Visiting Forces Agreement
Encyclopedia
The RP–US Visiting Forces Agreement is a bilateral agreement
between the Philippines
and the United States
consisting of two separate agreement 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".
Both documents became effective on May 27, 1999, upon ratification by the Philippine Senate.
[8], [10]
The United States government regards these documents as Executive Agreements not requiring approval by the U.S. Senate.
[42]
The term "VFA" is usually used in the Philippines to refer specifically to just the first of these two documents, which has been the subject of continuing controversy in the Philippines.
The Agreement also exempts U.S. military personnel from visa
and passport
regulations in the Philippines.
The Agreement contains various procedural safeguards
which amongst other things establish the right to due process
and proscribe double jeopardy
.
The Agreement also prevents U.S. military personnel from being tried in Filipino religious or military courts[V 11];
requires both governments to waive any claims concerning loss of materials (though it does require that the U.S. honor contractual arrangements and comply with U.S. law regarding payment of just and reasonable compensation in settlement of meritorious claims for damage, loss, personal injury or death, caused by acts or omissions of United States personnel)[VI];
exempts material exported and imported by the military from duties or taxes [VII];
and allows unrestricted movement of U.S. vessels and aircraft in the Philippines [VIII].
This most recently occurred on January 18, 2006, when the U.S. refused to hand over custody four soldiers accused of rape
during the period of their trial in Filipino courts.
This has led to unrest amongst many in the Philippines, who believe that the Agreement is one-sided, prejudicial to Filipinos, and a fetter on the sovereignty
of the Philippines.
The Agreement is seen by some Filipinos as granting immunity from prosecution
to U.S. military personnel who commit crimes against Filipinos,
and is seen by some as treating Filipinos as second class citizens in their own country. As a result of these issues, in 2006 the Philippine government considered terminating the VFA.
A Legislative Oversight Committee on the Visiting Forces Agreement (LOVFA), formed in 2004 and chaired by Senator
Miriam Defensor-Santiago
, was reconvened in 2009 to review the pact to set clearer guidelines on how US soldiers accused of crimes should be treated. By November 2009, the Committee had gathered inputs from different sectors as a prelude to the series of public hearings aimed at formulating a report to Congress on the implementation of the VFA. Senator Santiago said, "Some of the issues raised include the guidelines on the custody of US military personnel who commit an actionable offense in the Philippines, and the silence of the VFA both on how long the ‘visiting’ forces may stay in our country and what activities they may do while they are here,". Senator Loren Legarda
said, "Eleven years after 1999 when a divided Senate concurred in the ratification of this agreement, there is now a clamor from members of Congress, non-government organizations, and even the executive to review or even terminate the same. This review of the VFA is in order,".
, sitting En banc
, dismissed on October 10, 2000. A second challenge, Suzette Nicolas y Sombilon Vs. Alberto Romulo, et al. / Jovito R. Salonga, et al. Vs. Daniel Smith, et al. / Bagong Alyansang Makabayan, et al. Vs. President Gloria Macapagal-Arroyo, et al. submitted on January 2, 2007, was decided on February 11, 2009, again by the Supreme Court sitting En banc. In deciding this second challenge, the court voted 9-4 with two justices inhibiting in support of a decision that, "The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, is UPHELD as constitutional, ...". The decision continued, specifically relating to matters relevant to the Subic rape case
, "... the Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this Court." UP Professor Harry Roque, counsel for former senator Jovito Salonga, one of the petitioners in the case, said in a phone interview regarding the decision on the constitunality of the VFA. "We will appeal, ... We are hoping we could convince the other justices to join the four dissenters."
State or Defense
.
[VIII 1]
(Waiving of jurisdiction in the U.S. is complicated by United States being a Confederation of States
in which each individual state has its own judicial system, and the U.S. Federal Government
not being in a position to simply order a
State
to waive jurisdiction).
The Agreement contains various procedural safeguards
which amongst other things establish the right to due process
and proscribe double jeopardy
[VIII 2-6].
The agreement also, among other provisions,
exempts RP personnel from visa formalities and guarantees expedited entry and exit processing[IV];
requires the U.S. to accept RP driving licenses[V];
allows RP personnel to carry arms at U.S. military installations while on duty[VI];
provides personal tax exemptions and import/export duty exclusions for RP personnel[X, XI];
requires the U.S. to provide health care to RP personnel[XIV];
and exempts RP 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[XV].
