Highlights of the General Assembly

CAPPING CURRENT SESSION, GENERAL ASSEMBLY DECIDES TO FOCUS, IN 60TH ANNIVERSARY YEAR,
ON MILLENNIUM GOALS, HIGH-LEVEL PANEL RECOMMENDATIONS FOR CHANGE

Following the Secretary-General’s call to “make 2005 the year of change for the United Nations”, the General Assembly capped its fifty-ninth session by deciding to focus, in its sixtieth anniversary year, on implementation of the Millennium Development Goals and on the recommendations of a blue-ribbon panel for making the Organization more capable of responding to new and existing threats.

Throughout the Assembly’s session, delegations expressed a keen interest in the recommendations that would be presented in a report compiled by the Secretary-General’s High-level Panel on Threats, Challenges and Change, established to focus primarily on threats to peace and security, but also to examine other global challenges, to contribute to the revitalization debate, and offer a plan to redress growing concerns about the make-up of the Security Council.

The report, “A More Secure World: Our Shared Responsibility” detailed the 16-member Panel’s recommendations on sweeping changes to boost the ability of the United Nations to deal effectively with new and future threats caused by poverty and environmental degradation, terrorism, civil war, conflict between States, weapons of mass destruction and organized crime. It also included two proposals for expanding the membership of the Security Council, recommended universal membership for the Geneva-based Commission on Human Rights, and suggested that major changes were needed in other United Nations bodies to make them more effective, efficient and equitable.

“If we do not act resolutely, and together, the threats described in the report can overwhelm us”, said Mr. Annan, formally introducing the report to the Assembly on 8 December. “It is hardly possible to over-state what is at stake… [The High-Level Panel] has risen to the challenge –- and now the burden falls on you. It is up to you, the Member States, to act on their recommendations and to make 2005 the year of change at the United Nations”. The Assembly immediately moved into the informal consultations, which are expected to continue in the hope of reaching consensus on the recommendation in time for the sixtieth anniversary.

Recognizing the urgent need to again bring world leaders together to consider the road ahead, the Assembly unanimously adopted a resolution on the organization of its work from late June through mid-September 2005, agreeing to hold the High-Level Millennium review from 14 to 16 September. The event would follow the basic format and structure of the Millennium Summit: three days of plenary debate, comprising two meetings per day, and four round table discussions.

It has been five years since the world’s leaders adopted the Millennium Declaration at the close of the United Nations Millennium Summit in 2000. And although that historic event had set out the blueprint for building a better and safer world for the new century through collective security and a global partnership for development, the world’s resolve had been shaken one year later with the 11 September 2001 terrorist attacks and their aftermath.

In particular, the war in Iraq profoundly divided the international community and brought to light fundamental differences among members of the United Nations on how to ensure collective security in the face of increased threats of terrorism and deadly weapons. Secretary-General Kofi Annan has said that those precautions greatly overshadowed other concerns, especially the main objectives of the Millennium Development Goals: cutting extreme poverty and hunger by half, cutting infant mortality by two thirds, halting HIV/AIDS infection, and providing universal primary education, all by 2015.

“The commemoration next year of the sixtieth anniversary…will provide us with an opportunity to take stock of the progress achieved since the Millennium Declaration and to look with equanimity towards the future, said Assembly President Jean Ping of Gabon, opening the Assembly’s annual high-level debate. “We must, therefore, pool our resources in preparing for that eagerly anticipated event”, he said, inviting all the Assembly’s members to “work together with a view to adapting the United Nations to the needs of our times and to preparing to better face current and future challenges”.

Acting on the recommendations of its First Committee (Disarmament and International Security), the Assembly adopted 55 resolutions and decisions, related mainly to the pace and path of nuclear disarmament, reducing nuclear danger, and preventing the terrorist acquisition of weapons of mass destruction. New resolutions tabled this year included one on the Hague Code of Conduct against Ballistic Missile Proliferation, and another on man-portable air defense systems (MANPADS). As the Committee Chairman said at the closing meeting, because challenges to international peace and security were global in nature, it was impossible for countries to succeed in protecting themselves if they worked alone.

With the 2015 deadline for the attainment of the Millennium Development Goals fast-approaching, speakers during the substantive session of the Assembly’s Second Committee (Economic and Financial) stressed the urgent need to assist many developing countries in bolstering their economies to meet those objectives. In particular, efforts should be made at the international level to relieve external debt, increase official development assistance (ODA) and foreign investments, and open up developed country markets to developing countries products. Many countries also needed assistance to recover from various environmental hazards, including natural disasters, climate change and desertification, or marginalization. Also highlighted was the importance of migrant remittances, microfinance and microcredit, information and communication technologies, and anti-corruption measures in furthering developmental aims.

As support for resolutions that target individual countries’ human rights records continued to erode, the Third Committee (Social, Humanitarian and Cultural) this year dismissed drafts on the situations in Belarus, Sudan and Zimbabwe, forwarding just four country-specific texts to the Assembly for action, where it faced an unprecedented call for the world body to take “no action” on a text already approved by one of its Main Committees. That motion, to dismiss a resolution on Turkmenistan, was narrowly rejected as the Assembly proceeded to adopt more than 60 texts forwarded to it on issues ranging from human rights to proclamation of a second International Decade of the World’s Indigenous People to improving the situations of vulnerable groups such as refugees, women and children to fostering international cooperation for crime prevention and drug control.

Acting on the recommendations of the Fourth Committee (Special Political and Decolonization), the Assembly adopted 24 resolutions and four decisions -- 15 by a recorded vote -- on a wide range issues, including on decolonization, information, the effects of atomic radiation, international cooperation for the peaceful uses of outer space, the work of United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), and Israeli practices in the occupied Palestinian territories. Nine of the 24 texts focused on the Middle East, including four on UNRWA and five on the Special Committee to Investigate Israeli Practices. The Committee also reviewed United Nations peacekeeping and assistance in mine action.

Among the Administrative and Budgetary (Fifth) Committee’s main achievements during the current session was a 16-part resolution on human resources management, as well as swift action on the Secretary-General’s plan to strengthen and unify the Organization’s safety and security system. Acting on what Mr. Annan had called one of the most important proposals -– if not the most important one -- of his term, the Assembly approved an additional appropriation of some $53.63 million for a strengthened and unified United Nations security system. It established the Department of Safety and Security and introduced 383 new security posts.

The Sixth Committee (Legal) broke a three-year impasse at the current session by reaching agreement on the direction to be taken in elaborating an international instrument against reproductive cloning of human beings. France and Germany had in 2001 called for elaborating a convention on an urgent basis in response to developments in animal cloning. Costa Rica, the United States and a majority of others had called for a convention banning all forms of human cloning, including embryonic stem cell research. Altogether the Committee submitted 17 reports. The resolutions contained therein all were adopted without a vote, though a number were controversial. One was the decision for the Assembly to consider directly in plenary any reports submitted by the International Criminal Court (ICC) under its Relationship Agreement with the United Nations in a procedure similar to the reporting procedure practiced by the International Court of Justice (ICJ) and of the United Nations tribunals.

Summary of the plenary and Main Committees follows.

Plenary

The Assembly’s general debate this year opened just as the Caribbean was beginning to recover from the destruction wrought by the string of deadly hurricanes and floods that had pummelled the islands and the south eastern coastal areas of the United States for weeks. Top officials from the region joined leaders from other small island States calling for a more enabling economic environment, and reduction of the harmful pollution and accompanying climate change, which jeopardized their very existence. They urged the world’s nations -- particularly richer industrialized countries –- never to lose sight of so-called “soft threats” -- poverty, hunger, and the threat of natural disasters, inadequate access to clean water, sanitation, health care and education.

Overall, 190 of the Assembly’s 191 MemberStates and two Observers took the floor during the general debate, including 81 heads of State and government. More than 120 took up the question of United Nations reform, emphasizing both progress and the way ahead. Virtually all speakers had expressed concern over the situation in Iraq and asked the Organization to help rebuild that country. Many had also acknowledged that the Road Map was the only solution for the Middle East crisis. Delegations also expressed concern over the situation in the Darfur region of Sudan, which the United Nations has called the world’s worst humanitarian crisis.

Secretary-General Kofi Annan set the tone for the debate at its opening on 23 September, when he urged world leaders to do everything within their power to restore respect for the rule of law -– both domestically and internationally. He lamented that in places from Iraq to Darfur, northern Uganda to the site of the recent terrorist massacre in southern Russia, as well as in Israel and the occupied Palestinian territories, the rule of law was being flouted.

Mr. Annan noted that the United Nations was founded in the ashes of a war that brought untold sorrow to mankind. “Today we must look again into our collective conscience, and ask whether we are doing enough. Each generation has its part to play in the age-long struggle to strengthen the rule of law for all –- which alone can guarantee freedom for all”, he said. “Let our generation not be found wanting”, he concluded.

