Press Release
September 23, 2009

MIRIAM HITS VFA 1, BARES VFA 2

Sen. Miriam Defensor Santiago, chair of the Legislative Oversight Committee on the Visiting Forces Agreement, called on Malacañang to renegotiate or terminate VFA 1, and asked for a probe of VFA 2, which was not submitted to the Senate for ratification.

Santiago said that VFA 2 is invalid, because it violates Senate Resolution No. 18, which concurred with VFA 1, but imposed the condition "that the President, alone by herself, has no power to bind the Philippines to any amendment of any provision of the VFA."

"Both VFAs were signed in 1998 by Domingo Siazon and Thomas Hubbard. VFA 2 provides that it entered into force simultaneously with VFA 1," the senator said.

She said that while VFA 1 does not provide for supplementary agreements, VFA 2 makes such a provision.

"We hardly know anything about VFA 2, and as a result, we do not know what supplementary agreements have been negotiated with the US ," she said, calling for a legislative probe into the status of VFA 2 and its supplementary agreements, if any.

Santiago said that while VFA 1 is already one-sided in favor of the US , "VFA 2 is even worse, because it grants certain privileges to the US , which are not granted to RP."

Santiago said that the "non-reciprocal" provisions of the VFA 2 include:

  • A US soldier may be detained in the US embassy, not in RP jails.

  • US soldiers are exempt from passport and visa requirements.

  • US government vehicles are exempt from registration.

  • A mere declaration from a US officer that the US vessel does not pose a threat to the health of Filipinos, automatically exempts the vessel from RP inspection.

  • US troops are exempt from Philippine taxes.

  • The US is not obliged to waive claims to the RP government for damages or death.

Santiago said that the Senate resolution specifically underlined that US personnel are only authorized to engage in temporary visits, but the so-called Special Operating Forces (SOF) are staying indefinitely.

Santiago, a recognized expert, said that the VFA violates both constitutional law and international law.

"VFA is unconstitutional, because it was not concurred in by two-thirds of the US Senate. Further, it is void for vagueness because it fails to define the terms visit, temporary and activities," she said.

Santiago also said that the VFA violates the Vienna Convention on the Law of Treaties, particularly the doctrine of rebus sic stantibus, which provides that treaties are binding, only as long as there are no major changes in circumstances.

"The fundamental change of circumstance is that although US troops were ostensibly limited to military training exercises, today they are now embedded in RP combat troops, wearing uniforms and carrying firearms. The RP Constitution prohibits foreigners from engaging in combat operations, either in traditional warfare, or in unconventional warfare," she said.

Santiago enumerated the other reasons for renegotiating or terminating the VFA, as follows:

1. It violates the Philippine Constitution, which provides that the US as the other contracting state should have recognized the VFA as a treaty, not as a mere executive agreement.

2. The VFA, to use a constitutional law term, is void for vagueness, in that it fails to define the crucial terms "visit", "temporary," and "activities."

3. The Supreme Court opinion in the 2009 case of Nicolas v. Romulo suffers from doctrinal confusion.

4. American military forces constitute so-called forward operating bases, thus circumventing the constitutional prohibition against foreign military bases.

5. Only the preamble, not the text, of the VFA mentions the ancient Mutual Defense Treaty, which does not even provide for automatic US help in case of actual attack on the Philippines.

6. The alleged financial benefits under VFA for the most part constitutes US military junk.

7. The VFA is a failure, because after 10 years, the AFP has not modernized sufficiently to keep up with our Asian neighbors, and the terrorist groups are still active.

8. VFA 2 violates the condition laid down in the Senate concurring resolution that there shall be no supplementary arrangement without Senate concurrence.

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