President authorizes DFA secretary or other officials to sign international agreements

The Defense Secretary Voltaire Gazmin and U.S. Ambassador to the Philippines Philip Goldberg (2nd R) sign the Enhanced Defense Cooperation Agreement at the Armed Forces of the Philippines (AFP) headquarters in Quezon city, Metro Manila April 28, 2014. Photo by Al Falcon, Reuters

MANILA - Two international law experts took to social media to explain why former President Benigno Aquino III did not affix his signature on the Philippines-US Enhanced Defense Cooperation Agreement (EDCA) document.

In a Facebook post, University of the Philippines (UP) College of Law professor Jay Batongbacal explained that both then-Defense Secretary Voltaire Gazmin and United States Ambassador to the Philippines Philip Goldberg were authorized by their respective governments to sign the EDCA.

"Gazmin and Goldberg signed the EDCA publicly and expressly as representatives 'duly authorized by their respective Governments'. There is no question that Goldberg, as Ambassador to the PH with plenipotentiary powers, was fully authorized as an agent on behalf of the US Government to act with legally binding force. Gazmin as Secretary of National Defense was also empowered to sign on behalf of the PH Government because as Secretary, he was the alter ego of then President Aquino," he wrote.

Batongbacal added that an exchange of notes between the two governments on how the agreement would be implemented was enough for the EDCA to be binding and executory.

"The subsequent exchange of notes confirming completion of internal processes for entry into force (i.e. in this case, since it is an executive agreement, this may be simply through Note Verbales affirming that each government considers it to be binding/already in force) would be all that would necessary for it to be binding and executory," he explained.

Batongbacal added that a "repudiation of the EDCA" because it did not have Aquino's signature would cast doubt not only on the EDCA but also on other agreements signed by department secretaries.

"Repudiation of the EDCA for lack of PBSA's signature would be a indirect (oblique) renunciation of the agreement by impugning the authority of a Department Secretary to enter into an agreement on behalf of the PH government. This casts doubt not only on EDCA, but all other agreements signed by any Department Secretaries (foreign affairs, agriculture, finance, local government, etc.) under previous administrations. These would encompass perhaps thousands, of agreements and contracts, both domestic and international, entered into on behalf of the PH government," he explained

He also said Duterte's plan to review the EDCA would also affect the country's "image and credibility" as a treaty partner.

"PRRD's threat to repudiate EDCA on the ground that it was not signed by former Pres Benigno Aquino III (EDCA was signed by SND Voltaire Gazmin and US Amb Philip Goldberg) destabilizes more that the PH-US alliance. Setting aside the wisdom of such a decision (if actually undertaken), this latest statement reflects badly on the PH's image and credibility as a treaty partner," Batongbacal said.

"Repudiation on this ground at this stage, after both parties have already undertaken initial implementation activities (identification and improvement of Agreed Locations, conduct of exercises, transfers of appropriated funds, planning/preparation of construction, etc.) will reflect very badly on the PH. Other countries will look at this as an example of why they should not contract with the PH: if international agreements can be so easily dispensed with despite the representatives' signatures and regardless of the fact of ongoing implementation (and all the hard work and expenses associated with it), why even bother?" he added.

'A PRESIDENT NEVER SIGNS AN INT'L AGREEMENT'

Meanwhile, former Ateneo School of Government Dean Antonio La Viña, in a separate Facebook post, said that a president never signs an international agreement.

"I hope the President has been briefed that the President never signs an international agreement. He authorizes his foreign affairs secretary or other high level official to do it on his and the country's behalf," La Viña wrote.

Duterte on Sunday said he will ask for a review of the EDCA, noting that that the document does not bear Aquino's signature.

The war games between the Philippines and the United States launched on Tuesday came after a warning from Duterte that the war games will be the last in his six-year term.