arigo v swift

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

MOST REV. PEDRO D. ARIGO, D.D., Vicar Apostolic ofPuerto Princesa, MOST REV. DEOGRACIAS S. IÑIGUEZ,JR., Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO,CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIACAROLINA P. ARAULLO, RENATO M. REYES, JR.,Bagong Alyansang Makabayan, HON. NERI JAVIERCOLMENARES, Bayan Muna Party-list, ROLAND G.SIMBULAN, PH.D., Junk VFA Movement, TERESITA R.PEREZ, PH.D., HON. RAYMOND V. PALATINO, KabataanParty-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 theU.S. 7th Fleet, MARK A. RICE, in his capacity asCommanding Officer of the USS Guardian, PRESIDENTBENIGNO S. AQUINO III, in his capacity as Commander-in-Chief of the Armed Forces of the Philippines, HON.ALBERT F. DEL ROSARIO, Secretary, Department ofForeign Affairs, HON. PAQUITO OCHOA, JR., ExecutiveSecretary, Office of the President, HON. VOLTAIRE T.GAZMIN, Secretary, Department of National Defense,HON. RAMON JESUS P. PAJE, Secretary, Department ofEnvironment and Natural Resources, VICE ADMIRALJOSE LUIS M. ALANO, Philippine Navy Flag Officer inCommand, Armed Forces of the Philippines, ADMIRALRODOLFO D. ISORENA, Commandant, Philippine CoastGuard, COMMODORE ENRICO EFREN EVANGELISTA,Philippine Coast Guard-Palawan, MAJOR GEN.VIRGILIO O. DOMINGO, Commandant of Armed Forces ofthe Philippines Command and LT. GEN. TERRY G.

_______________

* EN BANC.

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ROBLING, US Marine Corps Forces, Pacific and Balikatan2013 Exercise Co-Director, respondents.

Remedial Law; Civil Procedure; Locus Standi; Words andPhrases; Locus standi is „a right of appearance in a court of justiceon a given question.‰·Locus standi is „a right of appearance in acourt of justice on a given question.‰ Specifically, it is „a partyÊspersonal and substantial interest in a case where he has sustainedor will sustain direct injury as a result‰ of the act being challenged,and „calls for more than just a generalized grievance.‰ However, therule on standing is a procedural matter which this Court hasrelaxed for nontraditional plaintiffs like ordinary citizens,taxpayers and legislators when the public interest so requires, suchas when the subject matter of the controversy is of transcendentalimportance, of overreaching significance to society, or of paramountpublic interest.

Constitutional Law; Balance and Healthful Ecology; In thelandmark case of Oposa v. Factoran, Jr., 224 SCRA 792 (1993), theSupreme Court (SC) recognized the „public right‰ of citizens to „abalanced and healthful ecology which, for the first time in ourconstitutional history, is solemnly incorporated in the fundamentallaw.‰·In the landmark case of Oposa v. Factoran, Jr., 224 SCRA792 (1993), we recognized the „public right‰ of citizens to „abalanced and healthful ecology which, for the first time in ourconstitutional history, is solemnly incorporated in the fundamentallaw.‰ We declared that the right to a balanced and healthful ecologyneed not be written in the Constitution for it is assumed, like othercivil and political rights guaranteed in the Bill of Rights, to existfrom the inception of mankind and it is an issue of transcendentalimportance with intergenerational implications. Such right carrieswith it the correlative duty to refrain from impairing theenvironment.

Remedial Law; Civil Procedure; Class Suit; On the novelelement in the class suit filed by the petitioners minors in Oposa,this Court ruled that not only do ordinary citizens have legalstanding to sue for the enforcement of environmental rights, they cando so in representation of their own and future generations.·On the

novel element in the class suit filed by the petitioners minors inOposa, this Court ruled that not only do ordinary citizens have legalstanding to sue for the enforcement of environmental rights, theycan do so in representation of their own and future generations.Thus:

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Petitioners minors assert that they represent their generationas well as generations yet unborn. We find no difficulty in rulingthat they can, for themselves, for others of their generation and forthe succeeding generations, file a class suit. Their personality tosue in behalf of the succeeding generations can only bebased on the concept of intergenerational responsibilityinsofar as the right to a balanced and healthful ecology isconcerned. Such a right, as hereinafter expounded, considers the„rhythm and harmony of nature.‰ Nature means the created worldin its entirety. Such rhythm and harmony indispensably include,inter alia, the judicious disposition, utilization, management,renewal and conservation of the countryÊs forest, mineral, land,waters, fisheries, wildlife, off-shore areas and other naturalresources to the end that their exploration, development andutilization be equitably accessible to the present as well as futuregenerations. Needless to say, every generation has a responsibilityto the next to preserve that rhythm and harmony for the fullenjoyment of a balanced and healthful ecology. Put a littledifferently, the minorsÊ assertion of their right to a soundenvironment constitutes, at the same time, the performance of theirobligation to ensure the protection of that right for the generationsto come.

Constitutional Law; State Immunity from Suit; This traditionalrule of State immunity which exempts a State from being sued in thecourts of another State without the formerÊs consent or waiver hasevolved into a restrictive doctrine which distinguishes sovereign andgovernmental acts (jure imperii) from private, commercial andproprietary acts (jure gestionis).·This traditional rule of Stateimmunity which exempts a State from being sued in the courts ofanother State without the formerÊs consent or waiver has evolvedinto a restrictive doctrine which distinguishes sovereign andgovernmental acts (jure imperii) from private, commercial and

proprietary acts (jure gestionis). Under the restrictive rule of Stateimmunity, State immunity extends only to acts jure imperii. Therestrictive application of State immunity is proper only when theproceedings arise out of commercial transactions of the foreignsovereign, its commercial activities or economic affairs.

Same; International Law; International Law of the Sea; Wordsand Phrases; The international law of the sea is generally defined as„a body of treaty rules and customary norms governing the uses ofthe

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sea, the exploitation of its resources, and the exercise of jurisdictionover maritime regimes.·The international law of the sea isgenerally defined as „a body of treaty rules and customary normsgoverning the uses of the sea, the exploitation of its resources, andthe exercise of jurisdiction over maritime regimes. It is a branch ofpublic international law, regulating the relations of states withrespect to the uses of the oceans.‰ The UNCLOS is a multilateraltreaty which was opened for signature on December 10, 1982 atMontego Bay, Jamaica. It was ratified by the Philippines in 1984but came into force on November 16, 1994 upon the submission ofthe 60th ratification.

Same; Same; Same; United Nations Convention on the Law ofthe Sea; The United Nations Convention on the Law of the Sea(UNCLOS) gives to the coastal State sovereign rights in varyingdegrees over the different zones of the sea which are: 1) internalwaters, 2) territorial sea, 3) contiguous zone, 4) exclusive economiczone, and 5) the high seas. It also gives coastal States more or lessjurisdiction over foreign vessels depending on where the vessel islocated.·The UNCLOS is a product of international negotiationthat seeks to balance State sovereignty (mare clausum) and theprinciple of freedom of the high seas (mare liberum). The freedom touse the worldÊs marine waters is one of the oldest customaryprinciples of international law. The UNCLOS gives to the coastalState sovereign rights in varying degrees over the different zones ofthe sea which are: 1) internal waters, 2) territorial sea, 3)contiguous zone, 4) exclusive economic zone, and 5) the high seas. Italso gives coastal States more or less jurisdiction over foreignvessels depending on where the vessel is located.

Same; Same; State Immunity from Suit; Visiting ForcesAgreement; Writ of Kalikasan; The waiver of State immunity underthe Visiting Forces Agreement (VFA) pertains only to criminaljurisdiction and not to special civil actions such as the presentpetition for issuance of a writ of Kalikasan.·The VFA is anagreement which defines the treatment of United States troops andpersonnel visiting the Philippines to promote „common securityinterests‰ between the US and the Philippines in the region. Itprovides for the guidelines to govern such visits of militarypersonnel, and further defines the rights of the United States andthe Philippine government in the matter of criminal jurisdiction,movement of vessel and aircraft, importation and exportation ofequipment, materials and supplies.

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The invocation of US federal tort laws and even common law is thusimproper considering that it is the VFA which governs disputesinvolving US military ships and crew navigating Philippine watersin pursuance of the objectives of the agreement. As it is, the waiverof State immunity under the VFA pertains only to criminaljurisdiction and not to special civil actions such as the presentpetition for issuance of a writ of Kalikasan. In fact, it can beinferred from Section 17, Rule 7 of the Rules that a criminal caseagainst a person charged with a violation of an environmental lawis to be filed separately: SEC. 17. Institution of separate actions.·The filing of a petition for the issuance of the writ of kalikasan shallnot preclude the filing of separate civil, criminal or administrativeactions.

Same; Same; Same; Same; Same; A ruling on the application ornon-application of criminal jurisdiction provisions of the VisitingForces Agreement (VFA) to US personnel who may be foundresponsible for the grounding of the USS Guardian, would bepremature and beyond the province of a petition for a writ ofKalikasan.·In any case, it is our considered view that a ruling onthe application or non-application of criminal jurisdiction provisionsof the VFA to US personnel who may be found responsible for thegrounding of the USS Guardian, would be premature and beyondthe province of a petition for a writ of Kalikasan. We also find itunnecessary at this point to determine whether such waiver of

State immunity is indeed absolute. In the same vein, we cannotgrant damages which have resulted from the violation ofenvironmental 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 thecriminal action charging the same violation of an environmentallaw.

Same; Same; Foreign Relations; It is settled that „the conduct ofthe foreign relations of our government is committed by theConstitution to the executive and legislative · Âthe politicalÊ ·departments of the government, and the propriety of what may bedone in the exercise of this political power is not subject to judicialinquiry or decision.‰·A rehabilitation or restoration program to beimplemented at the cost of the violator is also a major relief thatmay be obtained under a judgment rendered in a citizensÊ suitunder the Rules, viz.: RULE 5 SECTION 1. Reliefs in a citizen suit.·If warranted, the court may grant to the plaintiff proper reliefswhich shall include the protec-

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tion, preservation or rehabilitation of the environment and thepayment of attorneyÊs fees, costs of suit and other litigationexpenses. It may also require the violator to submit a program ofrehabilitation or restoration of the environment, the costs of whichshall be borne by the violator, or to contribute to a special trust fundfor that purpose subject to the control of the court. In the light ofthe foregoing, the Court defers to the Executive Branch on thematter of compensation and rehabilitation measures throughdiplomatic channels. Resolution of these issues impinges on ourrelations with another State in the context of common securityinterests under the VFA. It is settled that „[t]he conduct of theforeign relations of our government is committed by theConstitution to the executive and legislative · Âthe politicalÊ ·departments of the government, and the propriety of what may bedone in the exercise of this political power is not subject to judicialinquiry or decision.‰

SERENO, CJ., Concurring Opinion:

Constitutional Law; International Law; Visiting Forces

Agreement; Treaties; View that acts done pursuant to the VisitingForces Agreement (VFA) take the nature of governmental acts, sinceboth the United States and Philippine governments recognize theVFA as a treaty with corresponding obligations, and the presence ofthese two Naval Officers and the warship in Philippine waters fellunder this legal regime.·In this case, the two Naval Officers wereacting pursuant to their function as the commanding officers of awarship, traversing Philippine waters under the authority of theVisiting Forces Agreement (VFA). While the events beg the questionof what the warship was doing in that area, when it should havebeen headed towards Indonesia, its presence in Philippine waters isnot wholly unexplainable. The VFA is a treaty, and it has beenaffirmed 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 thepast, been used to justify the presence of United States ArmedForces in the Philippines. In this respect therefore, acts donepursuant to the VFA take the nature of governmental acts, sinceboth the United States and Philippine governments recognize theVFA as a treaty with corresponding obligations, and the presence ofthese two Naval Officers and the warship in Philippine waters fellunder this legal regime.

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Same; Same; State Immunity from Suit; View that under theregime of international law, there is an added dimension tosovereign immunity exceptions: the tort exception.·Under theregime of international law, there is an added dimension tosovereign immunity exceptions: the tort exception. Whether thishas evolved into a customary norm is still debatable; what isimportant to emphasize is that while some states have enactedlegislation to allow the piercing of sovereign immunity in tortuousactions, the Foreign Sovereign Immunities Act of 1976 of the UnitedStates (FSIA) contains such privilege. Specifically, the FSIAcontains exceptions for (1) waiver; (2) commercial activity; (3)expropriation; (4) property rights acquired through succession ordonation; (5) damages for personal injury or death or damage to orloss 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 statesponsors terrorism; and (8) maritime lien in a suit for admiraltybased on commercial activity.

Same; Same; Same; View that immunity, unlike in otherjurisdictions, is determined not by the courts of law but by theexecutive branches.·In Vinuya v. Romulo, 619 SCRA 533 (2010), westated that „the question whether the Philippine governmentshould espouse claims of its nationals against a foreign governmentis a foreign relations matter, the authority for which isdemonstrably committed by our Constitution not to the courts butto the political branches.‰ Immunity then, unlike in otherjurisdictions, is determined not by the courts of law but by theexecutive branches.

Same; Same; Same; View that the basic concept of stateimmunity is that no state may be subjected to the jurisdiction ofanother state without its consent.·The basic concept of stateimmunity is that no state may be subjected to the jurisdiction ofanother state without its consent. According to Professor IanBrownlie, it is „a procedural bar (not a substantive defence) basedon the status and functions of the state or official in question.‰Furthermore, its applicability depends on the law and proceduralrules of the forum state.

Same; Same; Same; Writ of Kalikasan; View that should theCourt issue the Writ, it could possibly entail internationalresponsibility for breaching the jurisdictional immunity of asovereign state.·No exception exists in Philippine or internationallaw that

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would remove the immunity of the United States in order to place itunder the jurisdiction of Philippine courts. The Writ of Kalikasan isa compulsory writ, and its issuance initiates a legal process thatwould circumvent the internationally established rules of immunity.Should the Court issue the Writ, it could possibly entailinternational responsibility for breaching the jurisdictionalimmunity of a sovereign state.

LEONEN, J., Concurring Opinion:

Writ of Kalikasan; View that the writ of kalikasan is not an all-embracing legal remedy to be wielded like a political tool.·The writof kalikasan is not an all-embracing legal remedy to be wielded likea political tool. It is both an extraordinary and equitable remedywhich assists to prevent environmental catastrophes. It does notreplace other legal remedies similarly motivated by concern for theenvironment and the communityÊs ecological welfare. Certainly,when the petition itself alleges that remedial and preventiveremedies have occurred, the functions of the writ cease to exist. Incase of disagreement, parties need to exhaust the political andadministrative arena. Only when a concrete cause of action arisesout of facts that can be proven with substantial evidence may theproper legal action be entertained.

Remedial Law; Civil Procedure; Class Suits; CitizenÊs Suits;View CitizenÊs suits are procedural devices that allow a genuinecause of action to be judicially considered in spite of the social costsor negative externalities of such initiatives. This should be clearlydistinguished in our rules and in jurisprudence from class suits thatpurport to represent the whole population and unborn generations.·CitizenÊs suits are suits brought by parties suffering direct andsubstantial injuries; although in the environmental field, theseinjuries may be shared with others. It is different from class suitsbrought as representative suits under Oposa v. Factoran, 224 SCRA792 (1993). In my view, there is need to review this doctrine insofaras it allows a nonrepresentative group to universally represent awhole population as well as an unborn generation binding them tocauses of actions, arguments, and reliefs which they did not choose.Generations yet unborn suffer from the legal inability to assertagainst false or unwanted representation. CitizenÊs suits areprocedural devices that allow a genuine cause of action to bejudicially considered in spite of

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the social costs or negative externalities of such initiatives. Thisshould be clearly distinguished in our rules and in jurisprudencefrom class suits that purport to represent the whole population andunborn generations. The former is in keeping with the requiredconstitutional protection for our people. The latter is dangerous andshould be used only in very extraordinary or rare situations. It may

be jurisprudentially inappropriate.

Constitutional Law; International Law; State Immunity fromSuit; View that the doctrine of sovereign immunity is understood asa basic right extended to states by other states on the basis of respectfor sovereignty and independence.·The doctrine of sovereignimmunity evolves out of the theory and practice of sovereignty andthe principle par in parem non habet jurisdictionem. Its particularcontours as an international norm have evolved far beyond the formit took when the theory of absolute sovereignty was current.Contemporarily, it is understood as a basic right extended to statesby other states on the basis of respect for sovereignty andindependence. There appears to be a consensus among states thatsovereign immunity as a concept is legally binding. However, thereremains to be a lack of international agreement as to how it is to beinvoked and the extent of immunity in some cases.

Same; Same; Same; View that this doctrine of relativejurisdictional immunity (sovereign immunity) of states and theiragents becomes binding in our jurisdiction as international law onlythrough Section 2 of Article II or Section 21 of Article VII of theConstitution.·This doctrine of relative jurisdictional immunity(sovereign immunity) of states and their agents becomes binding inour jurisdiction as international law only through Section 2 ofArticle II or Section 21 of Article VII of the Constitution. ArticleXVII, Section 3 of the Constitution is a limitation on suits againstour state. It is not the textual anchor for determining the extent ofjurisdictional immunities that should be accorded to other states ortheir agents. International law may have evolved further than theusual distinction between acta jure imperii and acta jure gestionis.Indications of state practice even of public respondents show thatjurisdictional immunity for foreign states may not apply to certainviolations of jus cogens rules of international customary law. Therecan be tort exemptions provided by statute and, therefore, the statepractice of an agentÊs sovereign being sued in our courts.

