TREATY-MAKING IN THE PHILIPPINES

TREATY-MAKING IN THE PHILIPPINES

Prepared by: Arnel D. Mateo

What is a treaty?
Under Philippine Laws, Treaties are international agreements entered into by the Philippines which
require legislative concurrence after executive ratification. This term may include compacts like
conventions, declarations, covenants and acts.

Under International Law, Treaty means 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.

Not all international agreements are governed by international law. The convention applies only to
those which are governed by the domestic law of one of the parties or some other national law chosen
by the parties.

What is an executive Agreement?

Executive Agreements similar to treaties except that they do not require legislative concurrence.

What is the distinction between a treaty and an executive agreement?

The difference between the two is sometimes difficult of ready ascertainment. Under 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. International
law continues to make no distinction between treaties and executive agreements: they are equally
binding obligations upon nations.

In our jurisdiction, we have recognized the binding effect of executive agreements even without the
concurrence of the Senate or Congress. Generally, treaties of any kind, whether bilateral or multilateral,
require Senate concurrence while executive agreements may be validly entered into without such
concurrence.

The members of the Constitutional Commission acknowledged the distinction between a treaty and an
executive agreement during their deliberations of Section 21 Article VII. One of the issues in the
discussions was trying to identify the kind of international agreements that require Senate concurrence.
Commissioner Joaquin Bernas made a clarification by quoting from the decision of the Supreme Court in
the case of Commissioner of Customs vs. Eastern Sea Trading:

The right of the executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest
days of our history, we have entered into executive agreements covering such subjects
as commercial and consular relations, most favored nation rights, patent rights,
trademark and copyright protection, postal and navigation arrangements and the
settlement of claims. The validity of this has never been seriously questioned by our
Courts.

Agreements with respect to the registration of trademarks have been concluded by the
executive and various countries under the Act of Congress of March 3, 1881 (21 Stat.
502) . . . International agreements involving political issues or changes of national policy

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and those involving international agreements of a permanent character usually take the
form of treaties. But international agreements embodying adjustments of detail,
carrying out well established national policies and traditions and those involving
arrangements of a more or less temporary nature usually take the form of executive
agreements.

Commissioner Bernas further explained that international agreements, which require Senate
concurrence, are those, which are permanent in nature. Also, if it is with prior authorization from
Congress, it does not need subsequent concurrence by Congress.

The Department of Foreign Affairs in its press release said that in executive agreement, there is no
fundamental change in policy, nor will there be need for legislation to fund the agreement. It does not
impinge on any existing international legal obligation.

What is the rationale for distinguishing a treaty form an executive agreement?

The distinction between a treaty or international agreement and an executive agreement is of great
significance in the Philippines because the procedure followed in the process of ratification is different.
If what is involved is a treaty, the concurrence by at least two-thirds of all the Members of the Senate is
required. On the other hand, if what is involved is an executive, there is no such requirement.

What is the procedure for determining whether an agreement is a treaty or an executive agreement?
a. Internal procedure within the Office of the President and the DFA

In 1988, the Office of the President issued Memorandum Circular 89 to set the guidelines in case of
conflict as to whether an agreement is a treaty or an executive agreement. The Legal Adviser of the
Department of Foreign Affairs (DFA) and the Assistant Secretary on Legislative Affairs and the Senate will
be given opportunity to comment on the nature of the agreement. Consultation shall be made with the
leadership of the Senate. The Secretary of Foreign Affairs shall make the proper recommendation to the
President.

In 1997, Executive Order 459 was issued and under Sec. 9 thereof, the DFA determines the nature of an
agreement. Said Executive Order is silent if the determination by the DFA of the nature of agreement
can be overturned by the President or not.

If asked which of the two issuances is prevailing, as a rule, being a later act, E.O. 459 is controlling.
However, newly appointed Associate Justice of the Supreme Court Antonio Eduardo Nachura, and
prominent authors in international law Jorge Coquia and Senator Miriam Defensor Santiago (Chairman
of the Senate Committee on Foreign Relations before adjournment of the 13th Congress) are of the
opinion that Memorandun Circular 89 is still binding.

What is the current framework for trade negotiations?

a. Who has the power to negotiate or make treaties?

The President has the power to make treaties implicitly in the general grant of authority in Section 1,
Article VII that The executive power is vested in the President of the Philippines, in particular as this is
applied in foreign relations.

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By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole
organ and authority in the external affairs of the country. In many ways, the President is the chief
architect of the nations foreign policy; his dominance in the field of foreign relations is (then)
conceded. Wielding vast powers an influence, his conduct in the external affairs of the nation, as
Jefferson describes, is executive altogether."

