EXECUTIVE AGREEMENTS: THE TIES THAT DON’T QUITE BIND

Alain B. BaguisiJilliane Joyce R. De Dumo

I. INTRODUCTION

There are two sides to the Executive Agreement; it is at once theexception and the rule. It is the exception to the constitutionalrequirement that international agreements become binding only with thevote of the Senate. It is likewise the fulfillment of the well-settledrule that, in foreign affairs, the president is supreme. This paperconfronts the Janus-faced nature of this legal instrument, andsurfaces the political process by how the President decides whichagreements he or she submits to the Senate for ratification, and whichhe or she can sign on his own.

Executive Power is vested in the President.1 Apart from havingcontrol over the executive department, its bureaus and offices,2 andbeing the Commander in Chief of the military,3 the President alsopossesses other powers worthy of examination, specifically, the“special authority over matters of foreign policy.”4

The power to control foreign relations is a potent tool as itgives to the President the power to enter into agreements with otherforeign nations which could affect Philippine development in the longhaul. This power and its effects has been brought to the fore inrecent years when the Philippine Government was immersed incontroversies brought about by dubious deals allegedly entered into bythe President with other foreign nations. For instance, the NationalBroadband Network-ZTE Corporation (NBN-ZTE) deal signed by thenPresident Gloria Macapagal-Arroyo with Chinese President Hu Jintaowhich supposedly was crafted to create a national broadband network,became the subject of media speculation as when allegations of bribery

1 CONST. art. VII, § 1.2 CONST. art. VII, § 17.3 CONST. art. VII, § 18.4 LEE EPSTEIN & THOMAS WALKER, CONSTITUTIONAL LAW FOR A CHANGING AMERICA 248 (2001).

and corruption were highlighted, despite the fact that the entiretransaction fell through.

The overarching law surrounding these so-called “internationalagreements” is Section 21, Article VII of the Constitution, whichstates:

“No treaty or international agreement shall be validand effective unless concurred in by at least two-thirds ofall the Members of the Senate."

Despite the required concurrence of two-thirds of all the members ofthe Senate, deals such as the NBN-ZTE were all agreed upon withoutSenate concurrence on the sole basis that these were all “executiveagreements” exempt from the coverage of the aforementioned provision.Given this, the question then is: whether the international agreemententered into by the President is a treaty or an executive agreement soas to require Senate concurrence.

Based on the records of the Constitutional Commission, it appearsthat the intention is to exclude executive agreements from the purviewof Section 21, Article VII. In fact, Commissioner Felicitas Aquinosuggested to make an explicit exception of executive agreements, butlater withdrew her proposal upon explanation by the sponsors thereofthat the section does not envisage such agreements.5 Thus, executiveagreements do not need the concurrence of the Senate.

In the United States, where the Philippines copied and adoptedthe provision of the U.S. Federal Constitution relating to the treaty-making power of the executive and the Senate,6 post World War IIAmericans were alarmed at the possibility that the United States mightbecome a party to international agreements which would operate toalter or destroy rights guaranteed to their citizens by theConstitution.7 The result has been the introduction in the U.S. Senateof the two proposals to amend the U.S. Constitution in order to limitthe power of the executive in making treaties and executiveagreements. These amendments, if adopted, would effect a substantialchange in the President’s power to make treaties and executive

5 See Record of the 1986 Constitutional Commission, Vol. II, 545-546.6 “He [President] shall have power, by and with the advice and consent of the Senate,to make treaties, provided two thirds of the Senators present concur; xxx”7 John Splinder, Executive Agreements and the Proposed Constitutional Amendments to the Treaty Power, 51Michigan Law Review 1202 (1953).

agreements and shift the balance of power in the conduct of foreignrelations from the executive to the legislative branch of government.8

One such proposal is the Bricker Amendment sponsored by Senator JohnW. Bricker of Ohio.9 This proposal was blocked through the interventionof President Eisenhower, and eventually failed in the Senate by asingle vote in 1954.10 The Bricker Amendment however was and is stillan unfinished controversy over the extent to which the Constitutionconfers upon the U.S. President independent authority to concludeinternational agreements.11

In order to contribute to the search for a more stable meaning ofinternational agreements, and thus produce guidelines to avoid thedanger of abuse by the Executive, legal scholars in the U.S. embarkedon a mission to study the different agreements entered into by theU.S. President and the U.S. Congress. The products of such studyinclude, among others: International Agreements without the Advice andConsent of the Senate;12 The Constitutionality of the Trade AgreementsAct;13 Shall the Executive Agreement Replace the Treaty?;14 Treaties andExecutive Agreements: A Reply;15 Executive Agreements and the ProposedConstitutional Amendments to the Treaty;16 and The Constitutional Powerof the President to Conclude International Agreements.17

In the Philippines, the consequences of these uncertainties weremanifested in several cases of transcendental public importanceassailing the validity of certain international agreements due to the

8 Id. 9 Id.10 John Vile, Reviewer, The Bricker Amendment Controversy: A Test of Eisenhower's Political Leadership byDuane Tananbaum, Presidential Studies Quarterly, Vol. 19, No. 3, I: The Congress, the Court, andthe Presidency at 200 Years and II: Presidential Greatness: Considerations on the FDRand Truman Presidencies, 651-653, (1989), available athttp://www.jstor.org/stable/40574395. 11 Craig Mathews, The Constitutional Power of the President to Conclude International Agreements, 64 TheYale Law Journal 345 (1955).12 James Barnett, International Agreements without the Advice and Consent of the Senate, 15 The YaleLaw Journal 63 (1905).13 Francis Sayre, The Constitutionality of the Trade Agreements Act, 39 Columbia Law Review 751(1939).14 Edwin Borchard, Shall the Executive Agreement Replace the Treaty?, 53 The Yale Law Journal 664(1944).15 Edwin Borchard, Treaties and Executive Agreements: A Reply, 54 The Yale Law Journal 616(1945).16 Splinder, supra note 7, at 1202. 17 Mathews, supra note 11, at 345.

lack of the mandatory Senate concurrence. In 2000, the Supreme Courtdeclared the constitutionality of the Visiting Forces Agreement (VFA)which according to the Court is a treaty entered into between theUnited States and the Philippines.18 In 2005, the Supreme Court alsotreated the Rome Statute as a treaty that needs ratification by thePresident and the concurrence by two-thirds vote of the Senate.19 In2007, the exchange of notes regarding a loan agreement between thePhilippine Government and that of Japan was adjudged as a bindingexecutive agreement without the need of Senate concurrence.20 In 2008,and in contrast to the 2007 loan agreement, the Japan-PhilippinesEconomic Partnership Agreement (JPEPA) was declared as a bilateraltrade treaty.21 And in 2009, the constitutionality of the VFA was againupheld, but this time, the Court declared that the VFA was simply animplementing agreement to the main RP-US Military Defense Treaty.22

Although these cases seemingly do not show any conflict indeclaring an international agreement as a treaty or an executiveagreement, nevertheless, the looming uncertainty on those agreementsnot concurred in by the Senate still remains.

For instance, in the years 1968 to 1969, the Philippines wasfaced with separate cases of two Filipinos killed by Americanservicemen inside the Subic Naval Base. Here, the Secretary of Justiceruled that under the Military Bases Agreement of 1947, the UnitedStates Government has primary jurisdiction over the case. On November14, 1968, Secretary of Justice Claudio Teehankee, Sr. forwarded to theSecretary of Foreign Affairs an opinion23 impugning the validity of theamendments (embodied in the Mendez-Blair exchange of notes in 1965) tothe Philippine-United States Military Bases Agreement of 1947.24

According to the Justice Secretary, “...the amendments (revising the originaljurisdiction provisions) of the Military Bases Agreement embodied in theExchange of Notes dated August 10, 1965, cannot be applied to thepresent case for the simple reason that the aforesaid amendments havenot yet been ratified by the Senate as required by the Constitution ofthe Philippines.” Thereafter, this same opinion was reiterated by then

18 Bayan Muna v. Zamora, G.R. No. 138570, Oct. 10, 2000.19 Pimentel v. Executive Secretary, G.R. No. 158088, Jul. 6, 2005.20 Abaya v. Ebdane, G.R. No. 167919, Feb. 14, 2007.21 Akbayan v. Aquino, G.R. No. 170516, Jul. 16, 2008.22 Nicolas v. Romulo, G.R. Nos. 175888, 176051, & 176222, Feb. 11, 2009.23 Letter dated 14 November 1968 of the Secretary of Justice to the Secretary ofForeign Affairs.24 I-2 DFATS 144, 61 Stat. 4019, 43 UNTS 271.

Justice Secretary Juan Ponce Enrile in his official opinion dated 9July 1969. Thus, the danger posed by executive agreements subvertingthe normal constitutional processes required for treaty ratificationappears to be common in both the United States and the Philippines.25

This uncertainty is well recognized in the Senate of thePhilippines. Two bills were actually proposed in the Senate in orderto address the issues that hound executive agreements in thePhilippines, namely:

1. Senate Bill No. 1793, filed on July 7, 2010 (still pending atthe Committee on Constitutional Amendments, Revision of Codesand Laws) by Senator Jinggoy P. Ejercito-Estrada, entitled “ANACT SUBJECTING TREATIES, INTERNATIONAL OR EXECUTIVE AGREEMENTSINVOLVING FUNDING IN THE PROCUREMENT OF INFRASTRUCTUREPROJECTS, GOODS, AND CONSULTING SERVICES, TO BE INCLUDED INTHE SCOPE AND APPLICATION OF PHILIPPINE PROCUREMENT LAWS,AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9184, OTHERWISEKNOWN AS THE GOVERNMENT PROCUREMENT REFORM ACT, AND FOR OTHERPURPOSES;” and 

2. Senate Bill No. 1920, filed on July 22, 2010 (still pending atthe Committee on Foreign Relations) by Senator Miriam DefensorSantiago, entitled “AN ACT MANDATING CONCURRENCE TOINTERNATIONAL AGREEMENTS AND EXECUTIVE AGREEMENTS.”

This paper is an attempt to provide a clear and stableapplication of executive agreements. The first part will discuss theevolution of the concept of executive agreements as applied in thejurisdiction of the United States. This will be traced in relation tothe principles of separation of powers and of checks and balances. Thesecond part will look at executive agreements as applied in Philippinejurisdiction, which will include a study on the understanding of theframers of our Constitution on the definition of an executiveagreement, and an examination of the relevant Supreme Court decisions.Similarly, the different Department of Justice (DOJ) opinions from1955-2010 and the records of the Department of Foreign Affairs (DFA)from 1946-2010 will be assessed in order to create a listing of thedifferent classes of executive agreements. Finally, and as an end

25 Justin Danilewitz, The Ties That Bind: U.S. Foreign Policy Commitments and the Constitutionality ofEntrenching Executive Agreements, 14 Journal of Transnational Law & Policy 87 (2004).

objective of this paper, the last part will attempt to provide aconcluding observation in the form of a restatement of the definitionand application of executive agreements in the Philippines.

II. THE TIES THAT BIND: A HISTORICAL PERSPECTIVE OF EXECUTIVE AGREEMENTS

The provisions of the 1987 Philippine Constitution relating tothe treaty-making power of the executive and the Senate was copied andadopted from the U.S. Federal Constitution.26 Section 2, Article II ofthe U.S. Constitution provides:

“He [President] shall have power, by and with theadvice and consent of the Senate, to make treaties, providedtwo thirds of the Senators present concur; xxx”

Meanwhile, Section 21, Article VII of the 1987 Philippine Constitutionstates:

“No treaty or international agreement shall be validand effective unless concurred in by at least two-thirds ofall the Members of the Senate.”

