Executive agreements vs. Treaties

"The President may generally enter into executive agreements subject to limitations defined by the Constitution and may be in furtherance of a treaty already concurred in by the Senate.

We discuss in this section why the President can enter into executive agreements.

It would be helpful to put into context the contested language found in Article XVIII, Section 25. Its more exacting requirement was introduced because of the previous experience of the country when its representatives felt compelled to consent to the old MBA.^[191] They felt constrained to agree to the MBA in fulfilment of one of the major conditions for the country to gain independence from the U.S.^[192] As a result of that experience, a second layer of consent for agreements that allow military bases, troops and facilities in the country is now articulated in Article XVIII of our present Constitution.

This second layer of consent, however, cannot be interpreted in such a way that we completely ignore the intent of our constitutional framers when they provided for that additional layer, nor the vigorous statements of this Court that affirm the continued existence of that class of international agreements called "executive agreements."

The power of the President to enter into binding executive agreements without Senate concurrence is already well-established in this jurisdiction.^[193] That power has been alluded to in our present and past Constitutions,^[194] in various statutes,^[195] in Supreme Court decisions,^[196] and during the deliberations of the Constitutional Commission.^[197] They cover a wide array of subjects with varying scopes and purposes,^[198] including those that involve the presence of foreign military forces in the country.^[199]

As the sole organ of our foreign relations^[200] and the constitutionally assigned chief architect of our foreign policy,^[201] the President is vested with the exclusive power to conduct and manage the country's interface with other states and governments. Being the principal representative of the Philippines, the Chief Executive speaks and listens for the nation; initiates, maintains, and develops diplomatic relations with other states and governments; negotiates and enters into international agreements; promotes trade, investments, tourism and other economic relations; and settles international disputes with other states.^[202]

As previously discussed, this constitutional mandate emanates from the inherent power of the President to enter into agreements with other states, including the prerogative to conclude binding executive agreements that do not require further Senate concurrence. The existence of this presidential power^[203] is so well-entrenched that Section 5(2)(a), Article VIII of the Constitution, even provides for a check on its exercise. As expressed below, executive agreements are among those official governmental acts that can be the subject of this Court's power of judicial review:

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (Emphases supplied)

In Commissioner of Customs v. Eastern Sea Trading, executive agreements are defined as "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."^[204] In Bayan Muna v. Romulo, this Court further clarified that executive agreements can cover a wide array of subjects that have various scopes and purposes.^[205] They are no longer limited to the traditional subjects that are usually covered by executive agreements as identified in Eastern Sea Trading. The Court thoroughly discussed this matter in the following manner:

The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea Trading is not cast in stone, x x x.

As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex and the domain of international law wider, as to include such subjects as human rights, the environment, and the sea. In fact, in the US alone, the executive agreements executed by its President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation, aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and nuclear safety, among others. Surely, the enumeration in Eastern Sea Trading cannot circumscribe the option of each state on the matter of which the international agreement format would be convenient to serve its best interest. As Francis Sayre said in his work referred to earlier:

... It would be useless to undertake to discuss here the large variety of executive agreements as such concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreement act, have been negotiated with foreign governments. . . . They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil air craft, custom matters and commercial relations generally, international claims, postal matters, the registration of trademarks and copyrights, etc.... (Emphases Supplied)

One of the distinguishing features of executive agreements is that their validity and effectivity are not affected by a lack of Senate concurrence.^[206] This distinctive feature was recognized as early as in Eastern Sea Trading (1961), viz:

Treaties are formal documents which require ratification with the approval of two-thirds of the Senate. Executive agreements become binding through executive action without the need of a vote by the Senate or by Congress.

x x x x

[T]he 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 these has never been seriously questioned by our courts. (Emphases Supplied)

That notion was carried over to the present Constitution. In fact, the framers specifically deliberated on whether the general term "international agreement" included executive agreements, and whether it was necessary to include an express proviso that would exclude executive agreements from the requirement of Senate concurrence. After noted constitutionalist Fr. Joaquin Bernas quoted the Court's ruling in Eastern Sea Trading, the Constitutional Commission members ultimately decided that the term "international agreements" as contemplated in Section 21, Article VII, does not include executive agreements, and that a proviso is no longer needed. Their discussion is reproduced below:^[207]

MS. AQUINO: Madam President, first I would like a clarification from the Committee. We have retained the words "international agreement" which I think is the correct judgment on the matter because an international agreement is different from a treaty. A treaty is a contract between parties which is in the nature of international agreement and also a municipal law in the sense that the people are bound. So there is a conceptual difference. However, I would like to be clarified if the international agreements include executive agreements.

