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8/14/2017 G.R. No. 206510, September 16, 2014 - MOST REV. PEDRO D.

D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS

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Philippine Supreme Court Jurisprudence > Year 2014 > September 2014 Decisions > G.R. No. 206510,
September 16, 2014 - MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV.
DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus ofCaloocan, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA, JR.,
Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M. REYES, JR., BagongAlyansang Makabayan, HON. NERI
JAVIER COLMENARES, BayanMuna Party-list, ROLAND G. SIMBULAN, PH.D., Junk VFAMovement, TERESITA R.
Custom Search Search PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan Party-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, v. SCOTT H. SWIFT in his capacity as Commander of the U.S. 7th Fleet, MARK A. RICE in his
capacity as Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S. AQUINO III in his capacity as
ChanRobles On-Line Bar Review Commander-in-Chief of the Armed Forces of the Philippines, HON. ALBERT F. DEL ROSARIO, Secretary,
Department of Foreign Affairs, HON. PAQUITO OCHOA, JR., Executive Secretary, Office of the President, HON.
VOLTAIRE T. GAZMIN, Secretary, Department of National Defense, HON. RAMON JESUS P. PAJE, Secretary,
Department of Environment and Natural Resources, VICE ADMIRAL JOSE LUIS M. ALANO, Philippine Navy Flag
Officer in Command, Armed Forces of the Philippines, ADMIRAL RODOLFO D. ISORENA, Commandant, Philippine
Coast Guard, COMMODORE ENRICO EFREN EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN.
VIRGILIO O. DOMINGO, Commandant of Armed Forces of the Philippines Commandand LT. GEN. TERRY G.
ROBLING, US Marine Corps Forces, Pacific and Balikatan 2013 Exercise Co-Director, Respondents.:

G.R. No. 206510, September 16, 2014 - MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa
D.D.; MOST REV. DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus ofCaloocan, FRANCES Q. QUIMPO,
CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M. REYES, JR.,
BagongAlyansang Makabayan, HON. NERI JAVIER COLMENARES, BayanMuna Party-list, ROLAND G.
SIMBULAN, PH.D., Junk VFAMovement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V. PALATINO,
Kabataan Party-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, v.
SCOTT H. SWIFT in his capacity as Commander of the U.S. 7th Fleet, MARK A. RICE in his capacity as
Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S. AQUINO III in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines, HON. ALBERT F. DEL ROSARIO, Secretary,
Department of Foreign Affairs, HON. PAQUITO OCHOA, JR., Executive Secretary, Office of the President,
HON. VOLTAIRE T. GAZMIN, Secretary, Department of National Defense, HON. RAMON JESUS P. PAJE,
Secretary, Department of Environment and Natural Resources, VICE ADMIRAL JOSE LUIS M. ALANO,
Philippine Navy Flag Officer in Command, Armed Forces of the Philippines, ADMIRAL RODOLFO D.
DebtKollect Company, Inc. ISORENA, Commandant, Philippine Coast Guard, COMMODORE ENRICO EFREN EVANGELISTA, Philippine
Coast Guard Palawan, MAJOR GEN. VIRGILIO O. DOMINGO, Commandant of Armed Forces of the
Philippines Commandand LT. GEN. TERRY G. ROBLING, US Marine Corps Forces, Pacific and Balikatan
2013 Exercise Co-Director, Respondents.

EN BANC

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

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV.
DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus ofCaloocan, FRANCES Q. QUIMPO, CLEMENTE
G. BAUTISTA, JR., Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M. REYES, JR.,
BagongAlyansang Makabayan, HON. NERI JAVIER COLMENARES, BayanMuna Party-list,
ROLAND G. SIMBULAN, PH.D., Junk VFAMovement, TERESITA R. PEREZ, PH.D., HON.
ChanRobles Intellectual Property RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ. GONZALES, Pamalakaya, GIOVANNI
A. TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang Mayo Uno, JOAN MAY E. SALVADOR,
Division Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A. CONCEPCION, MARY JOAN A. GUAN, NESTOR
T. BAGUINON, PH.D., A. EDSEL F. TUPAZ, Petitioners, v. SCOTT H. SWIFT in his capacity as

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8/14/2017 G.R. No. 206510, September 16, 2014 - MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS
Commander of the U.S. 7th Fleet, MARK A. RICE in his capacity as Commanding Officer of the
USS Guardian, PRESIDENT BENIGNO S. AQUINO III in his capacity as Commander-in-Chief of
the Armed Forces of the Philippines, HON. ALBERT F. DEL ROSARIO, Secretary, Department of
Foreign Affairs, HON. PAQUITO OCHOA, JR., Executive Secretary, Office of the President,
HON. VOLTAIRE T. GAZMIN, Secretary, Department of National Defense, HON. RAMON JESUS
P. PAJE, Secretary, Department of Environment and Natural Resources, VICE ADMIRAL JOSE
LUIS M. ALANO, Philippine Navy Flag Officer in Command, Armed Forces of the Philippines,
ADMIRAL RODOLFO D. ISORENA, Commandant, Philippine Coast Guard, COMMODORE ENRICO
EFREN EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN. VIRGILIO O. DOMINGO,
Commandant of Armed Forces of the Philippines Commandand LT. GEN. TERRY G. ROBLING,
US Marine Corps Forces, Pacific and Balikatan 2013 Exercise Co-Director, Respondents.

DECISION

VILLARAMA, JR., J.:

Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a Temporary
Environmental Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise known as the
Rules of Procedure for Environmental Cases (Rules), involving violations of environmental laws and
regulations in relation to the grounding of the US military ship USS Guardian over the Tubbataha 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 of two huge coral atolls the north atoll
and the south atoll and the Jessie Beazley Reef, a smaller coral structure about 20 kilometers north of
the atolls. The reefs of Tubbataha and Jessie Beazley are considered part of Cagayancillo, a remote
island municipality of Palawan.1 cralawlawlibrary

In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306 issued by
President Corazon C. Aquino on August 11, 1988. Located in the middle of Central Sulu Sea, 150
kilometers southeast of Puerto Princesa City, Tubbataha lies at the heart of the Coral Triangle, the global
center of marine biodiversity.

In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and Cultural Organization
(UNESCO) as a World Heritage Site. It was recognized as one of the Philippines oldest ecosystems,
containing excellent examples of pristine reefs and a high diversity of marine life. The 97,030-hectare
protected marine park is also an important habitat for internationally threatened and endangered marine
species. UNESCO cited Tubbatahas outstanding universal value as an important and significant natural
habitat for in situ conservation of biological diversity; an example representing significant on-going
ecological and biological processes; and an area of exceptional natural beauty and aesthetic
importance.2 cralawlawlibrary

On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known as the Tubbataha
Reefs Natural Park (TRNP) Act of 2009 to ensure the protection and conservation of the globally
significant economic, biological, sociocultural, educational and scientific values of the Tubbataha Reefs
into perpetuity for the enjoyment of present and future generations. Under the no-take policy, entry
into the waters of TRNP is strictly regulated and many human activities are prohibited and penalized or
fined, including fishing, gathering, destroying and disturbing the resources within the TRNP. The law
likewise created the Tubbataha Protected Area Management Board (TPAMB) which shall be the sole
policy-making and permit-granting body of the TRNP.

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
September-2014 Jurisprudence
ship replenishment, maintenance, and crew liberty.4 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.

