EDCA Will Turn the Philippines Into The Biggest Military Base of the US

Privilege Speech May 7, 2014By BAYAN MUNA PARTY-LIST

Rep. Neri J. Colmenares

Mr. Speaker, my dear colleagues, I rise on a personal and collective privilege to speak about the issue called the Enhanced Defense Cooperation Agreement or EDCA.

Background

The Enhanced Defense Cooperation Agreement (EDCA) was negotiated in secrecy for nearly two years. While hiding the details of the negotiation, the Philippine government publicly repeated magic words like defense against “China”, humanitarian aid, and military aid or modernization of the AFP. It was signed on April 28, 2014 without involving the Senate, or the House of Representatives, and without the public knowing anything about the agreement even if Article XVII, Section 25 of the Constitution requires a Senate concurrence in the ratification of the EDCA, the discretion of both Houses of Congress to decide whether or not to call for a referendum to get the people’s approval.

While we assert that the Philippines should stand our ground and not allow China to grab our territories in the “West Philippine Sea”, we contend that should we need to get support against Chinese incursions, we should rally support from members of the international community, such as countries who are aggrieved by these incursions, and those who are sincerely against expansionist aggression. The recourse to the Arbitral Tribunal under the UNCLOS was an appropriate step since it brought to the attention of the international community the fact that the territorial claims of China are bereft of any evidence. This will cause China’s isolation and open her to sanctions should she disregard the

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Tribunal while pursuing aggressive and violent incursions in the disputed area.

Recourse to the United States (US) government for support is not just dangerous to, but violative of the Filipino peoples interest because the US has always acted in accordance with its selfish national interest without consideration of the interest of those the US relate with. Our experience and that of the Iraqi people, for example, have proven this assertion. Considering that the US government has long yearned for the return of their bases in the Philippines after the Filipino people ousted these in 1991, it is foolhardy for the Aquino government to allow the US to openly reestablish their bases in the country and reverse the gains of the people. In fact, Pres. Barack Obama has categorically expressed that it will not counter or “contain” China. It is now clear that the US has no intention of endangering what Pres. Obama described as the “enormous trade and enormous business that is done between the US and China”, by defending Philippine claims in the disputed area against China. The US owes China at least US$ 1.28 Trillion and has a total of US$579 Billion in trade with China, with only US$17.6 Billion with the Philippines.

Despite such public admission that the Philippines cannot expect support from the US against China, the Aquino administration signed and pushed through with the EDCA. After EDCA has been published, however, many Filipinos were shocked with the many provisions that granted the US so much in exchange for nothing. The Philippine government then went on a media offensive to justify its open surrender of Philippine sovereignty, using language engineering by constantly repeating magic words like “mutuality of benefits”, “temporary”, “humanitarian aid”, “environmental protection”, “no permanent bases” and other propaganda highlights intended to obfuscate the issue. Thus a need to discuss in clear and concrete terms what the Philippines gave, in what could be one of the most lopsided agreements signed by the Philippines that is grossly disadvantageous to the people and the country. The issue is not whether one is pro-US or pro-China but rather whether one is pro-Filipino. While we should definitely stand our ground against China, we should refuse to surrender our sovereignty, territorial integrity and our dignity as a people to the United States. Unfortunately, the Philippine government has done the contrary.

This paper/speech aims to discuss the major provisions with dire political, legal and other implications on the Filipino people. It will not exhaustively discuss all the questionable provisions but will only focus on:

(i) Provisions that have grave implications on the sovereignty and territorial integrity of the country, through the open establishment of US military bases in the country;

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(ii)Provisions that violate various constitutional provisions and laws of the country

This will reserve thorough discussion of the violation of the constitutional provision under Article XVIII, Section 25 expressly requiring EDCA to be ratified as a treaty and not a mere executive agreement, in a subsequent discussion.

Selling out Philippine Sovereignty: Open establishment of US Military Bases

The “Agreed Location” under EDCA is the term used for the military bases that the United States government will put up in the country. While the Philippine government has consistently assured the people that these ‘agreed locations” will be situated in AFP military camps, the EDCA provisions belie this assertion—because nowhere in EDCA is there a limitation or restriction as to the place of the said ‘agreed locations’, or the maximum number allowed, or the total area each base will cover or the total number of troops. In fact, government has openly admitted that Subic, which is not a military camp, is considered as a site for the ‘agreed location’.

