Poli Rev - Arigo vs. Swift Case Digest
Poli Rev - Arigo vs. Swift Case Digest
, Petitioners,
vs.
PONENTE: Villarama
FACTS:
On January 15, 2013, the USS Guardian departed Subic Bay for its next port
of call in Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the
Sulu Sea, the ship ran aground on the northwest side of South Shoal of the Tubbataha
Reefs, about 80 miles east-southeast of Palawan. No one was injured in the incident,
and there have been no reports of leaking fuel or oil.
ISSUES:
Whether or not the waiver of immunity from suit under VFA applies in this case.
HELD:
On the novel element in the class suit filed by the petitioners minors in Oposa,
this Court ruled that not only do ordinary citizens have legal standing to sue for the
enforcement of environmental rights, they can do so in representation of their own and
future generations.
Article 30: Non-compliance by warships with the laws and regulations of the coastal
State
If any warship does not comply with the laws and regulations of the coastal State
concerning passage through the territorial sea and disregards any request for
compliance therewith which is made to it, the coastal State may require it to leave the
territorial sea immediately.
Article 31: Responsibility of the flag State for damage caused by a warship or other
government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage to the
coastal State resulting from the non-compliance by a warship or other government ship
operated for non-commercial purposes with the laws and regulations of the coastal
State concerning passage through the territorial sea or with the provisions of this
Convention or other rules of international law.
Article 32: Immunities of warships and other government ships operated for non-
commercial purposes
But what if the offending warship is a non-party to the UNCLOS, as in this case, the
US?
According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a
matter of long-standing policy the US considers itself bound by customary international
rules on the “traditional uses of the oceans” as codified in UNCLOS.
Moreover, Justice Carpio emphasizes that “the US refusal to join the UNCLOS was
centered on its disagreement with UNCLOS” regime of deep seabed mining (Part XI)
which considers the oceans and deep seabed commonly owned by mankind,” pointing
out that such “has nothing to do with its the US’ acceptance of customary international
rules on navigation.”
The Court also fully concurred with Justice Carpio’s view that non-membership in the
UNCLOS does not mean that the US will disregard the rights of the Philippines as a
Coastal State over its internal waters and territorial sea. We thus expect the US to bear
“international responsibility” under Art. 31 in connection with the USS Guardian
grounding which adversely affected the Tubbataha reefs. Indeed, it is difficult to imagine
that our long-time ally and trading partner, which has been actively supporting the
country’s efforts to preserve our vital marine resources, would shirk from its obligation to
compensate the damage caused by its warship while transiting our internal waters.
Much less can we comprehend a Government exercising leadership in international
affairs, unwilling to comply with the UNCLOS directive for all nations to cooperate in the
global task to protect and preserve the marine environment as provided in Article 197 of
UNCLOS
The Court also found unnecessary at this point to determine whether such
waiver of State immunity is indeed absolute. In the same vein, we cannot grant
damages which have resulted from the violation of environmental laws. The Rules
allows the recovery of damages, including the collection of administrative fines under
R.A. No. 10067, in a separate civil suit or that deemed instituted with the criminal action
charging the same violation of an environmental law.
EN BANC
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV.
DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES Q.
QUIMPO, CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA CAROLINA P.
ARAULLO, RENATO M. REYES, JR., Bagong Alyansang Makabayan, HON. NERI
JAVIER COLMENARES, Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk
VF A Movement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V. PALATINO,
Kabataan Party-list, PETER SJ. GONZALES, Pamalakaya, GIOVANNI A. TAPANG,
PH. D., Agham, ELMER C. LABOG, Kilusang Mayo Uno, JOAN MAY E. SALVADOR,
Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A. CONCEPCION, MARY JOAN A.
GUAN, NESTOR T. BAGUINON, PH.D., A. EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE
in his capacity as Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S.
AQUINO III in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines, HON. ALBERT F. DEL ROSARIO, Secretary, pepartment of Foreign
Affair.s, HON. PAQUITO OCHOA, JR., Executiv~.:Secretary, Office of the President, .
HON. VOLTAIRE T. GAZMIN, Secretary, Department of National Defense, HON.
RAMON JESUS P. P AJE, Secretary, Department of Environment and Natural
Resoz!rces, VICE ADMIRAL JOSE LUIS M. ALANO, Philippine Navy Flag Officer in
Command, Armed Forces of the Philippines, ADMIRAL RODOLFO D. ISO RENA,
Commandant, Philippine Coast Guard, COMMODORE ENRICO EFREN
EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN. VIRGILIO 0.