From the opening of the session, delegations stressed the crucial importance of having a summit-level review of the Millennium Declaration as the centrepiece of the Organization’s sixtieth anniversary celebration. Speakers from the developing world, particularly from African countries, emphasized that progress towards the eradication of extreme poverty and hunger was uneven. Progress was also mixed in other areas such as universal primary education, gender equality and combating HIV/AIDS, malaria and other diseases.

Although much of Eastern, South-Eastern and Southern Asia and North Africa were broadly on track to achieve the target on poverty, there had been little or no progress in sub-Saharan Africa, Latin America and the Caribbean, they said. In western Asia, poverty had actually increased. Some felt that part of the problem was that the resources committed by the international community remained highly inadequate. Others stressed that there was a lack of basic resources to empower some nations to participate fully in the global trading system, and that certain trade policies had effectively denied a large number of developing countries the benefits of globalisation.

To address some of those concerns, included in the resolution adopted on the High-Level Millennium review, was the decision to hold a High-level Dialogue on Financing for Development (following-up the 2002 United Nations International Conference on Financing for Development, held in Monterrey, Mexico), on 27 and 28 June 2005, in New York, immediately prior to the high-level segment of the 2005 substantive session of the Economic and Social Council in order for the Dialogue’s recommendations to be considered during the preparatory process for the Millennium review. The Assembly also decided to hold a meeting on financing for development within the framework of that review.

That measure also facilitated the change of venue for the Economic and Social Council’s 2005 substantive session from Geneva -- where it is held every other year –- to New York on an exceptional basis. The resolution further decided that Geneva would be the venue for the Council’s 2006 and 2007 substantive sessions in order to resume the traditional New York/Geneva rotation in 2008.

Even before its early-December release, the High-Level Panel’s report featured prominently in the Assembly’s discussions. Delegations eagerly awaited recommendations aimed at revitalizing the Organization. During a three-day debate, more than 100 speakers weighed in on the issue of Security Council reform, most expressing determination to untangle some of the more complex issues that had deadlocked that debate for more than 10 years –- from making the Council’s work more open and transparent to expanding its membership and reforming the veto. They looked forward to the Panel’s recommendations, which could finally give a much-needed boost to the lagging efforts to resolve those questions.

Both of the Panel’s formulas for an enlarged Security Council increased the membership to 24, from the current 15, but differ on allowing more permanent seats. The first provided for six new permanent seats without veto power in addition to the five that currently hold it and three more two-year rotating seats divided among regional groupings. The second plan envisaged no new permanent seats but created a new category of eight four-year renewable-term seats and one new two-year, non-permanent, non-renewable seat, all without veto power.

Among the other resolutions adopted during the session was a text on the commemoration of the sixtieth anniversary of the end of the Second World War, by which the Assembly declared 8 to 9 May as a time of remembrance and reconciliation. It also decided to hold a special, solemn Plenary meeting in the second week of May 2005 to commemorate the sacrifices made during the war. The Assembly also marked the end of the United Nations Decade for Human Rights Education (1995-2004) buy proclaiming a World programme for Human Rights Education, the first phase of which will start on 1 January 2005 and run through 2007.

The Assembly also endorsed the Maldives and Cape Verde’s graduation from the list of least developed countries. That action, taken after agreeing on a strategy to ensure the smooth transition of such graduating States, would have the two States’ graduation become effective three years hence. It also adopted a host of texts on strengthening United Nations cooperation with regional groups and organizations, including the Community of Portuguese-speaking Countries, the Inter-Parliamentary Union, The Pacific Islands Forum and the African Union.

First Committee

With the dangers of both horizontal and vertical nuclear proliferation commanding world attention, the General Assembly appealed for progress in nuclear disarmament and in addressing the risk that non-State actors might one day acquire weapons of mass destruction, through the adoption of 55 resolutions and decisions of its First Committee (Disarmament and International Security).

Recorded votes were taken on 22 of the texts, plus separate votes on specific provisions. Many votes were related to the pace and path of nuclear disarmament, as well as missiles, the establishment of a nuclear-weapon-free southern hemisphere, reducing nuclear danger and preventing an outer space arms race. Texts involving conventional arms control at the regional and subregional levels and the role of science and technology in international security and disarmament also drew votes.

The voting pattern again reflected general agreement on the fundamental disarmament and non-proliferation goals, with substantial disagreements remaining on the ways to achieve them.

Speakers in the Committee’s general debate highlighted a “tension between nuclear legality and nuclear reality”, as well as certain countries’ “serial non-compliance” with global treaties. Some warned that pursuing nuclear non-proliferation without nuclear disarmament could be “detrimental and counter-productive”, while others lamented that funds, which could help States meet the Millennium Development Goals, were instead being earmarked for military purposes.

One speaker said that, since “the alarm bell of terrorist threats has tolled loud time and again”, from New York to North Ossetia, no country could afford to stand alone or remain aloof. Rather, a new definition of security -- based on equality, trust, mutual benefits and cooperation –- was required, and multilateral efforts in the fields of arms control, disarmament and non-proliferation were indispensable.

New resolutions tabled this year included one on the Hague Code of Conduct against Ballistic Missile Proliferation. By its terms, the Assembly, concerned about the increasing security challenges caused by the ongoing proliferation of ballistic missiles capable of delivering weapons of mass destruction, welcomed the adoption of the Hague Code, and invited all States that had not yet done so to subscribe to it. The resolution was adopted despite some delegations’ concerns that negotiations surrounding the Code had taken place outside the United Nations.

Linked to that text was another resolution on missiles, first tabled in 1999. Under the provisions of that resolution, the Assembly requested the Secretary-General, with the assistance of a panel of governmental experts, to further explore ways to address within the United Nations the issue of missiles, and to submit a report for consideration by the Assembly at its sixty-third session. Even though it was adopted, some delegations were not convinced of the usefulness of another expert panel, especially given the fact that last year’s panel had failed to adopt a report.

Unlike last year, the resolution -- by which the Assembly urged the Conference on Disarmament to agree on a programme of work that included the immediate commencement of negotiations on an internationally verifiable fissile material cut-off treaty -– was not adopted by consensus. Although it passed, the United States delegation stated that it was impossible to effectively verify compliance.

Expressing deep concern regarding the growing dangers posed by the proliferation of weapons of mass destruction, the Assembly reaffirmed the importance of achieving the universality of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), called on States not parties to the Treaty to accede to it as non-nuclear weapon States, and asserted the importance and urgency surrounding the signing and ratifying of the Comprehensive Nuclear-Test-Ban Treaty (CTBT), according to a resolution called “A path to the total elimination of nuclear weapons”.

In the conventional weapons sphere, a new resolution, on man-portable air defence systems (MANPADS), was adopted. By that text, the Assembly urged Member States to support all international, regional and national efforts related to the prevention of the illicit transfer and unauthorized access to and use of MANPADS. It also stressed the importance of effective and comprehensive national controls on the production, transfer and brokering of such weapons.

Attention was also directed towards landmines, which one delegate called the “most inhumane weapons devised by man”. In that regard, much reference was made to the First Review Conference of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction (Ottawa Convention), held in Nairobi from 29 November to 3 December 2004.

In closing remarks on 5 November, the Committee Chairperson Luis Alfonso De Alba (Mexico) said delegations must approach their work with a readiness to commit themselves to attaining common gaols. Declaring that challenges to international peace and security were indeed global, he said it was impossible for countries to succeed in protecting themselves if they worked alone. He added that, whereas the Committee had made much progress in improving its working methods, such reform must not be seen as an end in itself. After all, substantive issues also needed to be tackled.

The other members of the Bureau were: Vice-Chairpersons Dziunik Aghajanian (Armenia), Alon Bar (Israel), and Sylvester Ekundayo Rowe (Sierra Leone); and Rapporteur Mohamed Ali Saleh Alnajar (Yemen).

Second Committee

With 2005 beginning the 10-year countdown to 2015 –- the target for achieving the Millennium Goals -- Second Committee (Economic and Financial) delegates this year repeatedly stressed the need to bolster developing country economies, with particular emphasis on official development assistance (ODA), foreign direct investment (FDI), debt relief, and trade access.

Many speakers noted that net ODA transfers to developing countries had fallen far short of the internationally agreed target of 0.7 per cent of gross domestic product in industrialized countries, despite an expected rise to $77 billion per year by 2006. In addition, foreign direct investment (FDI) had substantially decreased and was unevenly scattered through the developing world, with the 10 largest recipient countries in emerging market economies accounting for three fourths of total flows.

Exacerbating those shortfalls, total external debt rose by 3 to 4 per cent to become “one of the greatest challenges of this generation”, speakers noted, depleting developing country savings and siphoning funds from much-needed investments in health and education. Stressing that the Heavily Indebted Poor Countries (HIPC) Debt Initiative had failed to reverse that trend, many said writing off the debt burden of the world’s poorest countries was vital in helping them restore economic growth to meet the Millennium Development Goals.

