Feb 222013
 

DISSENTING OPINION OF PHILIPPINE SUPREME COURT JUSTICE REYNALDO PUNO ON VISITING FORCES AGREEMENT

 

The cases at bar offer a smorgasbord of issues. As summed up by the Solicitor General, they are:

 

 

 

“I

 

DO PETITIONERS HAVE STANDING AS CONCERNED CITIZENS, TAXPAYERS, OR LEGISLATORS?

 

 

 

II

 

IS THE VFA CONSISTENT WITH THE GENERAL WELFARE CLAUSE OF THE CONSTITUTION?

 

 

 

III

 

IS THE VFA GOVERNED BY THE PROVISIONS OF SECTION 21, ARTICLE VII OR SECTION 25, ARTICLE XVIII OF THE CONSTITUTION?

 

 

 

IV

DOES THE VFA CONSTITUTE AN ABDICATION OF PHILIPPINE SOVEREIGNTY?

 

 

 

 

(a) DOES THE VFA DEPRIVE PHILIPPINE COURTS OF THEIR JURISDICTION TO HEAR AND TRY OFFENSES COMMITTED BY U.S. MILITARY PERSONNEL?

 

 

 

(b) IS THIS COURT DEPRIVED OF ITS JURISDICTION OVER OFFENSES PUNISHABLE BY RECLUSION PERPETUA OR HIGHER?

 

 

 

V

 

DOES THE VFA VIOLATE THE EQUAL PROTECTION CLAUSE UNDER SECTION 1, ARTICLE III OF THE CONSTITUTION?

 

 

 

VI

 

IS THE NUCLEAR BAN UNDER SECTION 8, ARTICLE II OF THE CONSTITUTION VIOLATED BY THE VFA? 

 

 

 

VII

 

ARE FILIPINOS DENIED THEIR PERSONAL AND PROPERTY RIGHT TO SUE FOR TORTS AND DAMAGES?

 

 

 

VIII

WAS THERE UNDUE DELEGATION OF LEGISLATIVE POWER IN THE APPROVAL OF THE VFA?

 

 

 

IX

 

DOES THE VFA CONTRAVENE THE POLICY ON NEUTRALITY UNDER SECTION 7, ARTICLE II OF THE CONSTITUTION?

 

 

 

X

 

IS THE TERM “ACTIVITIES” UNDER THE COVERAGE OF THE VFA VAGUE, UNQUALIFIED OR UNCERTAIN?”

 

 

 

 

 

I like to to think that the most significant issue is whether the Visiting Forces Agreement (VFA) violates Sec. 25, Art. XVIII of the Constitution. I shall therefore limit my opinion on this jugular issue.

 

 

 

 The 1987 Constitution provides in Sec. 25, Art. XVIII, viz.:

 

 

 

 

 

“After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except render a treaty duly concurred in by the Senate and when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.”

 

 

 

This provision lays down three constitutional requisites that must be complied with before military bases, troops, facilities can be allowed in Philippine territory, namely: (1) their presence should be allowed by a treaty duly concurred in by the Philippine Senate; (2) when Congress so requires, such treaty should be ratified by a majority of the votes cast by the Filipino people in a national referendum held for that purpose; and (3) such treaty should be recognized as a treaty by the other contracting party.

 

 

 

 To start with, respondents, with unrelenting resolve, claim that these constitutional requirements are not applicable to the VFA. They contend that the VFA, as its title implies, contemplates merely temporary visits of U.S. military troops in Philippine territory, and does not come within the purview of Sec. 25, Art. XVIII of the Constitution. They assert that this constitutional provision applies only to the stationing or permanent presence of foreign military troops on Philippine soil since the word “troops” is mentioned along with “bases” and “facilities” which are permanent in nature./1 This assertion would deserve serious attention if the temporary nature of these visits were indeed borne out by the provisions of the VFA. If we turn, however, a heedful eye on the provisions of the VFA as well as the interpretation accorded to it by the government officials charged with its negotiation and implementation, the temporary nature of the visits would turn out to be a mirage in a desert of vague provisions of the VFA. Neither the VFA nor the Mutual Defense Treaty between the Republic of the Philippines and the United States of America/2 to which the VFA refers in its preamble,/3 provides the slightest suggestion on the duration of visits of U.S. forces in Philippine territory. The joint public hearings on the VFA conducted by the Senate Committee on Foreign Relations and the Senate Committee on National Defense and Security give us a keyhole to the time frame involved in these visits.

 

 Secretary of Foreign Affairs Domingo L. Siazon, the Philippine’s signatory to the VFA. testified before the said committees that even before the signing of the VFA, Philippine and U.S. troops conducted joint military exercises in Philippine territory for two days to four weeks at the frequency of ten to twelve exercises a year. The “Balikatan”, the largest combined military exercise involving 3,000 troops, lasted at an average of three to four weeks and occurred once every year or one and a half years/4 He further declared that the VFA contemplates the same time line for visits of U.S. troops, bur argued that even if these troops conduct ten to twelve exercises a year with each lasting for two to three weeks, their stay will not be uninterrupted, hence, not permanent./5 Secretary of National Defense Orlando S. Mercado further testified that the VFA will allow joint military exercises between the Philippine and U.S. troops on a larger scale than those we had been undertaking since 1994./6 As the joint military exercises will be conducted on a larger scale, it would be reasonable to project an escalation of the duration as well as frequency of past joint military exercises between Philippine and U.S. troops.