The agreed locations are not only limitless both in terms of number and place but also unidentified as these may be provided in the yet unwritten or unpublished “Annex” of EDCA, and worse, even after EDCA comes into force, additional or expanded “agreed locations” may still be inserted in its “ implementing arrangements” as provided under Article II, Par. 4 of EDCA:

“Agreed Locations” means facilities and areas that are provided by the Government of the Philippines through the AFP and that United States forces, United States contractors, and others as mutually agreed, shall have the right to access and use pursuant to this Agreement. Such Agreed Locations may be listed in an annex to be appended to this Agreement, and may be further described in implementing arrangements

These locations could be anywhere in the Philippines and may not even be clearly listed or described at all. Additionally, the fact that it could be inserted anytime after the Annex is appended through mere “implementing arrangements” renders the entire process untransparent since new or expanded agreed locations may be surreptitiously added long after the EDCA is in force hidden from public view.

Worse, the EDCA commands the Philippine government to grant any US request for access to any, including private, land or facility in the

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country under Art. III, Par. 2, practically transforming the country into one US military base:

“When requested, the Designated Authority of the Philippines shall assist in facilitating transit or temporary access by United States 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 (including roads, ports, and airfields)”

The EDCA is littered with broad and vague generalities and limitless possibilities such as the above, interspersed with language engineering containing irrelevant but nice sounding provisions, which practically and surreptitiously allows the US discretion in establishing bases and conducting military activities anywhere in the Philippines at anytime.

Establishing Military Bases

Any right-minded person who reads EDCA can immediately conclude that the supposed “agreed locations” are actually military bases. Government contends that these are not bases because as stated in their primer “The defining features of “foreign military bases” – extraterritoriality, exclusivity in use and foreign ownership – will not be applicable in the Agreed Locations”. The government tries to delude the people by using the traditional concept of a foreign military base, which in the current military technology, may not even be applicable. This argument crumbles in the face of the fact that the US did not claim ownership of both Clark and Subic and even paid rent to the Philippines for their use, both were still foreign military bases despite absence of foreign owners.

Presuming, however, that these supposed criteria are still valid today, the “agreed locations” under EDCA will still fall in the category of a military base because it has (i) extra territoriality (in fact US laws and jurisdiction apply in the base areas); (ii) exclusivity (the US retains operational control and unimpeded access while the Philippines cannot have access without their permission); and (iii) ownership (not only do they have operational control and unimpeded access while the Philippines do not—which means that the US, in essence, exercise rights of ownership, but the agreed locations and their facilities will only be turned over to the Philippines upon the discretion of the US in an indefinite time in the future.

In any case, as mentioned above, both Clark and Subic may not fulfill the criteria used by government above, but they remain to be military bases. The same goes for the agreed locations based on the following elements:

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I. Activities and Functions of a military base

Firstly, the functions of these “agreed locations” are functions of a base and the activities conducted therein are those undertaken in military bases.

These agreed locations as defined under EDCA itself fit the description of a military base —it will contain houses or barracks to accommodate troops that could run in the thousands; it contains weapon armories, arsenals or silos; it has secure storage buildings for prepositioned supplies and war materiel; it has its own facilities for refueling, bunkering, and repairing warships or aircrafts; it has its own perimeter wall which will prohibit unauthorized entry; it has its own telecommunication system and a communication center; and is even a launching pad or site for the deployment of troops and war materiel to other countries. In fact, it even has a separate facility for its water, electricity and other utilities. All these will be mainly constructed by “US Contractors”.

The activities in these base areas are defined under Article III, Par. 1:

With consideration of the views of the Parties, the Philippines hereby authorizes and agrees that United States forces, United States contractors, and vehicles, vessels, and aircraft operated by or for United States forces may conduct the following activities with respect to Agreed Locations: training; transit; support and related activities refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies, and materiel; deploying forces and materiel; and such other activities as the Parties may agree.

These are the activities that are undertaken in a military base. The Philippine government answers charges that the US is establishing bases here by saying that “no permanent bases” are allowed by EDCA trying to mislead the people into thinking that “permanence” is a definition of a base. This is akin to a “negative pregnant” statement when one answers the question if he killed Pedro by saying that “no, I did not kill Pedro on Monday.” Under the government’s argument, which is the height of absurdity, Clark and Subic will not be considered a “foreign military base” because they had a “temporary” lifespan of only 25 years under the US-Military bases agreement. The truth is, military bases could be permanent (such as a main operating base) or temporary, such as a logistics base, or a forward operating base—both of which fit the nature of the US bases under EDCA.

