1.

Distinguish Treaty and Executive Agreement:

The distinction between a treaty and an executive agreement only has a
domestic significance. In the international arena, there is no difference between
a treaty and an executive agreement. It has the same binding effects upon
the rights and obligations of parties. Whether it is called a treaty or executive
agreement, international law sees it the same. Domestically the difference would
be especially less significant where the executive agreement was concluded
pursuant to legislation or statutory authorithy.
It was held in one case: International agreements involving political issues or
changes of national policy and those involving international agreements of
permanent character usually take form of treaties. But international
agreements embodying adjustments of detail carrying out well established
national policies and traditions and those involving arrangements of a more or
less temporary nature usually take the form of executive agreements.
In Bayan v. Executive Secretary the Court ruled: Thus, in international law, there
is no difference between treaties and executive agreements in their binding
effect upon states concerned, as long as the negotiating functionaries have
remained within their powers. International law continues to make no distinction
between treaties and executive agreements: they are equally binding obligations
upon nations. In this jurisdiction, we have recognized the binding effect of
executive agreements even without the concurrence of the Senate or Congress.
In our jurisdiction, we have recognized the binding effect of executive
agreements even without the concurrence of the Senate or Congress. In
Commissioner of Customs vs. Eastern Sea Trading, we had occasion to
pronounce: x x x the right of the Executive to enter into binding agreements
without the necessity of subsequent Congressional approval has been confirmed
by long usage. From the earliest days of our history we have entered into
executive agreements covering such subjects as commercial and consular
relations, most-favored-nation rights, patent rights, trademark and copyright
protection, postal and navigation arrangements and the settlement of claims.
The validity of these has never been seriously questioned by our courts, x x x x
x x x x x Furthermore, the United States Supreme Court has expressly
recognized the validity and constitutionality of executive agreements entered
into without Senate approval.
How is a treaty made?
Steps in Treaty-making Process:
1. Negotiation - Discussion of the provisions of the proposed treaty, undertaken by
the representatives of the contracting parties who are provided with credentials
known as full powers of PLENIS POUVIORS.
2. Signature is an act by which a State provides a preliminary endorsement of the
instrument. Signing does not create a binding legal obligation but does
demonstrate the States intent to examine the treaty domestically and consider
ratifying it. While signing does not commit a State to ratification, it does oblige

the State to refrain from acts that would defeat or undermine the treatys
objective and purpose.
3. Ratification the power to ratify is vested in the President and not, as commonly
believed, in the legislature. The role of the Senate is limited only to giving or
withholding its consent or concurrence, to the ratification. The Instrument of
Ratification, after it is signed by the President, is then transmitted to the Senate
for its concurrence through a Senate Resolution of Concurrence.
4. Exchange of instruments of ratification; and
5. Registration with UN treaties must be duly registered with the UN before it may
be enforceable before the ICJ. Treaties are adopted, signed, and ratified before its
entry into force. But the unregistered treaties are nevertheless binding between
the signing parties.
What
1.
2.
3.
4.
5.
What

are the essential requisites of a valid treaty?

Entered into by parties having treaty-making capacity
Through their authorized organs or representatives
Without attendance of duress, fraud, mistake, or other vices of consent
Lawful subject matter and object
Ratification in accordance with their respective constitutional processes
is the effect of a reservation?
A reservation is a declaration made by a state by which it purports to
exclude or alter the legal effect of certain provisions of the treaty in their
application to that state. A reservation enables a state to accept a
multilateral treaty as a whole by giving it the possibility not to apply certain
provisions with which it does not want to comply. Reservations can be made
when the treaty is signed, ratified, accepted, approved or acceded to.
Reservations must not be incompatible with the object and the purpose of the
treaty. Furthermore, a treaty might prohibit reservations or only allow for
certain reservations to be made. [Arts.2 (1) (d) and 19-23, Vienna Convention
of the Law of Treaties 1969]
What is a Protocol de Cloture?
An instrument which records the winding up of the proceedings of a
diplomatic conference and usually includes a reproduction of the contents of
treaties, conventions, recommendations and other acts agreed upon and
signed by the plenipotentiaries attending the conference. It is not the treaty
and does not require the concurrence of the senate. (Tanada vs. Angara)

When does a treaty take effect?

Typically, the provisions of the treaty determine the date on which the
treaty enters into force. Where the treaty does not specify a date, there
is a presumption that the treaty is intended to come into force as soon as all
the negotiating states have consented to be bound by the treaty. Bilateral

treaties may provide for their entry into force on a particular date, upon the
day of their last signature, upon exchange of the instruments of ratification or
upon the exchange of notifications. In cases where multilateral treaties are
involved, it is common to provide for a fixed number of states to express their
consent for entry into force. Some treaties provide for additional conditions to
be satisfied, e.g., by specifying that a certain category of states must be
among the consenters. The treaty may also provide for an additional time
period to elapse after the required number of countries have expressed their
consent or the conditions have been satisfied. A treaty enters into force for
those states which gave the required consent. A treaty may also provide that,
upon certain conditions having been met, it shall come into force
provisionally. [Art.24, Vienna Convention on the Law of Treaties 1969]

When may non-signatories be bound by a treaty?

What is the effect of non-ratification of a treaty?
What is the Principle of Effectiveness in the interpretation of treaties?
Treaties and international constitutional instruments, should be so construed
as to make their application a means of fulfilment rather than an exercise in
futility.
What is meant by the Principle of Pacta Sunt Servanda?
It simply means that treaties must be observed in good faith despite hardship
on the contracting state, such as conflicts between the treaty and its
constitutions or prejudice to the national interst as a result of the operation of
the treaty.