 

 These views on the temporary nature of visits of U.S. troops cannot stand for, clearly, the VFA does not provide for a specific limited period of effectivity. It instead provide an open-ended term in Art. IX, viz.: “… (t)his agreement shall remain in force until the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement.” No magic of semantics will blur the truth that the VFA could be in force indefinitely. The following exchange between Senator Aquilino Q. Pimentel, Jr. and Secretary Siazon in the public hearings on VFA is apropos to the issue:

 

 

 

 

 

“SEN. PIMENTEL. … In other words, this kind of activities are not designed to last only within one year, for example, the various visits that can cover eternity until the treaty is abrogated?

 

 

 

 

 

MR. SIAZON. Well, your honor, this is an exercise for the protection of our national security, and until conditions are such that there is no longer a possible threat to our national security, then you will have to continue exercising, Your Honor, because we cannot take a chance on it.

 

 

 

 

 

SEN. PIMENTEL. So, this will be temporary permanent, or permanently temporary?

 

 

 

 MR. SIAZON. Permanently temporary, Your Honor.”/7  

 

 

 

 The worthiest of wordsmiths cannot always manipulate the meaning of words. Black’s Law Dictionary defines “temporary” as “that which is to last for a limited time only, as distinguished from that which is perpetual and indefinite in its duration”/8 and states that “permanent” is “generally opposed to ‘temporary’ but not always meaning perpetual.”/9 The definitions of “temporary” and “permanent” in Bouvier’s Law Dictionary are of similar import: temporary is “ that which is to last for a limited time”/10 while permanent “does not always embrace the idea of absolute perpetuity.”/11 By these definitions, even the contingency that the Philippines may abrogate the VFA when there is no longer any threat to our national security does not make the visits of U.S. troops temporary, nor do short interruptions in or gaps between joint military exercises carve them out from the definition of “permanent” as permanence does not necessarily contemplate absolute perpetuity.

 

 

 

 It is against this tapestry woven from the realities of the past and a vision of the future joint military exercises that the Court must draw a line between temporary visits and permanent stay of U.S. troops. The absence in the VFA of the slightest suggestion as to the duration of the visits of U.S. troops in Philippine territory, coupled with the lack of a limited term of effectivity of the VFA itself justify the interpretation that the VFA allows permanent, not merely temporary, presence of U.S. troops on Philippine soil. Following Secretary Siazon’s testimony, if the visits of U.S. troops could last for four weeks at the most and at the maximum of twelve times a year for an indefinite number of years, then by no stretch of logic can these visits be characterized as temporary because in fact, the U.S. troops could be in Philippine territory 365 days a year for 50 years — longer than the duration of the 1947 RP-US Military Bases Agreement/12 which expired in 1991 and which, without question, contemplated permanent presence of U.S. bases, facilities, and troops.

 

 

 

 To be sure, even former Secretary of Justice, Serafin Cuevas, admitted in the same public hearings that the subject matter of the VFA, i.e., the visits and activities of U.S. troops in Philippine territory, partakes of a permanent character. He declared with clarity:

 

 

 

 

 

 MR. CUEVAS. … Why we considered this as a treaty is because the subject therein treated had some character of permanence; and secondly, there is a change insofar as some of our laws are concerned.”/13 

 

 

 

 Thus, regardless of whether Sec. 25, Art. XVIII of the Constitution contemplates permanent presence of foreign military troops alone, or temporary presence as well, the VFA comes within its purview as it allows the permanent presence of U.S. troops on Philippine soil. Contrary to respondents’ allegation, the determination of the permanent nature of visits of U.S. troops under the VFA is an issue ripe for adjudication since Sec. 25 of Art. XVIII speaks of the manner by which U.S. troops may be allowed to enter Philippine territory. We need not wait and see, therefore, whether the U.S. troops will actually conduct military exercises on Philippine soil on a permanent basis before adjudicating this issue. What is at issue is whether the VFA allows such permanent presence of U.S. troops in Philippine territory.

 

 To determine compliance of the VFA with the requirement of Sec. 25, Art. XVIII of the Constitution, it is necessary to ascertain the intent of the framers of the Constitution as well as the will of the Filipino people who ratified the fundamental law. This exercise would inevitably take us back to the period in our history when U.S. military presence was entrenched in Philippine territory with the establishment and operation of U.S. Military Bases in several parts of the archipelago under the 1947 R.P.-U.S. Military Bases Agreement. As articulated by Constitutional commissioner Blas F. Ople in the 1986 Constitutional Commission deliberations on this provision, the 1947 RP-US Military Bases Agreement was ratified by the Philippine Senate, but not by the United States Senate. In the eyes of Philippine law, therefore, the Military Bases Agreement was a treaty, but by the laws of the United States, it was a mere agreement./14 This asymmetry in the legal treatment of the Military Bases Agreement by the two countries was believe to be a slur to our sovereignty. Thus, in the debate among the Constitutional Commissioners, the unmistakable intention of the commission emerged that anomalous asymmetry must be repeated/15 to correct this historical aberration, Sec. 25, Art. XVIII of the Constitution requires that the treaty allowing the presence of foreign military bases, troops, and facilities should also be “recognized as a treaty by the other contracting party.” In plain language, recognition of the United States as the other contracting party of the VFA should be by the U.S. President with the advice and consent of the U.S. Senate./16 The following exchanges manifest this intention: 

 

 

 

 

 

“MR. OPLE. Will either of the two gentlemen yield to just one question for clarification? Is there anything in this formulation, whether that of Commissioner Bernas or of Commissioner Romulo, that will prevent the Philippine government from abrogating the existing bases agreement?

 

 

 

 

 

FR. BERNAS. To my understanding, none.

 

 

 

 

 

MR. ROMULO. I concur with Commissioner Bernas.

