Republic of the Philippines Environmental Protection Order (TEPO) under Rule 7

SUPREME COURT of A.M. No. 09-6-8-SC, otherwise known as the Rules

of Procedure for Environmental Cases (Rules),
Manila involving violations of environmental laws and
regulations in relation to the grounding of the US
EN BANC military ship USS Guardian over the Tubbataha
Reefs.
G.R. No. 206510               September 16, 2014
Factual Background
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of
Puerto Princesa D.D.; MOST REV. DEOGRACIAS The name "Tubbataha" came from the Samal
S. INIGUEZ, JR., Bishop-Emeritus of Caloocan, (seafaring people of southern Philippines) language
FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA, which means "long reef exposed at low tide."
JR., Kalikasan-PNE, MARIA CAROLINA P. Tubbataha is composed of two huge coral atolls - the
ARAULLO, RENATO M. REYES, JR., Bagong north atoll and the south atoll - and the Jessie
Alyansang Makabayan, HON. NERI JAVIER Beazley Reef, a smaller coral structure about 20
COLMENARES, Bayan Muna Partylist, ROLAND G. kilometers north of the atolls. The reefs of Tubbataha
SIMBULAN, PH.D., Junk VF A Movement, and Jessie Beazley are considered part of
TERESITA R. PEREZ, PH.D., HON. RAYMOND V. Cagayancillo, a remote island municipality of
PALATINO, Kabataan Party-list, PETER SJ. Palawan. 1

GONZALES, Pamalakaya, GIOVANNI A. TAPANG,

PH. D., Agham, ELMER C. LABOG, Kilusang Mayo In 1988, Tubbataha was declared a National Marine
Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE Park by virtue of Proclamation No. 306 issued by
ENRIQUE A. AFRICA, THERESA A. CONCEPCION, President Corazon C. Aquino on August 11, 1988.
MARY JOAN A. GUAN, NESTOR T. BAGUINON, Located in the middle of Central Sulu Sea, 150
PH.D., A. EDSEL F. TUPAZ, Petitioners, kilometers southeast of Puerto Princesa City,
vs. Tubbataha lies at the heart of the Coral Triangle, the
SCOTT H. SWIFT in his capacity as Commander of global center of marine biodiversity.
the US. 7th Fleet, MARK A. RICE in his capacity as
Commanding Officer of the USS Guardian, In 1993, Tubbataha was inscribed by the United
PRESIDENT BENIGNO S. AQUINO III in his Nations Educational Scientific and Cultural
capacity as Commander-in-Chief of the Armed Organization (UNESCO) as a World Heritage Site. It
Forces of the Philippines, HON. ALBERT F. DEL was recognized as one of the Philippines' oldest
ROSARIO, Secretary, pepartment of Foreign ecosystems, containing excellent examples of pristine
Affair.s, HON. PAQUITO OCHOA, JR., reefs and a high diversity of marine life. The 97,030-
Executiv~.:Secretary, Office of the President, . hectare protected marine park is also an important
HON. VOLTAIRE T. GAZMIN, Secretary, habitat for internationally threatened and endangered
Department of National Defense, HON. RAMON marine species. UNESCO cited Tubbataha's
JESUS P. P AJE, Secretary, Department of outstanding universal value as an important and
Environment and Natural Resoz!rces, VICE significant natural habitat for in situ conservation of
ADMIRAL JOSE LUIS M. ALANO, Philippine Navy biological diversity; an example representing
Flag Officer in Command, Armed Forces of the significant on-going ecological and biological
Philippines, ADMIRAL RODOLFO D. ISO RENA, processes; and an area of exceptional natural beauty
Commandant, Philippine Coast Guard, and aesthetic importance. 2

COMMODORE ENRICO EFREN EVANGELISTA,

Philippine Coast Guard Palawan, MAJOR GEN. On April 6, 2010, Congress passed Republic Act
VIRGILIO 0. DOMINGO, Commandant of Armed (R.A.) No. 10067,  otherwise known as the
3

Forces of the Philippines Command and LT. GEN. "Tubbataha Reefs Natural Park (TRNP) Act of 2009"
TERRY G. ROBLING, US Marine Corps Forces. "to ensure the protection and conservation of the
Pacific and Balikatan 2013 Exercise Co- globally significant economic, biological, sociocultural,
Director, Respondents. educational and scientific values of the Tubbataha
Reefs into perpetuity for the enjoyment of present and
DECISION future generations." Under the "no-take" policy, entry
into the waters of TRNP is strictly regulated and many
VILLARAMA, JR, J.: human activities are prohibited and penalized or fined,
including fishing, gathering, destroying and disturbing
Before us is a petition for the issuance of a Writ of the resources within the TRNP. The law likewise
Kalikasan with prayer for the issuance of a Temporary created the Tubbataha Protected Area Management
Board (TPAMB) which shall be the sole policy-making Domingo (AFP Commandant), collectively the
and permit-granting body of the TRNP. "Philippine respondents."

