10. Power to Concur in Treaties or International Agreements

Diplomatic power

• In General
• To Contract or Guarantee Foreign Loans
• Entry into Treaties or International Agreements; Withdrawal and Termination

1987 CONST., art. VII, secs. 16 and 21

> SECTION 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproved by the Commission on Appointments or until the next adjournment of the Congress. SECTION 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

Principle of Transformation of International Law (PHIL. CONST., art. VII, § 21)

No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of ALL the Members of the Senate.

Treaty v. Executive Agreement

An “exchange of notes” is a record of a routine agreement that has many similarities with a private law contract. The agreement consists of the exchange of two documents, each of the parties being in possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. An exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without the need of a vote by the Senate or Congress (Abaya vs. Ebdane, G.R. No. 167919, Feb. 14, 2007).

The Exchange of Notes between Secretary Romulo and the US Ambassador embodying a “No Surrender Agreement” regarding citizens arrested under the Rome Treaty is valid. An exchange of Notes is equivalent to an executive agreement and it is a valid form of international agreement. The categorization of agreements in Eastern Sea Trading, is not cast in stone. Neither a hard and fast rule on whether Senate concurrence is needed for executive agreements. (Bayan Muna v. Secretary Romulo, G.R. No. 159618, Feb. 1, 2011).

Treaty-Making Power

Treaty: As defined by the Vienna Convention on the Law of Treaties, “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” [Bayan v. Executive Secretary, G.R. No. 138570 (2000)].

Note: It is the President who ratifies a treaty (not the Senate), the Senate merely concurs [Bayan v. Executive Secretary, supra]. Thus, the President cannot be compelled to submit a treaty to the Senate for concurrence; he has the sole power to submit it to the Senate and/or to ratify it [Bayan Muna v. Romulo, G.R. No. 159618 (2011)].

Visiting Forces Agreement (VFA)

The VFA, which is the instrument agreed upon to provide for the joint RP-US military exercises, is simply an implementing agreement to the main RP-US Military Defense Treaty. The VFA is therefore valid for it is a presence “allowed under” the RP-US Mutual Defense Treaty. The VFA received Philippine Senate concurrence. Although it was not submitted to the US Senate for advice and consent, US recognition of it as a binding international agreement substantially complied with Art. XVIII, Sec. 25 of the Philippine Constitution [Nicolas v. Romulo, G.R. No. 175888 (2009)].

Usual Steps in the Treaty-making Process

• Negotiation – Conducted by the parties to reach an agreement on its terms;
• Signature – The signing of the text of the instrument agreed upon by the parties;
• Ratification – The act by which the provisions of a treaty are formally confirmed and approved by the State; (Vienna Convention on the Law of the Treaties).

NOTE: In our jurisdiction, the power to ratify is vested in the President. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification. (Sec. 21, Art. VII, 1987 Constitution)

Constitutional Provisions on Concurrence of the Senate on Treaties

There are two constitutional provisions that require the concurrence of the Senate on treaties or international agreements:

NOTE: The involvement of the Senate in the treaty- making process manifests the adherence of the Philippine system of government to the principle of checks and balances. This indispensable participation of the legislative branch by way of concurrence provides the “check” to the ratification of the treaty by the executive branch. (BAYAN vs. Zamora, G.R. No. 138570, 10 Oct. 2000)

• Accession – A State can accede to a treaty only if invited or permitted to do so by the contracting parties. Such invitation or permission is usually given in the accession clause of the treaty itself;
• Registration with the United Nations; and
• Exchange of instruments of ratification. (Vienna Convention on the Law of the Treaties)

Composition

• Senate President as ex-officio chairman (shall not vote except in case of a tie)
• 12 Senators
• 12 Members of the HOR

Ratification within the Powers of the President

Q: A petition for mandamus was filed in the SC to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit (even without the signature of the President) the signed copy of the Rome Statute of the International Criminal Court (ICC) to the Senate of the Philippines for its concurrence or ratification – in accordance with Sec. 21, Art. VII of the 1987 Constitution.

Petitioners contend that ratification of a treaty, under both domestic law and international law, is a function of the Senate. Under treaty law and customary international law, the Philippines has a ministerial duty to ratify the Rome Statute. Respondents on the other hand, argued that the executive department has no duty to transmit the Rome Statute to the Senate for concurrence. Decide.

A: The power to ratify treaties does not belong to the Senate.

Under the Constitution the power to ratify is vested in the President subject to the concurrence of the Senate. The President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify a treaty. The signature of the representative does not signify final consent, it is ratification that binds the state to the provisions of the treaty and renders it effective.

The role of the Senate is limited only to giving or withholding its consent, concurrence to the ratification. It is within the President to refuse to submit a treaty to the Senate or having secured its consent for its ratification, refuse to ratify it. Such decision is within the competence of the President alone, which cannot be encroached by this Court via writ of mandamus. (Pimentel v. Executive Secretary, G.R. No. 158088, 06 July 2005)

Treaty vs. Executive Agreement (2015 BAR)

Treaties and executive agreements

Subject matter. Treaties address basic political issues, changes in national policy, and agreements of a permanent character. (Saguisag, et al. v. Executive Secretary, et al., G.R. No. 212426, 12 Jan. 2016)

Executive agreements cover temporary arrangements, the implementation of treaties and statutes, matters with transitory effect, and details carrying out established national policies and traditions. (Statement of the Philippines, The Rule of Law at the National and International Level on United Nations General Assembly, 05–06 October 2016)

Permanence. Treaties are permanent international agreements; executive agreements are merely temporary arrangements.

Senate concurrence. A treaty requires the concurrence of two-thirds of the Senate. An executive agreement does not require Senate concurrence.

Question: The Enhanced Defense Cooperation Agreement (EDCA) permits U.S. military forces to access and conduct activities in specified “Agreed Locations” in the Philippines. The Executive did not transmit it to the Senate, considering concurrence unnecessary. In June 2014, the DFA and the U.S. Embassy exchanged diplomatic notes confirming that both countries had completed their internal requirements for its entry into force. Was the Executive correct?

Answer: Yes. EDCA did not need Senate concurrence because it is an executive agreement, not a treaty. Under the Constitution, the President may enter into an executive agreement concerning foreign military bases, troops, or facilities when the agreement does not itself authorize their entry and merely implements an existing law or treaty.

EDCA makes adjustments in detail to the implementation of the Mutual Defense Treaty and the Visiting Forces Agreement. Both are existing treaties between the Philippines and the United States that received Philippine Senate concurrence and thus met the requirements of Art. XVIII, Sec. 25 of the Constitution. EDCA therefore did not have to be transmitted to the Senate. (Saguisag v. Executive Secretary, G.R. No. 212426, 12 Jan. 2016)