VIENNA CONVENTION ON THE LAW OF TREATIES Article VII, Section 21

(VCLT) No treaty or international agreement shall be valid and

Article 27.
INTERNAL LAW AND OBSERVANCE OF TREATIES
A party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty. This rule is
without prejudice to article 46.
Article 46.
PROVISIONS OF INTERNAL LAW REGARDING
COMPETENCE TO CONCLUDE TREATIES
1. 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.
effective unless concurred in by at least two-thirds of all the
Members of the Senate.
Article XVIII, Section 25
After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a
treaty duly concurred in by the Senate and, when the Congress
so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State.
Executive Order No. 459, s. 1997, Providing for the
Guidelines in the Negotiation of International Agreements
and its Ratification

2. A violation is manifest if it would be objectively evident to See pdf file.

any State con ducting itself in the matter in accordance with
normal practice and in good faith.

1987 PHILIPPINE CONSTITUTION

Article II, Section 2

The Philippines renounces war as an instrument of national
policy, 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.
Mario Mendez, THE LEGAL EFFECTS OF TREATIES IN
DOMESTIC LEGAL ORDERS AND THE ROLE OF
DOMESTIC COURTS
A. The Dictates of International Law
Core precept of the law of treaties –Pacta Sunt Servanda
Art 26 of VCLT - “Every treaty in force is binding upon the
parties to it and must be performed by them in good faith.”
Basic precept of international law - States are free to determine
how they meet their international obligations.
 General Rule: Treaties do not impose specific requirements
as to how the substantive obligations that they lay out
should be realized in the domestic legal orders of the
Contracting Parties.
 International law leaves it to the domestic legal order to
determine how it gives effect to its treaty obligations in the
domestic legal arena.
 There is no general obligation under general international
treaty law, customary international law, or general principles
of international law requiring States to open their courts for
invocation of treaty norms by individuals.
 HOWEVER, a State cannot invoke its internal law as
justification for a failure to perform.
 Exception to the freedom of the States to determine how
they meet international obligations – Some treaties stipulate
some requirements as to how treaties, or specific provisions
are to be given effect in the domestic legal order.
o Example:
 Specific provisions in Geneva Conventions
calling for implementing legislation.
 The UN Convention against Torture (1984)
contains a provision requiring each party to
‘take effective legislative, administrative,
judicial or other measures to prevent acts of
torture in any territory under its jurisdiction’
as well as a provision requiring the
criminalization of certain acts.
A treaty can require that it may be directly applicable in
domestic courts. Whether a particular treaty could indeed be
relied by individuals in a domestic court has been addressed by
the Permanent Court of International Justice in the Danzig
Advisory Opinion.
 The Court stated “According to a well-established
principle of international law, an international
agreement cannot create direct rights and obligations
for private individuals. However, it cannot be disputed
that the very object of an international agreement,
according to the intention of the contracting parties,
may be the adoption by the parties of some definite
rules creating individual rights and obligations and
enforceable by the national courts.
 the Advisory Opinion has been considered as authority
for the proposition that States can conclude treaties
containing undertakings as to their domestic application
and that they will be under an international obligation to
ensure that the treaty is enforceable in the domestic
courts. This can be so even absent an express
undertaking to that effect, providing it can be deduced
from the intention of the parties as evinced by the
content of the agreement.
In 1976, the European Court of Human Rights (ECHR) held
that there is no obligation to incorporate the ECHR into
domestic law and that Article 13* does not go as far as to
guarantee a remedy allowing a contracting State’s laws to be
challenged before a national authority on the ground of being
contrary to the ECHR.
*Article 13 - ‘Everyone whose rights and freedoms as set out in
this Convention are violated shall have an effective remedy
before a national authority
Two most well-known UN committees tasked in monitoring
State compliance with ICCPR and ICESCR.
 Human Rights Committee (HRC)
 Committee on Economic, Social and Cultural Rights
(CESCR)
In 2004, the HRC affirmed that the Covenant does not require
that it be directly applicable in the courts, by incorporation of
the Covenant into national law.
European Court of Justice (ECJ) - a judicial body that adopts a
fundamentally different approach to the obligations that flow
