Mr. Brownell's opinion on US bases

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Title: Mr. Brownell's opinion on US bases
extracted text: MR. BROWNELL'S OPIN ION ON U .S. BASES I Fo llowiny is the full text of the /<,gal 01h1ion of U.S. A ttorney G,merol Herbert Bro11'11ell J,r., claim.i11g the United States has title to r.ara/ a,1d military b11ses fo I.he Philippines. It tuns submitted tn the SPrreta ry of Sta te on A 11911st. 28, 1953 Thz Honorable The Secreta.ry of Stale My dear Mr. Secretary: This is in response to the re q uest of your legal adviser, dated April 17, 1953, for .'.l.n opinion respecting title to U1ii ted States military bases, in cluding naval 1·eservations and fueling stations, in the Ph ilip pin<'s. The request 1s appa rently joined in by the sccretn ries of the navy and air force and the director of the budget bu reau, who at'e ·rep resented with you in an interdcp11rt mental committee con�idering the Manila joint staff commit. tee report ( August 1 :;, i9b2) for the settlement of United States property rights and TeMR. BROWNELL JR. lated problems in the Philippines. Accompanying thl' rt> quest for an opinion is a memorandum of the legal adviser, which the navy a.nd air force cor.sider to be a fair and full statement of the legal issues, together with a considerable number of support ing classi ·ed documents. Th principal question is whether the United States 1·etains title""--the proprietary interest ns ,Jistinguished from sovereignty ir. the lands or areas in the Philippines comprising the military and naval bases, reservations, a.nd stations which it held as such immediately prior to Philippine independence, achieved July 4, 1946. (There is, of cou1·se, no issue as to the parts of such lands or at'eas wliich have since been conveyed by express, formal grant. of the United States to the Philippine government.> If the answer is that the United States continues to own the base lands or areas, the further questions are whether the United States is under ob ligation to transfer them to the Philippine government presently without compensation, or if there is no such obligation, whether tho President is authorized to make such a transfer. I . The 11roblem begins with the Philippine Independence act- also known as the Tydings-McDuffie act-of March 24, 1934. In preparation of Philippine independence, provision w:'!.s made for a commonwealth government as a bridge to complete independence, and for complete independence on the fourth day of July following a ten-year period of commonwealth government. 'I'he rommon wealth government came into existence on November 15, 1935, so the contemplated and :i.ctual date of independence became July 4, 1946. The Philippine Independence act, in section 5, transferred to the commonwealth government all the property nnd rights ac quired in the Philippine Islands by the United St:ttes under the treaties of 1898 :i.nd HIOO with Spain, "except such land or other property as has heretofore been designaterl by the President of thP. United States for military and other reservations of the govem ment of the United States," and except such land or propE'rty as may have been sold. Previous acts of congress had plac<?d und�r the control of the then governments of the islands all property acquil·ed by the United Stateg under the treaties with Spain, except such land or property as might be designated by the Pres idrnt for military or other reservations. Section 12 of the Act of July 1, 1902, (32 Stat. 691, 695> substantially reenacted by section 9 of the Act of August 29, 1916, (39 Stat. 545, 547) and, from time to time by executive orders of the President, certai� 112 THE LA WYERS JOURNAL ?1.fat>th 81, 1954 MR. DROWNELL'S . :neas were designated as military or naval reservatio:is. Exercise of the authority granted to the President to designate land for military and otlwr reserve.tions vested title to the designated land in the United States until otherwise disposed of by the P1esident C28 Op. A.G. 262, 1910J. Section lO Ca) of the Philippine Independenc<' act p!·ovided for the rccogniti'ln of Philippine independence and the withdrawal oi American sovereignty. On the specified fourth day of July, :�i;�:�a:: e :,� esi �i;:e;�e! lie ,,�� it ;!,! ta :� s ::s�:�:�� a �:�,,;:f;q!�(f jurisdiction, control, or sovereignty then existing and exercised by the United States in end over the territory and people of the Philippine Islands, including all military and othe�· reservati,Jns of the government of the United States in the Philippines (ex.:ept such naval resel'vation and fueling stations as are reserved under Section 5) ," and was to recogni:r.e the independence of th(' Phil ippine Islands as a separate and self-governing nation. Under 8fdion 10 Cb>, the President was authorized to enter into' n<!go tiations with the government of the Philippine Islands not later thn.n two years after his proclamation recognizing independence, for the "adjustment and settlement of all questions 1·clating tc. naval reservations and fueling stations of the linited. States m thf: Philippine Islands, and pending such adjustment and settJ,,._ mrnt the matter of naval reservations and fueling stations shall remain in its present status." Under section 2 Cb) Cl> and un 1 it was required that the PhilippinE' Constitution provide, effective upon independence, that the property rights of the United States and the PhilippinE' Islands shall be promptly adjusted and settled: and that by way of further assurance the Philippine govPrnment would embody the foregoing provision. and certain others, in a treaty with the United States. The words of section 10 (a) on their face appear to be a relin, quishment to the Philippine Republic of sovereignty over fop Philippine territory, including military and other reservations J' the United States but excluding UnitM States naval reservatlonP :.r,d fueling stations, and not a relinquishment or conveyance· of title or proprietary right, such as was ma.de in the langua�e of Eection 5 to the corrimonwealth government. Except for the military arid other reservations, this phraseology of section 10 (a) was entirely consistent with section 5. There was no ambiguity since 1hf:! commonwealth government was vested with title to public prop erty to which the indep�ndent. republic would succeed, and it need ed only the session of