JD 104 - Constitutional law 1

Laws and cases to read:

MAGALLONA v. ERMITA, G.R. 187167, August 16, 2011

Facts:

In 1961, Congress passed R.A. 3046 demarcating the maritime baselines of the Philippines as an
Archepelagic State pursuant to UNCLOS I of 9158, codifying the sovereignty of State parties over
their territorial sea. Then in 1968, it was amended by R.A. 5446, correcting some errors in R.A.
3046 reserving the drawing of baselines around Sabah.

In 2009, it was again amended by R.A. 9522, to be compliant with the UNCLOS III of 1984. The
requirements complied with are: to shorten one baseline, to optimize the location of some
basepoints and classify KIG and Scarborough Shoal as ‘regime of islands’.

Petitioner now assails the constitutionality of the law for three main reasons:

1. it reduces the Philippine maritime territory under Article 1;

2. it opens the country’s waters to innocent and sea lanes passages hence undermining our
sovereignty and security; and

3. treating KIG and Scarborough as ‘regime of islands’ would weaken our claim over those
territories.

Issue: Whether R.A. 9522 is constitutional?

Ruling:

1. UNCLOS III has nothing to do with acquisition or loss of territory. it is just a codified norm that
regulates conduct of States. On the other hand, RA 9522 is a baseline law to mark out basepoints
along coasts, serving as geographic starting points to measure. it merely notices the international
community of the scope of our maritime space.

2. If passages is the issue, domestically, the legislature can enact legislation designating routes
within the archipelagic waters to regulate innocent and sea lanes passages. but in the absence of
such, international law norms operate.

the fact that for archipelagic states, their waters are subject to both passages does not place them
in lesser footing vis a vis continental coastal states. Moreover, RIOP is a customary international
law, no modern state can invoke its sovereignty to forbid such passage.

3. On the KIG issue, RA 9522 merely followed the basepoints mapped by RA 3046 and in fact, it
increased the Phils.’ total maritime space. Moreover, the itself commits the Phils.’ continues claim
of sovereignty and jurisdiction over KIG.
If not, it would be a breach to 2 provisions of the UNCLOS III:

Art. 47 (3): ‘drawing of basepoints shall not depart to any appreciable extent from the general
configuration of the archipelago’.

Art 47 (2): the length of baselines shall not exceed 100 mm.

KIG and SS are far from our baselines, if we draw to include them, we’ll breach the rules: that it
should follow the natural configuration of the archipelago.

Saguisag v. Exec Secretary Ochoa July 26, 2016 G.R. No. 212426 EDCA, Treaty, Executive
Agreement, International Agreement

FACTS:

This is a Resolution on the Motion for Reconsideration seeking to reverse the Decision of this
Court in Saguisag et. al., v. Executive Secretary dated 12 January 2016.

Petitioners claim this Court erred when it ruled that the Enhanced Defense Cooperation
Agreement (EDCA) between the Philippines and the US was not a treaty. In connection to this,
petitioners move that EDCA must be in the form of a treaty in order to comply with the
constitutional restriction under Section 25, Article· XVIII of the 1987 Constitution on foreign military
bases, troops, and facilities. Additionally, they reiterate their arguments on the issues of
telecommunications, taxation, and nuclear weapons.

The principal reason for the Motion for Reconsideration is evidently petitioners’ disagreement with
the Decision that EDCA implements the VFA and Mutual Defense Treaty (MDT).

Petitioners argue that EDCA’s provisions fall outside the allegedly limited scope of the VFA and
MDT because it provides a wider arrangement than the VFA for military bases, troops, and
facilities, and it allows the establishment of U.S. military bases.

ISSUE:

Whether or not EDCA is a treaty.

RULING:

Petitioners detail their objections to EDCA in a similar way to their original petition, claiming that
the VFA and MDT did not allow EDCA to contain the following provisions:

1. Agreed Locations

2. Rotational presence of personnel

3. U.S. contractors
4. Activities of U.S. contractors

We ruled in Saguisag, et. al. that the EDCA is not a treaty despite the presence of these
provisions. The very nature of EDCA, its provisions and subject matter, indubitably categorize it as
an executive agreement – a class of agreement that is not covered by the Article XVIII Section 25
restriction – in painstaking detail. To partially quote the Decision:

Executive agreements may dispense with the requirement of Senate concurrence because of the
legal mandate with which they are concluded.

As culled from the deliberations of the Constitutional Commission, past Supreme Court Decisions,
and works of noted scholars, executive agreements merely involve arrangements on the
implementation of existing policies, rules, laws, or agreements.

They are concluded

(1) to adjust the details of a treaty;

(2) pursuant to or upon confirmation by an act of the Legislature; or

(3) in the exercise of the President’s independent powers under the Constitution.

The raison d’etre of executive agreements hinges on prior constitutional or legislative

The special nature of an executive agreement is not just a domestic variation in international
agreements.

International practice has accepted the use of various forms and designations of international
agreements, ranging from the traditional notion of a treaty – which connotes a formal, solemn
instrument – to engagements concluded in modern, simplified forms that no longer necessitate
ratification.

An international agreement may take different forms: treaty, act, protocol, agreement, concordat,
compromis d’arbitrage, convention, covenant, declaration, exchange of notes, statute, pact,
charter, agreed minute, memorandum of agreement, modus vivendi, or some other form.

Consequently, under international law, the distinction between a treaty and an international
agreement or even an executive agreement is irrelevant for purposes of determining international
rights and obligations.

However, this principle does not mean that the domestic law distinguishing treaties, international
agreements, and executive agreements is relegated to a mere variation in form, or that the
constitutional requirement of Senate concurrence is demoted to an optional constitutional
directive. There remain two very important features that distinguish treaties from executive
agreements and translate them into terms of art in the domestic setting.

First, executive agreements must remain traceable to an express or implied authorization under
the Constitution, statutes, or treaties. The absence of these precedents puts the validity and
effectivity of executive agreements under serious question for the main function of the Executive is
to enforce the Constitution and the laws enacted by the Legislature, not to defeat or interfere in the
performance of these rules. In turn, executive agreements cannot create new international
obligations that are not expressly allowed or reasonably implied in the law they purport to
implement.

Second, treaties are, by their very nature, considered superior to executive agreements. Treaties
are products of the acts of the Executive and the Senate unlike executive agreements, which are
solely executive actions. Because of legislative participation through the Senate, a treaty is
regarded as being on the same level as a statute. If there is an irreconcilable conflict, a later law or
treaty takes precedence over one that is prior. An executive agreement is treated differently.
Executive agreements that are inconsistent with either a law or a treaty are considered ineffective.
Both types of international agreement are nevertheless subject to the supremacy of the
Constitution.

Subsequently, the Decision goes to great lengths to illustrate the source of EDCA’s validity, in that
as an executive agreement it fell within the parameters of the VFA and MDT, and seamlessly
merged with the whole web of Philippine law. We need not restate the arguments here. It suffices
to state that this Court remains unconvinced that EDCA deserves treaty status under the law.

We find no reason for EDCA to be declared unconstitutional. It fully conforms to the Philippines’
legal regime through the MDT and VFA. It also fully conforms to the government’s continued policy
to enhance our military capability in the face of various military and humanitarian issues that may
arise.

The Permanent Court of Arbitration under the United Nations ruled in 2016 that China's nine-dash
line claim over the disputed waters is invalid. Since then, the arbitral ruling has been repeatedly
invoked by the Philippines and other nations with overlapping claims in response to Chinese
maritime aggression.