NEW AUSTRALIAN/PHILIPPINE STATUS OF FORCES

C O N F I D E N T I A L SECTION 01 OF 02 MANILA 002121

SIPDIS

SIPDIS

E.O. 12958: DECL: 06/25/2017
TAGS: PREL MARR PTER AS RP
SUBJECT: NEW AUSTRALIAN/PHILIPPINE STATUS OF FORCES
AGREEMENT

REF: MANILA 01814

Classified By: POL/C Scott Bellard, for reasons 1.4 (b) and (d)


1. (C) Summary: The Philippine-Australia Status of Forces
Agreement (SOFA) signed in May currently awaits ratification
by the Philippine Senate and the Australian parliament. The
Australian SOFA differs from the U.S. Visiting Forces
Agreement (VFA) in that it gives the host nation custody of
visiting forces' personnel in criminal cases during the trial
stage. A side-agreement affords Australia a say on the type
of detention facility for its nationals, which must be in the
Philippines. The Philippine ratification process in the
Senate will be contentious and time-consuming, but has some
likely supporters, even among the opposition majority. The
eventual entry into force of the Australian SOFA would
greatly complement our own counterterrorism efforts in the
Philippines. End Summary.

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Key provisions of the SOFA
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2. (U) President Arroyo presided over the signing of the
Philippine-Australian Status of Forces Agreement (SOFA)
during a May 30-31 visit to Australia (reftel). The SOFA
would cover Australian military personnel engaged in
counterterrorism exercises and training projects in the
Philippines, along with their Philippine counterparts in
Australia, and currently awaits ratification by the
Australian Parliament and the Philippine Senate.


3. (C) The SOFA explicitly gives host nations the custody of
visiting forces personnel during trial and after conviction
in criminal cases for acts committed outside official duties.
Philippine negotiators have acknowledged privately to
emboffs that this was a key Philippine objective in the wake
of the public outcry here over the U.S. custody of Lance
Corporal Daniel Smith in the ongoing test case of the VFA,
which explicitly provides that custody of U.S. soldiers lies
with U.S. authorities until the conclusion of all judicial
proceedings. According to Philippine authorities, an
Australian refusal of this more stringent provision in the
draft SOFA would have been an absolute deal-breaker for the
Philippine government.


4. (C) Australian Embassy poloff Quinton Devlin told poloff
that the question of custody had not been especially
problematic and was actually almost standard for Australian
SOFAs. However, he noted that the "type" of detention
facility had been a larger Australian concern, and so
Australian negotiators had successfully insisted that such
facilities be "by agreement of the parties." The Philippine
side successfully insisted that these facilities must be in
the Philippines for cases over which the Philippines has
criminal jurisdiction -- a requirement missing from the VFA.
Devlin commented that the Australian government would likely
push for the use of Philippine military -- rather than
civilian -- facilities should such a criminal case arise
involving Australian soldiers here. The "understanding" is
missing, however, from the public text of the SOFA, although
Devlin predicted that it would likely come to the fore during
the Philippine ratification process.

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Tough Senate Road Ahead
--------------


5. (C) Both Philippine officials and Australian diplomats
have admitted that the SOFA will face some tough sailing in
the new Philippine Senate, in which the Opposition has a
substantial majority. Many predicted that some of the
Senate's expected 2010 Presidential candidates will use the
debate on the SOFA as a "platform for grandstanding" against
President Arroyo, regardless of their views on the SOFA
itself. Some Philippine political analysts, however, foresee
that the would-be candidates will also want to portray
themselves as "Presidential" and genuinely concerned about
national security, and for those reasons might vote for the
SOFA, despite its association with President Arroyo and her
"down under diplomacy."


6. (C) The Australians have identified a number of potential
supporters among the opposition senators, including four
graduates of the Philippine Military Academy: Senator
Rodolfo G. Biazon; Senator Panfilo "Ping" M. Lacson;
Senator-Elect Gregorio Honasan; and, Senator-Elect Antonio
Trillanes (still on trial for the 2003 "Oakwood Mutiny" --
septel). Devlin noted that Trillanes has been to Australia

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several times for military training. Some Philippine
contacts have underscored that the fate of the SOFA
ratification may depend on who ends up as the new chairman of
the Senate Foreign Relations Committee. Incumbent Miriam
Defensor Santiago is staunchly pro-Administration and seeks
to retain her chairmanship, but if current Senate President
Manuel B. Villar fails to retain his slot and cedes to a more
critical Opposition member, all bets may be off. Others have
noted that developments in the appeal of Lance Corporal Smith
-- notably, possible dismissal of his lower court conviction
by the Court of Appeals in the next few months -- could make
the political climate for ratification almost impossible, at
least for the short-term. However, both sides continue to
see eventual ratification as the most likely course, without
any predictable time-frame.

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Comment
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7. (C) The eventual entry into force of the Australian SOFA
-- assuming ratification in both capitals -- would greatly
complement our own counterterrorism efforts in the
Philippines and will be welcome news for our regional
approach here in the Philippines. It will also enable active
Australian participation in Balikatan and other
U.S.-Philippine exercises. Its ratification would
additionally pave the way for Philippine plans to conclude
SOFAs with its ASEAN partners and more meaningfully expand
its regional counterterrorism and mil-to-mil cooperation.


Visit Embassy Manila's Classified website:
http://www.state.sgov.gov/p/eap/manila/index. cfm
KENNEY