Krystine Mary Caburnay’s Notes

LAW OF TREATIES  As of the moment, there are still 32

ratifications
Public International Law  Definition of Treaties
BA POLSCI 3
o Article 2 (1), VCLT:
 “Treaty” means an international
agreement concluded between States
 Treaties
in written form and governed by
o Conventions, pacts, covenants, charters,
international law, whether embodied in
protocols, concordat, modus vivendi,
a single instrument or in two or more
agreements, protocols, framework
related instruments and whatever its
agreement
particular designation
o Generic term: International Agreements
o Based on the definition, ONLY WRITTEN
 Law of Treaties
AGREEMENTS are covered by the VCLT
o Found in 1969 Vienna Convention on the
 No particular form is required
Law of Treaties (VCLT)  Separate meetings concerning
 Adopted on May 2, 1969 international agreements (Qatar
 Entered into force on January 27, 1980 vs. Bahrain)
 Governs treaties between states o A treaty is a source of obligation
 Not retroactive in effect but it does
 Under the principle of pacta sunt
contain customary international law
servanda
precepts antedating 1969
 Other sources: Unilateral declaration
o Convention on the Law of Treaties Between
by a State
States and International Organizations or  Functions of Treaties
Between International Organizations o Treaties:
 Adopted on March 26, 1986
 Are sources of international law;
 Has not yet entered into force for lack of
 Serve as charter of international
requisite ratification
organizations;
 Should enter into force 30 days after the
 Used to transfer territory
35th ratification
 Regulate commercial relations;
 Settle disputes

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 Protects human rights;  Consent to be bound
 Guarantee investments  Ratification
o Classification:  Accession
 Multilateral Treaties:  Reservations
1. Codification Treaties  Entry into Force
 Customs, principles, and even
judicial decisions being reduced o Negotiation
into written law  Negotiated by State Representatives
2. Law Making Treaties  Smaller treaties are negotiated
 Treaties not based on customs through foreign ministries
or principles  Larger treaties are negotiated in
3. Treaties having both character diplomatic conferences
 Collaborative Mechanism o Authentication of the Text
1. Treaties with universal scope  Negotiations conclude with the signing
2. Treaties with regional scope of the document
 Bilateral Treaties  The signatures serve as authentication
of the document
o Functions of treaties o Consent to be Bound
 While treaties are generally binding  Once the document has been signed,
upon the parties, the number of there are stages to follow which
contracting parties and the generality culminate in making the document
of the acceptance of the specific rules binding
created by the treaty can have the  The most important step is consent
effect of creating a universal law in to be bound
much the same way that general  There are various ways by which
practice suffices to create customary consent to be bound is expressed
law o Reservation
o Treaty-making processes  Is an act by which a State modifies
 Negotiation, Drafting, Adoption the legal effect of a treaty
 Authentication of the Text

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 In this sense, treaties are different  Coercion of a representative of a State
from statutes, which must (Article 51)
necessarily apply to all  Coercion of a State by the threat or
o Entry into Force use of force (Article 52)
 Treaties enter into force on the date  Conflict with a peremptory norm
agreed upon by parties (Article 53)
 Where no date is indicated, the o Amendment and Modification of Treaties
treaty enters into force once consent  Amendment:
has been given  a formal revision done with the
 Multilateral treaties generally contain participation, at least in its initial
provision which says how many stage, by all the parties to the
states have to accept the treaty treaty
before it can come into force  Modification:
o Interpretation of Treaties  Involves only some of the
 Article 31 combines various party
approaches to treaty interpretation: o Termination of Treaties
1. Objective approach – according to  May be terminated or suspended
ordinary meaning of the words; according to the terms of the treaty or
2. Teleological approach – according with the consent of the parties
to the purpose of the treaty  A treaty with a definite period may
3. Subjective approach – according to also expire
special meaning given by the  It may also end when the purpose for
parties the treaty has already been achieve
 Grounds for Termination:
o Invalidity of treaties  Material Breach
 Grounds for invalidation of treaties:  Article 61 Supervening
 Error (Article 48) impossibility of performance
 Fraud (Article 49)  Article 62 Fundamental change of
 Corruption of a representative of a circumstances (Rebus sic
State (Article 50) stantibus)

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 Article 63 Severance of diplomatic
or consular relations