G.R. No. 205800, September 10, 2014 - MICROSOFT On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar,
CORPORATION AND ADOBE SYSTEMS INCORPORATED, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the
Petitioners, v. SAMIR FARAJALLAH, VIRGILIO D.C. northwest side of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan. No
HERCE, RACHEL P. FOLLOSCO, JESUSITO G. MORALLOS, one was injured in the incident, and there have been no reports of leaking fuel or oil.
AND MA. GERALDINE S. GARCIA (DIRECTORS AND
OFFICERS OF NEW FIELDS (ASIA PACIFIC), INC.),
Respondents.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for the
incident in a press statement.5 Likewise, US Ambassador to the Philippines Harry K. Thomas, Jr., in a
G.R. No. 201237, September 03, 2014 - PHILIPPINE meeting at the Department of Foreign Affairs (DFA) on February 4, reiterated his regrets over the
TOURISTERS, INC. and/or ALEJANDRO R. YAGUE, JR., grounding incident and assured Foreign Affairs Secretary Albert F. del Rosario that the United States will
Petitioners, v. MAS TRANSIT WORKERS UNION-ANGLO- provide appropriate compensation for damage to the reef caused by the ship.6 By March 30, 2013, the
KMU* AND ITS MEMBERS, REPRESENTED BY ABRAHAM US Navy-led salvage team had finished removing the last piece of the grounded ship from the coral reef.
TUMALA, JR., Respondents.
On April 17, 2013, the above-named petitioners on their behalf and in representation of their respective
G.R. No. 199388, September 03, 2014 - OMNI
HAULING SERVICES, INC., LOLITA FRANCO, and
sector/organization and others, including minors or generations yet unborn, filed the present petition
ANICETO FRANCO, Petitioners, v. BERNARDO BON, against Scott H. Swift in his capacity as Commander of the US 7th Fleet, Mark A. Rice in his capacity as
ROBERTO TORTOLES, ROMEO TORRES, RODELLO* Commanding Officer of the USS Guardian and Lt. Gen. Terry G. Robling, US Marine Corps Forces, Pacific
RAMOS, RICARDO DELOS SANTOS, JUANITO BON, and Balikatan 2013 Exercises Co-Director (US respondents); President Benigno S. Aquino III in his
ELENCIO ARTASTE,** CARLITO VOLOSO, ROMEL capacity as Commander-in-Chief of the Armed Forces of the Philippines (AFP), DFA Secretary Albert F.
TORRES, ROBERT AVILA, EDUARDO BAUTISTA, MARTY Del Rosario, Executive Secretary Paquito Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of
VOLOSO, OSCAR JABEL, RICKY AMORANTO, BERNARD National Defense), Secretary Jesus P. Paje (Department of Environment and Natural Resources), Vice-
OSINAGA, EDUARDO BON, JERRY EDUARCE, and Admiral Jose Luis M. Alano (Philippine Navy Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena
FEDERICO BRAZIL, Respondents.
(Philippine Coast Guard Commandant), Commodore Enrico Efren Evangelista (Philippine Coast Guard-
Palawan), and Major General Virgilio O. Domingo (AFP Commandant), collectively the Philippine
G.R. No. 197329, September 08, 2014 - NATIONAL
POWER CORPORATION, Petitioner, v. LUIS SAMAR AND respondents.
MAGDALENA SAMAR, Respondents.
The Petition
G.R. No. 205298, September 10, 2014 - LEOPOLDO
QUINTOS Y DEL AMOR, Petitioner, v. PEOPLE OF THE Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS Guardian cause
PHILIPPINES, Respondent. 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,
A.C. No. 7474, September 09, 2014 - PRESIDING Sulu, and Tawi-Tawi, which events violate their constitutional rights to a balanced and healthful ecology.
JUDGE JOSE L. MADRID, REGIONAL TRIAL COURT, They also seek a directive from this Court for the institution of civil, administrative and criminal suits for
BRANCH 51, SORSOGON CITY, Complainant, v. ATTY. acts committed in violation of environmental laws and regulations in connection with the grounding
JUAN S. DEALCA, Respondent. incident.
G.R. No. 199139, September 09, 2014 - ELSIE S.
CAUSING, Petitioner, v. COMMISSION ON ELECTIONS
Specifically, petitioners cite the following violations committed by US respondents under R.A. No. 10067:
AND HERNAN D. BIRON, SR., Respondents. unauthorized entry (Section 19); non-payment of conservation fees (Section 21); obstruction of law
enforcement officer (Section 30); damages to the reef (Section 20); and destroying and disturbing
G.R. No. 197336, September 03, 2014 - resources (Section 26[g]). Furthermore, petitioners assail certain provisions of the Visiting Forces
CORPORATION, Petitioner, v. ROLANDO CORDERO, Agreement (VFA) which they want this Court to nullify for being unconstitutional.
Respondent.

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8/14/2017 G.R. No. 206510, September 16, 2014 - MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS
The numerous reliefs sought in this case are set forth in the final prayer of the petition, to wit: chanRoblesvirtualLawlibrary

G.R. No. 195549, September 03, 2014 - WILLAWARE


PRODUCTS CORPORATION, Petitioner, v. JESICHRIS
MANUFACTURING CORPORATION, Respondent. 1. WHEREFORE, in view of the foregoing, Petitioners respectfully pray that the
Honorable Court: chanRoblesvirtualLawlibrary

G.R. No. 183360, September 08, 2014 - ROLANDO C.


DE LA PAZ,*, Petitioner, v. L & J DEVELOPMENT
2. Immediately issue upon the filing of this petition a Temporary Environmental
COMPANY, Respondent.
Protection Order (TEPO) and/or a Writ of Kalikasan, which shall, in particular,
G.R. No. 196182, September 01, 2014 - ECE REALTY
AND DEVELOPMENT INC., Petitioner, v. RACHEL G. a. Order Respondents and any person acting on their behalf, to cease and
MANDAP, Respondent. desist all operations over the Guardian grounding incident;

G.R. No. 178837, September 01, 2014 - COLEGIO DE b. Initially demarcating the metes and bounds of the damaged area as well as
SAN JUAN DE LETRAN, Petitioner, v. ISIDRA DELA an additional buffer zone;
ROSA-MERIS, Respondent.
c. Order Respondents to stop all port calls and war games under Balikatan
G.R. No. 198139, September 08, 2014 - NATIONAL because of the absence of clear guidelines, duties, and liability schemes for
POWER CORPORATION, Petitioner, v. FELICISIMO breaches of those duties, and require Respondents to assume responsibility
TARCELO AND HEIRS OF COMIA SANTOS, Respondents. for prior and future environmental damage in general, and environmental
damage under the Visiting Forces Agreement in particular.
A.C. No. 10196, September 09, 2014 - MELODY R.
NERY, Complainant, v. ATTY. GLICERIO A. SAMPANA,
Respondent. d. Temporarily define and describe allowable activities of ecotourism, diving,
recreation, and limited commercial activities by fisherfolk and indigenous
G.R. No. 194507, September 08, 2014 - FEDERAL communities near or around the TRNP but away from the damaged site and
BUILDERS, INC., Petitioner, v. FOUNDATION an additional buffer zone;
SPECIALISTS, INC., Respondent.; G.R. NO. 194621 -
FOUNDATION SPECIALISTS, INC., Petitioner, v. 3. After summary hearing, issue a Resolution extending the TEPO until further orders
FEDERAL BUILDERS, INC., Respondent. of the Court;

G.R. No. 204233, September 03, 2014 - RICARDO A. 4. After due proceedings, render a Decision which shall include, without limitation:
DALUSONG, Petitioner, v. EAGLE CLARC SHIPPING
chanRoblesvirtualLawlibrary