The USS Guardian is an Avenger-class mine The Petition

countermeasures ship of the US Navy. In December
2012, the US Embassy in the Philippines requested Petitioners claim that the grounding, salvaging and
diplomatic clearance for the said vessel "to enter and post-salvaging operations of the USS Guardian cause
exit the territorial waters of the Philippines and to and continue to cause environmental damage of such
arrive at the port of Subic Bay for the purpose of magnitude as to affect the provinces of Palawan,
routine ship replenishment, maintenance, and crew Antique, Aklan, Guimaras, Iloilo, Negros Occidental,
liberty."  On January 6, 2013, the ship left Sasebo,
4
Negros Oriental, Zamboanga del Norte, Basilan, Sulu,
Japan for Subic Bay, arriving on January 13, 2013 and Tawi-Tawi, which events violate their
after a brief stop for fuel in Okinawa, Japan.
1âwphi1
constitutional rights to a balanced and healthful
ecology. They also seek a directive from this Court for
On January 15, 2013, the USS Guardian departed the institution of civil, administrative and criminal suits
Subic Bay for its next port of call in Makassar, for acts committed in violation of environmental laws
Indonesia. On January 17, 2013 at 2:20 a.m. while and regulations in connection with the grounding
transiting the Sulu Sea, the ship ran aground on the incident.
northwest side of South Shoal of the Tubbataha
Reefs, about 80 miles east-southeast of Palawan. No Specifically, petitioners cite the following violations
cine was injured in the incident, and there have been committed by US respondents under R.A. No. 10067:
no reports of leaking fuel or oil. unauthorized entry (Section 19); non-payment of
conservation fees (Section 21 ); obstruction of law
On January 20, 2013, U.S. 7th Fleet Commander, enforcement officer (Section 30); damages to the reef
Vice Admiral Scott Swift, expressed regret for the (Section 20); and destroying and disturbing resources
incident in a press statement.  Likewise, US
5
(Section 26[g]). Furthermore, petitioners assail certain
Ambassador to the Philippines Harry K. Thomas, Jr., provisions of the Visiting Forces Agreement (VFA)
in a meeting at the Department of Foreign Affairs which they want this Court to nullify for being
(DFA) on February 4, "reiterated his regrets over the unconstitutional.
grounding incident and assured Foreign Affairs
Secretazy Albert F. del Rosario that the United States The numerous reliefs sought in this case are set forth
will provide appropriate compensation for damage to in the final prayer of the petition, to wit:
the reef caused by the ship."  By March 30, 2013, the
6
WHEREFORE, in view of the foregoing, Petitioners
US Navy-led salvage team had finished removing the respectfully pray that the Honorable Court: 1.
last piece of the grounded ship from the coral reef. Immediately issue upon the filing of this petition a
Temporary Environmental Protection Order (TEPO)
On April 1 7, 2013, the above-named petitioners on and/or a Writ of Kalikasan, which shall, in particular,
their behalf and in representation of their respective
sector/organization and others, including minors or a. Order Respondents and any person acting
generations yet unborn, filed the present petition on their behalf, to cease and desist all
agairtst Scott H. Swift in his capacity as Commander operations over the Guardian grounding
of the US 7th Fleet, Mark A. Rice in his capacity as incident;
Commanding Officer of the USS Guardian and Lt.
Gen. Terry G. Robling, US Marine Corps Forces, b. Initially demarcating the metes and bounds
Pacific and Balikatan 2013 Exercises Co-Director of the damaged area as well as an additional
("US respondents"); President Benigno S. Aquino III buffer zone;
in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines (AFP), DF A Secretary
c. Order Respondents to stop all port calls and
Albert F. Del Rosario, Executive Secretary Paquito
war games under 'Balikatan' because of the
Ochoa, Jr., Secretary Voltaire T. Gazmin (Department
absence of clear guidelines, duties, and
of National Defense), Secretary Jesus P. Paje
liability schemes for breaches of those duties,
(Department of Environment and Natural Resources),
and require Respondents to assume
Vice-Admiral Jose Luis M. Alano (Philippine Navy
responsibility for prior and future
Flag Officer in Command, AFP), Admiral Rodolfo D.
environmental damage in general, and
Isorena (Philippine Coast Guard Commandant),
environmental damage under the Visiting
Commodore Enrico Efren Evangelista (Philippine
Forces Agreement in particular.
Coast Guard-Palawan), and Major General Virgilio 0.
d. Temporarily define and describe allowable Tubbataha Reef absent a just settlement
activities of ecotourism, diving, recreation, and approved by the Honorable Court;
limited commercial activities by fisherfolk and
indigenous communities near or around the h. Require Respondents to engage in
TRNP but away from the damaged site and an stakeholder and LOU consultations in
additional buffer zone; accordance with the Local Government Code
and R.A. 10067;
2. After summary hearing, issue a Resolution
extending the TEPO until further orders of the i. Require Respondent US officials and their
Court; representatives to place a deposit to the
TRNP Trust Fund defined under Section 17 of
3. After due proceedings, render a Decision RA 10067 as a bona .fide gesture towards full
which shall include, without limitation: reparations;

a. Order Respondents Secretary of Foreign j. Direct Respondents to undertake measures

Affairs, following the dispositive portion of to rehabilitate the areas affected by the
Nicolas v. Romulo, "to forthwith negotiate with grounding of the Guardian in light of
the United States representatives for the Respondents' experience in the Port Royale
appropriate agreement on [environmental grounding in 2009, among other similar
guidelines and environmental accountability] grounding incidents;
under Philippine authorities as provided in Art.
V[] of the VFA ... " k. Require Respondents to regularly publish
on a quarterly basis and in the name of
b. Direct Respondents and appropriate transparency and accountability such
agencies to commence administrative, civil, environmental damage assessment,
and criminal proceedings against erring valuation, and valuation methods, in all stages
officers and individuals to the full extent of the of negotiation;
law, and to make such proceedings public;
l. Convene a multisectoral technical working
c. Declare that Philippine authorities may group to provide scientific and technical
exercise primary and exclusive criminal support to the TPAMB;
jurisdiction over erring U.S. personnel under
the circumstances of this case; m. Order the Department of Foreign Affairs,
Department of National Defense, and the
d. Require Respondents to pay just and Department of Environment and Natural
reasonable compensation in the settlement of Resources to review the Visiting Forces
all meritorious claims for damages caused to Agreement and the Mutual Defense Treaty to
the Tubbataha Reef on terms and conditions consider whether their provisions allow for the
no less severe than those applicable to other exercise of erga omnes rights to a balanced
States, and damages for personal injury or and healthful ecology and for damages which
death, if such had been the case; follow from any violation of those rights;

e. Direct Respondents to cooperate in n. Narrowly tailor the provisions of the Visiting

