State Immunity Part 1

petitioner of Lot 5-A to Tropicana Properties and Development Corporation

(Tropicana).

G.R. No. 101949 December 1, 1994

I
THE
HOLY
SEE, petitioner,
vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional
Trial Court of Makati, Branch 61 and STARBRIGHT SALES ENTERPRISES,
INC., respondents.
Padilla Law Office for petitioner.
Siguion Reyna, Montecillo & Ongsiako for private respondent.

QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse
and set aside the Orders dated June 20, 1991 and September 19, 1991 of the
Regional Trial Court, Branch 61, Makati, Metro Manila in Civil Case No. 90-183.
The Order dated June 20, 1991 denied the motion of petitioner to dismiss the
complaint in Civil Case No. 90-183, while the Order dated September 19, 1991
denied the motion for reconsideration of the June 20,1991 Order.
Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome,
Italy, and is represented in the Philippines by the Papal Nuncio.
Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation
engaged in the real estate business.
This petition arose from a controversy over a parcel of land consisting of 6,000
square meters (Lot 5-A, Transfer Certificate of Title No. 390440) located in the
Municipality of Paraaque, Metro Manila and registered in the name of petitioner.
Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer
Certificates of Title Nos. 271108 and 265388 respectively and registered in the
name of the Philippine Realty Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting
as agent to the sellers. Later, Licup assigned his rights to the sale to private
respondent.
In view of the refusal of the squatters to vacate the lots sold to private respondent, a
dispute arose as to who of the parties has the responsibility of evicting and clearing
the land of squatters. Complicating the relations of the parties was the sale by

On January 23, 1990, private respondent filed a complaint with the Regional Trial
Court, Branch 61, Makati, Metro Manila for annulment of the sale of the three parcels
of land, and specific performance and damages against petitioner, represented by
the Papal Nuncio, and three other defendants: namely, Msgr. Domingo A. Cirilos, Jr.,
the
PRC
and
Tropicana
(Civil
Case
No.
90-183).
The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of
petitioner and the PRC, agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D at the
price of P1,240.00 per square meters; (2) the agreement to sell was made on the
condition that earnest money of P100,000.00 be paid by Licup to the sellers, and
that the sellers clear the said lots of squatters who were then occupying the same;
(3) Licup paid the earnest money to Msgr. Cirilos; (4) in the same month, Licup
assigned his rights over the property to private respondent and informed the sellers
of the said assignment; (5) thereafter, private respondent demanded from Msgr.
Cirilos that the sellers fulfill their undertaking and clear the property of squatters;
however, Msgr. Cirilos informed private respondent of the squatters' refusal to
vacate the lots, proposing instead either that private respondent undertake the
eviction or that the earnest money be returned to the latter; (6) private respondent
counterproposed that if it would undertake the eviction of the squatters, the
purchase price of the lots should be reduced from P1,240.00 to P1,150.00 per
square meter; (7) Msgr. Cirilos returned the earnest money of P100,000.00 and
wrote private respondent giving it seven days from receipt of the letter to pay the
original purchase price in cash; (8) private respondent sent the earnest money back
to the sellers, but later discovered that on March 30, 1989, petitioner and the PRC,
without notice to private respondent, sold the lots to Tropicana, as evidenced by two
separate Deeds of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D; and
that the sellers' transfer certificate of title over the lots were cancelled, transferred
and registered in the name of Tropicana; (9) Tropicana induced petitioner and the
PRC to sell the lots to it and thus enriched itself at the expense of private
respondent; (10) private respondent demanded the rescission of the sale to
Tropicana and the reconveyance of the lots, to no avail; and (11) private respondent
is willing and able to comply with the terms of the contract to sell and has actually
made plans to develop the lots into a townhouse project, but in view of the sellers'
breach, it lost profits of not less than P30,000.000.00.
Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between
petitioner and the PRC on the one hand, and Tropicana on the other; (2) the
reconveyance of the lots in question; (3) specific performance of the agreement to
sell between it and the owners of the lots; and (4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the
complaint petitioner for lack of jurisdiction based on sovereign immunity from
suit, and Msgr. Cirilos for being an improper party. An opposition to the motion was
filed by private respondent.

