PRIMER
AGREEMENT BETWEEN
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
AND
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
REGARDING THE TREATMENT
OF UNITED STATES ARMED FORCES
VISITING THE PHILIPPINES
 
 
    
 

 

THE PHILIPPINES AND UNITED STATES DEFENSE AND SECURITY RELATIONS
 
 
Introduction
The Philippines and the United States of America became treaty allies almost half a century ago when the two countries concluded a Mutual Defense Treaty (MDT) in 1951. The bilateral Philippine-American defense relationship that was built on the MDT has been a bulwark for the external defense of the Philippines and a major instrument that has helped preserve the security of East Asia.

As the Philippines and the United States prepare to enter the 21st Century, both countries believe their defense alliance remains essential for regional peace and stability. The East Asian region has more than its share of serious regional tensions and potential security flashpoints. Faced with this environment of regional uncertainty, the Philippines seeks to enhance its defense capability and strengthen the effectiveness of its bilateral relationship with the United States. The Visiting Forces Agreement was designed for this purpose.
 
 
Existing Bilateral Pacts 
The defense and security relationship between the Philippines and the United States is governed by a number of agreements. These are the Military Assistance Agreement (MAA) of 1947, the Mutual Defense Treaty (MDT) of 1951, the Mutual Defense Assistance Agreement (MDAA) of 1953, and the Serrano-Bohlen Memorandum of Agreement (MOA) of 1958.

The 1947 MAA formalized the commitment of the United States to assist the development of the Philippine armed forces. It also established the Joint United States Military Assistance Group (JUSMAG). (The 1947 MAA was concluded as a corollary agreement to the terminated 1947 Military Bases Agreement.)

The 1951 MDT provides the overall framework of the defense relationship between the Philippines and the United States. It also serves as the mechanism for the two countries, as defense partners, to respond in the event of an armed attack by foreign forces on the metropolitan territories, armed forces, public vessels or aircraft of either country. In order more effectively to achieve the objective of the treaty, the parties separately and jointly, by self-help and mutual aid, agreed to maintain and develop their individual and collective capacity to resist armed attack.

The 1953 MDAA revised and extended the 1947 MAA, which constituted the continued commitment of the United States Government to make equipment, materials, devices and other assistance available to the Philippines. The 1958 Serrano-Bohlen MOA established a permanent Philippine-U.S. Mutual Defense Board, which would function under the Philippine-United States Council of Foreign Ministers established under the 1951 MDT.

The two countries also signed the Military Bases Agreement on 14 March 1947 formalizing the use of 23 installations in the country by United States military forces. However, in 1991 the Philippine Senate rejected the extension of the 1947 MBA thereby terminating in 1992 the basing arrangements between the Philippines and the United States.

While the 1947 MBA was terminated in 1992, the other bilateral defense pacts, particularly the 1951 MDT, remained in force.

The decision by the Philippine Senate in 1991 of the extension of the 1947 MBA had no legal effect on the continuing validity of the other defense pacts between the Philippines and the United States. The two countries remain defense allies under the 1951 MDT. Even with the termination of the 1947 MBA in 1992, the 1951 MDT remained in effect as the latter is distinct and an independent legal document from the 1947 MBA.
 
 
Functional Linkages between the Philippines and the United States 
The Philippines and the United States are defense allies whose partnership involves various functional linkages that mutually benefit each other. For the Philippines, the United States still remains one of its most important friends.

In 1997, the United States has a cumulative investment of $3.4 Billion (book value) in the Philippines. Philippine exports to the U.S. amounted to $6.996 Billion in 1996 and $8.815 Billion in 1997, which represents 35% of the total Philippine exports for 1997. In 1997, the level of trade between the two countries reached over $16 Billion. From January to May 1998, the Philippines has already exported about $3.840 Billion to the United States. The two-way trade between the two countries has been in favor of the Philippines since the 1980s.

