Analyzing the US-Philippines Enhanced Defense Cooperation Agreement
On April 28, immediately prior to President Barack Obama’s arrival in Manila for a state visit to the Philippines, Defense Secretary Voltaire Gazmin and U.S. Ambassador Philip Goldberg signed the long-awaited Enhanced Defense Cooperation Agreement (EDCA) at Camp Aquinaldo, Quezon City.
The EDCA is characterized by both governments as an executive agreement and not a formal treaty. It therefore does not require the consent of the Senate in either country.
The EDCA was the result of eight rounds of negotiations that initially commenced in August 2013. It was originally entitled Increased Rotational Presence Framework Agreement, according to Albert del Rosario, Secretary for Foreign Affairs. The change in the title reflects the desire of the Philippines and the U.S. for a more comprehensive agreement that covers the full range of enhanced defense cooperation. Increased rotational presence is just one modality of enhanced defense cooperation.
On April 29, Malacañang released the full text of the agreement. The Agreement on Enhanced Defense Cooperation is a ten-page document containing a preamble and 12 articles. Government spokesmen repeatedly describe the EDCA as a framework agreement that raises the scope of the 1951 Mutual Defense Treaty (MDT).
The Preamble to the EDCA refers to the obligations of the Philippines and the United States, under both the Charter of the United Nations and the MDT, to settle international disputes by peaceful means, not to endanger international peace and security, and to refrain from the threat or use of force “in any manner inconsistent with the purposes of the United Nations.”
These commitments could be read as aimed at disarming Chinese criticism that the EDCA is an aggressive pact aimed at containing China. The joint commitment to the UN Charter will resonate well with regional states.
Importantly, the Preamble notes that both parties “share an understanding for the United States not to establish a permanent military presence or base in the territory of the Philippines.” The Preamble later concludes, “all United States access to and use of facilities and areas will be at the invitation of the Philippines and with full respect for the Philippines Constitution and Philippine laws.”
These statements are an important reaffirmation of Philippines’ sovereignty. The Mutual Defense Board and Security Engagement Board, established under the MDT in 1958 and 2006 respectively, will determine the location, scope and timing of future rotational presence of U.S. forces.
Article 1, Purpose and Scope, states that the EDCA is aimed at deepening bilateral defense cooperation in order to maintain and develop the individual and collective capacities of the Philippines and the United States to resist armed attack as set out in their MDT.
The EDCA supports the goal of improving interoperability. With respect to the Armed Forces of the Philippines (AFP), the EDCA aims to address “short-term capabilities gaps, promoting long-term modernization, and helping maintain and develop additional maritime security, maritime domain awareness, and humanitarian assistance and disaster relief capabilities.”
The EDCA authorizes access to Agreed Locations in the Philippines by U.S. forces on a rotational basis. The two parties agree that United States forces may undertake “security cooperation exercises; joint and combined training activities; humanitarian assistance and disaster relief activities; and such other activities as may be agreed upon by the Parties.”
Article II sets out the definition of key terms used in the EDCA including U.S. military and civilian personnel covered by the 1998 Visiting Forces Agreement (VFA), U.S. contractors (not included under the VFA), agreed locations (AFP facilities), and designated authorities.
Article III sets out the terms and conditions of access to Agreed Locations by U.S. forces and contractors and their vehicles, vessels and aircraft. They are authorized to undertake: “training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies and materiel; deploying forces and materiel; and such other activities as the Parties may agree.”
The Philippines will make available Agreed Locations without “rental or similar costs” and will facilitate the transit of U.S. forces to public land and facilities, including those owned by local governments.
The United States is granted operational control of Agreed Locations for the purpose of altering, improving or constructing facilities. The Philippines will have access to the entire area of Agreed Locations in which U.S. forces operate.
Article IV covers prepositioned equipment, supplies and materiel to be used by U.S. forces. The U.S. is granted the right to store prepositioned materiel “including, but not limited to, humanitarian assistance and disaster relief equipment, supplies, and materiel” at Agreed Locations subject to advance notification.
The U.S. is not permitted to preposition nuclear weapons.
The U.S. is given access to, exclusive use of, and full title to all prepositioned materiel. The U.S. retains control over the disposition of prepositioned materiel including “the unencumbered right to remove prepositioned materiel at any time.” U.S. contractors are granted unencumbered access to Agreed Locations for all matters related to prepositioned materiel.
Article IV notes that prepositioned material could be used to benefit humanitarian assistance and disaster relief as well as the enhancement of individual and collective defense capabilities.
Article V covers ownership. The Philippines retains ownership over all Agreed Locations and all buildings and permanent structures, including those improved by the United States. The U.S. is required to turn over all or part of any Agreed Locations and fixed structures when they are no longer required under the terms of the EDCA.
U.S. forces and contractors retain title to all equipment, materiel, supplies and moveable property placed in Agreed Locations. Article V makes provision for the possible transfer or purchase of excess U.S. equipment to the Philippines.