As a result, the Philippine Supreme Court has consistently citedU.S. jurisprudence when confronted with cases necessitating adetermination of whether an agreement is a treaty or an executiveagreement. The landmark cases of USAFFE v. Treasurer of the Philippines,27

Commissioner of Customs v. Eastern Sea Trading,28 and Gonzales v. Hechanova29 weredecided on the basis of doctrines enunciated in B. Altman & Co., vs. UnitedStates,30 U.S. v. Curtis-Wright Export Corporation,31 U.S. v. Belmont,32 and U.S. vs. Pink.33As in the case of Bayan v. Zamora,34 where the validity of the RP-US Non-Surrender Agreement was assailed, the Philippine Supreme Court alludedto the importance of considering U.S. jurisdiction on the concept ofexecutive agreement by stating:26 The genesis of the Philippine Constitution may be traced directly to the threeorganic laws that were enforced in the Islands prior to the passage of the Tydings-McDuffie Law. These were the Instructions of President McKinley to the secondPhilippine Commission on 7 April 1900; the Philippine Bill of 1 July 1902; andfinally, the Jones Law of 29 August 1916.27 G.R. No. 10500, Jun. 30, 1959.28 G.R. No. 14279, Oct. 31, 1961.29 G.R. No. 21897, Oct. 22, 1963.30 224 U. S. 583, May 13, 1912.31 299 U.S. 304, Dec. 21, 1936.32 301 U.S. 324, May 3, 1937.33 315 U.S. 203, Feb. 2, 1942.34 G.R. No. 159618, Feb. 1, 2011.

“In fact, in the US [United States] alone, theexecutive agreements executed by its President from 1980 to2000 covered subjects such as defense, trade, scientificcooperation, aviation, atomic energy, environmentalcooperation, peace corps, arms limitation, and nuclearsafety, among others.”

Following this, in order to understand the nature of the power ofthe President to enter into agreements with foreign nations orinstitutions, it is imperative to look at its original incarnation asprovided in U.S. jurisprudence.

A. TREATY-MAKING POWER: ORIGIN AND REASON OF EXISTENCE

Addressing the people of the State of New York, James Madison, inarguing that the legislative, executive, and judiciary departments areby no means totally separate and distinct from each other, pointed outthat the executive magistrate actually forms an integral part of thelegislative authority.35 Madison expressed the belief that thePresident “alone has the prerogative of making treaties with foreignsovereigns, which, when made, have, under certain limitations, theforce of legislative acts.”36 Alexander Hamilton also emphaticallydeclared that the Executive “is the most fit agent in the managementof foreign negotiations.”37 Faced with the issue on whether or not thispower should be surrendered or shared to the legislature, Hamiltonpronounced:

“To have intrusted the power of making treaties to theSenate alone, would have been to relinquish the benefits ofthe constitutional agency of the President in the conduct offoreign negotiations. It is true that the Senate would, inthat case, have the option of employing him in thiscapacity, but they would also have the option of letting italone, and pique or cabal might induce the latter ratherthan the former. Besides this, the ministerial servant ofthe Senate could not be expected to enjoy the confidence andrespect of foreign powers in the same degree with the

35 James Madison, The Federalist No. 47: The Particular Structure of the New Government and the Distribution ofPower Among Its Different Parts, 1 February 1788, available athttp://www.constitution.org/fed/federa00.htm.36 Id.37 Alexander Hamilton, The Federalist No. 75: The Treaty-Making Power of the Executive, Independent Journal,26 March 1788, available at http://www.constitution.org/fed/federa00.htm.

constitutional representatives of the nation, and, ofcourse, would not be able to act with an equal degree ofweight or efficacy. … Though it would be imprudent toconfide in him solely so important a trust, yet it cannot bedoubted that his participation would materially add to thesafety of the society.”38

One hundred and forty-eight years later, the ideas of Hamiltonhave been adopted by the U.S. Supreme Court. In the leading case ofUnited States v. Curtiss-Wright Export Corp.,39 where the delegation of power fromCongress to the President with regard to a foreign relations matterwas challenged, the Hamiltonian view was advanced by Mr. JusticeGeorge Sutherland. Justice Sutherland posited the doctrine that thepower of the national government in foreign relations is not one ofthe enumerated but of inherent powers; this was then combined withHamilton’s contention that control of foreign relations is exclusivelyan executive function with obvious implications for the power of thePresident.40 Justice Sutherland further added:

“As Marshall said in his great argument of March 7,1800, in the House of Representatives, "The President is thesole organ of the nation in its external relations, and itssole representative with foreign nations." Annals, 6thCong., Col. 613. The Senate Committee on Foreign Relations,at a very early day in our history (February 15, 1816),reported to the Senate, among other things, as follows:

The President is the constitutionalrepresentative of the United States with regardto foreign nations. He manages our concerns withforeign nations, and must necessarily be mostcompetent to determine when, how, and upon whatsubjects negotiation may be urged with thegreatest prospect of success. For his conduct,he is responsible to the Constitution. Thecommittee consider this responsibility thesurest pledge for the faithful discharge of hisduty. They think the interference of the Senatein the direction of foreign negotiationscalculated to diminish that responsibility, andthereby to impair the best security for the

38 Id.39 299 U.S. 304, Dec. 21, 1936.40 George Costello and Kenneth Thomas, The Constitution of the United States of America: Analysis andInterpretation, Congressional Research Service, Library of Congress (2000), available athttp://www.law.cornell.edu/anncon/.

national safety. The nature of transactions withforeign nations, moreover, requires caution andunity of design, and their success frequentlydepends on secrecy and dispatch.

U.S. Senate, Reports, Committee on Foreign Relations, vol.8, p 24.”41

In the Philippines, the Supreme Court has in a way adopted theHamiltonian view. This conclusion is supported by the fact that theCourt has consistently cited the work of the eminent legal scholar,Green Haywood Hackworth42 on international law in decidinginternational agreement cases such as the cases of USAFFE, Eastern andRomulo. The most cited statement of the eminent legal scholar states:

“The conduct of foreign relations of this country isin its nature essentially an executive function. ThePresident could not successfully deal with them, if everyagreement made by him on any and every question or subjectof discussion between this and foreign governments requiredthe approval of the Senate before becoming effective. Such aprocedure would so hamstring the President as to render theconduct of the foreign relations nigh impossible. It wouldnegate the underlying theme of the constitutional divisionof authority between the three branches of theGovernment.”43

41 299 U.S. 304, Dec. 21, 1936.42 Legal Adviser to the U.S. Department of State ((1931-1946) and Judge of theInternational Court of Justice (1946-1961).43 Hackworth, V Digest of International Law 397, Volume V (1943).

B. INTERNATIONAL AGREEMENTS WITHOUT THE ADVICE AND CONSENT OF THE SENATE

While the U.S. Constitution authorizes the President to maketreaties with the advice and consent of the Senate, the capacity ofthe United States to enter into agreements with other nations is notexhausted in the treaty-making power.44 The other “capacity” notincluded is the executive agreement, a “capacity” initiallydistinguished by the absence of the legal requirement to obtain theadvice and consent of two-thirds of the Senate.45

The U.S. Constitution recognizes a distinction between “treaties”and “agreements” or “compacts”.46 Section 10 of Article I which statesthat “No State shall enter into any Treaty, Alliance, orConfederation” and that “No State shall, without the Consent ofCongress . . . enter into any Agreement or Compact with another State,or with a foreign Power,” indicates that the Constitution itselfrecognizes the existence of international agreements other thantreaties.47 To a degree, the structure of the U.S. Constitutionsupports the existence of inherent presidential powers: while theconstitutional provisions conferring power on Congress in the field offoreign affairs are explicitly stated and limited, those defining thepowers of the President are much more broadly drawn.48

The U.S. Supreme Court in United States v. Curtiss-Wright Export Co., notedthat executive agreements although not “expressly affirmed” in theConstitution, they “nevertheless exist.”49 The President's authority toenter such an agreement, which, as previously mentioned, becomes aninternational obligation of the United States, is so indispensable to

44 Richard Erickson, The Making of Executive Agreements by The United States Department of Defense: AnAgenda for Progress, 13 Boston University International Law Journal 45, 53-54 (1995), citingMarjorie Whiteman, Executive Agreements, 14 Digest of International Law s. 22, 193 (1968).45 Id. at 54.46 Compare Article II, Sec. 2, cl. 2, and Article VI, cl. 2, with Article I, 10, cls. 1and 3.47 Mathews, supra note 11, at 351.48 Id. at 352.49 299 U.S. 304, Dec. 21, 1936, at 304, 318. (“The power to acquire territory bydiscovery and occupation, the power to expel undesirable aliens, the power to makesuch international agreements as do not constitute treaties in the constitutionalsense, none of which is expressly affirmed in the Constitution, neverthelessexist....”).

his power to initiate foreign policy that it may also reasonably bederived by implication from the language of the U.S. Constitution.50

Nowhere in the U.S. Constitution can there be found an explicitprovision granting to the President the power to concludeinternational agreements without the sanction of Congress or theSenate. But in the same vein, the US Constitution neither denies norforbids the exercise of such a right.51 This implied power of thePresident was once again affirmed in 2003 in the case of AmericanInsurance Association v. Garamendi52 in deciding on whether or not Californialegislature’s passage of the Holocaust Victim Insurance Relief Act(HVIRA) interfered with the federal government's sovereignty overforeign affairs established by Article I of the Constitution whereU.S. Supreme Court Justice David Souter delivered the followingopinion of the Court:

“Nor is there any question generally that there isexecutive authority to decide what that policy should be.Although the source of the President's power to act inforeign affairs does not enjoy any textual detail, thehistorical gloss on the "executive Power" vested in ArticleII of the Constitution has recognized the President's "vastshare of responsibility for the conduct of our foreignrelations. [reference omitted] While Congress holds expressauthority to regulate public and private dealings with othernations in its war and foreign commerce powers, in foreignaffairs the President has a degree of independent authorityto act. [reference omitted] ... "The President ...possesses in his own right certain powers conferred by theConstitution on him as Commander-in-Chief and as theNation's organ in foreign affairs" [reference omitted] … thePresident can "act in external affairs without congressionalauthority" [reference omitted] … the President has "the leadrole ... in foreign policy" [reference omitted] thePresident has "unique responsibility" for the conduct of"foreign and military affairs".53

This power has been exercised consistently since the beginning ofU.S. history, as reported by the U.S. Library of Congress:

50 Mathews, supra note 11, at 345, 351.51 United States v. Curtiss-Wright Export Co., 299 U.S. 304, Dec. 21, 1936.52 American Insurance Association v. Garamendi, 539 U.S. 415, 123 S.Ct. 2374, 23 Jun.2003.53 Id.

“During the first half–century of its independence,the United States was party to sixty treaties but to onlytwenty–seven published executive agreements. By thebeginning of World War II, there had been concludedapproximately 800 treaties and 1,200 executive agreements.In the period 1940–1989, the Nation entered into 759treaties and into 13,016 published executive agreements.Cumulatively, in 1989, the United States was a party to 890treaties and 5,117 executive agreements. To phrase itcomparatively, in the first 50 years of its history, theUnited States concluded twice as many treaties as executiveagreements. In the 50–year period from 1839 to 1889, a fewmore executive agreements than treaties were entered into.From 1889 to 1939, almost twice as many executive agreementsas treaties were concluded. In the period since 1939,executive agreements have comprised more than 90% of theinternational agreements concluded.”54

As of 2006, the “more recent occupants” of the White House haveconcluded nearly 15,000 sole executive agreements in the last fiftyyears.55 With such number, the authority of the President to negotiateand conclude these agreements becomes an incontrovertible fact. Again,in Garamendi, the Court held that “cases have recognized that thePresident has authority to make ‘executive agreements’ with othercountries, requiring no ratification by the Senate or approval byCongress, this power having been exercised since the early years ofthe Republic.”56 Thus, Francis Sayre, former U.S. High Commissioner tothe Philippines (1939-1942), and whose work has also been cited by theSupreme Court of the Philippines in international agreement cases,posited:

“Certainly the right of the Executive to enter intobinding executive agreements without the necessity ofsubsequent Congressional approval has been confirmed by longusage. [reference omitted] From the earliest days of ourhistory we have entered into executive agreements coveringsuch subjects as commercial and consular relations, most-favored-nation rights, patent rights, trade-mark and