Bilateralism
Bilateralism consists of the political, economic, or cultural relations between two sovereign states. For example, free trade agreements signed by two states are examples of bilateral treaties. It is in contrast to unilateralism or multilateralism, which refers to the conduct of diplomacy by a...
between the Philippines
Philippines
The Philippines , officially known as the Republic of the Philippines , is a country in Southeast Asia in the western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam...
and the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
consisting of two separate agreement 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".
Both documents became effective on May 27, 1999, upon ratification by the Philippine Senate.
[8], [10]
The United States government regards these documents as Executive Agreements not requiring approval by the U.S. Senate.
[42]
The term "VFA" is usually used in the Philippines to refer specifically to just the first of these two documents, which has been the subject of continuing controversy in the Philippines.
Effect
The primary effect of the Agreement is that it allows the U.S. government to retain jurisdiction over U.S. military personnel accused of committing crimes in the Philippines, unless the crimes are of "particular" importance to the Philippines. This means that for crimes without this significance, the U.S. can refuse to detain or arrest accused personnel, or may instead prosecute them under U.S. jurisdiction.The Agreement also exempts U.S. military personnel from visa
Visa (document)
A visa is a document showing that a person is authorized to enter the territory for which it was issued, subject to permission of an immigration official at the time of actual entry. The authorization may be a document, but more commonly it is a stamp endorsed in the applicant's passport...
and passport
Passport
A passport is a document, issued by a national government, which certifies, for the purpose of international travel, the identity and nationality of its holder. The elements of identity are name, date of birth, sex, and place of birth....
regulations in the Philippines.
The Agreement contains various procedural safeguards
Procedural defense
In jurisprudence, procedural defenses are a form of defense, via which a party argues that it should not be held liable for a legal charge or claim brought against it. In common law jurisdictions the term has applications in both criminal law and civil law...
which amongst other things establish the right to due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
and proscribe double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
.
The Agreement also prevents U.S. military personnel from being tried in Filipino religious or military courts[V 11];
requires both governments to waive any claims concerning loss of materials (though it does require that the U.S. honor contractual arrangements and comply with U.S. law regarding payment of just and reasonable compensation in settlement of meritorious claims for damage, loss, personal injury or death, caused by acts or omissions of United States personnel)[VI];
exempts material exported and imported by the military from duties or taxes [VII];
and allows unrestricted movement of U.S. vessels and aircraft in the Philippines [VIII].
Controversy
The U.S. has at least twice used the Agreement to keep accused military personnel under U.S. jurisdiction.This most recently occurred on January 18, 2006, when the U.S. refused to hand over custody four soldiers accused of rape
Subic rape case
The Subic rape case, officially known as People of the Philippines vs. Chad Carpentier, Dominic Duplantis, Keith Silkwood, and Daniel Smith, was a criminal case in the Philippines involving a Filipina and four US Marines...
during the period of their trial in Filipino courts.
This has led to unrest amongst many in the Philippines, who believe that the Agreement is one-sided, prejudicial to Filipinos, and a fetter on the sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
of the Philippines.
The Agreement is seen by some Filipinos as granting immunity from prosecution
Immunity from prosecution (international law)
Immunity from prosecution is a doctrine of international law that allows an accused to avoid prosecution for criminal offences. Immunities are of two types. The first is functional immunity, or immunity ratione materiae. This is an immunity granted to people who perform certain functions of...
to U.S. military personnel who commit crimes against Filipinos,
and is seen by some as treating Filipinos as second class citizens in their own country. As a result of these issues, in 2006 the Philippine government considered terminating the VFA.
A Legislative Oversight Committee on the Visiting Forces Agreement (LOVFA), formed in 2004 and chaired by Senator
Senate of the Philippines
The Senate of the Philippines is the upper chamber of the bicameral legislature of the Philippines, the Congress of the Philippines...
Miriam Defensor-Santiago
Miriam Defensor-Santiago
Miriam Defensor Santiago is a Senator of the Philippines. She is a lawyer, former trial judge and professor of constitutional and international law. She served as the Commissioner of the Bureau of Immigration and Deportation in 1988 and the Secretary of the Department of Agrarian Reform from 1989...
, was reconvened in 2009 to review the pact to set clearer guidelines on how US soldiers accused of crimes should be treated. By November 2009, the Committee had gathered inputs from different sectors as a prelude to the series of public hearings aimed at formulating a report to Congress on the implementation of the VFA. Senator Santiago said, "Some of the issues raised include the guidelines on the custody of US military personnel who commit an actionable offense in the Philippines, and the silence of the VFA both on how long the ‘visiting’ forces may stay in our country and what activities they may do while they are here,". Senator Loren Legarda
Loren Legarda
Loren Legarda is a Filipino broadcast journalist, environmentalist, and politician of Visayan ancestry, notable as the only female to top two senatorial elections . During the 2004 Philippine general election, she ran for the position of Vice-President as an Independent with Fernando Poe, Jr...
said, "Eleven years after 1999 when a divided Senate concurred in the ratification of this agreement, there is now a clamor from members of Congress, non-government organizations, and even the executive to review or even terminate the same. This review of the VFA is in order,".
