What is the Visiting Forces Agreement?

The Visiting Forces Agreement is a pact between the Philippines and the United States containing guidelines
and conditions for US military and civilian personnel who are temporarily sent to the Philippines.

The agreement was an affirmation of the two countries' obligations under the Mutual Defense Treaty (MDT)
signed in 1951. The MDT is a commitment to defend each other – in accordance with constitutional processes
– in the event of an armed attack by a hostile party.

The VFA was crafted following the Philippine Senate's rejection in 1991 of extending the presence of US
bases in the country.

The Enhanced Defense Cooperation Agreement (EDCA), signed in April 2014 under then-president Benigno
Aquino III, serves to operationalize the VFA. Military activities approved by the Philippines also fall within the
context of the VFA. The executive agreement provides for increased rotational military presence of US troops,
planes, and ships in the Philippines and gives them wider access to military bases in the country.

In effect, as the implementing agreement of the VFA, EDCA allows the prepositioning of war materials in
approved locations. It also entails capacity-building towards the modernization of the Philippines' armed forces.
(READ: PH primer on military pact with US)

The VFA was signed on February 10, 1998 by then-ambassador Thomas Hubbard on behalf of the US and
then-foreign affairs secretary Domingo Siazon Jr on behalf of the Philippines.

Former president Joseph Estrada ratified the VFA on October 5, 1998. (Estrada succeeded Fidel Ramos, who
was president at the time of the VFA's signing.) On May 27, 1999, the Philippine Senate voted 18-5 to concur
with the ratification, resulting in the effectivity of the VFA.

The VFA also provides for a reciprocal or counterpart agreement that was signed on October 9, 1998. That
agreement covers Filipino personnel temporarily sent to the US.

What does the VFA cover?

The VFA provides rules for the entry and departure of US personnel in the Philippines, the movement of
military vessels and aircraft, and the import and export of equipment and supplies in connection with activities
covered by the agreement.

It also makes joint military exercises like Balikatan possible.

Former foreign affairs secretary Albert del Rosario also noted that the VFA, for instance, made the quick
movement of US aid to the Philippines possible after Super Typhoon Yolanda (Haiyan) hit in 2013.

In addition, the VFA also provides guidelines in the event of a crime committed by US personnel on Philippine
territory. In general, the Philippines has jurisdiction over US personnel who commit crimes in the country, and
can impose sanctions and punishments in accordance with Philippine laws. If offenses are, however,
committed in relation to US security and property, or committed in the performance of official duty, US military
authorities assume jurisdiction over their erring personnel.

Why does President Duterte want to end the VFA?

The President moved to scrap the VFA after two US diplomatic actions irked him.

In December 2016, Duterte warned of an "eventual repeal or abrogation" of the VFA after the US did not push
through with an aid package for the Philippines from the Millennium Challenge Corporation, an aid-giving body.
Duterte, however, deferred his decision out of respect for newly-elected President Donald Trump.

Other Stories

Malacañang downplays possibility of U.S. terminating other military pacts

Presidential Spokesman Salvador Panelo says the Duterte government is not concerned the United States
may terminate other military treaties following the Philippines' move to scrap the Visiting Forces Agreement

Pompeo condemns China's Xinjiang crackdown during Central Asia tour

US Secretary of State Mike Pompeo meets top officials in Kazakhstan as he rounds off a 5-nation tour in two
countries where Russia and China enjoy privileged interests

[OPINION | NEWSPOINT] Patronage presidency

Nothing combines protection and benefaction in a more egregious, ludicrous, and ominous fashion than in the
case of Bato de la Rosa, the retired police general, now a senator

In January 2020, the US cancelled the visa of Senator dela Rosa over links to human rights violations, again
prompting Duterte to say he will "terminate" the VFA within a month if the US does not fix what it had done.

How is the VFA terminated?

Termination will take place 180 days from the receipt of a written notification of either party to the other:

"This agreement shall remain in force until the expiration of 180 days from the date on which either party gives
the other party notice in writing that it desires to terminate the agreement."

Can the VFA be terminated by the President alone?

The Duterte government argues it is within the President's powers to terminate the VFA, likening it to the
President's decision to leave the International Criminal Court.

