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.
EDCA allows for presence of
Bases, troops and facilities.
OSG says it is pursuant to
MDT and VFA
OSG
NOT BASED ON MDT:
i. New Policy
ii. Different object and
purpose
iii. Different context
First Point
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.
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”
DOD:New Strategic
Guidance 2012
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
Art. 31 VITLOS: interpreted in good
faith in accordance with the ordinary
meaning… in their context and in
light of its object and purpose.
Restating specific goals
of MDT in EDCA does not
make it an implementing
agreement
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
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.
Context is Different
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
Difference between EDCA
and MDT: Troops
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
Differences on Facilities
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
Second Point: EDCA not
implementing VFA
• 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)
VFA rules on Phl Primary
Jurisdiction for Non-Service
Related Offenses Inapplicable
• 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
Why Permanent Bases
• 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
• 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”
Catch all