Since the President is the head of state in the system of government of the Philippines, he is the
authority in the countrys external or foreign relations. Being vested with diplomatic powers, the
President formulates foreign policy, deals with international affairs, represents the state with foreign
nations, maintains diplomatic relations, and enters into treaties or international agreements. Likewise,
the power granted to the Senate to concur in treaties is to be interpreted as referring to treaties which
the President makes and submits to the Senate for concurrence.

Normally, it is the Head of State or the Head of the Ministry of Foreign Affairs who binds States in
treaties. These persons do not need to produce evidence of full powers to conclude a treaty. Treaty
ratification is one of the incidents of their position. For purposes of adopting a text to a treaty, the head
of the diplomatic mission or accredited representatives of States to an international conference or one
of its organs are empowered to authenticate or accredit the text of a treaty. If an act was performed
without authorization or without the full powers, a treaty can still be given force and effect provided it is
subsequently confirmed by the State.

b. Working procedure
Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:

The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of
the instruments of ratification.

The treaty may then be submitted for registration and publication under the U.N. Charter, although this
step is not essential to the validity of the agreement as between the parties.

1. Negotiation may be undertaken directly by the head of state but he now usually assigns this task to
his authorized representatives. These representatives are provided with credentials known as full
powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard
practice for one of the parties to submit a draft of the proposed treaty which, together with the
counter-proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or
protracted, depending on the issues involved, and may even collapse in case the parties are unable to
come to an agreement on the points under consideration.

In the Philippines, the negotiation phase of the treaty making process is essentially performed and
controlled by the Executive branch of the government through the Department of Foreign Affairs and
the respective government agencies involved. Once a treaty proposal is received by the Government the
Department of Foreign is tasked to determine whether or not said agreement is a treaty or an executive
agreement. It is the Chief Executive, through the recommendation of the DFA Secretary, who designates
the persons who will comprise the Philippine delegation and the departments, which will be involved
and consulted in the negotiation.

Pursuant to Executive Order 459, the lead agency in the negotiation of a treaty or an executive
agreement or any amendment thereto shall convene a meeting of the panel members prior to the

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commencement of any negotiations for the purpose of establishing the parameters of the negotiating
position of the panel. No deviation from the agreed parameters shall be made without prior
consultation with the members of the negotiating panel.

The panel of negotiators is normally composed of several individuals from the different agencies of
government who are technical experts and resource persons in certain areas of specialization. This
group of persons is normally referred to as technical working groups. A treaty, which has far-reaching
effects on the different industries, may involve several technical working groups. The technical working
groups would meet and outline the Philippine position and embody this position in writing. Ideally, the
Philippine position must be in conformity with the outlined policies, development goals and targets of
the government and in general pursue Philippine interest.

During the negotiation process, negotiators of each State party would meet and discuss to arrive at a
mutually beneficial arrangement. Battles over semantics and phrasing are normal in treaty negotiations.
This stage is very tedious and negotiators must be very vigilant in looking at each particular provision.
Before concurring to a particular provision, said negotiator must agree to it only after consultation with
other negotiators and evaluate if it is in conformity with the outlined Philippine position. In issues of
primordial importance or high significance, public consultation must be performed to be able to
determine its overall impact on the industries that are affected or parties who will be prejudiced.
Negotiators aside from being experts must be strong, assertive and emphatic in pursuing the Philippine
position. Disagreements among the negotiators over certain provisions is also normal, but some
experienced negotiators have perfected the art of inserting provisions in unexpected sections or
rephrasing rejected provisions to make it appear acceptable. The quote timing is everything finds
application in the art negotiations, some negotiators will invoke provisions of doubtful validity, during
such times when negotiators of the other party are already quite tired or weary from long hours spent
on text analysis, interpretation and revision. Once a final draft of the agreement is reached, it will be
sent to the office of the Chief Executive who will signify his approval. If he approves the agreement, he
will forward it to the Office of the Executive Secretary, who in turn, will attest, to the authenticity and
veracity of the text signed or ratified. The Office of the Executive Secretary receives texts in their final
form but can override these agreements on broad grounds of it being against the Constitution, the law
or public policy, in general.

2. If and when the negotiators finally decide on the terms of the treaty, the same is opened for
signature. This step is primarily intended as a means of authenticating the instrument and for the
purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final
consent of the state in cases where ratification of the treaty is required. The document is ordinarily
signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on
the copy which he will bring home to his own state.

