Why are we really withdrawing from the VFA?

It’s a bit baffling when you think about it. By this is meant the 1998 Visiting Forces Agreement (VFA), which the present Administration is stridently threatening to terminate. But how would walking away from that Agreement (actually two Agreements, the so-called VFA 1 and VFA 2 — the counterpart agreement) benefit the Philippines, even as a bargaining chip, is quite unclear.

It’s not the VFA that provides for our security arrangement with the US nor authorize US troops to conduct exercises within our territory. That’s the 1951 Mutual Defense Treaty (MDT; specifically Article II: “In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack”) and the 2014 Enhanced Defense Cooperation Agreement (EDCA; also Article II: “joint and combined training activities”).

And the termination of the VFA does not end the MDT or the EDCA — the VFA merely supplements the MDT and the EDCA proceeds from the MDT.

Much has been made of the US treating the VFA as an “executive agreement.” But frankly, it is an executive agreement. If it weren’t for our Constitution, we would have treated the VFA the same way.

That we classify the VFA a treaty is because the Constitution’s Article XVIII.25 stated that having foreign “troops… in the Philippines” is only possible through a treaty concurred in by the Senate. That opaque provision was unfortunately interpreted by the Supreme Court as making no distinction between troops merely visiting or here on a more regular basis.

But in the end it doesn’t really matter: whether the agreement is a treaty or executive agreement (although the question is still to be decided by our Supreme Court), our Philippine president (just like the US president) should reasonably be able to take his country out of any international agreement without need of Senate concurrence.

Hence, what then is the VFA’s real import? Visa free entry? Article III.2 says that US “military personnel shall be exempt from passport and visa regulations upon entering and departing the Philippines.” Yet such is really pointless considering US citizens are visa exempt anyway for stays of 30 days or less. Furthermore, the EDCA Article X.3 allows for “implementing arrangements [that] may address additional details.”

The core provision is actually Article V:

“1.(a) Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines.”

2.(a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect to offenses, including offenses relating to the security of the Philippines, punishable under the laws of the Philippines, but not under the laws of the United States.”

Thus, US servicemen violating Philippine laws are subject to Philippine criminal jurisdiction. That’s why the Daniel Smith and Joseph Pemberton cases were tried before Philippine courts.

But does removing the VFA change jurisdictional powers and relationships between the Philippines and the US? It does in the sense that it will make the matter more vulnerable to political factors and power equations.

If the VFA is terminated, general international law will kick in, which provides lesser jurisdictional power for the Philippines: US military servicemen will be considered foreign State officials who, if are present here with Philippine consent, have immunity for actions considered “acts of State.” Philippine criminal jurisdiction will arguably only apply outside US servicemen’s “functional immunity.”

University of Exeter’s Aurel Sari points out that visiting foreign military personnel are “representatives of their sending State, entitled to be treated as such as a matter of general international law.” Yet, here is a crucial point: without the VFA, general international law leaves the door open for “the existence of special considerations, such as the legitimacy of more extensive exemptions from local jurisdiction in more demanding operational environments.” (The Status of Armed Forces in Public International Law: Jurisdiction and Immunity, 2015)

Netherlands Defence Academy’s Joop Voetelink puts it another way: yes, there is “no exception for military personnel with respect to the rule that state officials enjoy immunity for acts performed in an official capacity.”

Yet, while conceding that “when an act is punishable under both sending state law and host state law the prescriptive jurisdiction of both the sending state and the host state is concurrent,” quite significantly Voetelink also proffers (like Sari) that even for matters outside “acts of State,” the sending State (in our discussion, the US) can still assert jurisdiction using “a hybrid form” of it, based on “active nationality and the protection principle.” (Status of Forces: Criminal Jurisdiction over Military Personnel Abroad, 2015; also, Status of Forces and Criminal Jurisdiction, 2013).

So again: what exactly is to be gained with the VFA’s termination? Considering, aside from the jurisdictional issues, that political, diplomatic, economic, and security complications may ensue, a clearer expressed rationale for Philippine withdrawal from the VFA surely is a necessity.

Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

Twitter @jemygatdula