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The word “temporary” is a useless and irrelevant word in the above provision, and in the entire EDCA for that matter, since they could define temporary to mean a few days, or a few months, and even a few years. Even the presence of US soldiers deployed in Clark and Subic can be deemed by the US as “temporary” since none of them intended to stay in the country permanently as soldiers. The repetition of the word “temporary” in the EDCA is merely intended to delude the Filipinos into thinking that that the soldiers are merely visiting because they are merely “rotational”. The US forces are here to stay, and they will stay if we allow them to, that is a fact that the government cannot deny.

Additionally, EDCA allows the US to put up not just temporary structures but even permanent buildings and “non-relocatable structures affixed to the land” as admitted by EDCA itself under Article IV, Par. 4:

All buildings, non-relocatable structures, and assemblies affixed to the land in the Agreed Locations, including ones altered or improved by United States forces, remain the property of the Philippines. Permanent buildings constructed by United States forces become the property of the Philippines, once constructed, but shall be used by United States forces until no longer required by United States forces

It is noteworthy, that these buildings may be turned over to the Philippines once the US discards them or no longer requires them, provided they may be subject to compensation for cost of construction or improvement made by the US forces, as provided under Article V, Par. 1. When that “turnover” would be is not clear because under EDCA, the US is here to stay.

Worse, the US wants complete control of the structures being built in their bases that they demanded to be given operational control of these areas even before they construct their base as provided under Article III, Par. 4:

The Philippines hereby grants to the United States, through bilateral security mechanisms, such as the MDB and SEB, operational control of Agreed Locations for construction activities and authority to undertake such activities on, and make alterations and improvements to, Agreed Locations x x x.

Paragraph 4 simply means once the US starts constructing their buildings, barracks, ammunition or fuel depot, storage for chemical waste, or their intelligence hubs and communication centers, it is the US that controls the construction or even access

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to these areas. There is also no limitation as to what structures they can build. They could even build a golf course or a Bar for the recreation of their troops and the Philippines cannot intervene since this is covered under Art. III Par. 1 as “support and related activities”.

In fact, the US forces continue to oust the jurisdiction of the Philippines from the base areas by reiterating their operational control over their prepositioned materiel. We cannot even monitor if they will bring in chemical or nuclear weapons in these storage depots. Even the supposed promise of sharing or modernization of the AFP where the US will share or give their weapons and other prepositioned materiel to the Philippines is highly questionable because Article IV, Par 3 of EDCA provides that it shall be only for the “exclusive” use of the US forces:

The prepositioned materiel of United States forces shall be for the exclusive use of United States forces, and full title to all such equipment, supplies, and materiel remains with the United States. United States forces shall have control over the access to and disposition of such prepositioned materiel and shall have the unencumbered right to remove such prepositioned materiel at any time from the territory of the Philippines

Rapid Deployment Force

The “prepositioning of equipment, supplies and materiel” means that the US will be stockpiling weapons, ammunition, supplies and other materiel that will be used by their ships, planes and troops abroad when needed or in case of war. It must be noted that among the activities under Paragraph 1 is the “deployment of troops and materiel” which includes the launching of military drones which have become, not just surveillance planes, but deadly weapons of attack. This would mean that the Philippines could be a launching pad for covert or overt military operations abroad such as those undertaken in many other wars that the US are usually involved in. Even the mere refuelling of US planes in the Philippines before they attack their targets abroad, or the launching of drones, could be considered by enemies of the US as also an act of war on the part of the Philippines. This not only drags us into wars or conflicts which we have no reason to be involved in, but also makes the Philippines a legitimate target for attack by the many enemies of the United States. The Philippine government, by allowing the insertion of these activities, has practically placed the country and the Filipino people in danger.

The main purpose of Article IV, Par. 3 above, therefore, is not so much on the issue of sharing US war materiel but their rapid deployment. The US forces wants to ensure that should a war erupt

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with for example Russia or Syria, they can immediately deploy or dispatch their weapons and war materiel (at any time) without any hindrance from the Philippines. This provision strengthens the assertion that the intention of these bases is not so much to defend the Philippines from Chinese intrusion in the West Philippine Sea but rather as a forward position of the US military for their rapid deployment when they intervene or conduct military operations in the Asian region. All of the above are in exercise of extra territoriality, exclusivity and ownership.

