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Committee Report No. 163, Senate Resolution No. 788 Status of Visiting Forces Agreement (SOVFA) with Australia

June 4, 2012

Sponsorship Speech
Committee Report No. 163, Senate Resolution No. 788
Status of Visiting Forces Agreement (SOVFA) with Australia
Senate Session Hall
June 04, 2012

Mr. President, distinguished colleagues:

I have the honor to seek approval of Senate Resolution No. 788, entitled “Resolution Concurring in the Ratification of the Agreement between the Government of the Republic of the Philippines and the Government of Australia Concerning the Status of Visiting Forces of Each State in the Territory of the Other” prepared and submitted by the Committee on Foreign Relations on May 30, 2012 per its Committee Report No. 163.

The Philippines at the Strategic Center

The consideration of this Agreement required a serious look at three issues:

1. What are the security threats facing us today versus the threats of fifteen years ago?

2. What does this Agreement mean to the people who are sworn to be the protectors of our sovereignty, and the enforcers of the mandate to protect the Filipino people?

3. Above all, how is this Agreement aligned with the imperatives of constitutional defense?
“Water is going to be the 21st century’s defining battleground,”[1] said Robert Kaplan, a National Correspondent for the Atlantic Monthly.
“Europe is a landscape. East Asia is a seascape,” he adds, as he described Northeast Asia and Southeast Asia as the world’s “new center of naval activity”.[2]
The region hosts the world’s second busiest international sea-lanes and over half of the world’s supertanker traffic passes through the region’s waters.

The Philippines is the world’s second largest archipelago, and has one of the world’s longest coastlines, but we also have one of the most ill equipped maritime forces in the world.

In the midst of these realities is the fact that global terrorism and non-traditional security threats like piracy, sea robbery and smuggling have heightened during the past decade. They have also become organized. For this, we need a better-prepared and better-equipped naval and military force.

The threats are not imagined. On February 27, 2004, 116 passengers were killed and 300 others were wounded in the Superferry 14 bombing. This has gone down in history as the worst terrorist attack in Asia since the 2002 Bali bombing.

The Asian region experienced a 60 percent rise in piracy in 2010, with a majority of attacks occurring in Southeast Asia, thus renewing maritime security anxieties. [3]

Illegal activities at sea, such as human trafficking, trade of illicit drugs, smuggling of arms, maritime terrorism are among the challenges that we face today.

Mr. President, distinguished Colleagues,

We are faced by grave dangers and threats not present fifteen years ago and the Philippines is at the strategic center of all these realities.

A strategic center that has no fulcrum will not be able to realistically wage a sustainable, winning crusade against these regional and global threats.

Shared Strategic Interest with Australia

Understanding why Australia trains our military, and why they seek to have a legal framework that will govern the visits of their troops to the Philippines necessitates an understanding of its strategic interests in the region. National interest demands that we know and understand Australia’s motives.

Australia and the Philippines are two sovereign nations whose survival will be defined by its defense and protection of its maritime domains.

We share with Australia a strong interest in maritime security cooperation and a shared strategic interest in the security of Southeast Asian shipping lanes.

Australia is ASEAN’s first dialogue partner, and is an active participant of the ASEAN Regional Forum (ARF) as well as a party to the Treaty on Amity and Cooperation (TAC).

Building on Cooperation with Australia

Since 2001, Australia has extended defense assistance to the Philippines totaling an estimated PhP1.16 billion.
The Philippines and Australia have undertaken security cooperation over many years, resulting in significant benefits to our defense upgrading efforts, including:

1. Military education and training of an average of 120 AFP officers annually in Australia, costing an average of US$ 26.751 million per year;

2. Contribution of US$ 17.834 million worth of riverine boats as part of efforts to upgrade counter-terrorism and maritime security capabilities;

3. Supporting the implementation of the Coast Watch System to strengthen our capabilities in addressing maritime security challenges;

4. Conduct of counter-terrorism trainings and mutual training assistance to help us develop inter-operability between the special operations units of the armies and navies of Philippines and Australia.

Beyond these, Australia is the largest grant aid donor to the country, with approximately USD235 million aid for 2010-2012. Australia assists us in developing capacities in the field of disaster risk reduction and management such as in the Project Enhancing Greater Metro Manila’s Institutional Capacities for Effective Disaster/Climate Risk Management towards Sustainable Development or the READY project. This strengthens institutional capacities of local government units and national government agencies to manage disaster and climate change risks.

What is SOVFA?
The SOVFA was proposed by the Philippines in 2006, signed in 2007, and ratified by Australia on the same year. President Aquino ratified it on 23 December 2010.

The SOVFA is not a product of any country’s desire to expand and preserve its position of advantage over others.

Anchored on the 1995 Memorandum of Understanding on Cooperative Defense Activities with Australia, the Agreement provides for enhanced bilateral defense and military cooperation between the Philippines and Australia through exchange of visits.
SOVFA is intended to enhance cooperation on maritime terrorism and other security threats.

It defines the rights as well as the responsibilities between the visiting forces and the host government on such matters as criminal and civil jurisdiction, claims, entry and exit of personnel and property, movement of vessels, aircraft and vehicles and carrying of arms, among others.

The Agreement provides, in no uncertain terms, that “visits by personnel of either Party will be organized and conducted in accordance with the laws, regulations and procedures of the receiving country.”

