This is not the first time I am invited to lecture at NDCP. I had been invited three times before, the first time must have been 30 years ago; but in previous occasions military intelligence objected and the invitation had to be withdrawn. Perhaps the NDCP has learned the value of academic freedom, perhaps the intelligence has become less paranoid, perhaps I am no longer perceived as a security risk, perhaps the democratic space is for real. Whatever the reason, I am grateful for this opportunity to have an exchange of ideas with friends in the military.
The four speakers are asked what we think of the draft Visiting Forces Agreement (VFA). Let me put my thought bluntly: This is a lousy document. If I were his foreign policy adviser, I would urge President Estrada to return it to the DFA for renegotiation, instead of forwarding it to the Senate for ratification. If as Sec. Siazon warns, the Americans will refuse to renegotiate, then we consign it to where it properly belongs - in the archives of spurned agreements.
This draft VFA suffers from many flaws but I will focus on three: First, it is an affront to our Constitution. Second, it grants extraterritorial rights to Americans. And, third, it can involve us in unnecessary international conflicts.
Let me start with the first. Our 1987 Constitution [Art. II, Sec. 8] provides: "The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory." We reduce declaration of state policy into an empty phrase unless every treaty we enter into with a known nuclear power guarantees our right of inspection. The draft VFA does not, therefore we should renegotiate it to insert a clause authorizing teams of Filipino scientists and military officers to board every nuclear-capable aircraft and naval vessel to ensure that they are not carrying nuclear weapons. Self-respecting countries like New Zealand insist on this right. This is imperative in our case because the no-nukes policy is written in our Constitution.
My second objection pertains to extraterritoriality. A sovereign nation, as we are supposed to be, subjects everybody in its territory to its laws. Its government must have full jurisdiction over any person - citizen or visiting alien - who commits a crime in its territory. But the draft VFA subtly obliges the Philippines to abdicate this right with respect to American soldiers and civilians who come here in connection with some undefined military activities. This is the essence of the VFA's article on criminal jurisdiction (Art. V). It is the centerpiece of this document, all other articles are nothing but footnotes to Art. V.
A careless reading of Art. V may overlook the extraterritoriality proviso
hidden beneath its convoluted language. After paying lip service to our
right of primary jurisdiction over American personnel who violate our laws,
Sec. 3 (d) states:
"Recognizing the responsibility of the United States military authorities
to maintain good order and discipline among its forces, Philippine
authorities will, upon request by the United States, waive their primary
right to exercise jurisdiction except in cases of particular importance to
the Philippines. If the Government of the Philippines determines that the
case is of particular importance, it shall communicate such determination
to the United States authorities within twenty (20) days after the
Philippine authorities receive the United States request."
Note the mandatory verb "will": the Philippines will have to waive its sovereign right of primary jurisdiction. The appended exception is meaningless because in "cases of particular importance to the Philippines" we can only "request" the US military authorities for recovery of our jurisdiction within twenty (20) days. This being a mere "request," the US is not bound to accede. A "request" can be refused. In other words, the US will decide whether erring American personnel can be tried in our courts under our laws.
Minus the verbal hocus-pocus, this is what Art. V is trying to say: If an American soldier or civilian who comes here under the VFA commits a crime, he will not be subject to Philippines laws, he cannot be tried by Philippine courts, and he can only be detained in facilities acceptable to the American authorities. This is another outrage to out sovereignty. It puts the Americans above our laws. They will enjoy extraterritorial rights. Pumatay man sila ng Pinoy o gumahasa ng Pinay, hindi sila kailangang humarap sa ating hukoman at hindi maaring parusahan ayon sa ating batas.
Sec. 2 (d) and Sec. 2(e) of the VFA are familiar because they are practically lifted from the Military Bases Agreement which our Senate refused to renew in 1991. We should not forget that the US Navy and Air Force had used such formulations several times to rescue their servicemen who raped Filipino women or killed Filipino citizens in Clark and Subic.
My third objection pertains to the ambiguity of its coverage. The draft VFA talks of activities involving American and Filipino troops, but nowhere is the term "activities" defined. The DFA and DND officials tell us that this refers only to training exercises. If so, why not specify it in the treaty itself? Why not be as forthright as a similar agreement we signed with Singapore in 1994? Even the title makes the nature of the activities: An Agreement between the Government of the Republic of Singapore and the Government of the Republic of the Philippines for Military Training and Cooperation. Moreover, Art. IV, Sec. 2 of our agreement with Singapore provides that both parties shall conclude protocols on (1) the subject of training, (2) the principles of training, (3) the period of training and its commencement and completion dates, (4) financial arrangements, and (5) other matters necessary to carry out the training.
By leaving the term "activities" vague, the draft VFA allows the Americans to undertake any kind of military operations based in the Philippines, like launching Cruise missiles against neighboring countries or engaging in hot pursuit of suspected terrorists. If such military operations which constitute a brazen disregard of our sovereignty are not what the authors of the draft agreement have in mind, why not insert a well defined (and therefore restrictive) statement of purpose?
True, the VFA requires the consent of the Philippine government for every undertaking. But what agency of the Philippine government will decide on what activities to undertake? According to Sec. Siazon, the Mutual Defense Board. But the Mutual Defense Board is NOT a Philipping government agency. It is a US-Philippine conference committee. Besides, we do not trust the DFA and DND officials to assert our sovereignty in the Mutual Defense Board because they have amply demonstrated in the course of the current debate that they are utterly subservient to the United States. The Filipino people, in particular the Senate, should have a say.
