Definition of a Treaty

A treaty is an international agreement concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related instruments and
whatever its particular designation. (Article 2, Vienna Convention on the Law of Treaties.)

Under the VCLT, the term “treaty” includes all agreements between states, regardless of how they are
called. Thus, for purposes of international law, other names used to designate international agreements
besides “treaties”, are

a. Convention
b. Pact
c. Protocol
d. Agreement
e. Arrangement
f. Accord
g. Final Act
h. General act
i. Exchanges of notes,

They are all treaties. Under the E.O. 459, a treaty is defined as international agreements entered into by
the Philippines which require legislative concurrence after executive ratification.

Requisites of a Valid Treaty

1. Treaty making capacity, which is possessed by all States as an attribute of sovereignty. International
organizations also possess treaty- making capacity, although limited by the organization’s purpose;

2. Competence of the representative/organ making the treaty, which may be the head of state, which
generally has full powers, or other persons called plenipotentiaries, which must produce an instrument
showing authority to sign a treaty binding their government;

3. Consent freely given by the parties. If consent was given erroneously, or was induced by fraud, the
treaty shall be voidable;

4. Object and subject matter, which must be lawful;

5. Ratification in accordance with the constitutional process of the parties concerned.

Effect of an Unwritten Treaty

a. Convention rules on Matters governed by international law independently of convention shall apply;

b. Convention rules apply to the Relations of states as between themselves under international
agreement with other subjects as parties; and

c. Has Legal force

Under international law, there is no difference between treaties and executive agreements in terms of
their binding effects on the contracting states concerned, as long as the negotiating functionaries have
remained within their powers. (Bayan Muna v. Romulo, G.R. No. 159618, 2011).

Bayan Muna v. Romulo, G.R. No. 159618 (February 1, 2011)

Facts:

- Bayan Muna, represented by Reps. Satur Ocampo, Crispin Beltran, and Liza Maza, filed a petition
against Alberto Romulo and Blas Ople regarding the Non-Surrender Agreement between the Philippines
and the United States.

- The Philippines signed the Rome Statute on December 28, 2000, which establishes the International
Criminal Court (ICC) but has not ratified it.

- On May 9, 2003, the US proposed a Non-Surrender Agreement, which was accepted by the Philippine
Department of Foreign Affairs (DFA) on May 13, 2003. The Agreement protects persons of both nations
from extradition to international tribunals unless consented to by the respective governments.

Issues:

1. Whether the Executive Branch (the President and DFA Secretary) abused its discretion in concluding
the Non-Surrender Agreement despite the Philippines signing the Rome Statute.

2. Whether the Agreement is void for being contrary to the principles of international law.
3. Whether the Agreement is valid without Senate concurrence.

Ruling:

- The Supreme Court held that the petition was without merit.

Key Points:

1. Locus Standi: The Court recognized the standing of Bayan Muna’s representatives as they raised issues
of transcendental importance, allowing them to challenge the Agreement despite not demonstrating
direct injury.

2. Validity of the Agreement: The Court found that the Non-Surrender Agreement was valid as an
executive agreement. It determined that the Executive Branch had the authority to enter into the
Agreement without needing Senate approval.

3. Compatibility with the Rome Statute: The Court ruled that the Agreement did not contravene the
obligations of the Philippines under the Rome Statute, noting that the Agreement was a separate and
valid legal commitment.

Conclusion:

The Supreme Court upheld the validity of the Non-Surrender Agreement between the Philippines and
the United States, affirming the Executive Branch’s authority to enter into such agreements without
Senate concurrence and dismissing the petition for lack of merit. The ruling emphasizes the importance
of the Executive's role in international agreements while navigating the complexities of sovereignty and
international law.

