Special Issues on International Law

Issues on the Visiting Forces Agreement between the United States and the Philippines
and Enhanced Defense Cooperation Agreement (EDCA)
By Karen Daryl Brito and Carmela Espino

1. Intro: Discussion on PH Constitutions Regarding Treaties and International

Agreement
a. Section 11(7) Art VII of the 1935 Constitution - (7) The President shall have the
power, with the concurrence of a majority of all the Members of the National
Assembly, to make treaties, and with the consent of the Commission on
Appointments, he shall appoint ambassadors, other public ministers, and
consuls. He shall receive ambassadors and other ministers duly accredited to the
Government of the Philippines.
b. Section 14(1) Art VIII of the 1973 Constitution - SEC. 14. (1) Except as otherwise
provided in this Constitution, no treaty shall be valid and effective unless
concurred in by a majority of all the Members of the Batasang Pambansa.
c. Section 21 Art VII of the 1987 Constitution - SECTION 21. No treaty or
international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate.

2. Background of VFA (Bayan v. Zamora)

a. US-PH Military Base Agreement (1947)
b. Mutual Defense Treaty (1951)
c. RP-US Treaty of Friendship (1991)
d. Visiting Forces Agreement (1998)
● Importance of VFA
● Contents
● Termination Procedure
e. Enhanced Defense Cooperation Agreement (2014)

3. Jurisprudence that challenged the constitutionality of VFA and EDCA

a. Bayan v. Zamora (2000)
i. History of VFA
ii. VFA provisions that are alleged to be unconstitutional
iii. Abdication of PH Sovereignty
b. Nicolas v. Romulo/ Salonga v. Smith (2009)
i. Whether or not the presence of US Armed Forces in Philippine territory
pursuant to the VFA is allowed "under a treaty duly concurred in by the
Senate xxx and recognized as a treaty by the other contracting State.
ii. Overview on the Case of Pemberton and Smith
c. Saguisag v. Ochoa (2016)
i. Constitutionality of the Enhanced Defense Cooperation Agreement
 ii. Basic parameters of the constitutional powers and roles of the President
and the Senate

4. VFA under the regime of PH Presidents

a. Ramos (start of VFA)
b. Estrada
c. Arroyo
d. Aquino
e. Duterte
i. Can Duterte terminate the VFA without the concurrence of the Senate?
ii. Was it terminated?

5. Current Relationship between US and PH

a. Marcos
i. Current status or any plans regarding VFA/EDCA
- EDCA Expansion - New Locations
- Possible VFA-like and EDCA-like cooperation with Japan
b. In connection to the Arbitral Ruling on West Philippine Sea
i. VFA/EDCA role on the execution of the ruling