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Remedial Law; Civil Procedure; Jurisdiction; EnvironmentalCases; View that the „environmental‰ nature of this petition, basedupon the alleged violation of the Tubbataha Reefs Natural Park Act,

by itself does not and should not automatically render the Rules ofProcedure for Environmental Cases applicable; This means thateven in environmental cases, Rule 3, Sections 2, 3, or 12 of the 1997Rules of Civil Procedure should still also apply.·The„environmental‰ nature of this petition, based upon the allegedviolation of the Tubbataha Reefs Natural Park Act, by itself doesnot and should not automatically render the Rules of Procedure forEnvironmental Cases applicable. At best, it must be reconciled withrules on parties as contained in the Rules of Court. This is topreclude a situation where the interpretation of the Rules ofProcedure for Environmental Cases results in a ruling inconsistentor contrary to established legal concepts. It is my position thatunless the remedy sought will serve the purpose of preventing anenvironmental catastrophe, the traditional procedural route shouldbe taken. This means that even in environmental cases, Rule 3,Sections 2, 3, or 12 of the 1997 Rules of Civil Procedure should stillalso apply.

Same; Same; Real Party-in-Interest; View that a real party-in-interest is a litigant whose right or interest stands to benefit or getinjured by the judgment of the case.·A real party-in-interest is alitigant whose right or interest stands to benefit or get injured bythe judgment of the case. The interest referred to must be materialinterest, founded upon a legal right sought to be enforced. Theybring a suit because the act or omission of another has caused themto directly suffer its consequences. Simply put, a real party-in-interest has a cause of action based upon an existing legal right-duty correlative.

Same; Same; Representatives; Environmental Cases; View thatin environmental cases, Section 3 of Rule 3 of the 1997 Rules of CivilProcedure may be used to bring a suit, provided that two (2)elements concur: a) the suit is brought on behalf of an identifiedparty whose right has been violated, resulting in some form ofdamage, and b) the representative authorized by law or the Rules ofCourt to represent the victim.·A „representative‰ is not the partywho will actually benefit or suffer from the judgment of the case.The rule requires that the beneficiary be identified as he or she isdeemed the real party-in-interest. This means that acting in arepresentative capacity does not turn into a real party-in-interestsomeone who is other-

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wise an outsider to the cause of action. This rule enumerates whomay act as representatives, including those acting in a fiduciarycapacity. While not an exhaustive list, it does set a limit by allowingonly those who are „authorized by law or these Rules.‰ Inenvironmental cases, this section may be used to bring a suit,provided that two elements concur: a) the suit is brought on behalfof an identified party whose right has been violated, resulting insome form of damage, and b) the representative authorized by lawor the Rules of Court to represent the victim.

Same; Same; CitizenÊs Suits; View that a citizenÊs suit that seeksto enforce environmental rights and obligations may be brought byany Filipino who is acting as a representative of others, includingminors or generations yet unborn.·A citizenÊs suit that seeks toenforce environmental rights and obligations may be brought byany Filipino who is acting as a representative of others, includingminors or generations yet unborn. As representatives, it is notnecessary for petitioners to establish that they directly sufferedfrom the grounding of the USS Guardian and the subsequentsalvage operations. However, it is imperative for them to indicatewith certainty the injured parties on whose behalf they bring thesuit. Furthermore, the interest of those they represent must bebased upon concrete legal rights. It is not sufficient to draw out aperceived interest from a general, nebulous idea of a potential„injury.‰

Same; Same; Same; Environmental Cases; View that sinceenvironmental cases necessarily involve the balancing of differenttypes and degrees of interests, allowing anyone from the presentgeneration to represent others who are yet unborn poses three (3)possible dangers.·„Minors and generations yet unborn‰ is acategory of real party in interest that was first established in Oposav. Factoran, 224 SCRA 792 (1993). In Oposa v. Factoran, this courtruled that the representatives derived their personality to file a suiton behalf of succeeding generations from „intergenerationalresponsibility.‰ The case mirrored through jurisprudence thegeneral moral duty of the present generation to ensure the fullenjoyment of a balanced and healthful ecology by the succeedinggenerations. Since environmental cases necessarily involve thebalancing of different types and degrees of interests, allowinganyone from the present generation to represent others who are yetunborn poses three possible dangers. First, they run the risk offoreclosing arguments of others who are

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unable to take part in the suit, putting into question itsrepresentativeness. Second, varying interests may potentiallyresult in arguments that are bordering on political issues, theresolutions of which do not fall upon this court. Third,automatically allowing a class or citizenÊs suit on behalf of „minorsand generations yet unborn‰ may result in the oversimplification ofwhat may be a complex issue, especially in light of the impossibilityof determining future generationÊs true interests on the matter.

Same; Same; Res Judicata; View that the doctrine of resjudicata bars parties to litigate an issue more than once, and this isstrictly applied because „the maintenance of public order, the reposeof society . . . require that what has been definitely determined bycompetent tribunals shall be accepted as irrefragable legaltruth.‰·Res judicata renders conclusive between the parties andtheir privies a ruling on their rights, not just for the present action,but in all subsequent suits. This pertains to all points and mattersjudicially tried by a competent court. The doctrine bars parties tolitigate an issue more than once, and this is strictly applied because„the maintenance of public order, the repose of society . . . requirethat what has been definitely determined by competent tribunalsshall be accepted as irrefragable legal truth.‰

Same; Same; Same; View that considering the effect of resjudicata, the ruling in Oposa v. Factoran has opened a dangerouspractice of binding parties who are yet incapable of making choicesfor themselves, either due to minority or the sheer fact that they donot yet exist.·Considering the effect of res judicata, the ruling inOposa v. Factoran has opened a dangerous practice of bindingparties 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 yetunborn will be unable to bring a suit to relitigate their interest.

Same; Same; Class Suits; View that in a class suit, petitionersnecessarily bring the suit in two capacities: first, as persons directlyinjured by the act or omission complained of; and second, asrepresentatives of an entire class who have suffered the same injury.·In a class suit, petitioners necessarily bring the suit in twocapacities: first, as persons directly injured by the act or omissioncomplained of; and second, as representatives of an entire class whohave suf-

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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 asthose they seek to represent. More importantly, they must establishthat, in that universe, they can intervene on behalf of the rest.

Same; Same; Same; Environmental Cases; View that not allenvironmental cases need to be brought as class suits.·Not allenvironmental cases need to be brought as class suits. There is noprocedural requirement that majority of those affected must file asuit in order that an injunctive writ or a writ of kalikasan can beissued. It is sufficient that the party has suffered its own direct andsubstantial interest, its legal basis is cogent, and it has thecapability to move forward to present the facts and, if necessary, thescientific basis for its analysis for some of these cases to be givendue course.

Same; Same; Same; Same; Wvil prorit of Kalikasan; View thatthe writ of kalikasan is a remedy that covers environmentaldamages the magnitude of which transcends both political andterritorial boundaries.·The writ of kalikasan is a remedy thatcovers environmental damages the magnitude of which transcendsboth political and territorial boundaries. It specifically provides thatthe prejudice to life, health, or property caused by an unlawful actor omission of a public official, public employee, or a privateindividual or entity must be felt in at least two cities or provinces.The petition for its issuance may be filed on behalf of those whoseright to a balanced and healthful ecology is violated, provided thatthe group or organization which seeks to represent is dulyaccredited.

Same; Same; Same; Same; Same; Temporary EnvironmentalProtection Order; View that a Temporary Environmental ProtectionOrder (TEPO) is an order which either directs or enjoins a person orgovernment agency to perform or refrain from a certain act, for thepurpose of protecting, preserving, and/or rehabilitating theenvironment.·A TEPO is an order which either directs or enjoins aperson or government agency to perform or refrain from a certainact, for the purpose of protecting, preserving, and/or rehabilitatingthe environment. The crucial elements in its issuance are thepresence of „extreme urgency‰ and „grave injustice and irreparable

injury‰ to the applicant. Petitioners hinge the basis for this prayeron the salvage operations conducted immediately after the incident.The remedy is no longer available considering that all activities toremove the

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grounded USS Guardian have been concluded. Furthermore, theNotice to Mariners No. 011-2013 issued by the Philippine CoastGuard on January 29, 2013 effectively set the metes and bounds ofthe damaged area. This notice also prohibited „leisure trips toTubbataha‰ and advised „all watercrafts transitting the vicinity totake precautionary measures.‰

Constitutional Law; International Law; State Immunity fromSuit; View that immunity does not necessarily apply to all theforeign respondents should the case have been brought in a timelymanner, with the proper remedy, and in the proper court.·It is myposition that doctrine on relative jurisdictional immunity of foreignstates or otherwise referred to as sovereign immunity should befurther 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 relativejurisdictional immunity of foreign states otherwise known as thedoctrine of sovereign immunity. The doctrine of sovereign immunitycan be understood either as a domestic or an international concept.

Same; Same; Same; View that there appears to be a consensusamong states that sovereign immunity as a concept is legallybinding.·Under international law, sovereign immunity remains tobe an abstract concept. On a basic level, it is understood as a basicright extended to states by other states on the basis of respect forsovereignty and independence. There appears to be a consensusamong states that sovereign immunity as a concept is legallybinding. Nevertheless, legal scholars observe that there remains to

be a lack of agreement as to how it is to be invoked or exercised inactual cases. Finke presents: States accept sovereign immunity as alegally 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 EuropeÊs explanatoryreport, sovereign immunity is defined as „a concept of internationallaw, which has developed out of the principle par in parem nonhabet imperium, by virtue of which one State is not subject to thejurisdiction of another State.‰·The European Convention on StateImmunity is a treaty established through the Council of Europe onMay 16, 1972. In the Council of EuropeÊs explanatory report,sovereign immunity is defined as „a concept of international law,which has developed out of the principle par in parem non habetimperium, by virtue of which one State is not subject to thejurisdiction of another State.‰ The treaty arose out of the need toaddress cases where states become involved in areas of private law:For many years State immunity has occupied the attention ofeminent 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 statedabove 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 ofopinion causes difficulties in international relations. States whosecourts and administrative authorities apply the theory of absoluteState immunity are led to call for the same treatment abroad.

Same; Same; Visiting Forces Agreement; View that the extent of

the Visiting Forces AgreementÊs (VFAÊs) categorization as between thePhilippine 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 VFAÊs categorizationas between the Philippine and United States government · eitheras a „treaty‰/„executive agreement‰ or as a matter subject tointernational comity · remains vague. Nevertheless, it is certainthat the United States have made a political commitment torecognize the provisions and execute their obligations under theVFA. This in-

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cludes respecting jurisdictional issues in cases involving an offensecommitted by a US military personnel.

Same; Same; State Immunity from Suit; There appears to be ageneral recognition that foreign states are to be afforded immunityon account of equality of states, but the „practice‰ lacks uniformity.·There appears to be a general recognition that foreign states are tobe afforded immunity on account of equality of states, but the„practice‰ lacks uniformity. Finke points out that the doctrine asexercised by different states suffers from „substantial disagreementon detail and substance.‰ The inconsistencies in state practicerender the possibility of invoking international comity even moreproblematic.

Same; Same; Same; View that the International Court ofJusticeÊs position that sovereign immunity remains applicable even ifthe action is based upon violations of international law should belimited only to acts during armed conflict.·In sum, theInternational Court of JusticeÊs position that sovereign immunityremains applicable even if the action is based upon violations ofinternational law should be limited only to acts during armedconflict. Jurisdictional Immunities of the State (Germany v. Italy)also referred to actions commited during World War II andespecially referred to the situation of international law at that time.The majority reflected the attitude that sovereign immunity is acustomary norm. It, however, recognizes that uniformity in statepractice is far from the consensus required to articulate specificrules pertaining to other circumstances · such as transgressions offoreign warships of domestic legislation while granted innocent

passage. It impliedly accepted that states enjoyed wide latitude tospecify their own norms.

Same; Same; Same; View that as a principle of internationallaw, the doctrine of sovereign immunity is deemed automaticallyincorporated in our domestic legal system as per Article II, Section 2of the Constitution.·Sovereign immunity is a doctrine recognizedby states under the international law system. However, itscharacterization as a principle is more appropriate in that „theextent to which foreign states are awarded immunity differs fromstate to state.‰ This appears to be an accepted arrangement in lightof the different state immunity laws all over the world. As it stands,states are allowed to draw the line in the application of sovereignimmunity in cases involving foreign states and their agents. As aprinciple of

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international law, it is deemed automatically incorporated in ourdomestic legal system as per Article II, Section 2 of theConstitution. Considering this leeway, along with the urgency andimportance of the case at hand, the Philippines is, therefore, free toprovide guidelines consistent with international law, domesticlegislation, and existing jurisprudence.

Same; Same; Same; View that tortious acts or crimes committedwhile discharging official functions are also not covered by sovereignimmunity.·Shauf v. Court of Appeals, 191 SCRA 713 (1990),evolved the doctrine further as it stated that „[the] rational for thisruling is that the doctrine of state immunity cannot be used as aninstrument for perpetrating an injustice.‰ Tortious acts or crimescommitted while discharging official functions are also not coveredby sovereign immunity. Quoting the ruling in Chavez v.Sandiganbayan, 193 SCRA 282 (1991), this court held Americannaval officers personally liable for damages in Wylie v. Rarang, 209SCRA 357 (1992), to wit:. . . The petitioners, however, werenegligent because under their direction they issued the publicationwithout deleting the name „Auring.‰ Such act or omission is ultravires and cannot be part of official duty. It was a tortious act whichridiculed the private respondent.

Same; Same; Same; View that the Philippines has no law on the

application of sovereign immunity in cases of damages and/orviolations of domestic law involving agents of a foreign state.·As itstands, the Philippines has no law on the application of sovereignimmunity in cases of damages and/or violations of domestic lawinvolving agents of a foreign state. But our jurisprudence does haveopenings to hold those who have committed an act ultra viresresponsible in our domestic courts.

Same; Same; Same; View that immunity does not necessarilyapply to all the foreign respondents should the case have beenbrought in a timely manner, with the proper remedy, and in theproper court.·Considering the flexibility in international law andthe 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

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

PeopleÊs 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 TemporaryEnvironmental Protection Order (TEPO) under Rule 7 ofA.M. No.09-6-8-SC, otherwise known as the Rules of Procedure forEnvironmental Cases (Rules), involving violations ofenvironmental laws and regulations in relation to the

grounding of the US military ship USS Guardian over theTubbataha 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 oftwo huge coral atolls · the north atoll and the south atoll· and the Jessie Beazley Reef, a smaller coral structureabout 20 kilometers north of the atolls. The reefs ofTubbataha and Jessie Beazley are considered part ofCagayancillo, a remote island municipality of Palawan.1

In 1988, Tubbataha was declared a National MarinePark by virtue of Proclamation No. 306 issued by PresidentCorazon C. Aquino on August 11, 1988. Located in themiddle of

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1 Tubbataha Reefs Natural Park <http://tubbatahareef.org>.

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Central Sulu Sea, 150 kilometers southeast of PuertoPrincesa City, Tubbataha lies at the heart of the CoralTriangle, the global center of marine biodiversity.

In 1993, Tubbataha was inscribed by the United NationsEducational Scientific and Cultural Organization(UNESCO) as a World Heritage Site. It was recognized asone of the PhilippinesÊ oldest ecosystems, containingexcellent examples of pristine reefs and a high diversity ofmarine life. The 97,030-hectare protected marine park isalso an important habitat for internationally threatenedand endangered marine species. UNESCO citedTubbatahaÊs outstanding universal value as an importantand significant natural habitat for in situ conservation ofbiological diversity; an example representing significantongoing ecological and biological processes; and an area ofexceptional natural beauty and aesthetic importance.2

On April 6, 2010, Congress passed Republic Act (R.A.)No. 10067,3 otherwise known as the „Tubbataha ReefsNatural Park (TRNP) Act of 2009‰ „to ensure the protection

and conservation of the globally significant economic,biological, sociocultural, educational and scientific values ofthe Tubbataha Reefs into perpetuity for the enjoyment ofpresent and future generations.‰ Under the „no-take‰policy, entry into the waters of TRNP is strictly regulatedand many human activities are prohibited and penalized orfined, including fishing, gathering, destroying anddisturbing the resources within the TRNP. The lawlikewise created the Tubbataha Protected AreaManagement Board (TPAMB) which shall be the solepolicy-making and permit-granting body of the TRNP.

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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 minecountermeasures ship of the US Navy. In December 2012,the US Embassy in the Philippines requested diplomaticclearance for the said vessel „to enter and exit theterritorial waters of the Philippines and to arrive at theport of Subic Bay for the purpose of routine shipreplenishment, maintenance, and crew liberty.‰4 OnJanuary 6, 2013, the ship left Sasebo, Japan for Subic Bay,arriving on January 13, 2013 after a brief stop for fuel inOkinawa, Japan.

On January 15, 2013, the USS Guardian departed SubicBay for its next port of call in Makassar, Indonesia. OnJanuary 17, 2013 at 2:20 a.m. while transiting the SuluSea, the ship ran aground on the northwest side of SouthShoal of the Tubbataha Reefs, about 80 miles east-southeast 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, ViceAdmiral Scott Swift, expressed regret for the incident in apress statement.5 Likewise, US Ambassador to the

Philippines Harry K. Thomas, Jr., in a meeting at theDepartment of Foreign Affairs (DFA) on February 4,„reiterated his regrets over the grounding incident andassured Foreign Affairs Secretary Albert F. del Rosario thatthe United States will provide appropriate compensationfor damage to the reef caused by the ship.‰6 By March 30,2013, the US Navy-led salvage team had finished removingthe last piece of the grounded ship from the coral reef.

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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 theirbehalf and in representation of their respectivesector/organization and others, including minors orgenerations yet unborn, filed the present petition againstScott H. Swift in his capacity as Commander of the U.S.7th Fleet, Mark A. Rice in his capacity as CommandingOfficer of the USS Guardian and Lt. Gen. Terry G. Robling,US Marine Corps Forces, Pacific and Balikatan 2013Exercises Co-Director („US respondents‰); PresidentBenigno S. Aquino III in his capacity as Commander-in-Chief of the Armed Forces of the Philippines (AFP), DFASecretary Albert F. Del Rosario, Executive SecretaryPaquito Ochoa, Jr., Secretary Voltaire T. Gazmin(Department of National Defense), Secretary Jesus P. Paje(Department of Environment and Natural Resources), ViceAdmiral Jose Luis M. Alano (Philippine Navy Flag Officerin Command, AFP), Admiral Rodolfo D. Isorena (PhilippineCoast Guard Commandant), Commodore Enrico EfrenEvangelista (Philippine Coast Guard-Palawan), and MajorGeneral 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 andcontinue to cause environmental damage of suchmagnitude as to affect the provinces of Palawan, Antique,Aklan, Guimaras, Iloilo, Negros Occidental, NegrosOriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their constitutional rights to abalanced and healthful ecology. They also seek a directivefrom this Court for the institution of civil, administrativeand criminal suits for acts committed in violation ofenvironmental laws and regulations in connection with thegrounding incident.

