Is the Visiting Forces Agreement a TREATY?

REATIES and INTERNATIONAL AGREEMENTS are mentioned in the following provision of the 1987 Philippine Constitution:

Section 21, Article VII -- “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."

Section 25, Article XVIII -- “After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.”

Thus, the Constitution allows foreign military bases, troops or facilities to be IN the Philippines ONLY under a treaty that (1) is duly ratified by the President and concurred in by the senate; (2) ratified in a national referendum if the Congress requires one; (3) recognized as a treaty by the foreign State.

In October, 2000 the Philippine Supreme Court certified in Bayan v. Zamora that the Visiting Forces Agreement (VFA) is just such a treaty as required in Sec. 25 Art. XVIII, and found the VFA to be compliant with the above three requirements of the 1987 Constitution. The High Court declared--

The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the United States government has fully committed to living up to the terms of the VFA.[42] For as long as the united States of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked compliance with the mandate of the Constitution. Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the Senate should be taken as a clear an unequivocal expression of our nation’s consent to be bound by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder.

Does the United States recognize the VFA as a treaty?

There is a widespread misconception that the United States does not recognize the VFA as a legally binding international treaty because the U.S. Senate did not approve it by a two thirds vote of concurrence as the Philippine Senate did. But that happenstance is only because "status of forces" and "visiting forces agreements " like the RP-US V.F.A., do not NEED U.S. Senate concurrence to become legally binding international treaties, as explained by the U.S. Ambassador Thomas Hubbard when quoted in the Supreme Court decision:

“As a matter of both US and international law, an international agreement like the Visiting Forces Agreement is legally binding on the US Government. In international legal terms, such an agreement is a ‘treaty.’

However, as a matter of US domestic law, an agreement like the VFA is an ‘executive agreement,’ because it does not require the advice and consent of the senate under Article II, section 2 of our Constitution.

The President’s power to conclude the VFA with the Philippines, and other status of forces agreements with the other countries, derives from the President’s responsibilities for the conduct of foreign relations (Art. II, Sec. 1) and his constitutional powers as Commander in Chief of the Armed Forces. Senate advice and consent is not needed, inter alia, because the VFA and similar agreements neither change US domestic nor require congressional appropriation of funds.
It is important to note that only about five percent of the international agreement entered into by the US Governments require Senate advice and consent.

However, in terms of the US Government’s obligation to adhere to the terms of the VFA, there is no difference between a treaty concurred in by our Senate and an executive agreement.

Background information on these points can be found in the ‘Restatement 3rd of the Foreign Relations Law of the United States,’ Sec. 301, et seq. [1986]. --THOMAS C. HUBBARD, Ambassador”

Is an Executive Agreement also a Treaty Under International Law?

Here is how the Supreme Court answered this question...

A treaty, as defined by the Vienna Convention on the Law of Treaties, is “an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation.” There are many other terms used for a treaty or international agreement, some of which are: act, protocol, agreement, compromis d’ arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. Thus, in international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations.

The Visiting Forces Agreement (VFA) therefore fulfilled the requirement of the Constitution that there be a validly ratified and recognized treaty before any foreign troops, facilities or bases be allowed in the Philippines.

But the legal saga of the VFA now continues in the Subic Bay Rape Case...

My good friend Atty. Harry Roque was kind enough to supply me a copy of the petition for certiorari to the Supreme Court filed in connection with the Subic Bay Rape Case by a group of Filipino citizens led by the venerable old guard of Philippine Nationalism, former Senator Jovito Salonga. For easy reference, here are links to the pertinent documents:

Mutual Defense Treaty of 1951 between the United States and the Philippines.

Visiting Forces Agreement between the United States and the Philippines.

Bayan v. Executive Secretary (earlier Supreme Court case upholding the VFA).

Salonga v. Smith (the case at bar regarding the Subic Bay Rape Case and the VFA).

SALONGA'S PRAYERS In the instant case, several citizens of generally good, if not outstanding public reputations, led by former Senator Jovito Salonga, pray the honorable Supreme Court to do as follows--

1. DECLARE THE MUTUAL DEFENSE TREATY OF 1951 AS INAPPLICABLE TO THE VFA;

2. DECLARE THE VFA AS UNCONSTITUTIONAL FOR VIOLATING SECTION 25, ARTICLE XVIII OF THE CONSTITUTION; DEROGATING ON THE EXCLUSIVE POWER OF THE SUPREME COURT TO PROMULGATE RULES OF PROCEDURE IN ALL COURTS; AND FOR VIOLATING PETITIONERS’ RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAWS;