Nor had international trade opened up to replenish developing country coffers, others pointed out, warning that the upcoming World Trade Organization (WTO) Doha Round of negotiations would fail if members remained inflexible. The WTO should focus on eliminating agricultural subsidies in developed nations and stabilizing prices for developing country commodities, which were vital in generating income, savings, foreign exchange and employment. Cotton subsidies in the United States and European Union in 2002 had cost Africa some $300 million in lost revenues -- significantly more than the $230 million in total debt relief approved for nine cotton-exporting African countries.

Many nations were also hindered by natural disasters, desertification, and climate change, others pointed out, emphasizing the need to increase public and private support for those countries. Jan Egeland, Under-Secretary-General of Humanitarian Affairs and Emergency Relief Coordinator, noted that disasters had affected more than 254 million people in 2003 alone, with locusts in Africa as well as tropical cyclones and floods in the Caribbean and Asia causing immense losses in 2004. Urging the international community to support a trust fund for natural disaster relief as well as early-warning and prevention, several delegates called for a positive outcome to the forthcoming World Conference on Disaster Reduction to be held in Kobe, Japan.

Delegates also urged the global community to assist landlocked developing countries and small island States in overcoming such developmental obstacles as high transport costs, marginalization and natural disasters. According to Anwarul Chowdhury, Under-Secretary-General and High Representative for Least Developed Countries, Landlocked Developing Countries and Small Island Developing States, high transport costs in landlocked developing countries -– which came to 13 per cent of the value of their exports -- diminished profits from those exports, inflated import prices and discouraged export-oriented private capital.

Addressing other developmental concerns, delegates noted that globalization had failed to bring expected benefits to many nations, exacerbating inequalities in income and resources, and often leading to unsustainable production and consumption patterns. On the positive side, it had also led to migrant remittances of about $93 billion from an estimated 175 million migrants worldwide last year, which could significantly boost development and reduce poverty. Several speakers stressed that the United Nations could play a vital role in setting up legal norms and standards on migration to ensure maximum benefits for senders, recipients and transit countries.

Introducing a new agenda item this year on special economic assistance to certain regions, delegates stressed the need for urgent humanitarian and other assistance to Mozambique, Angola, Liberia, Serbia and Montenegro, Ethiopia and Somalia. Addressing another new item on information and communication technologies (ICT), they highlighted the huge developmental potential of ICT, but underscored the still widespread digital divide, which could only be corrected through vast investments in infrastructure and human resources.

Speakers this year also highlighted the urgent need to combat corrupt practices of all forms, calling on nations to ratify the United Nations Convention against Corruption as soon as possible. Discussing training and research, they also stressed the need to increase general, non-earmarked funding for the United Nations Institute of Training and Research and the United Nations University.

In addition to its regular meetings, the Committee held several panel discussions on such topics as the 2004 Triennial Comprehensive Policy Review for Operational Activities for Development, social effects of globalization, trade and development, and implementation of the Millennium Development Goals. It also launched the International Year of Microcredit, with speakers stressing the vital role microcredit and microfinance played in helping the poor move beyond day-to-day survival, plan for the future, and invest in better nutrition, housing, health and education for their children.

Two of the 40 resolutions the Committee approved this year were by recorded vote, including a draft calling upon Israel not to exploit natural resources in occupied Arab territories, and a text on trade and development stressing the importance of an open, transparent and inclusive multilateral trading system. Among new proposals approved were six drafts promoting assistance in areas needing special economic and humanitarian aid, and a text on the triennial comprehensive policy review of United Nations operational activities, which made various recommendations to improve agency field work.

The Second Committee’s bureau this year consisted of Marco Balarez (Peru), Chairman, Antonio Bernardini (Italy), Majdi Ramadan (Lebanon) and Ewa Anzorge (Poland), Vice-Chairpersons; and Azanaw Tadesse Abreha (Ethiopia), Rapporteur.

Third Committee

The Assembly’s Social, Cultural and Humanitarian Committee (Third) this year set aside three days specifically for discussion with rights experts from the Geneva-based Commission on Human Rights, including Special Rapporteurs on torture and other cruel, inhumane or degrading treatment or punishment; on extrajudicial, summary or arbitrary executions; on the freedom of religion or belief; on the right to food; on the human rights of migrants; on the situation of human rights in the Palestinian territories occupied since 1967; on the situation of human rights in Myanmar; on the situation of human rights in the Democratic People’s Republic of Korea; on the right to health; on violence against women; and on trafficking in persons.

The Committee also held dialogues with the Independent Expert on the human rights situation in the Democratic Republic of the Congo; the Independent Expert on the situation of human rights in Afghanistan; and the Chair of the working group on the right to development. A sombre highlight of those discussions included the Independent Expert on the Sudan’s assertion that there were “strong indications” that war crimes -- including murder, torture, rape and the intentional targeting of civilians -- had been committed in that country.

Delegations also stressed that the right to development was a fundamental human right and must be accorded special attention in the implementation of human rights protections. Many delegations from the developing world stressed that human rights could not be guaranteed in an environment of abject poverty. One speaker crystallized that viewpoint, saying that many developing countries had struggled for their independence only to realize that freedom didn’t count for much if it wasn’t accompanied by access to the resources -- natural, human and technical -- necessary to ensure long-term development.

In her address to the Committee, the United Nations High Commissioner for Human Rights, Louise Arbour, emphasized the rule of law as central to all human rights initiatives, and said that she intended to strengthen the capacity of her Office (OHCHR) in that area. She said the Universal Declaration of Human Rights had articulated a legal framework that served to bind global efforts to promote and protect human rights.

In addition, she highlighted her Office’s work to promote human rights in the areas of business, globalization, women, trafficking, indigenous people, racial discrimination, and the implementation of human rights legislation. Noting that deeply entrenched rights had been rolled back in the name of the war against terrorism, she said the international community must not abandon its resolve to confront terrorist acts within the framework of existing rights and the rule of law.

She said providing human rights support for a growing number of United Nations peace missions was one of her Office’s principal functions. The protection of human rights must be a core priority in United Nations field activities. Gross human rights violations were invariably an advance indicator and by-product of conflict. Her Office, therefore, needed to strengthen its capacity and readiness to participate actively in United Nations conflict resolution efforts to deal appropriately with urgent requests to investigate large-scale human rights violations.

The Committee wrapped up its discussions on human rights matters with several delegations voicing concerns that the Commission on Human Rights was becoming excessively politicized and called for its reform and revitalization. The special procedures of the Commission, as its “eyes and ears”, played an important role in promoting and protecting human rights, said one representative. However, their mandates must be conducted in conformity with the principles of fairness, objectivity and non-selectivity. Moreover, the Commission’s independent experts must remain with their mandates.

Urging the international community to defend the sovereign right to self-determination, another speaker stressed the importance of the world’s diversity of cultures, religions, political and social systems. To that end, the principles of objectivity and impartiality -– currently absent from the school of human rights -- must be admitted straight away. Nobody had bequeathed the countries of the North the power to judge the political and social organizations of other equally-sovereign States, he continued. Until the promotion and protection of human rights was founded on objectivity, impartiality and non-selectivity, strengthening international cooperation for human rights would remain unattainable.

Another highlight of the session was the Committee’s recommendation that the Assembly proclaim a Second International Decade of the World’s Indigenous People beginning on 1 January 2005. The terms of a draft resolution, approved without a vote as orally amended, would also have the Assembly request the Secretary-General to appoint the Under-Secretary-General for Economic and Social Affairs as the Second Decade’s Coordinator and to establish a voluntary fund for the Decade, as a successor to the already-existing Voluntary Fund.

Recognizing that 2005 would mark the tenth anniversary of the World Summit for Social Development, the Committee also approved a resolution underscoring the significance of the forty-third session of the Commission for Social Development, at which time a review of implementation of the Copenhagen Declaration and Programme of Action would be taken. Another text related to social development matters would have the Assembly decide to convene, at its sixtieth session, two plenary meetings of the General Assembly devoted to evaluation of the progress made in implementation of the World Programme of Action for Youth to the Year 2000 and Beyond.

Devoting nearly a week of its work early in the session to women’s issues, delegations in the Committee reaffirmed the Millennium Declaration’s call for women’s empowerment as an inalienable component of sustainable development and -– in particular –- the global quest to push back the ravages of poverty and hunger. They noted that it drew upon the recognition, enshrined in the Beijing Platform for Action, that poverty could not be eradicated through anti-poverty programmes alone, but would require democratic participation and reform of economic structures to ensure access for all women to resources, opportunities and public services.

Noting that this year marked the twenty-fifth anniversary of the Assembly’s adoption of the Convention on the Elimination of All Forms of Discrimination against Women, Carolyn Hannan, Director of the Division for the Advancement of Women said adherence to that instrument had contributed significantly to enhancement of the rule of law and had fostered a climate in which violations of the rights of women would not be tolerated, nationally or internationally.

