Edca: Aquino insisted on consent provision

The new defense agreement between the Philippines and the United States took a long time to complete because President Aquino insisted on Philippine approval of all US military activities and the hardware that the Americans would bring into the country.

It was the insistence by the Philippine panel, taking orders from the President, to include the Mutual Defense Board (MDB) and the Security Engagement Board (SEB) as the approving bodies that caused a deadlock in the negotiations last year, a ranking government official told the Inquirer last week.

The source said the agreement was the only defense accord the United States had with an ally that carries a consent provision.

“With respect to storage, with respect to the types of matériel, we needed to know what [the Americans] would bring in. We would know what these are, then approve it through the MDB and the SEB,” the official said.

The two boards will also assess beforehand the construction of US infrastructure in Philippine military camps, the storage of US military hardware, called “prepositioning,” and “other related activities.”

The official, who preferred anonymity for lack of authority to talk to journalists, is familiar with the negotiations that took eight months.

“They reached a stalemate on the consenting mechanism because generally they (Americans) wanted to have as much leeway as possible. But [the Philippine side] insisted that any infrastructure should be for the betterment of the AFP (Armed Forces of the Philippines), [it should be] in line with our priorities,” the official said.

“That’s what dragged the talks out,” the official added.

Military cooperation
The Enhanced Defense Cooperation Agreement (Edca) is a framework agreement designed to further military cooperation between the Philippines and the United States.

It gives the US forces temporary access to selected Philippine military camps and allow them to preposition fighter jets and ships.

The agreement does not specify how many additional US troops will be deployed “on temporary and rotational basis,” but officials from both sides will determine the number depending on the scale of joint military activities to be held in Philippine camps.

The agreement was signed on April 28, hours before the arrival of US President Barack Obama in Manila for an overnight visit on the last leg of a tour of the Asia-Pacific region that also took in Japan, South Korea and Malaysia.

While both parties highlight the security accord’s importance to human assistance and disaster response, among other purposes, the agreement is widely viewed as a deterrent to China’s increasing aggressiveness in claiming territories in the South China Sea, including islands, islets and shoals in the West Philippine Sea, the waters within the Philippines’ exclusive economic zone.

The negotiations ran into an impasse in November, after five rounds of discussions between the Philippine and American negotiators.

Defense Secretary Voltaire Gazmin told reporters that there were differences involving Philippine control and access to temporary US facilities that would be set up in Philippine military bases.

Two boards

The MDB, created under the Mutual Defense Treaty, and the SEB, formed under the Visiting Forces Agreement (VFA), are effective, the source said.

On its website, the VFA Commission defines the MDB, established in 1958, as a “continuing intergovernment machinery for direct liaison and consultation between appropriate Philippine and US authorities on military matters of mutual concern.”

The SEB, on the other hand, was created through the 2006 Romulo-Kenney Exchange of notes to complement the MDB.

The SEB provides “a framework and mechanism for direct and continuing liaison and consultation on nontraditional security concerns, such as but not limited to terrorism, transnational crimes, maritime security and safety, and natural and man-made disasters, between the appropriate Philippine and US authorities.”

Officials from the AFP and the US Pacific Command hold MDB-SEB meetings every year.

The official said the two boards would deal with the operational details that the public, the media and the agreement’s critics wanted to know, including the number of US troops that would be deployed to the Philippines.

Edca defended
In a separate interview, Ambassador to Malaysia J. Eduardo Malaya, a member of the Philippine negotiating panel, defended the agreement, saying “it was not a sellout.”

“We worked very hard to ensure that our interests are protected,” Malaya said.

For one, the United States wanted to have a longer time frame for the agreement, “understandably for their ROI (return of investment), but the Philippines insisted on a 10-year duration because it was more manageable and more acceptable to the public,” Malaya said.

The United States also gave in to the Philippines’ insistence that all infrastructure that would be built in Philippine military camps would eventually be turned over to the AFP, he said.

Malaya said the Philippines also insisted on “robust environmental provisions” as well as use of Philippine suppliers and services for US procurement requirements.

Environmental provision
Malaya reiterated that the agreement would not lead to the establishment of permanent US bases in the Philippines.

He said the US forces would not have exclusive use of Philippine camps and Philippine laws would prevail over the areas that the Americans would use.