On June 20, 1991, the trial court issued an order denying, among others, petitioner's
motion to dismiss after finding that petitioner "shed off [its] sovereign immunity by
entering into the business contract in question" (Rollo, pp. 20-21).
On July 12, 1991, petitioner moved for reconsideration of the order. On August 30,
1991, petitioner filed a "Motion for a Hearing for the Sole Purpose of Establishing
Factual Allegation for claim of Immunity as a Jurisdictional Defense." So as to
facilitate the determination of its defense of sovereign immunity, petitioner prayed
that a hearing be conducted to allow it to establish certain facts upon which the said
defense is based. Private respondent opposed this motion as well as the motion for
reconsideration.
On October 1, 1991, the trial court issued an order deferring the resolution on the
motion for reconsideration until after trial on the merits and directing petitioner to
file its answer (Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the
privilege of sovereign immunity only on its own behalf and on behalf of its official
representative, the Papal Nuncio.
On December 9, 1991, a Motion for Intervention was filed before us by the
Department of Foreign Affairs, claiming that it has a legal interest in the outcome of
the case as regards the diplomatic immunity of petitioner, and that it "adopts by
reference, the allegations contained in the petition of the Holy See insofar as they
refer to arguments relative to its claim of sovereign immunity from suit" (Rollo, p.
87).
Private respondent opposed the intervention of the Department of Foreign Affairs. In
compliance with the resolution of this Court, both parties and the Department of
Foreign Affairs submitted their respective memoranda.
II
A preliminary matter to be threshed out is the procedural issue of whether the
petition for certiorari under Rule 65 of the Revised Rules of Court can be availed of
to question the order denying petitioner's motion to dismiss. The general rule is that
an order denying a motion to dismiss is not reviewable by the appellate courts, the
remedy of the movant being to file his answer and to proceed with the hearing
before the trial court. But the general rule admits of exceptions, and one of these is
when it is very clear in the records that the trial court has no alternative but to
dismiss the complaint (Philippine National Bank v. Florendo, 206 SCRA 582 [1992];
Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. In such a case, it would
be a sheer waste of time and energy to require the parties to undergo the rigors of a
trial.
The other procedural question raised by private respondent is the personality or
legal interest of the Department of Foreign Affairs to intervene in the case in behalf
of the Holy See (Rollo, pp. 186-190).

In Public International Law, when a state or international agency wishes to plead

sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of
the state where it is sued to convey to the court that said defendant is entitled to
immunity.
In the United States, the procedure followed is the process of "suggestion," where
the foreign state or the international organization sued in an American court
requests the Secretary of State to make a determination as to whether it is entitled
to immunity. If the Secretary of State finds that the defendant is immune from suit,
he, in turn, asks the Attorney General to submit to the court a "suggestion" that the
defendant is entitled to immunity. In England, a similar procedure is followed, only
the Foreign Office issues a certification to that effect instead of submitting a
"suggestion" (O'Connell, I International Law 130 [1965]; Note: Immunity from Suit of
Foreign Sovereign Instrumentalities and Obligations, 50 Yale Law Journal 1088
[1941]).
In the Philippines, the practice is for the foreign government or the international
organization to first secure an executive endorsement of its claim of sovereign or
diplomatic immunity. But how the Philippine Foreign Office conveys its endorsement
to the courts varies. In International Catholic Migration Commission v. Calleja, 190
SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the
Secretary of Labor and Employment, informing the latter that the respondentemployer could not be sued because it enjoyed diplomatic immunity. In World
Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs
sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the
U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General
to make, in behalf of the Commander of the United States Naval Base at Olongapo
City, Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied
the "suggestion" in a Manifestation and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal
Affairs moved with this Court to be allowed to intervene on the side of petitioner.
The Court allowed the said Department to file its memorandum in support of
petitioner's claim of sovereign immunity.
In some cases, the defense of sovereign immunity was submitted directly to the
local courts by the respondents through their private counsels (Raquiza v. Bradford,
75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus Command, 80 Phil. 262 [1948];
United States of America v. Guinto, 182 SCRA 644 [1990] and companion cases). In
cases where the foreign states bypass the Foreign Office, the courts can inquire into
the facts and make their own determination as to the nature of the acts and
transactions involved.
III
The burden of the petition is that respondent trial court has no jurisdiction over
petitioner, being a foreign state enjoying sovereign immunity. On the other hand,
private respondent insists that the doctrine of non-suability is not anymore absolute
and that petitioner has divested itself of such a cloak when, of its own free will, it
entered into a commercial transaction for the sale of a parcel of land located in the
Philippines.