from the treaty that it is charged to interprets
Principle of Direct Effect
 the Court looking to the spirit, general scheme, and the
wording of the provisions to determine whether an
individual could lay claim to individual rights which the
national courts must protect.
 Criteria: the relevant provision must be clear,
unconditional, and not require any further implementing
measures. (clarity, precision, unconditionality)
 Narrow Direct Effect – capacity of a provision to confer
individual rights enforceable before national courts
 Broad Direct Effect – capacity of a provision to be
invoked before a national court.
Principle of Supremacy
 domestic courts should give international law primacy
in the domestic legal arena and that this requirement
flowed from the very nature of Community law.
Invocabilité d’eclusion – setting aside of domestic law that
conflicts with Community law based on the supremacy
principle without the direct effect criteria needing to be
surmounted
Invocabilité de substitution - application of the Community
rule instead of the conflicting national rule and requiring
satisfaction of the direct effect criteria.
B. Domestic Legal Orders and the Legal Effects of Treaties
Automatic Treaty Incorporation
 operates to ensure that treaties, or certain defined
categories of treaty, become automatically incorporated
into the domestic legal order.
 ‘incorporation’– treaty is considered to become a
binding part of domestic law.
 ‘automatic’ – is intended to capture the fact that this
aforementioned status is usually acquired upon the
entry into force of the treaty for the relevant State.
The automatic status can be subject to the requisite
domestic constitutional procedures for expressing consent
to be bound to a treaty having been satisfied, and/or that the
treaty has been published, or alternatively certain legal
effects of a treaty in the judicial arena can only be produced
where these requirements have been satisfied.
The relevant domestic constitutional procedures can include a
constitutionally enshrined, or judicially mandated, requirement
that parliamentary consent be given to at least certain treaties,
and this consent may or may not need to be given in the form
of a legislative measure.
Hierarchical statues of automatically incorporated treaties
 The Constitution itself can seek to accord treaties a
certain hierarchical standing by providing, for example,
that they are superior to (or have precedence over)
statutes, or that they are the supreme law of the land or
nation or union, or some similarly worded variant,90 or
with less explicit phrasing such as that they are ‘to be
faith- fully observed’.
 Where the Constitution itself is silent as to hierarchy,
the issue is left to the courts.
For a treaty to be employed by a court in a capacity other than
as an interpretative aid, there will usually be a threshold test
that needs to be satisfied. A treaty or treaty provision may be
directly effective, domestically applicable, directly applicable,
or self-executing.
Doctrine of Consistent Interpretation or Principle of “Indirect
Effect” - treaty’s capacity to have a potentially crucial legal
impact in the domestic legal arena
Types of Direct Legal Effects:
 Direct use of a treaty provision by a domestic court to
confer rights on an individual
 Direct use of a treaty provision—even where the
provision itself may not confer individual rights—
such   that   it   is   applied   in   lieu   of   inconsistent
domestic rules  the individual litigant and to the domestic effectiveness
 Direct   use   of   a   treaty   provision   to   review   and
potentially set aside incompatible domestic rules
Criteria used in determining whether a treaty or treaty
provision is directly effective not
 Subjective Nature - intent of the parties
o intention that is being looked for is phrased
diversely not only across courts in different
countries but even within the same country.
o Courts are variously said to be looking for the
intention that the treaty ‘confer subjective rights
or impose obligations on individuals’,or that it
creates ‘private rights’ or ‘judicially enforceable
private rights’ or ‘private rights of action’ or a
‘cause of action’.
 Objective Nature - concerned with requiring that the
treaty or treaty provisions are clear and precise and do
not require further implementing measures.
o this is part of a general test as to whether a
treaty or specific provision is even capable of
judicial application: there are treaties which
have more of a programmatic nature and need
fleshing out via legislative or administrative
measures.
o What is clear and precise and does not require
further implementing measures will not only
vary from court to court but also, not least given
different legal cultures, across legal orders.
Two important key points for this section:
o the opaqueness of this domestic judicial determination
o the fact that in legal orders where treaties are
automatically incorporated it is this determination
which will be of critical importance to the fortunes of
of treaty norms.

