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Treaties and Executive Agreements

By Titus Edison M. Calauor
Public International Law
Summer Class 2017

There has been an urgent need for the Supreme Court to clarify the
distinction between a treaty and an executive agreement. Its importance is
paramount to the nation because it involves the President's power to bind
the state to international obligations, with or without Senate concurrence. A
clear distinction is necessary so that international agreements made by the
Philippines would not contravene the Constitution, international laws or
statute.

Under international law, a "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.1 In the 1987 Constitution, it generally requires that
treaties must be concurred by at least two-thirds of all members of the
Senate to be valid2. As a special provision covering the presence of foreign
military bases, troops and facilities in the country, the Constitution provides
an additional requirement where the majority vote of the people through a
referendum is needed, provided that Congress so requires it3.

On the other hand, an Executive agreement is similar to treaties except that

they do not require legislative concurrence 4. This means that the President,
or his representative, can bind the state into international agreements even
without Senate concurrence.

The Supreme Court made the initial distinction between treaties and
executive agreements in the 1961 case of Commissioner of Customs v.
Eastern Sea Trading5. As a rule, the Court said that international
1
Vienna Convention on the Law on Treaties, May 22, 1969
2
CONST. Art. VII Sec. 21
3
CONST. Art. XVIII Sec. 25
4
Section 2(c) Executive Order No. 459, Providing for the Guidelines in the Negotiation of
International Agreements and its Ratification (1997)
5
Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333 (1961)
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agreements involving political issues or changes of national policy 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. The distinction was said to be that
international agreements of permanent nature should be in the form of a
treaty while those of temporary nature are in the form of executive
agreements.

In 2000, the Supreme Court highlighted the similarity of the two as to their
binding effect in ruling for the validity of the Visiting Forces Agreement.6

Thus, in 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 2011, this ruling was reiterated in Bayan vs. Romulo 7. In this case, the
Supreme Court ruled that the previous doctrine of the Eastern Trading Case
can no longer be used to limit the scope and validity of Executive
Agreements, in this case the RP-UP Non-Surrender Agreement.

"There are no hard and fast rules on the propriety of entering, on a given
subject, into a treaty or an executive agreement as an instrument of
international relations. The primary consideration in the choice of the form
of agreement is the parties' intent and desire to craft an international
agreement in the form they so wish to further their respective interests.
Verily, the matter of form takes a back seat when it comes to effectiveness
and binding effect of the enforcement of a treaty or an executive agreement,
as the parties in either international agreement each labor under the pacta
sunt servanda principle."

The Court highlighted the validity of executive agreements as provided in

the incorporation clause of the Constitution. It said that Exchange of
notes between state representatives is a legally binding instrument under
international law which can be considered as a form of executive
agreement.

"Under international law, there is no difference between treaties and

executive agreements in terms of their binding effects on the contracting
states concerned, as long as the negotiating functionaries have remained

6
Bayan Muna v. Zamora, G.R. 138570 (2000)
7
Bayan Muna v. Romulo, 656 Phil. 246 (2011)
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within their powers. Neither, on the domestic sphere, can one be held valid
if it violates the Constitution. Authorities are, however, agreed that one is
distinct from another for accepted reasons apart from the concurrence-
requirement aspect. As has been observed by US constitutional scholars, a
treaty has greater dignity than an executive agreement, because its
constitutional efficacy is beyond doubt, a treaty having behind it the
authority of the President, the Senate, and the people; a ratified treaty,
unlike an executive agreement, takes precedence over any prior statutory
enactment."

In the 2016 ruling of Saguisag vs. Ochoa 8, the Supreme Court made a
distinction between what constitutes an executive agreement. The court
applied this distinction to rule on the validity of the Enhanced Defense
Cooperation Agreement (EDCA) made between the governments of the
Philippines and the United States. The Court first explained that Senate
concurrence may be dispensed with in Executive agreements because of the
legal mandate in which they are concluded.

"As culled from the afore-quoted deliberations of the Constitutional

Commission, past Supreme Court Decisions, and works of noted scholars,
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. The raison d'etre of executive agreements hinges on prior
constitutional or legislative authorizations."

The court then expounded that the distinction between the two are more
than just differences as to form or the requirement of Senate concurrence.

"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.

8
Saguisag vs. Ochoa, G.R. No. 212426, January 12, 2016.
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First, executive agreements must remain traceable to an express or implied

authorization under the Constitution, statutes, or treaties. The absence of
these precedents puts the validity and effectivity of executive agreements
under serious question for the main function of the Executive is to enforce
the Constitution and the laws enacted by the Legislature, not to defeat or
interfere in the performance of these rules. 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. Both types of
international agreement are nevertheless subject to the supremacy of the
Constitution."

The Supreme Court ruled for the validity of EDCA as an executive

agreement because it merely involved adjustments in detail in the
implementation of the Mutual Defense Treaty and the Visiting Forces
Agreement. The Court provided such guidelines for its validity as an
executive agreement:

"1. Section 25, Article XVIII of the Constitution, contains stringent

requirements that must be fulfilled by the international agreement allowing
the presence of foreign military bases, troops, or facilities in the Philippines:
(a) the agreement must be in the form of a treaty, and (b) it must be duly
concurred in by the Senate.

2. If the agreement is not covered by the above situation, then the President
may choose the form of the agreement (i.e., either an executive agreement
or a treaty), provided that the agreement dealing with foreign military
bases, troops, or facilities is not the principal agreement that first allows
their entry or presence in the Philippines.

3. The executive agreement must not go beyond the parameters, limitations,

and standards set by the law and/or treaty that the former purports to
implement; and must not unduly expand the international obligation
expressly mentioned or necessarily implied in the law or treaty.

4. The executive agreement must be consistent with the Constitution, as well

as with existing laws and treaties."

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In the said case, the Supreme Court has shown that the EDCA was indeed in
accordance with the Constitution and the prior international agreement,
specifically the Mutual Defense Treaty and the Visiting Forces Agreement.

In sum, it has been cleared in the said case that Treaties are superior to
Executive agreements since it is the product of the acts of the Executive
and the Legislative branches of government. For an Executive agreement to
be considered as valid, the Supreme Court has ruled that these
international agreements must be made only to adjust a detail in a treaty. It
must be traceable to an express or implied authorization under the
Constitution, statutes, or treaties. Its binding effect cannot create new
international obligations that are not expressly allowed or reasonably
implied in the said sources. Lastly, Executive agreements that are
inconsistent with either a law or a treaty are considered ineffective.

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