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G.R. No. 206510.September 16, 2014.*


MOST REV. PEDRO D. ARIGO, D.D., Vicar Apostolic of
Puerto Princesa, MOST REV. DEOGRACIAS S. IIGUEZ,
JR., Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO,
CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA
CAROLINA P. ARAULLO, RENATO M. REYES, JR.,
Bagong Alyansang Makabayan, HON. NERI JAVIER
COLMENARES, Bayan Muna Party-list, ROLAND G.
SIMBULAN, PH.D., Junk VFA Movement, TERESITA R.
PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan
Party-list, PETER SJ. GONZALES, Pamalakaya,
GIOVANNI A. TAPANG, PH.D., Agham, ELMER C.
LABOG, Kilusang Mayo Uno, JOAN MAY E. SALVADOR,
Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A.
CONCEPCION, MARY JOAN A. GUAN, NESTOR T.
BAGUINON, PH.D., A. EDSEL F. TUPAZ, petitioners, vs.
SCOTT H. SWIFT, in his capacity as Commander of the
U.S. 7th Fleet, MARK A. RICE, in his capacity as
Commanding Officer of the USS Guardian, PRESIDENT
BENIGNO S. AQUINO III, in his capacity as Commanderin-Chief of the Armed Forces of the Philippines, HON.
ALBERT F. DEL ROSARIO, Secretary, Department of
Foreign Affairs, HON. PAQUITO OCHOA, JR., Executive
Secretary, Office of the President, HON. VOLTAIRE T.
GAZMIN, Secretary, Department of National Defense,
HON. RAMON JESUS P. PAJE, Secretary, Department of
Environment and Natural Resources, VICE ADMIRAL
JOSE LUIS M. ALANO, Philippine Navy Flag Officer in
Command, Armed Forces of the Philippines, ADMIRAL
RODOLFO D. ISORENA, Commandant, Philippine Coast
Guard, COMMODORE ENRICO EFREN EVANGELISTA,
Philippine
Coast
Guard-Palawan,
MAJOR
GEN.
VIRGILIO O. DOMINGO, Commandant of Armed Forces of
the Philippines Command and LT. GEN. TERRY G.
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_______________
* EN BANC.
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ROBLING, US Marine Corps Forces, Pacific and Balikatan
2013 Exercise Co-Director, respondents.
Remedial Law; Civil Procedure; Locus Standi; Words and
Phrases; Locus standi is a right of appearance in a court of justice
on a given question.Locus standi is a right of appearance in a
court of justice on a given question. Specifically, it is a partys
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. However, the
rule on standing is a procedural matter which this Court has
relaxed for nontraditional plaintiffs like ordinary citizens,
taxpayers and legislators when the public interest so requires, such
as when the subject matter of the controversy is of transcendental
importance, of overreaching significance to society, or of paramount
public interest.
Constitutional Law; Balance and Healthful Ecology; In the
landmark case of Oposa v. Factoran, Jr., 224 SCRA 792 (1993), the
Supreme Court (SC) recognized the public right of citizens to a
balanced and healthful ecology which, for the first time in our
constitutional history, is solemnly incorporated in the fundamental
law.In the landmark case of Oposa v. Factoran, Jr., 224 SCRA
792 (1993), we recognized the public right of citizens to a
balanced and healthful ecology which, for the first time in our
constitutional history, is solemnly incorporated in the fundamental
law. We declared that the right to a balanced and healthful ecology
need not be written in the Constitution for it is assumed, like other
civil and 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.

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Remedial Law; Civil Procedure; Class Suit; 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.On the
novel element in the class suit filed by the petitioners minors in
Oposa, this Court ruled that not only do ordinary citizens have legal
standing to sue for the enforcement of environmental rights, they
can do so in representation of their own and future generations.
Thus:
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Petitioners minors assert that they represent their generation


as well as generations yet unborn. We find no difficulty in ruling
that they can, for themselves, for others of their generation and for
the succeeding generations, file a class suit. Their personality to
sue in behalf of the succeeding generations can only be
based on the concept of intergenerational responsibility
insofar as the right to a balanced and healthful ecology is
concerned. Such a right, as hereinafter expounded, considers the
rhythm and harmony of nature. Nature means the created world
in its entirety. Such rhythm and harmony indispensably include,
inter alia, the judicious disposition, utilization, management,
renewal and conservation of the countrys forest, mineral, land,
waters, fisheries, wildlife, off-shore areas and other natural
resources to the end that their exploration, development and
utilization be equitably accessible to the present as well as future
generations. Needless to say, every generation has a responsibility
to the next to preserve that rhythm and harmony for the full
enjoyment of a balanced and healthful ecology. Put a little
differently, the minors assertion of their right to a sound
environment constitutes, at the same time, the performance of their
obligation to ensure the protection of that right for the generations
to come.
Constitutional Law; State Immunity from Suit; This traditional

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rule of State immunity which exempts a State from being sued in the
courts of another State without the formers 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).This traditional rule of State
immunity which exempts a State from being sued in the courts of
another State without the formers 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.
Same; International Law; International Law of the Sea; Words
and Phrases; The international law of the sea is generally defined as
a body of treaty rules and customary norms governing the uses of
the
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sea, the exploitation of its resources, and the exercise of jurisdiction


over maritime regimes.The international law of the sea is
generally defined as a body of treaty rules and customary norms
governing the uses of the sea, the exploitation of its resources, and
the exercise of jurisdiction over maritime regimes. It is a branch of
public international law, regulating the relations of states with
respect to the uses of the oceans. The UNCLOS is a multilateral
treaty which was opened for signature on December 10, 1982 at
Montego Bay, Jamaica. It was ratified by the Philippines in 1984
but came into force on November 16, 1994 upon the submission of
the 60th ratification.
Same; Same; Same; United Nations Convention on
the Sea; The United Nations Convention on the Law
(UNCLOS) gives to the coastal State sovereign rights
degrees over the different zones of the sea which are:

the Law of
of the Sea
in varying
1) internal

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waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic


zone, and 5) the high seas. It also gives coastal States more or less
jurisdiction over foreign vessels depending on where the vessel is
located.The UNCLOS is a product of international negotiation
that seeks to balance State sovereignty (mare clausum) and the
principle of freedom of the high seas (mare liberum). The freedom to
use the worlds marine waters is one of the oldest customary
principles of international law. The UNCLOS gives to the coastal
State sovereign rights in varying degrees over the different zones of
the sea which are: 1) internal waters, 2) territorial sea, 3)
contiguous zone, 4) exclusive economic zone, and 5) the high seas. It
also gives coastal States more or less jurisdiction over foreign
vessels depending on where the vessel is located.
Same; Same; State Immunity from Suit; Visiting Forces
Agreement; Writ of Kalikasan; The waiver of State immunity under
the Visiting Forces Agreement (VFA) pertains only to criminal
jurisdiction and not to special civil actions such as the present
petition for issuance of a writ of Kalikasan.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.
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The invocation of US federal tort laws and even common law is thus
improper considering that it is the VFA which governs disputes
involving US military ships and crew navigating Philippine waters
in pursuance of the objectives of the agreement. As it is, the waiver
of State immunity under the VFA pertains only to criminal
jurisdiction and not to special civil actions such as the present
petition for issuance of a writ of Kalikasan. In fact, it can be
inferred from Section 17, Rule 7 of the Rules that a criminal case
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against a person charged with a violation of an environmental law


is to be filed separately: SEC. 17. Institution of separate actions.
The filing of a petition for the issuance of the writ of kalikasan shall
not preclude the filing of separate civil, criminal or administrative
actions.
Same; Same; Same; Same; Same; A ruling on the application or
non-application of criminal jurisdiction provisions of the Visiting
Forces Agreement (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.In any case, it is our considered view that 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. We also find it
unnecessary at this point to determine whether such waiver of
State immunity is indeed absolute. In the same vein, we cannot
grant damages which have resulted from the violation of
environmental laws. The Rules allows the recovery of damages,
including the collection of administrative fines under R.A. No.
10067, in a separate civil suit or that deemed instituted with the
criminal action charging the same violation of an environmental
law.
Same; Same; Foreign Relations; It is settled that the 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.A rehabilitation or restoration program to be
implemented at the cost of the violator is also a major relief that
may be obtained under a judgment rendered in a citizens suit
under the Rules, viz.: RULE 5 SECTION 1. Reliefs in a citizen suit.
If warranted, the court may grant to the plaintiff proper reliefs
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tion, preservation or rehabilitation of the environment and the


payment of attorneys fees, costs of suit and other litigation
expenses. It may also require the violator to submit a program of
rehabilitation or restoration of the environment, the costs of which
shall be borne by the violator, or to contribute to a special trust fund
for that purpose subject to the control of the court. In the light of
the foregoing, the Court defers to the Executive Branch on the
matter of compensation and rehabilitation measures through
diplomatic channels. Resolution of these issues impinges on our
relations with another State in the context of common security
interests under the VFA. It is settled that [t]he conduct of the
foreign relations of our government is committed by the
Constitution to the executive and legislative the political
departments of the government, and the propriety of what may be
done in the exercise of this political power is not subject to judicial
inquiry or decision.
SERENO, CJ., Concurring Opinion:
Constitutional Law; International Law; Visiting Forces
Agreement; Treaties; View that acts done pursuant to the Visiting
Forces Agreement (VFA) take the nature of governmental acts, since
both the United States and Philippine governments recognize the
VFA as a treaty with corresponding obligations, and the presence of
these two Naval Officers and the warship in Philippine waters fell
under this legal regime.In this case, the two Naval Officers were
acting pursuant to their function as the commanding officers of a
warship, traversing Philippine waters under the authority of the
Visiting Forces Agreement (VFA). While the events beg the question
of what the warship was doing in that area, when it should have
been headed towards Indonesia, its presence in Philippine waters is
not wholly unexplainable. The VFA is a treaty, and it has been
affirmed as valid by this Court in Bayan v. Zamora, 342 SCRA 449
(2000), and affirmed in Lim v. Executive Secretary, 380 SCRA 739
(2002), and Nicolas v. Romulo, 578 SCRA 438 (2009). It has, in the
past, been used to justify the presence of United States Armed
Forces in the Philippines. In this respect therefore, acts done
pursuant to the VFA take the nature of governmental acts, since
both the United States and Philippine governments recognize the
VFA as a treaty with corresponding obligations, and the presence of
these two Naval Officers and the warship in Philippine waters fell
under this legal regime.
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Same; Same; State Immunity from Suit; View that under the
regime of international law, there is an added dimension to
sovereign immunity exceptions: the tort exception.Under the
regime of international law, there is an added dimension to
sovereign immunity exceptions: the tort exception. Whether this
has evolved into a customary norm is still debatable; what is
important to emphasize is that while some states have enacted
legislation to allow the piercing of sovereign immunity in tortuous
actions, the Foreign Sovereign Immunities Act of 1976 of the United
States (FSIA) contains such privilege. Specifically, the FSIA
contains exceptions for (1) waiver; (2) commercial activity; (3)
expropriation; (4) property rights acquired through succession or
donation; (5) damages for personal injury or death or damage to or
loss of property; (6) enforcement of an arbitration agreement; (7)
torture, extrajudicial killing, aircraft sabotage, hostage taking, or
the provision of material support to such an act, if the state
sponsors terrorism; and (8) maritime lien in a suit for admiralty
based on commercial activity.
Same; Same; Same; View that immunity, unlike in other
jurisdictions, is determined not by the courts of law but by the
executive branches.In Vinuya v. Romulo, 619 SCRA 533 (2010), we
stated that the question whether the Philippine government
should espouse claims of its nationals against a foreign government
is a foreign relations matter, the authority for which is
demonstrably committed by our Constitution not to the courts but
to the political branches. Immunity then, unlike in other
jurisdictions, is determined not by the courts of law but by the
executive branches.
Same; Same; Same; View that the basic concept of state
immunity is that no state may be subjected to the jurisdiction of
another state without its consent.The basic concept of state
immunity is that no state may be subjected to the jurisdiction of
another state without its consent. According to Professor Ian
Brownlie, it is a procedural bar (not a substantive defence) based
on the status and functions of the state or official in question.
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Furthermore, its applicability depends on the law and procedural


rules of the forum state.
Same; Same; Same; Writ of Kalikasan; View that should the
Court issue the Writ, it could possibly entail international
responsibility for breaching the jurisdictional immunity of a
sovereign state.No exception exists in Philippine or international
law that
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would remove the immunity of the United States in order to place it


under the jurisdiction of Philippine courts. The Writ of Kalikasan is
a compulsory writ, and its issuance initiates a legal process that
would circumvent the internationally established rules of immunity.
Should the Court issue the Writ, it could possibly entail
international responsibility for breaching the jurisdictional
immunity of a sovereign state.
LEONEN, J., Concurring Opinion:
Writ of Kalikasan; View that the writ of kalikasan is not an allembracing legal remedy to be wielded like a political tool.The writ
of kalikasan is not an all-embracing legal remedy to be wielded like
a political tool. It is both an extraordinary and equitable remedy
which assists to prevent environmental catastrophes. It does not
replace other legal remedies similarly motivated by concern for the
environment and the communitys ecological welfare. Certainly,
when the petition itself alleges that remedial and preventive
remedies have occurred, the functions of the writ cease to exist. In
case of disagreement, parties need to exhaust the political and
administrative arena. Only when a concrete cause of action arises
out of facts that can be proven with substantial evidence may the
proper legal action be entertained.
Remedial Law; Civil Procedure; Class Suits; Citizens Suits;
View Citizens suits are procedural devices that allow a genuine
cause of action to be judicially considered in spite of the social costs
or negative externalities of such initiatives. This should be clearly
distinguished in our rules and in jurisprudence from class suits that
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purport to represent the whole population and unborn generations.


Citizens suits are suits brought by parties suffering direct and
substantial injuries; although in the environmental field, these
injuries may be shared with others. It is different from class suits
brought as representative suits under Oposa v. Factoran, 224 SCRA
792 (1993). In my view, there is need to review this doctrine insofar
as it allows a nonrepresentative group to universally represent a
whole population as well as an unborn generation binding them to
causes of actions, arguments, and reliefs which they did not choose.
Generations yet unborn suffer from the legal inability to assert
against false or unwanted representation. Citizens suits are
procedural devices that allow a genuine cause of action to be
judicially considered in spite of
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the social costs or negative externalities of such initiatives. This


should be clearly distinguished in our rules and in jurisprudence
from class suits that purport to represent the whole population and
unborn generations. The former is in keeping with the required
constitutional protection for our people. The latter is dangerous and
should be used only in very extraordinary or rare situations. It may
be jurisprudentially inappropriate.
Constitutional Law; International Law; State Immunity from
Suit; View that the doctrine of sovereign immunity is understood as
a basic right extended to states by other states on the basis of respect
for sovereignty and independence.The doctrine of sovereign
immunity evolves out of the theory and practice of sovereignty and
the principle par in parem non habet jurisdictionem. Its particular
contours as an international norm have evolved far beyond the form
it took when the theory of absolute sovereignty was current.
Contemporarily, it is understood as a basic right extended to states
by other states on the basis of respect for sovereignty and
independence. There appears to be a consensus among states that
sovereign immunity as a concept is legally binding. However, there
remains to be a lack of international agreement as to how it is to be
invoked and the extent of immunity in some cases.
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Same; Same; Same; View that this doctrine of relative


jurisdictional immunity (sovereign immunity) of states and their
agents becomes binding in our jurisdiction as international law only
through Section 2 of Article II or Section 21 of Article VII of the
Constitution.This doctrine of relative jurisdictional immunity
(sovereign immunity) of states and their agents becomes binding in
our jurisdiction as international law only through Section 2 of
Article II or Section 21 of Article VII of the Constitution. Article
XVII, Section 3 of the Constitution is a limitation on suits against
our state. It is not the textual anchor for determining the extent of
jurisdictional immunities that should be accorded to other states or
their agents. International law may have evolved further than the
usual distinction between acta jure imperii and acta jure gestionis.
Indications of state practice even of public respondents show that
jurisdictional immunity for foreign states may not apply to certain
violations of jus cogens rules of international customary law. There
can be tort exemptions provided by statute and, therefore, the state
practice of an agents sovereign being sued in our courts.
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Remedial Law; Civil Procedure; Jurisdiction; Environmental


Cases; View that the environmental nature of this petition, based
upon the alleged violation of the Tubbataha Reefs Natural Park Act,
by itself does not and should not automatically render the Rules of
Procedure for Environmental Cases applicable; This means that
even in environmental cases, Rule 3, Sections 2, 3, or 12 of the 1997
Rules of Civil Procedure should still also apply.The
environmental nature of this petition, based upon the alleged
violation of the Tubbataha Reefs Natural Park Act, by itself does
not and should not automatically render the Rules of Procedure for
Environmental Cases applicable. At best, it must be reconciled with
rules on parties as contained in the Rules of Court. This is to
preclude a situation where the interpretation of the Rules of
Procedure for Environmental Cases results in a ruling inconsistent
or contrary to established legal concepts. It is my position that
unless the remedy sought will serve the purpose of preventing an
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environmental catastrophe, the traditional procedural route should


be taken. This means that even in environmental cases, Rule 3,
Sections 2, 3, or 12 of the 1997 Rules of Civil Procedure should still
also apply.
Same; Same; Real Party-in-Interest; View that a real party-ininterest is a litigant whose right or interest stands to benefit or get
injured by the judgment of the case.A real party-in-interest is a
litigant whose right or interest stands to benefit or get injured by
the judgment of the case. The interest referred to must be material
interest, founded upon a legal right sought to be enforced. They
bring a suit because the act or omission of another has caused them
to directly suffer its consequences. Simply put, a real party-ininterest has a cause of action based upon an existing legal rightduty correlative.
Same; Same; Representatives; Environmental Cases; View that
in environmental cases, Section 3 of Rule 3 of the 1997 Rules of Civil
Procedure may be used to bring a suit, provided that two (2)
elements concur: a) the suit is brought on behalf of an identified
party whose right has been violated, resulting in some form of
damage, and b) the representative authorized by law or the Rules of
Court to represent the victim.A representative is not the party
who will actually benefit or suffer from the judgment of the case.
The rule requires that the beneficiary be identified as he or she is
deemed the real party-in-interest. This means that acting in a
representative capacity does not turn into a real party-in-interest
someone who is other112

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wise an outsider to the cause of action. This rule enumerates who


may act as representatives, including those acting in a fiduciary
capacity. While not an exhaustive list, it does set a limit by allowing
only those who are authorized by law or these Rules. In
environmental cases, this section may be used to bring a suit,
provided that two elements concur: a) the suit is brought on behalf
of an identified party whose right has been violated, resulting in

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some form of damage, and b) the representative authorized by law


or the Rules of Court to represent the victim.
Same; Same; Citizens Suits; View that a citizens suit that seeks
to enforce environmental rights and obligations may be brought by
any Filipino who is acting as a representative of others, including
minors or generations yet unborn.A citizens suit that seeks to
enforce environmental rights and obligations may be brought by
any Filipino who is acting as a representative of others, including
minors or generations yet unborn. As representatives, it is not
necessary for petitioners to establish that they directly suffered
from the grounding of the USS Guardian and the subsequent
salvage operations. However, it is imperative for them to indicate
with certainty the injured parties on whose behalf they bring the
suit. Furthermore, the interest of those they represent must be
based upon concrete legal rights. It is not sufficient to draw out a
perceived interest from a general, nebulous idea of a potential
injury.
Same; Same; Same; Environmental Cases; View that since
environmental cases necessarily involve the balancing of different
types and degrees of interests, allowing anyone from the present
generation to represent others who are yet unborn poses three (3)
possible dangers.Minors and generations yet unborn is a
category of real party in interest that was first established in Oposa
v. Factoran, 224 SCRA 792 (1993). In Oposa v. Factoran, this court
ruled that the representatives derived their personality to file a suit
on behalf of succeeding generations from intergenerational
responsibility. The case mirrored through jurisprudence the
general moral duty of the present generation to ensure the full
enjoyment of a balanced and healthful ecology by the succeeding
generations. Since environmental cases necessarily involve the
balancing of different types and degrees of interests, allowing
anyone from the present generation to represent others who are yet
unborn poses three possible dangers. First, they run the risk of
foreclosing arguments of others who are
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unable to take part in the suit, putting into question its


representativeness. Second, varying interests may potentially
result in arguments that are bordering on political issues, the
resolutions of which do not fall upon this court. Third,
automatically allowing a class or citizens suit on behalf of minors
and generations yet unborn may result in the oversimplification of
what may be a complex issue, especially in light of the impossibility
of determining future generations true interests on the matter.
Same; Same; Res Judicata; View that the doctrine of res
judicata bars parties to litigate an issue more than once, and this is
strictly applied because the maintenance of public order, the repose
of society . . . require that what has been definitely determined by
competent tribunals shall be accepted as irrefragable legal
truth.Res judicata renders conclusive between the parties and
their privies a ruling on their rights, not just for the present action,
but in all subsequent suits. This pertains to all points and matters
judicially tried by a competent court. The doctrine bars parties to
litigate an issue more than once, and this is strictly applied because
the maintenance of public order, the repose of society . . . require
that what has been definitely determined by competent tribunals
shall be accepted as irrefragable legal truth.
Same; Same; Same; View that considering the effect of res
judicata, the ruling in Oposa v. Factoran has opened a dangerous
practice of binding parties who are yet incapable of making choices
for themselves, either due to minority or the sheer fact that they do
not yet exist.Considering the effect of res judicata, the ruling in
Oposa v. Factoran has opened a dangerous practice of binding
parties who are yet incapable of making choices for themselves,
either due to minority or the sheer fact that they do not yet exist.
Once res judicata sets in, the impleaded minors and generations yet
unborn will be unable to bring a suit to relitigate their interest.
Same; Same; Class Suits; View that in a class suit, petitioners
necessarily bring the suit in two capacities: first, as persons directly
injured by the act or omission complained of; and second, as
representatives of an entire class who have suffered the same injury.
In a class suit, petitioners necessarily bring the suit in two
capacities: first, as persons directly injured by the act or omission
complained of; and second, as representatives of an entire class who
have suf114

