Treaty-making in the Philippines

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 r equire 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 conclud ed 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 Page 1 of 8


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 concur rence 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 w hat 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 nation’s foreign policy; his “dominance in the field of foreign relat ions 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 country’s 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 Page 3 of 8


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 P hilippine 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: Page 4 of 8


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 w as 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 State’s 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 t he 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 B ank Deposits Act; 4. criminal matters or classified law enforcement matters; and Page 6 of 8


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 t he 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 Page 7 of 8


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 c lass as the latter.

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Treaty-making in the Philippines

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