PHILIPPINES, INC., NORFIELD OFFSHORE AS, AND/OR


a. Order Respondents Secretary of Foreign Affairs, following the dispositive
CAPT. LEOPOLDO T. ARCILLAR, AND COURT OF
APPEALS, Respondents. portion of Nicolas v. Romulo, to forthwith negotiate with the United States
representatives for the appropriate agreement on [environmental guidelines
G.R. No. 197174, September 10, 2014 - FRANCLER P. and environmental accountability] under Philippine authorities as provided
ONDE, Petitioner, v. THE OFFICE OF THE LOCAL CIVIL in Art. V[ ] of the VFA
REGISTRAR OF LAS PIAS CITY, Respondent.
b. Direct Respondents and appropriate agencies to commence administrative,
A.C. No. 8637, September 15, 2014 - IMELDA CATO civil, and criminal proceedings against erring officers and individuals to the
GADDI, Complainant, v. ATTY. LOPE M. VELASCO, full extent of the law, and to make such proceedings public;
Respondent.
c. Declare that Philippine authorities may exercise primary and exclusive
G.R. No. 178733, September 15, 2014 - ELISA
criminal jurisdiction over erring U.S. personnel under the circumstances of
ANGELES, Petitioner, v. HON. COURT OF APPEALS,
this case;
OFFICER-IN-CHARGE MARILOU C. MARTIN, DEPUTY
SHERIFF JOSELITO SP ASTORGA, MARCO BOCO, AND
JOHN DOES, REGIONAL TRIAL COURT OF PASIG, d. Require Respondents to pay just and reasonable compensation in the
BRANCH 268, Respondents. settlement of all meritorious claims for damages caused to the Tubbataha
Reef on terms and conditions no less severe than those applicable to other
G.R. No. 194946, September 03, 2014 - PEOPLE OF States, and damages for personal injury or death, if such had been the
THE PHILIPPINES, Plaintiff-Appellee, v. ECO YABA Y case;
BASA A.K.A. PLOK, Accused-Appellant.
e. Direct Respondents to cooperate in providing for the attendance of
G.R. No. 205357, September 02, 2014 - GMA witnesses and in the collection and production of evidence, including
NETWORK, INC., Petitioner, v. COMMISSION ON seizure and delivery of objects connected with the offenses related to the
ELECTIONS, RESPONDENT. SENATOR ALAN PETER
grounding of the Guardian;
COMPAERO S. CAYETANO, Petitioner-Intervenor.;
G.R. NO. 205374 - ABC DEVELOPMENT CORPORATION,
Petitioner, v. COMMISSION ON ELECTIONS,
f. Require the authorities of the Philippines and the United States to notify
Respondent.; G.R. NO. 205592 - MANILA each other of the disposition of all cases, wherever heard, related to the
BROADCASTING COMPANY, INC. AND NEWSOUNDS grounding of the Guardian;
BROADCASTING NETWORK, INC., Petitioner, v.
COMMISSION ON ELECTIONS, Respondent.; G.R. NO. g. Restrain Respondents from proceeding with any purported restoration,
205852 - KAPISANAN NG MGA BRODKASTER NG repair, salvage or post salvage plan or plans, including cleanup plans
PILIPINAS (KBP) AND ABS-CBN CORPORATION, covering the damaged area of the Tubbataha Reef absent a just settlement
Petitioners, v. COMMISSION ON ELECTIONS, approved by the Honorable Court;
Respondent.; G.R. NO. 206360 - RADIO MINDANAO
NETWORK, INC., Petitioner, v. COMMISSION ON h. Require Respondents to engage in stakeholder and LGU consultations in
ELECTIONS, Respondent.
accordance with the Local Government Code and R.A. 10067;
G.R. No. 199898, September 03, 2014 - PEOPLE OF
THE PHILIPPINES, Plaintiff-Appellee, v. LEO DE LA
i. Require Respondent US officials and their representatives to place a deposit
TRINIDAD Y OBALLES, Accused-Appellant. to the TRNP Trust Fund defined under Section 17 of RA 10067 as a bona
fide gesture towards full reparations;
G.R. No. 157583, September 10, 2014 - FRUMENCIO
E. PULGAR, Petitioner, v. THE REGIONAL TRIAL COURT j. Direct Respondents to undertake measures to rehabilitate the areas
OF MAUBAN, QUEZON, BRANCH 64, QUEZON POWER affected by the grounding of the Guardian in light of Respondents
(PHILIPPINES) LIMITED, CO., PROVINCE OF experience in the Port Royale grounding in 2009, among other similar
QUEZON,AND DEPARTMENT OF FINANCE, Respondents. grounding incidents;
G.R. No. 198656, September 08, 2014 - NANCY S. k. Require Respondents to regularly publish on a quarterly basis and in the
MONTINOLA, Petitioner, v. PHILIPPINE AIRLINES,
name of transparency and accountability such environmental damage
Respondent.
assessment, valuation, and valuation methods, in all stages of negotiation;
A.C. No. 9925, September 17, 2014 - MARIANO R.
CRISTOBAL, Complainant, v. ATTY. RONALDO E. RENTA, l. Convene a multisectoral technical working group to provide scientific and
Respondent. technical support to the TPAMB;

G.R. No. 212705, September 10, 2014 - ROBERTO m. Order the Department of Foreign Affairs, Department of National Defense,
CO, Petitioner, v. KENG HUAN JERRY YEUNG AND EMMA and the Department of Environment and Natural Resources to review the
YEUNG, Respondents. Visiting Forces Agreement and the Mutual Defense Treaty to consider
whether their provisions allow for the exercise of erga omnes rights to a
A.C. No. 7184, September 17, 2014 - FELIPE B. balanced and healthful ecology and for damages which follow from any
ALMAZAN, SR., Complainant, v. ATTY. MARCELO B. violation of those rights;
SUERTE-FELIPE, Respondent.
n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes
G.R. No. 190198, September 17, 2014 -
COMMISSIONER OF INTERNAL REVENUE, Petitioner, v.
of protecting the damaged areas of TRNP;
CE LUZON GEOTHERMAL POWER COMPANY, INC.,
Respondent. o. Declare the grant of immunity found in Article V (Criminal Jurisdiction)
and Article VI of the Visiting Forces Agreement unconstitutional for violating
G.R. No. 184000, September 17, 2014 - PUERTO equal protection and/or for violating the preemptory norm of
AZUL LAND, INC., Petitioner, v. PACIFIC WIDE REALTY nondiscrimination incorporated as part of the law of the land under Section
DEVELOPMENT CORPORATION, Respondent. 2, Article II, of the Philippine Constitution;

G.R. No. 197857, September 10, 2014 - SPOUSES p. Allow for continuing discovery measures;
FRANCISCO SIERRA (SUBSTITUTED BY DONATO,
TERESITA, TEODORA, LORENZA, LUCINA, IMELDA,

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8/14/2017 G.R. No. 206510, September 16, 2014 - MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS
VILMA, AND MILAGROS SIERRA) AND ANTONINA q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other
SANTOS, SPOUSES ROSARIO SIERRA AND EUSEBIO respects; and
CALUMA LEYVA, AND SPOUSES SALOME SIERRA AND
FELIX GATLABAYAN (SUBSTITUTED BY 5. Provide just and equitable environmental rehabilitation measures and such other
BUENAVENTURA, ELPIDIO, PAULINO, CATALINA,
GREGORIO, AND EDGARDO GATLABAYAN, LORETO
reliefs as are just and equitable under the premises.7 (Underscoring supplied.)
REILLO, FERMINA PEREGRINA, AND NIDA
HASHIMOTO), Petitioners, v. PAIC SAVINGS AND
MORTGAGE BANK, INC., Respondent. Since only the Philippine respondents filed their comment8 to the petition, petitioners also filed a motion
for early resolution and motion to proceed ex parte against the US respondents.9 cralawlawlibrary