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fered the same injury. In order to fully protect all those concerned,
petitioners must show that they belong in the same universe as
those they seek to represent. More importantly, they must establish
that, in that universe, they can intervene on behalf of the rest.
Same; Same; Same; Environmental Cases; View that not all
environmental cases need to be brought as class suits.Not all
environmental cases need to be brought as class suits. There is no
procedural requirement that majority of those affected must file a
suit in order that an injunctive writ or a writ of kalikasan can be
issued. It is sufficient that the party has suffered its own direct and
substantial interest, its legal basis is cogent, and it has the
capability to move forward to present the facts and, if necessary, the
scientific basis for its analysis for some of these cases to be given
due course.
Same; Same; Same; Same; Wvil prorit of Kalikasan; View that
the writ of kalikasan is a remedy that covers environmental
damages the magnitude of which transcends both political and
territorial boundaries.The writ of kalikasan is a remedy that
covers environmental damages the magnitude of which transcends
both political and territorial boundaries. It specifically provides that
the prejudice to life, health, or property caused by an unlawful act
or omission of a public official, public employee, or a private
individual or entity must be felt in at least two cities or provinces.
The petition for its issuance may be filed on behalf of those whose
right to a balanced and healthful ecology is violated, provided that
the group or organization which seeks to represent is duly
accredited.
Same; Same; Same; Same; Same; Temporary Environmental
Protection Order; View that a Temporary Environmental Protection
Order (TEPO) is an order which either directs or enjoins a person or
government agency to perform or refrain from a certain act, for the
purpose of protecting, preserving, and/or rehabilitating the
environment.A TEPO is an order which either directs or enjoins a
person or government agency to perform or refrain from a certain
act, for the purpose of protecting, preserving, and/or rehabilitating
the environment. The crucial elements in its issuance are the

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presence of extreme urgency and grave injustice and irreparable


injury to the applicant. Petitioners hinge the basis for this prayer
on the salvage operations conducted immediately after the incident.
The remedy is no longer available considering that all activities to
remove the
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grounded USS Guardian have been concluded. Furthermore, the


Notice to Mariners No. 011-2013 issued by the Philippine Coast
Guard on January 29, 2013 effectively set the metes and bounds of
the damaged area. This notice also prohibited leisure trips to
Tubbataha and advised all watercrafts transitting the vicinity to
take precautionary measures.
Constitutional Law; International Law; State Immunity from
Suit; View that immunity does not necessarily apply to all the
foreign respondents should the case have been brought in a timely
manner, with the proper remedy, and in the proper court.It is my
position that doctrine on relative jurisdictional immunity of foreign
states or otherwise referred to as sovereign immunity should be
further refined. I am of the view that immunity does not
necessarily apply to all the foreign respondents should the
case have been brought in a timely manner, with the proper
remedy, and in the proper court. Those who have directly and
actually committed culpable acts or acts resulting from gross
negligence resulting in the grounding of a foreign warship in
violation of our laws defining a tortious act or one that
protects the environment which implement binding
international obligations cannot claim sovereign immunity.
Some clarification may be necessary to map the contours of relative
jurisdictional immunity of foreign states otherwise known as the
doctrine of sovereign immunity. The doctrine of sovereign immunity
can be understood either as a domestic or an international concept.
Same; Same; Same; View that there appears to be a consensus
among states that sovereign immunity as a concept is legally
binding.Under international law, sovereign immunity remains to

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be an abstract concept. On a basic level, it is understood as a basic


right extended to states by other states on the basis of respect for
sovereignty and independence. There appears to be a consensus
among states that sovereign immunity as a concept is legally
binding. Nevertheless, legal scholars observe that there remains to
be a lack of agreement as to how it is to be invoked or exercised in
actual cases. Finke presents: States accept sovereign immunity as a
legally binding concept, but only on a very abstract level. They
agree on the general idea of immunity, but disagree on the
extent to which they actually must grant immunity in a
specific case.
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Same; Same; Same; European Convention on State Immunity;


Words and Phrases; View that in the Council of Europes explanatory
report, sovereign immunity is defined as a concept of international
law, which has developed out of the principle par in parem non
habet imperium, by virtue of which one State is not subject to the
jurisdiction of another State.The European Convention on State
Immunity is a treaty established through the Council of Europe on
May 16, 1972. In the Council of Europes explanatory report,
sovereign immunity is defined as a concept of international law,
which has developed out of the principle par in parem non habet
imperium, by virtue of which one State is not subject to the
jurisdiction of another State. The treaty arose out of the need to
address cases where states become involved in areas of private law:
For many years State immunity has occupied the attention of
eminent jurists. It is also the object of abundant case law. The
development of international relations and the increasing
intervention of States in spheres belonging to private law
have posed the problem still more acutely by increasing the
number of disputes opposing individuals and foreign States.
There are, at present, two theories, that of absolute State
immunity which is the logical consequence of the principle stated
above and that of relative State immunity which is tending to
predominate on account of the requirement of modern
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conditions. According to this latter theory, the State enjoys


immunity for acts jure imperii but not for acts jure gestionis,
that is to say when it acts in the same way as a private
person in relations governed by private law. This divergence of
opinion causes difficulties in international relations. States whose
courts and administrative authorities apply the theory of absolute
State immunity are led to call for the same treatment abroad.
Same; Same; Visiting Forces Agreement; View that the extent of
the Visiting Forces Agreements (VFAs) categorization as between the
Philippine and United States government either as a treaty/
executive agreement or as a matter subject to international comity
remains vague.In sum, the extent of the VFAs categorization
as between the Philippine and United States government either
as a treaty/executive agreement or as a matter subject to
international comity remains vague. Nevertheless, it is certain
that the United States have made a political commitment to
recognize the provisions and execute their obligations under the
VFA. This in117

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cludes respecting jurisdictional issues in cases involving an offense


committed by a US military personnel.
Same; Same; State Immunity from Suit; There appears to be a
general recognition that foreign states are to be afforded immunity
on account of equality of states, but the practice lacks uniformity.
There appears to be a general recognition that foreign states are to
be afforded immunity on account of equality of states, but the
practice lacks uniformity. Finke points out that the doctrine as
exercised by different states suffers from substantial disagreement
on detail and substance. The inconsistencies in state practice
render the possibility of invoking international comity even more
problematic.
Same; Same; Same; View that the International Court of
Justices position that sovereign immunity remains applicable even if
the action is based upon violations of international law should be
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limited only to acts during armed conflict.In sum, the


International Court of Justices position that sovereign immunity
remains applicable even if the action is based upon violations of
international law should be limited only to acts during armed
conflict. Jurisdictional Immunities of the State (Germany v. Italy)
also referred to actions commited during World War II and
especially referred to the situation of international law at that time.
The majority reflected the attitude that sovereign immunity is a
customary norm. It, however, recognizes that uniformity in state
practice is far from the consensus required to articulate specific
rules pertaining to other circumstances such as transgressions of
foreign warships of domestic legislation while granted innocent
passage. It impliedly accepted that states enjoyed wide latitude to
specify their own norms.
Same; Same; Same; View that as a principle of international
law, the doctrine of sovereign immunity is deemed automatically
incorporated in our domestic legal system as per Article II, Section 2
of the Constitution.Sovereign immunity is a doctrine recognized
by states under the international law system. However, its
characterization as a principle is more appropriate in that the
extent to which foreign states are awarded immunity differs from
state to state. This appears to be an accepted arrangement in light
of the different state immunity laws all over the world. As it stands,
states are allowed to draw the line in the application of sovereign
immunity in cases involving foreign states and their agents. As a
principle of
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international law, it is deemed automatically incorporated in our


domestic legal system as per Article II, Section 2 of the
Constitution. Considering this leeway, along with the urgency and
importance of the case at hand, the Philippines is, therefore, free to
provide guidelines consistent with international law, domestic
legislation, and existing jurisprudence.
Same; Same; Same; View that tortious acts or crimes committed

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while discharging official functions are also not covered by sovereign


immunity.Shauf v. Court of Appeals, 191 SCRA 713 (1990),
evolved the doctrine further as it stated that [the] rational for this
ruling is that the doctrine of state immunity cannot be used as an
instrument for perpetrating an injustice. Tortious acts or crimes
committed while discharging official functions are also not covered
by sovereign immunity. Quoting the ruling in Chavez v.
Sandiganbayan, 193 SCRA 282 (1991), this court held American
naval officers personally liable for damages in Wylie v. Rarang, 209
SCRA 357 (1992), to wit:. . . The petitioners, however, were
negligent because under their direction they issued the publication
without deleting the name Auring. Such act or omission is ultra
vires and cannot be part of official duty. It was a tortious act which
ridiculed the private respondent.
Same; Same; Same; View that the Philippines has no law on the
application of sovereign immunity in cases of damages and/or
violations of domestic law involving agents of a foreign state.As it
stands, the Philippines has no law on the application of sovereign
immunity in cases of damages and/or violations of domestic law
involving agents of a foreign state. But our jurisprudence does have
openings to hold those who have committed an act ultra vires
responsible in our domestic courts.
Same; Same; Same; View that immunity does not necessarily
apply to all the foreign respondents should the case have been
brought in a timely manner, with the proper remedy, and in the
proper court.Considering the flexibility in international law and
the doctrines that we have evolved so far, I am of the view that
immunity does not necessarily apply to all the foreign
respondents should the case have been brought in a timely
manner, with the proper remedy, and in the proper court.
Those who have directly and actually committed culpable
acts or acts
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resulting from gross negligence resulting in the grounding of

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a foreign warship in violation of our laws defining a tortious


act or one that protects the environment which implement
binding international obligations cannot claim sovereign
immunity.

PETITION for issuance of a Writ of Kalikasan.


The facts are stated in the opinion of the Court.
Anthony Edsel Conrad F. Tupaz and National Union of
Peoples Lawyers for petitioners.
VILLARAMA, JR., J.:
Before us is a petition for the issuance of a Writ of
Kalikasan with prayer for the issuance of a Temporary
Environmental Protection Order (TEPO) under Rule 7 of
A.M. No.
09-6-8-SC, otherwise known as the Rules of Procedure for
Environmental Cases (Rules), involving violations of
environmental laws and regulations in relation to the
grounding of the US military ship USS Guardian over the
Tubbataha Reefs.
Factual Background
The name Tubbataha came from the Samal (seafaring
people of southern Philippines) language which means
long reef exposed at low tide. Tubbataha is composed of
two huge coral atolls the north atoll and the south atoll
and the Jessie Beazley Reef, a smaller coral structure
about 20 kilometers north of the atolls. The reefs of
Tubbataha and Jessie Beazley are considered part of
Cagayancillo, a remote island municipality of Palawan.1
In 1988, Tubbataha was declared a National Marine
Park by virtue of Proclamation No. 306 issued by President
Corazon C. Aquino on August 11, 1988. Located in the
middle of
_______________
1 Tubbataha Reefs Natural Park <http://tubbatahareef.org>.
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Central Sulu Sea, 150 kilometers southeast of Puerto
Princesa City, Tubbataha lies at the heart of the Coral
Triangle, the global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations
Educational Scientific and Cultural Organization
(UNESCO) as a World Heritage Site. It was recognized as
one of the Philippines oldest ecosystems, containing
excellent examples of pristine reefs and a high diversity of
marine life. The 97,030-hectare protected marine park is
also an important habitat for internationally threatened
and endangered marine species. UNESCO cited
Tubbatahas outstanding universal value as an important
and significant natural habitat for in situ conservation of
biological diversity; an example representing significant
ongoing ecological and biological processes; and an area of
exceptional natural beauty and aesthetic importance.2
On April 6, 2010, Congress passed Republic Act (R.A.)
No. 10067,3 otherwise known as the Tubbataha Reefs
Natural Park (TRNP) Act of 2009 to ensure the protection
and conservation of the globally significant economic,
biological, sociocultural, educational and scientific values of
the Tubbataha Reefs into perpetuity for the enjoyment of
present and future generations. Under the no-take
policy, entry into the waters of TRNP is strictly regulated
and many human activities are prohibited and penalized or
fined, including fishing, gathering, destroying and
disturbing the resources within the TRNP. The law
likewise created the Tubbataha Protected Area
Management Board (TPAMB) which shall be the sole
policy-making and permit-granting body of the TRNP.
_______________
2 Id.
3

An Act Establishing the Tubbataha Reefs Natural Park in the

Province of Palawan as a Protected Area under the Nipas Act (R.A. 7586)
and the Strategic Environmental Plan (SEP) for Palawan Act (R.A.
7611), Providing for its Management and for Other Purposes.
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The USS Guardian is an Avenger-class mine
countermeasures ship of the US Navy. In December 2012,
the US Embassy in the Philippines requested diplomatic
clearance for the said vessel to enter and exit the
territorial waters of the Philippines and to arrive at the
port of Subic Bay for the purpose of routine ship
replenishment, maintenance, and crew liberty.4 On
January 6, 2013, the ship left Sasebo, Japan for Subic Bay,
arriving on January 13, 2013 after a brief stop for fuel in
Okinawa, Japan.
On January 15, 2013, the USS Guardian departed Subic
Bay for its next port of call in Makassar, Indonesia. On
January 17, 2013 at 2:20 a.m. while transiting the Sulu
Sea, the ship ran aground on the northwest side of South
Shoal of the Tubbataha Reefs, about 80 miles eastsoutheast of Palawan. No one was injured in the incident,
and there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice
Admiral Scott Swift, expressed regret for the incident in a
press statement.5 Likewise, US Ambassador to the
Philippines Harry K. Thomas, Jr., in a meeting at the
Department of Foreign Affairs (DFA) on February 4,
reiterated his regrets over the grounding incident and
assured Foreign Affairs Secretary Albert F. del Rosario that
the United States will provide appropriate compensation
for damage to the reef caused by the ship.6 By March 30,
2013, the US Navy-led salvage team had finished removing
the last piece of the grounded ship from the coral reef.
_______________
4 Rollo, pp. 194-199.
5<http://manila.usembassy.gov/pressphotoreleases

2013/navy-

commander-expresses-regret-concerning-uss-guardian-grounding.html>.
6 Joint Statement Between The Philippines And The United States
On The USS Guardian Grounding On Tubbataha Reef, February 5,
2013.

Accessed

at

US

Embassy

website

<http://manila.usembassy.gov/jointstatementguardiantubbataha.html>.

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On April 17, 2013, the above named petitioners on their


behalf and in representation of their respective
sector/organization and others, including minors or
generations yet unborn, filed the present petition against
Scott H. Swift in his capacity as Commander of the U.S.
7th Fleet, Mark A. Rice in his capacity as Commanding
Officer of the USS Guardian and Lt. Gen. Terry G. Robling,
US Marine Corps Forces, Pacific and Balikatan 2013
Exercises Co-Director (US respondents); President
Benigno S. Aquino III in his capacity as Commander-inChief of the Armed Forces of the Philippines (AFP), DFA
Secretary Albert F. Del Rosario, Executive Secretary
Paquito Ochoa, Jr., Secretary Voltaire T. Gazmin
(Department of National Defense), Secretary Jesus P. Paje
(Department of Environment and Natural Resources), Vice
Admiral Jose Luis M. Alano (Philippine Navy Flag Officer
in Command, AFP), Admiral Rodolfo D. Isorena (Philippine
Coast Guard Commandant), Commodore Enrico Efren
Evangelista (Philippine Coast Guard-Palawan), and Major
General Virgilio O. Domingo (AFP Commandant),
collectively the Philippine respondents.
The Petition
Petitioners claim that the grounding, salvaging and
post-salvaging operations of the USS Guardian cause and
continue to cause environmental damage of such
magnitude as to affect the provinces of Palawan, Antique,
Aklan, Guimaras, Iloilo, Negros Occidental, Negros
Oriental, Zamboanga del Norte, Basilan, Sulu, and TawiTawi, which events violate their constitutional rights to a
balanced and healthful ecology. They also seek a directive
from this Court for the institution of civil, administrative
and criminal suits for acts committed in violation of
environmental laws and regulations in connection with the
grounding incident.
Specifically, petitioners cite the following violations
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committed by US respondents under R.A. No. 10067:


unauthorized entry (Section 19); nonpayment of
conservation fees (Sec123

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tion 21); obstruction of law enforcement officer (Section 30);
damages to the reef (Section 20); and destroying and
disturbing resources (Section 26[g]). Furthermore,
petitioners assail certain provisions of the Visiting Forces
Agreement (VFA) which they want this Court to nullify for
being unconstitutional.
The numerous reliefs sought in this case are set forth in
the final prayer of the petition, to wit:
WHEREFORE, in view of the foregoing, Petitioners respectfully
pray that the Honorable Court:
1. Immediately issue upon the filing of this petition a Temporary
Environmental Protection Order (TEPO) and/or a Writ of
Kalikasan, which shall, in particular:
a. Order Respondents and any person acting on their behalf, to
cease and desist all operations over the Guardian grounding
incident;
b. Initially demarcating the metes and bounds of the damaged
area as well as an additional buffer zone;
c. Order Respondents to stop all port calls and war games under
Balikatan because of the absence of clear guidelines, duties, and
liability schemes for breaches of those duties, and require
Respondents to assume responsibility for prior and future
environmental damage in general, and environmental damage
under the Visiting Forces Agreement in particular;
d. Temporarily define and describe allowable activities of
ecotourism, diving, recreation, and limited commercial activities by
fisherfolk and indigenous communities near or around the TRNP
but away from the damaged site and an additional buffer zone;
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2. After summary hearing, issue a Resolution extending the
TEPO until further orders of the Court;
3. After due proceedings, render a Decision which shall include,
without limitation:
a. Order Respondents Secretary of Foreign Affairs, following the
dispositive portion of Nicolas v. Romulo, to forthwith negotiate
with the United States representatives for the appropriate
agreement on [environmental guidelines and environmental
accountability] under Philippine authorities as provided in Art. V[ ]
of the VFA
b. Direct Respondents and appropriate agencies to commence
administrative, civil, and criminal proceedings against erring
officers and individuals to the full extent of the law, and to make
such proceedings public;
c. Declare that Philippine authorities may exercise primary and
exclusive criminal jurisdiction over erring U.S. personnel under the
circumstances of this case;
d. Require Respondents to pay just and reasonable compensation
in the settlement of all meritorious claims for damages caused to
the Tubbataha Reef on terms and conditions no less severe than
those applicable to other States, and damages for personal injury or
death, if such had been the case;
e. Direct Respondents to cooperate in providing for the
attendance of witnesses and in the collection and production of
evidence, including seizure and delivery of objects connected with
the offenses related to the grounding of the Guardian;
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f. Require the authorities of the Philippines and the United
States to notify each other of the disposition of all cases, wherever
heard, related to the grounding of the Guardian;
g. Restrain Respondents from proceeding with any purported
restoration, repair, salvage or post salvage plan or plans, including
cleanup plans covering the damaged area of the Tubbataha Reef
absent a just settlement approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and LGU

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consultations in accordance with the Local Government Code and


R.A. 10067;
i. Require Respondent US officials and their representatives to
place a deposit to the TRNP Trust Fund defined under Section 17 of
RA 10067 as a bona fide gesture towards full reparations;
j. Direct Respondents to undertake measures to rehabilitate the
areas affected by the grounding of the Guardian in light of
Respondents experience in the Port Royale grounding in 2009,
among other similar grounding incidents;
k. Require Respondents to regularly publish on a quarterly basis
and in the name of transparency and accountability such
environmental damage assessment, valuation, and valuation
methods, in all stages of negotiation;
l. Convene a multisectoral technical working group to provide
scientific and technical support to the TPAMB;
m. Order the Department of Foreign Affairs, Department of
National Defense, and the Department of Environment
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and Natural Resources to review the Visiting Forces Agreement and


the Mutual Defense Treaty to consider whether their provisions
allow for the exercise of erga omnes rights to a balanced and
healthful ecology and for damages which follow from any violation
of those rights;
n. Narrowly tailor the provisions of the Visiting Forces
Agreement for purposes of protecting the damaged areas of TRNP;
o. Declare the grant of immunity found in Article V (Criminal
Jurisdiction) and Article VI of the Visiting Forces Agreement
unconstitutional for violating equal protection and/or for violating
the preemptory norm of nondiscrimination incorporated as part of
the law of the land under Section 2, Article II, of the Philippine
Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha
Reefs in all other respects; and
4. Provide just and equitable environmental rehabilitation
measures and such other reliefs as are just and equitable under the
premises.7 (Underscoring supplied)

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Since only the Philippine respondents filed their


comment8 to the petition, petitioners also filed a motion for
early resolu_______________
7 Rollo, pp. 89-92.
8 Id., at pp. 156-191. In a letter dated 27 May 2013, the DFAs Office
of Legal Affairs informed this Court that it has received from the
Embassy of the United States the Notice sent by this Court, with a
request to return the same. It said that the US Embassy asserts
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tion and motion to proceed ex parte against the US
respondents.9
Respondents Consolidated Comment
In their consolidated comment with opposition to the
application for a TEPO and ocular inspection and
production orders, respondents assert that: (1) the grounds
relied upon for the issuance of a TEPO or writ of Kalikasan
have become fait accompli as the salvage operations on the
USS Guardian were already completed; (2) the petition is
defective in form and substance; (3) the petition improperly
raises issues involving the VFA between the Republic of the
Philippines and the United States of America; and (4) the
determination of the extent of responsibility of the US
Government as regards the damage to the Tubbataha Reefs
rests exclusively with the executive branch.
The Courts Ruling
As a preliminary matter, there is no dispute on the legal
standing of petitioners to file the present petition.
Locus standi is a right of appearance in a court of
justice on a given question.10 Specifically, it is a partys
personal and substantial interest in a case where he has
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sustained or will sustain direct injury as a result of the act


being challenged, and calls for more than just a
generalized griev_______________
that it is not an agent for the service of process upon the individuals
named in court documents, and that the transmission of the Court
documents should have been done through diplomatic channels. (Id., at
p. 255.)
9 Id., at pp. 215-247.
10 Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641
SCRA 244, 254, citing David v. Macapagal-Arroyo, 522 Phil. 705, 755;
489 SCRA 160, 216 (2006).
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ance.11 However, the rule on standing is a procedural


matter which this Court has relaxed for nontraditional
plaintiffs like ordinary citizens, taxpayers and legislators
when the public interest so requires, such as when the
subject matter of the controversy is of transcendental
importance, of overreaching significance to society, or of
paramount public interest.12
In the landmark case of Oposa v. Factoran, Jr.,13 we
recognized the public right of citizens to a balanced and
healthful ecology which, for the first time in our
constitutional history, is solemnly incorporated in the
fundamental law. We declared that the right to a balanced
and healthful ecology need not be written in the
Constitution for it is assumed, like other civil and 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.14
On the novel element in the class suit filed by the
petitioners minors in Oposa, this Court ruled that not only
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do ordinary citizens have legal standing to sue for the


enforcement of environmental rights, they can do so in
representation of their own and future generations. Thus:
_______________
11 Id., citing Jumamil v. Cafe, 507 Phil. 455, 465; 470 SCRA 475, 487
(2005), citing Integrated Bar of the Philippines v. Zamora, 392 Phil. 618,
632-633; 338 SCRA 81, 100 (2000).
12 Biraogo v. Philippine Truth Commission of 2010, G.R. Nos. 192935
& 193036, December 7, 2010, 637 SCRA 78, 151, citing Social Justice
Society (SJS) v. Dangerous Drugs Board, et al., 591 Phil. 393, 404; 570
SCRA 410, 421 (2008); Tatad v. Secretary of the Department of Energy,
346 Phil. 321; 281 SCRA 330 (1997) and De Guia v. COMELEC, G.R. No.
104712, May 6, 1992, 208 SCRA 420, 422.
13 G.R. No. 101083, July 30, 1993, 224 SCRA 792.
14 Id., at pp. 804-805.
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Petitioners minors assert that they represent their generation as
well as generations yet unborn. We find no difficulty in ruling that
they can, for themselves, for others of their generation and for the
succeeding generations, file a class suit. Their personality to sue
in behalf of the succeeding generations can only be based on
the concept of intergenerational responsibility insofar as
the right to a balanced and healthful ecology is concerned.
Such a right, as hereinafter expounded, considers the rhythm and
harmony of nature. Nature means the created world in its entirety.
Such rhythm and harmony indispensably include, inter alia, the
judicious disposition, utilization, management, renewal and
conservation of the countrys forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources to the end that
their exploration, development and utilization be equitably
accessible to the present as well as future generations. Needless to
say, every generation has a responsibility to the next to preserve
that rhythm and harmony for the full enjoyment of a balanced and
healthful ecology. Put a little differently, the minors assertion of
their right to a sound environment constitutes, at the same time,
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the performance of their obligation to ensure the protection of that


right for the generations to come.15 (Emphasis supplied)

The liberalization of standing first enunciated in Oposa,


insofar as it refers to minors and generations yet unborn, is
now enshrined in the Rules which allows the filing of a
citizen suit in environmental cases. The provision on
citizen suits in the Rules collapses the traditional rule on
personal and direct interest, on the principle that humans
are stewards of nature.16
Having settled the issue of locus standi, we shall
address the more fundamental question of whether this
Court has
_______________
15 Id., at pp. 802-803.
16 See Annotation to the Rules of Procedure for Environmental Cases.
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jurisdiction over the US respondents who did not submit


any pleading or manifestation in this case.
The immunity of the State from suit, known also as the
doctrine of sovereign immunity or non-suability of the
State,17 is expressly provided in Article XVI of the 1987
Constitution which states:
Section3.The State may not be sued without its consent.