Specifically, petitioners cite the following violationscommitted by US respondents under R.A. No. 10067:unauthorized entry (Section 19); nonpayment ofconservation fees (Sec-

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tion 21); obstruction of law enforcement officer (Section 30);damages to the reef (Section 20); and destroying anddisturbing resources (Section 26[g]). Furthermore,petitioners assail certain provisions of the Visiting ForcesAgreement (VFA) which they want this Court to nullify forbeing unconstitutional.

The numerous reliefs sought in this case are set forth inthe final prayer of the petition, to wit:

WHEREFORE, in view of the foregoing, Petitioners respectfullypray that the Honorable Court:

1. Immediately issue upon the filing of this petition a TemporaryEnvironmental Protection Order (TEPO) and/or a Writ ofKalikasan, which shall, in particular:

a. Order Respondents and any person acting on their behalf, tocease and desist all operations over the Guardian groundingincident;

b. Initially demarcating the metes and bounds of the damagedarea as well as an additional buffer zone;

c. Order Respondents to stop all port calls and war games underÂBalikatanÊ because of the absence of clear guidelines, duties, and

liability schemes for breaches of those duties, and requireRespondents to assume responsibility for prior and futureenvironmental damage in general, and environmental damageunder the Visiting Forces Agreement in particular;

d. Temporarily define and describe allowable activities ofecotourism, diving, recreation, and limited commercial activities byfisherfolk and indigenous communities near or around the TRNPbut away from the damaged site and an additional buffer zone;

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2. After summary hearing, issue a Resolution extending theTEPO 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 thedispositive portion of Nicolas v. Romulo, „to forthwith negotiatewith the United States representatives for the appropriateagreement on [environmental guidelines and environmentalaccountability] under Philippine authorities as provided in Art. V[ ]of the VFA⁄‰

b. Direct Respondents and appropriate agencies to commenceadministrative, civil, and criminal proceedings against erringofficers and individuals to the full extent of the law, and to makesuch proceedings public;

c. Declare that Philippine authorities may exercise primary andexclusive criminal jurisdiction over erring U.S. personnel under thecircumstances of this case;

d. Require Respondents to pay just and reasonable compensationin the settlement of all meritorious claims for damages caused tothe Tubbataha Reef on terms and conditions no less severe thanthose applicable to other States, and damages for personal injury ordeath, if such had been the case;

e. Direct Respondents to cooperate in providing for theattendance of witnesses and in the collection and production ofevidence, including seizure and delivery of objects connected withthe offenses related to the grounding of the Guardian;

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f. Require the authorities of the Philippines and the UnitedStates to notify each other of the disposition of all cases, whereverheard, related to the grounding of the Guardian;

g. Restrain Respondents from proceeding with any purportedrestoration, repair, salvage or post salvage plan or plans, includingcleanup plans covering the damaged area of the Tubbataha Reefabsent a just settlement approved by the Honorable Court;

h. Require Respondents to engage in stakeholder and LGUconsultations in accordance with the Local Government Code andR.A. 10067;

i. Require Respondent US officials and their representatives toplace a deposit to the TRNP Trust Fund defined under Section 17 ofRA 10067 as a bona fide gesture towards full reparations;

j. Direct Respondents to undertake measures to rehabilitate theareas affected by the grounding of the Guardian in light ofRespondentsÊ experience in the Port Royale grounding in 2009,among other similar grounding incidents;

k. Require Respondents to regularly publish on a quarterly basisand in the name of transparency and accountability suchenvironmental damage assess ment, valuation, and valuationmethods, in all stages of negotiation;

l. Convene a multisectoral technical working group to providescientific and technical support to the TPAMB;

m. Order the Department of Foreign Affairs, Department ofNational Defense, and the Department of Environment

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and Natural Resources to review the Visiting Forces Agreement andthe Mutual Defense Treaty to consider whether their provisionsallow for the exercise of erga omnes rights to a balanced andhealthful ecology and for damages which follow from any violationof those rights;

n. Narrowly tailor the provisions of the Visiting ForcesAgreement for purposes of protecting the damaged areas of TRNP;

o. Declare the grant of immunity found in Article V („CriminalJurisdiction‰) and Article VI of the Visiting Forces Agreementunconstitutional for violating equal protection and/or for violatingthe preemptory norm of nondiscrimination incorporated as part ofthe law of the land under Section 2, Article II, of the PhilippineConstitution;

p. Allow for continuing discovery measures;

q. Supervise marine wildlife rehabilitation in the TubbatahaReefs in all other respects; and

4. Provide just and equitable environmental rehabilitationmeasures and such other reliefs as are just and equitable under thepremises.7 (Underscoring supplied)

Since only the Philippine respondents filed theircomment8 to the petition, petitioners also filed a motion forearly resolu-

_______________

7 Rollo, pp. 89-92.

8 Id., at pp. 156-191. In a letter dated 27 May 2013, the DFAÊs 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 USrespondents.9

RespondentsÊ Consolidated Comment

In their consolidated comment with opposition to the

application for a TEPO and ocular inspection andproduction orders, respondents assert that: (1) the groundsrelied upon for the issuance of a TEPO or writ of Kalikasanhave become fait accompli as the salvage operations on theUSS Guardian were already completed; (2) the petition isdefective in form and substance; (3) the petition improperlyraises issues involving the VFA between the Republic of thePhilippines and the United States of America; and (4) thedetermination of the extent of responsibility of the USGovernment as regards the damage to the Tubbataha Reefsrests exclusively with the executive branch.

The CourtÊs 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 ofjustice on a given question.‰10 Specifically, it is „a partyÊspersonal and substantial interest in a case where he hassustained or will sustain direct injury as a result‰ of the actbeing challenged, and „calls for more than just ageneralized 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 proceduralmatter which this Court has relaxed for nontraditionalplaintiffs like ordinary citizens, taxpayers and legislatorswhen the public interest so requires, such as when thesubject matter of the controversy is of transcendentalimportance, of overreaching significance to society, or ofparamount public interest.12

In the landmark case of Oposa v. Factoran, Jr.,13 we

recognized the „public right‰ of citizens to „a balanced andhealthful ecology which, for the first time in ourconstitutional history, is solemnly incorporated in thefundamental law.‰ We declared that the right to a balancedand healthful ecology need not be written in theConstitution for it is assumed, like other civil and politicalrights guaranteed in the Bill of Rights, to exist from theinception of mankind and it is an issue of transcendentalimportance with intergenerational implications. Such rightcarries with it the correlative duty to refrain fromimpairing the environment.14

On the novel element in the class suit filed by thepetitioners minors in Oposa, this Court ruled that not only

do ordinary citizens have legal standing to sue for theenforcement of environmental rights, they can do so inrepresentation of their own and future generations. Thus:

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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 aswell as generations yet unborn. We find no difficulty in ruling thatthey can, for themselves, for others of their generation and for thesucceeding generations, file a class suit. Their personality to suein behalf of the succeeding generations can only be based onthe concept of intergenerational responsibility insofar asthe right to a balanced and healthful ecology is concerned.Such a right, as hereinafter expounded, considers the „rhythm andharmony of nature.‰ Nature means the created world in its entirety.Such rhythm and harmony indispensably include, inter alia, thejudicious disposition, utilization, management, renewal andconservation of the countryÊs forest, mineral, land, waters, fisheries,wildlife, off-shore areas and other natural resources to the end thattheir exploration, development and utilization be equitablyaccessible to the present as well as future generations. Needless tosay, every generation has a responsibility to the next to preservethat rhythm and harmony for the full enjoyment of a balanced andhealthful ecology. Put a little differently, the minorsÊ assertion oftheir right to a sound environment constitutes, at the same time,the performance of their obligation to ensure the protection of thatright 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, isnow enshrined in the Rules which allows the filing of acitizen suit in environmental cases. The provision oncitizen suits in the Rules „collapses the traditional rule onpersonal and direct interest, on the principle that humansare stewards of nature.‰16

Having settled the issue of locus standi, we shall addressthe more fundamental question of whether this Court has

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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 submitany pleading or manifestation in this case.

The immunity of the State from suit, known also as thedoctrine of sovereign immunity or non-suability of theState,17 is expressly provided in Article XVI of the 1987Constitution which states:

Section 3. 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, asfollows:

The rule that a state may not be sued without its consent, nowexpressed in Article XVI, Section 3, of the 1987 Constitution, is oneof the generally accepted principles of international law that wehave adopted as part of the law of our land under Article II, Section2. x x x.

Even without such affirmation, we would still be bound by thegenerally accepted principles of international law under thedoctrine of incorporation. Under this doctrine, as accepted by themajority of states, such principles are deemed incorporated in thelaw of every civilized state as a condition and consequence of itsmembership in the society of nations. Upon its admission to such

society, the state is automatically obligated to comply with theseprinciples in its relations with other states.

As applied to the local state, the doctrine of state immunity isbased on the justification given by Justice Holmes that „there canbe no legal right against the authority which makes the law onwhich the right depends.‰ [Kawanakoa v. Polybank, 205 U.S. 349]There are other practical reasons for the enforcement of thedoctrine. 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 inhibitionis expressed in the maxim par in parem, non habet

imperium. All states are sovereign equals and cannot assertjurisdiction over one another. A contrary disposition would,in the language of a celebrated case, „unduly vex the peaceof nations.‰ [De Haber v. Queen of Portugal, 17 Q. B. 171]

While the doctrine appears to prohibit only suits against thestate without its consent, it is also applicable to complaintsfiled against officials of the state for acts allegedlyperformed by them in the discharge of their duties. The ruleis that if the judgment against such officials will require the stateitself to perform an affirmative act to satisfy the same, such as theappropriation of the amount needed to pay the damages awardedagainst them, the suit must be regarded as against the state itselfalthough it has not been formally impleaded. [Garcia v. Chief ofStaff, 16 SCRA 120.] In such a situation, the state may move todismiss the complaint on the ground that it has been filed withoutits 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 toextend to any suit in law or equity, commenced or prosecutedagainst 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 furtherexpounded on the immunity of foreign states from thejurisdiction of local courts, as follows:

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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 foreignstate is a long-standing rule of customary international law thenclosely identified with the personal immunity of a foreign sovereignfrom suit and, with the emergence of democratic states, made toattach not just to the person of the head of state, or hisrepresentative, but also distinctly to the state itself in its sovereigncapacity. If the acts giving rise to a suit are those of a foreigngovernment done by its foreign agent, although notnecessarily a diplomatic personage, but acting in his officialcapacity, the complaint could be barred by the immunity ofthe foreign sovereign from suit without its consent. Suing arepresentative of a state is believed to be, in effect, suing the stateitself. The proscription is not accorded for the benefit of anindividual but for the State, in whose service he is, under themaxim · par in parem, non habet imperium · that all states aresovereign equals and cannot assert jurisdiction over one another.The implication, in broad terms, is that if the judgment against anofficial would require the state itself to perform an affirmative actto satisfy the award, such as the appropriation of the amountneeded to pay the damages decreed against him, the suit must beregarded as being against the state itself, although it has not beenformally impleaded.21 (Emphasis supplied)

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

diplomatic immunity, the privilege is not an immunity fromthe observance of the law of the territorial sovereign orfrom ensuing legal liability; it is, rather, an immunity fromthe exercise of territorial jurisdiction.22

In United States of America v. Judge Guinto,23 one of theconsolidated cases therein involved a Filipino employed atClark Air Base who was arrested following a buy-bustopera-

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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 waseventually dismissed from his employment when he wascharged in court for violation of R.A. No. 6425. In acomplaint for damages filed by the said employee againstthe military officers, the latter moved to dismiss the caseon the ground that the suit was against the USGovernment which had not given its consent. The RTCdenied the motion but on a petition for certiorari andprohibition filed before this Court, we reversed the RTCand dismissed the complaint. We held that petitioners USmilitary officers were acting in the exercise of their officialfunctions when they conducted the buy-bust operationagainst the complainant and thereafter testified againsthim at his trial. It follows that for discharging their dutiesas agents of the United States, they cannot be directlyimpleaded for acts imputable to their principal, which hasnot given its consent to be sued.

This traditional rule of State immunity which exempts aState from being sued in the courts of another Statewithout the formerÊs consent or waiver has evolved into arestrictive doctrine which distinguishes sovereign andgovernmental acts (jure imperii) from private, commercialand proprietary acts (jure gestionis). Under the restrictiverule of State immunity, State immunity extends only toacts jure imperii. The restrictive application of Stateimmunity is proper only when the proceedings arise out ofcommercial transactions of the foreign sovereign, itscommercial activities or economic affairs.24

In Shauf v. Court of Appeals,25 we discussed thelimitations of the State immunity principle, thus:

It is a different matter where the public official is made toaccount in his capacity as such for acts contrary to law andinjurious to the rights of plaintiff. As was clearly set forth byJustice Zaldivar in

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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 itsofficers, unauthorized acts of government officials or officers are notacts of the State, and an action against the officials or officers byone whose rights have been invaded or violated by such acts, for theprotection of his rights, is not a suit against the State within therule of immunity of the State from suit. In the same tenor, it hasbeen said that an action at law or suit in equity against a Stateofficer or the director of a State department on the ground that,while claiming to act for the State, he violates or invades thepersonal and property rights of the plaintiff, under anunconstitutional act or under an assumption of authority which hedoes not have, is not a suit against the State within theconstitutional provision that the State may not be sued without itsconsent.‰ The rationale for this ruling is that the doctrine of stateimmunity cannot be used as an instrument for perpetrating aninjustice.

x x x xThe aforecited authorities are clear on the matter. They state

that the doctrine of immunity from suit will not apply andmay not be invoked where the public official is being sued inhis private and personal capacity as an ordinary citizen. Thecloak of protection afforded the officers and agents of thegovernment is removed the moment they are sued in theirindividual capacity. This situation usually arises where the public

official acts without authority or in excess of the powers vested inhim. It is a well-settled principle of law that a public official maybe liable in his personal private capacity for whateverdamage he may have caused by his act done with malice andin bad faith, or beyond the scope of his authority orjurisdiction.26 (Emphasis supplied)

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26 Id., at pp. 727-728.

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In this case, the US respondents were sued in theirofficial capacity as commanding officers of the US Navywho had control and supervision over the USS Guardianand its crew. The alleged act or omission resulting in theunfortunate grounding of the USS Guardian on the TRNPwas committed while they were performing official militaryduties. Considering that the satisfaction of a judgmentagainst said officials will require remedial actions andappropriation of funds by the US government, the suit isdeemed to be one against the US itself. The principle ofState immunity therefore bars the exercise of jurisdictionby this Court over the persons of respondents Swift, Riceand Robling.

During the deliberations, Senior Associate JusticeAntonio T. Carpio took the position that the conduct of theUS in this case, when its warship entered a restricted areain violation of R.A. No. 10067 and caused damage to theTRNP reef system, brings the matter within the ambit ofArticle 31 of the United Nations Convention on the Law ofthe Sea (UNCLOS). He explained that while historically,warships enjoy sovereign immunity from suit as extensionsof their flag State, Art. 31 of the UNCLOS creates anexception to this rule in cases where they fail to complywith the rules and regulations of the coastal Stateregarding passage through the latterÊ s internal waters andthe territorial sea.

According to Justice Carpio, although the US to date hasnot ratified the UNCLOS, as a matter of long-standingpolicy 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 previousdeclarations by former Presidents Reagan and Clinton, andthe US judiciary in the case of United States v. RoyalCaribbean Cruise Lines, Ltd.27

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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 theuses of the sea, the exploitation of its resources, and theexercise of jurisdiction over maritime regimes. It is abranch of public international law, regulating the relationsof states with respect to the uses of the oceans.‰28 TheUNCLOS is a multilateral treaty which was opened forsignature on December 10, 1982 at Montego Bay, Jamaica.It was ratified by the Philippines in 1984 but came intoforce on November 16, 1994 upon the submission of the60th ratification.

The UNCLOS is a product of international negotiationthat seeks to balance State sovereignty (mare clausum) andthe principle of freedom of the high seas (mare liberum).29

The freedom to use the worldÊs marine waters is one of theoldest customary principles of international law.30 TheUNCLOS gives to the coastal State sovereign rights invarying degrees over the different zones of the sea whichare: 1) internal waters, 2) territorial sea, 3) contiguouszone, 4) exclusive economic zone, and 5) the high seas. Italso gives coastal States more or less jurisdiction overforeign vessels depending on where the vessel is located.31

Insofar as the internal waters and territorial sea is

concerned, the Coastal State exercises sovereignty, subjectto the UNCLOS and other rules of international law. Suchsovereignty extends to the air space over the territorial seaas well as to its bed and subsoil.32

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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 StateÊs Jurisdiction Over Foreign Vessels,‰

14 Pace IntÊl. 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 JusticeCarpio, they continue to enjoy sovereign immunity subjectto the following exceptions:

33 Art. 29 of UNCLOS defines warship as „a shipbelonging to the armed forces of a State bearing theexternal marks distinguishing such ships of its nationality,under the command of an officer duly commissioned by thegovernment of the State and whose name appears in theappropriate service list or its equivalent, and manned by acrew which is under regular armed forces discipline.‰

Article 30Noncompliance by warships with the laws and regulations of the

coastal StateIf any warship does not comply with the laws and regulations of

the coastal State concerning passage through the territorial sea anddisregards any request for compliance therewith which is made toit, the coastal State may require it to leave the territorial seaimmediately.