During its annual review of crime prevention and global anti-drug matters, the Committee focused on the nexus between new technology and criminal activity, chiefly, how the same advances in information and communications technologies, travel, banking and financial systems that had propelled the globalization of national economies had also been used by criminal groups to internationalize their operations.

Today’s criminal networks were more organized, adaptable and sophisticated, better able to link up with criminal groups in other countries, noted the representative of the Philippines. Thus, transnational crime, which destabilized the economic and financial foundations of society and undermined efforts for development and poverty eradication, posed a clear threat to national and international peace and security. The discussions led to the approval of 11 draft resolutions, covering, among other things, the challenges of combating transnational crime, the battle against corruption, as well as on the prevention of kidnapping.

Valeriy P. Kuchinsky, (Ukraine), Chaired the Committee, and the rest of the Bureau included Vice-Chairs: Mavis Esi Kusorgbor (Ghana); Astanah Banu Shri Abdul Aziz (Malaysia); and Rachel Groux (Switzerland). Carlos Enrique Garcia Gonzalez (El Salvador) was the Committee’s Rapporteur.

Fourth Committee

The deteriorating political, economic and humanitarian situation in the occupied Palestinian territories once again dominated the Fourth Committee’s (Special Political and Decolonization) discussions. Nine of the decisions approved by the Committee focused on Middle East-related issues, including the work of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) and the Special Committee to Investigate Israeli Practices.

Outlining the challenges facing the UNRWA, its Commissioner-General, in his annual report to the Committee, pointed to the worsening security situation, road closures, house demolitions and the tattered economy in the occupied Palestinian territories. Supporting UNRWA’s humanitarian mandate, Israel’s representative said that the difficult conditions under which the Agency worked were caused by Palestinian terrorism, and that terror groups had abused the protected emblems of the United Nations and the Red Crescent. The Committee approved a draft by which UNRWA’s mandate was extended until June 2008. By another text, the Assembly called on Israel to take measures to protect the Agency’s personnel and facilities, to cease obstructing its work, and to compensate the Agency for damage to its property.

Many speakers accused Israel of violating the human rights of the Palestinian people and expressed deep concern over the construction of the “separation wall”. By one of the five draft resolutions approved, the Assembly demanded that Israel comply with international law as mentioned in the 9 July advisory opinion of the International Court of Justice. By another text, the Assembly demanded that Israel cease immediately all practices and actions taken in violation and in breach of the Fourth Geneva Convention, while condemning all acts of terror, incitement and destruction, especially the excessive use of force against Palestinian civilians. The text also expressed grave concern at the use of suicide bombing attacks against Israeli civilians.

Among decolonization issues, controversy over the question of Western Sahara increased as, for the first time since 1988, the Committee failed to reach consensus on a draft text. The representative of Algeria said that Morocco had rejected all plans to implement the long-stalled referendum on self-determination for the Territory. Morocco’s representative countered that it was Algeria that had thwarted mediation efforts, inviting that country to participate in direct talks as a party to the conflict. Over the course of the debate, most delegations and over 20 petitioners strongly supported the right of the people of the Territory to self-determination. The text was approved in a recorded vote of 52 in favour to none against, with 89 abstentions.

On other decolonization issues, speakers noted that the Second International Decade to Eradicate Colonialism, which runs from 2001 to 2010, was reaching its mid-way point. The administering Powers of the remaining 16 Non-Self-Governing Territories were urged to help speed up the decolonization process, helping to develop programmes of action for those Territories on a case-by-case basis.

Briefing the Committee on the question of peacekeeping, the Under-Secretary-General for Peacekeeping Operations, Jean-Marie Guéhenno, said that today’s peacekeeping demands exceeded the capacities of the United Nations. For that reason, the Department of Peacekeeping Operations was working to integrate its peace operations with the capacities of such regional organizations as the Economic Community of West African States and the European Union. More innovation was needed in such cooperation, however. He said that the expertise of the entire United Nations system and beyond must be linked in order to keep, consolidate and build peace in post-conflict societies.

In the debate that followed, speakers agreed strongly with the need to support regional organizations and other alliances to cope with surging demand for United Nations peacekeeping. Developed countries were urged to play a larger role in providing troops. Among other topics discussed were the importance of security for United Nations and associated peacekeeping personnel; the mainstreaming of a gender perspective throughout all peacekeeping activities; and the importance of training in peacekeeping. Speakers also emphasized the importance of an integrated, holistic approach to peacekeeping that addressed both the underlying causes of conflicts and post-conflict development.

Introducing the Secretary-General’s Report on questions relating to information, Shashi Tharoor, Under-Secretary-General for Communication and Public Information, said that public information was critical to maintaining support for the Organization’s mandates. That task was particularly difficult within tight budgetary constraints and in view of the loss of faith in the Organization after the military intervention in Iraq and the recent media attacks on the United Nations’ integrity.

He spoke of ongoing improvements in his Department’s strategic work with the Department of Peacekeeping Operations (DPKO), and capacity-building in the area of media monitoring and analysis. He said the Department of Public Information (DPI) had taken steps to strengthen its information presence in the Arab world and to counteract intolerance as part of the dialogue among civilizations. In addition, the web site and news centre had expanded their multilingual services. Through such efforts and the necessary restoration of resources -– especially for the United Nations Information Centres (UNICs) -- he expressed hope that, as the United Nations turned 60, people around the world would gain enough understanding of the Organization to embrace it as their own.

Speakers in the debate welcomed many of the new measures taken by the Department, but some stressed the need to preserve outreach to developing countries, efforts to bridge the so-called information gap and continued expansion of services in all official United Nations languages. There was cautious approval of the rationalization of the UNIC system following the consolidation of the European UNICs, but speakers from developing countries stressed that further regionalization had to be taken on a case-by-case basis and should not affect developing countries in a negative way.

For the first time, the Committee considered an item on assistance in mine action. The Committee failed to reach consensus on a draft resolution and, although the item was bi-annualized, had to defer the issue to its next session.

The Fourth Committee’s officers are: Chairman Kyaw Tint Swe (Myanmar), Vice-Chairmen Helfried Carl (Austria), Eduardo Calderon (Ecuador), Andrej Droba (Slovakia); and Rapporteur Kais Kabtani (Tunisia).

Fifth Committee

Among the Budget Committee’s main achievements during the current session was swift action on the Secretary-General’s proposal to strengthen and unify the Organization’s safety and security system, which he called one of the most important –- if not the most important one –- of his term. Acting on its recommendations, the Assembly approved an additional appropriation of some $53.63 million for a new security system, establishing the Department of Safety and Security and introducing 383 new security posts.

As 2004 was a “personnel year” for the Fifth Committee under its biennial cycle of work, much attention during the session was also devoted to human resources management and the United Nations common system. Speakers in the debate emphasized a high priority for the ongoing reform, which seeks to establish a fair, transparent and measurable human management system and attract and retain high-quality staff.

Adopted on the basis of the Committee’s recommendations was a 16-part draft resolution on human resources management, which addresses such issues as recruitment and placement of personnel, national competitive and G to P examinations, measures to improve equitable geographic distribution, post structure, mobility, contractual arrangements, field missions’ staffing, the use of consultants and retired former staff, availability of skills in local markets, measures to prevent discrimination, and staff-management consultations.

The Assembly stressed the need to ensure accountability of programme managers for the implementation of human resources policies and requested the Secretary-General to continue to improve the effectiveness of human resources action plans, including with respect to equitable geographical distribution and gender representation. In particular, he was requested to ensure that the Accountability Panel has the authority to hold managers accountable for their performance.

In fact, the importance of establishing real and efficient responsibility and accountability within the Organization was highlighted in several resolutions prepared by the Committee. By one of the texts, the Assembly expressed regret that despite previous information provided by the Secretary-General on the establishment of accountability mechanisms, including the above-mentioned Accountability Panel, such mechanisms are not in place. In that connection, the Secretary-General was requested to submit annually a report addressing the measures to strengthen accountability in the Secretariat, and to establish a high-level mechanism as soon as possible, in order to “feed” findings and recommendations of the Organization’s oversight bodies -- the OIOS, the Joint Inspection Unit and the Board of Auditors -- into the management processes.

During the debate on human resources, several speakers underscored the need for a healthy relationship between staff and management, insisting that the reform could not be successful if the staff did not “buy into” the proposals that the Secretariat was trying to implement. In that connection, delegates were worried by the staff representatives’ contention that their concerns were being ignored in the ongoing effort to reform human resources management at the Organization. In her statement to the Committee on 29 October, Rose-Marie Waters, President of the United Nations Staff Union, emphasized that, while supporting the goals of the Secretary-General’s reform, the Union could not support the erosion of staff rights and dissolution of oversight mechanisms. “The measures introduced in the past six years have had a profound and sometimes deleterious effect on the staff of the Organization”, she said.

