EXECUTIVE ORDER NO.

459

EXECUTIVE ORDER NO. 459 - PROVIDING FOR THE GUIDELINES IN

THE NEGOTIATION OF INTERNATIONAL AGREEMENTS AND ITS
RATIFICATION

WHEREAS, the negotiations of international agreements are made in

pursuance of the foreign policy of the country;

WHEREAS, Executive Order No. 292, otherwise known as the

Administrative Code of 1987, provides that the Department of Foreign
Affairs shall be the lead agency that shall advise and assist the
President in planning, organizing, directing, coordinating and
evaluating the total national effort in the field of foreign relations;

WHEREAS, Executive Order No. 292 further provides that the

Department of Foreign Affairs shall negotiate treaties and other
agreements pursuant to the instructions of the President, and in
coordination with other government agencies;

WHEREAS, there is a need to establish guidelines to govern the

negotiation and ratification of international agreements by the
different agencies of the government;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Philippines,

by virtue of the powers vested in me by the Constitution, do hereby
order:

Section 1. Declaration of Policy. — It is hereby declared the policy of

the State that the negotiations of all treaties and executive
agreements, or any amendment thereto, shall be coordinated with,
and made only with the participation of, the Department of Foreign
Affairs in accordance with Executive Order No. 292. It is also declared
the policy of the State that the composition of any Philippine
negotiation panel and the designation of the chairman thereof shall be
made in coordination with the Department of Foreign Affairs.
Sec. 2. Definition of Terms. —

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.

d. Full Powers — authority granted by a Head of State or Government

to a delegation head enabling the latter to bind his country to the
commitments made in the negotiations to be pursued.

e. National Interest — advantage or enhanced prestige or benefit to

the country as defined by its political and/or administrative
leadership.

f. Provisional Effect — recognition by one or both sides of the

negotiation process that an agreement be considered in force
pending compliance with domestic requirements for the effectivity of
the agreement.

Sec. 3. Authority to Negotiate. — Prior to any international meeting or

negotiation of a treaty or executive agreement, authorization must be
secured by the lead agency from the President through the Secretary of
Foreign Affairs. The request for authorization shall be in writing, proposing
the composition of the Philippine delegation and recommending the range
of positions to be taken by that delegation. In case of negotiations of
agreements, changes of national policy or those involving international
arrangements of a permanent character entered into in the name of the
Government of the Republic of the Philippines, the authorization shall be in
the form of Full Powers and formal instructions. In cases of other
agreements, a written authorization from the President shall be sufficient.
Sec. 4. Full Powers. — The issuance of Full Powers shall be made by the
President of the Philippines who may delegate this function to the
Secretary of Foreign Affairs.

The following persons, however, shall not require Full Powers prior to
negotiating or signing a treaty or an executive agreement, or any
amendment thereto, by virtue of the nature of their functions:
a. Secretary of Foreign Affairs;

b. Heads of Philippine diplomatic missions, for the purpose of

adopting the text of a treaty or an agreement between the Philippines
and the State to which they are accredited;

c. Representatives accredited by the Philippines to an international

conference or to an international organization or one of its organs, for
the purpose of adopting the text of a treaty in that conference,
organization or organ.

Sec. 5. Negotiations. —

a. In cases involving negotiations of agreements, the composition of

the Philippine panel or delegation shall be determined by the
President upon the recommendation of the Secretary of Foreign
Affairs and the lead agency if it is not the Department of Foreign
Affairs.

b. The lead agency in the negotiation of a treaty or an executive

agreement, or any amendment thereto, shall convene a meeting of the
panel members prior to the commencement of any negotiations for
the purpose of establishing the parameters of the negotiating position
of the panel. No deviation from the agreed parameters shall be made
without prior consultations with the members of the negotiating
panel.

Sec. 6. Entry into Force and Provisional Application of Treaties and

Executive Agreements. —
a. A treaty or an executive agreement enters into force upon
compliance with the domestic requirements stated in this Order.

b. No treaty or executive agreement shall be given provisional effect

unless it is shown that a pressing national interest will be upheld
thereby. The Department of Foreign Affairs, in consultation with the
concerned agencies, shall determine whether a treaty or an executive
agreement, or any amendment thereto, shall be given provisional
effect.