providing for the attendance of witnesses and Forces Agreement for purposes of protecting
in the collection and production of evidence, the damaged areas of TRNP;
including seizure and delivery of objects
connected with the offenses related to the o. Declare the grant of immunity found in
grounding of the Guardian; Article V ("Criminal Jurisdiction") and Article VI
of the Visiting Forces Agreement
f. Require the authorities of the Philippines unconstitutional for violating equal protection
and the United States to notify each other of and/or for violating the preemptory norm of
the disposition of all cases, wherever heard, nondiscrimination incorporated as part of the
related to the grounding of the Guardian; law of the land under Section 2, Article II, of
the Philippine Constitution;
g. Restrain Respondents from proceeding with
any purported restoration, repair, salvage or p. Allow for continuing discovery measures;
post salvage plan or plans, including cleanup
plans covering the damaged area of the
 q. Supervise marine wildlife rehabilitation in transcendental importance with intergenerational
the Tubbataha Reefs in all other respects; and implications.  Such right carries with it the correlative
1âwphi1

duty to refrain from impairing the environment. 14

4. Provide just and equitable environmental

rehabilitation measures and such other reliefs On the novel element in the class suit filed by the
as are just and equitable under the petitioners minors in Oposa, this Court ruled that not
premises.  (Underscoring supplied.)
7
only do ordinary citizens have legal standing to sue
for the enforcement of environmental rights, they can
Since only the Philippine respondents filed their do so in representation of their own and future
comment  to the petition, petitioners also filed a
8 generations. Thus:
motion for early resolution and motion to proceed ex
parte against the US respondents. 9
Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find
Respondents' Consolidated Comment no difficulty in ruling that they can, for themselves, for
others of their generation and for the succeeding
In their consolidated comment with opposition to the generations, file a class suit. Their personality to sue
application for a TEPO and ocular inspection and in behalf of the succeeding generations can only be
production orders, respondents assert that: ( 1) the based on the concept of intergenerational
grounds relied upon for the issuance of a TEPO or responsibility insofar as the right to a balanced and
writ of Kalikasan have become fait accompli as the healthful ecology is concerned. Such a right, as
salvage operations on the USS Guardian were hereinafter expounded, considers the "rhythm and
already completed; (2) the petition is defective in form harmony of nature." Nature means the created world
and substance; (3) the petition improperly raises in its entirety. Such rhythm and harmony
issues involving the VFA between the Republic of the indispensably include, inter alia, the judicious
Philippines and the United States of America; and ( 4) disposition, utilization, management, renewal and
the determination of the extent of responsibility of the conservation of the country's forest, mineral, land,
US Government as regards the damage to the waters, fisheries, wildlife, off-shore areas and other
Tubbataha Reefs rests exdusively with the executive natural resources to the end that their exploration,
branch. development and utilization be equitably accessible to
the present a:: well as future generations. Needless to
say, every generation has a responsibility to the next
The Court's Ruling
to preserve that rhythm and harmony for the full
1:njoyment of a balanced and healthful ecology. Put a
As a preliminary matter, there is no dispute on the little differently, the minors' assertion of their right to a
legal standing of petitioners to file the present petition. sound environment constitutes, at the same time, the
performance of their obligation to ensure the
Locus standi is "a right of appearance in a court of protection of that right for the generations to
justice on a given question."  Specifically, it is "a
10
come.  (Emphasis supplied.)
15

party's personal and substantial interest in a case

where he has sustained or will sustain direct injury as The liberalization of standing first enunciated in
a result" of the act being challenged, and "calls for Oposa, insofar as it refers to minors and generations
more than just a generalized grievance."  However,
11
yet unborn, is now enshrined in the Rules which
the rule on standing is a procedural matter which this allows the filing of a citizen suit in environmental
Court has relaxed for non-traditional plaintiffs like cases. The provision on citizen suits in the Rules
ordinary citizens, taxpayers and legislators when the "collapses the traditional rule on personal and direct
public interest so requires, such as when the subject interest, on the principle that humans are stewards of
matter of the controversy is of transcendental nature." 16

importance, of overreaching significance to society, or

of paramount public interest. 12

Having settled the issue of locus standi, we shall

address the more fundamental question of whether
In the landmark case of Oposa v. Factoran, Jr.,  we 13
this Court has jurisdiction over the US respondents
recognized the "public right" of citizens to "a balanced who did not submit any pleading or manifestation in
and healthful ecology which, for the first time in our this case.
constitutional history, is solemnly incorporated in the
fundamental law." We declared that the right to a
The immunity of the State from suit, known also as
balanced and healthful ecology need not be written in
the doctrine of sovereign immunity or non-suability of
the Constitution for it is assumed, like other civil and
the State,  is expressly provided in Article XVI of the
17

polittcal rights guaranteed in the Bill of Rights, to exist

1987 Constitution which states:
from the inception of mankind and it is an issue of
Section 3. The State may not be sued without its The Judicial power of the United States shall not be
consent. construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
In United States of America v. Judge Guinto,  we 18 States by Citizens of another State, or by Citizens or
discussed the principle of state immunity from suit, as Subjects of any Foreign State.
follows:
In the case of Minucher v. Court of Appeals,  we 20