Addressing that concern in the human resources resolution, the Assembly stressed the importance of a meaningful dialogue between staff and management, calling upon both parties to intensify efforts to overcome differences and resume the consultative process.

As for the budgetary aspects of its work this year, the Fifth Committee has arrived at a preliminary budget outline for the next biennium, estimating the Organization’s requirements for 2006-2007 at some $3.621 billion. To reflect inflation and exchange rate variations, as well as unforeseen expenses and additional mandates approved after the adoption of the 2004-2005 budget, the Committee also revised the amount required for the current biennium, bringing the total to some $3,608 billion.

Based on the Committee’s recommendations, the Assembly also decided on the main priorities for 2006-2007 on the basis of which, together with the biennial programme plan, the Secretary-General should prepare the budget proposal next year. The budget for the next biennium is to be prepared on the basis of a strategic framework for 2006-2007, which had been prepared on a trial basis to replace the current four-year plan. In view of the differences between Member States on the content of part one –- plan outline –- of that document, the Committee took no decision on that section of the framework, which also contains a two-year programme plan.

Also on the Budget Committee’s recommendations, the Assembly decided on a revised appropriation for 2004-2005 of $329.32 million gross for the International Tribunal for Former Yugoslavia, and $255.91 million for the Rwanda Tribunal. The revisions included changes with respect to exchange rates, as a result of the weakening of the United States dollar vis-à-vis the euro, and provision for the Tribunals’ Investigations Divisions for 2005.

The Committee also carefully considered the proposals by the International Civil Service Commission (ICSC), focusing on a pay-and-benefits review, a pilot study on the proposed pay-for-performance system, and conditions of service of international staff. It made recommendations to the Assembly on such issues as the United Nations pension system, the pattern of conferences, the scale of assessments, the reform of the Department of General Assembly and Conference Management, publication- and documentation-related matters, translation, interpretation, and financing for 25 special political missions authorized by the General Assembly and the Security Council. Much attention was also given to the activities of the Organization’s oversight bodies: the Board of Auditors (BOA), the Office of Internal Oversight Services (OIOS) and the Joint Inspection Unit (JIU).

Sixth Committee

The Sixth Committee (Legal) broke a three-year impasse at the current session by reaching agreement on the direction to be taken in elaborating an international instrument against reproductive cloning of human beings. France and Germany had in 2001 called for elaborating a convention on an urgent basis in response to developments in animal cloning. Costa Rica, the United States and a majority of others had called for a convention banning all forms of human cloning, including embryonic stem cell research.

Intensive negotiations averted a divisive vote on drafts proposed in turn by Costa Rica, Belgium and Italy when all agreed on formulating a nonbinding United Nations Declaration on Human Cloning. A working group headed by the Committee Chairman would convene for three days in February to finalize the text based on an Italian proposal to have the General Assembly solemnly call on States to prohibit any attempts to create human life through cloning. The Committee would reconvene on the final day -- 18 February -- to consider the working group’s report.

Altogether the Committee submitted 17 reports. The resolutions contained in them all were adopted without a vote, just as the Committee had approved, though a number were controversial. One was the decision for the Assembly to consider directly in plenary any reports submitted by the International Criminal Court under its Relationship Agreement with the United Nations in a procedure like the practice with reports of the International Court of Justice and of tribunals. In statements of position during consideration of the resolution in the Committee and the plenary, the United States dissociated itself from consensus while the European Union through the Netherlands reiterated the view that due-process safeguards rendered any concerns about the Court baseless.

A third pressing matter before the Legal Committee was its continuing work on elaborating two instruments on terrorism, one a comprehensive convention on the subject and the other a convention against nuclear terrorism. By the resolution adopted on this item, the Assembly again strongly condemned acts of terrorism and called on States to become parties to relevant instruments in fighting it. The Assembly also called for the Committee’s Ad Hoc Committee on terrorism to meet in March to expedite the work.

Among the Committee’s major achievements during the session was the culmination of 35 years of work in elaborating a Convention on Jurisdictional Immunities of States and their Property. The text adopted codifies the restrictive approach to State immunity with the general understanding that the instrument does not cover criminal proceedings. The Convention will be open for signature beginning 17 January 2005 and will add legal clarity in an essential field of international law by guiding States toward harmonized approaches.

Also adopted at the current session was the Legislative Guide on Insolvency Law finalized by the United Nations Commission on International Trade law (UNCITRAL). The text will contribute to standardizing insolvency regimes when States revise or adopt national legislation. By the second of two resolutions in the Committee’s report on UNCITRAL, the Assembly called on international organizations to harmonize legal activities with UNCITAL to promote coherence in international trade law.

A ten-day consideration of the International Law Commission’s report was again a highlight of the Committee’s work. Established at the Assembly’s second session in 1947, the Commission promotes the progressive development and codification of international law. The Commission’s report on its fifty-sixth session contained updates on a completed first reading of draft articles on “diplomatic protection” and on draft principles for allocation of loss in cases of transboundary harm arising from hazardous activities.

On other legal matters, a set of draft articles on State responsibility for internationally wrongful acts was commended. Also, States were asked to submit comments on drafting a legal instrument on the nationality of legal persons in relation to State succession. Two resolutions on the Special Committee on the Charter were adopted, one setting its March meeting date and the other asking it continue priority work on considering Charter provisions related to assisting third States affected by sanctions.

Also considered by the Committee were: the status of protocols additional to the Geneva Conventions related to protecting civilians in armed conflict; enhancing the protection, security and safety of diplomatic and consular persons and property; the scope of the Convention on protecting United Nations and related personnel; and relations between the United Nations and the host country.

Six inter-governmental organizations were invited to participate in the Assembly as observers: the Southern African Development Community (SADC); the Shanghai Cooperation Organization; the Collective Security Treaty Organization; the Economic Community of West African States; the Organization of Eastern Caribbean States and the South Asian Association for Regional Cooperation

Theories on Treaties_Comparative Cases

Bayan vs Zamora October 10, 2000

“Recognized as a treaty” means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.
Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is “an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation.” There are many other terms used for a treaty or international agreement, some of which are: act, protocol, agreement, compromis d’ arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or titles of international agreements included under the general term treaty have little or no legal significance. Certain terms are useful, but they furnish little more than mere description.
Article 2(2) of the Vienna Convention provides that “the provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms, or to the meanings which may be given to them in the internal law of the State.”
Thus, in international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations.
In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading, we had occasion to pronounce:
“x x x the right of the Executive to enter into binding agreements without the necessity of subsequent congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts.
The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the United States government has fully committed to living up to the terms of the VFA. For as long as the united States of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the Senate should be taken as a clear an unequivocal expression of our nation’s consent to be bound by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state or of the government, as the case may be, through which the formal acceptance of the treaty is proclaimed. A State may provide in its domestic legislation the process of ratification of a treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative, or was expressed during the negotiation.
In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification.
With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution, declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct of its international relations. While the international obligation devolves upon the state and not upon any particular branch, institution, or individual member of its government, the Philippines is nonetheless responsible for violations committed by any branch or subdivision of its government or any official thereof. As an integral part of the community of nations, we are responsible to assure that our government, Constitution and laws will carry out our international obligation. Hence, we cannot readily plead the Constitution as a convenient excuse for non-compliance with our obligations, duties and responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 provides: “Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.”
Equally important is Article 26 of the convention which provides that “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” This is known as the principle of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most fundamental principles of positive international law, supported by the jurisprudence of international tribunals.