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 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.

Sec. 8. Notice to Concerned Agencies. — The Department of Foreign

Affairs shall inform the concerned agencies of the entry into force of the
agreement.

Sec. 9. Determination of the Nature of the Agreement. — The Department

of Foreign Affairs shall determine whether an agreement is an executive
agreement or a treaty.

Sec. 10. Separability Clause. — If, for any reason, any part or provision of
this Order shall be held unconstitutional or invalid, other parts or provisions
hereof which are not affected thereby shall continue to be in full force and
effect.

Sec. 11. Repealing Clause. — All executive orders, proclamations,

memorandum orders or memorandum circulars inconsistent herewith are
hereby repealed or modified accordingly.

Sec. 12. Effectivity. — This Executive Order shall take effect immediately
upon its approval.

DONE in the City of Manila, this 25th day of November in the year of Our
Lord, Nineteen Hundred and Ninety-Seven.

Historical Context

By the middle of the twentieth century the

customary international law of treaties had
grown to a fairly comprehensive body of rules. In
view of that, the International Law Commission
placed it at its first session, in 1949, among the
topics suitable for codification and appointed
James Brierly as Special Rapporteur. He resigned in 1952 and two of his
successors, Sir Hersch Lauterpacht and Sir Gerald Fitzmaurice, each of
whom had started the work anew, the second moreover with a different
approach, were elected to the International Court of Justice before they
could finish their work. The last Special Rapporteur, Sir Humphrey
Waldock, appointed in 1961, oriented the work again towards the
preparation of draft articles capable of serving as a basis for an
international convention. His six reports enabled the Commission in 1966 to
submit a final draft to the General Assembly and to recommend that the
Assembly convene an international conference to conclude a convention
on the subject. By resolution 2166 (XXI) of 5 December 1966, the General
Assembly endorsed the recommendation in principle and in the following
year decided to convene the first session of the conference in 1968 and the
second session in 1969, in Vienna.

Significant Points in the Negotiating History

The United Nations Conference on the Law of Treaties was the last great
codification conference that successfully used voting as its working method
and could adopt the draft articles by substantial majorities. The final text of
the convention was accepted by 79 votes to 1, with 19 abstentions. This
achievement was helped by two circumstances. On the one hand, the
customary law covering the more technical side of treaty-making was,
except for minor details, practically undisputed. In respect of the potentially
more controversial chapter concerning the termination of treaties, on the
other hand, many States had achieved a moderate position by balancing, in
view of unknown future eventualities, the wish to escape a treaty obligation
against the wish to have it kept.

Summary of Key Provisions

Article 1 restricts the application of the Convention to (written) treaties

between States, excluding treaties concluded by international
organizations. In other respects, the first four parts of the Convention codify
previously existing customary law with a few modifications due to
progressive development.

A conspicuous example of the latter is reservations. The Convention

follows the Advisory Opinion of the International Court of Justice
on Reservations to the Convention on the Prevention and Punishment of
the Crime of Genocide (I.C. J. Reports 1951, p. 15) and prohibits
reservations which are incompatible with the object and purpose of the
treaty to which they relate (article 19 (c)). But the provision does not clarify
the status of a reservation that infringes the prohibition, which gives rise to
conflicting interpretations of the effect of objections made to such
reservations. A related problem arises from the definition of a reservation
(article 2, paragraph 1 (d)) which seems to imply that reservations must
indicate the provision or provisions to which they relate (“…to exclude or to
modify the legal effect of certain provisions”, emphasis added), which
raises doubts about the admissibility of so-called “across-the-board-
reservations” (i.e. reservations which make the implementation of treaty
obligations subject to their compatibility with domestic or some religious
law) without providing a conclusive answer. Both controversial issues are
now under study by the International Law Commission under the topic
“Reservations to treaties”.