 

 

 

 

 

 MR. OPLE. I was very keen to put this question because I had taken the position from the beginning – and this is embodied in a resolution filed by Commissioners Natividad, Maambong and Regalado – that it is very important that the government of the Republic of the Philippines be in a position to terminate or abrogate the bases agreement as one of the options…we have acknowledged starting at the committee level that the bases agreement was ratified by our senate; it is a treaty under Philippine law. But as far as the Americans are concerned, the Senate never took cognizance of this and therefore, it is an executive agreement. That creates a wholly unacceptable asymmetry between the two countries. Therefore, in my opinion, the right step to take, if the government of our country will deem it in the national interest to terminate the agreement or even to renegotiate it, is that we must begin with a clean slate; we should not be burdened by the flaws of the 1947 Military Bases Agreement…

 

 

 

 

 

MR. ROMULO. Madam President, I think the two phrases in the Bernas formulation take care of Commissioner Ople’s concerns/

 

 

 

 

 

The first says “EXCEPT UNDER THE TERMS OF A TREATY.” That means that if it is to be renegotiated, it must be under the terms of a new treaty. The second is the concluding phrase which says: “AND RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE.”

 

 

 

x x x

 

 

 

 

 

MR. SUAREZ. Is the proposal prospective and not retroactive in character?

 

 

 

 

 

FR. BERNAS. Yes, it is prospective because it does not touch the validity of the present agreement. However, if a decision should be arrived at that the present agreement is invalid, then, even prior to 1991, this becomes operative right away.

 

 

 

 

 

 MR. SUAREZ. In other words, we do not impress the previous agreement with a valid character, neither do we say that they are null and void ab initio as claimed by many of us here.

 

 

 

 

 

FR. BERNAS. The position I hold is that it is not the function of this Commission to pass judgment on the validity or invalidity of the subsisting agreement.

 

 

 

 

 

 MR. SUAREZ. …the proposal requires recognition of this treaty by the other contracting nation. How would that recognition be expressed by that other contracting nation? That is in accordance with their constitutional or legislative process, I assume.

 

 

 

 

 

 FR. BERNAS. As Commissioner Romulo indicated, since this certainly would refer only to the United States, because it is only the United States that would have the possibility of being allowed to have treaties here, then we would have to require that the Senate of the United States concur in the treaty because under American constitutional law, there must be concurrence on the part of the Senate of the United States to conclude treaties.

 

 

 

 

 

    x x x

 

 

 

 

 

 FR. BERNAS. When I say that the other contracting state must recognize it as a treaty, by that I mean it must perform all the acts required for the agreement to reach the status of a treaty under their jurisdiction.” (emphasis supplied)/17 

 

 

 

 In ascertaining the VFA’s compliance with the constitutional requirement that it be “recognized as a treaty by the other contracting state,” it is crystal clear from the above exchanges of the Constitutional Commissioners that the yardstick should be U.S. constitutional law. It is therefore apropos to make a more in depth study of the U.S. President’s power to enter into executive agreements under U.S. constitutional law.

 

 Sec. 2, Art. II, Clause 2 of the U.S. Constitution provides that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” The U.S. Constitution does not define “treaties”. Nevertheless, the accepted definition of a “treaty” is that of “an agreement between two or more states or international organizations that is intended to be legally binding and is governed by international law.”/18 Although the United States did not formally ratify the Vienna Convention on the Law of Treaties, its definition of a treaty has been applied by U.S. courts and the State Department has stated that the Vienna Convention represents customary international law./19 The Vienna Convention defines a treaty as “an international agreement concluded between states in written form and governed by international law.”/20 It has been observed that this definition is broader than the sense in which “treaty” is used in the U.S. Constitution. In U.S. practice, a “treaty” is only one of four types of international agreements, namely: Article II treaties, executive agreements pursuant to a treaty, congressional-executive agreements, and soul executive agreements./21

 

 

 

 The term “executive agreement” is used both colloquially and in scholarly and governmental writings as a convenient catch-all to subsume all international agreements intended to bind the United States and another government, other than those which receive consent of two thirds of the U.S. Senate./22 The U.S. Constitution does not expressly confer authority to make them executive agreements, their scope, and legal force have been the subject of a long on-going debate./23 This, notwithstanding, executive agreements have grown to be a primary instrument of foreign policy in the United States. In 1789-1839, the United States concluded 60 treaties and only 27 executive agreements. In 1930-1939, the United States entered into 142 treaties and 144 executive agreements. In 1940-1949, 116 treaties and 919 executive agreements were concluded by the United Sates. From 1980-1988, the United Sates entered into 136 treaties and 3,094 executive agreements. In sum, by 1988, there were 12,778 executive agreements as opposed to 1,476 treaties, accounting to about 90% of the international agreements concluded by the United States./24

 

 

 

 The upsurge in the use of executive agreements in the post World War II period may be attributed to several factors. President Franklin Roosevelt set a precedent for the more recent presidents by, for instance, completing the Destroyer-for-Bases deal of 1940 with an executive agreement. President Harry S. Truman likewise concluded the Potsdam Agreement by executive agreement. The U.S. Presidents also committed military missions in Honduras and El Salvador in the 1950’s; pledged security to Turkey, Iran, and Pakistan; acquired permission from the British to use the island of Diego Garcia for military purposes in the 1960’s; and established a military mission in Iran in 1974, all by way of executive agreements./25 U.S. Supreme Court decisions affirming the validity of executive agreements have also contributed to the explosive growth of their usage./26 Another factor that accelerated its use was the foreign policy cooperation between Congress and the executive as expressed in the postwar refrain that “politics must end at the water’s edge.”/27 The fifth factor in the Cold War which put the United States in a “constant state of emergency” which required expediency in decisions and actions regarding the use of force or diplomacy. Last but not the least, the nuclear weapons race and instantaneous global communication made centralized foreign policy machinery under the U.S. President necessary./29