Without the SOVFA, defense cooperation between the Philippines and Australia will be limited to tabletop exercises.

SOVFA: Benchmark for Future Agreements
The SOVFA offers a benchmark for future bilateral or multilateral arrangements of a similar nature. Let me tell you why.

1. The SOVFA was crafted in a manner that ensures respect for and ascendance of laws of the Receiving State. The benefits extend beyond education and training, as they also include assistance in disaster response and other humanitarian activities.

2. The SOVFA does not confer basing rights nor will it authorize either country to deploy troops or conduct operations in the other’s territory.

3. It is reciprocal, which means that it envisions Philippine forces visiting and conducting joint exercises with Australian forces in Australian territory.

4. It addresses the sensitive issue of criminal jurisdiction through a clear set of rules. [4]The authorities of the Receiving State have jurisdiction over visiting forces with respect to offences committed within the Receiving State and punishable by the law of the Receiving State, but not by the law of the Sending State.

5. Where there is concurrent jurisdiction, or where an offense is punishable under the laws of both the Receiving and Sending States, the Sending State has the primary right to exercise jurisdiction ONLY in relation to offences against its own property or security, or property of another member of the visiting forces, or offences in the course of official duty. The Receiving State has primary jurisdiction over ALL OTHER OFFENSES. An offense that falls outside official duty clearly falls under the jurisdiction of the Receiving State.

6. A Joint Committee, composed of representatives from both the Philippines and Australia, not a military commander, is vested with the duty to resolve jurisdictional issues, if such should ever arise. Such issues may also be submitted to LOCAL JUDICIAL AUTHORITIES for resolution. This is a provision which clearly addresses concerns borne out of previous experiences.

7. The provisions of the SOVFA on criminal jurisdiction do not grant to offenders any kind of immunity from criminal prosecution for offenses committed in the Philippines.

8. No offender from the visiting forces who commits a crime in the Philippines will escape justice under the SOVFA.

9. It has specific provisions on claims[5] for loss or damage to property and injuries to or death of both visiting forces and third parties.

10. Article 23 expressly provides that the Sending State shall cooperate with the Receiving State to prevent any abuse or misuse of the privileges granted and proper discharge of the obligations imposed on visiting forces.

Environmental Protection

The SOVFA with Australia sets a precedent in defense agreements in that it has unique provisions on environmental protection.[6] The Agreement explicitly prohibits the conduct of exercises or other activities in protected areas, ancestral domain areas, critical watersheds and protected forest areas. It also provides that any environmental damage will be subject to claims and compensation and that the Sending State will be responsible for the rehabilitation of damaged areas.

Conclusion

Mr. President, a well-formulated bilateral agreement is just one part of the equation. The strict enforcement of its provisions and the close monitoring of its implementation is the other part.

By our Committee Report, we ask the following agencies of government to establish the necessary monitoring and administrative mechanisms with the view to ensuring strict compliance with our laws by the members of the visiting forces. Specifically, we ask:

• The Department of Environment and Natural Resources (DENR) to closely monitor all SOVFA activities toward ensuring that these activities do not violate any of the environmental laws and ordinances of the Philippines;

• The Department of Justice (DOJ) to draw appropriate guidelines that will prevent conflicts on jurisdictional issues and uphold the primacy of Philippine jurisdiction, in accordance with the provisions of the SOVFA;

• The Department of National Defense (DND) to maximize the benefits of the Agreement, consistent with the objectives of the National Coast Watch System, and to improve disaster risk reduction and management. We also ask the DND to formulate a clear, long-term national defense and security strategy that would also reflect a list of equipment, armaments, hardware, and other necessary provisions for the benefit of the men and women of our armed forces.
The realities facing our armed forces frequently escape us because our roles and status shield us from the conditions and inadequacies they experience everyday.

Mr. President, the realities facing our armed forces are discomforting. We had the best naval force in Southeast Asia between 1960s and 1970s. Our navy is now one of the weakest, not in terms of the grit and determination of our forces, but in terms of naval assets. We need to find means by which the internal resources we devote for AFP modernization may be boosted by a regime of cooperation with allies with whom we share strategic security interests.

I endorse this Agreement on a clear understanding that we have the prerogative to exercise the option to unilaterally terminate this Agreement, if, at any time, we deem it to have betrayed the objectives it was set out to achieve.

Mr. President, I will be the first to reject this measure if I do not see its value in terms of serving our interests as a nation. As a reserve Air Force Lieutenant Colonel, I have an unswerving commitment to defend our constitution. As a Filipino, I am duty-bound to help our soldiers fulfill their duties as vanguards of national security.
Mr. President, distinguished colleagues, I respectfully urge you to concur in the ratification of this Agreement. Thank you.

[1] The South China Sea Is the Future of Conflict, published by the Foreign Policy Group, a division of The Washington Post Company, 2012.

[2] The Article “The South China Sea is the Future of Conflict” describes East Asia as consisting of two general areas: Northeast Asia, dominated by the Korean Peninsula, and Southeast Asia, dominated by the South China Sea.

[3] Rommel C. Banlaoi , Maritime Piracy in Southeast Asia: Current Situation, Countermeasures, Achievements and Recurring Challenges, 2011.

[4] Article 11.
[5] Article 21.
[6] Article 12.