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Treaty and Executive Agreement

Under the Philippine laws, treaty is defined as international agreement

which involved by our country, it is in need of parliamentary concurrence

after the administrative approval. The subject may also involve about rules,

affirmation, procedures, statement, agreement and act. In the International

Law, it was defined as international agreement between nations in a written

subject as it was under authority of the international law. However, we can

never conclude that all international agreement is led by the international

law. The procedure works only in the authority of the national law of a

member of factions or different domestic law which is in the approval of the

factions. What is more interesting about treaty is the existence of the term

known as executive agreement. They say it was the same as treaty, but it

ignores the judicial accord. In this kind of matter, what is the differencebetween these terms?

In our national law, the executive agreements work even in the absence of

the correspondence of the Senate or Congress. Mostly, treaty is in need of

concurrence of the Senate, even it is bilateral or multilateral while the

executive agreement may still functional without concurrence. However, in

the International law, they dont have distinction in the conditional terms. It

is more concern about the stability of the will in the negotiating

functionaries. The participants of the constitutional commission recognized

the difference between a treaty and an executive agreement in their debate of

Section 21 Article VII. They are trying to distinguish the part of

International agreements which is in need of Senate accord. Commissioner

Joaqui Bernas made a statement from the conclusion of Supreme Court in

the case of Commissioner of Customs with the Eastern Sea Trading. He said

that 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 the countrys history, the nation have

entered into executive agreements covering such subjects as commercial and

consular relations, most favored nation rights, patent rights, trademark andcopyright protection, postal and navigation arrangements and the settlement

of claims. The validity if this has never been seriously questioned by the

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. International agreements involving political issues or

changes of national policy and those involving international agreements of a

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permanent character usually take the form of treaties. But international

agreements embodying adjustments of detail, carrying of more or less

temporary nature usually take the form of executive agreements.

Commissioner Bernas explained further regarding about the International

agreements, as it requires Senate accord, only those are permanent in nature.

If it include the prior authorization from Congress, it ignore the concurrence

of the Congress.

The Department of Foreign Affairs stated that in executive agreement, the

fundamental change in policy is disregarded. It does not interrupt on any

existing international legal obligation. Therefore, the difference between a

treaty or international agreement and an executive agreement is of major

importance in the Philippines, because of various differences in the process

of ratification.