A. The Holy See

Before we determine the issue of petitioner's non-suability, a brief look into its
status as a sovereign state is in order.
Before the annexation of the Papal States by Italy in 1870, the Pope was the
monarch and he, as the Holy See, was considered a subject of International Law.
With the loss of the Papal States and the limitation of the territory under the Holy
See to an area of 108.7 acres, the position of the Holy See in International Law
became controversial (Salonga and Yap, Public International Law 36-37 [1992]).
In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy
recognized the exclusive dominion and sovereign jurisdiction of the Holy See over
the Vatican City. It also recognized the right of the Holy See to receive foreign
diplomats, to send its own diplomats to foreign countries, and to enter into treaties
according to International Law (Garcia, Questions and Problems In International Law,
Public and Private 81 [1948]).
The Lateran Treaty established the statehood of the Vatican City "for the purpose of
assuring to the Holy See absolute and visible independence and of guaranteeing to
it indisputable sovereignty also in the field of international relations" (O'Connell, I
International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult to determine whether the
statehood is vested in the Holy See or in the Vatican City. Some writers even
suggested that the treaty created two international persons the Holy See and
Vatican City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established categories of states, and the
attribution to it of "sovereignty" must be made in a sense different from that in
which it is applied to other states (Fenwick, International Law 124-125 [1948]; Cruz,
International Law 37 [1991]). In a community of national states, the Vatican City
represents an entity organized not for political but for ecclesiastical purposes and
international objects. Despite its size and object, the Vatican City has an
independent government of its own, with the Pope, who is also head of the Roman
Catholic Church, as the Holy See or Head of State, in conformity with its traditions,
and the demands of its mission in the world. Indeed, the world-wide interests and
activities of the Vatican City are such as to make it in a sense an "international
state" (Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).
One authority wrote that the recognition of the Vatican City as a state has significant
implication that it is possible for any entity pursuing objects essentially different
from those pursued by states to be invested with international personality (Kunz,
The Status of the Holy See in International Law, 46 The American Journal of
International Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign relations and enter into
transactions as the Holy See and not in the name of the Vatican City, one can
conclude that in the Pope's own view, it is the Holy See that is the international
person.

The Republic of the Philippines has accorded the Holy See the status of a foreign
sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had
diplomatic representations with the Philippine government since 1957 (Rollo, p. 87).
This appears to be the universal practice in international relations.
B. Sovereign Immunity
As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the
generally accepted principles of International Law. Even without this affirmation,
such principles of International Law are deemed incorporated as part of the law of
the land as a condition and consequence of our admission in the society of nations
(United States of America v. Guinto, 182 SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity, each widely held and
firmly established. According to the classical or absolute theory, a sovereign cannot,
without its consent, be made a respondent in the courts of another sovereign.
According to the newer or restrictive theory, the immunity of the sovereign is
recognized only with regard to public acts or acts jure imperii of a state, but not with
regard
to
private
acts
or
acts jure
gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and DefensorSantiago, Public International Law 194 [1984]).
Some states passed legislation to serve as guidelines for the executive or judicial
determination when an act may be considered as jure gestionis. The United States
passed the Foreign Sovereign Immunities Act of 1976, which defines a commercial
activity as "either a regular course of commercial conduct or a particular commercial
transaction or act." Furthermore, the law declared that the "commercial character of
the activity shall be determined by reference to the nature of the course of conduct
or particular transaction or act, rather than by reference to its purpose." The
Canadian Parliament enacted in 1982 an Act to Provide For State Immunity in
Canadian Courts. The Act defines a "commercial activity" as any particular
transaction, act or conduct or any regular course of conduct that by reason of its
nature, is of a "commercial character."
The restrictive theory, which is intended to be a solution to the host of problems
involving the issue of sovereign immunity, has created problems of its own. Legal
treatises and the decisions in countries which follow the restrictive theory have
difficulty in characterizing whether a contract of a sovereign state with a private
party is an act jure gestionis or an act jure imperii.
The restrictive theory came about because of the entry of sovereign states into
purely commercial activities remotely connected with the discharge of governmental
functions. This is particularly true with respect to the Communist states which took
control of nationalized business activities and international trading.
This Court has considered the following transactions by a foreign state with private
parties as acts jure imperii: (1) the lease by a foreign government of apartment
buildings for use of its military officers (Syquia v. Lopez, 84 Phil. 312 [1949]; (2) the
conduct of public bidding for the repair of a wharf at a United States Naval Station
(United States of America v. Ruiz, supra.); and (3) the change of employment status
of base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]).