The Philippines ranks as the 14th largest exporter to the United States. The Philippines is also the third largest recipient of sugar quota in the United States at 205,000 metric tons next only to the Dominican Republic and Brazil. It is estimated that Philippine exports benefited from the U.S. General Scheme of Preferences (GSP) to the tune of $1.6 Billion in 1997. Remittances to the Philippines from the U.S. in 1996 amounted to $2.6 billion, which represents more than 50% of the total remittances to the Philippines for the year.
 
 
The Strategic Role of the Philippine-U.S. Defense Relationship
The Philippines is astride one of the most important sea lines of communication in the Asia-Pacific region. To the southwest of the Philippines are three strategic "choke points" in the maritime area of Southeast Asia -- the Malacca, Sunda, and Lombok Straits. Approximately 50% of Asia's oil supplies and 80% of its strategic materials transit these passages. In the case of Japan, nearly 90% of its oil crosses the South China Sea.

The Philippines is also located at a strategic "crossroads" between the Pacific Ocean on one side and the South China Sea on the other. It stands guard to the Asian mainland and adjacent to the critical straits that lead to the Indian Ocean and the Middle East.

The 1951 MDT between the Philippines and the United States is an important link in the chain of bilateral defense arrangements, which underpins the regional security of the Western Pacific. These defense arrangements have been entered between the United States and several countries in the region - such as Japan, Australia, Singapore, Indonesia (unwritten), Thailand, (unwritten) and Malaysia. The U.S. network of defense partnerships in the region has, to this day, served as the linchpin for regional stability and security, particularly in the light of the continuing uncertainty in this part of the world.

There are persisting sources of possible conflict in the area, such as the state of war in the Korean Peninsula and the conflicting claims in the South China Sea. The region confronts a dangerous state of affairs that is rendered more volatile by the acute financial crisis faced by Asia these days. It is imperative to the continued economic growth and development of the Philippines for the Asia-Pacific region to maintain a stable political environment conducive to investments and business development.

Under Article IV of the 1951 MDT, the Philippines and the United States are committed to act to meet common dangers in accordance with their constitutional processes in the event of an armed attack in the Pacific area on the Philippines. The parties are also obligated under Article III of the treaty to consult each other regarding the implementation of the treaty and whenever in the opinion of either party the territorial integrity, political independence or security of either of the parties is threatened by external armed attack in the Pacific. This assures that either party will be able to consult the other on any matter which it believes falls within this article.

Article V of the treaty also states that, for purposes of Article IV, an armed attack on either of the parties is deemed to include an armed attack on the metropolitan territory of either of the parties or on the island territories under its jurisdiction the Pacific or on its armed forces, public vessels or aircraft in the Pacific.

However, it is important to note that an attack on Philippine armed forces, public vessels or aircraft would not have to occur within the metropolitan territory of the Philippines or island territories under its jurisdiction in order to come within the definition of Pacific area in Article V. The term "Pacific area" under the 1951 MDT is broadly defined by the parties to include attack against Philippine armed forces, public vessels or aircraft in places that may not be within the geographic limits of the Pacific area.
 
 
The National Interest and the R.P.-U.S. Defense Relationship
Even if the Philippine-U.S. defense relations have a significant impact on the security and stability of Asia-Pacific, the most important objective of this partnership, as embodied in the 1951 MDT, is to provide an effective framework for mutual military assistance in case of aggression against either parties.

To attain a degree of self-reliance in external defense, the Philippines has embarked on the modernization of its armed forces as the primary instrument for its external security. However, this effort will continue to be supplemented by the network of bilateral defense cooperation which the Philippines pursues with the United States and several of its friendly neighbors. The Philippines will enhance these defense relationships, particularly the 1951 R.P.-U.S. MDT, to preserve its security and progress and to assist in maintaining peace and stability in the region.

One practical benefit to the Philippines of its defense and security alliance with the United States is the measure of deterrence this relationship provides against would-be aggressors thus guaranteeing the stability of the country, which is vital to the welfare of individual Filipinos.

