Arigo v. Swift

 FACTS:

The name “Tubbataha” came from the Samal (seafaring people of southern Philippines) language which means “long reef exposed at low tide.” Tubbataha is composed of two huge coral atolls — the north atoll and the south atoll — and the Jessie Beazley Reef, a smaller coral structure about 20 kilometers north of the atolls. The reefs of Tubbataha and Jessie Beazley are considered part of Cagayancillo, a remote island municipality of Palawan.

August 11, 1988 — Tubbataha was declared a National Marine Park (Proclamation No. 306) issued by President Corazon Aquino.

1993 — Tubbataha was inscribed by UNESCO as a World Heritage Site.

April 6, 2010 — Congress passed Tubbataha Reefs Natural Park (TRNP) Act of 2009 (RA No. 10067) “to ensure the protection and conservation of the globally significant economic, biological, sociocultural, educational and scientific values of the Tubbataha Reefs into perpetuity for the enjoyment of present and future generations.” 

Under the “no-take” policy, entry into the waters of TRNP is strictly regulated and many human activities are prohibited and penalized or fined, including fishing, gathering, destroying and disturbing the resources within the TRNP. The law likewise created the Tubbataha Protected Area Management Board (TPAMB) which shall be the sole policy-making and permit-granting body of the TRNP. 

USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. 

December 2012 — the US Embassy in the Philippines requested diplomatic clearance for the said vessel “to enter and exit the territorial waters of the Philippines and to arrive at the port of Subic Bay for the purpose of routine ship replenishment, maintenance, and crew liberty.” 

January 6, 2013 — the ship left Sasebo, Japan.

January 13 — arrived in Subic Bay after a brief stop for fuel in Okinawa, Japan. 

January 15 — the USS Guardian departed Subic Bay for its next port of call in Makassar, Indonesia. 

January 17 — at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the northwest side of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan. No one was injured in the incident, and there have been no reports of leaking fuel or oil. 

January 20 — U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for the incident in a press statement. 

February 4 — US Ambassador to the Philippines Harry K. Thomas, Jr., in a meeting at the DFA “reiterated his regrets over the grounding incident and assured Foreign Affairs Secretary Albert F. del Rosario that the United States will provide appropriate compensation for damage to the reef caused by the ship.” 

March 30, 2013 — the US Navy-led salvage team had finished removing the last piece of the grounded ship from the coral reef. 

April 17 — petitioners on their behalf and in representation of their respective sector/organization and others, including minors or generations yet unborn, filed the present petition.

Petitioners claim that the grounding, salvaging and post- salvaging operations of the USS Guardian cause and continue to cause environmental damage of such magnitude as to affect the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their constitutional rights to a balanced and healthful ecology. They also seek a directive from the SC for the institution of civil, administrative and criminal suits for acts committed in violation of environmental laws and regulations in connection with the grounding incident. 

Only the Philippine respondents filed their comment, asserting that (1) the grounds relied upon for the issuance of a TEPO or writ of Kalikasan have become fait accompli as the salvage operations on the USS Guardian were already completed; (2) the petition is defective in form and substance; (3) the petition improperly raises issues involving the VFA between the Republic of the Philippines and the United States of America; and (4) the determination of the extent of responsibility of the US Government as regards the damage to the Tubbataha Reefs rests exclusively with the executive branch. 

ISSUES/RULING:

Petitioner’s Locus Standi

There is no dispute on the legal standing of petitioners to file the present petition. Locus standi is “a right of appearance in a court of justice on a given question.” Specifically, it is “a party’s personal and substantial interest in a case where he has sustained or will sustain direct injury as a result” of the act being challenged, and “calls for more than just a generalized grievance.

In the landmark case of Oposa v. Factoran, Jr., the “public right” of citizens to “a balanced and healthful ecology which, for the first time in our constitutional history, is solemnly incorporated in the fundamental law.” We declared that the right to a balanced and healthful ecology need not be written in the Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental importance with intergenerational implications. Such right carries with it the correlative duty to refrain from impairing the environment.

On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled that not only do ordinary citizens have legal standing to sue for the enforcement of environmental rights, they can do so in representation of their own and future generations. 

The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and generations yet unborn, is now enshrined in the Rules which allows the filing of a citizen suit in environmental cases. The provision on citizen suits in the Rules “collapses the traditional rule on personal and direct interest, on the principle that humans are stewards of nature.” 

Jurisdiction of the SC over the US respondents who did not submit any pleading or manifestation in this case

The immunity of the State from suit, known also as the doctrine of severeign immunity or non-suability of the State is expressly provided in the Article XVI of the 1987 Constitution which states: Sec. 3. The State may not be sued without its consent.

While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. 

In the case of Minucher v. CA, the precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary international law then closely identified with the personal immunity of a foreign sovereign from suit and, with the emergence of democratic states, made to attach not just to the person of the head of state, or his representative, but also distinctly to the state itself in its sovereign capacity. If the acts giving rise to a suit are those of a foreign government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Suing a representative of a state is believed to be, in effect, suing the state itself. The proscription is not accorded for the benefit of an individual but for the State, in whose service he is, under the maxim — par in parem, non habet imperium — that all states are sovereign equals and cannot assert jurisdiction over one another. The implication, in broad terms, is that if the judgment against an official would require the state itself to perform an affirmative act to satisfy the award, such as the appropriation of the amount needed to pay the damages decreed against him, the suit must be regarded as being against the state itself, although it has not been formally impleaded. 

The privilege is not an immunity from the observance of the law of the territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction. 

In USA v. Judge Guinto, this traditional rule of State immunity which exempts a State from being sued in the courts of another State without the former’s consent or waiver has evolved into a restrictive doctrine which distinguishes sovereign and governmental acts (jure imperii) from private, commercial and proprietary acts (jure gestionis). Under the restrictive rule of State immunity, State immunity extends only to acts jure imperii. The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs.