54 Costello & Thomas, supra note 40.55 Bradford Clark, Domesticating Sole Executive Agreements, 93 Virginia Law Review 1573, 1582(2007), citing Michael Van Alstine, Executive Aggrandizement in Foreign Affairs Lawmaking, 54 UCLAL. Rev. 309, 319 (2006).56 American Insurance Association v. Garamendi, 539 U.S. 415, 123 S.Ct. 2374, 23 Jun.2003, citing Dames & Moore v. Regan, 453 U. S. 654, 679, 682-683 (1981); UnitedStates v. Pink, 315 U. S. 203, 223, 230 (1942); and United States v. Belmont, 301 U. S.324, 330-331 (1937).

copyright protection, postal and navigation arrangements andthe settlement of claims. [reference omitted] The validityof these has never been seriously questioned by ourcourts.”57

C. EXECUTIVE AGREEMENTS

The basis of the U.S. President's power to make agreements withother nations is said to stem from three sources: his power asexecutive, as Commander-in-Chief, and as the sole diplomaticrepresentative of the United States.58 It is true, however, that thereare a number of executive agreements which have been upheld by theSupreme Court that cannot be attributed either to the President'spower as Commander-in-Chief or as the sole diplomatic representativeof the United States, and which therefore must either have been madeunder an inherent executive power or through some delegation of powerby Congress.59

In the United States, there are three kinds of internationalagreements, which are distinguishable by the legal authority uponwhich they rest.60 First, are treaties that require Senate consent toratification; second, are congressional-executive agreements that areinternational agreements implemented by both houses of Congress; andlast, are executive agreements that the Executive executesunilaterally without the consent of any part of Congress (soleexecutive agreements).61

Section 2, Article II of the U.S. Constitution provides that thePresident may make a treaty if two–thirds of the Senate concurs.62 The1969 Vienna Convention on the Law of Treaties broadly defines “treaty”as any “international agreement concluded between States in writtenform and governed by international law, whether embodied in a singleinstrument or in two or more related instruments, and whatever itsparticular designation.”63

57 Sayre, supra note 13, at 751, 754.58 Spindler, supra note 7, at 1207.59 Id. at 1208.60 Erickson, supra note 44, at 55.61 Ved Nanda & David Pansius, 2 Litigation of International Disputes in U.S. Courts § 10:2 (2011).62 Restatement Third, Foreign Relations Law of the United States § 303, comment a.

Congressional-executive agreements are generally negotiated bythe President and approved by both Houses of Congress through ordinarylegislation adopted, pursuant to Section 7, Article I (“LegislativeProcess”).64 A congressional-executive agreement effects aninternational agreement through legislation by both houses of Congressunder its Article I powers, rather than through two–thirds approval bythe Senate pursuant to the executive's Article II powers.65 Mostfrequently, congressional-executive agreements are employed ininstances where implementing legislation from Congress would berequired in any event and the executive wishes to avoid potentialdefeat of an agreement through the inability to obtain the supra-majority two–thirds approval of the Senate.66

There is sole executive agreement when the President acts on hissole authority.67 This agreement usually comprises the ordinary dailygrist of the diplomatic mill.68 Among these are those which apply tominor territorial adjustments, boundary rectifications, the policingof boundaries, the regulation of fishing rights, and private pecuniaryclaims against another government or its nationals, which according toan eminent scholar’s words, are – “the mere private rights ofsovereignty.”69 These agreements other than treaties are usually calledexecutive agreements because their chief use, but by no meansexclusive, is in the daily conduct of foreign affairs by the executivebranch of government.70

According to the U.S. Department of State, internationalagreements brought into force with respect to the U.S. on aconstitutional basis other than with the advice and consent of theSenate are “international agreements other than treaties” and areoften referred to as “executive agreements.”71

63 art. 2, s 1(a), Vienna Convention on the Law of Treaties, May 23, 1969, 1155U.N.T.S. 331. 64 Clark, supra note 55, at 1586.65 Nanda & Pansius, supra note 61.66 Id.67 Erickson, supra note 44, at 55.68 Costello & Thomas, supra note 40.69 Id. citing JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1397 (BOSTON: 1833).70 Spindler, supra note 7, at 1202, 1206.71 See U.S. Department of State Official Website, available athttp://www.state.gov/s/l/treaty/index.htm.

D. U.S. JURISPRUDENCE ON EXECUTIVE AGREEMENTS

The evolution of the concept of executive agreements arereflected in a number of cases decided by the U.S. Supreme Court: fromrecognizing the foundations of the President’s power, to thedefinition of a treaty, and finally, to the emergence of executiveagreements.

In B. Altman & Co., vs. United States,72 certain articles were assessedforty-five percent (45%) ad valorem tax; however, protestants insistthat only fifteen percent must be assessed in accordance with theagreement between the United States and France, and that they had aright of direct appeal to the Supreme Court because the said agreementis a “treaty” within the meaning of §5 of the Circuit Court of AppealsAct.

To do away with the procedural question of whether or not adirect appeal may be entertained by the U.S. Supreme Court, the latterfirst explored the concept of a “treaty” and then proceeded todetermine if the agreement between the U.S. and France fell within theconfines of that concept. In defining a treaty, the Supreme Court saidthat it is “a compact made between two or more independent nations,with a view to the public welfare.”73 As thus applied, the agreementhas been characterized as a treaty:

“…While it may be true that this commercial agreement,made under authority of the Tariff Act of 1897, § 3, was nota treaty possessing the dignity of one requiringratification by the Senate of the United States, it was aninternational compact, negotiated between therepresentatives of two sovereign nations, and made in thename and on behalf of the contracting countries, and dealingwith important commercial relations between the twocountries, and was proclaimed by the President. If nottechnically a treaty requiring ratification, nevertheless itwas a compact authorized by the Congress of the UnitedStates, negotiated and proclaimed under the authority of itsPresident. We think such a compact is a treaty under theCircuit Court of Appeals Act, and, where its construction is

72 224 U. S. 583, May 13, 1912.73 Id.

directly involved, as it is here, there is a right of reviewby direct appeal to this Court…”74

In the similar case of U.S. v. Belmont,75 a Russian corporationdeposited a sum of money with August Belmont, a private banker in NewYork City. Belmont died and executors were appointed in his will.Meanwhile, the Soviet Government enacted a decree by which itdissolved, terminated and liquidated the corporation, and nationalizedand appropriated all of its property and assets of every kind andwherever situated, including the deposit account with Belmont. Uponbecoming a property of the Soviet Government, the latter assigned topetitioner all amounts under the corporation’s deposit account withBelmont. Belmont however failed and refused to pay the amount upondemand duly made by the U.S.

Taking judicial notice of the fact that “the U.S. Presidentrecognized the Soviet Government and that normal diplomatic relationswere established between that government and the Government of theUnited States,”76 the U.S. Supreme Court held that the immediate effectof this was “to validate, so far as this country is concerned, allacts of the Soviet Government here involved from the commencement ofits existence.”77 Thus, “the assignment and the agreements inconnection therewith did not, as in the case of treaties, as that termis used in the treaty-making clause of the Constitution (Art. II,§ 2), require the advice and consent of the Senate.”78

The pronouncement in Belmont gave rise to the possibility that,while a treaty “signifies ‘a compact made between two or moreindependent nations with a view to the public welfare’ (Altman & Co.v. United States, 224 U.S. 583, 600),” there are other forms ofagreement which the President may be able to undertake:

“…But an international compact, as this was, is notalways a treaty which requires the participation of theSenate. There are many such compacts, of which a protocol,a modus vivendi, a postal convention, andagreements [p331] like that now under consideration areillustrations. See 5 Moore, Int. Law Digest, 210-221. Thedistinction was pointed out by this court in

74 Id.75 301 U.S. 324, May 3, 1937.76 Id.77 Id.78 Id.

the Altman case, supra, which arose under § 3 of the TariffAct of 1897, authorizing the President to concludecommercial agreements with foreign countries in certainspecified matters. We held that, although this might not bea treaty requiring ratification by the Senate, it was acompact negotiated and proclaimed under the authority of thePresident, and as such was a "treaty" within the meaning ofthe Circuit Court of Appeals Act, the construction of whichmight be reviewed upon direct appeal to this court…”79

These doctrines were again mentioned in U.S. vs. Pink,80 whereinanother Russian company (First Russian Insurance Co.) set aboutestablishing its operations in New York by opening a branch therein in1907. When the Russian Government nationalized the business and all ofits property, wherever situated, said insurance company discharged andcancelled all its debts and the rights of all shareholders. OnNovember 14, 1934, the United States brought an action in the FederalDistrict Court for the Southern District of New York seeking torecover the assets in the hands of respondent.

Speaking through Mr. Justice Sutherland, the U.S. Supreme Courtreaffirmed that in the conduct of foreign relations, such was“committed by the Constitution to the political departments of theFederal Government” and that the “propriety of the exercise of thatpower is not open to judicial inquiry.”81 It further said that:

“External powers of the United States are to beexercised without regard to state laws or policies. Thesupremacy of a treaty in this respect has been recognizedfrom the beginning. And it added that ‘all internationalcompacts and agreements’ are to be treated with similardignity, for the reason that complete power overinternational affairs is in the national government, and isnot and cannot be subject to any curtailment or interferenceon the part of the several states.”

Despite the passage of time, questions regarding the externalpower of the President still came into force. In U.S. v. Curtis-Wright ExportCorporation,82 defendant was charged with conspiring to sell certain armsof war (fifteen machine guns) in Bolivia, a country engaged in armed

79 315 U.S. 203, Feb. 2, 1942.80 Id.81 Id.82 299 U.S. 304, Dec. 21, 1936.

conflict, in violation of a Joint Resolution of Congress approved on28 May 1934. Holding that the Joint Resolution and the implementationof such by the President is a valid exercise of executive powers, theSupreme Court held:

“Not only, as we have shown, is the federal power overexternal affairs in origin and essential character differentfrom that over internal affairs, but participation in theexercise of the power is significantly limited. In this vastexternal realm, with its important, complicated, delicateand manifold problems, the President alone has the power tospeak or listen as a representative of the nation. He makestreaties with the advice and consent of the Senate; but healone negotiates. Into the field of negotiation the Senatecannot intrude, and Congress itself is powerless to invadeit. As Marshall said in his great argument of March 7, 1800,in the House of Representatives, “The President is the soleorgan of the nation in its external relations, and its solerepresentative with foreign nations.” Annals, 6th Cong.,col. 613.

xxx

We deem it unnecessary to consider seriatim theseveral clauses which are said to evidence theunconstitutionality of the Joint Resolution as involving anunlawful delegation of legislative power. It is enough tosummarize by saying that, both upon principle and inaccordance with precedent, we conclude there is sufficientwarrant for the broad discretion vested in the President todetermine whether the enforcement of the statute will have abeneficial effect upon the reestablishment of peace in theaffected countries; whether he shall make proclamation tobring the resolution into operation; whether and when theresolution shall cease to operate and to make proclamationaccordingly, and to prescribe limitations and exceptions towhich the enforcement of the resolution shall be subject.”83

Thus, as it now stands, the President’s supremacy in mattersrelating to foreign relations has achieved doctrinal status. Not onlyis such competence highly regarded by the judiciary or thelegislative, both co-equal branches of the government, but it has alsopaved way for the recognition that the President can enter into other

83 Id.

forms of agreements aside from treaties – that is, executiveagreements.

III. EXECUTIVE AGREEMENTS IN PHILIPPINE JURISDICTION

A. ACCORDING TO THE FRAMERS OF OUR CONSTITUTION

The substantial debate among the members of the ConstitutionalCommission (CONCOM) on the concept of executive agreement is a resultof the proposed resolution of Commissioner Hilario Davide, Jr.entitled “Resolution To Incorporate In The New Constitution AProvision Requiring The Approval Or Consent Of The Legislature For TheEffectivity And Validity Of Treaties, Executive Agreements AndRecognition Of States Or Governments,” which would eventually becomeSection 21, Article VII of our present Constitution.84

The debates on this resolution centered on whether or notexecutive agreements should be reviewed by the legislature. Beforethis could be answered, however, the term “executive agreement” had tofirst be defined bearing in mind such concepts as “internationalagreements” and “treaty.” It is in that discourse that the concept ofa treaty as different from an international agreement was firstestablished. According to Commissioner Felicitas Aquino, “[a] treatyis a contract between parties which is in the nature of internationalagreement and also a municipal law in the sense that the people arebound.”