A.M. No. P-13-3102 [Formerly OCA I.P.I. No. 07-


2562-P], September 08, 2014 - JOSE S. VILLANUEVA, Respondents Consolidated Comment
Complainant, v. ATTY. PAULINO I. SAGUYOD, CLERK OF
COURT VI, REGIONAL TRIAL COURT, BRANCH 6, In their consolidated comment with opposition to the application for a TEPO and ocular inspection and
PANIQUI, TARLAC, Respondent.
production orders, respondents assert that: (1) the grounds relied upon for the issuance of a TEPO or
G.R. No. 176121, September 22, 2014 - SPOUSES
writ of Kalikasan have become fait accompli as the salvage operations on the USS Guardian were
TEODORICO AND PACITA ROSETE, Petitioners, v. FELIX already completed; (2) the petition is defective in form and substance; (3) the petition improperly raises
AND/OR MARIETTA BRIONES, SPOUSES JOSE AND issues involving the VFA between the Republic of the Philippines and the United States of America; and
REMEDIOS ROSETE, AND NEORIMSE AND FELICITAS (4) the determination of the extent of responsibility of the US Government as regards the damage to the
CORPUZ, Respondents. Tubbataha Reefs rests exclusively with the executive branch.

G.R. No. 206912, September 10, 2014 - PEOPLE OF The Courts Ruling
THE PHILIPPINES, Plaintiff-Appellee, v. DEMOSTHENES
BONTUYAN, Accused-Appellant. As a preliminary matter, there is no dispute on the legal standing of petitioners to file the present
petition.
G.R. No. 189850, September 22, 2014 - PEOPLE OF
THE PHILIPPINES, Plaintiff-Appellee, v. REYNALDO
TORRES, JAY TORRES, BOBBY TORRES @ ROBERTO Locus standi is a right of appearance in a court of justice on a given question.10 Specifically, it is a
TORRES Y NAVA, BRION, AND RONNIE TORRES, partys personal and substantial interest in a case where he has sustained or will sustain direct injury as
Accused, BOBBY TORRES @ ROBERTO TORRES Y NAVA, a result of the act being challenged, and calls for more than just a generalized grievance.11 However,
Accused-Appellant. 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
G.R. No. 174353, September 10, 2014 - NESTOR subject matter of the controversy is of transcendental importance, of overreaching significance to
CHING AND ANDREW WELLINGTON, Petitioners, v.
society, or of paramount public interest.12
SUBIC BAY GOLF AND COUNTRY CLUB, INC., HU HO
cralawlawlibrary

HSIU LIEN ALIAS SUSAN HU, HU TSUNG CHIEH ALIAS


JACK HU, HU TSUNG HUI, HU TSUNG TZU AND In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the public right of citizens to a
REYNALD R. SUAREZ, Respondents. 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
G.R. No. 188773, September 10, 2014 - HEIRS OF need not be written in the Constitution for it is assumed, like other civil and political rights guaranteed in
VALENTIN BASBAS, ANSELMA B. ENDRINAL, the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental importance
GERTRUDES BASBAS, RUFINA BASBAS, CEFERINA B. with intergenerational implications. Such right carries with it the correlative duty to refrain from
CARTECIANO, ANACLETO BASBAS, ARSENIA BASBAS,
impairing the environment.14
ANASTACIO BASBAS, BEDACIO BASBAS, TEODOCIA B.
cralawlawlibrary

OCAMPO, SEGUNDO C. BASBAS, MARIA B. RAMOS AND


EUGENIO BASBAS IN REPRESENTATION OF PEDRO On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled that not
BASBAS; HERINO T. BASBAS AND NESTOR T. BASBAS only do ordinary citizens have legal standing to sue for the enforcement of environmental rights, they
IN REPRESENTATION OF LUCAS BASBAS; ADELAIDA B. can do so in representation of their own and future generations. Thus: chanRoblesvirtualLawlibrary

FLORENTINO, RODRIGO BASBAS, FELIX BASBAS, JR.,


TEODULO BASBAS, ANDRESITO BASBAS, LARRY
BASBAS AND JOEY BASBAS IN REPRESENTATION OF Petitioners minors assert that they represent their generation as well as generations yet
FELIX BASBAS, SR., VICTOR BEATO, ALIPIO BEATO, unborn. We find no difficulty in ruling that they can, for themselves, for others of their
EUTIQUIO BEATO, JULIANA B. DIAZ, PABLO BEATO generation and for the succeeding generations, file a class suit. Their personality to sue
AND ALEJANDRO BEATO IN REPRESENTATION OF in behalf of the succeeding generations can only be based on the concept of
REMIGIA B. BEATO, AS REPRESENTED BY RODRIGO intergenerational responsibility insofar as the right to a balanced and healthful
BASBAS, Petitioners, v. RICARDO BASBAS AS ecology is concerned. Such a right, as hereinafter expounded, considers the rhythm
REPRESENTED BY EUGENIO BASBAS, Respondents.
and harmony of nature.Nature means the created world in its entirety. Such rhythm and
harmony indispensably include, inter alia, the judicious disposition, utilization,
G.R. No. 176697, September 10, 2014 - CESAR V.
AREZA AND LOLITA B. AREZA, Petitioners, v. EXPRESS
management, renewal and conservation of the countrys forest, mineral, land, waters,
SAVINGS BANK, INC. AND MICHAEL POTENCIANO, fisheries, wildlife, off-shore areas and other natural resources to the end that their
Respondents. exploration, development and utilization be equitably accessible to the present as well as
future generations. Needless to say, every generation has a responsibility to the next to
G.R. No. 197486, September 10, 2014 - RENATO L. preserve that rhythm and harmony for the full enjoyment of a balanced and healthful
DELFINO, SR. (DECEASED), REPRESENTED BY HIS ecology. Put a little differently, the minors assertion of their right to a sound environment
HEIRS, NAMELY: GRACIA DELFINO, GREGORIO A. constitutes, at the same time, the performance of their obligation to ensure the protection
DELFINO, MA. ISABEL A. DELFINO, RENATO A. of that right for the generations to come.15 (Emphasis supplied.)
DELFINO, JR., MA. REGINA DELFINO ROSELLA, MA.
GRACIA A. DELFINO, MARIANO A. DELFINO, MA. LUISA
DELFINO GREGORIO AND REV. FR. GABRIEL A.
The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and generations yet
DELFINO, Petitioners, v. AVELINO K. ANASAO AND
unborn, is now enshrined in the Rules which allows the filing of a citizen suit in environmental cases. The
ANGEL K. ANASAO (DECEASED AND REPRESENTED BY
HIS SOLE HEIR, SIXTO C. ANASAO), Respondents.
provision on citizen suits in the Rules collapses the traditional rule on personal and direct interest, on
the principle that humans are stewards of nature.16 cralawlawlibrary

G.R. No. 193426, September 29, 2014 - SUBIC BAY


LEGEND RESORTS AND CASINOS, INC., Petitioner, v. Having settled the issue of locus standi, we shall address the more fundamental question of whether this
BERNARD C. FERNANDEZ, Respondent. Court has jurisdiction over the US respondents who did not submit any pleading or manifestation in this
case.
G.R. No. 176020, September 29, 2014 - HEIRS OF
TELESFORO JULAO, NAMELY, ANITA VDA. DE The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-suability
ENRIQUEZ, SONIA J. TOLENTINO AND RODERICK
JULAO, Petitioners, v. SPOUSES ALEJANDRO AND
of the State,17 is expressly provided in Article XVI of the 1987 Constitution which states: chanRoblesvirtualLawlibrary

MORENITA DE JESUS, Respondents.

