c. Treaties and International Agreements

Essential Characteristics of Treaties

• It becomes binding on the parties to it by virtue of their consent; and
• While treaties will, in most cases, be written instruments concluded between States, the term applies equally to unwritten agreements and to agreements between States and international organizations and between international organizations. (Kaczorowska, 2010)

Power to enter into foreign relations includes:

• The power to appoint ambassadors, other public ministers, and consuls
• The power to receive ambassadors and other public ministers accredited to the Philippines
• The power to contract and guarantee foreign loans on behalf of the Republic
• The power to deport aliens – this power is vested in the President by virtue of his office, subject only to restrictions as may be provided by legislation as regards grounds for deportation. In the absence of any legislative restriction to authority, the President may exercise this power
• The power to negotiate treaties and other international agreements. However, such treaty or international agreement shall be transmitted to the Senate, with the following options:
• Approve it by 2/3 majority vote
• Disapprove it outright
• Approve it conditionally, with suggested amendments. If the treaty is renegotiated, the resulting text must obtain the concurrence of at least two-thirds of all the Members of the Senate before it is valid and effective as a treaty in the Philippines (1987 Constitution, Art. VII, Sec. 21).

Note: While a treaty is re-negotiated, there is yet no treaty

Updated: Executive agreements are distinct from treaties and are not subject to a blanket requirement of Senate treaty concurrence (Saguisag v. Executive Secretary Paquito N. Ochoa, G.R. No. 212426, 26 July 2016).

Two Kinds of a Treaty

• Law-making treaties (normative treaties); and
• Treaty contracts (Kaczorowska, 2010)

EXECUTIVE AGREEMENTS

Executive agreements are concluded:

• to adjust the details of a treaty, e.g., EDCA as to VFA;
• pursuant to or upon confirmation by an act of the Legislature; or
• in the exercise of the President's independent powers under the Constitution.

The President may enter into an executive agreement on foreign military bases, troops or facilities only if the executive agreement is not the instrument that allows the presence of foreign military bases, troops or facilities; or merely aims to implement an existing law or treaty. (Saguisag v. Exec. Sec., G.R. No. 212426, Jan. 12, 2016)

Although municipal law makes a distinction between international agreements and executive agreements, with the former requiring Senate approval and the latter not needing the same, under international law, there is no such distinction.

The President cannot, by executive agreement, undertake an obligation that indirectly circumvents a legal prohibition.

The President alone without the concurrence of the Senate abrogated a treaty. Assume that the other country party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. Treaty termination is not categorically beyond judicial review. Courts may resolve a properly presented constitutional challenge, including a claim of grave abuse of discretion, subject to justiciability and procedural requirements (1987 Constitution, Art. VIII, Sec. 1; Pangilinan v. Cayetano, G.R. No. 238875, Mar. 16, 2021). Owner check: the proposed dismissal and reliance on Gonzales v. Hechanova, G.R. No. L-21897, Oct. 22, 1963, do not establish a jurisdictional bar to review of treaty termination.

Correlation of Reciprocity and the Principle of Auto-Limitation

When the Philippines enters into treaties, necessarily, these international agreements may contain limitations on Philippine sovereignty. The consideration in this partial surrender of sovereignty is the reciprocal commitment of other contracting States in granting the same privilege and immunities to the Philippines. (Tañada v. Angara, G.R. No. 118295, 02 May 1997)

NOTE: For example, this kind of reciprocity in relation to the principle of auto-limitation characterizes the Philippine commitments under WTO-GATT. (Tañada v. Angara, G.R. No. 118295, 02 May 1997)

Treaty Contracts

Resemble contracts in that they are concluded to perform contractual rather than normative functions. It usually concerns the regulation of a narrow area of practice between two States (e.g. trade agreements). Such treaties may lead to the formation of general international law through the operation of the principles governing the development of customary rules in the following ways:

• A series of treaties each of which lay down similar rules may produce a rule of customary international law to the same effect.
• A rule contained in a treaty originally concluded between a limited number of parties may subsequently be accepted or imitated as a general rule.
• treaty may have evidential value as to the existence of a rule which has crystallized into law by an independent process of development.

