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VFA-Logic and philosophy paper
Law
Ateneo de Manila University
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Senate concurrence in treaties and international agreement is necessary as provided by Section 21, Article VII of the 1987 Constitution which provides: No treaty or international agreement shall be valid and effective unless concurred by at least two-thirds of all members of the senate. The constitutional interpretation of this provision is the key to resolve the problem in this case. The case before us involves the termination US-Philippines visiting forces agreement (VFA) by the president alone as the chief executive. In Bayan vs. Zamora it was ascertained that the VFA was signed on February 10, 1998 by then-ambassador Thomas Hubbard on behalf of the US and then-foreign affairs secretary Domingo Siazon, Jr. on behalf of the Philippines. Former president Joseph Estrada ratified the VFA on October 5, 1998. Estrada succeeded Fidel Ramos, who was president at the time of the VFA's signing. On May 27, 1999, the Philippine Senate voted 18-5 to concur with the ratification, resulting in the effectivity of the VFA. With the ratification of the VFA it now becomes obligatory and incumbent on our part, under principles of international law pacta sunt servanda, to be bound by the terms of the agreement. However, during the administration of the current president Duterte, he moved to scrap the VFA after two US diplomatic actions irked him. In December 2016, Duterte warned of an "eventual repeal or abrogation" of the VFA after the US did not push through with an aid package for the Philippines from the Millennium Challenge Corporation, an aid-giving body. Duterte, however, deferred his decision out of respect for newly-elected President Donald Trump. In January 2020, the US cancelled the visa of Senator Bato dela Rosa over links to human rights violations, again prompting Duterte to say he will "terminate" the VFA within a month if the US does not fix what it had done.(1) On February 11, 2020, the Philippines has sent its notice of termination of the Visiting Forces Agreement (VFA) to the United States. With the Philippines' formal notice signed, termination will take place 180 days or 6 months after the US received written notification.( 2 ) The US Embassy in Manila confirmed it has received from the Philippine's Department of Foreign Affairs a notice to terminate the VFA calling it a "serious step with significant implications for the US-Philippines alliance."(3) U. President Donald
Trump shrugged off the move, saying it will �save a lot of money� for the United States.(4)
The termination of the life of a treaty may be arrived at by formal agreement of the parties. The treaty itself might contain the manner of terminating its life. But when the time for terminating a treaty arrives, who does it? the president alone? the president with the senate?. The Constitution is silent on that manner.(5)
(1) rappler/newsbreak/iq/250406-explainer-visiting-forces-agreement (2) rappler/nation/251508-philippines-terminates-visiting-forces-agreement-united-states (3) cnnphilippines/news/2020/2/11/us-on-ph-terminating-vfa.html (4) foreignpolicy/2020/02/14/vfa-philippines-china-duterte-terminates-us-defense-pact-trump/ (5) page 940 of the 1987 constitution of the republic of the philippines: a commentary by Joaquin G. Bernas, S.
In the case at hand, Article IX of the RP-US visiting force agreement provides: "This agreement shall enter into force on the date on which the parties have notified each other in writing through the diplomatic channel that they have completed their constitutional
requirements for entry into force. This 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." It is clear from the aforementioned provision that termination by either party upon notice in writing terminates the treaty, but is it within the sole prerogative of the president as the chief executive to terminate the treaty without securing the concurrence of the senate? No. The unilateral act of termination of the VFA treaty the Senate should be consulted the same way the ratification of an agreement needs its concurrence. In support of their claim, The Duterte government argues it is within the President's powers to terminate the VFA, likening it to the President's decision to leave the International Criminal Court. They pointed to Section 21, Article VII of the 1987 Constitution which requires Senate approval when signing a treaty, but is silent when it comes to ending it. Saying that while the Senate's concurrence was needed for the VFA to take effect, the same is not needed to end it and that "It is well within the right of the Philippine government to do so if it determines that the agreement no longer redounds to our national interest."(6) But, firstly while the Constitution prescribes the procedure how a law is enacted, and how a treaty is ratified, the Constitution is silent how a law or treaty is terminated, except that a
people�s initiative may �reject� a law passed by Congress. A fundamental principle in
constitutional law is that laws are repealed or amended only by subsequent laws, either expressly, or impliedly due to irreconcilable inconsistency between the prior and later law. This principle is so fundamental that it is not even written in the Constitution. However, this principle is found in
our Civil Code. Article 7 of the Civil Code provides, �Laws are repealed only by subsequent
ones, and their violation or non-observance shall not be excused by disuse, or custom or
practices to the contrary.� It is well-settled that a ratified treaty can expressly amend or repeal a
prior law. The amendment or repeal may also be implied when there is an irreconcilable conflict between a prior law and a later treaty, in which case the treaty prevails. A ratified treaty itself may also be amended or repealed, expressly or impliedly, by a later law. A ratified treaty has the same status as a law enacted by Congress in that it can amend a prior law and can be amended by a later law. And just like any other law enacted by Congress, a treaty cannot amend the Constitution. Clearly, a ratified treaty is a law, but a special one because the President must initiate it and the Senate must ratify it. The VFA as a law can be repealed or terminated only by another law, either by a law enacted by Congress or by termination of the VFA by the President with the concurrence of the Senate. Since making a treaty into a law requires the joint act of the President and the Senate, terminating the treaty as a law must also require the joint act of the President and the Senate. The President is described as the Chief Architect of foreign policy. The term Chief Architect, however, is not found in the Constitution. Jurisprudence has coined the term Chief Architect for two reasons. First, under the Constitution, the President exercises
�control� over all executive departments, including the Department of Foreign Affairs (DFA).
This means that the President can instruct the Secretary of Foreign Affairs what to do, and
(6) rappler/newsbreak/iq/250406-explainer-visiting-forces-agreement amend or even reverse his decisions. Second, the President exercises the sole authority to negotiate and enter into treaties, subject to concurrence by the Senate. However, in exercising control over the DFA and its Secretary, the President must still follow existing laws and the Constitution. It is basic that any act of the President must not violate the law, otherwise the act is
(9) globalnation.inquirer/185507/law-experts-assert-senate-role-in-treaty-withdrawal-after-illegal-scra pping-of-vfa-
VFA-Logic and philosophy paper
Course: Law
University: Ateneo de Manila University
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