On the Phil-US negotiations on increased rotational presence

Foreign Affairs Secretary Albert del Rosario said the “increased rotational presence” was a policy agreed on two years ago. Defense Secretary Voltaire Gazmin said “high-value and high impact exercises” will serve as the “modality” for the increased presence of US troops in the country.

Negotiations began yesterday, August 14, between the Philippine and US governments regarding “increased rotational presence” of US troops in the Philippines. Exactly what that means is something that has yet to be 1) made clear and 2) negotiated, if one goes by what members of the Philippine panel said in their press conference last Monday, Aug. 12.

This much was clear: the “increased rotational presence” was a policy agreed on about two years ago; high-value and high impact exercises will serve as a “modality” for this increased rotational presence; and an agreement is needed to “institutionalize” this policy.

This is a transcript of the press conference last Monday. I will post later (when I figure out how) an audio record of the presser itself, so readers can check if there errors or inaccuracies in the transcript (there were some words I couldn’t hear clearly, especially towards the end).

The panel members are: Defense Undersecretary Pio Lorenzo Batino; Defense Assistant Secretary Raymund Jose Quilop; Foreign Affairs Assistant Secretary Carlos Sorreta; and Justice Undersecretary Francisco Baraan III.

Q&A:

 Alexis Romero, Phil Star:

Q: I would like to ask, how many US troops will be deployed from time to time and what equipment will be brought into the country, in line with this agreement?

Batino: Thank you for that question. The framework agreement will only provide general parameters and principles under which the increased rotational presence would be implemented; it will not provide details with respect to the size and shape of each activity mutually approved by the Phils and the US. We must emphasize that there would be an annual or regular consultative mechanism; presently it is the mutual defense board and the security engagement board, an annual meeting or series of meetings between members of the AFP or officers of the AFP and officers of the US Pacom. It is through this mechanism that our AFP would have a chance to assess and study the proposed activities for the coming year. I must emphasize that this mechanism is an annual mechanism, and it is through this mechanism that the AFP will be able to discern and assess if the proposed activities would be mutually beneficial to both the Phils and the United States. That is a very important principle that we will insist on in the negotiations for the framework agreement which is the concept of mutuality of benefits. Your negotiating panel will only recommend the execution of a framework agreement if it is convinced that it will serve national interest and it will strengthen the defense posture of the Phils. Thank you.

Q: Just a follow-up. Do you have a timeframe as to when do you intend to come up with an agreement and schedule for that and when we will you finish that agreement…

Sorreta: Thank you for that question.  We have examined the issues at hand, we have examined the language, we have examined where there’s confluence of interest and where there are issues that we still need to negotiate, and based on all that we estimate that it will not take less than four rounds of negotiations at the minimum.

Q: In terms of months?

Sorreta: We count it in terms of rounds, we can’t really say how many months, how long will it take.

Q: Venue?

Sorreta: We will discuss venue at the end of each round of negotiation but the alternating principle, as pointed out by Charmaine, will guide us.  The first round will be here, the first round will be on Wednesday, we’ll start in the morning and it will be at the DND building, there will be media coverage but I understand it will be pooled photo and video only, for the start, and you can coordinate with Dr. Galvez. The press briefing, we are likely to finish the first round towards the evening so we will have to brief you the following day which will be Thursday, probably on Thursday morning I believe, we leave the details and the announcement to Dr. Galvez.

Charmaine Deogracias, NHK:

Q: Sir I’d like to know, what form, or what is the nature of the agreement, will it be an executive agreement, what signatories will be needed for it to be binding? Also I want to know if it’s going to be open to accession by other countries, and can you describe to us the personalities of your counterparts?

Sorreta: Last question first, personality will be, the head of the negotiating panel for the United States is Ambassador Eric John. He is the senior negotiator for military agreements of the State dept, he is well versed with our part of the world. He was formerly ambassador to Thailand, he’s held senior positions in the State dept, he is a very senior diplomat. Next question is the form, right now everything is, we’re work…this is a work in progress, we’re looking at this agreement to be between the Dept of National Defense and the Dept of Defense of the United States and therefore the signatories would be representatives of those departments. That’s what we’re working on right now, I caution though,  that things that we say now will develop and we will be able give you more details as it goes on. For example we have a working title to the agreement, but it’s still difficult to discuss it, it is a negotiation after all. There’s nothing final until the last round, although we may agree on the first round on certain language, and certain formulations, these things as negotiations go, these things are revisited towards the end and like Undersectary Batino said, our authority is just to negotiate. There will be a separate authority required from the Office of the President, if we recommend that we enter into this agreement. The agreement will be bilateral in nature, there is no language in it right now that contemplates a situation where a third party would accede to the agreement. We have not even thought about it, it’s not likely to happen, that much I can say.