The Senate and the Department of National Defense seconded the argument, saying that while the Senate's
concurrence was needed for the VFA to take effect, the same is not needed to end it. They pointed to Section
21, Article VII of the 1987 Constitution, which requires Senate approval when signing a treaty, but is silent
when it comes to ending it.
"It is well within the right of the Philippine government to do so if it determines that the agreement no longer
redounds to our national interest," Defense Secretary Delfin Lorenzana said on January 24.

How did others react to Duterte's threat?

Senator Panfilo Lacson said on January 24 that Duterte's reaction to cancel the VFA was not commensurate to
Dela Rosa's visa cancellation. (READ: Lacson questions ending VFA to get Dela Rosa's visa back)

Meanwhile, ex-foreign affairs secretary Del Rosario argued that the VFA is "imperfect" but "essential" for PH-
US ties.

What has the Duterte gov't done so far towards termination of the VFA?

On January 24, Foreign Affairs Secretary Teodoro Locsin Jr said he has "started" the process of "terminating"
the VFA, by informing the foreign relations committee of the Philippine Senate. Lorenzana said on January
24 that he will "discuss with the President" the various scenarios pertaining to withdrawal from the VFA. Locsin
heads the Presidential Commission on Visiting Forces, while Lorenzana is the vice chairperson.

On January 25, Justice Secretary Menardo Guevarra said his department is preparing a legal memorandum on
the proper procedures to terminate the VFA. On January 27, however, Guevarra said that Malacanang has
ordered a "preliminary impact assessment" on the VFA's possible termination.

"It is my understanding that the President has threatened, but has not given an order, to terminate the VFA.
That's why his office has requested us to study the potential impact of such termination," Guevarra said.

Have camps questioned the VFA's validity and application before?

Shortly after the VFA's ratification, the Supreme Court (SC) received 5 separate petitions questioning the
validity of the VFA. The High Court consolidated all petitions in one case: Bayan vs. Zamora, referring to
petitioner leftist group Bagong Alyansang Makabayan (Bayan) and defendant Ronaldo Zamora, who was
executive secretary at the time the case was filed.

The petitioners tried to argue that the VFA "abdicates" Philippine sovereignty when it comes to trying offenses
committed by US personnel.

On October 10, 2000, the SC dismissed their petitions, saying there was no grave abuse of discretion by the
President and the Senate when they VFA was ratified. The SC also said it respects the separation of powers
and the systems of checks and balances. "True enough, rudimentary is the principle that matters pertaining to
the wisdom of a legislative act are beyond the ambit and province of the courts to inquire," it said.

The High Court did not discuss the petitioners' other points further.

Other legal questions related to the VFA were heard in two more cases at the Supreme Court, said lawyer
Romel Bagares of the Center for International Law and who teaches international law at the Lyceum of the
Philippines University-College of Law:

 Lim vs. Executive Secretary (2002), where petitioners questioned the conduct of the Balikatan
exercises in 2002. This case also contained the terms of reference for that joint military exercise.
 Nicolas vs. Executive Secretary (2009), which upheld the constitutionality of the VFA, but ordered the
foreign affairs secretary to "negotiate with the United States representatives for the appropriate
 agreement on detention facilities under Philippine authorities." (Bagares is among the counsels in this
case.)

Has the VFA been invoked in controversial cases?

The VFA was put in the spotlight in at least two criminal cases involving US soldiers, and which both
concerned custody issues over accused personnel.

 The first involved US serviceman Lance Corporal Daniel Smith in December 2005, when a Filipina
named "Nicole" sued him for a rape in Subic, Zambales. A Makati regional trial court found Smith guilty
in December 2006. After the verdict, he was transferred from the Makati City Jail to the US embassy in
Manila, as part of an agreement between then-Philippine foreign affairs secretary Alberto Romulo and
then-US ambassador Kristie Kenney. This move was questioned in the case Nicolas vs. Executive
Secretary. In March 2009, Nicole recanted her story. The Court of Appeals (CA) overturned Smith's
conviction in April 2009. (LOOKING BACK: Daniel Smith and the Subic rape case)

 The second involved transgender woman Jennifer Laude who was found dead in a lodge bathroom in
October 2014, in Olongapo City. US marine Joseph Scott Pemberton was found guilty of homicide by
an Olongapo trial court in December 2015. The CA affirmed the verdict in 2017. Pemberton was
detained at the AFP Custodial Center inside Camp Aguinaldo – not in a regular jail – because of the
provision on detention under the VFA.

