VFA: Is it now timely for a review?

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We must already see the merit behind the broadening call for the review of the Visiting Forces Agreement (VFA). Since its implementation in 1999, there have been two big “strikes,” in baseball parlance, against the continued application of the VFA, as presently worded. The first was registered in the 2006 Smith rape case and the second was in the January 2013 Tubbataha National Park incident. In both cases, protest actions resulted into ugly confrontations between militants and police authorities, followed by strident calls for a VFA review, if not abolition, from legislators, militants and civil society organizations.

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The Smith case put to light the patent ambiguity in the language of the VFA, especially in so far as it relates to “criminal jurisdiction” of the local courts and “custodial authority” that impacts on the interpretation of the phrase “judicial proceedings.” Is appeal to be considered within its definition, as the US authorities argue? The exchange of diplomatic notes between the Secretary of Foreign Affairs and the US ambassador on the Smith situation apparently did not succeed in putting a satisfactory end to heated public debates on the issue. In fact, it can now be told that when I presented my letters of credence on December 8, 2006, coincidentally around the time when the Regional Trial Court convicted Smith, the very first concern President George W. Bush took up with me related to the legality of Smith’s custody by local authorities.

The Tubbataha Reef incident, on the other hand, establishes the practical need for clarification on the movement of US Naval vessels within Philippine jurisdiction. The USS Guardian, a US minesweeper, apparently wandered into a restricted area and swept away not offensive mines but thousands of years of reef growth covering 2,345.67 square meters of Unesco-protected reefs. Its crew reportedly ignored warnings against entry in a protected area and took battle positions when park rangers showed the audacity to try boarding it. In a subsequent case before the Supreme Court, the Solicitor General took the view that the vessel enjoyed freedom of “innocent passage.” Does this mean that US vessels could now enter areas restricted even to local vessels?

We can understand the reluctance of both parties to upend the status quo. On the part of the Philippines, the current geopolitical equation requires US presence in this part of the world as a stabilizing force in the maintenance of regional place and security. In a period of a sizzling 7-percent to 8-percent economic growth, why indeed be distracted by what may turn out to be a potentially divisive and nationally paralyzing review process? On the part of the US, it can be argued that it is preoccupied with the more pressing and sensitive issues in the Korean Peninsula, Iran, Syria and other parts of Middle East as well as politically explosive domestic issues relating to immigration, federal budget, domestic economy, etc. to take on what may be considered a “minor” concern. This probably explains why it was cool to Philippine overtures for a review in early 2012.

And yet in light of the excellent relations currently obtaining between the two countries along with the political realities of the day, both sides may well regard the moment as the most timely for a review.

Consider these:
The just concluded midterm elections saw the election to the Senate of nine senators who owe the President a lot of political capital and who will most likely favorably see the way of the President on the VFA. The Lower House may also be open to discussions on the issue since Speaker Feliciano Belmonte himself declared in the aftermath of the Tubbataha incident that he would look into it in “aid of legislation.”

Clarity in the agreement may actually add a stronger link to bilateral relations in the context of US “pivot” to Asia. The policy entails deployment of 60 percent of US forces now stationed in Europe by the year 2020. The number of the troops to be deployed to the Philippines—in addition to the 500 to 600 military personnel already “temporarily” in the country in a rotational basis—is still up in the air. It can be safely assumed, however, that they will increase, especially in view of the increasing number of military and naval exercises between the two military organizations.

Additionally, in early May this year, the US Navy Chief Admiral Jonathan Greenert told AFP that the US will add 10 more ships to the 52 already deployed in the Pacific by year 2020. As facts bear out, this is no empty promise. In the year 2013, 72 US warships have reportedly already visited the Subic Naval Base, compared to 88 in 2012, 54 in 2011 and 51 in 2010. It will remove public guessing games if parameters could be already established as to the scope, duration and areas of their intended activities.

Flashpoints continue to raise danger alarms in the Korean Peninsula, Iran and the Middle East. When the Korean issue recently reached a critical point, a Cabinet official volunteered to provide temporary stationing of US troops in the country in case of need, as a way to assist the US. And then there was the more recent offer to provide allies “access to military facilities,” obviously to shore up national defenses.

Why not then take advantage of the favorable environment and current realities to establish clear guideposts on contentious issues such as criminal/custodial jurisdiction, length of “temporary stay,” conduct of military personnel and naval vessels. After all, the “Asian pivot” is aimed at advancing a just and sustainable international order, where the rights and responsibilities of nations and peoples are upheld and at continuing to “promote a rules-based international order.”

To repeat, we suggest that parties should decisively act now before future incidents deal their bilateral relations a potentially damaging called “third strike.”

Author is a retired career Philippine Ambassador. He served as Ambassador to Libya, Australia, China, and the United States of America.

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