Termination of the R.P. – U.S. Visiting Forces Agreement: Its Legality and Impact on the Maritime Dispute in the West Philippine Sea
Roberto Francisco R. Beltran*
INTRODUCTION
Last February 11, 2020, the Duterte administration notified the U.S. Government that it would terminate the Visiting Forces Agreement (VFA) with the United States.[1] President Rodrigo Duterte made this decision without consulting Foreign Affairs Secretary Teodoro L. Locsin and Defense Secretary Delfin Lorenzana.[2] Secretary Locsin stated before the Foreign Relations Committee of the Philippine Senate last February 6, 2020, that “the continuance of the agreement is deemed to be more beneficial to the Philippines compared to any benefits were it to be terminated”.[3] Instead, “a vigorous review of the Visiting Forces Agreement is called for,” according to Secretary Locsin.[4] On February 10, 2020, the Senate of the Philippines adopted Senate Resolution No. 312 as Resolution No. 37 and earnestly requested “the President to reconsider his planned abrogation of the Visiting Forces Agreement in the meantime that the Senate is conducting a thorough review of the same.”[5] Undeterred, the Duterte administration pushed through with the termination of the VFA.[6] This recent development on the subsistence of the VFA has been brewing since President Duterte took office in 2016. As early as October 21, 2016, while on a state visit to China, President Rodrigo Duterte announced his “separation from the United States” at a forum attended by Filipino and Chinese businessmen and Chinese Vice Premier Zhang Gaoli.[7] He also said that the separation is not just military-wise but economically as well.[8] He also added that he has “realigned” himself with China and their ideological flow and will also go to Russia and talk to Russian President Vladimir Putin and tell him that “there are three of us against the world.”[9] These comments came amidst the rising tensions between the Philippines and China over the maritime dispute in the West Philippine Sea. These comments also came at a time when the United States seeks to reassert itself geopolitically in Asia after a decade of wars in Afghanistan and Iraq. However, with President Duterte, a clarification must be sought first before making any conclusions. Eventually, the President did clarify his comments, and no separation will happen between him and the U.S.[10]
Then, on December 16, 2016, during a speech in Davao City, President Duterte stated that America should be put on notice and prepare for the eventual repeal or abrogation of the VFA.[11] That eventuality was triggered on January 23, 2020, when President Duterte threatened to terminate the VFA due to the cancellation by the U.S. Government of the U.S. Visa of Senator Ronald “Bato” Dela Rosa during a speech in the province of Leyte.[12] Duterte went on to say that if the United States does not correct the cancellation of Senator Dela Rosa’s Visa, the VFA will be terminated.[13] In less than a month, the Duterte administration pulled the plug on the VFA on February 11, 2020.[14] On March 9, 2020, the Senate led by Senate President Vicente Sotto, III filed a Petition for Declaratory Relief and Mandamus with the Supreme Court to clarify its role as an institution in the cancellation of treaties.[15] Three months later, President Duterte would change his tune once again on the abrogation of the VFA by calling for a suspension of the termination of the VFA for six months starting on June 1, 2020 which is extendible for another six months, thereafter, the 180 day period for the effectivity of the termination of the VFA shall resume.[16]
The unilateral abrogation by President Duterte of the VFA with the United States, albeit later suspended, will have a severe and profound effect on the Philippines’ national security, particularly on the maritime dispute with China in the West Philippine Sea. Moreover, the establishment of a precedent in recognizing the power of the President to abrogate treaties unilaterally can affect not only the relationship of the Philippines with other countries and its ability to negotiate with them, but it also grants unbridled power in one chief executive to repeal treaties and concomitantly the laws enacted in furtherance of said treaties.
Whether the President can unilaterally abrogate a treaty seems simple enough for its advocates and critics. Senator Francis Tolentino stated that since there is no express provision found in Article VII, Section 21 of the 1987 Constitution[17] that provides for Senate concurrence in treaty abrogation, the Senate has no power in the termination of treaties and international agreements.[18] On the other hand, Senator Franklin Drilon argued that since the treaties and international agreements that the President enters into cannot be valid without Senate Concurrence, then withdrawal therefrom should only be valid with the Senate’s concurrence.[19] As simple as both Senators’ arguments may sound, such simplicity is only on the surface as there is no express provision in the 1987 Constitution that provides for the abrogation of a treaty. The silence of the 1987 Constitution on treaty abrogation amounting to a legal issue was mentioned by Justice Francis H. Jardeleza during the oral arguments of Pangilinan v. Cayetano[20] or otherwise known as the case on the Rome Statute withdrawal of President Duterte.[21] Justice Jardeleza pointed out during the said oral arguments that both the petitioners and the government cannot find textual support in the 1987 Constitution for their arguments on the unilateral abrogation from a treaty by the President.[22] What is certain is that there is, at the very least, a legal issue brought about by the unilateral termination of a treaty by the President, considering that the 1987 Constitution is silent on whether or not the President can abrogate treaties and international agreements without Senate concurrence. Recently, the Supreme Court, in its ruling in Pangilinan v. Cayetano,[23] ruled that the discretion of the President in withdrawing from a treaty is not absolute[24] and is subject to the guidelines that it adopted in “evaluating cases concerning the President’s withdrawal from international agreements.”[25]This article will analyze the said legal issue in relation to the termination of the VFA along with the possible impact on the maritime dispute between the Philippines and China on the West Philippine Sea.