Since the Mutual Defense Board operates in utmost secrecy, such vital foreign policy decisions are taken out of the public view and placed beyond the Senate's control. If, for instance, the DFA and DND secretaries who represent us in the Mutual Defense Board accede to an American proposal to use our airfields for launching a missile attack on, say, China, we can be drawn into a war that is not of our own choosing.
As a general rule, the stronger party in a bilateral negotiation prefers ambiguity because it allows a larger room for maneuver; but the weaker party - if mindful of its national interest - must insist on concrete formulations because it wants to limit the capacity of the stronger party to act unilaterally. In the particular case of the VFA, ambiguity is extremely dangerous for the Philippines. As I just pointed out, it can involve us in unnecessary conflicts with America's potential enemies in the region. And it runs counter to our avowed foreign policy objective of developing good relations with our neighbors.
This is the fundamental issue: Are our interests identical with those of America? Are America's enemies necessarily our own? I believe that our national interests may be different and, at times, contrary to those of the US. Therefore, we must pursue an independent foreign policy.
I have always dissociated myself from the position of friends on the Left and in the nationalist movement who advocate drastic cuts in the military budget and oppose modernization of the armed forces. I recognize that, after kicking out the Americans from Clark and Subic, we must invest more to strengthen our coast guard, air force and navy. We need a strong armed forces to pursue an independent foreign policy.
But we don't achieve that objective by relying on the US military presence. In fact, the reason why our navy and air force lag behind in Southeast Asia is that, since 1946, our security concept was premised on the presence of American naval and air bases in the Philippines. We should have seriously reexamined this concept once we junked the Military Bases Agreement. I am sad to note that, in arguing for the VFA, our leaders are making it abundantly clear that their thinking on security matters is still grounded on military dependence on the US. But even if we grant that we must depend on the US for the modernization of our armed forces, the VFA still appears to be a lousy treaty. Sec. Mercado says that we need the VFA because the current economic crisis inhibits us from upgrading our weapons system. In view of this crisis, he suggests, we have to set aside the principles he invoked when opposing the Military Bases Agreement. But if we must indeed be pragmatic, why do they want us to accept a VFA which does not commit the US to supply us with modern weapons of war? Nowhere in the VFA is the US obliged to help in modernizing our weapons system.
Neither does the VFA oblige the US to come to our side in case of conflict with a third country. We are told that the VFA is just an implementing agreement to the Mutual Defense Treaty (MDT). That makes it worse. The MDT is a neo-colonial instrument designed to keep us on the American side in the Cold War. It should have been abrogated after we expelled the US bases. Senator Enrile himself suggested this and I regret that he did not pursue this wise proposal.
Senators Recto and Tanada tried to block ratification of MDT on the ground that it does not contain an automatic retaliation clause. We could be certain that the US would declare war within 24 hours if the Philippines were attacked by a communist power. In fact, we didn't need a treaty for that because the US was then committed to the strategy of containment. But if the aggressor happens to be a friend of the US, the latter is under no obligation to come to our rescue. Under the Mutual Defense Treaty the US merely promises to exhaust its complex constitutional procedure.
China's recent incursion into the Spratly Islands has been cited as argument for reactivating the Mutual Defense Treaty through the VFA. One must be pretty naïve to expect the US to rescue the Mischief Reef for the Filipinos. The US has never recognized Philippine sovereignty over what we call Kalayaan. Quite the contrary, it has implicitly recognized the Chinese claim to the Spratly by permitting an American company - the Crestone Energy Corporation - to sign an oil exploration agreement with China in 1992.
Sec. Siazon (who, unlike Sec. Mercado, has no nationalistic pretensions) takes a different tack. He warns us of grave economic consequences if the Senate rejects the VFA. According to him the US is still our number one trading partner, that we depend on the US sugar quota, etc. What diplomatic message is he sending the US with this line of reasoning? Parang sinasabi niya na napaduwag tayo, na takot na takot tayo sa economic sanctions. What kind of diplomat is this who exaggerates the weakness if the country he represents instead of projecting the political will of its leadership? How can we ever strike a good bargain in our international relations if this is the way our Secretary of Foreign Affairs conducts diplomacy?
Siazon's subservient posture does not match contemporary reality. In this age of globalization, when neo-liberalism is the dominant ideology, the transnational corporations make investment decisions independently of their governments. That's why these private entities are pressuring the US government to relax the economic sanctions on Burma, Cuba and even Iraq, and some of them have actually found ways of going around these sanctions. In the unlikely event when the White House and the State Department decide to impose sanctions on a friendly country like the Philippines for rejecting the VFA, this will not sit well with the American traders and investors.
Sec. Siazon's argument is bound to make the Americans think we are indeed a mendicant nation who can be easily swayed by symbolic gestures. A few weeks ago Jeremy Bratt, the Research Analyst of the Center for Strategic and International Studies published an article on the VFA explaining why it is necessary for the forward deployment of US forces in Southeast Asia. Then he suggests that the opposition can be placated if (1) the US offers to clean up the toxic wastes left behind in Clark and Subic and (2) if the US returns the Balangiga bells. Ang mura talaga natin sa paningin ng mga Kano. And our own Secretary of Foreign Affairs is reinforcing this image.
As far as we who oppose the VFA are concerned, we would rather suffer their
toxic waste and let the Americans can keep those bells. Most important to
us is sovereignty.