EN BANC DECISION

G.R. No. 206510, September 16, 2014 VILLARAMA, JR., J.:

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto

Princesa D.D.; MOST REV. DEOGRACIAS S. INIGUEZ,
JR., Bishop-Emeritus ofCaloocan, FRANCES Q. QUIMPO, Before us is a petition for the issuance of a Writ of Kalikasan
CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA with prayer for the issuance of a Temporary Environmental
CAROLINA P. ARAULLO, RENATO M. REYES, JR., Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC,
BagongAlyansang Makabayan, HON. NERI JAVIER otherwise known as the Rules of Procedure for
COLMENARES, BayanMuna Party-list, ROLAND G. Environmental Cases (Rules), involving violations of
SIMBULAN, PH.D., Junk VFAMovement, TERESITA R. environmental laws and regulations in relation to the
PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan grounding of the US military ship USS Guardian over the
Party-list, PETER SJ. GONZALES, Pamalakaya, Tubbataha Reefs.
GIOVANNI A. TAPANG, PH. D., Agham, ELMER C.
LABOG, Kilusang Mayo Uno, JOAN MAY E. SALVADOR, Factual Background
Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A.
CONCEPCION, MARY JOAN A. GUAN, NESTOR T. The name “Tubbataha” came from the Samal (seafaring
BAGUINON, PH.D., A. EDSEL F. TUPAZ, Petitioners, v. people of southern Philippines) language which means “long
SCOTT H. SWIFT in his capacity as Commander of the reef exposed at low tide.” Tubbataha is composed of two
U.S. 7th Fleet, MARK A. RICE in his capacity as huge coral atolls – the north atoll and the south atoll – and
Commanding Officer of the USS Guardian, PRESIDENT the Jessie Beazley Reef, a smaller coral structure about 20
BENIGNO S. AQUINO III in his capacity as kilometers north of the atolls. The reefs of Tubbataha and
Commander-in-Chief of the Armed Forces of the Jessie Beazley are considered part of Cagayancillo, a remote
Philippines, HON. ALBERT F. DEL ROSARIO, Secretary, island municipality of Palawan.1 cralawlawlibrary