Article VI, Security, sets out the individual and joint responsibilities for the security of Agreed Locations and U.S. property and personnel. Both parties are enjoined to cooperate to ensure the protection, safety, and security of U.S. forces and contractors and “security of official United States information” in the Philippines.
The Philippines has primary responsibility for security of the Agreed Locations. U.S. forces are authorized “to exercise all rights and authorities within Agreed Locations that are necessary for the operational control or defense” including the protection of U.S. forces and contractors.
Article VII sets out the responsibilities of the Philippines for the provision of public utilities, such as electricity and water, to U.S. personnel operating in Agreed Locations. This article also provides for the provision of radio spectrum frequencies for U.S. personnel operating radio communications in Agreed Locations.
Article VIII, Contracting Procedures, permits the United States to contract for materiel, supplies, equipment and services without restriction. However, the U.S. agreed to “strive to use Philippine suppliers of goods, products and services to the greatest extent practicable in accordance with the laws and regulations of the United States.”
Article IX addresses environmental, human health, and safety issues. Both parties agreed to implement the EDCA in a manner consistent with the protection of the environment and human health and safety by pursuing a preventative rather than a reactive approach. Both agreed to share relevant information and to deal with any problems that arise expeditiously to prevent lasting damage.
Under Article IX, the U.S. agreed to respect Philippine environmental, health, and safety laws and standards. Further, the U.S. agreed that it would not intentionally release any hazardous materials or waste; if an accidental spill occurs, the U.S. agreed to take expeditious action to contain and address environmental contamination.
The U.S. further agreed to implement the most protective environmental compliance standards reflected in U.S., Philippines, and international law. Both parties agreed to a periodic review to ensure that Philippine standards are accurately applied.
Article X, Implementation, provides for the Philippines and the U.S. to enter into implementing agreements to carry out the provisions of the EDCA at Agreed Locations and on matters of funding. Implementing agreements may address additional matters related to the presence of U.S. personnel at Agreed Locations.
The U.S. and the Philippines will consult regularly regarding the implementation of the ECDA.
Article XI, Resolution of Disputes, provides for direct consultations to settle disputes. This article prohibits any party from taking disputes or other matters of contention to any national or international court, tribunal, similar body, or third party for settlement unless mutually agreed.
Article XII includes provisions for Entry into Force, Amendment, Duration and Termination. The ECDA will enter into force on exchange of diplomatic notes. Any annex added to the EDCA will form an integral part of the agreement.
The EDCA, and any annex, may be amended by written agreement by the Philippines and the United States.
The EDCA has an initial term of ten years and will remain in force automatically after this date. Either party may give a year’s written notice of its intention to terminate the agreement.
The day the EDCA was signed, President Obama arrived in Manila for a two-day state visit. After meeting with President Benigno Aquino, both presidents held a joint press conference. With respect to the EDCA, President Aquino stated, “[it] takes our security cooperation to a higher level of engagement, reaffirms our country’s commitment to mutual defense and security, and promotes regional peace and security.”
President Obama, in answer to a question about the EDCA, stated:
With respect to the new Defense Cooperation Agreement that’s been signed, the goal here is wide-ranging. We’ve had decades of alliance with the Philippines, but obviously in the 21stcentury we have to continue to update that. And the goal for this agreement is to build Philippine capacity, to engage in training, to engage in coordination – not simply to deal with issues of maritime security. But also to enhance our capabilities so that if there’s a natural disaster that takes place, we’re able to potentially respond more quickly; if there are additional threats that may arise, that we are able to work in a cooperative fashion.
In other words, the EDCA provides a legal framework for the increased rotational presence of U.S. armed forces in the Philippines. The precise details of when, how many, what types and the location of this rotational presence will be worked out in the future. This may well prove to be a test case of the ability of the U.S. to rebalance its forces in Southeast Asia.
It is important to note that the 1951 Mutual Defense Treaty remains the cornerstone of the Philippine-U.S. alliance. To underscore this point, Foreign Secretary del Rosario issued the following statement on April 30:
Under the Mutual Defense Treaty, the U.S. will come to the assistance of the Philippines if our metropolitan territory is attacked or if our armed forces are attacked in the Pacific area.
In 1999, in a diplomatic letter, the U.S. affirmed that the South China Sea is considered as part of the Pacific area.
What remains unresolved and ambiguous is whether the newly signed EDCA will act as a deterrent in the immediate future against further encroachments by Chinese Coast Guard vessels at Second Thomas Shoal. The Chinese Coast Guard has twice attempted to block resupply to the Philippine marines stationed on the BRP Sierra Madre grounded on the shoal. The BRP Sierra Madre is still commissioned in the Philippines Navy. Chinese spokesmen also have threatened to tow the BRP Sierra Madre off the reef where it is beached.
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