MOST REV. PEDRO D. ARIGO vs.

conservation of the globally significant

SCOTT H. SWIFT economic, biological, sociocultural,
educational and scientific values of the
Before us is a petition for the issuance of a Tubbataha Reefs into perpetuity for the
Writ of Kalikasan with prayer for the issuance enjoyment of present and future generations."
of a Temporary Environmental Protection Under the "no-take" policy, entry into the
Order (TEPO) under Rule 7 of A.M. No. 09-6-8- waters of TRNP is strictly regulated and many
SC, otherwise known as the Rules of Procedure human activities are prohibited and penalized
for Environmental Cases (Rules), involving or fined, including fishing, gathering,
violations of environmental laws and destroying and disturbing the resources
regulations in relation to the grounding of the within the TRNP. The law likewise created the
US military ship USS Guardian over the Tubbataha Protected Area Management Board
Tubbataha Reefs. (TPAMB) which shall be the sole policy-making
and permit-granting body of the TRNP.
Factual Background
The USS Guardian is an Avenger-class mine
The name "Tubbataha" came from the Samal countermeasures ship of the US Navy. In
(seafaring people of southern Philippines) December 2012, the US Embassy in the
language which means "long reef exposed at Philippines requested diplomatic clearance for
low tide." Tubbataha is composed of two huge the said vessel "to enter and exit the territorial
coral atolls - the north atoll and the south atoll waters of the Philippines and to arrive at the
- and the Jessie Beazley Reef, a smaller coral port of Subic Bay for the purpose of routine
structure about 20 kilometers north of the ship replenishment, maintenance, and crew
atolls. The reefs of Tubbataha and Jessie liberty."4 On January 6, 2013, the ship left
Beazley are considered part of Cagayancillo, a Sasebo, Japan for Subic Bay, arriving on
remote island municipality of Palawan.1 January 13, 2013 after a brief stop for fuel in
Okinawa, Japan.1wphi1
In 1988, Tubbataha was declared a National
Marine Park by virtue of Proclamation No. 306 On January 15, 2013, the USS Guardian
issued by President Corazon C. Aquino on departed Subic Bay for its next port of call in
August 11, 1988. Located in the middle of Makassar, Indonesia. On January 17, 2013 at
Central Sulu Sea, 150 kilometers southeast of 2:20 a.m. while transiting the Sulu Sea, the
Puerto Princesa City, Tubbataha lies at the ship ran aground on the northwest side of
heart of the Coral Triangle, the global center South Shoal of the Tubbataha Reefs, about 80
of marine biodiversity. miles east-southeast of Palawan. No cine was
injured in the incident, and there have been no
reports of leaking fuel or oil.
In 1993, Tubbataha was inscribed by the
United Nations Educational Scientific and
Cultural Organization (UNESCO) as a World On January 20, 2013, U.S. 7th Fleet
Heritage Site. It was recognized as one of the Commander, Vice Admiral Scott Swift,
Philippines' oldest ecosystems, containing expressed regret for the incident in a press
excellent examples of pristine reefs and a high statement.5 Likewise, US Ambassador to the
diversity of marine life. The 97,030-hectare Philippines Harry K. Thomas, Jr., in a meeting
protected marine park is also an important at the Department of Foreign Affairs (DFA) on
habitat for internationally threatened and February 4, "reiterated his regrets over the
endangered marine species. UNESCO cited grounding incident and assured Foreign
Tubbataha's outstanding universal value as an Affairs Secretazy Albert F. del Rosario that the
important and significant natural habitat for United States will provide appropriate
in situ conservation of biological diversity; an compensation for damage to the reef caused
example representing significant on-going by the ship."6 By March 30, 2013, the US Navy-
ecological and biological processes; and an led salvage team had finished removing the
area of exceptional natural beauty and last piece of the grounded ship from the coral
aesthetic importance.2 reef.