Limitations of the State immunity principle was discussed in Shauf v. CA. It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the rights of plaintiff. The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction.

In this case, the US respondents were sued in their official capacity as commanding officers of the US Navy who had control and supervision over the USS Guardian and its crew. The alleged act or omission resulting in the unfortunate grounding of the USS Guardian on the TRNP was committed while they were performing official military duties. Considering that the satisfaction of a judgment against said officials will require remedial actions and appropriation of funds by the US government, the suit is deemed to be one against the US itself. The principle of State immunity therefore bars the exercise of jurisdiction by this Court over the persons of respondents Swift, Rice and Robling. 

United Nations Convention on the Law of the Sea

Article 30 — Noncompliance by warships with the laws and regulations of the coastal State 

If any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately. 

Article 31 — Responsibility of the flag State for damage caused by a warship or other government ship operated for noncommercial purposes 

The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the noncompliance by a warship or other government ship operated for noncommercial purposes with the laws and regulations of the coastal State concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law. 

Article 32 — Immunities of warships and other government ships operated for noncommercial purposes 

With such exceptions as are contained in subsection A and in Articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for noncommercial purposes. 

A foreign warship’s unauthorized entry into our internal waters with resulting damage to marine resources is one situation in which the above provisions may apply. But what if the offending warship is a nonparty to the UNCLOS, as in this case, the US? 

An overwhelming majority — over 80% — of nation states are now members of UNCLOS, but despite this the US, the world’s leading maritime power, has not ratified it. 

Nonmembership in the UNCLOS does not mean that the US will disregard the rights of the Philippines as a Coastal State over its internal waters and territorial sea. We thus expect the US to bear “international responsibility” under Art. 31 in connection with the USS Guardian grounding which adversely affected the Tubbataha reefs. Indeed, it is difficult to imagine that our long-time ally and trading partner, which has been actively supporting the country’s efforts to preserve our vital marine resources, would shirk from its obligation to compensate the damage caused by its warship while transiting our internal waters. Much less can we comprehend a Government exercising leadership in international affairs, unwilling to comply with the UNCLOS directive for all nations to cooperate in the global task to protect and preserve the marine environment as provided in Article 197, viz.: 

Article 197— Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features. 

In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute. Although the said treaty upholds the immunity of warships from the jurisdiction of Coastal States while navigating the latter’s territorial sea, the flag States shall be required to leave the territorial sea immediately if they flout the laws and regulations of the Coastal State, and they will be liable for damages caused by their warships or any other government vessel operated for noncommercial purposes under Article 31. 

Petitioners’ argument — Waiver of immunity from Suit found in the VFA.

The SC is not persuaded. The VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines to promote “common security interests” between the US and the Philippines in the region. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies.

As it is, the waiver of State immunity under the VFA pertains only to criminal jurisdiction and not to special civil actions such as the present petition for issuance of a writ of Kalikasan. 

A ruling on the application or non-application of criminal jurisdiction 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 Kalikasan. SC also found it unnecessary at this point to determine whether such waiver of State immunity is indeed absolute. In the same vein, the SC cannot grant damages which have resulted from the violation of environmental laws. The Rules allows the recovery of damages, including the collection of administrative fines under RA No. 10067, in a separate civil suit or that deemed instituted with the criminal action charging the same violation of an environmental law.

The SC agrees with respondents (Philippine officials) in asserting that this petition has become moot in the sense that the salvage operation sought to be enjoined or restrained had already been accomplished when petitioners sought recourse from this Court. But insofar as the directives to Philippine respondents to protect and rehabilitate the coral reef structure and marine habitat adversely affected by the grounding incident are concerned, petitioners are entitled to these reliefs notwithstanding the completion of the removal of the USS Guardian from the coral reef. 

However, the SC is mindful of the fact that the US and Philippine governments both expressed readiness to negotiate and discuss the matter of compensation for the damage caused by the USS Guardian. The US Embassy has also declared it is closely coordinating with local scientists and experts in assessing the extent of the damage and appropriate methods of rehabilitation. 

Exploring avenues for settlement of environmental cases is not proscribed by the Rules. Mediation and settlement are available for the consideration of the parties, and which dispute resolution methods are encouraged by the court.

The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the USS Port Royal, ran a ground about half a mile off the Honolulu Airport Reef Runway and remained stuck for four days. After spending $6.5 million restoring the coral reef, the US government was reported to have paid the State of Hawaii $8.5 million in settlement over coral reef damage caused by the grounding.

To underscore that the US government is prepared to pay appropriate compensation for the damage caused by the USS Guardian grounding, the US Embassy in the Philippines has announced the formation of a US interdisciplinary scientific team which will “initiate discussions with the Government of the Philippines to review coral reef rehabilitation options in Tubbataha, based on assessments by Philippine-based marine scientists.” The US team intends to “help assess damage and remediation options, in coordination with the Tubbataha Management Office, appropriate Philippine government entities, nongovernmental organizations, and scientific experts from Philippine universities.”

A rehabilitation or restoration program to be implemented at the cost of the violator is also a major relief that may be obtained under a judgment rendered in a citizens’ suit under the Rules.

The Court defers to the Executive Branch on the matter of compensation and rehabilitation measures through diplomatic channels. Resolution of these issues impinges on our relations with another State in the context of common security interests under the VFA. It is settled that “[t]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative — ‘the political’ — departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.”

On the other hand, the SC cannot grant the additional reliefs prayed for in the petition to order a review of the VFA and to nullify certain immunity provisions thereof. 

DISPOSITIVE PORTION

WHEREFORE, the petition for the issuance of the privilege of the Writ of Kalikasan is hereby DENIED.