There are no hard and fast rules on the propriety of entering, on a given subject, into a treaty or an
executive agreement as an instrument of international relations. The primary consideration in the choice
of the form of agreement is the parties’ intent and desire to craft an international agreement in the form
they so wish to further their respective interests. Verily, the matter of form takes a back seat when it
comes to effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as
the parties in either international agreement each labor under the pacta sunt servanda principle. ###
Case Digest: Bayan Muna v. Romulo, G.R. No. 159618 (February 1, 2011)

Power to Negotiate and Senate Concurrence

In the realm of treaty-making, the President has the sole authority to negotiate with other States. It
follows that Congress, while possessing vast legislative powers, may not interfere in the field of treaty
negotiations. While Article VII, Section 21 provides for Senate concurrence, such pertains only to the
validity of the treaty under consideration, not to the conduct of negotiations attendant to its conclusion.
Moreover, it is not even Congress as a whole that has been given the authority to concur as a means of
checking the treaty-making power of the President, but only the Senate (AKBAYAN v. Aquino, G.R. No.
170516, July 16, 2008).
The signing of a treaty is composed of two separate and distinct processes to which each requires the
exclusive prerogative and act of the executive and legislative:

a. One is the signing of the treaty which is handled by the executive department during the negotiation
stage.

b. The other is the ratification stage where the president ratifies a treaty but with the concurrence of 2/3
of the Senate.

It is within the authority of the President to refuse to submit a treaty to the Senate or, having refused its
consent for ratification, refuse to ratify it. The Senate’s role is limited only to giving or withholding its
concurrence to the ratification. The Senate cannot, by mandamus, compel the executive to transmit a
treaty for concurrence (Pimentel v. Executive Secretary, G.R. No. 158088, July 6, 2005).

X X X

G.R. No. 158088, July 6, 2005

Parties:

Petitioners: Senator Aquilino Pimentel, Jr., Rep. Etta Rosales, various human rights organizations and
individuals.

Respondents: Office of the Executive Secretary (Hon. Alberto Romulo), Department of Foreign Affairs
(Hon. Blas Ople).

Facts:

The petitioners filed for a writ of mandamus to compel the Office of the Executive Secretary and the
Department of Foreign Affairs to transmit the signed Rome Statute of the International Criminal Court to
the Senate for ratification. The Rome Statute, which addresses serious international crimes, was signed
by the Philippines on December 28, 2000, but not ratified. Petitioners argued that under both domestic
and international law, the Executive has a duty to submit the treaty for Senate concurrence.

Issue:

Whether the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to
transmit the signed Rome Statute to the Senate for ratification.

Ruling:

The Supreme Court dismissed the petition, ruling that the executive branch has discretion in treaty
ratification. While the Senate has the authority to concur with treaties, the President has the sole
authority to ratify. The mere signing of the treaty does not equate to ratification, which is a distinct and
necessary step. Thus, the Court determined that it lacked jurisdiction to compel the Executive to act in
this capacity.

Legal Principles:

1. Standing: Senator Pimentel had legal standing as a member of the Senate. Other petitioners lacked
standing as they could not demonstrate direct injury from the non-transmittal of the treaty.
2. Treaty-Making Authority: The President has exclusive authority to negotiate and ratify treaties, with
the Senate's role limited to giving consent after the President's ratification.

3. Separation of Powers: The decision underscores the checks and balances within government, asserting
that the Court cannot interfere in the Executive's discretion regarding international agreements.

Conclusion:

The petition for mandamus was dismissed, affirming the President's discretion in treaty ratification and
emphasizing the separation of powers within the Philippine government.

X X X

EDCA remained within the parameters set by the two treaties (the MDT and the VFA). Mere adjustments
in detail to implement the MDT and the VFA can be in the form of executive agreements. The “activities”
referred to in the MDT are meant to be specified and identified in further agreements. EDCA is an
example of such agreement. The President’s choice to enter into EDCA by way of executive agreement is
in view of the vast constitutional powers and prerogatives granted to him in the field of foreign affairs.
(Saguisag v. Executive Secretary, G.R. Nos. 212426/212444, July 26,2016)

Full Powers

The authority granted by a Head of State or Government to a delegation head enabling the latter to bind
his country to the commitments made in the negotiations to be pursued. (E.O No. 459) In addition to the
constitutional requirement, ratification is necessary under international law when:

1. The treaty provides for consent to be expressed by means of ratification;

2. It is otherwise established that the negotiating states agreed that ratification should be required;

3. The representative of the state has signed the treaty subject to ratification [VCLT, art. 14(1)], that is,
when the intent was to make it subject to ratification.