A.C. No. 7337, September 29, 2014 - ROLANDO Section 3. The State may not be sued without its consent.
VIRAY, Complainant, v. ATTY. EUGENIO T. SANICAS,
Respondent. In United States of America v. Judge Guinto,18 we discussed the principle of state immunity from suit,
as follows:chanRoblesvirtualLawlibrary

G.R. No. 204160, September 22, 2014 - SPOUSES


MICHELLE M. NOYNAY AND NOEL S. NOYNAY,
Petitioners, v. CITIHOMES BUILDER AND The rule that a state may not be sued without its consent, now expressed in Article XVI,
DEVELOPMENT, INC., Respondent. Section 3, of the 1987 Constitution, is one of the generally accepted principles of
international law that we have adopted as part of the law of our land under Article II,
G.R. No. 202701, September 10, 2014 - PEOPLE OF Section 2. x x x.
THE PHILIPPINES, Plaintiff-Appellee, v. EDILBERTO
BALIBAY Y LABIS AND MARICEL BALIBAY BIJA-AN,
Even without such affirmation, we would still be bound by the generally accepted
Defendant-Appellants.
principles of international law under the doctrine of incorporation. Under this doctrine, as
G.R. No. 178911, September 17, 2014 - EDUARDO D.
accepted by the majority of states, such principles are deemed incorporated in the law of
MONSANTO, DECOROSO D. MONSANTO, SR., AND REV. every civilized state as a condition and consequence of its membership in the society of
FR. PASCUAL D. MONSANTO, JR., Petitioners, v. nations. Upon its admission to such society, the state is automatically obligated to comply
LEONCIO LIM AND LORENZO DE GUZMAN, with these principles in its relations with other states.
Respondents.
As applied to the local state, the doctrine of state immunity is based on the justification
G.R. No. 195289, September 24, 2014 - ROBINSONS given by Justice Holmes that there can be no legal right against the authority which
BANK CORPORATION (FORMERLY THE ROYAL BANK OF makes the law on which the right depends.[Kawanakoa v. Polybank, 205 U.S. 349] There
SCOTLAND [PHILS.], INC.), Petitioner, v. HON. SAMUEL are other practical reasons for the enforcement of the doctrine. In the case of the
H. GAERLAN, HON. HAKIM S. ABDULWAHID AND HON. foreign state sought to be impleaded in the local jurisdiction, the added
RICARDO R. ROSARIO, IN THEIR CAPACITY AS
inhibition is expressed in the maxim par in parem, non habet imperium. All
ASSOCIATE JUSTICES RESPECTIVELY OF THE TENTH
states are sovereign equals and cannot assert jurisdiction over one another. A

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8/14/2017 G.R. No. 206510, September 16, 2014 - MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS
DIVISION OF THE COURT OF APPEALS, AND TRADE contrary disposition would, in the language of a celebrated case, unduly vex the
AND INVESTMENT DEVELOPMENT CORPORATION OF peace of nations. [De Haber v. Queen of Portugal, 17 Q. B. 171]
THE PHILIPPINES, Respondents.
While the doctrine appears to prohibit only suits against the state without its consent, it is
G.R. No. 181921, September 17, 2014 - also applicable to complaints filed against officials of the state for acts allegedly
INTERORIENT MARITIME ENTERPRISES, INC.,
performed by them in the discharge of their duties. The rule is that if the judgment
Petitioner, v. VICTOR M. CREER III, Respondent.
against such officials will require the state itself to perform an affirmative act to satisfy
A.M. No. 2010-21-SC, September 30, 2014 - Re: the same, such as the appropriation of the amount needed to pay the damages awarded
ANONYMOUS LETTER-COMPLAINT ON THE ALLEGED against them, the suit must be regarded as against the state itself although it has not
INVOLVEMENT AND FOR ENGAGING IN THE BUSINESS been formally impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the
OF LENDING MONEY AT USURIOUS RATES OF INTEREST state may move to dismiss the complaint on the ground that it has been filed without its
OF MS. DOLORES T. LOPEZ, SC CHIEF JUDICIAL STAFF consent.19 (Emphasis supplied.)
OFFICER, AND MR. FERNANDO M. MONTALVO, SC
SUPERVISING JUDICIAL STAFF OFFICER, CHECKS
DISBURSEMENT DIVISION, FISCAL MANAGEMENT AND Under the American Constitution, the doctrine is expressed in the Eleventh Amendment which reads: chanRoblesvirtualLawlibrary

BUDGET OFFICE.

G.R. No. 207950, September 22, 2014 - PEOPLE OF The Judicial power of the United States shall not be construed to extend to any suit in law
THE PHILIPPINES, Plaintiff-Appellee, v. MARK JASON or equity, commenced or prosecuted against one of the United States by Citizens of
CHAVEZ Y BITANCOR ALIAS NOY, Accused-Appellant.
another State, or by Citizens or Subjects of any Foreign State.
A.M. No. 2008-23-SC, September 30, 2014 -
ALLEGED LOSS OF VARIOUS BOXES OF COPY PAPER In the case of Minucher v. Court of Appeals,20 we further expounded on the immunity of foreign states
DURING THEIR TRANSFER FROM THE PROPERTY from the jurisdiction of local courts, as follows:
chanRoblesvirtualLawlibrary

DIVISION, OFFICE OF ADMINISTRATIVE SERVICES


(OAS), TO THE VARIOUS ROOMS OF THE PHILIPPINE
JUDICIAL ACADEMY.; [A.M. No. 2014-025-Ret.] - The precept that a State cannot be sued in the courts of a foreign state is a long-standing
RELEASE OF COMPULSORY RETIREMENT BENEFITS rule of customary international law then closely identified with the personal immunity of a
UNDER R.A. NO. 8291 OF MR. ISIDRO P. AUSTRIA, foreign sovereign from suit and, with the emergence of democratic states, made to attach
FORMER SUPPLY OFFICER II, PHILIPPINE JUDICIAL not just to the person of the head of state, or his representative, but also distinctly to the
ACADEMY, SUPREME COURT. state itself in its sovereign capacity. If the acts giving rise to a suit are those of a
foreign government done by its foreign agent, although not necessarily a
G.R. No. 202733, September 30, 2014 - diplomatic personage, but acting in his official capacity, the complaint could be
DEVELOPMENT BANK OF THE PHILIPPINES, Petitioner, barred by the immunity of the foreign sovereign from suit without its consent.
v. COMMISSION ON AUDIT, JANEL D. NACION,
Suing a representative of a state is believed to be, in effect, suing the state itself. The
DIRECTOR IV, LEGAL SERVICES SECTOR OF COA, AND
THE SUPERVISING AUDITOR OF THE DEVELOPMENT
proscription is not accorded for the benefit of an individual but for the State, in whose
BANK OF THE PHILIPPINES, Respondents. service he is, under the maxim - par in parem, non habet imperium - thatall states are
sovereign equals and cannot assert jurisdiction over one another. The implication, in
A.M. No. P-14-3260 (Formerly A.M. No. 12-2-38- RTC broad terms, is that if the judgment against an official would require the state itself to
), September 16, 2014 - OFFICE OF THE COURT perform an affirmative act to satisfy the award, such as the appropriation of the amount
ADMINISTRATOR, Complainant, v. EDGAR S. CRUZ, needed to pay the damages decreed against him, the suit must be regarded as being
CLERK III, REGIONAL TRIAL COURT, BRANCH 52, against the state itself, although it has not been formally impleaded.21 (Emphasis
GUAGUA, PAMPANGA, Respondent. supplied.)
G.R. No. 210658, September 17, 2014 - PEOPLE OF
THE PHILIPPINES, Plaintiff-Appellee, v. PRIMO P.
In the same case we also mentioned that in the case of diplomatic immunity, the privilege is not an
JAPSON ALIAS LONGLONG, Accused-Appellant.
immunity from the observance of the law of the territorial sovereign or from ensuing legal liability; it is,
G.R. No. 187144, September 17, 2014 - CARMEN T. rather, an immunity from the exercise of territorial jurisdiction.22 cralawlawlibrary

GAHOL, SUBSTITUTED BY HER HEIRS, RICARDO T.