Doctrine of Unequal Treaties

A treaty is void if its conclusion was procured by the threat or use of force in violation of international-law principles. Coercion of a State’s representative also makes the expression of consent without legal effect; unequal bargaining power alone does not void a treaty. (Nachura, 2014)

Negotiations for Treaties and Executive Agreements

Information regarding negotiations for treaties and executive agreements prior to conclusion of the agreement may be protected by executive privilege only when a specific, applicable basis is established; it is not automatically privileged. (Senate v. Ermita, G.R. No. 169777, April 20, 2006)

Executive Agreements

• Entered into by the President
• May be entered into without the concurrence of the Senate.
• Distinguished from treaties — International agreements involving political issues or changes in national policy and those involving international agreements of permanent character usually take the form of treaties. But the international agreements involving adjustments in detail carrying out well-established national policies and traditions and those involving a more or less temporary character usually take the form of executive agreements [Commissioner of Customs v. Eastern Sea Trading, G.R. No. L-14279 (1961)].

However, from the point of view of international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned as long as the negotiating functionaries have remained within their powers [USAFFE Veterans Assn. v. Treasurer, G.R. No. L-10500 (1959)].

Note: An executive agreement that does not require the concurrence of the Senate for its ratification may not be used to amend a treaty that, under the Constitution, is the product of the ratifying acts of the Executive and the Senate [Bayan Muna v. Romulo, supra].

Exclusions

• Those concluded between states and other subjects of IL;
• Agreements not in writing; and,
• Those which are governed by the national law system chosen by the parties.

Two (2) Classes of Executive Agreements

• Agreements made purely as executive acts affecting external relations and independent of or without legislative authorization, which may be termed as presidential agreements; and
• Agreements entered into in pursuance of acts of Congress, or congressional-executive agreements.

Although the President may, under the American constitutional system, enter into executive agreements without previous legislative authority, he may not, by executive agreement, enter into a transaction which is prohibited by statutes enacted prior thereto. He may not defeat legislative enactments that have acquired the status of law by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws [Gonzales v. Hechanova, G.R. No. L-21897 (1963)].

Traditional Methods of Expressing Consent to a Treaty

• Signature – The legal effects of signature are as follows:
• The signing of a treaty may represent simply an authentication of its text. Where signature is subject to ratification, acceptance or approval, signature does not establish consent to be bound; (Kaczorowska, 2010) NOTE: The act of signing a treaty creates an obligation of good faith on the part of the signatory: to refrain from acts calculated to frustrate the objects of the treaty and to submit the treaty to the appropriate constitutional machinery for approval. Signature does not, however, create an obligation to ratify.
• In the case of a treaty which is only to become binding upon ratification, acceptance or approval, that treaty, unless declaratory of customary law, will not be enforceable against a party until one of those steps is taken; and
• Where a treaty is not subject to ratification, acceptance or approval, but a State’s signature will signify consent to be bound. The consent of a State to be bound by a treaty is expressed by the signature of its representatives when:
• The treaty provides that signature shall have that effect;
• It is otherwise established that the negotiating states were agreed that signature should have that effect; or
• The intention of the State to give effect to the signature appears from the full powers of the representative or was expressed during the negotiations. (Art. 12, Vienna Convention on the Law of the Treaties)
• Ratification – A formal act whereby one State declares its acceptance of the terms of the treaty and undertakes to observe them. Ratification is used to describe two distinct procedural acts:
• Ratification in municipal law. It is the formal act of the appropriate organ of the State affected in accord with national constitutional law.
• Ratification in international law. Ratification is a procedure which brings a treaty into force for the State concerned by establishing its definitive consent to be bound by the particular treaty. International law is not concerned with the requirements of its constitutional law. (Kaczorowska, 2010) NOTE: A State’s signature may itself express consent to be bound when the conditions in Article 12 of the Vienna Convention are met; otherwise, a treaty requiring ratification needs a separate act expressing consent by ratification. (Kaczorowska, 2010)

Applicable rules when there is conflict between a treaty and a domestic legislation

The rule will depend on which court is deciding.

• International Court- will uphold treaty obligation in general. NOTE: However, Art. 46 of the VCLT states that:
• A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
• A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.
• Domestic Court
• Treaty vs. Constitution – The Constitution will always prevail.
• Treaty vs. Statute - When the two instruments relate to the same subject, try to give effect to both; if inconsistent, legal techniques on statutory construction would be employed. Some of such rules say that the “later in time prevails” or that the “specific law prevails over the general”.