Chapter 3 Status of Visiting Forces Agreement with the Philippines

Chapter 3 Status of Visiting Forces Agreement with the Philippines

Introduction
Background
Purpose of the Agreement
Obligations
Issues raised in Submissions
Costs
Entry into force and withdrawal
Legislation
Consultation
Similar Agreements
Conclusions and recommendation

Introduction

3.1

The Status of Visiting Forces Agreement with the Philippines1 was signed on 31 May 2007 by the Australian Minister for Defence, the Hon. Dr Nelson MP, and the Philippines Secretary of National Defense, the Hon. Hermogenes E. Ebdane, Jr, during the visit of President Gloria Macapagal-Arroyo to Australia.2 It is a reciprocal document affording the same rights to Australian Defence Force (ADF) personnel in the Philippines and armed forces of the Philippines personnel in Australia.3

 

Background

3.2

Defence engagement with the Philippines is currently covered by the Memorandum of Understanding (MOU) between the Philippines and Australia on Cooperative Defence Activities, which came into effect on 22 August 1995. It does not make provision for the status of forces in a host country and is not legally binding in international law.4 The Status of Visiting Forces Agreement (SOVFA) will be binding in international law and help to strengthen Australia’s already strong defence relationship with the Philippines.5

3.3

Australia and the Philippines have a long history of defence cooperation dating back as far as World War II. More recently, Australia and the Philippines have worked together successfully in coalition operations, such as in East Timor.6

Our defence ties extend from the 1940s, when President Manuel L Quezon established his government-in-exile in Australia during the Japanese occupation of the Philippines. During the campaign to liberate the Philippines in 1944-45, over 4,000 Australians fought alongside their Philippines counterparts.7
 

Purpose of the Agreement

3.4

The Agreement sets the legal framework, rights, responsibilities and procedures between the visiting forces and the host government on matters including: what occurs in the event that a criminal act is committed by a member of the visiting force, the circumstances in which a uniform is worn, taxation and customs relief, environmental protection requirements, immigration procedures and liability issues. The Agreement affords the same rights to the armed forces of each country when in the other country. It will not authorise either country to deploy troops or conduct operations in the other's territory, but will establish the status of such forces when Australia and the Philippines arrange to send and receive forces to the other country.8

3.5

The proposal to negotiate a SOVFA was made by the Philippines in February 2004. The Agreement is significant because it will allow Australia's defence cooperation with the Philippines to deepen, particularly in the area of combined exercises. The Australia-Philippines Defence Cooperation relationship has been growing in recent years, with a focus on counter-terrorism, maritime security, and assistance to the Philippines Defence Reform program.9

The Philippines noted that a SOVFA was essential for it to broaden its defence engagement with Australia, as its constitution requires a treaties-status agreement before allowing Australia to undertake more extensive defence activities in Philippines territory. Article 18 of the Philippines constitution states that foreign military bases, troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the senate, and recognised as a treaty by the other contracting state. This treaty will allow our defence cooperation with the Philippines to deepen, particularly in the area of combined exercises.10

 

Obligations

3.6

The provisions in the Agreement are similar to those contained in other SOVFAs to which Australia is a party. The Agreement sets out standard conditions concerning the rights and obligations of forces of the Philippines or Australia and the status of those forces when in the country of the other. These conditions include the following matters:11

3.7

The Agreement does not differ significantly from other SOVFAs Australia has in place with other countries although there are some minor differences.

…there is an article about environmental protection and I suppose that just reflects the modern world where people are more aware of the environment and environmental issues…that and the mortuary affairs would be the only substantially new articles.12
 

Issues raised in Submissions

3.8

The Committee received two submissions on the Agreement from the Hon. Paul Lennon, Premier of Tasmania, and Dr Ben Saul, Director, Sydney Centre for International and Global Law. The Committee held an additional hearing on the Agreement on 17 September 2007 to seek the Commonwealth Government’s response to the issues raised in each submission.

3.9

The Premier of Tasmania's submission raised a specific issue in relation to Article 11 of the Agreement recommending “that a provision be included in paragraph 10(h) to provide that the court may close the court if the relevant legislation permits or requires the court to be closed to the public.”13 The Attorney-General's Department informed the Committee that Article 11 of the Agreement, which deals with criminal jurisdiction, does not contain any provisions that would prevent a court applying legislation that permitted or required a court to be closed to the public in certain circumstances and that it would be entirely consistent with the Agreement for a court to be closed to the public in accordance with relevant legislation of the jurisdiction.14

3.10

Dr Ben Saul raised a number of issues, principally around affirming respect for and observance of human rights in the Agreement. The Government representatives informed the Committee that the preamble to the Agreement acknowledges all of Australia’s and the Philippine’s existing international commitments including commitments under the International Covenant on Civil and Political Rights (ICCPR). The Committee was also explicitly informed that there are no provisions in the Agreement which would limit either country’s existing international obligations and that it is not necessary to restate obligations under international law in the Agreement because they continue to apply.15

3.11

In respect of some of the specific issues raised by Dr Saul, the Committee was informed that:

3.12

Having sought additional input from the Government on the issues raised in the submissions the Committee is satisfied that the suggested amendments to the Agreement are not necessary.