Constitutionality
The constitutionality of the VFA was challenged in Bayan v. Zamora, which the Supreme Court of the PhilippinesSupreme Court of the Philippines
The Supreme Court of the Philippines is the Philippines' highest judicial court, as well as the court of last resort. The court consists of 14 Associate Justices and 1 Chief Justice...
, sitting En banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
, dismissed on October 10, 2000. A second challenge, Suzette Nicolas y Sombilon Vs. Alberto Romulo, et al. / Jovito R. Salonga, et al. Vs. Daniel Smith, et al. / Bagong Alyansang Makabayan, et al. Vs. President Gloria Macapagal-Arroyo, et al. submitted on January 2, 2007, was decided on February 11, 2009, again by the Supreme Court sitting En banc. In deciding this second challenge, the court voted 9-4 with two justices inhibiting in support of a decision that, "The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, is UPHELD as constitutional, ...". The decision continued, specifically relating to matters relevant to the Subic rape case
Subic rape case
The Subic rape case, officially known as People of the Philippines vs. Chad Carpentier, Dominic Duplantis, Keith Silkwood, and Daniel Smith, was a criminal case in the Philippines involving a Filipina and four US Marines...
, "... the Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this Court." UP Professor Harry Roque, counsel for former senator Jovito Salonga, one of the petitioners in the case, said in a phone interview regarding the decision on the constitunality of the VFA. "We will appeal, ... We are hoping we could convince the other justices to join the four dissenters."
Effect
The primary effect of the Agreement is to require the U.S. government (1) to notify RP authorities when it becomes aware of the apprehension, arrest or detention of any RP personnel visiting the U.S. and (2) when so requested by the RP government, to ask the appropriate authorities to waive jurisdiction in favor of RP, except cases of special interest to the U.S. departments ofState or Defense
United States Department of Defense
The United States Department of Defense is the U.S...
.
[VIII 1]
(Waiving of jurisdiction in the U.S. is complicated by United States being a Confederation of States
Articles of Confederation
The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution...
in which each individual state has its own judicial system, and the U.S. Federal Government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
not being in a position to simply order a
State
to waive jurisdiction).
The Agreement contains various procedural safeguards
Procedural defense
In jurisprudence, procedural defenses are a form of defense, via which a party argues that it should not be held liable for a legal charge or claim brought against it. In common law jurisdictions the term has applications in both criminal law and civil law...
which amongst other things establish the right to due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
and proscribe double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
[VIII 2-6].
The agreement also, among other provisions,
exempts RP personnel from visa formalities and guarantees expedited entry and exit processing[IV];
requires the U.S. to accept RP driving licenses[V];
allows RP personnel to carry arms at U.S. military installations while on duty[VI];
provides personal tax exemptions and import/export duty exclusions for RP personnel[X, XI];
requires the U.S. to provide health care to RP personnel[XIV];
and exempts RP 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[XV].
See also
- Visiting Forces ActVisiting Forces ActA Visiting Forces Act is a law governing the status of military personnel while they are visiting within areas under the jurisdiction of another country and/or while forces of one country are attached to or serving with forces of another country, and may also apply to some foreign nonmilitary...
- Visiting Forces AgreementVisiting Forces AgreementThe RP–US Visiting Forces Agreement is a bilateral agreement between the Philippines and the United States consisting of two separate agreement documents...
- Status of Forces AgreementStatus of Forces AgreementA status of forces agreement is an agreement between a host country and a foreign nation stationing forces in that country. SOFAs are often included, along with other types of military agreements, as part of a comprehensive security arrangement...
- Mutual Defense Treaty (US-Philippines)Mutual Defense Treaty (US-Philippines)The Mutual Defense Treaty Between the Republic of the Philippines and the United States of America was signed on August 30, 1951 in Washington, D.C. between representatives of the Philippines and the United States...
- Subic rape caseSubic rape caseThe Subic rape case, officially known as People of the Philippines vs. Chad Carpentier, Dominic Duplantis, Keith Silkwood, and Daniel Smith, was a criminal case in the Philippines involving a Filipina and four US Marines...