August 30

43:30-58:00

The Supreme Court stated that the withdrawal was valid because there was no precondition
when decide it, the Senate not certified it, and there was no law implementing the terms of the
treaty. That is why the withdrawal by Pres. Duterte was valid but it is obiter because the
Supreme Court dismissed the case for lack of standing. The issue of lack of standing is discussed
later. The Senate attempted to pass a resolution, but it was never calendared, only few vote in
favor of it.

1994, No. 13. Under the Constitution, what is the role of the Senate in the conduct of foreign
affairs?

Suggested Answer: The Senate plays a role in the conduct of foreign affairs, because of the
requirement in Section 21, Article VII of the Constitution that to be valid and effective a treaty or
international agreement must be concurred in by at least two-thirds of all the Members of the
Senate.

Section 4, Article XVIII of the Constitution provides: "All existing treaties or international
agreements which have not been ratified shall not be renewed or extended without the
concurrence of at least two-thirds of all the Members of the Senate.”

The role is only to concur to treaties. I don’t know if you follow the guidelines in Pangilinan,
apparently it can concur with conditions, and it might also have a role in treaty withdrawal. That
is a little bit expansive but it’s obiter. The President is the sole organ of foreign relations, and the
Senate’s role is to concur with treaties.

In Pimentel vs. Office, can the President be compelled to forward the signed copy of a treaty for
Senate for the Senate’s consent?

This is the problem, this involves a wrong statute also. GMA did not want to sign it. Pimentel
filed a case compelling her to sign it and forward the signed copy to the Senate so that the
Senate can ratify. But SC stated “no, we cannot do that because the President is sole organ of
foreign relations.” So we can’t interfere with that discretion.

1996, No. VII. Can the House of Representatives take active part in the conduct of foreign
relations, particularly in entering into treaties and international agreements?

Suggested Answer:

No, the House of Representatives cannot take active part in the conduct of foreign relations,
particularly in entering into treaties and international agreements. As held in United States vs.
Curtiss-Wright Export Corporation, 299 U.S. 304, the President alone is the representative of
the nation in the conduct of foreign affairs. Although the Senate has the power to concur in
treaties, the President alone negotiates treaties and Congress is powerless to intrude into this.
However, if the matter involves a treaty or an executive agreement, the House of
Representatives may pass a resolution expressing its views on the matter.

No, they have no place. It’s only the Senate. Maybe sometimes the Foreign Relations
Committee, but anything that will come from it will have no binding effect to the President.

1996, No. V. A bill creating a joint legislative-executive commission to give, on behalf of the
Senate, its advice, consent and concurrence to treaties entered into by the President. The bill
contains the guidelines to be followed. Explain.

Suggested Answer:

The Senate cannot delegate this function to such a commission, because under Section 21,
Article VII of the Constitution, the concurrence of at least two-thirds of the Senate itself is
required for the ratification of treaties.

This cannot be done. Why? Because the Senate itself must exercise that power and this
requirement of 2/3 votes so that it can be delegated to other entity, because the treaties will be
different from each other.

1994, No. XIII. The President authorized the Secretary of the DPWH to negotiate and sign a loan
agreement with the German Government for the construction of a dam. The senate by a
resolution asked that the agreement be submitted to it for ratification. The Secretary of Foreign
Affairs advised DPWH not to comply. Is the President bound to submit the agreement?

Suggested Answer: No, the President is not bound to submit the agreement to the Senate for
ratification. Under Section 20, Article VII of the Constitution, only the prior concurrence of the
Monetary Board is required for the President to contract foreign loans on behalf of the Republic
of the Philippines.

No. What is the reason? Because it is actually contracting a loan agreement. When it comes to
loan agreements, Sec. 20 will apply. What is that? Only the concurrence of the Monetary Board
of the Senate will be needed.

2008, No. 2: May a treaty violate international law? If your answer is in the affirmative, explain
when such may happen. If your answer is in the negative, explain why?

Suggested Answer: Yes, a treaty may violate international law when at the time of its
conclusion, it conflicts with peremptory norm of general international law (jus cogens) or if its
conclusion has been procured by the threat or use of force in violation of the principles of
international law embodied in the Charter of the United Nations. (Vienna Convention on the
Law of Treaties, Art. 52 & 53).

Actually, that is related in the question asked in 2019:

2019, A.1. Define the following terms:

(a) Jus cogens (2%)

Jus cogens are actually norms of international law which we consider peremptory – meaning no
derogation is allowed, no exemptions, it’s absolute.

What are some examples of jus cogens norms?