On the other hand, this Court has considered the following transactions by a foreign
state with private parties as acts jure gestionis: (1) the hiring of a cook in the
recreation center, consisting of three restaurants, a cafeteria, a bakery, a store, and
a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to
American servicemen and the general public (United States of America v. Rodrigo,
182 SCRA 644 [1990]); and (2) the bidding for the operation of barber shops in Clark
Air Base in Angeles City (United States of America v. Guinto, 182 SCRA 644 [1990]).
The operation of the restaurants and other facilities open to the general public is
undoubtedly for profit as a commercial and not a governmental activity. By entering
into the employment contract with the cook in the discharge of its proprietary
function, the United States government impliedly divested itself of its sovereign
immunity from suit.
In the absence of legislation defining what activities and transactions shall be
considered "commercial" and as constituting acts jure gestionis, we have to come
out with our own guidelines, tentative they may be.
Certainly, the mere entering into a contract by a foreign state with a private party
cannot be the ultimate test. Such an act can only be the start of the inquiry. The
logical question is whether the foreign state is engaged in the activity in the regular
course of business. If the foreign state is not engaged regularly in a business or
trade, the particular act or transaction must then be tested by its nature. If the act is
in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii,
especially when it is not undertaken for gain or profit.
As held in United States of America v. Guinto, (supra):
There is no question that the United States of America, like any
other state, will be deemed to have impliedly waived its nonsuability if it has entered into a contract in its proprietary or
private capacity. It is only when the contract involves its sovereign
or governmental capacity that no such waiver may be implied.
In the case at bench, if petitioner has bought and sold lands in the ordinary course
of a real estate business, surely the said transaction can be categorized as an
act jure gestionis. However, petitioner has denied that the acquisition and
subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said
property for the site of its mission or the Apostolic Nunciature in the Philippines.
Private respondent failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The
donation was made not for commercial purpose, but for the use of petitioner to
construct thereon the official place of residence of the Papal Nuncio. The right of a
foreign sovereign to acquire property, real or personal, in a receiving state,
necessary for the creation and maintenance of its diplomatic mission, is recognized
in the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was
concurred in by the Philippine Senate and entered into force in the Philippines on
November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the
civil and administrative jurisdiction of the receiving state over any real action

relating to private immovable property situated in the territory of the receiving state
which the envoy holds on behalf of the sending state for the purposes of the
mission. If this immunity is provided for a diplomatic envoy, with all the more reason
should immunity be recognized as regards the sovereign itself, which in this case is
the Holy See.
The decision to transfer the property and the subsequent disposal thereof are
likewise clothed with a governmental character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same because the
squatters living thereon made it almost impossible for petitioner to use it for the
purpose of the donation. The fact that squatters have occupied and are still
occupying the lot, and that they stubbornly refuse to leave the premises, has been
admitted by private respondent in its complaint (Rollo, pp. 26, 27).
The issue of petitioner's non-suability can be determined by the trial court without
going to trial in the light of the pleadings, particularly the admission of private
respondent. Besides, the privilege of sovereign immunity in this case was sufficiently
established by the Memorandum and Certification of the Department of Foreign
Affairs. As the department tasked with the conduct of the Philippines' foreign
relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the Department of
Foreign Affairs has formally intervened in this case and officially certified that the
Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of
the Philippines exempt from local jurisdiction and entitled to all the rights, privileges
and immunities of a diplomatic mission or embassy in this country (Rollo, pp. 156157). The determination of the executive arm of government that a state or
instrumentality is entitled to sovereign or diplomatic immunity is a political question
that is conclusive upon the courts (International Catholic Migration Commission v.
Calleja, 190 SCRA 130 [1990]). Where the plea of immunity is recognized and
affirmed by the executive branch, it is the duty of the courts to accept this claim so
as not to embarrass the executive arm of the government in conducting the
country's foreign relations (World Health Organization v. Aquino, 48 SCRA 242
[1972]). As in International Catholic Migration Commission and in World Health
Organization, we abide by the certification of the Department of Foreign Affairs.
Ordinarily, the procedure would be to remand the case and order the trial court to
conduct a hearing to establish the facts alleged by petitioner in its motion. In view of
said certification, such procedure would however be pointless and unduly circuitous
(Ortigas & Co. Ltd. Partnership v. Judge Tirso Velasco, G.R. No. 109645, July 25,
1994).
IV
Private respondent is not left without any legal remedy for the redress of its
grievances. Under both Public International Law and Transnational Law, a person
who feels aggrieved by the acts of a foreign sovereign can ask his own government
to espouse his cause through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign Office, to
espouse its claims against the Holy See. Its first task is to persuade the Philippine
government to take up with the Holy See the validity of its claims. Of course, the
Foreign Office shall first make a determination of the impact of its espousal on the

