Phl, US step up talks on regional security

Security discussions will shift to high gear this week between the Philippines and the United States as the allies enter a sensitive stage in the relationship of President Duterte who is about to end his term and President Biden who has just begun his.

Biden is expected to send assurance of continued US support through his Defense Secretary Lloyd Austin, who is scheduled to arrive today in his swing through the region that includes consultations in Singapore and Vietnam.

Austin also wants to drum up support for a US Pacific Defense Initiative, which involves training, logistics support and radar and missile deployment in Southeast Asia to counter China’s aggressive moves in the area.

His schedule here is topped by a meeting with Duterte, who has made known his dissatisfaction with Washington’s treatment of Manila despite the two countries’ close collaboration through war and peace.

We would not be surprised if Duterte, in his conversation with Austin, unburdens himself and thus sets the tone of the Philippine panel in the follow-up talks that might sound at times like haggling over aid and armaments, criminal jurisdiction and rental of base space.

Duterte will have a chance to explain to Biden’s alter ego his rumored love affair with communist China, the neighbor that even in its absence casts its shadow on the Manila talks.

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Of immediate concern is the 1999 Visiting Forces Agreement (VFA), which will expire next month if Duterte does not withdraw or extend again the 180-day notice of termination he served on the US in February.

Defense Secretary Delfin Lorenzana said early this week that the VFA text itself will not be changed, but that a side document signed by President Duterte will just be added to improve its implementation.

The sleight of hand of simply attaching an addendum, in lieu of a formal amendment, may be a neat way of avoiding too many procedural questions.

As the talks progress, the US will get to know exactly what Duterte wants in return for the VFA. This should include a revision of its Section V on criminal jurisdiction, but this seems to have been dropped, judging by Lorenzana’s statement about an addendum.

Section V defines judicial jurisdiction and rules of procedure to be followed when American military personnel on or off duty are accused of a crime against an American or a Filipino, under various circumstances.

The VFA is somewhat similar to the status of forces agreements that the US has with other allies, such as its NATO partners. These contracts could serve as models or templates if the Philippines seriously wants to amend the VFA.

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The presence of US servicemen in the Philippines is addressed directly by the 2014 Enhanced Defense Cooperation Agreement (EDCA) which took the place in a limited way of the Military Bases Agreement (MBA) that expired in September 1991.

The MBA’s expiration automatically phased in the constitutional ban (Art. XVIII, Sec. 25) on foreign military bases, troops or facilities unless covered by a treaty concurred in by the Senate and ratified in an optional referendum – and recognized as a treaty by the other country.

To save existing security arrangements, the allies signed in 2014 the EDCA allowing limited US military presence, by referring to their installations as Philippine (not US) bases, and describing the servicemen as on rotational and temporary assignment.

The shrinking of US military presence overseas is generally welcomed by American taxpayers, some of whom object to their activities as undue meddling in domestic affairs of other countries, not to mention their being a burden on US taxpayers.

The matter of Americans spending for US bases abroad will clash with the intention of Duterte to ask the US to pay for using the bases or facilities.

There is also the related question of why Filipinos ask for payment when others in the region such as the Japanese and South Koreans even pay the US to maintain its bases and forces in their country.

As soon as the VFA is revised, which should be very soon in view of the ticking notice of termination, both countries should set their sights on reviewing the mother 1951 Mutual Defense Treaty itself.

Talks could zero in on Articles IV and V focusing on what constitutes an “armed attack” on one party that shall obligate the other party to “act to meet the common dangers in accordance with its constitutional processes.”

This will whip up a debate so complicated that it would overshoot Duterte’s term ending in June next year, unless he works out a Plan B to prolong his stay and boost his physical capacity to meet the requirements of running a troubled country.

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The US Senate has long frowned on the ratifying of treaties. An increasing number of senators regard treaties as diminishing the US’s sovereign control over aspects of the relationship covered by the proposed pact.

Many of them prefer executive agreements that do not require Senate ratification, giving the Congress a freer hand in dealing with future exigencies related to the agreement. One such matter is the allocation of public funds to carry out the agreement.

On our side of the Pacific, President Duterte, in what looks to some as an exercise of a judicial function, has decided that the publication in the Official Gazette of an international agreement is necessary to validate it and give it the force of law.

Duterte has declared, for instance, that the Philippines’ acceding to the Rome Statute that created the International Criminal Court (that is now hounding him) was incomplete and of no effect, because it was not published in the Gazette.

We now wonder if the Mutual Defense Treaty, the Enhanced Defense Cooperation Agreement and the Visiting Forces Agreement were published in the Gazette. Will somebody please check.

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NB: All Postscripts are also archived at ManilaMail.com. Author is on Twitter as @FDPascual. Email: [email protected]