Implications of VFA abrogation 

Published February 24, 2020, 12:00 AM

by manilabulletin_admin

FINDING ANSWERS

By FORMER SENATOR ATTY. JOEY D. LINA

Atty. Joey D. Lina
Atty. Joey D. Lina

The recent move to formally notify the United States of the intention of the  Philippines to terminate the Visiting Forces Agreement (VFA) has ignited a maelstrom of varying views on the wisdom of the decision, and if the executive department has the unilateral authority to do so.

Close allies of President Duterte stressed his decision was a matter of “upholding sovereign equality” and not just a knee-jerk reaction to retaliate against the cancellation of the US visa of Sen. Ronald de la Rosa.

“It was the rational culmination of his deep, long and exhaustive examination of the Philippines’ relationship with the United States of America,” Sen. Bong Go explained. “In the more than two decades that I have worked with the President, he often lamented the unjust and unfair treatment of the Philippines by the United States. In all these instances, his complaints centered on a key principle in international politics: sovereign equality and non-interference in domestic affairs.”

And those who believe the President can unilaterally abrogate the VFA insist there is nothing in the law which states otherwise, and that “any question of foreign relations belongs only to the President, its chief architect, and no one else.”

But what happens to the principle of check and balance if treaties can be terminated by the Office of the President without concurrence of the Senate? Many believe foreign relations is a “shared power” as stated in Article VII, Sec. 21 of the 1987 Charter: 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. But because the Constitution is silent on whether treaty abrogation needs Senate concurrence, the Supreme Court indeed needs to clarify the issue.

Those who were stunned by President Duterte’s decision insist that scrapping the VFA signed in 1998 would weaken our country’s defenses in the West Philippine Sea and encourage more Chinese aggression in our exclusive economic zone.

And the first casualty of VFA abrogation is the Scarborough Shoal, according to former Supreme Court Justice Antonio Carpio. Without any rotational presence of US soldiers in the Philippines, he said “the abrogation of the VFA hands over the Scarborough Shoal to China while saving the US from either confronting Chinese warships over a few rocks in an uninhabited shoal or losing credibility to its allies.”

“The US has now a credible excuse if it does not intervene the moment China reclaims Scarborough Shoal,” Carpio explained. “Previously, Scarborough Shoal presented a test of US commitment to its allies. If China reclaims Scarborough Shoal, and the US fails to help the Philippines stop China, US credibility will suffer tremendously. US treaty allies like Japan and South Korea will begin to doubt the US commitment to rush to their aid in case of an armed attack by a third state.”

On how the US showed its commitment at Scarborough, Carpio said: “In March 2016, China sent dredgers to Scarborough Shoal. US surveillance satellites monitored the Chinese dredgers as they made their way through the South China Sea. President Obama called up President Xi Jinping, warning him of ‘serious consequences’ if China would start reclaiming Scarborough Shoal. President Xi backed down and the Chinese dredgers turned back. The US had drawn a red line on Scarborough Shoal.

“The following month, April 2016, US marines engaged in the Balikatan exercises in Luzon under the VFA conducted live firing of truck-mounted HIMARS missiles. These missiles, equipped with satellite guidance systems, have a 300-kilometer range and can easily obliterate any structure on Scarborough Shoal. At the same time, US A-10 Warthog warplanes, feared for their awesome firepower, flew around Scarborough Shoal. The HIMARS and the Warthogs sent a powerful message to China not to cross the US red line on Scarborough Shoal.”

The VFA abrogation also risks regional security, according to security analysts who share Carpio’s view and that of US Defense Secretary Mark Esper who warned that terminating the pact “would be a gift to China as it flexes its muscle in the South China Sea and seeks to displace the US as the region’s dominant power.”

Others supporting the VFA said scrapping the pact would be “a blow to the fight against Islamic State terrorism.” They cited US help consisting of technical assistance, training derived from the joint military exercises, and intelligence-sharing put to good use during the 2017 siege in Marawi.

But others are wary of US commitment, saying the VFA and the 1951 Mutual Defense Treaty does not obligate the US to defend our country’s territorial rights in the West Philippine Sea (WPS). And many are frustrated that in past instances, the US has shown that it will not intervene in sovereignty issues in the WPS.

Of course, it would be naive to think that the US or any other country would come to our aid if it is not in their interest to help us against our enemies. There are no permanent friends or enemies. Only a country’s national interests are permanent. Former British Prime Minister Henry Palmerstone is right when he told the British Parliament in 1848: “We have no eternal allies, and we have no perpetual enemies. Our interests are eternal and perpetual, and those interests it is our duty to follow.”

The Philippines has to strive to be self-reliant in defense and security. That surely is in our national interest to be so.

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