What are the implications of EDCA Provisions under Article III, Par. 1 on the activities to be conducted on the so called “agreed locations” ? Devastating implications.

These provisions violate Article II, Section 7 of the Constitution which requires us to chart an “independent foreign policy”, as well as Section 2 which states that “The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations” because it inordinately opens the country’s involvement in war and is definitely not in consonance with the policy of peace, cooperation and amity with all nations. Needless to say, if the US is charged with a war crime or crimes against humanity in these wars, the Philippine government will also be liable for these crimes as conspirators under the Rome Statute of the International Criminal Court as well as under Republic Act 9851 for violating international humanitarian law.

One more reason why the agreed locations are US military bases is the fact that the activities enumerated in Article III, Paragraph I include massive military activities such as “refueling of aircraft, bunkering of vessels, maintenance vessels and aircraft”. These require large ports with the capacity to conduct repair and maintenance of huge US warships, airports capable of sustaining large and heavy US planes, and huge fuel depots capable of fueling these huge ships and planes. These massive activities cannot be undertaken or secured from threats without a base.

II. Defense perimeter to secure the base from perceived threats or access

Secondly, the agreed locations have a defined defense perimeter or wall which does not allow access to unauthorized persons, another element of a military base. In fact, the EDCA grants the US the right to use force or any “appropriate measures” to defend the base from perceived threats as provided under Article VI, Par. 3:

United States forces are authorized to exercise all rights and authorities within Agreed locations that are necessary

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for their operational control or defense, including taking appropriate measure to protect United States forces and United States contractors

Not contended with “operational control” over their military base, the US further demanded that it shall be given the authority to “exercise all rights and authorities within the Agreed Locations” which clearly ousts Philippine jurisdiction over these territories. This operational control and “exercise of rights and authorities” fulfill the elements of exclusivity, extra territoriality and ownership.

Surely, the US will not allow their armories, communication centers, intelligence hubs and war materiel to be easily accessed by the Filipinos. This provision actually allows them to employ “appropriate measures” which includes arresting or shooting down any Filipino they perceive to threaten their “operational control or defense”. During the heydays of Subic and Clark, US soldiers have been known to shoot and kill children scavenging in their garbage dumps on the pretext that they thought the Filipinos were wild boars, thus the famous “my brother is not a pig” line of Nora Aunor in a movie portraying the vicious impact of US bases in the country.

The US can prohibit anyone from even going to their perimeter fences including peace advocates and anti bases rallyists who want to express condemnation of US military presence, and the US can employ force on anyone on the claim that he or she constitutes a threat to the US forces or contractors. The Philippine government has legitimized in advance violations by the US forces of the freedom of assembly and expression of the Filipino people.

III. Denial of Access to the base areas without the permission of US forces

Thirdly, Filipinos, including commanding officers of the AFP are not allowed access without the permission of the US forces as provided under Article III, Par. 5:

The Philippine Designated Authority and its authorized representative shall have access to the entire area of the Agreed Locations. Such access shall be provided promptly consistent with operational safety and security requirements in accordance with agreed procedures developed by the Parties.

Any access by the AFP or any Filipino, therefore, cannot be allowed if the US forces claim that it is not in consonance with their “operational

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safety and security requirements” to allow access. Just like any military base, one needs the permission of the US forces to be allowed entry into their territory—an exercise of extra territoriality, exclusivity and ownership consistent with being a military base. Surely, the US forces will not allow Filipinos to enter their intelligence center, communications hub, or even where classified weapons are stored. No Filipino therefore can enter these camps without the permission of the US. That is not access at all.