Commissioner Roberto Concepcion and Commissioner Felicitas Aquinoalso had an exchange of ideas on what executive agreements are.Commissioner Aquino defined executive agreements as decisions of theexecutive “which affects external relations.”85 She also posited thatthere are two types of executive agreements: one is independent of thelegislative and the other is in pursuance of legislativeauthorization. She further noted that “the first kind might take theform of just conventions or exchanges of notes or protocol while the

84 CONST. art. VII, § 21. No treaty or international agreement shall be valid andeffective unless concurred in by at least two-thirds of all the Members of the Senate.85 See Record of the 1986 Constitutional Commission, Volume II.

other, which would be pursuant to the legislative authorization, maybe in the nature of commercial agreements.”86 Meanwhile, according toCommissioner Concepcion “[e]xecutive agreements are generally made toimplement a treaty already enforced or to determine the details forthe implementation of the treaty” – “details of which do not affectthe sovereignty of the State.”87 To complement this, CommissionerAquino agreed with the latter definition adding that “except that itdoes not cover the first kind of executive agreement which is justprotocol or an exchange of notes and this would be in the nature ofreinforcement of claims of a citizen against a country, for example.”88

Commissioner Aquino then proposed an amendment, which read: “No treatyor international agreement EXCEPT EXECUTIVE AGREEMENTS shall be validand effective,” in the belief that executive agreements should beexcepted from the requirement of concurrence of two-thirds of theMembers of the Senate.89

Nonetheless, for Commissioner Fr. Joaquin Bernas, this amendmentis unnecessary. He pointed out the Supreme Court decision inCommissioner of Customs v. Eastern Sea Trading90 where the “right of the executiveto enter into binding agreements without the necessity of subsequentCongressional approval has been confirmed by long usage... [t]hevalidity of this has never been seriously questioned by our Courts.”91

He also cited the case of Gonzales v. Hechanova92 as instructive as to thenature of executive agreements.93 Furthermore, Fr. Bernas added thatwhat are referred to as international agreements which needconcurrence of at least two-thirds of the members of the Senate arethose which are permanent in nature, as opposed to executiveagreements which are temporary.94

It is in this reason that Commissioner Aquino decided to withdrawher proposed amendment.95 The deliberations eventually adopted theprinciple that international agreements do not include the termexecutive agreements.

86 Id.87 Id.88 Id.89 Id.90 G.R. No. 14279, Oct. 31, 1961.91 Id.92 G.R. No. 21897, Oct. 22, 1963.93 Id.94 Id.95 Id.

B. PHILIPPINE JURISPRUDENCE ON EXECUTIVE AGREEMENTS

In Philippine jurisdiction, the definition of what constitutes anexecutive agreement has achieved doctrinal status by the resolution ofseveral major cases which brought into light executive agreements notconcurred in by the Senate.

In USAFFE v. Treasurer of the Philippines,96 the issue concerned the validityof the Romulo-Snyder Agreement in which the Philippines undertook toreturn to the U.S. Government thirty five million dollars advanced bythe latter to the former for the payment of Philippine monetaryobligations assumed by the U.S. Government as a result of the inductof the Philippine Armed Forces into the U.S. Army. Anything in excess,or those amounts which have not been expended, are to be returned tothe U.S. Government in ten annual installments.

On the argument that the Romulo-Snyder Agreement is void for lackof concurrence of the Senate to make it binding, the PhilippineSupreme Court disagreed, stating that a “…treaty is not the only formthat an international agreement may assume. For the grant of thetreaty-making power to the Executive and the Senate does not exhaustthe power of the government over international relations.Consequently, executive agreements may be entered with other statesand are effective even without the concurrence of the Senate… It isobserved in this connection that from the point of view of theinternational law, there is no difference between treaties andexecutive agreements in their binding effect upon states concerned aslong as the negotiating functionaries have remained within theirpowers...”97

According to the Court, there are two classes of executiveagreements: “(1) agreements made purely as executive acts affectingexternal relations and independent of or without legislativeauthorization, which may be termed as presidential agreements, and (2)

96 G.R. No. 10500, Jun. 30, 1959.97 Id.

agreements entered into in pursuant to acts of Congress, which havebeen designated as Congressional-Executive Agreements.”98

The Agreement in the USAFFE case “may fall under any of these twoclasses, for precisely on September 18, 1946, Congress of thePhilippines specifically authorized the President of the Philippinesto obtain such loans… Even granting, arguendo, that there was nolegislative authorization, it is hereby maintained that the Romulo-Snyder Agreement was legally and validly entered into to conform tothe second category, namely, ‘agreements entered into purely asexecutive acts without legislative authorization.’ This secondcategory usually includes money agreements relating to the settlementof pecuniary claims of citizens…”99

Thus, USAFFE is instructive not only on the nature of executiveagreements vis-à-vis the traditional treaties that may be explored bythe government, but also in the delimitation of the scope of executiveagreements into several categories – one of which is moneyarrangements “relating to the settlement of pecuniary claims of thecitizens.”100 This pronouncement became the Philippine government’sbasis for classifying consequent arrangements with foreign nations asexecutive agreements when the subject is economic in character.

In the same vein, the case of Eastern Sea Trading, also enunciatedseveral categories of executive agreements outside the economic scopeembodied in USAFFE, such as “…inspection of vessels, navigation dues,income tax on shipping profits, the admission of civil aircraft,customs matters, and commercial relations generally, internationalclaims, postal matters, the registration of trademarks and copyrights,etc.”

Note that Eastern Sea Trading was premised on the validity ofExecutive Order No. 328 (E.O. 328) which sought to implement apurported executive agreement which extended the effectivity of thePhilippines’ Trades and Financial Agreements with Japan, without anySenate concurrence. On that argument, the Supreme Court said: “…theright of the Executive to enter into binding agreements without thenecessity of subsequent Congressional approval has been confirmed bylong usage. From the earliest days of our history we have entered into

98 Id.99 Id.100 Id.

executive agreements covering such subjects as commercial and consularrelations, most-favored-nation rights, patent rights, trademark andcopyright protection, postal and navigation arrangements and thesettlement of claims. The validity of these have never been seriouslyquestioned by our courts.”101 It also said that:

“Agreements concluded by the President which fallshort of treaties are commonly referred to as executiveagreements and are no less common in our scheme ofgovernment than are the more formal instruments — treatiesand conventions. They sometimes take the form of exchangesof notes and at other times that of more formal documentsdenominated "agreements" time or "protocols". The pointwhere ordinary correspondence between this and othergovernments ends and agreements — whether denominatedexecutive agreements or exchanges of notes or otherwise —begin, may sometimes be difficult of ready ascertainment…

…[I]t would be useless to undertake to discuss herethe large variety of executive agreements as such, concludedfrom time to time… trade agreements under the act of 1934are not anomalous in character, that they are not treaties,and that they have abundant precedent in our history… Theycover such subjects as the inspection of vessels, navigationdues, income tax on shipping profits, the admission of civilaircraft, customs matters, and commercial relationsgenerally, international claims, postal matters, theregistration of trademarks and copyrights, etcetera…”102

(emphasis supplied)

Decades later, the Supreme Court promulgated the case of Gonzales v.Hechanova,103 which limited the power of the President to enter intoexecutive agreements. In Gonzales, Executive Secretary Rufino G.Hechanova authorized the importation of 67,000 tons of foreign ricefrom Vietnam and Burma, which were objected to by petitioners becauseRepublic Act No. 3452 (which allegedly repeals or amends Republic ActNo. 220) explicitly prohibited the importation of rice and corn by“the Rice and Corn Administration or any other government agency…”Respondent Hechanova argued that in case of conflict between the saidRepublic Acts and the contracts with foreign governments, the“conflict must be resolved — under the American jurisprudence — infavor of the one which is latest in point of time…”101 G.R. No. 14279, Oct. 31, 1961.102 Id.103 G.R. No. 21897, Oct. 22, 1963.

Finding no pretense in such argument, the Supreme Court said thatsaid agreements do not fall into executive agreements because theparties themselves did not seem to regard the contracts as such. Evenassuming that they did, the same may not be considered constitutionalas it was inconsistent with local statutes already in force. Inparticular, it said:

“Although the President may, under the Americanconstitutional system enter into executiveagreements without previous legislative authority, hemay not, by executive agreement, enter into a transactionwhich is prohibited by statutes enacted prior thereto. Underthe Constitution, the main function of the Executive is toenforce laws enacted by Congress… He may not defeatlegislative enactments that have acquired the status of law,by indirectly repealing the same through an executiveagreement providing for the performance of the very actprohibited by said laws.”104

As may be noted, “almost half a century has elapsed since theCourt rendered its decision in Eastern Sea Trading [or in this case,Gonzales]. Since then, the conduct of foreign affairs has become morecomplex and the domain of international law wider, as to include suchsubjects as human rights, the environment, and the sea.  In fact, inthe U.S.  alone, the executive agreements executed by its Presidentfrom 1980 to 2000 covered subjects such as defense, trade, scientificcooperation, aviation, atomic energy, environmental cooperation, peacecorps, arms limitation, and nuclear safety, among others. Surely, theenumeration in Eastern Sea Trading cannot circumscribe the option of eachstate on the matter of which the international agreement format wouldbe convenient to serve its best interest.”105  

Nevertheless, despite the so-called complexities brought about bythe passage of time, the supremacist principle of the executive inmatters relating to foreign relations has been sustained. In Pimentel v.Executive Secretary,106 while the case did not involve the classification ofan agreement as either a treaty or an executive agreement, the same isstill instructive as to the basic foundations of the executive’s powerover foreign relations. Ruling that it cannot compel the President to104 Id.105 Bayan v. Romulo, G.R. No. 159618, Feb. 1, 2011.106 Pimentel v. Executive Secretary, G.R. No. 158088, Jul. 6, 2005.

transmit the text of the Rome Statute to the Senate for itsconcurrence, the Supreme Court held that “[i]n our system ofgovernment, the President, being the head of state, is regarded as thesole organ and authority in external relations and is the country’ssole representative with foreign nations.  As the chief architect offoreign policy, the President acts as the country’s mouthpiece withrespect to international affairs.  Hence, the President is vested withthe authority to deal with foreign states and governments, extend orwithhold recognition, maintain diplomatic relations, enter intotreaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority tonegotiate with other states.”107 Yet, the Constitution limits such powerby requiring the concurrence of the Senate by a two-thirds vote of allits members before treaties may become valid and effective in thePhilippines. This process was deemed “essential to provide a check onthe executive in the field of foreign relations.  By requiring theconcurrence of the legislature in the treaties entered into by thePresident, the Constitution ensures a healthy system of checks andbalance necessary in the nation’s pursuit of political maturity andgrowth.”108

However, despite such check, “it should be emphasized that underour Constitution, the power to ratify is vested in the President,subject to the concurrence of the Senate.  The role of the Senate,however, is limited only to giving or withholding its consent, orconcurrence, to the ratification. Hence, it is within the authority ofthe President to refuse to submit a treaty to the Senate or, havingsecured its consent for its ratification, refuse to ratifyit. Although the refusal of a state to ratify a treaty which has beensigned in its behalf is a serious step that should not be takenlightly, such decision is within the competence of the Presidentalone, which cannot be encroached by this Court via a writ of mandamus.This Court has no jurisdiction over actions seeking to enjoin thePresident in the performance of his official duties.  The Court,therefore, cannot issue the writ of mandamus prayed for by thepetitioners as it is beyond its jurisdiction to compel the executivebranch of the government to transmit the signed text of Rome Statuteto the Senate.”109

107 Id.108 Id.109 Id.

Moreover, in consonance with the power of the President to enterinto executive agreements, the Supreme Court promulgated Abaya v. Ebdane110

with the intent of identifying the factors which may be used to definean executive agreement: the parties involved, and the form required.In this case, in accordance with the agreement reached by theGovernment of Japan and the Philippine Government, as expressed in theExchange of Notes between the representatives of the two governments,the Philippines was granted a loan by the Japan Bank for InternationalCooperation (JBIC). Loan Agreement No. PH-P204 specifically mentionsthat the loans were to be extended “with a view to promoting theeconomic stabilization and development efforts of the Republic of thePhilippines.”111

After the loans were granted and releases, Bids and ActionsCommittee of the Department of Public Works and Highways proceeded tobid out a contract which seeks to finance the rehabilitation of theCatanduanes Circumferential Road. The contract was eventually awardedto responded China Road and Bridge Corporation which had an originalbid price of P952,564,821.71 despite the Approved Budget for theContract (ABC) was only P738,710,563.67. This according to thepetitioners was indirect violation of Republic Act No. 9184 or theGovernment Procurement Reform Act of 2003.

