Senators pinpoint 7 flaws in EDCA

MANILA, Philippines – The thing is, Senators Sergio Osmeña III and Ferdinand Marcos Jr both support defense cooperation with the US in the wake of escalating maritime disputes in the region and worsening natural disasters. But even in their eyes, the newly-signed Enhanced Defense Cooperation Agreement (EDCA) appears to be more beneficial to the US than to the Philippines. 

On Tuesday, May 13, the 2 senators took turns grilling the 5 members of the Philippine panel that negotiated EDCA, combing over each detail of the deal that Malacañang supposedly scrutinized every step of the way during the negotiations. (READ the document here)

"In general, I'm in favor of cooperation. I think that I will not even ask quetions about rent or compenstion becaue that will be insulting. This is our own contribution to the stability of our own region," said Osmeña. 

But Osmeña felt that EDCA is "one-sided."

Only 3 senators attended the Senate hearing on EDCA on Tuesday. The 3rd was Senator Loren Legarda, who chaired the hearing in the absence of committee chairman Senator Antonio Trillanes IV.

Here are 7 issues raised in the hearing. The committee wants another hearing to invite Defense Secretary Voltaire Gazmin and Foreign Affairs Secretary Albert Del Rosario. The committee on foreign relations headed by Senator Miriam Santiago, who argues that EDCA is unconstitutional, will hold a separate hearing.

1. EDCA expands VFA and MLSA

Osmeña believes EDCA needs Senate ratification. He disagreed with the panel's position that EDCA is an implementation of the Visiting Forces Agreement (VFA) and the Mutual Defense Treaty (MDT).

"It is expansive. You expanded the Visiting Forces Agreement. You expanded the Mutual Logistics Support Agreement. You can expand to 100 bases and it will still not be subjected to the concurrence of the Senate. I think that is unconstitutional," said Osmeña.

EDCA expands existing cooperation arrangements between the Phiilppines and US militaries with 2 new activities – the construction or upgrade of military facilities, and storage and prepositioning of defense equipment and supplies in "agreed locations" that are yet to be determined. 

2. US military may build facilities anywhere in the Philippines

The "agreed locations" to be given to US troops will be limited to existing Philippine military bases. But Marcos noted the possiblity of the Armed Forces of the Philippines (AFP) constructing new bases in areas where the Americans want to have facilities. (READ: 'EDCA allows US military to build anywhere in PH')

The panel assured the senators that locations to be given to the US will be subject to consultations and will need prior approval by the Secretary of National Defense and "probably in a Cabinet-level meeting."

Legarda also wanted assurance that the US will not be allowed to build facilities in wetlands, geohazard areas, and highly populated areas. 

3. The Philippines may have to pay for facilities the US will build

EDCA critics have asked why the US will not be paying rental fees for areas they will be allowed to use. But, as one senator pointed out, it's even worse: Section 2, Article 5 of EDCA details how agreed locations no longer required by the US will be returned to the Philippines including "possible compensation for improvements or construction."

This is where Marcos said: "Magbabayad pa tayo sa itinayo nila.... Masyado naman tayong lugi sa usapang ito." (We would have to pay for what they had built [on our land]. We are at a losing end in this discussion.)

The same goes for the defense assets they will bring in. Section 5 adds: "The parties may consult regarding the possible transfer or purchase of equipment determined to be excess."

Panel member Ambassador Lourdes Yparaguirre said both countries recognize the "benefits" of the prepositioning of defense materiels. The panel highlights the tremendous US assistance to the Philippines in the aftermath of Yolanda. Response will be quicker if the assets are already prepositioned in the Philippines. 

4. EDCA will not help AFP modernization because US facilities and assets will be for the exclusive use of US troops

Section 3, Article 4 of EDCA reads: "The prepositioned materiel of United States shall be for the exclusive use of United States forces, and full title to all such equipment, supplies, and materiel remains with the United states. 

Marcos observed: "Everything they will build, they will use? How are they helping the modernization? We are not getting a good enough deal in my view."

The panel explained that, for one, joint exercises will allow the Filipino troops to train using modern equipment that the Philippines is yet to acquire. Assets acquired by the defense department take years to be delivered.

Marcos wanted more. "I would like to see where, in fact, is that help; how that help is going to be given to the Philippines beyond traning and joint exercises."

5. The AFP cannot check if US ships are carrying nuclear weapons

While EDCA expressly prohibits the US from carrying nuclear weapons, Osmeña said the reality is the US military has a policy not to confirm or deny if they are carrying nuclear weapons.

EDCA stresses that designated officials from the Philippines will have full access to facilities that the US will build. This was a contentious issue during the negotiations and resulted in an impasse. 

"You and I know that we are not going to be allowed to check those facilities," said Osmeña.

"The policy is don't look, don't ask," Osmeña added.

EDCA also doesn't have any provisions that would allow Filipinos to board arriving US ships for inspection.

6. US military will be allowed to operate telecommunications system without Congressional approval

Under Philippine laws, congressional approval is required for a telecommunications franchise.

EDCA allocates the US forces "all necessary radio spectrum" to operate its telecommunications system.

The panel explained that the US military will not be allocated a new radio spectrum. It will share the allocation of the AFP. The panel added that they consulted the National Telecommunications Commission (NTC) before they included the provision in the deal.

7. There is no specific requirement to remove hazardous waste in cases of spill

In cases of spill, EDCA requires the US to "expeditiously take action in order to contain and address environmental contamination resulting from the spill."

Osmeña said this is not enough. "There is such a thing as containment and there’s such a thing as removal. It does not say removal," he said. – Rappler.com