sovereignty to complete its absolute contrcl. But the military and other reservations designeted by the Pres ident of the United States had not been conveyed to tlie com. monwealth government by section 5. Her,ce, without a further l,xplanation, it would seem that the force of section 10 {a), inso far a8 United States military reservations were c<mcerned, wa!'I a grant of sovereingty to the Philippine Republic but le&vin.2" title to the fee in the United States. However, it appc,ars that more was intended. The Hl34 Tydings-McDuffie Philippine Indepe_ndence act, which required and hnd received the ncceptance of the Philippine Legislature, was th<' reenactment with some few changes of the Hare-Hawes-Cutting Act of January 17, 1933. Like the Tydings-McDuffie Act the 1933 act called for acceptance· by the Philippine Legisla ture but had been rejected by the Philippine Legislature on sev eral grounds, one of which was the issue of military reservations. Under the Hare-Hawes-Cutting Act, the section 5 �rant to the commonwealth govemment of ownership of property except mili tary and other reservations of the United States was the same as appeared in the later act. But while the section 10 gra.nt of sovereignty included military and other reservations of the United States, it permitted the PresideP.t to redeGignate and thereby re tain for the United States any or all of the land 1:eserved under fleet.ion for the United :3tates within two years after the procla mation of indcp!'ndence (47 Stat. 768). As ictnted by the manager!! of the bill for the house of reprt::sentatives: ''The effect of the conference agreement is t� reserve to the United States upon final withdnwal of the sovereignty of the Ur.ited States from the Philippine Islands, such land or other IffOfler1y which has heretofore been designated for military and e Ma.rch 31, 1954 THE LAWYERS JOURNAL 118 MR. BROWNELL'S . ether purposes as may be redesignated by the Prc-sident of the Uitited States within two years after the date of independence," This retention of military reservatious was un:1cceptable to the Philippine L�gislature which, in declining to accept the act, included among its reasons a stal:ement that "the military, n'.lval, e.nci other rese1·vations provided fo:- in the said act are inconsist ent with true independenc�, violate national dignity, and are sub ject to misunderstanding." There were other reasons for 1·ejection. But it appeared that the best compromise that the President was able to offer at thP. time was :>� request to congress to remove the more objectionable features from the military base provisions and to correct at s0me later date, after hearings, whatever imperfections or inequalities existed in the sections of the Hare-Hawes-Cutting Act. According. ly, on March 2, 1934, the President proposed the following changes in the Hare-Hawes-Cutting Act: "As to the military bases, I Tl?commend that this provision be eliminated from the law and · that these bases be relinquishej simultaneously with the accomplishment of final Philippine in dC"pendence. ''As to the naval bases, I recommend that :he law be so amended as to provide for the ultimate settlement of thi1> matter on terms satisfactory to our own gov€rnment and thnt of the Philippine lsl2.J1ds." In the support of these recommendations the Tydings-McDuffie act was enacted. It removed from the first paragrnph of seCtion 10 of the old act the option of the United States to redesignate and retain any or all of the land or property reserved for mili tary or other reservations, and retained for the United States 011ly "such naval reservations and fueling stations as are reserved under section 5." Also there was transferred from section 10 t,:, section 2 the provisions to be included in the Philippine CQnstitu tion, including the provision to be effective upot: independ1mcc that property rigl1ts of the United States in the Philippine ls fol'ds shall be promptly adjusted and settled. In their place there was inserted a second and final paragraph: l<(b) The Pres\dent of United States is hereby authorized and emnowered to enter into nef!'otiations with the government or the Philippine Islands, not later than two years after his proclamation recoe:nizing the independence of the Philippine Islands, for the ad. justment a,.,d settlement of all questions relatin.1? to naval reserve. ti,..ns and fnelin.l!' stations of the United States in the Philipnine Islands. and penrline: such nrliustment and s,..ttlement the matter of nav�l rPservations and fueling stations shall remain in its pre. sent status." In describinl? the effect of these chan,:,:-es, the houM committee O'l insular affairs and the senate committee on territories and in sular affairs .!!ave identical explanations as follows:: ''5. The United States al!rees to reli"lc;ish all reservations now dEsignated for the use of the United States Army after the in stitution of the indep·endent .l?OVernment, but reserves the ritrht, at its di!'C'retion. to retain and maintain naval bases and fuelinr stations in th11 Philipnin(' Islands. ''6. The feasibility of further reta.ining and maintaining naval kses and fueling stations in the Philippine Islands after the in dependent government is constituted, will be lhe subject of con fucmces between the two governments." In addition, both reports included th£> following statement re. garding the purpose and intent vf the new measure: "The pending hill (l\f.H. 8573) is a nroposal to re<'nact the Hare-Hawes-Cutting bill, with the ex<:;Ption that the United States agrees, after the establishment of the independent government, to withdraw its sovereignty and relinquish all lands now constitu tin.