MR. CONCEPCION: That depends upon the parties. All parties to these international negotiations stipulate the conditions which are necessary for the agreement or whatever it may be to become valid or effective as regards the parties.

MS. AQUINO: Would that depend on the parties or would that depend on the nature of the executive agreement? According to common usage, there are two types of executive agreement: one is purely proceeding from an executive act which affects external relations independent of the legislative and the other is an executive act in pursuance of legislative authorization. The first kind might take the form of just conventions or exchanges of notes or protocol while the other, which would be pursuant to the legislative authorization, may be in the nature of commercial agreements.

MR. CONCEPCION: Executive agreements are generally made to implement a treaty already enforced or to determine the details for the implementation of the treaty. We are speaking of executive agreements, not international agreements.

MS. AQUINO: I am in full agreement with that, except that it does not cover the first kind of executive agreement which is just protocol or an exchange of notes and this would be in the nature of reinforcement of claims of a citizen against a country, for example.

MR. CONCEPCION: The Commissioner is free to require ratification for validity insofar as the Philippines is concerned.

MS. AQUINO: It is my humble submission that we should provide, unless the Committee explains to us otherwise, an explicit proviso which would except executive agreements from the requirement of concurrence of two-thirds of the Members of the Senate. Unless I am enlightened by the Committee I propose that tentatively, the sentence should read. "No treaty or international agreement EXCEPT EXECUTIVE AGREEMENTS shall be valid and effective."

FR. BERNAS: I wonder if a quotation from the Supreme Court decision [in Eastern Sea Trading] might help clarify this:

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 of various countries under the Act of Congress of March 3, 1881 (21 Stat. 502) . . . International 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.

MR. ROMULO: Is the Commissioner, therefore, excluding the executive agreements?

FR. BERNAS: What we are referring to, therefore, when we say international agreements which need concurrence by at least two-thirds are those which are permanent in nature.

MS. AQUINO: And it may include commercial agreements which are executive agreements essentially but which are proceeding from the authorization of Congress. If that is our understanding, then I am willing to withdraw that amendment.

FR. BERNAS: If it is with prior authorization of Congress, then it does not need subsequent concurrence by Congress.

MS. AQUINO: In that case, I am withdrawing my amendment.

MR. TINGSON: Madam President.

THE PRESIDENT: Is Commissioner Aquino satisfied?

MS. AQUINO: Yes. There is already an agreement among us on the definition of "executive agreements" and that would make unnecessary any explicit proviso on the matter.

x x x

MR. GUINGONA: I am not clear as to the meaning of "executive agreements" because I heard that these executive agreements must rely on treaties. In other words, there must first be treaties.

MR. CONCEPCION: No, I was speaking about the common use, as executive agreements being the implementation of treaties, details of which do not affect the sovereignty of the State.

MR. GUINGONA: But what about the matter of permanence, Madam President? Would 99 years be considered permanent? What would be the measure of permanency? I do not conceive of a treaty that is going to be forever, so there must be some kind of a time limit.

MR. CONCEPCION: I suppose the Commissioner's question is whether this type of agreement should be included in a provision of the Constitution requiring the concurrence of Congress.

MR. GUINGONA: It depends on the concept of the executive agreement of which I am not clear. If the executive agreement partakes of the nature of a treaty, then it should also be included.

MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within the power of the Constitutional Commission to require that.

MR. GUINGONA: Yes. That is why I am trying to clarify whether the words "international agreements" would include executive agreements.

MR. CONCEPCION: No, not necessarily; generally no.

x x x

MR. ROMULO: I wish to be recognized first. I have only one question. Do we take it, therefore, that as far as the Committee is concerned, the term "international agreements" does not include the term "executive agreements" as read by the Commissioner in that text?

FR. BERNAS: Yes. (Emphases Supplied)

The inapplicability to executive agreements of the requirements under Section 21 was again recognized in Bayan v. Zamora and in Bayan Muna v. Romulo. These cases, both decided under the aegis of the present Constitution, quoted Eastern Sea Trading in reiterating that executive agreements are valid and binding even without the concurrence of the Senate.

Executive agreements may dispense with the requirement of Senate concurrence because of the legal mandate with which they are concluded. As culled from the afore-quoted deliberations of the Constitutional Commission, past Supreme Court Decisions, and works of noted scholars,^[208] 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;^[209] (2) pursuant to or upon confirmation by an act of the Legislature;^[210] or (3) in the exercise of the President's independent powers under the Constitution.^[211] The raison d'etre of executive agreements hinges on prior constitutional or legislative authorizations.

