The US can reiterate its interpretation that US custody over Cpl Smith extends even up to his current status of being convicted because the applicable VFA provision is Section 6 and not Section 10 as the SC held. More ominously, the US can invoke the Medellin decision in declaring that the VFA is not legally binding on the US in the Smith case since it has not been ratified by the US Senate much less has implementing legislation been passed by the US Congress.
Ergo the Philippine Supreme Court’s decision is meaningless unless, the Obama administration is convinced that it needs to maintain the charade that Philippine sovereignty is not derogated by the VFA. To save face for the Philippine government, and in its own interest, the US could appear to comply with the SC ruling and agree to Philippine custody, while insisting on the specific facility for Smith that it will agree to. (In this regard, Smith’s lawyer has a novel idea: the US can carve up a piece of the US embassy property and revert it to the Philippines as part of its national territory while retaining actual control of that piece of property.)
Given the arrant disdain by the sole Superpower for international law and the US government’s need to demonstrate to its soldiers that it can shield them from the long arm of another country’s national law while pursuing its military adventures overseas, it is likely that the US will holds its ground. It will try to figure out how it can escape compliance with the SC ruling and still manage the political fallout that can ensue.
The upcoming Balikatan war “exercises” will certainly be used as leverage by the US government in securing favorable terms for Smith. In the same way that the US cancelled earlier scheduled Balikatan “exercises” until it could get favorable action on Smith’s detention from the Arroyo government, the Philippine government needs to be pressured to do no less.
Justices Puno, Carpio, Martinez and Morales correctly saw the fatal legal flaw of the VFA is not just in Article V regarding criminal jurisdiction over erring US troops. The entire Agreement is a violation of Section 25, Article XVIII of the Philippine Constitution that governs the constitutionality of the VFA.
To quote Section 25 in full: “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. “
But beyond legal arguments and procedures, the political reality is that the Arroyo regime has shown itself incapable of standing up to the US on the issue of Cpl Smith’s detention and generally, just how subservient it is to the US, especially on foreign policy matters such as the US war of terror and US troops presence in the Philippines.
Thus the Filipino people themselves must press on with their opposition to the VFA, US permanent presence in the country and specifically, the RP-US military “exercises” being held in different parts of the country, that grow more alarmingly intrusive each year.
