Sec. 21. No treaty or
international agreement shall be valid and effective unless concurred in by at
least two-thirds (2/3) of all the Members of the Senate. (Art. VII,
1987 Philippine Constitution)
Applicability
This
provision lays down the general rule on treaties or international
agreements and applies to any form of treaty with a wide variety of
subject matter. All treaties or international agreements entered into by
the Philippines, regardless of subject matter, coverage, or particular
designation or appellation, requires the concurrence of the
Senate
to be valid and effective.
Who
has the power to ratify treaties?
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.
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 relations is (then) conceded.” Wielding
vast powers an influence, his conduct in the external affairs of the nation, as
Jefferson describes, is “executive altogether."
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.
It is the Court’s considered view that
the President, in ratifying the VFA and in submitting the same to the Senate
for concurrence, acted within the confines and limits of the powers vested in
him by the Constitution. It is of no moment that the President, in the exercise
of his wide latitude of discretion and in the honest belief that the VFA falls
within the ambit of Section 21, Article VII of the Constitution, referred the
VFA to the Senate for concurrence under the aforementioned
provision. Certainly, no abuse of discretion, much less a grave, patent
and whimsical abuse of judgment, may be imputed to the President in his act of
ratifying the VFA and referring the same to the Senate for the purpose of
complying with the concurrence requirement embodied in the fundamental
law. In doing so, the President merely performed a constitutional task and
exercised a prerogative that chiefly pertains to the functions of his
office. Even if he erred in submitting the VFA to the Senate for
concurrence under the provisions of Section 21 of Article VII, instead of
Section 25 of Article XVIII of the Constitution, still, the President may not
be faulted or scarred, much less be adjudged guilty of committing an abuse of
discretion in some patent, gross, and capricious manner. (BAYAN
[Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No.
138570, Oct. 10, 2000, En Banc [Buena])
What is a treaty?
A treaty, as defined by the Vienna
Convention on the Law of Treaties, is “an international instrument
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.”
There are many other terms used for a
treaty or international agreement, some of which are: act, protocol, agreement, compromis
d' arbitrage, concordat, convention, declaration, exchange of notes, pact,
statute, charter and modus vivendi. All writers, from
Hugo Grotius onward, have pointed out that the names or titles of international
agreements included under the general term treaty have little
or no significance. Certain terms are useful, but they furnish
little more than mere description.
Article 2(2) of the Vienna Convention
provides that “the provisions of paragraph 1 regarding the use of terms in the
present Convention are without prejudice to the use of those terms, or to the
meanings which may be given to them in the internal law of the State.” (Bayan vs. Zamora, ibid.)
What are executive agreements?
Agreements concluded
by the President which fall short of treaties are commonly referred to as executive agreements and are no less common
in our scheme of government than are the more formal instruments — treaties and
conventions.
They sometimes take
the form of exchanges of notes and at other times that of more formal documents
denominated "agreements" time or "protocols". The point
where ordinary correspondence between this and other governments ends and
agreements — whether denominated executive agreements or exchanges of notes or
otherwise — begin, may sometimes be difficult of ready ascertainment.
Hundreds of executive
agreements, other than those entered into under the trade-agreements act, have
been negotiated with foreign governments. . . . It would seem to be sufficient,
in order to show that the trade agreements under the act of 1934 are not
anomalous in character, that they are not treaties, and that they have abundant
precedent in our history, to refer to certain classes of agreements heretofore
entered into by the Executive without the approval of the Senate. They cover
such subjects as the inspection of vessels, navigation dues, income tax on
shipping profits, the admission of civil aircraft, customs matters, and commercial
relations generally, international claims, postal matters, the registration of
trademarks and copyrights, etcetera. Some of them were concluded not by
specific congressional authorization but in conformity with policies declared
in acts of Congress with respect to the general subject matter, such as tariff
acts; while still others, particularly those with respect of the settlement of
claims against foreign governments, were concluded independently of any
legislation." (39 Columbia Law Review, pp. 651, 755.) (Commissioner
of Customs v. Eastern Sea Trading, G.R. No. L-14279, October 31, 1961,
3 SCRA 351)
Distinction between international
agreements and executive agreements
1. 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. 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.
2. 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. (Commissioner of Customs v. Eastern Sea Trading,
ibid.)
Discuss the binding effect of treaties and executive agreements in
international law.
In international law, there is no difference
between treaties and executive agreements in their binding effect upon states
concerned, as long as the 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 (Bayan vs. Zamora, ibid.)
Does the Philippines recognize the binding effect of executive
agreements even without the concurrence of the Senate or Congress?
In our jurisdiction, we have recognized the binding
effect of executive agreements even without the concurrence of the Senate or
Congress. In Commissioner of Customs v. Eastern Sea Trading (ibid.), we
had occasion to pronounce:
“xxx 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 these has never been seriously questioned by our
courts." (Bayan vs. Zamora,
ibid.)
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