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What is a treaty?
Under Philippine Laws, Treaties are international agreements entered into by the Philippines which require legislative concurrence after executive ratification. This term may include compacts like conventions, declarations, covenants and acts.[1] Under International Law, Treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.[2] Not all international agreements are governed by international law. The convention applies only to those which are governed by the domestic law of one of the parties or some other national law chosen by the parties.[3]
Executive Agreements similar to treaties except that they do not require legislative concurrence.[4]
What is the procedure for determining whether an agreement is a treaty or an executive agreement?
a. Internal procedure within the Office of the President and the DFA
In 1988, the Office of the President issued Memorandum Circular 89 to set the guidelines in case of conflict as to whether an agreement is a treaty or an executive agreement. The Legal Adviser of the Department of Foreign Affairs (DFA) and the Assistant Secretary on Legislative Affairs and the Senate will be given opportunity to comment on the nature of the agreement. Consultation shall be made with the leadership of the Senate. The Secretary of Foreign Affairs shall make the proper recommendation to the President.[14]
What is the procedure for determining whether an agreement is a treaty or an executive agreement?
a. Internal procedure within the Office of the President and the DFA
In 1997, Executive Order 459 was issued and under Sec. 9 thereof, the DFA determines the nature of an agreement. Said Executive Order is silent if the determination by the DFA of the nature of agreement can be overturned by the President or not. If asked which of the two issuances is prevailing, as a rule, being a later act, E.O. 459 is controlling. However, newly appointed Associate Justice of the Supreme Court Antonio Eduardo Nachura, and prominent authors in international law Jorge Coquia and Senator Miriam Defensor Santiago (Chairman of the Senate Committee on Foreign Relations before adjournment of the 13th Congress) are of the opinion that Memorandun Circular 89 is still binding.[15]
Working Procedure
Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise[23]: The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.
Negotiation
1. Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may even collapse in case the parties are unable to come to an agreement on the points under consideration.
Negotiation
In the Philippines, the negotiation phase of the treaty making process is essentially performed and controlled by the Executive branch of the government through the Department of Foreign Affairs and the respective government agencies involved. Once a treaty proposal is received by the Government the Department of Foreign is tasked to determine whether or not said agreement is a treaty or an executive agreement. It is the Chief Executive, through the recommendation of the DFA Secretary, who designates the persons who will comprise the Philippine delegation and the departments, which will be involved and consulted in the negotiation.
Negotiation
Pursuant to Executive Order 459, the lead agency in the negotiation of a treaty or an executive agreement or any amendment thereto shall convene a meeting of the panel members prior to the commencement of any negotiations for the purpose of establishing the parameters of the negotiating position of the panel. No deviation from the agreed parameters shall be made without prior consultation with the members of the negotiating panel.
Negotiation
The panel of negotiators is normally composed of several individuals from the different agencies of government who are technical experts and resource persons in certain areas of specialization. This group of persons is normally referred to as technical working groups. A treaty, which has farreaching effects on the different industries, may involve several technical working groups. The technical working groups would meet and outline the Philippine position and embody this position in writing. Ideally, the Philippine position must be in conformity with the outlined policies, development goals and targets of the government and in general pursue Philippine interest.
Negotiation
During the negotiation process, negotiators of each State party would meet and discuss to arrive at a mutually beneficial arrangement. Battles over semantics and phrasing are normal in treaty negotiations. This stage is very tedious and negotiators must be very vigilant in looking at each particular provision. Before concurring to a particular provision, said negotiator must agree to it only after consultation with other negotiators and evaluate if it is in conformity with the outlined Philippine position. In issues of primordial importance or high significance, public consultation must be performed to be able to determine its overall impact on the industries that are affected or parties who will be prejudiced. Negotiators aside from being experts must be strong, assertive and emphatic in pursuing the Philippine position. Disagreements among the negotiators over certain provisions is also normal, but some experienced negotiators have perfected the art of inserting provisions in unexpected sections or rephrasing rejected provisions to make it appear acceptable.
Negotiation
The quote timing is everything finds application in the art negotiations, some negotiators will invoke provisions of doubtful validity, during such times when negotiators of the other party are already quite tired or weary from long hours spent on text analysis, interpretation and revision. Once a final draft of the agreement is reached, it will be sent to the office of the Chief Executive who will signify his approval. If he approves the agreement, he will forward it to the Office of the Executive Secretary, who in turn, will attest, to the authenticity and veracity of the text signed or ratified. The Office of the Executive Secretary receives texts in their final form but can override these agreements on broad grounds of it being against the Constitution, the law or public policy, in general.[24]
Signature
2. If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state.
Ratification
Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them. Ratification is generally held to be an executive act, undertaken by the head of the state or of the government, as the case may be, through which the formal acceptance of the treaty is proclaimed.[25] A State may provide in its domestic legislation the process of ratification of a treaty
Ratification
The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative, or was expressed during the negotiation.[26] In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification.[27]
Concurrence
5. In our jurisdiction, for the treaty to be valid and effective, it must be concurred in by the Senate. The process of treaty concurrence by the Senate follows the procedure under the 1987 Constitution on the passage of bills. Such rules are supplemental by the Rules of the Senate.
What is the significant role of the Legislative branch in the treat-making process?
Notwithstanding the sole authority of the President to negotiate and enter into treaties, the 1987 Constitution limits his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity and effectivity of the treaty entered into by him.[41] The role of the Senate is confined to simply giving or withholding its consent to the ratification.[42] The involvement of the Senate in the treaty-making process manifests the adherence of the Philippine system of government to the principle of checks and balances. This indispensable participation of the legislative branch by way of concurrence provides the check to the ratification of the treaty by the executive branch.
Under the Philippine Legal System, how does a treaty stand in relation to the Philippine Constitution?
The Constitution is the basis for ascertaining the legality or validity of the treaty. By virtue of Article VIII, Section 5(2)(a) of the Constitution, the Supreme Court may determine the constitutionality of a treaty or declare it as violative of a statute.[51]
SOURCE
Prepared By Arnel Mateo http://philippinebarreviewer.blogspot.com/200 7/08/treaty-making-in-philippines.html