No Legal Obstacle to Abrogating VFA, Lawyer Says

Published on February 28, 2009

Amid snowballing calls for the termination of the Visiting Forces Agreement (VFA), Malacañang through one of its spokespersons has argued that the said pact cannot be abrogated since doing so would affect the Mutual Defense Treaty (MDT) between the Philippines and the US. But lawyer Neri Javier Colmenares, secretary-general of the National Union of People’s Lawyers (NUPL), disagrees.

BY ALEXANDER MARTIN REMOLLINO
Bulatlat

Amid snowballing calls for the termination of the Visiting Forces Agreement (VFA), Malacañang through one of its spokespersons has argued that the said pact cannot be abrogated since doing so would affect the Mutual Defense Treaty (MDT) between the Philippines and the US. “Well, you know the VFA is a treaty supplemental of the Mutual Defense Treaty of 1951 and therefore it’s a matter that needs to be discussed very, very seriously,” Executive Secretary Eduardo Ermita said in a press briefing last week.

Ermita also said the VFA “must be respected” especially since the Supreme Court had recently upheld it as constitutional.

But lawyer Neri Javier Colmenares, secretary-general of the National Union of People’s Lawyers (NUPL), disagrees.

“The MDT is for defense of the country from external attacks,” Colmenares said in an interview. “The VFA is not for external attacks.”

Article III of the MDT provides that:

The Parties, through their Foreign Ministers or their deputies, will consult together from time to time regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial integrity, political independence or security of either of the Parties is threatened by external armed attack in the Pacific.

Meanwhile, a fact sheet posted on the Department of Foreign Affairs (DFA) website, “Fact Sheet: VFA Helps Build a Strong Republic”, highlights the capture and killings of members and leaders of the bandit Abu Sayyaf Group (ASG) among the supposed accomplishments under the VFA. “Through logistic and intelligence assistance received from the United States, Philippine forces have captured 38 members of the Abu Sayyaf Group (ASG) and killed 127 others, including Khadafy Janjalani, ASG spokesperson Abu Solaiman, and ASG sub-commander Ismin Sahiron,” the DFA fact sheet states.

“Secondly, the Supreme Court cannot say that the MDT is the mother agreement,” Colmenares added. “How can the son or the daughter be the son or the daughter and yet not say so? The VFA only mentions the VFA, but does not acknowledge it (MDT) as its parent agreement.”

The VFA’s Preamble states that the Philippine and US governments “reaffirm” their obligations under the MDT, but nowhere in the agreement is it indicated that the MDT is its parent agreement.

“Thirdly, if a treaty is a mother treaty, the supplemental treaty must be concurred in and ratified by both parties also,” Colmenares also said.

Passed by the Philippine Senate and signed by then-President Joseph Estrada in 1999, the VFA among other things grants extra-territorial and extra-judicial “rights” to US servicemen visiting the Philippines for “military exercises”. It was not, however, recognized by the US government as a treaty.

Colmenares also cited the recent US Supreme Court ruling on the case of Medellin v. Texas, in which it is stated that even if a treaty is recognized as such by the US government, it is not enforceable in the US without legislation unless the treaty is self-executing. “That strengthens our position that the VFA is not a treaty,” the NUPL leader explained.

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