3. Ratification, which is the next step, is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the
contracting states to examine the treaty more closely and to give them an opportunity to refuse to be
bound by it should they find it inimical to their interests. It is for this reason that most treaties are made
subject to the scrutiny and consent of a department of the government other than that which
negotiated them. Ratification is generally held to be an executive act, undertaken by the head of the
state or of the government, as the case may be, through which the formal acceptance of the treaty is
proclaimed. A State may provide in its domestic legislation the process of ratification of a treaty. The
consent of the State to be bound by a treaty is expressed by ratification when:

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a. the treaty provides for such ratification,

b. it is otherwise established that the negotiating States 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 the negotiation.

In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to
the ratification.

4. The next step is the exchange of the instruments of ratification, which usually also signifies the
effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification
is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective
upon its signature.

5. In our jurisdiction, for the treaty to be valid and effective, it must be concurred in by the Senate. The
process of treaty concurrence by the Senate follows the procedure under the 1987 Constitution on the
passage of bills. Such rules are supplemental by the Rules of the Senate. The step-by-step process of
treaty concurrence is discussed below.

Initially, the President, through a letter to the Senate, transmits to the Senate the Instrument of
Ratification and the text of the ratified treaty for concurrence pursuant to Sec. 21, Art. VII of the
Constitution. The President transmits the same by acting through the Executive Secretary, who himself
makes a letter of endorsement to the Senate.

The Senate receives the agreement through its Legislative Bills and Index Services (Bills and Index). The
Bills and Index reproduces the text of the agreement and includes it in the Order of Business. It also
indexes and publishes an abstract of the agreement.

At the beginning of each Senate Session, the Secretary of the Senate reports all bills, proposed Senate
resolutions, and correspondences from the other branches of the government, and such other matters
included in the Order of Business. Like an ordinary bill, the international agreement undergoes three
readings.

In the first reading, only the title and number is read. The title usually goes Concurrence in the
Ratification of (the treaty or international agreement) with the corresponding Proposed Senate
Resolution Number.

Afterwards, the treaty is referred to the Committee on Foreign Relations. If the treaty concerns other
Committees, it is also referred to such other Committees for their joint consideration and
recommendation. As an illustration, the Visiting Forces Agreement (VFA) was also referred to the
Committee on National Defense. If the treaty concerns almost all or all the Senate Committees, it is
referred to what is called the Committee of the Whole. For instance, the World Trade Organization
(WTO) was referred to the Committee of the Whole. The role of the Committee is to study and analyze
the agreement. It makes consultations to studies and position papers. It conducts public hearings and
considers public testimonies. The final output and recommendations are documented in the committee

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report. The committee report is filed with the Bills and Index, which then includes it in the Calendar of
Business for second reading.

At the start of the second reading, the Senator-Sponsor/s of the treaty endorses the committee report
to the Chamber through a sponsorship speech. During the second reading, the treaty would be opened
to general debate and to amendments. At the close of the debate, the members of the Senate would
vote.

If approved by the Senate, the bill would pass to third reading. The Committee on Foreign Relations will
document any action taken in the form of a Proposed Resolution. The Proposed Resolution shall be
engrossed and printed by the Bills and Index, and distributed to each Senator three (3) days before third
reading.

After three days from the distribution of the resolution with the treaty attached thereto, the Proposed
Resolution shall be submitted for nominal voting. The treaty shall be deemed approved if 2/3 of the
Senators voted for its approval. A Senate Resolution concurring in the ratification of the treaty is then
adopted. The adopted Senate Resolution is brought to the Secretary of the Senate, who thereafter
transmits a copy thereof to the Secretary of Foreign Affairs.

c. Opportunities/venues for private sector participation

Although the Chief Executive is the sole authority in treaty-making, it is nonetheless the policy of the
State that the people and their organizations have the right to participate in decision-making processes.
Organizations refer to trade unions, peasant organizations, urban poor, cooperatives, human rights
groups, religious groups, and also associations of landowners and businessmen. The role of the State, by
enacting a law, would be mere facilitation of the consultation mechanisms, and not their creation, for
consultation mechanisms were already operating without the States action by law. Also, people refers
to all the people, including minors.

Also, the people shall have the right to access to all transactions of the State that concern public
interest, subject to standards prescribed by law. During the deliberations of the Constitutional
Commission, Commissioner Blas Ople, the sponsor of Sec. 28 Art. II, said that transactions include not
just the perfected contract but also the steps and negotiations taken that led to a contract.
Commissioners Ople and Napoleon Rama further explained that the difference between the provision
under State Policies and that under the Bill of Rights is that the latter affords the right of the people to
demand information while the former speaks of the duty of the government to disclose information
even when nobody demands. It necessarily follows that in all negotiations made by the President as to
entering into international agreements, it is the duty of the government to disclose to the people, even
without the latter making a demand, all its acts, but always limited by conditions prescribed by law.