The rule that a state may not be sued without its further expounded on the immunity of foreign states
consent, now · expressed in Article XVI, Section 3, of from the jurisdiction of local courts, as follows:
the 1987 Constitution, is one of the generally
accepted principles of international law that we have The precept that a State cannot be sued in the courts
adopted as part of the law of our land under Article II, of a foreign state is a long-standing rule of customary
Section 2. x x x. international law then closely identified with the
personal immunity of a foreign sovereign from suit
Even without such affirmation, we would still be bound and, with the emergence of democratic states, made
by the generally accepted principles of international to attach not just to the person of the head of state, or
law under the doctrine of incorporation. Under this his representative, but also distinctly to the state itself
doctrine, as accepted by the majority of states, such in its sovereign capacity. If the acts giving rise to a
principles are deemed incorporated in the law of suit arc those of a foreign government done by its
every civilized state as a condition and consequence foreign agent, although not necessarily a diplomatic
of its membership in the society of nations. Upon its personage, but acting in his official capacity, the
admission to such society, the state is automatically complaint could be barred by the immunity of the
obligated to comply with these principles in its foreign sovereign from suit without its consent. Suing
relations with other states. a representative of a state is believed to be, in effect,
suing the state itself. The proscription is not accorded
As applied to the local state, the doctrine of state for the benefit of an individual but for the State, in
immunity is based on the justification given by Justice whose service he is, under the maxim -par in parem,
Holmes that ''there can be no legal right against the non habet imperium -that all states are soverr~ign
authority which makes the law on which the right equals and cannot assert jurisdiction over one
depends." [Kawanakoa v. Polybank, 205 U.S. 349] another. The implication, in broad terms, is that if the
There are other practical reasons for the enforcement judgment against an official would rec 1uire the state
of the doctrine. In the case of the foreign state sought itself to perform an affirmative act to satisfy the award,
to be impleaded in the local jurisdiction, the added such as the appropriation of the amount needed to
inhibition is expressed in the maxim par in parem, non pay the damages decreed against him, the suit must
habet imperium. All states are sovereign equals and be regarded as being against the state itself, although
cannot assert jurisdiction over one another. A contrary it has not been formally impleaded.  (Emphasis 21

disposition would, in the language of a celebrated supplied.)

case, "unduly vex the peace of nations." [De Haber v.
Queen of Portugal, 17 Q. B. 171] In the same case we also mentioned that in the case
of diplomatic immunity, the privilege is not an
While the doctrine appears to prohibit only suits immunity from the observance of the law of the
against the state without its consent, it is also territorial sovereign or from ensuing legal liability; it is,
applicable to complaints filed against officials of the rather, an immunity from the exercise of territorial
state for acts allegedly performed by them in the jurisdiction.
22

discharge of their duties. The rule is that if the

judgment against such officials will require the state In United States of America v. Judge Guinto,  one of23

itself to perform an affirmative act to satisfy the same,. the consolidated cases therein involved a Filipino
such as the appropriation of the amount needed to employed at Clark Air Base who was arrested
pay the damages awarded against them, the suit following a buy-bust operation conducted by two
must be regarded as against the state itself although officers of the US Air Force, and was eventually
it has not been formally impleaded. [Garcia v. Chief of dismissed from his employment when he was
Staff, 16 SCRA 120] In such a situation, the state may charged in court for violation of R.A. No. 6425. In a
move to dismiss the comp.taint on the ground that it complaint for damages filed by the said employee
has been filed without its consent.  (Emphasis
19 against the military officers, the latter moved to
supplied.) dismiss the case on the ground that the suit was
against the US Government which had not given its
Under the American Constitution, the doctrine is consent. The RTC denied the motion but on a petition
expressed in the Eleventh Amendment which reads: for certiorari and prohibition filed before this Court, we
reversed the RTC and dismissed the complaint. We protection afforded the officers and agents of the
held that petitioners US military officers were acting in government is removed the moment they are sued in
the exercise of their official functions when they their individual capacity. This situation usually arises
conducted the buy-bust operation against the where the public official acts without authority or in
complainant and thereafter testified against him at his excess of the powers vested in him. It is a well-settled
trial. It follows that for discharging their duties as principle of law that a public official may be liable in
agents of the United States, they cannot be directly his personal private capacity for whatever damage he
impleaded for acts imputable to their principal, which may have caused by his act done with malice and in
has not given its consent to be sued. bad faith, or beyond the scope of his authority or
jurisdiction.  (Emphasis supplied.) In this case, the US
26

This traditional rule of State immunity which exempts respondents were sued in their official capacity as
a State from being sued in the courts of another State commanding officers of the US Navy who had control
without the former's consent or waiver has evolved and supervision over the USS Guardian and its crew.
into a restrictive doctrine which distinguishes The alleged act or omission resulting in the
sovereign and governmental acts (Jure imperil") from unfortunate grounding of the USS Guardian on the
private, commercial and proprietary acts (Jure TRNP was committed while they we:re performing
gestionis). Under the restrictive rule of State official military duties. Considering that the
immunity, State immunity extends only to acts Jure satisfaction of a judgment against said officials will
imperii. The restrictive application of State immunity is require remedial actions and appropriation of funds by
proper only when the proceedings arise out of the US government, the suit is deemed to be one
commercial transactions of the foreign sovereign, its against the US itself. The principle of State immunity
commercial activities or economic affairs. 24 therefore bars the exercise of jurisdiction by this Court
over the persons of respondents Swift, Rice and
In Shauf v. Court of Appeals,  we discussed the
25 Robling.
limitations of the State immunity principle, thus:
During the deliberations, Senior Associate Justice
It is a different matter where the public official is made Antonio T. Carpio took the position that the conduct of
to account in his capacity as such for acts contrary to the US in this case, when its warship entered a
law and injurious to the rights of plaintiff. As was restricted area in violation of R.A. No. 10067 and
clearly set forth by JustiGe Zaldivar in Director of the caused damage to the TRNP reef system, brings the
Bureau of Telecommunications, et al. vs. Aligaen, matter within the ambit of Article 31 of the United
etc., et al. : "Inasmuch as the State authorizes only Nations Convention on the Law of the Sea
legal acts by its officers, unauthorized acts of (UNCLOS). He explained that while historically,
government officials or officers are not acts of the warships enjoy sovereign immunity from suit as
State, and an action against the officials or officers by extensions of their flag State, Art. 31 of the UNCLOS
one whose rights have been invaded or violated by creates an exception to this rule in cases where they
such acts, for the protection of his rights, is not a suit fail to comply with the rules and regulations of the
against the State within the rule of immunity of the coastal State regarding passage through the latter's
State from suit. In the same tenor, it has been said internal waters and the territorial sea.
that an action at law or suit in equity against a State
officer or the director of a State department on the According to Justice Carpio, although the US to date
ground that, while claiming to act for the State, he has not ratified the UNCLOS, as a matter of long-
violates or invades the personal and property rights of standing policy the US considers itself bound by
the plaintiff, under an unconstitutional act or under an customary international rules on the "traditional uses
assumption of authority which he does not have, is of the oceans" as codified in UNCLOS, as can be
not a suit against the State within the constitutional gleaned from previous declarations by former
provision that the State may not be sued without its Presidents Reagan and Clinton, and the US judiciary
consent." The rationale for this ruling is that the in the case of United States v. Royal Caribbean
doctrine of state immunity cannot be used as an Cruise Lines, Ltd.27

instrument for perpetrating an injustice.

