HOLDING that the Enhanced Defense Cooperation Agreement (EDCA) was pursuant to the Visiting Forces Agreement (VFA) and the Mutual Defense Treaty (MDT) between the United States and the Philippines, the Supreme Court upheld the constitutionality of EDCA, maintaining that it was not EDCA that allowed foreign troops into the country but the Visiting Forces Agreement. This too was the subject of constitutional litigation, and the Supreme Court upheld its constitutionality.

The VFA case was itself interesting because it squarely dealt with the issue that while for the Philippines, it was a treaty, for the US, it was an executive agreement. The Supreme Court, relying largely on the representation of the US government that it conducted most of its foreign affairs in executive agreements, ruled that for as long as the agreement “had the effect of a treaty” on the US, the requirements of the Philippine Constitution were met.

It ruled that the EDCA was an executive agreement entered into by the president in implementation of existing treaties and statutes — and was therefore properly the subject of an executive agreement that called for no Senate concurrence.

Since President Ferdinand Marcos Jr. has declared that he favors the implementation of the agreement, the next issue is deciding on where the military exercises take place and where the American troops are to temporarily make camp. Some local government officials have voiced misgivings, claiming that their constituents do not want to be caught between warring factions. Of course, there is no war, neither is there an imminent threat of one. China, it should not be surprising, is vehemently against EDCA and has warned the Philippines against engaging in military exercises with the Americans, but it would be as detrimental to our sovereignty as a nation to buckle down because China has bared its fangs.

In fact, it has done so many times in the past, and for all the rhetoric and the bombast from our end following incursions of China into maritime zones in the West Philippine Sea over which the Philippines has sovereign rights, we have done very little to put China in its place. Perhaps we have decided that we cannot do it, and that is probably right — strategically. But that is the reason that aside from strategic action, there is normatively regulated action: action that arises from norms and is sanctioned by them. If the only kind of action there was strategic, then certainly it would be foolhardy for the Philippines to even attempt to stand in the way of a giant like China. But the moment we adopt this posture, then small, weak, powerless nations do not stand a chance against the bullying of the huge and the mighty — and that is certainly no world order that is a welcome proposition to any state, or to anyone, for that matter!

That is what I have always insisted about the arbitral decision in the case between the Philippines and the People’s Republic of China. It transposes the exchange from the level of strategy to the level of normativity. It asks about the norms of conduct by which both parties must regulate their actions — and the pronouncement of the tribunal leaves no doubt that the rights are on our side, and that China has been — and remains — in violation of law. In blatant transgression of the tribunal’s judgment, it has converted features into military bastions and taken its firepower closer to the Philippines. Now, it tells us that we should not allow Americans to challenge her dominance over the troubled waters on our western seaboard? By what logic? By what law? And by what inanity should we, Filipinos, insist that China means well, and that it would not be in our interest to provoke her by joining with Americans in military exercises.

No, America is not the lily-white hegemon with motives pure and intentions immutably fair. It has had its own share of shenanigans and double-dealing. But its sins are not the issue here. The point is whether it makes sense to desist from alliances with the United States in respect to this very limited field of defense preparedness and readiness at China’s bidding, the very country that has thumbed its nose at international law and our rights? Some local officials have reportedly profited from deals made with Chinese corporations over resources of the country within their respective constituencies. If so, then their opposition to EDCA and to military exercises in their localities is as unprincipled as their shady deals.

It is not a question of canonizing one hegemon as good and the other as evil. No one is engaged in such childish characterizations. What we have to do with rather is the stark reality that China has fired water cannons at our fishing boats, shooed our fishermen away from the Scarborough Shoal, cordoned off reefs and features well within our exclusive economic zone and simply shoved aside a legally rendered judgment of a competent tribunal that had adjudicated on our rights over this section of the sea. And then there is the useful point made by Foucault that after the Treaty of Westphalia, balance of power has become a crucial consideration, and the painful, hurtful and disappointing events of late in this part of the world have warned us quite clearly I think about the deleteriousness of a lack of balance!

rannie_aquino@sanbeda.edu.ph

rannie_aquino@csu.edu.ph

rannie_aquino@outlook.com

— Fr. Ranhilio Callangan Aquino

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