While access by Filipinos to the US bases are subject to the permission of the US forces, the US forces demanded under Article IV, Par. 4 that the access of the US forces, and even their contractors to these bases, must be “unimpeded” by the Filipinos:

United States forces and United States contractors shall have unimpeded access to Agreed Locations for all matters relating to the prepositioning and storage of defense equipment, supplies, and materiel, including delivery, management, inspection, use, maintenance, and removal of such equipment, supplies and materiel

Under Par. 4, any inspection or checkpoint search of the delivery or transport of their war materiel, weapons, and other defense equipment may be deemed by the US as an act that “impedes” such delivery. This demand by the US of unimpeded access is based on their perception that any inspection or monitoring of their supplies and war materiel could threaten security. In fact, the US has never allowed the Philippines to board their warships and inspect its supplies and armaments, including nuclear weapons. This provision will definitely make it difficult if not impossible for the Philippines to monitor these “pre positioned” war materiel and supplies. In fact, the US may even smuggle in a person subject of rendition into the country for interrogation without the Philippines ever finding out because of the required “unimpeded access”. In fact, they can smuggle goods without the Customs or the BIR knowing anything.

IV. Return of Agreed Locations subject to US discretion

According to the Philippine government, a supposed benefit from EDCA is the turn over of US structures and facilities to the Philippines. This is not entirely true because the Philippines has no control or discretion over their return to us and at what price or cost. In fact, even the return of the Agreed Location will only happen if the US “no longer requires” these agreed locations. Because the locations are actually bases, where the US sets up camp and stores their weaponry, and house their troops, and maintain their warships and aircrafts, the US wants a

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guaranty of longer, if not permanent, stay or tenure as provided under Article V, Par. 2:

The United States shall return to the Philippines any Agreed Locations, or any portion thereof, including non-relocatable structures and assemblies constructed, modified, or improved by the United States, once no longer required by United States forces for activities under this Agreement. The Parties of the Designated Authorities shall consult regarding the terms of return of any Agreed Locations, including possible compensation for improvements or construction

This provision shows that, contrary to government pronouncements, there is no guarantee of supposed benefits through the returned US facilities in these locations because: (i) the agreed location will only be returned to the Filipinos if the US deems that they “no longer require” or need these locations; (ii) only the non-relocatable structures will be returned; and (iii) the US can demand payment for the return of these facilities or buildings. This practically ousts Filipinos from the use of our own territory and subject our use of our own territory to the discretion or approval of the US forces.

While Par. 1 under Art. V declares that the Philippines “retain the title to the Agreed Location” it is merely a meaningless symbolic title because the US has (i) operational control over it including its buildings and facilities; (ii) Filipinos have no access over these without the permission of the US, (iii) the US has operational control over the construction, removal, and storage of anything within the Agreed Locations; and (iv) as provided under Article VI Par 3 the “US are authorized to exercise all rights and authorities within the Agreed Locations”—practically ousting the Philippines from any jurisdiction over these locations.

This is the reason why despite government pronouncements that these are not bases, the facts show that they are indeed military bases—the US controls it to the exclusion of the Philippines, in fact practically owning it at the time they are using it, they do not even pay rent if only as a token recognition of the Philippine title over these locations, and they have unimpeded access to it. Note that Par. 2 allows the US to demand compensation from the Philippines should they return the facilities they have built. The US could very well demand payment from the Philippines for all the buildings they will turn over—if ever they will decide to vacate it.

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Due to the many benefits to the US of EDCA at a very minimal cost, however, and considering that EDCA is actually a continuing agreement and not limited to 10 years, the US would strive not leave at all.

Implications of other EDCA Provisions

Clearly, from the above provisions, the US was allowed by the Philippine government to build military bases disguised under the term “agreed location”, a clear violation of our sovereignty. The other provisions of EDCA only further strengthens the lopsided agreement in favor of the US forces and to the further disregard of the interest of the Filipino people.

a) The claim of the Philippine government that the EDCA prohibits nuclear weapons into the country under Article IV, Par. 6 of EDCA is a lie because said provision does not provide so. Paragraph 6 states that “The prepositioned materiel shall not include nuclear weapons”.

The Aquino administration publicly promised that the EDCA prohibits the entry of nuclear weapons into the country, perhaps underestimating the intelligence of the Filipino people into seeing through the supposed anti nuclear provision. Paragraph 6, however, not for what it says but for what it does not say, allows the entry of nuclear weapons, another case of play of words akin to a negative pregnant statement.