� reservations for the United States Army in the islands and all other resc1·vations, excepting th?se which have heretofore been designated for the use of the United States Navy and for fueling stations,'' (Underscoring supplied.) It would thus appear that it was intended, after the common wealth period, that the United States would give up its property and rights in military reservations including the right to main tain them as bases; but that the United States would retain its 114 THE LAWYERS JOURNAL March 31, 1954 MR. BROWNELL'S property l'ights in naval reservations and fueling stations and the right to maintain them, subject to further discussions and the changes effected, if any, by a final adjustment and settlement of all que!'ltions pc-rtaining to naval bases. The discussion� were tc be begun within two years after the proclamation of inde pendence, but there would be no change in status of the naval re servations and stations until and unless the final settlement pro duced a change The Philippine Independence Act on May 1, 1934, and following the adoption of the Constitution and its ap proval in a plebicite in 1935, the Commonwealth regime was in augurated. The contemporary opinion of authoritative sources supported the view that section 10 intended a transfer to the new republk of property rights in United States military reservations, as well as the grant l'f s:overeignty, when independcn�c was f/) be achieved. For example, the joint preparatory committee on Philirpine af fairs, created April 14, 1937, pursuant to an arrangement lfotween the President of the United StS:tcs and the Prcsiden� of the Phil ippines, included in its report a statement on United State>s go,• ernment property in the Philippines. After 1·eferring to sections 5, JO, and 2 of the Philippine Independence act, the committee made the following statement: "After the independent government is established on July 4, 1946, the government of the United States will 1·equire, for its official establishments in the Philippines, properties such as a government nonnally maintains in the territory of a foreign coun try. F'or instance, the governm1:nt of the United States· now con templates the erection of certain buildings on a portion of the Camp John Hay military reservation, near the city of Baguio, for the use of its official representatives in the Philippines during and fotlo,ving the Commonwealth period. Unless i:;ome arrnnge. ment is made before the independent government comes into exist ence, this property, as a part of a military 1·cservation, must be surrendered to the independent government. In view of the ex tensive propertic2 which will be turned over to the independCnt gc,vernment under existing law, the committee als,'.) recommends, as a matter of equit}', that, prior to the est2.blishment of the govern ment, some arrangement be made under which title to such prop erties e.s the United States may require for the aforementioned purpose would either be - retroceded to the United States with cut compensation, or be acquired by the United States through an exchange of properties." This report became the basis for the 1939 amendments of the Philippine Independence Act. Significantly, in regard to the prop erty amendments effected by the 1989 act, it was section 10 of the basic act which was amended. (Act of August 7, 1939, 53 St.at. 1226, 1230-1231.l A new subsection (c) wa.s added to section 10, which authorized the President, among other things, to designate r,roperties of the United States in the Philippines suitable for diplomatic and consular establishments. It was provided that the property so designated "shall continue to be vested in fee-simple in the United States notwithstanding the provisions contained in subsection <a> of this section." Likewise, title to the lands and buildings constituting the official residences of the United States High Commissioner was to continue to be vested in the United States after July 4, 1946, notwithstanding the provisions con tained in section l0(a). The senate and house reports indicated that it was necessary to make these pre>visions, else all proper ties held or owned by the United States in the Philippines would be transferred to the independent government of the Philippine!':. Thus, prior to the war with Ja.pan, contempor:1ry interpreta tion and expectation was that upon achievement of Philippine in. dependence the United States would relinquish operation and own ership of military and other reservations in the Philippines, re taining only 1) operation and ownership of naval reservations and fueling stations, subject to subsequent negotiations with the Phil ippine Republic, and 2) ownership of consular end diplomatic properties, including the residences of the former high commission er. It was also contemplated, pursuant to section 2Cb) of the Philippine Independence act and a1·ticle 16 of the Philippine ConMa.rch 31, 1954 THE LA WYERS JOURNAL 115 MR. BROWNELL'S . . . stitution, that the property rights of the United States in the Philippine Islands would be promptly adjusted and settled follow ing the recognition of independence of the Philippine Islands; a.nd by way of further assurance, the government of the Phiiippines would embody this provision in a treaty with the United State!:. The advent of war with Japan brought a complete change in the mutual relationship between the United States and the Philip pines. The occupation of the Islands by Japan made it neces sary for United States forces to drive out the invaders. It was obvious to the people and governments of both the United States and the Philippines that, even after Philippine indr.pen<lence was 2.chieved, there would be need for more adequate military in stallations in the Philippines than was contemplated by thr. Inde r,endence Act for the protection of the Island. Discussions re garding future American bases in the Philippines ai·ose in 1943 and culminated in the adoption of senate joint resolution 93 of the 78th congress. which became P. J,, 380, approved June 29, 1�)4,1 {58 Stat. 625. Section 2 provided.) "After negotiation with the President of the Commonwealth of the Philippines, or the President of the Filipino Republic, the President of the United Sto.tes is hereby authorized by such means as he finds appropriate to withh,,Jci or to acquire and to retain such bases, necessary appurtenances to such bases, :ind the rigl:is incident thereto, in addition to any provided for by the act of .l\tarch 24, H:134, as he may deem necessary for the mutual .pro tection ::,f the Philippine blsnCs and of thi-! United States." The President also was authorized in F.ection 3 to advance the date for granting independence prior to July 4, 1946, but this was r,cver done. As noted by the senate and house committees which recom mended the adoption of S. J. Res. 93: "This joint resolution deals with the subject of Filipino inde pendence an<l the future security of the United States a.nd the coming Philippine Republic. The whole subject of the Philippin<l matter, both present and future has been considered by Presid�nt Roosevelt; President Manuel Quezon, of the Philippine Com monwealth, now liVing in "'ashingt.on; various departments of c.ur government interested in the Philippines; and by members and committees of congres. • • • "First, the President of the United States is authorized, after r,egotiation with the Pr::!sident of the Commonwealth of the Phil ippines or the President of the Filipino Republic, to withhold or to acquire and retain such bases, necessary appurtenances to such b=ises, and the rig-hts incident thereto, in addition to any nrn vided by the Tydings..l\fcDuffie law, as he may deem necessary for the full and mutual protction of the Philippine Islands and the Ur.ited States." The concept of the T:vding-s-McDuffie Act that the United States would withdraw almost ·-?ntirely from tht:> r.ivinl!' of mili ta.rv protection to the Philippines was thereby ei-aserl. and by mu tnal undnstandinl!'