* The author is a graduate of San Beda College Alabang School of Law (2016); Bachelor of Arts in Consular and Diplomatic Affairs, De La Salle—College of Saint Benilde (2010); and currently, an Associate Lawyer at Dennis P. Manalo Law Office. The author remains solely responsible for the views expressed herein.
[1] Sofia Tomacruz, Philippines sends VFA notice of termination to U.S., Rappler, Feb. 11, 2020, and updated on Feb. 12, 2020, available at https://www.rappler.com/nation/251508-philippines-terminates-visiting-forces-agreement-united-states (last visited May 8, 2020).
[2] Id.
[4] Paolo Romero, Locsin says VFA needs ‘vigorous review’, PHIL. STAR, Feb. 7, 2020, available at, https://www.philstar.com/headlines/2020/02/07/1991105/locsin-says-vfa-needs-vigorous-review (last visited May 8, 2020).
[5] S. Res. No. 37, 18th Cong., 1st Reg. Sess. (2020).
[6] Tomacruz, supra note 1.
[7] Ben Blanchard, Duterte aligns Philippines with China, says U.S. has lost, Reuters, Oct. 20, 2016, available at https://www.reuters.com/article/us-china-philippines/duterte-aligns-philippines-with-china-says-u-s-has-lost-idUSKCN12K0AS (last visited May 7, 2020).
[8] Id.
[9] Id.
[10] Neil Jerome Morales, Philippines’ Duterte says didn’t really mean ‘separation’ from U.S., Reuters, Oct. 22, 2016, available at https://www.reuters.com/article/us-china-philippines-idUSKCN12L28T (last visited May 7, 2020).
[11] Pia Ranada, Duterte wants VFA scrapped, but will ‘wait’ for Trump, Rappler, Dec. 17, 2016, available at https://www.rappler.com/nation/155785-duterte-visiting-forces-agreement-trump (last visited May 8, 2020).
[12] Sofia Tomacruz, After U.S. cancels Bato’s visa, Duterte threatens to scrap visiting forces agreement, Rappler, Jan. 23, 2020, and updated on Jan. 25, 2020, available at https://www.rappler.com/nation/250054-duterte-threatens-scrap-visiting-forces-agreement-january-2020 (last visited May 8, 2020).
[13] Id.
[14] Tomacruz, supra note 1.
[15] Petition by Senate of the Philippines, as represented by Vicente C. Sotto III, in his capacity as Senate President, Ralph G. Recto, in his capacity as Senate President Pro Tempore, Juan Miguel “Migz” F. Zubiri, in his capacity as Majority Leader, Franklin M. Drilon, in his capacity as Minority Leader, and Richard J. Gordon, and Panfilo “Ping” M. Lacson, in their individual capacity as members of the Senate of the Philippines, Mar. 9, 2020 (on file with the Supreme Court), in Senate of the Philippines v. Office of the Executive Secretary, G.R. No. 251977 (Supreme Court, filed Mar. 9, 2020).
[16] CNN Philippines Staff, PH suspends termination of Visiting Forces Agreement with US — DFA, June 2, 2020, and updated on June 3, 2020, available at https://www.cnnphilippines.com/news/2020/6/2/locsin-VFA-termination-suspension-.html (last visited June 7, 2020).
[17] 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.
[18] Francis N. Tolentino, Senator of the Philippines, Remarks at the Senate Floor (Feb. 11, 2020) (transcript available at https://news.mb.com.ph/2020/02/13/vfa-and-separation-of-powers/ (last accessed May 9, 2020)).
[19] Katrina Hallare, Drilon joins Senate leaders’ move to question VFA abrogation before SC, PHIL. DAILY INQUIRER., Feb. 16, 2020, available at https://newsinfo.inquirer.net/1229429/drilon-joins-senate-leaders-move-to-question-vfa-abrogation-before-sc (last visited May 9, 2020).
[20] Pangilinan v. Cayetano [hereinafter “Pangilinan”], G.R. No. 238875, March 16, 2021. This refers to the copy initially released by the Supreme Court.
[21] Ina Reformina, No need for Senate concurrence? SC tackles petitions vs Philippines’ ICC pullout, ABS-CBN News, Aug. 29, 2018, available at https://news.abs-cbn.com/news/08/29/18/no-need-for-senate-concurrence-sc-tackles-petitions-vs-philippines-icc-pullout (last visited May 10, 2020).
[23] Pangilinan, G.R. Nos. 238875.
[24] Id. at 4.
[25] Id. at 51.
