In many high-end cases, this Supreme Court has recognized that there is at least no substantial distinction as to the status of executive agreements and treaties in terms of form. First of all, they must be written in any form – even on office paper (where ambassadors write notes, right?) In addition, there is an executive order of Ramos – Executive Order 459, 1997 series – that has become a kind of Bible about how our State Department fulfills its mandate to negotiate contracts with other states on behalf of the President. Section 2 of OP 459 reflects the language of the Vienna Convention when it defines executive agreements as “treaty-like, except that they do not require legislative approval.” I would doubt a certain phraseology in that executive order, but I would say that this definition is sufficient for our present purposes. Senator Francis Tolentino, who has a master`s degree in international law from a law school in London and attended the prestigious Academy of International Law in The Hague, believes so. At least that is what the August Senate chamber reports said on Monday about his entry into office as a member of the House of Lords. Who calls if an agreement is a contract or an executive agreement? Under EO 459/s.1997, Ministry of Foreign Affairs. This somewhat opaque provision was unfortunately interpreted by the Bayan Supreme Court against Zamora as not distinguishing between foreign troops stationed temporarily or for long periods of time. Let us return to the oral executive agreement that Senator Tolentino liked: how to cure it? As you say, yamang nandiyan na tayo. What will be debated in the Supreme Court on Tuesday is whether the Edca is a contract or an executive agreement. Both bind the Philippine government in its relations with other governments, but each has different constitutional requirements to become valid. The Philippines only signed the Edca in the form of an executive agreement, but petitioners before the Supreme Court challenged it.
The U.S. executive agreements are governed by the amendment of the Case-Zablocki Act (1.C, implemented in 2005 by 22 CFR Part 181). The decision on whether to designate an executive agreement belongs to the U.S. State Department`s Office of Legal Adviser under a procedure described in Circular 175 (Volume 11 of the State Department`s Foreign Affairs Manual, 11 FAM 720). President Duterte`s disturbing remarks about an executive agreement that appeared to have been written on the water prompted Judge Antonio Carpio to virtually oppose his own pumice in the case of Executive Secretary Magallona (G.R. 187167, August 16, 2011). Justice Carpio, a strong critic of the government`s attitude towards China following our own arbitration victory, said that the Constitution was superior to UNCLOS on the issue of the Philippine EEZ. The question of whether President Duterte exercised this power with caution or not in the case of the VFA is another question. Nevertheless, this column has repeatedly argued that the President in general, but perhaps with some controversial exceptions, has the power to unilaterally withdraw the country from an international agreement. In summary, I have written elsewhere that executive agreements in Philippine law are very interesting animals, especially because they are generally based on an earlier treaty, supposedly implemented by such executive agreements.