 

 

 

These executive agreements which have grown to be the primary instrument of U.S. foreign policy may be classified in three types, namely:

 

 

 

 

(1) Treaty-authorized executive agreements, i.e., agreements  made by the President pursuant to authority conferred in a prior treaty./30

 

 

 

 

(2) Congressional-executive agreements, i.e., agreements either (a) negotiated by the President with prior Congressional authorization or enactment or (b) confirmed by both Houses of Congress after the fact of negotiation;/31 and

 

 

 

 

 (3) Presidential or sole executive agreements, i.e., agreements made by the President based on his exclusive presidential powers, such as the power as commander-in-chief of the armed forces pursuant to which conducts military operations with U.S. allies, or his power to receive ambassadors and recognize foreign governments./32

 

 

 

This Classification is important as the different types of executive agreements bear distinction in terms of constitutional basis, subject matter and legal effects in the domestic arena. For instance, treaty-authorized executive agreements do not pose constitutional problems as they are generally accepted to have been pre-approved by the Senate when the Senate consented to the treaty which authorized the executive to enter into executive agreements; another view supporting acceptance is that the Senate delegated to the President the authority to make the executive agreements./33 In comparison, the constitutionality of congressional executive agreements has provoked debates among legal scholars. One view espoused by interpretivists such as Edwin Borchard, holds that all international agreements must be strictly in accordance with Sec. 2, Art. II of the U.S. Constitution, and thus congressional-executive agreements are constitutionally invalid. According to them, allowing congressional-executive agreements would enhance the power of the President as well as the House of Representatives, in utter violation of the intent of the framers of the U.S. Constitution./34 The opposite school of thought, led by Myer S. McDougal and Asher Lans, holds that congressional-executive agreements and treaties are interchangeable, thus, such agreements are constitutional. These non-interpretivists buttress their stance by leaning on the constitutional clause that prohibits States, without consent of Congress, from enter(ing) into any agreement or Compact with another State, or with a Foreign Power.” By making reference to international agreements other than treaties, these scholars ague that the framers of the Constitution intended international agreements, other than treaties, to exist. This school of thought generally opposes the “mechanical, filiopietistic theory, (which) purports to regard the words of the Constitution as timeless absolutes.”/35 and gives emphasis to the necessity and expediency of congressional-executive agreements in modern foreign affairs./36 Finally, sole executive agreements which account for a relatively small percentage of executive agreements are the most constitutionally problematic since the system of checks and balances is inoperative when the President enters an executive agreement with neither the Senate’s nor Congress’ consent. This last type of executive agreement draws authority upon  the President’s enumerated powers under Article II of the U.S. Constitution, such as the President’s power as Commander-in-Chief of the U.S. army and navy./37

 

 

 

 I respectfully submit that using these three types of executive agreements as bases for classification, the VFA would not fall under the category of an executive agreement made by the president pursuant to authority conferred in a prior treaty because although the VFA makes reference to the Mutual Defense Treaty in its Preamble./38 the Mutual Defense Treaty itself does not confer authority upon the U.S. President to enter into executive agreements in implementation of the Treaty. Issues have occasionally arisen about whether an executive agreement was entered into pursuant to a treaty. These issues, however, involved mere treaty interpretation./39 In Wilson v. Girard, 354 US 524 (1957), the U.S. Supreme Court had occasion to interpret Art. III of the Security Treaty Between the United States of America and Japan which stated that, “(t)he conditions which shall govern the disposition of armed forces of the United States of America in and about Japan shall be determined by administrative agreements between the two Governments.”/40 Pursuant to this provision in the treaty, the executive entered into an administrative agreement covering, among other matters, jurisdiction of the United States over offenses committed in Japan by members of the U.S. armed forces. The U.S. Supreme Court recognized the validity of the Administrative Agreement as it was concluded by the President pursuant to the authority conferred upon him by Art. III of the Security Treaty between Japan and the United States to make administrative agreements between the two governments concerning “(t)he conditions which shall govern the disposition of armed forces of the United States of America in and about Japan.”

 

 

 

 Respondents boldly claim that the VFA is authorized by Art. II of the RP-US Mutual Defense Treaty which provides that, “(i)n order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack.”/41 The alleged authorization is not as direct and unequivocal as Art. III of the Security Treaty Between the U.S. and Japan, hence it would be precarious to assume that the VFA derives authorization from the mutual defense Treaty. The precariousness is heightened by the fact that when the U.S. Senate ratified the Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces/42 which was concluded pursuant to the North Atlantic Treaty (NATO),/43 the Senate included in its instrument of ratification statements on matters of jurisdiction over U.S. forces stationed abroad, among which was an admonition that the agreement’s provisions on criminal jurisdiction which have similar features as the VFA, do not constitute a precedent for future agreements. We can reasonably gather from the U.S. Senate’s statements that criminal jurisdiction over U.S. forces stationed abroad is a matter of Senate concern, and thus Senate authorization from the President to enter into agreements touching upon such jurisdictional matters cannot so easily be assumed.

 

 

 

Neither does the VFA fall under the category of a Congressional Executive Agreement as it was not concluded by the U.S. President pursuant to Congressional authorization or enactment nor has it been confirmed by the U.S. Congress. 