Department of Foreign Affairs, HON. PAQUITO OCHOA,

JR., Executive Secretary, Office of the President, HON. In 1988, Tubbataha was declared a National Marine Park by
VOLTAIRE T. GAZMIN, Secretary, Department of virtue of Proclamation No. 306 issued by President Corazon
National Defense, HON. RAMON JESUS P. PAJE, C. Aquino on August 11, 1988. Located in the middle of
Secretary, Department of Environment and Natural Central Sulu Sea, 150 kilometers southeast of Puerto
Resources, VICE ADMIRAL JOSE LUIS M. ALANO, Princesa City, Tubbataha lies at the heart of the Coral
Philippine Navy Flag Officer in Command, Armed Triangle, the global center of marine biodiversity.
Forces of the Philippines, ADMIRAL RODOLFO D.
ISORENA, Commandant, Philippine Coast Guard, In 1993, Tubbataha was inscribed by the United Nations
COMMODORE ENRICO EFREN EVANGELISTA, Philippine Educational Scientific and Cultural Organization (UNESCO) as
Coast Guard Palawan, MAJOR GEN. VIRGILIO O. a World Heritage Site. It was recognized as one of the
DOMINGO, Commandant of Armed Forces of the Philippines’ oldest ecosystems, containing excellent examples
Philippines Commandand LT. GEN. TERRY G. ROBLING, of pristine reefs and a high diversity of marine life. The
US Marine Corps Forces, Pacific and Balikatan 2013 97,030-hectare protected marine park is also an important
Exercise Co-Director, Respondents. habitat for internationally threatened and endangered marine
species. UNESCO cited Tubbataha’s outstanding universal On January 20, 2013, U.S. 7 th Fleet Commander, Vice
value as an important and significant natural habitat for in Admiral Scott Swift, expressed regret for the incident in a
situ conservation of biological diversity; an example press statement.5 Likewise, US Ambassador to the Philippines
representing significant on-going ecological and biological Harry K. Thomas, Jr., in a meeting at the Department of
processes; and an area of exceptional natural beauty and Foreign Affairs (DFA) on February 4, “reiterated his regrets
aesthetic importance.2 cralawlawlibrary over the grounding incident and assured Foreign Affairs
Secretary Albert F. del Rosario that the United States will
On April 6, 2010, Congress passed Republic Act (R.A.) No. provide appropriate compensation for damage to the reef
10067,3 otherwise known as the “Tubbataha Reefs Natural caused by the ship.”6 By March 30, 2013, the US Navy-led
Park (TRNP) Act of 2009” “to ensure the protection and salvage team had finished removing the last piece of the
conservation of the globally significant economic, biological, grounded ship from the coral reef.
sociocultural, educational and scientific values of the
Tubbataha Reefs into perpetuity for the enjoyment of present On April 17, 2013, the above-named petitioners on their
and future generations.”  Under the “no-take” policy, entry behalf and in representation of their respective
into the waters of TRNP is strictly regulated and many human sector/organization and others, including minors or
activities are prohibited and penalized or fined, including generations yet unborn, filed the present petition against
fishing, gathering, destroying and disturbing the resources Scott H. Swift in his capacity as Commander of the US 7 th
within the TRNP.  The law likewise created the Tubbataha Fleet, Mark A. Rice in his capacity as Commanding Officer of
Protected Area Management Board (TPAMB) which shall be the USS Guardian and Lt. Gen. Terry G. Robling, US Marine
the sole policy-making and permit-granting body of the Corps Forces, Pacific and Balikatan 2013 Exercises Co-
TRNP. Director (“US respondents”); President Benigno S. Aquino III
in his capacity as Commander-in-Chief of the Armed Forces
The USS Guardian is an Avenger-class mine of the Philippines (AFP), DFA Secretary Albert F. Del Rosario,
countermeasures ship of the US Navy. In December 2012, Executive Secretary Paquito Ochoa, Jr., Secretary Voltaire T.
the US Embassy in the Philippines requested diplomatic Gazmin (Department of National Defense), Secretary Jesus
clearance for the said vessel “to enter and exit the territorial P. Paje (Department of Environment and Natural Resources),
waters of the Philippines and to arrive at the port of Subic Vice-Admiral Jose Luis M. Alano (Philippine Navy Flag Officer
Bay for the purpose of routine ship replenishment, in Command, AFP), Admiral Rodolfo D. Isorena (Philippine
maintenance, and crew liberty.” 4   On January 6, 2013, the Coast Guard Commandant), Commodore Enrico Efren
ship left Sasebo, Japan for Subic Bay, arriving on January 13, Evangelista (Philippine Coast Guard-Palawan), and Major
2013 after a brief stop for fuel in Okinawa, Japan. General Virgilio O. Domingo (AFP Commandant), collectively
the “Philippine respondents.”
On January 15, 2013, the USS Guardian departed Subic Bay
for its next port of call in Makassar, Indonesia. On January The Petition
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 Petitioners claim that the grounding, salvaging and post-
Tubbataha Reefs, about 80 miles east-southeast of Palawan. salvaging operations of the USS Guardian cause and continue
No one was injured in the incident, and there have been no to cause environmental damage of such magnitude as to
reports of leaking fuel or oil. affect the provinces of Palawan, Antique, Aklan, Guimaras,
Iloilo, Negros Occidental, Negros Oriental, Zamboanga del
Norte, Basilan, Sulu, and Tawi-Tawi, which events violate of the absence of clear guidelines, duties,
their constitutional rights to a balanced and healthful and liability schemes for breaches of
ecology. They also seek a directive from this Court for the those duties, and require Respondents to
institution of civil, administrative and criminal suits for acts assume responsibility for prior and future
committed in violation of environmental laws and regulations environmental damage in general, and
in connection with the grounding incident. environmental damage under the Visiting
Forces Agreement in particular.
Specifically, petitioners cite the following violations
committed by US respondents under R.A. No. 10067: d. Temporarily define and describe allowable
unauthorized entry (Section 19); non-payment of activities of ecotourism, diving,
conservation fees (Section 21); obstruction of law recreation, and limited commercial
enforcement officer (Section 30); damages to the reef activities by fisherfolk and indigenous
(Section 20); and destroying and disturbing resources communities near or around the TRNP but
(Section 26[g]).  Furthermore, petitioners assail certain away from the damaged site and an
provisions of the Visiting Forces Agreement (VFA) which they additional buffer zone;
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: chanRoblesvirtualLawlibrary 3. After summary hearing, issue a Resolution
extending the TEPO until further orders of the
1. WHEREFORE, in view of the foregoing, Court;
Petitioners respectfully pray that the Honorable
Court: chanRoblesvirtualLawlibrary 4. After due proceedings, render a Decision which
shall include, without limitation:
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2. Immediately issue upon the filing of this petition

a Temporary Environmental Protection Order a. Order Respondents Secretary of Foreign
(TEPO) and/or a Writ of Kalikasan, which shall, Affairs, following the dispositive portion of
in particular, Nicolas v. Romulo, “to forthwith negotiate
with the United States representatives for
a. Order Respondents and any person acting the appropriate agreement on
on their behalf, to cease and desist all [environmental guidelines and
operations over the Guardian grounding environmental accountability] under
incident; Philippine authorities as provided in Art.
V[ ] of the VFA…”
b. Initially demarcating the metes and
bounds of the damaged area as well as b. Direct Respondents and appropriate
an additional buffer zone; agencies to commence administrative,
civil, and criminal proceedings against
c. Order Respondents to stop all port calls erring officers and individuals to the full
and war games under ‘Balikatan’ because
 extent of the law, and to make such accordance with the Local Government
proceedings public; Code and R.A. 10067;