The international law of the sea is generally defined
xxxx as "a body of treaty rules arid customary norms
governing the uses of the sea, the exploitation of its
The aforecited authorities are clear on the matter. resources, and the exercise of jurisdiction over
They state that the doctrine of immunity from suit will maritime regimes. It is a branch of public international
not apply and may not be invoked where the public law, regulating the relations of states with respect to
official is being sued in his private and personal the uses of the oceans."  The UNCLOS is a
28

capacity as an ordinary citizen. The cloak of multilateral treaty which was opened for signature on
December 10, 1982 at Montego Bay, Jamaica. It was
ratified by the Philippines in 1984 but came into force Article 32
on November 16, 1994 upon the submission of the Immunities of warships and other government ships
60th ratification. operated for non-commercial purposes

The UNCLOS is a product of international negotiation With such exceptions as are contained in subsection
that seeks to balance State sovereignty (mare A and in articles 30 and 31, nothing in this Convention
clausum) and the principle of freedom of the high affects the immunities of warships and other
seas (mare liberum).  The freedom to use the world's
29
government ships operated for non-commercial
marine waters is one of the oldest customary purposes. (Emphasis supplied.) A foreign warship's
principles of international law.  The UNCLOS gives to
30
unauthorized entry into our internal waters with
the coastal State sovereign rights in varying degrees resulting damage to marine resources is one situation
over the different zones of the sea which are: 1) in which the above provisions may apply. But what if
internal waters, 2) territorial sea, 3) contiguous zone, the offending warship is a non-party to the UNCLOS,
4) exclusive economic zone, and 5) the high seas. It as in this case, the US?
also gives coastal States more or less jurisdiction
over foreign vessels depending on where the vessel An overwhelming majority - over 80% -- of nation
is located. 31
states are now members of UNCLOS, but despite this
the US, the world's leading maritime power, has not
Insofar as the internal waters and territorial sea is ratified it.
concerned, the Coastal State exercises sovereignty,
subject to the UNCLOS and other rules of While the Reagan administration was instrumental in
international law. Such sovereignty extends to the air UNCLOS' negotiation and drafting, the U.S.
space over the territorial sea as well as to its bed and delegation ultimately voted against and refrained from
subsoil.32
signing it due to concerns over deep seabed mining
technology transfer provisions contained in Part XI. In
In the case of warships,  as pointed out by Justice
33
a remarkable, multilateral effort to induce U.S.
Carpio, they continue to enjoy sovereign immunity membership, the bulk of UNCLOS member states
subject to the following exceptions: cooperated over the succeeding decade to revise the
objection.able provisions. The revisions satisfied the
Article 30 Clinton administration, which signed the revised Part
Non-compliance by warships with the laws and XI implementing agreement in 1994. In the fall of
regulations of the coastal State 1994, President Clinton transmitted UNCLOS and the
Part XI implementing agreement to the Senate
If any warship does not comply with the laws and requesting its advice and consent. Despite consistent
regulations of the coastal State concerning passage support from President Clinton, each of his
through the territorial sea and disregards any request successors, and an ideologically diverse array of
for compliance therewith which is made to it, the stakeholders, the Senate has since withheld the
coastal State may require it to leave the territorial sea consent required for the President to internationally
immediately. bind the United States to UNCLOS.

Article 31 While UNCLOS cleared the Senate Foreign Relations

Responsibility of the flag State for damage caused by Committee (SFRC) during the 108th and 110th
a warship Congresses, its progress continues to be hamstrung
by significant pockets of political ambivalence over
U.S. participation in international institutions. Most
or other government ship operated for non-
recently, 111 th Congress SFRC Chairman Senator
commercial purposes
John Kerry included "voting out" UNCLOS for full
Senate consideration among his highest priorities.
The flag State shall bear international responsibility This did not occur, and no Senate action has been
for any loss or damage to the coastal State resulting taken on UNCLOS by the 112th Congress. 34