On April 6, 2010, Congress passed Republic On April 1 7, 2013, the above-named

Act (R.A.) No. 10067,3 otherwise known as the petitioners on their behalf and in
"Tubbataha Reefs Natural Park (TRNP) Act of representation of their respective
2009" "to ensure the protection and sector/organization and others, including
minors or generations yet unborn, filed the Petitioners respectfully pray that the
present petition agairtst Scott H. Swift in his Honorable Court: 1. Immediately issue upon
capacity as Commander of the US 7th Fleet, the filing of this petition a Temporary
Mark A. Rice in his capacity as Commanding Environmental Protection Order (TEPO) and/or
Officer of the USS Guardian and Lt. Gen. Terry a Writ of Kalikasan, which shall, in particular,
G. Robling, US Marine Corps Forces, Pacific
and Balikatan 2013 Exercises Co-Director ("US a. Order Respondents and any person
respondents"); President Benigno S. Aquino III acting on their behalf, to cease and
in his capacity as Commander-in-Chief of the desist all operations over the Guardian
Armed Forces of the Philippines (AFP), DF A grounding incident;
Secretary Albert F. Del Rosario, Executive
Secretary Paquito Ochoa, Jr., Secretary Voltaire b. Initially demarcating the metes and
T. Gazmin (Department of National Defense), bounds of the damaged area as well as
Secretary Jesus P. Paje (Department of an additional buffer zone;
Environment and Natural Resources), Vice-
Admiral Jose Luis M. Alano (Philippine Navy
c. Order Respondents to stop all port
Flag Officer in Command, AFP), Admiral
calls and war games under 'Balikatan'
Rodolfo D. Isorena (Philippine Coast Guard
because of the absence of clear
Commandant), Commodore Enrico Efren
guidelines, duties, and liability
Evangelista (Philippine Coast Guard-Palawan),
schemes for breaches of those duties,
and Major General Virgilio 0. Domingo (AFP
and require Respondents to assume
Commandant), collectively the "Philippine
respondents." responsibility for prior and future
environmental damage in general, and
environmental damage under the
The Petition Visiting Forces Agreement in
particular.
Petitioners claim that the grounding, salvaging
and post-salvaging operations of the USS d. Temporarily define and describe
Guardian cause and continue to cause allowable activities of ecotourism,
environmental damage of such magnitude as diving, recreation, and limited
to affect the provinces of Palawan, Antique, commercial activities by fisherfolk and
Aklan, Guimaras, Iloilo, Negros Occidental, indigenous communities near or
Negros Oriental, Zamboanga del Norte, around the TRNP but away from the
Basilan, Sulu, and Tawi-Tawi, which events damaged site and an additional buffer
violate their constitutional rights to a zone;
balanced and healthful ecology. They also
seek a directive from this Court for the
2. After summary hearing, issue a
institution of civil, administrative and
Resolution extending the TEPO until
criminal suits for acts committed in violation
further orders of the Court;
of environmental laws and regulations in
connection with the grounding incident.
3. After due proceedings, render a
Decision which shall include, without
Specifically, petitioners cite the following
limitation:
violations committed by US respondents
under R.A. No. 10067: unauthorized entry
(Section 19); non-payment of conservation a. Order Respondents Secretary of
fees (Section 21 ); obstruction of law Foreign Affairs, following the
enforcement officer (Section 30); damages to dispositive portion of Nicolas v.
the reef (Section 20); and destroying and Romulo, "to forthwith negotiate with
disturbing resources (Section 26[g]). the United States representatives for
Furthermore, petitioners assail certain the appropriate agreement on
provisions of the Visiting Forces Agreement [environmental guidelines and
(VFA) which they want this Court to nullify for environmental accountability] under
being unconstitutional. Philippine authorities as provided in
Art. V[] of the VFA ... "
The numerous reliefs sought in this case are
set forth in the final prayer of the petition, to b. Direct Respondents and appropriate
wit: WHEREFORE, in view of the foregoing, agencies to commence administrative,
civil, and criminal proceedings against
erring officers and individuals to the grounding in 2009, among other
full extent of the law, and to make such similar grounding incidents;
proceedings public;
k. Require Respondents to regularly
c. Declare that Philippine authorities publish on a quarterly basis and in the
may exercise primary and exclusive name of transparency and
criminal jurisdiction over erring U.S. accountability such environmental
personnel under the circumstances of damage assessment, valuation, and
this case; valuation methods, in all stages of
negotiation;
d. Require Respondents to pay just and
reasonable compensation in the l. Convene a multisectoral technical
settlement of all meritorious claims for working group to provide scientific and
damages caused to the Tubbataha Reef technical support to the TPAMB;
on terms and conditions no less severe
than those applicable to other States, m. Order the Department of Foreign
and damages for personal injury or Affairs, Department of National
death, if such had been the case; Defense, and the Department of
Environment and Natural Resources to
e. Direct Respondents to cooperate in review the Visiting Forces Agreement
providing for the attendance of and the Mutual Defense Treaty to
witnesses and in the collection and consider whether their provisions
production of evidence, including allow for the exercise of erga omnes
seizure and delivery of objects rights to a balanced and healthful
connected with the offenses related to ecology and for damages which follow
the grounding of the Guardian; from any violation of those rights;