In United States of America v. Judge Guinto,18 we


discussed the principle of state immunity from suit, as
follows:
The rule that a state may not be sued without its consent, now
expressed in Article XVI, Section 3, of the 1987 Constitution, is one
of the generally accepted principles of international law that we
have adopted as part of the law of our land under Article II, Section
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2. x x x.
Even without such affirmation, we would still be bound by the
generally accepted principles of international law under the
doctrine of incorporation. Under this doctrine, as accepted by the
majority of states, such principles are deemed incorporated in the
law of every civilized state as a condition and consequence of its
membership in the society of nations. Upon its admission to such
society, the state is automatically obligated to comply with these
principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is
based on the justification given by Justice Holmes that there can
be no legal right against the authority which makes the law on
which the right depends. [Kawanakoa v. Polybank, 205 U.S. 349]
There are other practical reasons for the enforcement of the
doctrine. In the case of the foreign state sought to
_______________
17 Air Transportation Office v. Ramos, G.R. No. 159402, February 23, 2011,
644 SCRA 36, 41.
18 261 Phil. 777; 182 SCRA 644 (1990).
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be impleaded in the local jurisdiction, the added inhibition
is expressed in the maxim par in parem, non habet
imperium. All states are sovereign equals and cannot assert
jurisdiction over one another. A contrary disposition would,
in the language of a celebrated case, unduly vex the peace
of nations. [De Haber v. Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the
state without its consent, it is also applicable to complaints
filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. The rule
is that if the judgment against such officials will require the state
itself to perform an affirmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages awarded
against them, the suit must be regarded as against the state itself
although it has not been formally impleaded. [Garcia v. Chief of

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Staff, 16 SCRA 120.] In such a situation, the state may move to


dismiss the complaint on the ground that it has been filed without
its consent.19 (Emphasis supplied)

Under the American Constitution, the doctrine is


expressed in the Eleventh Amendment which reads:
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.

In the case of Minucher v. Court of Appeals,20 we further


expounded on the immunity of foreign states from the
jurisdiction of local courts, as follows:
_______________
19 Id., at pp. 790-792; pp. 652-654.
20 445 Phil. 250; 397 SCRA 244 (2003).
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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
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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.21 (Emphasis supplied)

In the same case we also mentioned that in the case of


diplomatic immunity, the privilege is not an immunity from
the observance of the law of the territorial sovereign or
from ensuing legal liability; it is, rather, an immunity from
the exercise of territorial jurisdiction.22
In United States of America v. Judge Guinto,23 one of the
consolidated cases therein involved a Filipino employed at
Clark Air Base who was arrested following a buy-bust
opera_______________
21 Id., at pp. 269-270; pp. 259-261. Citations omitted.
22 Id., at p. 268; p. 259, citing J.L. Brierly, The Law of Nations,
Oxford University Press, 6th edition, p. 244, (1963).
23 Supra note 18 at pp. 788-789 & 797; p. 650.
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tion conducted by two officers of the US Air Force, and was
eventually dismissed from his employment when he was
charged in court for violation of R.A. No. 6425. In a
complaint for damages filed by the said employee against
the military officers, the latter moved to dismiss the case
on the ground that the suit was against the US
Government which had not given its consent. The RTC
denied the motion but on a petition for certiorari and
prohibition filed before this Court, we reversed the RTC
and dismissed the complaint. We held that petitioners US
military officers were acting in the exercise of their official
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functions when they conducted the buy-bust operation


against the complainant and thereafter testified against
him at his trial. It follows that for discharging their duties
as agents of the United States, they cannot be directly
impleaded for acts imputable to their principal, which has
not given its consent to be sued.
This traditional rule of State immunity which exempts a
State from being sued in the courts of another State
without the formers 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.24
In Shauf v. Court of Appeals,25 we discussed the
limitations of the State immunity principle, thus:
It is a different matter where the public official is made to
account in his capacity as such for acts contrary to law and
injurious to the rights of plaintiff. As was clearly set forth by
Justice Zaldivar in

_______________
24 United States of America v. Ruiz, 221 Phil. 179, 182-183 & 184; 136
SCRA 487, 492 (1985).
25 G.R. No. 90314, November 27, 1990, 191 SCRA 713.
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Director of the Bureau of Telecommunications, et al. v. Aligaen, etc.,


et al.: Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or officers are not
acts of the State, and an action against the officials or officers by
one whose rights have been invaded or violated by such acts, for the
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protection of his rights, is not a suit against the State within the
rule of immunity of the State from suit. In the same tenor, it has
been said that an action at law or suit in equity against a State
officer or the director of a State department on the ground that,
while claiming to act for the State, he violates or invades the
personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which he
does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without its
consent. The rationale for this ruling is that the doctrine of state
immunity cannot be used as an instrument for perpetrating an
injustice.
xxxx
The aforecited authorities are clear on the matter. They state
that the doctrine of immunity from suit will not apply and
may not be invoked where the public official is being sued in
his private and personal capacity as an ordinary citizen. The
cloak of protection afforded the officers and agents of the
government is removed the moment they are sued in their
individual capacity. This situation usually arises where the public
official acts without authority or in excess of the powers vested in
him. It is a well-settled principle of law that a public official may
be liable in his personal private capacity for whatever
damage he may have caused by his act done with malice and
in bad faith, or beyond the scope of his authority or
jurisdiction.26 (Emphasis supplied)
_______________
26 Id., at pp. 727-728.
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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
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duties. Considering that the satisfaction of a judgment


against said officials will require remedial actions and
appropriation of funds by the US government, the suit is
deemed to be one against the US itself. The principle of
State immunity therefore bars the exercise of jurisdiction
by this Court over the persons of respondents Swift, Rice
and Robling.
During the deliberations, Senior Associate Justice
Antonio T. Carpio took the position that the conduct of the
US in this case, when its warship entered a restricted area
in violation of R.A. No. 10067 and caused damage to the
TRNP reef system, brings the matter within the ambit of
Article 31 of the United Nations Convention on the Law of
the Sea (UNCLOS). He explained that while historically,
warships enjoy sovereign immunity from suit as extensions
of their flag State, Art. 31 of the UNCLOS creates an
exception to this rule in cases where they fail to comply
with the rules and regulations of the coastal State
regarding passage through the latter s internal waters and
the territorial sea.
According to Justice Carpio, although the US to date has
not ratified the UNCLOS, as a matter of long-standing
policy the US considers itself bound by customary
international rules on the traditional uses of the oceans
as codified in UNCLOS, as can be gleaned from previous
declarations by former Presidents Reagan and Clinton, and
the US judiciary in the case of United States v. Royal
Caribbean Cruise Lines, Ltd.27
_______________
27 24 F Supp. 2d 155, 159 (D.P.R. 1997).
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The international law of the sea is generally defined as


a body of treaty rules and customary norms governing the
uses of the sea, the exploitation of its resources, and the
exercise of jurisdiction over maritime regimes. It is a
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branch of public international law, regulating the relations


of states with respect to the uses of the oceans.28 The
UNCLOS is a multilateral treaty which was opened for
signature on December 10, 1982 at Montego Bay, Jamaica.
It was ratified by the Philippines in 1984 but came into
force on November 16, 1994 upon the submission of the
60th ratification.
The UNCLOS is a product of international negotiation
that seeks to balance State sovereignty (mare clausum) and
the principle of freedom of the high seas (mare liberum).29
The freedom to use the worlds marine waters is one of the
oldest customary principles of international law.30 The
UNCLOS gives to the coastal State sovereign rights in
varying degrees over the different zones of the sea which
are: 1) internal waters, 2) territorial sea, 3) contiguous
zone, 4) exclusive economic zone, and 5) the high seas. It
also gives coastal States more or less jurisdiction over
foreign vessels depending on where the vessel is located.31
Insofar as the internal waters and territorial sea is
concerned, the Coastal State exercises sovereignty, subject
to the UNCLOS and other rules of international law. Such
sovereignty extends to the air space over the territorial sea
as well as to its bed and subsoil.32
_______________
28 Magallona, Merlin M., A Primer on the Law of the Sea, p. 1, (1997).
29

Bertrand Theodor L. Santos, Untangling a Tangled Net of

Confusion: Reconciling the Philippine Fishery Poaching Law and the


UNCLOS, World Bulletin, Vol. 18: 83-116, p. 96 (July-December 2002).
30 Anne Bardin, Coastal States Jurisdiction Over Foreign Vessels,
14 Pace Intl. Rev. 27, 28 (2002).
31 Id., at p. 29.
32 Art. 2, UNCLOS.
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In the case of warships,33 as pointed out by Justice


Carpio, they continue to enjoy sovereign immunity subject
to the following exceptions:
33 Art. 29 of UNCLOS defines warship as a ship
belonging to the armed forces of a State bearing the
external marks distinguishing such ships of its nationality,
under the command of an officer duly commissioned by the
government of the State and whose name appears in the
appropriate service list or its equivalent, and manned by a
crew which is under regular armed forces discipline.
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 Conven138

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tion affects the immunities of warships and other government ships

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operated for noncommercial purposes. (Emphasis supplied)

A foreign warships 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 worlds leading maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS
negotiation and drafting, the U.S. delegation ultimately voted
against and refrained from signing it due to concerns over deep
seabed mining technology transfer provisions contained in Part XI.
In a remarkable, multilateral effort to induce U.S. membership, the
bulk of UNCLOS member states cooperated over the succeeding
decade to revise the objectionable provisions. The revisions satisfied
the Clinton administration, which signed the revised Part XI
implementing agreement in 1994. In the fall of 1994, President
Clinton transmitted UNCLOS and the Part XI implementing
agreement to the Senate requesting its advice and consent. Despite
consistent support from President Clinton, each of his successors,
and an ideologically diverse array of stakeholders, the Senate has
since withheld the consent required for the President to
internationally bind the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee
(SFRC) during the 108th and 110th Congresses, its progress
continues to be hamstrung by significant pockets of political
ambivalence over U.S. participation in international institutions.
Most recently, 111th Congress SFRC Chairman Senator John Kerry
included voting out UNCLOS for full Senate consideration among
his highest priorities. This did not occur, and
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no Senate action has been taken on UNCLOS by the 112th
Congress.34

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Justice Carpio invited our attention to the policy


statement given by President Reagan on March 10, 1983
that the US will recognize the rights of the other states in
the waters off their coasts, as reflected in the convention
[UNCLOS], so long as the rights and freedom of the United
States and others under international law are recognized
by such coastal states, and President Clintons reiteration
of the US policy to act in a manner consistent with its
[UNCLOS] provisions relating to traditional uses of the
oceans and to encourage other countries to do likewise.
Since Article 31 relates to the traditional uses of the
oceans, and if under its policy, the US recognize[s] the
rights of the other states in the waters off their coasts,
Justice Carpio postulates that there is more reason to
expect it to recognize the rights of other states in their
internal waters, such as the Sulu Sea in this case.
As to the non-ratification by the US, Justice Carpio
emphasizes that the US refusal to join the UNCLOS was
centered on its disagreement with UNCLOS regime of deep
seabed mining (Part XI) which considers the oceans and
deep seabed commonly owned by mankind, pointing out
that such has nothing to do with its [the US] acceptance of
customary international rules on navigation.
It may be mentioned that even the US Navy Judge
Advocate Generals Corps publicly endorses the ratification
of the UNCLOS, as shown by the following statement
posted on its official website:
The Convention is in the national interest of the United States
because it establishes stable maritime zones, including a maximum
outer limit for territorial seas; codi_______________
34

Commander Robert C. Rock De Tolve, JAGC, USN, At What Cost?

Americas UNCLOS Allergy in the Time of Lawfare, 61 Naval L. Rev. 1, 3


(2012).
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fies innocent passage, transit passage, and archipelagic sea lanes


passage rights; works against jurisdictional creep by preventing
coastal nations from expanding their own maritime zones; and
reaffirms sovereign immunity of warships, auxiliaries and
government aircraft.
xxxx
Economically, accession to the Convention would support our
national interests by enhancing the ability of the US to assert its
sovereign rights over the resources of one of the largest continental
shelves in the world. Further, it is the Law of the Sea Convention
that first established the concept of a maritime Exclusive Economic
Zone out to 200 nautical miles, and recognized the rights of coastal
states to conserve and manage the natural resources in this Zone.35

We fully concur with Justice Carpios view that


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 countrys
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.:
_______________
35 <http://www.jag.navy.mil/organization/code 10 law of the sea.htm>.
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Article 197
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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 latters
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 argue that there is a waiver of immunity
from suit found in the VFA. Likewise, they invoke federal
statutes in the US under which agencies of the US have
statutorily waived their immunity to any action. Even
under the common law tort claims, petitioners asseverate
that the US respondents are liable for negligence, trespass
and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of
United States troops and personnel visiting the Philippines
to promote common security interests between the US
and the Philippines in the region. It provides for the
guidelines to govern such visits of military personnel, and
further defines the rights of the United States and the
Philippine government in the matter of criminal
jurisdiction, movement of vessel and aircraft, importation
and exportation of equipment, materials
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and supplies.36 The invocation of US federal tort laws and


even common law is thus improper considering that it is
the VFA which governs disputes involving US military
ships and crew navigating Philippine waters in pursuance
of the objectives of the agreement.
As it is, the waiver of State immunity under the VFA
pertains only to criminal jurisdiction and not to special civil
actions such as the present petition for issuance of a writ of
Kalikasan. In fact, it can be inferred from Section 17, Rule
7 of the Rules that a criminal case against a person
charged with a violation of an environmental law is to be
filed separately:
SEC.17.Institution of separate actions.The filing of a
petition for the issuance of the writ of kalikasan shall not preclude
the filing of separate civil, criminal or administrative actions.

In any case, it is our considered view that a ruling on


the application or 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. We also find it unnecessary at this point
to determine whether such waiver of State immunity is
indeed absolute. In the same vein, we cannot grant
damages which have resulted from the violation of
environmental laws. The Rules allows the recovery of
damages, including the collection of administrative fines
under R.A. No. 10067, in a separate civil suit or that
deemed instituted with the criminal action charging the
same violation of an environmental law.37
_______________
36 See BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora,
396 Phil. 623, 652; 342 SCRA 449, 483 (2000).
37 Rule 10, Rules of Procedure for Environmental Cases.
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Section 15, Rule 7 enumerates the reliefs which may be


granted in a petition for issuance of a writ of Kalikasan, to
wit:
SEC.15.Judgment.Within sixty (60) days from the time the
petition is submitted for decision, the court shall render judgment
granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from
committing acts or neglecting the performance of a duty in violation
of environmental laws resulting in environmental destruction or
damage;
(b) Directing the respondent public official, government agency,
private person or entity to protect, preserve, rehabilitate or restore
the environment;
(c) Directing the respondent public official, government agency,
private person or entity to monitor strict compliance with the
decision and orders of the court;
(d) Directing the respondent public official, government agency,
or private person or entity to make periodic reports on the execution
of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a
balanced and healthful ecology or to the protection, preservation,
rehabilitation or restoration of the environment, except the
award of damages to individual petitioners. (Emphasis
supplied)

We agree with respondents (Philippine officials) in


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


Guardian from the coral reef.
However, we are mindful of the fact that the US and
Philippine governments both expressed readiness to
negotiate and discuss the matter of compensation for the
damage caused by the USS Guardian. The US Embassy
has also declared it is closely coordinating with local
scientists and experts in assessing the extent of the
damage and appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases
is not proscribed by the Rules. As can be gleaned from the
following provisions, mediation and settlement are
available for the consideration of the parties, and which
dispute resolution methods are encouraged by the court, to
wit:
RULE 3
xxxx
SEC.3.Referral to mediation.At the start of the pre-trial
conference, the court shall inquire from the parties if they have
settled the dispute; otherwise, the court shall immediately refer the
parties or their counsel, if authorized by their clients, to the
Philippine Mediation Center (PMC) unit for purposes of mediation.
If not available, the court shall refer the case to the clerk of court or
legal researcher for mediation.
Mediation must be conducted within a non-extendible period of
thirty (30) days from receipt of notice of referral to mediation.
The mediation report must be submitted within ten (10) days
from the expiration of the 30-day period.
SEC.4.Preliminary conference.If mediation fails, the court
will schedule the continuance of the pre-trial. Before the scheduled
date of continuance, the court may refer the case to the branch clerk
of court for a preliminary conference for the following purposes:
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(a)To assist the parties in reaching a settlement;
xxxx

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SEC.5.Pre-trial conference; consent decree.The judge shall


put the parties and their counsels under oath, and they shall
remain under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to
arrive at a settlement of the dispute. The judge may issue a consent
decree approving the agreement between the parties in accordance
with law, morals, public order and public policy to protect the right
of the people to a balanced and healthful ecology.
xxxx
SEC.10.Efforts to settle.The court shall endeavor to make
the parties to agree to compromise or settle in accordance with law
at any stage of the proceedings before rendition of judgment.
(Underscoring supplied)

The Court takes judicial notice of a similar incident in


2009 when a guided-missile cruiser, the USS Port Royal,
ran 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.38
To underscore that the US government is prepared to
pay appropriate compensation for the damage caused by
the USS Guardian grounding, the US Embassy in the
Philippines has announced the formation of a US
interdisciplinary scientific
_______________
38 USS Port Royal (CG73) <http://navysite.de/cg/cg73.html>; USS
Port Royal Returns to Homeport, Navy Military Home Page, Story
Number

NNS090211-02

Release

Date:

2/11/2009

6:00

AM

<http://www.navy.mil/submit/display.asp?story_id=42502>; Navy, state


reach settlement on USS Port Royal damage, posted Feb. 05, 2011 8:26
AM

<http://www.hawaiinewsnow.com/story/13974224/navy-state-reach-

settlement-on-uss-port-royal-reef-damage>.
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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.39
A rehabilitation or restoration program to be
implemented at the cost of the violator is also a major relief
that may be obtained under a judgment rendered in a
citizens suit under the Rules, viz.:
RULE 5
SECTION1.Reliefs in a citizen suit.If warranted, the court
may grant to the plaintiff proper reliefs which shall include the
protection, preservation or rehabilitation of the environment and
the payment of attorneys fees, costs of suit and other litigation
expenses. It may also require the violator to submit a program of
rehabilitation or restoration of the environment, the costs of which
shall be borne by the violator, or to contribute to a special trust fund
for that purpose subject to the control of the court.

In the light of the foregoing, the Court defers to the


Executive Branch on the matter of compensation and
rehabilitation measures through diplomatic channels.
Resolution of these issues impinges on our relations with
another State in the context of common security interests
under the VFA. It is settled that [t]he conduct of the
foreign relations of our government is committed by the
Constitution to the executive and legislative the
political departments of the government, and the
propriety of what may be done in the exer_______________
39
<http://manila.usembassy.gov/usgtargetedassistancetubbataha.html>.
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cise of this political power is not subject to judicial inquiry
or decision.40
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.
Carpio, Velasco, Jr., Leonardo-De Castro, Brion,
Peralta, Bersamin, Del Castillo, Perez, Reyes and PerlasBernabe, JJ., concur.
Sereno, CJ., See Concurring Opinion.
Mendoza, J., On Official Leave.
Leonen, J., See Separate Concurring Opinion.
Jardeleza, J., No Part.
_______________
40 Vinuya v. Romulo, G.R. No. 162230, April 28, 2010, 619 SCRA 533,
559, citing Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918).
41 Supra note 36.
42 Nicolas v. Secretary Romulo, et al., 598 Phil. 262, 280 & 285; 578
SCRA 438, 462 (2009).
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CONCURRING OPINION

SERENO, CJ.:
I concur.
Sovereign immunity serves as a bar for the foreign
sovereign to be subjected to the trial process. Supported
both by local jurisprudence, as well as international law
(which forms part of the Philippine legal structure), the
doctrine should not be reversed in this particular case.
Sovereign Immunity in Philippine Law
Sovereign immunity in Philippine law has been
lengthily discussed by the Court in China National
Machinery & Equipment Corp. v. Hon. Santamaria in the
following manner:
This Court explained the doctrine of sovereign immunity in Holy
See v. Rosario, to wit:
There are two conflicting concepts of sovereign immunity, each
widely held and firmly established. According to the
classical or absolute theory, a sovereign cannot, without its
consent, be made a respondent in the courts of another sovereign.
According to the newer or restrictive theory, the immunity of the
sovereign is recognized only with regard to public acts or acts jure
imperii of a state, but not with regard to private acts or acts jure
gestionis.
xxxx
The restrictive theory came about because of the entry of
sovereign states into purely commercial activities remotely
connected with the discharge of governmental functions. This is
particularly true with respect to the Communist states which took
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control of nationalized business activities and international trading.