from the non-compliance by a warship or other

government ship operated for non-commercial
Justice Carpio invited our attention to the policy
purposes with the laws and regulations of the coastal
statement given by President Reagan on March 10,
State concerning passage through the territorial sea
1983 that the US will "recognize the rights of the other
or with the provisions of this Convention or other rules
, states in the waters off their coasts, as reflected in
of international law.
the convention [UNCLOS], so long as the rights and
freedom of the United States and others under
international law are recognized by such coastal
states", and President Clinton's reiteration of the US been actively supporting the country's efforts to
policy "to act in a manner consistent with its preserve our vital marine resources, would shirk from
[UNCLOS] provisions relating to traditional uses of the its obligation to compensate the damage caused by
oceans and to encourage other countries to do its warship while transiting our internal waters. Much
likewise." Since Article 31 relates to the "traditional less can we comprehend a Government exercising
uses of the oceans," and "if under its policy, the US leadership in international affairs, unwilling to comply
'recognize[s] the rights of the other states in the with the UNCLOS directive for all nations to cooperate
waters off their coasts,"' Justice Carpio postulates that in the global task to protect and preserve the marine
"there is more reason to expect it to recognize the environment as provided in Article 197, viz:
rights of other states in their internal waters, such as
the Sulu Sea in this case." Article 197
Cooperation on a global or regional basis
As to the non-ratification by the US, Justice Carpio
emphasizes that "the US' refusal to join the UN CLOS States shall cooperate on a global basis and, as
was centered on its disagreement with UN CLOS' appropriate, on a regional basis, directly or through
regime of deep seabed mining (Part XI) which competent international organizations, in formulating
considers the oceans and deep seabed commonly and elaborating international rules, standards and
owned by mankind," pointing out that such "has recommended practices and procedures consistent
nothing to do with its [the US'] acceptance of with this Convention, for the protection and
customary international rules on navigation." preservation of the marine environment, taking into
account characteristic regional features.
It may be mentioned that even the US Navy Judge
Advocate General's Corps publicly endorses the In fine, the relevance of UNCLOS provisions to the
ratification of the UNCLOS, as shown by the following present controversy is beyond dispute. Although the
statement posted on its official website: said treaty upholds the immunity of warships from the
jurisdiction of Coastal States while navigating
The Convention is in the national interest of the the.latter's territorial sea, the flag States shall be
United States because it establishes stable maritime required to leave the territorial '::;ea immediately if
zones, including a maximum outer limit for territorial they flout the laws and regulations of the Coastal
seas; codifies innocent passage, transit passage, and State, and they will be liable for damages caused by
archipelagic sea lanes passage rights; works against their warships or any other government vessel
"jurisdictiomtl creep" by preventing coastal nations operated for non-commercial purposes under Article
from expanding their own maritime zones; and 31.
reaffirms sovereign immunity of warships, auxiliaries
anJ government aircraft. Petitioners argue that there is a waiver of immunity
from suit found in the VFA. Likewise, they invoke
xxxx federal statutes in the US under which agencies of the
US have statutorily waived their immunity to any
Economically, accession to the Convention would action. Even under the common law tort claims,
support our national interests by enhancing the ability petitioners asseverate that the US respondents are
of the US to assert its sovereign rights over the liable for negligence, trespass and nuisance.
resources of one of the largest continental shelves in
the world. Further, it is the Law of the Sea Convention We are not persuaded.
that first established the concept of a maritime
Exclusive Economic Zone out to 200 nautical miles, The VFA is an agreement which defines the treatment
and recognized the rights of coastal states to of United States troops and personnel visiting the
conserve and manage the natural resources in this Philippines to promote "common security interests"
Zone. 35
between the US and the Philippines in the region. It
provides for the guidelines to govern such visits of
We fully concur with Justice Carpio's view that non- military personnel, and further defines the rights of the
membership in the UNCLOS does not mean that the United States and the Philippine government in the
US will disregard the rights of the Philippines as a matter of criminal jurisdiction, movement of vessel
Coastal State over its internal waters and territorial and aircraft, importation and exportation of
sea. We thus expect the US to bear "international equipment, materials and supplies.  The invocation of
36

responsibility" under Art. 31 in connection with the US federal tort laws and even common law is thus
USS Guardian grounding which adversely affected improper considering that it is the VF A which governs
the Tubbataha reefs. Indeed, it is difficult to imagine disputes involving US military ships and crew
that our long-time ally and trading partner, which has
navigating Philippine waters in pursuance of the to monitor strict compliance with the decision
objectives of the agreement. and orders of the court;

As it is, the waiver of State immunity under the VF A (d) Directing the respondent public official,
pertains only to criminal jurisdiction and not to special government agency, or private person or
civil actions such as the present petition for issuance entity to make periodic reports on the
of a writ of Kalikasan. In fact, it can be inferred from execution of the final judgment; and
Section 17, Rule 7 of the Rules that a criminal case
against a person charged with a violation of an (e) Such other reliefs which relate to the right
environmental law is to be filed separately: of the people to a balanced and healthful
ecology or to the protection, preservation,
SEC. 17. Institution of separate actions.-The filing of a rehabilitation or restoration of the
petition for the issuance of the writ of kalikasan shall environment, except the award of damages to
not preclude the filing of separate civil, criminal or individual petitioners. (Emphasis supplied.)
administrative actions.
We agree with respondents (Philippine officials) in
In any case, it is our considered view that a ruling on asserting that this petition has become moot in the
the application or non-application of criminal sense that the salvage operation sought to be
jurisdiction provisions of the VF A to US personnel enjoined or restrained had already been
who may be found responsible for the grounding of accomplished when petitioners sought recourse from
the USS Guardian, would be premature and beyond this Court. But insofar as the directives to Philippine
the province of a petition for a writ of Kalikasan. We respondents to protect and rehabilitate the coral reef
also find it unnecessary at this point to determine stn icture and marine habitat adversely affected by
whether such waiver of State immunity is indeed the grounding incident are concerned, petitioners are
absolute. In the same vein, we cannot grant damages entitled to these reliefs notwithstanding the
which have resulted from the violation of completion of the removal of the USS Guardian from
environmental laws. The Rules allows the recovery of the coral reef. However, we are mindful of the fact
damages, including the collection of administrative that the US and Philippine governments both
fines under R.A. No. 10067, in a separate civil suit or expressed readiness to negotiate and discuss the
that deemed instituted with the criminal action matter of compensation for the damage caused by the
charging the same violation of an environmental law. 37
USS Guardian. The US Embassy has also declared it
is closely coordinating with local scientists and
Section 15, Rule 7 enumerates the reliefs which may experts in assessing the extent of the damage and
be granted in a petition for issuance of a writ of appropriate methods of rehabilitation.
Kalikasan, to wit:
Exploring avenues for settlement of environmental
SEC. 15. Judgment.-Within sixty (60) days from the cases is not proscribed by the Rules. As can be
time the petition is submitted for decision, the court gleaned from the following provisions, mediation and
shall render judgment granting or denying the settlement are available for the consideration of the
privilege of the writ of kalikasan. parties, and which dispute resolution methods are
encouraged by the court, to wit:
The reliefs that may be granted under the writ are the
following: RULE3