Article 31Responsibility of the flag State for damage caused by a warship

or other government ship operated fornoncommercial purposes

The flag State shall bear international responsibility for any lossor damage to the coastal State resulting from thenoncompliance by a warship or other government ship operatedfor noncommercial purposes with the laws and regulations ofthe coastal State concerning passage through the territorialsea or with the provisions of this Convention or other rules ofinternational law.

Article 32

Immunities of warships and other government ships operated fornoncommercial purposes

With such exceptions as are contained in subsection A and inArticles 30 and 31, nothing in this Conven-

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tion affects the immunities of warships and other government shipsoperated for noncommercial purposes. (Emphasis supplied)

A foreign warshipÊs unauthorized entry into our internal

waters with resulting damage to marine resources is onesituation in which the above provisions may apply. Butwhat if the offending warship is a nonparty to theUNCLOS, as in this case, the US?

An overwhelming majority · over 80% · of nationstates are now members of UNCLOS, but despite this theUS, the worldÊs leading maritime power, has not ratified it.

While the Reagan administration was instrumental in UNCLOSÊnegotiation and drafting, the U.S. delegation ultimately votedagainst and refrained from signing it due to concerns over deepseabed mining technology transfer provisions contained in Part XI.In a remarkable, multilateral effort to induce U.S. membership, thebulk of UNCLOS member states cooperated over the succeedingdecade to revise the objectionable provisions. The revisions satisfiedthe Clinton administration, which signed the revised Part XIimplementing agreement in 1994. In the fall of 1994, PresidentClinton transmitted UNCLOS and the Part XI implementingagreement to the Senate requesting its advice and consent. Despiteconsistent support from President Clinton, each of his successors,and an ideologically diverse array of stakeholders, the Senate hassince withheld the consent required for the President tointernationally bind the United States to UNCLOS.

While UNCLOS cleared the Senate Foreign Relations Committee(SFRC) during the 108th and 110th Congresses, its progresscontinues to be hamstrung by significant pockets of politicalambivalence over U.S. participation in international institutions.Most recently, 111th Congress SFRC Chairman Senator John Kerryincluded „voting out‰ UNCLOS for full Senate consideration amonghis highest priorities. This did not occur, and

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no Senate action has been taken on UNCLOS by the 112thCongress.34

Justice Carpio invited our attention to the policystatement given by President Reagan on March 10, 1983that the US will „recognize the rights of the other states inthe waters off their coasts, as reflected in the convention[UNCLOS], so long as the rights and freedom of the UnitedStates and others under international law are recognizedby such coastal states,‰ and President ClintonÊs reiterationof the US policy „to act in a manner consistent with its[UNCLOS] provisions relating to traditional uses of theoceans and to encourage other countries to do likewise.‰Since Article 31 relates to the „traditional uses of theoceans,‰ and „if under its policy, the US Ârecognize[s] therights of the other states in the waters off their coasts,Ê„Justice Carpio postulates that „there is more reason toexpect it to recognize the rights of other states in theirinternal waters, such as the Sulu Sea in this case.‰

As to the non-ratification by the US, Justice Carpioemphasizes that „the USÊ refusal to join the UNCLOS wascentered on its disagreement with UNCLOSÊ regime of deepseabed mining (Part XI) which considers the oceans anddeep seabed commonly owned by mankind,‰ pointing outthat such „has nothing to do with its [the USÊ] acceptance ofcustomary international rules on navigation.‰

It may be mentioned that even the US Navy JudgeAdvocate GeneralÊs Corps publicly endorses the ratificationof the UNCLOS, as shown by the following statementposted on its official website:

The Convention is in the national interest of the United Statesbecause it establishes stable maritime zones, including a maximumouter limit for territorial seas; codi-

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

AmericaÊs UNCLOS Allergy in the Time of ÂLawfare,‰ 61 Naval L. Rev. 1, 3

(2012).

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fies innocent passage, transit passage, and archipelagic sea lanespassage rights; works against „jurisdictional creep‰ by preventingcoastal nations from expanding their own maritime zones; andreaffirms sovereign immunity of warships, auxiliaries andgovernment aircraft.

x x x xEconomically, accession to the Convention would support our

national interests by enhancing the ability of the US to assert itssovereign rights over the resources of one of the largest continentalshelves in the world. Further, it is the Law of the Sea Conventionthat first established the concept of a maritime Exclusive EconomicZone out to 200 nautical miles, and recognized the rights of coastalstates to conserve and manage the natural resources in this Zone.35

We fully concur with Justice CarpioÊs view thatnonmembership in the UNCLOS does not mean that theUS will disregard the rights of the Philippines as a CoastalState over its internal waters and territorial sea. We thusexpect the US to bear „international responsibility‰ underArt. 31 in connection with the USS Guardian groundingwhich adversely affected the Tubbataha reefs. Indeed, it isdifficult to imagine that our long-time ally and tradingpartner, which has been actively supporting the countryÊsefforts to preserve our vital marine resources, would shirkfrom its obligation to compensate the damage caused by itswarship while transiting our internal waters. Much lesscan we comprehend a Government exercising leadership ininternational affairs, unwilling to comply with theUNCLOS directive for all nations to cooperate in the globaltask to protect and preserve the marine environment asprovided in Article 197, viz.:

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35 <http://www.jag.navy.mil/organization/code 10 law of the sea.htm>.

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Article 197Cooperation on a global or regional basis

States shall cooperate on a global basis and, as appropriate, on aregional basis, directly or through competent internationalorganizations, in formulating and elaborating international rules,standards and recommended practices and procedures consistentwith this Convention, for the protection and preservation of themarine environment, taking into account characteristic regionalfeatures.

In fine, the relevance of UNCLOS provisions to the

present controversy is beyond dispute. Although the saidtreaty upholds the immunity of warships from thejurisdiction of Coastal States while navigating the latterÊsterritorial sea, the flag States shall be required to leave theterritorial sea immediately if they flout the laws andregulations of the Coastal State, and they will be liable fordamages caused by their warships or any other governmentvessel operated for noncommercial purposes under Article31.

Petitioners argue that there is a waiver of immunityfrom suit found in the VFA. Likewise, they invoke federalstatutes in the US under which agencies of the US havestatutorily waived their immunity to any action. Evenunder the common law tort claims, petitioners asseveratethat the US respondents are liable for negligence, trespassand nuisance.

We are not persuaded.The VFA is an agreement which defines the treatment of

United States troops and personnel visiting the Philippinesto promote „common security interests‰ between the USand the Philippines in the region. It provides for theguidelines to govern such visits of military personnel, andfurther defines the rights of the United States and thePhilippine government in the matter of criminaljurisdiction, movement of vessel and aircraft, importationand 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 isthe VFA which governs disputes involving US militaryships and crew navigating Philippine waters in pursuanceof the objectives of the agreement.

As it is, the waiver of State immunity under the VFApertains only to criminal jurisdiction and not to special civilactions such as the present petition for issuance of a writ ofKalikasan. In fact, it can be inferred from Section 17, Rule7 of the Rules that a criminal case against a personcharged with a violation of an environmental law is to befiled separately:

SEC. 17. Institution of separate actions.·The filing of a petitionfor the issuance of the writ of kalikasan shall not preclude the filingof separate civil, criminal or administrative actions.

In any case, it is our considered view that a ruling on theapplication or non-application of criminal jurisdictionprovisions of the VFA to US personnel who may be foundresponsible for the grounding of the USS Guardian, wouldbe premature and beyond the province of a petition for awrit of Kalikasan. We also find it unnecessary at this pointto determine whether such waiver of State immunity isindeed absolute. In the same vein, we cannot grantdamages which have resulted from the violation ofenvironmental laws. The Rules allows the recovery ofdamages, including the collection of administrative finesunder R.A. No. 10067, in a separate civil suit or thatdeemed instituted with the criminal action charging thesame violation of an environmental law.37

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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 begranted in a petition for issuance of a writ of Kalikasan, towit:

SEC. 15. Judgment.·Within sixty (60) days from the time thepetition is submitted for decision, the court shall render judgmentgranting 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 violationof environmental laws resulting in environmental destruction ordamage;

(b) Directing the respondent public official, government agency,private person or entity to protect, preserve, rehabilitate or restorethe environment;

(c) Directing the respondent public official, government agency,private person or entity to monitor strict compliance with thedecision and orders of the court;

(d) Directing the respondent public official, government agency,or private person or entity to make periodic reports on the executionof the final judgment; and

(e) Such other reliefs which relate to the right of the people to abalanced and healthful ecology or to the protection, preservation,rehabilitation or restoration of the environment, except theaward of damages to individual petitioners. (Emphasissupplied)

We agree with respondents (Philippine officials) inasserting that this petition has become moot in the sensethat the salvage operation sought to be enjoined orrestrained had already been accomplished when petitionerssought recourse from this Court. But insofar as thedirectives to Philippine respondents to protect andrehabilitate the coral reef structure and marine habitatadversely 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 USSGuardian from the coral reef.

However, we are mindful of the fact that the US andPhilippine governments both expressed readiness tonegotiate and discuss the matter of compensation for thedamage caused by the USS Guardian. The US Embassyhas also declared it is closely coordinating with local

scientists and experts in assessing the extent of thedamage and appropriate methods of rehabilitation.

Exploring avenues for settlement of environmental casesis not proscribed by the Rules. As can be gleaned from thefollowing provisions, mediation and settlement areavailable for the consideration of the parties, and whichdispute resolution methods are encouraged by the court, towit:

RULE 3x x x xSEC. 3. Referral to mediation.·At the start of the pre-trial

conference, the court shall inquire from the parties if they havesettled the dispute; otherwise, the court shall immediately refer theparties or their counsel, if authorized by their clients, to thePhilippine Mediation Center (PMC) unit for purposes of mediation.If not available, the court shall refer the case to the clerk of court orlegal researcher for mediation.

Mediation must be conducted within a non-extendible period ofthirty (30) days from receipt of notice of referral to mediation.

The mediation report must be submitted within ten (10) daysfrom the expiration of the 30-day period.

SEC. 4. Preliminary conference.·If mediation fails, the court willschedule the continuance of the pre-trial. Before the scheduled dateof continuance, the court may refer the case to the branch clerk ofcourt for a preliminary conference for the following purposes:

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(a) To assist the parties in reaching a settlement;x x x xSEC. 5. Pre-trial conference; consent decree.·The judge shall put

the parties and their counsels under oath, and they shall remainunder oath in all pre-trial conferences.

The judge shall exert best efforts to persuade the parties toarrive at a settlement of the dispute. The judge may issue a consentdecree approving the agreement between the parties in accordancewith law, morals, public order and public policy to protect the rightof the people to a balanced and healthful ecology.

x x x xSEC. 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 in2009 when a guided-missile cruiser, the USS Port Royal,ran a ground about half a mile off the Honolulu AirportReef Runway and remained stuck for four days. Afterspending $6.5 million restoring the coral reef, the USgovernment was reported to have paid the State of Hawaii$8.5 million in settlement over coral reef damage caused bythe grounding.38

To underscore that the US government is prepared to

pay appropriate compensation for the damage caused bythe USS Guardian grounding, the US Embassy in thePhilippines has announced the formation of a USinterdisciplinary scientific

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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 Governmentof the Philippines to review coral reef rehabilitation optionsin Tubbataha, based on assessments by Philippine-basedmarine scientists.‰ The US team intends to „help assessdamage and remediation options, in coordination with theTubbataha Management Office, appropriate Philippinegovernment entities, nongovernmental organizations, andscientific experts from Philippine universities.‰39

A rehabilitation or restoration program to beimplemented at the cost of the violator is also a major reliefthat may be obtained under a judgment rendered in acitizensÊ suit under the Rules, viz.:

RULE 5SECTION 1. Reliefs in a citizen suit.·If warranted, the court

may grant to the plaintiff proper reliefs which shall include theprotection, preservation or rehabilitation of the environment andthe payment of attorneyÊs fees, costs of suit and other litigationexpenses. It may also require the violator to submit a program ofrehabilitation or restoration of the environment, the costs of whichshall be borne by the violator, or to contribute to a special trust fundfor that purpose subject to the control of the court.

In the light of the foregoing, the Court defers to theExecutive Branch on the matter of compensation andrehabilitation measures through diplomatic channels.Resolution of these issues impinges on our relations withanother State in the context of common security interestsunder the VFA. It is settled that „[t]he conduct of theforeign relations of our government is committed by theConstitution to the executive and legislative · ÂthepoliticalÊ · departments of the government, and thepropriety of what may be done in the exer-

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39

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

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cise of this political power is not subject to judicial inquiryor decision.‰40

On the other hand, we cannot grant the additional

reliefs prayed for in the petition to order a review of theVFA 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 thePhilippine Senate and has been recognized as a treaty bythe United States as attested and certified by the dulyauthorized representative of the United Statesgovernment. The VFA being a valid and binding agreement,the parties are required as a matter of international law toabide by its terms and provisions.42 The present petition

under the Rules is not the proper remedy to assail theconstitutionality of its provisions.

WHEREFORE, the petition for the issuance of theprivilege 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 Perlas-Bernabe, JJ., concur.

Sereno, CJ., See Concurring Opinion.Mendoza, J., On Official Leave.Leonen, J., See Separate Concurring Opinion.Jardeleza, J., No Part.

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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. Supportedboth by local jurisprudence, as well as international law(which forms part of the Philippine legal structure), thedoctrine 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 HolySee v. Rosario, to wit:

There are two conflicting concepts of sovereign immunity, eachwidely held and firmly established. According to theclassical or absolute theory, a sovereign cannot, without itsconsent, be made a respondent in the courts of another sovereign.According to the newer or restrictive theory, the immunity of thesovereign is recognized only with regard to public acts or acts jureimperii of a state, but not with regard to private acts or acts juregestionis.

x x x xThe restrictive theory came about because of the entry of

sovereign states into purely commercial activities remotelyconnected with the discharge of governmental functions. This isparticularly 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 PhilippinesÊ adherence to the restrictive theory asfollows:

The doctrine of state immunity from suit has undergone furthermetamorphosis. The view evolved that the existence of a contractdoes not, per se, mean that sovereign states may, at all times, besued in local courts. The complexity of relationships betweensovereign states, brought about by their increasing commercialactivities, mothered a more restrictive application of the doctrine.

x x x xAs it stands now, the application of the doctrine of

immunity from suit has been restricted to sovereign orgovernmental activities (jure imperii). The mantle of stateimmunity cannot be extended to commercial, private andproprietary acts (jure gestionis).

Since the Philippines adheres to the restrictive theory, it iscrucial to ascertain the legal nature of the act involved · whetherthe entity claiming immunity performs governmental, asopposed to proprietary, functions. As held in United States ofAmerica v. Ruiz ·

The restrictive application of State immunity is proper onlywhen 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 thelevel of an individual and can thus be deemed to have tacitly givenits consent to be sued only when it enters into business contracts. Itdoes not

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apply where the contract relates to the exercise of its sovereignfunctions.1 (Emphases supplied. Citations omitted)

From the Philippine perspective, what determines its

ability to impose its law upon the foreign entity would bethe act of the foreign entity · on whether the act is anaspect of its sovereign function or a private act.

In this case, the two Naval Officers were actingpursuant to their function as the commanding officers of awarship, traversing Philippine waters under the authorityof the Visiting Forces Agreement (VFA). While the eventsbeg the question of what the warship was doing in thatarea, when it should have been headed towards Indonesia,its presence in Philippine waters is not whollyunexplainable. The VFA is a treaty, and it has beenaffirmed as valid by this Court in Bayan v. Zamora,2 andaffirmed in Lim v. Executive Secretary3 and Nicolas v.Romulo.4 It has, in the past, been used to justify thepresence of United States Armed Forces in the Philippines.In this respect therefore, acts done pursuant to the VFAtake the nature of governmental acts, since both the UnitedStates and Philippine governments recognize the VFA as atreaty with corresponding obligations, and the presence ofthese two Naval Officers and the warship in Philippinewaters fell under this legal regime.

From this, the applicability of sovereign immunitycannot be denied as to the presence of the warship and itsofficers in Philippine waters. This does not, however, putan end to the discussion, because even if immunity isapplicable to their presence, the specific act of hitting theTubbataha Reef and causing damage thereto is apresumably tortuous act. Can

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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 ofsovereign immunity?

Tort Exception

Under the regime of international law, there is an added

dimension to sovereign immunity exceptions: the tortexception. Whether this has evolved into a customary normis still debatable; what is important to emphasize is thatwhile some states have enacted legislation to allow thepiercing of sovereign immunity in tortuous actions, theForeign Sovereign Immunities Act of 1976 of the UnitedStates (FSIA)5 contains such privilege. Specifically, theFSIA contains exceptions for (1) waiver;6 (2) commercialactivity;7 (3) expropriation;8 (4) property rights acquiredthrough succession or donation;9 (5) damages for personalinjury 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, orthe provision of material support to such an act, if the statesponsors terrorism;12 and (8) maritime lien in a suit foradmiralty based on commercial activity.13

Any claim under the FSIA goes through a hierarchicalprocess between the diplomatic channels of the UnitedStates and the forum state. However, by explicitlyincluding the tort exception in its local legislation underthe 4th exception discussed above · with due considerationto the heavy require-

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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 · itbecomes plausible that the exception can be applied to theUnited 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 ofcustomary international law according to which states must denysovereign immunity in case of tortious acts committed by anothercountry in the forum state. Even though such an obligation isincluded in the ECSI and the UNCJIS, a considerable number ofstates do not apply this exception. But this does not answer thequestion whether states are prohibited from doing so. Section 1605of the FSIA, for example, denies immunity in cases Âin which moneydamages are sought ⁄ for personal injury or death, or damage to orloss of property, occurring in the United States and caused by thetortious act or omission of that foreign state.Ê If sovereign immunityis the default rule and all exceptions must reflect customaryinternational law, and if the tort exception has not yet evolved intocustom, then states such as the US, UK, Canada, and Australiathat have included the tort exception in their national immunitylaws automatically violate international law · a conclusion whichno commentator so far has suggested. But if states that enactthis exception as law do not violate international law, whythen should a state do so if its courts apply this exceptionnot on the basis of national law, but on the basis of how theyconstrue and interpret the doctrine of sovereign immunityunder international law?14 (Emphasis supplied)

What Finke suggests is that a local court need not findthe tort exception concept in its national law if it can

interpret the doctrine from its understanding ofinternational law. Can

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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 partof 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 claimsof its nationals against a foreign government is a foreignrelations matter, the authority for which is demonstrablycommitted by our Constitution not to the courts but to thepolitical branches.‰16 Immunity then, unlike in otherjurisdictions, is determined not by the courts of law but bythe executive branches. Indeed, this was extensivelydiscussed in Chief Justice PunoÊs concurring opinion inLiang v. People, to wit:

PetitionerÊs argument that a determination by the Department ofForeign Affairs that he is entitled to diplomatic immunity is apolitical question binding on the courts, is anchored on the rulingenunciated in the case of WHO, et al. v. Aquino, et al., viz.:

„It is a recognized principle of international law andunder our system of separation of powers that diplomaticimmunity is essentially a political question and courtsshould refuse to look beyond a determination by theexecutive branch of the government, and where the plea ofdiplomatic immunity is recognized and affirmed by the executivebranch of the government as in the case at bar, it is then the duty ofthe courts to accept the claim of immunity upon appropriatesuggestion by the principal law officer of the government, theSolicitor General in this case, or other officer acting under hisdirection. Hence, in adher-

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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 exercisetheir jurisdiction by seizure and detention of property, as toembarrass the executive arm of the government inconducting foreign relations, it is accepted doctrine that insuch cases the judicial department of the governmentfollows the action of the political branch and will notembarrass the latter by assuming an antagonisticjurisdiction.‰

This ruling was reiterated in the subsequent cases ofInternational Catholic Migration Commission v. Calleja; The HolySee v. Rosario, Jr; Lasco v. UN; and DFA v. NLRC.

