MIRIAM: CONGRESS CAN UNILATERALLY TERMINATE VFA

Sen. Miriam Defensor said that, on close study, Congress alone and without the need of presidential action can terminate the Visiting Forces Agreement (VFA).

The senator made the statement after filing Joint Resolution No. 3 expressing the sense of Congress as a whole to terminate the VFA and directing the secretary of foreign affairs to give the notice of termination to the United States.

Santiago, citing a US Court ruling, said that Congress was the correct authority to abrogate the treaty and had properly issued the terminating act, on the grounds that a treaty was the law of the land.

"The Constitution states that the country adopts the generally accepted principles of international law as part of the law of the land. I humbly submit that, just like any other law, it is within the powers of Congress to unilaterally terminate the VFA through a joint resolution. The executive's role is to give notice of termination to the United States, although the decision itself is one for Congress to make," Santiago said.

The VFA provides for the following manner of termination: "This agreement shall remain in force until the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement."

Santiago, widely acknowledged as an authority in international law, also said that the US has not recognized the VFA as a treaty, because the US Congress has never given its advice and consent to the VFA. According to the senator, the US President merely transmitted to the US Congress the VFA and all other executive agreements.

"The VFA was submitted as a compliance with an American law called the Case-Zablocki Act. This Act requires the US President, through the Secretary of State, to transmit to the US Congress, the international agreements entered into by the US government, or by its officials or agencies, which are not characterized as treaties. Thus, the US government does not characterize the VFA as a treaty," Santiago said.

"The VFA therefore is not qualified to be valid and constitutional for the reason that it is not recognized as a treaty by the US as a contracting state on the account of its own Constitution and law," the senator said.

In September last year, the Senate adopted Resolution No. 205 calling for the renegotiation of the VFA, and in case of denial, the Department of Foreign Affairs (DFA) should give notice of termination.

According to Santiago, the DFA, despite a commitment it made to conduct a full balanced review of the treaty, has yet to submit the recommendations to the Senate.

"The fatal flaw of the VFA is the failure to specify the period of stay of visiting forces, and the failure to define what are the "activities" that they can engage in while in Philippine national territory. It calls itself a "visiting" agreement, but it has been in force for some 10 years. Its flaws and failures warrant its termination," Santiago said.