Aside from the long-term benefit of maintaining peaceful regional environment and security, another practical advantage of the defense cooperation with the United States is the opportunity it provides the Philippines to develop its defense capabilities through U.S. military assistance and training programs. The regular military exercises conducted between the two armed forces also afford Philippine troops to get acquainted and trained on the latest techniques and technology in defense and warfare. Furthermore, these exercises are by no means exclusively limited to combat-related activities. The range and variety of exercises include useful activities that enhance the ability of the Philippine armed forces to acquire new techniques on maritime patrol and surveillance, search and rescue, and disaster relief operations.

The combined military exercises between the two sides also directly benefit the local communities where these exercises are conducted. U.S. troops participating in military exercises in the Philippines have also provided medical and dental services to the local population where the exercises are conducted. Post-exercise activities include construction projects such as building and repairing school houses and barangay halls, and installation of deep wells.
 

 
 
Philippine-U.S. Military Exercises
The objectives of the 1951 MDT will only be achieved if regular military exercises are conducted between Philippine and United States armed forces. For the Philippine-U.S. defense relations to remain effective and operable, the armed forces of the two countries have to exercise together, train each other, plan jointly, and maintain the habit of doing things together. These joint activities guarantee a well-coordinated operation when the need arises.

These joint activities would entail official visits by United States defense and military personnel to the Philippines. The number of these visits varies from year to year depending on the number of activities agreed upon between the two sides. From past experience, the number of military exercises conducted between the Philippine and the U.S. ranges from 10 to 12 a year. The United States does not conduct unilateral military exercises in the Philippines. Military exercises by the United States in the Philippines always involve the Philippine armed forces and only take place with the prior approval of the Philippine Government.

The number of United States armed forces in combined military exercises varies depending on the nature of the specific exercise conducted. In many of the exercises, the number of U.S. troops are less than 50. The biggest combined military exercise, the Balikatan, which happens once every year or one-and-a-half years, involves 1,000 to 3,000 U.S. defense and military personnel. (This number is a small fraction of about 50,000 U.S. troops that conduct military exercises from time to time in South Korea or Japan.)

The duration of stay in the Philippines by United States defense and military personnel participating in combined military exercises ranges from two days to four weeks at a time. In big exercises, such as the "Balikatan", about half of the participating United States forces stays off-shore in frigates and naval vessels for most of the period of the exercise. "Balikatan" exercises last an average of three to four weeks. (The last "Balikatan" exercises were held in 1995. At the end of 1996, the two sides have agreed to suspend large-scale military exercises until a formal agreement on the treatment of visiting U.S. defense and military personnel is finalized. Only small-scale military exercises, involving not more than 20 United States personnel, have been conducted since then. Before its suspension in 1996, "Balikatan" exercises had been held almost every year since 1981.)

Enough safeguards in the United States military organization are in place to ensure the good behavior and conduct of participating U.S. troops in the Philippines. The activities and personal conduct of these troops during exercises are also closely monitored and supervised by United States military commanders as well as by Philippine and U.S. military police.

Available statistics from the Department of Justice show that not a single case has been filed against U.S. personnel participating in joint military exercises in the Philippines since the closure of the U.S. bases in 1992.
 
 
THE PHILIPPINE-U.S. VISITING FORCES AGREEMENT (VFA) 
In spite of the abrogation of the permanent basing arrangement between the Philippines and the United States, the two sides have remained committed to the strategic objectives of their defense cooperation. As this commitment would require consistent and regular military exercises between Philippine and U.S. armed forces, the two sides agreed to conclude an agreement that will regulate the temporary visits for military exercises of U.S. defense and military personnel in the country.

The VFA was negotiated between the two sides for almost two years. It was signed on 10 February 1998 by Secretary Domingo L. Siazon, Jr. for the Philippines and Ambassador Thomas C. Hubbard for the United States. The VFA is intended to give substance to the 1951 MDT.

The VFA, in essence, is a mechanism for regulating the circumstances and conditions under which United States forces may visit the Philippines for bilateral military exercises. The VFA governs the entry and exit of U.S. personnel in the country and establishes the manner of disposing of criminal cases against any of its members, who commits an offense in the Philippines. The VFA also establishes a procedure for resolving differences in that may arise between the two sides with regard to the provisions of the agreement.
 