Treaty-making Process

NEGOTIATION - The state representative discusses the terms and provisions of the treaty.

ADOPTION - When the form and content have been settled by the negotiating states, the treaty is
adopted. This is only preparatory to

1. the authentication of the text of the treaty and

2. the signing thereof. (VCLT, art. 9)

ADOPTION - A definitive text of the treaty is established as the correct and authentic one;
EXPRESSION OF CONSENT. The state parties express their consent to be bound by the terms of the
treaty. The modes of such expression are provided in the VCLT.

REGISTRATION - The treaty is then registered with the Secretariat of the United 5 Nations. Otherwise,
the treaty may not be invoked before any UN organ, (UN Charter, art. 102(2)) including the ICJ in the
Philippines, the negotiation of treaties and their ratification are executive functions, subject to
concurrence of the Senate.

Consent to be bound by the terms of a treaty may be expressed through:

SIGNATURE - The consent to be bound by a treaty is expressed by the signature of its representative
when:

a. The treaty provides that signature shall have that effect;

b. It is otherwise established that the negotiating states agreed that signature should have that effect; or
c. The intention of the state to give that effect to the signature appears from the full powers of its
representative or was expressed during negotiation (VCLT, Article 12 (1));

Practice of Alternat: Arrangement under which each negotiator is allowed to sign first on the copy of the
treaty which he will bring home to his own country, the purpose being to preserve the formal
appearance of equality among the contracting states and to avoid delicate questions of precedence
among the signatories.

Effect of Signature with respect Ratification - Signature does not create an obligation to ratify.

Obligation not to defeat the object and purpose of a treaty before its Entry into Force - A state is
obliged to refrain from acts which would defeat the object and purpose of a treaty when:

a. It has signed the treaty or has exchanged instruments constituting the treaty subject to
ratification, acceptance or approval, until it shall have made its intention clear not to become a
party to the treaty; or
b. it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty
and provided that such entry into force is not unduly delayed. (VCLT, Art.18)

EXCHANGE OF INSTRUMENTS - The consent of States to be bound by a treaty constituted by instruments

exchanged between them is expressed by that exchange when:

a. The instruments provide that the exchange will have such effect
b. It is established that those states were agreed that the exchange of instruments shall have that
effect (VCLT, Article 13)
RATIFICATION, ACCEPTANCE or APPROVAL - The consent of the State to be bound by a treaty is
expressed by ratification when:

a. The treaty provides for such consent to be expressed through ratification

b. It is established that the negotiating state were agreed that ratification should be required

c. The representative of the State has signed the treaty subject to ratification; or

d. The intention of the State to sign the treaty subject to ratification appears from the full powers of its
representative or was expressed during negotiation. (VCLT, Article14)

ACCESSION - Consent is expressed by accession when:

a. The treaty provides that such consent may be expressed by that State by means of accession.

b. It is otherwise established that the negotiation 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. (VCLT, Article 15)

Kinds of Accession

1. Accession proper — non-signatory becomes a party to all the provisions of the treaty

2. Adhesion or Adherence – non-signatory becomes a party in some of the provisions of the treaty

Interpretation of Treaties

a. Actuality – based on actual text

b. Natural and Ordinary Meaning

c. Integration – interpreted as a whole

d. Effectiveness – based on object and purpose

e. Subsequent Practice

f. Contemporaneity - interpreted in light of linguistic usage existing at the time the treaty was concluded

Travaux Preparatoires - The ‘preparatory work; of a treaty that contains its legislative history. It is used
as a supplementary means of interpretation of a treaty. (VCLT, Art. 32)
Amendment or modification of treaty

General rule: Consent of all the parties is required. Exception: If the treaty itself so allows, two states
may modify a provision only insofar as their relationship inter se.