c. Declare that Philippine authorities may i. Require Respondent US officials and their
exercise primary and exclusive criminal representatives to place a deposit to the
jurisdiction over erring U.S. personnel TRNP Trust Fund defined under Section
under the circumstances of this case; 17 of RA 10067 as a bona fide gesture
towards full reparations;
d. Require Respondents to pay just and
reasonable compensation in the j. Direct Respondents to undertake
settlement of all meritorious claims for measures to rehabilitate the areas
damages caused to the Tubbataha Reef affected by the grounding of the Guardian
on terms and conditions no less severe in light of Respondents’ experience in the
than those applicable to other States, and Port Royale grounding in 2009, among
damages for personal injury or death, if other similar grounding incidents;
such had been the case;
k. Require Respondents to regularly publish
e. Direct Respondents to cooperate in on a quarterly basis and in the name of
providing for the attendance of witnesses transparency and accountability such
and in the collection and production of environmental damage assessment,
evidence, including seizure and delivery valuation, and valuation methods, in all
of objects connected with the offenses stages of negotiation;
related to the grounding of the Guardian;
l. Convene a multisectoral technical working
f. Require the authorities of the Philippines group to provide scientific and technical
and the United States to notify each other support to the TPAMB;
of the disposition of all cases, wherever
heard, related to the grounding of the m. Order the Department of Foreign Affairs,
Guardian; Department of National Defense, and the
Department of Environment and Natural
g. Restrain Respondents from proceeding Resources to review the Visiting Forces
with any purported restoration, repair, Agreement and the Mutual Defense
salvage or post salvage plan or plans, Treaty to consider whether their
including cleanup plans covering the provisions allow for the exercise of erga
damaged area of the Tubbataha Reef omnes rights to a balanced and healthful
absent a just settlement approved by the ecology and for damages which follow
Honorable Court; from any violation of those rights;

h. Require Respondents to engage in n. Narrowly tailor the provisions of the

stakeholder and LGU consultations in Visiting Forces Agreement for purposes of
protecting the damaged areas of TRNP;
 o. Declare the grant of immunity found in the extent of responsibility of the US Government as regards
Article V (“Criminal Jurisdiction”) and the damage to the Tubbataha Reefs rests exclusively with
Article VI of the Visiting Forces the executive branch.
Agreement unconstitutional for violating
equal protection and/or for violating the The Court’s Ruling
preemptory norm of nondiscrimination
incorporated as part of the law of the land As a preliminary matter, there is no dispute on the legal
under Section 2, Article II, of the standing of petitioners to file the present petition.
Philippine Constitution;
Locus standi is “a right of appearance in a court of justice on
p. Allow for continuing discovery measures; a given question.”10 Specifically, it is “a party’s personal and
substantial interest in a case where he has sustained or will
q. Supervise marine wildlife rehabilitation in sustain direct injury as a result” of the act being challenged,
the Tubbataha Reefs in all other respects; and “calls for more than just a generalized grievance.” 11
and However, the rule on standing is a procedural matter which
this Court has relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers and legislators when the public
interest so requires, such as when the subject matter of the
5. Provide just and equitable environmental controversy is of transcendental importance, of overreaching
rehabilitation measures and such other reliefs as significance to society, or of paramount public
are just and equitable under the premises. 7 interest. 12
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(Underscoring supplied.)
In the landmark case of Oposa v. Factoran, Jr.,13 we
recognized the “public right” of citizens to “a balanced and
Since only the Philippine respondents filed their comment 8 to healthful ecology which, for the first time in our
the petition, petitioners also filed a motion for early constitutional history, is solemnly incorporated in the
resolution and motion to proceed ex parte against the US fundamental law.” We declared that the right to a balanced
respondents.9cralawlawlibrary and healthful ecology need not be written in the Constitution
for it is assumed, like other civil and political rights
Respondents’ Consolidated Comment guaranteed in the Bill of Rights, to exist from the inception of
mankind and it is an issue of transcendental importance with
In their consolidated comment with opposition to the intergenerational implications. Such right carries with it the
application for a TEPO and ocular inspection and production correlative duty to refrain from impairing the
orders, respondents assert that: (1) the grounds relied upon environment.14 cralawlawlibrary

for the issuance of a TEPO or writ of Kalikasan have become

fait accompli as the salvage operations on the USS Guardian On the novel element in the class suit filed by the petitioners
were already completed; (2) the petition is defective in form minors in Oposa, this Court ruled that not only do ordinary
and substance; (3) the petition improperly raises issues citizens have legal standing to sue for the enforcement of
involving the VFA between the Republic of the Philippines and environmental rights, they can do so in representation of
the United States of America; and (4) the determination of their own and future generations. Thus: chanRoblesvirtualLawlibrary
Petitioners minors assert that they represent their generation State,17 is expressly provided in Article XVI of the 1987
as well as generations yet unborn. We find no difficulty in Constitution which states: chanRoblesvirtualLawlibrary

ruling that they can, for themselves, for others of their

generation and for the succeeding generations, file a class Section 3. The State may not be sued without its consent.
suit. Their personality to sue in behalf of the In United States of America v. Judge Guinto,18 we discussed
succeeding generations can only be based on the the principle of state immunity from suit, as
concept of intergenerational responsibility insofar as follows:
chanRoblesvirtualLawlibrary

