention
concerning the termination and the suspension of the operation
of treaties set forth in its Articles 60 to 62.

• It ruled that Hungary could not use the necessities defense as it

could not prove that its decision was made in response to a
situation of imminent danger to the environment.

• It also held that the collapse of Communism and the reduced

economic benefits did not radically transform Hungary’s
obligations as the change of circumstance must be fundamental
and unforeseen.
 Ruling:
• Article 62 of Vienna Convention on The Law of Treaties states:
• Par 1. A fundamental change of circumstances which has
occurred with regard to those existing at the time of the
conclusion of a treaty, even if not foreseen by the parties, may
not be invoked as a ground for terminating or withdrawing from
the treaty.
• Par 3. A party may invoke a fundamental change of
circumstances as a ground for terminating or withdrawing from
a treaty it may also invoke the change as a ground for
suspending the operation of the treaty.
V. Suspension of Treaties
Illustrative cases
India v. Pakistan ICJ August 18, 1972
Facts:
• A complaint against India was brought before the Council
of the International Civil Aviation Organization (ICAO) by
Pakistan for the violation of treaty provisions after India
unilaterally suspended flights of Pakistan aircraft over
Indian territory.
• Based on the premise that Pakistan had hijacked an Indian
plane, Indian appealed to the I.C.J., asserting that it had
suspended the treaty.
• Pakistan objected to the jurisdiction of the I.C.J.’s on the
ground that India’s unilateral suspension had made the
jurisdictional clauses inoperative.
 Ruling:
• In its Judgment of 18 August 1972, the Court found that it was
competent to hear the appeal of India.

• Jurisdictional clauses are not rendered inoperative by a mere

unilateral suspension alone.

• If a mere allegation that a treaty was no longer operative could

be used to defeat its jurisdictional clauses, then clauses of these
nature would become potentially a dead letter. This implies that
the Court does have jurisdiction.
 Ruling:
• Article 60 of the 1969 Vienna Convention on the Law of Treaties
states:

Par 3. A material breach of a treaty, for the purposes of this

article, consists in:
(a) a repudiation of the treaty not sanctioned by the present
Convention; or
(b) the violation of a provision essential to the accomplishment
of the object or purpose of the treaty.
VI. Rebus sic stantibus

Article 62, Vienna Convention on the

Law of Treaties
Latin for “things standing thus”

This concept stipulates that, where there has been a fundamental

change of circumstances, a party may withdraw from or terminate
the treaty in question.

A fundamental change of circumstances, however, is not sufficient

for termination or withdrawal unless
a) the existence of the original circumstances was an essential
basis of the consent of the parties to be bound by the treaty and
b) the change radically transforms the extent of obligations still to
be performed.
This exception does not apply if:

a) the treaty establishes a boundary or

b) if the fundamental change is the result of a breach by the party

invoking it of an obligation under the treaty or of any other
international obligation owed to any other party to the treaty.
Illustrative cases
Santos III v. Northwest Orient Airlines,
210 SCRA 256
Facts:
• The petitioner Augusto Benedicto Santos III purchased from
private respondent Northwest Orient Airlines (NOA) a round-
trip ticket in San Francisco. U.S.A., for his flight to Manila via
Tokyo and back.

• Private respondent is a foreign corporation with principal

office in Minnesota, U.S.A. and licensed to do business and
maintain a branch office in the Philippines.

• On flight day, the petitioner was informed that he had no

reservation for his flight from Tokyo to Manila. He therefore
had to be wait-listed.
Facts:
• The petitioner sued NOA for damages in the RTC of Makati.
NOA moved to dismiss the complaint on the ground of lack of
jurisdiction, citing Article 28(1) of the Warsaw Convention,
reading as follows:

Art. 28. (1) An action for damage must be brought at the

option of the plaintiff, in the territory of one of the High
Contracting Parties, either before the court of the domicile of
the carrier or of his principal place of business, or where he
has a place of business through which the contract has been
made, or before the court at the place of destination.
Facts:
• The private respondent contended that the Philippines was not its
domicile nor was this its principal place of business.