Reservations

General rule: A reservation is a unilateral statement made by a state upon entering a treaty and operates
to exclude or modify the legal effect of certain provision/s of the treaty in their application to the
reserving state. [VCLT, art. 19]

Exceptions: A reservation shall not operate to modify or exclude the provisions of a treaty:

1. Where the treaty expressly prohibits reservations in general;

2. Where the treaty expressly prohibits that specific reservation being made; or

3. Where the reservation is incompatible with the object and purpose of the treaty. (Reservation to the
Genocide Conventions Advisory Opinion, ICJ, 1951)

Invalid treaties

1. If the treaty violates a jus cogens norm of international law;

2. If the conclusion of a treaty is procured by threat or use of force;

3. Error of fact, provided that such fact formed an essential basis of a state’s consent to be bound;

4. If the representative of a state was corrupted to consent by another negotiating state;

5. If consent was obtained through fraudulent conduct of another negotiating state;

6. If the representative consented in violation of specific restrictions on authority provided the

restriction was notified to the other negotiating states prior to the representative expressing such
consent;

7. If consent was given in violation of provisions of internal law regarding competence to conclude
treaties that is manifest and of fundamental importance. (VCLT)

Grounds for termination of a treaty

1. Expiration of the term, or withdrawal of a party in accordance with the treaty;

2. Extinction of a party to the treaty, when the treaty rights and obligations would not devolve upon the
successor- state;

3. Mutual agreement of parties;

4. Denunciation or desistance by a party;

5. Supervening impossibility of performance;

6. Conclusion of a subsequent inconsistent treaty;

7. Loss of subject matter

8. Material breach or violation of treaty

9. Fundamental change in circumstance (similar to the customary norm of rebus sic stantibus) such that
the foundation upon which the consent of a state to be bound initially rested has disappeared. (VCLT, art.
62).

The requisites are:

a. The change is so substantial that the foundation of the treaty has altogether disappeared;

b. The change was unforeseen or unforeseeable at the time of the perfection of the treaty;

c. The change was not caused by the party invoking the doctrine

d. The doctrine was invoked within a reasonable time;

e. The duration of the treaty is indefinite;

f. The doctrine cannot operate retroactively (it must not adversely affect provisions which have
already been complied with prior to the vital change);

10. Outbreak of war between the parties, unless the treaty relates to the conduct of war;

11. Severance of diplomatic relations, if such relationship is indispensable for the treaty’s application;

12. Jus cogens application, or the emergence of a new peremptory norm of general international law
which renders void any existing, conflicting treaty.

In Pangilinan v Cayetano, the Court adopted the following guidelines for evaluating cases concerning the
president’s withdrawal from international agreements:

a. President enjoys some leeway in withdrawing from agreements which he or she determines to be
contrary to the Constitution or statutes.

b. President cannot unilaterally withdraw from agreements which were entered into pursuant to
congressional imprimatur

c. President cannot unilaterally withdraw from international agreements where the Senate concurred
and expressly declared that any withdrawal must also be made with its concurrence.

The withdrawal made by Duterte from ICC should not have been allowed because unilateral withdrawals
are not allowed if the agreement was concurred by the senate. However, the court ruled that the issue
on the withdrawal’s validity is already moot and academic because ICC already accepted it. (Pangilinan v
Cayetano. G.R. No. 238875, 2021).

Pacta Sunt Servanda - Every treaty in force is binding upon the parties to it and must be performed by
them in good faith. (Vienna Convention on the Law of Treaties, art. 26).
A state can avoid performance if the treaty collides with its Constitution, but it cannot escape liability
that it may incur as a result of such non- performance.

From the perspective of public international law, a treaty is favored over municipal law pursuant to the
principle of pacta sunt servanda. A party to a treaty is not allowed to invoke the provisions of its internal
law as justification for its failure to perform a treaty. Nevertheless, as far as the Court is concerned, a
treaty is always subject to qualification or amendment by a subsequent law, or that, it is subject to the
police power of the State (Lim v. Executive Secretary, G.R. No. 151445, 2002).