. On their part. the Philippine leadNflhip end legislature accented the snirit and the Jetter ".If Joint Reso lution 93. CulmiMtinl!' nef!Oth1tions between President Truman and Phi!ipnine President Osmefia, both signed an agreement on Mnv 14. lt,'45 settini:t forth a nreliminary statemt>-nt of .[!'eneral y:.rinciples pertaining to the United States milit<iry and naval �as!! !!'vstem in the Philipnines to he used as a basis for detailed dis cussions and staff studies. Amon� the provisions of this prelimi nary c;tatement were the following: ''6. Pendin� development of the detailed plan, the U.S. will i·etain all sites which were held by U.S. arnw as military reser vations on 7 December 1941 and by the U.S. navy excf'pt at Cavite, and will be accorded rights to sites in the localities shown on the attached appendix. "7. The U.S. will have the right to retain, or to exchange for sites listed in paragraph 6 above, thM::e sites wherein are Jo. tated bases. msbllations, or facilities which have been or may be developed in the course of the present war, to ac(]uire add'tion al sites and to acquire such sites in the future as m'ly be required by changes in the means and methods of wal'fa.re, including the dcvehpmcnt of new weapons. The U.S. will have the right to 116 THE LAWYERS JOURNAL March 31, 1954 MR. BIWWNELL'S . acquire sites and install, maintain and operate th�reon, the re quired communication and navigation facilities and radar instal lations." In addition, the Philippine legislature acted on the matter when it passed Joint Resolution 4, approved July 28, 1945. Noting that the United States government had enacted joint resolution 93, and that such a.ction had been "concurred in by the gov ernment of the Commomvealth of the Philippi.nes then establish in Washington, it resolved "that th� congress of the Philippines adhere to the policy and intent" of joint resolution 93. Further: "That in order to speedily effectuate the policy declared by the congress of the United States and approved by the government of the Commonwealth of the Philippines, the President of the Phil ippines is authorized to negotiate with the President of the United States th,� establisl1ment of the aforesaid bases, so as to insure the tenitoriel integrity of the Philippines, the mutual protection of the Philippines and the United States, and the maintenance of peace in the Pacific." Thus it appears that the intent.ions of the Philippine Independ ence act respecting military reservations were mutually altered in favo1· of a. policy looking toward the expansion of military, naval, and air bases in the Philippine-a policy wholly inconsist ent with the idea of an automatic transfer of the property consti tuting the bases upon the achieving of independence. Not only was the President of the United States authorized to withheld 8nd reta.i!l or acquire and retain bases in addition to any provided by the 'l'ydings-McDuffie law, but he was authorized to do these thinp:s in n<,gotiation with the President of the futul'e Republic of the Philip pines as well as the then President of the Commonwealth of the Phlippines; making it quite clear that ownership and operation were to continue well after independence was achieved. And this bl'Oad pattern for the continuance and expansion of bases was ac cepted, though no acceptance was technically required at the time, by the President and legislature of the Philippines. In my view, the change wrought by the joint resolution of June 29, 1944, is decisive of the intention to retain title, and of the fact that title was retained, in the United States, to the pl'operty owned a11d used or reserved by the United States prior to Philip pine independence e.s military and naval reservations, bases, or stations. However, if further evidence of this purpose and fact is needed, it is suJ}plied by the second section of the Philippine Property Act of 1946 (Act of July 3 ,1946, 60 Stat. 418). In addition to the post-war military defense problems there were a host of post-war rehabilitation and restoration problems in which United States help was €Ssential even after independence of the Philippines was a.chieved. Congress had enacted a Philippine Rehabilitation act providing for the conduct of many federal ser vices in the islands. It was necessary for these agencies to occupy real property and use personal property owned by the Fnited States. Othe1·,Vise, the agencies' appropriations would be diverted to the purchase or ren�l of the nf:eded space and equip ment. Our government had brought into the Philippine Jorge stores of suµplies and equipment for purposes of the war and re habilitation. In addition, the alien property custodian helcl la-rge amounts of property seized from enemy aliens. In view of all the changes in circumst&nces and in the na.tm·e and extent of United States property holdings, it was deemed "manifestly improper to permit title to pass automatically to the Philippine Republic on July 4 of this yecr C1946)." As a consequence, there was enacted the Philippine PropPrty Act of 1946, dealing "only with the proprietary interests of the 'Cnited Ste.tes in real or personal property within the boundaries of the Philippines." S<!ction 2 of the at'.t provided: "There shall remain vested in the government of the Unitc-d States or its agencies or instrumentalities all the right, title, nnd interest of the said government or its agencies or instrumental ities to all roal and personal property within the Philippine Islands as may now be vested in, or lr..ter be acquired by the gov ernment of the United States or a11y of its agencies or instrument alities." :!