3. NULLIFY THE ASSAILED AGREEMENTS ENTERED INTO BY PUBLIC RESPONDENTS ROMULO AND GONZALEZ WITH AMBASSADOR KENNEY FOR BEING UNCONSTITUTIONAL; AND

4. REVERSE AND SET ASIDE THE 3 JANUARY 2007 DECISION OF THE FORMER SPECIAL 16TH DIVISION OF THE COURT OF APPEALS INSOFAR AS IT RECOGNIZED AS VALID AND BINDING THE ASSAILED ROMULO-KENNEY TREATY, WHICH IT ULTIMATELY USED AS BASIS TO DECLARE SMITH’S PETITION MOOT.

[all caps are from the original]

The Petitioners present their grounds succinctly--

GROUNDS
I
THE MDT DOES NOT APPLY TO THE VFA. MOREOVER, CONTRARY TO THE CLEAR INTENT OF THE VFA, US MILITARY FORCES DO NOT MERELY VISIT THE PHILIPPINES, BUT STAY ON INDEFINITELY.


II

RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ENTERING INTO PATENTLY UNCONSTITUTIONAL AGREEMENTS WITH US AMBASSADOR KRISTIE KENNEY AND TRANSFERRING CUSTODY OVER THE PERSON OF DANIEL SMITH TO US AUTHORITIES, CONSIDERING THAT:


A. THE VFA DEROGATES AND INFRINGES ON THE EXCLUSIVE POWER OF THE SUPREME COURT TO PROMULGATE RULES OF PROCEDURE AS PROVIDED UNDER ARTICLE VIII, SECTION 5, PARAGRAPH 5 OF THE 1987 CONSTITUTION.



B. THE VFA VIOLATES THE PETITIONERS’ RIGHTS TO DUE PROCESS AND EQUAL PROTECTION OF THE LAWS.

III


THE VFA IS UNCONSTITUTIONAL AS IT VIOLATES SECTION 25, ARTICLE XVIII OF THE CONSTITUTION. HENCE, IT CANNOT BE USED TO JUSTIFY THE TRANSFER OF CUSTODY OVER SMITH TO US MILITARY AUTHORITIES.


IV

THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN RECOGNIZING THE AGREEMENT BETWEEN SECRETARY ROMULO AND AMBASSADOR KENNEY AS BINDING ON THE PHILIPPINES AND DECLARING THE SMITH PETITION MOOT.


V

PUBLIC RESPONDENTS GRAVELY ABUSED THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY TRANSFERRED CUSTODY OF SMITH TO US MILITARY AUTHORITIES WITHOUT COURT AUTHORITY.

The Mutual Defense Treaty of 1951 is germane to the present case since Petitioners allege that it is inapplicable to the Visiting Forces Agreement, which would have no fundamental legal or Constitutional basis if that allegation is accepted by the Honorable Court as true when it finally rules on Salonga v. Smith. MDT 1951 has a laudable brevity, allowing a full quotation of it here:

The Parties to this Treaty,

Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace with all peoples and all Governments, and desiring to strengthen the fabric of peace in the Pacific Area,

Recalling with mutual pride the historic relationship which brought their two peoples together in a common bond of sympathy and mutual ideals to fight side-by-side against imperialist aggression during the last war,

Desiring to declare publicly and formally their sense of unity and their common determination to defend themselves against external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific Area,

Desiring further to strengthen their present efforts for collective defense for the preservation of peace and security pending the development of a more comprehensive system of regional security in the Pacific Area,

Agreeing that nothing in this present instrument shall be considered or interpreted as in any way or sense altering or diminishing any existing agreements or understandings between the United States of America and the Republic of the Philippines,

Have agreed as follows:

ARTICLE I

The Parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.

ARTICLE II

In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack.

ARTICLE III

The Parties, through their Foreign Ministers or their deputies, will consult together from time to time regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial integrity, political independence or security of either of the Parties is threatened by external armed attack in the Pacific.

ARTICLE IV

Each Party recognizes that an armed attack in the Pacific Area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes.

Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

ARTICLE V

For the purpose 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 in the Pacific or on its armed forces, public vessels or aircraft in the Pacific.

ARTICLE VI

This Treaty does not affect and shall not be interpreted as affecting in any way the rights and obligations of the Parties under the Charter of the United Nations or the responsibility of the United Nations for the maintenance of international peace and security.

ARTICLE VII

This Treaty shall be ratified by the United States of America and the Republic of the Philippines in accordance with their respective constitutional processes and will come into force when instruments of ratification thereof have been exchanged by them at Manila.(2)

ARTICLE VIII

This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice has been given to the other Party.

IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.

DONE in duplicate at Washington this thirtieth day of August 1951.

(1) TIAS 2529, 3 UST 3947-3952. Ratification advised by the Senate, Mar. 20, 1952; ratified by the President, Apr. 15,1952; entered into force, Aug. 27. Back

(2) Instruments of ratification were exchanged Aug. 27, 1952. Back

Petitioners rest their claim that the Treaty cannot cover the VFA rests on a single factual claim, stated in petition's Discussion section--

"..., petitioners maintain that the MDT does not apply for the following reasons:

6.3.1 The third paragraph of the Preamble of the MDT speaks of an “external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific Area.”
...
6.4 Clearly, there is no room for application of the MDT in the VFA as there is no external armed attack on the Philippines to speak of.

CAVEAT ON GROUND ONE: It seems to me that when the Supreme Court comes around to dealing with the question raised by Petitioners on whether MDT 1951 applies to the Visiting Forces Agreement the Court's ineluctable conclusion will be contrary to Petitioners' claim that there have been "external armed attacks" on the Philippines metropolitan areas and public vessels that have cost hundreds of citizens their lives and limbs. The Petitioners' claim that "there is no external armed attack on the Philippines to speak of" must be evaluated against the definition of the phrase "external armed attack" as found in

MDT 1951 Article V: For the purpose 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 in the Pacific or on its armed forces, public vessels or aircraft in the Pacific.

In denying outright the factual claim of the Petitioners that there is no external armed attack on the Philippines to speak of, the honorable Supreme Court would have many factual counter-examples of historical events well recorded and reported in the Mass media.

For example, an "external armed attack" on a "public vessel" surely occurred in the Rizal Day Bombing of the Manila LRT on December 30, 2000, carried out by Al Qaeda's Indonesian agents Fathur Rohman al Ghozi and Miklos Yunos fully nine months before the September 11 terrorist attacks in New York City and Washington D.C. That attack killed dozens and seriously injured over a hundred innocent Filipinos, some of them very young students and children, who were on that Light Rail Transit (LRT) train in downtown Manila, along Rizal Avenue on that bright Saturday morning in commemoration of the martyr and hero, Jose Rizal!

The basic historical significance of the Rizal Day Bombing of the Manila LRT, is that the Philippines indubitably came under external armed attack by foreign agents of the terrorist organization al Qaeda as early as December 30, 2000.

Another clear counterexample to Petitioners claim of "no external armed attack" on the Philippines is when the Abu Sayyaf terrorist group, with the help of Jemaah Islamiyah bomb making experts, blew up and sank the Superferry 14 in March, 2004, killing over 130 Filipinos with several hundred others missing, unaccounted for and only assumed to have survived! This was the most painful, shameful and mind-boggling case of an external armed attack, because even then presidential candidate Gloria Macapagal Arroyo found it expedient to first deny Superferry 14 was terrorist attack, admitting it was only months after the 2004 elections.

The honorable Supreme Court may then have good and justifiable cause to thank Petitioner for thereby proving that the 1951 Mutual Defense Treaty's "external armed attack" provision evidently APPLIES to the Visiting Forces Agreement, since indeed, the avowed purposes of the VFA are in relation to ensuring the common security and defense of the treaty parties in the Global War on Terrorism. Such an easy refutation of the argument that MDT 1951 does not apply to the VFA based on publicly known facts and current events does not bode well for what follows of the Petitioners Prayers to the Court based upon the grounds and arguments urging these be granted.

Regarding the further allegation in Ground No. 1 cited by Petitioners that "US MILITARY FORCES DO NOT MERELY VISIT THE PHILIPPINES, BUT STAY ON INDEFINITELY" the Supreme Court will probably recall its ruling in Bayan v. Zamora

Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the reason that there is no permanent placing of structure for the establishment of a military base. On this score, the Constitution makes no distinction between “transient’ and “permanent”. Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.

In effect, the Court held that DURATION of the VISIT of foreign troops is immaterial and irrelevant to the question at hand. It found that the VFA is a validly ratified treaty concurred in by the Senate, for the purposes of the Constitution's requirement for allowing the presence of foreign troops or facilities.

The Supreme Court's previous ruling thus established the VFA as a valid treaty that properly addresses the requirements in Section 25 Art. XVIII. Moreover, the clear applicability of the Mutual Defense Treaty of 1951 leads to the unavoidable conclusion that the first prayer of Petitioners cannot possibly be granted.