Being Right

By Jemy Gatdula

The Visiting Forces Agreement is one issue apparently that won’t go away quietly. News is that the Senate may file a Supreme Court case questioning President Duterte’s unilateral termination of it. In any event, certain interesting issues have cropped up, which readers may want clarification.

First is the distinction between treaties and executive agreements: What’s the difference? Under international law, none. They’re both international agreements equally binding on the parties. Under domestic law, practically also none; any differences, if ever, are on the procedural aspect.

For Philippine law, the primary provision is Article VII.21 of the Constitution, requiring treaties be “concurred in” by at least 2/3 of the Senate. Executive agreements do not require this concurrence.

Our Supreme Court in USAFFE Veterans held that executive agreements generally fall into two classes: 1.) agreements made purely as executive acts affecting external relations with or without legislative authorization, called presidential agreements, and 2.) agreements entered into in pursuance of acts of congress, designated as congressional executive agreements.

Who makes the call if an agreement is a treaty or executive agreement? Under EO 459/s.1997, the Department of Foreign Affairs.

The US approach is a bit similar to ours. For them, executive agreements come in three forms: 1.) Agreements concluded on the basis of the president’s constitutional authority (executive agreements); 2.) Agreements concluded pursuant to Congressional legislation (congressional-executive agreements); and 3.) Agreements concluded pursuant to a duly ratified previous treaty.

Executive agreements under the US are governed by the 2005 amendment to the Case-Zablocki Act (1 U.S.C. §112b), as implemented by 22 CFR Part 181. The decision on whether to call it an executive agreement is with the Office of Legal Adviser of the US State Department, under a procedure outlined in Circular 175 Procedure (Volume 11 of the State Department’s Foreign Affairs Manual, 11 FAM 720).

Some sectors have made a big deal about the US treating the VFA an executive agreement rather than a treaty. Ultimately, it doesn’t matter as international law considers both equally binding and this was confirmed by the Supreme Court.

Frankly, the Philippines itself should have treated the VFA as an executive agreement. The reason why it was classified a treaty (thus needing Senate concurrence) is a bit of a puzzle. Possibly a cautious reading of our Constitution’s Article XVIII.25, which says that “foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate.”

That somewhat opaque provision was unfortunately interpreted by the Supreme Court in Bayan vs. Zamora as making no distinction between foreign troops stationed transiently or for longer periods.

But the problem with the Supreme Court’s Bayan ruling is disregarding that the VFA proceeded from the 1951 Mutual Defense Treaty; one sees that in the latter’s preambulatory statement inferring acknowledgment of the latter’s Article II. In fairness, though, the Supreme Court was acting on then President Estrada’s volunteering the VFA a treaty in need of Senate concurrence.

Finally, is the president authorized to unilaterally withdraw the country from any international agreement? Some senators think not. Senator Drilon proposed a resolution declaring that “termination of, or withdrawal from, treaties and international agreements concurred in by the Senate shall be valid and effective only upon concurrence by the Senate.”

Now, whether or not President Duterte exercised such power prudently in the case of the VFA is another matter. Nevertheless, this column has consistently argued that the president is empowered, generally but perhaps with certain arguable exceptions, to unilaterally withdraw the country from any international agreement. The reasons, summarily, are:

• the president traditionally takes the lead in treaty matters;

• Philippine (and US) historical practice has devolved into presidential authority to unilaterally terminate treaties;

• the president has the authority to open or close diplomatic relationships with other countries;

• the president has the discretion not to submit a treaty for Senate concurrence;

• concomitantly, the “greater includes lesser” doctrine: the discretion not to include us in a treaty comes with the discretion to undo it;

• analogically: the president’s nominated top officials need confirmation by Congress and yet the president can afterward terminate such appointment without Congress’ leave;

• structure of the Constitution;

• The president’s executive power means enforcing (executing) provisions of laws, including treaties. However, unlike laws, treaties have built-in termination clauses. Thus, the president’s power to “execute” a treaty also logically includes the power to apply, if need be, that termination clause;

• relatedly, most treaties require merely notice from the government; and,

• the Vienna Convention on the Law of Treaties, Article 18, states that a treaty starts to apply rights upon signing, in our case by the Executive Branch.

This issue is pending before the Supreme Court. Interestingly, however, recent Senate treaty concurrences come with the condition that future terminations need Senate approval as well. Such conditionality is a distinct and separate constitutional question, which inevitably will demand resolution.

 

Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

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