Is EDCA an executive agreement or a treaty?

THE CONSTITUTIONAL issue over the Enhanced Defense Cooperation Agreement between the Philippines and the United States revolves around whether EDCA is a treaty or a mere executive agreement.

If EDCA is just an executive agreement, the Supreme Court can easily rule, if it wants, that it is not unconstitutional – as it did the Phl-US Visiting Forces Agreement in March 2010.

But if EDCA is deemed a treaty, the tribunal cannot uphold it as constitutional, and enforceable, until it is concurred in by the Senate and also ratified by the US Senate.

The temporary stationing in the Philippines of US military personnel, materiel and contractors is no longer at issue. It is already a fait accompli under the older VFA whose constitutionality has been upheld by the SC.

The ticklish question of criminal jurisdiction, which had been raised on several occasions – including the pending murder case in Olongapo City against US Marine Joseph Pemberton – is already covered by the VFA.

But jurisdiction is likely to be raked up again when it is disclosed that instead of tightening jurisdiction in favor of the Philippines, EDCA’s Article XI (Resolution of Disputes) provides:

“The Parties agree to resolve any dispute under this Agreement exclusively through consultation between the Parties. Disputes and other matters subject to consultations under this Agreement shall not be referred to any national or international court, tribunal, or other similar body, or to any third party for settlement, unless otherwise agreed by the Parties.”

To the White House, EDCA is fine as an executive agreement. It sees no need to ruffle Senate feathers by submitting it for ratification. A notch lower than a treaty, an executive agreement does not break new ground nor redefine long-held policies and principles.

As a mere extension of the 64-year-old Mutual Defense Treaty, EDCA defines the terms for the use of “agreed locations” by US forces deployed on rotation as they help train (and learn from) Filipino soldiers.

• Palace can use Senate advice, consent

BUT WHILE Malacañang also regards EDCA as an executive agreement, the Senate has voiced by a 15-1-3 vote its strong sense that it is a treaty, therefore requiring its concurrence as mandated by the Constitution.

The need for concurrence will arise only if the SC declares EDCA to be a treaty. Classifying it as such courts delicate consequences, including the reciprocal need for the US Senate to also ratify it.

Ratification by the US Senate looks unlikely, in the light of the trending practice against such action. A number of senators view ratification as a diminution of the sovereign attributes of the state in the give-and-take context of treaties.

EDCA was hurriedly signed April 28 last year to catch the arrival of US President Barack Obama who was in the neighborhood. Poor Defense Secretary Voltaire Gazmin and US ambassador Philip Goldberg had to rush the 10-page document.

This time around, the Supreme Court is also hard pressed to produce a quick decision upholding the agreement in time for the attendance of President Obama in the Asia-Pacific Economic Cooperation summit in Manila.

If the high court wants to please the VIP visitor, it can rule that EDCA is a mere executive agreement like the VFA before it – and shun the arguments advanced by Sen. Miriam Santiago that EDCA is a treaty requiring Senate concurrence.

For the tribunal to fling an adverse ruling at the US President on his second visit would be disastrous, or at least embarrassing, for the host President Noynoy Aquino.

• But Phl needs US military presence

ALSO in November one year ago, we said among other things in Postscript while the Red Dragon was creating a scene in the South China Sea:

“This observer has no objection to conditional US military presence at this time when we need it.

“I expect the SC to declare EDCA as ‘not unconstitutional’, as it was years ago when the court affirmed that another Phl-US pact, the Visiting Forces Agreement, did not violate the Constitution.

“It has been explained a long time ago that the camps from where US forces operate are not American but Philippine bases and that the GIs are not permanent visitors since at some future time they will be replaced by fresh troops.

“This merely restates the universal fact that nothing in this world is permanent – including GIs in our midst. If the honorable justices of the Supreme Court say not to worry, these GIs are temporary visitors, what can we plain folk do?

“As for the argument that EDCA needs the ratification or concurrence of both the US and the Philippine Senates, again the Supreme Court can argue the issue either way and rule whichever way – and sound correct and commanding.

“The constitutionality of EDCA is what the Supreme Court says it is, so help us God.”

The day before that, Solicitor General Florin Hilbay said during the SC oral arguments “I cannot predict what the United States will do” in answer to Associate Justice Antonio Carpio’s asking if EDCA had a US security guarantee for the Philippines.

Actually the main point before the tribunal is whether EDCA is constitutional, not whether the US would defend its former colony. But it was good that the issue of mutual defense was brought up and somewhat clarified.

The people must be told that there is no guarantee under EDCA and/or VFA that the US will instantly defend the Philippines from aggression or take its side in territorial disputes.

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RESEARCH: Access past POSTSCRIPTs at www.manilamail.com. Follow us via Twitter.com/@FDPascual. Email feedback to [email protected]