International Law

on
Treaties

Introduction:
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The purpose of this term paper is to give an over-view to the reader on

how Public International Law being applied in our justice system. Public
International Law has a broad spectrum of coverage and definitely it affects
every person by reason of its application. Thus, one must know on how and
what will be his benefits out of this law. With this point of view, we may know
what should be done, whether we are obliged to observe and/or enforce such
laws within ourselves. The most common query that will come into our mind is
how this law will be applicable in our justice system considering that it was not
created in our country and yet it has a big important which is vital in our day to
day existence. And will this law be favorable on our side? What is the basic
tenet guiding this laws.
The coverage of this term paper will only deal on the definition,
distinctions, functions and application of the International Law on individuals. It
will focus more specifically on treaties and conventions. This term paper will
cover topics which has relevance to the international treaties. The term treaty
is a generic one and it may embrace declarations, covenants, acts, concordats,
conventions, etc.
The methods employed in this research is only limited in coverage and
resources and materials. Few resource reference books and with the advent of
computer age, making access to some aspects of studies which as of great
help in achieving success with this term paper.

Chapter I

Principles of International Law

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International law has been constantly modified in its scope giving way to
constant changes as it would be more applicable on every civilized society.
International law has been traditionally defined as the body of rules and
principles of action which are binding upon the civilized states in their
relationship with one another. The coverage and scope of international law will
not deal only among the states but more importantly to note, that every
individual are grounded by this statute which would suggest that all law is a
regulation of human conduct. George Schwarzenberger states that:
International law is the body of legal rules which apply between states and
such other entities as have been granted international personality.
The three major divisions of international law are the laws of peace, laws
of war and the laws of neutrality. Each of these specific laws has its own
function and effect which is binding among family of nations and individuals.
Every nation has been adapting and giving recognition of the principles of
international law through the doctrine of incorporation as part of their
constitution. Under Article II, Section 2 of our Constitution expressly provided
that The Philippines renounces was 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. This expressed provision in the
constitution would connote our strong affirmation on accepting, observing and
enforcing the internationally acknowledged law. There are several cases on
which the decisions of the Supreme Court would cite and rely based on treaties
and conventions.
Similar observations may be made in line with cases which would
involve conflicts between the constitution of a state and a treaty duly
acknowledged by it with other states. Generally, the constitution of a state
would prevail over the latter but there is a demandable obligation that can be
raised in the international tribunal under the maxim of pacta sunt servanda

which means that Every treaty in force is binding upon the parties to it and
must be performed by them in good faith. It is provided in the Declaration of
the Rights and Duties of States, which is being adopted by the International
Law Commission on June 9, 1949.

Chapter II

Basis of International Law

International law did not emanate from the law making authority of a
state for the regulation and control. It is voluntarily practiced among the
international communities that it does not recognize any political superior
among its members. In view of this, we need to know why international law
has been giving a binding force.
There are several studies which gives several theories. According to
Samuel Pufendorf, the basis of international law is the law of nature. This is a
naturalist school of thought, being described as a higher law and there is a
natural and universal principle of right and wrong, independent of any mutual
intercourse or compact. This theory has been opposed by Richard Zouche, who
advocated the Positivists Theory. Under this school of thought, it is not the law
of subordination but of coordination. The binding force of international law is
through the agreement of sovereign states to be bound by it. Grotius, the
father of international law, gives its theory, that the system of international
law is based on the dictate of right reason as well as the practice of states. In
other words, the voluntary law, the right reason might said to blend with
natural law. Should there be conflict between the two law, the law of nature
should prevail as being the fundamental law, which the authority could not be
contravened by the practice of states.
International law is binding upon the international community, but the
question is, are nations obliged obedience to its precepts? Even though,
international law did not have any demandable force to its effect upon full

observation in the family of nations, there are several sanctions which forced a
nation to truly observe its due course. One of these is the compulsive force of
reciprocal advantage and fear of retaliation. Since a human nature of a human
being to be obedient and respectful, it is also applied in the family of nations in
giving due respect to the international law to project an agreeable public
image in order to maintain the goodwill and favorable regard to the rest of
family of nations. States are able to enforce international law among each
other through international organization and regional grouse such as the
United Nations and the Organization of American States. In case of grievances
of disagreeing states may be presented to and discussed in these bodies the
issues and concern, which adopts the necessary measures to compel
compliance with the international obligations or vindicate the wrong
committed. At present, this authority is usually exercised by the United Nations
through the Security Council and the International Court of Justice. The
international tribunal is composed of brilliant people coming from different
states. The Philippines and in Asia will have its first international court judge,
Sen. Mirriam Defensor Santiago, waiting to be sworn in for the position.

