To Take A Stand

Will the VFA be scrapped? What would its far-reaching consequences be to national security and nation-building?

As a result of America’s continued criticism and political interference in the country’s internal affairs, the Visiting Forces Agreement (VFA) is now in trouble. President Rodrigo Duterte’s cup has runneth over, so to speak, with the consortium of regime changers that he’s now making America choose between its selfish political interests and its national security interests in the Indo-Pacific theater.

The trigger was the cancelation of Senator Ronaldo de la Rosa’s US visa on account of his involvement in the anti-drug war as then PNP Chief, most likely due to the Global Magnitsky Act that imposes sanctions on human rights violators. It was seen as another American insult to the president.

The VFA consists of two separate documents. The first is commonly referred to as “the VFA” or “VFA-1” while the second is called the “VFA-2” or “the Counterpart Agreement.” It’s a variant of a Status of Forces Agreement, or SOFA, that applies to troops temporarily in a foreign country, which was hotly debated during the PH-US Bases Talks in the early 1990s. The agreements came into force on May 27, 1999, upon ratification by the Philippine Senate. The US, however, regards these documents to be executive agreements not requiring its Senate’s approval.

VFA-1 essentially allows the US government to retain jurisdiction over its military personnel accused of committing crimes in the Philippines, unless the crimes are “of particular importance to the Philippines.” For crimes without this significance, the US can refuse to detain or arrest accused personnel, or may instead prosecute them under US jurisdiction. Our local courts have one year to complete any legal proceedings. It also exempts US military personnel from visa and passport regulations in the Philippines.

It contains various procedural safeguards such as the right to due process and proscribing double jeopardy. It prevents US military personnel from being tried in Filipino religious or military courts; requires both governments to waive any claims concerning loss of materials (though it does require that the US honor contractual arrangements and comply with US law regarding payment of just and reasonable compensation in settlement of meritorious claims for damage, loss, personal injury or death, caused by acts or omissions of United States personnel); exempts material exported and imported by the military from duties or taxes; and allows unrestricted movement of US vessels and aircraft in the Philippines.

VFA-2, on the other hand, requires the US government to notify Philippine authorities when it becomes aware of the apprehension, arrest or detention of any Philippine personnel visiting the US and, when so requested by the Philippine government, to ask the appropriate authorities to waive jurisdiction in favor of the Philippines, except in cases of special interest to the US Departments of State or Defense. Waiving of jurisdiction in the US is complicated because the United States is a federation of US states and therefore a federation of jurisdictions.

It also contains various procedural safeguards to protect rights of Philippine personnel to due process and proscribes double jeopardy; exemption from visa formalities and guarantees expedited entry and exit processing; acceptance of Philippine drivers licenses; allows carrying of arms at US military installations while on duty; personal tax exemptions and import/export duty exclusions; requires the US to provide health care; and exempts Philippine vehicles, vessels, and aircraft from landing or ports fees, navigation or overflight charges, road tolls or any other charges for the use of US military installations.

President Duterte threatened to abrogate the VFA if the visa cancelation of Philippine personalities involved in the anti-drug campaign and allegations of human rights offenses are not rectified within 30 days. Immediately, the Department of Foreign Affairs (DFA) began the process of termination of the VFA in coordination with the Department of Justice’s (DoJ) review of the procedures required as well as the impact on the Mutual Defense Treaty (MDT) and the Enhanced Defense Cooperation Agreement (EDCA).

His threat was premised on two important points: one, the Philippines is an independent sovereign state with functioning institutions that should be respected by other states; two, the Philippines is no longer a colony or sub-state of the US. More importantly, he wants to review and correct all onerous contracts that are disadvantageous to the Philippines. That’s part of his job, his duty and responsibility as Head of State.

The US gave him the opening to subject the VFA to such a review conducted by the DFA, DoJ, and the Department of National Defense (DND) which will study the potential impacts to the MDT and EDCA. The MDT itself is outmoded in that no longer provides relevant mutual security in the 21st century. Defense Secretary Delfin Lorenzana has expressed the view that it should be reviewed the soonest possible.

EDCA, on the other hand, provides for increased US military presence in the Philippines. It was an “adjustment in detail” for the implementation of the MDT and VFA. In 2016, the Supreme Court voted 10-4-1 to declare EDCA constitutional, affirming that an executive agreement doesn’t need the Senate’s concurrence. Both the VFA and EDCA are appendages to the MDT, but if one party does not consider them integral to the MDT, its review for appropriate action is the right thing to do.

Clearly Philippine-USA relations are at a crossroads. We want a broad, reciprocal and mature relationship with the US. But does it, really? While our relationship has undoubtedly evolved since 1991, there are lingering issues such as interference, inequality, and lack of reciprocity. Either way, it’s still incumbent on the Philippine government to reach out to the world to strengthen its bilateral and multilateral relations for its long term security, growth and development in a community of free and mutually respecting nation-states.

In the famous words of President Donald Trump, “Let’s see what happens.” My response would be, “Mr. President, make it happen.”


Rafael M. Alunan III is a former Secretary of Interior and Local Government and chairs the Philippine Council for Foreign Relations.