ABAYA vs EBDANI February 14, 2007
The petitioners, in order to place the procurement process undertaken for the CP I project within the ambit of RA 9184, vigorously assert that Loan Agreement No. PH-P204 is neither a treaty, an international agreement nor an executive agreement. They cite Executive Order No. 459 dated November 25, 1997 where the three agreements are defined in this wise:
a) International agreement � shall refer to a contract or understanding, regardless of nomenclature, entered into between the Philippines and another government in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments.
b) Treaties � international agreements entered into by the Philippines which require legislative concurrence after executive ratification. This term may include compacts like conventions, declarations, covenants and acts.
c) Executive agreements � similar to treaties except that they do not require legislative concurrence.
The petitioners mainly argue that Loan Agreement No. PH-P204 does not fall under any of the three categories because to be any of the three, an agreement had to be one where the parties are the Philippines as a State and another State. The JBIC, the petitioners maintain, is a Japanese banking agency, which presumably has a separate juridical personality from the Japanese Government.
The petitioners� arguments fail to persuade. The Court holds that Loan Agreement No. PH-P204 taken in conjunction with the Exchange of Notes dated December 27, 1999 between the Japanese Government and the Philippine Government is an executive agreement.
To recall, Loan Agreement No. PH-P204 was executed by and between the JBIC and the Philippine Government pursuant to the Exchange of Notes executed by and between Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and then Foreign Affairs Secretary Siazon, in behalf of their respective governments. The Exchange of Notes expressed that the two governments have reached an understanding concerning Japanese loans to be extended to the Philippines and that these loans were aimed at promoting our country�s economic stabilization and development efforts.
Loan Agreement No. PH-P204 was subsequently executed and it declared that it was so entered by the parties "[i]n the light of the contents of the Exchange of Notes between the Government of Japan and the Government of the Republic of the Philippines dated December 27, 1999, concerning Japanese loans to be extended with a view to promoting the economic stabilization and development efforts of the Republic of the Philippines." Under the circumstances, the JBIC may well be considered an adjunct of the Japanese Government. Further, Loan Agreement No. PH-P204 is indubitably an integral part of the Exchange of Notes. It forms part of the Exchange of Notes such that it cannot be properly taken independent thereof.
In this connection, it is well to understand the definition of an "exchange of notes" under international law. The term is defined in the United Nations Treaty Collection in this wise:
An "exchange of notes" is a record of a routine agreement that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval.
It is stated that "treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes" all refer to "international instruments binding at international law." It is further explained that-
Although these instruments differ from each other by title, they all have common features and international law has applied basically the same rules to all these instruments. These rules are the result of long practice among the States, which have accepted them as binding norms in their mutual relations. Therefore, they are regarded as international customary law. Since there was a general desire to codify these customary rules, two international conventions were negotiated. The 1969 Vienna Convention on the Law of Treaties ("1969 Vienna Convention"), which entered into force on 27 January 1980, contains rules for treaties concluded between States. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations ("1986 Vienna Convention"), which has still not entered into force, added rules for treaties with international organizations as parties. Both the 1969 Vienna Convention and the 1986 Vienna Convention do not distinguish between the different designations of these instruments. Instead, their rules apply to all of those instruments as long as they meet the common requirements.
Significantly, an exchange of notes is considered a form of an executive agreement, which becomes binding through executive action without the need of a vote by the Senate or Congress. The following disquisition by Francis B. Sayre, former United States High Commissioner to the Philippines, entitled "The Constitutionality of Trade Agreement Acts," quoted in Commissioner of Customs v. Eastern Sea Trading, is apropos:
Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments � treaties and conventions. They sometimes take the form of exchange of notes and at other times that of more formal documents denominated "agreements" or "protocols". The point where ordinary correspondence between this and other governments ends and agreements � whether denominated executive agreements or exchange of notes or otherwise � begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the large variety of executive agreements as such, concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreements act, have been negotiated with foreign governments. x x x
The Exchange of Notes dated December 27, 1999, stated, inter alia, that the Government of Japan would extend loans to the Philippines with a view to promoting its economic stabilization and development efforts; Loan I in the amount of Y79,8651,000,000 would be extended by the JBIC to the Philippine Government to implement the projects in the List A (including the Arterial Road Links Development Project - Phase IV); and that such loan (Loan I) would be used to cover payments to be made by the Philippine executing agencies to suppliers, contractors and/or consultants of eligible source countries under such contracts as may be entered into between them for purchases of products and/or services required for the implementation of the projects enumerated in the List A. With respect to the procurement of the goods and services for the projects, it bears reiterating that as stipulated:
3. The Government of the Republic of the Philippines will ensure that the products and/or services mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of paragraph 4 of Part II are procured in accordance with the guidelines for procurement of the Bank, which set forth, inter alia, the procedures of international tendering to be followed except where such procedures are inapplicable or inappropriate.
The JBIC Procurements Guidelines, as quoted earlier, forbids any procedure under which bids above or below a predetermined bid value assessment are automatically disqualified. Succinctly put, it absolutely prohibits the imposition of ceilings on bids.
Under the fundamental principle of international law of pacta sunt servanda, which is, in fact, embodied in Section 4 of RA 9184 as it provides that "[a]ny treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed," the DPWH, as the executing agency of the projects financed by Loan Agreement No. PH-P204, rightfully awarded the contract for the implementation of civil works for the CP I project to private respondent China Road & Bridge Corporation.

DEPT OF BUDGET vs KOLONWELL TRADING June 8, 2007
The question as to whether or not foreign loan agreements with international financial institutions, such as Loan No. 7118-PH, partake of an executive or international agreement within the purview of the Section 4 of R.A. No. 9184, has been answered by the Court in the affirmative in Abaya, supra. Significantly,Abaya declared that the RP-JBIC loan agreement was to be of governing application over the CP I project and that the JBIC Procurement Guidelines, as stipulated in the loan agreement, shall primarily govern the procurement of goods necessary to implement the main project.

Under the fundamental international law principle of pacta sunt servanda which is in fact embodied in the afore-quoted Section 4 of R.A. No. 9184, the RP, as borrower, bound itself to perform in good faith its duties and obligation under Loan No. 7118- PH. Applying this postulate in the concrete to this case,the IABAC was legally obliged to comply with, or accord primacy to, the WB Guidelines on the conduct and implementation of the bidding/procurement process in question.


LIM vs EXECUTIVE SECRETARY April 11, 2002

The first question that should be addressed is whether "Balikatan 02-1" is covered by the Visiting Forces Agreement. To resolve this, it is necessary to refer to the V FA itself: Not much help can be had therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine government.8 The sole encumbrance placed on its definition is couched in the negative, in that United States personnel must "abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity."9 All other activities, in other words, are fair game.
We are not left completely unaided, however. The Vienna Convention on the Law of Treaties, which contains provisos governing interpretations of international agreements, state:
SECTION 3. INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given to the tenus of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the party .
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31 :
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd unreasonable.
It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is presumed to verbalize the parties' intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into account alongside the aforesaid context. As explained by a writer on the Convention ,
[t]he Commission's proposals (which were adopted virtually without change by the conference and are now reflected in Articles 31 and 32 of the Convention) were clearly based on the view that the text of a treaty must be presumed to be the authentic expression of the intentions of the parties; the Commission accordingly came down firmly in favour of the view that 'the starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties'. This is not to say that the travauxpreparatoires of a treaty , or the circumstances of its conclusion, are relegated to a subordinate, and wholly ineffective, role. As Professor Briggs points out, no rigid temporal prohibition on resort to travaux preparatoires of a treaty was intended by the use of the phrase 'supplementary means of interpretation' in what is now Article 32 of the Vienna Convention. The distinction between the general rule of interpretation and the supplementary means of interpretation is intended rather to ensure that the supplementary means do not constitute an alternative, autonomous method of interpretation divorced from the general rule.1O
The Terms of Reference rightly fall within the context of the VFA.
After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word .'activities" arose from accident. In our view, it was deliberately made that way to give both parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the nation's marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense Treaty and the V FA support the conclusion that combat-related activities -as opposed to combat itself -such as the one subject of the instant petition, are indeed authorized.
That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under the terms of the VFA, what may US forces legitimately do in furtherance of their aim to provide advice, assistance and training in the global effort against terrorism? Differently phrased, may American troops actually engage in combat in Philippine territory? The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not engage in combat "except in self-defense." We wryly note that this sentiment is admirable in the abstract but difficult in implementation. The target of "Balikatan 02-1 I" the Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to their very doorstep. They cannot be expected to pick and choose their targets for they will not have the luxury of doing so. We state this point if only to signify our awareness that the parties straddle a fine line, observing the honored legal maxim "Nemo potest facere per alium quod non potest facere per directum."11 The indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1 " is actually a war principally conducted by the United States government, and that the provision on self-defense serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes crucial.
In our considered opinion, neither the MDT nor the V FA allow foreign troops to engage in an offensive war on Philippine territory. We bear in mind the salutary proscription stated in the Charter of the United Nations, to wit:
Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
xxx xxx xxx xxx
4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
xxx xxx xxx xxx
In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution. In particular, the Mutual Defense Treaty was concluded way before the present Charter, though it nevertheless remains in effect as a valid source of international obligation. The present Constitution contains key provisions useful in determining the extent to which foreign military troops are allowed in Philippine territory. Thus, in the Declaration of Principles and State Policies, it is provided that:
xxx xxx xxx xxx
SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
xxx xxx xxx xxx
SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self- determination.
SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in the country.
xxx xxx xxx xxx
The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate."12 Even more pointedly, the Transitory Provisions state:
Sec. 25. 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 under 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.
The aforequoted provisions betray a marked antipathy towards foreign military presence in the country, or of foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception. Conflict arises then between the fundamental law and our obligations arising from international agreements.
A rather recent formulation of the relation of international law vis-a-vis municipal law was expressed in Philip Morris, Inc. v. Court of Appeals,13 to wit:
xxx Withal, the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international law are given a standing equal, not superior, to national legislation.
This is not exactly helpful in solving the problem at hand since in trying to find a middle ground, it favors neither one law nor the other, which only leaves the hapless seeker with an unsolved dilemma. Other more traditional approaches may offer valuable insights.
From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith."14 Further, a party to a treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to perform a treaty."15
Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5 of Article VIII:
The Supreme Court shall have the following powers:
xxx xxx xxx xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
xxx xxx xxx xxx
In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the State. In Gonzales v. Hechanova,17
xxx As regards the question whether an international agreement may be invalidated by our courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts in -( I) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in question." In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.
The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an offensive war on Philippine territory.

