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A Paper on the Legal Status of the US Military Bases in the Philippines
The topic of this paper is the legal status of the US Military Bases in the Philippines
in light of the Enhanced Defense Cooperation Agreement (EDCA). This paper will try
to answer the following questions: 1) was there cession of Philippine territory in the
1947 Military Bases Agreement (MBA)? 2) Were the bases subject to the
extraterritorial application of US law? 3) What is the nature of the Philippines' title
to the bases?
I.

Historical background of Military Bases Agreement

a. Philippine-US Historical Background
The Philippines and the United States has a longstanding love-hate
relationship. On one end it is characterized by a savior-saved
relationship. On the other end it is portrayed by an exploiter-exploited
relationship. The timeliness of the Spanish-American war with respect
to the 1989 Philippine revolution has given the impression that the
Americans were indeed our allies. As a result of the United States'
success in the Spanish-American War, Spain, which had reigned over the
Philippines for almost four centuries, surrendered the country in 1898.1

1 Bayoneto, M. (2011). The Former U.S. Bases in the Philippines: An Argument for
the Application of U.S. Environmental Standards to Overseas Military Bases,

When the Americans defeated Spain and when Spain subsequently

abandoned the Philippines, the US was perceived as the Philippines
savior and liberator. It was only later that the Filipinos realize that the
Americans did not fend of Spain to liberate the Philippines. Quite the
contrary, the Americans were to take up where the Spanish had left
off. The Filipinos were deceived. We were not being liberated. We are
only given a new master.
However the American colonizers were unlike their Spanish
predecessors. They introduced educational, economical, technological
and legal systems in the Philippines that benefited the people. The
most noteworthy of which are the economic, educational and justice
systems.
For example, [u]nder a trade agreement, the Philippines was given
preferential economic status by the United States that allowed duty-free
entry of Philippine goods until 1954. In return, U.S. citizens were
conferred parity with Filipinos in the exploitation of the Philippines's
natural resources until 1954.2
In 1902, the American-Filipino war ended by the enactment of the
Philippine Organic Act. It provided for the creation of an elected

Fordham Environmental Law Review (Article 1 ed., Vol. 6, p. 111-115). The Berkeley
Electronic Press (bepress).
2 Id.
3 Act of Congress of July First, Nineteen Hundred and Two, The Philippine Bill. An

Philippine Assembly subject to certain conditions.3 The Philippine

Organic Act also placed the control of the of Philippine Island to the
Philippine Government except such land or other property as shall be
designated by the President of the United States for military and other
reservations of the Government of the United States. 4
b. 1947 Military Bases Agreement
At the end of the World War II, in 1947, the Philippines and the United
States entered into an agreement granting the United States the right
to use twenty-three military bases in the Philippines, including Clark Air
Force Base and Subic Bay Naval Base, for ninety-nine years. In return
for the use of the military bases, the Philippines received millions of
dollars in aid, in addition to military security.5 The treaty included the
180,000 acres Clark Air Base in Pampanga, the biggest American
airbase outside of the continental USA, and the Subic Naval Base in
Zambales6, which are now Special Economic Zones.
c. Surrender of Olongapo by the US to Philippines

3 Act of Congress of July First, Nineteen Hundred and Two, The Philippine Bill. An
Act Temporarily to Provide for the Administration of the Affairs of Civil Government
in the Philippine Island, and for Other Purposes. 1902
4 Id.
5 Id. 1.
6 The RP-US Military Bases Agreement. (2011, February 1). Retrieved December 21,
2014, from http://scribblingblues.wordpress.com/2011/02/01/the-rp-us-military-
bases-agreement/

The US slowly recognized the sovereignty of the Philippines over the

bases. Olongapo City was the last piece of Philippine territory
surrendered by the US to the country in the 1950s.7 Although the US
recognized the territorial ownership of the Philippines over these
bases, the bases and American jurisdiction remained.
d. 1966 Amendments
In 1966, the countries agreed to reduce the term of the agreement
from 99 years to 25 years, thereby advancing the expiration to
September 16, 1991.8
e. 1979 Amendments
The 1979 amendments to the MBA clarified that the military bases
covered by the agreement were Philippine military bases under the
command of Philippine Base Commanders. 9 However, while the
Philippines won sovereignty over the bases under the 1979 Amendment,
the United States retained and exercised considerable control over the
facilities.10

7 Olongapo (the Republic of the Philippines). (2000). ASIAN CITY DEVELOPMENT
STRATEGIES: FUKUOKA CONFERENCE 2000: City Profiles. Retrieved from
http://info.worldbank.org/etools/docs/library/166856/UCMP/UCMP/Documents/
olongapo.pdf
8 Id. 1.
9 Agreement Amending the Agreement of Mar. 14, 1947, as Amended, Jan. 7, 1979,
U.S.-Phil., 30 U.S.T. 863
10 Id. 1.

f. 1988 Amendments
The 1988 amendments resolved the ownership of non-removable
buildings11 and provided for an increased compensation for the use of
bases.12
g. Proposed 1992 Treaty
The 1992 proposed treaty was rejected by the Philippine Senate by a
slim margin. The rejected treaty aims to extend the bases for 10 more
years. It was overruled by a vote of 12-11 in the Senate.
II.