Non-automatic Treaty Incorporation
o an approach to treaties whereby they do not
automatically become part of the domestic legal order
upon entry into force for the State concerned.
o they are viewed as only becoming part of the domestic
legal order where the legislature so provides, and
although on occasion the legislature does so provide,
this takes place in principle in an ad hoc fashion.
Where a treaty is made part of domestic law, it retains the
hierarchical status of the incorporating legislation.
This non-automatic approach to treaty incorporation can have
its basis in the common law; it can effectively be enshrined in a
constitutional document; it can be considered to be
presupposed by or be implicit in the Constitution even if not
expressly stated; it can be enshrined in a parliamentary Act.
C. Revisiting the Theory and the Role of Domestic Courts
Dualism
o international law and domestic law are distinct legal
orders that operate in discrete spheres and regulate
different relations: international law regulates the
behavior of, and relations between, sovereign States
whilst domestic law regulates the relations of
individuals both inter se and in their relation- ship to the
State.
o Being distinct legal orders, it followed that the
conditions for the validity and duration of international
rules depend exclusively on international law and those
for domestic law depend exclusively on domestic law.
o The dualist school is thus able to accept the supremacy
of international law, at the international level, while
maintaining the supremacy of domestic law, at the
domestic level.
o international law cannot, by definition, operate directly
within the domestic legal order.
Monism
o premised on the unity of the international and domestic
legal orders; they are part of one and the same legal
order.
o this model posits the supremacy of international law.
That is to say, that international law sits at the apex of
this hierarchy.
o Kelsen - international law and domestic law have their
ultimate reason of validity in the same basic norm
which is ‘the fundamental rule according to which the
various norms of the order are to be created’
o Kelsen - the basic norm of international law—that
‘States ought to behave as they have customarily
behaved’—is the ultimate reason of the validity of the
national legal order.
o Lauterpacht - the individual as ‘the ultimate unit of all
law and the supremacy of international law being
asserted based on its capacity to protect the individual.
o international law could indeed be applied directly as
international law in the domestic legal order.
o contrary domestic law is valid until domestically
annulled for whilst it will remain illegal from an
international law perspective, international law itself
does not provide for any annulment procedure.
Doctrine of Transformation (Dualism)
o the treaty was transformed into national law such that it
applied as national law and not international law

Doctrine of Adoption or Incorporation (Monism)
o treaty will retain its character as international law
Monist or Dualist?
o Whether the domestic legal order functions such that
treaties become part of the domestic legal order once
they enter into force for the State concerned
o Yes – Monist
o No – Dualist
Monist Approach - treaties must have a hierarchically superior
status to ordinary law
Dualist Approach - the domestic legal order will determine the
legal effects that international law has in the domestic legal
order.
o there exists more than one legal order and that any
juridical impact of international law in the domestic
legal arena is not the product of international law but
rather of national law.
What is crucial in practical terms to the legal effect of treaties
in domestic legal orders, is not merely the constitutional
provisions proclaiming treaties as part of domestic law or
comparable domestic judicial pronouncements; but,  rather,
how courts actually deal with such treaties when they are
raised in domestic litigation.  International law continues to have remarkably little to say on
Pluralistic Approach - this perspective contests a formally
hierarchical relationship between legal orders and emphasizes a
hetararchical relationship between diverse legal orders with
competing claims to authority.
o they promote the insight that there is interaction among
different legal orders and they also have far-reaching
consequences for our understanding of constitutional
law
o ‘any given constitution does not set up a normative
universum anymore, but is, rather, an element in a
normative pluriversum.’
Other things being equal, the greater the willingness on the part
of the domestic judiciary to apply and enforce treaty norms,
including setting aside contrary domestic norms where
necessary, the greater will be compliance with such norms.
Role of domestic courts
o promote compliance with treaty norms
o police compliance with treaty obligations
Full Domestic Judicial Enforcement Model
o Domestic courts are viewed as providing the judicial
and coercive enforcement procedures that are found
wanting at the inter- national level with judges being
encouraged to use all means to ensure compliance with
international law.
o Starts from the premise that there is not enough
enforcement of treaty law and that domestic courts and
domestic litigants should be co-opted into securing
maximum treaty enforcement.
D. Conclusions
the issue of the domestic legal effects of treaties, with the basic
rule remaining in place that States are free to determine how
they meet their treaty obligations.