University of Baguio

School of Law
2021-2022

In partial fulfillment of the requirements on the subject:

Human Rights Law

A Paper on the
Consequences of Visiting Forces Agreement

Submitted by: GROUP 4

BRAVO, Lorie
CHIA, Micheal
CONTRERAS, Maria Nelle
FIYAO, Rashelle
JIMENEZ, Jamaica Kim
PACIO, John Gerald

Submitted to: ATTY. ROWENA LAGASCA

 A. VISITING FORCES AGREEMENT (VFA)

Visiting Forces Agreement is an agreement between a country and a foreign

nation having military forces visiting in that country. It is similar to the Status of Forces
Agreement that typically covers forces based in the host nation as well as visiting forces
while the VFA visiting is temporary.

In the Philippines, VFA is binding to the United States in support of the Mutual
Defense Treaty, which was established in 1951 between the United States and the
Philippines to provide mutual support in case of foreign attack. In February 10, 1998,
Philippines entered into a VFA with the United States; this signifies the alliance of the
two countries. It consists of two separate documents. The first of these documents is
commonly referred to as "the VFA" or "VFA-1", and the second as "VFA-2" or "the
Counterpart Agreement". The agreements came into force on May 27, 1999, upon
ratification by the Senate of the Philippines. The United States government regards
these documents to be executive agreements not requiring approval by the United
States Senate. Its purposes stated in the agreements preamble that the agreement is
based on the Charter of the United Nations and the desire of both countries strengthen
international and regional security in the Pacific area that will promote their common
security interests. This allows that from time to time the elements of the United States
armed forces may visit the Philippines that holds joint drills and operations in the
defense of the country. The agreement also gave rise to the ease of access and clear
process for how to handle issues that arise as a result of U.S service members in the
Philippines.

The Philippines–United States Visiting Forces Agreement, sometimes

the PH–US Visiting Forces Agreement, is a bilateral visiting forces
agreement between the Philippines and the United States consisting of two separate
documents. The first of these documents is commonly referred to as "the VFA" or "VFA-
1", and the second as "VFA-2" or "the Counterpart Agreement". A visiting forces
agreement is a version of a status of forces agreement that only applies to troops
temporarily in a country. The agreements came into force on May 27, 1999, upon
ratification by the Senate of the Philippines. The United States government regards
these documents to be executive agreements not requiring approval by the United
States Senate. The two countries signed the VFA in 1998.

The VFA matters for several reasons in addition to ease of access and clear
procedures for the two countries to follow. First, it provides clear procedures and
processes for how to handle issues that arise as a result of U.S. service member’s
presence in the Philippines. Another reason is a political signal of the closeness of the
U.S.-Philippines alliance. Analysts and former officials believe that signalling close ties
between the United States and Philippines supports efforts to deter China from further
encroaching on Philippines’ sovereignty.

B. CONSEQUENCES

This group stands to question this agreement due to its unconstitutionality as to

the processes and procedures on how it is implemented and how members are
protected even if there’s a violation to Philippine laws. Provided below are jurisprudence
to support our claims.

i. The VFA is unconstitutional

There were a few times when it’s constitutionality has been

questioned. Specifically on the case of Bayan vs. Zamora whereby in
view of the impending expiration of the RP-US Military Bases Agreement
in 1991, the Philippines and the United States negotiated for a possible
extension of the military bases agreement. The petitioner claims that the
VFA constitutes an abdication of Philippine sovereignty and deprived
Philippine courts of their jurisdiction to hear and try offenses committed by
US military personnel. VFA the mechanism for regulating the
circumstances and conditions under which US Armed Forces and defense
personnel may be present in the Philippines. Petitioners - as legislators,
non-governmental organizations, citizens and taxpayers - assail the
constitutionality of the VFA and impute grave abuse of discretion in the
ratification of the agreement.

The agreement was then again made an object of another litigation

wherein its constitutionality was questioned. In the case of Suzette
Nicolas y Sombilon Vs. Alberto Romulo, et al. It was alleged that The
Romulo-Kenney Agreement’s validity was questioned by several
petitioners contending that the Philippines should have custody of Smith
on the premise that the VFA is not valid and binding, as the Senate of the
United States did not ratify the same.

Petitioners challenged the validity of the said agreements

contending that the Philippines should have custody of Smith because,
first of all, the VFA is void and unconstitutional since it violates Art. XVlll,
Sec. 25 of the constitution. Petitioners contend that these undertakings
violate another provision of the Constitution, namely, that providing for the
exclusive power of this Court to adopt rules of procedure for all courts in
the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer of
custody of an accused to a foreign power is to provide for a different rule
of procedure for that accused, which also violates the equal protection
clause of the Constitution (Art. III, Sec. 1.).

The disputed custody led to protests by those who believe that the
agreement is one-sided, prejudicial, and contrary to the sovereignty of the
Philippines. The agreement has been characterized as granting immunity
from prosecution to U.S. military personnel who commit crimes against
Filipinos, and as treating Filipinos as second class citizens in their own
country. As a result of these issues, in 2006, some members of
the Philippine Congress considered terminating the VFA. However, the
agreement was not changed.

