http://lawtechworld.

com/blog/blog/2015/02/case-digest-arigo-v-swift/

Arigo vs. Swift

FACTS:

The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December
2012, the US Embassy in the Philippines requested diplomatic clearance for the said vessel “to enter and
exit the territorial waters of the Philippines and to arrive at the port of Subic Bay for the purpose of
routine ship replenishment, maintenance, and crew liberty.” On January 6, 2013, the ship left Sasebo,
Japan for Subic Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa, Japan.

On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar,
Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the
northwest side of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan. No
one was injured in the incident, and there have been no reports of leaking fuel or oil.

Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS
Guardian cause and continue to cause environmental damage of such magnitude as to affect the
provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga
del Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their constitutional rights to a balanced and
healthful ecology.

ISSUES:

Whether or not petitioners have legal standing.

Whether or not US respondents may be held liable for damages caused by USS Guardian.

Whether or not the waiver of immunity from suit under VFA applies in this case.

HELD:

First issue: YES.

Petitioners have legal standing

 Locus standi is “a right of appearance in a court of justice on a given question.” Specifically, it is
“a party’s personal and substantial interest in a case where he has sustained or will sustain direct injury
as a result” of the act being challenged, and “calls for more than just a generalized grievance.” However,
the rule on standing is a procedural matter which this Court has relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers and legislators when the public interest so requires, such as when the
subject matter of the controversy is of transcendental importance, of overreaching significance to
society, or of paramount public interest.

In the landmark case of Oposa v. Factoran, Jr., we recognized the “public right” of citizens to “a
balanced and healthful ecology which, for the first time in our constitutional history, is solemnly
incorporated in the fundamental law.” We declared that the right to a balanced and healthful ecology
need not be written in the Constitution for it is assumed, like other civil and polittcal rights guaranteed
in the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental
importance with intergenerational implications. Such right carries with it the correlative duty to refrain
from impairing the environment.

On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled
that not only do ordinary citizens have legal standing to sue for the enforcement of environmental
rights, they can do so in representation of their own and future generations.

Second issue: YES.

The US respondents were sued in their official capacity as commanding officers of the US Navy
who had control and supervision over the USS Guardian and its crew. The alleged act or omission
resulting in the unfortunate grounding of the USS Guardian on the TRNP was committed while they were
performing official military duties. Considering that the satisfaction of a judgment against said officials
will require remedial actions and appropriation of funds by the US government, the suit is deemed to be
one against the US itself. The principle of State immunity therefore bars the exercise of jurisdiction by
this Court over the persons of respondents Swift, Rice and Robling.

During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the
conduct of the US in this case, when its warship entered a restricted area in violation of R.A. No. 10067
and caused damage to the TRNP reef system, brings the matter within the ambit of Article 31 of the
United Nations Convention on the Law of the Sea (UNCLOS). He explained that while historically,
warships enjoy sovereign immunity from suit as extensions of their flag State, Art. 31 of the UNCLOS
creates an exception to this rule in cases where they fail to comply with the rules and regulations of the
coastal State regarding passage through the latter’s internal waters and the territorial sea.
 In the case of warships, as pointed out by Justice Carpio, they continue to enjoy sovereign
immunity subject to the following exceptions:

Article 30: Non-compliance by warships with the laws and regulations of the coastal State

If any warship does not comply with the laws and regulations of the coastal State concerning passage
through the territorial sea and disregards any request for compliance therewith which is made to it, the
coastal State may require it to leave the territorial sea immediately.

Article 31: Responsibility of the flag State for damage caused by a warship or other government ship
operated for non-commercial purposes

The flag State shall bear international responsibility for any loss or damage to the coastal State resulting
from the non-compliance by a warship or other government ship operated for non-commercial purposes
with the laws and regulations of the coastal State concerning passage through the territorial sea or with
the provisions of this Convention or other rules of international law.

Article 32: Immunities of warships and other government ships operated for non-commercial
purposes

With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this
Convention affects the immunities of warships and other government ships operated for non-
commercial purposes. A foreign warship’s unauthorized entry into our internal waters with resulting
damage to marine resources is one situation in which the above provisions may apply.

But what if the offending warship is a non-party to the UNCLOS, as in this case, the US?

According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of long-
standing policy the US considers itself bound by customary international rules on the “traditional uses of
the oceans” as codified in UNCLOS.

Moreover, Justice Carpio emphasizes that “the US refusal to join the UNCLOS was centered on its
disagreement with UNCLOS” regime of deep seabed mining (Part XI) which considers the oceans and
deep seabed commonly owned by mankind,” pointing out that such “has nothing to do with its the US’
acceptance of customary international rules on navigation.”

The Court also fully concurred with Justice Carpio’s view that non-membership in the UNCLOS does not
mean that the US will disregard the rights of the Philippines as a Coastal State over its internal waters
and territorial sea. We thus expect the US to bear “international responsibility” under Art. 31 in
connection with the USS Guardian grounding which adversely affected the Tubbataha reefs. Indeed, it is
difficult to imagine that our long-time ally and trading partner, which has been actively supporting the
country’s efforts to preserve our vital marine resources, would shirk from its obligation to compensate
the damage caused by its warship while transiting our internal waters. Much less can we comprehend a
Government exercising leadership in international affairs, unwilling to comply with the UNCLOS directive
for all nations to cooperate in the global task to protect and preserve the marine environment as
provided in Article 197 of UNCLOS

Article 197: Cooperation on a global or regional basis

States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through
competent international organizations, in formulating and elaborating international rules, standards and
recommended practices and procedures consistent with this Convention, for the protection and
preservation of the marine environment, taking into account characteristic regional features.

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

Third issue: NO.

The waiver of State immunity under the VF A pertains only to criminal jurisdiction and not to
special civil actions such as the present petition for issuance of a writ of Kalikasan. In fact, it can be
inferred from Section 17, Rule 7 of the Rules that a criminal case against a person charged with a
violation of an environmental law is to be filed separately.

The Court considered a view that a ruling on the application or non-application of criminal
jurisdiction provisions of the VFA to US personnel who may be found responsible for the grounding of
the USS Guardian, would be premature and beyond the province of a petition for a writ of Kalikasan.
 The Court also found unnecessary at this point to determine whether such waiver of State
immunity is indeed absolute. In the same vein, we cannot grant damages which have resulted from the
violation of environmental laws. The Rules allows the recovery of damages, including the collection of
administrative fines under R.A. No. 10067, in a separate civil suit or that deemed instituted with the
criminal action charging the same violation of an environmental law.