To further solidify their position, petitioners contended thatthe Loan Agreement is “neither an international nor an executiveagreement that would bar the application of R.A. 9184 because to beconsidered as such, the parties must be two (2) sovereigns or stateswhereas in this loan agreement, the parties were the Philippinegovernment and the JBIC, a banking agency of Japan, which has aseparate judicial personality from the Japanese government.”112

In ruling otherwise, the Supreme Court held that the LoanAgreement, taken in conjunction with the Exchange of Notes between thetwo parties, is an executive agreement. First, the Loan Agreement wasexecuted by and between two government representatives: AmbassadorExtraordinary and Plenipotentiary of Japan to the Philippines, and theDFA Secretary. Second, it was “subsequently executed and it declaredthat it was so entered by the parties ‘[i]n the light of the contentsof the Exchange of Notes between the Government of Japan and the

110 Abaya v. Ebdane, G.R. No. 167919, Feb. 14, 2007.111 Id.112 Id.

Government of the Republic of the Philippines… Under thecircumstances, the JBIC may well be considered an adjunct of theJapanese Government.”113

In this connection, it is well to understand the definition of an“exchange of notes” under international law. It was defined as a“record of a routine agreement that has many similarities with theprivate law contract. The agreement consists of the exchange of twodocuments, each of the parties being in the possession of the onesigned by the representative of the other. Under the usual procedure,the accepting State repeats the text of the offering State to recordits assent. The signatories of the letters may be governmentMinisters, diplomats or departmental heads. The technique of exchangeof notes is frequently resorted to, either because of its speedyprocedure, or, sometimes, to avoid the process of legislativeapproval.”114

Moreover, an exchange of notes is “considered a form of anexecutive agreement, which becomes binding through executive actionwithout the need of a vote by the Senate or Congress.”115 Citing theEastern Sea Trading case, the Supreme Court again held that “[t]he pointwhere ordinary correspondence between this and other governments endsand agreements – whether denominated executive agreements or exchangeof notes or otherwise – begin, may sometimes be difficult of readyascertainment. It would be useless to undertake to discuss here thelarge variety of executive agreements as such, concluded from time totime. Hundreds of executive agreements, other than those entered intounder the trade-agreements act, have been negotiated with foreigngovernments.”116

In the same manner, Bayan v. Romulo117 explained the factors relevantto describing an executive agreement, but construed them in a liberalfashion. Here, petitioner Bayan sought to nullify the Non-Surrender(bilateral) Agreement concluded by and between the Philippines and theUnited States of America. Both states agree that they will not, absentthe express consent of the other party, surrender or transfernationals of one party to any international tribunal, unless suchtribunal has been established by the U.N. Security Council. Such113 Id.114 Id.115 Id.116 Id.117 G.R. No. 159618, Feb. 1, 2011.

agreement was made via an exchange of notes dated 13 May 2003 wherethe DFA Secretary agreed with and accepted the U.S. proposals embodiedunder the U.S. Embassy Note. Bayan alleges that the Agreement partakesof the nature of a treaty which could not have been validly contractedbecause it was not submitted to the Senate for concurrence. It alsosubmits that “the subject of the Agreement does not fall under any ofthe subject-categories that are enumerated in the Eastern Sea Trading case,and that may be covered by an executive agreement.”118

Deciding against the petitioners, the Supreme Court made a veryliberal interpretation of what an executive agreement is. It said that“there are no hard and fast rules on the propriety of entering, on agiven subject, into a treaty or an executive agreement as aninstrument of international relations…”119 Verily, “[t]he categorizationof subject matters that may be covered by international agreementsmentioned in Eastern Sea Trading is not cast in stone.” It further notedthat “[t]he primary consideration in the choice of the form ofagreement is the parties’ intent and desire to craft an internationalagreement in the form they so wish to further their respectiveinterests” or “convenient to serve [their] best interest.”120

Adding to this liberality is the Supreme Court’s interpretationthat an “exchange of notes” is a term which may be usedinterchangeably with “executive agreements.” It also said that“executive agreements concluded by the President “sometimes take theform of exchange of notes and at other times that of more formaldocuments denominated ‘agreements’ or ‘protocols.’”121 Moreover, itdiscussed that “[t]he technique of exchange of notes is frequentlyresorted to, either because of its speedy procedure, or, sometimes, toavoid the process of legislative approval.”122 By doing so, the SupremeCourt recognized the wide latitude of discretion given to theExecutive in foreign relations matters where “[b]y constitutional fiatand by the nature of his or her office, the President, as head ofstate and government, is the sole organ and authority in the externalaffairs of the country.”123

118 Id.119 Id.120 Id.121 Id.122 Id.123 Id.

Other factors for consideration may be found in Neri v. Senate BlueRibbon Committee,124 which held that executive agreements are exempt fromthe public bidding requirement provided for under the procurement law.They are also exempt from the ban on projects during the electioncampaign period.

Yet, such distinguishing factors have been blurred by time. Oneinstance is the case of Akbayan v. Aquino125 which was brought about by theplans of the Philippine Government to enter into the first everbilateral free trade agreement with another country. Petitioners inthat case sought the “full text of the Japan-Philippines EconomicPartnership Agreement (JPEPA) including the Philippine and Japaneseoffers submitted during the negotiation process and all pertinentattachments and annexes thereto.”126

While the case was decided on the basis of a citizen’s right toinformation, tangentially-speaking, the case is also descriptive ofhow the classification of an international agreement has been furtherblurred by time. Although no categorical pronouncement was made onwhether JPEPA is a treaty or an executive agreement, considering thatthe Supreme Court interpreted Article 164127 of the agreement to meanthat “…President Arroyo’s endorsement of the JPEPA to the Senate forconcurrence is part of the legal procedures which must be met prior tothe agreement’s entry into force,”128 and that the most potentdistinguishing factor between a treaty and an executive agreement isSenate concurrence, it may be assumed that JPEPA was classified as atreaty. This reasoning goes against the coverage of the agreementitself, which includes “trade in goods, rules of origin, customsprocedures, paperless trading, trade in services, investment,intellectual property rights, government procurement, movement ofnatural persons, cooperation, competition policy, mutual recognition,dispute avoidance and settlement, improvement of the businessenvironment, and general and final provisions”129 – matters, which

124 Neri v. Senate Blue Ribbon Committee, G.R. No. 180643, Sept. 4, 2008.125 Akbayan v. Aquino, G.R. No. 170516, Jul. 16, 2008.126 Id.127 Art. 164. Entry into Force. This Agreement shall enter into force on the thirtiethday after the date on which the Governments of the Parties exchange diplomatic notesinforming each other that their respective legal procedures necessary for entry intoforce of this Agreement have been completed. It shall remain in force unlessterminated as provided for in Article 165.128 Akbayan v. Aquino, G.R. No. 170516, Jul. 16, 2008.129 Id.

according to the Eastern Sea Trading case, are normally embraced byexecutive agreements.

Similarly, the case of Bayan v. Zamora130 was also non-determinativeof what constitutes an executive agreement. Here, the Supreme Courtdiscussed the expiration of the RP-US Mutual Defense Treaty in 1991.In July 1997, negotiations once again started in the aim of renewingpartnerships regarding mutual defense. Finally, in October 1998,President Joseph Estrada, through the Secretary of the Department ofForeign Affairs, ratified the Visiting Forces Agreement (VFA). Thesame was later on concurred in by the Senate by a vote of two-thirdsof its members.

Assailing the constitutionality of the Visiting Forces Agreement(VFA), petitioners in this case questioned the non-concurrence by theU.S. Senate of the VFA and its characterization by the latter as amere executive agreement. In upholding the constitutionality of theVFA, the Supreme Court applied Section 25, Article XVIII of theConstitution which specifically deals with treaties involving foreignmilitary bases, troops, or facilities, and to a certain extent and ina limited sense, Section 21, Article VII for the sole purpose ofdetermining the number of votes required to obtain the validconcurrence of the Senate.

The Supreme Court held that “it is inconsequential whether theUnited States treats the VFA only as an executive agreement because,under international law, an executive agreement is as binding as atreaty. To be sure, as long as the VFA possesses the elements of anagreement under international law, the said agreement is to be takenequally as a treaty.”131 Thus, the Court announced that “[w]ith theratification of the VFA, which is equivalent to final acceptance, andwith the exchange of notes between the Philippines and the UnitedStates of America, it now becomes obligatory and incumbent on ourpart, under the principles of international law, to be bound by theterms of the agreement.”132 Withal, as clarified by the records of theConstitutional Commission, the following is instructive:

“MR. MAAMBONG. Of course it goes without saying that as faras ratification of the other state is concerned, that isentirely their concern under their own laws.

130 Bayan v. Zamora, G.R. No. 138570, Oct. 10, 2000.131 Id.132 Id.

FR. BERNAS. Yes, but we will accept whatever they say. Ifthey say that we have done everything to make it atreaty, then as far as we are concerned, we will acceptit as a treaty.”133

On whether or not the Chief Executive gravely abuse hisdiscretion in ratifying the VFA, the Court discussed the ‘widelatitude of discretion’ given to the President when it comes toexternal affairs of the country. According to the Court, “thePresident, as head of State, is the sole organ and authority in theexternal affairs of the country. In many ways, the President is thechief architect of the nation’s foreign policy; his dominance in thefield of foreign relations is then conceded. Wielding vast powers andinfluence, his conduct in the external affairs of the nation, asJefferson describes, is ‘executive altogether.’”134 The negotiation ofthe VFA and the subsequent ratification of the agreement, the Courtannounced, “are exclusive acts which pertain solely to the President,in the lawful exercise of his vast executive and diplomatic powersgranted to him no less than by the fundamental law itself.”135

In Nicolas v. Romulo,136 the VFA was further characterized as a mereimplementing agreement, although the same is a form of an executiveagreement. There, petitioner Bayan assailed once again theconstitutionality of the VFA for the failure of the United States ofAmerica to get the advice and consent of its Senate, as provided inSec. 25, Art. XVIII of the Philippine Constitution. The case wasrooted from the transfer of detained U.S. soldier Lance CorporalDaniel Smith, who was accused of raping a Filipina, from the Makatijail to another detention facility under the control of the U.S.Government, in accordance with the Romulo-Kennedy Agreements dated 19and 22 December 2006.

The Supreme Court ruled that the VFA, “which is the instrumentagreed upon to provide for the joint RP-US military exercises, issimply an implementing agreement to the main RP-US Military DefenseTreaty,”137 and hence, “it was not necessary to submit the VFA to the USSenate for advice and consent, but merely to the US Congress under the

133 Id.134 Id.135 Id.136 Nicolas v. Romulo, G.R. No. 175888, Feb. 11, 2009.137 Id.

Case–Zablocki Act within 60 days of its ratification.”138 It furtherqualified that while there is a seeming discrepancy in that thePhilippine Government views the VFA as a treaty while the U.S. doesnot, the Supreme Court said that “[i]t was not the intention of theframers of the 1987 Constitution, in adopting Article XVIII, Sec. 25,to require the other contracting State to convert their system toachieve alignment and parity with ours.  It was simply required thatthe treaty be recognized as a treaty by the other contractingState.  With that, it becomes for both parties a binding internationalobligation and the enforcement of that obligation is left to thenormal recourse and processes under international law.”139

Note however the case of Suplico v. NEDA,140 where a petition todeclare the National Broadband Network Project null and void wasfiled. Although the Court took judicial notice of the supervening fact“[w]hen President Gloria Macapagal-Arroyo, acting in her officialcapacity during the meeting held on October 2, 2007 in China, informedChina’s President Hu Jintao that the Philippine Government had decidednot to continue with the ZTE-National Broadband Network (ZTE-NBN)Project due to several reasons and constraints,”141 making the issuemoot, an educating dissent was made by Justice Antonio Carpio where heargued that executive agreements cannot be resorted to by thegovernment to avoid compliance with standing laws, which in this caseis public bidding. This opinion goes directly against the doctrinelaid down in Neri, in the following wise:

“In short, the issue turns on the novelquestion of whether an executive agreement can amendor repeal a prior law.   The obvious answer is that anexecutive agreement cannot amend or repeal a priorlaw.