f. Require the authorities of the n. Narrowly tailor the provisions of the

Philippines and the United States to Visiting Forces Agreement for purposes
notify each other of the disposition of of protecting the damaged areas of
all cases, wherever heard, related to the TRNP;
grounding of the Guardian;
o. Declare the grant of immunity found
g. Restrain Respondents from in Article V ("Criminal Jurisdiction")
proceeding with any purported and Article VI of the Visiting Forces
restoration, repair, salvage or post Agreement unconstitutional for
salvage plan or plans, including violating equal protection and/or for
cleanup plans covering the damaged violating the preemptory norm of
area of the Tubbataha Reef absent a nondiscrimination incorporated as part
just settlement approved by the of the law of the land under Section 2,
Honorable Court; Article II, of the Philippine
Constitution;
h. Require Respondents to engage in
stakeholder and LOU consultations in p. Allow for continuing discovery
accordance with the Local Government measures;
Code and R.A. 10067;
q. Supervise marine wildlife
i. Require Respondent US officials and rehabilitation in the Tubbataha Reefs in
their representatives to place a deposit all other respects; and
to the TRNP Trust Fund defined under
Section 17 of RA 10067 as a bona .fide 4. Provide just and equitable
gesture towards full reparations; environmental rehabilitation measures
and such other reliefs as are just and
j. Direct Respondents to undertake equitable under the
measures to rehabilitate the areas premises.7 (Underscoring supplied.)
affected by the grounding of the
Guardian in light of Respondents'
experience in the Port Royale
Since only the Philippine respondents filed the inception of mankind and it is an issue of
their comment8 to the petition, petitioners transcendental importance with
also filed a motion for early resolution and intergenerational implications.1wphi1 Such
motion to proceed ex parte against the US right carries with it the correlative duty to
respondents.9 refrain from impairing the environment.14