In JUSMAG v. National Labor Relations Commission, this Court
affirmed the Philippines adherence to the restrictive theory as
follows:
The doctrine of state immunity from suit has undergone further
metamorphosis. The view evolved that the existence of a contract
does not, per se, mean that sovereign states may, at all times, be
sued in local courts. The complexity of relationships between
sovereign states, brought about by their increasing commercial
activities, mothered a more restrictive application of the doctrine.
xxxx
As it stands now, the application of the doctrine of
immunity from suit has been restricted to sovereign or
governmental activities (jure imperii). The mantle of state
immunity cannot be extended to commercial, private and
proprietary acts (jure gestionis).
Since the Philippines adheres to the restrictive theory, it is
crucial to ascertain the legal nature of the act involved whether
the entity claiming immunity performs governmental, as
opposed to proprietary, functions. As held in United States of
America v. Ruiz
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.
Stated differently, a State may be said to have descended to the
level of an individual and can thus be deemed to have tacitly given
its consent to be sued only when it enters into business contracts. It
does not
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apply where the contract relates to the exercise of its sovereign


functions.1 (Emphases supplied. Citations omitted)

From the Philippine perspective, what determines its


ability to impose its law upon the foreign entity would be
the act of the foreign entity on whether the act is an
aspect of its sovereign function or a private act.
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In this case, the two Naval Officers were acting


pursuant to their function as the commanding officers of a
warship, traversing Philippine waters under the authority
of the Visiting Forces Agreement (VFA). While the events
beg the question of what the warship was doing in that
area, when it should have been headed towards Indonesia,
its presence in Philippine waters is not wholly
unexplainable. The VFA is a treaty, and it has been
affirmed as valid by this Court in Bayan v. Zamora,2 and
affirmed in Lim v. Executive Secretary3 and Nicolas v.
Romulo.4 It has, in the past, been used to justify the
presence of United States Armed Forces in the Philippines.
In this respect therefore, acts done pursuant to the VFA
take the nature of governmental acts, since both the United
States and Philippine governments recognize the VFA as a
treaty with corresponding obligations, and the presence of
these two Naval Officers and the warship in Philippine
waters fell under this legal regime.
From this, the applicability of sovereign immunity
cannot be denied as to the presence of the warship and its
officers in Philippine waters. This does not, however, put
an end to the discussion, because even if immunity is
applicable to their presence, the specific act of hitting the
Tubbataha Reef and causing damage thereto is a
presumably tortuous act. Can
_______________
1 G.R. No. 185572, February 7, 2012, 665 SCRA 189.
2 G.R. No. 138570, October 10, 2000, 342 SCRA 449.
3 G.R. No. 151445, April 11, 2002, 380 SCRA 739.
4 G.R. No. 175888, February 11, 2009, 578 SCRA 438.
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these kinds of acts also be covered by the principle of
sovereign immunity?
Tort Exception
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Under the regime of international law, there is an added


dimension to sovereign immunity exceptions: the tort
exception. Whether this has evolved into a customary norm
is still debatable; what is important to emphasize is that
while some states have enacted legislation to allow the
piercing of sovereign immunity in tortuous actions, the
Foreign Sovereign Immunities Act of 1976 of the United
States (FSIA)5 contains such privilege. Specifically, the
FSIA contains exceptions for (1) waiver;6 (2) commercial
activity;7 (3) expropriation;8 (4) property rights acquired
through succession or donation;9 (5) damages for personal
injury or death or damage to or loss of property;10 (6)
enforcement of an arbitration agreement;11 (7) torture,
extrajudicial killing, aircraft sabotage, hostage taking, or
the provision of material support to such an act, if the state
sponsors terrorism;12 and (8) maritime lien in a suit for
admiralty based on commercial activity.13
Any claim under the FSIA goes through a hierarchical
process between the diplomatic channels of the United
States and the forum state. However, by explicitly
including the tort exception in its local legislation under
the 4th exception discussed above with due consideration
to the heavy require_______________
5 Pub. L. 94-583, 90 Stat. 2891, 28 U.S.C. Secs. 1330, 1332(a), 1391(f)
and 1601-1611.
6 Id., Sec. 1605(a)(1).
7 Id., Sec. 1605(a)(2).
8 Id., Sec. 1605(a)(3).
9 Id., Sec. 1605(a)(4).
10 Id., Sec. 1605(a)(5).
11 Id., Sec. 1605(a)(6).
12 Id., Sec. 1605(a)(7).
13 Id., Sec. 1605(b).
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ments for any doctrine to attain customary status it


becomes plausible that the exception can be applied to the
United States, if not through customary international law,
then by reason of acquiescence or estoppel.
As explained by Jasper Finke,
x x x x the current state practice may not support a rule of
customary international law according to which states must deny
sovereign immunity in case of tortious acts committed by another
country in the forum state. Even though such an obligation is
included in the ECSI and the UNCJIS, a considerable number of
states do not apply this exception. But this does not answer the
question whether states are prohibited from doing so. Section 1605
of the FSIA, for example, denies immunity in cases in which money
damages are sought for personal injury or death, or damage to or
loss of property, occurring in the United States and caused by the
tortious act or omission of that foreign state. If sovereign immunity
is the default rule and all exceptions must reflect customary
international law, and if the tort exception has not yet evolved into
custom, then states such as the US, UK, Canada, and Australia
that have included the tort exception in their national immunity
laws automatically violate international law a conclusion which
no commentator so far has suggested. But if states that enact
this exception as law do not violate international law, why
then should a state do so if its courts apply this exception
not on the basis of national law, but on the basis of how they
construe and interpret the doctrine of sovereign immunity
under international law?14 (Emphasis supplied)

What Finke suggests is that a local court need not find


the tort exception concept in its national law if it can
interpret the doctrine from its understanding of
international law. Can
_______________
14 Jasper Finke, Sovereign Immunity: Rule, Comity or Something
Else? Eur J Int Law (2010) 21(4), 863-864.
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the Philippines then interpret the exception as being part
of its acceptance of general principles of international law
under the Constitution?15
Sovereign Immunity as a Political Decision
In Vinuya v. Romulo, we stated that the question
whether the Philippine government should espouse claims
of its nationals against a foreign government is a foreign
relations matter, the authority for which is demonstrably
committed by our Constitution not to the courts but to the
political branches.16 Immunity then, unlike in other
jurisdictions, is determined not by the courts of law but by
the executive branches. Indeed, this was extensively
discussed in Chief Justice Punos concurring opinion in
Liang v. People, to wit:
Petitioners argument that a determination by the Department of
Foreign Affairs that he is entitled to diplomatic immunity is a
political question binding on the courts, is anchored on the ruling
enunciated in the case of WHO, et al. v. Aquino, et al., viz.:
It is a recognized principle of international law and
under our system of separation of powers that diplomatic
immunity is essentially a political question and courts
should refuse to look beyond a determination by the
executive branch of the government, and where the plea of
diplomatic immunity is recognized and affirmed by the executive
branch of the government as in the case at bar, it is then the duty of
the courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government, the
Solicitor General in this case, or other officer acting under his
direction. Hence, in adher_______________
15 Article II, Sec. 2, 1987 Constitution.
16 G.R. No. 162230, April 28, 2010, 619 SCRA 533.
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ence to the settled principle that courts may not so exercise
their jurisdiction by seizure and detention of property, as to
embarrass the executive arm of the government in
conducting foreign relations, it is accepted doctrine that in
such cases the judicial department of the government
follows the action of the political branch and will not
embarrass the latter by assuming an antagonistic
jurisdiction.
This ruling was reiterated in the subsequent cases of
International Catholic Migration Commission v. Calleja; The Holy
See v. Rosario, Jr; Lasco v. UN; and DFA v. NLRC.
The case of WHO v. Aquino involved the search and seizure of
personal effects of petitioner Leonce Verstuyft, an official of the
WHO. Verstyft was certified to be entitled to diplomatic immunity
pursuant to the Host Agreement executed between the Philippines
and the WHO.
ICMC v. Calleja concerned a petition for certification election
filed against ICMC and IRRI. As international organizations, ICMC
and IRRI were declared to possess diplomatic immunity. It was held
that they are not subject to local jurisdictions. It was ruled that the
exercise of jurisdiction by the Department of Labor over the case
would defeat the very purpose of immunity, which is to shield the
affairs of international organizations from political pressure or
control by the host country and to ensure the unhampered
performance of their functions.
In Holy See v. Rosario, Jr. involved an action for annulment of
sale of land against the Holy See, as represented by the Papal
Nuncio. The Court upheld the petitioners defense of sovereign
immunity. It ruled that where a diplomatic envoy is granted
immunity from the civil and administrative jurisdiction of the
receiving state over any real action relating to private immovable
property situated in the territory of the receiving state, which the
envoy holds on behalf of the sending state for the
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purposes of the mission, with all the more reason should immunity

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be recognized as regards the sovereign itself, which in that case is


the Holy See.
In Lasco v. United Nations, the United Nations Revolving Fund
for Natural Resources Exploration was sued before the NLRC for
illegal dismissal. The Court again upheld the doctrine of diplomatic
immunity invoked by the Fund.
Finally, DFA v. NLRC involved an illegal dismissal case filed
against the Asian Development Bank. Pursuant to its Charter and
the Headquarters Agreement, the diplomatic immunity of the Asian
Development Bank was recognized by the Court.
xxxx
Clearly, the most important immunity to an international
official, in the discharge of his international functions, is immunity
from local jurisdiction. There is no argument in doctrine or practice
with the principle that an international official is independent of
the jurisdiction of the local authorities for his official acts. Those
acts are not his, but are imputed to the organization, and without
waiver the local courts cannot hold him liable for them. In strict
law, it would seem that even the organization itself could have no
right to waive an officials immunity for his official acts. This
permits local authorities to assume jurisdiction over and individual
for an act which is not, in the wider sense of the term, his act at all.
It is the organization itself, as a juristic person, which should waive
its own immunity and appear in court, not the individual, except
insofar as he appears in the name of the organization. Provisions
for immunity from jurisdiction for official acts appear, aside from
the aforementioned treatises, in the constitution of most modern
international organizations. The acceptance of the principle is
sufficiently widespread to be regarded as declaratory of
international law.17 (Emphasis supplied)
_______________
17 G.R. No. 125865, 26 March 2001, 355 SCRA 125.
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In this view, the prudent interpretation of the tort


exception would be to allow the executive branch to first
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determine whether diplomatic or sovereign immunity can


be invoked by the foreign officials involved. If it can be
invoked, then the next analysis should be whether this
invoked immunity is absolute, as in the treatment of
diplomatic envoys. If it is not absolute, then and only then
can the Court weave the tort exception into the law of
sovereign immunity and thus attain jurisdiction over the
Naval Officers involved. This is important because the
practice has been to afford the foreign entity absolute
immunity, but withdraw the same from its personnel when
they commit private acts.
Sovereign Immunity Under International Law
The basic concept of state immunity is that no state may
be subjected to the jurisdiction of another state without its
consent.18 According to Professor Ian Brownlie, it is a
procedural bar (not a substantive defence) based on the
status and functions of the state or official in question.19
Furthermore, its applicability depends on the law and
procedural rules of the forum state.20 In the recent
judgment of the International Court of Justice (ICJ) in the
Jurisdictional Immunities of the State (Germany v. Italy:
Greece Intervening) case,21 the doctrine of sovereign
immunity was applied in the following context:
In 1995, successors in title of the victims of the Distomo
massacre, committed by the German armed forces in a
Greek village in June 1944, brought proceedings for
compensation
_______________
18

J-Maurice Arbour & Genevieve Parents, Droit International

Public, 5th ed., p. 331, (2006).


19

James Crawford, Brownlies Principles of Public International

Law, 8th ed., p. 487, (2012).


20 Id., at p. 488.
21

Jurisdictional Immunities of the State (Germany v. Italy),

Judgment (Feb. 3, 2012).


157

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against Germany before the Greek courts. The Greek court
ordered Germany to pay compensation to the claimants.
The appeal by Germany against that judgment was
dismissed by a decision of the Hellenic Supreme Court,
which ordered Germany to pay the costs of the appeal
proceedings. The successful Greek claimants under the
first instance and Supreme Court judgments applied to the
Italian courts for exequatur of those judgments, so as to be
able to have them enforced in Italy. This was allowed by
the Florence Court of Appeals and confirmed by the Italian
Court of Cassation.
Germany raised the dispute before the ICJ, claiming
these decisions constituted violations of its jurisdictional
immunity.
The ICJ analyzed the case from the vantage point of
immunity, such that the jurisdictional immunity of states
refers primarily to an immunity from the trial process and
is thus preliminary in character, as stated in the following
manner:
At the outset, however, the Court must observe that the
proposition that the availability of immunity will be to some extent
dependent upon the gravity of the unlawful act presents a logical
problem. Immunity from jurisdiction is an immunity not
merely from being subjected to an adverse judgment but
from being subjected to the trial process. It is, therefore,
necessarily preliminary in nature. Consequently, a national court is
required to determine whether or not a foreign State is entitled to
immunity as a matter of international law before it can hear the
merits of the case brought before it and before the facts have been
established. If immunity were to be dependent upon the State
actually having committed a serious violation of international
human rights law or the law of armed conflict, then it would become
necessary for the national court to hold an enquiry into the merits
in order to determine whether it had jurisdiction. If, on the other
hand, the mere allegation that the State had committed such
wrongful acts were to be sufficient to deprive the State of its
entitlement to immunity, immunity could, in effect be negated

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simply by skilful construction of the claim.22 (Emphasis supplied

The ICJ continued dissecting national law in order to


determine whether jurisdictional immunity could be
defeated by reason of serious violations of human rights
law or the law of armed conflict. In this, the ICJ clearly
saw that there was no customary international law norm
that led to the defeat of immunity by reason of these
violations, including the tort exception, viz.:
Apart from the decisions of the Italian courts which are the
subject of the present proceedings, there is almost no State practice
which might be considered to support the proposition that a State is
deprived of its entitlement to immunity in such a case. Although
the Hellenic Supreme Court in the Distomo case adopted a form of
that proposition, the Special Supreme Court in Margellos
repudiated that approach two years later. As the Court has noted in
paragraph 76 above, under Greek law it is the stance adopted in
Margellos which must be followed in later cases unless the Greek
courts find that there has been a change in customary international
law since 2002, which they have not done. As with the territorial
tort principle, the Court considers that Greek practice,
taken as a whole, tends to deny that the proposition
advanced by Italy has become part of customary
international law.
In addition, there is a substantial body of State practice
from other countries which demonstrates that customary
international law does not treat a States entitlement to
immunity as dependent upon the gravity of the act of which
it is accused or the peremptory nature of the rule which it is
alleged to have violated.23 (Emphasis supplied)
_______________
22 Id., at p. 82.
23 Id., at pp. 83-84.

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As things stand in the international sphere, the
immunity of the state (and by extension, its agents, in the
performance of their governmental functions jure imperii)
must stand against even serious violations of international
law, including breaches of international environmental law
(which is an aspect of human rights law as well). The ICJ
concluded that:
x x x [U]nder customary international law as it presently stands,
a State is not deprived of immunity by reason of the fact that it is
accused of serious violations of international human rights law or
the international law of armed conflict. In reaching that conclusion,
the Court must emphasize that it is addressing only the immunity
of the State itself from the jurisdiction of the courts of other States;
the question of whether, and if so to what extent, immunity might
apply in criminal proceedings against an official of the State is not
in issue in the present case.24

This does not mean that the act of the state is to be


considered lawful. However, this also does not mean that
state immunity is waived in the context of an international
breach of even a jus cogens norm, as explained in this
manner:
The rules of State immunity are procedural in character and are
confined to determining whether or not the courts of one State may
exercise jurisdiction in respect of another State. They do not bear
upon the question whether or not the conduct in respect of which
the proceedings are brought was lawful or unlawful. That is why
the application of the contemporary law of State immunity to
proceedings concerning events which occurred in 1943-1945 does
not infringe the principle that law should not be applied
retrospectively to determine matters of legality and responsibility
(as the Court has explained in paragraph 58 above). For the same
reason, recognizing the immunity of a foreign State in accordance

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_______________
24 Id., at p. 91.
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with customary international law does not amount to recognizing as


lawful a situation created by the breach of a jus cogens rule, or
rendering aid and assistance in maintaining that situation, and so
cannot contravene the principle in Article 41 of the International
Law Commissions Articles on State Responsibility.25

Conclusion of Jurisdictional Arguments


and Immunity
What the Court is left to work with is a process by which
jurisdiction and immunity can be determined by answering
several questions, summated thusly:
1. Is the act of the foreign national or entity an act jure
imperii, such that it can be considered an act of state
entitled to immunity, or an act jure gestionis, in which case
it is to be considered a private act?
2. In respect of the above question, has the executive
branch, in the exercise of its political power, determined
whether absolute diplomatic immunity is applicable?
3. If it is an act jure imperii and thus entitled to
sovereign immunity, does an exception apply to withdraw
the immunity privilege of such acts?
In this case, it is apparent that the act of the U.S.S.
Guardian and its officers in entering Philippine waters is
allowed by the VFA, and as a treaty privilege should be
considered an act jure imperii. Its deviation into the waters
of Tubbataha, and whether this can be considered a private
act, is a factual issue that should be determined by the
proper body. Indeed, while Philippine authorities may not
have authorized the deviation, if the United States
government affirms that it gave the Guardian sufficient
discretion to determine its course, then the act is not
necessarily robbed of its jure imperii character

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25 Id., at p. 93.
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and is thus entitled to immunity. The course of action of the
Philippine government would be to engage in diplomatic
negotiations for potential treaty breach liability.
As of this moment, the executive branch has not made a
determination
of
the
applicable
immunity.
No
correspondence has been sent to the Court as to the issue.
Thus, the Court must act in deference to the executive
prerogative to first make this determination under the
presumption of regularity of performance of duties, before
it can exercise its judicial power.
Finally, no exception exists in Philippine or
international law that would remove the immunity of the
United States in order to place it under the jurisdiction of
Philippine courts. The Writ of Kalikasan is a compulsory
writ, and its issuance initiates a legal process that would
circumvent the internationally established rules of
immunity. Should the Court issue the Writ, it could
possibly entail international responsibility for breaching
the jurisdictional immunity of a sovereign state.
I therefore vote to dismiss the Petition.
CONCURRING OPINION
LEONEN, J.:
Prefatory
I agree that the petition should be dismissed primarily
because it is moot and academic.
The parties who brought this petition have no legal
standing. They also invoke the wrong remedy. In my view,
it is time to clearly unpack the rudiments of our
extraordinary procedures in environmental cases in order
to avoid their abuse. Abuse of our procedures contributes to
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the debasement of the proper function of the remedies and


invites inordinate interference from this court from what
may be technical and political decisions that must be made
in a different forum. Our sympathy
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for environmental concerns never justifies our conversion


to an environmental super body.
The writ of kalikasan is not an all-embracing legal
remedy to be wielded like a political tool. It is both an
extraordinary and equitable remedy which assists to
prevent environmental catastrophes. It does not replace
other legal remedies similarly motivated by concern for the
environment and the communitys ecological welfare.
Certainly, when the petition itself alleges that remedial
and preventive remedies have occurred, the functions of the
writ cease to exist. In case of disagreement, parties need to
exhaust the political and administrative arena. Only when
a concrete cause of action arises out of facts that can be
proven with substantial evidence may the proper legal
action be entertained.
Citizens suits are suits brought by parties suffering
direct and substantial injuries; although in the
environmental field, these injuries may be shared with
others. It is different from class suits brought as
representative suits under Oposa v. Factoran.1 In my view,
there is need to review this doctrine insofar as it allows a
nonrepresentative group to universally represent a whole
population as well as an unborn generation binding them
to causes of actions, arguments, and reliefs which they did
not choose. Generations yet unborn suffer from the legal
inability to assert against false or unwanted
representation.
Citizens suits are procedural devices that allow a
genuine cause of action to be judicially considered in spite
of the social costs or negative externalities of such
initiatives. This should be clearly distinguished in our rules
and in jurisprudence from class suits that purport to
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represent the whole population and unborn generations.


The former is in keeping with the required constitutional
protection for our people. The latter is dangerous and
should be used only in very extraordi_______________
1 G.R. No. 101083, July 30, 1993, 224 SCRA 792 [Per J. Davide, Jr.,
En Banc].
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nary or rare situations. It may be jurisprudentially
inappropriate.
In my view, decisions relating to environmental concerns
should be more balanced. It must attend in a more sober
way to the required balance of all interests. Hence, our rule
with respect to standing should require that parties
bringing the suit are sufficiently and substantially
possessed of individual interest and capability so that they
can properly shape the issues brought before this court.
The capability of the parties to bring suit can readily be
seen through the allegations made in their petition.
Our doctrine regarding sovereign immunity also needs
to be refined in the proper case with respect to its nature,
source, and its limitations.
The doctrine of sovereign immunity evolves out of the
theory and practice of sovereignty and the principle par in
parem non habet jurisdictionem. Its particular contours as
an international norm have evolved far beyond the form it
took when the theory of absolute sovereignty was current.
Contemporarily, it is understood as a basic right extended
to states by other states on the basis of respect for
sovereignty and independence.2 There appears to be a
consensus among states that sovereign immunity as a
concept is legally binding.3 However, there remains to be a
lack of international agreement as to how it is to be
invoked and the extent of immunity in some cases.4
This vagueness arises from the debate on which among
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the sources of international law the doctrine of sovereign


immunity draws its binding authority and the content of
the doctrine given its source.
_______________
2 See J. Finke, Sovereign Immunity: Rule, Comity or Something Else?
21(4) Eur J Int. Law 853-881, 854 (2011) <http://ejil.org/pdfs/
21/4/2112.pdf>.
3 Id., at p. 856.
4 Id.
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This doctrine of relative jurisdictional immunity


(sovereign immunity) of states and their agents becomes
binding
in our jurisdiction as international law only through
Section 2 of Article II or Section 21 of Article VII of the
Constitution. Article XVII, Section 3 of the Constitution is
a limitation on suits against our state. It is not the textual
anchor for determining the extent of jurisdictional
immunities that should be accorded to other states or their
agents. International law may have evolved further than
the usual distinction between acta jure imperii and acta
jure gestionis. Indications of state practice even of public
respondents show that jurisdictional immunity for foreign
states may not apply to certain violations of jus cogens
rules of international customary law. There can be tort
exemptions provided by statute and, therefore, the state
practice of an agents sovereign being sued in our courts.
International law does not also prohibit legislation that
clarifies national policy and, therefore, our own
considerations of state practice in relation to the limits of
jurisdictional immunities for other sovereigns. Neither does
international law prohibit domestic courts from shaping
exceptions to jurisdictional immunity based upon our
reading of the Constitution as well as international and
municipal law.
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I am of the view, therefore, that this case be dismissed


principally for its procedural infirmities. We should reserve
doctrinal exposition and declaration of the content of
jurisdictional immunities for other sovereigns and their
agents when the proper cases merit our attention and not
yet unduly limit such jurisprudence in relation to the law
of the sea, municipal torts, and violations of international
customary law of a jus cogens character. The results in this
case would have been different if initiated with the proper
remedy, by the proper parties in the proper court.
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I
Procedural antecedents
This court was asked to issue a writ of kalikasan with
temporary environmental protection order or TEPO
pursuant to Rule 7 of A.M. No. 09-6-8-SC, otherwise known
as the Rules of Procedure for Environmental Cases.
Petitioners seek an immediate order from this court:
1) for respondents to cease and desist all operations over the
Guardian grounding incident;
2) for the demarcation of the metes and bounds of the damaged
area, with an additional buffer zone;
3) for respondents to stop all port calls and war games under the
Balikatan;
4) for respondents to assume responsibility for prior and future
environmental damage in general and under the Visiting Forces
Agreement (VFA);
5) for the temporary definition of allowable activities near or
around the Tubbataha Reefs [Natural] Park, but away from the
damaged site and the additional buffer zone;
6) for respondent Secretary of Foreign Affairs to negotiate with
the United States representatives for an agreement on
environmental guidelines and accountability pursuant to the VFA;
7) for respondents and appropriate agencies to commence
administrative, civil, and criminal proceedings against erring
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officers and individuals;


8) for the declaration of exclusive criminal jurisdiction of
Philippine authorities over erring USS Guardian personnel;
9) for respondents to pay just and reasonable compensation in
the settlement of all meritorious claims for damages caused to the
Tubbataha Reefs;
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10) for respondents to cooperate in securing the attendance of


witnesses and the collection and production of evidence, including
objects connected with the offenses related to the grounding of the
Guardian;
11) for respondents US officials and their representatives to
place a deposit to the TRNP Trust Fund, as defined in Section 17 of
RA 10067, as a bona fide gesture towards full reparations;
12) for respondents to undertake rehabilitation measures for
areas affected by the grounding of the Guardian;
13) for respondents to publish on a quarterly basis the
environmental damage assessment, valuation, and valuation
methods, in all stages of negotiations to ensure transparency and
accountability;
14) for the convention of a multisectoral technical working group
that will provide scientific and technical support to the Tubbataha
Protected Area Management Board (TPAMB);
15) for respondents Department of Foreign Affairs, Department
of National Defense, and the Department of Environmental and
Natural Resources to review the VFA and the Mutual Defense
Treaty in light of the right to a balanced and healthful ecology, and
any violation related thereto;
16) for the declaration of the grant of immunity under Articles V
and VI of the VFA as being violative of equal protection and/or the
peremptory norm of nondiscrimination;
17) for permission to resort to continuing discovery measures;
and
18) for other just and equitable environmental rehabilitation
measures and reliefs.5
_______________
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5 Rollo, pp. 89-92.