In this case, as reiterated, then Chief Justice Puno posted his

dissenting opinion that he maintained his view in the earlier case of Bayan
v. Zamora that the VFA falls short of the requirement set by Sec. 25, Art.
XVIII, 1987 Constitution, which provides that the agreement allowing the
presence of foreign military troops in the Philippines must be “recognized
as a treaty by the other contracting state.” For the Chief Justice, the
majority of the Court in Bayan v. Zamora gave undue deference to the
statement of former US Ambassador Thomas Hubbard that US Senate
advice and consent was not needed to consider a treaty binding on the
US, “then jumped to the conclusion that the US recognized the VFA as a
treaty, and that the constitutional requirements had been satisfied.”

ii. The VFA gives protection to VFA’s members who violated our
Philippine laws

The VFA provides simplified access procedures to the Philippines

for U.S. service members on official business (for example, U.S.-
Philippines bilateral training or military exercises), and it provides a series
of procedures for how to resolve issues that may come up as a result of
U.S. forces being present in the Philippines. The primary counter effect of
the agreement is to require the U.S. government to notify Philippine
authorities when it becomes aware of the apprehension, arrest or
detention of any Philippine personnel visiting the U.S. and, when so
requested by the Philippine government, to ask the appropriate authorities
to waive jurisdiction in favor of the Philippines, except in cases of special
interest to the U.S. Departments of State or Defense. Waiving of
jurisdiction in the U.S. is complicated because the United States is
a federation of U.S. states and therefore a federation of jurisdictions. The
agreement contains various procedural safeguards to protect rights to due
process and proscribe double jeopardy. The agreement also exempts
Philippine personnel from visa formalities and guarantees expedited entry
and exit processing; requires the U.S. to accept Philippine driver's
licenses; allows Philippine personnel to carry arms at U.S. military
installations while on duty; provides personal tax exemptions and
import/export duty exclusions for Philippine personnel; requires the U.S. to
provide health care to Philippine personnel; and exempts Philippine
vehicles, vessels, and aircraft from landing or ports fees, navigation or
overflight charges, road tolls or any other charges for the use of U.S.
military installations.

In another case which involves the celebrated case of Jeffrey

“Jennifer” Laude (Jennifer) killed at the Celzone Lodge on Ramon
Magsaysay Drive in Olongapo City allegedly by 19-year-old US Marine
L/CPL Joseph Scott Pemberton (Pemberton), thus, Complaint for murder
was filed by Jennifer’s sibling, Marilou S. Laude, against Pemberton
before the Office of the City Prosecutor which Information was later filed
with the RTC in Olongapo City, a question on the applicability of  the 3-day
notice rule should be should be liberally applied due to the timing of the
arrest and arraignment. The court ruled on the negative. It said that failure
to meet the three-day notice rule for filing motions and to obtain the
concurrence of the Public Prosecutor to move for an interlocutory relief in
a criminal prosecution cannot be excused by general exhortations of
human rights. This Petition fails to show any grave abuse of discretion on
the part of the trial court judge. Furthermore, the accused, while
undergoing trial and before conviction, is already detained in the
Philippines in compliance with the obligations contained in the Agreement
Between the Government of the United States of America and the
Government of the Republic of the Philippines Regarding the Treatment of
United States Armed Forces Visiting the Philippines (Visiting Forces
Agreement).

iii. VFA expect to improve the AFP and give aide to the Phil

First, the Balikatan exercises, which are projected to improve

Philippine military efforts, benefit the US forces more. 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. The US has yet to do
anything about this matter. Furthermore, the US-China relations would
subsequently jeopardize the US economy, which is currently the
Americans’ priority rather than the security of Philippine lands and waters.

C. GENERALIZATION

The visiting forces agreement has been and is still a controversial agreement in
the Philippines. Although the Philippines, through the President has consented to its
binding force upon our laws, many dissents to the same. It is more Political issue than it
is Military which benefited Americans' interest especially in political support even though
it is a strategic military support that should be beneficial to the Philippines. However,
this agreement somehow prices the sovereignty of the Philippines because the
agreement leaves the Philippines in short change that concerns its weaker force.

In conclusion, it is at this point that gives an opposing view on VFA, that this VFA
is unconstitutional as to its procedures and processes that was presented in the case of
Bayan vs Zamora, Suzette Nicolas y Sombilon Vs. Alberto Romulo, et al. In addition,
the VFA gives protection to VFA’s members who violated our Philippine laws like in the
case of Laude. Furthermore, the VFA expect to improve the AFP and give aide to the
Phil however the purpose of which was defeated because the technology that is
supposedly for Philippine use was taken back by them.Lastly, the defense of the
Philippines against China should become stronger but it came otherwise as China
keeps on encroaching the philippine waters that means that the US still have to protect
itself from China leaving the Philippines unprotected by the VFA then.

REFERENCE/S:
● https://outrightinternational.org/content/justiceforjennifer-filipino-communities-
organize-national-day-outrage-friday-october-24
● https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=1214&context=djilp
● "Agreement Regarding the Treatment of US Armed Forces Visiting the
Philippines". ChanRobles Law Library. Retrieved March 22, 2009.
● https://www.chanrobles.com/visitingforcesagreement1.htm#.YW5ie1VBzIU
● https://www.csis.org/analysis/what-philippines-united-states-visiting-forces-
agreement-and-why-does-it-matter
● https://admuaea.org/2015/07/08/the-visiting-forces-agreement-is-it-mutually-
beneficial/

-oOo-