 
Criminal Jurisdiction and Civil Liability
The VFA does not grant to any United States personnel diplomatic immunity or any kind of immunity from criminal prosecution for offenses committed in the Philippines. No member of the United States armed forces who commits a crime in the Philippines while participating in military exercises will ever escape justice under the VFA.

The agreement provides clear guidelines on the prosecution, either in Philippine or United States courts, of offenses committed by members of the United States armed forces. The agreement ensures that justice is served for every offense committed by any member of the United States armed forces in the country. Therefore, the question is not one of immunity from criminal prosecution, but which side should exercise jurisdiction over offending United States personnel.

The framework established in the VFA is standard in agreements of this nature. Among the countries in the world, the United States has the widest international practice in concluding agreements of this nature. The U.S. has 77 agreements with other countries similar to the VFA. During the last twenty years alone, it has concluded around 50 such agreements around the world.

The framework for criminal jurisdiction under the VFA maintains that if the offense is solely against the laws of the United States and not against those of the Philippines, the United States shall exercise exclusive jurisdiction. If the offense is solely against the laws of the Philippines and not against those of the United States, the Philippines shall exercise exclusive jurisdiction.

The right to exercise jurisdiction shall be concurrent if the offense is against the laws of both countries. In case of concurrent jurisdiction, the host country -- the Philippines -- shall have the primary right to exercise jurisdiction in all cases, except for those offenses solely against the security and property of the United States or solely against the person or property of United States personnel, and those committed in the performance of duty. Each party may request the other to waive its jurisdiction under the agreement.

The VFA has also ensured that the issuance of duty certificate to determine "official duty" offenses is safeguarded from possible abuse through a clear guideline on the appropriate authority who can issue such certificate and under what circumstances it can be properly issued. In a side letter from the U.S. Government, it has been clarified that U.S. defense and military personnel who commit an offense while on official leave or on authorized liberty or pass shall be considered "off-duty" and will be under the primary jurisdiction of the Philippines.

In any event, the VFA does not preclude any offended party from filing an independent civil action for damages against offending United States personnel or against the United States Government itself for tortious acts committed by any of its agent in the performance of his or her official duty.

 
Entry and Exit of United States Personnel
The visa-free entry into the country granted to U.S. defense and military personnel under the VFA is intended to facilitate their arrival and immediate deployment to the area where the exercises will be held. Such facilitation is required as most of the exercises are conducted for a short period of time. Furthermore, visa-free entry for foreigners in the Philippines is not an exceptional arrangement. The Philippines has a visa-free policy for many nationalities including Americans. In 1997 alone, more than two million tourists arrived in the country with more than half of them entering without visas.

With regards to military identification as a substitute for passports, this is not something out of the ordinary. The Philippines, as with other countries, also recognizes seaman's books carried by merchant seafarers as substitutes for passports. Filipino seamen avail of this privilege when they disembark in various seaports all over the world.

The VFA does not accord visiting U.S. personnel absolute exemption from all tax and import duties in the Philippines. The exemption from taxes and import duties granted under the VFA pertains only to military equipment and supplies, and the personal effects of U.S. personnel, which will be used in pursuit of activities approved by the Philippine Government. The goods, equipment, and personal effects brought in by the United States military and its personnel will have to be taken out when the specific activity is over.

In the unlikely event that these goods, equipment, and personal effects are disposed of in the Philippines to taxable persons and entities, the appropriate taxes and duties will have to be paid. There are enough safeguards in the VFA to prevent abuse of this privilege. The VFA provisions on tax and duties exemptions are a reasonable and standard international practice in the treatment of visiting foreign armed forces in another's territory in pursuit of mutually beneficial goals.
 