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Petitioners include representatives from peoples
organizations, nongovernment organizations, accredited
public
interest
groups,
environmental
institutes,
6
government officials, and academicians. Respondents, on
the other hand, are the American commanding officers of
the USS Guardian and the Balikatan 2013 Exercises,
incumbent Philippine government officials, and Philippine
military officers involved, by virtue of their office, in issues
arising out of the grounding of the USS Guardian in
Tubbataha Reefs and its subsequent salvage.7
The USS Guardian is a fifth Avenger Class Mine
Countermeasures, United States Navy ship.8 The three
diplomatic notes issued by the Embassy of the United
States of America in the Philippines dated December 3,
2012,9 December 31, 2012,10 and January 14, 201311 all
sought clearance for the ship 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.12
Thus, on January 17, 2013, while en route to Makasaar,
Indonesia, the USS Guardian ran aground in the
Tubbataha Reefs south atoll, approximately 80 miles eastsoutheast of Palawan.13 In a statement issued on January
25, 2013, US Ambassador to the Philippines Harry K.
Thomas expressed his regret over the incident, recognizing
the legitimate concerns over the damage caused to the
reef.14 On February 5, 2013, a joint statement was issued
by the Philippines and the
_______________
6 Id., at pp. 5-7.
7 Id., at pp. 7-8.
8 Id., at p. 13.
9 Id., at p. 194.
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10 Id., at p. 196.
11 Id., at p. 198.
12 All three notes were similarly worded as regards its request for
diplomatic clearance. The amendments only pertained to the arrival and
departure dates of the vessel.
13 Rollo, pp. 333-334.
14 Id., at p. 336.
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United States where the latter undertook to provide


compensation.15 On the same day, a salvage plan was
submitted by a Singaporean company contracted by the US
Navy to conduct the USS Guardian salvage operations.16
The salvage operations were completed on March 30,
2013.17
On April 17, 2013, petitioners filed the present petition
for writ of kalikasan with prayer for temporary
environmental protection order (TEPO).
Acting on petitioners petition but without necessarily
giving due course, this court on May 8, 2013 issued a
resolution. The resolution a) required respondents, except
the President of the Republic of the Philippines, to
comment within ten (10) days from notice of the resolution;
and b) held in abeyance the issuance of a TEPO.18
We note that on May 27, 2013, the Office of Legal Affairs
of the Department of Foreign Affairs sent a letter to this
court, requesting that the notice of this courts resolution
dated May 8, 2013 be returned, as it was not an agent for
the service of processes upon American respondents.19
The pleadings presented the following issues: a) whether
petitioners have legal standing to file a petition for writ of
kalikasan with prayer for temporary environmental
protection order (TEPO), and b) whether the doctrine of
sovereign immunity applies to foreign respondents.
Petitioners argued that they have locus standi.20 Having
categorized the petition as a citizens suit, they alleged that
they are representing others, including minors and
generations yet unborn in asserting their constitutional
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right to a
_______________
15 Id., at p. 161.
16 Id.
17 Id.
18 Id., at p. 145.
19 Id., at p. 255.
20 Id., at p. 31.
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balanced and healthful ecology.21 Petitioners cited this
courts ruling in Oposa v. Factoran that Article II, Section
16 of the 1987 Constitution was immediately enforceable.
The pronouncement was anchored on the premise that the
right to a balanced and healthful ecology belonged to a
different category of rights altogether for it concerns
nothing
less
than
self-preservation
and
self22
perpetuation.
Petitioners also alleged that the American respondents
are not immune from suit.23 Citing Nicolas v. Romulo,24
they argued that Article V of the Visiting Forces Agreement
or VFA, which pertained to Criminal Jurisdiction,25
establishes a
_______________
21 Id., at pp. 5-7.
22 Rollo, p. 32.
23 Id., at pp. 37-38.
24 598 Phil. 262; 578 SCRA 438 (2009) [Per J. Azcuna, En Banc].
25 Sections 1 and 2 of Article V provide:
1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States
personnel with respect to offenses committed within the Philippines and
punishable under the law of the Philippines.
(b) United States military authorities shall have the right to exercise
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within the Philippines all criminal and disciplinary jurisdiction conferred


on them by the military law of the United States over United States
personnel in the Philippines.
2. (a)Philippine authorities exercise exclusive jurisdiction over
United States personnel with respect to offenses, including offenses
relating to the security of the Philippines, punishable under the laws of
the Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over
United States personnel with respect to offenses, including offenses
relating to the security of the United States, punishable under the laws
of the United States, but not under the laws of the Philippines.
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waiver of the US military officers involved in the


incidents26 immunity from suit in light of their violation of
Republic Act 10067, or the Tubbataha Reefs Natural Park
(TRNP) Act of 2009,27 including its entry in the area
without proper permit.28 Also citing US cases New York v.
United States Army Corps of Engineers (E.D.N.Y.
September 24, 2012) and Trudeau v. FTC (456 F.3d 178,
D.C. Cir. 2006), petitioners further argued that existing US
federal statutes clearly provide that American government
agencies have statutorily waived their immunity from any
equitable action involving environmental damages.29 They
referred to both Resource Conservation and Recovery Act of
1976 (RCRA) and the Federal Tort Claims Act (FTCA) as
legal bases.30
Petitioners stated that RCRA waives sovereign
immunity in citizens suits when a) there is a need to
enforce a permit, standard, or regulation; b) there is a need
to abate an imminent and substantial danger to health or
the environment; or c) the United States Environhmental
Protection
Agency
is
required
to
perform
a
31
nondiscretionary duty.
On the other hand, the FTCA provides that the U.S.
Government is liable in tort in the same manner and to the
same extent as private individuals under like
circumstances [but only] if the laws of the state in which
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the wrongful act occurred provide recovery in similar


situations involving private parties.32
_______________
(c)For the purposes of this paragraph and paragraph 3 of this
Article, an offense relating to security means: (1) treason, (2) sabotage,
espionage or violation of any law relating to national defense.
26 Rollo, p. 36.
27 Id., at p. 19.
28 Id., at p. 47, as per Rep. Act No. 10067, Sec. 19.
29 Id., at p. 47.
30 Id., at p. 38.
31 Id.
32 Id., at p. 41.
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Petitioners also argued that the USS Guardian is liable
in rem33 to the Philippines for response costs and damages
resulting from the destruction, loss, and injury caused to
the Tubbataha Reefs.34 Aside from not having had prior
permit to enter the area, petitioners pointed out that the
American respondents had committed gross and
inexcusable negligence when it failed to utilize its technical
expertise and equipment in preventing the incident.35 It is
their position that this necessarily rendered sovereign
immunity inapplicable to American respondents, even if
they were acting within the scope of their authority, office,
or employment.36
II
The parties do not have legal standing
Petitioners brought this case as a citizens suit under the
Tubbataha Reefs Natural Park Act of 2009, in conjunction
with the Rules of Procedure for Environmental Cases.37
Section 37 of the Tubbataha Reefs Natural Park Act of
2009 allows any citizen to file a civil, criminal, or
administrative case against:
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(a) Any person who violates or fails to comply with the provisions
of this Act its implementing rules and regulations; or
_______________
33 Petitioners cited the United States Code (16 U.S.C.A. 19jj-1[b]) for the
definition of liability in rem: Any instrumentality, including but not limited to
a vessel, vehicle, aircraft, or other equipment that destroys, causes the loss of,
or injures any park system resource or any marine or aquatic park resource
shall be liable in rem to the United States for response costs and damages
resulting from such destruction, loss, or injury to the same extent as a person
is liable under subsection (a) of this section.
34 Rollo, p. 40.
35 Id., at p. 48.
36 Id.
37 Id., at p. 4.
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(b) Those mandated to implement and enforce the provisions of


this Act with respect to orders, rules and regulations issued
inconsistent with this Act; and/or
(c) Any public officer who wilfully or grossly neglects the
performance of an act, specifically enjoined as a duty by this Act or
its implementing rules and regulations; or abuses his authority in
the performance of his duty; or, in any manner improperly performs
his duties under this act or its implementing rules and regulations:
Provided, however, That, no suit can be filed until after a thirty
(30)-day notice has been given to the public officer and the alleged
violator concerned and no appropriate action has been taken
thereon. The court shall exempt such action from the payment of
filing fees, upon prima facie showing of the nonenforcement or
violations complained of and exempt the plaintiff from the filing of
an injunction bond for the issuance of preliminary injunction. In the
event that the citizen should prevail, the court shall award
reasonable attorneys fees, moral damages and litigation costs as
appropriate.

While

the

Tubbataha

Reefs

Natural

Park

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enumerates causes of action available against dutybearers, it does not specifically describe the parties who
may file a case.
The environmental nature of this petition, based upon
the alleged violation of the Tubbataha Reefs Natural Park
Act, by itself does not and should not automatically render
the Rules of Procedure for Environmental Cases applicable.
At best, it must be reconciled with rules on parties as
contained in the Rules of Court. This is to preclude a
situation where the interpretation of the Rules of
Procedure for Environmental Cases results in a ruling
inconsistent or contrary to established legal concepts. It is
my position that unless the remedy sought will serve the
purpose of preventing an environmental catastrophe, the
traditional procedural route should be taken. This means
that even in environmental cases, Rule 3, Sections 2, 3, or
12 of the 1997 Rules of Civil Procedure should still also
apply.
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Real party-in-interest
Rule 3, Section 2 pertains to real party-in-interest:
SEC.2.Parties-in-interest.A real party-in-interest is the
party who stands to be benefited or injured by the judgment in the
suit, or the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be prosecuted
or defended in the name of the real party in interest. (2a)38

A real party-in-interest is a litigant whose right or


interest stands to benefit or get injured by the judgment of
the case.39 The interest referred to must be material
interest, founded upon a legal right sought to be enforced.40
They bring a suit because the act or omission of another
has caused them to directly suffer its consequences.41
Simply put, a real party-in-interest has a cause of action
based upon an existing legal right-duty correlative.
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Representatives as parties
Section 3 of Rule 3, on the other hand, discusses parties
acting in representation of the real party-in-interest:
SEC.3.Representatives as parties.Where the action is
allowed to be prosecuted or defended by a representative or
someone acting in a fiduciary
_______________
38 Rules of Civil Procedure, Rule 3, Sec. 2.
39 See Consumido v. Ros, 555 Phil. 652, 658; 528 SCRA 696, 702 (2007) [Per
J. Tinga, Second Division].
40 Id.
41 Rebollido v. Court of Appeals, 252 Phil. 831, 839; 170 SCRA 800, 806
(1989) [Per J. Gutierrez, Jr., Third Division], citing Lee, et al. v. Romillo, Jr.,
244 Phil. 606, 612; 161 SCRA 589, 595 (1988) [Per J. Gutierrez, Jr., Third
Division].
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capacity, the beneficiary shall be included in the title of the case and
shall be deemed to be the real party-in-interest. A representative
may be a trustee of an express trust, a guardian, an executor or
administrator, or a party authorized by law or these Rules. An
agent acting in his own name and for the benefit of an undisclosed
principal may sue or be sued without joining the principal except
when the contract involves things belonging to the principal. (3a)42

A representative is not the party who will actually


benefit or suffer from the judgment of the case. The rule
requires that the beneficiary be identified as he or she is
deemed the real party-in-interest.43 This means that acting
in a representative capacity does not turn into a real partyin-interest someone who is otherwise an outsider to the
cause of action.
This rule enumerates who may act as representatives,
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including those acting in a fiduciary capacity. While not an


exhaustive list, it does set a limit by allowing only those
who are authorized by law or these Rules.44 In
environmental cases, this section may be used to bring a
suit, provided that two elements concur: a) the suit is
brought on behalf of an identified party whose right has
been violated, resulting in some form of damage, and b) the
representative authorized by law or the Rules of Court to
represent the victim.
The citizens suit under the Rules of Procedure for
Environmental Cases is a representative suit. A citizens
suit is defined:
SEC.5.Citizen suit.Any Filipino citizen in representation of
others, including minors or generations yet un_______________
42 Rules of Civil Procedure, Rule 3, Sec. 3.
43 Ang, represented by Aceron v. Spouses Ang, G.R. No. 186993, August 22,
2012, 678 SCRA 699, 709 [Per J. Reyes, Second Division].
44 Rules of Civil Procedure, supra.
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born, may file an action to enforce rights or obligations under
environmental laws. Upon the filing of a citizen suit, the court shall
issue an order which shall contain a brief description of the cause of
action and the reliefs prayed for, requiring all interested parties to
manifest their interest to intervene in the case within fifteen (15)
days from notice thereof. The plaintiff may publish the order once in
a newspaper of a general circulation in the Philippines or furnish
all affected barangays copies of said order.

In my view, this rule needs to be reviewed. A citizens


suit that seeks to enforce environmental rights and
obligations may be brought by any Filipino who is acting as
a representative of others, including minors or generations
yet unborn.45 As representatives, it is not necessary for
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petitioners to establish that they directly suffered from the


grounding of the USS Guardian and the subsequent
salvage operations. However, it is imperative for them to
indicate with certainty the injured parties on whose behalf
they bring the suit. Furthermore, the interest of those they
represent must be based upon concrete legal rights. It is
not sufficient to draw out a perceived interest from a
general, nebulous idea of a potential injury.
This is particularly important when the parties sought
to be represented are minors and generations yet unborn.
Minors and generations yet unborn is a category of
real party-in-interest that was first established in Oposa v.
Factoran. In Oposa v. Factoran, this court ruled that the
representatives derived their personality to file a suit on
behalf of succeeding generations from intergenerational
responsibility.46 The case mirrored through jurisprudence
the general moral duty of the present generation to ensure
the full enjoy_______________
45 Revised Procedure on Environmental Cases, Rule II, Sec. 5.
46 Supra note 1 at p. 803.
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ment of a balanced and healthful ecology by the succeeding


generations.47
Since environmental cases necessarily involve the
balancing of different types and degrees of interests,
allowing anyone from the present generation to represent
others who are yet unborn poses three possible dangers.
First, they run the risk of foreclosing arguments of
others who are unable to take part in the suit, putting into
question its representativeness. Second, varying interests
may potentially result in arguments that are bordering on
political issues, the resolutions of which do not fall upon
this court. Third, automatically allowing a class or citizens
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suit on behalf of minors and generations yet unborn may


result in the oversimplification of what may be a complex
issue, especially in light of the impossibility of determining
future generations true interests on the matter.
Decisions of this court will bind future generations. The
unbridled and misguided use of this remedy by supposed
representatives may not only weaken the minors and
unborns ability to decide for themselves but may have
unforeseen and unintended detrimental effects on their
interests.
The last point is especially crucial in light of res
judicata. A long-established doctrine on litigation, res
judicata:
. . . is an old axiom of law, dictated by wisdom and sanctified by
age, and founded on the broad principle that it is to the interest of
the public that there should be an end to litigation by the
same parties over a subject once fully and fairly adjudicated.
It has been appropriately said that the doctrine is a rule pervading
every well-regulated system of jurisprudence, and is put upon two
grounds embodied in various maxims of the common law:
one, public policy and necessity, which makes it to the
interest of the State
_______________
47 Id.

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that there should be an end to litigation interest


reipublicae ut sit finis litium; the other, the hardship
on the individual that he should be vexed twice for
one and the same cause nemo debet bis vexari pro
una et eadem causa. A contrary doctrine would subject
the public peace and quiet to the will and neglect of
individuals and prefer the gratification of the litigious
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disposition on the part of suitors to the preservation of the


public tranquillity and happiness.48 (Emphasis supplied,
citation omitted)
The elements of res judicata are:
. . . (1) the former judgment must be final; (2) the former
judgment must have been rendered by a court having
jurisdiction of the subject matter and the parties; (3) the former
judgment must be a judgment on the merits; and (4) there must
be between the first and subsequent actions (i) identity of
parties or at least such as representing the same interest in both
actions; (ii) identity of subject matter, or of the rights asserted
and relief prayed for, the relief being founded on the same facts;
and, (iii) identity of causes of action in both actions such that
any judgment that may be rendered in the other action will,
regardless of which party is successful, amount to res judicata in
the action under consideration.49 (Emphasis supplied, citation
omitted)

An absolute identity of the parties is not required for res


judicata to apply, for as long as there exists an identity or
community of interest.50
Res judicata renders conclusive between the parties and
their privies a ruling on their rights, not just for the
present action, but in all subsequent suits. This pertains to
all points
_______________
48

Heirs of Sotto v. Palicte, G.R. No. 159691, June 13, 2013, 698

SCRA 294, 308 [Per J. Bersamin, First Division].


49 Id., at p. 304.
50 Id., at p. 306.
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and matters judicially tried by a competent court. The


doctrine bars parties to litigate an issue more than once,
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and this is strictly applied because the maintenance of


public order, the repose of society . . . require that what has
been definitely determined by competent tribunals shall be
accepted as irrefragable legal truth.51
Considering the effect of res judicata, the ruling in
Oposa v. Factoran has opened a dangerous practice of
binding parties who are yet incapable of making choices for
themselves, either due to minority or the sheer fact that
they do not yet exist. Once res judicata sets in, the
impleaded minors and generations yet unborn will be
unable to bring a suit to relitigate their interest.
Perhaps it is time to revisit the ruling in Oposa v.
Factoran.
That case was significant in that, at that time, there was
need to call attention to environmental concerns in light of
emerging
international
legal
principles.
While
intergenerational responsibility is a noble principle, it
should not be used to obtain judgments that would preclude
future generations from making their own assessment based
on their actual concerns. The present generation must
restrain itself from assuming that it can speak best for those
who will exist at a different time, under a different set of
circumstances. In essence, the unbridled resort to
representative suit will inevitably result in preventing
future generations from protecting their own rights and
pursuing their own interests and decisions. It reduces the
autonomy of our children and our childrens children. Even
before they are born, we again restricted their ability to
make their own arguments.
It is my opinion that, at best, the use of the Oposa
doctrine in environmental cases should be allowed only
when a) there is a clear legal basis for the representative
suit; b) there are actual concerns based squarely upon an
existing legal right; c) there is no possibility of any
countervailing interests existing
_______________
51 Id., at p. 308.
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within the population represented or those that are yet to be
born; and d) there is an absolute necessity for such standing
because there is a threat of catastrophe so imminent that an
immediate protective measure is necessary. Better still, in
the light of its costs and risks, we abandon the precedent all
together.
Class suit
The same concern regarding res judicata also applies to
a class suit.
Rule 3, Section 12 of the Rules of Court states:
SEC.12.Class suit.When the subject matter of the
controversy is one of common or general interest to many persons so
numerous that it is impracticable to join all as parties, a number of
them which the court finds to be sufficiently numerous and
representative as to fully protect the interests of all concerned may
sue or defend for the benefit of all. Any party-in-interest shall have
the right to intervene to protect his individual interest. (12a)

In Mathay, et al. v. The Consolidated Bank and Trust


Company,52 this court held that a class suit must
essentially contain the following elements:
The necessary elements for the maintenance of a class suit
are accordingly (1) that the subject matter of the controversy be
one of common or general interest to many persons, and (2)
that such persons be so numerous as to make it impracticable
to bring them all to the court. An action does not become a class
suit merely because it is designated as such in the pleadings.
Whether the suit is or is not a class suit depends upon the
attending facts, and the complaint, or
_______________
52 157 Phil. 551; 58 SCRA 559 (1974) [Per J. Zaldivar, Second Division].
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other pleading initiating the class action should allege the existence
of the necessary facts, to wit, the existence of a subject matter of
common interest, and the existence of a class and the number
of persons in the alleged class, in order that the court might
be enabled to determine whether the members of the class are
so numerous as to make it impracticable to bring them all
before the court, to contrast the number appearing on the
record with the number in the class and to determine
whether claimants on record adequately represent the class
and the subject matter of general or common interest.
The complaint in the instant case explicitly declared that the
plaintiffs-appellants instituted the present class suit under Section
12, Rule 3, of the Rules of Court in behalf of CMI subscribing
stockholders but did not state the number of said CMI subscribing
stockholders so that the trial court could not infer, much less make
sure as explicitly required by the statutory provision, that the
parties actually before it were sufficiently numerous and
representative in order that all interests concerned might be
fully protected, and that it was impracticable to bring such a large
number of parties before the court.
The statute also requires, as a prerequisite to a class suit, that
the subject matter of the controversy be of common or general
interest to numerous persons. Although it has been remarked
that the innocent common or general interest requirement
is not very helpful in determining whether or not the suit is
proper, the decided cases in our jurisdiction have more
incisively certified the matter when there is such common or
general interest in the subject matter of the controversy. By
the phrase subject matter of the action is meant the
physical facts, the things real or personal, the money, lands,
chattels, and the like, in relation to which the suit is
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prosecuted, and not the delict or wrong committed by the
defendant.53 (Emphasis supplied, citations omitted)
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The same case referred to the United States Federal


