The infirmities of EDCA

Can the Philippines extricate itself from the escalating Indo-Pacific tug-of-war between China and the United States? A day after China wrapped up its three-day combat readiness security patrol and ‘Joint Sword’ exercises in the Taiwan Strait, the Philippines and the US began its largest bilateral exercise. Over 17,600 Filipino and American military personnel will participate in the Balikatan from April 11 to 28, according to the US embassy.

In reaction, the Chinese Foreign Ministry warned that the military cooperation must not interfere in South China Sea disputes and harm its territorial sovereignty, maritime rights and security interests.

President Marcos Jr., in an Araw ng Kagitingan press conference, allayed the concerns of the world’s second-biggest economy. In assuring that our country will not pick a fight against China, PBBM said the Philippines would not allow its military bases to be used for offensive action. Last week, Malacañang announced four new Enhanced Defense Cooperation Agreement (EDCA) sites or Agreed Locations in Cagayan Province, Isabela and Palawan.

Like most Filipinos who trust and approve highly of the Marcos administration (Pulse Asia Survey, March 2023), I remain a staunch supporter of PBBM. I believe in his commitment and competence to protect the welfare of the people against external threats (pandemic, global inflation) and internal problems (criminality, insurgency, calamities). In a robust democracy, however, disagreement and debate are core elements. The President’s position on EDCA is a matter that I oppose.

EDCA’s constitutionality

I have consistently assailed the constitutionality of EDCA. I maintain that it should be covered by a treaty duly recognized by the other contracting party (in this case, the US) and ratified in a referendum by the Filipino people if deemed necessary by the Senate. The 1987 Constitution explicitly stipulates this in Article 7 (Section 21) and expounds in Article 18 (Section 25). Upon EDCA’s signing in 2014, I joined former senators Rene Saguisag and Wigberto Tañada and other civil society stalwarts in filing a petition for certiorari before the Supreme Court. We argued that the Aquino administration committed grave abuse of discretion when it approved the agreement with the US as it contravened the provisions concerning air and naval military bases and foreign troops in Philippine territory.

ARTICLE 18, Section 25 states: 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.

However, the High Court ruled in 2016 that EDCA is not constitutionally infirm while the executive agreement is consistent with the 1951 Mutual Defense Treaty (MDT) and the 1998 Visiting Forces Agreement (VFA).

Given the current geopolitical tensions in the region and that EDCA is obviously part of a basing agreement with the US, it is high time that an actual treaty instead of a mere executive agreement governs EDCA. Perhaps, we should again challenge the validity of EDCA before the High Court.

In my opinion, the implementation of EDCA is akin to a basing agreement, while the Agreed Locations practically operate as US military bases under a different name. In the first place, EDCA requires us to host prepositioned troops and arsenal in nine military bases across the archipelago. Since we have an ongoing territorial dispute with China in the West Philippine Sea, I expected more EDCA sites in Palawan or Mindoro. Instead, three of the four Agreed Locations are in Northern Luzon, which is mere hours by air travel to Taiwan.

With the deployment of American troops and equipment in Cagayan Province and Isabela, I cannot help but think the US is gearing up for an armed conflict against China over Taiwan. If a full-scale war ensues, will America utilize EDCA sites as a launch pad against China? The US and the Philippine governments should provide us with a categorical response.

Valid military target

On the other hand, an American preemptive strike on China will not trigger the MDT. The Treaty obligates the US and the Philippines to aid one another, subject to their respective constitutional processes, against an armed attack on their Pacific territories. However, the US cannot invoke the Treaty if it is the perpetrator and not the victim of the armed attack. In effect, the nine Agreed Locations become a valid military target for China. Further, countries that allow a belligerent state to use their territories to destroy another are answerable to international law.

Under the law on armed conflict, China can justify the destruction of the EDCA sites as contributory to its military objective of ‘immediate and complete subjugation of the enemy.’ The enemy referred to herein is the US, which has troops, armaments and facilities in Philippine military bases. Military objectives, meanwhile, are clearly defined in Article 52 (2) of the 1977 Additional Protocol I to the 1949 Geneva Conventions.

“Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time offers a definite military advantage.”

I cannot overstate that most nation-states adhere to a One China Policy and the conflict in the Taiwan Strait is an internal issue. With its continued adventurism in the region, China is telling the world that it will not tolerate any interventionist state or meddlesome hegemon.

Looking back on recent world history, China has no record of inciting international armed conflicts. Unfortunately, I cannot say the same about America.