VFA, MDT not enforceable in US, PH

To my surprise, President Duterte suspended for six months his abrogation of our Visiting Forces Agreement (VFA) with the United States (US) via Diplomatic Note No. 2020-2622 dated June 1, 2020.

Historically, the VFA was approved by our Senate on May 27, 1999 and entered into force on June 1, 1999. In Bayan v. Zamora (Oct. 10, 2000), a divided Supreme Court upheld its constitutionality (with me taking “no part due to close personal and former professional relations with a petitioner, Sen. J.R. Salonga”).

Earlier, on Aug. 30, 1951, a Mutual Defense Treaty (MDT) was concluded under which the Philippines and the US agreed “to respond to any external armed attack on their territory, armed forces, public vessel or aircraft.”

Recall that on Dec. 4, 2006, the Makati Regional Trial Court convicted visiting US Lance Cpl. Daniel Smith of rape, a nonbailable offense, and ordered his detention at the Makati City Jail. Smith immediately appealed to the Court of Appeals (CA).

However, 25 days later, on Dec. 29, 2006, “a contingent of Philippine law enforcement agencies…” stealthily brought Smith to a detention facility in the US Embassy in Manila per an agreement on Dec. 19, 2006 between then Foreign Secretary Alberto G. Romulo and then US Ambassador Kristie A. Kenney.

Nicolas v. Romulo (Feb. 11, 2009) invalidated the Romulo-Kenney accord because, under the VFA, an American soldier-appellant should be detained by “Philippine authorities” within our territory. Nonetheless—and this was the strange part of the decision—he was to remain in the US Embassy until the diplomats of both countries could agree on which local jail he should be transferred pending appeal. After the CA acquitted him on April 23, 2009, he flew to the US.

Amid this seething imbroglio, it was discovered that the VFA was never ratified by the US Senate. Its defenders argued that, anyway, the VFA was just an adjunct of the MDT which was ratified by the US Senate.

However, I believe this argument was blown away on March 25, 2008 when the US Supreme Court, voting 6-3, held in Medellin v. Texas “that a treaty, EVEN IF RATIFIED BY THE US SENATE, is not enforceable as domestic federal law in the US, unless the US enacts the implementing legislation, or the treaty BY ITS TERMS is self-executory and ratified by the US Senate as such.” (Caps supplied)

Under this ruling, penned by Chief Justice John G. Roberts, the VFA is not enforceable (or binding) in the US because the US Congress has not enacted any implementing law and because the VFA “by its terms” is not self-executory. In fact, it has not even been ratified by the US Senate.

Given the supervening Medellin decision on March 25, 2008, the VFA is no longer enforceable here (even if earlier ruled constitutional in Bayan v. Zamora on Oct. 10, 2000) since its enforcement would now violate Sec. 25, Art. XVII of our Constitution, which requires that “foreign military bases, TROOPS, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate… and RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE.” (Caps supplied)

Even the MDT, though ratified by the US Senate, is not enforceable in the US because it is not “by its terms” self-executory. Neither is there any US law implementing it. Thus, under the Medellin doctrine, both the VFA and the MDT are not enforceable in the US as federal law.

Small wonder, when I visited then senior US Justice Antonin Scalia (now deceased) in Washington DC on May 17, 2006, he declined my invitation to participate in the Global Forum on Liberty and Prosperity that our high court was sponsoring later that year.

As the leader of the conservatives who dominated, and still dominate, 5-4, the US Court up to now, he explained, “… I am useless in international meetings because I believe that our Supreme Court is tasked to enforce only the US Constitution and US laws, not cross-border concepts that do not find implementing US statutes.”

Obviously, there are many treaties entered into by the US, including the Vienna Convention on Consular Relations (April 24, 1963) invoked by the petitioner in Medellin v. Texas, that are not, by their terms, self-executory and have no implementing laws. What then is the remedy? CJ Roberts suggested that the US Congress should enact enabling laws for them.

However, the US Congress has not done so. Inevitably then, the Philippines, as a self-respecting sovereign nation, has no choice but to apply the Medellin decision and likewise deem the VFA and the MDT unenforceable here. I wonder if President Duterte had this conundrum in mind when he abrogated the VFA last Feb. 11.

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