Rules of Civil Procedure. After having been raised by
Mathay, et al. as legal basis for its class suit, this court
held:
. . . We have no conflict with the authorities cited; those were rulings
under the Federal Rules of Civil Procedure, pursuant to Rule 23 of
which, there were three types of class suits, namely: the true, the
hybrid, and the spurious, and these three had only one feature in
common, that is, in each the persons constituting the class must
be so numerous as to make it impracticable to bring them all
before the court. The authorities cited by plaintiffs-appellants refer to
the spurious class action Rule 23(a)(3) which involves a right sought to
be enforced, which is several, and there is a common question of law or
fact affecting the several rights and a common relief is sought. The
spurious class action is merely a permissive joinder device; between the
members of the class there is no jural relationship, and the right or
liability of each is distinct, the class being formed solely by the presence
of a common question of law or fact. This permissive joinder is provided
in Section 6 of Rule 3, of our Rules of Court. Such joinder is not and
cannot be regarded as a class suit, which this action purported and was
intended to be as per averment of the complaint.
It may be granted that the claims of all the appellants involved
the same question of law. But this alone, as said above, did not
constitute

the

common

interest

indispensable in a class suit. . . .

over
54

the

subject

matter

(Emphasis supplied, citations

omitted)
_______________
53 Id., at pp. 563-565; pp. 570-571.
54 Id., at pp. 567-568; p. 574.
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In a class suit, petitioners necessarily bring the suit in


two capacities: first, as persons directly injured by the act
or omission complained of; and second, as representatives
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of an entire class who have suffered the same injury. In


order to fully protect all those concerned, petitioners must
show that they belong in the same universe as those they
seek to represent. More importantly, they must establish
that, in that universe, they can intervene on behalf of the
rest.
These requirements equally apply in environmental
cases.
Petitioners who bring the suit both for themselves and
those they seek to represent must share a common legal
interest that is, the subject of the suit over which there
exists a cause of action is common to all persons who
belong to the group.55 As a result, the right sought to be
enforced is enjoyed collectively, and not separately or
individually.56 The substantial injury must have been
suffered by both the parties bringing the suit and the
represented class.
However, it is recognized that any damage to the
environment affects people differently, rendering it
impossible for the injury suffered to be of the same nature
and degree for each and every person. For instance,
secondhand smoke from one who lights up a cigarette may
cause lung and other health complications of a much graver
degree to exposed commuters, compared to those who are
kept insulated by well-maintained and well-ventilated
buildings. The same may be said for dumpsites along the
shores of a bay. The gravity of injury they cause to those
whose source of livelihood is purely fishing in the affected
area would be entirely different from that suffered by an
office worker.
_______________
55 See Re: Request of the Plaintiffs, Heirs of the Passengers of the
Doa Paz to Set Aside the Order dated January 4, 1988 of Judge B.D.
Chingcuangco, A.M. No. 88-1-646-0, March 3, 1988, 159 SCRA 623, 627
[En Banc].
56 Id.
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The differences in effects, ranging from miniscule to
grave, increase the possibility of free-riders in a case.
This results in a negative externality: an environmental
management concept that delves into the effect of an
individuals or firms action on others.57 In this case, the
effect on others is a disadvantage or an injury.
In most instances where this free-rider or negative
externality exists, a suit is not filed because the cost of
maintaining and litigating outweighs the actual damage
suffered due to the act or omission of another. The theory is
that bringing a class suit allows those who are not as
affected as petitioners, though they may share the same
interest, to latch their claim on someone else without any
personal expense. There must be some assurances,
however, that the interests are the same and the
arguments that should have been brought by others who do
not have the resources to bring the suit are properly
represented. This is why the rules allow courts to be liberal
in assessing common interest.
Another essential element of a class suit is that
petitioners
must
be
sufficiently
numerous
and
representative so as to fully protect the interest of all
concerned. One of the dangers of bringing a class suit is
that while the parties environmental interest shares a
common legal basis, the extent and nature of that interest
differ depending on circumstances.
In the case of Re: Request of the Plaintiffs, Heirs of the
Passengers of the Doa Paz,58 which quoted Moores
Federal Practice we noted:
A true class action distinguished from the so-called
hybrid and the spurious class action in U.S. Federal Practice
involves principles of compulsory joinder, since . . . (were it not) for
the numerosity of
_______________
57 J.E. Stiglitz, Economics of the Public Sector, p. 215 (3rd ed., 2000).
58 Supra note 55.
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the class members all should . . . (be) before the court. Included
within the true class suit . . . (are) the shareholders derivative suit
and a class action by or against an unincorporated association. . . .
A judgment in a class suit, whether favorable or unfavorable
to the class, is binding under res judicata principles upon all
the members of the class, whether or not they were before the
court. It is the non-divisible nature of the right sued on
which determines both the membership of the class and the
res judicata effect of the final determination of the right.59
(Emphasis supplied)

Those who bring class suits do so, carrying a heavy


burden of representation. All the parties represented may
not have consented to the agency imposed on them.
Courts, therefore, must ensure that the parties that
bring the suit are sufficiently numerous to ensure that all
possible interests and arguments have been considered.
The community, class, group, or identity that is represented
must be sufficiently defined so that the court will be able to
properly assess that the parties bringing the suit are
properly representative.
In view of the technical nature of some environmental
cases, not only should the parties be representative in
terms of the interests and arguments that they bring, they
must likewise show that they have the capability to bring
reasonably cogent, rational, scientific, well-founded
arguments. This is so because if they purportedly represent
a community, class, group, or identity, we should assume
that all those represented would have wanted to argue in
the best possible manner.
The cogency and representativeness of the arguments
can readily be seen in the initiatory pleading. In the special
civil
_______________
59 Id., at p. 627.
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actions invoked in this case, this court has the discretion to
scrutinize the initiatory pleading to determine whether it
should grant due course prior or after the filing of a
comment. In my view, this pleading falls short of the
requirement of representativeness.
For instance, it is clear in some of the reliefs that were
requested that the arguments may not be what all those
they purport to represent really want. As an illustration,
the petition requests:
3)for respondents to stop all port calls and war games under
the Balikatan;

The facts in this case and the writ of kalikasan certainly


have no bearing on why this court should issue an
injunction against all port calls in any part of the country
made by all kinds of ships even if this is related to the
Balikatan exercises. War games even undertaken solely
on land has no bearing on the subject matter of this case.
Also, in the facts as alleged in the pleading, it is not clear
how all those affected by the ecological mishap that may
have occurred in the Tubbataha Reefs would also be
interested in stopping war games under the Balikatan.
The pleading asserts that it represents all generations yet
unborn. Thus, it includes the sons and daughters of all
government officials who are now involved in the Balikatan
exercises. It also includes the military commanders who
are now administering such exercise. The broad relief
requested belies the representativeness of the suit.
Of similar nature are the following prayers for relief in
the petition:
4)for respondents to assume responsibility for prior
and future environmental damage in general and under the
Visiting Forces Agreement (VFA);
5)for the temporary definition of allowable activities
near or around the Tubbataha Reefs [Natural] Park, but
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away from the damaged site and the additional buffer zone;
6)for respondent Secretary of Foreign Affairs to
negotiate with the United States representatives for an
agreement on environmental guidelines and accountability
pursuant to the VFA;
....
8)for the declaration of exclusive criminal jurisdiction
of Philippine authorities over erring USS Guardian
personnel;
....
14)for the convention of a multisectoral technical
working group that will provide scientific and technical
support to the Tubbataha Protected Area Management
Board (TPAMBl);
15)for respondents Department of Foreign Affairs,
Department of National Defense, and the Department of
Environmental and Natural Resources to review the VFA
and the Mutual Defense Treaty in light of the right to a
balanced and healthful ecology, and any violation related
thereto;
16)for the declaration of the grant of immunity under
Articles V and VI of the VFA as being violative of equal
protection
and/or
the
peremptory
norm
of
nondiscrimination;
17)for permission to resort to continuing discovery
measures.
Not all environmental cases need to be brought as class
suits. There is no procedural requirement that majority of
those affected must file a suit in order that an injunctive
writ or a writ of kalikasan can be issued. It is sufficient
that the party has suffered its own direct and substantial
interest, its legal basis is cogent, and it has the capability
to move forward to present the facts and, if necessary, the
scientific basis for its analysis for some of these cases to be
given due course.
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Parenthetically, the humility of bringing suits only in
the name of petitioners will protect them from the charge
that more than the legal arguments they want to bring,
they also want to impose their own political views as views
which are universally accepted.
In all environmental cases, it is also not necessary that
generations yet unborn be represented. It is not also
necessary that minors bring the suit. In my view, pleading
their interests have no value added to the case except for
its emotive effect at the risk of encouraging a paternal
attitude toward our children and for those belonging to
generations yet unborn. Certainly, it was not necessary
with respect to the putative cause of action relating to the
grounding of the USS Guardian.
With the class suit improperly brought, the parties who
filed this petition have no legal standing. To protect the
individuals, families, and communities who are improperly
represented, this case should be dismissed.
III
A petition for a writ of kalikasan is
a wrong remedy
Rule 7, Part III of the Rules of Procedure for
Environmental Cases pertaines to the writ of kalikasan. It
describes the nature of the writ:
Section1.Nature of the writ.The writ is a remedy
available to a natural or juridical person, entity authorized by law,
peoples organization, nongovernmental organization, or any public
interest group accredited by or registered with any
government agency, on behalf of persons whose constitutional
right to a balanced and healthful ecology is violated, or
threatened with violation by an unlawful act or omission of a
public official or employee, or private individual or entity,
involving environmental damage of such magnitude as to
prejudice the life, health or prop188

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erty of inhabitants in two or more cities or provinces.
(Emphasis supplied)

The writ of kalikasan is a remedy that covers


environmental damages the magnitude of which
transcends both political and territorial boundaries.60 It
specifically provides that the prejudice to life, health, or
property caused by an unlawful act or omission of a public
official, public employee, or a private individual or entity
must be felt in at least two cities or provinces.61 The
petition for its issuance may be filed on behalf of those
whose right to a balanced and healthful ecology is violated,
provided that the group or organization which seeks to
represent is duly accredited.62
Two things must be examined: first, whether petitioners
are qualified to bring this suit under the requirements of
the provisions; and second, whether there are actual
injured parties being represented. On the first issue, the
following petitioners bring this case as individuals:
Rev. Pedro Agiro, Vicar Apostolic of Puerto Princesa63
Rev. Deogracias Iniguez, Jr., Bishop-Emeritus of Caloocan64
Frances Quimpo65
Teresita R. Perez, Ph.D.66
Giovanni Tapang, Ph.D.67
Jose Enrique Africa68
_______________
60 Annotation to the Rules of Procedure for Environmental Cases, p. 133.
61 Id.
62 Id.
63 Rollo, p. 5.
64 Id.
65 Id.
66 Id., at p. 6.
67 Id.
68 Id.
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Nestor Baguinon69
Edsel Tupa70

The following petitioners represent organizations:


Clemente Bautista Jr., Coordinator of Kalikasan Peoples
Network for the Environment71
Maria Carolina Araullo, Chairperson of Bagong Alyansang
Makabayan (Bayan)72
Renato Reyes Jr., Secretary-General of Bagong Alyansang
Makabayan (Bayan)73
Hon. Neri Javier Colmenares, Representative of Bayan Muna
Party-list74
Roland Simbulan, Ph.D., Junk VFA Movement75
Hon. Raymond Palatino, Representative of Kabataan Party-list76
Peter Gonzales, Vice Chairperson of Pambansang Lakas ng
Kilusang Mamamalakaya ng Pilipinas (Pamalakaya)77
Elmer Labog, Chairperson of Kilusang Mayo Uno78
Joan May Salvador, Secretary-General of Gabriela79
Theresa Concepcion, Earth Island Institute80
_______________
69 Id., at p. 7.
70 Id.
71 Id., at p. 5.
72 Id.
73 Id.
74 Id.
75 Id., at p. 6.
76 Id.
77 Id.
78 Id.
79 Id.
80 Id.
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Mary Joan Guan, Executive Director for Center for Womens


Resource81

Petitioners satisfy the first requirement as they


comprise both natural persons and groups duly recognized
by the government. It is doubtful, however, whether there
are actual injured parties being represented. As discussed
previously, a citizens suit on an environmental issue must
be resorted to responsibly.
Petitioners in this case also seek the issuance of a
temporary environmental protection order or TEPO. Rule
7, Part III of the Rules of Procedure for Environmental
Cases provides:
SEC.8.Issuance of Temporary Environmental Protection Order
(TEPO).If it appears from the verified complaint with a prayer for
the issuance of an Environmental Protection Order (EPO) that the
matter is of extreme urgency and the applicant will suffer
grave injustice and irreparable injury, the executive judge of
the multiple-sala court before raffle or the presiding judge of a
single-sala court as the case may be, may issue ex parte a TEPO
effective for only seventy-two (72) hours from date of the receipt of
the TEPO by the party or person enjoined. Within said period, the
court where the case is assigned, shall conduct a summary hearing
to determine whether the TEPO may be extended until the
termination of the case.
The court where the case is assigned, shall periodically monitor
the existence of acts that are the subject matter of the TEPO even if
issued by the executive judge, and may lift the same at any time as
circumstances may warrant.
The applicant shall be exempted from the posting of a bond for
the issuance of a TEPO. (Emphasis supplied)
_______________
81 Id.
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A TEPO is an order which either directs or enjoins a


person or government agency to perform or refrain from a
certain act, for the purpose of protecting, preserving, and/or
rehabilitating the environment.82 The crucial elements in
its issuance are the presence of extreme urgency and
grave injustice and irreparable injury to the applicant.83
Petitioners hinge the basis for this prayer on the salvage
operations conducted immediately after the incident. The
remedy is no longer available considering that all activities
to remove the grounded USS Guardian have been
concluded.84 Furthermore, the Notice to Mariners No. 0112013 issued by the Philippine Coast Guard on January 29,
2013 effectively set the metes and bounds of the damaged
area.85 This notice also prohibited leisure trips to
Tubbataha and advised all watercrafts transitting the
vicinity to take precautionary measures.86
In light of the facts of this case, I vote that the petition
be also dismissed for being moot and being brought
through the wrong remedy.
IV
Doctrine of relative jurisdictional immunity
(sovereign immunity)
It is my position that doctrine on relative jurisdictional
immunity of foreign states or otherwise referred to as
sovereign immunity should be further refined. I am of the
view that immunity does not necessarily apply to all
the foreign respondents should the case have been
brought in a timely manner, with the proper remedy,
and in the
_______________
82 Supra note 60 at p. 113.
83 Id., at p. 114.
84 Rollo, p. 164.
85 Id.
86 Id., at p. 161.
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proper court. Those who have directly and actually
committed culpable acts or acts resulting from gross
negligence resulting in the grounding of a foreign
warship in violation of our laws defining a tortious
act or one that protects the environment which
implement binding international obligations cannot
claim sovereign immunity.
Some clarification may be necessary to map the contours
of relative jurisdictional immunity of foreign states
otherwise known as the doctrine of sovereign immunity.
The doctrine of sovereign immunity can be understood
either as a domestic or an international concept.87
As a domestic concept, sovereign immunity is
understood as the non-suability of the state. In the case of
the Republic of the Philippines as a State, this is contained
in Article XVI, Section 3 of the 1987 Philippine
Constitution, which provides that [the] State may not be
sued without its consent.
In Air Transportation Office v. Spouses Ramos,88 this
court underscored the practical considerations underlying
the doctrine:
Practical considerations dictate the establishment of an
immunity from suit in favor of the State. Otherwise, and the
State is suable at the instance of every other individual,
government service may be severely obstructed and public
safety endangered because of the number of suits that the
State has to defend against . . . .89 (Emphasis supplied, citation
omitted)
_______________
87 Supra note 2.
88

G.R. No. 159402, February 23, 2011, 644 SCRA 36 [Per J.

Bersamin, Third Division].


89 Id., at p. 42.
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The textual reference to [the] State in Article XVI,
Section 3 of the Constitution does not refer to foreign
governments. Rather, as a doctrine in international law,
the concept of sovereign immunity is incorporated into our
jurisdiction as international custom or general principle of
international law through Article II, Section 2, which
provides:
Section2.The Philippine renounces war as an instrument of
national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the
policy of peace, equality, justice, freedom, cooperation, and amity
with all nations.90

Alternatively, should there be an international


agreement or a treaty91 that articulates the scope of
jurisdictional immunity for other sovereigns, then it can be
incorporated through Article VII, Section 21, which
provides:
No treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the
Senate.

In Republic of Indonesia v. Vinzon,92 this court ruled


that [the] rule that a State may not be sued without its
consent is a necessary consequence of the principles of
independence and equality of States.93 However, it did not
make any reference to Article XVI, Section 3 of the
Constitution. Instead, it used Article II, Section 294 as basis
for its discussion:
_______________
90 Const. (1987), Art. II, Sec. 2.
91 Unless the relevant treaty provision simply articulates an existing
international customary norm in which case it will be arguably
incorporated through Article II, Section 2 of the Constitution also.
92 452 Phil. 1100; 405 SCRA 126 (2003) [Per J. Azcuna, En Banc].
93 Id., at p. 1107; p. 131.
94 Const. (1987), Art. II, Sec. 2 states, The Philippines renounces

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International law is founded largely upon the principles


of reciprocity, comity, independence, and equality of States
which were adopted as part of the law of our land under
Article II, Section 2 of the 1987 Constitution. The rule that a
State may not be sued without its consent is a necessary
consequence of the principles of independence and equality
of States. As enunciated in Sanders v. Veridiano II, the practical
justification for the doctrine of sovereign immunity is that there can
be no legal right against the authority that makes the law on which
the right depends. In the case of foreign States, the rule is
derived from the principle of the sovereign equality of States,
as expressed in the maxim par in parem non habet imperium.
All states are sovereign equals and cannot assert jurisdiction over
one another. A contrary attitude would unduly vex the peace of
nations.95 (Emphasis supplied, citations omitted)

V
Sovereign immunity under international law
Under international law, sovereign immunity remains to
be an abstract concept. On a basic level, it is understood as
a basic right extended to states by other states on the basis
of respect for sovereignty and independence.96 There
appears to be a consensus among states that sovereign
immunity as a concept is legally binding.97 Nevertheless,
legal scholars observe that there remains to be a lack of
agreement as to how it is to be invoked or exercised in
actual cases.98 Finke presents:
______________
ally accepted principles of international law as part of the law
of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations.
95 Supra note 92 at p. 1107; pp. 130-131.
96 Supra note 2.
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97 Id., at p. 856.
98 Id.
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States accept sovereign immunity as a legally binding concept,
but only on a very abstract level. They agree on the general idea
of immunity, but disagree on the extent to which they
actually must grant immunity in a specific case.99 (Emphasis
supplied, citations omitted)

This vagueness arises from the debate about the sources


of international law for the doctrine of sovereign immunity.
Article 38(1) of the Statute of the International Court of
Justice (ICJ Statute)100 enumerates the classic sources of
international law:101
The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice
accepted as law;
c. the general principles of law recognized by civilized
nations;
d. subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.

International conventions, or treaties, are international


agreement[s] concluded between States in written form and
governed by international law, whether embodied in a
single instrument, or in two or more related instruments
and what_______________
99 Id., at pp. 856-857.
100 Available at <http://legal.un.org/avl/pdf/ha/sicj/icj_statue_e.pdf>.
101 See D. Kennedy, The Sources of International Law, 2(1) American
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University Int. Law Review, 1-96 (1987).


196

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ever its particular designation.102 International custom, or


customary international law, pertains to principles, not
necessarily expressed in treaties, resulting from practices
consistently followed by states due to a sense of legal
obligation.103 General principles of law recognized by
civilized nations are (those) principles of law, private and
public, which contemplation of the legal experience of
civilized nations leads one to regard as obvious maxims of
jurisprudence of a general and fundamental character.104
Sovereign immunity under treaty law
Attempts have been made to establish sovereign
immunity under treaty law.105 On a multilateral level, two
treaties on this issue have been codified: a) the European
Convention on State Immunity (ECSI), and b) the UN
Convention on Jurisdictional Immunities of States
(UNCJIS).
_______________
102 Vienna Convention on the Law of Treaties (1961), Art. 2(1)(a)
<https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume1155-1-18232-English.pdf>.
103

E. Posner and Jack L. Goldsmith, A Theory of Customary

International Law (John M. Olin Program in Law and Economics


Working Paper No. 63, 1998). See also M. Panezi, Sources of Law in
Transition: Re-visiting general principles of International Law, Ancilla
Juris,

and

<http://www.anci.ch/_media/beitrag/ancilla2007_66_panezi_sources.pdf>.
See also Restatement (Third) of Foreign Relations Law (1987), Sec.
102(2).
104

E. Posner and Jack L. Goldsmith, A Theory of Customary

International Law 70 (John M. Olin Program in Law and Economics


Working Paper No. 63, 1998). See also E. Lauterpacht, International Law
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Being the Collected Papers of Hersch Lauterpacht, Vol. I, The General


Works.
105 Supra note 2 at p. 857.

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The European Convention on State Immunity is a treaty
established through the Council of Europe on May 16,
1972.106 In the Council of Europes explanatory report,
sovereign immunity is defined as a concept of
international law, which has developed out of the principle
par in parem non habet imperium, by virtue of which one
State is not subject to the jurisdiction of another State.107
The treaty arose out of the need to address cases where
states become involved in areas of private law:
For many years State immunity has occupied the attention of
eminent jurists. It is also the object of abundant case law. The
development of international relations and the increasing
intervention of States in spheres belonging to private law
have posed the problem still more acutely by increasing the
number of disputes opposing individuals and foreign States.
There are, at present, two theories, that of absolute State
immunity which is the logical consequence of the principle stated
above and that of relative State immunity which is tending to
predominate on account of the requirement of modern
conditions. According to this latter theory, the State enjoys
immunity for acts jure imperii but not for acts jure gestionis,
that is to say when it acts in the same way as a private
person in relations governed by private law. This divergence of
opinion causes difficulties in international relations. States whose
courts and administrative authorities apply the theory of absolute
State immunity are led to call for the same treatment abroad.
(Emphasis supplied)
_______________
106 Council of Europe Explanatory Report on the European

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Convention
on
State
Immunity
(ETS
No.
074),
<http://conventions.coe.int/Treaty/EN/Reports/Html/074.htm>.
107 Id.
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However, the European Convention on Sovereign


Immunitys application is limited to the signatories of the
treaty:
The Convention requires each Contracting State to give effect to
judgments rendered against it by the courts of another Contracting
State. It is in particular for this reason that it operates only
between the Contracting States on the basis of the special
confidence subsisting among the Members of the Council of
Europe. The Convention confers no rights on nonContracting
States; in particular, it leaves open all questions as to the exercise
of jurisdiction against non-Contracting States in Contracting
States, and vice versa.

