EXPLAINER: The Visiting Forces Agreement

Metro Manila (CNN Philippines) — The Philippines is now evaluating the impact of a possible pullout from a 1998 agreement with the United States on the treatment of its military personnel, known as the Visiting Forces Agreement.

This comes after President Rodrigo Duterte threatened to terminate the treaty over the US’ cancellation of Senator Ronald “Bato” dela Rosa’s visa, which the former top cop attributed to his role as architect of the government’s war on drugs.

But what is the VFA, how has it benefited or hurt the Philippines, and what will happen next if the Duterte administration decides to go full-steam ahead of the termination of the treaty?

What is the VFA?

The VFA is an agreement between Manila and Washington signed in February 1998 on the treatment of American military personnel when they are in the Philippines. A counterpart agreement which deals with the treatment of Filipino military personnel in the US was signed in October 1998.

It is seen as an agreement that compliments the Mutual Defense Treaty (MDT), another agreement between the Philippines and the US which guarantees that the two countries will provide military aid to each other in case their metropolitan areas or their territories in the Pacific are attacked by a foreign force.

Among the provisions of the VFA are relaxed visa and passport policies for US military personnel, tax-free importation of equipment, materials and supplies by the US government, and free entry of US military aircraft and vessels into the Philippines.

The agreement also provides that the Philippines will take primary jurisdiction over US military personnel who commit or are accused of a crime in the country, unless the offense is related to US security or is only punishable under US law.

On the other hand, the US takes primary jurisdiction over their personnel if they commit offenses against US property or security or against fellow US personnel and their property. They also have primary jurisdiction over their personnel in offenses committed in the performance of official duty.

Both the US and the Philippines can request from each other to waive their primary jurisdiction in a particular case. In the case of the killing of transgender woman Jennifer Laude, then-Foreign Affairs Secretary Albert del Rosario insisted that the Philippines would not give up its jurisdiction over US Marine Joseph Scott Pemberton.

While jurisdiction over US military personnel who commit crimes in the country reside in the Philippines, the US keeps custody over them.

The treaty provides that the US will present its personnel in investigative and judicial proceedings for up to one year, after which Washington is “relieved of any obligations” to make their personnel available for proceedings.

It also says that the detention or confinement of US personnel will only be in facilities agreed to by the Philippines and the US.

How has it benefited the Philippines?

The Department of Foreign Affairs previously said that the Philippines may not even have jurisdiction over Pemberton if it were not for the VFA.

Beyond prosecuting crimes committed by US personnel in the country, the VFA also plays a crucial part in amping up the Philippines defense as it allows Filipino soldiers to train with the US military at minimal costs, like the annual Balikatan exercises.

Defense expert Jose Antonio Custodio told CNN Philippines that the VFA somehow makes up for the lack of capacity building and equipment by the Philippine military.

Zia Alonto Adiong, member of parliament of the Bangsamoro Transition Authority, credited the VFA for the liberation of Marawi City from terrorists in 2017.

"Although I do not necessarily agree on the entirety of the Visiting Forces Agreement, I likewise could not deny the fact that though it took us five long months before Marawi was finally liberated, part of it was also due to the assistance we received by virtue of this mutual defense cooperation," Adiong said.

The VFA has also worked in the Philippines’ favor during times of calamity, as Del Rosario pointed out. He said aid from the US was swiftly sent to the country after the onslaught of Supertyphoon Yolanda due to the VFA.

How has it hurt the Philippines?

The VFA has had a bitter history in the country as it has been dragged in two prominent criminal cases — the 2006 Subic rape case and the killing of Jennifer Laude.

The US maintained custody over four of its military personnel while they were on trial for the rape of a Filipino woman in Subic, where the US military had been conducting joint drills with Philippine troops.

Even after a Makati City court found Lance Corporal Daniel Smith guilty, the US still retained custody over him, keeping him in its embassy in Manila. Smith was eventually acquitted on appeal after the victim recanted her testimony.

Pemberton has been detained at Camp Aguinaldo instead of the New Bilibid Prison even after his conviction for homicide.

Calls to end the VFA followed these two cases, but they ultimately failed. The VFA had also been challenged twice before the Supreme Court, which upheld the constitutionality of the treaty.

What happens next?

Should the Philippine government decide to push through with the termination of the VFA, all it has to do is to tell the US in writing that it wants to end the treaty. The agreement will remain in force for 180 days after this notice is sent.

It is still not clear whether the Senate should also concur to the termination of the treaty. The same question has been asked in petitions before the Supreme Court assailing the Philippines’ withdrawal from the Rome Statute, the treaty that created the International Criminal Court.

Justice Secretary Menardo Guevarra said that the Department of National Defense and the Department of Foreign Affairs should conduct a separate study on the possible effects of the termination of the VFA on the MDT and the Enhanced Defense Cooperation Agreement – another deal between the Philippines and the US that allows the US military to use and control five bases in the country.

Del Rosario said terminating the VFA can make the implementation of the MDT harder, as the relaxed immigration rules and waived fees for the entry of US military equipment would no longer be in place.

Custodio warned that China, which has ramped up activity in the hotly-contested South China Sea, may even take advantage of the termination of the VFA.

Some left-leaning lawmakers have egged on the Duterte administration to end the VFA, but for the right reasons.

“We challenge the President to really pursue it because it is the assertion of our national sovereignty and not just because a friend of his is disadvantaged,” Bayan Muna Rep. Carlos Zarate said.

CNN Philippines Correspondents Triciah Terada and Xianne Arcangel contributed to this report.