It is a foregone conclusion that many US ships and aircrafts carry nuclear weapons, not to preposition them in a storage somewhere, but as part of that ship’s or aircraft’s weaponry or nuclear strike capacity. Par. 6 in a devious play of words declares that nuclear weapons will not be included in the prepositioned materiel of the US, but it does not say that warships or aircraft carrying nuclear weapons are also prohibited from entering the country. In fact, even if they store nuclear weapons in their prepositioned materiel, it will be difficult for the Philippines to find out because of Article IV, Par. 3 and Par. 4 above. Additionally, there will be no way for the Philippines to board US warships to inspect it for nuclear weapons.

Should the US go to war, the first targets of its enemies are definitely the aircrafts or ships they suspect to carry nuclear weapons, and the Philippines becomes a legitimate target of that attack. Additionally, should there be a nuclear accident in the country, thousands could die since the Philippine government, which does not even have a nuclear containment plan, can never be

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capable of containing its effects. This is one of the most serious dangers brought about by EDCA.

b) Article III, Paragraph 3 provides that the US Forces shall not pay any rent or similar cost for their unlimited use, of unlimited territories, for an unlimited time.

There are two strange phenomena here:

(i) While the US pays rent to the Japanese government, their enemy during World War II, for their bases in Japan, the US refused to pay rent to the Philippine government, their ally during World War II, for the same bases in the Philippines;

(ii) While the US previously paid rent to the Philippine government for the use of Clark and Subic bases under the US-RP Military Bases Agreement, the US refused to pay for the use of their many bases under the Enhance Defense Cooperation Agreement.

c) Another humiliating provision which discriminates in favor of the US forces is the grant of a telecommunication system to the US including a range of radio spectrum for free and exempting them from paying taxes and fees for their use of water, electricity and other utilities as provided under Article VII:

The Philippines hereby grants to United States forces and United States contractors the use of water, electricity, and other public utilities on terms and conditions, including rates or charges, no less favorable than those available to the AFP or the Government of the Philippines in like circumstances, less charges for taxes and similar fees, which will be for the account of the Philippine Government. United States forces’ costs shall be equal to their pro rata share of the use of such utilities.

The Parties recognize that it may be necessary for the United States forces to use the radio spectrum. The Philippines authorizes the United States to operate its own telecommunication systems x x x This include the right to utilize such means and services as required to ensure the full ability to operate telecommunication systems, and the right to use all necessary radio spectrum allocated for this purpose. x x x United States forces shall not interfere with frequencies in use by local operators. Use of radio spectrum shall be free of cost to the United States.

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This is certainly an absurd and blatantly unjust provision as it gives the US better treatment than ordinary Filipinos. They will pay rates or fees lower than what ordinary Filipinos pay, in fact it may even be lower than that being paid by the AFP, for the use of water, electricity and other utilities. Considering the massive activities and operations in these bases and the thousands of troops present (including possible recreational facilities), the volume of their usage of water and electricity would be enormous. Not only will they be charged at a lesser price than most if not all Filipinos, they will contribute to the constriction of supply of electricity or water, which in turn could contribute to the scarcity of supply for ordinary Filipinos and also increase the price of these utilities in the WESM.

Worse, while ordinary Filipinos labor under the VAT, and other taxes and fees, the taxes of the US forces are paid for them, courtesy of the impoverished Filipino people. Their contractors who will heavily use electricity and water in their construction works and other businesses, are also exempted from paying tax and fees for these usage because the government will be paying for these.

Despite these benefits, the US will only pay for their “pro rata share” or the cost of the utilities they actually used. The entire EDCA is littered with Philippines subsidizing the US instead of the other way around as claimed by government.

The grant of an entire telecommunication system to the US forces, for free only exacerbates the lopsidedness of the EDCA.

The US is practically given a franchise to “operate its own telecommunication systems” including the right to use “all the necessary radio spectrum”—all for free. They are allowed to expropriate our airwaves, again for free, to the exclusion of Filipinos who can no longer use such spectrum or bandwidth, while the rest of the country pay for availing themselves of the same.

EDCA further relinquishes our sovereignty by taking out US forces, contractors and “others” from the jurisdiction of Philippine judicial system, including the Supreme Court under Article XI

The Parties agree to resolve any dispute arising under this Agreement exclusively through consultation between the Parties. Disputes and other matters subject to consultation under this Agreement 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.