On the other hand, the UN Convention on Jurisdictional


Immunities of States108 is a treaty adopted by the UN
General Assembly in December 2004. It was opened for
signature on January 27, 2005, but is yet to be in force109
for lacking the requisite number of member-state
signatories.110 At present, it only has 28 signatories, 16 of
which have either ratified, accepted, approved, or acceded
to the treaty.111
UNCJIS refers to jurisdictional immunities of states as
a principle of customary international law.112 Scholars,
however, point out that this posture is not accurate.
According to Nagan and Root:113

_______________
108 December 2, 2004.
109 The Philippines is not a signatory to the Convention.

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110 See Art. 30 of Convention.


111 Status according to the UN Treaty Collection as of 07-17-2014,
<https://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=III13&chapter=3&lang=en>.
112 UN Convention on Jurisdictional Immunities of States and their
Properties, preamble.
113 W. Nagan and J. L. Root, The Emerging Restrictions on Sovereign
Immunity: Peremptory Norms of International Law, the UN Charter, and
the Application of Modern Communications Theory, 38 N.C. J. Intl L. &
Comm.

Reg.

375

(2013)

<http://www.law.unc.edu/journals/ncilj/issues/volume38/issue-2-winter2013/the-emerging-

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It may be true that all states recognize jurisdictional
immunity, but as we have already alluded to, that is so only at an
abstract level; there is substantial disagreement on detail
and substance.114 (Emphasis supplied, citations omitted)

Wiesinger adds:
The UN Convention is not a codification of customary
international law concerning enforcement measures either,
since it introduces new categories of State property, which
are immune from execution. Moreover, it contains a connection
requirement of property serving commercial purposes with the
entity against which the claim was directed, which is a novelty in
international law.115 (Emphasis supplied)

The Philippines has neither signed nor ratified the


UNCJIS. Article VII, Section 21 of the Constitution clearly
provides the legal requisites to a valid and enforceable
international treaty: No treaty or international agreement
shall be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate.
Senior Associate Justice Antonio T. Carpio ably points to
the UN Convention on the Law of the Sea (UNCLOS) as
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basis for the waiver of sovereign immunity in this case, on


account of a warship entering a restricted area and causing
damage to the TRNP reef system. This is based on a
reading of Articles 31 and 32 of the UNCLOS, thus:
_______________
restrictions-on-sovereign-immunity-peremptory-norms-ofinternational-law-the-un-charter-and-the-application-of-moderncommunication-theo/>.
114 Id., at pp. 60-61.
115

M.E. Wiesinger, State Immunity from Enforcement Measures

(2006) <http://intlaw.univie.ac.at/fileadmin/user_upload/int_beziehungen/
Internetpubl/wiesinger.pdf>.
200

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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.

This is, however, subject to Article 32 of the same treaty


which provides:
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.

I agree that the UNCLOS does provide an opening


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clarifying the international responsibility of the flag ship


for noncompliance by a warship with the laws of a coastal
State. However, because of Article 32 of the same treaty, it
would seem that it should not be the only basis for this
court to infer either a waiver by the United States or
authority under international law for domestic courts to
shape their own doctrines of sovereign jurisdictional
immunity.
Other international agreements
The text of Article VII, Section 21 would seem to require
Senate concurrence for treaties and international
agreements. The term international agreements,
however, for
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purposes of granting sovereign immunity, should not cover
mere executive agreements.
We are aware of Bayan Muna v. Romulo116 where the
ponente for this court held:
. . . International agreements may be in the form of (1)
treaties that require legislative concurrence after executive
ratification; or (2) executive agreements that are similar to
treaties, except that they do not require legislative
concurrence and are usually less formal and deal with a
narrower range of subject matters than treaties.
Under international law, there is no difference between
treaties and executive agreements in terms of their binding
effects on the contracting states concerned, as long as the
negotiating functionaries have remained within their
powers. Neither, on the domestic sphere, can one be held valid if it
violates the Constitution. Authorities are, however, agreed that one
is distinct from another for accepted reasons apart from the
concurrence-requirement aspect. As has been observed by US
constitutional scholars, a treaty has greater dignity than an
executive agreement, because its constitutional efficacy is beyond
doubt, a treaty having behind it the authority of the President, the
Senate, and the people; a ratified treaty, unlike an executive
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agreement, takes precedence over any prior statutory enactment.117


(Emphasis supplied, citations omitted)

This statement, however, should be confined only to the


facts of that case. Executive agreements are not the same
as treaties as a source of international law. It certainly may
have a different effect in relation to our present statutes
unlike a treaty that is properly ratified.
_______________
116 Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641
SCRA 244 [Per J. Velasco, Jr., En Banc].
117 Id., at pp. 258-260.
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Due to the nature of respondents position in the United


States Armed Forces, the Visiting Forces Agreement of
1998 (VFA) is relevant in this case. In particular, the
question of whether the VFA, executed between the
Republic of the Philippines and the United States
government, may be treated as a treaty upon which the
doctrine of foreign sovereign immunity is founded must be
addressed.
In BAYAN v. Zamora,118 this court tackled the issues
pertaining to the constitutionality of the VFA. It was
described as consist[ing] of a Preamble and nine (9)
Articles, [and it] provides for the mechanism for regulating
the circumstances and conditions under which [the] US
Armed Forces and defense personnel maybe present in the
Philippines. . . . 119
As a preliminary issue, this court ruled that the Senate
concurrence as required by the Constitution was achieved,
thereby giving VFA a legally binding effect upon the
government.120 However, the agreements characterization
as a treaty was put in question. This court held that
despite the nonconcurrence of the United States Senate,
the VFA is validly categorized as a treaty:
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This Court is of the firm view that the phrase recognized as a


treaty means that the other contracting party accepts or
acknowledges the agreement as a treaty. To require the other
contracting state, the United States of America in this case, to
submit the VFA to the United States Senate for concurrence
pursuant to its Constitution, is to accord strict meaning to the
phrase.
Well-entrenched is the principle that the words used in the
Constitution are to be given their ordinary meaning except where
technical terms are employed, in which case the significance thus
attached to them pre_______________
118 396 Phil. 623; 342 SCRA 449 (2000) [Per J. Buena, En Banc].
119 Id., at p. 637; p. 469.
120 Id., at p. 656; p. 487.
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vails. Its language should be understood in the sense they have in
common use.
Moreover, it is inconsequential whether the United States
treats the VFA only as an executive agreement because, under
international law, an executive agreement is as binding as a
treaty. To be sure, as long as the VFA possesses the elements of
an agreement under international law, the said agreement is
to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of
Treaties, is an international instrument concluded between States
in written form and governed by international law, whether
embodied in a single instrument or in two or more related
instruments, and whatever its particular designation. There are
many other terms used for a treaty or international agreement,
some of which are: act, protocol, agreement, compromis d arbitrage,
concordat, convention, declaration, exchange of notes, pact, statute,
charter and modus vivendi. All writers, from Hugo Grotius onward,
have pointed out that the names or titles of international
agreements included under the general term treaty have little or no

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legal significance. Certain terms are useful, but they furnish little
more than mere description.
Article 2(2) of the Vienna Convention provides that the
provisions of paragraph 1 regarding the use of terms in the
present Convention are without prejudice to the use of those
terms, or to the meanings which may be given to them in the
internal law of the State.
Thus, in international law, there is no difference between
treaties and executive agreements in their binding effect
upon states concerned, as long as the negotiating
functionaries
have
remained
within
their
powers.
International law continues to make no distinction between
treaties and executive agreements: they are equally binding
obligations upon nations.
204

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In our jurisdiction, we have recognized the binding effect


of executive agreements even without the concurrence of the
Senate or Congress. . . .
....
The records reveal that the United States Government, through
Ambassador Thomas C. Hubbard, has stated that the United States
government has fully committed to living up to the terms of the
VFA. For as long as the United States of America accepts or
acknowledges the VFA as a treaty, and binds itself further to comply
with its obligations under the treaty, there is indeed marked
compliance with the mandate of the Constitution.121 (Emphasis
supplied, citations omitted)

Under the US legal system, however, an executive


agreement, while legally binding, may not have the same
effect as a treaty. It may, under certain circumstances, be
considered as inferior to US law and/or Constitution.
According to Garcia:122
Under the U.S. legal system, international agreements can be
entered into by means of a treaty or an executive agreement. The
Constitution allocates primary responsibility for entering into such
agreements to the executive branch, but Congress also plays an
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essential role. First, in order for a treaty (but not an executive


agreement) to become binding upon the United States, the Senate
must provide its advice and consent to treaty ratification by a twothirds majority. Secondly, Congress may authorize congressionalexecutive agreements. Thirdly, many treaties and executive
agreements are not self-executing, meaning that implementing
legislation is required to provide U.S. bodies with the domestic legal
_______________
121 Id., at pp. 657-660; pp. 488-491.
122 M. J. Garcia (Legislative Attorney), International Law and Agreements:
their effect upon US law, Congressional Research Service 7-5700 RL32528
(2014), <http://fas.org/sgp/crs/misc/RL32528.
pdf>.
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authority necessary to enforce and comply with an international
agreements provisions.
The status of an international agreement within the
United States depends on a variety of factors. Self-executing
treaties have a status equal to federal statute, superior to U.S. state
law, and inferior to the Constitution. Depending upon the nature
of executive agreements, they may or may not have a status
equal to federal statute. In any case, self-executing executive
agreements have a status that is superior to U.S. state law
and inferior to the Constitution. Treaties or executive
agreements that are not self-executing have been understood
by the courts to have limited status domestically; rather, the
legislation or regulations implementing these agreements are
controlling.123 (Emphasis supplied, citation omitted)

Domestic politics and constitutional guidelines also


figure into the effect of an executive agreement in the
United States. Garcia adds:
The great majority of international agreements that the
United States enters into are not treaties but executive
agreements agreements entered into by the executive
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branch that are not submitted to the Senate for its advice
and consent. Congress generally requires notification upon the
entry of such an agreement. Although executive agreements are not
specifically discussed in the Constitution, they nonetheless have
been considered valid international compacts under Supreme Court
jurisprudence and as a matter of historical practice.
....
Sole executive agreements rely on neither treaty nor
congressional authority to provide for their legal ba_______________
123 Id.
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sis. The Constitution may confer limited authority upon the


President to promulgate such agreements on the basis of his foreign
affairs power. If the President enters into an executive agreement
pursuant to and dealing with an area where he has clear, exclusive
constitutional authority such as an agreement to recognize a
particular foreign government for diplomatic purposes the
agreement is legally permissible regardless of Congresss opinion on
the matter. If, however, the President enters into an agreement and
his constitutional authority over the agreements subject matter is
unclear, a reviewing court may consider Congresss position in
determining whether the agreement is legitimate. If Congress has
given its implicit approval to the President entering the agreement,
or is silent on the matter, it is more likely that the agreement will
be deemed valid. When Congress opposes the agreement and the
Presidents constitutional authority to enter the agreement is
ambiguous, it is unclear if or when such an agreement would be
given effect.124 (Emphasis supplied, citation omitted)

The recognition of the complex nature and legal


consequences of an executive agreement entered into by the
United States with another State must not be taken lightly.
This is especially in light of the invocation of international
comity, which loosely refers to applying foreign law or
limiting domestic jurisdiction out of respect for foreign
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sovereignty.125
As it stands, international comity is by itself no longer a
simple matter. In quoting an 1895 US case, Hilton v.
Guyot,126 Paul argues that at the beginning of the 20th
century, the underlying principle of international comity
was the respect afforded by one sovereign to another. At
present, however, Paul posits:
_______________
125

J. Paul, The Transformation of International Comity (2008)

<http://www.law.duke.edu/journals/lcp>.
124 Id., at p. 4.
126 Id., at p. 27.
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For all these reasons, international comity would seem to
be too vague, incoherent, illusory, and ephemeral to serve as a
foundation for U.S. private international law. Yet, it is precisely
these qualities that have allowed the doctrine of international
comity to mutate over time in ways that respond to different
geopolitical circumstances. Specifically, international comity has
shifted in three distinct respects. First, the meaning of comity
has shifted over time. Originally, international comity was a
discretionary doctrine that empowered courts to decide when to
defer to foreign law out of respect for foreign sovereigns. Comity has
become a rule that obligates courts to apply foreign law in certain
circumstances. Second, the object of comity has changed.
Whereas once courts justified applying foreign law out of deference
to foreign sovereigns, courts later justified their decisions out of
deference to the autonomy of private parties or to the political
branches. Most recently, courts have justified limits on domestic law
out of deference to the global market. Third, the function of
comity has changed. Comity is no longer merely a doctrine for
deciding when to apply foreign law; it has become a justification for
deference in a wide range of cases concerning prescriptive,
adjudicatory, and enforcement jurisdiction. (Emphasis supplied,
citation omitted)
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On a substantive note, another issue raised in BAYAN v.


Zamora is whether the VFA amounted to an abdication of
Philippine sovereignty insofar as the jurisdiction of local
courts to hear and try offenses committed by US military
personnel127 was concerned. Upon finding at the outset
that the VFA did not amount to grave abuse of discretion,
this court no longer proceeded to rule on this matter:
In fine, absent any clear showing of grave abuse of
discretion on the part of respondents, this Court as the
final arbiter of legal controversies
_______________
127 Supra note 118 at p. 646; p. 477.
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and staunch sentinel of the rights of the people is then


without power to conduct an incursion and meddle with such
affairs purely executive and legislative in character and
nature. For the Constitution no less, maps out the distinct
boundaries and limits the metes and bounds within which each of
the three political branches of government may exercise the powers
exclusively and essentially conferred to it by law.128 (Emphasis
supplied)

In sum, the extent of the VFAs categorization as


between the Philippine and United States government
either as a treaty/executive agreement or as a matter
subject to international comity remains vague.
Nevertheless, it is certain that the United States have
made a political commitment to recognize the provisions
and execute their obligations under the VFA. This includes
respecting jurisdictional issues in cases involving an
offense committed by a US military personnel.
Sovereign immunity as customary international law
Customary international law traditionally pertains to:

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. . . the collection of international behavioral regularities


that nations over time come to view as binding on them as a
matter of law. This standard definition contain two elements.
There must be a widespread and uniform practice of nations.
And nations must engage in the practice out of a sense of
legal obligation. This second requirement, often referred to as
opinio juris, is the central concept of CIL. Because opinio juris
refers to the reason why a nation acts in accordance with a
behavioral regularity, it is often described as the psychological
element of CIL. It is what
_______________
128 Id., at p. 666; p. 497.
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distinguishes a national act done voluntarily or out of comity from
one that a nation follows because required to do so by law. Courts
and scholars say that a longstanding practice among nations
ripens or hardens into a rule of CIL when it becomes accepted by
nations as legally binding.129 (Emphasis supplied, citation omitted)

Nagan and Root130 categorize the doctrine of sovereign


immunity as a customary rule of international law. They
argue that the doctrine, which is also referred to as
jurisdictional immunity, has its roots in treaties, domestic
statutes, state practice, and the writings of juris
consults.131 Quoting United States law,132 Nagan and Root
state:
. . . The doctrine of jurisdictional immunity takes the
abstract concept of sovereignty and applies it to facts on the
ground. As the Restatement notes, Under international law, a
state or state instrumentality is immune from the jurisdiction of the
courts of another state . . . . The Restatement further states
unambiguously that the rule of sovereign immunity is an
undisputed principle of international law. . . .
The doctrine of sovereign immunity is one of the older
concepts in customary international law. . . .133 (Emphasis
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supplied, citation omitted)

While the doctrine in itself is recognized by states, they


do so only in abstraction.134
_______________
129 E. Posner and J. L. Goldsmith, A Theory of Customary
International Law (John M. Olin Program in Law and Economics
Working Paper No. 63) 5 (1998).
130 Supra note 113.
131 Id., at p. 4.
132 Restatement (Third) of Foreign Relations Law.
133 Id., at p. 38.
134 Supra note 2 at p. 856.
210

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There appears to be a general recognition that foreign


states are to be afforded immunity on account of equality of
states, but the practice lacks uniformity. Finke points out
that the doctrine as exercised by different states suffers
from
substantial
disagreement
on
detail
and
135
substance.
The inconsistencies in state practice render
the possibility of invoking international comity even more
problematic.
The legislation of other states highlight the differences
in specific treatment of sovereign immunity. For instance,
the United States Foreign Sovereign Immunities Act
(FSIA) of 1978 was enacted in order to render uniform
determinations in cases involving sovereign immunity.136
While it recognizes sovereign immunity, it provides the
following exceptions:
. . . the general principle that a foreign state is immune
from the jurisdiction of the courts of the United States, but
sets forth several limited exceptions. The primary exceptions are:
1. waiver (the foreign state has waived its immunity either
expressly or by implication),
2. commercial activity (the action is based upon a commercial
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activity carried on in the United States by the foreign state), and


3. torts committed by a foreign official within the United
States (the suit is brought against a foreign State for personal
injury or death, or damage to property occurring in the
United States as a result of the tortious act of an official or
employee of that State acting within the scope of his office or
employment). (Emphasis supplied, citation omitted)
_______________
135 Id., at p. 871.
136 J. K. Elsea and S. V. Yousef, The Foreign Sovereign Immunities
Act (FSIA) and Foreign Officials, Congressional Research Service 7-5700
(2013).
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The United Kingdom State Immunity Act of 1978 also
recognizes general immunity from jurisdiction, subject to
the following exceptions: a) submission to jurisdiction;137 b)
commercial transactions and contracts to be performed in
the United Kingdom;138 c) contracts of employment;139 d)
personal injuries and damage to property;140 e) ownership,
possession, and use of property;141 f) patents, trademarks,
etc.;142 g) mem_______________
137

United Kingdom State Immunity Act of 1978, part I, 2(1)

provides: A State is not immune as respects proceedings in respect of


which it has submitted to the jurisdiction of the courts of the United
Kingdom.
138

United Kingdom State Immunity Act of 1978, part I, 3(1)

provides: A State is not immune as respects proceedings relating to


(a) a commercial transaction entered into by the State; or (b) an
obligation of the State which by virtue of a contract (whether a
commercial transaction or not) falls to be performed wholly or partly in
the United Kingdom.
139

United Kingdom State Immunity Act of 1978, part I, 4(1)

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provides: A State is not immune as respects proceedings relating to a


contract of employment between the State and an individual where the
contract was made in the United Kingdom or the work is to be wholly or
partly performed there.
140

United Kingdom State Immunity Act of 1978, part I, 5(1)

provides: A State is not immune as respects proceedings in respect of


(a) death or personal injury; or (b) damage to or loss of tangible property,
caused by an act or omission in the United Kingdom.
141

United Kingdom State Immunity Act of 1978, part I, 6(1)

provides: A State is not immune as respects proceedings relating to


(a) any interest of the State in, or its possession or use of, immovable
property in the United Kingdom; or (b) any obligation of the State arising
out of its interest in, or its possession or use of, any such property.
142

United Kingdom State Immunity Act of 1978, part I, 7(1)

provides: A State is not immune as respects proceedings relating to (a)


any patent, trademark, design or plant breeders rights belonging to the
State and registered or protected in the United Kingdom or for which the
State has applied in the United Kingdom; (b) an alleged infringement by
the State in the United Kingdom of any
212

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bership of bodies corporate, etc.;143 h) arbitration;144 i) ships


used for commercial purposes;145 and j) value-added tax,
customs duties, etc.146
The Australian Foreign States Immunities Act of 1985
provides for exceptions similar to the ones found in the
United Kingdom law.147
_______________
patent, trademark, design, plant breeders rights or copyright; or (c)
the right to use a trade or business name in the United Kingdom.
143

United Kingdom State Immunity Act of 1978, part I, 8(1)

provides: A State is not immune as respects proceedings relating to its


membership of a body corporate, an unincorporated body or a
partnership which (a) has members other than States; and (b) is
incorporated or constituted under the law of the United Kingdom or is
controlled from or has its principal place of business in the United
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Kingdom, being proceedings arising between the State and the body or
its other members or, as the case may be, between the State and the
other partners.
144

United Kingdom State Immunity Act of 1978, part I, 9(1)

provides: Where a State has agreed in writing to submit a dispute which


has arisen, or may arise, to arbitration, the State is not immune as
respects proceedings in the courts of the United Kingdom which relate to
the arbitration.
145

United Kingdom State Immunity Act of 1978, part I, 10(2)

provides: A State is not immune as respects (a) an action in rem


against a ship belonging to that State; or (b) an action in personam for
enforcing a claim in connection with such a ship.
146

United Kingdom State Immunity Act of 1978, part I, 11(1)

provides: A State is not immune as respects proceedings relating to its


liability for (a) value-added tax, any duty of customs or excise or any
agricultural levy; or (b) rates in respect of premises occupied by it for
commercial purposes.
147

Part II of the law provides for the following exceptions: (a)

submission to jurisdiction; (b) commercial transactions; (c) contracts of


employment; (d) personal injury and damage to property; (e) ownership,
possession, and use of property, etc.; (f) copyright, patents, trademarks,
etc.; (g) membership of bodies corporate etc.; (h) arbitrations; (i) actions in
rem; (j) bills of exchange; and (k) taxes.

213

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Aside from the variations in foreign laws, rulings in
domestic cases have also remained on a theoretical level.
There appears to be a general refusal by international
bodies to set particular rules and guidelines for the
disposition of actual cases involving sovereign immunity.
Two cases are relevant for the purpose of discussing
sovereign immunity as an international customary norm:
the International Court of Justices decision in Germany v.
Italy, and the International Tribunal for the Law of the
Seas procedural order on the Ara Libertad case. While
stare decisis does not apply, these are nevertheless
instructive in understanding the status of sovereign
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immunity in international law.