Respondents' Consolidated Comment On the novel element in the class suit filed by
the petitioners minors in Oposa, this Court
In their consolidated comment with ruled that not only do ordinary citizens have
opposition to the application for a TEPO and legal standing to sue for the enforcement of
ocular inspection and production orders, environmental rights, they can do so in
respondents assert that: ( 1) the grounds relied representation of their own and future
upon for the issuance of a TEPO or writ of generations. Thus:
Kalikasan have become fait accompli as the
salvage operations on the USS Guardian were Petitioners minors assert that they represent
already completed; (2) the petition is defective their generation as well as generations yet
in form and substance; (3) the petition unborn. We find no difficulty in ruling that
improperly raises issues involving the VFA they can, for themselves, for others of their
between the Republic of the Philippines and generation and for the succeeding
the United States of America; and ( 4) the generations, file a class suit. Their personality
determination of the extent of responsibility to sue in behalf of the succeeding generations
of the US Government as regards the damage can only be based on the concept of
to the Tubbataha Reefs rests exdusively with intergenerational responsibility insofar as the
the executive branch. right to a balanced and healthful ecology is
concerned. Such a right, as hereinafter
The Court's Ruling expounded, considers the "rhythm and
harmony of nature." Nature means the created
As a preliminary matter, there is no dispute on world in its entirety. Such rhythm and
the legal standing of petitioners to file the harmony indispensably include, inter alia, the
present petition. judicious disposition, utilization,
management, renewal and conservation of the
country's forest, mineral, land, waters,
Locus standi is "a right of appearance in a
fisheries, wildlife, off-shore areas and other
court of justice on a given
natural resources to the end that their
question."10 Specifically, it is "a party's
exploration, development and utilization be
personal and substantial interest in a case
equitably accessible to the present a:: well as
where he has sustained or will sustain direct
future generations. Needless to say, every
injury as a result" of the act being challenged,
generation has a responsibility to the next to
and "calls for more than just a generalized
preserve that rhythm and harmony for the full
grievance."11 However, the rule on standing is
1:njoyment of a balanced and healthful
a procedural matter which this Court has
ecology. Put a little differently, the minors'
relaxed for non-traditional plaintiffs like
assertion of their right to a sound
ordinary citizens, taxpayers and legislators
environment constitutes, at the same time, the
when the public interest so requires, such as
performance of their obligation to ensure the
when the subject matter of the controversy is
protection of that right for the generations to
of transcendental importance, of overreaching
come.15 (Emphasis supplied.)
significance to society, or of paramount public
interest.12
The liberalization of standing first enunciated
in Oposa, insofar as it refers to minors and
In the landmark case of Oposa v. Factoran,
generations yet unborn, is now enshrined in
Jr.,13 we recognized the "public right" of
the Rules which allows the filing of a citizen
citizens to "a balanced and healthful ecology
suit in environmental cases. The provision on
which, for the first time in our constitutional
citizen suits in the Rules "collapses the
history, is solemnly incorporated in the
traditional rule on personal and direct
fundamental law." We declared that the right
interest, on the principle that humans are
to a balanced and healthful ecology need not
stewards of nature."16
be written in the Constitution for it is
assumed, like other civil and polittcal rights
guaranteed in the Bill of Rights, to exist from
Having settled the issue of locus standi, we While the doctrine appears to prohibit only
shall address the more fundamental question suits against the state without its consent, it is
of whether this Court has jurisdiction over the also applicable to complaints filed against
US respondents who did not submit any officials of the state for acts allegedly
pleading or manifestation in this case. performed by them in the discharge of their
duties. The rule is that if the judgment against
The immunity of the State from suit, known such officials will require the state itself to
also as the doctrine of sovereign immunity or perform an affirmative act to satisfy the
non-suability of the State,17is expressly same,. such as the appropriation of the
provided in Article XVI of the 1987 amount needed to pay the damages awarded
Constitution which states: against them, the suit must be regarded as
against the state itself although it has not been
Section 3. The State may not be sued without formally impleaded. [Garcia v. Chief of Staff,
its consent. 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
In United States of America v. Judge consent.19 (Emphasis supplied.)
Guinto,18 we discussed the principle of state
immunity from suit, as follows:
Under the American Constitution, the doctrine
is expressed in the Eleventh Amendment
The rule that a state may not be sued without which reads:
its consent, now expressed in Article XVI,
Section 3, of the 1987 Constitution, is one of
the generally accepted principles of The Judicial power of the United States shall
international law that we have adopted as part not be construed to extend to any suit in law
of the law of our land under Article II, Section or equity, commenced or prosecuted against
2. x x x. one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign
State.
Even without such affirmation, we would still
be bound by the generally accepted principles
of international law under the doctrine of In the case of Minucher v. Court of
incorporation. Under this doctrine, as Appeals,20 we further expounded on the
accepted by the majority of states, such immunity of foreign states from the
principles are deemed incorporated in the law jurisdiction of local courts, as follows:
of every civilized state as a condition and
consequence of its membership in the society The precept that a State cannot be sued in the
of nations. Upon its admission to such society, courts of a foreign state is a long-standing rule
the state is automatically obligated to comply of customary international law then closely
with these principles in its relations with other identified with the personal immunity of a
states. foreign sovereign from suit and, with the
emergence of democratic states, made to
As applied to the local state, the doctrine of attach not just to the person of the head of
state immunity is based on the justification state, or his representative, but also distinctly
given by Justice Holmes that ''there can be no to the state itself in its sovereign capacity. If
legal right against the authority which makes the acts giving rise to a suit arc those of a
the law on which the right depends." foreign government done by its foreign agent,
[Kawanakoa v. Polybank, 205 U.S. 349] There although not necessarily a diplomatic
are other practical reasons for the personage, but acting in his official capacity,
enforcement of the doctrine. In the case of the the complaint could be barred by the
foreign state sought to be impleaded in the immunity of the foreign sovereign from suit
local jurisdiction, the added inhibition is without its consent. Suing a representative of
expressed in the maxim par in parem, non a state is believed to be, in effect, suing the
habet imperium. All states are sovereign state itself. The proscription is not accorded
equals and cannot assert jurisdiction over one for the benefit of an individual but for the
another. A contrary disposition would, in the State, in whose service he is, under the maxim
language of a celebrated case, "unduly vex the -par in parem, non habet imperium -that all
peace of nations." [De Haber v. Queen of states are soverr~ign equals and cannot assert
Portugal, 17 Q. B. 171] jurisdiction over one another. The
implication, in broad terms, is that if the
judgment against an official would rec 1uire In Shauf v. Court of Appeals,25 we discussed
the state itself to perform an affirmative act to the limitations of the State immunity
satisfy the award, such as the appropriation of principle, thus:
the amount needed to pay the damages
decreed against him, the suit must be It is a different matter where the public official
regarded as being against the state itself, is made to account in his capacity as such for
although it has not been formally acts contrary to law and injurious to the rights
impleaded.21 (Emphasis supplied.) of plaintiff. As was clearly set forth by JustiGe
Zaldivar in Director of the Bureau of
In the same case we also mentioned that in the Telecommunications, et al. vs. Aligaen, etc., et
case of diplomatic immunity, the privilege is al. : "Inasmuch as the State authorizes only
not an immunity from the observance of the legal acts by its officers, unauthorized acts of
law of the territorial sovereign or from government officials or officers are not acts of
ensuing legal liability; it is, rather, an the State, and an action against the officials or
immunity from the exercise of territorial officers by one whose rights have been
jurisdiction.22 invaded or violated by such acts, for the
protection of his rights, is not a suit against
In United States of America v. Judge the State within the rule of immunity of the
Guinto,23 one of the consolidated cases therein State from suit. In the same tenor, it has been
involved a Filipino employed at Clark Air Base said that an action at law or suit in equity
who was arrested following a buy-bust against a State officer or the director of a State
operation conducted by two officers of the US department on the ground that, while claiming
Air Force, and was eventually dismissed from to act for the State, he violates or invades the
his employment when he was charged in court personal and property rights of the plaintiff,
for violation of R.A. No. 6425. In a complaint under an unconstitutional act or under an
for damages filed by the said employee assumption of authority which he does not
against the military officers, the latter moved have, is not a suit against the State within the
to dismiss the case on the ground that the suit constitutional provision that the State may not
was against the US Government which had not be sued without its consent." The rationale for
given its consent. The RTC denied the motion this ruling is that the doctrine of state
but on a petition for certiorari and prohibition immunity cannot be used as an instrument for
filed before this Court, we reversed the RTC perpetrating an injustice.
and dismissed the complaint. We held that
petitioners US military officers were acting in xxxx
the exercise of their official functions when
they conducted the buy-bust operation against The aforecited authorities are clear on the
the complainant and thereafter testified matter. They state that the doctrine of
against him at his trial. It follows that for immunity from suit will not apply and may not
discharging their duties as agents of the be invoked where the public official is being
United States, they cannot be directly sued in his private and personal capacity as an
impleaded for acts imputable to their ordinary citizen. The cloak of protection
principal, which has not given its consent to afforded the officers and agents of the
be sued. government is removed the moment they are
sued in their individual capacity. This
This traditional rule of State immunity which situation usually arises where the public
exempts a State from being sued in the courts official acts without authority or in excess of
of another State without the former's consent the powers vested in him. It is a well-settled
or waiver has evolved into a restrictive principle of law that a public official may be
doctrine which distinguishes sovereign and liable in his personal private capacity for
governmental acts (Jure imperil") from whatever damage he may have caused by his
private, commercial and proprietary acts (Jure act done with malice and in bad faith, or
gestionis). Under the restrictive rule of State beyond the scope of his authority or
immunity, State immunity extends only to acts jurisdiction.26 (Emphasis supplied.) In this
Jure imperii. The restrictive application of case, the US respondents were sued in their
State immunity is proper only when the official capacity as commanding officers of
proceedings arise out of commercial the US Navy who had control and supervision
transactions of the foreign sovereign, its over the USS Guardian and its crew. The
commercial activities or economic affairs.24 alleged act or omission resulting in the
unfortunate grounding of the USS Guardian on
the TRNP was committed while they we:re liberum).29 The freedom to use the world's
performing official military duties. marine waters is one of the oldest customary
Considering that the satisfaction of a principles of international law.30 The UNCLOS
judgment against said officials will require gives to the coastal State sovereign rights in
remedial actions and appropriation of funds varying degrees over the different zones of
by the US government, the suit is deemed to the sea which are: 1) internal waters, 2)
be one against the US itself. The principle of territorial sea, 3) contiguous zone, 4) exclusive
State immunity therefore bars the exercise of economic zone, and 5) the high seas. It also
jurisdiction by this Court over the persons of gives coastal States more or less jurisdiction
respondents Swift, Rice and Robling. over foreign vessels depending on where the
vessel is located.31
During the deliberations, Senior Associate
Justice Antonio T. Carpio took the position Insofar as the internal waters and territorial
that the conduct of the US in this case, when sea is concerned, the Coastal State exercises
its warship entered a restricted area in sovereignty, subject to the UNCLOS and other
violation of R.A. No. 10067 and caused rules of international law. Such sovereignty
damage to the TRNP reef system, brings the extends to the air space over the territorial sea
matter within the ambit of Article 31 of the as well as to its bed and subsoil.32
United Nations Convention on the Law of the
Sea (UNCLOS). He explained that while In the case of warships,33 as pointed out by
historically, warships enjoy sovereign Justice Carpio, they continue to enjoy
immunity from suit as extensions of their flag sovereign immunity subject to the following
State, Art. 31 of the UNCLOS creates an exceptions:
exception to this rule in cases where they fail
to comply with the rules and regulations of the Article 30
coastal State regarding passage through the Non-compliance by warships with the laws
latter's internal waters and the territorial sea. and regulations of the coastal State