Admittedly, an executive agreement has the forceand effect of law, just like implementing rules ofexecutive agencies.  However, just like implementingrules of executive agencies, executive agreementscannot amend or repeal prior laws but must comply withthe laws they implement. Only a treaty, uponratification by the Senate, acquires the status of a

138 Id.139 Id.140 Suplico v. NEDA, G.R. No. 178830, Jul. 14, 2008.141 Id.

municipal law.  Thus, a treaty may amend or repeal aprior law and vice-versa. Hence, a treaty may changestate policy embodied in a prior law.

In sharp contrast, an executive agreement, beingan exclusive act of the Executive branch, does nothave the status of a municipal law.  Acting alone, theExecutive has no law-making power.  While theExecutive does possess rule-making power, such powermust be exercised consistent with the law it seeks toimplement.”142 

Moreover, Justice Carpio notes that executive agreements areentered into between two governments. In the NBN-ZTE deal however, ZTECorporation “is not a government or even a government agencyperforming governmental or developmental functions like the Export-Import Bank of China or the Japan Bank for InternationalCooperation, or a multilateral lending agency organized by governmentslike the World Bank.  ZTE Corporation is a business enterpriseperforming purely commercial functions.  ZTE Corporation is publiclylisted in the Hong Kong and Shenzhen stock exchanges, with individualand juridical stockholders that receive dividends from thecorporation.”143  Hence, the NBN-ZTE deal is “not an executive agreementbut simply a commercial contract, which must comply with publicbidding as mandated by the governing law, which is Philippine law.”144

C. EXECUTIVE AGREEMENTS IN THE EYES OF THE DOJ SECRETARY

Performing its quasi-judicial function, the DOJ has consistentlydelivered legal opinions on whether or not international agreementsentered into by the government is considered a treaty or an executiveagreement. This opinion is mostly sought by some departments of theexecutive branch, with the intent of having the DOJ Secretary clarifyand establish if a potential agreement with a foreign nation orinternational institution needs the concurrence of the Senate. This

142 Id.143 Id.144 Id.

opinion also serves as basis if such international agreement is atreaty or an executive agreement covered by Sec. 4 of R.A. 9184.145

A survey of DOJ Opinions is relevant in order to get a goodpicture on the process of how the executive branch characterizes everyagreement they enter into. While not controlling, the opinions arenevertheless are persuasive; in fact, they have sometimes been adoptedby no less than the Supreme Court.146

Although Executive Order No. 459 expressly provides that theDepartment of Foreign Affairs determines whether an agreement is anexecutive agreement,147 this does not however prevent the DOJ fromproviding a legal opinion. Records show that the DOJ has continuallyprovided legal opinions on this matter.

After an exhaustive survey by the authors of the varying DOJOpinions from the years 1946-2010, we were able to locate thirty-four(34) cases wherein the DOJ Secretary squarely touched upon the issueof what an executive agreement is. Some of these include loanagreements, Association of South East Asian Nation (ASEAN)-relatedagreements, agreements on importation of rice, mutual defensecooperation agreements, economic and technical cooperation agreements,World Trade Organization (WTO)-related agreement, tourism cooperationagreement, and agreements amending treaties or statutes.

A. Loan Agreements148

Most of the cases raised before the DOJ concerns loan agreementsbetween the Philippines and a foreign state, which they (DOJ)generally consider as executive agreements. According to the DOJ, loanagreements between two sovereign nations are in the nature of both aninternational compact and a commercial agreement involving loans,

145 Rep. Act. No. 9184, Jan. 10, 2003.146 Philippine National Construction Corporation vs. Pabion and Ramiro, G.R. No.131715, Dec. 8, 1999.147 Exec. Order No. 459 (2007), §. 9. It states that “The Department of Foreign Affairsshall determine whether an agreement is an executive agreement or a treaty.”148 DOJ Opinion No. 085, s. 2003, Dec. 5, 2003; DOJ Opinion No. 070, s. 2004, Jul. 7, 2004; DOJ Opinion No. 102, s. 2004, Nov. 11, 2004; DOJ Opinion No. 017, s. 2005, Apr. 12, 2005; DOJ Opinion No. 046, s. 2007, Jul. 26, 2007; DOJ Opinion No. 033, s. 2009, Jul. 9, 2009; DOJ Opinion No. 026, s. 2010, Jun. 9, 2010; and DOJ Opinion No. 038, s. 2010, Aug. 18, 2010.

guarantees or other credit accommodations. These arrangements are moreor less of a temporary nature; they cannot be deemed permanentarrangements in as much as they become functus oficio upon settlement ofthe obligor’s responsibilities.

B. ASEAN-Related Agreements149

During and even prior to ASEAN meetings and conventions, thePhilippines conveys its solidarity among other nations of the regionby signing framework agreements and conventions, charters, protocols,declarations and memoranda of understanding. Government officials cometo the DOJ to seek its opinion whether such agreements needs Senateconcurrence or not. According to the DOJ, these agreements are purelyexecutive in nature and do not need any legislative concurrence tomake it valid and binding if:

1. they carry-out in detail, and do not deviate from, thedeclared national policies of the State;

2. they are entered into pursuant to an act of Congress;3. they only implement the policies contained in ASEAN treaties

that were already ratified by the Philippines; and4. they are executed on the basis of explicit authority conferred

by statute.

However, if it is ascertainable that it was the intent of the partiesto require ratification, then the parties-signatories thereto shallbecome bound only after said agreement shall have been ratified.

C. Agreements on Importation of Rice150

When the Philippines enters into a Memorandum of Agreement orMemorandum of Understanding on the importation of rice only, such asin the years 2008 to 2010, DOJ is of the opinion that this involvesarrangements of more or less temporary in nature and are thusexecutive agreements. 149 DOJ Opinion No. 071, s. 1988, Apr. 13, 1988; DOJ Opinion No. 071, s. 1992, Jun. 3, 1992; DOJ Opinion No. 125, s. 1995, Dec. 7, 1995; DOJ Opinion No. 076, s. 1996, Jul. 26, 1996; DOJ Opinion No. 005, s. 1998, Jan. 14, 1998; DOJ Opinion No. 035, s. 2005, Aug. 9, 2005; and DOJ Opinion No. 081, s. 2008, Dec. 11, 2008.150 DOJ Opinion No. 038, s. 2008, May 21, 2008; and DOJ Opinion No. 041, s. 2009, Sep. 1, 2009.

D. Mutual Defense Cooperation Agreements151

The government of the Philippines has been entering intoMemoranda of Understanding with other nations for defense cooperation.These agreements usually seek to enhance or strengthen the bilateralrelationship through defense and security technical cooperation.Particularly, such defense cooperation usually covers joint trainingand/or military exercises, visits of defense and armed forcesauthorities, exchange or trainees and instructors, and exchange ofinformation training and maintenance-related matters. According to theDOJ, they are mere executive agreements by virtue of their limitedduration and are intended to cover limited matters. DOJ adds thattemporary stationing of foreign forces each time a jointmilitary/naval exercise takes place may be the subject of an executiveagreement. The agreements do not lay down new policy directions butmerely implement the government program of developing militarycooperation with other countries.

E. Economic and Technical Cooperation Agreements152

According to the DOJ, if the subject of an agreement only aims tointensify the economic and technical development of two countries, andit does not in any way involve political issues or changes of nationalpolicy, then such is an executive agreement. Technical cooperationagreements also indicate a definite period within which they shallremain in force and are thus not of a permanent character. It may alsobe the case that such agreements merely implement an existing treatyto which the Philippines is a signatory, and earlier ratified by theSenate.

F. World Trade Organization (WTO)-Related Agreement151 DOJ Opinion No. 049, s. 1994, Apr. 13, 1994; DOJ Opinion No. 105, s. 1994, Jul. 20,1994; DOJ Opinion No. 124, s. 1994, Sep. 24, 1994; DOJ Opinion No. 147, s. 1994, Oct. 5, 1994; and DOJ Opinion No. 100, s. 1995, Oct. 4, 1995; DOJ Opinion No. 023, s. 1996,Feb. 29, 1996; DOJ Opinion No. 015, s. 1997, Mar. 14, 1997; and DOJ Opinion No. 023, s. 2003, Apr. 4, 2003.152 DOJ Opinion No. 040, s. 1955, Feb. 16, 1955; DOJ Opinion No. 071, s. 1987, Jul. 17,1987; DOJ Opinion No. 119, s. 1990, Jul. 2, 1990; DOJ Opinion No. 041, s. 2001, undated; and DOJ Opinion No. 073, s. 2009, Dec. 16, 2009.

The DOJ opines that an Agreement on Agriculture (AoA) executedpursuant to the WTO, of which the Philippine government is asignatory, is considered an executive agreement because it coverscommercial relation and trade agreement only, and therefore needs nolegislative conformity.153

G. Tourism Cooperation Agreement

In a Memorandum of Understanding on Tourism Cooperation enteredinto between the Department of Tourism and the National TourismAdministration of the People's Republic of China, the DOJ opined that“the contents in the proposed upgraded agreement do not involvepolitical issues or constitute deviations from existing nationalpolicies; on the contrary, they implement the constitutional policy ofadherence ‘to the policy of . . . cooperation, and amity with allnations’ (Sec. 2, Art. II, 1987 Constitution) and the State policy ‘topromote, encourage, and develop Philippine tourism’ (Sec. 1, P.D.564).” This falls squarely in the definition of an executiveagreement.154

H. Agreements Amending Treaties or Statutes

It is the opinion of the DOJ that “as a matter of internal law, atreaty or agreement concluded by the Head of State with theconcurrence of our Senate cannot be amended or modified by mereexecutive agreement or exchange of notes unless the same is likewiseconcurred in by the same body.”155 Executive agreements must also yieldto and cannot repeal an act of Congress.156

It must be stated that in arriving on the aforementioneddecisions, the DOJ Secretary consistently and heavily relied on thedoctrines enunciated in the cases of USAFFE, Eastern Sea Trading, andGonzales. It has also cited E.O. 459 which defined an internationalagreement, a treaty and an executive agreement.

153 DOJ Opinion No. 081, s. 2004, Aug. 27, 2004.154 DOJ Opinion No. 084, s. 1990, Apr. 27, 1990.155 Unnumbered DOJ Opinion, Jul. 9, 1969.156 DOJ Opinion No. 211, s. 1958, Sep. 16, 1958.

D. EXECUTIVE AGREEMENTS AND THE DEPARTMENT OF FOREIGN AFFAIRS

Pursuant to E.O. 459 signed by President Fidel V. Ramos on 25November 1997, the DFA is now lodged with the authority to determinewhether an agreement is an executive agreement or a treaty.157 Thus, allexecutive agreements shall be transmitted to the DFA after theirsigning for the preparation of the ratification papers to be signed bythe President of the Philippines.158

Although E.O. 459 provided the needed guidelines in thenegotiation of international agreements and its ratification, itfailed to provide a clear definition of what an executive agreementis. Section 2 of the law only defines executive agreements as “similarto treaties except that they do not require legislative concurrence.”Thus, pursuant to the same law, the DFA issued on 22 May 2007 OfficeOrder No. 01-2007, categorizing agreements, which by practice, havebeen treated as executive agreements and thus requiring Presidentialratification in order to enter into force:

A. Air Service Agreements

The Philippines has entered into Air Service and Air TransportService Agreements with the Association of Southeast Asian Nations,Australia, Austria, Bahrain, Bangladesh, Belgium, Canada, China,Czechoslovakia, Denmark, Egypt, France, Germany, Greece, Hongkong,India, Indonesia, International Civil Aviation Organization, Iraq,Iran, Israel, Japan, Jordan, Kuwait, Lebanon, Macao, Malaysia,Mongolia, Oman, Pakistan, Papua New Guinea, Russian Federation, SaudiArabia, Singapore, South Korea, Spain, Sri Lanka, Sweden, Thailand,United Arab Emerates and the United States of America.