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 Krystine Mary Caburnay’s Notes
INTERNATIONAL LAW
 Municipal Law in International Law
AND MUNICIPAL LAW  Accepts dualism in postulate has 2 legal
Public International Law systems
BA POLSCI 3 | Prof. Allan Quiñanola | SEM 1 2024  Prevailing Provisions:
 Article 27 of the Vienna
Convention on the Law of
 Dualism Vs. Monism Treaties:
Difference on: Municipal International  “A party may not invoke
Law Law the provisions of its
Dualist: Source: A product of Treaties and internal law as
* local custom custom grown
justification for its failure
Internatio or of among states
nal Law legislation to perform a treaty”
and Regulation Regulate Regulate  Article 13 of the Declaration of
Municipal s: relations relations Rights and Duties of States:
Law are between between states
different individual  “Every state has the duty
from each persons to carry out in good faith
other. under the its obligations arising from
state
treaties and other sources
Substance Law of Law between
: sovereign sovereign states of international law, and it
over may not invoke provisions
individuals in its constitution or its
Monistic: 2 Monist Theory:
* laws as an excuse for
Internatio 1. Municipal Law subsumes and is failure to perform this
nal law superior to international law duty”
and 2. Supported by Kelsen, international law
 These follow the dualist tradition
domestic is superior to domestic law.
law and blocks domestic law from
belong to entry into the international
only one arena.
system of
Law

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 Thus, a state which has violated land when concurred in by the
a provision of international law Senate in accordance to Article
cannot justify itself by recourse VII, Section 21
to its domestic law.  Conflict between International Law and
 International Law in Domestic Law Domestic Law: International Law Rule
 Doctrine of Transformation:  The incorporation or reception of
 Based on strict dualist international law, whether
approach customary or conventional,
 “For international law to comes into conflict with
become part of domestic domestic law, whether
law, it must be expressly constitutional or statutory.
and specifically  Which law should prevail?
transformed into domestic  It depends on whether the
law through the case goes to domestic
appropriate constitutional court or to an international
machinery such as an act tribunal.
of Congress or  It is an established principle
Parliament.” that, before an international
 Applies only to treaties! tribunal, a state may not plead
 Doctrine of Incorporation its own law as an excuse for
 Applies to Customary failure to comply with
International Law and international law.
Generally Accepted  Conflict between International Law and
Principles of International Domestic Law: Municipal Law Prevails
Law  When conflict comes before a
 “They become part of the domestic court. Domestic courts
law of the land” are bound to apply the local law.
 What does the Philippine law follow?  Should a conflict arise between
 In the case of treaties, they an international agreement and
become part of the law of the Constitution, the treaty would

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not be valid and operative as certain kinds of action on the
domestic law. international plane
 Article VIII, Section 5, 2(a)  Those who have international
explicitly recognizes the power personality
of the Supreme Court to declare  Actors
a treaty unconstitutional.  in the international legal system and
 This does not mean, are distinct from objects of international
however, that a treaty law.
that has been declared  Objects
unconstitutional loses its  of international law are those who
character as international indirectly have rights under or are
law. beneficiaries of international law
 Under the “dualist” theory, the through subjects of international law
Constitution accept, the  States
unconstitutionality of a treaty is  are predominant actors
purely a domestic matter.  States: Commencement of their Existence
 Montevideo Convention of 1933 on
Rights and Duties of States
 The state as a person of
SUBJECTS OF INTERNATIONAL international law should possess
the following qualifications:
LAW: STATES a) A permanent population
Public International Law b) A defined territory
BA POLSCI 3 | Prof. Allan Quiñanola | SEM 1 2024 c) Government
d) The capacity to enter into
relations with other States
 Subjects of International Law  People or Population
 Are entities endowed with rights and  People simply mean a community
obligations in the international order of persons sufficient in number
and possessing the capacity to take and capable of maintaining the

