Treaties and JPEPA

A treaty is a compact made between two or more independent nations with the view of the public welfare (p. 1502 Black’s Law Dictionary). Treaties between Nations fall under the rubric of international transactions. Many international disputes were caused by questions concerning the validity and interpretation of international agreements. Wars were waged due to misunderstanding of the terms of treaties or treaties set aside to give way to armed conflicts. Nazi war criminals were indicted and convicted at Nuremberg because when they promoted the war they flagrantly breached existing treaties. The making and entering into treaties is a function and attribute of a fully sovereign Nation. Less endowed countries such as Mandates and Trust Territories, Colonies, Dependencies do not have this capacity to enter into treaties.

Vienna Conventions of the Law of Treaties

The Vienna Convention on the Law of Treaties was done at Vienna on May 23, 1969. It has entered into force on January 27, 1980. The instrument contains 85 Articles and divided into 8 parts. A whereas clause acknowledges the ever increasing importance of treaties as a source of international law and as a means of developing peaceful cooperation among Nations.

This Convention was followed by four other Conventions namely: the Vienna Convention on the representation of States in their relations with international organization of a universal character, March 14, 1975; the Vienna Convention on succession of States in respect of treaties, August 23, 1978; the Vienna Convention on succession of States in respect of State property, archives and debts, April 8, 1983; and the Vienna Convention on the Law of Treaties between States and international organizations or between international organizations, March 21, 1986.

Reservations

One of the important provisions in the law of treaties deals with Reservations which means “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State” (Article 2, I (d) Vienna Convention).

Specifically, a State when ratifying a treaty may formulate a reservation unless the reservation is prohibited by the treaty, the treaty provides for only specified reservations, the reservation is incompatible with the object and purpose of the treaty.

It is interesting to take note that the International Law Commission (ILC), the body established under the UN Charter for the progressive development and codification of International Law have come out with its Guides to Practice on Treaties what is known as Conditional Interpretative Declaration meaning a unilateral statement formulated by a State when ratifying or acceding to a treaty subjecting her consent to be bound by the treaty to specific interpretation of the treaty or of certain provisions thereof.

This Conditional Interpretative Declaration is indeed worthy of study when a treaty is being considered by the appropriate body given certain provisions contained in the treaty which impact or have an effect on the State relevant laws and Constitution.

Derogation not Reservation in Human Rights Instruments

Of interests likewise is that in human rights covenants, there is no reservation to exempt a State ratifying party from her obligations or to authorize said party to modify the terms of the Covenants.

In the Covenant on Civil and Political Rights, only in time of emergency which threatens the life of the Nation and the existence of which is officially proclaimed may a State party, take measures derogating from her obligation under the  Covenant to the extent strictly required by the exigencies of the situation. Yet despite this, on record, many State parties have entered their  reservations in Human Rights instruments. Accordingly, this issue on reservations  in Human Rights instruments was referred by the UN Secretary General to the International Court of Justice (ICJ) for advisory opinion. The matter has not been decided or resolved and accordingly the advice given was merely to allow the reservations to stand without ruling on their legal effects in relation to Human Rights documents.

The same issue arose relative to the adoption of the  Convention on the prevention and punishment of the crime of Genocide. There is nothing in the said Convention that deals with reservations. With this lacunae, the UN Secretary General was requested by the General Assembly to conform with the earlier pronouncement of the ICJ to the effect that a State which entered a reservation and objected by one or more State parties to the Convention, not all, can stand and be regarded a party to the Convention. This is known as the flexible system for future Conventions.

JPEPA

Pursuant to Section 21 of Article VII of the  Constitution, which provides 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, the bilateral treaty between Japan and the Philippines known as Japan-Philippines Economic Partnership Agreement (JPEPA) is now before the Senate for ratification. Arguments for or against ratification have been ventilated in many fora. Those supporting ratification argue that JPEPA will liberalize and enlarge trade and investments between Japan and the Philippines and will restore the Philippines as a competitive investment destination. Fears and concerns however, have been expressed more particularly about toxic waste and the effects on the environment and the possible breach or infringement of certain constitutional provisions. On a similar vein, I recall when the World Trade Agreement (WTO) was ratified by the Philippine Senate, former Senator Wigberto Tañada, vigorously opposed it but he was a lone dissenter. He pointed to a provision in the State policies embodied in the Constitution (Art. II Section 19) in that “the State shall develop a self-reliant and independent National Economy effectively controlled by Filipinos.” Accordingly, ratifying the WTO will violate this State policy. Despite his defeat in the Senate, he filed a case with the Supreme Court (Tañada et al vs. Angara et al, G.R. No. 118295) questioning the Senate ratification. However,  the Supreme Court in a lengthy decision promulgated in May 2, 1987 upheld the Senate ratification.

Since independence there have been a number of treaties or Conventions that passed through the prism of the Philippine Government or Senate for ratification. But one recalls the Philippine Government’s ratification of the International Covenant on Civil and Political rights. During martial law there were strong moves for the then Government to ratify this Convention including its Optional Protocol allowing complaints to a Human Rights Committee established under the Covenant. Said Covenant had entered into force on March 23, 1976 but the Government refused to heed the clamor for ratification stating that ratification may constitute an infringement of sovereignty. The Law Association for Asia and the Pacific (LAWASIA), Philippine branch, was the prime mover for ratification. As then President of this regional Organization (with 24 countries involved), I wrote a letter to the Minister of Defense urging ratification but received the same reply (said reply was even published in the Metropolitan papers). Only when people power took place in 1986 that ratification was done by the new Government of President Cory Aquino. This was announced by newly installed Vice-President Salvador Laurel.

Interpretation of Treaties

The guide to the interpretation of treaties is to determine the intention of the parties to the treaty as shown in the text of the treaty. This is the consistent ruling of the International Court of Justice supporting the textual approach and likewise adopted in substance in the pertinent provisions of the Vienna Conventions.

Termination and Suspension of Treaties

The governing general principle of international law is that a treaty agreed upon by the parties is binding upon them and must be enforced in good faith. There is always a presumption as to the validity and continuance in force of a treaty and that presumption is based upon the principle of “pacta sunt servanda” underscoring the binding force of treaties and compelling the parties thereto to perform their obligations in good faith.

There are many causes for suspending a valid treaty and chief of which is in time of war. Hostilities may even lead to the termination of treaty due to fundamental change in the circumstances relating to the State parties. In any case, provisions in bilateral or multilateral treaties specify the causes for suspending or terminating a treaty and in the absence of such provisions, the same can be inferred from the terms and language of the treaty, again the textual approach. But according to the Vienna Convention there is a presumption that the treaty cannot be the subject of denunciation or withdrawal.

Summation

For all intents and purposes, the Senate as the recognized deliberative body to ratify a treaty is studying carefully and meticulously the friendship treaty with Japan or JPEPA. It is up for that body to consider and listen to all observations and comments in relation to the proposed treaty. It may also exercise or invoke reservations should the same be allowed without defeating the object and purpose of the treaty observing what is provided for under the terms of the Vienna Convention on the Law of Treaties. Also, for whatever it may be worth or applicable, the conditional interpretative declaration mentioned above wherein a State subjects its consent to be bound to specific interpretations of the treaty maybe worthwhile looking into.

(Writer is a former Solicitor General, Philippine envoy to Canada and a member Jurist of the UN International Law Commission)