Aria: Deciphering legality from policy

Our Constitution explicitly “adopts the generally accepted principles of international law [including treaties] as PART OF THE LAW OF THE LAND.” However, as a modification, it 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.)

While ratified by our Senate, our Mutual Defense Treaty (MDT) and Visiting Forces Agreement (VFA) with the United States (US) were, however, not mutually ratified by the US Senate. Worse, the US Supreme Court held in Medellin v. Texas (March 25, 2008) “that a treaty, EVEN IF RATIFIED BY THE US SENATE, IS NOT ENFORCEABLE AS A 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).

Because of this, I opined on June 7 that “[i]nevitably, the Philippines, as a self-respecting sovereign nation, has no choice but to apply the Medellin decision and likewise deem the MDT and the VFA unenforceable here.”

Amid this conundrum that befell the MDT and VFA (as well as several other treaties with us and other countries), the US approved the Asia Reassurance Initiative Act of 2018 (Aria) on Dec. 31, 2018. But is Aria the “implementing legislation” in the US that has the same validity and enforceability as “part of the law of the land” in the Philippines? With due respect, I do not think so. Why?

First, Aria simply says that the “US Government is committed” to the MDT… and “all related and subsequent bilateral security agreements” without more, and without any provisions which can reasonably show when and how this “commitment” can be legally compelled and/or enforced by a suit in a US court.

In other words, “committed,” standing alone by itself, is vague, overbroad, and capable of being interpreted to mean anything. The clearest interpretation is that the US is “committed” only insofar as its national interest is served and promoted. In this light, “committed” should be deciphered as an American policy, not as a legal command enforceable by a suit in a court of law.

To be fair, let me add that Aria also uses “committed” in referring to America’s defense treaties or “security arrangements” with some other allies in the Indo-Pacific. But it has lengthier and meatier provisions for China, North Korea, India, Japan, and Taiwan.

Second, Aria appropriated $1.5 billion yearly from “2019 through 2023, which shall be used… to advance US foreign policy interests and objectives in the Indo-Pacific region in recognition of the value of diplomatic initiatives and programs in the furtherance of US strategy…” (Sec. 201-b)

However, it did not say to which country, how much, and for what specific purpose this huge lump shall be used, leaving it to the US State Department, the US Agency for International Development, and “as appropriate” the US Department of Defense to spend it as they deem fit to pursue American diplomatic initiatives.

(Here, this huge lump sum could be mistaken for the outlawed pork barrel, which may be valid in the US because the US Constitution, unlike ours, allows wide discretion to its executive branch.)

Third, when it wants to, Aria uses specific, legalistic, non-diplomatic, and judicially enforceable language, like “None of the amounts appropriated… [referring to the $1.5 b] may be made available for counternarcotics assistance for the Philippine National Police unless… the Government of the Philippines has adopted and is implementing a counternarcotics strategy that is consistent with international human rights standards…” (Sec. 201, e-1)

To repeat, I believe Aria was not intended to be the “implementing law” to enforce the MDT and VFA. Rather, it is the mandate for the massive, multi-pronged US swing to the larger Indo-Pacific area, in lieu of former US president Barack Obama’s “Pivot to Asia,” a policy merely of the US executive branch.

Be that as it may, I will take up next Sunday how we can avail ourselves of Aria to advance OUR national interest via a selective, prudent, and practical positioning that is neither subservient like a vassal nor arrogant like a superpower, either of which we are not. Remember, nations have no permanent friends or permanent enemies, only permanent interests.

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