Legal problems surrounding the EDCA

As predicted by many political analysts, the territorial row between Manila and the communist government in Beijing eventually led to the Philippines running to the United States for military assistance.  Actually, if the proceeds of the sale of large chunks of real estate in Fort Bonifacio were used to upgrade the nation’s military arsenal, the Philippines would not be as desperate as it currently is in its quest for a military answer to the Chinese threat in the West Philippine Sea.  That, of course, deserves a separate story.

Meanwhile, public attention is focused on the controversial Enhanced Defense Cooperation Agreement between the Philippines and the United States, a result of the recent state visit of the American president to Manila.  Under the EDCA, the US military will have access to bases operated by the Armed Forces of the Philippines.  The American military presence in the Philippines is expected to tell China that the US will protect the Philippines in the event of trouble in the fourth most strategic sea lane in the world.  To what extent that protection is all about remains unclear.  For the meantime, Manila is contented with the American words of assurance during these troubling times.

Senator Miriam Defensor-Santiago adamantly insists that the EDCA is a treaty and as such, it must be submitted to the Senate for its ratification or rejection.  She resents the exclusion of the Senate in the equation which led to the EDCA.

According to the Department of National Defense (DND), however, the EDCA is not a treaty but an “agreement to improve Philippine-US security cooperation,” i.e., an agreement that may be classified as a mere offshoot of the existing treaties between the Republic of the Philippines and the United States of America, namely, the Mutual Defense Treaty and the Visiting Forces Agreement (VFA).  Simply put, the DND considers the EDCA something akin to “more seasoning added to an existing recipe.”  On this score, the DND insists that the EDCA need not be submitted to the Senate.

Section 21, Article VII of the 1987 Constitution states that “(n)o treaty or international agreement shall be valid unless concurred in by at least two-thirds of all the Members of the Senate.”  Assuming that the EDCA is not a separate treaty, it appears to be covered by the phrase “international agreement” contemplated by the Constitution.  After all, the EDCA is really an agreement—that is what the “A” in EDCA stands for—arrived at by Filipino and American leaders.   Unless the wordsmiths behind the EDCA can come up with a contrary argument, it seems that the Senate must have a say on the EDCA.

The disclaimer that the EDCA is not a treaty or an international agreement but a mere “enhancement” of an existing treaty or existing treaties, is simply a play with words.  By any definition, an “enhancement” (or call it “improvement”) of any agreement necessarily means an amendment of or a change in that agreement.  Thus, an amendment to the provisions of any existing treaty, whether the amendment consists of an addition, subtraction or modification of certain words or phrases, will necessarily require ratification anew by the Senate.  By analogy, any amendment to the Constitution must be submitted to the people for ratification or rejection because the amendment is in the nature of a change in what the people originally ratified.  The same may be said of contracts.  An amendment (the legal term is novation) of a contract, to be valid, must have the consent of all the parties to that contract, on the premise that a contracting party cannot be bound by anything he did not consent to.     

Nonetheless, all is not won for those who support the view that the EDCA must be submitted to the Senate.  To be validly voted upon by the Senate, the EDCA must be considered either a treaty or an international agreement by both the Senate of the Philippines and the US Senate.  It will be absurd for the EDCA to be considered a treaty or an international agreement from the Philippine perspective, and something otherwise from the standpoint of the Americans.

Even assuming that the EDCA will be considered a treaty or an international agreement by the Americans, there is the possibility that the US Senate may reject it, which means that there will be no EDCA to speak of in the first place.  In other words, history may repeat itself.  It will be recalled that in the 1920s, US President Woodrow Wilson was behind the creation of the League of Nations, the precursor of the United Nations today.  Ironically, the US could not be a member of the League because the US Senate rejected the multi-lateral treaty creating the League, the approval of which was the pre-requisite to American membership in the organization.  

There are other legal issues as well.

While the DND insists that there is nothing in the EDCA which will allow the Americans to establish military bases in the Philippines, the issue of which country will have jurisdiction over crimes committed on Philippine soil by American military service personnel is a problem area.  Several years ago, this issue created quite a stir between Manila and Washington, D.C. over a case involving a lance corporal on a military assignment in the Philippines who got too physically intimate with a young Filipina.  To all intents and purposes, the soldier was “detained” at the US Embassy in Manila while he appealed his conviction before the Court of Appeals.  When the appellate court finally ruled in favor of the serviceman, the American military immediately sent him to the US.  The controversy demonstrated how jealous the US can get in protecting one of its own, and triggered public outrage against the VFA.

It looks like before the Philippines can resolve its territorial dispute with China, Malacañang will have to resolve the legal issues relating to the EDCA first.  



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