SAINT MARY’S UNIVERSITY

SCHOOL OF TEACHERS EDUCATION AND HUMANITIES

POLICY MAKING PROCESS

TREATY

JULIE FAITH A. BULAN

BA POLITICAL SCIENCE 2

Submitted to

SUNRIGHT H. PUGONG
 SAINT MARY’S UNIVERSITY
SCHOOL OF TEACHERS EDUCATION AND HUMANITIES

INTRODUCTION

A treaty is an instrument to ensure and form stability and reliability of international

relations. It has been formed to create peace and security with other countries all over the world,
these are agreements that will protect the rights and sovereignty of a country. Treaty can create a
strong relation between two countries, it can help through the development of economic, social
and ecological. It is an opportunity to showcase and share the culture of every countries that will
help to promote unity in diversity.
 Schmalenbach K. (2012) Treaties form the basis of most parts of modern international
law. They serve to satisfy a fundamental need of States to regulate by consent issues of
common concern, and thus to bring stability into their mutual relations. As an instrument for
ensuring stability, reliability and order in international relations, treaties are one of the most
important elements of international peace and security. This is why, from the earliest days in
the history of international law, treaties have always been  the primary source of legal
relations between entities today known as States. This fundamental importance of treaties
proved to be a continuum, while the rules and procedures of treaty-making, as well as the
contents of international agreements, changed through the centuries.
FRAMEWORK OF THE FORMATION OF TREATY

A. The President has the power to make treaties implicitly in the general grant of
authority.
- Section 1, Article VII that “The executive power is vested in the President of the
Philippines,” in particular as this is applied in foreign relations. By constitutional fiat
and by the intrinsic nature of his office, the President, as head of State, is the sole
organ and authority in the external affairs of the country. In many ways, the President
is the chief architect of the nation’s foreign policy; his “dominance in the field of
foreign relations is (then) conceded.” Wielding vast powers an influence, his conduct
in the external affairs of the nation, as Jefferson describes, is “executive altogether."
Since the President is the head of state in the system of government of the
Philippines, he is the authority in the country’s external or foreign relations. Being
 SAINT MARY’S UNIVERSITY
SCHOOL OF TEACHERS EDUCATION AND HUMANITIES

vested with diplomatic powers, the President formulates foreign policy, deals with
international affairs, represents the state with foreign nations, maintains diplomatic
relations, and enters into treaties or international agreements. Likewise, the power
granted to the Senate to concur in treaties is to be interpreted as referring to treaties
which the President makes and submits to the Senate for concurrence. Normally, it is
the Head of State or the Head of the Ministry of Foreign Affairs who binds States in
treaties. These persons do not need to produce evidence of full powers to conclude a
treaty. Treaty ratification is one of the incidents of their position.
B. Working procedure
- 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. 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. The negotiation
phase of the treaty making process is essentially performed and controlled by the
Executive branch of the government through the Department of Foreign Affairs and the
respective government agencies involved. Once a treaty proposal is received by the
Government the Department of Foreign is tasked to determine whether or not said
agreement is a treaty or an executive agreement. During the negotiation process,
negotiators of each State party would meet and discuss to arrive at a mutually beneficial
arrangement. Battles over semantics and phrasing are normal in treaty negotiations. This
stage is very tedious and negotiators must be very vigilant in looking at each particular
provision. Before concurring to a particular provision, said negotiator must agree to it
 SAINT MARY’S UNIVERSITY
SCHOOL OF TEACHERS EDUCATION AND HUMANITIES

only after consultation with other negotiators and evaluate if it is in conformity with the
outlined Philippine position. In issues of primordial importance or high significance,
public consultation must be performed to be able to determine its overall impact on the
industries that are affected or parties who will be prejudiced.
 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.
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
 The next step 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. 
 In our jurisdiction, for the treaty to be valid and effective, it must be concurred in
by the Senate. The process of treaty concurrence by the Senate follows the procedure
under the 1987 Constitution on the passage of bills. Such rules are supplemental by the
Rules of the Senate.
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SCHOOL OF TEACHERS EDUCATION AND HUMANITIES

 Opportunities/venues for private sector participation

Although the Chief Executive is the sole authority in treaty-making, it is nonetheless the
policy of the State that the people and their organizations have the right to participate in
decision-making processes. Organizations refer to trade unions, peasant organizations,
urban poor, cooperatives, human rights groups, religious groups, and also associations of
landowners and businessmen. The role of the State, by enacting a law, would be “mere
facilitation” of the consultation mechanisms, and not their creation, for consultation
mechanisms were already operating without the State’s action by law. Also, “people”
refers to all the people, including minors.