Press Release
June 3, 2020

Privilege Speech of Sen. Francis "Tol" N. Tolentino
re Suspension of the VFA Termination

Mr. President, we received news reports last night of the suspension of the abrogation of the Philippines-US Visiting Forces Agreement which we entered in 1998 and renewed in 2000. This is indeed an extremely positive development as it affirms, first and foremost, that in our country, the separation of powers is one of the cornerstones of our constitutional democracy as stated by the supreme court case, Angara v. Electoral Commission, 68 Phil. 139, 156 [1936] and, second, that the President of the Philippines as chief executive and head of State, is the sole organ and authority in the external affairs of the country" as affirmed by the Supreme Court in Pimentel Jr v. Executive Secretary 2005, GR. No. 158088.

As the Philippines and the rest of the global community are in the midst of the COVID-19, to quote from Sec. Teodoro Locsin Jr., in his note verbal, "in light of political and other developments in the region," there is sufficient legal basis under international law for the President to perform such an act. Under the international law principle of rebus sic stantibus which is codified in Article 62 of the Vienna Convention on the Law of Treaties, a party may invoke the "fundamental change of circumstances with regard to those existing at the time of the conclusion of a treaty". Said Art. 62 (3) provides:

"If, under the foregoing paragraphs under Article 62 of the said Convention of Treaties, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty."

Now, as rebus sic stantibus has been recognized as one of the grounds to terminate or even suspend the operation of a treaty, I now propose this legal and academic question: Can rebus sic stantibus be used as a basis to renew a treaty or an international agreement?

My question is this, with all due respect to my esteemed colleagues, I don't even profess to have the answers, do we have a new agreement because of the suspension of the termination? Or do we comply with what is contained in the note verbale that "after 6 months, which is renewable for another 6 months by the Philippines, the tolling of the initial period in the note verbale dated in 11 Feb 2020 shall resume"?

Again Mr. President, I don't have the answer to this but I rely on the strong friendship of the Philippines and the United States specifically the strong people to people partnership which we still maintain.

Napakarami hong Pilipino na frontliners ngayon sa Amerika. 150,000 Filipino nurses are in the United States, not to mention doctors and caregivers. In California alone for example, 20% of the register nurses are Filipinos. And because they are most likely to work in acute care, medical/surgical, and ICU nursing homes, many "FilAms" are on the front lines of care for COVID-19 patients.

Binabanggit ko po ito Mr. President dahil ang kasaysayan po natin ay punong-puno ng halimbawa kung bakit masasabi natin na napakalapit ng Estados Unidos at ng Bansang Pilipinas.

An appreciation of past international practice has recognized that the "fundamental change of circumstances" can be used as a cause for the revival of a treaty and in this case, the VFA.

It so happened that VFA was signed in October 9, 1998, on the same year Mr. President and I would like to quote the specific example: on the same year the Kosovo War started, the Kosovo War, which separated Kosovo from Yugoslavia resulted in the abrogation of the UK-Yugoslavia Air Service Agreement in 1998. After two years because of a mere exchange of notes that took effect on March 17 2000, the same agreement was revived. What I'm saying Mr. President is that international practice would show that even after severance of relations, an agreement can be renewed by mere exchange of notes. And that is what happened last June 1. This is also a significant date for one of our colleagues here.

June 1, 2020 marked the resumption, because of this note verbal, of the VFA. And the first week of June has been significant to our country. The first week of June in 1942 was also the date when General Mc Arthur abandoned Corregidor after struggling against great odds to save the Philippines from the Japanese occupation leaving 90,000 nd Americans and Filipino soldiers behind.

The first of June in 1945 Mr. President was again is a very critical part of the process towards the Philippine campaign and the liberation of the Philippines from the Japanese during WW II.

Kung kaya siguro nagkataon na naibalik muli ang VFA nitong June 1, 2020. Again Mr. President, this development opens up a multitude of fresh opportunities which strengthens national security and help deter threats from outside our boundaries for the time being.

If I recall Mr. President, during the meeting of the whole, this representation insinuated several confidential national security matters which the DFA Secretary nodded in approval - perhaps one of the reasons why we revived the VFA. I'm just looking in hindsight, and looking forward Mr. President.

The President's announcement, through the Secretary of Foreign Affairs, imparts a glimpse of his sincere dedication to the welfare of our nation -- relaxing his otherwise firm stand on the issue of severing ties with the US and keeping national interest at the forefront of his executive power.

Similarly, it also reflects the humility of the Chief Executive in assigning greater weight to the long history of alliance and strong relations that we have established with the United States, this country being one of the first and oldest US ally in Asia.

I recognize and admire the wisdom of the President as the chief architect of the country's foreign policy for keeping his judgment anchored on the supremacy of national interest and affirming his resolve to safeguard the life and liberty of the Filipino people. The decision of the President is perhaps akin to adjusting his sail, so to speak, in order to be able to navigate his ship through dangerous waters, having premised his decision on "prevailing political and other developments in the region." Flexibility is at the heart of effective leadership, and effective leadership is central to good governance.

As we reforge our ties with one of our oldest allies, we must not forget, arguably the oldest principle of international law: "pacta sunt servanda" or "agreements must be kept". Pacta sunt servanda governs many international agreements and treaties, including the Vienna Convention on the Law of Treaties (1969), which concerns treaties between states, and the Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations (1986). Well settled is the principle that the enforcement of obligations by states largely depend on their commitment to these agreements. Without such doctrine, international agreements would lose their binding effect.

As the world, Mr. President enters into the "new normal," we welcome this recent development of the renewal of the VFA which serves as an opportunity for both nations to foster a stronger bond of friendship between the Philippines and the United States, a pact forged by the blood of our forefathers for the peace and security in the country and the region.

Maraming salamat po Mr. President.

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