Although the Supreme Court has lent full constitutional support to President B. S. Aquino 3rd’s unorthodox position that the 2014 Enhanced Defense Cooperation Agreement between the Philippines and the United States is nothing but an “executive agreement,” rather than a treaty that requires Senate concurrence, a careful reading of the text and the initial announcements relative to its implementation shows that both Parties goofed on the agreement.
First, the agreement is technically defective.
The official document, which appears in the Official Gazette, and which can be downloaded from the government website (www.gov.ph), is titled, “Agreement between the Government of the Republic of the Philippines and the Government of the United States of America on Defense Cooperation.” It has a Preamble of ten paragraphs, and twelve (12) Articles which cover: Purpose and Scope; Definitions; Agreed Locations; Equipment, Supplies and Materiel; Ownership; Security; Utilities and Communications; Contracting Procedures; Environment, Human Health and Security; Implementation; Resolution of Disputes; Entry into Force, Amendment, Duration and Termination.
The end of the document reads: “Done at Quezon City in duplicate in English, this 28th day of April 2014.” And directly thereunder are the signatories: For the Government of the Republic of the Philippines, a signature; and, For the Government of the United States of America, another signature. These signatures, however, are unreadable and not identified by a typewritten text underneath. This is a sharp departure from standard official practice.
In the case of the 1947 Military Bases Agreement between the Philippines and the United States, the signatories are clearly identified: Manuel Roxas, President of the Philippines; and Paul V. McNutt, Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of the Philippines. In the case of the Mutual Defense Treaty signed in Washington, D.C. on August 30, 1951, Carlos P. Romulo, Joaquin M. Elizalde, Vicente J. Francisco and Diosdado Macapagal, for the Republic of the Philippines; and Dean Acheson, John Foster Dulles, Tom Connally and Alexander Wiley, for the United States of America.
In the case of EDCA, if you did not know it was Philippine Defense Secretary Voltaire Gazmin and US Ambassador Philip Goldberg who signed the document, you would have no way of knowing who did. A researcher from abroad, examining the document, would have no way of knowing either. This makes the document questionable and spurious. And yet the same document has been declared constitutional “as an executive agreement” by majority of the members of the Supreme Court.
There are a couple of other points we have to talk about.
First is the duration or term of EDCA. The public has been made to believe the agreement is good for ten years. This is not correct. Under Article XII, paragraph 4, “This Agreement shall have an initial term of ten years, and thereafter it shall continue in force automatically unless terminated by either Party by giving one year’s written notice through diplomatic channels of its intention to terminate this Agreement.”
The agreement does not end after ten years, renewable for another ten years. The ten-year period has no function in the paragraph whatsoever; it does not define the initial term of the agreement, to be renewed after a new round of negotiations. It is a complete surplusage. The agreement continues automatically without need of any new negotiations; it allows Aquino to run the foreign and national security policies of the country, long after he is mercifully gone. The original military bases agreement had a term of 99 years, which in 1966 Ferdinand Marcos cut to the next 25 years ending in 1991; EDCA’s term is open-ended; indefinite.
The termination clause
Of course, there is a termination clause. “This Agreement shall remain in force until it is terminated by either Party by giving one year’s written notice through diplomatic channels of its intention to terminate this Agreement.” But there is a big difference between saying that “Either party can terminate this Agreement, by giving one year’s written notice of its ‘decision’ to terminate it,” and saying that “Either party can terminate the agreement by giving one year’s written notice through diplomatic channels of its ‘intention’ to terminate…” The “decision” to terminate is a far cry from the “intention” to terminate.
The Philippines has no closer partner than the US, and I cannot foresee any future Philippine government distancing itself from that partnership. But supposing, just for the sake of argument and only for the sake of argument, one future government decides to pursue a “neutral” course, which would require disengaging from any military alliance or partnership, would it be able to declare its “intention” to do so without tempting the forces stationed inside the “Agreed Locations” to prevent that intention from maturing into an accomplished fact?
