Executive Agreement Which The Philippines Is A Signatory
December 8, 2020
The Constitution states: “No treaty or international agreement is valid and valid, unless it is included by at least two-thirds of all members of the Senate.” However, the Supreme Court has ruled that “executive agreements” are not subject to this requirement. “Contracts are formal documents that must be ratified by the Senate, while executive agreements become binding by executive measures, without the Senate or Congress having to vote.” Senator Tolentino, who has struggled no less with an experienced senator and not my lawyer himself, Franklin Drilon, after his privileged speech, defended President Duterte`s alleged oral agreement with Prime Minister Xi Jinping as the exercise of his powers as “chief architect of Philippine foreign policy.” But the idea of the TAC runs counter to Article 12, paragraph 2 of the 1987 Constitution, which unequivocally states that “the state will protect the nation`s marine wealth in its waters of the archipelago, the coastal sea and the exclusive economic zone and reserve its use and enjoyment exclusively for Filipino citizens.” 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 Oxford Public International Law online dictionary defines it as a “contract entered into and ratified by the executive without the formal authorization of a legislative body, in a state where treaties are generally ratified only with such authorization… He adds that the concept of an executive agreement only deals with the status of the convention within the domestic law of the state concerned…. For international purposes, the instrument is only a treaty or an international agreement… UNCLOS has a particular understanding of exclusivity as an incident of a state`s sovereign rights vis-à-vis the EEZ. Under the law of the sea, this does not mean the total or total exclusion of other EEZ states from a coastal state. To simplify, for the Philippines, this means their allowable total catch, which is a scientific measure of a coastal state`s total harvesting capacity, taking due account of conservation and sustainability issues (Article 61  of Lake Law). Otherwise, Carpio J.A. rightly warns that if the President keeps talking about an oral agreement by which he would have granted Chinese fishing rights in our EEZ, we will be bound in the most adverse way by the doctrine of a binding unilateral declaration. Without clear provisions on conservation and resource management, such a declaration would give China carte blanche – with 1.5 billion mouths for animal feed – to deplete our already strained marine resources in our EEZ. But it would not be an executive agreement, it is a sad way to renegotiate our national heritage for absolutely nothing, a treaty needs the approval of the Senate to be valid, whereas an executive agreement only needs the signature of the president or his representative without a Senate needing an agreement.