The special nature of an executive agreement is not just a domestic variation in international agreements. International practice has accepted the use of various forms and designations of international agreements, ranging from the traditional notion of a treaty - which connotes a formal, solemn instrument - to engagements concluded in modern, simplified forms that no longer necessitate ratification.^[212] An international agreement may take different forms: treaty, act, protocol, agreement, concordat, compromis d'arbitrage, convention, covenant, declaration, exchange of notes, statute, pact, charter, agreed minute, memorandum of agreement, modus vivendi, or some other form.^[213] Consequently, under international law, the distinction between a treaty and an international agreement or even an executive agreement is irrelevant for purposes of determining international rights and obligations.

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. 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.^[214] 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^[215] unlike executive agreements, which are solely executive actions.^[216] Because of legislative participation through the Senate, a treaty is regarded as being on the same level as a statute.^[217] If there is an irreconcilable conflict, a later law or treaty takes precedence over one that is prior.^[218] An executive agreement is treated differently. Executive agreements that are inconsistent with either a law or a treaty are considered ineffective.^[219] Both types of international agreement are nevertheless subject to the supremacy of the Constitution.^[220]

This rule does not imply, though, that the President is given carte blanche to exercise this discretion. Although the Chief Executive wields the exclusive authority to conduct our foreign relations, this power must still be exercised within the context and the parameters set by the Constitution, as well as by existing domestic and international laws. There are constitutional provisions that restrict or limit the President's prerogative in concluding international agreements, such as those that involve the following:

1. The policy of freedom from nuclear weapons within Philippine territory^[221]
   
   
2. The fixing of tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts, which must be pursuant to the authority granted by Congress^[222]
   
   
3. The grant of any tax exemption, which must be pursuant to a law concurred in by a majority of all the Members of Congress^[223]
   
   
4. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must be previously concurred in by the Monetary Board^[224]
   
   
5. The authorization of the presence of foreign military bases, troops, or facilities in the country must be in the form of a treaty duly concurred in by the Senate.^[225]
   
   
6. For agreements that do not fall under paragraph 5, the concurrence of the Senate is required, should the form of the government chosen be a treaty.

5. The President had the choice
   to enter into EDCA by way of
   an executive agreement or a
   treaty.
   

No court can tell the President to desist from choosing an executive agreement over a treaty to embody an international agreement, unless the case falls squarely within Article VIII, Section 25.

As can be gleaned from the debates among the members of the Constitutional Commission, they were aware that legally binding international agreements were being entered into by countries in forms other than a treaty. At the same time, it is clear that they were also keen to preserve the concept of "executive agreements" and the right of the President to enter into such agreements.

What we can glean from the discussions of the Constitutional Commissioners is that they understood the following realities:

1. Treaties, international agreements, and executive agreements are all constitutional manifestations of the conduct of foreign affairs with their distinct legal characteristics.
   
   
   1. Treaties are formal contracts between the Philippines and other States-parties, which are in the nature of international agreements, and also of municipal laws in the sense of their binding nature.^[226]
      
      
   2. International agreements are similar instruments, the provisions of which may require the ratification of a designated number of parties thereto. These agreements involving political issues or changes in national policy, as well as those involving international agreements of a permanent character, usually take the form of treaties. They may also include commercial agreements, which are executive agreements essentially, but which proceed from previous authorization by Congress, thus dispensing with the requirement of concurrence by the Senate.^[227]
      
      
   3. Executive agreements are generally intended to implement a treaty already enforced or to determine the details of the implementation thereof that do not affect the sovereignty of the State.^[228]
   
   
2. Treaties and international agreements that cannot be mere executive agreements must, by constitutional decree, be concurred in by at least two-thirds of the Senate.
   
   
3. However, an agreement - the subject of which is the entry of foreign military troops, bases, or facilities - is particularly restricted. The requirements are that it be in the form of a treaty concurred in by the Senate; that when Congress so requires, it be ratified by a majority of the votes cast by the people in a national referendum held for that purpose; and that it be recognized as a treaty by the other contracting State.
   
   
4. Thus, executive agreements can continue to exist as a species of international agreements.

That is why our Court has ruled the way it has in several cases.