the right to a balanced and healthful ecology is

concerned. Such a right, as hereinafter expounded, The rule that a state may not be sued without its consent,
considers the “rhythm and harmony of nature.”Nature means now expressed in Article XVI, Section 3, of the 1987
the created world in its entirety. Such rhythm and harmony Constitution, is one of the generally accepted principles of
indispensably include, inter alia, the judicious disposition, international law that we have adopted as part of the law of
utilization, management, renewal and conservation of the our land under Article II, Section 2. x x x.
country’s forest, mineral, land, waters, fisheries, wildlife, off-
shore areas and other natural resources to the end that their Even without such affirmation, we would still be bound by
exploration, development and utilization be equitably the generally accepted principles of international law under
accessible to the present as well as future generations. the doctrine of incorporation. Under this doctrine, as
Needless to say, every generation has a responsibility to the accepted by the majority of states, such principles are
next to preserve that rhythm and harmony for the full deemed incorporated in the law of every civilized state as a
enjoyment of a balanced and healthful ecology. Put a little condition and consequence of its membership in the society
differently, the minors’ assertion of their right to a sound of nations. Upon its admission to such society, the state is
environment constitutes, at the same time, the performance automatically obligated to comply with these principles in its
of their obligation to ensure the protection of that right for relations with other states.
the generations to come.15 (Emphasis supplied.)
As applied to the local state, the doctrine of state immunity
The liberalization of standing first enunciated in Oposa, is based on the justification given by Justice Holmes that
insofar as it refers to minors and generations yet unborn, is “there can be no legal right against the authority which
now enshrined in the Rules which allows the filing of a citizen makes the law on which the right depends.”[Kawanakoa v.
suit in environmental cases. The provision on citizen suits in Polybank, 205 U.S. 349] There are other practical reasons
the Rules “collapses the traditional rule on personal and for the enforcement of the doctrine. In the case of the
direct interest, on the principle that humans are stewards of foreign state sought to be impleaded in the local
nature.”16
cralawlawlibrary
jurisdiction, the added inhibition is expressed in the
maxim par in parem, non habet imperium. All states
Having settled the issue of locus standi, we shall address the are sovereign equals and cannot assert jurisdiction
more fundamental question of whether this Court has over one another. A contrary disposition would, in the
jurisdiction over the US respondents who did not submit any language of a celebrated case, “unduly vex the peace
pleading or manifestation in this case. of nations.” [De Haber v. Queen of Portugal, 17 Q. B. 171]

The immunity of the State from suit, known also as the While the doctrine appears to prohibit only suits against the
doctrine of sovereign immunity or non-suability of the state without its consent, it is also applicable to
complaints filed against officials of the state for acts whose service he is, under the maxim - par in parem, non
allegedly performed by them in the discharge of their habet imperium - thatall states are sovereign equals and
duties. The rule is that if the judgment against such officials cannot assert jurisdiction over one another. The implication,
will require the state itself to perform an affirmative act to in broad terms, is that if the judgment against an official
satisfy the same, such as the appropriation of the amount would require the state itself to perform an affirmative act to
needed to pay the damages awarded against them, the suit satisfy the award, such as the appropriation of the amount
must be regarded as against the state itself although it has needed to pay the damages decreed against him, the suit
not been formally impleaded. [Garcia v. Chief of Staff, 16 must be regarded as being against the state itself, although
SCRA 120] In such a situation, the state may move to it has not been formally impleaded.21 (Emphasis supplied.)
dismiss the complaint on the ground that it has been filed
without its consent.19 (Emphasis supplied.) In the same case we also mentioned that in the case of
diplomatic immunity, the privilege is not an immunity from
Under the American Constitution, the doctrine is expressed in the observance of the law of the territorial sovereign or from
the Eleventh Amendment which reads: chanRoblesvirtualLawlibrary ensuing legal liability; it is, rather, an immunity from the
exercise of territorial jurisdiction.22cralawlawlibrary

