Buencamino writes political commentary for Action for Economic Reforms.  This article was published in Business Mirror December 27, 2006  edition, p. A6

The announcement was made by US Embassy press attaché Matthew Lussenhop and the reason he gave was, “…the current custody issue. The usual protection for US servicemen remains in doubt.”

The usual protection Lussenhop refers to is the VFA (Visiting Forces Agreement) provision that says that US servicemen accused of committing crimes in the Philippines are to remain in US custody until the judicial proceedings against them are completed. The misunderstanding arises from when those proceedings actually end.

US ambassador Kristie Kenney accused the Philippines of not complying with the VFA. But she was kind enough to allow the Philippine government to work its way out of its non-compliance.

She said, “What we’re working to do is to bring both sides into compliance. It’s an important agreement, it’s important for credibility internationally for the Philippines and the US that we honor that. But we’re working hard to do that together.”

The US has troops stationed all over the world, and they believe they are doing the world a favor. In return, one of the things they ask for is, as Raul Gonzalez said, “to be sure their soldiers were out of harm’s way.”

The Philippines is not the only country in the world that has experienced custody issues with US servicemen. Italy, Germany, and Japan, to name a few, have had similar problems. Their problems were resolved without any lasting effect on bilateral relations because one side eventually accepted that the fate of the weaker is always in the hands of the stronger.

In addition, they didn’t have a justice secretary lawyering for the other side and uttering inanities like, “I really can’t blame them because suppose another incident happened and some people want to take advantage of it?” In those countries, government factotums at least went through the motions of recognizing and defending their country right or wrong.

The Philippines and the US forged a VFA with mutual security in mind. However, each interpreted mutual security according to its needs. For the Philippines it was military assistance and foreign aid. For the US, it was to have a training facility, a forward base, and a permanent presence in the area.

When the two countries signed the VFA, the biggest obstacle was the constitutional ban on “basing.” Thus the agreement was termed as a visiting forces agreement. However, the US would not visit unless its troops enjoyed the protection and privileges they enjoyed under the old bases agreement. The Philippines, for its part, could not surrender sovereignty all over again, for legal and, more importantly, political reasons.

A compromise was reached. The US would recognize Philippine jurisdiction over criminal offenses, but it would exercise custody over accused personnel. Some people have compared this set-up to the old “occupancy is 99 percent of the law” argument that squatters rely on. But that’s the way it is. We agreed to the set-up.

The Senate ratified VFA as a treaty and it is binding on the entire nation until it is abrogated. When we say our hands are tied because our courts are independent, the Americans have a right to complain and tell us to straighten up our courts and make them understand the terms of the treaty our Senate ratified and the Supreme Court declared constitutional. The US merely signed an Executive Agreement. It binds only the president who signed it. When he says he can’t live up to, let’s say, his foreign aid commitments because his Congress is independent and won’t appropriate funds, we cannot complain.  We signed a treaty, they signed an Executive Agreement.

When the US acts with regard to the welfare of its troops abroad, it knows that whatever it does will have implications in other places where they have a presence. The Pacific Fleet commander was thinking global when he said, “The last thing we want is to undo all the good work that has been done between the Armed Forces of the Philippines and ourselves, but this puts me in a real dilemma because I need to guarantee the safety of our forces… I have to have guarantees that I can trust their safety to an international agreement.”

The US will never volunteer to surrender its servicemen to the jurisdiction and custody of any foreign country.  It has no basing treaties or executive agreements with any country that does not agree to a protection clause. We have to decide whether we want to live with the VFA or not because the protection clause is non-negotiable. Take it or leave it.