DOMINGO, Commandant of Armed Forces of the Philippines Command and LT. GEN.
TERRY G. ROBLING, US Marine Corps Forces. Pacific and Balikatan 2013 Exercise
Co-Director, Respondents.
DECISION
Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the
issuance of a Temporary Environmental Protection Order (TEPO) under Rule 7 of A.M.
No. 09-6-8-SC, otherwise known as the Rules of Procedure for Environmental Cases
(Rules), involving violations of environmental laws and regulations in relation to the
grounding of the US military ship USS Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of southern Philippines)
language which means "long reef exposed at low tide." Tubbataha is composed of two
huge coral atolls - the north atoll and the south atoll - and the Jessie Beazley Reef, a
smaller coral structure about 20 kilometers north of the atolls. The reefs of Tubbataha
and Jessie Beazley are considered part of Cagayancillo, a remote island municipality of
Palawan.1
In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No.
306 issued by President Corazon C. Aquino on August 11, 1988. Located in the middle
of Central Sulu Sea, 150 kilometers southeast of Puerto Princesa City, Tubbataha lies
at the heart of the Coral Triangle, the global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and
Cultural Organization (UNESCO) as a World Heritage Site. It was recognized as one of
the Philippines' oldest ecosystems, containing excellent examples of pristine reefs and a
high diversity of marine life. The 97,030-hectare protected marine park is also an
important habitat for internationally threatened and endangered marine species.
UNESCO cited Tubbataha's outstanding universal value as an important and significant
natural habitat for in situ conservation of biological diversity; an example representing
significant on-going ecological and biological processes; and an area of exceptional
natural beauty and aesthetic importance.2
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known
as the "Tubbataha Reefs Natural Park (TRNP) Act of 2009" "to ensure the protection
and conservation of the globally significant economic, biological, sociocultural,
educational and scientific values of the Tubbataha Reefs into perpetuity for the
enjoyment of present and future generations." Under the "no-take" policy, entry into the
waters of TRNP is strictly regulated and many human activities are prohibited and
penalized or fined, including fishing, gathering, destroying and disturbing the resources
within the TRNP. The law likewise created the Tubbataha Protected Area Management
Board (TPAMB) which shall be the sole policy-making and permit-granting body of the
TRNP.
On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in
Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea,
the ship ran aground on the northwest side of South Shoal of the Tubbataha Reefs,
about 80 miles east-southeast of Palawan. No cine was injured in the incident, and
there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed
regret for the incident in a press statement.5 Likewise, US Ambassador to the
Philippines Harry K. Thomas, Jr., in a meeting at the Department of Foreign Affairs
(DFA) on February 4, "reiterated his regrets over the grounding incident and assured
Foreign Affairs Secretazy Albert F. del Rosario that the United States will provide
appropriate compensation for damage to the reef caused by the ship."6 By March 30,
2013, the US Navy-led salvage team had finished removing the last piece of the
grounded ship from the coral reef.
On April 1 7, 2013, the above-named petitioners on their behalf and in representation of
their respective sector/organization and others, including minors or generations yet
unborn, filed the present petition agairtst Scott H. Swift in his capacity as Commander of
the US 7th Fleet, Mark A. Rice in his capacity as Commanding Officer of the USS
Guardian and Lt. Gen. Terry G. Robling, US Marine Corps Forces, Pacific and Balikatan
2013 Exercises Co-Director ("US respondents"); President Benigno S. Aquino III in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines (AFP), DF A
Secretary Albert F. Del Rosario, Executive Secretary Paquito Ochoa, Jr., Secretary
Voltaire T. Gazmin (Department of National Defense), Secretary Jesus P. Paje
(Department of Environment and Natural Resources), Vice-Admiral Jose Luis M. Alano
(Philippine Navy Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena (Philippine
Coast Guard Commandant), Commodore Enrico Efren Evangelista (Philippine Coast
Guard-Palawan), and Major General Virgilio 0. Domingo (AFP Commandant),
collectively the "Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging operations of the
USS Guardian cause and continue to cause environmental damage of such magnitude
as to affect the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros
Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi,
which events violate their constitutional rights to a balanced and healthful ecology. They
also seek a directive from this Court for the institution of civil, administrative and criminal
suits for acts committed in violation of environmental laws and regulations in connection
with the grounding incident.
