Monday, February 23, 2009


The promulgation of Nicolas v. Romulo on February 11, 2009 drew a maelstrom of anti-US sentiments not seen since the heyday of the U.S. military bases in our country. The Supreme Court in this case reiterated its affirmance of the validity of the Visiting Forces Agreement (VFA) in the earlier case of Bayan v. Zamora by saying that, contrary to the position of those opposing the VFA, the US recognizes the VFA as a valid and binding international obligation on its part which, therefore, complies with the requirement of Sec. 25, Art. XVIII of the Philippine Constitution. This provision requires agreements involving the presence of foreign bases, troops or facilities in the Philippines to be recognized as treaties by the foreign contracting state.

When the Constitution requires a foreign contracting state to recognize its agreements with the Philippine Government regarding the presence of foreign bases, troops or facilities in our country as treaties, what becomes determinative is the law of such foreign country. Did the US treat the VFA as a treaty under its laws? The US Constitution requires the concurrence of the US Senate for the validity of treaties entered into by the US Government. Although US officials recognize the VFA as a binding international obligation of the US, this did not make it a treaty. At best, it is merely an executive agreement. We can readily see here the unequal treatment accorded us by the US Government - or should we say the continuous kowtowing of our officials to our one-time colonial master; while we have given the VFA the more dignified status of a treaty by going through the motion of having it concurred by the Senate, the US merely gave it the status of an executive agreement which, under US laws, is inferior to federal laws. A treaty - side by side with federal laws - on the other hand, is next only to the US Constitution in importance in the hierarchy of laws.

In addition, the US Supreme Court ruled in the 2008 case of Medellin v. Texas that for treaties or international agreements to become binding domestic laws in the US, such treaties or agreements must be self-executing (meaning, by their terms they are immediately implementable) or the US Congress has enacted laws implementing them. The VFA is neither self-executing nor supported by an implementing legislation by the US Congress. This undercuts the argument that the VFA is recognized as a binding international committment in the US. The inequality of the situation is that while we made ourselves bound by the VFA, the US did not.

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