Another result of progressive development is the rule of interpretation in

article 31, which establishes, inter alia, the object and purpose of a treaty
and the latter’s context as guidelines of interpretation. These are
teleological elements which militate against a narrow literal construction of
treaty texts. It is noteworthy that the International Court of Justice stated in
the Judgment on theArbitral Award of 31 July 1989 that “…[a]rticles 31 and
32 of the Vienna Convention on the Law of Treaties…may in many
respects be considered as a codification of existing customary international
law…” (I.C.J. Reports 1991, pp. 69-70, para. 48). Yet, it is not clear
whether the Court was of the opinion that the custom had
existed before the Vienna Convention and had been codified in it, or that it
had been generated by it and was by now “existing”.

Part V of the Convention deals with the invalidity, termination and

suspension of the operation of treaties. It is the key part of the Convention.
The relevant customary rules had evolved from isolated instances of State
practice or unconnected arbitral or judicial pronouncements. It was the
International Law Commission that gave this incoherent material a
systematic structure.

The grounds of invalidity of treaties or termination are either taken from

among the general principles of law (error, fraud), or adapt these to
situations particular to international law, like the corruption of a
representative (article 50), or the coercion of a representative (article 51),
or of a State by the threat or use of force (article 52). The most far-reaching
development of the law was the introduction of the concept of jus
cogens into positive international law in articles 53 and 64. It has become
relevant outside the scope of the law of treaties as a major element in the
construction of modern international law.

The procedure for asserting one of the grounds of invalidity or

termination has gained recognition in practice beyond the Convention since
this part of customary law had been most lacking in precision. The
International Court of Justice observed in the Gabčíkovo-Nagymaros
Project case in this respect: “…[a]rticles 65 to 67 of the Vienna Convention
on the Law of Treaties, if not codifying customary law, at least generally
reflect customary international law and contain certain procedural principles
which are based on an obligation to act in good faith” ( I.C.J. Reports 1997,
p. 66, para. 109).

Article 66, which provides for the judicial settlement, arbitration or

conciliation of disputes arising from the application of the rules in Part V of
the Convention, establishes in subparagraph (a) the mandatory jurisdiction
of the International Court of Justice in disputes involving jus cogens, unless
the parties agree to submit the dispute to arbitration. This unique feature,
which was not proposed by the International Law Commission but
originated in the Conference, is motivated by the intention to concentrate
the jurisdiction over such disputes in a single organ in order to avoid the
fragmentation of jus cogens by competing jurisdictions. The adoption of the
“package deal” (A/CONF. 39/L. 47/Rev.1), which contained, inter alia, the
jurisdictional clause, by 61 votes against 20, with 26 abstentions in plenary
was, nonetheless, only secured by the great prestige of the leader of the
Nigerian delegation to the Conference and Chairman of its Committee of
the Whole, Taslim O. Elias (later Judge and President of the International
Court of Justice), who was the moving spirit behind the package deal. The
package deal also included a declaration inviting the General Assembly of
the United Nations to consider issuing invitations under article 81 of the
Vienna Convention to States not members of the United Nations, the
specialized agencies or parties to the Statute of the International Court of
Justice to become parties to the Convention so as to ensure the widest
possible participation. The declaration was an attempt to satisfy the
socialist States which, at the time, tried to obtain admission to international
conferences and multilateral treaties for the (then) German Democratic
Republic, and had pursued that aim unsuccessfully throughout the Vienna
Conference against the opposition of the Federal Republic of Germany,
backed by the West. Although the attempt to insert a formula providing for
universal participation in the Convention was not successful, and the
socialist States had voted also against the package deal because they
objected to its other part, the jurisdictional clause, the declaration may
nevertheless have allowed them to abstain from voting against the adoption
of the Convention as a whole and thus secured a convincing majority
(many abstaining States have in the meantime acceded to the Vienna
Convention, among them the Russian Federation on 29 April 1986).

However, as might be expected, article 66, or at least its subparagraph

(a) became the subject of reservations, mainly by (former) socialist States,
some of which have in the meantime been withdrawn. Other States
objected to such reservations and excluded in response the application of
articles of the Convention which were inextricably linked to the jurisdictional
clause (i.e., provisions in Part V to which the procedural provisions relate)
in relations between them and the reserving States. Determining the
applicable provisions and the appropriate jurisdiction in a relevant case
may thus be rather complicated, and it should be noted that until now no
case involving a treaty that allegedly conflicted with a peremptory norm of
international law has been brought before the International Court of Justice.

