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.[1]
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.[2]
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.[3]
What is an executive Agreement?
Executive Agreements similar to treaties except that they do not require
legislative concurrence.[4]
What is the distinction between a treaty and an executive agreement?
The difference between the two is sometimes difficult of ready ascertainment.[5]
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.[6] International law
continues to make no distinction between treaties and executive agreements: they
are equally binding obligations upon nations.[7]
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[8] while
executive agreements may be validly entered into without such concurrence.[9]
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 require 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 concluded 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 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.[10]
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 concurrence by
Congress.[11]
The Department of Foreign Affairs in its press release[12] 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.[13] On the other hand, if what 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.[14]
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.[15]
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.[16]

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.[17]
In many ways, the President is the chief architect of the nations foreign policy; his
dominance in the field of foreign relations is (then) conceded.[18] Wielding vast
powers an influence, his conduct in the external affairs of the nation, as Jefferson
describes, is executive altogether."[19]
Since the President is the head of state in the system of government of the
Philippines, he is the authority in the countrys external or foreign relations.[20]
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[21] 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.[22]
b. Working procedure
Justice Isagani Cruz, in his book on International Law, describes the treaty-making
process in this wise[23]:
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 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
Philippine 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. [24]
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.[25] 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: (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 was expressed during the negotiation.[26]
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.[27]
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.[28] [emphasis supplied]
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. [29]
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. [30]
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 report. The
committee report is filed with the Bills and Index, which then includes it in the
Calendar of Business for second reading. [31]
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. [32]
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.[33] 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 States action by law. Also, people refers to all the people,
including minors.[34]
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.[35] 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.[36] 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[37] some of the restrictions to the State policy of public disclosure and
to the exercise of the 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 Bank
Deposits Act; 4) criminal matters or classified law enforcement matters; and 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.[38] 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,[39] 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.[40]
What is the significant role of the 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.[41] The role of the Senate is confined to simply giving or
withholding its consent to the ratification.[42]
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.[43] 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. [44]
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[45], 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,[46] 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 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.[47] 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.[48]
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.[49]

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.[50]
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.[51]
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 class as the latter.[52]