These agreements order each party to open their skies on any orparticular routes by offering regular scheduled flights. The primarypurpose is the recognition of air transport service between thecontracting parties as a fundamental and primordial right, and thepromotion of greater cooperation in the field of international airtransportation. Some agreements allow the liberalization of rules and

157 Exec. Order No. 459 (1997), §. 9.158 Exec. Order No. 459 (1997), §. 7 (A)(i),(ii).

regulations especially for commercial aviation. In the Air TransportAgreement between Government of the Republic of the Philippines and the Government ofSpain,159 it is provided that “aircraft upon arrival in the territory ofthe other Contracting Party and retained on board upon its departure,shall enjoy exemption from custom duties, inspection fees and similarduties or charges of national or local character in said territory.”160

B. Cultural Agreements

The Philippines has entered into Cultural Agreements and CulturalCooperation Agreements with the Afro-Asian Development Organization,Association of Southeast Asian Nations, Australia, Bangladesh,Bolivia, Bulgaria, Chile, China, Colombia, Czechoslovakia, Egypt,Estonia, France, Gabon, Germany, Holy See, Hongkong, Hungary, India,Indonesia, Iran, Iraq, Italy, Kuwait, Libya, Myanmar, Pakistan,Romania, Russian Federation, Singapore, South Korea, Sri Lanka,Thailand, Turkey and Yugoslavia.161

These agreements were entered into so as to play a significantrole in cultural cooperation and facilitate the mobility of artists,art works, cultural goods and services between the parties. Itprimarily aims to promote cooperation in the fields of culture, art,education, and communication to gain a better understanding of theparties’ respective cultures and their development. It also aims toencourage and facilitate the exchange of information, publications andexperiences between the parties’ cultural, sports and educationalinstitutions. The Cultural Cooperation Agreement between the Government of theRepublic Philippines and the Government of the Republic of Colombia162 provides for the“exchange of university professors, experts in the different arts andmembers of other educational and cultural institutions,” including theoffering to the parties’ nationals “study scholarships or post-graduate courses in the respective universities or professionalestablishments of each of the parties; provided however, that the

159 Signed in Madrid on 6 October 1951; ratified on 5 October 1953; concurred on 22 May1952; entered into force on 4 December 1953.160 Id.161 J. EDUARDO MALAYA, ET. AL., PHILIPPINE TREATIES INDEX 1946-2010, FOREIGN SERVICE INSTITUTE(2010).162 Signed in Manila on 15 September 1987; ratified on 7 October 1996; concurred on 7October 1996; entered into force on 7 April 2000, available atdfa.gov.ph/treaties/ola/index.php.

selection of exchange students shall be subject to the admissionrequirements of each country.”163

C. Defense Cooperation Agreements and Mutual Logistics SupportAgreements

The Philippines has Defense Cooperation Agreements with Brunei,China, Czech Repubic, France, Germany, Holy See, Indonesia, Italy,Kuwait, Malaysia, Russian Federation, Singapore, South Korea,Switzerland, Thailand, United States of America and Vietnam.164

Recently, the Philippines and Spain has signed a Memorandum ofUnderstanding on Defense Cooperation last 3 October 2011.165

The most common among these agreements are those entered intowith the United States. Among the thirty-five (35) internationalagreements relating to defense cooperation with the U.S., the latestare the RP-US Mutual Logistics Support Agreement (2002),166 RP-US Agreement on the Non-Surrender of Persons (2003),167 and the Technical Assistance Agreement in the Upgrading ofPAF-S Huey II Helicopters (2003)168.

Defense Agreements generally encourage, facilitate and developcooperation in the field of defense and military on a mutual basis.Among the mechanisms usually provided in these agreements are defenseand security dialogue, exchange of visits, personnel and informationas well as identification of opportunities in areas such as educationand training exchanges, logistics, defense industry, counter-terrorismand humanitarian aid and relief. The Memorandum of Understanding between theRepublic of the Philippines and the Italian Republic on Defense Cooperation169 provides thatparties will develop “participation of observers in military exercise

163 Malaya, supra note 161.164 Id.165 PH and Spain Sign MOU on Defense Cooperation, available at http://www.dndph.org/press-releases/ph-and-spain-sign-mou-on-defense-cooperation.166 Signed on November 21, 2002; entered into force on November 21, 2002, available atdfa.gov.ph/treaties/ola/index.php.167 Signed on May 13, 2003; entered into force on May 14, 2003, available atdfa.gov.ph/treaties/ola/index.php.168 Signed on May 20, 2003; entered into force on May 20, 2003, available atdfa.gov.ph/treaties/ola/index.php.169 Signed on February 20, 2004; ratified on June 18, 2004; entered into force onSeptember 15, 2004, available at dfa.gov.ph/treaties/ola/index.php.

with consent of both parties” and “visits to military ships, aircraftand other structures” among others.170

D. Scientific and Technological Cooperation Agreements

The Philippines has entered into Scientific and TechnologicalCooperation Agreementswith Australia, Canada, China, Czechoslovakia, France, Gambia,Hungary, India, Indonesia, Italy, Japan, Lithuania, Mongolia, Romania,Russian Federation, Slovenia, South Korea, Taiwan, Thailand, UnitedStates of America and Yugoslavia.171

These agreements aim to promote and develop scientific andtechnological cooperation in fields of mutual interest, based on theprinciples of equal rights and mutual advantage. These agreementsusually have safeguards as to scientific discoveries. The BasicAgreement on Scientific and Technological Cooperation Between the Government of theRepublic of the Philippines and the Government of the Republic of India172 for exampleprovides that “the Contracting Parties shall become joint owners ofwhatever inventions, techniques, processes and other such beneficialresults arising out of the activities under this Agreement.”173

E. Economic Cooperation Agreements

The Philippines has entered into Economic Cooperation Agreementswith the Afro-Asian Development Organization, Asian ProductivityOrganization, Association of Southeast Asian Nation, Bahrain,Bangladesh, Benelux, Bulgaria, China, Equatorial Guinea, Gabon,Greece, India, Indonesia, Iran, Iraq, Italy, Japan, Libya,Netherlands, Nigeria, Pakistan, Panama, Romania, Russian Federation,South Korea, Spain, Swaziland, Turkey, Vietnam and Yugoslavia.174

An example of this agreement is the Basic Agreement on Economic andTechnical Cooperation between the Philippines and Indonesia175 which provides for theagreement on “expansion of trade between the two countries;170 Id.171Malaya, supra note 161.172 Signed in Manila on 8 April 1987; ratified on 1 August 1991; concurred on 7 March1994; entered into force on 21 March 1994, available at dfa.gov.ph/treaties/ola/index.php.173 Id.174 Malaya, supra note 161.

coordination and harmonization, by mutual agreement on a case-to-casebasis, of their economic plans and policies; coordination and jointaction on the production and marketing of specific commodities to beidentified by mutual agreement; mutual assistance and cooperation oneducation and training; coordination of policies on transportation,communications, and other infrastructure facilities; the promotion ofscientific and  technical  cooperation; the promotion of jointventures; and other activities of mutual benefit to both countries.”176

F. Agreements on Gainful Employment of Spouses of Members ofDiplomatic and Consular Missions

The Philippines may enter into agreements wherein diplomaticagents, administrative and technical staff, consular officers,consular employees and service staff, together with members of theirfamilies forming part of their household maybe exempt from taxessubject to some exceptions.177

G. Tourism Cooperation Agreements

The Philippines has entered into Tourism Agreements with theAssociation of Southeast Asian Nations, Cambodia, China, Indonesia,Kazakhstan, Macao, Papua New Guinea, Romania, South Korea, Spain,Taiwan, Thailand, Turkey, United States of America and Venezuela.178

Vietnam also recently signed the Tourism Cooperation Plan 2012-2015, aconsequence of the Agreement on Tourism Cooperation signed between thetwo countries in 1994.179

These are agreements entered into by the Philippines aims tofurther strengthen bilateral tourism cooperation, the conduct of jointtourism promotions, development of cultural tourism exchanges, humanresource exchanges, exchanges on relevant tourism information, amongothers.175 Signed in Jakarta on August 8, 1974; entered into force on 4 June 1975, available atdfa.gov.ph/treaties/ola/index.php.176 Id.177 Malaya, supra note 161.178 Id.179 Accords to strengthen naval, tourism cooperation signed, Sun Star Manila, 26 October 2011,available at http://www.sunstar.com.ph/manila/local-news/2011/10/26/accords-strengthen-naval-tourism-cooperation-signed-187314.

Each agreement contains different areas of cooperation. They maybe very specific like the provisions contained in the Memorandum ofUnderstanding on Tourism Cooperation between the Republic of the Philippines and theRepublic of Venezuela which encourages individual or group travel byfacilitating and encouraging “the fostering of commercial tourismactivities and services such as travel agencies, tourism operationsand business, hotel chains, airline and maritime links, and othertourism-related endeavors.”180

H. Investment Agreements

The Philippines has investment agreements with Argentina,Association of Southeast Asian Nations, Australia, Austria, Bahrain,Bangladesh, Belgium, Cambodia, Canada, China, Czech Republic, Denmark,Finland, France, Germany and India.181

These agreements are primarily entered into in order to promote,admit and most especially protect investments by investor of one partyin the area of the other party. It usually requires the other party toaccord such investments with fair and equitable treatment. That is whyin the Agreement between the Republic of the Philippines and the Republic of Austria for thepromotion of Investments182 and Agreement between the Republic of the Philippines andAustralia on the Promotion and Protection of Investments,183 it is both provided thateach Contracting Party “shall accord to investors of the otherContracting Party and their investments treatment no less favourablethan that accorded to its own investors and their investments or toinvestors of any third State and their investments.”184

I. Labor Agreements

180 Signed in Manila on 22 October 1999; ratified on 9 February 2000; entered intoforce on 18 April 2000, available at dfa.gov.ph/treaties/ola/index.php.181 Malaya, supra note 161.182 Signed in Manila on 11 April 2002; ratified on 18 July 2002; entered into force on1 December 2003, available at dfa.gov.ph/treaties/ola/index.php.183 Signed on 13 September 1995; entered into force on 8 December 1995, available atdfa.gov.ph/treaties/ola/index.php.184 Id.

The Philippines has Labor Agreements with the International LaborOrganization, Kuwait, New Zealand, South Korea, Taiwan, United ArabEmirates and the United States of America.

Among these agreements are the following:

1. Memorandum of Understanding between the Department of Laborand Employment of the Philippines and the Ministry of Labor ofKorea on the Sending and Receiving of Workers to Korea underthe Employment Permit System;185

2. Memorandum of Understanding on Labor and Manpower Developmentbetween Republic of the Philippines and the State of Kuwait;186

3. Memorandum of Understanding between Manila Economic andCultural Office (MECO) and the Taipei Economic and CulturalOffice on Special hiring Program, 1st Edition;187 and

4. Memorandum of Understanding between the Philippines and UAE inthe Field of Manpower.188

These agreements in particular aim to protect the rights of ourOverseas Filipino Workers.189

J. Maritime Agreements

The Philippines has entered into Maritime Agreements withAustralia, Bangladesh, Barbados, Belgium, Brunei, Cambodia, Cyprus,Eritrea, Germany, Hongkong, Indonesia, International MaritimeSatellite Organization, Iran, Japan, Malaysia, New Zealand, Pakistan,Singapore, South Korea, Switzerland, Taiwan and United States ofAmerica.190

The nature of these agreements can be deduced from its title. Thefollowing are some of the maritime agreements that Philippines enteredinto:185 Signed in Seoul on 30 May 2009; ratified on 13 October 2009; entered into force on30 May 2009, available at dfa.gov.ph/treaties/ola/index.php. 186 Signed in Kuwait City on 14 September 1997; ratified on 27 October 1997; enteredinto force on 21 May 1998, available at dfa.gov.ph/treaties/ola/index.php.187 Signed in Taipei on 12 January 2001; entered into force on 12 January 2001 available atdfa.gov.ph/treaties/ola/index.php.188 Signed in Manila on 9 April 2007; ratified on 16 May 2007; entered into force on 9April 2007, available at dfa.gov.ph/treaties/ola/index.php.189 Id.190 Malaya, supra note 161.

