Wednesday, September 17, 2014

No Writ of Kalikasan for Tubbataha grounding

SC: No writ of kalikasan but US liable for reefs’ damage

Sept. 17, 2014


Grounding of USS Guardian on Tubbataha Reefs, Jan.17, 2013

MANILA, Philippines–Though it said it had no jurisdiction over the case, the Supreme Court cited an international treaty and took the United States to task for its liabilities for the grounding last year of a US Navy minesweeper on Tubbataha Reefs Natural Park, a delicate ecosystem in the Sulu Sea treasured for its rich marine biodiversity.

In a unanimous decision, the high court on Tuesday denied a petition for a writ of kalikasan against US military officers, President Aquino and members of his Cabinet, and officials of the military and the Philippine Coast Guard for the grounding of the USS Guardian on Jan. 17, 2013, saying it lacked jurisdiction over the case as it was “deemed to be one against the US itself.”

States are protected from suit under the principle of sovereign immunity.

In the same breath, the court noted during its deliberations that the case fell “within the ambit of Article 31 of the United Nations Convention on the Law of the Sea (Unclos),” which held offending states liable for violations of laws and regulations in a coastal state they had entered.

World heritage site

The USS Guardian’s grounding on the Unesco World Heritage site damaged some 2,345 square meters of reefs—about the size of six basketball courts. It took 73 days to dismantle the vessel and completely remove it from the reef. The US recently promised to settle the fine of P58 million.

The petition, filed by bishops, militant groups, environmentalists and lawyers, had sought criminal, civil and administrative suits against the Philippine respondents and three US military officials: US Navy 7th Fleet Cmdr. Scott Swift, USS Guardian Commanding Officer Mark Rice and Lt. Gen. Terry Robling, commanding general of the US Marine Corps Forces Pacific and US exercise director of the PH-US Balikatan Exercises.

It also sought damages worth 12 times the fine that environment officials had estimated to be imposed on the United States for the incident.

The petition said the ship’s grounding caused continuing damage to the reef park, affecting the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu and Tawi-Tawi.

Unclos

While throwing out the petition, the justices “discussed extensively” Article 31 of Unclos, saying the United States must be answerable for damages on the reef park, even while it is not a party to the treaty.

This international treaty lays down the rights and responsibilities of countries on the use of the maritime territories and marine resources, among others.

“[T]he US’ 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,” said Te, citing court deliberations that touched on Unclos.

The international maritime treaty was first raised during court discussions by Associate Justice Antonio Carpio, a staunch advocate of international compliance with Unclos, particularly in the case of Philippine territorial claims in the West Philippine Sea (South China Sea).

“The court stated that it expected the US to bear “international responsibility” under Article 31 in connection with the grounding of the USS Guardian which adversely affected the Tubbataha Reefs,” Te said.

The high court said Unclos’ relevance to the case “is beyond dispute.” It noted that while warships were immune from the jurisdiction of coastal states while navigating the latter’s territorial sea, “the flag states shall be required to leave the territorial sea immediately if they flout the laws and regulations of the coastal state and will be liable for damages caused by their warships or any other government vessel operated for noncommercial purposes”.

Damages not granted

While pushing for the United States to honor its obligation under Unclos, the high court said it could not grant damages through the writ of kalikasan suit because such claim should be “made in a separate civil suit” or through criminal action, according to rules on environmental protection and the writ itself.

It instead left the matter of compensation and rehabilitation to the executive branch, given the claims process currently undergoing through diplomatic channels.

VFA

In junking the petition, the court also rejected the petitioners’ argument that the US had waived its immunity from suit under the Visiting Forces Agreement (VFA). It also declined to review the Philippine-US treaty, as petitioned.

The high court also found that applying criminal jurisdiction provisions of the VFA to the impleaded US military officials “would be premature and beyond the province of the writ of kalikasan.”

“The court also declined to review the VFA and to nullify certain portions thereof citing the writ of kalikasan is not the proper remedy to assail the constitutionality of the VFA and its provisions,” said Te. Full story on INQUIRER

Related story:

SC denies Writ of Kalikasan for Tubbataha grounding

The plea for damages and the prosecution of the US Navy officers were contained in a petition for a Writ of Kalikasan filed by a group called Kalikasan People’s Network for the Environment (Kalikasan PNE).
In a press briefing, SC Spokesman Theodore O. Te said that the petition was denied in a 13-0-2 decision written by Justice Martin S. Villarama Jr. A copy of the decision was not immediately available.
The petition asked the SC to issue a temporary environment protection order (TEPO) for the Tubbataha Reef, determine the fine to be imposed on the US Navy, prosecute the officers of the USS Guardian, and stop port calls by US ships without clear guidelines on environmental protection.
A summary of the decision issued by Te stated that the petitioners claimed that the grounding, salvaging and post-salvaging  operations of the USS Guardian  caused and continue to cause environmental damage of such magnitude as to affect the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi.
The petitioners also said that the grounding, salvaging and post-salvaging operations “violate our constitutional rights to a balanced and healthful ecology.”
They asked the SC to compel the Philippine government to institute civil, administrative, and criminal suits for acts committed in violation of environmental laws and regulations in connection with the grounding incident. - MANILA BULLETIN

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