MANILA, Philippines – On Tuesday, January 12, the Supreme Court voted 10-4-1 to declare constitutional the Enhanced Defense Cooperation Agreement (EDCA), the military deal signed by the Philippines and the United States in 2014.
The SC agreed with Malacañang in its position that EDCA is an executive agreement and does not need the Senate’s concurrence. (READ: What 2016 bets from the Senate think of SC’s EDCA decision)
The EDCA gives US troops, planes, and ships increased rotational presence in Philippine military bases, and allows Washington to build facilities to store fuel and equipment there.
In declaring the EDCA constitutional, the SC noted the President’s power to enter into an executive agreement on foreign military bases, troops, or facilities if it aims to implement an existing law or treaty, and if it is not the very instrument that allows the presence and entry of these foreign troops.
The High Court said that constitutional restrictions governing the entry of foreign troops or facilities refer only to the initial entry. The Visiting Forces Agreement – a treaty ratified by the Senate in 1999 – already allowed the entry of US troops.
“Once entry is authorized, the subsequent acts are thereafter subject only to the limitations provided by the rest of the Constitution and Philippine law, and not to the Section 25 requirement of validity through a treaty. The VFA has already allowed the entry of troops in the Philippines,” the court said.
It added, “The admission and presence of US military and civilian personnel in Philippine territory are already allowed under the VFA, the treaty supposedly being implemented by EDCA. What EDCA has effectively done, in fact, is merely provide the mechanism to identify the locations in which US personnel may perform allowed activities pursuant to the VFA. As the implementing agreement, it regulates and limits the presence of US personnel in the country.”
The court also said that the military deal is consistent with the purpose and framework of the VFA and the Mutual Defense Treaty (MDT) between the Philippines and the US.
Concerning the creation of “agreed locations,” or areas where US personnel will be allowed to perform “activities approved by the Philippines,” the SC noted that the Philippine government retains primary responsibility and sovereignty over these locations.
“Hence, Philippine law remains in force therein, and it cannot be said that jurisdiction has been transferred to the US,” the court said.
The SC also said there was no basis to fears that the Philippines may be targeted by enemies of the United States, because the “agreed locations” in the Philippines cannot be considered US territory or bonafide US military facilities.
In the event that an agreed location comes under attack, the SC said that the Philippines has ample legal protection under international law “that would ensure its territorial integrity and national security.”
“Therefore, there is no basis to invalidate EDCA on fears that it increases the threat to our national security. If anything, EDCA increases the likelihood that, in an event requiring a defensive response, the Philippines will be prepared alongside the US to defend its islands and insure its territorial integrity pursuant to a relationship built on the MDT and VFA,” it added.
Read the SC’s 118-page decision, penned by Chief Justice Maria Lourdes Sereno, below.
‘EDCA necessary to defend PH’
In his separate concurring opinion, SC Associate Justice Antonio Carpio argued that the EDCA was necessary to attain the purpose of the two countries’ MDT, which aimed to “declare publicly and formally their sense of unity and their common determination to defend themselves against external armed attack.”
He cited the looming threat of China’s military power in the contested West Philippine Sea (South China Sea), which Beijing claims through its 9-dash line despite the protests of other neighboring countries. The Philippines has brought the dispute to an international court for arbitration.
In his 10-page opinion, Carpio outlined a brief history of China’s actions in the South China Sea, such as claiming Mischief Reef in 1995 and Scarborough Shoal in 2012. It also built artificial islands supposedly for civilian purposes, but the SC justice noted that the islands’ configuration suggested an air and naval base surrounding Philippine-occupied islands in the disputed Spratly Islands.
To successfully defend the Philippines against the possibility of armed aggression, Carpio said the prepositioning of war materials is essential.
“This is what the EDCA is all about – the prepositioning in strategic locations of war materials to successfully resist any armed aggression. Such prepositioning will also publicly telegraph to the enemy that any armed aggression would be repelled,” Carpio said.
He added, “The enemy must know that we possess the capability, that is, the war materials, to defend the country against armed aggression. Otherwise, without such capability, we telegraph to the enemy that further seizure of Philippine islands, rocks and reefs in the South China Sea would be a walk in the park, just like China’s seizure of Mischief Reef and Scarborough Shoal.”
The SC justice said China is expected to “aggressively enforce” its claim over the South China Sea using its contested 9-dash line. The Philippines, he said, stands to lose 381,000 sq km of its exclusive economic zone in the West Philippine Sea.
“The Philippines, acting by itself, cannot hope to deter militarily China from enforcing its 9-dashed lines claim in the West Philippine Sea…Military and security analysts are unanimous that there is only one power on earth that can deter militarily China from enforcing its 9-dashed lines claim, and that power is the United States,” Carpio said.
“Without the EDCA, the MDT remains a toothless paper tiger. With the EDCA, the MDT acquires a real and ready firepower to deter any armed aggression against Philippine public vessels or aircrafts operating in the West Philippine Sea,” he added.
Read Carpio’s separate concurring opinion below.
SC Associate Justices Teresita Leonardo-de Castro, Arturo Brion, and Marvic Leonen penned dissenting opinions. (READ: Dissenters on EDCA: It exceeds scope of defense treaties) – Rappler.com