Phl, US share view: EDCA not a treaty

THE LEGAL debate over the long-term presence on Philippine soil of American military men and materiel revolves mainly around Section 25 of Article XVIII that gathers in the last part of the Constitution various transitory provisions, one of them on foreign bases.

Understanding Section 25 in the context of geopolitical realities in the region is key to accepting the Supreme Court ruling handed down last Tuesday that the Enhanced Defense Cooperation Agreement (EDCA) between Manila and Washington is constitutional.

Section 25 provides: “After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning military bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.”

This is to be read alongside Section 21 of Article VII (Executive Department) which provides: “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”

But focus is on the more detailed Section 25 in Article XVIII, because it speaks specifically of foreign military bases, while Section 21 applies in general to all treaties or international agreements.

After 44 years, the Phl-US bases agreement mentioned in Section 25 expired in 1991. It was not renewed, resulting in the physical pullout of the US bases the following year.

An important footnote to the pullout was that the other pact, the 1951 Mutual Defense Treaty, has remained in place. The open-ended MDT continues to be in effect – to expire only one year after either party serves a notice of termination.

The text of the Supreme Court ruling was not immediately made available, but the tribunal reportedly said after a 10-4 vote that EDCA is just an executive agreement, not a treaty requiring concurrence by the Senate as provided under Section 21 and Section 25.

An agreement is, in a manner of speaking, a notch lower than a treaty. It does not adopt or lay down a new principle or dictate a major policy shift that will require the advice and consent of the Senates of the contracting parties.

At times, as in the case of EDCA, an executive agreement merely implements an older and more encompassing contract such as the Mutual Defense Treaty. With EDCA deemed as not a treaty, the requirement for Senate concurrence under Section 21 and Section 25 does not apply.

• Manila too timid to insist on a treaty?

WHY DOES the Philippines not insist that EDCA be raised to the status of a treaty? Official sources said that that option has been ruled out by Washington.

Not only the White House but also several senior US congressional leaders reportedly frown on readily making such upgrades, not only in agreements with the Philippines but also with most other countries.

There is widespread opinion in Washington that treaties have the unwanted effect of eroding a country’s sovereignty in the process of giving and taking of substantial concessions with the consent of the Senate.

In pushing EDCA, the two countries merely fell back on the rationale that the new contract, like the earlier Visiting Forces Agreement defining the status of US forces in the country, is just part of the implementation of the basic MDT.

In the context of the times when Section 25 was written, the “foreign military bases” it mentions are permanent installations similar to or reminiscent of Clark air base, Subic naval base and Camp John Hay (among more than a dozen other long-term US installations).

In contrast, the areas to be made accessible to the US military under EDCA are not permanent. The servicemen’s temporary presence is described as “rotational” – probably meaning that they will come and go depending on the shifting priorities of the two countries.

There is no section in the EDCA, however, defining what temporary, permanent and rotational mean. And it appears that the Philippine side – concerned about beefing up its military capability in the least time with the least expense – is too timid to insist on definitions.

• Can EDCA deter Sino landgrabbing?

UNDER the old (1947-1991) bases agreement, Clark and Subic were full-blown permanent bases under American operational control. As home of the 13th US Air Force at the time, Clark was the biggest military installation outside the US mainland.

Then projecting US military might into the region, Clark and Subic were deeply involved in military operations, including waging a losing war in Vietnam. Honolulu and Guam in mid-Pacific were farther away from the Indochinese peninsula where the fighting raged.

Proponents of EDCA are lucky that the constitutionality question was raised before the SC at a time when the Philippines is being harassed by the Chinese red dragon gobbling up valuable bits and pieces of Philippine maritime areas.

The pre-positioning of US forces under EDCA may be viewed in Manila as deterrence to Chinese incursions into the Exclusive Economic Zone of the Philippines. That remains to be seen.

As expected, the US embassy said after the SC ruling was announced: “The EDCA is a mutually beneficial agreement that will enhance our ability to provide rapid humanitarian assistance and help build capacity for the Armed Forces of the Philippines.”

That found an echo in Malacañang where President Noynoy Aquino’s spokesman said that EDCA would introduce the Philippine military to “the most modern equipment and have a generational leap in our abilities.”

*      *      *

ADVISORY: Access past Postscripts archived at www.manilamail.com (if necessary, copy/paste url on address bar). Follow us via Twitter.com/@FDPascual. Email feedback to [email protected]