According to Justice Carpio, although the US If any warship does not comply with the laws
to date has not ratified the UNCLOS, as a and regulations of the coastal State concerning
matter of long-standing policy the US passage through the territorial sea and
considers itself bound by customary disregards any request for compliance
international rules on the "traditional uses of therewith which is made to it, the coastal State
the oceans" as codified in UNCLOS, as can be may require it to leave the territorial sea
gleaned from previous declarations by former immediately.
Presidents Reagan and Clinton, and the US
judiciary in the case of United States v. Royal
Caribbean Cruise Lines, Ltd.27 Article 31
Responsibility of the flag State for damage
caused by a warship
The international law of the sea is generally
defined as "a body of treaty rules arid
or other government ship operated for non-
customary norms governing the uses of the
commercial purposes
sea, the exploitation of its resources, and the
exercise of jurisdiction over maritime
regimes. It is a branch of public international The flag State shall bear international
law, regulating the relations of states with responsibility for any loss or damage to the
respect to the uses of the oceans."28 The coastal State resulting from the non-
UNCLOS is a multilateral treaty which was compliance by a warship or other government
opened for signature on December 10, 1982 at ship operated for non-commercial purposes
Montego Bay, Jamaica. It was ratified by the with the laws and regulations of the coastal
Philippines in 1984 but came into force on State concerning passage through the
November 16, 1994 upon the submission of territorial sea or with the provisions of this
the 60th ratification. Convention or other rules of international law.

