(b) it must be written; and
Treaties and Conventions
Abaya v. Ebdane
An exchange of notes is considered a form of an
executive agreement, which becomes binding
through executive action without need of a vote
by the Senate and that (like treaties and
conventions, it is an international instrument
binding at international law.
 Exchange of notes - record of a routine
agreement that has many similarities
with the private law contract. The
agreement consists of the exchange of
two documents, each of the parties
being in the possession of the one signed
by the representative of the other.
DBM v. Kolonwel
Under the fundamental international law
principle of pacta sunt servanda, the RP, as
borrower, bound itself to perform in good faith
its duties and obligation under Loan No. 7118-
PH. Applying this postulate, the IABAC was
legally obliged to comply with, or accord primacy
to, the WB Guidelines on the conduct and
implementation of the bidding/procurement
process in question.
CNMEG v. Santa Maria
In Bayan Muna v. Romulo, this Court held that
an executive agreement is similar to a treaty,
except that the former
(a) does not require legislative concurrence;
(b) is usually less formal; and
(c) deals with a narrower range of subject
matters.
Despite these differences, to be considered an
executive agreement, the following three
requisites provided under the Vienna
Convention must nevertheless concur:
(a) the agreement must be between states;
(c) it must be governed by international
law. The first and the third requisites do
not obtain in the case at bar.
The Contract Agreement was not concluded
between the Philippines and China, but between
Northrail and CNMEG. By the terms of the
Contract Agreement, Northrail is a government-
owned or -controlled corporation, while CNMEG
is a corporation duly organized and created
under the laws of the People's Republic of China.
52 Thus, both Northrail and CNMEG entered into
the Contract Agreement as entities with
personalities distinct and separate from the
Philippine and Chinese governments,
respectively.
Neither can it be said that CNMEG acted as agent
of the Chinese government. As previously
discussed, the fact that Amb. Wang, in his letter
dated 1 October 2003, 53 described CNMEG as a
"state corporation" and declared its designation
as the Primary Contractor in the Northrail Project
did not mean it was to perform sovereign
functions on behalf of China.
Commissioner of Customs v. Eastern Sea
Trading
While the concurrence of the Senate is required
by the Constitution in the making of "treaties"
(Constitution of the Philippines, Article VII,
Section 10 [7], "executive agreements" may be
validly entered into without such concurrence.
Further, international agreements involving
political issues or changes of national policy and
those involving international arrangements of a
permanent character usually take the form of
TREATIES;
On the other hand, 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.
Bayan v. Exec. Sec. Zamora
The requirement of “Recognized as a treaty”
means, for as long as the United States of
America accepts or ACKNOWLEDGES the VFA as
a treaty, and BINDS itself further to comply with
its obligations under the treaty, there is indeed
marked compliance with the mandate of the
Constitution.
 In international law, executive
agreement is binding as a treaty.
Worth stressing too, is that the ratification, by
the President, of the VFA and the concurrence of
the Senate should be taken as a clear an
unequivocal expression of our nation's consent
to be bound by said treaty, with the concomitant
duty to uphold the obligations and
responsibilities embodied thereunder. 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 law of the land
and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all
nations.
As regards the power to enter into treaties or
international agreements, the Constitution
vests the same in the President, subject only to
the concurrence of at least two-thirds vote of all
the members of the Senate. In this light, the
negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts
which pertain solely to the President, in the
lawful exercise of his vast executive and
diplomatic powers granted him no less than by
the fundamental law itself. Into the field of
negotiation, the Senate cannot intrude, and
Congress itself is powerless to invade it.
Consequently, the acts or judgment calls of the
President involving the VFA — specifically the
acts of ratification and entering into a treaty and
those necessary or incidental to the exercise of
such principal acts — squarely fall within the
sphere of his constitutional powers and thus,
may not be validly struck down, much less
calibrated by this Court, in the absence of clear
showing of grave abuse of power or discretion.
Lim v. Exec. Sec.
The VFA provides the "regulatory mechanism" by
which "United States military and civilian
personnel [may visit] temporarily in the
Philippines in connection with activities
approved by the Philippine Government." It
contains provisions relative to entry and
departure of American personnel, driving and
vehicle registration, criminal jurisdiction, claims,
importation and exportation, movement of
vessels and aircraft, as well as the duration of the
agreement and its termination. It is the VFA
which gives continued relevance to the MDT
despite the passage of years. Its primary goal is
to facilitate the promotion of optimal
cooperation between American and Philippine
military forces in the event of an attack by a
common foe.
The first question that should be addressed is
whether "Balikatan 02-1" is covered by the
Visiting Forces Agreement. To resolve this, it is
necessary to refer to the VFA itself. The VFA
permits United States personnel to engage, on
an impermanent basis, in "activities," the exact
meaning of which was left undefined. The
expression is ambiguous, permitting a wide
scope of undertakings subject only to the
approval of the Philippine government. The sole
encumbrance placed on its definition is couched
in the negative, in that United States personnel
must "abstain from any activity inconsistent with
the spirit of this agreement, and in particular,
from any political activity."