GAHOL, MARIA ESTER GAHOL PEREZ, JOSE MARI T. In United States of America v. Judge Guinto,23 one of the consolidated cases therein involved a Filipino
GAHOL, LUISITO T. GAHOL AND ALCREJ employed at Clark Air Base who was arrested following a buy-bust operation conducted by two officers
CORPORATION, Petitioners, v. ESPERANZA of the US Air Force, and was eventually dismissed from his employment when he was charged in court
COBARRUBIAS, Respondent. for violation of R.A. No. 6425. In a complaint for damages filed by the said employee against the
military officers, the latter moved to dismiss the case on the ground that the suit was against the US
G.R. No. 191712, September 17, 2014 - EDITA S.
Government which had not given its consent. The RTC denied the motion but on a petition for certiorari
BUENO AND MILAGROS E. QUINAJON, Petitioners, v.
OFFICE OF THE OMBUDSMAN, NAPOLEON S.
and prohibition filed before this Court, we reversed the RTC and dismissed the complaint. We held that
RONQUILLO, JR., EDNA G. RAA AND ROMEO G. petitioners US military officers were acting in the exercise of their official functions when they conducted
REFRUTO, Respondents. the buy-bust operation against the complainant and thereafter testified against him at his trial. It follows
that for discharging their duties as agents of the United States, they cannot be directly impleaded for
G.R. No. 204755, September 17, 2014 - SOLEDAD acts imputable to their principal, which has not given its consent to be sued.
TRIA, Petitioner, v. PEOPLE OF THE PHILIPPINES,
Respondent. This traditional rule of State immunity which exempts a State from being sued in the courts of another
State without the formers consent or waiver has evolved into a restrictive doctrine which distinguishes
G.R. No. 189863, September 17, 2014 - PEDRO sovereign and governmental acts (jure imperii) from private, commercial and proprietary acts (jure
LIBANG, JR., Petitioner, v. INDOCHINA SHIP gestionis). Under the restrictive rule of State immunity, State immunity extends only to acts jure
MANAGEMENT INC., MR. MIGUEL SANTOS AND
imperii. The restrictive application of State immunity is proper only when the proceedings arise out of
MAJESTIC CARRIERS, INC., Respondents.
commercial transactions of the foreign sovereign, its commercial activities or economic affairs.24 cralawlawlibrary

A.C. No. 9115, September 17, 2014 - REBECCA


MARIE UY YUPANGCO-NAKPIL, Complainant, v. ATTY. In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity principle, thus: chanRoblesvirtualLawlibrary

ROBERTO L. UY, Respondent.

G.R. No. 201644, September 24, 2014 - PEOPLE OF It is a different matter where the public official is made to account in his
THE PHILIPPINES, Petitioner, v. JOSE C. GO AND AIDA capacity as such for acts contrary to law and injurious to the rights of plaintiff.
C. DELA ROSA, Respondents. As was clearly set forth by Justice Zaldivar in Director of the Bureau of
Telecommunications, et al. vs. Aligaen, etc., et al.: Inasmuch as the State authorizes
G.R. No. 206555, September 17, 2014 - ATTY.
only legal acts by its officers, unauthorized acts of government officials or officers are not
FORTUNATO PAGDANGANAN, JR., ATTY. ABIGAIL D.
acts of the State, and an action against the officials or officers by one whose rights have
SUAREZ, AND EUGENIO A. VILLANUEVA, Petitioners, v.
FLORENTINO P. SARMIENTO, Respondent.
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
G.R. No. 188909, September 17, 2014 - REPUBLIC OF been said that an action at law or suit in equity against a State officer or the director of a
THE PHILIPPINES, REPRESENTED BY THE OFFICE OF State department on the ground that, while claiming to act for the State, he violates or
THE PRESIDENT, DEPARTMENT OF PUBLIC WORKS AND invades the personal and property rights of the plaintiff, under an unconstitutional act or
HIGHWAYS AND PRESIDENTIAL ANTI-GRAFT under an assumption of authority which he does not have, is not a suit against the State
COMMISSION, Petitioners, v. FLORENDO B. ARIAS, within the constitutional provision that the State may not be sued without its consent.
ASSISTANT DIRECTOR, BUREAU OF EQUIPMENT, The rationale for this ruling is that the doctrine of state immunity cannot be used as an
DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, instrument for perpetrating an injustice.
Respondent.
xxxx
G.R. No. 158583, September 10, 2014 - ROSALIE L.
GARGOLES, Petitioner, v. REYLITA S. DEL ROSARIO,
DOING BUSINESS UNDER THE NAME AND STYLE JAY
The aforecited authorities are clear on the matter. They state that the doctrine of
ANNE'S ONE HOUR PHOTO SHOP, Respondent. immunity from suit will not apply and may not be invoked where the public
official is being sued in his private and personal capacity as an ordinary citizen.
G.R. No. 158150, September 10, 2014 - AGRIEX CO., The cloak of protection afforded the officers and agents of the government is removed the
LTD., Petitioner, v. HON. TITUS B. VILLANUEVA, moment they are sued in their individual capacity. This situation usually arises where the
COMMISSIONER, BUREAU OF CUSTOMS (NOW public official acts without authority or in excess of the powers vested in him. It is a well-
REPLACED BY HON. ANTONIO M. BERNARDO), AND settled principle of law that a public official may be liable in his personal private
HON. BILLY C. BIBIT, COLLECTOR OF CUSTOMS, PORT capacity for whatever damage he may have caused by his act done with malice
OF SUBIC (NOW REPLACED BY HON. EMELITO
and in bad faith, or beyond the scope of his authority or jurisdiction.26 (Emphasis
VILLARUZ), Respondents.
supplied.)
G.R. No. 182794, September 08, 2014 - PEOPLE OF
THE PHILIPPINES, Plaintiff-Appellee, v. BOBBY
BELGAR, Accused-Appellant.
In this case, 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

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8/14/2017 G.R. No. 206510, September 16, 2014 - MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS
G.R. No. 206510, September 16, 2014 - MOST REV. resulting in the unfortunate grounding of the USS Guardian on the TRNP was committed while they were
PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa performing official military duties. Considering that the satisfaction of a judgment against said officials
D.D.; MOST REV. DEOGRACIAS S. INIGUEZ, JR., Bishop- will require remedial actions and appropriation of funds by the US government, the suit is deemed to be
Emeritus ofCaloocan, FRANCES Q. QUIMPO, CLEMENTE one against the US itself. The principle of State immunity therefore bars the exercise of jurisdiction by
G. BAUTISTA, JR., Kalikasan-PNE, MARIA CAROLINA P.
this Court over the persons of respondents Swift, Rice and Robling.
ARAULLO, RENATO M. REYES, JR., BagongAlyansang
Makabayan, HON. NERI JAVIER COLMENARES,
BayanMuna Party-list, ROLAND G. SIMBULAN, PH.D.,
During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the conduct of
Junk VFAMovement, TERESITA R. PEREZ, PH.D., HON. the US in this case, when its warship entered a restricted area in violation of R.A. No. 10067 and caused
RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ. damage to the TRNP reef system, brings the matter within the ambit of Article 31 of the United Nations
GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Convention on the Law of the Sea (UNCLOS). He explained that while historically, warships enjoy
Agham, ELMER C. LABOG, Kilusang Mayo Uno, JOAN sovereign immunity from suit as extensions of their flag State, Art. 31 of the UNCLOS creates an
MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA, exception to this rule in cases where they fail to comply with the rules and regulations of the coastal
THERESA A. CONCEPCION, MARY JOAN A. GUAN, State regarding passage through the latters internal waters and the territorial sea.
NESTOR T. BAGUINON, PH.D., A. EDSEL F. TUPAZ,
Petitioners, v. SCOTT H. SWIFT in his capacity as According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of long-
Commander of the U.S. 7th Fleet, MARK A. RICE in his standing policy the US considers itself bound by customary international rules on the traditional uses of
capacity as Commanding Officer of the USS Guardian,
the oceans as codified in UNCLOS, as can be gleaned from previous declarations by former Presidents
PRESIDENT BENIGNO S. AQUINO III in his capacity as
Reagan and Clinton, and the US judiciary in the case of United States v. Royal Caribbean Cruise Lines,
Commander-in-Chief of the Armed Forces of the
Philippines, HON. ALBERT F. DEL ROSARIO, Secretary, Ltd.27cralawlawlibrary