According to Article V of the agreement, the custody of any US personnel whose case falls under Philippine
jurisdiction "shall immediately reside with United States military authorities, if they so request," from when the
crime was committed until all court proceedings are complete. However, US military authorities shall make the
defendant available to Philippine authorities "in time for any investigative or judicial proceedings relating to the
offense."

In "extraordinary cases," the Philippines "shall present its position" regarding custody to the US government,
which should take it "into full account." In addition, US personnel should be confined or detained "in facilities
agreed on by appropriate Philippine and United States authorities."

If the VFA ends, what will happen to other military treaties and agreements with the US?

The Department of Justice said it will study the effects of the VFA's termination on the MDT and EDCA.

Meanwhile, Bagares argued that executive agreements based on the VFA would have "no leg to stand on" if
the VFA is scrapped.

On the night of October 11, 2014, the lifeless body of Filipino transgender woman Jennifer Laude was found on
the bathroom floor of a motel in Olongapo City. A few days later, police investigators pointed to Private First
Class Joseph Scott Pemberton of the United States Marines as the primary suspect for the brutal killing. He
was in the Philippines to participate in the annual United States-Philippines Amphibious Landing Exercises or
PHIBLEX, a joint combat training program that was endorsed through the Visiting Forces Agreement (VFA)
between the two countries.
The killing of Jennifer Laude did not only meet negative reaction from Filipinos and foreigners alike, but also
prompted the revival of the debate over the VFA. Many Filipinos, including prominent legislators and social
media activists, have called for the ratification and even the abolition of the agreement, citing sovereignty and
criminal jurisdiction issues. However, many may be wondering why there are American Soldiers on Philippine
soil in the first place. And more importantly, are their concerns for staying beneficial for the Philippines?
The history of the VFA can be traced back to the Military Bases Agreement (MBA) and the Mutual Defense
Treaty (MDT) between the Philippines and the United States, signed in the years 1947 and 1951 respectively.
The MBA allows the US military to establish military bases on Philippine territory. Through the MDT, both
countries would support each other if either one were to be attacked by an external party. In 1991, the Senate
of the Philippines decided not to extend this provision, paving the way for the dismantling of the US military
bases throughout the country. Seven years later, the VFA was signed which allowed the rotational presence of
US military forces in the Philippines and for them to operate and coordinate with the country’s armed forces.
The Pros
The primary argument of VFA supporters is that it strengthens the strategic partnership of the Philippines and
the United States in defense and security matters. The VFA provides logistical support to the Philippine military
as it combats both traditional and emerging threats. This support is evident in the Philippines’ fight against
terrorism especially in Southern Mindanao. In addition, the US military presence in the Philippines also
provides military and technological training to Philippine troops in order to support the country’s maritime
security capability. This comes at a time when other countries are aggressively pursuing their respective claims
in the West Philippine Sea. The current administration believes that the presence of American soldiers,
together with the MDT, can be an effective deterrent to belligerent moves in the disputed islands.
Furthermore, the VFA, including the recently signed Enhanced Defense Cooperation Agreement (EDCA) also
supports the modernization of the Philippine Armed Forces as it builds what it calls a “minimum credible
defense.” Contrary to popular belief, the VFA and EDCA would not make the Philippine military over-reliant to
US military support. The United States’ role would only be in training military personnel to handle newly
acquired technologies. The decision on what to procure would remain in the hands of the Philippine
government.
Aside from military support, the VFA also plays a key role in providing support to the Philippines humanitarian
aid operations. In an article by Rappler, US Ambassador Philip Goldberg stresses the role of the US military
when Typhoon Yolanda ravaged most part of the Visayas region. While other countries still had to wait for the
decision of the Philippine government to allow their troops to enter our country, the US immediately deployed
its own, providing immediate support to the victims and to the national government. The US provided 335,000
liters of water and 36,360 kilos of food and supplies through the USS George Washington. According to
Goldberg, this was all possible because of the VFA.
Cons
The main concern regarding the VFA is that it abuses US autonomy under Philippine sovereignty. This
agreement gives US forces the right to utilize our territories for their own purposes, which has since been
abused and could possibly do more harm than good to our resources.
First, the Balikatan exercises, which are projected to improve Philippine military efforts, benefit the US forces
