THE PHILIPPINES AND UNITED STATES
DEFENSE AND SECURITY RELATIONS
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 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|
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 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|
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|
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)|
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 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|
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.
|PHILIPPINE SOVEREIGNTY AND VISITING U.S. ARMED FORCES|
|No Basing and Access Arrangements|
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|
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 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|
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 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)..