The case of WHO v. Aquino involved the search and seizure ofpersonal effects of petitioner Leonce Verstuyft, an official of theWHO. Verstyft was certified to be entitled to diplomatic immunitypursuant to the Host Agreement executed between the Philippinesand the WHO.

ICMC v. Calleja concerned a petition for certification electionfiled against ICMC and IRRI. As international organizations, ICMCand IRRI were declared to possess diplomatic immunity. It was heldthat they are not subject to local jurisdictions. It was ruled that theexercise of jurisdiction by the Department of Labor over the casewould defeat the very purpose of immunity, which is to shield theaffairs of international organizations from political pressure orcontrol by the host country and to ensure the unhamperedperformance of their functions.

In Holy See v. Rosario, Jr. involved an action for annulment ofsale of land against the Holy See, as represented by the PapalNuncio. The Court upheld the petitionerÊs defense of sovereignimmunity. It ruled that where a diplomatic envoy is grantedimmunity from the civil and administrative jurisdiction of thereceiving state over any real action relating to private immovableproperty situated in the territory of the receiving state, which theenvoy holds on behalf of the sending state for the

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purposes of the mission, with all the more reason should immunitybe recognized as regards the sovereign itself, which in that case isthe Holy See.

In Lasco v. United Nations, the United Nations Revolving Fundfor Natural Resources Exploration was sued before the NLRC forillegal dismissal. The Court again upheld the doctrine of diplomaticimmunity invoked by the Fund.

Finally, DFA v. NLRC involved an illegal dismissal case filedagainst the Asian Development Bank. Pursuant to its Charter andthe Headquarters Agreement, the diplomatic immunity of the AsianDevelopment Bank was recognized by the Court.

x x x xClearly, the most important immunity to an international

official, in the discharge of his international functions, is immunityfrom local jurisdiction. There is no argument in doctrine or practicewith the principle that an international official is independent ofthe jurisdiction of the local authorities for his official acts. Thoseacts are not his, but are imputed to the organization, and withoutwaiver the local courts cannot hold him liable for them. In strictlaw, it would seem that even the organization itself could have noright to waive an officialÊs immunity for his official acts. Thispermits local authorities to assume jurisdiction over and individualfor 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 waiveits own immunity and appear in court, not the individual, exceptinsofar as he appears in the name of the organization. Provisionsfor immunity from jurisdiction for official acts appear, aside fromthe aforementioned treatises, in the constitution of most moderninternational organizations. The acceptance of the principle issufficiently widespread to be regarded as declaratory ofinternational law.17 (Emphasis supplied)

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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 firstdetermine whether diplomatic or sovereign immunity canbe invoked by the foreign officials involved. If it can beinvoked, then the next analysis should be whether thisinvoked immunity is absolute, as in the treatment ofdiplomatic envoys. If it is not absolute, then and only thencan the Court weave the tort exception into the law ofsovereign immunity and thus attain jurisdiction over theNaval Officers involved. This is important because thepractice has been to afford the foreign entity absoluteimmunity, but withdraw the same from its personnel whenthey 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 itsconsent.18 According to Professor Ian Brownlie, it is „aprocedural bar (not a substantive defence) based on thestatus and functions of the state or official in question.‰19

Furthermore, its applicability depends on the law andprocedural rules of the forum state.20 In the recentjudgment of the International Court of Justice (ICJ) in theJurisdictional Immunities of the State (Germany v. Italy:Greece Intervening) case,21 the doctrine of sovereignimmunity was applied in the following context:

In 1995, successors in title of the victims of the Distomomassacre, committed by the German armed forces in aGreek village in June 1944, brought proceedings forcompensation

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18 J-Maurice Arbour & Genevieve Parents, Droit International

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

19 James Crawford, BrownlieÊs 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).

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against Germany before the Greek courts. The Greek courtordered Germany to pay compensation to the claimants.The appeal by Germany against that judgment wasdismissed by a decision of the Hellenic Supreme Court,which ordered Germany to pay the costs of the appealproceedings. The successful Greek claimants under thefirst instance and Supreme Court judgments applied to theItalian courts for exequatur of those judgments, so as to beable to have them enforced in Italy. This was allowed bythe Florence Court of Appeals and confirmed by the ItalianCourt of Cassation.

Germany raised the dispute before the ICJ, claimingthese decisions constituted violations of its jurisdictionalimmunity.

The ICJ analyzed the case from the vantage point ofimmunity, such that the jurisdictional immunity of statesrefers primarily to an immunity from the trial process andis thus preliminary in character, as stated in the followingmanner:

At the outset, however, the Court must observe that theproposition that the availability of immunity will be to some extentdependent upon the gravity of the unlawful act presents a logicalproblem. Immunity from jurisdiction is an immunity notmerely from being subjected to an adverse judgment butfrom being subjected to the trial process. It is, therefore,necessarily preliminary in nature. Consequently, a national court isrequired to determine whether or not a foreign State is entitled toimmunity as a matter of international law before it can hear themerits of the case brought before it and before the facts have beenestablished. If immunity were to be dependent upon the Stateactually having committed a serious violation of internationalhuman rights law or the law of armed conflict, then it would becomenecessary for the national court to hold an enquiry into the meritsin order to determine whether it had jurisdiction. If, on the otherhand, the mere allegation that the State had committed suchwrongful acts were to be sufficient to deprive the State of itsentitlement 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 bedefeated by reason of serious violations of human rightslaw or the law of armed conflict. In this, the ICJ clearlysaw that there was no customary international law normthat led to the defeat of immunity by reason of theseviolations, including the tort exception, viz.:

Apart from the decisions of the Italian courts which are thesubject of the present proceedings, there is almost no State practicewhich might be considered to support the proposition that a State isdeprived of its entitlement to immunity in such a case. Althoughthe Hellenic Supreme Court in the Distomo case adopted a form ofthat proposition, the Special Supreme Court in Margellosrepudiated that approach two years later. As the Court has noted inparagraph 76 above, under Greek law it is the stance adopted inMargellos which must be followed in later cases unless the Greekcourts find that there has been a change in customary internationallaw since 2002, which they have not done. As with the territorialtort principle, the Court considers that Greek practice,taken as a whole, tends to deny that the propositionadvanced by Italy has become part of customaryinternational law.

In addition, there is a substantial body of State practicefrom other countries which demonstrates that customaryinternational law does not treat a StateÊs entitlement toimmunity as dependent upon the gravity of the act of whichit is accused or the peremptory nature of the rule which it isalleged to have violated.23 (Emphasis supplied)

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22 Id., at p. 82.

23 Id., at pp. 83-84.

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As things stand in the international sphere, theimmunity of the state (and by extension, its agents, in theperformance of their governmental functions jure imperii)

must stand against even serious violations of internationallaw, including breaches of international environmental law(which is an aspect of human rights law as well). The ICJconcluded 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 isaccused of serious violations of international human rights law orthe international law of armed conflict. In reaching that conclusion,the Court must emphasize that it is addressing only the immunityof the State itself from the jurisdiction of the courts of other States;the question of whether, and if so to what extent, immunity mightapply in criminal proceedings against an official of the State is notin 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 thatstate immunity is waived in the context of an internationalbreach of even a jus cogens norm, as explained in thismanner:

The rules of State immunity are procedural in character and areconfined to determining whether or not the courts of one State mayexercise jurisdiction in respect of another State. They do not bearupon the question whether or not the conduct in respect of whichthe proceedings are brought was lawful or unlawful. That is whythe application of the contemporary law of State immunity toproceedings concerning events which occurred in 1943-1945 doesnot infringe the principle that law should not be appliedretrospectively to determine matters of legality and responsibility(as the Court has explained in paragraph 58 above). For the samereason, 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 aslawful a situation created by the breach of a jus cogens rule, orrendering aid and assistance in maintaining that situation, and socannot contravene the principle in Article 41 of the International

Law CommissionÊs 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 answeringseveral questions, summated thusly:

1. Is the act of the foreign national or entity an act jureimperii, such that it can be considered an act of stateentitled to immunity, or an act jure gestionis, in which caseit is to be considered a private act?

2. In respect of the above question, has the executivebranch, in the exercise of its political power, determinedwhether absolute diplomatic immunity is applicable?

3. If it is an act jure imperii and thus entitled tosovereign immunity, does an exception apply to withdrawthe 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 isallowed by the VFA, and as a treaty privilege should beconsidered an act jure imperii. Its deviation into the watersof Tubbataha, and whether this can be considered a privateact, is a factual issue that should be determined by theproper body. Indeed, while Philippine authorities may nothave authorized the deviation, if the United Statesgovernment affirms that it gave the Guardian sufficientdiscretion to determine its course, then the act is notnecessarily 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 thePhilippine government would be to engage in diplomaticnegotiations for potential treaty breach liability.

As of this moment, the executive branch has not made adetermination of the applicable immunity. Nocorrespondence has been sent to the Court as to the issue.

Thus, the Court must act in deference to the executiveprerogative to first make this determination under thepresumption of regularity of performance of duties, beforeit can exercise its judicial power.

Finally, no exception exists in Philippine or internationallaw that would remove the immunity of the United Statesin order to place it under the jurisdiction of Philippinecourts. The Writ of Kalikasan is a compulsory writ, and itsissuance initiates a legal process that would circumvent theinternationally established rules of immunity. Should theCourt issue the Writ, it could possibly entail internationalresponsibility for breaching the jurisdictional immunity ofa 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 ourextraordinary procedures in environmental cases in orderto avoid their abuse. Abuse of our procedures contributes tothe debasement of the proper function of the remedies andinvites inordinate interference from this court from whatmay be technical and political decisions that must be madein a different forum. Our sympathy

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for environmental concerns never justifies our conversionto an environmental super body.

The writ of kalikasan is not an all-embracing legalremedy to be wielded like a political tool. It is both anextraordinary and equitable remedy which assists toprevent environmental catastrophes. It does not replaceother legal remedies similarly motivated by concern for theenvironment and the communityÊs ecological welfare.

Certainly, when the petition itself alleges that remedialand preventive remedies have occurred, the functions of thewrit cease to exist. In case of disagreement, parties need toexhaust the political and administrative arena. Only whena concrete cause of action arises out of facts that can beproven with substantial evidence may the proper legalaction be entertained.

CitizenÊs suits are suits brought by parties sufferingdirect and substantial injuries; although in theenvironmental field, these injuries may be shared withothers. It is different from class suits brought asrepresentative suits under Oposa v. Factoran.1 In my view,there is need to review this doctrine insofar as it allows anonrepresentative group to universally represent a wholepopulation as well as an unborn generation binding themto causes of actions, arguments, and reliefs which they didnot choose. Generations yet unborn suffer from the legalinability to assert against false or unwantedrepresentation.

CitizenÊs suits are procedural devices that allow agenuine cause of action to be judicially considered in spiteof the social costs or negative externalities of suchinitiatives. This should be clearly distinguished in our rulesand in jurisprudence from class suits that purport torepresent the whole population and unborn generations.The former is in keeping with the required constitutionalprotection for our people. The latter is dangerous andshould be used only in very extraordi-

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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 jurisprudentiallyinappropriate.

In my view, decisions relating to environmental concernsshould be more balanced. It must attend in a more soberway to the required balance of all interests. Hence, our rulewith respect to standing should require that parties

bringing the suit are sufficiently and substantiallypossessed of individual interest and capability so that theycan properly shape the issues brought before this court.The capability of the parties to bring suit can readily beseen through the allegations made in their petition.

Our doctrine regarding sovereign immunity also needsto be refined in the proper case with respect to its nature,source, and its limitations.

The doctrine of sovereign immunity evolves out of thetheory and practice of sovereignty and the principle par inparem non habet jurisdictionem. Its particular contours asan international norm have evolved far beyond the form ittook when the theory of absolute sovereignty was current.Contemporarily, it is understood as a basic right extendedto states by other states on the basis of respect forsovereignty and independence.2 There appears to be aconsensus among states that sovereign immunity as aconcept is legally binding.3 However, there remains to be alack of international agreement as to how it is to beinvoked and the extent of immunity in some cases.4

This vagueness arises from the debate on which amongthe sources of international law the doctrine of sovereignimmunity draws its binding authority and the content ofthe doctrine given its source.

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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 becomesbindingin our jurisdiction as international law only throughSection 2 of Article II or Section 21 of Article VII of theConstitution. Article XVII, Section 3 of the Constitution isa limitation on suits against our state. It is not the textual

anchor for determining the extent of jurisdictionalimmunities that should be accorded to other states or theiragents. International law may have evolved further thanthe usual distinction between acta jure imperii and actajure gestionis. Indications of state practice even of publicrespondents show that jurisdictional immunity for foreignstates may not apply to certain violations of jus cogensrules of international customary law. There can be tortexemptions provided by statute and, therefore, the statepractice of an agentÊs sovereign being sued in our courts.

International law does not also prohibit legislation thatclarifies national policy and, therefore, our ownconsiderations of state practice in relation to the limits ofjurisdictional immunities for other sovereigns. Neither doesinternational law prohibit domestic courts from shapingexceptions to jurisdictional immunity based upon ourreading of the Constitution as well as international andmunicipal law.

I am of the view, therefore, that this case be dismissedprincipally for its procedural infirmities. We should reservedoctrinal exposition and declaration of the content ofjurisdictional immunities for other sovereigns and theiragents when the proper cases merit our attention and notyet unduly limit such jurisprudence in relation to the lawof the sea, municipal torts, and violations of internationalcustomary law of a jus cogens character. The results in thiscase would have been different if initiated with the properremedy, by the proper parties in the proper court.

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IProcedural antecedents

This court was asked to issue a writ of kalikasan with

temporary environmental protection order or TEPOpursuant to Rule 7 of A.M. No. 09-6-8-SC, otherwise knownas 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 theGuardian grounding incident;

2) for the demarcation of the metes and bounds of the damagedarea, with an additional buffer zone;

3) for respondents to stop all port calls and war games under theBalikatan;

4) for respondents to assume responsibility for prior and futureenvironmental damage in general and under the Visiting ForcesAgreement (VFA);

5) for the temporary definition of allowable activities near oraround the Tubbataha Reefs [Natural] Park, but away from thedamaged site and the additional buffer zone;

6) for respondent Secretary of Foreign Affairs to negotiate withthe United States representatives for an agreement onenvironmental guidelines and accountability pursuant to the VFA;

7) for respondents and appropriate agencies to commenceadministrative, civil, and criminal proceedings against erringofficers and individuals;

8) for the declaration of exclusive criminal jurisdiction ofPhilippine authorities over erring USS Guardian personnel;

9) for respondents to pay just and reasonable compensation inthe settlement of all meritorious claims for damages caused to theTubbataha Reefs;

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10) for respondents to cooperate in securing the attendance ofwitnesses and the collection and production of evidence, includingobjects connected with the offenses related to the grounding of theGuardian;

11) for respondents US officials and their representatives to placea deposit to the TRNP Trust Fund, as defined in Section 17 of RA10067, as a bona fide gesture towards full reparations;

12) for respondents to undertake rehabilitation measures forareas affected by the grounding of the Guardian;

13) for respondents to publish on a quarterly basis theenvironmental damage assessment, valuation, and valuationmethods, in all stages of negotiations to ensure transparency andaccountability;

14) for the convention of a multisectoral technical working groupthat will provide scientific and technical support to the TubbatahaProtected Area Management Board (TPAMB);

15) for respondents Department of Foreign Affairs, Departmentof National Defense, and the Department of Environmental and

Natural Resources to review the VFA and the Mutual DefenseTreaty in light of the right to a balanced and healthful ecology, andany violation related thereto;

16) for the declaration of the grant of immunity under Articles Vand VI of the VFA as being violative of equal protection and/or theperemptory norm of nondiscrimination;

17) for permission to resort to continuing discovery measures;and

18) for other just and equitable environmental rehabilitationmeasures and reliefs.5

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5 Rollo, pp. 89-92.