COMMISSIONER OF INTERNAL REVENUE vs S.C. JOHNSON & SON
June 25, 1999

With respect to the merits of this petition, the main point of contention in this appeal is the interpretation of Article 13 (2) (b) (iii) of the RP-US Tax Treaty regarding the rate of tax to be imposed by the Philippines upon royalties received by a non-resident foreign corporation. The provision states insofar as pertinent that �
1) Royalties derived by a resident of one of the Contracting States from sources within the other Contracting State may be taxed by both Contracting States.
2) However, the tax imposed by that Contracting State shall not exceed.
a) In the case of the United States, 15 percent of the gross amount of the royalties, and
b) In the case of the Philippines, the least of:
(i) 25 percent of the gross amount of the royalties;
(ii) 15 percent of the gross amount of the royalties, where the royalties are paid by a corporation registered with the Philippine Board of Investments and engaged in preferred areas of activities; and
(iii) the lowest rate of Philippine tax that may be imposed on royalties of the same kind paid under similar circumstances to a resident of a third State.
x x x x x x x x x
(emphasis supplied)
Respondent S. C. Johnson and Son, Inc. claims that on the basis of the quoted provision, it is entitled to the concessional tax rate of 10 percent on royalties based on Article 12 (2) (b) of the RP-Germany Tax Treaty which provides:
(2) However, such royalties may also be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed:
x x x x x x x x x
b) 10 percent of the gross amount of royalties arising from the use of, or the right to use, any patent, trademark, design or model, plan, secret formula or process, or from the use of or the right to use, industrial, commercial, or scientific equipment, or for information concerning industrial, commercial or scientific experience.
For as long as the transfer of technology, under Philippine law, is subject to approval, the limitation of the tax rate mentioned under b) shall, in the case of royalties arising in the Republic of the Philippines, only apply if the contract giving rise to such royalties has been approved by the Philippine competent authorities.
The RP-US Tax Treaty is just one of a number of bilateral treaties which the Philippines has entered into for the avoidance of double taxation.9 The purpose of these international agreements is to reconcile the national fiscal legislations of the contracting parties in order to help the taxpayer avoid simultaneous taxation in two different jurisdictions.10 More precisely, the tax conventions are drafted with a view towards the elimination of international juridical double taxation, which is defined as the imposition of comparable taxes in two or more states on the same taxpayer in respect of the same subject matter and for identical periods.11 The apparent rationale for doing away with double taxation is of encourage the free flow of goods and services and the movement of capital, technology and persons between countries, conditions deemed vital in creating robust and dynamic economies.12 Foreign investments will only thrive in a fairly predictable and reasonable international investment climate and the protection against double taxation is crucial in creating such a climate.13
Double taxation usually takes place when a person is resident of a contracting state and derives income from, or owns capital in, the other contracting state and both states impose tax on that income or capital. In order to eliminate double taxation, a tax treaty resorts to several methods. First, it sets out the respective rights to tax of the state of source or situs and of the state of residence with regard to certain classes of income or capital. In some cases, an exclusive right to tax is conferred on one of the contracting states; however, for other items of income or capital, both states are given the right to tax, although the amount of tax that may be imposed by the state of source is limited.14
The second method for the elimination of double taxation applies whenever the state of source is given a full or limited right to tax together with the state of residence. In this case, the treaties make it incumbent upon the state of residence to allow relief in order to avoid double taxation. There are two methods of relief � the exemption method and the credit method. In the exemption method, the income or capital which is taxable in the state of source or situs is exempted in the state of residence, although in some instances it may be taken into account in determining the rate of tax applicable to the taxpayer's remaining income or capital. On the other hand, in the credit method, although the income or capital which is taxed in the state of source is still taxable in the state of residence, the tax paid in the former is credited against the tax levied in the latter. The basic difference between the two methods is that in the exemption method, the focus is on the income or capital itself, whereas the credit method focuses upon the tax.15
In negotiating tax treaties, the underlying rationale for reducing the tax rate is that the Philippines will give up a part of the tax in the expectation that the tax given up for this particular investment is not taxed by the other country.16 Thus the petitioner correctly opined that the phrase "royalties paid under similar circumstances" in the most favored nation clause of the US-RP Tax Treaty necessarily contemplated "circumstances that are tax-related".
In the case at bar, the state of source is the Philippines because the royalties are paid for the right to use property or rights, i.e. trademarks, patents and technology, located within the Philippines.17 The United States is the state of residence since the taxpayer, S. C. Johnson and Son, U. S. A., is based there. Under the RP-US Tax Treaty, the state of residence and the state of source are both permitted to tax the royalties, with a restraint on the tax that may be collected by the state of source.18 Furthermore, the method employed to give relief from double taxation is the allowance of a tax credit to citizens or residents of the United States (in an appropriate amount based upon the taxes paid or accrued to the Philippines) against the United States tax, but such amount shall not exceed the limitations provided by United States law for the taxable year.19 Under Article 13 thereof, the Philippines may impose one of three rates � 25 percent of the gross amount of the royalties; 15 percent when the royalties are paid by a corporation registered with the Philippine Board of Investments and engaged in preferred areas of activities; or the lowest rate of Philippine tax that may be imposed on royalties of the same kind paid under similar circumstances to a resident of a third state.
Given the purpose underlying tax treaties and the rationale for the most favored nation clause, the concessional tax rate of 10 percent provided for in the RP-Germany Tax Treaty should apply only if the taxes imposed upon royalties in the RP-US Tax Treaty and in the RP-Germany Tax Treaty are paid under similar circumstances. This would mean that private respondent must prove that the RP-US Tax Treaty grants similar tax reliefs to residents of the United States in respect of the taxes imposable upon royalties earned from sources within the Philippines as those allowed to their German counterparts under the RP-Germany Tax Treaty.
The RP-US and the RP-West Germany Tax Treaties do not contain similar provisions on tax crediting. Article 24 of the RP-Germany Tax Treaty, supra, expressly allows crediting against German income and corporation tax of 20% of the gross amount of royalties paid under the law of the Philippines. On the other hand, Article 23 of the RP-US Tax Treaty, which is the counterpart provision with respect to relief for double taxation, does not provide for similar crediting of 20% of the gross amount of royalties paid. Said Article 23 reads:
Article 23
Relief from double taxation
Double taxation of income shall be avoided in the following manner:
1) In accordance with the provisions and subject to the limitations of the law of the United States (as it may be amended from time to time without changing the general principle thereof), the United States shall allow to a citizen or resident of the United States as a credit against the United States tax the appropriate amount of taxes paid or accrued to the Philippines and, in the case of a United States corporation owning at least 10 percent of the voting stock of a Philippine corporation from which it receives dividends in any taxable year, shall allow credit for the appropriate amount of taxes paid or accrued to the Philippines by the Philippine corporation paying such dividends with respect to the profits out of which such dividends are paid. Such appropriate amount shall be based upon the amount of tax paid or accrued to the Philippines, but the credit shall not exceed the limitations (for the purpose of limiting the credit to the United States tax on income from sources within the Philippines or on income from sources outside the United States) provided by United States law for the taxable year. . . .
The reason for construing the phrase "paid under similar circumstances" as used in Article 13 (2) (b) (iii) of the RP-US Tax Treaty as referring to taxes is anchored upon a logical reading of the text in the light of the fundamental purpose of such treaty which is to grant an incentive to the foreign investor by lowering the tax and at the same time crediting against the domestic tax abroad a figure higher than what was collected in the Philippines.
In one case, the Supreme Court pointed out that laws are not just mere compositions, but have ends to be achieved and that the general purpose is a more important aid to the meaning of a law than any rule which grammar may lay down.20 It is the duty of the courts to look to the object to be accomplished, the evils to be remedied, or the purpose to be subserved, and should give the law a reasonable or liberal construction which will best effectuate its purpose.21 The Vienna Convention on the Law of Treaties states that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.22
As stated earlier, the ultimate reason for avoiding double taxation is to encourage foreign investors to invest in the Philippines � a crucial economic goal for developing countries.23 The goal of double taxation conventions would be thwarted if such treaties did not provide for effective measures to minimize, if not completely eliminate, the tax burden laid upon the income or capital of the investor. Thus, if the rates of tax are lowered by the state of source, in this case, by the Philippines, there should be a concomitant commitment on the part of the state of residence to grant some form of tax relief, whether this be in the form of a tax credit or exemption.24 Otherwise, the tax which could have been collected by the Philippine government will simply be collected by another state, defeating the object of the tax treaty since the tax burden imposed upon the investor would remain unrelieved. If the state of residence does not grant some form of tax relief to the investor, no benefit would redound to the Philippines, i.e., increased investment resulting from a favorable tax regime, should it impose a lower tax rate on the royalty earnings of the investor, and it would be better to impose the regular rate rather than lose much-needed revenues to another country.
At the same time, the intention behind the adoption of the provision on "relief from double taxation" in the two tax treaties in question should be considered in light of the purpose behind the most favored nation clause.
The purpose of a most favored nation clause is to grant to the contracting party treatment not less favorable than that which has been or may be granted to the "most favored" among other countries.25 The most favored nation clause is intended to establish the principle of equality of international treatment by providing that the citizens or subjects of the contracting nations may enjoy the privileges accorded by either party to those of the most favored nation.26 The essence of the principle is to allow the taxpayer in one state to avail of more liberal provisions granted in another tax treaty to which the country of residence of such taxpayer is also a party provided that the subject matter of taxation, in this case royalty income, is the same as that in the tax treaty under which the taxpayer is liable. Both Article 13 of the RP-US Tax Treaty and Article 12 (2) (b) of the RP-West Germany Tax Treaty, above-quoted, speaks of tax on royalties for the use of trademark, patent, and technology. The entitlement of the 10% rate by U.S. firms despite the absence of a matching credit (20% for royalties) would derogate from the design behind the most grant equality of international treatment since the tax burden laid upon the income of the investor is not the same in the two countries. The similarity in the circumstances of payment of taxes is a condition for the enjoyment of most favored nation treatment precisely to underscore the need for equality of treatment.
We accordingly agree with petitioner that since the RP-US Tax Treaty does not give a matching tax credit of 20 percent for the taxes paid to the Philippines on royalties as allowed under the RP-West Germany Tax Treaty, private respondent cannot be deemed entitled to the 10 percent rate granted under the latter treaty for the reason that there is no payment of taxes on royalties under similar circumstances.
It bears stress that tax refunds are in the nature of tax exemptions. As such they are regarded as in derogation of sovereign authority and to be construed strictissimi juris against the person or entity claiming the exemption.27 The burden of proof is upon him who claims the exemption in his favor and he must be able to justify his claim by the clearest grant of organic or statute law.28 Private respondent is claiming for a refund of the alleged overpayment of tax on royalties; however, there is nothing on record to support a claim that the tax on royalties under the RP-US Tax Treaty is paid under similar circumstances as the tax on royalties under the RP-West Germany Tax Treaty.