 

Costs

3.13

Article 7 clauses (6)(a) and (b) of the Agreement provide for Australia to indemnify the Philippines against any legally enforceable claims arising from the transportation or storage of ADF explosives or damage to property of the port authorities or Government of the Philippines arising from any detonation of such explosives. Article 21 of the Agreement contains a reciprocal procedure for handling claims under which Australia assumes a contingent liability under certain circumstances.17

3.14

Defence has conducted a risk assessment on the likelihood that the indemnities will become actual liabilities. However, the probable amount payable if these risks occurred cannot be determined as there is no data on which to base an assessment. However, Defence has assessed that the benefits of the Agreement outweigh the risks of the contingent liabilities which the Commonwealth would be assuming.18

 

Entry into force and withdrawal

3.15

Article 28 of the Agreement provides that it will enter into force when Australia and the Philippines notify each other in writing that all procedures for entry into force have been completed. Article 28 also provides that the Agreement can be terminated on 180 days’ written notice by either Party. In the event that the Agreement is terminated, under Article 26 those provisions that confer rights or impose obligations on the Parties concerning claims, indemnities, the protection of classified information or private rights remain in force.19

 

Legislation

3.16

No new primary legislation is required. The matters which require legislation are primarily addressed in the Defence (Visiting Forces) Act 1963 (Cth) which governs the legal status of certain foreign military forces whilst in Australia. The Act allows the military authorities of visiting foreign forces to apply their military law to their personnel whilst in Australia and provides for a corresponding suspension of Australian jurisdiction over such personnel in certain circumstances. The Australian Customs Service (ACS) has advised that some amendment to by-laws under the Customs Tariff Act 1995 (Cth) is required and the Department of Defence has requested that those amendments be made. The Agreement will not change the existing roles of the Commonwealth and the States and Territories.20

 

Consultation

3.17

The States and Territories were notified of the Agreement through the Standing Committee on Treaties. The Departments of Foreign Affairs and Trade, Justice and Customs, Immigration and Citizenship, Finance and Administration, Communications, Information Technology and the Arts, Environment and Water Resources, Agriculture, Forestry and Fisheries, Employment and Workplace Relations, Transport and Regional Services, Treasury and the Attorney-General’s Department were consulted when drafting the text. All agencies cleared the text, and it was subsequently endorsed by all relevant Ministers. The text of the Agreement was agreed by the Executive Council on 23 May 2007.21

 

Similar Agreements

3.18

Australia has treaties of the same type with France, the Kyrgyz Republic, Malaysia, New Zealand, Papua-New Guinea, Singapore, and the United States of America, as well as the Agreement between the Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa and Tonga concerning the Operations and Status of the Police and Armed Forces and Other Personnel deployed to the Solomon Islands.

 

Conclusions and recommendation

3.19

The Committee is very supportive of increased defence cooperation with the Philippines, particularly in the areas of counter terrorism and maritime security contemplated by the Agreement. The Agreement will allow Australia and the Philippines to undertake joint exercises and provide an internationally recognised means to resolve any disputes that may arise from the presence of one country’s forces in the territory of the other.

 

Recommendation 2

The Committee supports the Status of Visiting Forces Agreement with the Philippines and recommends that binding treaty action be taken


Footnotes

1 Full title: Agreement between the Government of Australia and the Government of the Republic of the Philippines concerning the Status of Visiting Forces of Each State in the Territory of the Other State. Back
2 Mr Ben Coleman, Transcript of Evidence, 13 August 2007, p. 15. Back
3 Mr Ben Coleman, Transcript of Evidence, 13 August 2007, p. 16. Back
4 NIA, para 5. Back
5 NIA, para 6. Back
6 NIA, para 7. Back
7 Mr Ben Coleman, Transcript of Evidence, 13 August 2007, p. 16. Back
8 NIA, para 8 and see Mr Ben Coleman, Transcript of Evidence, 13 August 2007, p. 16. Back
9 Mr Ben Coleman, Transcript of Evidence, 13 August 2007, p. 16. Back
10 NIA, para 9. Back
11 NIA, para 13 and Articles 2-25 of the Agreement. Back
12 Ms Marianne Martin, Transcript of Evidence, 13 August 2007, p. 16. Back
13 Premier of Tasmania, Submission 3. Back
14 Ms Kerin Leonard, Transcript of Evidence, 17 September 2007, p. 33. Back
15 Dr Sheridan Kearnan, Transcript of Evidence, 17 September 2007, p. 31. Back
16 Ms Kerin Leonard, Transcript of Evidence, 17 September 2007, p. 32. Back
17 NIA, para 15. Back
18 NIA, para 16. Back
19 NIA, paras 1 and 19. Back
20 NIA, para 14 Back
21 NIA, consultation statement, paras, 1&2. Back

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