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced In United States of America v. Judge Guinto,23 one of the
or prosecuted against one of the United States by Citizens of consolidated cases therein involved a Filipino employed at
another State, or by Citizens or Subjects of any Foreign Clark Air Base who was arrested following a buy-bust
State. operation conducted by two officers of the US Air Force, and
In the case of Minucher v. Court of Appeals, 20 we further was eventually dismissed from his employment when he was
expounded on the immunity of foreign states from the charged in court for violation of R.A. No. 6425. In a
jurisdiction of local courts, as follows:
chanRoblesvirtualLawlibrary
complaint for damages filed by the said employee against the
military officers, the latter moved to dismiss the case on the
The precept that a State cannot be sued in the courts of a ground that the suit was against the US Government which
foreign state is a long-standing rule of customary had not given its consent. The RTC denied the motion but on
international law then closely identified with the personal a petition for certiorari and prohibition filed before this Court,
immunity of a foreign sovereign from suit and, with the we reversed the RTC and dismissed the complaint. We held
emergence of democratic states, made to attach not just to that petitioners US military officers were acting in the
the person of the head of state, or his representative, but exercise of their official functions when they conducted the
also distinctly to the state itself in its sovereign capacity. If buy-bust operation against the complainant and thereafter
the acts giving rise to a suit are those of a foreign testified against him at his trial. It follows that for
government done by its foreign agent, although not discharging their duties as agents of the United States, they
necessarily a diplomatic personage, but acting in his cannot be directly impleaded for acts imputable to their
official capacity, the complaint could be barred by the principal, which has not given its consent to be sued.
immunity of the foreign sovereign from suit without its
consent. Suing a representative of a state is believed to be, This traditional rule of State immunity which exempts a State
in effect, suing the state itself. The proscription is not from being sued in the courts of another State without the
accorded for the benefit of an individual but for the State, in former’s consent or waiver has evolved into a restrictive
doctrine which distinguishes sovereign and governmental
acts (jure imperii) from private, commercial and proprietary ordinary citizen. The cloak of protection afforded the
acts (jure gestionis). Under the restrictive rule of State officers and agents of the government is removed the
immunity, State immunity extends only to acts jure imperii.  moment they are sued in their individual capacity. This
The restrictive application of State immunity is proper only situation usually arises where the public official acts without
when the proceedings arise out of commercial transactions of authority or in excess of the powers vested in him. It is a
the foreign sovereign, its commercial activities or economic well-settled principle of law that a public official may be
affairs.24
cralawlawlibrary liable in his personal private capacity for whatever
damage he may have caused by his act done with
In Shauf v. Court of Appeals, 25 we discussed the limitations of malice and in bad faith, or beyond the scope of his
the State immunity principle, thus: chanRoblesvirtualLawlibrary authority or jurisdiction.26 (Emphasis supplied.)

It is a different matter where the public official is

In this case, the US respondents were sued in their official
made to account in his capacity as such for acts
capacity as commanding officers of the US Navy who had
contrary to law and injurious to the rights of plaintiff.
control and supervision over the USS Guardian and its crew.
As was clearly set forth by Justice Zaldivar in Director of the
The alleged act or omission resulting in the unfortunate
Bureau of Telecommunications, et al. vs. Aligaen, etc., et
grounding of the USS Guardian on the TRNP was committed
al.:  “Inasmuch as the State authorizes only legal acts by its
while they were performing official military duties.
officers, unauthorized acts of government officials or officers
Considering that the satisfaction of a judgment against said
are not acts of the State, and an action against the officials
officials will require remedial actions and appropriation of
or officers by one whose rights have been invaded or violated
funds by the US government, the suit is deemed to be one
by such acts, for the protection of his rights, is not a suit
against the US itself. The principle of State immunity
against the State within the rule of immunity of the State
therefore bars the exercise of jurisdiction by this Court over
from suit. In the same tenor, it has been said that an action
the persons of respondents Swift, Rice and Robling.
at law or suit in equity against a State officer or the director
of a State department on the ground that, while claiming to
During the deliberations, Senior Associate Justice Antonio T.
act for the State, he violates or invades the personal and
Carpio took the position that the conduct of the US in this
property rights of the plaintiff, under an unconstitutional act
case, when its warship entered a restricted area in violation
or under an assumption of authority which he does not have,
of R.A. No. 10067 and caused damage to the TRNP reef
is not a suit against the State within the constitutional
system, brings the matter within the ambit of Article 31 of
provision that the State may not be sued without its
the United Nations Convention on the Law of the Sea
consent.” The rationale for this ruling is that the doctrine of
(UNCLOS). He explained that while historically, warships
state immunity cannot be used as an instrument for
enjoy sovereign immunity from suit as extensions of their
perpetrating an injustice.
flag State, Art. 31 of the UNCLOS creates an exception to
this rule in cases where they fail to comply with the rules and
x x x x
regulations of the coastal State regarding passage through
the latter’s internal waters and the territorial sea.
The aforecited authorities are clear on the matter. They state
that the doctrine of immunity from suit will not apply
According to Justice Carpio, although the US to date has not
and may not be invoked where the public official is
ratified the UNCLOS, as a matter of long-standing policy the
being sued in his private and personal capacity as an
US considers itself bound by customary international rules on
the “traditional uses of the oceans” as codified in UNCLOS, as Article 30
can be gleaned from previous declarations by former Non-compliance by warships with the laws and regulations
Presidents Reagan and Clinton, and the US judiciary in the of the coastal State
case of United States v. Royal Caribbean Cruise Lines,
Ltd.27
cralawlawlibrary If any warship does not comply with the laws and regulations
of the coastal State concerning passage through the
The international law of the sea is generally defined as “a territorial sea and disregards any request for compliance
body of treaty rules and customary norms governing the therewith which is made to it, the coastal State may require
uses of the sea, the exploitation of its resources, and the it to leave the territorial sea immediately.
exercise of jurisdiction over maritime regimes. It is a branch
of public international law, regulating the relations of states Article 31
with respect to the uses of the oceans.” 28   The UNCLOS is a Responsibility of the flag State for damage caused by a
multilateral treaty which was opened for signature on warship
December 10, 1982 at Montego Bay, Jamaica. It was ratified or other government ship operated for non-commercial
by the Philippines in 1984 but came into force on November purposes
16, 1994 upon the submission of the 60 th ratification.
The flag State shall bear international responsibility for any
The UNCLOS is a product of international negotiation that loss or damage to the coastal State resulting from the
seeks to balance State sovereignty (mare clausum) and the non-compliance by a warship or other government
principle of freedom of the high seas (mare liberum).29 The ship operated for non-commercial purposes with the
freedom to use the world’s marine waters is one of the oldest laws and regulations of the coastal State concerning
customary principles of international law. 30 The UNCLOS gives passage through the territorial sea or with the provisions
to the coastal State sovereign rights in varying degrees over of this Convention or other rules of international law.
the different zones of the sea which are: 1) internal waters,
2) territorial sea, 3) contiguous zone, 4) exclusive economic Article 32
zone, and 5) the high seas. It also gives coastal States more Immunities of warships and other government ships
or less jurisdiction over foreign vessels depending on where operated for non-commercial purposes
the vessel is located.31
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With such exceptions as are contained in subsection A and in

