Analysis on EDCA: Part I

THE country’s decision to grant the US to reestablish their military bases under the guise of Enhanced Defense Cooperation Agreement (EDCA) is in violation of our Constitution.

The Constitution prohibits the stationing of foreign military bases in the county.

First, the 1987 Constitution is clear the establishment of foreign military bases is prohibited through a treaty ratified by the Senate.

Second, the return of the US bases under the name of EDCA was only signed through an Executive Agreement by the US President and was not ratified by the Senate.

In fact, it was only signed by then Defense Secretary Voltaire Gazmin and by then US Ambassador to the Philippines Arthur Goldberg.

The return of the US bases stealthily began as Visiting Forces Agreement (VFA), meaning US forces will not be allowed to build permanent military structures but only to occasionally visit the country.

The regularity of the visit resulted in the designation of some areas under the revised agreement called Enhanced Defense Cooperation Agreement (EDCA), thereby allowing the US to establish permanent structures for their military personnel, ports and airports, grounds, communications and radar sites to such designated centers but specifically limited.

We violated our Constitution when we allowed the entry of nuclear weapons, thus making a bad joke by not confirming whether US warships carry with them nuclear weapons.

It was the first sign the US bases would only serve its own interest.

Unlike in the old military bases agreement we signed in 1947 which granted the US 99 years to stay before their termination in 1991, they were only limited to two, namely Clark Air Base in Pampanga and Subic Naval Base in Zambales.

With the US signing of EDCA in 2014, that removed the limitations granted them for their operations in the country such as the issue of criminal jurisdiction for crimes committed by US servicemen in the country, the rights of Filipino workers working inside the bases, payment of taxes to dutiable items imported by servicemen, etc.

To date, the US bases have access to the free use of water and electricity.

The advent of the BBM administration granted them four additional bases for a total of nine. The US invoked the of freedom of navigation. While of freedom of navigation can be exercised with certain limitations by observing international law, that freedom can only be exercised by countries littoral to that body of water as in the case of the Philippines and China navigating through the South China Sea (SCS).

The US cannot be entitled to that right, it being a lessor and not a littoral state to the SCS.

Moreover, the freedom of navigation only applies to commercial shipping that would require a certain purpose and intentions in the pursuit of trade and commerce.

Naval ships operating in the SCS like those of the US, UK, Australia, Japan, India, and South Korea cannot enjoy the freedom of navigation as they are not littoral to the SCS to grant them the right to regularly patrol the SCS.

Otherwise stated, they do not enjoy the status of littoral states to be given the right to patrol that SCS.

The US, Australia and the UK should refrain from patrolling SCS through AUKUS much that they are armed with nuclear power submarines, and constitute a threat to the security of the region.

It is an act of provocation that has the possibility of ending in a conflict.

The US cannot apply the Monroe Doctrine as applied in South America where it could exercise hegemonism.

Admittedly, the whole of SCS cannot be owned by China.

While China claims the Nine-Dash Line as part of its territorial waters, neither it is preventing the passage of shipping lanes for the purpose of freedom of navigation like preventing ships from observing the 12-mile limit, respecting the territorial waters of states littoral in the SCS, or the expanded 200-mile boundaries of the exclusive economic zone (EEZ).

In fact, the same Nine-Dash Line has been rejected by the Permanent Arbitration Court (PAC).

The 200-mile EEZ is exclusive to countries within that zone including the right to exploit all the minerals and to harvest the resources therein.

The EEZ was seriously aggravated by the discovery of oil and natural gas of huge quantity in the area.

The Philippines, China, Taiwan, Malaysia and Vietnam began to parcelize the area by awarding certain areas to private service contractors to exploit and develop oil and gas discovered in the area.

Strictly speaking, Malaysia has the right to claim any of the islands in the SCS.

It was the formation of the Federation of Malaysia of which Brunei became a member in 1964 that extended Malaysia the status of littoral state to the SCS.

Before that, Brunei or even Malaysia had no shoreline in the now disputed waters of SCS.

Its claim to some of the islands in the SCS was tailored to justify access to the SCS using the formation of the Malaysian Federation to enter the SCS.

Before we entered into some kind of joint exploration agreement, say with China and Vietnam, the Philippines already had an existing joint venture agreement with foreign oil companies.

We initially implemented the 1987 Constitution, particularly Section 2, Article XVII regarding co-production and joint venture to develop and exploit the country’s mineral resources to be divided on a sixty per centum basis of the capital owned by citizens.

China tried to rectify this error when foreign minister Wang Yi and our Secretary of Foreign Affairs Leandro Locsin signed a Memorandum of Understanding in November 2018 which authorized China’s National Oil Corporation as the leading Chinese enterprise.

The Philippines authorized the PNOC to enter into a service contract through PNOC– Exploration Corporation.

The agreement states that the MOU will govern how to arrive at the agreements when the moratorium is lifted.

The moratorium refers to the ban on further exploration at Reed Bank under Service Contract 72 granted in 2010 by the Department of Energy to Forum Energy, an oil and gas exploration company incorporated in the United Kingdom with focus on the Philippines.

It was also revealed that the majority shares of Forum Energy (64.45 percent) are owned by Philex Petroleum, which Manuel Pangilinan stand as chairman and chief executive officer and owns 74.79 percent.

(rpkapunan@gmail.com)

The Constitution prohibits the stationing of foreign military bases in the county