Other treaties (Mutual Defense Agreement, VFA, EDCA)

a. Mutual Defense Agreement
The Mutual Defense Agreement is an agreement signed by both the
United States and the Philippines on August 30, 1951 in Washington
D.C. It provides for the mutual help of each of the other in case either
one would be attacked by a third party. It contains only 8 articles.
b. Visiting Forces Agreement (VFA)
The Visiting Forces Agreement (VFA) is an agreement entered into by
the Philippines and the United States in 1998. The Philippine Senate

11 Id.
12 Id. 6.

confirmed it on 1999. It grants US Military personnel special privilege

under the Philippine jurisdiction.
c. Enhanced Defense Cooperation Agreement (EDCA)
The Enhanced Defense Cooperation Agreement (EDCA) is an
agreement entered into by the Philippines through the Secretary
Voltaire Gazmin and the United States through Ambassador Philip
Goldberg. The EDCA seeks to bolster the U.S. Philippines security
relationship by allowing the United States to station troops and
operations on Philippine territory. However, the Agreement clearly
states that the U.S. is not allowed to establish a permanent base. The
Agreement also stipulates that the U.S. is not allowed to store or
position any nuclear weapons on Philippine territory.13
III.

There was a no cession of Philippine territory in the 1947 Military

Bases Agreement (MBA) pursuant to the Philippine Bill of 1902
a. Nicolas v Romulo
In the case of Nicolas v Romulo, a member of the armed forces of the
United States was charged and convicted of rape under the Philippine
courts. Tackled in this case is the application of the Visiting Forces
Agreement on the custody and detention of US Armed Forces
personnel charged and convicted in the Philippines. The accused was

13 Philippine Department of Foreign Affairs, "Q&A on the Enhanced Defense
Cooperation Agreement" Official Gazette, April 28, 2014

placed under US custody during the trial and subsequently was

detained at the US Embassy upon his conviction. The court ruled that
the detention within the embassy to be contrary to the law.14
This case also discussed the very important issue on whether or not
the bases were considered to be included in the Philippine territory.
Thus, the court extrapolated that
under the Philippine Bill of 1902, which laid the basis for the
Philippine Commonwealth and, eventually, for the recognition of
independence, the United States agreed to cede to the Philippines
all the territory it acquired from Spain under the Treaty of Paris,
plus a few islands later added to its realm, except certain naval
ports and/or military bases and facilities, which the United
States retained for itself.
This is noteworthy, because what this means is that Clark and
Subic and the other places in the Philippines covered by the RP-
US Military Bases Agreement of 1947 were not Philippine
territory, as they were excluded from the cession and retained
by the US.15

14 Nicolas v Romulo. G.R. No. 175888. 578 SCRA 438.

15 Id.

So the answer to the first question is that the Philippines never

ceded the territories where the bases are since they were not
included in the territories ceded by the United States to the
Philippines. According to the Nicolas cases, the Philippine
government never had the territorial right prior to its cession to the
Philippines. Hence, the use of these territories for bases is valid as far
as the 1902 Philippine Organic Act and the courts are concerned.
However it can be recalled that the United Stated eventually
recognized the Philippines ownership of these territories.

16

Notwithstanding this recognition, the US continued to maintain the

bases under their control and jurisdiction.
This manifestation brings doubt to the sovereignty of the Philippines
as recognized by the US. [Conclusion: the Philippines did not cede
however the act granting bases to US where they can exercise
jurisdiction, even when eventually it was ruled that it was not
exclusive, makes a de fact cession].
b. Issue of Sovereignty
The question of sovereignty over the bases was raised as early as in the
year 1934 by then President Manuel Quezon who expressed fears for
true Philippine independence with the retention of military bases in the

16 Id. 1.

country.

17

Then Senator Recto contended that the Philippine

sovereignty would be impaired by the presence of these military

bases.
But what is sovereignty? Blacks Law Dictionary defines it to be the
following: possession of sovereign power; supreme political authority;
paramount control of the constitution and frame of government and Its
administration; the self-sufficient source of political power, from which
all specific political powers are derived; the international independence
of a state, combined with the right and power of regulating its internal
affairs without foreign dictation; also a political society, or state, which
is sovereign and independent.18
Given this definition, can we conclude that the Philippines can be a
sovereign nation even with the presence of American military bases
on our territory? It can be hard to think so.
The grant of independence to the Philippines is suspicious because
the very presence of military bases destroyed the very essence of
independent existence for the Philippines19

17 Angangco, R., & Lotilla, J. (1978). The 1979 Amendments To The Military Bases
Agreement Of 1947: Still a Question Of Sovereignty. Philippine Law Journal, 53(4th
Quarter).
18 What is SOVEREIGNTY? (2014, January 1). Retrieved from
http://thelawdictionary.org/sovereignty/
19 Id. 17.