Part of customary international law. The State is not authorized to use force against the
territorial integrity of another. That’s jus cogens. So, State A and State B cannot enter into a
treaty in order to invade State X because that is now an example of a treaty violating
international law. It violates the principle of non-usage of force in the territorial integrity of
another, that is considered a jus cogens. It has the status of non-derogable principle in
international law. The right of innocent passage seems to have the force of jus cogens, meaning
you cannot prohibit ships from exercising of innocent passage within your exclusive economic
zone.

2019 Bar Exam: B.16.

Under the 1987 Constitution, to whom does each
duty/power/privilege/prohibition/disqualification apply: xxx
(e) The power to ratify treaties and international agreements. (1%)
Suggested Answer: To the President subject to the concurrence of the Senate.
The power to declare the existence of a state of war belongs to the Congress (Senate and
House), by a vote of 2/3 of both Houses in joint session assembled, voting separately, shall have
the sole power to declare the existence of a state of war (Art. VI, Sec. 23, Const.) When it comes
to treaties, only the Senate has involvement

2015, No. 1. The Philippines and the Republic of Kroi Sha established diplomatic relations and
immediately their respective Presidents signed the following: ( 1) Executive Agreement allowing
the Republic of Kroi Sha to establish its embassy and consular offices within Metro Manila; and
(2) Executive Agreement allowing the Republic of Kroi Sha to bring to the Philippines its military
complement, warships, and armaments from time to time for a period not exceeding one
month for the purpose of training exercises with the Philippine military forces and exempting
from Philippine criminal jurisdiction acts committed in the line of duty by foreign military
personnel, and from paying custom duties on all the goods brought by said foreign forces into
Philippine territory in connection with the holding of the activities authorized under the said
Executive Agreement. Senator Maagap questioned the constitutionality of the said Executive
Agreements and demanded that the Executive Agreements be submitted to the Senate for
ratification pursuant to the Philippine Constitution. Is Senator Maagap correct? Explain. (4 % )

Suggested answer:

As to number 1, I believe the executive agreement allowing the establishment of an embassy is

essentially executive in nature because the President is the sole organ of foreign relations, he
wants to establish a friendly relation with another country.

As to number 2, it is covered by another provision regarding the presence of military

complements, warships, and armaments, they should be subjected to Senate concurrence. In
fact, the Congress can even say to let the people to decide, this matter is not solely executive.

There are other matters about exempting from criminal jurisdiction. The Supreme Court allowed
that in one case because it seems to include into the rule-making power of the Congress in
defining criminal jurisdiction of the Philippine Court. The SC stated that when you enter in that
treaty, you also limit the sovereignty, so that matter requires concurrence.

As to tax exemption, the Supreme Court stated that it should be concurred by the majority
members of Congress. But the Supreme Court justified this that this will require concurrence
specially with the presence of foreign military warships, armaments and soldiers, number 1
does not undergo senate concurrence.

2016, No. 10. The Philippines entered into an international agreement with members of the
international community creating the International Economic Organization (IEO) which will
serve as a forum to address economic issues between States, create standards, encourage
greater volume of trade between its members, and settle economic disputes. After the
Philippine President signed the agreement, the Philippine Senate demanded that the
international agreement be submitted to it for its ratification. The President refused, arguing
that it is an executive agreement that merely created an international organization and it dwells
mainly on addressing economic issues among States.

Is the international agreement creating the IEO a treaty or an executive agreement? Explain.
(5%)

I am thinking that in actual practice, at first there is WTO which is a treaty. Take note it doesn’t
use the word treaty – World Trade Organization. Prior to that, we have Tariff and Trade, the tax
on imports and exports, it removed the trade barriers. If we look at it, these are original
agreements, they are not transitory. The creation of this body will not be a transitory matter,
and it establishes a national policy regarding trade relations. So I believe it is something that
must have concurrence and should be submitted to the Senate for its concurrence, otherwise it
is not valid.

2017, IX (c),The President signs an agreement with his counterpart in another country involving
reciprocity in the treatment of each country's nationals residing in the other's territory.
However, he does not submit the agreement to the Senate for concurrence.

Sec. 21, Art. VII of the Constitution provides that no treaty or international agreement shall be
valid and effective without such concurrence.

Is the agreement signed by the President effective despite the lack of Senate concurrence?
Explain your answer. (4%)

The matter of reciprocity of treatment of citizen of another country is not just transitory in
character, it establishes national policy and it can have great consequences. For instance, it
stated that if that country allows the Filipino citizens to exercise their professions in that
country, then we will also allow their citizens to exercise their professions in the Philippines. But
this should only be opened by Congress. So this is a policy which seems to encroach the
Constitution. If they allow the Filipinos to own lands in their country, we also allow foreigners to
own lands in the Philippines – that will be dangerous. So, I believe this is a new matter which
establishes a national policy, not merely transitory, therefore it must be submitted to the Senate
for its concurrence.