Q: In the preliminary consultations, the low-level ones that took place, what were the requirements from both sides that were identified that made you come up with the decision to make a framework agreement, perhaps those requirements that were not covered by the VFA and its terms of reference that you needed this separate framework agreement?

Sorreta: Everything will be, there will be nothing outside of the VFA. We are not renegotiating the VFA in this process, we are having consultations on the VFA on a separate track, incidentally with the same person, Ambassador Eric John because he is in charge. We are going over the VFA trying to come up with guidelines that will clarify some of the issues particularly raised by the Supreme Court so we are not reinventing anything, we are reinventing the MDT or the VFA. There is a separate process, I think we will do a briefing on VFA soon, separately.

Q: Why separately? If everything is under the VFA, why come up with separate nego?

Batino: We have seen in the past that executing agreements, that when countries execute agreements, they build a greater momentum to the strengthening of their relationship, in this case we both, both countries would want a strengthening of the alliance to the execution of this agreement. Executing defense and military agreements strengthens alliances. It is a position of the Dept that a stronger alliance with the US creates a stronger defense posture for the Phils.

Sorreta: Also if I may add to that, when we agreed on a policy with the United States on increased rotational presence, you have been hearing about this policy for a past year or so.  We are now going to be institutionalizing this policy; the contemplated framework agreement will indicate what are the activities under increased rotational presence. When you talk about increased rotational presence, it seems a good policy but it’s still abstract, we’re going to put down on paper what can be done, what can’t be done, where it will be done, where it should not be done, you’re going to see eventually modalities, like we said parameters and types of activities, going to a like more specific…and of course approving authority. Like undersecretary Batino said, each activity will be subject to approval. This framework agreement by itself does not authorize any activity, it sets the parameters, it’s up to the Phils to approve each activity, when if it feels that it is to our benefit and it is not detrimental to our interest or to our constitutional laws, then there is that mechanism for approving it.

Batino: May I add something. As pointed out, the Mutual Defense Treaty and the Visiting Forces Agreement have already provided the legal framework covering the temporary presence of US forces in the Phils and also the corresponding access to facilities, to Phil facilities. However we can take advantage of this opportunity to provide clearer safeguards for the protection of our national concerns, and these concerns we will discuss with the US panel come negotiations.

Nikko Dizon, PDI:

Q: This is for Atty. Batino. What is our security assessment at this point, of course we’re not mentioning China, but it is our main concern right now, so what is our security assessment that really necessitates this kind of an access agreement with the United States?

Batino: We’ll lets talk first about the modernization efforts of the AFP, which has for its objective the attainment of a minimum credible defense posture at the soonest possible time. All the activities of the DND and AFP, including the AFP modernization program and including the forthcoming talks with the US for a possible framework agreement for the implementation of the increased rotational presence, is to address that concern, to enable the AFP to be able to protect the territory and sovereignty of the country which is its primary mandate under the constitution. It is to address all threats, against our territory, and to protect our sovereignty.

Joel Guinto, Bloomberg:

Q: Are we looking at additional exercises with this agreement, or will there be an expansion of existing exercises like the Balikatan?

Batino: Not necessarily larger presence as reported in the newspapers; not necessarily. As mentioned, the Mutual Defense Board and the Security Engagement Board will be the approving mechanism for the activities for the coming year so it is up to our AFP officials to assess what activities to approve for the coming year based on the benefits that it will derive such as training benefits and other benefits. It is also the position of the department that there should also be a focus on high impact and high level training exercises and activities. This position could also manage the footprint of the activities of the Phils and the US within Phil territory.

Dana Batnag, Jiji Press:

Q: I just want to restate Charmaine’s question. What are the things that you cannot do with the existing agreements that we have now, which makes it necessary to enter into a new agreement? Why do we need to enter into this one? What are the things that you cannot do, that you want to do, with the existing agreements that we have now?

Sorreta: I believe that’s been asked and answered but I, there are things that we can do under the existing the agreements we have, but we have a policy now with the United States on increased rotational presence and we want to institutionalize it.

Q: So that policy of increased rotational presence is not considered institutionalized even though it is under VFA and ACSA?

Sorreta: ACSA?

Q: We have this access exchange agreement.

Sorreta: The Mutual Logistics Support Agreement. The VFA grants status, it does not list the activities that should be done, this framework agreement will list very clearly for all to see what the activities will be.

