Ruling on EDCA: A big victory for US

By Satur C. Ocampo
At Ground Level | The Philippine Star

“The United States won a significant victory on Tuesday in its effort to counter China’s rising influence in the South China Sea, as the highest court in the Philippines cleared the way for American troops to return to the country on a regular basis.

“The Philippine Supreme Court, in a 10-to-4 decision, approved an agreement that would allow the American military to station troops and weapons at key bases in the Philippines, more than two decades after lawmakers in Manila voted to expel American troops in a show of anticolonialism. The Philippines was a United States colony from 1898 to 1946.”

That’s how the International New York Times, in the first two paragraphs of its lead news report, succinctly presented to its worldwide readers how it – and most probably the US establishment – regards this week’s ruling on the constitutional validity of the controversial Enhanced Defense Cooperation Agreement between the US and the Philippines signed in Manila in April 2014.

The 10-year extendable agreement, the report added, “was seen as a critical way of enhancing American power in the region, giving the Americans a stronghold less than 500 miles from the islands built by the Chinese [in the contested areas of the Spratlys].”

Until the SC decision came out, the Obama administration had sought to deter China’s efforts by increasing sea patrols in the region and providing more military aid to allies like the Philippines, but, the report noted, “it has struggled to have an impact.”

It is to be expected that the INYT, one of the most influential American newspapers, would regard the SC ruling from the viewpoint of its impact on the US. Moreover, given the client-state dynamics of formal Philippine-American relations and the overarching US strategic interests in Asia-Pacific (as embodied in Obama’s “pivot to Asia” policy) the paper’s take on the SC decision more aptly represents the geopolitical reality than the public statements of both the US and Philippine governments.

On one hand, the US embassy here projects this altruistic spin: “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.”

On the Philippine government’s side, Foreign Affairs Secretary Albert del Rosario calls the agreement “an important security component of our alliance” that is “going to be helpful in terms of the maritime domain awareness [in reference to the sea dispute with China] and security cooperation with the US.”

It’s therefore important to weigh the connotations of the definitive words used by INYT. Take, for instance, the phrases “cleared the way for American troops to return to the country on a regular basis” and “approved an agreement that would allow the American military to station troops and weapons at key bases in the Philippines (emphasis mine).”

As explained by the Supreme Court spokesman Theodore Te, the court’s majority decision upheld the P-Noy government stand that the EDCA is not a treaty but an implementing agreement of two treaties: the 1999 Visiting Forces Agreement and the 1951 Mutual Defense Treaty.

Te pointed out that the SC majority interpreted Article XXVIII, Section 25 of the 1987 Constitution, which bans “foreign military bases, troops or facilities” in the country, as granting power to the President to enter into an executive agreement on such foreign bases, troops or facilities if the agreement “merely aims to implement an existing law or treaty.” The VFA, he added, already provides for the “rotational” presence of US troops in the country.

But the SC ruling has a caveat: the EDCA “must not go beyond the parameters, limitations, and standards set by the law and/or treaty that the former purports to implement and must not unduly expand the international obligations expressly mentioned or necessarily implied in the law or treaty,”

Bilateral negotiations in Washington that began in 2012 focused on the “increased rotational presence” of US military forces in the Philippines (as allowed under the VFA). In the debates over the VFA, the length of stay of American “visiting forces” – purportedly for participation in annual joint US-Philippine military exercises – has never been specified. (Since 2002. as more joint military exercises for varied purposes have been conducted throughout each year, US military presence has practically become permanent. At any given time, there are about 600 US Special Operations Forces personnel deployed in the country.)

But the talks wound up with an “enhanced defense cooperation” agreement that provides for the construction by the US of military facilities and the prepositioning or stocking up of war materiel for its exclusive use inside Philippine military bases or in any other “agreed location” in the country. The EDCA is clear on the point that such US facilities are off-limits to Filipinos, military or civilians alike.

Not only that. The EDCA says that whenever the US “requests” for a particular location on which to construct its military facility, the Philippines “shall” grant it, free of any rent or fee to boot… Shades of a vassal’s obsequious compliance with his lord’s will or whim!

The question is thus raised about the construction of such military facilities and storage of war materiel for the exclusive access to, and use by, Americans – no matter whether within or outside Philippine bases: Doesn’t this go beyond the provisions of the VFA? And what about its textual basis in the mutual defense treaty? Clearly this violates the caveat laid down in the SC decision.

A motion for reconsideration is expected to be filed before the Supreme Court. Should the court dismiss the motion, we ought to be concerned over the consequences of the EDCA implementation on our national sovereignty, independence, and national security.

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Published in The Philippine Star
January 16, 2016

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