The numerous reliefs sought in this case are set forth in the final prayer of the petition,
to wit: WHEREFORE, in view of the foregoing, Petitioners respectfully pray that the
Honorable Court: 1. Immediately issue upon the filing of this petition a Temporary
Environmental Protection Order (TEPO) and/or a Writ of Kalikasan, which shall, in
particular,
a. Order Respondents and any person acting on their behalf, to cease and desist all
operations over the Guardian grounding incident;
b. Initially demarcating the metes and bounds of the damaged area as well as an
additional buffer zone;
c. Order Respondents to stop all port calls and war games under 'Balikatan' because of
the absence of clear guidelines, duties, and liability schemes for breaches of those
duties, and require Respondents to assume responsibility for prior and future
environmental damage in general, and environmental damage under the Visiting Forces
Agreement in particular.
2. After summary hearing, issue a Resolution extending the TEPO until further orders of
the Court;
3. After due proceedings, render a Decision which shall include, without limitation:
c. Declare that Philippine authorities may exercise primary and exclusive criminal
jurisdiction over erring U.S. personnel under the circumstances of this case;
f. Require the authorities of the Philippines and the United States to notify each other of
the disposition of all cases, wherever heard, related to the grounding of the Guardian;
m. Order the Department of Foreign Affairs, Department of National Defense, and the
Department of Environment and Natural Resources to review the Visiting Forces
Agreement and the Mutual Defense Treaty to consider whether their provisions allow for
the exercise of erga omnes rights to a balanced and healthful ecology and for damages
which follow from any violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of
protecting the damaged areas of TRNP;
o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and Article VI
of the Visiting Forces Agreement unconstitutional for violating equal protection and/or
for violating the preemptory norm of nondiscrimination incorporated as part of the law of
the land under Section 2, Article II, of the Philippine Constitution;
q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other respects;
and
4. Provide just and equitable environmental rehabilitation measures and such other
reliefs as are just and equitable under the premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their comment8 to the petition, petitioners
also filed a motion for early resolution and motion to proceed ex parte against the US
respondents.9
As a preliminary matter, there is no dispute on the legal standing of petitioners to file the
present petition.
In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the "public right" of
citizens to "a balanced and healthful ecology which, for the first time in our constitutional
history, is solemnly incorporated in the fundamental law." We declared that the right to a
balanced and healthful ecology need not be written in the Constitution for it is assumed,
like other civil and polittcal rights guaranteed in the Bill of Rights, to exist from the
inception of mankind and it is an issue of transcendental importance with
intergenerational implications.1âwphi1 Such right carries with it the correlative duty to
refrain from impairing the environment.14
On the novel element in the class suit filed by the petitioners minors in Oposa, this
Court ruled that not only do ordinary citizens have legal standing to sue for the
enforcement of environmental rights, they can do so in representation of their own and
future generations. Thus:
Petitioners minors assert that they represent their generation as well as generations yet
unborn. We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality to sue
in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful ecology
is concerned. Such a right, as hereinafter expounded, considers the "rhythm and
harmony of nature." Nature means the created world in its entirety. Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural resources to the end that their
exploration, development and utilization be equitably accessible to the present a:: well
as future generations. Needless to say, every generation has a responsibility to the next
to preserve that rhythm and harmony for the full 1:njoyment of a balanced and healthful
ecology. Put a little differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the performance of their obligation to ensure
the protection of that right for the generations to come.15 (Emphasis supplied.)
The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and
generations yet unborn, is now enshrined in the Rules which allows the filing of a citizen
suit in environmental cases. The provision on citizen suits in the Rules "collapses the
traditional rule on personal and direct interest, on the principle that humans are
stewards of nature."16
Having settled the issue of locus standi, we shall address the more fundamental
question of whether this Court has jurisdiction over the US respondents who did not
submit any pleading or manifestation in this case.
The immunity of the State from suit, known also as the doctrine of sovereign immunity
or non-suability of the State,17is expressly provided in Article XVI of the 1987
Constitution which states:
The rule that a state may not be sued without its consent, now · expressed in Article
XVI, Section 3, of the 1987 Constitution, is one of the generally accepted principles of
international law that we have adopted as part of the law of our land under Article II,
Section 2. x x x.