PIMENTEL VS EXECUTIVE SECRETARY July 6, 2005
The core issue in this petition for mandamus is whether the Executive Secretary and the Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine Mission to the United Nations even without the signature of the President.
We rule in the negative

In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations.[12] As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations.[13] In the realm of treaty-making, the President has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” The 1935 and the 1973 Constitution also required the concurrence by the legislature to the treaties entered into by the executive. Section 10 (7), Article VII of the 1935 Constitution provided:
Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the Members of the Senate, to make treaties xxx.

Section 14 (1) Article VIII of the 1973 Constitution stated:
Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective unless concurred in by a majority of all the Members of the Batasang Pambansa.

The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations.[14] By requiring the concurrence of the legislature in the treaties entered into by the President, the Constitution ensures a healthy system of checks and balance necessary in the nation’s pursuit of political maturity and growth.[15]
In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean that the power to ratify treaties belongs to the Senate.
We disagree.
Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.

Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may even “collapse” in case the parties are unable to come to an agreement on the points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state.

Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them.

x x x

The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.[16] [emphasis supplied]

Petitioners’ arguments equate the signing of the treaty by the Philippine representative with ratification. It should be underscored that the signing of the treaty and the ratification are two separate and distinct steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by the state’s authorized representative in the diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative. It is generally held to be an executive act, undertaken by the head of the state or of the government.[17] Thus, Executive Order No. 459 issued by President Fidel V. Ramos on November 25, 1997 provides the guidelines in the negotiation of international agreements and its ratification. It mandates that after the treaty has been signed by the Philippine representative, the same shall be transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare the ratification papers and forward the signed copy of the treaty to the President for ratification. After the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs shall comply with the provisions of the treaty to render it effective. Section 7 of Executive Order No. 459 reads:


Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. — The domestic requirements for the entry into force of a treaty or an executive agreement, or any amendment thereto, shall be as follows:

A. Executive Agreements.

i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their signing for the preparation of the ratification papers. The transmittal shall include the highlights of the agreements and the benefits which will accrue to the Philippines arising from them.

ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall transmit the agreements to the President of the Philippines for his ratification. The original signed instrument of ratification shall then be returned to the Department of Foreign Affairs for appropriate action.

B. Treaties.

i. All treaties, regardless of their designation, shall comply with the requirements provided in sub-paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the ratification by the President. A certified true copy of the treaties, in such numbers as may be required by the Senate, together with a certified true copy of the ratification instrument, shall accompany the submission of the treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with the provision of the treaties in effecting their entry into force.

Petitioners’ submission that the Philippines is bound under treaty law and international law to ratify the treaty which it has signed is without basis. The signature does not signify the final consent of the state to the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification, acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the provisions of such treaty. After the treaty is signed by the state’s representative, the President, being accountable to the people, is burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the state and its people. Thus, the President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries.[18] There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other state would be justified in taking offense.[19]
It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification.[20] Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it.[21] Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly,[22] such decision is within the competence of the President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.[23] The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of Rome Statute to the Senate.

AKBAYAN vs AQUINO July 16, 2008
The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that “information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest.”[23] Even earlier, the same privilege was upheld in People’s Movement for Press Freedom (PMPF) v.Manglapus[24] wherein the Court discussed the reasons for the privilege in more precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement.[25] The Court denied the petition, stressing that “secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information.” The Resolution went on to state, thus:

The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. Another essential characteristic of diplomacy is its confidential nature. Although much has been said about “open” and “secret” diplomacy, with disparagement of the latter, Secretaries of State Hughes and Stimsonhave clearly analyzed and justified the practice. In the words of Mr. Stimson:

“A complicated negotiation . . . cannot be carried through without many, many private talks and discussion, man to man; many tentative suggestions and proposals. Delegates from other countries come and tell you in confidence of their troubles at home and of their differences with other countries and with other delegates; they tell you of what they would do under certain circumstances and would not do under other circumstances. . . If these reports . . .should become public . . . who would ever trust American Delegations in another conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284.).”

x x x x

There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed by one writer, “It can be said that there is no more rigid system of silence anywhere in the world.” (E.J. Young, Looking Behind the Censorship, J. B. Lippincott Co., 1938) President Wilson in starting his efforts for the conclusion of the World War declared that we must have “open covenants, openly arrived at.” He quickly abandoned his thought.

No one who has studied the question believes that such a method of publicity is possible. In the moment that negotiations are started, pressure groups attempt to “muscle in.” An ill-timed speech by one of the parties or a frank declaration of the concession which are exacted or offered on both sides would quickly lead to widespread propaganda to block the negotiations. After a treaty has been drafted and its terms are fully published, there is ample opportunity for discussion before it is approved. (The New American Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied)


Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp.[26] that the President is the sole organ of the nation in its negotiations with foreign countries, viz:

“x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” Annals, 6th Cong., col. 613. . . (Emphasis supplied; underscoring in the original)


Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidential – since there should be “ample opportunity for discussion before [a treaty] is approved” – the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that “historic confidentiality”[27] would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations.

A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage future Philippine representatives from frankly expressing their views during negotiations. While, on first impression, it appears wise to deter Philippine representatives from entering into compromises, it bears noting that treaty negotiations, or any negotiation for that matter, normally involve a process of quid pro quo, and oftentimes negotiators have to be willing to grant concessions in an area of lesser importance in order to obtain more favorable terms in an area of greater national interest. Apropos are the following observations of Benjamin S. Duval, Jr.:

x x x [T]hose involved in the practice of negotiations appear to be in agreement that publicity leads to “grandstanding,” tends to freeze negotiating positions, and inhibits the give-and-take essential to successful negotiation. As Sissela Bok points out, if “negotiators have more to gain from being approved by their own sides than by making a reasoned agreement with competitors or adversaries, then they are inclined to 'play to the gallery . . .'' In fact, the public reaction may leave them little option. It would be a brave, or foolish, Arab leader who expressed publicly a willingness for peace with Israel that did not involve the return of the entire West Bank, or Israeli leader who stated publicly a willingness to remove Israel's existing settlements from Judea and Samaria in return for peace.[28] (Emphasis supplied)


Indeed, by hampering the ability of our representatives to compromise, we may be jeopardizing higher national goals for the sake of securing less critical ones.
Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status.