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Petitioners include representatives from peopleÊsorganizations, nongovernment organizations, accreditedpublic interest groups, environmental institutes,government officials, and academicians.6 Respondents, onthe other hand, are the American commanding officers ofthe USS Guardian and the Balikatan 2013 Exercises,incumbent Philippine government officials, and Philippinemilitary officers involved, by virtue of their office, in issuesarising out of the grounding of the USS Guardian inTubbataha Reefs and its subsequent salvage.7

The USS Guardian is a fifth Avenger Class MineCountermeasures, United States Navy ship.8 The threediplomatic notes issued by the Embassy of the UnitedStates of America in the Philippines dated December 3,2012,9 December 31, 2012,10 and January 14, 201311 allsought clearance for the ship to „enter and exit theterritorial waters of the Philippines and to arrive at theport of Subic Bay for the purpose of routine shipreplenishment, maintenance, and crew liberty.‰12

Thus, on January 17, 2013, while en route to Makasaar,Indonesia, the USS Guardian ran aground in theTubbataha ReefsÊ south atoll, approximately 80 miles east-southeast of Palawan.13 In a statement issued on January25, 2013, US Ambassador to the Philippines Harry K.Thomas expressed his regret over the incident, recognizing

the legitimate concerns over the damage caused to thereef.14 On February 5, 2013, a joint statement was issuedby 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.

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 providecompensation.15 On the same day, a salvage plan wassubmitted by a Singaporean company contracted by the USNavy 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 petitionfor writ of kalikasan with prayer for temporaryenvironmental protection order (TEPO).

Acting on petitionersÊ petition but without necessarilygiving due course, this court on May 8, 2013 issued aresolution. The resolution a) required respondents, exceptthe President of the Republic of the Philippines, tocomment 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 Affairsof the Department of Foreign Affairs sent a letter to thiscourt, requesting that the notice of this courtÊs resolutiondated May 8, 2013 be returned, as it was not an agent forthe service of processes upon American respondents.19

The pleadings presented the following issues: a) whetherpetitioners have legal standing to file a petition for writ of

kalikasan with prayer for temporary environmentalprotection order (TEPO), and b) whether the doctrine ofsovereign immunity applies to foreign respondents.

Petitioners argued that they have locus standi.20 Havingcategorized the petition as a citizenÊs suit, they alleged thatthey are representing „others, including minors andgenerations yet unborn‰ in asserting their constitutionalright to a

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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 thiscourtÊs ruling in Oposa v. Factoran that Article II, Section16 of the 1987 Constitution was immediately enforceable.The pronouncement was anchored on the premise that theright to a balanced and healthful ecology belonged „to adifferent category of rights altogether for it concernsnothing less than self-preservation and self-perpetuation.‰22

Petitioners also alleged that the American respondentsare not immune from suit.23 Citing Nicolas v. Romulo,24

they argued that Article V of the Visiting Forces Agreementor VFA, which pertained to „Criminal Jurisdiction,‰25

establishes a

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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

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 theincidentÊs26 immunity from suit in light of their violation ofRepublic Act 10067, or the Tubbataha Reefs Natural Park(TRNP) Act of 2009,27 including its entry in the areawithout 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 USfederal statutes clearly provide that American governmentagencies have statutorily waived their immunity from anyequitable action involving environmental damages.29 Theyreferred to both Resource Conservation and Recovery Act of1976 (RCRA) and the Federal Tort Claims Act (FTCA) aslegal bases.30

Petitioners stated that RCRA waives sovereignimmunity in citizenÊs suits when a) there is a need toenforce a permit, standard, or regulation; b) there is a needto abate an imminent and substantial danger to health orthe environment; or c) the United States EnvironhmentalProtection Agency is required to perform anondiscretionary duty.31

On the other hand, the FTCA provides that „the U.S.Government is liable in tort in the same manner and to thesame extent as private individuals under like

circumstances [but only] if the laws of the state in whichthe wrongful act occurred provide recovery in similarsituations 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 liablein rem33 to the Philippines for response costs and damagesresulting from the destruction, loss, and injury caused tothe Tubbataha Reefs.34 Aside from not having had priorpermit to enter the area, petitioners pointed out that theAmerican respondents had committed gross andinexcusable negligence when it failed to utilize its technicalexpertise and equipment in preventing the incident.35 It istheir position that this necessarily rendered sovereignimmunity inapplicable to American respondents, even ifthey were acting within the scope of their authority, office,or employment.36

IIThe parties do not have legal standing

Petitioners brought this case as a citizenÊs suit under the

Tubbataha Reefs Natural Park Act of 2009, in conjunctionwith the Rules of Procedure for Environmental Cases.37

Section 37 of the Tubbataha Reefs Natural Park Act of2009 allows any citizen to file a civil, criminal, oradministrative case against:

(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 ofthis Act with respect to orders, rules and regulations issuedinconsistent with this Act; and/or

(c) Any public officer who wilfully or grossly neglects theperformance of an act, specifically enjoined as a duty by this Act orits implementing rules and regulations; or abuses his authority inthe performance of his duty; or, in any manner improperly performshis 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 allegedviolator concerned and no appropriate action has been takenthereon. The court shall exempt such action from the payment offiling fees, upon prima facie showing of the nonenforcement orviolations complained of and exempt the plaintiff from the filing ofan injunction bond for the issuance of preliminary injunction. In theevent that the citizen should prevail, the court shall awardreasonable attorneyÊs fees, moral damages and litigation costs asappropriate.

While the Tubbataha Reefs Natural Park Act

enumerates causes of action available against duty-bearers, it does not specifically describe the parties whomay file a case.

The „environmental‰ nature of this petition, based upon

the alleged violation of the Tubbataha Reefs Natural ParkAct, by itself does not and should not automatically renderthe Rules of Procedure for Environmental Cases applicable.At best, it must be reconciled with rules on parties ascontained in the Rules of Court. This is to preclude asituation where the interpretation of the Rules ofProcedure for Environmental Cases results in a rulinginconsistent or contrary to established legal concepts. It ismy position that unless the remedy sought will serve thepurpose of preventing an environmental catastrophe, thetraditional procedural route should be taken. This meansthat even in environmental cases, Rule 3, Sections 2, 3, or12 of the 1997 Rules of Civil Procedure should still alsoapply.

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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 theparty who stands to be benefited or injured by the judgment in thesuit, or the party entitled to the avails of the suit. Unless otherwiseauthorized by law or these Rules, every action must be prosecutedor defended in the name of the real party in interest. (2a)38

A real party-in-interest is a litigant whose right orinterest stands to benefit or get injured by the judgment ofthe case.39 The interest referred to must be materialinterest, founded upon a legal right sought to be enforced.40

They bring a suit because the act or omission of anotherhas caused them to directly suffer its consequences.41

Simply put, a real party-in-interest has a cause of actionbased upon an existing legal right-duty correlative.

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 isallowed to be prosecuted or defended by a representative or

someone acting in a fiduciary

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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 andshall be deemed to be the real party-in-interest. A representativemay be a trustee of an express trust, a guardian, an executor oradministrator, or a party authorized by law or these Rules. Anagent acting in his own name and for the benefit of an undisclosedprincipal may sue or be sued without joining the principal exceptwhen 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 rulerequires that the beneficiary be identified as he or she isdeemed the real party-in-interest.43 This means that actingin a representative capacity does not turn into a real party-in-interest someone who is otherwise an outsider to thecause of action.

This rule enumerates who may act as representatives,including those acting in a fiduciary capacity. While not anexhaustive list, it does set a limit by allowing only thosewho are „authorized by law or these Rules.‰44 Inenvironmental cases, this section may be used to bring asuit, provided that two elements concur: a) the suit isbrought on behalf of an identified party whose right hasbeen violated, resulting in some form of damage, and b) therepresentative authorized by law or the Rules of Court torepresent the victim.

The citizenÊs suit under the Rules of Procedure forEnvironmental Cases is a representative suit. A citizenÊs

suit is defined:

SEC. 5. Citizen suit.·Any Filipino citizen in representation ofothers, 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 underenvironmental laws. Upon the filing of a citizen suit, the court shallissue an order which shall contain a brief description of the cause ofaction and the reliefs prayed for, requiring all interested parties tomanifest their interest to intervene in the case within fifteen (15)days from notice thereof. The plaintiff may publish the order once ina newspaper of a general circulation in the Philippines or furnishall affected barangays copies of said order.

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

suit that seeks to enforce environmental rights andobligations may be brought by any Filipino who is acting asa representative of others, including minors or generationsyet unborn.45 As representatives, it is not necessary forpetitioners to establish that they directly suffered from thegrounding of the USS Guardian and the subsequentsalvage operations. However, it is imperative for them toindicate with certainty the injured parties on whose behalfthey bring the suit. Furthermore, the interest of those theyrepresent must be based upon concrete legal rights. It isnot sufficient to draw out a perceived interest from ageneral, nebulous idea of a potential „injury.‰

This is particularly important when the parties soughtto be represented are „minors and generations yet unborn.‰

„Minors and generations yet unborn‰ is a category of realparty-in-interest that was first established in Oposa v.Factoran. In Oposa v. Factoran, this court ruled that therepresentatives derived their personality to file a suit on

behalf of succeeding generations from „intergenerationalresponsibility.‰46 The case mirrored through jurisprudencethe general moral duty of the present generation to ensurethe full enjoy-

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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 succeedinggenerations.47

Since environmental cases necessarily involve the

balancing of different types and degrees of interests,allowing anyone from the present generation to representothers who are yet unborn poses three possible dangers.

First, they run the risk of foreclosing arguments ofothers who are unable to take part in the suit, putting intoquestion its representativeness. Second, varying interestsmay potentially result in arguments that are bordering onpolitical issues, the resolutions of which do not fall uponthis court. Third, automatically allowing a class or citizenÊssuit on behalf of „minors and generations yet unborn‰ mayresult in the oversimplification of what may be a complexissue, especially in light of the impossibility of determiningfuture generationÊs true interests on the matter.

Decisions of this court will bind future generations. Theunbridled and misguided use of this remedy by supposedrepresentatives may not only weaken the minorsÊ andunbornÊs ability to decide for themselves but may haveunforeseen and unintended detrimental effects on theirinterests.

The last point is especially crucial in light of resjudicata. A long-established doctrine on litigation, resjudicata:

. . . is an old axiom of law, dictated by wisdom and sanctified byage, 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 pervadingevery 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

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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 subjectthe public peace and quiet to the will and neglect ofindividuals and prefer the gratification of the litigiousdisposition on the part of suitors to the preservation of thepublic 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 mustbe between the first and subsequent actions (i) identity of

parties or at least such as representing the same interest in bothactions; (ii) identity of subject matter, or of the rights assertedand relief prayed for, the relief being founded on the same facts;and, (iii) identity of causes of action in both actions such thatany judgment that may be rendered in the other action will,regardless of which party is successful, amount to res judicata inthe action under consideration.49 (Emphasis supplied, citationomitted)

An absolute identity of the parties is not required for res

judicata to apply, for as long as there exists an identity orcommunity of interest.50

Res judicata renders conclusive between the parties andtheir privies a ruling on their rights, not just for thepresent action, but in all subsequent suits. This pertains toall 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. Thedoctrine bars parties to litigate an issue more than once,and this is strictly applied because „the maintenance ofpublic order, the repose of society . . . require that what hasbeen definitely determined by competent tribunals shall beaccepted as irrefragable legal truth.‰51

Considering the effect of res judicata, the ruling inOposa v. Factoran has opened a dangerous practice ofbinding parties who are yet incapable of making choices forthemselves, either due to minority or the sheer fact thatthey do not yet exist. Once res judicata sets in, theimpleaded minors and generations yet unborn will beunable 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 wasneed to call attention to environmental concerns in light ofemerging international legal principles. While„intergenerational responsibility‰ is a noble principle, itshould not be used to obtain judgments that would precludefuture generations from making their own assessment basedon their actual concerns. The present generation mustrestrain itself from assuming that it can speak best for thosewho will exist at a different time, under a different set ofcircumstances. In essence, the unbridled resort torepresentative suit will inevitably result in preventing

future generations from protecting their own rights andpursuing their own interests and decisions. It reduces theautonomy of our children and our childrenÊs children. Evenbefore they are born, we again restricted their ability tomake their own arguments.

It is my opinion that, at best, the use of the Oposadoctrine in environmental cases should be allowed onlywhen a) there is a clear legal basis for the representativesuit; b) there are actual concerns based squarely upon anexisting legal right; c) there is no possibility of anycountervailing interests existing

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51 Id., at p. 308.

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within the population represented or those that are yet to beborn; and d) there is an absolute necessity for such standingbecause there is a threat of catastrophe so imminent that animmediate protective measure is necessary. Better still, inthe light of its costs and risks, we abandon the precedent alltogether.

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 thecontroversy is one of common or general interest to many persons sonumerous that it is impracticable to join all as parties, a number ofthem which the court finds to be sufficiently numerous andrepresentative as to fully protect the interests of all concerned maysue or defend for the benefit of all. Any party-in-interest shall havethe right to intervene to protect his individual interest. (12a)

In Mathay, et al. v. The Consolidated Bank and TrustCompany,52 this court held that a class suit mustessentially 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 classsuit 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

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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 existenceof 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 Section12, Rule 3, of the Rules of Court in behalf of CMI subscribingstockholders‰ but did not state the number of said CMI subscribingstockholders so that the trial court could not infer, much less makesure 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 largenumber of parties before the court.

The statute also requires, as a prerequisite to a class suit, thatthe subject matter of the controversy be of common or generalinterest to numerous persons. Although it has been remarked

that the „innocent Âcommon or general interestÊ 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)

The same case referred to the United States FederalRules of Civil Procedure. After having been raised byMathay, et al. as legal basis for its class suit, this courtheld:

. . . 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 over the subject matter

indispensable in a class suit. . . .54 (Emphasis supplied, citations

omitted)

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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 intwo capacities: first, as persons directly injured by the actor omission complained of; and second, as representativesof an entire class who have suffered the same injury. Inorder to fully protect all those concerned, petitioners mustshow that they belong in the same universe as those theyseek to represent. More importantly, they must establishthat, in that universe, they can intervene on behalf of therest.

These requirements equally apply in environmentalcases.

Petitioners who bring the suit both for themselves andthose they seek to represent must share a common legalinterest · that is, the subject of the suit over which thereexists a cause of action is common to all persons whobelong to the group.55 As a result, the right sought to beenforced is enjoyed collectively, and not separately orindividually.56 The substantial injury must have beensuffered by both the parties bringing the suit and therepresented class.

However, it is recognized that any damage to theenvironment affects people differently, rendering itimpossible for the injury suffered to be of the same natureand degree for each and every person. For instance,secondhand smoke from one who lights up a cigarette maycause lung and other health complications of a much graverdegree to exposed commuters, compared to those who arekept insulated by well-maintained and well-ventilatedbuildings. The same may be said for dumpsites along theshores of a bay. The gravity of injury they cause to thosewhose source of livelihood is purely fishing in the affectedarea would be entirely different from that suffered by anoffice worker.

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55 See Re: Request of the Plaintiffs, Heirs of the Passengers of the

Doña 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 tograve, increase the possibility of „free-riders‰ in a case.This results in a negative externality: an environmentalmanagement concept that delves into the effect of anindividualÊs or firmÊs action on others.57 In this case, theeffect on others is a disadvantage or an injury.

In most instances where this free-rider or negativeexternality exists, a suit is not filed because the cost ofmaintaining and litigating outweighs the actual damagesuffered due to the act or omission of another. The theory isthat bringing a class suit allows those who are not asaffected as petitioners, though they may share the sameinterest, to latch their claim on someone else without anypersonal expense. There must be some assurances,however, that the interests are the same and thearguments that should have been brought by others who donot have the resources to bring the suit are properlyrepresented. This is why the rules allow courts to be liberalin assessing „common interest.‰

Another essential element of a class suit is thatpetitioners must be sufficiently numerous andrepresentative so as to fully protect the interest of allconcerned. One of the dangers of bringing a class suit isthat while the partiesÊ environmental interest shares acommon legal basis, the extent and nature of that interestdiffer depending on circumstances.

In the case of Re: Request of the Plaintiffs, Heirs of thePassengers of the Doña Paz,58 which quoted MooreÊsFederal 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) forthe 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. Includedwithin the true class suit . . . (are) the shareholdersÊ derivative suitand 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 heavyburden of representation. All the parties represented maynot have consented to the agency imposed on them.

Courts, therefore, must ensure that the parties thatbring the suit are sufficiently numerous to ensure that allpossible interests and arguments have been considered.The community, class, group, or identity that is representedmust be sufficiently defined so that the court will be able toproperly assess that the parties bringing the suit areproperly representative.

In view of the technical nature of some environmentalcases, not only should the parties be representative interms of the interests and arguments that they bring, theymust likewise show that they have the capability to bringreasonably cogent, rational, scientific, well-foundedarguments. This is so because if they purportedly representa community, class, group, or identity, we should assumethat all those represented would have wanted to argue inthe best possible manner.

The cogency and representativeness of the argumentscan readily be seen in the initiatory pleading. In the specialcivil

_______________

59 Id., at p. 627.

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actions invoked in this case, this court has the discretion toscrutinize the initiatory pleading to determine whether itshould grant due course prior or after the filing of acomment. In my view, this pleading falls short of therequirement of representativeness.

For instance, it is clear in some of the reliefs that wererequested that the arguments may not be what all thosethey purport to represent really want. As an illustration,the petition requests:

3) for respondents to stop all port calls and war games under theBalikatan;

The facts in this case and the writ of kalikasan certainlyhave no bearing on why this court should issue aninjunction against all port calls in any part of the countrymade by all kinds of ships even if this is related to theBalikatan exercises. „War games‰ even undertaken solelyon land has no bearing on the subject matter of this case.Also, in the facts as alleged in the pleading, it is not clearhow all those affected by the ecological mishap that mayhave occurred in the Tubbataha Reefs would also beinterested in stopping „war games under the Balikatan.‰The pleading asserts that it represents all generations yetunborn. Thus, it includes the sons and daughters of allgovernment officials who are now involved in the Balikatanexercises. It also includes the military commanders whoare now administering such exercise. The broad reliefrequested belies the representativeness of the suit.