 

 

 

At best, the VFA would be more akin to a sole presidential executive agreement which would be valid if concluded on the basis of the U.S. President’s exclusive power under the U.S. Constitution. Respondents argue that except for the Status of Forces Agreement (SOFA) entered into pursuant to the NATO, the United States, by way of executive agreements, has entered into 78 Status of Forces Agreements (SOFA) which extend privileges and immunities to U.S. forces stationed abroad,/44 similar to the provisions of the VFA. Respondents have failed, however. to qualify whether these executive agreements are sole executive agreements or were concluded pursuant to Congressional authorization or were authorized by treaty. This detail is important in view of the above discussion on the sense of the Senate on criminal jurisdiction over U.S. forces stationed abroad.

 

 

 

 It will contribute to the elucidation of the legal status of the VFA under U.S. law if we compare the legal force of sole executive agreements and of treaties. Under international laws, treaties and executive agreements equally bind the United States./45 If there is any distinction between treaties and executive agreements, it must be found in U.S. constitutional law./46The distinction, if any, between the legal force of treaties and executive agreements on the domestic plane may be treated on three levels, namely, vis-à-vis: (1) state law; (2) acts of Congress and treaties; and (3) the U.S. Constitution. 

 

 

 

The Supremacy clause of the U.S. Constitution provides:

 

 

 

 

 

“This Constitution and the Law of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”/47

 

 

 

 It is well-settled that this clause provides the constitutional basis for the superiority of a treaty over state law. Thus, the Warsaw Convention to which the United States is a signatory preempts the California law on airline liability./48 The U.S. Supreme Court has ruled in unmistakable terms that a treaty enjoys supremacy over state law, viz.:

 

 

 

 

 

“Plainly, the external powers of the United States are to be exercised without regard to state laws or policies. The supremacy of a treaty in this respect has been recognized from the beginning. Mr. Madison, in the Virginia Convention, said that if a treaty does not supersede existing state laws, as far as they contravene its operation, the treaty would be ineffective. “To counter-act it by the supremacy of the state laws, would bring on the Union the just charge of national perfidy, and involve us in war.” 3 Elliot, Debates, 515….this rule in respect of treaties is established by the express language of cl. 2, Art. 6, of the Constitution….” (emphasis Supplied)/49

 

 

 

 It is also generally conceded that the sole executive agreements are supreme over state law and policy. Two case decided by the U.S. Supreme Court support this view.

 

 

 

The first of these two cases, United States v. Belmont,/50 involved the Litvinov Assignment, a sole executive agreement executed between the United States and the Soviet Government. In 1918, the Soviet government, by laws and decrees, nationalized, among others, a Russian corporation, and appropriated its assets including a sum of money deposited with Belmont, a private banker doing business in New York. The sum of money remained Russian property until 1933, at which time the Soviet government released and assigned to the United States all amounts due the Soviet government from American nationals, including the deposit account of the Russian corporation with Belmont. The assignment, better known as the Litvinov Assignment, was effected by an exchange of diplomatic correspondence between the Soviet government and the United States to bring about a final settlement of the claims and counter-claims between the Soviet government and the United States. Coincident with the assignment, The U.S. government recognized the Soviet Government and normal diplomatic relations were established between the two governments./51

 

 

 

 Upon demand duly made by the United States, the executors of Belmont’s will failed and refused to pay the sum of money deposited by the Russian corporation with Belmont. The United States thus filed a suit in a federal district court to recover the sum of money. The court below held that the situs of the bank deposit was within the State of New York and not within the Soviet territory. Thus, the nationalization decree, if enforced, would amount to an act of confiscation which was contrary to the controlling public policy of New York. The U.S. Supreme Court, however, held that no state policy could prevail against the Litvinov Assignment./52 It ruled as follows:

 

 

 

 

 

“The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treaty making clause of the Constitution (Sec. 2, Art.2), require the advice and consent of the Senate.

 

 

 

 

 

A treaty signifies “a compact made between two or more independent nations with a view to the public welfare.” B. Altman & Co. v. United States, 224 U.S. 583, 600, 56 L. ed. 894, 910, 32 S. Ct. 593. But an international compact, as this law was, is not always a treaty which requires the participation of the Senate. There are many such compacts, of which a protocol, a modus vivendi, a postal convention, and agreements like that now under consideration are illustrations.” (emphasis supplied)/53

 

 

 

On supremacy of executive agreements over state law, it ruled as follows:

 

 

 

 

 

“Plainly, the external powers of the United States are to be exercised without regard to the state laws or policies. The supremacy of a treaty in this respect has been recognized from the beginning. Mr. Madison, in the Virginia Convention, said that if a treaty does not supersede existing state laws, as far as they contravene its operation, the treaty would be ineffective. “To counter-act it by the supremacy of the state laws, would bring on the Union the just charge of national perfidy, and involve us in war.” 3 Elliot, Debates, 515…And while this rule in respect of treaties is established by the express language of cl. 2, Art. 6, of the Constitution, the same rule would result in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the national government and is not and cannot be subjected to any curtailment or interference on the part of the several states.” (emphasis supplied)/54

 

 

 

 

 

(x x x page 23 of this document is missing x x x)

 

 

 

States and Iran agreed to cancel certain claims between them and to establish a special tribunal to resolve other claims, including those by U.S. nationals against Iran. The United States also agreed to close its courts to those claims, as well as to suits by U.S. citizens against the government of Iran for recovery of damages arising from the Hostage Crisis. Although the agreement was entered into by the President pursuant to Congressional authorization, the Court found that the President’s action with regard to claims was not authorized. Nevertheless, the U.S. Supreme Court, noting the power of residents in foreign affairs which includes the power to settle claims, as well as Congressional acquiescence to such practice, upheld the validity of the Algiers Accord.