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This article practically ousts our judicial system from any jurisdiction over many issues pertaining to EDCA and these bases, and actually grants US forces and their contractors immunity from the Philippine justice system. There are many possible disputes that could “arise under this Agreement” such as: contract or labor dispute, destruction of environment as a result of US activities, or spillage of toxic chemicals. The US could very well argue that Art. XI takes away the jurisdiction of local courts over these issues or even crimes that result from employing “appropriate measures to protect US Forces” under Art. VI. It may even insist that EDCA has ousted the International Criminal Court for acts committed in the deployment of troops and materiel abroad or in the Philippines.

d) The EDCA also gives preferential treatment to US Contractors. However, these contractors are not only used for supplies and the construction of facilities but also for security work

The EDCA is littered with provisions on “US Contractors” who are supposedly civilians doing business in the Philippines. It allows activities of “contractors and vehicles, vessels and aircraft operated by or for the US forces” which do not officially constitute part of the US forces. In fact, the vehicles and aircrafts will not only be operated “ by US forces” but could also be operated “for the US” by a yet unidentified third party. The US has been known to hire contractors to distance themselves from accountability or liability for illegal acts committed in their foreign deployments. There were reports that these contractors, some identified as former CIA operatives and US Army mercenaries, are sometimes employed to do illegal acts for the US such as rendition, torture and other human rights violations.

One such shady company called DynCorp has been in the Philippines since 2004 doing “security work” in Zamboanga. DynCorp as been implicated in the Iran-Contra scandal and was the subject of a Permanent Peoples Tribunal complaint for human rights violations in Colombia, Bosnia, Haiti, Nicaragua and Afghanistan.

Another notorious US contractor is “Blackwater USA” currently known as “Acadmi”. According to a CNN and Associated Press report, they were involved in human rights violations in Iraq:

Blackwater USA Banned from Iraq By Matthew Harwood (09/17/2007) According to CNN.com, Blackwater USA has been thrown out of Iraq:Iraq's Interior Ministry has revoked the license of Blackwatwer USA, an American security firm whose contractors are blamed for a Sunday gunbattle in Baghdad that left eight civilians dead. Sunday's firefight took place

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near Nusoor Square, an area that straddles the predominantly Sunni Arab neighborhoods of Mansour and Yarmouk.

In addition to the fatalities, 14 people were wounded, most of them civilians, the official said. The incident started when a U.S. State Department convoy Blackwater contractors were apparently protecting came under attack.

As the Associated Press reports:

Tens of thousands of foreign private security contractors work in Iraq some with automatic weapons, body armor, helicopters and bulletproof vehicles to provide protection for Westerners and dignitaries in Iraq as the country has plummeted toward anarchy and civil war.These contractors are deeply unpopular among Iraqi civilians because of their alleged militant posturing and frenzied driving throughout the cities of Iraq.

Yet even if the Blackwater contractors did indeed commit a crime, it is questionable they will be held accountable. Due to a deal secured by the United States with the Iraqi government, private security contractors cannot be prosecuted for crimes they commit while in Iraq. And because they are not techniquely  "soldiers," they do not fall underneath the Uniform Code of Military Justice.

e) The EDCA clearly aims to allow the US a forward base for the prepositioning of its troops, weapons and other war materiel as provided under Article IV, Par. 2:

The Parties share recognition of the benefits that such prepositioning could have for humanitarian assistance and disaster relief. The Parties also recognize the value of such prepositioning to the enhancement of their individual and collective defense capabilities.

We must take note of the crafty way “humanitarian assistance and disaster relief” was inserted in Par. 2 when it is merely a motherhood statement on the storage of relief goods, which could be stored anyway even without an EDCA. It is the second sentence however that is the main purpose of Par. 2—that the US can store weapons, ammunition and other war materiel and equipment in the agreed locations on the ground that it is intended to “enhance” its defense capability. Notice that the EDCA does not

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prohibit the use of these prepositioned armaments in covert or overt military operations in the Philippines or abroad.

The Continuing Agreement

While the amended US-RP Military bases Agreement had an actual term, which is terminated unless renewed, the EDCA has no definite term because it is renewed unless terminated, thereby making the agreement a continuing agreement under Article XII, Par. 4:

This Agreement shall have an initial term of ten years, and thereafter, it shall continue in force automatically unless terminated by either Party by giving one year’s written notice through diplomatic channels of its intention to terminate this Agreement

The government inserted the “10 year” term, with the aim of deluding the people that the US basing is temporary at a maximum of ten years. The EDCA, however, is a continuing agreement and will only end if it is “terminated by either party” and not because its term has expired.