The Americans will have exclusive use of their military hardware “understandably because they own them,” he said.

source:  Philippine Daily Inquirer

‘No need for telecom franchise, tax exemption for US forces’

MANILA, Philippines - There is no need for Congress to grant a franchise to US forces to operate a telecommunications system and exemption from paying local taxes under the Enhanced Defense Cooperation Agreement (EDCA), legal experts in the House of Representatives said yesterday.
Deputy Speaker and Isabela Rep. Giorgidi Aggabao and Marikina City Rep. Romero Quimbo were responding to criticisms that the move to allow visiting US forces to operate their own telecommunication system and exempt them from paying taxes usurped the power of Congress to grant telecommunication franchises and tax exemptions.

“My opinion is if the grant of telecommunication rights to the US forces and their exemption from any taxes are among the stipulations in EDCA, I would think that stipulation becomes part of the supreme law of the land binding upon the legislature and the judiciary, and the assent of Congress is no longer required,” Aggabao said.

He cited statements from Malacañang that the EDCA is neither a new treaty nor an executive agreement, but is part of the Visiting Forces Agreement (VFA) between the Philippines and the US.
“I would add that the VFA is not only a law. It is a contract. Consequently, all its provisions, clear and definite, are binding to the entire branches of the contracting governments,” he said.

Quimbo said the country’s tax code provides a clear exemption of governmental functions of other nationals validly visiting the Philippines.

“If the grant of exemptions under EDCA is similar to what I have mentioned, then it is not outside of the authority of the executive branch. They are not giving a grant but effectively carrying out an edict which Congress has delegated to the executive,” he said.

Bayan Muna Rep. Neri Colmenares earlier scored the government for granting the US a franchise to operate a telecommunication system and all the radio band spectrums it requires.

Colmenares noted the granting of tax exemption for the US for its troops and contractors of water, electricity and other public utilities.

“While ordinary Filipinos pay value-added taxes and other fees for the use of electricity and other public utilities, we are subsidizing the taxes of the Americans,” Colmenares said.

“While the Bureau of Internal Revenue goes after Filipino taxpayers, Malacañang has given tax exemptions to the US. The grant of franchise and tax exemption is not within the power of the executive but is a power of Congress,” he said.

source:  Philippine Star

EDCA -- negotiated surrender of sovereignty

NOW we know why the "negotiations" for what would emerge as the Enhanced Defense Cooperation Agreement (EDCA) were conducted under a cloak of secrecy. Not a single byte of the draft was made available to other government functionaries, not even the treaty-making arm of the Philippine state, the Senate, much less to the media and the general public.

In fact, to everyone’s consternation, no copies of the EDCA were released even after it was signed by Philippine Defense Secretary Gazmin and United States Ambassador Goldberg hours before the arrival of US President Obama for his swing-by visit to Manila. For surely, had the drafts and the final text of the EDCA been made public earlier, these would have raised the nationalist hackles of Filipinos, activist and non-activist alike, slowed down if not totally aborted the talks, and soured even further what the Aquino administration was trying mightily to project as a feel-good, arms-clasped coming together of two long-time friends and allies. The Aquino government only posted the EDCA on its official web site after Mr. Obama had left the country.

Despite its deceitful language, it is obvious that the "agreement" does not only allow the US to impinge on Philippine national sovereignty and territorial integrity by gaining access to so-called "Agreed Locations" purportedly in exchange for enhancing the Philippines’ external defense capabilities as well as boosting its capacity to respond to disasters.

Apart from a general statement in Article I, Purpose and Scope, "This Agreement deepens defense cooperation between the Parties... improving interoperability of the Parties’ forces, and for the AFP, addressing short-term capabilities gaps, promoting long-term modernization and helping maintain and develop additional maritime security, maritime domain awareness, and humanitarian assistance and disaster relief capabilities..." there is no other provision categorically stating how this objective shall be achieved. There is no clear, reciprocal provision stating just exactly how the Philippines will supposedly benefit from the EDCA.

On the contrary, Article III, Agreed Locations, says "Given the mutuality of benefits, the Parties agree that the Philippines shall make Agreed Locations available to the US forces without rental (boldface is ours) or similar costs." We recall that one of the main objections to the retention of US bases in sprawling areas of Central Luzon was the US refusal to pay a user’s fee while the country definitely shouldered huge lost opportunity costs by hosting the US bases.