• The petitioner claims that the lower court erred in not ruling that
Art. 28(1) of the Warsaw Convention is inapplicable because of a
fundamental change in the circumstances that served as its basis.

• The RTC dismissed the case.

• The petitioner argues that the lower court erred in not ruling that
Art. 28(1) of the Warsaw Convention is inapplicable because of a
fundamental change in the circumstances that served as its basis.
Facts:
• He showed that the provisions in the Convention were
intended to protect airline companies under "the conditions
prevailing then and which have long ceased to exist."

• He argues that because of developments in the airline industry

through the years, the treaty has become irrelevant. Hence, to
the extent that it has lost its basis for approval, it has become
unconstitutional.
 Ruling:
• The Supreme Court Rules that the petitioner’s argument has no
merits.

• It is true that at the time the Warsaw Convention was drafted,

the airline industry was still in its infancy. However, that
circumstance alone is not sufficient justification for the rejection
of the treaty at this time.

• The changes recited by the petitioner were, realistically, not

entirely unforeseen as they were expected although in a general
sense only.
 Ruling:
• But the more important consideration is that the treaty has not
been rejected by the Philippine government.

• The doctrine of rebus sic stantibus does not operate

automatically, as there should be a formal act of rejection, to
render the treaty inoperative.
Gabcikovo-Nagymaros (1997) ICJ Rep 7
 Ruling:
• During the proceedings, Hungary presented the occurrence of a
fundamental change of circumstances to justify its notification
of termination. it specified profound changes of a political
nature, the Project's diminishing economic viability, the progress
of environmental knowledge.

• The Court ruled that for fundamental change of circumstances

to be considered, it should meet the following requisites:
 Ruling:
• It must have an effect that would radically transform the extent
of the obligations.

• It must be unforeseen.

• The existence of the circumstances at the time of the Treaty's

conclusion must have constituted an essential basis of the
consent of the parties to be bound by the Treaty.
Pangilinan vs. Cayetano G.R. No. 238875,
March 16, 2021
Facts:
• On March 15, 2018, the Philippine government announced
that it was withdrawing from the International Criminal Court
(ICC), with President Rodrigo Duterte claiming that the country
never became a state party to the Rome Statute on the ground
of non-publication.
• The following day, it formally submitted its Notice of
Withdrawal to the United Nations, which was received by the
Secretary-General thereof.
• Consequently, three petitions were filed assailing the validity
of the executive department's unilateral act of withdrawing
from the Rome Statute.
Facts:
The petitioners argue that:
• the Rome Statute has the same status as an
enactment of Congress as a law in the Philippines by
virtue of the Constitution's incorporation clause
• the President cannot repeal a law;
• and the country's withdrawal from a treaty requires
the concurrence of at least two-thirds of the Senate.
Facts:
The public respondents claim that:
• the Petitions do not present a justiciable
controversy because the withdrawal from the
treaty is a political question;
• and that the Constitution does not expressly
require the Senate to concur in the withdrawal
from a treaty.
 Ruling:
• President does not have an absolute unilateral authority to
withdraw from a treaty.

• The Court adopted the following guidelines as the modality for

evaluating cases concerning the president's withdrawal from
international agreements:
First, the president should not be bound to abide by a treaty
if such treaty runs afoul of the Constitution and our
statutes.
 Ruling:
Second, the president cannot unilaterally withdraw from
agreements which were entered into pursuant to congressional
imprimatur.
Third, the President cannot unilaterally withdraw from
international agreements where the Senate concurred and
expressly declared that any withdrawal must also be made with
its concurrence.

• However, the unfolding of events, including the ICC's acknowledgment

of withdrawal rendered the petitions moot, removing any potential
relief from this Supreme Court's sphere.
Treaties: Fundamentals, Interpretations,
Amendment, and Termination

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