Question of rent
The second issue has to do with rent. Article III, paragraph 3 of the EDCA provides that recognizing the “mutuality of benefits” to both Parties, “the Philippines shall make Agreed Locations available to the United States without rental or similar costs.” This constitutes a diminution of, rather than an improvement upon, the last agreed position of the two governments on the use of military facilities in the Philippines. Although the 1947 bases agreement was “rent-free” from the very beginning, the two governments had eventually come to consider a Military and Economic Support Fund package for the Philippines in consideration for the continued use of the bases.
Thus on May 31, 1983, following a review of the bases agreement, President Ronald Reagan wrote Marcos to say that the US will, “during the five Fiscal Years beginning on October 1, 1984, make its best effort to obtain appropriation of security assistance for the Philippines in the following amounts: Military assistance, $125 million; Foreign Military Sales Credits, $300 million; Economic Support Fund Assistance, $475 million.” The US government will also seek to provide Foreign Military Sales Credit on the basis of a grace period of ten years and a repayment period of twenty years, Reagan said.
It would have been more consistent with the gains made by the Marcos administration in its dealings with the US on the matter of compensation, if some such package had been made part of the EDCA, or if a similar package had accompanied its signing. Especially since the Philippine government will be providing, at significant cost, primary responsibility for security to the Agreed Locations.
No nuclear weapons?
Article III, paragraph 5 of the Agreement provides that “the Philippine Designated Authority and its authorized representative shall have access to the entire area of the Agreed Locations.” Article IV, paragraph 6 provides that “the prepositioned materiel shall not include nuclear weapons.” This is not enough for those who fear that the US military will be constructing silos in various locations to stockpile nuclear weapons. The Agreement could have included a mechanism that allows the Philippine government to make sure that there are no nuclear weapons stored anywhere. Under the nuclear-weapons ban in the Philippine Constitution, even port calls of nuclear-powered ships and submarines fall under the prohibition.
The third issue has to do with the specific identity of some “Agreed Locations.” These are the areas where US personnel, US forces and US contractors shall have access to on a rotational basis, for training, transit, support and related activities such as the refuelling of aircraft, bunkering of vessels, temporary maintenance of vehicles, vessels and aircraft; temporary accommodation of personnel; installation of communications facilities; prepositioning of equipment, supplies and materiel; deployment of forces and materiel; and such other activities as the Parties may agree.
According to the latest reports, the Philippine government has offered eight sites where the US forces may locate themselves. For former Ambassador Alberto Encomienda, this will have the effect of constituting an “archipelagic military base for the US.” This is of course disputed by both the US and Philippine governments. What is not disputed is that the eight locations will include Clark Air Base in Pampanga, which used to host the world’s largest US military base during the Cold War. This is an obvious mistake.
Clark, a mistake
Clark has a well-known history. First established as Fort Stotsenberg in Sapang Bato, Angeles in 1903, it was renamed Clark Air Base in 1919, to serve as a landing field for medium and heavy bombers in the 1930s. It was overrun by the Japanese in 1942, and served as a major staging point for Japanese air operations during the Battle of Leyte Gulf, said to be the biggest naval battle of World War II. Recaptured by the Americans in 1945, it became the primary territory handed over to the Americans by the Philippine government under the 1947 military bases agreement.
After the bases agreement ended in 1991 and the US forces pulled out, the Philippine government enacted Republic Act 7227, the Bases Conversion and Development Act of 1992, to accelerate the conversion of Clark and Subic military reservations and all their extensions into centers of economic production. In 2006, Congress enacted RA 9400, amending RA 7227, and declaring Clark Air Base as a Free Port Zone. It has become, by law, a hub for business, industry, aviation, gaming and tourism, etc. and can no longer be used for military and naval purposes.
Obviously both sides goofed on Clark. It may have been deliberate on the part of Aquino, who has come to believe he is above the Constitution and the law. But did he expect the public not to mind it?