Q: But those activities will anyway fall under the MDB, and the MDB plans the activities, so are there activities that you want to plan that cannot be done now, without this agreement?

Sorreta: There are activities that we can do; there are activities that are done better with this agreement, in terms…

Q: What are those activities?

Sorreta: These activities we will briefing you on as we go on with our negotiations, as you understand we have ideas of what these activities should be, the focus, particularly and the United States will have their ideas and we will be negotiating this.

Q: But in the initial negotiations with the US, you have a general discussion on what these activities, no specific activities but the range…

Sorreta: We have these discussions and we will brief you as we move on; I’m not going to negotiate this agreement through you Dana, I hope you can understand…

Q: Hindi naman. We’re just trying to understand what you will be talking about. Activities, pero pag sinulat namin, what are those activities, and they involve what…

Sorreta: Right now it’s up for discussion, we have a set, in our minds and in our negotiating parameters and though I’d love to tell you what these are, but I hope you understand, it’s a negotiation.

Q: Okay ganito na lang. Some activities are better done with this framework agreement. But are there activities that cannot be done without this agreement?

Sorreta: There are activities that…you might want to ask that question with the United States in terms of their ability to engage in some of these activities. That would probably…you want to…let’s see…I mean, why don’t we…to get their right positions…go ahead and ask them and tell us what they tell you.

Q: So parang they’re the ones who really need this more than us?

Sorreta: They need us, they want…they have their needs for this agreement, we have our needs. And as we negotiate these will be revealed.

Manny Mogato,Reuters:

Q: For Usec Baraan. Sir, because this is a new framework agreement, do you think that this needs Senate concurrence, or is this just a simple agreement, like when we had the SEB under Gloria, there was no senate concurrence. Do we need approval from Senate for this new agreement?

Baraan: Should there be a new agreement, it would not partake of the nature of a treaty that would need Senate concurrence. This has been emphasized already. This will be based on the Mutual Defense Treaty and the VFA. It’s more of an implementation…of existing treaties with the US.

Q: So it’s another executive agreement like the SEB? Because originally the umbrella agreement was the MDT in 1951. Then under MDT we can only have US forces in the Phils for training and exercises, and their presence here is legitimized by the VFA. Which was again concurred by the Senate. But in 2005 when we had the SEB, there was no Senate approval. So this agreement is similar to the SEB, are you saying that?

Baraan: It’s similar to that. It’s more in the nature of an executive agreement, which doesn’t need Senate approval.

Q: Because we are talking here of activities which are training and exercises, which are allowed under the MDT and specified in the VFA, and Secretary Gazmin, in his comment earlier, talked about prepositioning of humanitarian equipment.  Will that prepositioning need a new agreement?

Baraan: …Will just establish parameters for increased rotational presence of the US military in its facilities and its relations. In other words, for every activity, we will see to it that it will require the consent of the Philippine government. We will not in the meantime discuss what kind of access, what kind of use will be done in these facilities. Because as I said, those details will be subject to discussion and finally to final consent by the Phil gov’t.

Q: Yes sir. Because the increased rotational presence is a very big and a broad statement, which we cannot understand. And probably if we will write that story, and explain to our readers, the Filipino people, who are the stakeholders here, how would we say what is increased rotational presence? Does it mean we will see more US troop presence, ship and aircraft in Philippine bases, coming in and out the whole year for training and exercises and other activities that you are now planning? And the preposition of equipment, which the secretary said earlier, what does it mean? What kind of equipment, what kind of materials should be allowed? Does the preposition of materials need another, is that the reason why we have this agreement?

Batino: Thank you for that, and if I may be allowed to answer. The increased rotational presence is a policy approving for a higher level of defense cooperation between the Phils and the United States. The prepositioning, if I may just go back to the VFA, the VFA expressly states and is also supported by the Supreme Court in one of its decisions, activities can be allowed here in the nature of temporary presence of US troops and equipment provided that they have consent of the Phil gov’t.  That is why it’s very important to emphasize that the importance of the Mutual Defense Board and Security Engagement Board where your officials of the DND and AFP study carefully the proposed activities for the coming year. And it is also through this regular consultative mechanism that activities such as prepositioning of equipment could be studied by the AFP to determine if the same would provide benefits for the AFP. That is the point of it all, that is the crux of the matter, we have a consultative mechanism which will be the source of our assessment of activities.

