SolGen: EDCA no guarantee US will aid PH in sea dispute

From Rappler (Nov 25): SolGen: EDCA no guarantee US will aid PH in sea dispute

While the focus of the legal battle has been whether EDCA needs Senate ratification, Supreme Court justices have grilled petitioners and Acting Solicitor General Florin Hilbay about the benefits of EDCA

 
ORAL ARGUMENTS ON EDCA: Acting Solicitor General Florin Hilbay and Anti-EDCA petitioner former Senator Rene Saguisag. Rappler photo


Under questioning by a Supreme Court justice, the Philippine government's chief counsel conceded on Tuesday, November 25, that the new military agreement between Manila and Washington DC does not guarantee American help should the Philippines' maritime dispute with other countries escalate.

"There is no guarantee, your honor, but this helps. We have to live in a real world. We have limitations," said Acting Solicitor General Florin Hilbay on the 2nd and last day of oral arguments on the Enhanced Defense Cooperation Agreement (EDCA).

Supreme Court Associate Justice Antonio Carpio was testing Hilbay's argument that the EDCA is part of the country's defensive preparation.

"In order to more effectively achieve the objective of this treaty, the parties, separately and jointly, by self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack. The government's comment submitted to Supreme Court claimed that the agreement is needed to defend the West Philippine Sea," Carpio said.

But this is not what happened in 2012, the justice said.

Carpio went back to the 2012 incident in the Scarborough Shoal (Panatag), where the United States did not come to the aid of the Philippines when China took effective control of the shoal off the coast of Zambales province in Luzon.

"China seized through overwhelming armed force Scarborough Shoal. The US said that is not covered by the Mutual Defense Treaty because they will not side [with any country in cases of disputed territory," Carpio said.

He also cited the failure of the US to come to Ukraine's help when Russia-backed insurgents took Crimea.

"There is no guarantee, in other words, that Americans will come to our aid if we invoke the Mutual Defense Treaty," Carpio said. Hilbay conceded.

This is when Carpio asked Hilbay: "What is the value of EDCA if there is no guarantee of assistance?"

Hilbay suggested that US "can change its mind" on assisting the Philippines. He also mentioned that "the goal is to prevent a showdown" between the Philippines and other countries laying claim on the West Philippine Sea (South China Sea).

"There is no guarantee, your honor, but this helps. We have to live in a real world. We have limitations," said Hilbay.

Carpio replied: "We live in a real world. We lost Scarborough Shoal inspite of MDT."

Outside the context of West Philippine Sea, Hilbay enumerated a range of benefits in terms of training, prepositioning of assets, and improvement of military facilities, runways, barracks, and ports.

While the focus of the legal battle has been whether EDCA stands as an executive agreement or it needs Senate ratification, the Supreme Court justices themselves have gone back and forth grilling petitioners and Hilbay about the implemenation of the new military-to-military agreement in relation to the West Philippine Sea.

With the Philippines having one of the weakest militaries in Asia, the Aquino goverment has said that EDCA is necessary to improve the country's "minimum credible defense" in light of aggressiveness in the West Philippine Sea.

The EDCA allows the US military to construct facilities and preposition defense assets inside Philippine military bases.

At one point, Hilbay begged off questions on the benefits of EDCA and sought to redirect questions on its constituationality.

"This might be a whole range of responses that the President as commander in chief wants to use. These are military matters. If there are experts on miltiary matter, that will be the Department of National Defense. If there are experts on diplomacy, that is the Department of Foreign Affairs. My role is to defend the constituationality of the defense agreement," Hilbay said.

Not foreign military bases

The focus of Hilbay's argument was that the constitutional requirement for "treaties and international agreement" to be ratified by the Senate does not apply to EDCA. He said it is a mere implementation of existing treaties already ratified by the Senate – the Mutual Defense Treaty of 1951 and the Visiting Forces Agreement of 1999.

Hilbay also argued that not all international agreements need to be submitted to Senate. It is a "characterization" dependent on the position of the President and the Senate. He noted that no senator filed a petition to question the constitutionality of EDCA before the Supreme Court.

The constitutional requirement also applies only to foreign military bases, which Hilbay said is not the case with the facilities that will be built by the US military under EDCA.

In a power point presentation at the start of Day 2 of oral arguments, Hilbay showed particular provisions to argue that EDCA is a mere implemenation of these treaties.

VFA, Article VIII

Aircraft operated by or for the US armed forces may enter the Philippines upon approval of the Government of the Philippines

Vessels operated by or for the US armed forces may enter the Philippines upon approval of the Government of the Philippines

Hilbay added the EDCA is unlike foreign basing because it is "restrictive" in the sense that the US requires Philippine approval or invitation for each and every activity it plans to undertake. "Just like the VFA, any and all activities under the EDCA can only be 'at the invitation' or upon approval of the Philippine government."

http://www.rappler.com/nation/76069-edca-no-guarantee-west-philippine-sea