X X X

Lim and Ersando vs. Gloria Macapagal-Arroyo

Parties:

- Petitioners: Arthur D. Lim and Paulino R. Ersando

- Respondents: Hon. Executive Secretary Gloria Macapagal-Arroyo and Hon. Angelo Reyes, Secretary of
National Defense

- Petitioners-Intervenors: Sanlakas and Partido ng Manggagawa

Facts:

In January 2002, U.S. troops began arriving in Mindanao to participate in the "Balikatan 02-1" military
exercises alongside Philippine forces. These exercises were framed as a response to the international
anti-terrorism campaign initiated after the September 11, 2001 attacks in the U.S. The exercises were
based on the Mutual Defense Treaty (MDT) between the Philippines and the United States, established
in 1951, and further defined by the Visiting Forces Agreement (VFA) of 1999.

Petitioners Lim and Ersando filed for certiorari and prohibition, arguing that the deployment of U.S.
troops was unconstitutional. They contended that the joint military exercises violated Philippine
sovereignty and the constitutional requirement for legislative approval for foreign troop presence.
SANLAKAS and Partido ng Manggagawa joined as intervenors, claiming that their members would be
directly affected by the exercises due to their residence in Zamboanga and Sulu.

Issues:

1. Whether the deployment of U.S. troops under the "Balikatan 02-1" exercises is constitutional.

2. Whether the petitioners and intervenors have the standing to challenge the actions of the
government regarding the military exercises.
Ruling:

The Supreme Court addressed the constitutionality of the military exercises and the standing of the
petitioners. The Court highlighted the significance of legislative oversight in matters involving foreign
troops on Philippine soil. It affirmed that the presence of foreign military personnel requires legislative
concurrence, especially under the terms set forth in the Constitution regarding the involvement of
foreign armed forces.

Regarding standing, the Court noted that while Lim and Ersando had legitimate concerns as citizens and
taxpayers, the intervenors provided a compelling argument for standing based on their direct impact
from the military exercises.

Legal Principles:

1. Sovereignty and Legislative Oversight: The deployment of foreign troops within Philippine territory
must adhere to constitutional provisions that emphasize national sovereignty and legislative
participation.

2. Standing: The requirement for legal standing can be relaxed in cases of significant public interest,
particularly when the actions in question directly affect specific communities or groups.

Conclusion:

The Court recognized the legal and constitutional implications of the joint military exercises, affirming
the necessity of legislative involvement in approving such actions. The petitioners were granted standing
based on their roles as concerned citizens and taxpayers, while the intervenors were acknowledged for
their direct stake in the issue. The ruling underscored the importance of checks and balances in matters
of national defense and foreign relations.

X X X

Rebus Sic Stantibus

General Rule: A fundamental change of circumstances is not a ground for a treaty to be suspended or
terminated.

Exceptions:

1. The circumstance is the essential basis of consent.

2. The obligation is transformed radically that it becomes burdensome or unreasonable.

Exceptions to the Exceptions:

1. If the treaty establishes a boundary;

2. If the fundamental change is the result of a breach by the party invoking it either of an obligation
under the treaty or of any other international obligation owed to any other party to the treaty. (VCLT, art.
62) Note: Rebus Sic Stantibus is an exception to the rule of Pacta Sunct Servanda

Grounds for Invalidity of a Treaty: DJ-FEC

a. Duress Jus cogens

b. Fraud

c. Error of fact

d. Corruption

(VCTL Art. 48 – 53)

Clean Slate Rule

General Rule: When one State ceases to exist and is succeeded by another on the same territory, the
newly independent State is not bound to maintain in force, or become a party to, any treaty made by its
predecessor although, at the date of succession of States, the treaty was in force with respect to the
territory to which the succession of State relates. (Vienna Convention on the Succession of States in
Respect of Treaties, art. 16)

Exceptions:

1. When the new State agrees to be bound by the treaties made by its predecessor.

2. Treaties affecting boundary regime (uti possidetis juris).

3. Customary international law