 

 

 

Upon the other hand, those opposed to sole executive agreements argue that the pronouncements of the Court in the Belmont and Pink cases mean that sole executive agreements override state legislation only when founded upon the President’s constitutional power to recognize foreign governments./59

 

 

 

While treaties and sole executive agreements pale in comparison to treaties when pitted against prior inconsistent acts of Congress. The U.S. Supreme Court has long ago declared that the Constitution mandates that a treaty and an act of legislation are both “supreme law of the land.” As such, no supreme efficacy is given to one over the other. If the two relate to the same subject matter and are inconsistent, the one later in date will prevail, provided the treaty is self-executing.”/60 i.e., “whenever it operates of itself without aid of legislation.”/61. In the The Cherokee Tobacco (Boudinot v. United States)/62 the U.S. Supreme Court also held that where there is repugnance between a treaty and an Act of Congress, “(a) treaty may supersede a prior Act of Congress… and an Act of Congress may supersede a prior treaty….”/63 Settled is the rule, therefore, that a treaty supersedes an earlier repugnant Act of Congress, and an Act of Congress supersedes a earlier contradictory treaty./64 As a corollary, a treaty being placed on the same footing as an act of legislation./65 can repeal or modify a prior inconsistent treaty.

 

 

 

In case of sole executive agreements, commentators have been in general agreement that unlike treaties, sole executive agreements cannot prevail over prior inconsistent federal legislation. Even proponents of sole executive agreements admit that while a self-executing treaty can supersede a prior inconsistent statute, it is very doubtful whether a sole executive agreement, in the absence of appropriate legislation, will be given similar effect./66 Wallace McClure, a leading proponent of the interchangeability of treaties and executive agreements, opined that it would be contrary to “the entire tenor of the Constitution./67 The Restatement (Third) of the Foreign Relations Law of the United States postulates that a sole executive agreement could prevail at least over state law, and (only) possibly federal law without implementing legislation./68 Myer S. McDougal and Asher Lans who are staunch advocates of executive agreements also concede that sole executive agreements will not ordinarily be valid if repugnant to existing legislation./69

 

 

 

In United States v. Guy W. Capps, Inc.,/70 a leading lower court decision discussing the issue of supremacy of executive agreements over federal legislation, the Fourth Circuit held that, “the executive agreement was void because it was not authorized by Congress and contravened positions of a statute dealing with the very matter to which it related…”/71 The U.S. Supreme Court itself has “intimated that the President might act in external affairs without congressional authority, but not that he might act contrary to an Act of Congress.”/72 The reason for this is that the U.S. President’s power to enter into international agreements derives from this position as Chief Executive. By Sec. 7, Art. 1 of the U.S. Constitution, the president does not have power to repeal existing federal laws. Consequently, he cannot make an indirect repeal by means of a sole executive agreement./73

 

 

 

On the other side of the coin, it is argued, that when the U.S. President enters into a sole executive agreement pursuant to his exclusive presidential authority in the field of foreign relations, such agreemnet may prevail over prior inconsistent federal legislation./74In this situation, the doctrine of separation of powers may permit the U.S. President to disregard the prior inconsistent Act of Congress as an “unconstitutional invasion of his power.”/75However, aside from lacking firm legal support, this view has to contend with the problem of determining which powers are exclusively executive and which powers overlap with the powers of Congress./76

 

 

 

Again, although it is doubtful whether sole executive agreements can supersede prior inconsistent federal legislation, proponents of sole executive agreements interpret the Pink case to mean that sole executive agreements are on equal footing with a treaty, having been accorded the status of “law of the land” under the supremacy clause and the Litvinov Assignment having been recognized to have similar dignity as a treaty./77 President Roosevelt terminated at least two treaties under his independent constitutional powers: the extradition treaty with Greece, in 1933, and the Treaty of Commerce and Navigation with Japan, in 1939./79 That sole executive agreements may repeal or terminate a treaty is impliedly recognized in Charlton v. Kelly/80 as follows: “The executive department having thus elected to waive any right to free itself from the obligation [of the treaty], it is the plain duty of the court to recognize the obligation./81

 

 

 

 As against the U.S. Constitution, treaties and sole executive agreements are in equal footing as they /82 are subject to the same limitations. As early as 1870, the U.S. Supreme Court declared that, “a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.” In Missouri v. Holland,/83 it was held that treaties must not violate the Constitution./84 The U.S. Supreme Court also discussed the constitutionally implied limitations on the treaty making power inr Reid v. Covert,/85 where Justice Black stated that “(n)o agreement with foreign nation can confer power on the Congress, or any other branch of Government, which is free from the restraints of the Constitution.”/86 He concluded that the U.S. Constitution provides limits to the acts of the president, the joint action of the president and Senate, and consequently limits the treaty making power./87

 

 

 

There is not dispute that the constitutional limitations relating to treaties also apply to sole executive agreements. It is well-settled that the due process clause of the Fifth Amendment and other substantive provisions of the U.S. Constitution constitute limitations on both treaties and executive agreements./88 Numerous decisions have also held that both treaties and sole executive agreements cannot contravene private rights protected by the U.S. Constitution./89

 

 

 

In conclusion, after a macro view of the landscape of U.S. foreign relations vis-à-vis U.S. constitutional law, with special attention on the legal status of sole executive agreements, I respectfully submit that the Court will be standing on unstable ground if it places a sole executive agreement like the VFA on the same constitutional plateau as a treaty. Questions remain and the debate continues on the constitutional basis as well as the legal effects of sole executive agreements under U.S. law. The observation of Louis Henkin, a noted international and U.S. constitutional law scholar, captures the sentiments of the framers of the Philippine Constitution and of the Filipinos in crafting Sec. 25, Art. XVIII of the 1987 Constitution — “(o)ften the treaty process will be used at the insistence of other parties to an agreement because they believe that a treaty has greater ‘dignity’ than an executive agreement, because its constitutional effectiveness is beyond doubt, because a treaty will ‘commit’ the Senate and the people of the United States and make its subsequent abrogation or violation less likely.”/90

