The President may abrogate Philippine commitments under the Enhanced Defense Cooperation Agreement (EDCA) by himself because, as we have argued for so long, the document is not even a treaty – lopsided as it already is in favor of American interests – and it is well within his prerogative as chief architect of the nation’s foreign policy.
That it is within presidential prerogative to recall a treaty for any international agreement for that matter is ironically confirmed by US law and practice.
The Third Restatement of the Foreign Relations Law of the United States – an authoritative commentary on international law and international relations– states thus: [T]he President has the power: (a) to suspend or terminate an agreement in accordance with its terms; [and] (b) to make the determination that would justify the United States in terminating or suspending an agreement because of its violation by another party or because of supervening events, and to proceed to terminate or suspend the agreement on behalf of the United States.
In so far as contemporary American practice itself is concerned, a leading American legal scholar, Prof. Henkin, has likewise opined that “[a]t the end of the twentieth century, it is apparently accepted that the President has authority under the Constitution to denounce or otherwise terminate a treaty. . .”
In any case, the US has not and does not even treat the EDCA as well as the Visiting Forces Agreement (VFA), from which EDCA is traced by Philippine authorities, as a treaty. Both of these documents have not been ratified by the US Senate. VFA, on the other hand, has had to go through the constitutional process through the treaty clause of the 1987 charter. EDCA was justified by the Supreme Court as a mere ancillary agreement proceeding from the VFA itself.
In our system, as our Supreme Court has held in Pimentel v. Executive Secretary, in which we lost a challenge to the initial decision of the Chief Executive (then President Gloria Macapagal Arroyo) not to send the ratification papers of the Rome Statute of the International Criminal Court to the Senate for the latter’s concurrence under the Treaty Clause:
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. 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. In the realm of treaty-making, the President has the sole authority to negotiate with other states.
The President can withhold the ratification papers of a treaty from the Senate. He can likewise decide to abrogate treaty commitments as the chief architect of Philippine foreign policy.
In any case, President Duterte is not without precedent from American practice itself. We can cite US President George W. Bush, who “unsigned” the Rome Statute that established the International Criminal Court (ICC) and had earlier been signed by his predecessor, Bill Clinton.
Unlike the US, the Philippines remains a party to the world’s first permanent international criminal tribunal established to try the most heinous of international crimes. In fact, a Filipino sits as a judge at the IC, former UP College of Law Dean and former Inquirer publisher Raul Cano Pangalangan, who just made a name for himself by sentencing an ISIS member to a jail term for the war crime of the destruction of a historical site, in a landmark ruling.
The US reason for unsigning, of course, is that it does not want to be subject to such an international mechanism for accountability for international crimes.
But again, the Rome Statute is a treaty, while the EDCA is not under US practice, so there is all the more reason for President Duterte to withdraw our commitments to the EDCA.
In the case of President Duterte, his decision to abrogate from the EDCA, if it comes to that, is for the interest of the Filipino people, precisely because the EDCA in an unequal agreement. As shown by the case of Jennifer Laude, like the VFA, the EDCA continues to prioritize the welfare of US servicemen on Philippine soil and makes short shift of Philippine sovereignty.
Moreover, by the smallest measure of subterfuge, the EDCA violates the constitutional provision that no foreign military bases may be allowed on Philippine soil except under a treaty ratified by the Senate (Section 25, Article XVIII).
In addition, contrary to claims by American and Philippine authorities, there is no provision at all in the agreement expressly obligating the US armed forces to transfer military hardware and technology to the AFP, under EDCA.
 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 339 (1987)
 LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION (2d ed. 1996)
 G.R. No. 158088, July 6, 2005