relations between the Philippine government and the Holy See (Young, Remedies of
Private Claimants Against Foreign States, Selected Readings on Protection by Law of
Private Foreign Investments 905, 919 [1964]). Once the Philippine government
decides to espouse the claim, the latter ceases to be a private cause.
According to the Permanent Court of International Justice, the forerunner of the
International Court of Justice:
By taking up the case of one of its subjects and by reporting to
diplomatic action or international judicial proceedings on his
behalf, a State is in reality asserting its own rights its right to
ensure, in the person of its subjects, respect for the rules of
international law (The Mavrommatis Palestine Concessions, 1
Hudson, World Court Reports 293, 302 [1924]).
WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case
No. 90-183 against petitioner is DISMISSED.

G.R. No. 206510

September 16, 2014

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

VILLARAMA, JR, J.:

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 permitgranting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In
December 2012, the US Embassy in the Philippines requested diplomatic clearance
for the said vessel "to enter and exit the territorial waters of the Philippines and to
arrive at the port of Subic Bay for the purpose of routine ship replenishment,
maintenance, and crew liberty." 4 On January 6, 2013, the ship left Sasebo, Japan for
Subic Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa,
Japan.1wphi1

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 TawiTawi, 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.
Specifically, petitioners cite the following violations committed by US respondents
under R.A. No. 10067: unauthorized entry (Section 19); non-payment of conservation
fees (Section 21 ); obstruction of law enforcement officer (Section 30); damages to
the reef (Section 20); and destroying and disturbing resources (Section 26[g]).
Furthermore, petitioners assail certain provisions of the Visiting Forces Agreement
(VFA) which they want this Court to nullify for being unconstitutional.
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.
d. Temporarily define and describe allowable activities of ecotourism,
diving, recreation, and limited commercial activities by fisherfolk and
indigenous communities near or around the TRNP but away from the
damaged site and an additional buffer zone;
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:
a. Order Respondents Secretary of Foreign Affairs, following the dispositive
portion of Nicolas v. Romulo, "to forthwith negotiate with the United States
representatives for the appropriate agreement on [environmental
guidelines and environmental accountability] under Philippine authorities as
provided in Art. V[] of the VFA ... "
b. Direct Respondents and appropriate agencies to commence
administrative, civil, and criminal proceedings against erring officers and
individuals to the full extent of the law, and to make such proceedings
public;
c. Declare that Philippine authorities may exercise primary and exclusive
criminal jurisdiction over erring U.S. personnel under the circumstances of
this case;
d. Require Respondents to pay just and reasonable compensation in the
settlement of all meritorious claims for damages caused to the Tubbataha
Reef on terms and conditions no less severe than those applicable to other
States, and damages for personal injury or death, if such had been the
case;

e. Direct Respondents to cooperate in providing for the attendance of

witnesses and in the collection and production of evidence, including
seizure and delivery of objects connected with the offenses related to the
grounding of the Guardian;

p. Allow for continuing discovery measures;

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;

4. Provide just and equitable environmental rehabilitation measures and

such
other
reliefs
as
are
just
and
equitable
under
the
premises.7 (Underscoring supplied.)

g. Restrain Respondents from proceeding with any purported restoration,

repair, salvage or post salvage plan or plans, including cleanup plans
covering the damaged area of the Tubbataha Reef absent a just settlement
approved by the Honorable Court;

Since only the Philippine respondents filed their comment 8 to the petition,
petitioners also filed a motion for early resolution and motion to proceed ex parte
against the US respondents.9

h. Require Respondents to engage in stakeholder and LOU consultations in

accordance with the Local Government Code and R.A. 10067;
i. Require Respondent US officials and their representatives to place a
deposit to the TRNP Trust Fund defined under Section 17 of RA 10067 as a
bona .fide gesture towards full reparations;
j. Direct Respondents to undertake measures to rehabilitate the areas
affected by the grounding of the Guardian in light of Respondents'
experience in the Port Royale grounding in 2009, among other similar
grounding incidents;