\farch 31, 1954 •rHEJ LAWYERS JOURNAL 117 MR. BROWNELL'S Sections 3 and 5 dealt with dispositbn of properties o1cquired hy the alien property custodian, and provided fot· immediate trans fer of agriculturnl lands a.nd immediate or ultimate trnnsfer of the others of such propel'ties to the Philippine government. Section 4 authorized the President in his discretion, and on such terms as he deemed appropriate, to transfer title to the Philippi11e Republic of other properties of the United States in the Philippines not within the scope of Section 3. Section 6 pTOvided: ''Nothing contained in this act shall be constru0d as amend ing the r,rnvisions of the Act of March 24, 1934 (48 Stat. 45G), as amended, respecti11g naval reservations and fueling stations, and diplomatic or consular property, nnd the property of the high cnmmissioncr to the Philippine Islands, nor as amenrling the pro� visions of the jcint resolution of Jm;e 29, 19-14 (Public Law 380, Seventy-eight CvngressJ, respecting bases for the mutual protec tion of the Philippine Isla11ds and the United States." The m:ly explanation of thiS provision appears, identicully, in the senate and house committee reports, linking section r. lo sec tion 4 in this fashion: ''6. The President of the United States is authorized in his discretion to dispose of all other properties held by the United States government in the Philippines, other than dit)!omatic and consular establishment3 and others co,,ered by the independence act, to the Philippine government." Apropos of the retention of property titles in the United States, as provided in section 2 of the act, the house report said: "Some have interpreted the Inrlependence act of Hl34 as urovid ing for the relinquishment of all property titles now vc;;ted. in the United States p:overnment to the government of the Philippines dter July <1, 1946, the date set by law for achievement 0f Phil ippine independence. In the minds of otht:rs, this interpretation is questioned. Yet it is th.- feeling of this committee that this legii- lation is vitally necessary to clarify any doubts as to the present meaning of existing law." And in regard to the effect of section 2, both committee reports said: "7. Agencies of tl1e United States government are granted the right to retain title to proJlerties presently owned and to ar. <1uirc new properties for discharge- of Federal functi.ms in the Phil ippines after the date vf independence exceJ)t in the instances of enemy propertif's which arc otherwise provided for." In one of this explanation of sections 2, 4, and 6 of the Philip pine Property Act docs there appear to be any limitation on the sweep of the plain words of secticn 2 under which there remains vested in the government of the United States, or its agencies or instrumentalities, all right, title, and interest to real and per sonal property now (July �, 1!)46) vested in the government 01· its agencies Ol' instrumentalities. Plainly, this reservation of title in cludes real and personal property of the United St.ates used for military and naval purposes, Even applying section 6 to section 2, as we Jieterally must in testing its meaning, section 6 eff Pcts no change in the scope and breadth of section 2. For, the provisions of the Independence act as amended, and the prnvisions of the joint resolutions of 1944, which are named and expressly save from amendment by section 6, are the provisions of those laws which re serveserv(l the title of the United States, beyond the independence date, to naval reservations and fueling stations, to diplomatic and consular property, and to base generally, Thus, section 2 of the Philippine Property act overlaps anrl has confirmed the reservation of United States title to milita1·y and naval bases; and section 6 of the Prope1ty act has a limitinrr significance, as the house ia.nd senate committees quite logical!y indicated, only upon section 4. As a result, section 4 is authority for the disposing of United States property in the Philippine,; to the Pl1ilippine Republic, other than: 1) property acquired by the alien property custodian (covered by section 3 and 5); 2) dip lomatic and consular property including property of the high com missioner (exclucied by section 6), and, 3) property constituting r.uval reservations, fueling stations, or military bases of the United States (excluded by section 6L However, as alre:1dy noted and 'fl-IE LAWYERS JOURNAL March 31, 1954 MR. BROWNELL'S . as is discussed more fully later, the Tydings-McDuffie act as amended, and the joint resolution of June 29, 1944, already had made provisions for the disposition, after independence, of t11e �lcond and third categories of property not covered by section 4 o( the Philippine Property act. Events that have transpired since the enactment on July 3, 1!::46, of the Philippine Prope1ty act, add ful'ther confirmation to th,? continuance after Philippine independence of United States title in the base properties. On July 4, 1946, the President of the United States pro_clcimed the independence of the Philippine!! as a separate and self-governing nation. The proclamation recites tJ1at "in accord with and subject to the reservations provided for in t.he applicable statutes of the United States" the United Statei:. withdraws and surrenders a.II 1·ights of possession, supP.rvision, jurisdiction, control, or sovereignty in and over the territory and people of the Philippin\!s. (Proclamation No. 2695, 11 F. R. 7517, GO Stat. 1352). The treaty of general relations between the United States and the Philippines, signed July 4, 1946 (effective October 22, 1946), (TIAS No. 1568, 61 Stat. 1174) repeats in Article VI the provi sions of the Tydings-McDuffie act, section 2(b) (1), that the prop4 erty rights of the United States of America and the Republic of the Philippines sha.11 be promptly adjusted and settled by mutual agree ment- The protocol attached to the treaty says expres�ly that ''this treaty does not attempt to regulate the details of arrange ments between the two governments for their mutual defense; ·for t-he cstabl'ishment, termination or regulation of the rights and du ties of the two countries, each with respect to the other, in the settlement of claims, es to the ownership or control of real or personal property," etc. Further, ''it is understood and agreed that the conclusion and entrance iuto force of this treaty is not exclusive of further treaties and executive agreements providing fo:.