Unresolved issues with the VFA’s return

President Duterte has finally resolved the fate of the Visiting Forces Agreement (VFA) between the Philippines and the US. After announcing the cancellation of the VFA in February 2020, Mr. Duterte suspended its process of termination thriceʍin June and November 2020, and again in June 2021. In July, he fully restored the VFA and admitted that the US’ vaccine donation to the Philippines led to his decision: “We did a give and take… I conceded to the continuance of the Visiting Forces Agreement in gratitude.”

However, issues regarding the agreement remain unresolved, especially since there were no changes made to its original text. Philippine Defense Secretary Delfin Lorenzana explained that there will be a “side agreement” that will serve as an addendum to the VFA.

Bilateral discussions on a VFA addendum are expected to address the thorny issue of criminal jurisdiction related to American soldiers violating Philippine laws. The high profile cases of US Marine Daniel Smith, who raped a Filipino woman (“Nicole” in court papers) in Subic in 2005, and Joseph Scott Pemberton, who murdered transgender woman Jennifer Laude in Olongapo in 2014, revealed how the VFA was used to provide special treatment to them. Despite being found guilty and sentenced to prison, Smith was placed under the custody of the US embassy, while Pemberton was placed in solitary confinement inside an air-conditioned shipping container.

Smith’s acquittal in 2009 and Pemberton’s pardon in 2020 were widely condemned by various groups in the Philippines as, among others, “another hallmark of the Philippines’ subservience to the US.” Both cases should serve as critical references that should be threshed out in the VFA addendum.

Another issue is the ambiguity of American assistance in the Philippines’ maritime disputes, especially since previous US administrations have carefully equivocated on the precise extent of the US commitment to the Philippines. However, US assurances have recently become more pronounced, with Secretary of State Antony Blinken citing the importance of the 1951 Mutual Defense Treaty and “its clear application to armed attacks against the Philippine armed forces, public vessels, or aircraft in the Pacific, which includes the South China Sea.” Yet the uncertainty lies in how America’s rhetoric is translated into action; US commitment remains unpredictable as it is subject to the Biden administration’s evolving threat perceptions of China and America’s strategic motivations regarding its involvement in the region.

Mr. Duterte’s reinstatement of the VFA is a welcome relief for the defense and diplomatic establishments of both countries. On the one hand, the VFA provides the US access to the Philippines’ strategic location, bases, and waters, which can be used for American operations that will challenge Chinese territorial claims and enforce international law in the South China Sea. On the other hand, the VFA is a balancing force for the Philippines that helps mitigate its geostrategic and military vulnerabilities vis-à-vis China. The agreement also serves as the Philippines’ insurance policy against China, a deterrent that should prevent Beijing from taking further actions that increase maritime tensions.

Given the strategic advantages of keeping the VFA, Mr. Duterte’s decision to restore it seems logical. Yet without addressing the issues on criminal jurisdiction and the extent of US assistance, the agreement will continue to raise concerns. There is the probability that bilateral discussions on the addendum will drag on and remain unresolved since the President has already reinstated the VFA anyway.

One hopes both countries will work together to make the addendum a reality. Otherwise, it becomes yet another missed opportunity for the Philippines to demand parity and reciprocity as a truly “sovereign equal,” a situation that continues to haunt its alliance with the US.

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Andrea Chloe Wong has a Ph.D. in political science from the University of Canterbury in New Zealand.