Honestly, the Philippines itself should have treated the VFA as an executive agreement. The reason why a contract has been filed (i.e. Senate approval is required) is a bit of a mystery. Perhaps a prudent interpretation of Article XVIII.25 of our Constitution, which states that “military bases, troops or foreign facilities in the Philippines can only be admitted under a treaty duly signed by the Senate. Otherwise, Carpio J.A. rightly warns that if the President keeps talking about an oral agreement by which he would have granted Chinese fishing rights in our EEZ, we will be bound in the most adverse way by the doctrine of a binding unilateral declaration. Without clear provisions on conservation and resource management, such a declaration would give China carte blanche – with 1.5 billion mouths for animal feed – to deplete our already strained marine resources in our EEZ. But it would not be an executive agreement, it would be a sad way not to thwart our national heritage, the disturbing remarks of President Duterte on an executive agreement that seemed to have been written on the water, pushed Judge Antonio Carpio to go so far as to tackle practically his own pongle in the case of Magallona v. Executive Secretary (G.R. n. 187167 August 16, 2011). Justice Carpio, a strong critic of the government`s attitude towards China following our own arbitration victory, said that the Constitution was superior to UNCLOS on the issue of the Philippine EEZ.
The U.S. executive agreements are governed by the amendment of the Case-Zablocki Act (1.C, implemented in 2005 by 22 CFR Part 181). The decision on whether to designate an executive agreement belongs to the U.S. State Department`s Office of Legal Adviser under a procedure described in Circular 175 (Volume 11 of the State Department`s Foreign Affairs Manual, 11 FAM 720). Our Supreme Court at USAFFE Veterans has found that executive agreements are generally in two classes: 1) agreements concluded exclusively under the name of executive acts dealing with foreign relations, with or without legislative authorization, so-called presidential agreements, and 2) agreements reached in the adoption of congressional acts called executive agreements of Congress.