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. » 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. Section 1 of Executive Order 459 provides that negotiations on such contracts or agreements can only take place with the participation of the Department of Foreign Affairs, in coordination with the Department of Foreign Affairs, in coordination with the Department of Foreign Affairs. It is time for our outside politicians to have a say on this issue of the national interest. The Supreme Court has long held that, under international law, executive agreements and treaties are virtually the same in their ability to link the Philippine government to an agreement with another government. « There is no difference between treaties and executive agreements in their relationship with the states concerned, » the Tribunal said. Elsewhere, I have written that executive agreements in Philippine law are very interesting animals, especially because they are generally based on an earlier treaty, allegedly implemented by such executive agreements. They therefore show what legal theorists would call a « quasi-monist » character (because they no longer need legislative or even judicial measures). The paradox, however, is that they arise only from this quintessentially « dualistic » treaty mechanism, which must first be approved by the Senate in accordance with the treaty clause of the Constitution (see myPhilippine Chapter in the Oxford Handbook of International Law in Asia and the Pacific, OUP, Chesterman, Owada and Saul, Note.M, in August 2019). Thus, the Supreme Court would often act on the validity of an executive agreement on an original contract.
Of course, the devil will always be in the detail of such an agreement. At least a properly implemented executive agreement, if it is actually put in place, should ensure the conservation and sustainable fishing, as well as the protection of our fishermen from harassment by the Chinese Naval Force – its well-known naval militia, which collaborates with its vast fleet of civilian fishing vessels. President Duterte`s disturbing remarks about an executive agreement that appeared to be written on the water prompted Judge Antonio Carpio to go so far as to virtually attack his own pony in the case of Magallona v.