Arigo vs.

Swift

Facts

In this case, the Supreme Court had the opportunity to rule on a Writ of Kalikasan petition filed by the
petitioners for the alleged violations of environmental laws and damage brought by the grounding of the
US military ship USS Guardian over the Tubbataha Reefs.

Way back in December 2012, the US Embassy in the Philippines requested diplomatic clearance for USS
Guardian to enter and exit the territorial waters of the Philippines and to arrive at the port of Subic Bay
for routine ship replenishment, maintenance and crew liberty. After its arrival at the Subic Bay port, the
ship departed Subic bay and is in direction towards Makassar Indonesia and while transiting the Sulu
Sea, the ship rana ground on the northwest side of the South Shoal of the Tubbataha Reefs, about 80
miles east-southeast of Palawan.

With regards to this accident the petitioners in representation of their organization including minors and
generations yet unborn filed the petition against the Fleet commander of the USS Guardian Scott Swift,
and several others including then President Aquino and several of its cabinet secretaries.

The petition essentially claims that the grounding, salvaging, and the post-salvaging activities of the USS
Guardian continue to cause environmental damage of such magnitude as to affect the Provinces of
Palawan, Antique, and Guimaras and several other, which events violate their constitutional rights to a
balanced and healthful ecology. The Court was also asked for the institution of damages with regards to
the aforesaid acts allegedly committed in violation of environmental laws and regulations in connection
with the grounding incident.

Position of the Respondent

Respondent questions the legal standing of the Petitioners and the grounds relied upon for the issuance
of the Writ of Kalikasan with a Temporary Environment Protection order have become moot as the
salvage operations on the USS Guardian were already completed.

Issues

1. Whether the Supreme Court has jurisdiction over US respondents who did not submit any
pleading or manifestation in the case.
2. Does the waiver of state immunity from suit found in the VFA operate with regards to the
suability of US respondents?
3. Can the Supreme Court grant damages on a Petition for a Writ of Kalikasan?
4. Is the petition already moot as claimed by the Respondents?
5. Damages

Ruling

1. No. The alleged act or omission resulting to the unfortunate grounding of the USS Guardian on
the Tubbataha Reef National Park was performed while committed while they were performing
official military duties. Considering that the satisfaction of a judgment against said officials will
require remedial actions and appropriations of funds by the US Government (for them to waive
their state immunity), 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, etc.

2. No. The waiver of State immunity under the CFA only pertains to criminal jurisdiction and not to
special civil actions such as the present petition for issuance of a writ of Kalikasan.

3. No. The Court cannot grant damages which have resulted from the violation of environmental
laws. The Rules allow recovery of Damages, including the collection of administrative fines under
 RA 10067, in a separate suit deemed instituted with the criminal action charging the same
violation of environmental laws.

4. Yes. 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 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

5. 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

Notes

Tubbataha – came from the Samal language meaning “long reef exposed at low tide”

 Composed of two huge coral atoll – the north and south atoll and the Jessie Beazly Reef
 Tubbataha Reef and the Jessie Beazley Reef are considered part of a remote island called
Cagayancillo of the municipality of Palawan.
 Tubbataha was inscribed by the United Nations educational Scientific and Cultural
Organization (UNESCO) as a World Heritage Site.
 97,030 hectare protected marine park is also an important habitat for internationally
threatened and endangered marine species.

IN 2010, Congress passed Republic Act NO. 10067, otherwise known as the Tubbataha Reefs National
Park Act of 2009. Said law created the Tubbataha Reefs National Park to ensure the protection and
conservation of living and non-living natural resources inside the Tubbataha Reefs. Additionally, said law
spouses a “no-take policy”, which essentially provides that entry to the 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.

1. Non-membership on the UNCLOS does not mean that a country (the US) will disregard the rights of
the Philippines as a Coastal State over tis internal waters and territorial sea. The Court expects the
US to bear “international responsibility” under Article 31 in connection with the USS Guardian
grounding which adversely affected the Tubbataha reefs.
2. Article 30, UNCLOS - 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
3. Article 31, UNCLOS - 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 or other
rules of international law

4. Justice Carpio invited our attention to the policy statement given by President Reagan on March I 0,
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",

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."