The UNCLOS is a product of international Article 32

negotiation that seeks to balance State Immunities of warships and other government
sovereignty (mare clausum) and the principle ships operated for non-commercial purposes
of freedom of the high seas (mare
With such exceptions as are contained in their coasts, as reflected in the convention
subsection A and in articles 30 and 31, nothing [UNCLOS], so long as the rights and freedom
in this Convention affects the immunities of of the United States and others under
warships and other government ships international law are recognized by such
operated for non-commercial purposes. coastal states", and President Clinton's
(Emphasis supplied.) A foreign warship's reiteration of the US policy "to act in a manner
unauthorized entry into our internal waters consistent with its [UNCLOS] provisions
with resulting damage to marine resources is relating to traditional uses of the oceans and
one situation in which the above provisions to encourage other countries to do likewise."
may apply. But what if the offending warship Since Article 31 relates to the "traditional uses
is a non-party to the UNCLOS, as in this case, of the oceans," and "if under its policy, the US
the US? 'recognize[s] the rights of the other states in
the waters off their coasts,"' Justice Carpio
An overwhelming majority - over 80% -- of postulates that "there is more reason to expect
nation states are now members of UNCLOS, it to recognize the rights of other states in
but despite this the US, the world's leading their internal waters, such as the Sulu Sea in
maritime power, has not ratified it. this case."

While the Reagan administration was As to the non-ratification by the US, Justice
instrumental in UNCLOS' negotiation and Carpio emphasizes that "the US' refusal to join
drafting, the U.S. delegation ultimately voted the UN CLOS was centered on its disagreement
against and refrained from signing it due to with UN CLOS' regime of deep seabed mining
concerns over deep seabed mining technology (Part XI) which considers the oceans and deep
transfer provisions contained in Part XI. In a seabed commonly owned by mankind,"
remarkable, multilateral effort to induce U.S. pointing out that such "has nothing to do with
membership, the bulk of UNCLOS member its [the US'] acceptance of customary
states cooperated over the succeeding decade international rules on navigation."
to revise the objection.able provisions. The
revisions satisfied the Clinton administration, It may be mentioned that even the US Navy
which signed the revised Part XI implementing Judge Advocate General's Corps publicly
agreement in 1994. In the fall of 1994, endorses the ratification of the UNCLOS, as
President Clinton transmitted UNCLOS and the shown by the following statement posted on
Part XI implementing agreement to the Senate its official website:
requesting its advice and consent. Despite
consistent support from President Clinton, The Convention is in the national interest of
each of his successors, and an ideologically the United States because it establishes stable
diverse array of stakeholders, the Senate has maritime zones, including a maximum outer
since withheld the consent required for the limit for territorial seas; codifies innocent
President to internationally bind the United passage, transit passage, and archipelagic sea
States to UNCLOS. lanes passage rights; works against
"jurisdictiomtl creep" by preventing coastal
While UNCLOS cleared the Senate Foreign nations from expanding their own maritime
Relations Committee (SFRC) during the 108th zones; and reaffirms sovereign immunity of
and 110th Congresses, its progress continues warships, auxiliaries anJ government aircraft.
to be hamstrung by significant pockets of
political ambivalence over U.S. participation in xxxx
international institutions. Most recently, 111
th Congress SFRC Chairman Senator John Economically, accession to the Convention
Kerry included "voting out" UNCLOS for full would support our national interests by
Senate consideration among his highest enhancing the ability of the US to assert its
priorities. This did not occur, and no Senate sovereign rights over the resources of one of
action has been taken on UNCLOS by the 112th the largest continental shelves in the world.
Congress.34 Further, it is the Law of the Sea Convention
that first established the concept of a
Justice Carpio invited our attention to the maritime Exclusive Economic Zone out to 200
policy statement given by President Reagan on nautical miles, and recognized the rights of
March 10, 1983 that the US will "recognize the coastal states to conserve and manage the
rights of the other , states in the waters off natural resources in this Zone.35
We fully concur with Justice Carpio's view that respondents are liable for negligence, trespass
non-membership in the UNCLOS does not and nuisance.
mean that the US will disregard the rights of
the Philippines as a Coastal State over its We are not persuaded.
internal waters and territorial sea. We thus
expect the US to bear "international The VFA is an agreement which defines the
responsibility" under Art. 31 in connection treatment of United States troops and
with the USS Guardian grounding which personnel visiting the Philippines to promote
adversely affected the Tubbataha reefs. "common security interests" between the US
Indeed, it is difficult to imagine that our long- and the Philippines in the region. It provides
time ally and trading partner, which has been for the guidelines to govern such visits of
actively supporting the country's efforts to military personnel, and further defines the
preserve our vital marine resources, would rights of the United States and the Philippine
shirk from its obligation to compensate the government in the matter of criminal
damage caused by its warship while transiting jurisdiction, movement of vessel and aircraft,
our internal waters. Much less can we importation and exportation of equipment,
comprehend a Government exercising materials and supplies.36 The invocation of US
leadership in international affairs, unwilling federal tort laws and even common law is thus
to comply with the UNCLOS directive for all improper considering that it is the VF A which
nations to cooperate in the global task to governs disputes involving US military ships
protect and preserve the marine environment and crew navigating Philippine waters in
as provided in Article 197, viz: pursuance of the objectives of the agreement.

