Edca is not an implementing agreement

A major contention in the current debate on the Enhanced Defense Cooperation Agreement (Edca) is this: It is finalized as an executive agreement because it is a mere implementing agreement of the 1988 RP-US Visiting Forces Agreement (VFA) and the 1951 RP-US Mutual Defense Treaty (MDT). Nothing is farther from the truth.

Testifying at a Senate committee hearing on the Edca chaired by Sen. Miriam Defensor Santiago, former UP Law dean Merlin Magallona said that he doubted Edca as an “implementing agreement” and that he believed it is only an “invention.” Santiago herself pointed out that the Edca is unconstitutional: Senate concurrence is wanting (Sec. 21,  Art VII, 1987 Constitution), and ratification by the President is absent.

It is axiomatic that in legislation, implementing regulations do not go beyond the statute; otherwise, the rules are illegal. We submit that an implementing agreement, if any, should not surpass the main agreement, by giving more rights to and creating graver obligations for the parties, as in Edca.

The VFA merely authorizes “visits,” like the Balikatan exercises; the Edca converts the whole archipelago into one big US base, involving present and future “agreed” locations of old and new bases and facilities, even in “mega” cities, like Manila and Cebu.

The Edca’s costs stagger the mind. We renovate, construct and maintain bases, and pay for them for the use of US troops. We even pick up the tab for the maintenance of those troops, under the unratified (by the President) 2002 Mutual Logistics Support Agreement.

Yet, the Supreme Court laid down a simple guideline in making a “treaty” or “executive agreement”: “International agreements involving political issues or changes of national policy… usually take the form of ‘treaties.’ But international agreements embodying adjustments of detail… involving arrangement of a more or less temporary nature usually take the form of ‘executive agreements.’” (Commissioner of Custom vs. Eastern Trading, 3SCRA 351 [1961]).

Hence, in our jurisdiction, political agreements, like the 1947 Military Bases Agreement (MBA), the MDT and the VFA, were finalized as “treaties” by the Philippines—that is, with formal Senate concurrence.  (The United States just “recognizes” them as “treaties” without actual Senate approval.)

Amendments, as executive agreements,  are only to implement details or reduce rights and duties of parties. Examples of amendments to the 1947 MBA are the exchanges of notes between the Secretary of Foreign Affairs,  as alter ego of the President, and US authorities in the 1960s, reducing the duration of the bases from 99 to 25 years, revising criminal jurisdiction, and surrendering the Sangley Point naval base.

In that Senate committee hearing chaired by Senator Santiago, Defense Secretary Voltaire Gazmin (and in the Supreme Court, Acting Solicitor General Florin Hilbay) graciously admitted that, under the Edca and the MDT, US response to a foreign attack on the Philippines is not assured, unlike in US defense treaties with Nato, Australia, New Zealand and Japan. We ask: So why go for the Edca at all?

As the MDT is inutile, Sen. Juan Ponce Enrile filed a resolution in 1989 to abrogate it. During his term, President Fidel Ramos allowed the Military Assistance Agreement to lapse, as it had only deterred the modernization of our armed forces. And recently, Senator Santiago and Rep. Walden Bello threatened to file a joint resolution for the termination of the VFA.

Another contention is: The President is the “sole organ” in foreign relations. True, but pursuant to the Curtiss-Wright ruling (299 US 304), only in “negotiations” of treaties and in diplomacy. For, in fact, under the Constitution, 1) the Senate may or may not concur in the treaty; 2) Congress may or may not allot funds for its implementation;  and 3) the Supreme Court may or may not rule the treaty unconstitutional. And diplomacy (right of legation) is constitutionally subject to congressional consent, and funding.

With the Edca, the Philippines has welshed on our international treaty commitments in the Non-Aligned Movement, the Non-Proliferation Treaty, and the Asean Zone of Peace, Freedom and Neutrality. We have closed our eyes to our “loss of face” for the sake of America, which is the cause, incidentally, for the postponement of the ratification of the Asean treaty on a nuclear-weapon-free zone, paving the way for a possible nuclear confrontation in the area.

Malacañang pretends to misread the geopolitical situation in the West Philippine Sea: “Neutral,” America will “not counter” and “not contain” China. China will not attack the United States; it will be an Armageddon. China promises not to use force on Asean members. China and the Philippines signed in 1975 a joint communiqué, stressing “nonaggression” and “no threat or use of force.”

Lastly, one other interesting contention is: Military bases are not “foreign.” But under international law, in the same manner that any embassy in Manila remains “foreign” regardless of the ownership of the building or the land where it stands, a base is a US base, and by whatever name, politically stinks, irrespective of the base land’s ownership. Shorn of fictional veil, the bases, troops, or facilities are, indubitably, “foreign.”

The Edca critics have accused the President and his men of gravely abusing executive prerogatives—diplomatic (lie: “We invited the US to come”), legal, political, and fiscal (blurred US bases budget). The Edca palusot mocks our sovereignty (jurisdiction without custody).

The Supreme Court may still disappoint the President and alter egos, by finding them to have conspired on the Edca and committed grave abuse of discretion (US bases de-mothballed), culpable violation of the Constitution (nuclear weapons creeping in), and betrayal of public trust (subservient foreign policy)—for mortgaging their motherland and people with hardly a chance for redemption.

Nelson D. Laviña is a retired ambassador.