Q: Final question. When you said prepositioning of equipment, so will we see fighters, surveillance planes, littoral ships or increasing the presence of troops on the ground? Because we now have 600 US Special Forces in Mindanao under SEB and under VFA. Because we are prepositioning equipment, probably gensets, water filters, tents, and other materials for humanitarian, but we would also need heavy lift helicopters and C-130s to transport these equipment for disaster, because this is for disaster, I hope. That would mean more manpower on the ground, for the US. For servicing, for admin, for whatever. So that would transform some of our bases into big warehouses for these US forces. Is that the reason why we are having this agreement?

Batino: One of the possible benefits for the Phil gov’t, for DND and AFP particularly, is the possibility of these temporarily-deployed equipment to be used by the Phil gov’t for key mission areas such as maritime security, maritime domain awareness and humanitarian assistance and disaster relief. We must emphasize though that the DND and AFP is in the process of procuring modern defense equipment. However, we believe that those US equipment to which we agreed to be temporarily deployed could supplement the AFP’s capability to perform its functions in these very important areas, maritime security, maritime domain awareness and humanitarian assistance and disaster relief.

Chrissy Crowley, YLU Radio Finland:

Q: I’m not sure if this is some sort of very simple question that everybody knows already, but I just would like to clarify. Are US troops already as it is allowed to patrol in the South China Sea or West Philippine Sea area, and would this kind of framework agreement have any impact on this?

Sorreta: Thank you. Under the UN Convention on the Laws of the Sea, there are military activities that can be conducted by non-coastal state ships. There are areas where they will require permission, and there are areas where permission is not required. There seems to be an impression that they are patrolling territorial waters or internal waters, no they’re not. While we may not have enough ships and planes to do it, our brave men and women in uniform are doing that. If you see US ships outside these areas, and in the South China Sea beyond areas where we have absolutely sovereignty, the activities are governed by customary international law and the UN Convention on the Law of the Sea. There’s more to military ships than the VFA or MDT, there’s a whole world of norms that exist since warships started plying the oceans, that govern their behavior. Many of that’s been enshrined in the UNCLOS, the US is still not a party, they adhere to what has evolved over the 500-600 years, as customary norms or the law of the Sea. It’s a very complex regime but right now we see no violation of these norms.

Q: As it is now, what for example, would for example the US ships be able to go there? If there is a standoff, would US ships be able to go there? Will this agreement be able to change situation?

Sorreta: One of the hardest things for negotiators to answer are hypothetical questions. We have a task ahead of us and going and answering hypothetical questions might not contribute to that.

Q: But as it is, right now, will US ships have a right to go to that area?

Sorreta: Yes there’s freedom of navigation, ma’m, not sure what your intentions, the intentions you have in your mind are. There is freedom of navigation. Even in archipelagic waters.

Michael Fajatin, GMA7:

Q: For the Filipinos who are listening, where are we now, where do we stand now in terms of our relationship with China in this conflict? Is it not really that solvable, that we want a new agreement? Would you tell us if the ordinary Filipino should be concerned or alarmed of this threat, as to have these agreements, with the US?

Sorreta: Thank you for that question. With regard to the situation we have with the People’s Republic, we are certainly for peace, but we are not for appeasement. There is a world of difference between those two, and within that world intersects diplomacy and defense. Now having said that, that we are for peace, but we are not for appeasement, we are engaging in this exercise of negotiations not to please the United States but in pursuit of our own interests and in the context of our Constitution and laws. That’s as much as I can say in terms of that question. Anymore specifics you might have to ask Raul over there who’s always very popular with Chinese media. He’s happy now, he’s not…

Dario Agnote, Kyodo:

Q: Just a clarification, who initiated this? Is it the Phils or is it the US?

Sorreta: As we discussed the need on a policy level for increased rotational presence, we felt that it should have a framework if only to be able to explain to the public what we are going to be doing. Like that gentleman said, what is increased rotational presence? This agreement once it’s concluded will answer quite categorically what it is and more importantly perhaps what it is not. So when you have a policy, the policy becomes an endless loop of rhetoric. And especially when it’s a very important policy, particularly in the areas of diplomacy and defense, you don’t want it to stay in that amorphous realm of generalities and rhetoric. You want to transform that, you want to institutionalize that, on the ground, in an agreement, and especially for strategic messaging in the region. That’s, eventually we sat down and said, you know we’re talking about increased rotational presence, let’s make sure that we have a framework to do it, what can be done, what can’t be done, where it can’t be done, the authorities necessary. That’s how it evolved. And the United States has experience with these rotational presence agreements and they were able to come up with the initial language which we have looked at and which we will be, as I said, negotiating, minimum, I wish it could be faster but minimum of four rounds, Dario. Four rounds. I hope it doesn’t take too long.

