The fate of the VFA: Balancing costs and benefits for the Philippines

U.S. Ambassador to the Philippines arrives for a reception held aboard U.S. 7th Fleet Flagship USS Blue Ridge flickr photo by U.S. Indo-Pacific Command shared under a Creative Commons (BY-NC-ND) license

The Duterte administration is expected to thoroughly review its military cooperation agreement with the US and to negotiate for more equitable terms.

By Andrea Chloe Wong

On February 11, the Philippines and the United States returned to the negotiating table to discuss the fate of the Visiting Forces Agreement (VFA), exactly a year after Philippine President Rodrigo Duterte first announced he would unilaterally terminate it. Ratified in 1999, the VFA provides the rules, guidelines and legal status of the US military during bilateral exercises in the Philippines. The renewed negotiation of the VFA provides a critical opportunity for the Duterte administration to reexamine the deal’s security benefits and strategic liabilities.

Duterte has made several threats to terminate the VFA, in line with his independent foreign policy which seeks to reduce the Philippines’ security dependence on the US. His pledge to terminate it in February 2020 came after the US government cancelled the visa of his staunch ally, Senator Ronald dela Rosa—a former police chief allegedly involved in the human rights violations of his administration’s war on drugs. Duterte then postponed the VFA’s termination twice, and the deal is now set to expire in August, should he decide to push through with the cancellation.

Custody issues involving US soldiers

Despite the seemingly trivial reason behind the VFA’s termination, there are rational justifications for it. One of these is the issue of criminal jurisdiction over American soldiers who violate Philippine laws. Under Article V Section 6 of the VFA, US military authorities are given custody of any American personnel who commit crimes in the Philippines. This is in contrast to the counterpart VFA which does not automatically grant the Philippine government custody over its military personnel if they are accused of crimes in the US.

Two high-profile cases underscored this controversial clause favoring the US. The first was the rape of Filipino Suzette Nicolas, committed by US Marine Daniel Smith in 2005. The US embassy maintained custody of Smith during the trial period until a Philippine court found him guilty and sentenced him to 40 years in prison in 2006. Smith was initially detained at a local jail but was transferred back to the US embassy a few days after the court sentencing. Despite strong protest by the Filipino public, the transfer was made possible through an agreement signed in December 2006 between former Philippine Foreign Affairs Secretary Alberto Romulo and former US ambassador to the Philippines Kristie Kenney. In 2009, Nicolas recanted her accusation of rape and the Court of Appeals acquitted and released Smith, who immediately left the Philippines.

The second case is the murder of Filipino transwoman Jennifer Laude in 2014 by another US Marine, Joseph Scott Pemberton. During his trial, Pemberton was detained at Camp Aguinaldo, the headquarters of the Philippine military, but the US had custody over him and kept him under the guard of American military personnel. This was considered a compromise between the two countries. In 2016, Pemberton was found guilty and sentenced to a 10-year jail sentence, reduced from the original 12 years. He was not incarcerated in a regular prison cell but was placed in solitary confinement inside an air-conditioned shipping container in Camp Aguinaldo. In 2020, Duterte granted Pemberton an absolute pardon on account of an accumulated Good Conduct Time Allowance (GCTA) and he was immediately deported.

Both cases reveal how the VFA provided special treatment for Americans. They also underscored how the deal allows the US government to intervene in the Philippines’ legal system to secure favorable outcomes for its soldiers, at the expense of Philippine sovereignty and justice for Filipino victims. Smith’s acquittal in 2009 and Pemberton’s pardon in 2020 were largely condemned by human rights groups in the Philippines as “another hallmark of Philippines’ subservience to the US.”

President Rodrigo Duterte. Photo: ECOO EDP/Wikimedia Commons

Strategic ambiguity in US defense aid

Another issue with the VFA is the ambiguity regarding US assistance to the Philippines amidst China’s maritime threats. Duterte doubts that the Americans will come to defend the country in the event of an armed conflict with China in the South China Sea. He also believes that the US government failed to prevent China’s illegal construction of artificial islands: “If America cared, it would have sent its aircraft carriers and missile frigates the moment China started reclaiming land in contested territory, but no such thing happened,” he said. For Duterte, if the Philippines cannot rely on America’s defense commitment, then the VFA is meaningless for the country.

However, American officials have recently pledged additional aid under the 1951 Mutual Defense Treaty (MDT). Former Secretary of State Mike Pompeo said in a 2019 statement in Manila, “Any armed attack on Philippine forces, aircraft or public vessels in the South China Sea will trigger mutual defense obligations.” Current Secretary of State Antony Blinken cited the MDT’s importance and “it’s clear application to armed attacks against the Philippine armed forces, public vessels or aircraft in the Pacific, which includes the South China Sea”. These statements signify a major departure from previous US administrations, which carefully equivocated on the precise extent of America’s commitment to the Philippines depending on their strategic interpretations of the MDT. Though merely rhetorical, such pledges from the Americans nonetheless revive the value of the VFA for the Philippines.

USS Ashland in the South China Sea. Photo: Naval Surface Warriors / CC BY-SA

Geostrategic impact in the US-China rivalry

An additional issue with the VFA is that it exposes the Philippines to broader geostrategic tensions due to the growing US-China rivalry. Because of the Philippines’ strategic location, Americans can use its bases and waters to challenge Chinese territorial claims and to enforce international law in the South China Sea. If hostilities break out, the Philippines may be dragged into volatile situations and could be targeted by Chinese attacks due to US military presence in the country.

On the flip side however, having American troops in the Philippines can serve as a balancing force to mitigate the country’s military vulnerabilities vis-à-vis China. The VFA can serve as an insurance policy for the Philippines, deterring China from further actions that may increase maritime tensions. Without it, China’s expansionist maritime activities will continue unrestrained.   

An additional issue with the VFA is that it exposes the Philippines to broader geostrategic tensions due to the growing US-China rivalry. Because of the Philippines’ strategic location, Americans can use its bases and waters to challenge Chinese territorial claims and to enforce international law in the South China Sea. If hostilities break out, the Philippines may be dragged into volatile situations and could be targeted by Chinese attacks due to US military presence in the country. On the flip side however, having American troops in the Philippines can serve as a balancing force to mitigate the country’s military vulnerabilities vis-à-vis China. The VFA can serve as an insurance policy for the Philippines, deterring China from further actions that may increase maritime tensions. Without it, China’s expansionist maritime activities will continue unrestrained.

The hold on the VFA’s termination offers an opportune time for the Duterte administration to review the 22-year old agreementand address its critical issues. Such evaluation should address the inequality in jurisdictional issues, clarify the extent of US defense assistance and examine the geopolitical implications of the VFA. The challenge for the Philippines lies in its negotiations with the US—the need to strike a balance between maintaining sovereignty over jurisdictional issues and pursuing national security goals, without sacrificing one over the other.

Duterte has been criticized for his controversial decisions on the VFA and his provocative statements against the US. In December 2020, he threatened to expel American soldiers if the US failed to deliver COVID-19 vaccines to the Philippines. In February, he expressed his resentment towards the US for failing to keep promises to provide military equipment, saying publicly “You want VFA done? You have to pay”.

Despite these comments, Duterte’s move to cancel the VFA has prompted some soul searching for both countries, especially the Philippines. As negotiations continue, the Duterte administration is expected to come up with a more equitable agreement that will effectively promote the long-term interests of the country.

About the Author

Andrea Chloe Wong
Andrea Chloe Wong holds a PhD in Political Science from the University of Canterbury in New Zealand. She previously worked as a Senior Researcher at the Foreign Service Institute of the Philippines.