The issue of sovereign immunity as invoked between two
States was dealt with in the 2012 case of Jurisdictional
Immunities of the State (Germany v. Italy).148 This arose
out of a civil case brought before Italian domestic courts,
seeking reparations from Germany for grave breaches of
international humanitarian law during World War II.149
The Italian Court of Cassation held that it had jurisdiction
over the claims on the ground that state immunity was
untenable if the act complained of was an international
crime.150 Thereafter, an Italian real estate owned by
Germany was attached for execution.151 As a result,
Germany brought the case before the International Court
of Justice, questioning the legality of the judgment
rendered by the Italian court. It based its claim on state
immunity.152
_______________
148 Jurisdictional Immunities of the State (Germany v. Italy) (2012);
See also P. B. Stephan, Sovereign Immunity and the International Court
of Justice: The State System Triumphant, Virginia Public Law and Legal
Theory

Research

Paper

No.

2012-47

(2012)

<http://ssrn.com/abstract=2137805>.
149 Id., at pars. 27-29.
150 Id.
151 Id., at par. 37.
152 Id.
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The International Court of Justice ruled that Italy had


violated customary international law when it took
cognizance of the claim against Germany before its local
courts.153 It held that:
In the present context, State practice of particular
significance is to be found in the judgments of national
courts faced with the question whether a foreign State is
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immune, the legislation of those States which have enacted


statutes dealing with immunity, the claims to immunity
advanced by States before foreign courts and the statements
made by States, first in the course of the extensive study of the
subject by the International Law Commission and then in the
context of the adoption of the United Nations Convention.
Opinio juris in this context is reflected in particular in the
assertion by States claiming immunity that international
law accords them a right to such immunity from the
jurisdiction of other States; in the acknowledgment, by States
granting immunity, that international law imposes upon
them an obligation to do so; and, conversely, in the assertion
by States in other cases of a right to exercise jurisdiction over
foreign States. While it may be true that States sometimes decide
to accord an immunity more extensive than that required by
international law, for present purposes, the point is that the grant
of immunity in such a case is not accompanied by the requisite
opinio juris and therefore sheds no light upon the issue currently
under consideration by the Court.
56.Although there has been much debate regarding the origins
of State immunity and the identification of the principles
underlying that immunity in the past, the International Law
Commission concluded in 1980 that the rule of State
immunity had been adopted as a general rule of customary
interna_______________
153 Id., at par. 79.
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tional law solidly rooted in the current practice of States
(Yearbook of the International Law Commission, 1980, Vol. II[2], p.
147, para. 26). That conclusion was based upon an extensive
survey of State practice and, in the opinion of the Court, is
confirmed by the record of national legislation, judicial
decisions, assertions of a right to immunity and the
comments of States on what became the United Nations

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Convention. That practice shows that, whether in claiming


immunity for themselves or according it to others, States
generally proceed on the basis that there is a right to
immunity under international law, together with a
corresponding obligation on the part of other States to
respect and give effect to that immunity.
57.The Court considers that the rule of State immunity
occupies an important place in international law and
international relations. It derives from the principle of
sovereign equality of States, which, as Article 2, paragraph 1,
of the Charter of the United Nations makes clear, is one of the
fundamental principles of the international legal order.
This principle has to be viewed together with the principle
that each State possesses sovereignty over its own territory
and that there flows from that sovereignty the jurisdiction of
the State over events and persons within that territory.
Exceptions to the immunity of the State represent a
departure from the principle of sovereign equality. Immunity
may represent a departure from the principle of territorial
sovereignty and the jurisdiction which flows from it. (Emphasis
supplied)154

The International Court of Justice deemed it


unnecessary to discuss the difference between the
application of sovereign immunity in sovereign acts (jus
imperii) and non-sovereign
_______________
154 Id., at pars. 55-57.
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activities (jus gestionis) of a State.155 As to the argument


that a serious violation of international law or peremptory
norms (jus cogens) is an exception to sovereign immunity,
the International Court of Justice held that:
82.At the outset, however, the Court must observe that the

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proposition that the availability of immunity will be to some extent


dependent upon the gravity of the unlawful act presents a logical
problem. Immunity from jurisdiction is an immunity not
merely from being subjected to an adverse judgment but from
being subjected to the trial process. It is, therefore,
necessarily preliminary in nature. Consequently, a national
court is required to determine whether or not a foreign State
is entitled to immunity as a matter of international law
before it can hear the merits of the case brought before it and
before the facts have been established. If immunity were to be
dependent upon the State actually having committed a
serious violation of international human rights law or the
law of armed conflict, then it would become necessary for the
national court to hold an enquiry into the merits in order to
determine whether it had jurisdiction. If, on the other hand,
the mere allegation that the State had committed such
wrongful acts were to be sufficient to deprive the State of its
entitlement to immunity, immunity could, in effect be negated
simply by skilful construction of the claim.
83.That said, the Court must nevertheless inquire whether
customary international law has developed to the point where a
State is not entitled to immunity in the case of serious violations of
human rights law or the law of armed conflict. Apart from the
decisions of the Italian courts which are the subject of the present
proceedings, there is almost no State practice which might be
considered to support the proposition that a
_______________
155 Id., at par. 60.
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State is deprived of its entitlement to immunity in such a case. . . .
84.In addition, there is a substantial body of State practice
from other countries which demonstrates that customary
international law does not treat a States entitlement to
immunity as dependent upon the gravity of the act of which it
is accused or the peremptory nature of the rule which it is

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alleged to have violated.


85.That practice is particularly evident in the judgments
of national courts. Arguments to the effect that international
law no longer required State immunity in cases of
allegations of serious violations of international human
rights law, war crimes or crimes against humanity have been
rejected by the courts in Canada (Bouzari v. Islamic Republic of
Iran, Court of Appeal of Ontario, [2004] Dominion Law Reports
[DLR], 4th Series, Vol. 243, p. 406; ILR, Vol. 128, p. 586; allegations
of torture), France (judgment of the Court of Appeal of Paris, 9
September 2002, and Cour de cassation, No. 02-45961, 16 December
2003, Bulletin civil de la Cour de cassation [Bull. civ.], 2003, I, No.
258, p. 206 [the Bucheron case]; Cour de cassation, No.
03-41851, 2 June 2004, Bull. civ., 2004, I, No. 158, p. 132 [the X
case] and Cour de cassation, No. 04-47504, 3 January 2006 [the
Grosz case]; allegations of crimes against humanity], Slovenia [case
No. Up-13/99, Constitutional Court of Slovenia; allegations of war
crimes and crimes against humanity], New Zealand (Fang v. Jiang,
High Court, [2007] New Zealand Administrative Reports [NZAR], p.
420; ILR, Vol. 141, p. 702; allegations of torture), Poland
(Natoniewski, Supreme Court, 2010, Polish Yearbook of
International Law, Vol. XXX, p. 299, [2010]; allegations of war
crimes and crimes against humanity) and the United Kingdom
(Jones v. Saudi Arabia, House of Lords, [2007] 1 Appeal Cases [AC]
270; ILR, Vol. 129, p. 629; allegations of torture).
....
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93.This argument therefore depends upon the existence of a


conflict between a rule, or rules, of jus cogens, and the rule of
customary law which requires one State to accord immunity to
another. In the opinion of the Court, however, no such conflict
exists. Assuming for this purpose that the rules of the law of armed
conflict which prohibit the murder of civilians in occupied territory,
the deportation of civilian inhabitants to slave labour and the
deportation of prisoners of war to slave labour are rules of jus
cogens, there is no conflict between those rules and the rules on
State immunity. The two sets of rules address different

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matters. The rules of State immunity are procedural in


character and are confined to determining whether or not
the courts of one State may exercise jurisdiction in respect of
another State. They do not bear upon the question whether or
not the conduct in respect of which the proceedings are
brought was lawful or unlawful. That is why the application of
the contemporary law of State immunity to proceedings concerning
events which occurred in 1943-1945 does not infringe the principle
that law should not be applied retrospectively to determine matters
of legality and responsibility (as the Court has explained in
paragraph 58 above). For the same reason, recognizing the
immunity of a foreign State in accordance with customary
international law does not amount to recognizing as lawful a
situation created by the breach of a jus cogens rule, or
rendering aid and assistance in maintaining that situation,
and so cannot contravene the principle in Article 41 of the
International Law Commissions Articles on State
Responsibility.
95.To the extent that it is argued that no rule which is
not of the status of jus cogens may be applied if to do so
would hinder the enforcement of a jus cogens rule, even in
the absence of a direct conflict, the Court sees no basis for
such a proposition. A jus cogens rule is one from which no
derogation is permitted but the rules which determine the scope
and extent of jurisdiction and when that jurisdiction may be
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exercised do not derogate from those substantive rules which
possess jus cogens status, nor is there anything inherent in the
concept of jus cogens which would require their modification or
would displace their application. The Court has taken that
approach in two cases, notwithstanding that the effect was that a
means by which a jus cogens rule might be enforced was rendered
unavailable. In Armed Activities, it held that the fact that a
rule has the status of jus cogens does not confer upon the
Court a jurisdiction which it would not otherwise possess
(Armed Activities on the Territory of the Congo [New Application:
2002] [Democratic Republic of the Congo v. Rwanda], Jurisdiction

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and Admissibility, Judgment, I.C.J. Reports 2006, p. 32, para. 64,


and p. 52, para. 125). In Arrest Warrant, the Court held, albeit
without express reference to the concept of jus cogens, that the fact
that a Minister for Foreign Affairs was accused of criminal
violations of rules which undoubtedly possess the character of jus
cogens did not deprive the Democratic Republic of the Congo of the
entitlement which it possessed as a matter of customary
international law to demand immunity on his behalf (Arrest
Warrant of 11 April 2000 [Democratic Republic of the Congo v.
Belgium], Judgment, I.C.J. Reports 2002, p. 24, para. 58, and p. 33,
para. 78). The Court considers that the same reasoning is applicable
to the application of the customary international law regarding the
immunity of one State from proceedings in the courts of another.156

Though pertaining to provisional measures, another


case that involved the issue of sovereign immunity is the
Ara Libertad case (Argentina v. Ghana). Lodged before
the International Tribunal for the Law of the Sea (ITLOS),
the case arose after ARA Fragata Libertad, an
Argentinian warship, was alleged to have been detained
and subjected to several judicial measures by the Republic
of Ghana.157 In doing so, Argentina alleged that Ghana
violated the immunities from
_______________
156 Id., at pars. 82-95.
157 Id., at par. 26.
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jurisdiction and execution extended to the warship by its


flag.158
Ghana countered:
. . . that the coastal State [Ghana] enjoys full territorial
sovereignty over internal waters, and that any foreign vessel
located in internal waters is subject to the legislative,
administrative, judicial and jurisdictional powers of the

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coastal State.159 (Emphasis supplied)


The order dated December 15, 2012 ruled the following:
. . . that a warship is an expression of the sovereignty of the
State whose flag it flies;160
. . . in accordance with general international law, a warship
enjoys immunity, including in internal waters. . . .161
....
Ghana shall forthwith and unconditionally release the frigate
ARA Libertad, shall ensure that the frigate ARA Libertad, its
Commander and crew are able to leave the port of Tema and the
maritime areas under the jurisdiction of Ghana, and shall ensure
that the frigate ARA Libertad is resupplied to that end.162 (Citation
supplied)

In sum, the International Court of Justices position that


sovereign immunity remains applicable even if the action is
based upon violations of international law should be
limited only to acts during armed conflict. Jurisdictional
Immunities of the State (Germany v. Italy) also referred to
actions commited during World War II and especially
referred to the
_______________
158 Id.
159 Id., at par. 56.
160 Id., at par. 94.
161 Id., at par. 95.
162 Id., at par. 108.
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situation of international law at that time. The majority
reflected the attitude that sovereign immunity is a
customary norm. It, however, recognizes that uniformity in
state practice is far from the consensus required to
articulate specific rules pertaining to other circumstances
such as transgressions of foreign warships of domestic
legislation while granted innocent passage. It impliedly
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accepted that states enjoyed wide latitude to specify their


own norms.
The provisional order in the ITLOS Ara Libertad case
should also be read within its factual ambient. That is, that
the warship was the subject of seizure to enforce a
commercial obligation of its flag state. In this case, the
foreign warship enjoys sovereign immunity. The case,
however, did not interpret Sections 31 and 32 of the
UNCLOS.
On this note, it is my opinion that there would be
no violation of customary international law or
existing treaty law if this court further refines the
limits of the doctrine of sovereign immunitys
application
when
determining
jurisdictional
immunities of foreign warships specifically when it
violates domestic laws implementing international
obligations even while on innocent passage.
Sovereign immunity as
general principle of law
There are indications from international legal scholars
that sovereign immunity might make more sense if it is
understood as a general principle of international law
rather than as international obligation arising out of treaty
or customary norm.
Finke suggests that this provides the better platform.
Whereas a rule is more precise and consistent in both its
application and legal consequences, a principle allows for a
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broader spectrum of possible behaviour.163 Principles


recognize a general idea and serve as a guide in policy
determinations, rather than prescribe a particular mode of
action, which is what rules do. This distinction is
significant, as principles provide the leeway to
accommodate legal and factual circumstances surrounding
each case that customary rules generally do not.164
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General principles of international law are said to be:


. . . an autonomous, created by general consensus, systematically
fundamental part of International Law, that consists of different
normative notions, in which judges refer to, through a creative
process, in order to promote the consistency of International Law.165

Clearly, sovereign immunity is a doctrine recognized by


states under the international law system. However, its
characterization as a principle is more appropriate in that
the extent to which foreign states are awarded immunity
differs from state to state.166 This appears to be an
accepted arrangement in light of the different state
immunity laws all over the world.
As it stands, states are allowed to draw the line in the
application of sovereign immunity in cases involving
foreign states and their agents. As a principle of
international law, it is deemed automatically incorporated
in our domestic legal system as per Article II, Section 2 of
the Constitution. Considering this leeway, along with the
urgency and importance of the case at hand, the
Philippines is, therefore, free to provide guidelines
consistent with international law, domestic legislation, and
existing jurisprudence.
_______________
163 Supra note 2 at p. 872.
164 Id.
165

M. Panezi, Sources of Law in Transition: Re-visiting general

principles

of

International

Law,

Ancilla

Juris

71

(2007)

<http://www.ejil.org/pdfs/21/4/2112.pdf>.
166 Supra note 2 at p. 874.

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Exceptions to sovereign
immunity
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Our own jurisprudence is consistent with the


pronouncement that the doctrine of sovereign immunity is
not an absolute rule. Thus, the doctrine should take the
form of relative sovereign jurisdictional immunity.167
The tendency in our jurisprudence moved along with the
development in other states.
States began to veer away from absolute sovereign
immunity when international trade increased and
governments expanded into what had previously been
private spheres.168 The relative theory of sovereign
immunity distinguishes a states official (acta jure imperii)
from private (acta jure gestionis) conduct.169 The distinction
is founded on the premise [that] once the sovereign has
descended from his throne and entered the marketplace[,]
he has divested himself of his sovereign status and is
therefore no longer immune to the domestic jurisdiction of
the courts of other countries.170
In the 2003 case of Republic of Indonesia v. Vinzon, this
court enunciated that in cases involving foreign states, the
basis of sovereign immunity is the maxim par in parem non
habet imperium. Founded on sovereign equality, a state
cannot assert its jurisdiction over another.171 To do so
otherwise would unduly vex the peace of nations.172
However, it also underscored that the doctrine only applies
to public acts or acts jure imperii, thus, referring to the
relative theory. JUS_______________
167 Id., at p. 853.
168

N.J. Shmalo, Is the Restrictive Theory of Sovereign Immunity

Workable? Government Immunity and Liability, 17(3) International


Stanford Law Review 501-507 (1965).
169 Supra note 2 at p. 858.
170 Id., at p. 859.
171 Supra note 92 at p. 1107; p. 131.
172 Id.
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MAG Philippines v. NLRC173 discussed the restrictive


application:
In this jurisdiction, we recognize and adopt the generally
accepted principles of international law as part of the law of the
land. Immunity of State from suit is one of these universally
recognized principles. In international law, immunity is
commonly understood as an exemption of the state and its
organs from the judicial jurisdiction of another state. This is
anchored on the principle of the sovereign equality of states under
which one state cannot assert jurisdiction over another in violation
of the maxim par in parem non habet imperium (an equal has no
power over an equal).
....
As it stands now, the application of the doctrine of
immunity from suit has been restricted to sovereign or
governmental activities (jure imperii). The mantle of state
immunity cannot be extended to commercial, private and
proprietary acts (jure gestionis).174 (Emphasis supplied,
citations omitted)

In United States of America v. Ruiz,175 which dealt with


a contract involving the repair of wharves in Subic Bays
US naval installation, this court further adds that:
. . . the correct test for the application of State immunity is
not the conclusion of a contract by a State but the legal nature of
the act. . . .176 (Emphasis supplied)
_______________
173 G.R. No. 108813, December 15, 1994, 239 SCRA 224 [Per J. Puno,
Second Division].
174 Id., at pp. 230-232.
175 221 Phil. 179; 136 SCRA 487 (1985) [Per J. Abad Santos, En
Banc].
176 Id., at p. 184; p. 492.
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In JUSMAG, this court stated:


. . . if the contract was entered into in the discharge of its
governmental functions, the sovereign state cannot be
deemed to have waived its immunity from suit.177 (Emphasis
supplied, citation omitted)

These cases involved contracts. This made the


determination of whether there was waiver on the part of
the state simpler.
Further in Municipality of San Fernando, La Union v.
Firme,178 this court stated that two exceptions are a) when
the State gives its consent to be sued and b) when it enters
into a business contract.179 It ruled that:
Express consent may be embodied in a general law or a
special law.
....
Consent is implied when the government enters into
business contracts, thereby descending to the level of the other
contracting party, and also when the State files a complaint,
thus opening itself to a counterclaim.180 (Emphasis supplied,
citations omitted)

Other exceptions are cases involving acts unauthorized


by the State, and violation of rights by the impleaded
government official. In the 1970 case of Director of Bureau
of Telecommunications, et al. v. Aligaen, et al.,181 this court
held that:
_______________
177 Supra note 173 at p. 233.
178

273 Phil. 56; 195 SCRA 692 (1991) [Per J. Medialdea, First

Division].
179 Id., at p. 62; p. 697.
180 Id.
181 144 Phil. 257; 33 SCRA 368 (1970) [Per J. Zaldivar, En Banc].
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Inasmuch as the State authorizes only legal acts by its officers,


unauthorized acts of government officials or officers are not
acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by
such acts, for the protection of his rights, is not a suit against
the State within the rule of immunity of the State from suit.
In the same tenor, it has been said that an action at law or suit
in equity against a State officer or the director of a State
department on the ground that, while claiming to act for the
State, he violates or invades the personal and property rights
of the plaintiff, under an unconstitutional act or under an
assumption of authority which he does not have, is not a suit
against the State within the constitutional provision that the
State may not be sued without its consent.182 (Emphasis
supplied, citations omitted)

Shauf v. Court of Appeals183 evolved the doctrine further


as it stated that [the] rational for this ruling is that the
doctrine of state immunity cannot be used as an
instrument for perpetrating an injustice.184
Tortious acts or crimes committed while discharging
official functions are also not covered by sovereign
immunity.
Quoting
the
ruling
in
Chavez
v.
185
Sandiganbayan,
this court held American naval officers
personally liable for damages in Wylie v. Rarang,186 to wit:
_______________
182 Id., at pp. 267-268; pp. 377-378.
183

G.R. No. 90314, November 27, 1990, 191 SCRA 713 [Per J.

Regalado, Second Division].


184 Id., at p. 727.
185 271 Phil. 293 (1991); 193 SCRA 282 [Per J. Gutierrez, Jr., En
Banc].
186 G.R. No. 74135, May 28, 1992, 209 SCRA 357 [Per J. Gutierrez,
Jr., Third Division].
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. . . The petitioners, however, were negligent because under their
direction they issued the publication without deleting the name
Auring. Such act or omission is ultra vires and cannot be part of
official duty. It was a tortious act which ridiculed the private
respondent.187

We note that the American naval officers were held to be


accountable in their personal capacities.188
As it stands, the Philippines has no law on the
application of sovereign immunity in cases of damages
and/or violations of domestic law involving agents of a
foreign state. But our jurisprudence does have openings to
hold those who have committed an act ultra vires
responsible in our domestic courts.
As previously discussed, it was held in Germany v. Italy
that the issue of implied waiver of sovereign immunity and
a States commission of a serious violation of a peremptory
norm (jus cogens) are two independent areas. This reflects
one of the positions taken by scholars in the jurisdictionimmunity discourse:
Jurisdiction and its limits have developed differently depending
on the subject matter. The jurisdiction to adjudicate in civil matters
has, for example, developed mainly in the context of private
international law, even though it is not unrelated to public
international law. Immunity, on the other hand, is linked to
official acts of a state (if we accept the principal distinction
between private and public acts) and is therefore more
sensitive to the sovereignty of the foreign state. Linking
immunity to the limits of jurisdiction to adjudicate in civil matters
would therefore mean disre_______________
187 Id., at p. 370.
188 Id.
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garding the official character of the foreign states conduct.189


(Emphasis supplied, citation omitted)

This ruling holds no value as a precedent, and,


therefore, does not preclude the Philippines to make a
determination that may be different from the International
Court of Justices ruling. Its value must only be to elucidate
on the concept of sovereign immunity, in the context of that
case, as the general rule with the possibility of other
exceptions.
Furthermore, if we consider the doctrine of sovereign
immunity as a binding general principle of international
law rather than an international customary norm, the
particular rules and guidelines in its application and
invocation may be determined on a domestic level either
through statute or by jurisprudence.
It is difficult to imagine that the recognition of equality
among nations is still, in these modern times, as absolute
as we have held it to be in the past or only has commercial
acts as an exception. International law has conceded jus
cogens rules of international law and other obligations erga
omnes. It is time that our domestic jurisprudence adopts
correspondingly.
Considering the flexibility in international law and the
doctrines that we have evolved so far, I am of the view
that immunity does not necessarily apply to all the
foreign respondents should the case have been
brought in a timely manner, with the proper remedy,
and in the proper court. Those who have directly and
actually committed culpable acts or acts resulting
from gross negligence resulting in the grounding of a
foreign warship in violation of our laws defining a
tortious act or one that protects the environment
which implement
_______________
189 Supra note 2 at p. 878.
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binding international obligations cannot claim
sovereign immunity.
Certainly, this petition being moot and not brought by
the proper parties, I agree that it is not the proper case
where we can lay down this doctrine. I, therefore, can only
concur in the result.
ACCORDINGLY, I vote to DISMISS the petition.
Petition denied.
Notes.The Civil Service Commission has standing as
a real party in interest and can appeal the Court of
Appeals decisions modifying or reversing the Civil Service
Commissions rulings, when the Court of Appeals action
would have an adverse impact on the integrity of the civil
service. (Civil Service Commission vs. Almojuela, 694
SCRA 441 [2013])
Immunity statutes seek to provide a balance between
the states interests and the individuals right against selfincrimination. (People vs. Sandiganbayan [Fourth
Division], 699 SCRA 713 [2013])
o0o

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