After studied reflection, it appeared farfetched
that the ambiguity surrounding the meaning of
the word "activities" arose from accident. In our
view, it was deliberately made that way to give
both parties a certain leeway in negotiation. In
this manner, visiting US forces may sojourn in
Philippine territory for purposes other than
military. As conceived, the joint exercises may
include training on new techniques of patrol and
surveillance to protect the nation's marine
resources, sea search-and-rescue operations to
assist vessels in distress, disaster relief
operations, civic action projects such as the
building of school houses, medical and
humanitarian missions, and the like. Under these
auspices, the VFA gives legitimacy to the current
Balikatan exercises.
It is only logical to assume that "Balikatan 02-1,"
a "mutual anti-terrorism advising, assisting and
training exercise," falls under the umbrella of
sanctioned or allowable activities in the context
of the agreement. Both the history and intent of
the Mutual Defense Treaty and the VFA support
the conclusion that combat-related activities —
as opposed to combat itself — such as the one
subject of the instant petition, are indeed
authorized.
Pimentel v. Exec. Sec.
The President has the sole authority to negotiate
and enter into treaties, the Constitution provides
a limitation to his power by requiring the
concurrence of 2/3 of all the members of the
Senate for the validity of the treaty entered into
by him. Section 21, Article VII of the 1987
Constitution provides that “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.” The
participation of the legislative branch in the
treaty-making process was deemed essential to
provide a check on the executive in the field of
foreign relations.
It should be emphasized that 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.
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,
Akbayan v. Aquino
The Court held: “Applying the principles adopted
in PMPF v. Manglapus, it is clear that while the
final text of the JPEPA may not be kept
perpetually confidential – since there should be
'ample opportunity for discussion before [a
treaty] is approved' – the offers exchanged by
the parties during the negotiations continue to
be privileged even after the JPEPA is published.
It is reasonable to conclude that the Japenese
representatives submitted their offers with the
understanding that 'historic confidentiality'
would govern the same. Disclosing these offers
could impair the ability of the Philippines to deal
not only with Japan but with other foreign
governments in future negotiations.”
It also reasoned out that opening for public
scrutiny the Philippine offers in treaty
negotiations would discourage future Philippine
representatives from frankly expressing their
views during negotiations. The Highest Tribunal
recognized that treaty negotiations normally
involve a process of quid pro quo, where
negotiators would willingly grant concessions in
an area of lesser importance in order to obtain
more favorable terms in an area of greater
national interest.
Nicolas v. Romulo
The EPC is not violated, because there is a
substantial basis for a different treatment of a
member of a foreign military armed forces
allowed to enter our territory and all other
accused.
The rule in international law is that a foreign
armed forces allowed to enter one’s territory is
immune from local jurisdiction, except to the
extent agreed upon. The power of this Court to
adopt rules of procedure is not curtailed or
violated, but is normally encountered around the
world.
Nothing in the Constitution prohibits such
agreements recognizing immunity from
jurisdiction or some aspects of jurisdiction (such
as custody), in relation to long-recognized
subjects of such immunity like Heads of State,
diplomats and members of the armed forces
contingents of a foreign State allowed to enter
another State’s territory. On the contrary, the
Constitution states that the Philippines adopts
the generally accepted principles of
international law as part of the law of the land.
(Art. II, Sec. 2).
Bayan Muna v. Exec. Sec.
Petitioner’s initial challenge against the
Agreement relates to form, its threshold posture
being that E/N BFO-028-03 cannot be a valid
medium for concluding the Agreement.
Petitioners’ contention––perhaps taken
unaware of certain well-recognized international
doctrines, practices, and jargons––is untenable.
One of these is the doctrine of incorporation, as
expressed in Section 2, Article II of the
Constitution, wherein the Philippines adopts the
generally accepted principles of international
law and international jurisprudence as part of
the law of the land and adheres to the policy of
peace, cooperation, and amity with all nations.
An exchange of notes falls “into the category of
inter-governmental agreements,” which is an
internationally accepted form of international
agreement.
Petitioner urges that the Agreement be struck
down as void ab initio for imposing immoral
obligations and/or being at variance with
allegedly universally recognized principles of
international law.
Petitioner, we believe, labors under the
erroneous impression that the Agreement would
allow Filipinos and Americans committing high
crimes of international concern to escape
criminal trial and punishment. This is manifestly
incorrect. Persons who may have committed
acts penalized under the Rome Statute can be
prosecuted and punished in the Philippines or in
the US; or with the consent of the RP or the US,
before the ICC, assuming, for the nonce, that all
the formalities necessary to bind both countries
to the Rome Statute have been met. For
perspective, what the Agreement contextually
prohibits is the surrender by either party of
individuals to international tribunals, like the ICC,
without the consent of the other party, which
may desire to prosecute the crime under its
existing laws.
Saguisag v. Exec. Sec.
