What will be debated on Tuesday in the Supreme Court is whether the Edca is a treaty or an executive agreement. Both bind the Philippine government in its dealings with other governments, but each has different constitutional requirements to become valid. The Philippines signed the Edca only as an executive agreement, but petitioners to the Supreme Court challenged it. Can President Rodrigo Roa Duterte conclude a valid oral executive agreement with China to allow Chinese fishing vessels to enter the Philippines` exclusive economic zone? Of course, the devil will always be in the details of such an agreement. At least a properly executed executive agreement, when it actually enters into force, should provide for conservation and sustainable fishing practices, as well as the protection of our fishermen from harassment by China`s Surging Second Sea Force, its vaunted naval militia, which cooperates with its vast fleet of civilian fishing vessels. For the rest, Judge Carpio is right to warn that if the president continues to talk about an oral agreement by which he would have granted Chinese fishing rights in our EEZ, we will be bound to it in the most disadvantageous way by the doctrine of a binding unilateral declaration. In the absence of clear provisions on resource conservation and management, such a declaration would give China carte blanche – with 1.5 billion mouths to feed – to deplete our already stretched maritime resources in our EEZ. But this would not be an executive agreement, but a sad way to renegotiate our national heritage for absolutely nothing, section 1 of Executive Order 459 provides that any negotiation of such contracts or agreements can only be done with the participation of the Ministry of Foreign Affairs with the appointment of the head of the Philippine negotiating body, in coordination with the ministry. It is time for our foreign affairs experts to speak out on this matter of national interest. President Duterte`s disturbing remarks on an executive agreement, which appear to have been written on water, were made aware by Judge Antonio Carpio of going so far as to take practical action against his own Ponencia in the Magallona case (G.R. No.
187167, August 16, 2011). Judge Carpio, a resounding critic of the government`s attitude toward China after our own victory as arbitrator, said in the minutes that the Constitution was superior to the Convention on the Law of the Sea on the issue of the Philippine EEZ. Elsewhere, I have written that executive agreements in Philippine law are quite interesting animals, especially because they are normally based on an earlier treaty that would be implemented by such executive agreements. They therefore show what right-wing theorists would call a “quasi-monistic” character (because they no longer require legislative – or even judicial – measures). However, the paradox is that they result only from this essentially “dualistic” means of the treaty, which must first be approved by the Senate in accordance with the clause of the Constitutional Treaty (see the myPhilippine chapter in the Oxford Handbook of International Law in Asia and the Pacific, OUP, Chesterman, Owada and Saul, eds., in its publication, August 2019). As a result, the Supreme Court would often be able to apply an executive agreement to an original treaty. Treaties concluded or ratified by the Philippines. Where appropriate, articles should be classified into subcategories. This category may contain articles relating to treaties concluded or ratified by the Philippines since July 4, 1946, the date of the establishment of the Republic of the Philippines.
In Magallona, where we questioned the constitutionality of the new baselines Law, Republic Act 9522, Justice Carpio had stated that there was no conflict between the provisions of the Law of the Sea on maritime claims and the provisions of the national territory of the 1987 Constitution. . .