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 Krystine Mary Caburnay’s Notes
permanent existence of the which are imposed upon the
community and held together by people forming that society by
a common bond of law. those who possess the power or
 Question: Does it have legal authority of prescribing them.
consequences when they  QUESTION: For purposes of
possess diverse racial and international law what
cultural or economic interests? government has legal
 No legal consequences personality?
 Territory  National Government
 Another element of a state  Sovereignty
 An entity may satisfy the  Independence from outside control.
territorial requirement for  Capacity to enter into relations with
statehood even if its boundaries other States.
have not been finally settled, if  Internal and External
one or more of its boundaries are Sovereignty
disputed, or if some of its territory  Internal Sovereignty
is claimed by another state. An o Refers to the authority
entity does not necessarily cease of a state to govern its
to be a state even if all its own affairs, maintain
territory has been occupied by a order, and enforce
laws within its
foreign power or if it has
territory.
otherwise lost control of its  External Sovereignty
territory temporarily. o Refers to the
 Government recognition of a
 that institution or aggregate of state's independence
institutions by which an and authority by other
independent society makes and states, allowing it to
carries out those rules of action engage in
which are necessary to enable international relations.
men to live in a social state, or  Self-determination
 Sovereignty as an element of a state

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 Is related to but not identical with the  Consequences of Recognition or Non-
broader concept of the right of self- Recognition
determination.  A government, once recognized, gains
 People freely determine their political increased prestige and stability
status, and freely pursue their economic,  Doors of funding agencies are
social and cultural development. opened
 Recognition of States  Loans are facilitated
 Access to foreign courts and
DECLARATORY CONSTITUTIVE immunity from suit are gained
THEORY THEORY
 Military and financial assistance
Recognition is merely Recognition
also come within reach.
“declaratory” of the “constitutes” a state,
existence of the state  Succession of States
Its being a state It is what makes a  Views on Succession
depends upon its state a state and  The new state succeeds to no
possession of the confers legal rights or obligations of the
required elements personality on the predecessor state but begins with a
and not upon entity. tabula rasa
recognition.  Successor state assumes all
States may decide to obligations and enjoys all the rights
recognize an entity as of the predecessor.
a state even if it does  Issues on Succession of States
not have all the 1. Succession to territory
elements of a state  When a state succeeds another
state with particular territory, the
 Recognition of Government capacities, rights and duties of the
 Act of acknowledging the capacity of an predecessor state with respect to
entity to exercise powers of government that territory terminate and are
of a state assumed by the successor state
 If a change in government in an 2. Succession to state property
existing state comes about through  Subject to agreement between
ordinary constitutional procedure, predecessor and successor states
recognition by others comes as a 3. Succession to contracts
matter of course.

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 Subject to agreement between international agreements
states concerned to which the predecessor
4. Succession to treaties state was party, unless,
 Moving Treaty Rule/ Moving expressly or by
Boundaries Rule implication, it accepts
 When part of the territory such agreements and the
of a state becomes other party or parties
territory of another state, thereto agree or
the international acquiesce.
agreements of the  Uti possidetis rule
predecessor state cease  Pre-existing boundary
to have effect in respect and other territorial
of the territory and the agreements continue to
international agreements be binding
of the successor state notwithstanding.
come into force there.  Fundamental Rights of States
 Relief from treaty  Independence
obligation is rebus sic  The capacity of a state to provide for
stantibus its own well-being and development
 When a state is absorbed by free from the domination of other
another state, the international states, providing it does not impair or
agreements of the absorbed state violate their legitimate rights.
are terminated and the  Equality
international agreements of the  Does not mean equality in political or
absorbing state become applicable economic power.
to the territory of the absorbed  It means equality of legal rights
state. Third states may appeal to irrespective of the size or power of the
rebus sic stantibus. state.
 Clean State Theory  Peaceful Co-existence
 When a part of a state  Mutual respect for each other’s
becomes a new state, the territorial integrity and sovereignty,
new state does not mutual non-aggression, non-
succeed to the

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interference in each other’s affairs and - Recognized under Lateran Treaty; it has
the principle of equality no permanent population
 Some incomplete subjects
1. Protectorates
- Dependent states which have control
over their internal affairs but those
whose external affairs are controlled by
another state; referred to as
a. Autonomous states
b. Vassal states
c. Semi-sovereign
d. Dependent states
2. Federal States
- A union of previously autonomous
entities
- The central organ will have personality in
international law but the extent of
international personality of the
component entities can be a problem
3. Mandated and Trust Territories
- Territories placed by the League of
Nations under one or other of the
victorious allies of WW1
- After WW2, this was replaced by
trusteeship system
4. Taiwan
- A non-state territory which de jure is part
of China
5. The Sovereign order of Malta
- The Italian court of Cassation in 1935
recognized its international personality
6. The Holy See and Vatican City

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