 

 

 

With the cloud of uncertainty still hanging on the exact legal force of sole executive agreements under U.S. constitutional law, this Court must strike a blow for the sovereignty of our country by drawing a bright line between the dignity and status of a treaty in contrast with a sole executive agreement. However we may wish it, the VFA, as a sole executive agreement, cannot climb to the same lofty height that the dignity of a treaty can reach. Consequently, it falls short of the requirement set by Sec. 25, Art. XVIII of the 1987 Constitution that the agreement allowing the presence of foreign military troops on Philippine soil must be “recognized as a treaty by the other contracting state.”

 

 

 

I vote to grant the petitions.

 

 

 

 

 

REYNATO S. PUNO

 

Associate Justice

 

 

 

 

ENDNOTES

 

 

 

1/  Rollo, pp. 140-141; Consolidated Comment, pp. 20-21. 

 

 

 

2/  Entered into force on August 27, 1952.

 

 

 

3/  The Preamble of the VFA states in relevant part as follows:

 

 

 

 

 The Government of the Philippines and the Government of the  United States of America,

 

Reaffirming their obligations under the Mutual Defense Treaty  of August 30, 1951; xxx

 

 

 

4/  Transcript of Committee Meeting, Committee on Foreign Relations,  January 26, 1999 [hereinafter referred to as Transcript], p. 21.

 

 

 

5/  Id., pp. 103-104.

 

 

 

6/  Id., p. 34.

 

 

 

7/  Id., p. 104.

 

 

 

8/  Black’s Law Dictionary (6th ed.), p. 1464.

 

 

 

9/  Id., p. 1139.

 

 

 

10/  Bouvier’s Law Dictionary (Third Revision), p. 3254.

 

 

 

11/  Id., p. 2568.

 

 

 

12/  Entered into force on March 26, 1947.

 

 

 

13/  Transcript, p. 139.

 

 

 

14/  IV Record of the Constitutional Commission (1986) [hereinafter  referred to as the Record], p. 780.

 

 

 

15/  Bernas, Constitution Explicit on VFA, Today, May 5, 1999.

 

 

 

16/  Record, p. 781.

 

 

 

17/  Record, p. 780-783.

 

 

 

18/  Henkin, Foreign Affairs and the United States Constitution, 2nd ed.,  pp.184-185 (1996), citing Restatement (Third) of the Foreign  Relations Law of the United States, sec. 301, adopting Article 1 of the  Vienna Convention on the Law of Treaties.

 

 

 

19/  Knaupp, Classifying International Agreements Under U.S. Law: The  Beijing Platform as a Case Study, Brigham Young University Law  Review, vol. 1998 (1), p. 244, citing Carter and Trimble, International  Law, p. 110 (1995)

 

 

 

20/  Vienna Convention on the Law of Treaties, U.N. Doc. A/C. 39/27  (1969), sec. 1, art. II.

 

 

 

21/  Knaupp, op. cit. supra note 19, citing Carter and Trimble, op. cit.  supra note 19 at 165-166.

 

 

 

22/  McDougal and Lans, Treaties and Congressional-Executive or  Presidential Agreements: Interchangeable Instruments of National  Policy: 1, The Yale Law Journal, vol. 54 (2), pp. 197-198 (1945).

 

 

 

23/  Henkin, op. cit. supra note 18 at 215.

 

 

 

24/ McCormick, American Foreign Policy and Process, 2nd ed., p. 276  (1992), citing Nelson, Congressional Quarterly’s Guide to the  Presidency (Washington, D.C.: Congressional Quarterly, Inc., 1989),  p. 1104.

 

 

 

25/  Id., pp. 277-278.

 

 

 

26/  Id., pp. 278

 

 

 

27/ Id., pp. 288

 

 

 

28/ Id., pp. 298

 

 

 

29/ Id., pp. 300

 

 

 

30/ Rotunda, Nowak, and Young, Treatise on Constitutional Law –  Substance and Procedure [hereinafter referred to as Treatise], p. 394  (1986), citing Restatement of the Law, 2d, Foreign Relations of the  United States, sec. 119 (1965).

 

 

 

31/ Id., sec. 120.

 

 

 

32/  Id., sec. 121.

 

 

 

33/  Randall, The Treaty Power, 51 Ohio St., L.J., p. 6 (1990).

 

 

 

34/  Id., p. 7.

 

 

 

35/ Id., citing McDougal and Lans, supra note 22 at 212.

 

 

 

36/  Randall, op. cit. supra note 33 at 8, citing McDougal and Land, supra  note 22 at 261-306.

 

 

 

37/ Randall, op. cit. supra note 33 at 10-11.

 

 

 

38/  Supra, note 3.

 

 

 

39/ Randall, op. cit. supra note 33 at 6.

 

 

 

40/  136 UNTS 216 (1952).

 

 

 

41/ Consolidated Memorandum, p. 29.

 

 

 

42/ 199 UNTS 67 (1954)

 

 

 

43/ 34 UNTS 244 (1949)

 

 

 

44/ Consolidated Memorandum, p. 33.

 

 

 

45/ Randall, op. cit. supra note 33 at 4.

 

 

 

46/ Weston, Falk, D’ Amato, International Law and World Order, p. 926  (1980).

 

 

 

47/ U.S. Const., Art. VI. sec. 2.