• the specific regulation of matters broadly covered herei>i." 1'he treaty and pt·otocol clearly 1·eserved the question of Uniterl States property titles for futUl'e settlement. . On Ma.rch 14, 1947, there was signed the agreement between the United States �nd the Philippines concerning military bases i11 the Philippines, which entered into force March 26, 1947. The tenor of this fairly detailed agreement was that the Philip pine Republic granted to the United States the right to rctam the use aK bases of some 16 bases or military or naval reservations listed in Annex A (in general descriptive terms, not by metes and bounds), and agreed to permit the United States, upon no tice, to use some seven additional bases similarly listed in Annex B, as the United States should determine to be required by mili tary necessity. 1t was further a.greed that the United States might expand such bases, exchange them fo1· other bases, ac qui1·e additional bases, or relinquish rights to bases, as the mili tary exjgencies require. One of the recitals of the preamble to the Military Bases Agreemellt might ha\'e raised a. clifficult-to-explain ambiguity re garding the title were it not for t.he sunounding circumstances. The clause stnted that the two countries were desirous of coopnat ing in their common defense, "particularly through a grant to the United States of America by the Republic of the Philippines ln the exet·cise of its title and sovereignty of the use, free of rent, in furtherance of the mutuai interest of both countries, '>f cer h>.in lands of the public domain." An exchange of notes between the United States and tJ-:e Phil ippines, simultaneous with his signing of the agreement, makes clear that this reference to Philippine title is not to all of thE lands comprising the bases and temporary installations, but is to the parts of those lands a.nd any additional lands that the United States might require in expansion or exchanges, which happen to be undisputed Philippine public lands. The American ambas sndor's note of March 14, 1947, said: "I have the honor to state, in signing the agreement of March 14, 1947, between the United States of America 2-nd the Republic of the Philippines concerning military bases, the understanding of my government that the question oi the adjustment of any rights and titles held by the United States pursuant to the l)rovi sions of the act of congress of March 24, 1934 as amrndt!<l, SJ-'ecifically section 10-Cb) thereof, the joint resolution "Of the con g1·ess of June 29, 1944, and the act of congress of July 3, 1946, and treaties and agreements heretofore entered into between the United States and the Philippines, to real property in any of the b2ses covered by the aforementioned agreement or any na Yal reservations or fueling stations not so covered is reserved and will be settled subsequently in accordance with th� terms of tl:-e acts and joint resolution of the congress mentioned above." The acknowledgment of the same date by the Pl1ilippine sec. reta1·y of foreign affairs set out 1,he United States note in full and then said: "I have the honor to state that, without conceding the existence of any rights or titles to the real property herein referred to, my government concurs with the und€rstanding above set forth." So that again the matter of the United States title in and to military base lan<l and military or naval reservations or fueling stations was not settled directly or indirectly in the military base� 3greement, and the titles remained in the United States subject to future negotiation and settlemr:nt. Nowhere in this background of conduct and transactions is there any basis for as much as implying a. genera.I passage of 1he title of the United States to the Pl1ilippine governme11t in and to t.he properties comprising the United States military and na val bases in the Philippiiics. Even if some basis could be developed for implying a grant, it would be of no legal consequence in the face of the well-established principle of. law concerning grants of M<wch 31, 1954 119 >' land by the sovereign, that a grant of the sovereign must be explicit nnd nothing passes by implication. Nortlwn~ Pacifir. Railway Co. v. Sodrrbero, 1S8 U.S. 526, 531 <Hl03) Great No1·thernRailways Co. v. Unitc><l Statec, 315 U.S. 262, 272 Cl942l. Indicative of the clear understanding reg:uding the actual state of facts, and possibly the law, were the express, formal conveyances to the Philippine Republic in 1947 and 1949, following the execution of the Military Bases agreement, of the title of the United States to some 30 or more military reservation or properties deemed to be in excess of United States military requirements. The transfers were effected by notes from the United States embassy at Manila and accepted by the Philippine departnient of foreign affairs in reply notes. The notes referred explicitly to each property conveyed, and accompanying the Uniied States notes were lists of executive orrlers and Torrens certificates of title under which the United States had claimed title to the militflry reservations conveyed. A subsidiary question has been raised reA'arding title to the areas embraced in the temporary installations provided for by Article XXI of the Military Bases agreement. Most of these propertieP afJparent!y have already been com1 eyed to the Philippine ~overn111ent by the specific conveyances referred to above. However, the legal advi~er's memorandum indicates that there t·ernain b ·10 <1ueh properties held hy the United States, the Fort McKinley reservation and the Port of ?tfanila Reservation. Under Article XXI it was agreed that the United St6tes would retain the right to occupy temporary quarters and installations existing outside of the bases listed in Annexrs A and B, for a reasonable time not exceeding t.wo yenrs as miA"ht be 11ecessnry to develop adequate facilities within the bases for the United States armed forces. It was provided that the temporary periorl might be extended hy mutual agreem<'nt, and there has been one such extension for three years from March 26. 