 
 
Termination Clause 
Like all other international agreements, the VFA will only subsist upon the consent of the parties involved. The VFA is not an interminable arrangement and, in fact, specifically contains a termination clause. Neither of the parties is bound forever by the VFA. The VFA provides that the agreement may be terminated upon a written notice of a party of its intention to terminate the agreement. After 180 days from such notification, the VFA will cease to be effective.
 
 
PHILIPPINE SOVEREIGNTY AND VISITING U.S. ARMED FORCES 
The VFA affirms the recognition and respect by the United States of the basic prerogatives of the Philippines as a sovereign country. The fundamental and incontrovertible framework of the VFA is that all military exercises to be conducted in the Philippines and any activities of United States defense and military personnel in the country are always subject to the prior approval of the Philippine Government. The Philippine Government will not allow any visit by United States personnel in whatever shape or form to be conducted in derogation of Philippine sovereignty.
 
 
No Basing and Access Arrangements
The VFA does not constitute and can never be invoked as a license for the United States to establish military bases and facilities or to permanently station troops and equipment in the Philippines again. The re-establishment of any foreign military bases in the Philippines, according to the Constitution, shall be possible only under a specific treaty and, when the Congress so requires,, upon the approval of the Filipino people as expressed in a plebiscite called for that purpose. The VFA is not within the scope of this constitutional provision as it is neither about bases, equipment or facilities nor about the permanent stationing of U.S. troops in the country.

In any case, the United States, for its part, has repeatedly denied any plan to request the Philippines for the re-establishment of U.S. military bases in the country. The present trend in military technology has also diminished the importance of a forward base projection in case of military conflict.

Neither does the Philippine Government intend to allow any United States military facilities or any other foreign military facilities to be established in the country again. There is just no compelling political or defense consideration for such a course of action.

The VFA pertains to the treatment of United States troops temporarily visiting the Philippines to conduct bilateral exercises with the Philippines These visits will be temporary and, as stated above, will not constitute a permanent stationing of United States troops on Philippine soil.

Furthermore, the VFA does not involve access arrangements for United States armed forces or the pre-positioning in the country of U.S. armaments and war materials. The agreement is about personnel and not equipment or supplies. Any effort by the United States to assist the Philippines on military equipment and supplies will be governed by the 1947 Military Assistance Agreement and the 1953 Mutual Defense Assistance Agreement. Any other envisaged arrangements not falling under these two agreements will require fresh agreements, which the Philippines has no intention of concluding in the immediate future.
 
 
Regulated Entry of United States Vessels, Aircraft, and Vehicles
Consistent with Philippine sovereignty, the VFA does not constitute a license for the unhampered entry of United States vessels, aircraft and vehicles in any of the Philippine airports and 22 seaports.

The overarching principle in the agreement remains constant -- that all activities of the United States armed forces in the Philippines, including the entry and exit of its aircraft, vessels and vehicles to and from the Philippine territory, are subject to the prior approval of the Philippine Government. This sovereign prerogative of the Philippines is preserved in the VFA, and will be so in any similar agreement that may be concluded by the Philippine Government with other countries.

It is also a matter of record that U.S. vessels, which were allowed to call on Philippine ports after the closure of the U.S. naval base in Subic in 1992 until the end of 1996, confined their calls, except in one instance, to three international ports in the country. The VFA is not envisaged to alter this trend.
 
 
Constitutional Prohibition on Entry of Nuclear Weapons
The VFA does not violate the constitutional principle that "the Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory." The VFA will not serve as an all-purpose license for the United States to bring nuclear weapons or other weapons of mass destruction in Philippine territory.

The Philippine Government has consistently followed the policy and practice of prohibiting nuclear weapons and other weapons of mass destruction from being brought into Philippine territory by foreign military vessels and aircraft. In the procedure it implements with regard to visiting forces warships and military aircraft, the Philippine Government imposes the prohibition on these vessels and aircraft to carry nuclear weapons and other weapons of mass destruction in Philippine territory.

The 1951 MDT does not constitute an exemption to this policy, nor does the VFA. Thus, the United States has been made fully aware that the Philippine Government will not allow the entry in Philippine territory of nuclear weapons and other weapons of mass destruction during military exercises.

