EDCA IS UNCONSTITUTIONAL

H. Harry L. Roque, Jr.Associate Professor

University of the Philippine College of Law and

Director

Institute of International Legal Studies

University of the Philippines Law Center

Section 25, Art. VIII: ….no Foreign Bases, Troops, and facilities shall be allowed unless pursuant to a Treaty duly concurred in by a 2/3 vote of the Senate and duly ratified by the people in a referendum, and duly recognized by the other contracting party as such.

OSG

EDCA allows for presence of Bases, troops and facilities. OSG says it is pursuant to MDT and VFA

First Point

NOT BASED ON MDT:

i. New Policy

ii. Different object and purpose

iii. Different context

EDCA is a new national policy (Commissioner vs. Eastern Trading)

The Philippines as a partner of the US in furtherance of a brand new defense policy.

DOD:New Strategic Guidance 2012

i.“rebalance toward the Asia-Pacific region”

ii.Emphasize x x x” existing alliances”

iii.expanding “ networks of cooperation with emerging partners throughout the Asia-Pacific x x x x”

GEORGE BUSH: “The [US] military, must be ready to strike at a moment’s notice in any dark corner of the world.”

2001 Quadrennial Defense Review:

..move away from “obsolete Cold War garrisons” to “mobile, expeditionary operations.”

Box 1: CATEGORIES OF US OVERSEAS MILITARY STRUCTURES— Main Operating Bases (MOB) ; examples are the Ramstein Air Base in Germany, the Kadena Air Guam, and Camp Humphreys in Korea.

— Forward Operating Sites (FOS) are smaller, more spare bases that could be expanded and then scaled down as needed; they will store pre-positioned equipment but will host a small number of troops on a rotational basis;

— Cooperative Security Locations (CSL):

i. Facilities owned by host governments;

ii. To be used by the US in case of actual operations;

iii. They could be visited and inspected by the US;

iv. Useful for pre- positioning logistics support or as venues for joint operations with host militaries, they may also be expanded to become FOSs if necessary.Source: US Department of Defense, "Strengthening US Global Defense Posture," September 2004

Restating specific goals of MDT in EDCA does not make it an implementing agreement

Art. 31 VITLOS: interpreted in good faith in accordance with the ordinary meaning… in their context and in light of its object and purpose.

MDT: Object and Purpose

Art IV: …an armed attack in . . . on either of the parties would be dangerous to its own safety and …they will act to meet the common dangers in accordance with its constitutional process.

Art V: For purposes of Art. IV: an armed attack on either or the parties is deemed to include an armed attack on the metropolitan territory of either of the parties, on the island territories under its jurisdiction in the Pacific….

Art. II of MDT as cited by OSG, that parties will "maintain and develop individual and collective capacity” must be construed in its context and in light of the Treaty’s object and purpose.

Note: EDCA not just for collective security: can be for commission of crime of aggression, rendition and flying of drones

Context is Different

I. Entered into to make the Phil part to the defense system against communist aggression: Mao in China and the Soviet Union. Here premise was that an attack on the Phil was an attack on the US since the latter had their biggest naval and air force bases in the Phil.

II. Radical changes: US ties with China, USSR a thing of the past. SEATO, the regional collective self-defense as an extension of MDT, no longer exists.

Difference between EDCA and MDT: Troops

1. No rotational presence of troops: part of actual US Defense operations and not just for preparedness;

2. Contractors such as Blackwater have no right to be in the Philippines

2. Presence more akin to MBA: expansive and sovereign powers in agreed locations akin to MBA

Differences on Facilities

3. No prepositioning of equipment: could be used for other purposes other than collective security

4. Not entitled to operate telecommunications facilities which, under the Constitution, is reserved to Filipinos pursuant to a franchise given by Congress

4. No provision for humanitarian and disaster reliefs

Second Point: EDCA not implementing VFA

NOT IMPLEMENTING VFA:

1. VFA only for visits and for Joint military exercises. EDCA forms part of a brand new US Defense policy, which goes beyond exercises. As a CSL, Philippine military installation will be used for ACTUAL US DEFENSE OPERATIONS.

2. No prepositioned equipment

3. EDCA allows other purposes than visits and exercises: temporary accommodation for personnel, prepositioning of equipment and materials deploying force and materials

VFA rules on Phl Primary Jurisdiction for Non-Service Related Offenses

Inapplicable

• US troops ( and contractors) under EDCA, because they are not only visiting and participating in a joint military exercise, are subject to customary public international law: absolute immunity from Philippine jurisdiction for all acts (Germany vs. Italy)

Why Permanent Bases

• 1. Agreed Locations: akin to MBA and not found in MDT and VFA

• 2. Possibly permanent: Art XII par 4: duration of initial 10 years x x x shall continue in force automatically unless terminated;

• 3. Art II Par 2: “US Forces: US personnel, property, equipment and material • Par. 4: “Agreed Locations”: US forces x x x and

contractors shall have right to access and use

• Art III (1) : Agreed Locations are Base of Operations for US Forces x x x contractors, vehicles, vessels and aircraft operated by the US

• (2) access to public land and facilities (including roads, ports and airfields) including those owned by local government sand other land and facilities

• (3) Strict jurisdiction of the US over Agreed Locations: “Phl authorities required to comply with operational safety and security requirements for them to have access to agreed locations

• Art. IV (1) to preposition and store defense equipment, supplies and material x x x exclusive use of US Forces and full title x x x remains with the US, also control over access to and disposition of such prepositioned materials with unencumbered right to remove them

• Art. V, par 3: US x xx shall retain title to all equipment, material, supplies, relocatable structures and other movable property

• Par. 4: US forces “may construct permanent buildings x x x which shall be used by US forces until no longer required

• VII (1 and 2): rights to use of water, electricity and other public utilities and to “operate its own telecommunications systems

Catch all

• Art VI(3): US Forces are authorized to exercise all rights and authorities within agreed locations that are necessary for their operational control or defense”