1. Exchange of Notes Constituting an Agreement between theRepublic of the Philippines and Japan Regarding the Survey ofSunken Vessels;191

2. Memorandum of Understanding between the Republic of thePhilippines and Australia Relating to Marine Seismic SurveyProject;192

3. Agreement between the Government of the Republic of thePhilippines and the Government of the Republic of Cyprus onMerchant Shipping;193 and

4. An Undertaking concerning the Recognition of Training andCertification of Seafarers for Service on Hong Kong RegisteredShips between the Department of Labor and Employment of theRepublic of the Philippines and Marine Department of the HSARof PRC.194

K. VISA Requirements Agreements

The Philippines has entered into Visa Agreements with Argentina,Australia, Austria, Belgium, Bolivia, Brazil, Cambodia, China, CzechRepublic, Denmark, France, Germany, Hungary, Iceland, India,Indonesia, Israel, Kazakhstan, Laos, Malaysia, Mongolia, Morocco,Myanmar, New Zealand, Pakistan, Panama, Romania, Russian Federation,Slovenia, South Korea, Spain, Sri Lanka, Sweden, Switzerland, Syria,Thailand, Tunisia, Turkey, United States of America, Vietnam andYugoslavia.195

Some of these agreements include the abolition of non-immigrantpassport visa fees and visa requirements especially for holder ofdiplomatic or official passports; reciprocal abolition of visarequirements; and the waiver of non-immigrant visa requirements.196

191 Signed in Manila on January 25, 1953; entered into force on January 25, 1953,available at dfa.gov.ph/treaties/ola/index.php.192 Signed in Manila on 20 September 1991; entered into force on 20 September 1991,available at dfa.gov.ph/treaties/ola/index.php.193 Signed in Nicosia on 7 September 1984; ratified on 22 October 1984; entered intoforce on 6 June 1985, available at dfa.gov.ph/treaties/ola/index.php.194 Signed in Hong Kong on 29 October 2001; entered into force on 29 October 2001,available at dfa.gov.ph/treaties/ola/index.php.195 Malaya, supra note 161.196 Id.

L. Trade, Cooperation/Facilitation Agreements, i.e. ASEAN TradeAgreements

The Philippines has entered into Trade Agreements with theArgentina, Association of Southeast Asian Nations, Australia, Austria,Barbados, Belgium, Benelux, Bulgaria, Cambodia, Canada, China, CzechRepublic, Czechoslovakia, Egypt, European Union/EEC, France, Gabon,Germany, Greece, Hungary, India, Indonesia, International CoffeeOrganization, Iran, Iraq, Kuwait, Laos, Lithuania, Malta, Myanmar, NewZealand, Pakistan, Romania, Russian Federation, Senegal, South Africa,South Korea, Sweden, Switzerland, Thailand, Turkey, United States ofAmerica, Venezuela, Vietnam, Yugoslavia and World TradeOrganization/GATT.197

Common to most of these agreements is the grant of each party tothe other the most-favored-nation treatment in all matters relating tocustoms duties and clearance, import and export licenses, tariffpreferences, taxes and exemptions. It also includes provisions onsafeguard measures like “[t]he provision of this Agreement shall notlimit the right of either Contracting Party to adopt or execute suchmeasures as it feels necessary to protect and develop its nationaleconomy” as contained in the Trade Agreement between the Government of theRepublic of the Philippines and the People’s Republic of China.198

Furthermore, DFA Office Order No. 01-2007 also listed thecategories of agreements which by practice have been treated astreaties and thus requiring Presidential ratification and Senateconcurrence before they can enter into force:

a. Status of Forces Agreements/Visiting Forces Agreement;b. Free Trade Agreement/Economic Partnership Agreement (which go

beyond what the President is allowed to undertake unilaterallyunder Article VI Sec. 28 (2) of the Constitution and theCustoms and Tariff Code);

c. Avoidance of Double Taxation Agreements (since tax exemptionsmay be made only under the authority of Congress, Article VISec. 28 (4) of the Constitution);

d. Headquarters Agreement (due to immunity aspects);197 Id.198 Signed in 9 June 1975; entered into force on 9 June 1975, available atdfa.gov.ph/treaties/ola/index.php.

e. Extradition Agreements;f. Transfer of Sentenced Persons Agreements (in as much as

Philippine criminal jurisdiction is based on the principle of“territoriality”);

g. Other agreements, especially multilateral conventions,involving political issues or changes of national policy andinvolve international arrangement of a permanent character(Eastern Sea Trading ruling).199

Meanwhile, E.O. 459 also provides the guidelines in thenegotiation of international agreements and its ratification.200 Itstates that as a matter of policy, the negotiation of all treaties andexecutive agreements shall be coordinated with, and made only with theparticipation of the DFA.201

Prior to the negotiation of a proposed international agreement,authorization should first be secured from the President by the leadgovernment department or agency through the Secretary of ForeignAffairs. The DFA geographic office which covers the area or subjectmatter202 is the conduit for securing the authorization.

After the signing of an agreement, the DFA geographic officetransmits to DFA Office of Legal Affairs (OLA) the original and/orcertified true copy of the agreement. When transmitting the agreement,it is accompanied by the following, in line with DFA Department OrderNo. 21-99 dated 25 August 1999:

1. Certificates of concurrence of the agencies that participatedin the inter-agency consultations and the negotiations; and

2. A summary of the benefits that will accrue to the Philippinesonce the agreement enters into force.

OLA then prepares the draft memorandum for the President, for thesignature of the Secretary of Foreign Affairs, recommending theratification of the signed agreement. If the agreement requires Senate

199 DFA Office Order No. 01-2007, in Malaya, supra note 156.200 Malaya, supra note 161.201 Exec. Order No. 459 (2005), § 1.202 These are principally the Offices of American Affairs, Asian and Pacific Affairs,European Affairs and the Middle East and African Affairs, for bilateral agreements,and the Offices of ASEAN Affairs and the United Nations and other InternationalOrganizations, for multilateral agreements.

concurrence, a draft letter-endorsement from the President to theSenate President is enclosed.

IV. THE DOCTRINES ON EXECUTIVE AGREEMENT: A RESTATEMENT

From the foregoing, it becomes clear that an executive agreementis not a static concept. Despite the abundance of jurisprudence on thematter, there has been no single concrete definition capable of fullydescribing it. Both in the Philippines and in the U.S., executiveagreements are defined as agreements other than treaties, or similarto treaties that does not require the concurrence of the legislature.It is because of this loose definition that doctrines and standardsrelating to such international agreements continuous to grow anddevelop.

In the Philippines, to understand the entire gamut of executiveagreements, one must not only look at judicial decisions but moreimportantly, examine how the executive department applied andinterpreted it. This becomes imperative since there is no single lawthat provides a clear set of parameters on what executive agreementsare and how they are to be applied and interpreted. Moreover, most ofthese agreements never reach the Supreme Court for finalinterpretation. In fact, this paper has shown that most of the time,the Secretary of the Department of Justice has actually become the“final arbiter” of issues arising from and concerning executiveagreements. By virtue of President Ramos’ E.O. 459, identifying whatare and what are not executive agreements has now become the soleprerogative of the Department of Foreign Affairs.

Thus, it is the main objective of this paper to present thefollowing concluding observations in order to contribute to fullyunderstanding the concept of executive agreements as applied inPhilippine jurisdiction.

A. Presidential Powers Over External Relations

The conduct of foreign relations of this country is, by its verynature, essentially an executive function. The President alone has thepower to speak or listen as a representative of the nation. He makes

treaties with the advice and consent of the Senate; but he alonenegotiates. As the chief architect of foreign policy, the Presidentacts as the country’s mouthpiece on matters concerning foreign andinternational affairs.  Hence, the President is vested with theauthority to deal with foreign states and governments, extend orwithhold recognition, maintain diplomatic relations, enter intotreaties, and otherwise transact the business of foreign relations. Inthe realm of treaty-making, the President has the sole authority tonegotiate with other states. Thus, as it now stands, the President’ssupremacy in matters relating to foreign relations has achieveddoctrinal status.

B. Senate Concurrence

The power to ratify is vested in the President, subject to theconcurrence of the Senate.  The role of the Senate, however, islimited only to giving or withholding its consent or concurrence tothe ratification. Hence, it is within the authority of the Presidentto refuse to submit a treaty to the Senate. The President, havingsecured its consent for its ratification, can also refuse to ratifyit.

C. The Nature of an Executive Agreement

The nature of executive agreements in the Philippines may thus berestated as enunciated in different judicial doctrines of thePhilippine Supreme Court, the Department of Justice, and theDepartment of Foreign Affairs:

a. The parties involved are two governments/states/sovereigns. Oneparty may be an internationally recognized institution like theAssociation of Southeast Asian Nations (ASEAN) and the WorldTrade Organization (WTO).

b. They fall short of a treaty or convention.c. They may be an implementing agreement to a principal treaty,

earlier ratified by the Senate.d. The subject may be economic in character only.e. They may cover commercial relation and trade agreement only.f. It may involve money arrangements only.

g. They do not amend or repeal a prior law.h. They do not acquire the status of a municipal law.i. They must comply with the laws they implement.j. They must yield to and cannot repeal an act of Congress.k. They are arrangements which are more or less of a temporary

nature.l. They duration is limited and are intended to cover limited

matters.m. They are not permanent arrangements.n. They indicate a definite period with which they shall remain in

force.o. They do not lay down new policy directions but merely implement

government program.p. They do not in any way involve political issues or changes of

national policy.q. They sometimes take the form of exchanges of notes and at other

times that of more formal documents denominated as “agreements”or “protocols.”

r. When parties regard the contract as an executive agreement and itis consistent with local statutes already in force.

s. They are generally exempted from public bidding as mandated bythe procurement law.

t. Under international law, executive agreements are binding as atreaty.

u. They may be entered into pursuant to an act of Congress.

D. Executive Agreements by Practice: Categories

The following are, by practice, treated as executive agreementsand thus requiring Presidential ratification in order to enter intoforce and does not need Senate concurrence:

a. Air Service Agreementsb. Cultural Agreementsc. Defense Cooperation Agreementsd. Mutual Logistics Support Agreementse. Scientific and Technological Cooperation Agreementsf. Economic Cooperation Agreementsg. Agreements on Gainful Employment of Spouses of Members of

Diplomatic and Consular Missionsh. Tourism Cooperation Agreements

i. Investment Agreementsj. Labor Agreementsk. Maritime Agreementsl. Waiver of VISA Requirements Agreementsm. Trade, Cooperation/Facilitation Agreements, i.e. ASEAN Trade

Agreementsn. Loan, Guarantees, or other Credit Accommodations Agreementso. Agreement on Importation of Ricep. Technical Cooperation Agreementsq. Inspection of Vessels Agreementr. Navigation Dues and Income Tax on Shipping Profits Agreements. Customs Agreementst. Postal Matters Agreementsu. Registration of Trademarks and Copyrights Agreementsv. Atomic Energy Agreementsw. Environmental Cooperation Agreementsx. Peace Corps Agreementsy. Arms Limitation Agreementz. Nuclear Safety Agreementaa. Other international agreements which embody adjustments of

detail carrying out well-established national policies andtraditions, and involve arrangements of a more or lesstemporary nature (Commission of Customs v. Eastern Sea Trading).

We end as we began. Executive agreements have emerged as apractical mechanism to reconcile the constitutional checks andbalances embodied in the treaty ratification clause, with thePresident's power over foreign affairs. But we recognize as well thatexecutive agreementstend to subvert the normal constitutional processes required fortreaty ratification and, as with the Philippines' sad experience withthe ZTE NBN deal shows, can be tool for abuse. The guidelines that weoffer, it is hoped, will raise the bar against impunity whilepreserving the Executive Agreement for the salutary purposes for whichit was originally created.

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