Influence of the Instrument on Subsequent Developments

The Vienna Convention on the Law of Treaties is in force since 27

January 1980 and has 108 parties (as of 15 December 2008). The
International Court of Justice has in several cases referred to it without
examining whether the litigants were parties to the Convention. In
the Gabčíkovo-Nagymaros Project case the Court observed: “[The Court]
needs only to be mindful of the fact that it has several times had occasion
to hold that some of the rules laid down in that Convention might be
considered as a codification of existing customary law” (I.C.J. Reports
1997, p. 38, para. 46). The Court’s opinion, together with the relatively high
number of parties to the Convention, suggests that the instrument states
the current general international law of treaties. This is also confirmed by
the fact that its substantive provisions were by consensus copied into the
1986 Vienna Convention on the Law of Treaties between States and
International Organizations or between International Organizations.
Related Materials

A. Jurisprudence

International Court of Justice, Reservations to the Convention on

Genocide, Advisory Opinion: I.C.J. Reports 1951, p. 15.

International Court of Justice, Arbitral Award of 31 July 1989 (Guinea-

Bissau v. Senegal), Judgment, I.C.J. Reports 1991, p. 53.

International Court of Justice, The Gabčíkovo-Nagymaros Project

(Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7.

B. Documents

Report of the International Law Commission on the work of its first session,
12 April 1949 (A/CN.4/12 and Corr. 1-3, reproduced in Yearbook of the
International Law Commission, 1949, vol. I, Part One, Chapter II).

Report of the International Law Commission on the work of its eighteenth

session, 4 May - 19 July 1966 (A/CN.4/191, reproduced in Yearbook of the
International Law Commission, 1966, vol. I, Part One, Chapter II).

General Assembly resolution 2166 (XXI) of 5 December 1966 (International

conference of plenipotentiaries on the law of treaties).

Ghana, Ivory Coast, Kenya, Kuwait, Lebanon, Morocco, Nigeria, Sudan,

Tunisia and the United Republic of Tanzania: draft declaration, proposed
new article and draft resolution (A/CONF. 39/L. 47/Rev.1, reproduced
in United Nations Conference on the Law of Treaties, First and second
sessions, Vienna, 26 March-24 May 1968 and 9 April-22 May 1969, Official
Records, Documents of the Conference, p. 272).

C. Doctrine

A. Aust, Modern Treaty Law and Practice, Cambridge, Cambridge

University Press, 2000.

E. Castrén, “La Convention de Vienne sur le droit des traités”, in: R.

Marcic et al. (eds.),Internationale Festschrift für Alfred Verdross zum 80.
Geburtstag, München/Salzburg, Wilhelm Fink Verlag, 1971, pp. 71-83.

T. O. Elias, The Modern Law of Treaties, New York, Oceana-Sijthoff, 1974.

A. McNair, Law of Treaties, 2nd ed., Oxford, Clarendon Press, 1961.

P. Reuter, La Convention de Vienne du 23 mai 1969 sur le droit des traités,

Paris, Armand Collin, 1970.

P. Reuter, Introduction au droit des traités, Paris, Armand Collin, 1972 ;

réédition Presses Universitaires de France 1985.

S. Rosenne, The Law of treaties, Leyden, Sijthoff, 1970.

I . Sinclair, The Vienna Convention on the Law of Treaties, 2nd ed.

Manchester, Manchester University Press, 1984.

E. Vierdag, “The International Court of Justice and the Law of Treaties”, in:
V. Lowe & M Fitzmaurice (eds.), Fifty Years of the International Court of
Justice, 1996, pp. 145-196.

M. E. Villiger, Commentary on the 1969 Vienna Convention on the Law of

Treaties, Netherlands, Martinus Nijhoff Publishers, 2009.

R.G. Wetzel & D. Rauschning, The Vienna Convention on the Law of

Treaties. Travaux Preparatoires, Frankfurt am Main, Alfred Metzner Verlag,
1978.