IV.

The bases military under the MBA are subject to the extra-territorial
laws of the US.
a. Definition of Extraterritoriality
Before answering the question of extra-territorial applications of the
US laws to the military bases, we first look at the definition of extra-
territoriality. According to Blacks Law Dictionary, extraterritoriality
refers to laws operation upon persons, rights, or juralrelations,
existing beyond the limits of the enacting state, but still amenable to its
laws.20
b. Issues of Territory and Jurisdiction
As was earlier mentioned according to the Nicolas case, the territory
of these bases prior to the cession by the US belonged to the US. Due
to political pressures from Filipinos, the US eventually recognized the
Philippines ownership of these territories with Olongapo being the
last territory to be ceded by the US.21 Even with the recognition of
Philippine governments ownership over these lands, the Americans
continued to uses the bases, leaving only after the expiration of the
Military Bases Agreement in 1992.

20 What is Extra-territoriality? (2014, January 1). Retrieved from
http://thelawdictionary.org/ extra-territoriality/
21 Id. 7.

Before the recognition of Philippine ownership of these territories,

the US had exclusive jurisdiction over their bases and extra-territorial
jurisdiction on the US Armed Forces personnel with regard to acts
committed in lieu of their duty. This brought in a lot of ire from the
people since the duty of the personnel can be broad that can deprive
of Filipino people of the equal protection of justice.
However the US ultimately recognized the Philippines concurrent
jurisdiction over their bases as exemplified in the People v Gozo
case.22 Citing People v Acierto23, the court held that
"By the Agreement, it should be noted, the Philippine
Government merely consents that the United States exercise
jurisdiction in certain cases. The consent was given purely as a
matter of comity, courtesy, or expediency. The Philippine
Government has not abdicated its sovereignty over the bases as
part of the Philippine territory or divested itself completely of
jurisdiction over offenses committed therein. Under the terms of
the treaty, the United States Government has prior or
preferential but not exclusive jurisdiction of such offenses. The
Philippine Government retains not only jurisdictional rights not
granted, but also all such ceded rights as the United States
Military authorities for reasons of their own decline to make use

22 People v Gozo, G.R. No. L-36409. October 26, 1973
23 People v Acierto, 92 Phil. 534 (1953)

of. The first proposition is implied from the fact of Philippine

sovereignty over the bases; the second from the express
provisions of the treaty."24

Therefore, it can be surmised that the Philippines exercised limited

jurisdiction even in bases because the US recognized the Philippines
territorial ownership over the areas where their bases are situated.
However sovereignty cannot be distinguished from territorial
supremacy and jurisdiction. 25 The limitations on the use of our
territory and the limitations on our jurisdiction over these bases have
weakened our sovereignty if not completely defeating its purpose of
protecting our sovereignty.
c. American bases were subject to extra-territorial applications of the US
laws
The United States has exercised jurisdiction over these bases since the
Americans took over the Philippines. Again, it can be inferred that
exclusive jurisdiction was exercised by the United States over its
military bases before its recognition of the Philippines ownership of
theses territories. Moreover going back to the concept of extra-
territoriality, it is evident that the extent over which the US

24 Id.
25 Id. 17.

government has practiced its jurisdiction can be characterized as

extra-territorial.
V.

The Nature of the Philippines Title to these Bases are Based on the
Doctrine of Auto-limitation
Auto-limitation is the social control achieved as a manifestation of self-
will or general consent.26 It is a governmental restraint on its powers or
the grant of powers to another sovereign.
The Philippines, as was eventually recognized by the United States, is the
owner of these territories. However these bases had remained pursuant
to the Military Bases Agreement. Moreover it is evident that the Supreme
Court adheres to the doctrine of auto-limitation in sustaining the existence
of Philippine sovereignty over the bases, even as the Philippine government
has waived or surrendered its ' effective territorial control and jurisdiction
over the same, the effect of which is the existence of de facto
extraterritoriality.27

26 Auto-limitation. (n.d.). Retrieved from http://www.thefreedictionary.com/auto
limitation
27 Id. 17.

VI.

Conclusion
With the current conflict on territories between the Philippines and
China, many had raised the issue of national defense. The EDCA seemed
to be a viable solution for the Philippines; on its surface, we are assured
of military assistance when the conflict with China materializes into an
armed conflict.
However looking deeply at history and at the motives of the foreign
entity, we can see that there is more that meets the eye to these
agreements. These agreements have territorial and jurisdictional
repercussions that can adversely affect our people. These are embodied
in the case of Nicolas and the more recent Laude incident.
The question to be asked now is: are we willing to give up some of rights
in exchange of protection? Do the military protection offered to us
outweigh the benefits of the rights we have to give up? Lastly, is the
Philippines guaranteed protection from armed conflicts with other states
(i.e. China)?