Foreign Relations of the United States, 1958–1960, South and Southeast Asia, Volume XV

397. Telegram From the Department of State to the Embassy in the Philippines ¹

Washington , January 21, 1958—6 p.m.

2377. Joint State–Defense message. Following guidance is provided for use during Ambassador’s discussions with Philippine Foreign Minister to determine whether there exists possibility of reaching agreement on subject of criminal jurisdiction.

1. Under current arrangements, Article XIII of 1947 Military Bases Agreement,² United States has right to exercise jurisdiction over all offenses committed on base, regardless of nationality of offender, except offenses against Philippine security or where both parties are Philippine citizens, not members of US forces on active duty. In addition, United States has right to exercise jurisdiction over offenses committed off base by a member of US forces against another member or against security of United States and over offenses committed off base by a member of US forces while engaged in the actual performance of a specific military duty. Philippines however has right under MBA to determine “duty status” and also has jurisdiction over all other offenses committed off base.

2. During Bendetsen mission and subsequent discussions with President Magsaysay, the Philippines was concerned primarily with achieving two major changes in current arrangements. First was to eliminate US right to exercise jurisdiction over anyone except US personnel and their dependents for offenses committed on base. Second was to obtain jurisdiction over off-duty offenses committed on base by US personnel against Filipinos, at least in those cases which Philippines determines to be of particular importance to it.

3. US is now anxious obtain certain major changes in current formula. Experience during last year has shown that it is most important that determination of official duty status should not remain solely in Philippine hands. In fact, unless some adjustment in this regard can be made, there would appear to be little, if any, basis for reaching agreement on jurisdiction problem. US must also obtain some form of assurances that Philippines will waive its jurisdiction, preferably in all cases except those of particular importance to it. US is also anxious to insure that determination of official duty status is based on criterion whether or not “offense arose out of any act or omission done in the performance of official duty”, rather than on current criterion which has been interpreted in some Philippine quarters as requiring that offense itself actually constitute a part of individual’s official duty.

4. There are obvious difficulties in attempting to achieve these objectives through an “implementation” of Article XIII of Military Bases Agreement, which was tack followed primarily during Bendetsen mission and subsequent discussions with President Magsaysay. Any change in current Philippine right to determine official duty status with respect to off base offenses could hardly be called an implementation. Similarly there are disadvantages to approaching problem along lines of adopting full NATO SOF³ provisions dealing with criminal jurisdiction, supplemented by additional assurances which we seek with respect to determination of official duty and waivers. Philippine negotiators made clear in past that they were willing to accept this approach, which was also discussed with them, only insofar as it had been agreed publicly with Japan,⁴ thus excluding Japan’s [less than 1 line of source text not declassified] waiver assurances. This Philippine position would not give to US the assurances it seeks with respect to Philippine waivers of its jurisdiction. Nor would Japanese formula give to US all that it wishes with respect to determination of official duty status because of reference to “in any judicial proceeding” in agreed official minutes relating to paragraph 3(a) of jurisdiction provision. We do not want any suggestion that Philippine courts would or could have ultimate say with respect to official duty determinations; rather, any disputes in that regard would ultimately be resolved, if necessary, at diplomatic level.

5. a) A more successful course of action may possibly be found in formula recently applied by United States to Philippine forces engaged in maneuvers in Okinawa. This formula would eliminate existing distinction between on and off base offenses and is based on NATO SOF allocation of concurrent jurisdiction. That is, US would have jurisdiction over offenses committed by US personnel against US, other US personnel, or their dependents, and also over offenses “arising out of any act or omission done in performance of official duty”. Philippines would have jurisdiction over all other offenses; but under this formula Philippines would agree to waive this jurisdiction except in those cases of particular importance to it as determined by Philippines. In addition a US certification as to official duty status would be “controlling”. This formula would be preferred US position. However certain adaptations of this formula would prove acceptable.

b) The first of these alternatives would be a provision that US certification as to official duty would be controlling, but Philippine assurances with respect to waivers would be couched in terms that Philippines would “continue to be favorably disposed to grant requests by the United States for the right to exercise jurisdiction”.

c) A less desirable alternative would provide a similar assurance with respect to waivers and also provide that a US certification as to “official duty” would be sufficient evidence of that fact until contrary is proven, co-joined with a procedure for reference to a joint committee for resolution of a disputed certification, with further consultation at government-level if joint committee fails to achieve a solution. (Pending agreement no trial proceedings would be instituted.) Philippines indicated their willingness during Bendetsen mission and later discussions with President Magsaysay to give such assurances with respect to waivers, at least in negotiating minutes. Philippine Panel was also willing to accept Japanese arrangements concerning determination of official duty status, which are similar to those outlined, but which are not completely satisfactory, when discussing adoption of NATO formula which eliminates distinction between on and off base offenses. However Philippine reaction with respect to official duty determinations off base was to contrary when considering an implementation of Article XIII (see Manila’s 2525 of March 1957).⁵

6. Formula described in 5 a) would also retain an offender subject to Philippine jurisdiction in US custody until trial proceedings are completed. This is an arrangement which we currently enjoy under Article XIII and wish to retain under any solution achieved.

7. In discussions concerning scope of US personnel and their dependents to be covered by the new arrangement you should use definition of “member of the US forces” found acceptable to Philippines during discussions with President Magsaysay (see Manila’s 2525).

8. The Philippines has also insisted on an affirmation that Philippine law is applicable within base areas and that it will be observed by the US forces and their personnel. Main problem in past has been manner in which Philippines has phrased this proposal. Possibly a solution could be found in language paralleling that found in NATO and Japanese agreements: “It is the duty of the US forces and their personnel to respect the law of the Philippines, which is applicable within the base areas, and to abstain from any activity inconsistent with the spirit of this Agreement, and, in particular, from any political activity in the Philippines.”

9. Foregoing is US position on jurisdiction question. You are authorized use this as basis for preliminary discussions which Serrano may initiate on subject jurisdiction. Although we agree with you (Manila’s 2469)⁶ that we should not take initiative in opening such discussions, we naturally interested in ascertaining (a) Philippine attitudes and positions on jurisdiction and (b) whether in fact jurisdiction problem can be profitably discussed and resolved at this time.

Dulles

1. Source: Department of State, Central Files, 711.56396/1–2158. Confidential. Drafted by Robert A. Brand, William Lang (OSD/ISA), and Ely Maurer (L/FE); cleared by L in substance, L/FE and OSD/GC in draft; and approved by Howard P. Jones. Repeated to CINCPAC for POLAD.
2. U.S.-Philippine agreement concerning military bases, and exchange of notes, signed at Manila March 14, 1947; entered into force March 26, 1947. (61 Stat. (pt. 4) 4019)
3. Reference is to the agreement on the status of forces among NATO counties. (TIAS 2846; 4 UST 1792) Procedures for establishing official duty determination varied from country to country. (“Army’s Paper on Determining Duty Status in NATO Countries,” undated; Department of State, SPA Files: Lot 67 D 279, Negotiations—Jurisdiction)
4. Reference is to the Protocol to amend Article XVII of the Administrative Agreement, and agreed official minutes, signed at Tokyo September 29, 1953; entered into force October 29, 1953. (TIAS 2848; 4 UST (pt. 2) 1846)
5. Telegram 2525 from Manila, March 14, 1957, discusses criminal jurisdiction. (Department of State, Central Files, 711.56396/3–1457)
6. Supra .