Chapter 3 : Law of treaties by Bernas

Various names of treaties:

a. Conventionsb. Pactsc. Covenantsd. Charterse. `protocolsf. Concordatsg. Modus vevindi

Definition of treaties:

An international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in 2 or more related instruments and whatever its particular designation

Even ORAL argument can be binding , however, ONLY WRITTEN agreement that are new, come under the provisions of the Vienna conventions

Characteristic to makie it binding:

1) Commitment was very specific2) There was a clear intent to be bound `

Functions of treaties: ( they differ from the book of bernas)

a. Sources of international lawb. Charter of international organizationc. Used to transfer territory, regulate commercial relations, settle disputes , protect human rights ,

guarantee investments

Different kinds of treaties:

Multilateral treaties Open to mall states of the world, create the norms which are the basis of the general rule.

Treaties that create collaborative mechanism

Operate through the organs of:a. Universal scopeb. regional

Bilateral treaties In the nature of contractual agreements which create shared expectrations such asd trade agreement or various forms.

The making of treaties:

1. Negotiations- foreign ministries, diplomatic conference2. Power to negotiate3. Authentication of text- signing of the doucument so that the states will know the contents and avoid

misunderstanding4. Consent to be bound:

Sifnaturea. Exchange of instrumentsb. Ratificationc. Acceptanced. Appriovale. Accessionf. Other means if so agreed

5. Accession to the treaty –states which did not participate in the initial negotiations may express their consent to be bound

6. Reservations- unilateral statement however phased or named, made by state m when signing , ratifying, accepting, approving or acceding to a treaty, wherby it purports toi exclude or modify the legal effects of certain provisions of the treaty in ther application to the state

7. Entry into force of treaties- date agreed or once consent given8. Application of treaties:

Pacta sunt servant- evry treaty in force is binding upon the parties and must be performed by them in good faith

A party may not be invoke international law as justification for its failure to perform a treaty It is binding upon each party in respect of its entire territory unless a different intention appears

in the treaty or otherwise established9. Interpretations of treaties-

a. Object approach- interpretations according to the ordinary meaning of the wordb. Teleological approach- interpretations according to the telos or purpose of the treatyc. Subjective approach- honors special meaning given by the parties

Invalidity of treaties

1. Error- relates to a fact or situation which was assumed by the states to exist at the time when the treaty was concluded and formed

2. Fraudd- state has been induced to conclude a treaty3. Corruption of representative of a state4. Coercion of representative of a state5. Coercion of a state by the threat of using force6. Violation of jus cogens- treaty is void, at the time of its conclusion, it conflicts with a preemptory norm of

general international law

Amendment and modification of a treaty

Amendment- formal revision done with the participation , at least in its initial stage, by all the parties to the treaty

Modification- involves only some parties]\

Termination of treaties -terminated or suspended according to the terms of the treaty or with the consent of the parties

1. Material breach a. Repudiation of the treaty not sanctioned by the present conventionb. Violation of a provision essential to the accomplishment of the object or purpose of the treaty

2. Supervining impossibity of performance Results from the permanent disappearance or destruction of an object indispensable for the

execution of the treaty3. Rebus sic stantibus

Resulted in a radical transformation of the extent of the obligation imposed by it, may, under certain conditions, afford the party affected on the ground for invoking the termination or suspension of a treaty

Procedure for the termination of treaties

1. Notify other parties of ground and measure proposed2. If no objection, carry out the measure proposed3. If there is objection, follow art. 33 4. Article 33

Interpretation of treaties authenticated in two or more languages1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. 2. A version of the treaty in a language other thanone of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree. 3. The terms of the treaty are presumed to have thesame meaning in each authentic text. 4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted

Authority to terminante:

Beloings to the one who has the authority tpo enter into a treaty In the Philippines, authority to conclude treaties is shared between the senate and the president

Succession to treaties

CLEAN STATE RULE: newly independent state is not bound to maintain in force or to become party to any treaty by reason only of the fact that at the date of the successions states, the treaty was in force in respect if the territory to which the succession of the states relates.