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 website 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 (underscoring 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 (underscoring 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 (underscoring 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 ten years, and thereafter it shall continue in force automatically (underscoring 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 ten 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 VFA and 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.  #

Published in Business World
2-3 May 2014