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Seiji Kurosawa

【#352】Form Coalition of Law-abiding Countries Following Philippine Court Ruling

Seiji Kurosawa / 2016.01.27 (Wed)

January 25, 2016

     On January 12, the Philippine Supreme Court ruled that the U.S.-Philippine Enhanced Defense Cooperation Agreement (EDCA) is constitutional. Procedures for the effectuation of the agreement signed in 2014 had been suspended as former Philippine senators had filed a lawsuit claiming that a treaty without Senate approval is unconstitutional.

Judicial ruling to back up government
     Section 25 of Article 18 of the Constitution of the Republic of the Philippines, as cited in the ruling, provides that “foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate,” requiring any treaty to be concluded through due procedures. However, the Supreme Court decided that the new agreement falls within the range of the U.S.-Philippine Mutual Defense Treaty and the Visiting Forces Agreement and does not have to be approved by the Senate, turning down the lawsuit. I believe it was a reasonable ruling.
     Even after the new agreement takes effect following the Supreme Court ruling, U.S. forces will not establish permanent bases or be stationed permanently in the Philippines again. The EDCA provides that U.S. forces will temporarily use Philippine military bases on a rotational basis, meaning that U.S. forces in the Philippines as they used to be will not be revived. Nevertheless, prepositioned materials and the construction of relevant facilities will surely improve U.S. military access to the Philippines. The Supreme Court ruling will not only produce a military deterrence against China but back up government policies.

Counter China in “lawfare”
     In addition to providing a historical observation about U.S.-Philippine military cooperation, the Supreme Court ruling recognized Chinese threat by touching on Chinese activities in the South China Sea that have become subject to a Philippine suit filed with the Permanent Court of Arbitration in The Hague. When I was Legal Affairs General of the Self-Defense Forces Joint Staff, the then Philippine Judge Advocate General told me in an international law conference that the Philippines would never be defeated by China in law warfare and would like to get help from Japan. If we regard the Philippines has been waging “lawfare” against China internationally as well as domestically, the significance of the Supreme Court ruling is not small.
     Naturally, U.S. Secretary of State John Kerry welcomed the Philippine Supreme Court ruling. The new agreement should be implemented promptly. Neighboring Indonesia could have a friction with China over fishing rights in waters around the Indonesian Natuna Islands. On January 22, the Civil Aviation Authority of the Philippines said it would install air traffic control equipment on Pag-asa Island of the Spratly Islands. If China reacts harshly, legal disputes in the South China Sea may intensify.
     How should we respond to such situation? Many countries have common legal interests in the South China Sea, including Japan, the United States and Australia, as well as countries surrounding the South China Sea. If these countries form a coalition of law-abiding countries to come into line with each other, it may become a strong legal countermeasure against China that is repeating lawless actions in the South China Sea.

Seiji Kurosawa is Secretary General of the Japan Institute for National Fundamentals.