Insofar as the internal waters and territorial sea is articles 30 and 31, nothing in this Convention affects the
concerned, the Coastal State exercises sovereignty, subject immunities of warships and other government ships operated
to the UNCLOS and other rules of international law. Such for non-commercial purposes. (Emphasis supplied.)
sovereignty extends to the air space over the territorial sea
as well as to its bed and subsoil. 32 cralawlawlibrary
A foreign warship’s unauthorized entry into our internal
waters with resulting damage to marine resources is one
In the case of warships,33 as pointed out by Justice Carpio, situation in which the above provisions may apply.But what if
they continue to enjoy sovereign immunity subject to the the offending warship is a non-party to the UNCLOS, as in
following exceptions: chanRoblesvirtualLawlibrary
this case, the US?

An overwhelming majority – over 80% -- of nation states are

now members of UNCLOS, but despite this the US, the other countries to do likewise.”  Since Article 31 relates to
world’s leading maritime power, has not ratified it. the “traditional uses of the oceans,” and “if under its policy,
the US ‘recognize[s] the rights of the other states in the
While the Reagan administration was instrumental in waters off their coasts,’” Justice Carpio postulates that “there
UNCLOS' negotiation and drafting, the U.S. delegation is more reason to expect it to recognize the rights of other
ultimately voted against and refrained from signing it due to states in their internal waters, such as the Sulu Sea in this
concerns over deep seabed mining technology transfer case.”
provisions contained in Part XI. In a remarkable, multilateral
effort to induce U.S. membership, the bulk of UNCLOS As to the non-ratification by the US, Justice Carpio
member states cooperated over the succeeding decade to emphasizes that “the US’ refusal to join the UNCLOS was
revise the objectionable provisions. The revisions satisfied centered on its disagreement with UNCLOS’ regime of deep
the Clinton administration, which signed the revised Part XI seabed mining (Part XI) which considers the oceans and
implementing agreement in 1994. In the fall of 1994, deep seabed commonly owned by mankind,” pointing out
President Clinton transmitted UNCLOS and the Part XI that such “has nothing to do with its [the US’] acceptance of
implementing agreement to the Senate requesting its advice customary international rules on navigation.”
and consent.  Despite consistent support from President
Clinton, each of his successors, and an ideologically diverse It may be mentioned that even the US Navy Judge Advocate
array of stakeholders, the Senate has since withheld the General’s Corps publicly endorses the ratification of the
consent required for the President to internationally bind the UNCLOS, as shown by the following statement posted on its
United States to UNCLOS. official website:
chanRoblesvirtualLawlibrary

While UNCLOS cleared the Senate Foreign Relations The Convention is in the national interest of the United
Committee (SFRC) during the 108th and 110th Congresses,  States because it establishes stable maritime zones,
its progress continues to be hamstrung by significant pockets including a maximum outer limit for territorial seas; codifies
of political ambivalence over U.S. participation in innocent passage, transit passage, and archipelagic sea lanes
international institutions. Most recently, 111th Congress SFRC passage rights; works against “jurisdictional creep” by
Chairman Senator John Kerry included “voting out” UNCLOS preventing coastal nations from expanding their own
for full Senate  consideration among his highest priorities. maritime zones; and reaffirms sovereign immunity of
This did not occur, and no Senate action has been taken on warships, auxiliaries and government aircraft.
UNCLOS by the 112th Congress.34 chanrobleslaw