19-19. There il! no express agreement for transferring title to these properties, and there has been no blanket transfer of the United States tiHe in such temporary installations to the Philippine A'Overnment. However, there have b~en the speciffo transfers of most of the pro. pe1ties individually, as indicated. The suggestion is offered in the lceal adviser's memorandum that J}l)Ssibly the exchange of no!es, which took place concurrently with the siQ"llinir of the Military Bases agi·eemeut. purnorted to reserve only the adiustment of tit.le~ tc thosl! properties listed as Annexes A and R bases and naval 1·eservati<ms and fueling- stations. thereby excludi11A' Articlr XXI temporary installations and imnl:1ing an oblieation to transfer them to the Philirmine government. The history of tlH• n<!gotiations underling the aA'rerment and the simultaneous exchange or notes. which is set ont in detail in the state dcnutment reso>arch project No. 319 of Frbruary 1953 C The neJ?otiation of the United States-Philippines Military Bases agre-ement of 1947~ neg-ate this speculation. It is quite clear that the purpose of the a.~reement was to cover the use of the prrmerties for military purposes. and the purpose of the notes was to leave onen for future settlement thi; rights and titles to real property. Thus, no fine or technical distinction between Annexes A and B bases and any other type of military installation was intended in reserving for the future the issue of title. I therefore a.m of the opinion that, except for such milita1'Y or orival properties as the United States has expressly and formally conveyed to the Philinnine republic. as in the exchan,i?e of notes contained in TIAS Hl63 and TIAS 2406, the United States now has whatever title it had prior to July 4, 1946, in the land or a:-r.as comprising the bases listed in Annexes A and B of the Military Rases a~eenment of March 14, 1947, in the naval reservationf:> arid fueling stations not so listed in that a~eement, and in the areas covered by Article XXI of the agreement. Furthermore, I am of the view that there has been no adjustment and settlement of the property rights of the United Stetes in the Philippines within the meaning of the Tydings-McDuffif! Act. The matter has been reserved for future dispo0;ition several times and remains yet to be adjusted and settled. II. You have also .asked whether, under our agreements with the Philippines and our statutes, the United States is obligated to transfH presently without compensation any of the titles to Annexes A and B bases of the 1947 agreement, to naval reservations and fueling stations, and to Article XXI (194'1 AgreC!mcnt) temporary installations; and if there is no obligation, whether the President of the United States is authorized by law to make! such a transfer. I believP. there is little question ,from the history already reviewed, that the congress which cnact'ed the Tydings-McDuffie Act in 1934 intended that title to, and any further operation of, the milifa.ry reservations of the United 8tates in the Philippines, except naval reservations and fueling stations, should pa.ss to the new Philippine Republic upon its establishment in 1946. Conversely, as t-o nav&l reservations and fuelii1g stations, it was contemplated that title in the United States, as wtll as operation by the United Sfa.tcs, would be continued for at least two years; and thereafter, pendi11g the conclusion of negotfn.tions begun in that per!od by the P1·esident, title' and operation would remain with the United States for such time as w'luld be agreed upon by the adjustment nnd settlement between the President of the United States an'J the government of th<? Philippines. Nothing in the statute precluded the making of an arrangement for either permanent retention or complete transfer of th~ na.val propet'ties by the United States, or for some intermediate solution. As to the naval 1·eservati::>ns snd fueling stations, the;e has been no change in the law ol· their status as United States property. Subsequent acts and agreements of the United States and the Philippines have reserved the issue for the future. The Presi<lent of the United Sta.tes continues to be authorized to make the fina1 settlement with the Philippine Republic which will c!ecide for how Ion:;? and upon what conditions the naval reservations and fueling stations, 1·eservt>d under the Tyding5-McDuffie Act, will r<!main the property of the United States 01· be transferred to the Philippine Republic. The President is UIJ(.l"!r no obligation to give these properties to the Philippine government, or to transfer them for compensation. He is vestt>d wiH, complete discretion in the matter. If he concludes that it is in the intereirl of the United States to convey to the Philippine government title lo any of the naval reservations and fueling stations in the islands, with or without compensation, he eujoys complete :: rnthoritv to make the conveyance under section 10 Cb> of the Tydings. McDuffie Act, 48 Stat. 4G3. Hifl authority extends to "the adjustment and settlement of all c;,uestion.'4 relating to the naval reservations and fuC'ling stations." The word "settlement" in its general sense signifies "the act of conferring anything in a forma.l and ncrmanent manner; a bestowing or granting under legal sanction." (80 C.J .S. 125). Since a settlement of the questioni> under se~tion lOC b) might well indade relinquishment of titles, the President has ubv:ously been authorized to make 311)' necessary conveyance~. The reference in section 10(b) to his entering mto negotiations with the Philippine government in no wise detracts from this full authority The language is significant only in the matter of time (i.e., he is to commence! negotiations within two year~ aftev independence) . since as this government's organ in foreign affairs the President is authorized by the Constitution to negotiate on any appropriate suhj<!ct for negoliation w:th a foreign go\•ernmcnt. Moreover, as noted at a later point in this opinion, I am of the view that the authority conferred upon tl1e President by the joint resolution of .T une 29, 1944 tends to confirm, if not augment, his discretionary authority t<! agree with the PhilippiJ.e government and convey to it any of the naval reservations and fueling i<tations in the Philippines. As to the military reservations