The MDT and VFA as deterrence

The Mutual Defense Treaty (MDT) and the Visiting Forces Agreement (VFA) between the Philippines and the United States are treaties to deter aggression, warning possible aggressors that they face the combined military might of the alliance should any aggression be committed against any of the treaty allies. The United Nations Charter, which outlaws wars of aggression, allows states to enter into collective self-defense treaties to repel aggression by other states.

To be an effective deterrence against foreign aggression, the MDT and the VFA must be beyond question as to their validity. Otherwise, possible aggressors will not be deterred as they may be misled into thinking that the mutual defense treaty is invalid or ineffective. Any doubt may encourage adventurism by possible aggressors.

The question is, are the MDT and the VFA valid and effective treaties under Philippine and US laws? The MDT, entered into in 1951 under the 1935 Constitution, was ratified by the Philippine Senate and by the US Senate as a treaty between the Philippines and the US. The VFA, entered into in 1998 under the 1987 Constitution, was ratified by the Philippine Senate. However, the VFA was not ratified by the US Senate since it was entered into by the US President merely as an executive agreement, which meant that the VFA did not have the status of US domestic law.

I dissented in the 2009 case of Nicolas v. Romulo, which upheld the constitutionality of the VFA, because the 1987 Constitution expressly requires that any agreement allowing the presence of foreign soldiers in the country must be “recognized as a treaty by the other contracting state.” I explained as follows: “In short, if the treaty is part of domestic law of the Philippines, it must also be part of domestic law of the other contracting State. Otherwise, the treaty cannot take effect in the Philippines.” Thus, I voted to “declare the VFA incomplete and ineffective and thus unenforceable.”

I cited in my dissent the then recent case of Medellin v. Texas, decided by the US Supreme Court the year before in 2008, which held that treaties “are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.” Medellin recognized that at least some 70-odd treaties of the United States would be affected by the ruling, including the defense treaties of the US with the Philippines, Japan, South Korea, and Australia. I explained in my dissent that Medellin proffered a solution—adoption of an implementing legislation by the US Congress giving “wholesale effect” to such treaties as part of US domestic law.

That implementing legislation by the US Congress came on Dec. 31, 2018, with the signing into law by President Donald Trump of the Asia Reassurance Initiative Act of 2018 (ARIA). The shroud of uncertainty unleashed by Medellin was lifted when the ARIA expressly adopted wholesale as US domestic law all the defense treaties that the US had entered into with its allies in Asia, including the Philippines. Section 202(d) of the ARIA expressly states: “The United States Government is committed to the Mutual Defense Treaty between the Republic of the Philippines and the United States of America, done at Washington August 30, 1951, and all related and subsequent bilateral security agreements and arrangements concluded on or before the date of the enactment of this Act, including the Enhanced Defense Cooperation Agreement (Edca), done at Manila April 28, 2014.”

When the ARIA states that the US “is committed” to the MDT, it means that the US is obligated under the MDT, making the MDT part of US domestic law. This “reassurance” applies to all security arrangements between the Philippines and the US from 1951 to 2014, making the VFA and even the Edca part of US domestic law. The US has also adopted the Edca as part of US domestic law even if in the Philippines, as ruled by the Supreme Court in the 2016 case of Saguisag v. Executive Secretary, the Edca is merely an executive agreement.

The MDT and VFA are indisputably valid, effective, and enforceable, as both are now part of Philippine domestic law and US domestic law.

acarpio@inquirer.com.ph