more. The US forces that participate in these exercises are based in Japan. However, the Japanese people,
especially the residents of Okinawa, oppose the presence of US bases in their country. The reason there was
a need for these exercises in the Philippines is that Japan would only allow the US bases to remain in their
country if the latter did not practice and test its weapons there.
After transferring operations to the Philippines, the US has said these exercises are to advance the Filipino
military in terms of technology and weaponry brought in by the Americans. However, these weapons are
brought only during the Balikatan exercises and after the Filipinos have been trained, the Americans will leave
with the weapons, defeating the exercises’ purpose. Filipinos thus learn and are trained to utilize military
technology they do not even possess.
Second, the VFA expects the US forces to aid in defending our territories against China. However, China has
been slowly encroaching Philippine sandbars and waters over the years since the US has left the Philippines in
the 1980s. The US has yet to do anything about this matter. Furthermore, US secretary of state Hillary Clinton
stated in 2013 that the US would remain neutral during this conflict. This is brought upon by the fact that China
owns roughly $17.6 trillion of U.S. bonds. Thus, jeopardizing US-China relations would subsequently
jeopardize the US economy, which is currently the Americans’ priority rather than the security of Philippine
lands and waters.
In terms of the Mindanao conflict against the Abu Sayyaf, the Philippines is aided by the Americans because
this matter is more of an internal and local issue, unlike the West Philippine Sea dispute.
Third, the currently prevailing concern apropos of the VFA is regarding the liabilities of U.S. soldiers who have
violated the law on Philippine soil. US soldiers seem to possess diplomatic immunity whenever there are
allegations to their criminal activities. Aside from the case of Jennifer Laude, another rape incident, frequently
labeled the “Subic Rape Case,” involving four US marines and Suzette Nicolas, a Filipina, occurred in 2005.
One soldier, Daniel Smith, was sentenced to 40 years in prison (but confined in the US Embassy in Manila
instead of a Philippine jail) while the other three were acquitted. However, there was a recantation in 2009 and
three Filipino justices ordered Smith’s release for a review of evidence exhibiting Smith’s innocence. In any
case, this gang rape case has raised the issue of probable ongoing crimes and misdemeanors of US soldiers
in the Philippines and how the VFA allows the US justice system to intervene, resulting the court proceedings
usually in the soldiers’ favor with acquittal or a better sentence.
Conclusion
The VFA is thus more of a political issue than it is military: the conditions with the Japanese bases, the refusal
to defend the Philippines from China but not from the Abu Sayyaf, and the lack of criminal accountability.
Moreover, the VFA is another means of gaining the political support of the Americans, especially seeing that
this agreement is more in favor of American interests.
The title of the agreement, The Visiting Forces Agreement, is problematic in itself; it is a misnomer, if viewed
from the Philippine perspective. The Philippines expects the US to protect and defend our country during
international disputes although the agreement blatantly states that these US forces are merely “visitors” in our
country. In terms of social norm, a visitor is present for social or touristic purposes. This implies that the
American military presence in the Philippines is not only temporary, but also does not guarantee that there is
protection to be gained. It is not even explicitly stated in the agreement that should there be threats to the
safety of the Philippines and its people, the Americans would aid; the agreement expounds mainly upon
concerns regarding military personnel and property.
The Philippines faces a number of internal and external threats today. Given the present reality of its armed
forces, it would be ambitious for the country to handle all these threats without an ally.
Indeed, a strategic military partnership with a country like the United States will likely benefit the Philippines.
But the sovereignty of the country should not be the price for these benefits because such would defeat the
very purpose of the military agreement. This agreement leaves the Philippines short-changed because it is the
weaker force. Therefore, it is essential that the Philippine government continue to debate this issue. Whether
or not it decides to ratify, abolish or maintain it, the decision should be beneficial for both parties. The
challenge for the Philippines here is not only how to defend the country’s interest but also how to strike a
balance between national security and sovereignty.
A possible way of understanding the VFA is by comparing it to the North Atlantic Treaty Organization (NATO).
The members of NATO exercise the right of receiving protection from other members during international
conflict. The protection and defense that we expect from the US government and forces during international
disputes are more in line with the objectives of NATO. We are expecting this protection from the US, but they
cannot guarantee it. The VFA gives the Filipino people reassurance – albeit a faulty one.