5. 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.

6. 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 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

Magallona vs. Executive Secretary

Facts

In this case, the Supreme Court had the opportunity to discuss the Constitutionality of Republic Act No.
9522, and amendatory act which adjusted the country’s archipelagic baselines and classifying the
baseline regime of nearby territories.

Petitioners in this case assails RA 9522 essentially on the ground that it reduced the Philippine maritime
territory, the reach of the Philippine State’s sovereign power, in violation of Article 1 of the 1987
Constitution which embodies the Treaty of Paris and other ancillary treaties. Additionally, petitioner
posits that RA9522 opens the country’s waters landward of the baselines to maritime passage by all
vessels and aircrafts, undermining Philippine sovereignty and national security, contravening the
country’s nuclear-free policy, and damaging marine resources, in violation of relevant constitutional
provisions.

Petitioners also content that RA9522’s treatment of the KIG as “regime of islands” not only results to a
loss of a large maritime area but also prejudices the livelihood and subsistence of fishermen.

Respondent argued on the substantial issues of the case stating that RA 9522 does not undermine the
country’s security, environment, and economic interest or relinquish the Philippines’ claim over Sabah.

Issues

1. Is RA 9522 Constitutional ?
 2. Did RA 9522 reduced the Philippine’s Maritime zone?
3. Does Kalayaan Island Group now located outside Philippine territory? ‘
4. Does the enactment of RA9522 effectively waived the Philippines’ claim over Sabah?
5. Can the Congress pass RA9522 notwithstanding the fact that it was not a directive to establish
the baselines of the Philippine territory?

Ruling

1. Yes.

Petitioners submit that RA 9522 "dismembers
a large portion of the national territory"[21]
because it discards the pre-UNCLOS III
demarcation of Philippine territory under the
Treaty of Paris and related treaties,
successively encoded in the definition of
national territory under the 1935, 1973 and
1987 Constitutions.
UNCLOS III has nothing to do with the
acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others,
sea-use rights over maritime zones,
contiguous zones, and continental shelves
that UNCLOS III delimits.

2. No. RA 9522, by optimizing the location of basepoints, increased the Philippines' total maritime
space (covering its internal waters, territorial sea, and exclusive economic zone) by 145,216
square nautical miles,

3. No.

petitioners' argument that the KIG now lies
outside Philippine territory because the
baselines that RA 9522 draws do not enclose
the KIG is negated by RA 9522 itself. Section 2
of the law commits to text the Philippines'
continued claim of sovereignty and
jurisdiction over the KIG and the Scarborough
Shoal:
Section 2, RA 9522. The baselines in the
following areas over which the Philippines
likewise exercises sovereignty and
jurisdiction shall be determined as "Regime
of Islands" under the Republic of the
Philippines consistent with Article 121 of the
United Nations Convention on the Law of
the Sea (UNCLOS)

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a
breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "the
drawing of such baselines shall not depart to any appreciable extent from the general
configuration of the archipelago." Second, Article 47 (2) of UNCLOS III requires that "the
length of the baselines shall not exceed 100 nautical miles," save for three percent (3%) of the
total number of baselines which can reach up to 125 nautical miles.

4. No. Petitioners' argument for the invalidity of RA 9522 for its failure to textualize the Philippines'
claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not
repeal, keeps open the door for drawing the baselines of Sabah

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as
provided in this Act is without prejudice to the delineation of the baselines of the territorial
sea around the territory of Sabah, situated in North Borneo, over which the Republic of the
Philippines has acquired dominion and sovereignty

5. Yes. Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was
not bound to pass RA 9522.[54] We have looked at the relevant provision of UNCLOS III and we
find petitioners' reading plausible. Nevertheless, the prerogative of choosing this option belongs
to Congress, not to this Court.
 Moreover, the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III
compliant baselines law, an archipelagic State like the Philippines will find itself devoid of
internationally acceptable baselines from where the breadth of its maritime zones and
continental shelf is measured. This is recipe for a two-fronted disaster: first, it sends an open
invitation to the seafaring powers to freely enter and exploit the resources in the waters and
submarine areas around our archipelago; and second, it weakens the country's case in any
international dispute over Philippine maritime space. These are consequences Congress wisely
avoided.