Department of Foreign Affairs, HON. PAQUITO OCHOA,


JR., Executive Secretary, Office of the President, HON. The international law of the sea is generally defined as a body of treaty rules and customary norms
VOLTAIRE T. GAZMIN, Secretary, Department of governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over
National Defense, HON. RAMON JESUS P. PAJE, maritime regimes. It is a branch of public international law, regulating the relations of states with
Secretary, Department of Environment and Natural respect to the uses of the oceans.28 The UNCLOS is a multilateral treaty which was opened for
Resources, VICE ADMIRAL JOSE LUIS M. ALANO,
signature on December 10, 1982 at Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but
Philippine Navy Flag Officer in Command, Armed Forces
of the Philippines, ADMIRAL RODOLFO D. ISORENA, came into force on November 16, 1994 upon the submission of the 60th ratification.
Commandant, Philippine Coast Guard, COMMODORE
ENRICO EFREN EVANGELISTA, Philippine Coast Guard The UNCLOS is a product of international negotiation that seeks to balance State sovereignty (mare
Palawan, MAJOR GEN. VIRGILIO O. DOMINGO, clausum) and the principle of freedom of the high seas (mare liberum).29 The freedom to use the
Commandant of Armed Forces of the Philippines worlds marine waters is one of the oldest customary principles of international law.30 The UNCLOS gives
Commandand LT. GEN. TERRY G. ROBLING, US Marine to the coastal State sovereign rights in varying degrees over the different zones of the sea which are: 1)
Corps Forces, Pacific and Balikatan 2013 Exercise Co-
internal waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the high seas.
Director, Respondents.
It also gives coastal States more or less jurisdiction over foreign vessels depending on where the vessel
A.C. No. 10438, September 23, 2014 - CF SHARP is located.31 cralawlawlibrary

CREW MANAGEMENT INCORPORATED, Complainant, v.


NICOLAS C. TORRES, Respondent. Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises sovereignty,
subject to the UNCLOS and other rules of international law. Such sovereignty extends to the air space
G.R. No. 209286, September 23, 2014 - LINA DELA over the territorial sea as well as to its bed and subsoil.32
PEA JALOVER, GEORGIE A. HUISO AND VELVET
cralawlawlibrary

BARQUIN ZAMORA, Petitioners, v. JOHN HENRY R.


OSMEA AND COMMISSION ON ELECTIONS In the case of warships,33
as pointed out by Justice Carpio, they continue to enjoy sovereign immunity
(COMELEC), Respondents. subject to the following exceptions: chanRoblesvirtualLawlibrary

G.R. No. 182424, September 22, 2014 - NENITA


CARGANILLO, Petitioner, v. PEOPLE OF THE Article 30
PHILIPPINES, Respondent. Non-compliance by warships with the laws and regulations
of the coastal State
G.R. No. 192957, September 29, 2014 - EMMANUEL
B. MORAN, JR., (DECEASED), SUBSTITUTED BY HIS If any warship does not comply with the laws and regulations of the coastal State
WIDOW, CONCORDIA V. MORAN, Petitioner, v. OFFICE concerning passage through the territorial sea and disregards any request for compliance
OF THE PRESIDENT OF THE PHILIPPINES, AS therewith which is made to it, the coastal State may require it to leave the territorial sea
REPRESENTED BY THE HONORABLE EXECUTIVE immediately.
SECRETARY EDUARDO R. ERMITA AND PGA CARS, INC.,
Respondents.
Article 31
G.R. No. 199133, September 29, 2014 - ESPERANZA Responsibility of the flag State for damage caused by a warship
TUMPAG, SUBSTITUTED BY HER SON, PABLITO TUMPAG or other government ship operated for non-commercial purposes
BELNAS, JR., Petitioner, v. SAMUEL TUMPAG,
Respondent. 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
G.R. No. 179654, September 22, 2014 - HACIENDA government ship operated for non-commercial purposes with the laws and
LEDDY/RICARDO GAMBOA, JR., Petitioner, v. PAQUITO regulations of the coastal State concerning passage through the territorial sea or
VILLEGAS, Respondent. with the provisions of this Convention or other rules of international law.
G.R. No. 206599, September 29, 2014 - 680 HOME
Article 32
APPLIANCES, INC., Petitioner, v. THE HONORABLE
Immunities of warships and other government ships
COURT OF APPEALS, THE HONORABLE MARYANN E.
CORPUS-MAALAC, IN HER CAPACITY AS THE
operated for non-commercial purposes
PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF
MAKATI CITY, BRANCH 141, ATTY. ENGRACIO With such exceptions as are contained in subsection A and in articles 30 and 31, nothing
ESCASINAS, JR., IN HIS CAPACITY AS THE EX-OFFICIO in this Convention affects the immunities of warships and other government ships
SHERIFF/CLERK OF COURT VII, OFFICE OF THE CLERK operated for non-commercial purposes. (Emphasis supplied.)
OF COURT, REGIONAL TRIAL COURT, MAKATI CITY,
FIRST SOVEREIGN ASSET MANAGEMENT (SPV-AMC),
INC. AND ALDANCO MERLMAR, INC., Respondents. A foreign warships 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
G.R. No. 198538, September 29, 2014 - EXOCET non-party to the UNCLOS, as in this case, the US?
SECURITY AND ALLIED SERVICES CORPORATION
AND/OR MA. TERESA MARCELO, Petitioner, v. An overwhelming majority over 80% -- of nation states are now members of UNCLOS, but despite this
ARMANDO D. SERRANO, Respondent. the US, the worlds leading maritime power, has not ratified it.
G.R. No. 192398, September 29, 2014 -
COMMISSIONER OF INTERNAL REVENUE, Petitioner, v.
While the Reagan administration was instrumental in UNCLOS' negotiation and drafting,
PILIPINAS SHELL PETROLEUM CORPORATION,
Respondent. the U.S. delegation ultimately voted against and refrained from signing it due to concerns
over deep seabed mining technology transfer provisions contained in Part XI. In a
A.M. No. SB-14-21-J [Formerly A.M. No. 13-10-06- remarkable, multilateral effort to induce U.S. membership, the bulk of UNCLOS member
SB], September 23, 2014 - RE: ALLEGATIONS MADE states cooperated over the succeeding decade to revise the objectionable provisions. The
UNDER OATH AT THE SENATE BLUE RIBBON revisions satisfied the Clinton administration, which signed the revised Part XI
COMMITTEE HEARING HELD ON SEPTEMBER 26, 2013 implementing agreement in 1994. In the fall of 1994, President Clinton transmitted
AGAINST ASSOCIATE JUSTICE GREGORY S. ONG, UNCLOS and the Part XI implementing agreement to the Senate requesting its advice and
SANDIGANBAYAN consent. Despite consistent support from President Clinton, each of his successors, and
an ideologically diverse array of stakeholders, the Senate has since withheld the consent
G.R. No. 204369, September 17, 2014 - ENRIQUETA required for the President to internationally bind the United States to UNCLOS.
M. LOCSIN, Petitioner, v. BERNARDO HIZON, CARLOS
HIZON, SPS. JOSE MANUEL & LOURDES GUEVARA,
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th
Respondents.
and 110th Congresses, its progress continues to be hamstrung by significant pockets of
G.R. No. 202666, September 29, 2014 - RHONDA AVE political ambivalence over U.S. participation in international institutions. Most recently,
S. VIVARES AND SPS. MARGARITA AND DAVID 111th Congress SFRC Chairman Senator John Kerry included voting out UNCLOS for full
SUZARA, Petitioners, v. ST. THERESAS COLLEGE, Senate consideration among his highest priorities. This did not occur, and no Senate
MYLENE RHEZA T. ESCUDERO, AND JOHN DOES, action has been taken on UNCLOS by the 112th Congress.34 chanrobleslaw