of the Tyclings-1\kDuffie act, there has been a complete change in the law and status as provided for in 1934. In place of their passage to . the Philippines upon t.h<! achievment of independence the President has been authorized under the joint resolution of .Tune 29, 1944, after negotiation with the President of the Philippine Commonwealth or the Pre-sidcnt of Philippine Republic, to withhold and to retain as bases, <Continue on pa,ge 159) 120 THE LAWYERS JOURNAL March 31, 19{;4 MR. BROWNELL'S • • • <Continued from page 120) in addition to the naval reservations and fueling stations, any �nd all reservations of the United States as he may deem necessary for the mutual protection of the Philippine Islands and the United States, and by such means as he finds appropriate, In addition, he has been authorized by the same joint resolution to P.cquire bases and to retain them for the same purpose and by the same means. As a r{:sult. the President was and is vested with compkte discretionary authority to retain or convey to the Philippir!e gov ernment the title in and to any military bases 'lf the United States in the Philippines. The language of the joint resolution of June 29, Hl44, 58 Stat. 625, referring- to "bases" without qualification and "in addition to 8JJY provided for by the Act of i\larch 24, 1934," is comprehen sive enough to include the naval rese1·vations and fileling stations �s well as military reservations, so that the President's earlit!r authority as to naval reservations and fueling stations is reinforced by the joint resolutic.n. Again, as in the �ase of the n::ival reservations and fueling sta,.. tions, there is no ubligation on the part of the President to transfe!' title to the bases without comn1;:nsation. LikewisP, there 1s nn obligation on th� part of the President to demand compensation in connection with a fransfer. His discretion is complete. A fnrther question has been 1·aised in regard to th.ose proper ties of the United States which JUtve heen or are bein2 used as "temporary installations" under Article XXI of the !\i[ilitary Bases Agreement in contrast to the Annexes A snd B baf:es under. that <:greement. It is said that because of their temp,,rary naturr. it might he implied that upon tc:rmination of thetr use the tem porarr installations would be conveyed to the Philippine govern ment without compensation. But there is nothing in the ag�·E"r,ment making provision for such conveyance of title; and as noted earlier in thiii ,:ipinion. the contempc;raneous exchange of notes accompanyln� the l\lilita.i-y Bases agreement was inlenderl to rc si>1-ve the whole issue of title to properties involved in the b,ises 8.l!Tei>ment for ft:ture settlement in accorda11ce with the acts anrl joint resolutic,n of the congress. Article XXI, like the rest of •the ag-n,ement pertaining to the Annexes A and B bases, is concerned with the use for niilitary purposes of the property involved, rather than its ownersl1ip. ThE: mcmorand11m of the legal adviser points out that the num ber of temporary installations has been greatly rc,ducc:!d by the spe cific, formal conveyances to the Philippine government of most or the Unit.:d_ States military prope1ties coming unde1· t\ie head of tr·m:norary installations. In the category of real property con.sti tutin,1? a temp01·arr insfallat10n there remains, he says, f"lnly the Fort :McKmley rc-s1::rvatio1,, and the P,-rt '>f Manile. reservation as to which A1-ticle XXI makes special provision. The past con veyances of almmit all of tempurary instnllations without com pellsation in 1947 and 1949 might be clainwd to be some evidence, of a "moral obligation" to convey the remainder of the tempora.ry h1stallation without compensation. I do not find atiy legal ob ligation requiring the Unih.--d Stat<?s to convey title to the remainder of the temporary installations; nor 1!1 thert «ny provision of h:w OI agreement dealing differently with those titles th2,11 is providei.l in the case of the Annexes A and B bases and the naval reserva tions ar,d fueling stations, If in the, past the President was moved tu convey to the Philippine gov(:rnment title to the military in stallations which were surplus to th{: United States nc:!eds, without compensation, he was well within hi& authority, as has been already described. As the history of the period indicates, h1;: may well have l,P.en motivated by the desire to obtain Philippine cooperation in supplying other pro:i,ert1e'i 01· f:.icilitter. for United States use. Equally, the President may find today that those expectations haYto not been realized, in view Jf the ff1ct that a.t the prescmt time the United States is having difficulty obtaining property from the Philippine government needed for expansion of the bases. But these are reasons of policy, calling for the exercise of the disrre tion vested in the Prei::ident. They do not constitute l�gal obligations. I th{:rt:fore conclude that ther� is no different law governing the chsposition of United States titles to pnperties comprising the Arti cle XXI temporary instalfa .. tions than is provided for disposition of the titles to the Annxef: A and B bas{:S ryf th1;: :\-filitary Bases Agreement. · As to all thr4:e categories of b.'.\SI: property, vi:a:., Af!i:iraxes A ttnd D bas'"'s, 11aval reservations r.nd fueling stations, and Article XXI installations, there is no obligation on the part of the United .St:des to trnnslcr presently to tht: Philippine gov{:rnment title to any such properties, with or without compensation. HO\vev{:r, the President is authorized in his discr1<tion, to makt tra1,sfors of sul'h base proJ;erty as he deems to b"' in the interest of the United States on such terms and condit1011s as he may deem advisable, in ag"reemcnt with the government of the Ph1lippiuc Republic. In view of the possible negotiations with the Philippine govern ment, which lie ahead, it is my understanding that you do nCJt want this opinion to be published. Therdore, for the present, I am ' maintaining the same classification fot thh, opiuion as has "been assigned tc. bt- the incoming material. I am sending copies of this opinion to the director of the bureau of the budget, the secretary of the navy, and the secretary of the air force. Sincerely, HERBERT BROWNELL, JR. Attorney Genera.I � * * * � March 31, 1954 TElE LAWXERS_ JOURNA.L
Date: 1954
Rights