Chapter III

Sources of International law

Under Article 387 of the Statute of the International Court of Justice, the
sources of international law may be generally classified into as primary or
secondary. The primary or direct sources are the treaties and conventions,
customs, and the general principles of law. The secondary or indirect sources
are the decisions of courts and the writings of publicist.
This article provides as follows:
1. The Court, whose function is to decide in accordance with
international law such disputes as
are submitted to it shall apply:

a. International conventions, whether general or particular,

establishing rules expressly recognized by the contesting
state;
b. International custom, as evidence of a general practice
accepted as law;
c. The general principles of law recognized by civilized nations;
d. Subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of
rules of law.
2. This prohibition shall not prejudice the power of the Court to decide a
case ex aequo et bono, if the parties agree thereto.
A treaty has its own application and purpose of which it will serve its
function. Not all treaties are applicable to all nations but it must be
ascertain first. The general rule, a treaty will be considered a direct
source of international law, must be concluded by a sizable number of
states and thus reflect the will or at least the consensus of the family of
nations and it will not necessarily need the approval among the states
forming the international community. From the viewpoint of international
law, a state may be defined as a group of people living together in a
definite territory. And it is now used interchangeably the terms state and
union, not as a distinction but in an identical sense. Even if the originally
agreed only by a few states, the treaty may become binding upon the
whole world if it is intended to lay down the rules for observance by all
and it is subsequently signed states which thereby submit to its
provisions. Few examples of treaties are: the Congress of Vienna of
1815, the Declaration of Paris of 1856, the Geneva Red Cross
Convention of 1864, and United Nations Charter of 1945.
Another direct source is what is known as the custom, which are
customary practices grown up between states and has come to be
accepted as binding by the mere fact of persistent usage over a long

period of time. An example is the practice of granting immunities to

foreign heads of states or diplomats in the territory of the local states
pursuant to what has come to be known as the principle of
exterritoriality. Most of the customary rules of law have been expressly
affirmed and embodied in treaties and conventions, like the Hague
Convention of 1899 and 1907. The significance of which, by virtue of
their force as international customs and their express recognition as
generally accepted principles of international law, bind even those
states which are not signatories to these conventions.
Several rules of international law are rooted in tradition, but not a
few of them have yielded to new principles brought about by the
modern developments in the international relations, among the
members of the united nation. International law remains in a state of
transition as mankind struggles toward the time of harmony and order.
The secondary or indirect source of international law are courts
decisions. Under Article 38, court decisions coming from the
international tribunals like the International Court of Justice and
arbitration bodies and those promulgated only by national courts. Those
two kinds of decisions are acceptable for as they are a correct
application and interpretation of the law of nations. Chief Justice of the
U.S. Supreme Court John Marshall, in the case of Thirty Hogshead of
Sugar v. Boyle, declared that the decisions of the courts of every
country, so far as they founded upon a law common to every country,
will be received, not as authority, but with respect.
The doctrine of stare decisis is not applicable in international law.
The decision of a court in one case will have only persuasive effect in
the decision of a subsequent case. Under Article 59 of the Statute of the
International Court of Justice, The decision of the Court has no binding
force except between the parties and in respect to that particular case.

The other subsidiary source of international law, are the writings

of publicists, which must be of a fair and unbiased representation of
international law and by an acknowledged authority in the field. There
must be accurate proof of excellent credentials which must be pattern
and will be applicable internationally and not be just induce by pride and
prize.