(a) Directing respondent to permanently xxxx

cease and desist from committing acts or
neglecting the performance of a duty in SEC. 3. Referral to mediation.-At the start of the pre-
violation of environmental laws resulting in trial conference, the court shall inquire from the
environmental destruction or damage; parties if they have settled the dispute; otherwise, the
court shall immediately refer the parties or their
(b) Directing the respondent public official, counsel, if authorized by their clients, to the Philippine
govemment agency, private person or entity to Mediation Center (PMC) unit for purposes of
protect, preserve, rehabilitate or restore the mediation. If not available, the court shall refer the
environment; case to the clerk of court or legal researcher for
mediation.
(c) Directing the respondent public official,
government agency, private person or entity
Mediation must be conducted within a non-extendible Philippine government entities, non-governmental
period of thirty (30) days from receipt of notice of organizations, and scientific experts from Philippine
referral to mediation. universities." 39

The mediation report must be submitted within ten A rehabilitation or restoration program to be
(10) days from the expiration of the 30-day period. implemented at the cost of the violator is also a major
relief that may be obtained under a judgment
SEC. 4. Preliminary conference.-If mediation fails, the rendered in a citizens' suit under the Rules, viz:
court will schedule the continuance of the pre-trial.
Before the scheduled date of continuance, the court RULES
may refer the case to the branch clerk of court for a
preliminary conference for the following purposes: SECTION 1. Reliefs in a citizen suit.-If warranted, the
court may grant to the plaintiff proper reliefs which
(a) To assist the parties in reaching a settlement; shall include the protection, preservation or
rehabilitation of the environment and the payment of
xxxx attorney's fees, costs of suit and other litigation
expenses. It may also require the violator to submit a
SEC. 5. Pre-trial conference; consent decree.-The program of rehabilitation or restoration of the
judge shall put the parties and their counsels under environment, the costs of which shall be borne by the
oath, and they shall remain under oath in all pre-trial violator, or to contribute to a special trust fund for that
conferences. purpose subject to the control of the court. 1âwphi1

The judge shall exert best efforts to persuade the In the light of the foregoing, the Court defers to the
parties to arrive at a settlement of the dispute. The Executive Branch on the matter of compensation and
judge may issue a consent decree approving the rehabilitation measures through diplomatic channels.
agreement between the parties in accordance with Resolution of these issues impinges on our relations
law, morals, public order and public policy to protect with another State in the context of common security
the right of the people to a balanced and healthful interests under the VFA. It is settled that "[t]he
ecology. conduct of the foreign relations of our government is
committed by the Constitution to the executive and
legislative-"the political" --departments of the
xxxx
government, and the propriety of what may be done in
the exercise of this political power is not subject to
SEC. 10. Efforts to settle.- The court shall endeavor to judicial inquiry or decision."
40

make the parties to agree to compromise or settle in

accordance with law at any stage of the proceedings
On the other hand, we cannot grant the additional
before rendition of judgment. (Underscoring supplied.)
reliefs prayed for in the petition to order a review of
the VFA and to nullify certain immunity provisions
The Court takes judicial notice of a similar incident in thereof.
2009 when a guided-missile cruiser, the USS Port
Royal, ran aground about half a mile off the Honolulu
As held in BAYAN (Bagong Alyansang Makabayan) v.
Airport Reef Runway and remained stuck for four
Exec. Sec. Zamora,  the VFA was duly concurred in
41

days. After spending $6.5 million restoring the coral

by the Philippine Senate and has been recognized as
reef, the US government was reported to have paid
a treaty by the United States as attested and certified
the State of Hawaii $8.5 million in settlement over
by the duly authorized representative of the United
coral reef damage caused by the grounding. 38

States government. The VF A being a valid and

binding agreement, the parties are required as a
To underscore that the US government is prepared to matter of international law to abide by its terms and
pay appropriate compensation for the damage caused provisions.  The present petition under the Rules is
42

by the USS Guardian grounding, the US Embassy in not the proper remedy to assail the constitutionality of
the Philippines has announced the formation of a US its provisions. WHEREFORE, the petition for the
interdisciplinary scientific team which will "initiate issuance of the privilege of the Writ of Kalikasan is
discussions with the Government of the Philippines to hereby DENIED.
review coral reef rehabilitation options in Tubbataha,
based on assessments by Philippine-based marine
No pronouncement as to costs.
scientists." The US team intends to "help assess
damage and remediation options, in coordination with
the Tubbataha Management Office, appropriate SO ORDERED.
MARTIN S. VILLARAMA, JR. Footnotes
Associate Justice
* On official leave.
WE CONCUR:
** No part.
See Concurring Opinion
MARIA LOURDES P. A. SERENO  T ubbataha Reefs Natural
1
Park -
Chief Justice <http://tubbatahareef org>.

2
 Id.
ANTONIO T. PRESBITERO J.
CARPIO VELASCO, JR.
Associate Justice Associate Justice  "AN
3
ACT ESTABLISHING THE
TUBBATAHA REEFS NATURAL PARK IN
THE PROVINCE OF PALAWAN AS A
TERESITA J.
PROTECTED AREA UNDER THE NIPAS
LEONARDO-DE ARTURO D. BRION
ACT (R.A. 7586) AND THE STRATEGIC
CASTRO Associate Justice
ENVIRONMENTAL PLAN (SEP) FOR
Associate Justice
PALAWAN ACT (R.A. 7611), PROVIDING
FOR ITS MANAGEMENT AND FOR OTHER
DIOSDADO M. LUCAS P. PURPOSES."
PERALTA BERSAMIN
Associate Justice Associate Justice 4
 Rollo, pp. 194-199.