 

 

 

48/ Maris, International Law, An introduction (1984), p. 224, citing In re  Aircrash in Bali, 1982.

 

 

 

49/ United States v. Belmont, 81 L. Ed. 1134 (1937).

 

 

 

50/ Ibid.

 

 

 

51/ Id., p. 1139.

 

 

 

52/ Id., at 1137.

 

 

 

53/ See note 51, supra.

 

 

 

54/  Id., p. 1140.

 

 

 

59/ For criticism of such view, see Mathews, The Constitutional Power of  the President to Conclude International Agreements, The Yale Law  Journal, vol. 64, p. 376 (1954-1955) and McCormick, American  Foreign Policy and Process, 2nd ed., p. 282 (1992), citing Henkin,  “Foreign Affairs and the Constitution,” Foreign Affairs 66 (Winter  1987/88), p. 185.

 

 

 

60/ Henkin, Foreign Affairs and the United States Constitution, 2nd ed.,  p. 209 (1996), citing Whitney v. Robertson, 124 U.S. 190, 194  (1888)

 

 

 

61/ Id., p. 199, quoting Chief Justice Marshall.

 

 

 

62/ 11 Wallace 616 (1870).

 

 

 

63/ Byrd, Jr., Treaties and Executive Agreements in the United States,  Their Separate Roles and Limitations, p. 82 (1960).

 

 

 

64/ Id., p. 83.

 

 

 

65/ Supra, note 6o, p. 209.

 

 

 

66/ Mathews, op. cit supra note 59 at p. 381, citing Lissitzyn, The Legal  Status of Executive Agreements on Air Transportation, 17 J. Air L. &  Comm. 436, 444 (1950); Corwin, The President’s Control of Foreign  Relations 120 (1917); Hearings before Subcommittee of Senate  Committee on the Judiciary on S.J. Res. 1 & S.J. Res. 43, 83d Cong.,  1st sess. 224, 247 & n.57 (1953); MacChesney, et. al., The Treaty  Power and the Constitution: The Case Against Amendment, 40  A.B.A.J. 203, 205 (1954).

 

 

 

67/ Paul. The Geopolotical Constitution: Executive Expediency and  Executive Agreements, 86(4) California Law Review, Note 287  (1998), citing McClure, International Executive Agreements, p. 343.  (1967).

 

 

 

68/ Id., p. 729, citing Restatement (Third) of the Foreign Relations Law  of the United States, sec. 303 cmt.j.

 

 

 

69/ McDougal and Lans, Treaties and Congressional-Executive or  Presidential Agreements: Interchangeable Instruments of National  Policy: 1, The Yale law Journal, vol. 54 (1), p. 317 (1945).

 

 

 

70/ 204 F.2d 655 (4th Cir. 1953), affirmed on other grounds, 348 U.S.  296, 75 S. Ct. 326, 99 L.Ed. 329 (1955).

 

 

 

71/ Treatise, p. 399.

 

 

 

72/ Mathews, op. cit. supra note 59 at 381, citing Youngstown & Tube  Co. v. Sawyer, 343 U.S. 579, 635-36 n.2 (1952) (concurring opinion  of Jackson).

 

 

 

73/ Mathews, op. cit. supra note 59 at 381

 

 

 

74/  Treatise, p. 401.

 

 

 

75/ See note 69, supra.

 

 

 

76/ See Powell, The President’s Authority over Foreign Affairs: An  Executive Branch Perspective, 67 The George Washington Law  Review, p.550 (1999).

 

 

 

77/ Mathews, op. cit. supra note 59 at 381.

 

 

 

78/ Note 154, Mathews, op. cit. supra note 59, citing Corwin, The  President: Office and Powers 243 (2nd ed. 1941).

 

 

 

79/ Id., p. 376, citing Corwin op. cit supra note 66 at 417.

 

 

 

80/  229 U.S. 447, 474, 476 (1913).

 

 

 

81/ Note 154, Mathews, op.cit. supra note 59 at 376.

 

 

 

82/  Byrd, Treaties and Executive Agreements in the United States, Their  separate roles and limitations, p. 84 (1960), citing The Cherokee  Tobacco (Boudinot v. United States), 11 Wallace 616 at 620 (1870).

 

 

 

83/ 252 U.S. 416 (1920).

 

 

 

84/ Maris, International Law, An Introduction, p. 224 (1984).

 

 

 

85/ 354 U.S. at 16, 77 S.Ct. at 1230.

 

 

 

86/ Treatise, p. 387. See also, Geofrey v. Riggs, 133 U.S. 258, 267, 10  S.Ct. 295, 297, 33 L. Ed. 642 (1890); Holden v. Joy, 84 U.S. (17  Wall) 616,620-21, 20 L. Ed. 227 (1870); Doe v. Braden, 57 U.S. (16  How.) 635, 657, 14 L. Ed. 1090 (1853); New Orleans v. United  States, 35 U.S. (10 Pet.) 662, 736, 9 L. Ed. 573 (1836).

 

 

 

87/ Ibid.

 

 

 

88/ McDougal and Lans, op. cit supra note 69 at 315.

 

 

 

89/ Mathews, op. cit. supra note 59, p. 377, citing Missouri v. Holland,  252 U.S. 416, 433 (1920) (dictum); Geoffrey v. Riggs, 133 U.S. 258,  267 (1890) (same); The Cherokee Tobacco, 11 Wall. (78 U.S.) 616- 21 (1870) (same). See also Henkin, op. cit. supra note 60 at 185.

 

 

 

90/ Henkin, Foreign Affairs and the United States Constitution, 2nd ed.,  p. 224 (1996)

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