x x x x
Justice Carpio invited our attention to the policy statement
given by President Reagan on March 10, 1983 that the US Economically, accession to the Convention would support our
will “recognize the rights of the other states in the waters off national interests by enhancing the ability of the US to assert
their coasts, as reflected in the convention [UNCLOS], so its sovereign rights over the resources of one of the largest
long as the rights and freedom of the United States and continental shelves in the world. Further, it is the Law of the
others under international law are recognized by such coastal Sea Convention that first established the concept of a
states”, and President Clinton’s reiteration of the US policy maritime Exclusive Economic Zone out to 200 nautical miles,
“to act in a manner consistent with its [UNCLOS] provisions and recognized the rights of coastal states to conserve and
relating to traditional uses of the oceans and to encourage manage the natural resources in this Zone.35 chanrobleslaw
 Petitioners argue that there is a waiver of immunity from suit
We fully concur with Justice Carpio’s view that non- found in the VFA. Likewise, they invoke federal statutes in
membership in the UNCLOS does not mean that the US will the US under which agencies of the US have statutorily
disregard the rights of the Philippines as a Coastal State over waived their immunity to any action. Even under the
its internal waters and territorial sea. We thus expect the US common law tort claims, petitioners asseverate that the US
to bear “international responsibility” under Art. 31 in respondents are liable for negligence, trespass and nuisance.
connection with the USS Guardian grounding which adversely
affected the Tubbataha reefs. Indeed, it is difficult to imagine We are not persuaded.
that our long-time ally and trading partner, which has been
actively supporting the country’s efforts to preserve our vital The VFA is an agreement which defines the treatment of
marine resources, would shirk from its obligation to United States troops and personnel visiting the Philippines to
compensate the damage caused by its warship while promote “common security interests” between the US and
transiting our internal waters. Much less can we comprehend the Philippines in the region. It provides for the guidelines to
a Government exercising leadership in international affairs, govern such visits of military personnel, and further defines
unwilling to comply with the UNCLOS directive for all nations the rights of the United States and the Philippine government
to cooperate in the global task to protect and preserve the in the matter of criminal jurisdiction, movement of vessel
marine environment as provided in Article 197, and aircraft, importation and exportation of equipment,
viz:
chanRoblesvirtualLawlibrary materials and supplies.36 The invocation of US federal tort
laws and even common law is thus improper considering that
Article 197 it is the VFA which governs disputes involving US military
Cooperation on a global or regional basis ships and crew navigating Philippine waters in pursuance of
the objectives of the agreement.
States shall cooperate on a global basis and, as appropriate,
on a regional basis, directly or through competent As it is, the waiver of State immunity under the VFA pertains
international organizations, in formulating and elaborating only to criminal jurisdiction and not to special civil actions
international rules, standards and recommended practices such as the present petition for issuance of a writ of
and procedures consistent with this Convention, for the Kalikasan. In fact, it can be inferred from Section 17, Rule 7
protection and preservation of the marine environment, of the Rules that a criminal case against a person charged
taking into account characteristic regional features. with a violation of an environmental law is to be filed
separately:chanRoblesvirtualLawlibrary

In fine, the relevance of UNCLOS provisions to the present

controversy is beyond dispute. Although the said treaty Sec. 17. Institution of separate actions.—The filing of a
upholds the immunity of warships from the jurisdiction of petition for the issuance of the writ of kalikasan shall not
Coastal States while navigating the latter’s territorial sea, the preclude the filing of separate civil, criminal or administrative
flag States shall be required to leave the territorial sea actions.
immediately if they flout the laws and regulations of the
Coastal State, and they will be liable for damages caused by In any case, it is our considered view thata ruling on the
their warships or any other government vessel operated for application or non-application of criminal jurisdiction
non-commercial purposes under Article 31. provisions of the VFA 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 (e) Such other reliefs which relate to the right of the people
Kalikasan. We also find it unnecessary at this point to to a balanced and healthful ecology or to the
determine whether such waiver of State immunity is indeed protection,preservation, rehabilitation or restoration of the
absolute. In the same vein, we cannot grant damages which environment, except the award of damages to individual
have resulted from the violation of environmental laws. The petitioners. (Emphasis supplied.)
Rules allows the recovery of damages, including the
collection of administrative fines under R.A. No. 10067, in a We agree with respondents (Philippine officials) in asserting
separate civil suit or that deemed instituted with the criminal that this petition has become moot in the sense that the
action charging the same violation of an environmental salvage operation sought to be enjoined or restrained had
law.37cralawlawlibrary
already been accomplished when petitioners sought recourse
from this Court. But insofar as the directives to Philippine
Section 15, Rule 7 enumerates the reliefs which may be respondents to protect and rehabilitate the coral reef
granted in a petition for issuance of a writ of Kalikasan, to structure and marine habitat adversely affected by the
wit:
chanRoblesvirtualLawlibrary
grounding incident are concerned, petitioners are entitled to
these reliefs notwithstanding the completion of the removal
Sec. 15. Judgment.—Within sixty (60) days from the time
of the USS Guardian from the coral reef.
the petition is submitted for decision, the court shall render
judgment granting or denying the privilege of the writ of
However, we are mindful of the fact that the US and
kalikasan.
Philippine governments both expressed readiness to
negotiate and discuss the matter of compensation for the
The reliefs that may be granted under the writ are the
damage caused by the USS Guardian. The US Embassy has
following:
also declared it is closely coordinating with local scientists
chanRoblesvirtualLawlibrary

