The Philippine Bases and Status of Forces Agreement: Lessons for the Future

• Author: Rafael A. Porrata Doria, Jr.
• Pages: 02

1. Introduction

Formal talks on the renegotiation of the Philippine Bases

and Status of Forces Agreement' (Philippines SOFA or current Agreement) commenced in mid-September of 1990.2 The term of the current Agreement, which is the agreement pursuant to which the United States government maintains its military facilities at Clark Air Base, Subic Bay, and other minor locations in the Philippines,s expired on September 21, 1991.4 On August 27, 1991, the Philippines and the United States signed an agreement renewing the current Agreement.6 This agreement was rejected by the Philippine Senate on September 9, 1991.e AE of the date of thx writing, Clark Air Force Base has been closed7 and Subie Naval Base is in the process of being evacuated, with its facilities being turned over to the Philippine govemment.8 A number of the activities that occupied Subic Bay Naval Base apparently are being transfelred to Singapore.*

The renegotiation of the Philippine SOFA was an extremely difficult endeavor. The bases covered by the Philippines SOFA are

'A8mmtB Prafesaar of Law, Templa Umvsraity Sohool of Law. Philadelphia, PA. Firit Lieutenant, Judge Advaeste Genersl'a Corps, Umted States Army Rcscrm: Awetent Legs! Officer. 416th Cinl Maire Company, Nomabarn, PA. BA., MA., Univemity of Pennaylvarua, 1974, JD., Yale Lrr Sehml, 1877. Member of the bars of Florida, New York, Pennsylvsms. pnd Puarta Rim. A drafl of this article was submitted rn partld antiifaction of the academic requirementi for the Judge Advrrate Offieen Advmead Course.

'Apmmnt Coneemmg Mhtary Base., Mar. 14, 1947, U.S..Phd.. 61 Stat. 4019, T.I.A.S. No. 1776 [herempflcr Ba~ai

Agreemantl.'Reliminsry negotiations on the renegotiation 01 the wmsm Agreement were scheduled to commenca II mid.Apprii of 1880. New Talha on U.S Bmes in Phzlippplna8 Set for MidApril, L.A. WB,

Mar. 9, 1090, at 28. These preliminary talb actually commenced rn May and were oharacteried by the press a~ '"~gri." Subrc Boy Journal, When Amrriean Might is LI Bit High and Migho, N.Y Tz-,Aug 4, 1990, at A7.

Further negotiahona oommeoccd on September 17, 1890, and messed man thercsfiater. Tim for Taps 6n Mmrh, NEWSWER, Oct. 1. 1990. at 44

'Baaea Agreement, mpro note 1, art. I, id. art. 1, -ax A.

'Amendment b Baaea Treaty, Sept. 16, 1966, U.S.-Phii., 17 U.S.T.

1112,

'U.S. Dep't of Sfate, Office of the hnstant Semetsry/Spbaman,

aPht!bppm P w d No U.S. Bmes, Rau. INQ~RER,

Sept. 10, 1891. at A3 'US. BI& Fartmell Lo Bme, Ram. INPITI~LEI.

No". 27, 1991. at As. 'Goodbye Sub= Bay, WUL ST. J.. No". 18, 1991, at AZO.'US Will Tmufer Naud Fomr to Scngapon from Sub= Bay Boae, W*u. Sn J , Jan. 6, 1992. sf A4, Szngepon Woieornrs U.9 Nwy, Ram INQ-R, Jan. 4, 1992. at iw.

T.I./LS. No. 6004 [hcrsm&r 1966 Amendment].

Staemmt on U.S. Phrlippiu lkaty, Aug 27. 1881

quite extensive10 and have been viewed a8 performing a number of essential strategic missions in the complex security envlronment of the South Chine Sea." Furthermore, the eighty-two million dollars in wages paid to Filipino workers employed in the bases constituted the second largest payroll in the Philippines ~n1987.12

In Manila, however, the continuation of the Agreement has been a highly controversial topic. Many educated Filipinos consider the bases a vestige of colonialism and an infringement on Philippine sovereignty; they therefore wanted to see the termination of the Agreement.'$ These critics also felt that the bases were a "magnet" far nuclear attack; that their existence only fueled the twenty-year-old communist insurgency in the Philippines and that they were responsible for a number of social ills that have proliferated in the communities near the bases.14 Furthermore, these critics felt that, if the Agreement was renewed, the United S t a h military and economic aid rendered to the Philippines in exchange for the use of the bases should be increased drastically. 1s

On the other hand, the United States government had indicated that, although it was interested in renewing the current Agreement, it would agree to do so only on mutually acceptable terms. The United States further indicated that it was exploring the possibility of nonrenewal and military withdrawal from the Philippines.16 Some American commentators actually argued that the United States should close its baees in the Philippines and reestablish them somewhere else in the mea.17

'OThe Subic Bay fnohtiae comtitut. one of the 18rgeet nwd bmss ID the world, covering sppradmstely 61,000 acres. The thrce malar rhsrvea v the eomplax bnve B tots1 dapth of 6000 feet, with btnhing 8pace at depths that can accommodate the largest sircraR cnrrian in the Umted Stntea Nayi Thewinatallstion are entunatad to be wmtb $1 2 billion, ~~IYIIY~of land value