Even without such affirmation, we would still be bound by the generally accepted
principles of international law under the doctrine of incorporation. Under this doctrine, as
accepted by the majority of states, such principles are deemed incorporated in the law
of every civilized state as a condition and consequence of its membership in the society
of nations. Upon its admission to such society, the state is automatically obligated to
comply with these principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the justification
given by Justice Holmes that ''there can be no legal right against the authority which
makes the law on which the right depends." [Kawanakoa v. Polybank, 205 U.S. 349]
There are other practical reasons for the enforcement of the doctrine. In the case of the
foreign state sought to be impleaded in the local jurisdiction, the added inhibition is
expressed in the maxim par in parem, non habet imperium. All states are sovereign
equals and cannot assert jurisdiction over one another. A contrary disposition would, in
the language of a celebrated case, "unduly vex the peace of nations." [De Haber v.
Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state without its consent, it
is also applicable to complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. The rule is that if the judgment
against such officials will require the state itself to perform an affirmative act to satisfy
the same,. such as the appropriation of the amount needed to pay the damages
awarded against them, the suit must be regarded as against the state itself although it
has not been formally impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such a
situation, the state may move to dismiss the comp.taint on the ground that it has been
filed without its consent.19 (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in the Eleventh Amendment
which reads:
The Judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.
The precept that a State cannot be sued in the courts of a foreign state is a long-
standing rule of customary international law then closely identified with the personal
immunity of a foreign sovereign from suit and, with the emergence of democratic states,
made to attach not just to the person of the head of state, or his representative, but also
distinctly to the state itself in its sovereign capacity. If the acts giving rise to a suit arc
those of a foreign government done by its foreign agent, although not necessarily a
diplomatic personage, but acting in his official capacity, the complaint could be barred
by the immunity of the foreign sovereign from suit without its consent. Suing a
representative of a state is believed to be, in effect, suing the state itself. The
proscription is not accorded for the benefit of an individual but for the State, in whose
service he is, under the maxim -par in parem, non habet imperium -that all states are
soverr~ign equals and cannot assert jurisdiction over one another. The implication, in
broad terms, is that if the judgment against an official would rec 1uire the state itself to
perform an affirmative act to satisfy the award, such as the appropriation of the amount
needed to pay the damages decreed against him, the suit must be regarded as being
against the state itself, although it has not been formally impleaded.21 (Emphasis
supplied.)
In the same case we also mentioned that in the case of diplomatic immunity, the
privilege is not an immunity from the observance of the law of the territorial sovereign or
from ensuing legal liability; it is, rather, an immunity from the exercise of territorial
jurisdiction.22
In United States of America v. Judge Guinto,23 one of the consolidated cases therein
involved a Filipino employed at Clark Air Base who was arrested following a buy-bust
operation conducted by two officers of the US Air Force, and was eventually dismissed
from his employment when he was charged in court for violation of R.A. No. 6425. In a
complaint for damages filed by the said employee against the military officers, the latter
moved to dismiss the case on the ground that the suit was against the US Government
which had not given its consent. The RTC denied the motion but on a petition for
certiorari and prohibition filed before this Court, we reversed the RTC and dismissed the
complaint. We held that petitioners US military officers were acting in the exercise of
their official functions when they conducted the buy-bust operation against the
complainant and thereafter testified against him at his trial. It follows that for discharging
their duties as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued.
This traditional rule of State immunity which exempts a State from being sued in the
courts of another State without the former's consent or waiver has evolved into a
restrictive doctrine which distinguishes sovereign and governmental acts (Jure imperil")
from private, commercial and proprietary acts (Jure gestionis). Under the restrictive rule
of State immunity, State immunity extends only to acts Jure imperii. The restrictive
application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic
affairs.24
It is a different matter where the public official is made to account in his capacity as
such for acts contrary to law and injurious to the rights of plaintiff. As was clearly set
forth by JustiGe Zaldivar in Director of the Bureau of Telecommunications, et al. vs.
