VFA termination could scrap EDCA, suspend Mutual Defense Treaty — analysts

MANILA, Philippines — President Rodrigo Duterte's spoken order to terminate the Visiting Forces Agreement between the Philippines and the United States may affect other security pacts with Washington despite the Palace earlier saying it would not.

Duterte is terminating the VFA for what the administration sees as US meddling in domestic issues, the latest of which was in cancelling Sen. Ronald Dela Rosa's US visa. Although Dela Rosa said the US did not explain why the visa was cancelled, it is believed that that this was over alleged extrajudicial killings in the "war on drugs" and Sen. Leila De Lima's continued detentions.

"I am terminating (the VFA). I was not joking. The day I said it, it’s the day that I decided to terminate it," Duterte said Wednesday night, although terminating the agreement requires a formal written notice.

The Department of Justice earlier this week said it has been tasked with conducting a preliminary impact assessment on the possible termination of the VFA, a possibility that Duterte said Wednesday night is already a certainty.

It was earlier reported that the Cabinet Cluster on Security, Justice and Peace—the Department of National Defense, Armed Forces of the Philippines, Department of Foreign Affairs, Philippine National Police, National Bureau of Investigation, National Intelligence Coordinating Agency and the Office of the Executive Secretary—would meet on January 31 to assess the potential impact of scrapping the agrement.

The Senate, meanwhile, had meant to include the 1951 Mutual Defense Treaty (MDT) and the Enhanced Defense Cooperation Agreement (EDCA) in a review that it had planned to do of the VFA.

READ: Palace says other defense deals with US like EDCA won't be scrapped

'VFA scrapping could undo EDCA'

Jose Antonio Custodio, a military historian and defense analyst, said ending the VFA would "undo" EDCA.

"Because VFA is a [Status of Forces Agreement]. It governs the legality of US military presence in [the Philippines]," Custodio told Philstar.com.

According to a 2012 report from the US Congressional Research Service, SOFAs generally establish the framework under which US military personnel operate in a foreign country.

SOFAs also determine how domestic laws of the foreign jurisdiction, in this case the Philippines, apply to US personnel in the host country.

"A SOFA may include many provisions, but the most common issue addressed is which country may exercise criminal jurisdiction over US personnel," the report read.

Gregory Poling, director of the Asia Maritime Transparency Initiative, also said terminating the VFA would "effectively abrogate" EDCA as well, but this would have to be decided by the DOJ.

The preamble of the EDCA states that the agreement is "in furtherance" of the 1951 MDT and the 1998 VFA.

Section 1, Article I of the EDCA reads:

This Agreement deepens defense cooperation between the Parties and maintains and develops their individual and collective capacities, in furtherance of Article II of the MDT, which states that "the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual and colletive capacity to resist armed attack," and within the context of the VFA.

Poling noted that the Supreme Court upheld both the VFA and EDCA as executive agreements as the Philippine government argued that the defense pacts are necessary for the Philippines to meet its obligations under Article 2 of the MDT.

He added that without the VFA and EDCA, the Philippines would not be upholding its end of the deal and the US could argue that its responsibilities under Article 4 of the MDT are suspended.

Under Article 4 of the MDT:

Each Party recognizes that an armed attack in the Pacific area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes.

In March 2019, US State Secretary Mike Pompeo assured the Philippines that any armed attack against Filipino forces, aircraft or public vessels in the West Philippine Sea would trigger mutual defense obligations under Article 4 of the MDT.

"In other words, the Philippines won't allow the US the access it needs to help defend the Philippines or help with AFP modernization, then the United States cannot possibly fulfill its mutual defense obligations if Philippine forces come under attack," Poling told Philstar.com.

Abrogating the VFA would also have an impact on the Philippines' ties with the US in terms of counterterrorism and disaster relief efforts.

"Without US intelligence collection and surveillance help, Marawi would have lasted much longer with higher casualties. Without the VFA, American forces couldn't have been first on the scene in Tacloban evacuating victims of Yolanda and delivering supplies," Poling said.

US troops previously provided "technical assistance" during the Philippine government's campaign against ISIS-inspired terrorists in Marawi City in 2017.

In 2017, the Balikatan exercises between the Philippines and the US focused on humanitarian assistance and disaster response following Duterte's previous remark that he wants to end the annual war games.

The joint military exercises would then focus on counterterrorism and mutual defense in 2018 and 2019.

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