q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all

other respects; and

Respondents' Consolidated Comment

In their consolidated comment with opposition to the application for a TEPO and
ocular inspection and production orders, respondents assert that: ( 1) the grounds
relied upon for the issuance of a TEPO or writ of Kalikasan have become fait
accompli as the salvage operations on the USS Guardian were already completed;
(2) the petition is defective in form and substance; (3) the petition improperly raises
issues involving the VFA between the Republic of the Philippines and the United
States of America; and ( 4) the determination of the extent of responsibility of the
US Government as regards the damage to the Tubbataha Reefs rests exdusively with
the executive branch.
The Court's Ruling

k. Require Respondents to regularly publish on a quarterly basis and in the

name of transparency and accountability such environmental damage
assessment, valuation, and valuation methods, in all stages of negotiation;
l. Convene a multisectoral technical working group to provide scientific and
technical support to the TPAMB;
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;

As a preliminary matter, there is no dispute on the legal standing of petitioners to

file the present petition.
Locus standi is "a right of appearance in a court of justice on a given
question."10 Specifically, it is "a party's personal and substantial interest in a case
where he has sustained or will sustain direct injury as a result" of the act being
challenged, and "calls for more than just a generalized grievance." 11 However, the
rule on standing is a procedural matter which this Court has relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers and legislators when the public
interest so requires, such as when the subject matter of the controversy is of
transcendental importance, of overreaching significance to society, or of paramount
public interest.12
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.1wphi1 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:

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.

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.)

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]

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,17 is expressly provided in Article XVI of the
1987 Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto, 18 we discussed the principle of state
immunity from suit, as follows:
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

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.
In the case of Minucher v. Court of Appeals, 20 we further expounded on the immunity
of foreign states from the jurisdiction of local courts, as follows:
The precept that a State cannot be sued in the courts of a foreign state is a longstanding 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
In Shauf v. Court of Appeals,
principle, thus:

25

we discussed the limitations of the State immunity

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.
The UNCLOS is a product of international negotiation that seeks to balance State
sovereignty (mare clausum) and the principle of freedom of the high seas (mare
liberum).29 The freedom to use the world's marine waters is one of the oldest
customary principles of international law. 30 The UNCLOS gives to the coastal State

sovereign rights in varying degrees over the different zones of the sea which are: 1)
internal waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone,
and 5) the high seas. It also gives coastal States more or less jurisdiction over
foreign vessels depending on where the vessel is located. 31
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
Non-compliance by warships with the laws and regulations of the coastal State

30

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
Responsibility of the flag State for damage caused by a warship

31

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
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.

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

While the Reagan administration was instrumental in UNCLOS' negotiation and

drafting, the U.S. delegation ultimately voted against and refrained from signing it

Economically, accession to the Convention would support our national interests by

enhancing the ability of the US to assert its sovereign rights over the resources of
one of the largest continental shelves in the world. Further, it is the Law of the Sea
Convention that first established the concept of a maritime Exclusive Economic Zone
out to 200 nautical miles, and recognized the rights of coastal states to conserve
and manage the natural resources in this Zone. 35
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
Cooperation on a global or regional basis

197

States shall cooperate on a global basis and, as appropriate, on a regional basis,

directly or through competent international organizations, in formulating and
elaborating international rules, standards and recommended practices and
procedures consistent with this Convention, for the protection and preservation of
the marine environment, taking into account characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present controversy is beyond
dispute. Although the said treaty upholds the immunity of warships from the
jurisdiction of Coastal States while navigating the.latter's territorial sea, the flag
States shall be required to leave the territorial '::;ea immediately if they flout the
laws and regulations of the Coastal State, and they will be liable for damages caused
by their warships or any other government vessel operated for non-commercial
purposes under Article 31.
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.
We are not persuaded.
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 nonapplication 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.

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
To underscore that the US government is prepared to pay appropriate compensation
for the damage caused by the USS Guardian grounding, the US Embassy in the
Philippines has announced the formation of a US interdisciplinary scientific team
which will "initiate discussions with the Government of the Philippines to review
coral reef rehabilitation options in Tubbataha, based on assessments by Philippinebased marine scientists." The US team intends to "help assess damage and
remediation options, in coordination with the Tubbataha Management Office,
appropriate Philippine government entities, non-governmental organizations, and
scientific experts from Philippine universities."39
A rehabilitation or restoration program to be implemented at the cost of the violator
is also a major relief that may be obtained under a judgment rendered in a citizens'
suit under the Rules, viz:
RULES

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:

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.1wphi1

(a) To assist the parties in reaching a settlement;

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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

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.

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.

No pronouncement as to costs.
SO ORDERED.

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