SC junks writ of kalikasan plea

vs USS Guardian
by Ina Reformina, ABS-CBN News
Posted at Sep 16 2014 05:37 PM | Updated as of Sep 17 2014 01:37 AM

MANILA - Citing lack of jurisdiction, the Supreme Court (SC) dismissed on Tuesday a plea for writ
of kalikasan over the January 17, 2013 grounding of US minesweeper USS Guardian on the
protected area known as a United Nations Heritage Site.

Voting 13-0-2, with Associate Justice Francis Jardeleza inhibiting as former Solicitor General, and
Associate Justice Jose Mendoza on sick leave, the high court ruled that "the suit is deemed to be one
against the US itself" since corrective actions and appropriation of funds by the US government
would be the end-goal of any judgment in favor of petitioners Palawan Bishop Pedro Arigo, et al.

"The Court ruled that the principle of State Immunity from suit bars the exercise of jurisdiction by
this Court over the persons of Swift, Rice and Robling, all of whom are officers of the US Navy," the
SC said.

Scott H. Swift, Commander Of The U.S. 7th Fleet; Mark A. Rice, Commanding Officer Of The USS
Guardian; and Lt. Gen. Terry G. Robling, US Marine Corps Forces, Pacific, and Balikatan 2013
Exercise Co-Director, are respondents in the petition along with Pres. Noynoy Aquino and several
other Philippine officials.

The high court, taking the position of Senior Associate Justice Antonio Carpio, also ruled that the
entry of the US warship into a restricted area was within the jurisdiction of the United Nations
Convention on the Law of the Sea (UNCLOS).

While the US did not ratify the UNCLOS, and therefore is not a member of the convention, the high
court said "it expected the US to bear international responsibility" especially that the grounding of
the US warship caused considerable damage on the Tubbataha reef system.

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

Article 31, which pertains to the "responsibility of the flag State for damage caused by a warship or
other government ship-operated for non-commercial purposes," states: "The flag State shall bear
international responsibility for any loss or damage to the coastal State resulting from the non-
compliance by a warship or other government ship operated for non-commercial purposes with the
laws and regulations of the coastal State concerning passage through the territorial sea or with the
provisions of this Convention (UNCLOS) or other rules of international law."
Petitioners failed to persuade the high court that there was a waiver of immunity from suit under the
Visiting Forces Agreement (VFA) between the Philippine and US governments, stressing that any
waiver of State Immunity under the agreement pertains only to criminal cases and not to special civil
cases including the writ of kalikasan.

The high court refused to rule on the application of VFA provisions on criminal actions against
erring US servicemen, pertaining to the grounding of the USS Guardian, pointing out that this did not
fall under an action for writ of kalikasan.

In the same breath, the high court refused to grant damages, allegedly arising from violations of
environmental laws caused by the grounding, stressing that this should fall under a separate civil suit
or as a consequence of any criminal action.

Regarding compensation and reef rehabilitation measures through diplomatic channels, the high
court said the authority over these issues rests with the executive department and "is not subject to
judicial inquiry or decision."

The high court further declined to review the VFA and strike down certain portions of the agreement
assailed by petitioners, pointing out that a writ of kalikasan plea is not the proper course of action to
question the constitutionality of the VFA.