The Supreme Court laid down in Chavez vs. Presidential Commission on Good Government some of the
restrictions to the State policy of public disclosure and to the exercise of the right to information:
1. National security matters which include State secrets regarding military and intelligence
information, diplomatic matters, and information on inter-government exchanges prior to the
conclusion of treaties and executive agreements;
2. trade secrets pursuant to the Intellectual Property Code;
3. banking transactions as provided by the Secrecy of Bank Deposits Act;
4. criminal matters or classified law enforcement matters; and

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5. other confidential matters including diplomatic correspondence, closed door Cabinet meetings,
executive sessions of Congress, and internal deliberations of the Supreme Court.

The right guaranteed by Section 7 of the Bill of Rights is the right to information on matters of public
concern. A consequence of this right is the right to access official records and documents. These rights
are subject to such limitations as may be provided by law. It follows that the limitations include
regulations on determining what information are matters of public concern, and the manner of access
to such matters of public concern.

In the case of Legaspi vs. Civil Service Commission, the Supreme Court said that public concern has no
exact definition. It encompasses an extensive scope of subjects which the public may want to know,
either because it directly affects their lives or simply because it arouses his interest. Each case must be
examined carefully.

It was also held in the above case that the duty to disclose information of public concern and to allow
access to public records is not discretionary on the part of the concerned government agency. If denied
of the enjoyment of the Constitutional right, the remedy of the citizen is to file a petition for mandamus
to compel the performance of the constitutional obligation.

Indeed, under Sec. 1 of Art. II (Declaration of Principles and State Policies) of the 1987 Constitution, The
Philippines is a democratic and republican State. Sovereignty resides in the people and all government
authority emanates from them. Republicanism means all government authority emanates from the
people and is exercised by representatives chosen by the people. Hence, the people are declared
supreme.

What is the significant role of the Legislative branch in the treat-making process?
Notwithstanding the sole authority of the President to negotiate and enter into treaties, the 1987
Constitution limits his power by requiring the concurrence of 2/3 of all the members of the Senate for
the validity and effectivity of the treaty entered into by him. The role of the Senate is confined to simply
giving or withholding its consent to the ratification.

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.

What is the effect of Senate Concurrence to a treaty?

A treaty becomes valid and effective if concurred in by two-thirds of all the members of the Senate. This
means it forms part of Philippine law by virtue of transformation. By an act of the legislature, treaty
rules may be transformed into Philippine law, to be applied or enforced as part of Philippine law.

The treaty becomes part of the law of the land and it becomes obligatory and incumbent on our part,
under the principles of international law, to be bound by the terms of the agreement. In Bayan vs.
Zamora, the Supreme Court said that with the ratification of the VFA, which is equivalent to final
acceptance, and with the exchange of notes between the Philippines and the United States of America,
it now becomes obligatory and incumbent on our part, under the principles of international law, to be
bound by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution,
declares that the Philippines adopts the generally accepted principles of international law as part of the

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law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity
with all nations.

As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for
the conduct of its international relations. While the international obligation devolves upon the state and
not upon any particular branch, institution, or individual member of its government, the Philippines is
nonetheless responsible for violations committed by any branch or subdivision of its government or any
official thereof. As an integral part of the community of nations, we are responsible to assure that our
government, Constitution and laws will carry out our international obligation. Hence, we cannot readily
plead the Constitution as a convenient excuse for non-compliance with our obligations, duties and
responsibilities under international law.

Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International
Law Commission in 1949 provides: Every State has the duty to carry out in good faith its obligations
arising from treaties and other sources of international law, and it may not invoke provisions in its
constitution or its laws as an excuse for failure to perform this duty.

Equally important is Article 26 of the convention which provides that Every treaty in force is binding
upon the parties to it and must be performed by them in good faith. This is known as the principle of
pacta sunt servanda which preserves the sanctity of treaties and have been one of the most
fundamental principles of positive international law, supported by the jurisprudence of international
tribunals.

What is the effect if the Senate does not concur to a treaty?

As provided for by the constitution, a treaty not concurred in by the Senate will not be valid and
effective.

Under the Philippine Legal System, how does a treaty stand in relation to the Philippine Constitution?
The Constitution is the basis for ascertaining the legality or validity of the treaty. By virtue of Article VIII,
Section 5(2)(a) of the Constitution, the Supreme Court may determine the constitutionality of a treaty or
declare it as violative of a statute.

How does a treaty stand in relation to a statute?

Being part of the law of the land and therefore an internal law, a treaty is not superior to an enactment
of the Congress of the Philippines, rather it would be in the same class as the latter.

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