Of similar nature are the following prayers for relief inthe petition:

4) for respondents to assume responsibility for prior andfuture environmental damage in general and under theVisiting Forces Agreement (VFA);

5) for the temporary definition of allowable activitiesnear 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 anagreement on environmental guidelines and accountabilitypursuant to the VFA;

. . . .8) for the declaration of exclusive criminal jurisdiction of

Philippine authorities over erring USS Guardianpersonnel;

. . . .14) for the convention of a multisectoral technical

working group that will provide scientific and technicalsupport to the Tubbataha Protected Area ManagementBoard (TPAMBl);

15) for respondents Department of Foreign Affairs,Department of National Defense, and the Department ofEnvironmental and Natural Resources to review the VFAand the Mutual Defense Treaty in light of the right to abalanced and healthful ecology, and any violation relatedthereto;

16) for the declaration of the grant of immunity underArticles V and VI of the VFA as being violative of equalprotection and/or the peremptory norm ofnondiscrimination;

17) for permission to resort to continuing discoverymeasures.

Not all environmental cases need to be brought as classsuits. There is no procedural requirement that majority ofthose affected must file a suit in order that an injunctivewrit or a writ of kalikasan can be issued. It is sufficientthat the party has suffered its own direct and substantialinterest, its legal basis is cogent, and it has the capabilityto move forward to present the facts and, if necessary, thescientific basis for its analysis for some of these cases to begiven due course.

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Parenthetically, the humility of bringing suits only inthe name of petitioners will protect them from the chargethat more than the legal arguments they want to bring,

they also want to impose their own political views as viewswhich are universally accepted.

In all environmental cases, it is also not necessary thatgenerations yet unborn be represented. It is not alsonecessary that minors bring the suit. In my view, pleadingtheir interests have no value added to the case except forits emotive effect at the risk of encouraging a paternalattitude toward our children and for those belonging togenerations yet unborn. Certainly, it was not necessarywith respect to the putative cause of action relating to thegrounding of the USS Guardian.

With the class suit improperly brought, the parties whofiled this petition have no legal standing. To protect theindividuals, families, and communities who are improperlyrepresented, this case should be dismissed.

IIIA petition for a writ of kalikasan is

a wrong remedy

Rule 7, Part III of the Rules of Procedure forEnvironmental Cases pertaines to the writ of kalikasan. Itdescribes the nature of the writ:

Section 1. Nature of the writ.·The writ is a remedy availableto a natural or juridical person, entity authorized by law, peopleÊsorganization, nongovernmental organization, or any public interestgroup 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 publicofficial or employee, or private individual or entity, involving

environmental damage of such magnitude as to prejudice the

life, health or prop-

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

The writ of kalikasan is a remedy that coversenvironmental damages the magnitude of whichtranscends both political and territorial boundaries.60 Itspecifically provides that the prejudice to life, health, orproperty caused by an unlawful act or omission of a public

official, public employee, or a private individual or entitymust be felt in at least two cities or provinces.61 Thepetition for its issuance may be filed on behalf of thosewhose right to a balanced and healthful ecology is violated,provided that the group or organization which seeks torepresent is duly accredited.62

Two things must be examined: first, whether petitioners

are qualified to bring this suit under the requirements ofthe provisions; and second, whether there are actualinjured parties being represented. On the first issue, thefollowing 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 PeopleÊsNetwork for the Environment71

Maria Carolina Araullo, Chairperson of Bagong AlyansangMakabayan (Bayan)72

Renato Reyes Jr., Secretary-General of Bagong Alyansang

Makabayan (Bayan)73

Hon. Neri Javier Colmenares, Representative of Bayan MunaParty-list74

Roland Simbulan, Ph.D., Junk VFA Movement75

Hon. Raymond Palatino, Representative of Kabataan Party-list76

Peter Gonzales, Vice Chairperson of Pambansang Lakas ngKilusang 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 WomenÊsResource81

Petitioners satisfy the first requirement as theycomprise both natural persons and groups duly recognizedby the government. It is doubtful, however, whether thereare actual injured parties being represented. As discussedpreviously, a citizenÊs suit on an environmental issue mustbe resorted to responsibly.

Petitioners in this case also seek the issuance of atemporary environmental protection order or TEPO. Rule7, Part III of the Rules of Procedure for EnvironmentalCases provides:

SEC. 8. Issuance of Temporary Environmental Protection Order

(TEPO).·If it appears from the verified complaint with a prayer forthe issuance of an Environmental Protection Order (EPO) that thematter is of extreme urgency and the applicant will suffer

grave injustice and irreparable injury, the executive judge ofthe multiple-sala court before raffle or the presiding judge of asingle-sala court as the case may be, may issue ex parte a TEPOeffective for only seventy-two (72) hours from date of the receipt ofthe TEPO by the party or person enjoined. Within said period, thecourt where the case is assigned, shall conduct a summary hearingto determine whether the TEPO may be extended until thetermination of the case.

The court where the case is assigned, shall periodically monitorthe existence of acts that are the subject matter of the TEPO even ifissued by the executive judge, and may lift the same at any time ascircumstances may warrant.

The applicant shall be exempted from the posting of a bond forthe issuance of a TEPO. (Emphasis supplied)

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81 Id.

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A TEPO is an order which either directs or enjoins aperson or government agency to perform or refrain from acertain act, for the purpose of protecting, preserving, and/orrehabilitating the environment.82 The crucial elements inits 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 salvageoperations conducted immediately after the incident. Theremedy is no longer available considering that all activitiesto remove the grounded USS Guardian have beenconcluded.84 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 damagedarea.85 This notice also prohibited „leisure trips toTubbataha‰ and advised „all watercrafts transitting thevicinity to take precautionary measures.‰86

In light of the facts of this case, I vote that the petitionbe 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 assovereign 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

_______________


83 Id., at p. 114.

84 Rollo, p. 164.

85 Id.

86 Id., at p. 161.

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Arigo vs. Swift

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 statesotherwise known as the doctrine of sovereign immunity.

The doctrine of sovereign immunity can be understoodeither as a domestic or an international concept.87

As a domestic concept, sovereign immunity isunderstood as the non-suability of the state. In the case ofthe Republic of the Philippines as a State, this is containedin Article XVI, Section 3 of the 1987 PhilippineConstitution, which provides that „[the] State may not besued without its consent.‰

In Air Transportation Office v. Spouses Ramos,88 this

court underscored the practical considerations underlyingthe doctrine:

Practical considerations dictate the establishment of an

immunity from suit in favor of the State. Otherwise, and theState 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, citationomitted)

_______________

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 foreigngovernments. Rather, as a doctrine in international law,the concept of sovereign immunity is incorporated into ourjurisdiction as international custom or general principle ofinternational law through Article II, Section 2, whichprovides:

Section 2. The Philippine renounces war as an instrument ofnational policy, adopts the generally accepted principles ofinternational law as part of the law of the land and adheres to thepolicy of peace, equality, justice, freedom, cooperation, and amitywith all nations.90

Alternatively, should there be an internationalagreement or a treaty91 that articulates the scope ofjurisdictional immunity for other sovereigns, then it can beincorporated through Article VII, Section 21, whichprovides:

No treaty or international agreement shall be valid and effectiveunless concurred in by at least two-thirds of all the Members of theSenate.

In Republic of Indonesia v. Vinzon,92 this court ruledthat „[the] rule that a State may not be sued without itsconsent is a necessary consequence of the principles ofindependence and equality of States.‰93 However, it did notmake any reference to Article XVI, Section 3 of theConstitution. Instead, it used Article II, Section 294 as basisfor 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

war as an instrument of national policy, adopts the gener-

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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 aState 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 practicaljustification for the doctrine of sovereign immunity is that there canbe no legal right against the authority that makes the law on whichthe 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 overone another. A contrary attitude would „unduly vex the peace ofnations.‰95 (Emphasis supplied, citations omitted)

VSovereign immunity under international law

Under international law, sovereign immunity remains tobe an abstract concept. On a basic level, it is understood asa basic right extended to states by other states on the basis

of respect for sovereignty and independence.96 Thereappears to be a consensus among states that sovereignimmunity as a concept is legally binding.97 Nevertheless,legal scholars observe that there remains to be a lack ofagreement as to how it is to be invoked or exercised inactual 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.

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 (Emphasissupplied, citations omitted)

This vagueness arises from the debate about the sourcesof international law for the doctrine of sovereign immunity.

Article 38(1) of the Statute of the International Court ofJustice (ICJ Statute)100 enumerates the classic sources ofinternational law:101

The Court, whose function is to decide in accordance withinternational 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 variousnations, as subsidiary means for the determination of rules of law.

International conventions, or treaties, are „internationalagreement[s] concluded between States in written form andgoverned by international law, whether embodied in asingle instrument, or in two or more related instrumentsand 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

University Int. Law Review, 1-96 (1987).

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ever its particular designation.‰102 International custom, orcustomary international law, pertains to principles, notnecessarily expressed in treaties, resulting from practicesconsistently followed by states due to a sense of legalobligation.103 General principles of law recognized bycivilized nations are „(those) principles of law, private andpublic, which contemplation of the legal experience ofcivilized nations leads one to regard as obvious maxims ofjurisprudence 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, twotreaties on this issue have been codified: a) the EuropeanConvention on State Immunity (ECSI), and b) the UNConvention on Jurisdictional Immunities of States(UNCJIS).

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102 Vienna Convention on the Law of Treaties (1961), Art. 2(1)(a)

<https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-

1155-1-18232-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

Being the Collected Papers of Hersch Lauterpacht, Vol. I, The General

Works.


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The European Convention on State Immunity is a treatyestablished through the Council of Europe on May 16,1972.106 In the Council of EuropeÊs explanatory report,sovereign immunity is defined as „a concept ofinternational law, which has developed out of the principlepar in parem non habet imperium, by virtue of which oneState is not subject to the jurisdiction of another State.‰107

The treaty arose out of the need to address cases wherestates become involved in areas of private law:

For many years State immunity has occupied the attention ofeminent 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 statedabove 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 ofopinion causes difficulties in international relations. States whosecourts and administrative authorities apply the theory of absoluteState immunity are led to call for the same treatment abroad.

(Emphasis supplied)

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106 Council of Europe – Explanatory Report on the EuropeanConvention 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 SovereignImmunityÊs application is limited to the signatories of thetreaty:

The Convention requires each Contracting State to give effect tojudgments rendered against it by the courts of another ContractingState. 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 exerciseof jurisdiction against non-Contracting States in ContractingStates, and vice versa.

On the other hand, the UN Convention on JurisdictionalImmunities of States108 is a treaty adopted by the UNGeneral Assembly in December 2004. It was opened forsignature on January 27, 2005, but is yet to be in force109

for lacking the requisite number of member-statesignatories.110 At present, it only has 28 signatories, 16 ofwhich have either ratified, accepted, approved, or accededto the treaty.111

UNCJIS refers to jurisdictional immunities of states as aprinciple 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.

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=III-

13&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. IntÊl L. &

Comm. Reg. 375 (2013)

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

2013/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 anabstract 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 connectionrequirement of property serving commercial purposes with theentity against which the claim was directed, which is a novelty ininternational law.115 (Emphasis supplied)

The Philippines has neither signed nor ratified theUNCJIS. Article VII, Section 21 of the Constitution clearlyprovides the legal requisites to a valid and enforceableinternational treaty: „No treaty or international agreementshall be valid and effective unless concurred in by at leasttwo-thirds of all the Members of the Senate.‰

Senior Associate Justice Antonio T. Carpio ably points tothe UN Convention on the Law of the Sea (UNCLOS) asbasis for the waiver of sovereign immunity in this case, onaccount of a warship entering a restricted area and causingdamage 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-of-

international-law-the-un-charter-and-the-application-of-modern-

communication-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>.

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Article 31Responsibility of the flag State for damage causedby a warship or other government ship operated

for noncommercial purposesThe flag State shall bear international responsibility for any loss

or damage to the coastal State resulting from the noncompliance bya warship or other government ship operated for noncommercialpurposes with the laws and regulations of the coastal Stateconcerning passage through the territorial sea or with theprovisions of this Convention or other rules of international law.

This is, however, subject to Article 32 of the same treatywhich provides:

Article 32Immunities of warships and other government ships operated for

noncommercial purposesWith such exceptions as are contained in subsection A and in

Articles 30 and 31, nothing in this Convention affects theimmunities of warships and other government ships operated fornoncommercial purposes.

I agree that the UNCLOS does provide an openingclarifying the „international responsibility‰ of the flag shipfor noncom pliance by a warship with the laws of a coastalState. However, because of Article 32 of the same treaty, itwould seem that it should not be the only basis for thiscourt to infer either a waiver by the United States orauthority under international law for domestic courts to

shape their own doctrines of sovereign jurisdictionalimmunity.

Other international agreements

The text of Article VII, Section 21 would seem to requireSenate concurrence for treaties and „internationalagreements.‰ The term „international agreements,‰however, for

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purposes of granting sovereign immunity, should not covermere executive agreements.

We are aware of Bayan Muna v. Romulo116 where theponente 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 itviolates the Constitution. Authorities are, however, agreed that oneis distinct from another for accepted reasons apart from theconcurrence-requirement aspect. As has been observed by USconstitutional scholars, a treaty has greater „dignity‰ than anexecutive agreement, because its constitutional efficacy is beyonddoubt, a treaty having behind it the authority of the President, theSenate, and the people; a ratified treaty, unlike an executiveagreement, takes precedence over any prior statutory enactment.117

(Emphasis supplied, citations omitted)

This statement, however, should be confined only to thefacts of that case. Executive agreements are not the sameas treaties as a source of international law. It certainly mayhave a different effect in relation to our present statutesunlike 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 respondentsÊ position in the UnitedStates Armed Forces, the Visiting Forces Agreement of1998 (VFA) is relevant in this case. In particular, thequestion of whether the VFA, executed between theRepublic of the Philippines and the United Statesgovernment, may be treated as a „treaty‰ upon which thedoctrine of foreign sovereign immunity is founded must beaddressed.

In BAYAN v. Zamora,118 this court tackled the issuespertaining to the constitutionality of the VFA. It wasdescribed as „consist[ing] of a Preamble and nine (9)Articles, [and it] provides for the mechanism for regulatingthe circumstances and conditions under which [the] USArmed Forces and defense personnel maybe present in thePhilippines. . . . ‰119

As a preliminary issue, this court ruled that the Senateconcurrence as required by the Constitution was achieved,thereby giving VFA a legally binding effect upon thegovernment.120 However, the agreementÊs characterizationas a „treaty‰ was put in question. This court held thatdespite the nonconcurrence of the United States Senate,the VFA is validly categorized as a treaty:

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 othercontracting state, the United States of America in this case, tosubmit the VFA to the United States Senate for concurrencepursuant to its Constitution, is to accord strict meaning to thephrase.

Well-entrenched is the principle that the words used in theConstitution are to be given their ordinary meaning except wheretechnical terms are employed, in which case the significance thusattached 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 incommon 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 Statesin written form and governed by international law, whetherembodied in a single instrument or in two or more relatedinstruments, and whatever its particular designation.‰ There aremany other terms used for a treaty or international agreement,some of which are: act, protocol, agreement, compromis dÊ 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 internationalagreements included under the general term treaty have little or nolegal significance. Certain terms are useful, but they furnish littlemore 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.

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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 Statesgovernment has fully committed to living up to the terms of theVFA. For as long as the United States of America accepts oracknowledges the VFA as a treaty, and binds itself further to complywith its obligations under the treaty, there is indeed markedcompliance with the mandate of the Constitution.121 (Emphasissupplied, citations omitted)

Under the US legal system, however, an executiveagreement, while legally binding, may not have the sameeffect as a treaty. It may, under certain circumstances, beconsidered as inferior to US law and/or Constitution.According to Garcia:122

Under the U.S. legal system, international agreements can beentered into by means of a treaty or an executive agreement. TheConstitution allocates primary responsibility for entering into suchagreements to the executive branch, but Congress also plays anessential role. First, in order for a treaty (but not an executiveagreement) to become binding upon the United States, the Senatemust provide its advice and consent to treaty ratification by a two-thirds majority. Secondly, Congress may authorize congressional-executive agreements. Thirdly, many treaties and executiveagreements are not self-executing, meaning that implementinglegislation 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 internationalagreementÊs provisions.

The status of an international agreement within the

United States depends on a variety of factors. Self-executingtreaties have a status equal to federal statute, superior to U.S. statelaw, 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 alsofigure into the effect of an executive agreement in theUnited 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

branch that are not submitted to the Senate for its advice

and consent. Congress generally requires notification upon theentry of such an agreement. Although executive agreements are notspecifically discussed in the Constitution, they nonetheless havebeen considered valid international compacts under Supreme Courtjurisprudence and as a matter of historical practice.

. . . .Sole executive agreements rely on neither treaty nor

congressional authority to provide for their legal ba-

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123 Id.

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Arigo vs. Swift

sis. The Constitution may confer limited authority upon thePresident to promulgate such agreements on the basis of his foreignaffairs power. If the President enters into an executive agreementpursuant to and dealing with an area where he has clear, exclusiveconstitutional authority · such as an agreement to recognize a

particular foreign government for diplomatic purposes · theagreement is legally permissible regardless of CongressÊs opinion onthe matter. If, however, the President enters into an agreement andhis constitutional authority over the agreementÊs subject matter isunclear, a reviewing court may consider CongressÊs position indetermining whether the agreement is legitimate. If Congress hasgiven its implicit approval to the President entering the agreement,or is silent on the matter, it is more likely that the agreement willbe deemed valid. When Congress opposes the agreement and thePresidentÊs constitutional authority to enter the agreement isambiguous, it is unclear if or when such an agreement would begiven effect.124 (Emphasis supplied, citation omitted)

The recognition of the complex nature and legalconsequences of an executive agreement entered into by theUnited States with another State must not be taken lightly.This is especially in light of the invocation of „internationalcomity,‰ which loosely refers to „applying foreign law orlimiting domestic jurisdiction out of respect for foreignsovereignty.‰125

As it stands, international comity is by itself no longer asimple matter. In quoting an 1895 US case, Hilton v.Guyot,126 Paul argues that at the beginning of the 20thcentury, the underlying principle of international comitywas the respect afforded by one sovereign to another. Atpresent, 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 afoundation for U.S. private international law. Yet, it is preciselythese 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 adiscretionary doctrine that empowered courts to decide when todefer to foreign law out of respect for foreign sovereigns. Comity hasbecome a rule that obligates courts to apply foreign law in certaincircumstances. Second, the object of comity has changed.Whereas once courts justified applying foreign law out of deferenceto foreign sovereigns, courts later justified their decisions out ofdeference to the autonomy of private parties or to the politicalbranches. Most recently, courts have justified limits on domestic lawout of deference to the global market. Third, the function of

comity has changed. Comity is no longer merely a doctrine fordeciding when to apply foreign law; it has become a justification fordeference in a wide range of cases concerning prescriptive,adjudicatory, and enforcement jurisdiction. (Emphasis supplied,citation omitted)

On a substantive note, another issue raised in BAYAN v.Zamora is whether the VFA amounted to an abdication ofPhilippine sovereignty insofar as the jurisdiction of localcourts „to hear and try offenses committed by US militarypersonnel‰127 was concerned. Upon finding at the outsetthat 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

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127 Supra note 118 at p. 646; p. 477.

