THE LEGAL FRONT
By JUSTICE ART D. BRION (RET.)
Does the VFA, as a treaty, require Senate concurrence at both ends – upon entry and at its termination?
This is the lingering internal issue that continues to haunt the VFA after President Duterte terminated it through a notice of termination formally served on the US.
In my view, this internal legal issue has become moot after the US, through President Trump, acknowledged and accepted that the VFA is now terminated. With this intervening development, any claim of invalidity on our part would place our country in an embarrassingly absurd situation.
The live question for us now should be: can American troops or facilities continue to stay pursuant to (a) the Mutual Defense Treaty of 1951 (MDT) that is still in place and that defines the alliance between the US and our country, and (b) the EDCA that no less than our Supreme Court declared valid?
The VFA’s termination allows a 180-day winding down period; to this extent American troops and facilities can unquestionably stay under VFA terms. Thereafter, the answer depends on whether the MDT and the EDCA continue to support American military presence in our country.
As I discussed in Part I, the MDT is simply an overarching treaty defining the defense alliance between the US and the Philippines. It answers the question: when will one country come to the aid of the other?
The MDT significantly stopped short of expressly providing for American military presence in our country. When it was concluded in 1951, American military presence was covered by the Military Bases Agreement of 1947 (MBA) and the two treaties existed in tandem, each one supporting the other.
The MBA expired in 1991 and was not renewed or replaced, thus leaving a big gap in the defense alliance arrangements. Until the need arises for the US to actually come to our aid pursuant to the MDT, I believe that this treaty cannot serve as basis for continued American military presence in our country.
In fact, the VFA was concluded in 1998 to fill in the defense alliance gap. After the VFA’s termination and until a new treaty is concluded, no treaty would be in place to support continuing American military presence in our country.
Arguably, the EDCA (which came in 2014) still stands with its own provisions for continuing American military presence. The legal significance of EDCA can be found in the “agreed locations” it allows and specifically defines.
These locations are the portions of Philippine territory where the US is granted the right to: preposition and store defense materials and equipment; secure unimpeded access in prepositioning and storing these materials and equipment; exercise operational control or defense of the storage areas; allow the unimpeded entry and access of US contractors in prepositioning and storing materials and equipment; transit, support, and conduct training of troops and related activities; and refuel aircraft, bunker vessels, and temporarily maintain vehicles, vessels, and aircraft.
These locations cannot but signify the continuing presence – although without a fixed and permanent base – of American military troops, equipment, and facilities in our country. The shifting character of this presence, however, does not exempt the arrangements from the constitutional requirement for a covering treaty. The determining point is not the existence of a fixed and permanent base, but the presence of troops, equipment, and facilities, on a continuing basis.
As our Supreme Court found in Saguisag v. Executive Secretary in 2016, the EDCA, an executive agreement, merely relies on the MDT and the VFA for its constitutional validity. As a mere executive agreement, it cannot – on its own – support continued American military presence.
How our leadership will now proceed in light of the legal implications of the VFA’s termination is a policy question that lies outside the scope of this column. I can only offer my own non-legal personal perspectives.
“National interest” has always been the dominating standard in any country’s foreign relations. This standard presumably motivated both the Philippines and the US when they entered the MBA, the MDT, the VFA, and EDCA.
If we have not been happy with these agreements and with our relationship with the US in general, we cannot blame them for our unhappiness; it entered these agreements and it conducts its affairs to serve its own interests, not ours.
Our past experience should teach us that we should always look out for our own interests as others will always be on the look-out for theirs. We have to assume that others will only help us if doing so will also serve their interests.
Thus, the question to ask ourselves on the issue of continuing American military presence in the country is – will it serve our national interest if we allow their continued military presence in our country?
President Duterte, our commander-in-chief, and the chief architect of our foreign policy, has unequivocally spoken by cutting off the first immediately available American tie – the VFA.
The President’s move directly implements the independent foreign policy that the Constitution directs. We, the people, cannot and should not disregard this clear constitutional command. Thus, unless proven otherwise by time and events, we should support our President’s implementation of this constitutional command; we cannot be divided, nor can we vacillate.
However, we should not hesitate to relay to the President our sentiments on how he should proceed after his first step.
First, we must actively encourage him not to deviate from his chosen policy. Unless clearly to our interests, we must avoid future military entanglements with other world powers engaged in their own quests for dominance. We have shaken off our acolyte garments and should not now replace these with similar garments from others.
Our independent stance, of course, should not prevent us from opening or strengthening ties with countries whose interests, needs, goals, aspirations, and circumstances intersect or are congruent with ours, where these relationships could be mutually beneficial.
We should, for example, enhance our relationships with Israel, Vietnam, Japan, Singapore, Indonesia, New Zealand, Australia, and Canada, to immediately name some of our satisfying linkages. We should ensure that these ties shall continue to be mutually rewarding.
Second, and lest we forget, an independent foreign policy goes beyond the mere assertion of independence. It entails obligations to be meaningful; we must support it with a reasonable level of self-reliance and reliability.
In blunter terms, we must reasonably be self-sufficient in handling our internal security and external defense. Our past efforts in these regards, for one reason or another, leave much to be desired. We now have to plan and to act fast as we cannot recover from our deficiencies overnight.
We must convey to the President the urgent need for remedial measures to address and overcome our deficiencies. Our advantage in this regard is our strategic location: everybody benefits and should be willing to help if we are stable, self-reliant, and independent – islands of calm in this potentially turbulent part of the world.
More than the possible support from friendly countries, we need to exert internal efforts to achieve the attributes that self-reliance and self-sufficiency require.
We should strive for a robust economy and exert efforts to develop, as a people, the fierce self-reliant attitude that has allowed small countries like Vietnam, Israel, Singapore, and Japan, to overcome seemingly insurmountable odds in defending or promoting their interests. We should study and adopt these traits for ourselves to earn respect for our independent foreign policy.
Unless we achieve all these, we shall remain a dependent acolyte country.