EDCA: Executive Agreement or a Treaty

International agreement refers to a contract or understanding, regardless of nomenclature, entered into between the Philippines and another government in written form and governed by international law, whether embodied in single instruments.[1]

In our laws, Treaties are international agreements entered into by the Philippines which require legislative concurrence after executive ratification. This includes compacts like conventions, declarations, covenants and acts. [2]

In International law, Treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. [3]

Executive Agreements in the other hand are similar to treaties except that they do not require legislative concurrence.[4]

Under international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers. [5]

In our laws, the binding effects between treaties and executive agreements are the same even though latter needs no concurrence with the senate. General rule is that, international agreement of any kind, whether bilateral or multilateral, requires Senate concurrence[6] the exception to that is executive agreements[7].

Commissioner Joaquin Bernas made a clarification in his book by quoting from the decision of the Supreme Court in the case of Commissioner of Customs vs. Eastern Sea Trading:

“The right of the executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history, we have entered into executive agreements covering such subjects as commercial and consular relations, most favored nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of this has never been seriously questioned by our Courts.”

“Agreements with respect to the registration of trademarks have been concluded by the executive and various countries under the Act of Congress of March 3, 1881 (21 Stat. 502) . . . International agreements involving political issues or changes of national policy and those involving international agreements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail, carrying out well established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements.”[8]

Commissioner Bernas further explained that, international agreements, which require Senate concurrence, are those, which are permanent in nature or which establish nation policy. Such agreements are in fact treaties. But executive agreements on the other hand are merely implementation of treaties or of statutes or of well-established policy or are of a transitory effectivity that does not require concurrence.[9]

The Enhance Defense Cooperation Agreement is an executive agreement as it merely further implements a well-established policy in Article II of the MDT (Mutual Defense Treaty) which states that “the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual and collective policy to resist attack” and within the context of VFA.[10]

EDCA does not need concurrence with the senate as far as the purpose and nature of the agreement is further implementation of an agreed treaties which is the MDT and VFA.

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[1] Section 2(a)Executive Order No. 459, Providing for the Guidelines in the Negotiation of International Agreements and its Ratification

[2] Ibid. Section 2 (b)

[3] Article 2 (1) (a), Vienna Convention on the Law of Treaties

[4] Ibid. Section 2(c)

[5] USAFE Veterans Association Inc. vs. Treasurer of the Philippines, 105 Phil. 1030, 1037 [1959] as cited in Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A commentary, 2009 Edition

[6] Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A commentary, 2009 Edition, p.935

[7] Section 7(a)Executive Order No. 459, Providing for the Guidelines in the Negotiation of International Agreements and its Ratification

[8] Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351

[9] Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A commentary, 2009 Edition, p.935

[10] Art. 1 of Enhance Defense Cooperation Agreement.