Aligaen, etc., et al. : "Inasmuch as the State authorizes only legal acts by its officers,
unauthorized acts of government officials or officers are not acts of the State, and an
action against the officials or officers by one whose rights have been invaded or violated
by such acts, for the protection of his rights, is not a suit against the State within the rule
of immunity of the State from suit. In the same tenor, it has been said that an action at
law or suit in equity against a State officer or the director of a State department on the
ground that, while claiming to act for the State, he violates or invades the personal and
property rights of the plaintiff, under an unconstitutional act or under an assumption of
authority which he does not have, is not a suit against the State within the constitutional
provision that the State may not be sued without its consent." The rationale for this
ruling is that the doctrine of state immunity cannot be used as an instrument for
perpetrating an injustice.
xxxx
The aforecited authorities are clear on the matter. They state that the doctrine of
immunity from suit will not apply and may not be invoked where the public official is
being sued in his private and personal capacity as an ordinary citizen. The cloak of
protection afforded the officers and agents of the government is removed the moment
they are sued in their individual capacity. This situation usually arises where the public
official acts without authority or in excess of the powers vested in him. It is a well-settled
principle of law that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice and in bad faith, or
beyond the scope of his authority or jurisdiction.26 (Emphasis supplied.) In this case,
the US respondents were sued in their official capacity as commanding officers of the
US Navy who had control and supervision over the USS Guardian and its crew. The
alleged act or omission resulting in the unfortunate grounding of the USS Guardian on
the TRNP was committed while they we:re performing official military duties.
Considering that the satisfaction of a judgment against said officials will require remedial
actions and appropriation of funds by the US government, the suit is deemed to be one
against the US itself. The principle of State immunity therefore bars the exercise of
jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio took the position
that the conduct of the US in this case, when its warship entered a restricted area in
violation of R.A. No. 10067 and caused damage to the TRNP reef system, brings the
matter within the ambit of Article 31 of the United Nations Convention on the Law of the
Sea (UNCLOS). He explained that while historically, warships enjoy sovereign immunity
from suit as extensions of their flag State, Art. 31 of the UNCLOS creates an exception
to this rule in cases where they fail to comply with the rules and regulations of the
coastal State regarding passage through the latter's internal waters and the territorial
sea.
According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a
matter of long-standing policy the US considers itself bound by customary international
rules on the "traditional uses of the oceans" as codified in UNCLOS, as can be gleaned
from previous declarations by former Presidents Reagan and Clinton, and the US
judiciary in the case of United States v. Royal Caribbean Cruise Lines, Ltd.27
The international law of the sea is generally defined as "a body of treaty rules arid
customary norms governing the uses of the sea, the exploitation of its resources, and
the exercise of jurisdiction over maritime regimes. It is a branch of public international
law, regulating the relations of states with respect to the uses of the oceans."28 The
UNCLOS is a multilateral treaty which was opened for signature on December 10, 1982
at Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but came into force
on November 16, 1994 upon the submission of the 60th ratification.
Insofar as the internal waters and territorial sea is concerned, the Coastal State
exercises sovereignty, subject to the UNCLOS and other rules of international law. Such
sovereignty extends to the air space over the territorial sea as well as to its bed and
subsoil.32
In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy
sovereign immunity subject to the following exceptions:
Article 30
Non-compliance by warships with the laws and regulations of the coastal State
If any warship does not comply with the laws and regulations of the coastal State
concerning passage through the territorial sea and disregards any request for
compliance therewith which is made to it, the coastal State may require it to leave the
territorial sea immediately.
Article 31
Responsibility of the flag State for damage caused by a warship
Article 32
Immunities of warships and other government ships operated for non-commercial
purposes
With such exceptions as are contained in subsection A and in articles 30 and 31,
nothing in this Convention affects the immunities of warships and other government
ships operated for non-commercial purposes. (Emphasis supplied.) A foreign warship's
unauthorized entry into our internal waters with resulting damage to marine resources is
one situation in which the above provisions may apply. But what if the offending warship
is a non-party to the UNCLOS, as in this case, the US?
An overwhelming majority - over 80% -- of nation states are now members of UNCLOS,
but despite this the US, the world's leading maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation and drafting,
the U.S. delegation ultimately voted against and refrained from signing it due to
concerns over deep seabed mining technology transfer provisions contained in Part XI.