Nikko Dizon, PDI:

Q: Critics are saying that an increased rotational presence is merely euphemism for basing? Are we just skirting the Constitution here to allow the US military to stay here for a longer period of time?

Sorreta: As we brief you, you will see as it evolves, this is not the bases that we had before. Nor is it the bases agreement that was not concurred in. This is the 1991 Bases Agreement that the Senate did not concur in (holds up draft) as you can imagine it’s a very lengthy document. I anticipate that when we’re finished then we can share a draft with you, it’s going to be this much (about one-fourth of the draft basing agreement). It’s not a basing agreement. If you have patience enough you can go through this, and you will see it’s not the same. We can assure you that. We’re not even thinking about it.

Tress Reyes, Nikkei:

Q: Can I just clarify. You will have four rounds?

Sorreta: Minimum.

Q: You expect that by the end of the year, you will have such framework agreement in place? And it will be signed by the DND, defense secretaries, and therefore will not be signed by  the heads of govt? One other thing I want to clarify. Because we do have problems with the VFA, right? We have said for the longest time that there are provisions there that are not necessarily mutually beneficial. How do you expect to correct these and why do you have a separate negotiation regarding the VFA, from this one?

Batino: If I may just answer your questions about the Department of National Defense. That is the direction as of now, as mentioned by Asec Sorreta.  We cannot be definite yet on these things, even the title is up for discussion and to be negotiated. The position of the Phil govt is that this framework agreement should be confined to be merely an implementation of the Mutual Defense Treaty and the Visiting Forces Agreement. And as your DND and AFP are the main implementors of those treaties, or the main actors for the country for these treaties, then it is the general direction of the panel that this will be a DND of the Phil and a Department of Defense of the US framework agreement.

Q: Can you just clarify regarding the negotiations with the VFA, and differentiate it regarding this one, and regarding this transparency, because the US is not that transparent either on military activities. How transparent do you expect to get when it comes to revealing exactly what is going on and what activities exactly you want to take place.

Batino: We have clear directives from the Office of the President that we should be briefing media, we should be briefing Congress, and of course reporting to the Office of the President regularly. I am new in government but I was informed that this is the first time that this will happen, that there will be regular briefings during negotiations. It will be a very tricky system to implement as we have two interests to balance, one is to inform media, inform the public about what’s going on, but at the same time we cannot divulge too many details in the process of negotiations because this will unduly hamper the negotiation strategies of the panel.

Q: You have some clarifications regarding the VFA and you have been saying for the longest time that it’s not a perfect agreement and therefore would have to be renegotiated. And then you have this other thing now, going on.

Sorreta: We can walk and chew gum at the same time, we can do two things at the same time. We have been discussing, started as early as 2011, I believe, discussions on VFA. There’s been an internal inter-agency that was formed thru a resolution issued by the VFA Commission to do precisely this. I think that was Sept or Dec 2011. That body has met, and has come up with internal guidelines, these guidelines have been discussed with the United States. These guidelines are designed to clarify some of the issues that were raised, particularly the issue of an agreed detention center, under paragraph 10 of Art 5 of the VFA, which was the dispositive portion in the Nicolas case. We hope to conclude these discussions with the United States on VFA shortly…Like I said, it’s the same guy who’s…

Q: You expect to finish the VFA first before this one?

Sorreta: No. it’s a separate process. I know it seems like it’s all one and the same but it’s a separate process.

Q: But one does not go before the other?

Sorreta: We’re starting negotiations on framework agreement on Wednesday, we’ll not certainly conclude negotiations on VFA by that time. If you ask me, off the record, personally, I think we’ve reached that point on VFA consultations where we might be ready to enter into some formal process where we will restate each other’s understanding, and that would happen before the end of the negotiations of the framework agreement.

I guess to address, we’re not renegotiating the VFA. Under treaty law, States can engage in discussions, what they interpret, what’s their common interpretation. If you look at Art 31 of the Vienna convention. The United States is not a party but they adhere to this…Once states have entered into treaty, they can meet afterwards and discuss…the process, and I can’t discuss specifically but Charmaine suggested,perhaps an exchange of note. Your other question is how long the four rounds will take. As negotiations do, after the first round, the second round depends on how much internal consultation we’ll have to do..…it can be a week, it can be two weeks…But what we promise you is we will be very robust in our internal consultation. After each round the panel, will meet discuss with principals…you can’t really schedule it, one round here, depends on what happens with each round.