Notes

1. RA 9522 was passed to make our laws compliant with the terms of the UNCLOS which was
ratified by the Philippines in 1984.

2. RA 9522 shortened one baselines, optimized the location of some basepoints around the
Philippine Archipelago and classified adjacent territories, namely, the Kalayaan Group of Islands
and the Scarborough Shoal as “regime of islands” Whose islands generate their own applicable
maritime zones.

3. The amendment of the baselines law was necessary to enable the Philippines to draw the outer
limits of its maritime zones including the extended continental shelf in the manner provided by
Article 47 of [UNCLOS III]

4. Baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific
basepoints along their coasts from which baselines are drawn, either straight or contoured, to
serve as geographic starting points to measure the breadth of the maritime zones and
continental shelf. Thus, Baselines laws are nothing but statutory mechanisms for UNCLOS III
States parties to delimit with precision the extent of their maritime zones and continental
shelves

5. Baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit
with precision the extent of their maritime zones and continental shelves. In turn, this gives
notice to the rest of the international community of the scope of the maritime space and
submarine areas within which States parties exercise treaty-based rights, namely, the exercise
of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal,
immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the
living and non-living resources in the exclusive economic zone (Article 56) and continental shelf
(Article 77).

6. UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as
petitioners claim, diminution of territory. States acquire (or conversely, lose) territory through
occupation, accretion, cession, and prescription, not by executing multilateral treaties on the
regulations of sea-use rights or enacting statutes to comply with the treaty's terms to delimit
maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS
III and are instead governed by the rules on general international law.

7. The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522
merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA
9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and
thus comply with UNCLOS III's limitation on the maximum length of baselines).

8. Under Article 121 of UNCLOS III, any "naturally formed area of land, surrounded by water, which
is above water at high tide," such as portions of the KIG, qualifies under the category of "regime
of islands," whose islands generate their own applicable maritime zones
9. Whether referred to as Philippine "internal waters" under Article I of the Constitution or as
"archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty
over the body of water lying landward of the baselines, including the air space over it and the
submarine areas underneath. Confirmed by Article 49 of the UNCLOS

10. The political branches of the Philippine government, in the competent discharge of their
constitutional powers, may pass legislation designating routes within the archipelagic waters to
regulate innocent and sea lanes passage. Indeed, bills drawing nautical highways for sea lanes
passage are now pending in Congress.

In the absence of municipal legislation, international law norms, now codified in UNCLOS III,
operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject
to the treaty's limitations and conditions for their exercise. Significantly, the right of innocent
passage is a customary international law, thus automatically incorporated in the corpus of
Philippine law. No modern State can validly invoke its sovereignty to absolutely forbid innocent
passage that is exercised in accordance with customary international law without risking
retaliatory measures from the international community

11. The imposition of these passage rights through archipelagic waters under UNCLOS III was a
concession by archipelagic States, in exchange for their right to claim all the waters landward of
their baselines, regardless of their depth or distance from the coast, as archipelagic waters
subject to their territorial sovereignty

12. Separate islands generate their own maritime zones, placing the waters between islands
separated by more than 24 nautical miles beyond the States' territorial sovereignty, subjecting
these waters to the rights of other States under UNCLOS III.

13. The demarcation of the baselines enables the Philippines to delimit its exclusive economic zone,
reserving solely to the Philippines the exploitation of all living and non-living resources within
such zone. Such a maritime delineation binds the international community since the delineation
is in strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the
international community will of course reject it and will refuse to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui
generis maritime space - the exclusive economic zone - in waters previously part of the high
seas. UNCLOS III grants new rights to coastal States to exclusively exploit the resources found
within this zone up to 200 nautical miles.[53] UNCLOS III, however, preserves the traditional
freedom of navigation of other States that attached to this zone beyond the territorial sea
before UNCLOS III.