Consistent with this Philippine policy, U.S. Secretary of State, Madeleine Albright, and Defense Secretary, William Cohen, have categorically and publicly assured the Philippines that U.S. vessels and aircraft will not carry nuclear weapons during military exercises with the Philippines. This declaration is an affirmation of the policy enunciated on 27 September 1991 by former U.S. President, George Bush, that, under normal circumstances, U.S. vessels and aircraft will not carry nuclear weapons.

This U.S. policy has not been changed, It is, therefore, a reasonable expectation that the implementation of the VFA will not constitute a contravention of the Constitution with respect to the prohibition of nuclear weapons and other weapons of mass destruction in the Philippines.
 
 
INTERNATIONAL PRACTICE ON THE TREATMENT OF VISITING ARMED FORCES
The practice of providing a specific set of rules in the treatment of visiting foreign armed forces in another's territory, as embodied in the VFA, has been widely accepted in the international community. Agreements for this purpose are concluded not just between allies, but by the United Nations in places where it deploys peace-keeping forces.

As a military superpower with extensive military and defense interest around the world, the United States has a vast experience on entering agreements on the treatment of United States personnel, either as temporary visitors or in connection with basing arrangements.

In Europe, the United States has a "mother" agreement with NATO and several bilateral agreements with individual NATO countries, such as Spain, Greece, Turkey, and The Netherlands. In Asia, the United States has existing agreements with Japan, South Korea, and Australia. It has also entered into similar agreements with ASEAN countries, such as Singapore, Malaysia, and Brunei. Although the U.S. has no written agreements with Indonesia and Thailand, it maintains an extensive arrangement with each of them on military exercises and the status of visiting U.S. forces.

These agreements between the U.S. and several ASEAN countries on the treatment of visiting U.S. troops are particularly relevant because, like the Philippines, all of these countries-except for Singapore which has offered some facilities for use by the U.S. military-do not host any U.S. military bases in their respective territories. Therefore, it is clearly not in the nature of these agreements to be integrated all the time with a treaty on basing arrangements.

By the nature of things, a military base agreement would normally incorporate provisions on the status of the foreign forces in the host country. But this is not true in cases where there is no foreign military base or installation in the host country. An agreement on the treatment of visiting forces, such as the VFA, may be concluded as independent agreements without the need for an existing military base agreement.

Among ASEAN countries with existing agreements or arrangements with the United States similar to the VFA, all, except Thailand, have no existing defense treaties with the United States. Agreements on visiting forces, like the VFA, are independent agreements that do not require defense treaties to subsist.

It is, therefore, evident that the provisions of the VFA embody a framework that represents a well-established international practice even among countries that are not treaty allies.

The conclusion of agreements on visiting forces is also not a unique or an exclusive practice by the United States. Other countries have concluded similar agreements not only with the United States. The Philippines itself is contemplating to conclude similar agreements with Singapore, Malaysia, Thailand and other Asian and European countries. These agreements are envisaged to contain provisions similar to the VFA.
 
 
THE UNITED STATES COUNTERPART AGREEMENT
The United States has offered a parallel agreement to the Philippines called a counterpart agreement, which will embody a framework on the treatment of Philippine defense and military personnel and their dependents visiting the United States. This type of agreement is not offered by the United States to all defense partners. The U.S. has concluded this kind of agreement only with a few countries, such as Israel, Spain and Singapore. The Philippines, as an important ally of the United States, is one of the countries whose defense and military personnel are going to be accorded privileges when they visit the United States.

The agreement grants, among others, similar privileges regarding visa facilitation, legal protections, driver's licenses, and exemption from customs duties.

The U.S. counterpart agreement may be considered as part two of the package of agreements between the Philippines and the United States on their rights and obligations for their visiting defense and military personnel (and dependents, in case of Filipino visitors)..
 
 
SENATE CONCURRENCE
In accordance with the requirements of the Constitution, the Philippine Government submitted the VFA to the Philippine Senate for concurrence at the beginning of October 1998.