Executive agreements may dispense with the
requirement of Senate concurrence because of
the legal mandate with which they are
concluded. Executive agreements merely involve
arrangements on the implementation of existing
policies, rules, laws, or agreements. They are
concluded (1) to adjust the details of a treaty; (2)
pursuant to or upon confirmation by an act of
the Legislature; or (3) in the exercise of the
President's independent powers under the
Constitution
However, this principle does not mean that the
domestic law distinguishing treaties,
international agreements, and executive
agreements is relegated to a mere variation in
form, or that the constitutional requirement of
Senate concurrence is demoted to an optional
constitutional directive. There remain two very
important features that distinguish treaties from
executive agreements and translate them into
terms of art in the domestic setting.
First, executive agreements must remain
traceable to an express or implied authorization
under the Constitution, statutes, or treaties. In
turn, executive agreements cannot create new
international obligations that are not expressly
allowed or reasonably implied in the law they
purport to implement.
Second, treaties are, by their very nature,
considered superior to executive agreements.
Treaties are products of the acts of the Executive
and the Senate unlike executive agreements,
which are solely executive actions. Because of
legislative participation through the Senate, a
treaty is regarded as being on the same level as
a statute. If there is an irreconcilable conflict, a
later law or treaty takes precedence over one
that is prior. An executive agreement is treated
differently. Executive agreements that are
inconsistent with either a law or a treaty are
considered ineffective.
Pharmaceutical and Health Care Assoc. v.
Duque
Under 1987 Consti, int’l law can become
domestic law by transformation (thru
constitutional mechanism such as local
legislation) or incorporation (mere constitutional
declaration i.e treaties) The ICBMS and WHA
resolutions were not treaties as they have not
been concurred by 2/3 of all members of the
Senate as required under Sec, 21, Art 7.
However, the ICBMS had been transformed into
domestic law through a local legislation such as
the Milk Code. The Milk Code is almost a
verbatim reproduction of ICBMS.
However, the Court ruled that DOH failed to
establish that the provisions pertinent WHA
resolutions are customary int’l law that may be
deemed part of the law of the land. For an int’l
rule to be considered as customary law, it must
be established that such rule is being followed by
states because they consider it as obligatory to
comply with such rules (opinion juris). The WHO
resolutions, although signed by most of the
member states, were enforced or practiced by at
least a majority of member states. Unlike the
ICBMS whereby legislature enacted most of the
provisions into the law via the Milk Code, the
WHA Resolutions (specifically providing for
exclusive breastfeeding from 0-6 months,
breastfeeding up to 24 Months and absolutely
prohibiting ads for breastmilk substitutes) have
not been adopted as domestic law nor are they
followed in our country as well. The Filipinos
have the option of how to take care of their
babies as they see fit. WHA Resolutions may be
classified as SOFT LAW – non-binding norms,
principles and practices that influence state
behavior. SOFT LAW IS NOT PART OF INT’L LAW.
International Customs
North sea continental shelf cases
For a customary rule to emerge the Court held
that it needed: (1) very widespread and
representative participation in the Convention,
including States whose interests were specially
affected (in this case, they were coastal States)
(i.e. generality); and (2) virtually uniform practice
(i.e. consistent and uniform usage) undertaken in
a manner that demonstrates (3) a general
recognition of the rule of law or legal obligation
(i.e. opinio juries). In the North Sea Continental
Shelf cases the court held that the passage of a
considerable period of time was unnecessary
(i.e. duration) for the formation of a customary
law.
The North Sea Continental Shelf Cases confirmed
that both State practice (the objective element)
and opinio juris (the subjective element) are
essential pre-requisites for the formation of a
customary law rule.
Case Concerning Right of Passage over
Indian Territory (Portugal v. India), ICJ
Reports, 12 April 1960
Constant and uniform practice between states is
also source of international law. There is no
reason why long continued practice between
two states accepted by them as regulating their
relations should not form the basis of mutual
rights and obligations between the two States.

Nicaragua v. US (Case concerning the

military and paramilitary activities in and
against Nicaragua)
The Court held that such acts of UST constitute
breaches of obligations under customary
international law not to intervene in the affairs
of another state, not to use force against another
state, not to violate the sovereignty of another
state.

CUSTOMARY LAW OPERATES INDEPENDENTLY

OF TREATY LAW. The areas governed by the
two sources of law do not overlap exactly and
the rules do not have the same content, this
would not be a reason for the Court to hold that
the incorporation of the customary norm into
treaty law must deprive the customary norm of
its applicability as distinct from that of the treaty
norm. The applicability of a treaty to one state
depends on the conduct of another state in
respect to the application of other rules or
provisions contained in the treaty. If a State
exercises its right to terminate or suspend the
operation of treaty on the ground of violation of
another State for the purpose or
accomplishment of such treaty, it is exempted vis
a vis the other state, from a rule of treaty law.
But if the two rules in question also exist as
customary international law, the failure of one
state to apply one rule does not justify another
state to decline to apply other rules.