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Arigo vs. Swift

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 distinctboundaries and limits the metes and bounds within which each ofthe three political branches of government may exercise the powersexclusively and essentially conferred to it by law.128 (Emphasissupplied)

In sum, the extent of the VFAÊs categorization asbetween the Philippine and United States government ·either as a „treaty‰/„executive agreement‰ or as a mattersubject to international comity · remains vague.Nevertheless, it is certain that the United States havemade a political commitment to recognize the provisionsand execute their obligations under the VFA. This includesrespecting jurisdictional issues in cases involving anoffense committed by a US military personnel.Sovereign immunity as cus-

tomary international law

Customary international law traditionally pertains to:

. . . 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 asopinio juris, is the central concept of CIL. Because opinio jurisrefers to the reason why a nation acts in accordance with abehavioral 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 fromone that a nation follows because required to do so by law. Courtsand scholars say that a longstanding practice among nations„ripens‰ or „hardens‰ into a rule of CIL when it becomes accepted bynations as legally binding.129 (Emphasis supplied, citation omitted)

Nagan and Root130 categorize the doctrine of sovereignimmunity as a customary rule of international law. Theyargue that the doctrine, which is also referred to asjurisdictional immunity, „has its roots in treaties, domesticstatutes, state practice, and the writings of jurisconsults.‰131 Quoting United States law,132 Nagan and Rootstate:

. . . 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, astate or state instrumentality is immune from the jurisdiction of thecourts of another state . . . .‰ The Restatement further statesunambiguously that the rule of sovereign immunity is „anundisputed principle of international law.‰ . . .

The doctrine of sovereign immunity is one of the older

concepts in customary international law. . . .133 (Emphasissupplied, citation omitted)

While the doctrine in itself is recognized by states, theydo so only in abstraction.134

_______________

129 E. Posner and J. L. Goldsmith, A Theory of CustomaryInternational Law (John M. Olin Program in Law and EconomicsWorking 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.

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There appears to be a general recognition that foreignstates are to be afforded immunity on account of equality ofstates, but the „practice‰ lacks uniformity. Finke points outthat the doctrine as exercised by different states suffersfrom „substantial disagreement on detail andsubstance.‰135 The inconsistencies in state practice renderthe possibility of invoking international comity even moreproblematic.

The legislation of other states highlight the differencesin specific treatment of sovereign immunity. For instance,the United States Foreign Sovereign Immunities Act(FSIA) of 1978 was enacted in order to render uniformdeterminations in cases involving sovereign immunity.136

While it recognizes sovereign immunity, it provides thefollowing exceptions:

. . . the general principle that a foreign state is immune

from the jurisdiction of the courts of the United States, butsets forth several limited exceptions. The primary exceptions are:

1. waiver („the foreign state has waived its immunity eitherexpressly or by implication‰),

2. commercial activity („the action is based upon a commercialactivity 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 alsorecognizes general immunity from jurisdiction, subject tothe following exceptions: a) submission to jurisdiction;137 b)commercial transactions and contracts to be performed inthe 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.‰


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.‰


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.‰


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.‰


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.‰


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

any patent, trademark, design or plant breedersÊ 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

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Arigo vs. Swift

bership of bodies corporate, etc.;143 h) arbitration;144 i) shipsused for commercial purposes;145 and j) value-added tax,customs duties, etc.146

The Australian Foreign States Immunities Act of 1985provides for exceptions similar to the ones found in theUnited Kingdom law.147

_______________

patent, trademark, design, plant breedersÊ rights or copyright; or (c)

the right to use a trade or business name in the United Kingdom.


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

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.


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.


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.


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.

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Aside from the variations in foreign laws, rulings indomestic cases have also remained on a theoretical level.There appears to be a general refusal by internationalbodies to set particular rules and guidelines for thedisposition of actual cases involving sovereign immunity.

Two cases are relevant for the purpose of discussingsovereign immunity as an international customary norm:the International Court of JusticeÊs decision in Germany v.Italy, and the International Tribunal for the Law of theSeaÊs procedural order on the Ara Libertad case. Whilestare decisis does not apply, these are neverthelessinstructive in understanding the status of sovereignimmunity in international law.

The issue of sovereign immunity as invoked between twoStates was dealt with in the 2012 case of Jurisdictional

Immunities of the State (Germany v. Italy).148 This aroseout of a civil case brought before Italian domestic courts,seeking reparations from Germany for grave breaches ofinternational humanitarian law during World War II.149

The Italian Court of Cassation held that it had jurisdictionover the claims on the ground that state immunity wasuntenable if the act complained of was an internationalcrime.150 Thereafter, an Italian real estate owned byGermany was attached for execution.151 As a result,Germany brought the case before the International Courtof Justice, questioning the legality of the judgmentrendered by the Italian court. It based its claim on stateimmunity.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 hadviolated customary international law when it tookcognizance of the claim against Germany before its localcourts.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

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 decideto accord an immunity more extensive than that required byinternational law, for present purposes, the point is that the grantof immunity in such a case is not accompanied by the requisiteopinio juris and therefore sheds no light upon the issue currentlyunder consideration by the Court.

56. Although there has been much debate regarding the originsof State immunity and the identification of the principlesunderlying 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

Convention. That practice shows that, whether in claimingimmunity 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. Immunitymay represent a departure from the principle of territorialsovereignty and the jurisdiction which flows from it. (Emphasissupplied)154

The International Court of Justice deemed itunnecessary to discuss the difference between theapplication of sovereign immunity in sovereign acts (jusimperii) and non-sovereign

_______________

154 Id., at pars. 55-57.

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activities (jus gestionis) of a State.155 As to the argumentthat a serious violation of international law or peremptorynorms (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 theproposition that the availability of immunity will be to some extentdependent upon the gravity of the unlawful act presents a logicalproblem. 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 aState is not entitled to immunity in the case of serious violations ofhuman rights law or the law of armed conflict. Apart from thedecisions of the Italian courts which are the subject of the presentproceedings, there is almost no State practice which might beconsidered 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 StateÊs 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.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 ofIran, Court of Appeal of Ontario, [2004] Dominion Law Reports[DLR], 4th Series, Vol. 243, p. 406; ILR, Vol. 128, p. 586; allegationsof torture), France (judgment of the Court of Appeal of Paris, 9September 2002, and Cour de cassation, No. 02-45961, 16 December2003, 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 Xcase] and Cour de cassation, No. 04-47504, 3 January 2006 [theGrosz case]; allegations of crimes against humanity], Slovenia [caseNo. Up-13/99, Constitutional Court of Slovenia; allegations of warcrimes 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 ofInternational Law, Vol. XXX, p. 299, [2010]; allegations of warcrimes 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 aconflict between a rule, or rules, of jus cogens, and the rule ofcustomary law which requires one State to accord immunity toanother. In the opinion of the Court, however, no such conflictexists. Assuming for this purpose that the rules of the law of armedconflict which prohibit the murder of civilians in occupied territory,the deportation of civilian inhabitants to slave labour and thedeportation of prisoners of war to slave labour are rules of juscogens, there is no conflict between those rules and the rules onState immunity. The two sets of rules address different

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 ofthe contemporary law of State immunity to proceedings concerningevents which occurred in 1943-1945 does not infringe the principlethat law should not be applied retrospectively to determine mattersof legality and responsibility (as the Court has explained inparagraph 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 CommissionÊs 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 ispermitted but the rules which determine the scope and extent ofjurisdiction and when that jurisdiction may be

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exercised do not derogate from those substantive rules whichpossess jus cogens status, nor is there anything inherent in theconcept of jus cogens which would require their modification orwould displace their application. The Court has taken thatapproach in two cases, notwithstanding that the effect was that ameans by which a jus cogens rule might be enforced was renderedunavailable. 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], Jurisdictionand Admissibility, Judgment, I.C.J. Reports 2006, p. 32, para. 64,and p. 52, para. 125). In Arrest Warrant, the Court held, albeitwithout express reference to the concept of jus cogens, that the factthat a Minister for Foreign Affairs was accused of criminalviolations of rules which undoubtedly possess the character of juscogens did not deprive the Democratic Republic of the Congo of theentitlement which it possessed as a matter of customaryinternational law to demand immunity on his behalf (ArrestWarrant 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 applicableto the application of the customary international law regarding theimmunity of one State from proceedings in the courts of another.156

Though pertaining to provisional measures, another casethat involved the issue of sovereign immunity is the „AraLibertad‰ case (Argentina v. Ghana). Lodged before theInternational Tribunal for the Law of the Sea (ITLOS), thecase arose after „ARA Fragata Libertad,‰ an Argentinianwarship, was alleged to have been detained and subjectedto several judicial measures by the Republic of Ghana.157 Indoing so, Argentina alleged that Ghana violated theimmunities from

_______________

156 Id., at pars. 82-95.

157 Id., at par. 26.

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jurisdiction and execution extended to the warship by itsflag.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 thecoastal 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 warshipenjoys immunity, including in internal waters. . . .161

. . . .Ghana shall forthwith and unconditionally release the frigate

ARA Libertad, shall ensure that the frigate ARA Libertad, itsCommander and crew are able to leave the port of Tema and themaritime areas under the jurisdiction of Ghana, and shall ensurethat the frigate ARA Libertad is resupplied to that end.162 (Citationsupplied)

In sum, the International Court of JusticeÊs position thatsovereign immunity remains applicable even if the action isbased upon violations of international law should belimited only to acts during armed conflict. JurisdictionalImmunities of the State (Germany v. Italy) also referred toactions commited during World War II and especiallyreferred 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 majorityreflected the attitude that sovereign immunity is acustomary norm. It, however, recognizes that uniformity instate practice is far from the consensus required toarticulate specific rules pertaining to other circumstances· such as transgressions of foreign warships of domesticlegislation while granted innocent passage. It impliedlyaccepted that states enjoyed wide latitude to specify theirown norms.

The provisional order in the ITLOS Ara Libertad caseshould also be read within its factual ambient. That is, thatthe warship was the subject of seizure to enforce acommercial obligation of its flag state. In this case, theforeign warship enjoys sovereign immunity. The case,however, did not interpret Sections 31 and 32 of theUNCLOS.

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 immunityÊs

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 isunderstood as a general principle of international lawrather than as international obligation arising out of treatyor customary norm.

Finke suggests that this provides the better platform.Whereas a rule is more precise and consistent in both itsapplication and legal consequences, a principle „allows for a

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broader spectrum of possible behaviour.‰163 Principlesrecognize a general idea and serve as a guide in policydeterminations, rather than prescribe a particular mode ofaction, which is what rules do. This distinction issignificant, as principles provide the leeway toaccommodate legal and factual circumstances surroundingeach case that customary rules generally do not.164

General principles of international law are said to be:

. . . an autonomous, created by general consensus, systematicallyfundamental part of International Law, that consists of differentnormative notions, in which judges refer to, through a creativeprocess, in order to promote the consistency of International Law.165

Clearly, sovereign immunity is a doctrine recognized bystates under the international law system. However, itscharacterization as a principle is more appropriate in that„the extent to which foreign states are awarded immunitydiffers from state to state.‰166 This appears to be anaccepted arrangement in light of the different stateimmunity laws all over the world.

As it stands, states are allowed to draw the line in theapplication of sovereign immunity in cases involvingforeign states and their agents. As a principle ofinternational law, it is deemed automatically incorporatedin our domestic legal system as per Article II, Section 2 ofthe Constitution. Considering this leeway, along with theurgency and importance of the case at hand, thePhilippines is, therefore, free to provide guidelinesconsistent with international law, domestic legislation, andexisting jurisprudence.

_______________


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>.


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Exceptions to sovereign

immunity

Our own jurisprudence is consistent with thepronouncement that the doctrine of sovereign immunity isnot an absolute rule. Thus, the doctrine should take theform of relative sovereign jurisdictional immunity.167

The tendency in our jurisprudence moved along with thedevelopment in other states.

States began to veer away from absolute sovereignimmunity when „international trade increased andgovernments expanded into what had previously beenprivate spheres.‰168 The relative theory of sovereignimmunity distinguishes a stateÊs official (acta jure imperii)from private (acta jure gestionis) conduct.169 The distinctionis founded on the premise „[that] once the sovereign hasdescended from his throne and entered the marketplace[,]he has divested himself of his sovereign status and istherefore no longer immune to the domestic jurisdiction ofthe courts of other countries.‰170

In the 2003 case of Republic of Indonesia v. Vinzon, thiscourt enunciated that in cases involving foreign states, thebasis of sovereign immunity is the maxim par in parem nonhabet imperium. Founded on sovereign equality, a statecannot assert its jurisdiction over another.171 To do sootherwise would „unduly vex the peace of nations.‰172

However, it also underscored that the doctrine only appliesto public acts or acts jure imperii, thus, referring to therelative 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).


170 Id., at p. 859.

171 Supra note 92 at p. 1107; p. 131.

172 Id.

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Arigo vs. Swift

MAG Philippines v. NLRC173 discussed the restrictiveapplication:

In this jurisdiction, we recognize and adopt the generallyaccepted principles of international law as part of the law of theland. 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 isanchored on the principle of the sovereign equality of states underwhich one state cannot assert jurisdiction over another in violationof the maxim par in parem non habet imperium (an equal has nopower 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 witha contract involving the repair of wharves in Subic BayÊsUS naval installation, this court further adds that:

. . . the correct test for the application of State immunity isnot 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 (Emphasissupplied, citation omitted)

These cases involved contracts. This made thedetermination of whether there was waiver on the part ofthe state simpler.

Further in Municipality of San Fernando, La Union v.Firme,178 this court stated that two exceptions are a) whenthe State gives its consent to be sued and b) when it entersinto 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 othercontracting 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 unauthorizedby the State, and violation of rights by the impleadedgovernment official. In the 1970 case of Director of Bureauof Telecommunications, et al. v. Aligaen, et al.,181 this courtheld that:

_______________


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 (Emphasissupplied, citations omitted)

Shauf v. Court of Appeals183 evolved the doctrine further

as it stated that „[the] rational for this ruling is that thedoctrine of state immunity cannot be used as aninstrument for perpetrating an injustice.‰184

Tortious acts or crimes committed while discharging

official functions are also not covered by sovereignimmunity. Quoting the ruling in Chavez v.Sandiganbayan,185 this court held American naval officerspersonally 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 theirdirection 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 privaterespondent.187

We note that the American naval officers were held to beaccountable in their personal capacities.188

As it stands, the Philippines has no law on theapplication of sovereign immunity in cases of damagesand/or violations of domestic law involving agents of aforeign state. But our jurisprudence does have openings tohold those who have committed an act ultra viresresponsible in our domestic courts.

As previously discussed, it was held in Germany v. Italythat the issue of implied waiver of sovereign immunity anda StateÊs commission of a serious violation of a peremptorynorm (jus cogens) are two independent areas. This reflectsone of the positions taken by scholars in the jurisdiction-immunity discourse:

Jurisdiction and its limits have developed differently dependingon the subject matter. The jurisdiction to adjudicate in civil mattershas, for example, developed mainly in the context of privateinternational law, even though it is not unrelated to publicinternational 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. Linkingimmunity to the limits of jurisdiction to adjudicate in civil matterswould therefore mean disre-

_______________

187 Id., at p. 370.

188 Id.

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Arigo vs. Swift

garding the official character of the foreign stateÊs conduct.189

(Emphasis supplied, citation omitted)

This ruling holds no value as a precedent, and,therefore, does not preclude the Philippines to make adetermination that may be different from the InternationalCourt of JusticeÊs ruling. Its value must only be to elucidateon the concept of sovereign immunity, in the context of that

case, as the general rule with the possibility of otherexceptions.

Furthermore, if we consider the doctrine of sovereignimmunity as a binding general principle of internationallaw rather than an international customary norm, theparticular rules and guidelines in its application andinvocation may be determined on a domestic level eitherthrough statute or by jurisprudence.

It is difficult to imagine that the recognition of equalityamong nations is still, in these modern times, as absoluteas we have held it to be in the past or only has commercialacts as an exception. International law has conceded juscogens rules of international law and other obligations ergaomnes. It is time that our domestic jurisprudence adoptscorrespondingly.

Considering the flexibility in international law and thedoctrines 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

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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 casewhere we can lay down this doctrine. I, therefore, can onlyconcur in the result.

ACCORDINGLY, I vote to DISMISS the petition.

Petition denied.

Notes.·The Civil Service Commission has standing asa real party in interest and can appeal the Court ofAppealsÊ decisions modifying or reversing the Civil ServiceCommissionÊs rulings, when the Court of Appeals actionwould have an adverse impact on the integrity of the civilservice. (Civil Service Commission vs. Almojuela, 694SCRA 441 [2013])

Immunity statutes seek to provide a balance betweenthe stateÊs interests and the individualÊs right against self-incrimination. (People vs. Sandiganbayan [FourthDivision], 699 SCRA 713 [2013])

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