THE VIENNA CONVENTION ON THE LAW OF TREATIES REPORTERS: Jennifer J.

Silvano Dodie Lagarto Fely Palmeniano Johnny Paciente Coverage:

I. II. III. HISTORY/SOURCES CONTENTS AND EFFECTS SCOPE Treaty Definition Treaty-making process Forms of Conclusion/Consent to be bound By signature Exchange of instruments constituting a treaty Ratification Acceptance Approval/accession Other means if so agreed Treaty in the Philippines IV. Reservation Interpretation and Observance Invalidation, Termination, and Suspension

ISSUES

I.

History /Sources

1949 International Law Commission (ILC) of the United Nations, began the drafting.

During the twenty years of preparation, several draft versions of the convention and commentaries were prepared by special rapporteurs of the ILC. 1966 ILC adopted 75 draft articles which formed the basis for the final work 1968 and 1969 Over two sessions, Vienna Conference completed the Convention, which was adopted on 22 May 1969 and opened for signature the following day. January 27, 1980 entered into force November 2010 State Parties: 111 states already ratified those that have not ratified it yet may still recognize it as binding upon them in as much as it is a restatement of customary law US and many other States have not yet finished their ratification procedures

 Philippines ratified II. CONTENTS AND EFFECTS codifies several bedrocks of contemporary international law. defines a treaty as "an international agreement concluded between states in written form and governed by international law," as well as affirming that "every state possesses the capacity to conclude treaties." Most nations, whether they are party to it or not, recognize it as the preeminent "Treaty of Treaties" recognized as the authoritative guide vis--vis the formation and effects of treaties

III.

SCOPE applies only to treaties concluded between states, so it does not cover agreements between states and international organizations or between international organizations themselves applies to treaties between states within organization an intergovernmental

Agreements between states and international organizations, or between international organizations themselves- governed by the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations

Treaty (Article 2 of the 1980 Vienna Convention on the Law of Treaties) Defined: as an international agreement concluded between States in written form and by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation Requisites: a. Must be between states b. In written form c. Governed by International law

Treaty-making process:

1. Negotiation- discussion and exchange of notes regarding the proposed terms and conditions of the treaty Usually done through diplomatic channels or diplomatic conferences 2. Adoption of the Text- formal act of signifying that form and content of the treaty have been agreed upon. 3. Authentication of the Text Following procedure as may be provided in the text;or By signature; or Initiating by the representatives of those states 4. Conclusion- final act that makes the treaty binding on the states

Forms of Conclusion(Consent to be bound ) 1. By signature of states representative a. Treaty provides that signature shall have effect b. It is established that the negotiating States agreed that signature should have that effect; or c. The intention of the state that effect to the signature appears from the full powers of its representative or was expressed during negotiation (Art. 12 , Vienna Convention) 2. Exchange of instruments constituting a treaty a. Instruments provide that their exchange shall have that effect b. It is otherwise established that those States were agreed that exchange of instruments should have that effect (Art 13, Vienna Convention 3. Ratification formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative a. Treaty provides for such consent to be expressed by ratification;

b. It is otherwise established that the negotiating States were agreed that ratification should be required c. Representative of the State signed the treaty subject to ratification d. Intention of the state to sign the treaty subject to ratification as expressed in the full powers of its representative or was expressed during negotiation 4. Acceptance 5. Approval/accession- State expresses its consent to be bound by already an existing treaty.

a. the treaty provides that such consent may be

expressed by that State by means of accession;

b. it is otherwise established that the negotiating

States were agreed that such consent may be expressed by that State by means of accession; or c. all the parties have subsequently agreed that such consent may be expressed by that State by means of accession.

6. Other means if so agreed

Philippines o 1987 Constitution does not contain an express provision that gives the President the power to make treaties.

However, the power to negotiate and enter into treaties is already included in the conduct of foreign affairs subject only to the power of the Senate to concur treaties (Art. VII, Sec. 21, 1987 Constitution)

The power to ratify a treaty is vested in the President while the Senate, by 2/3 votes of all its members, has to give its consent or concurrence.

Reservation- unilateral statement, made by a state, when signing, ratifying, accepting, approving, or acceding, to a treaty, whereby it purports to exclude, modify, the legal effect of certain provisions of the treaty in their application to that state .

Interpretation and Observance Observance Pacta sunt servanda - Every treaty in force is binding upon the parties to it and must be performed by them in good faith (Art. 26 VCLT)

Interpretation- 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 (Art. 31 VCLT) Invalidation, Termination, and Suspension 1. Grounds for Invalidation: a. Error b. Fraud c. Corruption of a representative of a State d. Coercion of a representative of a State e. Coercion of a State by the threat or use of force f. Conflict with peremptory norms g. Conflict with the provisions of internal law 2. Termination: a. By agreement of the parties, if the treaty so provides b. If the goal of the treaty is already realized c. Termination due to material breach d. Supervening impossibility of performance e. Fundamental change in the circumstances (rebus sic stantibus)

f. Later inconsistent treaties between parties g. War between the contracting parties IV. ISSUES

1. The Vienna Formula this treaty is open for signature to states willing to accept its provisions

a. If treaty is restricted to members to UN and Participants of Statute of ICJ there would be no complexity/ambiguity b. However, difficulty occurred as to possible participation of entities which appeared to be states could not be admitted to UN nor become Parties to Statute of ICJ

2. Provisions on Reservation a. Across-the-board-reservation -(reserving providing conclusive answer) state without

e.g. reservation which make the implementation of treaty obligations subject to their compatibility with domestic or some religious law

b. Multilateral treaty as soon as two or more states are involved problem arise since one state maybe disposed to accept the reservation while another may object to it and when multilateral treaties are in question, problem become decidedly complex

3. Is the United States a party to the Vienna Convention on the Law of Treaties? No. The United States signed the treaty on April 24, 1970. The U.S. Senate has not given its advice and consent to the treaty. The United States considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law on the law of treaties.

4. Enforceability of VCLT by individual citizen of a state-party Individual cannot enforce unless represented by the state or a specific treaty so provides that an individual may enforce the same.