MARIANO C. DEL JOSE PORTUGAL  <

5

CASTILLO PEREZ http://manila.usembassy.gov/pressphotorelea

Associate Justice Associate Justice ses2013/navy-commander-expresses-regret-
concerning-uss-guardian-grounding.html>.
(On official leave)
BIENVENIDO L.
JOSE CATRAL 6
 "Joint Statement Between The Philippines
REYES
MENDOZA* And The United States On The USS Guardian
Associate Justice
Associate Justice Grounding On Tubbatata Reef," February 5,
2013. Accessed. at US Embassy website
See Separate -<http://manila.usembassy.gov/jointstatement
ESTELA M. Concurring Opinion guardiantubbataha.html>.
PERLAS-BERNABE MARVIC M.V.F.
Associate Justice LEONEN 7
 Rollo, pp. 89-92.
Associate Justice
8
 Id. at 156-191. In a letter dated 27 May 2013,
the DFA's Office of Legal Affairs informed this
(No Part)
Court that it has received from the Embassy of
FRANCIS H. JARDELEZA**
the United States the Notice sent by this
Associate Justice
Court, with a request to return the same. It
said that the US Embassy "asserts that it is
CERTIFICATION not an agent for the service of process upon
the individuals named in court documents,
Pursuant to Section 13, Article VIII of the 1987 and that the transmission of the Court
Constitution, it is hereby certified that the conclusions documents should have been done through
in the above Decision had been reached in diplomatic channels." (Id. at 255.)
consultation before the case was assigned to the
writer of the opinion of the Court. 9
 Id. at 215-247.

MARIA LOURDES P. A. SERENO  Bayan Muna v. Romulo, G.R. No. 159618,

10

Chief Justice February 1, 2011, 641 SCRA 244, 254, citing

David v. Macapagal-Arroyo, 522 Phil. 705,
755 (2006).
  Id., citing Jumamil v. Cafe, 507 Phil. 455,
11
 Bertrand Theodor L. Santos, "Untangling a
29

465 (2005), citing Integrated Bar of the Tangled Net of Confusion: Reconciling the
Philippines v. Zamora, 392 Phil. 6I8, 632-633 Philippine Fishery Poaching Law and the
(2000). UNCLOS' World Bulletin, Vol. 18: 83-116
(July-December 2002), p. 96.
 Biraogo v. Philippine Truth Commission
12

of2010, G.R. Nos. 192935 & 193036,  Anne Bardin, "Coastal State's Jurisdiction
30

December 7, 2010, 637 SCRA 78, 151, citing Over Foreign Vessels" 14 Pace Int'!. Rev. 27,
Social Justice Society (SJS) v. Dangerous 28 (2002).
Drugs Board, et al., 591 Phil. 393, 404 (2008);
Tatad v. Secretary of the Department of  Id. at 29.
31

Energy, 346 Phil. 321 (1997) and De Guia v.

COMELEC, G.R. No. 104712, May 6, 1992,  Art. 2, UNCLOS.
32

208 SCRA 420, 422.

 Art. 29 of UNCLOS defines warship as "a
33

 G.R. No. 101083, July 30, 1993, 224 SCRA

13
ship belonging to the armed forces of a State
792. bearing the external marks distinguishing
such ships of its nationality, under the
 Id. at 804-805.
14
command of an officer duly commissioned by
the government of the State and whose name
 Id. at 802-803.
15
appears in the appropriate service list or its
equivalent, and manned by a crew which is
 See ANNOTATION TO THE RULES OF
16 under regular armed forces discipline."
PROCEDURE FOR ENVIRONMENTAL
CASES ..  Commander Robert C. "Rock" De Tolve,
34

JAGC, USN, "At What Cost? Americas

 Air Transportation Office v. Ramos, G.R. No.
17 UNCLOS Allergy in the Time of 'Lav.fare'", 61
159402, February 23, 2011, 644 SCRA 36, Naval L. Rev. 1, 3 (2012).
41.
 <http://www.jag.navy.mil/organizationlcode1
35

 261 Phil. 777 (1990).

18 0lawofthesea.htm>.

 Id. at 790-792.
19  See
36
BAYAN (Bagong Alyansang
Makabayan) v. Exec. Sec. Zamora, 396 Phil.
 445 Phil. 250 (2003).
20 623, 652 (2000).

 Id. at 269-270. Citations omitted.

21  Rule 10, RULES OF PROCEDURE FOR
37

ENVIRONMENTAL CASES.
 Id. at 268, citing J.L. Brierly, "The Law of
22

Nations," Oxford University Press, 6th Edition,  USS

38
Port Royal (CG73)" -
1963, p. 244. <http://navysite.de/cg/cg73.html>; "USS Port
Royal Returns to Homeport", Navy Military
Home Page, Story Number NNS0902 l l-02
 Supra note 18, at 788-789 & 797.
23

Release Date: 2/11/2009 6:00 AM

-<http://www.navymillsubmit/display.asp?
 United States of America v. Ruiz, 221 Phil.
24
story_id=42502>; "Navy, state reach
179, 182-183 & 184 (1985). settlement on USS Port Royal damage'',
posted Feb. 05, 2011 8:26 AM - <http:/!
 G.R. No. 90314, November 27, 1990, 191
25
www.hawaiinewsnow.com!
SCRA 713. story/13974224/navystate-reach-settlement-
on-uss-port-royal-reef-damage>.
 Id. at 727-728.
26

 <http://manila.usembassy.gov/usgtargeteda
39

 24 F Supp. 2d 155, 159 (D.P.R. 1997).

27
ssistancetubbataha. html>.

 Merlin M. Magallona, A Primer on the Law of

28
 Vinuya v. Romulo, G.R. No. 162230, April
40

the Sea, 1997, p. 1. 28, 2010, 619 SCRA 533, 559, citing Detjen v.
Central Leather Co., 246 U.S. 297, 302
(1918).

 Supra note 36.

41

 Nicolas v. Secretary Romulo, et al., 598 Phil.

42

262. 280 & 285.