*ND pirs~ic

U.S SEC- AT Rlsir 34 (1987). Clark I\lr Bale, hendqusrtcn of the WMentb An Farce, x i the lweit American militan fadlity outside the continental Umhd Statel Swuir~ntnumbers of figbtsr airmaR, traoaports, support a m & and heheoptera are mmgned to this facility. The reaervstmn m wbxh Clark An BL~B ib laated c w m s~pioamatel~

131,000 ameli. Id. at 37.38.%Lid. 20.32""Peopb Powrr"0nd PmCc Seruntx The Unnited States-Phdrppme Aiiurnce After the 1986 Philippme Conrfilulion, 17 QA. J. Iwf~

& Corn. L 589, 587. n 94

Tne B-EB 01 om D I B C O ~ K T

79 (19851: Phm-Out

Predicted fer US. B w s at Cbrh and Subie. L.A. m s ,

Feb. 10, 1990. at Ala.

Feb. 12, 1990,

''Sea, e.&, Ohan, hmto Pack up and lame, Tne WASH. m a ,

Feb. 11,

GREGOR

& ADANON, ETWICS

POUCY CENTER,

Tne PFTUPPWE

B*SES:

119871.

''See, e.8 SINBVLUI,

"Id.'&Id.

"Phhppmne Barr Tolka Likely to be Cornbatwe, L A m a ,

st Azo.

issai PHILLIPINES SOFA: LESSONS 89

As this article will discuss,lS the status of allied military forces in a foreign territory, and the impact of an agreement providing for the stationing of those forces, represent complex and controversial issues in international law.18 In addition, the defense relationship between the United States and the Philippines has had a long and sometimes stormy history.20 Thesefactors made the task of the parties seeking to renegotiate the current Agreement a difficult, daunting, and ultimately unsuccessful one.

The Philippine SOFA is a highly unusual document. Its terms, and the negotiations prior to its adoption, constitute important lessons on haw not to draR such an agreement.21 Furthermore, the issues that arose out of the renegotiaton of the Philippine SOFA are typical examples of issues that can appear in the negotiation of any such agreement. Thus, an examination of the Philippine SOFA experience provides valuable lessons for the future.

Thiis article will analyze a number of the principal issues and problems that arose in the context of the present Agreement. It also will examine several issues end problems that arose during prior negotiations over the Phillipines SOFA. Accordmgly, Part I1 of this article will examine the United States.Philippine defense relationship by describing the history of the passage of the current Agreement and by analyzing its major provisions. It then will examine the major provisions of the current Agreement. Part I11 of this article will discuss and analyze a number of the principal issues that have arisen in the context of the current Phillipines SOFA and that have arisen during prior negotiations thereon-issues that had to be resolved in the current negotiations. This part also will enumerate a number of recommendations for dealing with those issues. Finally, Part N will conclude

ISSO, at F1 Tha time ha* come far the United State. to abandon ik militam base8 in the Ptdioomea and look elnewhere in the Far

'For 811 exirclbnt hiatmy of the defense relationship between tha Phlippinsa and the United State. and of the implementahon and nnegobatmni of the Phlippme SOP& 1ee BE~RY,

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U.S. BMES IN m ~ U P P W & ~

this article by summarizing the principal lessons that can be learned from the Philippine SOFA experience.

11. The United States-Philippines Defense Relatmnslup

1. The Adoption of the Current Agreement

   The discussions and negotiations that culmmated ~n the

   signing of the current Agreement took place at the same time that the United States and the Phillipines negotiated postindependence trade relations between their countries.22 Concurrently, United States-Philippine discussions on the terms of rehabilitation assistance to the PhilippinoszS were undemay.24

   AB the negotiations commenced, the Amencan negotiators believed that the primary reasons presented for retaining the bases in the Philippines were their potentials to contribute to future hian regional stability and to protect the Philippines from armed sttack.25 On the Philippine side, President Sergio Osmena and his successor, Manuel Floras, perceived two benefits from the retention of United States bases. First, the presence of American troops in the Philippines would protect the Philippines, which did not have the re8ources available to provide for its own defense from external attack. Secondly, the presence of United States troops and installations in the Philippines would focus American concern and interest in the Philippines as the United States assumed a more dominant international position, with far greeter responsibilities than ever before.26

   The first negotiations on military bases in the Philippines took place on May 14, 1946, in Washington, D.C.,27 between Presidents Truman and Osmena.as These meetings resulted in the execution of a preliminary agreement that provided the United States govemment with extensive privileges in the Philippines while the final agreement was being negatiated.29 Formal negotiations on a permanent agreement commenced shortly thereafter and continued through December of 1946.50

   Resident Truman that the baae negotiationi be conducted aeparateiy fmm my diasuaaiona rdatmg to independence matteri BO that it would not appear tbat indepandence W ~ I

   related Lrectly to retention of the basea...