and experts in assessing the extent of the damage and

(a) Directing respondent to permanently cease and desist
appropriate methods of rehabilitation.
from committing acts or neglecting the performance of a
duty in violation of environmental laws resulting in
Exploring avenues for settlement of environmental cases is
environmental destruction or damage;
not proscribed by the Rules. As can be gleaned from the
following provisions, mediation and settlement are available
(b) Directing the respondent public official, government
for the consideration of the parties, and which dispute
agency, private person or entity to protect,
resolution methods are encouraged by the court, to
preserve,rehabilitate or restore the environment;
wit:chanRoblesvirtualLawlibrary

(c) Directing the respondent public official, government RULE 3

agency, private person or entity to monitor strict compliance
with the decision and orders of the court; x x x x
(d) Directing the respondent public official, government Sec. 3. Referral to mediation.–At the start of the pre-trial
agency, or private person or entity to make periodic reports conference, the court shall inquire from the parties if they
on the execution of the final judgment; and 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 The Court takes judicial notice of a similar incident in 2009
refer the case to the clerk of court or legal researcher for when a guided-missile cruiser, the USS Port Royal, ran
mediation. aground about half a mile off the Honolulu Airport Reef
Runway and remained stuck for four days. After spending
Mediation must be conducted within a non-extendible period $6.5 million restoring the coral reef, the US government was
of thirty (30) days from receipt of notice of referral to reported to have paid the State of Hawaii $8.5 million in
mediation. settlement over coral reef damage caused by the
grounding.38
cralawlawlibrary

The mediation report must be submitted within ten (10) days

from the expiration of the 30-day period. To underscore that the US government is prepared to pay
appropriate compensation for the damage caused by the
Sec. 4. Preliminary conference.–If mediation fails, the court USS Guardian grounding, the US Embassy in the Philippines
will schedule the continuance of the pre-trial. Before the has announced the formation of a US interdisciplinary
scheduled date of continuance, the court may refer the case scientific team which will “initiate discussions with the
to the branch clerk of court for a preliminary conference for Government of the Philippines to review coral reef
the following purposes: chanRoblesvirtualLawlibrary rehabilitation options in Tubbataha, based on assessments
by Philippine-based marine scientists.” The US team intends
(a) To assist the parties in reaching a settlement; to “help assess damage and remediation options, in
coordination with the Tubbataha Management Office,
x x x x appropriate Philippine government entities, non-
governmental organizations, and scientific experts from
Sec. 5. Pre-trial conference; consent decree.–The judge shall Philippine universities.”39
cralawlawlibrary

put the parties and their counsels under oath, and they shall
remain under oath in all pre-trial conferences. A rehabilitation or restoration program to be implemented at
the cost of the violator is also a major relief that may be
The judge shall exert best efforts to persuade the parties to obtained under a judgment rendered in a citizens’ suit under
arrive at a settlement of the dispute. The judge may issue a the Rules, viz: chanRoblesvirtualLawlibrary

consent decree approving the agreement between the parties

in accordance with law, morals, public order and public policy RULE 5
to protect the right of the people to a balanced and healthful
ecology. Section 1. Reliefs in a citizen suit.–If warranted, the court
may grant to the plaintiff proper reliefs which shall include
x x x x the protection, preservation or rehabilitation of the
environment and the payment of attorney’s fees, costs of
Sec. 10. Efforts to settle.–The court shall endeavor to make suit and other litigation expenses. It may also require the
the parties to agree to compromise or settle in accordance violator to submit a program of rehabilitation or restoration
with law at any stage of the proceedings before rendition of of the environment, the costs of which shall be borne by the
judgment. (Underscoring supplied.) violator, or to contribute to a special trust fund for that
purpose subject to the control of the court.
 Leonen, J., see separate concurring opinion.
In the light of the foregoing, the Court defers to the Jardeleza, J., no part.
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
cralawlawlibrary

On the other hand, we cannot grant the additional reliefs

prayed for in the petition to order a review of the VFA and to
nullify certain immunity provisions thereof.

As held in BAYAN (Bagong Alyansang Makabayan) v. Exec.

Sec. Zamora,41 the VFA was duly concurred in by the
Philippine Senate and has been recognized as a treaty by the
United States as attested and certified by the duly authorized
representative of the United States government. The VFA
being a valid and binding agreement, the parties are required
as a matter of international law to abide by its terms and
provisions.42   The present petition under the Rules is not the
proper remedy to assail the constitutionality of its provisions.

WHEREFORE, the petition for the issuance of the privilege

of the Writ of Kalikasan is hereby DENIED.

No pronouncement as to costs.

SO ORDERED. cralawred

Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta,

Bersamin, Del Castillo, Perez, Reyes, and Perlas-Bernabe,
JJ., concur.
Sereno, C.J., see concurring opinion.
Mendoza, J., on official leave.