Chapter IV

Treaties

A treaty is defined as a formal agreement, usually but not

necessarily made in writing, which is entered into by states possessing
the treaty-making capacity, for purposes of regulating their relations
under the law of nations. Our Constitution requires the concurrence of
Congress to a treaty. It is specifically provided under Article VII, Section
21 that No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all members of the
Senate.
There are four important functions of treaties. Firstly, it enables
parties to settle finally actual and potential disputes. Secondly, it make
possible for parties to modify the rules of international customary law by
means of optional principles or standards. Thirdly, it may lead to a
transformation of unorganized international society into one which may
be organized. And finally, it provides the humus for the growth of
international customary law.
A treaty to be valid must have the essential requisites: be entered
into by parties having treaty-making capacity; through their authorized
representatives; without the attendance of duress, fraud, mistake, or
other vice of consent; on any lawful subject-matter; and in accordance
with their respective constitutional processes. As a rule, a treaty is

binding only on the contracting parties, including not only the original
signatories but also other states which although not participated in the
negotiation of the agreement, have been allowed to sign it later by the
process known as accession.
One of the fundamental rules of international law is pacta sunt
servanda , which requires the performance of treaty obligations in good
faith. This is the decision ruled by the Supreme Court in the case Taada
v. Angara. But we are not obligated to follow and implement such
treaties which in effect would have an adverse result. This is being
provide in the case of Ichong v. Hernandez, the Retail Trade
Nationalization Law was challenged inter alia that it violated the Treaty
of Amity between the Philippines and China, the United Nations Charter
and the Universal Declaration of Human Rights. The Supreme Court,
after rejecting such assertion, made the following significant remarks:
But even assuming that the law infringes upon the said treaty, the
treaty is always subject to qualification or amendment by a subsequent
law, and the same way never curtail or restrict the scope of the police
power of the State. This is an example of sovereignty of a state and
which the municipal law will prevails over the international law.
The conflicts in treaty interpretation may be resolved only by the
agreement of the parties themselves or by an international body and
not unilaterally by the national courts of the contracting parties.
Decisions of such courts are received with respect but not as authority.
There are several ways that a treaty may be terminated by:
expiration of the term, which may be fixed or subject to a resolutory
condition; accomplishment of the purpose; impossibility of performance;
loss of subject-matter; desistance of the parties; novation; extinction of
one of the parties if the treaty is bipartite; vital change of
circumstances; outbreak of war between the parties; and by voidance of

the treaty because of defects in its conclusion. The state has the option
whether or not such termination of a treaty will based from those
mentioned above.
The usual canons of statutory construction are employed in the
interpretation of treaties. Thus, specific provisions must be read in the
light of the whole instrument and for what purposes a treaty will be
applicable. Words used are to be given their natural meaning unless a
technical sense was intended, and what state it being used, and should
be interpreted in accordance with the usage of which it is supposed to
take effect. Doubts should be resolved against the imposition of
obligations and in favor of the freedom and sovereignty of the
contracting states. In all cases, an interpretation that will lead to an
absurdity is to be avoided and a more rational result must be preferred.

Conclusion
International law have been a part of our justice system since we
expressly provided in our Constitution that we adopts the generally
accepted principles of international law as part of the law of the land. It
is being weigh whether or not an international law will give not
beneficial effects in the application of the laws before we will going to
implement it provided that it will not conflict with our municipal laws.
Our country, Philippines had been a signatory for most of the
international treaties and conventions. We adhere to the U.N. Charter
together with members and non-members of the Organization that as
far as practically necessary that the maintenance of international peace
and security be at all times reigns.
International law are there to guide all the nations, so that peace
and equality among nations must prevail considering that the

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applicability of the laws are based on the seasoned customs and

traditions which being frequently used for the betterment of a nation.
Therefore, we must abide to the international law, be it
individually or as a community and as a nation, so that we will be
building a more harmonious relationships among the family of nations.
International law aims to provide for the orderly management of the
relations of states on the basis of the substantive rules that have been
agreed to observe as member of the international community.

References:
International law, Isagani Cruz
Manual of international law, George Schwarzenberger
United Nations Charter,1945
Statute of International Court of Justice,1945
Philippine Constitution,1987

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Table of Contents
Title

Introduction

Chapter I Principles of International Law

Chapter II Basis of International Law

Chapter IIISources of International Law

56
Chapter IVTreaties

78

Conclusion
9
Reference

10

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