In Bayan Muna v. Romulo, we ruled that the President acted within the scope of her constitutional authority and discretion when she chose to enter into the RP-U.S. Non-Surrender Agreement in the form of an executive agreement, instead of a treaty, and in ratifying the agreement without Senate concurrence. The Court en banc discussed this intrinsic presidential prerogative as follows:

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature of a treaty; hence, it must be duly concurred in by the Senate, x x x x. Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the subject-categories that x x x may be covered by an executive agreement, such as commercial/consular relations, most-favored nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and settlement of claims.

The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea Trading is not cast in stone. 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.

xxxx

But over and above the foregoing considerations is the fact that — save for the situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution — when a treaty is required, the Constitution does not classify any subject, like that involving political issues, to be in the form of, and ratified as, a treaty. What the Constitution merely prescribes is that treaties need the concurrence of the Senate by a vote defined therein to complete the ratification process.

x x x x

x x x. As the President wields vast powers and influence, her conduct in the external affairs of the nation is, as Bayan would put it, "executive altogether." The right of the President to enter into or ratify binding executive agreements has been confirmed by long practice.

In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the authority and discretion vested in her by the Constitution. At the end of the day, the President — by ratifying, thru her deputies, the non-surrender agreement — did nothing more than discharge a constitutional duty and exercise a prerogative that pertains to her office. (Emphases supplied)

Indeed, in the field of external affairs, the President must be given a larger measure of authority and wider discretion, subject only to the least amount of checks and restrictions under the Constitution.^[229] The rationale behind this power and discretion was recognized by the Court in Vinuya v. Executive Secretary, cited earlier.^[230]

Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of International Agreements and its Ratification, thus, correctly reflected the inherent powers of the President when it stated that the DFA "shall determine whether an agreement is an executive agreement or a treaty."

Accordingly, in the exercise of its power of judicial review, the Court does not look into whether an international agreement should be in the form of a treaty or an executive agreement, save in cases in which the Constitution or a statute requires otherwise. Rather, in view of the vast constitutional powers and prerogatives granted to the President in the field of foreign affairs, the task of the Court is to determine whether the international agreement is consistent with the applicable limitations."

EN BANC

[ G.R. No. 212426, January 12, 2016 ]

RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO "DODONG" NEMENZO, JR., SR. MARY JOHN MANANZAN, PACIFICO A. AGABIN, ESTEBAN "STEVE" SALONGA, H. HARRY L. ROQUE, JR., EVALYN G. URSUA, EDRE U. OLALIA, DR. CAROL PAGADUAN-ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY CASINO, PETITIONERS, VS. EXECUTIVE PAQUITO N. OCHOA, JR., DEPARTMENT OF NATIONAL DEFENSE SECRETARY VOLTAIRE GAZMIN, OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, JR., DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO ABAD, AND ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, RESPONDENTS.

[G.R. No. 212444]

BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS SECRETARY GENERAL RENATO M. REYES, JR., BAYAN MUNA PARTY-LIST REPRESENTATIVES NERI J. COLMENARES AND CARLOS ZARATE, GABRIELA WOMEN'S PARTY-LIST REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE JESUS, ACT TEACHERS PARTY-LIST REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST REPRESENTATIVE FERNANDO HICAP, KABATAAN PARTY-LIST REPRESENTATIVE TERRY RIDON, MAKABAYANG KOALISYON NG MAMAMAYAN (MAKABAYAN), REPRESENTED BY SATURNINO OCAMPO AND LIZA MAZA, BIENVENIDO LUMBERA, JOEL C. LAMANGAN, RAFAEL MARIANO, SALVADOR FRANCE, ROGELIO M. SOLUTA, AND CLEMENTE G. BAUTISTA, PETITIONERS, VS. DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR LOURDES YPARRAGUIRRE, AMBASSADOR J. EDUARDO MALAYA, DEPARTMENT OF JUSTICE UNDERSECRETARY FRANCISCO BARAAN III, AND DND ASSISTANT SECRETARY FOR STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP AS CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR THE PHILIPPINES ON EDCA, RESPONDENTS.

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON, ELMER LABOG, CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED BY ITS NATIONAL PRESIDENT FERDINAND GAITE, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO, REPRESENTED BY ITS NATIONAL PRESIDENT JOSELITO USTAREZ, NENITA GONZAGA, VIOLETA ESPIRITU, VIRGINIA FLORES, AND ARMANDO TEODORO, JR., PETITIONERS-IN-INTERVENTION,

RENE A.Q. SAGUISAG, JR., PETITIONER-IN-INTERVENTION.

D E C I S I O N

SERENO, C.J.:

https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/61546