On the Enhanced Defense Cooperation Agreement signed by the US and PH April 28, 2014


Photographer: Noel Celis/AFP/Getty Images
(Sen. Miriam Defensor Santiago's comment on EDCA which was originally posted on her news blog dated April 29)

This is an unfair surprise on the PH Senate which, under the Constitution, shares the treaty-making power with the President.  All the while, the Committee on Foreign Relations, of which I am chair, expected that any such Agreement would be signed by the two Presidents.  I have argued that such an Agreement should first be submitted for concurrence to the Senate.  (There was no hint that the Agreement has been downgraded, for signature not by the two Presidents, but only by the defense secretary and the American ambassador in Manila.)  This contretemps does not indicate good faith on the part of the two Presidents.  The use of guile in diplomacy should be limited to state-to-state situations, and should not include a situation involving only two branches of the same government.

What should Filipinos think about when it comes to this agreement with the US?

Filipinos should keep uppermost the supremacy of the Philippine Constitution.  We should not accommodate any foreign power at the cost of the sovereignty of our Constitution, even if the problem is presented as if it were a problem of national survival.

The terms and conditions should be studiously examined.  For example, what would be the power of Filipino commanders over the presence and actuations of US troops on PH territory?  Should US troops decide to launch a preemptive attack against China from PH territory, will the PH President and Senate have the power to veto the military operations of the US forces?

If China attacks PH, will the US immediately come to our defense, or will it wait for congressional approval?  Will the US treat PH as if PH is a NATO ally, with a right to immediate military assistance?

Primarily my concern is that pro-US sectors will cooperate in closing their eyes to the clear meaning of the PH Constitution that an Agreement requires the concurrence of the PH Senate, and that the constitutional policy against nuclear weapons will also be fudged.  There are at least three constitutional provisions in danger of being violated.  If this turns out to be true, then the Agreement would set an extremely bad precedent.  Thus, it would be a case of interpreting the Constitution to accommodate the military program of a foreign state.  That eventuality defies all principles of constitutional supremacy.

What are the possible Constitutional issues that can be raised against the EDCA?

There are at least three clear constitutional provisions that militate against the Agreement:

  1. “Foreign military bases, troops, or facilities, shall not be allowed in the Philippines, except under a treaty duly concurred in by the Senate. . . .”  (Art. 18, Sec. 25)
  2. “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”  (Art. 7, Sec. 21)
  3. “The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.” (Art. 2, Sec. )

Is the agreement a positive development for the Philippines? 

Obviously, I have no basis for assessing whether the Agreement is positive for the Philippines.  The Senate has not been given the courtesy of being furnished with a copy.  Instead, allegedly it has been announced that copies will be released by Thursday, or four days later after the Obama visit.  I feel as if I have been slapped, or ordered to melt into the wallpaper.

The Agreement is not automatically an asset for my country.  One, actuations by U.S. troops in Philippine territory might trigger charges of aggression from China, and consequently, the Philippines might be named as an alleged perpetrator in the crime of aggression.  Another aspect is the military aid apparently promised to the Philippines, which I understand to be some $50 million.  If this is correct, these are beggar’s alms.  And it is doubtful if even this paltry sum will materialize, because of reported cutbacks in the US defense budget.

Do you think the agreement is fair or does it only serve American interests?

The proposed Enhanced Defense Cooperation Agreement has marginal advantages for PH, but the major advantage will be gained by America.  If PH signs the Agreement, then America could claim that she has “contained” China, because the Asian countries involved – including PH – are now bound by their respective agreements with America.  It would make PH sound as if we are a satellite ally of America.

Will the EDCA further antagonize the Philippines’ ties with China?

Definitely the new Agreement, whatever it may contain, will further antagonize China because in effect, we consent that the PH should be listed under the American column, instead of the China column.  If China reaches out to Russia while the Ukraine issue continues to simmer, the U.S. will certainly call on PH to fulfil treaty obligation under the PH-US Mutual Defense Treaty.

The PH executive branch apparently adopts the attitude that the Mutual Defense Treaty will oblige the U.S. to automatically come to the aid of PH if attacked by China.  I respectfully dissent.  For one thing, the MDT does not define what is a “metropolitan territory” of each state.  For another thing, the MDF provides that U.S. will come to the aid of PH only after the issues has been passed through U.S. constitutional processes, meaning that it is subject to open-ended debate in the US Congress.

Do you think the Philippines is being dragged into another proxy rivalry between the US and China?

This is not necessarily a proxy rivalry.  Instead, it is a clear case of America attempting to walk a fine balance between China and Russia.  The more important question is credibility.  How credible is this pivot or rebalance program?  Is the Obama administration willing and able to approve the bigger defense budget that it entails?

When the Philippines faced off with China over Ayungin Shoal, the US mediated and secured agreement for the two parties to withdraw.  The Philippines did, but China reneged on the deal.  Given the US’ interest in China, will it come to the defense of the Philippines in case of conflict?

In case of conflict, the US will come to the defense of PH, only if it serves the interest of the US.  If not, the US will finesse the situation and in that sense would be unreliable.

The issue of defense is on top of President Obama’s agenda when he visits the Philippines.  Until now, the Philippine public remains clueless to the details of the new defense agreement with the US.  Do you think the government is hiding something from the public?  

I think it is pretty clear that PH is willing to sign the Agreement, in exchange for more military aid from America.  What has been deliberately left vague is whether the PH Constitution will be obeyed and the Agreement will be in the form of a treaty concurred in by the PH Senate.  I think it is deliberately left vague that instead of obeying the Constitution, the Agreement will take the form of an executive agreement between the two presidents.

Will the Philippines be beholden to U.S. interests because of this agreement?

In an age when states collide no longer because of ideology, but because of geopolitics, I no longer worry that the PH might become beholden to American interests.  From the time of the American colonial regime in my country, American business and military interests have always dictated American policy with respect to all countries, including PH.  America cannot have it both ways.  It cannot tie down PH to a mutual defense treaty, and yet hope that it will not ruffle the feathers of China.

The U.S. should not continue to treat PH as a satellite state, while aiming to remain on good terms with China, which has been seizing the initiative in Asian maritime territorial disputes.  The three top economies in the world consist of the U.S., China, and Japan.  It is understandable why PH is being treated so shabbily.

Anyway, the militant left will certainly bring the issue to the Supreme Court.  For me, the constitutional issues are very interesting.

Will attempts to block the agreement have a negative impact on PH-US relations?

I don’t believe that blocking the Agreement will automatically result in a deterioration of PH-US relations.  The U.S. will always act on the basis of its own self-interest.  It cannot afford to be onion-skinned in this area of the world which, at this time, is described as the “Pacific Century.”

What do you think the critics will do after the US and PH sign the agreement?
 
Should the two Presidents sign what in effect would be an executive agreement – bypassing the Senate – definitely, militants in PH civil society will petition the Supreme Court to invalidate any such Agreement.  That would be a contretemps in diplomacy.
 


 

Author: Sen. Miriam Defensor Santiago


Miriam is a Judge-elect of the International Criminal Court and a member of the Senate of the Philippines. She served as the Commissioner of the Philippine Bureau of Immigration and Deportation in 1988 and the Secretary of the Philippines' Department of Agrarian Reform.




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