Article 197 As it is, the waiver of State immunity under the

Cooperation on a global or regional basis VF A pertains only to criminal jurisdiction and
not to special civil actions such as the present
States shall cooperate on a global basis and, as petition for issuance of a writ of Kalikasan. In
appropriate, on a regional basis, directly or fact, it can be inferred from Section 17, Rule 7
through competent international of the Rules that a criminal case against a
organizations, in formulating and elaborating person charged with a violation of an
international rules, standards and environmental law is to be filed separately:
recommended practices and procedures
consistent with this Convention, for the SEC. 17. Institution of separate actions.-The
protection and preservation of the marine filing of a petition for the issuance of the writ
environment, taking into account of kalikasan shall not preclude the filing of
characteristic regional features. separate civil, criminal or administrative
actions.
In fine, the relevance of UNCLOS provisions to
the present controversy is beyond dispute. In any case, it is our considered view that a
Although the said treaty upholds the ruling on the application or non-application of
immunity of warships from the jurisdiction of criminal jurisdiction provisions of the VF A to
Coastal States while navigating the.latter's US personnel who may be found responsible
territorial sea, the flag States shall be required for the grounding of the USS Guardian, would
to leave the territorial '::;ea immediately if be premature and beyond the province of a
they flout the laws and regulations of the petition for a writ of Kalikasan. We also find it
Coastal State, and they will be liable for unnecessary at this point to determine
damages caused by their warships or any whether such waiver of State immunity is
other government vessel operated for non- indeed absolute. In the same vein, we cannot
commercial purposes under Article 31. grant damages which have resulted from the
violation of environmental laws. The Rules
Petitioners argue that there is a waiver of allows the recovery of damages, including the
immunity from suit found in the VFA. collection of administrative fines under R.A.
Likewise, they invoke federal statutes in the No. 10067, in a separate civil suit or that
US under which agencies of the US have deemed instituted with the criminal action
statutorily waived their immunity to any charging the same violation of an
action. Even under the common law tort environmental law.37
claims, petitioners asseverate that the US
Section 15, Rule 7 enumerates the reliefs reef. However, we are mindful of the fact that
which may be granted in a petition for the US and Philippine governments both
issuance of a writ of Kalikasan, to wit: expressed readiness to negotiate and discuss
the matter of compensation for the damage
SEC. 15. Judgment.-Within sixty (60) days from caused by the USS Guardian. The US Embassy
the time the petition is submitted for decision, has also declared it is closely coordinating
the court shall render judgment granting or with local scientists and experts in assessing
denying the privilege of the writ of kalikasan. the extent of the damage and appropriate
methods of rehabilitation.
The reliefs that may be granted under the writ
are the following: Exploring avenues for settlement of
environmental cases is not proscribed by the
(a) Directing respondent to Rules. As can be gleaned from the following
permanently cease and desist from provisions, mediation and settlement are
committing acts or neglecting the available for the consideration of the parties,
performance of a duty in violation of and which dispute resolution methods are
environmental laws resulting in encouraged by the court, to wit:
environmental destruction or damage;
RULE3
(b) Directing the respondent public
official, govemment agency, private xxxx
person or entity to protect, preserve,
rehabilitate or restore the SEC. 3. Referral to mediation.-At the start of
environment; the pre-trial conference, the court shall
inquire from the parties if they have settled
(c) Directing the respondent public the dispute; otherwise, the court shall
official, government agency, private immediately refer the parties or their counsel,
person or entity to monitor strict if authorized by their clients, to the Philippine
compliance with the decision and Mediation Center (PMC) unit for purposes of
orders of the court; mediation. If not available, the court shall
refer the case to the clerk of court or legal
(d) Directing the respondent public researcher for mediation.
official, government agency, or private
person or entity to make periodic Mediation must be conducted within a non-
reports on the execution of the final extendible period of thirty (30) days from
judgment; and receipt of notice of referral to mediation.

