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The Senate on Thursday approved on second reading a measure seeking to renegotiate the 10-year Visiting Forces Agreement (VFA) of the Philippines with the United States. Resolution 1356 urges the Department of Foreign Affairs to renegotiate the VFA, or terminate it if the US government refuses renegotiation. Sen. Miriam Defensor Santiago and six other senators who signed the resolution wanted a renegotiation because they claim that the agreement is unclear about the scope, duration of stay, and the extent of engagement of American forces in the Philippines. In her sponsorship speech of the resolution, Santiago insisted that the VFA violated the Philippine Constitution because the US as a contracting party should have recognized the agreement as a treaty, and not just an executive agreement.
“Has the US government recognized the VFA as a treaty? The answer is no," Santiago said. In an earlier speech, Santiago, co-chairperson of the Legislative Oversight Committee on the VFA, claimed that she found out about a report that a US military commander allegedly admitted that US troops were engaged in combat operations in the Philippines. The VFA disallows US troops from engaging in combat operations except for self-defense. Santiago also claimed that some provisions in the VFA were vague, especially on crucial terms such as "visit," "temporary," and "activities." Santiago said the failure to define the terms was done "willfully and in bad faith." “These undefined terms are each a lacuna, a blank space. These lacunae in substantive information are purposely devious, in order to allow the US forces to stay indefinitely in our country," she said. “Thus, built into the VFA is a mechanism of flexibility that can deploy the US military forces in Philippine territory in a broad spread of strategic purposes, making the VFA an omnibus of US military presence of various forms and of varying objectives," she added. She also claimed that the VFA does not provide the Philippines automatic help from the US because the Mutual Defense Treaty is only mentioned in the agreement's preamble and not in in the main text of the pact. Moreover, Santiago belied claims that the Philippines benefited from the agreement. “The US calls the Philippines as a major non-NATO ally, but treats us like a shabby country cousin," she said. "In return for the VFA, what we receive is paltry, mostly in the form of Excess Defense Articles, in other words, US military junk." Not the first time This was not the first time that Philippine lawmakers questioned the agreement ratified on October 5, 1998 by then President Joseph Estrada through then Foreign Affairs Domingo Siazon, and concurred in by the Senate on May 27, 1999 as mandated under Section 21, Article VII of the 1987 Constitution. (The said section states that, “No treaty or international agreements shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.") In January 2006, months after Suzette “Nicole" Nicolas accused US Marine Lance Cpl. Daniel Smith of raping her in Subic, lawmakers called for the termination of the agreement and its renegotiation into a pact that would allow the Philippines to have custody over US soldiers violating Philippine laws. Under the pact, American soldiers who violated Philippine laws, including those who are accused of non-bailable heinous crimes enjoy extraterritorial privileges, which means that while being tried under a Philippine court, they could be taken under the custody of the embassy or U.S. authorities. Under the agreement, the Philippine court is given only a year to finish the proceedings of a case involving a US soldier. The constitutionality of the VFA was also challenged twice before the Supreme Court, but the high tribunal dismissed the petitions against the agreement in its October 2000 and February 2009 decisions. Not a treaty under US laws? The non-government Alternative Law Groups (ALG) has been claiming that the VFA did not become a binding agreement because it failed to satisfy the second constitutional requirement that it be recognized as a treaty by the other contracting state or the US government. According to ALG coordinator, lawyer Marlon Manuel, Section 2, Article 2, Clause 2 of the U.S. Constitution provides that the President "shall have the power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators concur. “Since the U.S. Senate did not ratify the RP-US VFA, it is not recognized as a treaty under US laws", said Manuel. “The ratification of the VFA under Philippine and U.S. Constitutions was one-sided and thus, incomplete." “A treaty is a formal agreement between sovereign nations. No agreement could ever materialize if there is no mutual concurrence. So how could the Philippine government oblige itself to follow something which was not constitutionally agreed upon by the contracting parties who were supposed to exchange ratifications?" he added. Manuel said that on the part of the U.S. government, the VFA is more of a sole presidential or executive agreement, which "is inferior to a treaty". He said that under the U.S. supremacy clause, the Constitution, the federal statutes and the U.S. treaties are the only established "supreme laws of the land". Like all other interminable international agreements, Manuel said the VFA would only subsist upon the consent of the parties involved. "Neither of the parties is bound forever by the VFA. The agreement maybe terminated upon a party's written notice of its intention to end the agreement, which becomes effective after 180 days from such notification," he said. - GMANews.TV