Because it does not have a term, there is no mandatory requirement for its review within a certain period before it expires, nor does it require renegotiation upon the expiry. The purpose of the US and the Philippine government for the continuing nature of EDCA is to avoid the controversy and the people’s outrage everytime EDCA expires and has to be renewed. Pres. Aquino learned a lesson when the US RP Military bases agreement, which has a term and a real expiry period, was not renewed by the Senate due to the outrage of the Filipino people. The provision allows for the continuing agreement that may go unnoticed by the people.

Additionally, it requires one year notice if ever one party terminates EDCA. Should the Philippines wish to regain control of certain “agreed locations”, it will have to wait for one long year before it can access its very own territory. While ordinary rental requires a month or two of notice, so as not to deprive the owner of the use of his property, the US forces who do not even pay rent for their military bases in the agreed locations have the luxury of using our territory for a year without cost or rent.

Legal and Constitutional Implications

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The EDCA is littered with provisions that violate a number of constitutional provisions and requirements. Its grant of benefits to the US forces also violate a number of Philippine laws and rules and regulations. The following constitutional provisions have been violated by EDCA:

1) Violates Article I on National Territory for carving out a part or the whole of the Philippine territory beyond the sovereignty and jurisdiction of the Philippines. Article I states that:

The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around between, the connecting the islands of the archipelago, regardless of their breadth and dimensions, from part of the internal waters of the Philippines.

2) Violates Article III, Section 1 for allowing the prepositioning and deployment of troops and war materiel by a foreign country to be used in wars:

Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

3) Violates Article III, Section 3 for surrendering, instead of securing the sovereignty and integrity of the national territory

Section 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.

4) Violates Article III, Section 7 for disregarding national sovereignty, national interest and the requirement of an independent foreign policy:

Section 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self- determination.

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5) Violates Article III, Section 8 for allowing the entry of nuclear weapons and surrendering its authority to monitor and check whether a foreign warship or aircraft carries nuclear weapons its failure

Section 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.

 6) Violates Article III, Section 11 for violating the people’s right

to access to courts, for taking out from the jurisdiction of the Philippine judiciary disputes vaguely described as “arising under the agreement”:

Section 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.

7) Violates Article VI, Section 28 (4) for allowing the US forces to use public utilities without paying taxes and other fees:

Sec. 28 No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress.

8) Violates Article VII, Section 21 for refusing to submit the EDCA to the Senate for its concurrence in the ratification:

Section 21. 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.

9) Violates Article VIII, Section 1 for carving out from the jurisdiction of the Supreme Court and the entire judicial system the many disputes that may arise out of acts or any abuse of the US forces in the execution of the agreement:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

10) Violates Article XI, Section 1 for the unpatriotic acts of the government negotiators in forging an agreement that is clearly disadvantageous to the Filipino people:

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Section 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.

11) Violates Article XVIII, Section 25 for allowing the entry of foreign troops, bases and facilities without a treaty whose effectivity is subject to the (i) role of the Senate to concur in the ratification; and (ii) the role of both Houses of Congress to decide whether or not to call for a national referendum to approve the same:

Section 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.

Violations of Various Philippine laws

The EDCA also violates many Philippine laws including their implementing rules and regulations:

(a)The Local Government Code for allowing US forces to use the lands and facilities of the LGUs and allowing access without consultation or approval of the LGUs.

(b)RA 9184 and the Government Procurement Act for contracting out public property such as lands and buildings to the US forces.

(c) Violating various Philippine laws which grants inspection powers and police powers to government agencies, by relinquishing this power and duty to the discretion of US forces in their agreed locations. It also violates the extra territoriality principle as to situs of immovable property or land.

(d)Violates various laws on public utilities such as the National Telecom Charter, Pilferage Acts as to water and electricity.

(e)Violates environmental laws for surrendering its power to enforce environmental standards. EDCA, while it discusses environmental issues, did not even provide for compensation or damages for

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destruction by US forces of the environment. We have a concrete experience on this issue with the US refusal to pay compensation for the damage of our Tubattaha reef. The US forces could insists that disputes such as these our outside the jurisdiction of Philippine judiciary as provided in EDCA.

One last word on the provisions of EDCA: there was no mention at all of China, or Spratlys, or Scarborough Shoal or Ayungin in the entire EDCA.

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