As a general rule, a party must comply with the provisions of a treaty and
cannot ignore or modify it without the consent of the other signatory. Willful
disregard or violation of treaties without just cause is frowned upon by the
society of nations.

What is meant by the Principle of Rebus Sic Stantibus?

Legal principle which would justify non-performance of treaty obligations
where an unforeseen or substantial changes occur which would render one of
the parties thereto unable to undertake treaty obligations as stipulated
therein.

Requisites:
1. It applies only to treaties of indefinite duration
2. The vital change claimed as jurisdiction for the discontinuance of the
treaty must have been unforeseen or unforeseeable and must not have
been caused by the party invoking the doctrine
3. The doctrine must be invoked within a reasonable time from the
occurrence of the change asserted.
4. The doctrine cannot operate retroactively upon the provisions of the
treaty executed prior to the change in circumstance (Salonga and Yap,
310)
What is the effect of a breach of a treaty?
If a party materially violates or breaches its treaty obligations, the other
parties to that treaty may invoke the violation as a ground to suspend their
treaty obligations to that treaty.
A material breach of a multilateral treaty by one of the parties entitles:
(a) the other parties by unanimous agreement to suspend the operation of
the treaty in whole or in part or to terminate it either: (i) in the relations
between themselves and the defaulting State, or (ii) as between all the
parties;
(b) a party specially affected by the breach to invoke it as a ground for
suspending the operation of the treaty in whole or in part in the relations
between itself and the defaulting State;
(c) any party other than the defaulting State to invoke the breach as a ground
for suspending the operation of the treaty in whole or in part with respect to
itself if the treaty is of such a character that a material breach of its
provisions by one party radically changes the position of every party with
respect to the further performance of its obligations under the treaty.
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.
What are the grounds for invalidating a treaty?
1. Ultra vires treaties

A party's consent to a treaty is invalid if it had been given by an agent or

body without power to do so under that state's domestic law. States are
reluctant to inquire into the internal affairs and processes of other states, and
so a "manifest violation" is required such that it would be "objectively evident
to any State dealing with the matter". A strong presumption exists
internationally that a head of state has acted within his proper authority. It
seems that no treaty has ever actually been invalidated on this provision.
2. Non-compliance with a municipal law a treaty which goes against a
municipal law will be invalid.
3. Invalid Treaties under the Vienna Convention:
A. Provisions of internal law regarding competence to conclude treaties.
a. A State may not invoke the fact that its consent to be bound by a treaty
has been expressed in violation of a provision of its internal law regarding
competence to conclude treaties as invalidating its consent unless that
violation was manifest and concerned a rule of its internal law of fundamental
importance.
b. A violation is manifest if it would be objectively evident to any State
conducting itself in the matter in accordance with normal practice and in
good faith. (Article 46)
B. Specific restrictions on authority to express the consent of a State
If the authority of a representative to express the consent of a State to be
bound by a particular treaty has been made subject to a specific restriction,
his omission to observe that restriction may not be invoked as invalidating
the consent expressed by him unless the restriction was notified to the other
negotiating States prior to his expressing such consent. (Article 47)

C. Error
a. A State may invoke an error in a treaty as invalidating its consent to be
bound by the treaty if the error relates to a fact or situation which was
assumed by that State to exist at the time when the treaty was concluded
and formed an essential basis of its consent to be bound by the treaty.
b. Paragraph 1 shall not apply if the State in question contributed by its own
conduct to the error or if the circumstances were such as to put that State on
notice of a possible error.

c. An error relating only to the wording of the text of a treaty does not affect
its validity; article 79 then applies. (Article 48)
D. Fraud
If a State has been induced to conclude a treaty by the fraudulent conduct of
another negotiating State, the State may invoke the fraud as invalidating its
consent to be bound by the treaty. (Article 49)
E. Corruption of a representative of a State
If the expression of a State's consent to be bound by a treaty has been
procured through the corruption of its representative directly or indirectly by
another negotiating State, the State may invoke such corruption as
invalidating its consent to be bound by the treaty. (Article 50)
F. Coercion of a representative of a State
The expression of a State's consent to be bound by a treaty which has been
procured by the coercion of its representative through acts or threats directed
against him shall be without any legal effect.( Article 51)
G. Coercion of a State by the threat or use of force
A treaty is void if its conclusion has been procured by the threat or use of
force in violation of the principles of international law embodied in the
Charter of the United Nations. (Article 52)
H. Treaties conflicting with a peremptory norm of general international law
(jus cogens)
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present
Convention, a peremptory norm of general international law is a norm
accepted and recognized by the international community of States as a whole
as a norm from which no derogation is permitted and which can be modified
only by a subsequent norm of general international law having the same
character.( Article 53)
How are treaties terminated?
1. Expiration of term
2. Accomplishment of purpose

3. Impossibility of performance
4. Loss of subject matter
5. Desuetude
o

Desistance of parties by express mutual consent or exercise of right of

renunciation when allowed.

6. Extinction of one parties; if treaty is bipartner

7. Novation
8. Occurrence of vital change of circumstance
9. Outbreak of war
10.Voidance of treaty because of:
a. Defect in constitution
b. Violation of its provision by one party
c. Incompatibility with International law
11.Application of the doctrine of the Rebus Sic Stantibus
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)