And while in Article IV, Equipment, Supplies and Materiel, "The Philippines authorizes the US forces to preposition and store defense equipment, supplies and materiel ...at Agreed Locations," Section 3 states that "(t)he prepositioned materiel of US forces shall be for the exclusive use of US forces (boldface ours) ..."

And in Article VII, Utilities and Communications, "The Philippines hereby grants to US forces and US contractors the use of water, electricity, and other public utilities on terms and conditions, including rents or charges, no less favorable than those available to the AFP of the Government of the Philippines in like circumstances, less charges for taxes and similar fees, which shall be for the account of the Philippine government (boldface ours)."

Thus from these few provisions alone, the EDCA is grossly lopsided. But over and above this, a close reading of the EDCA reveals that it is indeed a sell-out, nothing less than the surrender of our national sovereignty to our former colonizer, the US of A.

The EDCA allows a much bigger, in fact unlimited, number of US troops to be stationed, together with their unlimited number of prepositioned war vessels and armaments; in unspecified locations, possibly anywhere in the country to be provided by the Philippine government; to undertake a host of activities amounting to using the country as a launching pad for US military adventures; and in a veritable open-ended duration of stay.

Article I on Purpose and Scope, which is supposed to define and delimit the scope of allowed activities, ends with a deliberately vague and catch-all phrase "...and such other activities that may be agreed upon by the Parties." This opens up the scope of activities that "the US may take in the territory of the Philippines in relation to the access to and use of Agreed Locations" to any other conceivable activity that is not explicitly stipulated in the Agreement.

One might argue that the Agreement categorically states that these activities are "within" and in relation to its "access to and use of Agreed Locations" which, in Art. II Definitions, "may be listed in an annex appended to this agreement." However, the listing is not intended to define the territorial limits of these activities, since the provision again ends with the phrase, "...and may be further described in implementing arrangements."

The EDCA is thus far worse than the return of the former US bases and facilities in the country that were booted out by the Philippine Senate’s rejection of the bases agreement in 1991. Then, the US troops and war materiel were confined in well-defined or specific areas, albeit with extraterritorial rights, and their sea and air war machines could only dock in or land on these military bases. Whereas now, while the EDCA states that US facilities shall only be set up in "Agreed Locations" and again, purportedly, without exclusivity, this proviso is negated by the caveat allowing "Agreed Locations" anywhere both Parties agree on.

A specific provision in Art III, section 2 states, "When requested the Designated Authority of the Philippines shall assist in facilitating transit or temporary access by US forces to public land and facilities (including roads, ports and airfields) including those owned or controlled by local governments, and to other land and facilities..." Ergo contrary to the Philippine and US governments’ propaganda that only AFP facilities will host the US troops and war material or will be the site of their activities, the EDCA opens the way for American boots to go anywhere they need or wish to go in Philippine territory including "roads, ports and airfields" used entirely for civilian purposes.

As to the duration of the EDCA, Article XII, Section 4 states, "This agreement shall have an initial term of 10 years, and thereafter it shall continue in force automatically (boldface ours) unless terminated by either Party..." This is a far cry from what the Aquino government wants to make us believe that the EDCA has a definite duration of 10 years the way the RP-US bases agreement had a definite termination in 1991.

A most objectionable and potentially explosive issue, being a case where the Executive branch has clearly overstepped its bounds, is the provision in Art XI, Resolution of Disputes. Any dispute "arising under this Agreement" must be resolved "...exclusively through consultations between the Parties.... (and) shall not be referred to any national or international court, tribunal, or other similar body, or to any third party for settlement, unless otherwise agreed by the Parties."

This is supposed to mean that neither the Senate nor Supreme Court can question or revise the Agreement. This is a blatantly unconstitutional provision, violating the principle and letter of checks and balances and division of powers in government. Clearly, the Executive has encroached on the Legislative and Judicial branches’ powers and prerogatives in barring the subjection of the Agreement to legislative or judicial review.

In any case, it is now also clear why the EDCA was "negotiated" in addition to the Visiting Forces Agreement (VFA) and Mutual Logistics Support Agreement (MLSA) which had already in principle and practice opened up Philippine territory and resources to US military forces and activities. The EDCA was crafted to further legalize and justify more obtrusive increased US presence and activities which the vague VFA and MLSA provisions could not as easily or evidently cover up.

source:  Businessworld / Streetwise  - Carol Pagaduan-Araullo