Still Waiting for the US-Philippine Defense Pact

On December 16, the Philippine Supreme Court once again deferred voting on the constitutionality of the U.S.-Philippine defense pact inked in 2014, effectively punting the decision to 2016. Even if the Philippines eventually does finalize the Enhanced Defense Cooperation Agreement (EDCA) as expected, Manila’s continued failure to do so thus far has not only undermined confidence in the U.S.-Philippine alliance, but delayed ongoing military modernization by adding to the uncertainty about the country’s trajectory abroad more generally.

The Court’s deferral in December is the third since the case was first heard in November 2014. While concerns about the pact are many, debate centers largely around the constitutionality question of whether the EDCA is an executive agreement in line with the U.S.-Philippine Mutual Defense Treaty of 1951 as the administration of President Benigno Aquino III contends, or an entirely new treaty that would require Senate concurrence by a two-thirds majority, as its opponents argue. If the Court decides that it is the latter, the pact risks being defeated in the legislature.

Philippine officials still privately say that the Court will eventually side with the administration, and that a favorable verdict is a question of when rather than if. Following the postponement of the ruling, The Philippine Star, a local daily, cited a court insider as saying that at least three of the 15 Supreme Court justices believed the EDCA was unconstitutional and should be voided – still far from a majority.

Nonetheless, the foot-dragging has a cost. First, it has undermined confidence in the U.S.-Philippine alliance by slowing the momentum initially built up by the signing of the EDCA in April 2014 ahead of a state visit by U.S. President Barack Obama later that month. U.S. officials, The Diplomat understands, had earlier been hoping for the case to be closed in July 2015, well ahead of Obama’s arrival in November for the Asia-Pacific Economic Cooperation (APEC) summit in Manila. That would have provided them with the opportunity to justify a more robust set of deliverables, including clarifying the scope of America’s commitment to the Philippines under the Mutual Defense Treaty which Manila has long desired.

It would also have eased lingering doubts in Washington about the reliability of its treaty ally. The potential for a legislative vote on the EDCA – no matter how small – conjures up nightmares of September 1991, when the Philippine Senate voted to terminate America’s decades-long military presence in the country in a razor thin 12-11 vote.

“[I]f…the agreement is not in place before Obama’s visit, the White House will have to ask whether the Philippines is serious about implementing its treaty alliance with the United States,” Ernest Z. Bower, the head of the Southeast Asia program at the Center for Strategic and International Studies, a Washington, D.C.-based think tank, wrote in May. In Washington’s eyes, watching on as the deadline slipped twice more after July and into 2016 has been a frustrating process.

Beyond U.S. perceptions, the delays also have a very substantial impact on Philippine military modernization efforts. The Philippines – one of Asia’s weakest militaries now rushing to close the gap with its regional peers – aims to achieve so-called “minimum credible deterrence” over the next decade or two in the face of various threats including China’s growing assertiveness in the South China Sea. The EDCA is a critical part of this. It would allow American and Philippine military planners to begin implementing arrangements already made, including the construction of new facilities and the strategic prepositioning of defense equipment for various contingencies.

Keeping military modernization plans on track is essential for the Philippines because time is not on its side and its credibility is already in short supply. Implementation delays would only reconfirm Chinese perceptions of Philippine weakness and risk emboldening Beijing just as the Permanent Court of Arbitration at The Hague prepares to issue its ruling on the South China Sea case in mid-2016. And as former U.S. Pacific Commander Samuel Locklear emphasized during a visit to Manila this month, beyond the South China Sea, the arrangements under the EDCA would also be useful for other areas like humanitarian assistance and disaster relief, no small concern for one of the world’s most disaster-prone countries.

Third and finally, the continued foot-dragging on the EDCA contributes to broader international uncertainty about the Philippines’ future outlook in the post-Aquino era. For the past six years under Aquino, the Philippines has seen its highest economic growth rates in decades, significant inroads made against challenges like corruption, and modest boosts to its military modernization efforts. But with his term winding down and presidential elections drawing near, it is unclear whether Aquino’s successor will share his reformist streak or instead resemble some of the Philippines’ more ineffectual or corrupt leaders of the past. Observers fret that the potential disqualification of Grace Poe, one of the current leading candidates, could pave the way for the victory of other more worrying personalities, such as current vice-president Jejomar Binay, whose commitment to cracking down on corruption, preserving human rights, and investing strategically in the Philippine military is far from clear.

The longer the EDCA is delayed, the greater the chance that it becomes a political football ahead of the elections in May. Moreover, continued delays mean less time for the Aquino administration to begin implementing arrangements and lay out a clear approach for its successor to continue the effort.

“For us, it’s not just an issue of commitment or capability, but continuity as well,” one Aquino administration official told The Diplomat. Failure to sustain a strategic vision for military modernization and the economic growth that allows for that modernization in the first place risks undermining the EDCA even if the pact is eventually finalized. 

For now, the hope is that a decision on the EDCA will be made after the Supreme Court resumes session on January 12. But after three previous delays, one cannot help but to stay a tad bit skeptical.