In a remarkable, multilateral effort to induce U.S. membership, the bulk of UNCLOS
member states cooperated over the succeeding decade to revise the objection.able
provisions. The revisions satisfied the Clinton administration, which signed the revised
Part XI implementing agreement in 1994. In the fall of 1994, President Clinton
transmitted UNCLOS and the Part XI implementing agreement to the Senate requesting
its advice and consent. Despite consistent support from President Clinton, each of his
successors, and an ideologically diverse array of stakeholders, the Senate has since
withheld the consent required for the President to internationally bind the United States
to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the
108th and 110th Congresses, its progress continues to be hamstrung by significant
pockets of political ambivalence over U.S. participation in international institutions. Most
recently, 111 th Congress SFRC Chairman Senator John Kerry included "voting out"
UNCLOS for full Senate consideration among his highest priorities. This did not occur,
and no Senate action has been taken on UNCLOS by the 112th Congress.34
Justice Carpio invited our attention to the policy statement given by President Reagan
on March 10, 1983 that the US will "recognize the rights of the other , states in the
waters off their coasts, as reflected in the convention [UNCLOS], so long as the rights
and freedom of the United States and others under international law are recognized by
such coastal states", and President Clinton's reiteration of the US policy "to act in a
manner consistent with its [UNCLOS] provisions relating to traditional uses of the
oceans and to encourage other countries to do likewise." Since Article 31 relates to the
"traditional uses of the oceans," and "if under its policy, the US 'recognize[s] the rights of
the other states in the waters off their coasts,"' Justice Carpio postulates that "there is
more reason to expect it to recognize the rights of other states in their internal waters,
such as the Sulu Sea in this case."
As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to
join the UN CLOS was centered on its disagreement with UN CLOS' regime of deep
seabed mining (Part XI) which considers the oceans and deep seabed commonly
owned by mankind," pointing out that such "has nothing to do with its [the US']
acceptance of customary international rules on navigation."
It may be mentioned that even the US Navy Judge Advocate General's Corps publicly
endorses the ratification of the UNCLOS, as shown by the following statement posted
on its official website:
The Convention is in the national interest of the United States because it establishes
stable maritime zones, including a maximum outer limit for territorial seas; codifies
innocent passage, transit passage, and archipelagic sea lanes passage rights; works
against "jurisdictiomtl creep" by preventing coastal nations from expanding their own
maritime zones; and reaffirms sovereign immunity of warships, auxiliaries anJ
government aircraft.
xxxx
We fully concur with Justice Carpio's view that non-membership in the UNCLOS does
not mean that the US will disregard the rights of the Philippines as a Coastal State over
its internal waters and territorial sea. We thus expect the US to bear "international
responsibility" under Art. 31 in connection with the USS Guardian grounding which
adversely affected the Tubbataha reefs. Indeed, it is difficult to imagine that our long-
time ally and trading partner, which has been actively supporting the country's efforts to
preserve our vital marine resources, would shirk from its obligation to compensate the
damage caused by its warship while transiting our internal waters. Much less can we
comprehend a Government exercising leadership in international affairs, unwilling to
comply with the UNCLOS directive for all nations to cooperate in the global task to
protect and preserve the marine environment as provided in Article 197, viz:
Article 197
Cooperation on a global or regional basis
Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise,
they invoke federal statutes in the US under which agencies of the US have statutorily
waived their immunity to any action. Even under the common law tort claims, petitioners
asseverate that the US respondents are liable for negligence, trespass and nuisance.
The VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines to promote "common security interests" between the
US and the Philippines in the region. It provides for the guidelines to govern such visits
of military personnel, and further defines the rights of the United States and the
Philippine government in the matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment, materials and supplies.36 The
invocation of US federal tort laws and even common law is thus improper considering
that it is the VF A which governs disputes involving US military ships and crew
navigating Philippine waters in pursuance of the objectives of the agreement.
As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction
and not to special civil actions such as the present petition for issuance of a writ of
Kalikasan. In fact, it can be inferred from Section 17, Rule 7 of the Rules that a criminal
case against a person charged with a violation of an environmental law is to be filed
separately:
SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the
writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative
actions.