(e) Such other reliefs which relate to the The mediation report must be submitted
right of the people to a balanced and within ten (10) days from the expiration of the
healthful ecology or to the protection, 30-day period.
preservation, rehabilitation or
restoration of the environment, except SEC. 4. Preliminary conference.-If mediation
the award of damages to individual fails, the court will schedule the continuance
petitioners. (Emphasis supplied.) of the pre-trial. Before the scheduled date of
continuance, the court may refer the case to
We agree with respondents (Philippine the branch clerk of court for a preliminary
officials) in asserting that this petition has conference for the following purposes:
become moot in the sense that the salvage
operation sought to be enjoined or restrained (a) To assist the parties in reaching a
had already been accomplished when settlement;
petitioners sought recourse from this Court.
But insofar as the directives to Philippine xxxx
respondents to protect and rehabilitate the
coral reef stn icture and marine habitat SEC. 5. Pre-trial conference; consent decree.-
adversely affected by the grounding incident The judge shall put the parties and their
are concerned, petitioners are entitled to these counsels under oath, and they shall remain
reliefs notwithstanding the completion of the under oath in all pre-trial conferences.
removal of the USS Guardian from the coral
The judge shall exert best efforts to persuade the environment and the payment of
the parties to arrive at a settlement of the attorney's fees, costs of suit and other
dispute. The judge may issue a consent decree litigation expenses. It may also require the
approving the agreement between the parties violator to submit a program of rehabilitation
in accordance with law, morals, public order or restoration of the environment, the costs of
and public policy to protect the right of the which shall be borne by the violator, or to
people to a balanced and healthful ecology. contribute to a special trust fund for that
purpose subject to the control of the
xxxx court.1wphi1

SEC. 10. Efforts to settle.- The court shall In the light of the foregoing, the Court defers
endeavor to make the parties to agree to to the Executive Branch on the matter of
compromise or settle in accordance with law compensation and rehabilitation measures
at any stage of the proceedings before through diplomatic channels. Resolution of
rendition of judgment. (Underscoring these issues impinges on our relations with
supplied.) another State in the context of common
security interests under the VFA. It is settled
The Court takes judicial notice of a similar that "[t]he conduct of the foreign relations of
incident in 2009 when a guided-missile our government is committed by the
cruiser, the USS Port Royal, ran aground about Constitution to the executive and legislative-
half a mile off the Honolulu Airport Reef "the political" --departments of the
Runway and remained stuck for four days. government, and the propriety of what may be
After spending $6.5 million restoring the coral done in the exercise of this political power is
reef, the US government was reported to have not subject to judicial inquiry or decision."40
paid the State of Hawaii $8.5 million in
settlement over coral reef damage caused by On the other hand, we cannot grant the
the grounding.38 additional reliefs prayed for in the petition to
order a review of the VFA and to nullify certain
To underscore that the US government is immunity provisions thereof.
prepared to pay appropriate compensation for
the damage caused by the USS Guardian As held in BAYAN (Bagong Alyansang
grounding, the US Embassy in the Philippines Makabayan) v. Exec. Sec. Zamora,41 the VFA
has announced the formation of a US was duly concurred in by the Philippine Senate
interdisciplinary scientific team which will and has been recognized as a treaty by the
"initiate discussions with the Government of United States as attested and certified by the
the Philippines to review coral reef duly authorized representative of the United
rehabilitation options in Tubbataha, based on States government. The VF A being a valid and
assessments by Philippine-based marine binding agreement, the parties are required as
scientists." The US team intends to "help a matter of international law to abide by its
assess damage and remediation options, in terms and provisions.42 The present petition
coordination with the Tubbataha Management under the Rules is not the proper remedy to
Office, appropriate Philippine government assail the constitutionality of its provisions.
entities, non-governmental organizations, and WHEREFORE, the petition for the issuance of
scientific experts from Philippine the privilege of the Writ of Kalikasan is hereby
universities."39 DENIED.

A rehabilitation or restoration program to be No pronouncement as to costs.

implemented at the cost of the violator is also
a major relief that may be obtained under a SO ORDERED.
judgment rendered in a citizens' suit under
the Rules, viz:

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