In any case, it is our considered view that a ruling on the application or non-application
of criminal jurisdiction provisions of the VF A to US personnel who may be found
responsible for the grounding of the USS Guardian, would be premature and beyond
the province of a petition for a writ of Kalikasan. We also find it unnecessary at this point
to determine whether such waiver of State immunity is indeed absolute. In the same
vein, we cannot grant damages which have resulted from the violation of environmental
laws. The Rules allows the recovery of damages, including the collection of
administrative fines under R.A. No. 10067, in a separate civil suit or that deemed
instituted with the criminal action charging the same violation of an environmental
law.37
Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for
issuance of a writ of Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for
decision, the court shall render judgment granting or denying the privilege of the writ of
kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from committing acts or
neglecting the performance of a duty in violation of environmental laws resulting in
environmental destruction or damage;
(b) Directing the respondent public official, govemment agency, private person or entity
to protect, preserve, rehabilitate or restore the environment;
(c) Directing the respondent public official, government agency, private person or entity
to monitor strict compliance with the decision and orders of the court;
(d) Directing the respondent public official, government agency, or private person or
entity to make periodic reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced and healthful
ecology or to the protection, preservation, rehabilitation or restoration of the
environment, except the award of damages to individual petitioners. (Emphasis
supplied.)
We agree with respondents (Philippine officials) in asserting that this petition has
become moot in the sense that the salvage operation sought to be enjoined or
restrained had already been accomplished when petitioners sought recourse from this
Court. But insofar as the directives to Philippine respondents to protect and rehabilitate
the coral reef stn icture and marine habitat adversely affected by the grounding incident
are concerned, petitioners are entitled to these reliefs notwithstanding the completion of
the removal of the USS Guardian from the coral reef. However, we are mindful of the
fact that the US and Philippine governments both expressed readiness to negotiate and
discuss the matter of compensation for the damage caused by the USS Guardian. The
US Embassy has also declared it is closely coordinating with local scientists and
experts in assessing the extent of the damage and appropriate methods of
rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed by the Rules.
As can be gleaned from the following provisions, mediation and settlement are available
for the consideration of the parties, and which dispute resolution methods are
encouraged by the court, to wit:
RULE3
xxxx
SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall
inquire from the parties if they have settled the dispute; otherwise, the court shall
immediately refer the parties or their counsel, if authorized by their clients, to the
Philippine Mediation Center (PMC) unit for purposes of mediation. If not available, the
court shall refer the case to the clerk of court or legal researcher for mediation.
Mediation must be conducted within a non-extendible period of thirty (30) days from
receipt of notice of referral to mediation.
The mediation report must be submitted within ten (10) days from the expiration of the
30-day period.
SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the
continuance of the pre-trial. Before the scheduled date of continuance, the court may
refer the case to the branch clerk of court for a preliminary conference for the following
purposes:
xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and their
counsels under oath, and they shall remain under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a settlement of the
dispute. The judge may issue a consent decree approving the agreement between the
parties in accordance with law, morals, public order and public policy to protect the right
of the people to a balanced and healthful ecology.
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SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to
compromise or settle in accordance with law at any stage of the proceedings before
rendition of judgment. (Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009 when a guided-missile
cruiser, the USS Port Royal, ran aground about half a mile off the Honolulu Airport Reef
Runway and remained stuck for four days. After spending $6.5 million restoring the
coral reef, the US government was reported to have paid the State of Hawaii $8.5
million in settlement over coral reef damage caused by the grounding.38
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff
proper reliefs which shall include the protection, preservation or rehabilitation of the
environment and the payment of attorney's fees, costs of suit and other litigation
expenses. It may also require the violator to submit a program of rehabilitation or
restoration of the environment, the costs of which shall be borne by the violator, or to
contribute to a special trust fund for that purpose subject to the control of the
court.1âwphi1
In the light of the foregoing, the Court defers to the Executive Branch on the matter of
compensation and rehabilitation measures through diplomatic channels. Resolution of
these issues impinges on our relations with another State in the context of common
security interests under the VFA. It is settled that "[t]he conduct of the foreign relations
of our government is committed by the Constitution to the executive and legislative-"the
political" --departments of the government, and the propriety of what may be done in the
exercise of this political power is not subject to judicial inquiry or decision."40
On the other hand, we cannot grant the additional reliefs prayed for in the petition to
order a review of the VFA and to nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora,41 the VFA
was duly concurred in by the Philippine Senate and has been recognized as a treaty by
the United States as attested and certified by the duly authorized representative of the
United States government. The VF A being a valid and binding agreement, the parties
are required as a matter of international law to abide by its terms and provisions.42 The
present petition under the Rules is not the proper remedy to assail the constitutionality
of its provisions. WHEREFORE, the petition for the issuance of the privilege of the Writ
of Kalikasan is hereby DENIED.
No pronouncement as to costs.
SO ORDERED.