Respondents.

G.R. No. 157633, September 10, 2014 - NORTHWEST Justice Carpio invited our attention to the policy statement given by President Reagan on March 10,
AIRLINES, INC., Petitioner, v. MA. CONCEPCION M. DEL
1983 that the US will recognize the rights of the other states in the waters off their coasts, as reflected
ROSARIO, Respondent.
in the convention [UNCLOS], so long as the rights and freedom of the United States and others under

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8/14/2017 G.R. No. 206510, September 16, 2014 - MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS
international law are recognized by such coastal states, and President Clintons reiteration of the US
G.R. No. 202066, September 30, 2014 - CBK POWER policy to act in a manner consistent with its [UNCLOS] provisions relating to traditional uses of the
COMPANY LIMITED, Petitioner, v. COMMISSIONER OF oceans and to encourage other countries to do likewise. Since Article 31 relates to the traditional uses
INTERNAL REVENUE, Respondent.; G.R. NO. 205353 - of the oceans, and if under its policy, the US recognize[s] the rights of the other states in the waters
CBK POWER COMPANY LIMITED, Petitioner, v.
off their coasts, Justice Carpio postulates that there is more reason to expect it to recognize the rights
COMMISSIONER OF INTERNAL REVENUE, Respondent.
of other states in their internal waters, such as the Sulu Sea in this case.
G.R. No. 152334, September 24, 2014 - H.H.
HOLLERO CONSTRUCTION, INC., Petitioner, v. As to the non-ratification by the US, Justice Carpio emphasizes that the US refusal to join the UNCLOS
GOVERNMENT SERVICE INSURANCE SYSTEM AND POOL was centered on its disagreement with UNCLOS regime of deep seabed mining (Part XI) which considers
OF MACHINERY INSURERS, Respondents. 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.
G.R. No. 200077, September 17, 2014 - PEOPLE OF
THE PHILIPPINES, Plaintiff-Appellee, v. ADEL RAMOS Y It may be mentioned that even the US Navy Judge Advocate Generals Corps publicly endorses the
ABELLANA, Accused-Appellant. ratification of the UNCLOS, as shown by the following statement posted on its official website: chanRoblesvirtualLawlibrary

G.R. No. 208716, September 24, 2014 - PEOPLE OF


THE PHILIPPINES, Plaintiff-Appellee, v. ELADIO B. The Convention is in the national interest of the United States because it establishes
LUMAHO ALIAS ATTUMPANG, Accused-Appellant. stable maritime zones, including a maximum outer limit for territorial seas; codifies
innocent passage, transit passage, and archipelagic sea lanes passage rights; works
G.R. No. 199780, September 24, 2014 -
against jurisdictional creep by preventing coastal nations from expanding their own
GOVERNMENT SERVICE INSURANCE SYSTEM,
Petitioner, v. JOSE M. CAPACITE, Respondent.
maritime zones; and reaffirms sovereign immunity of warships, auxiliaries and
government aircraft.
A.M. No. P-13-3130 [Formerly OCA I.P.I. No. 11-
3668-P], September 22, 2014 - OFFICE OF THE COURT xxxx
ADMINISTRATOR, Petitioner, v. MAY F. HERNANDEZ,
CLERK III, REGIONAL TRIAL COURT, BRANCH 199, LAS Economically, accession to the Convention would support our national interests by
PIAS CITY, Respondent. enhancing the ability of the US to assert its sovereign rights over the resources of one of
the largest continental shelves in the world. Further, it is the Law of the Sea Convention
G.R. No. 182770, September 17, 2014 - WPM that first established the concept of a maritime Exclusive Economic Zone out to 200
INTERNATIONAL TRADING, INC. AND WARLITO P. nautical miles, and recognized the rights of coastal states to conserve and manage the
MANLAPAZ, Petitioners, v. FE CORAZON LABAYEN,
Respondent.
natural resources in this Zone.35 chanrobleslaw

G.R. No. 192973, September 29, 2014 - PEDRITO


DELA TORRE, Petitioner, v. DR. ARTURO IMBUIDO, We fully concur with Justice Carpios view that non-membership in the UNCLOS does not mean that the
DRA. NORMA IMBUIDO in their capacity as owners and US will disregard the rights of the Philippines as a Coastal State over its internal waters and territorial
operators of DIVINE SPIRIT GENERAL HOSPITAL sea. We thus expect the US to bear international responsibility under Art. 31 in connection with the
AND/OR DR. NESTOR PASAMBA, Respondents. 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 countrys efforts to
G.R. No. 202354, September 24, 2014 - AMADA C. preserve our vital marine resources, would shirk from its obligation to compensate the damage caused
ZACARIAS, Petitioner, v. VICTORIA ANACAY, EDNA by its warship while transiting our internal waters. Much less can we comprehend a Government
ANACAY, CYNTHIA ANACAY-GUISIC, ANGELITO exercising leadership in international affairs, unwilling to comply with the UNCLOS directive for all
ANACAY, JERMIL ISRAEL, JIMMY ROY ISRAEL AND ALL nations to cooperate in the global task to protect and preserve the marine environment as provided in
OTHER PERSONS CLAIMING AUTHORITY UNDER THEM, Article 197, viz:
Respondents.
chanRoblesvirtualLawlibrary

G.R. No. 173168, September 29, 2014 - PHILIPPINE


Article 197
AMANAH BANK (NOW AL-AMANAH ISLAMIC
INVESTMENT BANK OF THE PHILIPPINES, ALSO Cooperation on a global or regional basis
KNOWN AS ISLAMIC BANK), Petitioner, v.
EVANGELISTA CONTRERAS, Respondent. States shall cooperate on a global basis and, as appropriate, on a regional basis, directly
or through competent international organizations, in formulating and elaborating
G.R. No. 200065, September 24, 2014 - CAPITAL international rules, standards and recommended practices and procedures consistent with
SHOES FACTORY, LTD., Petitioner, v. TRAVELER KIDS, this Convention, for the protection and preservation of the marine environment, taking
INC., Respondent. into account characteristic regional features.

G.R. No. 195889, September 24, 2014 - PHILIPPINE


NATIONAL BANK, Petitioner, v. SPOUSES EDUARDO In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute. Although the
AND MA. ROSARIO TAJONERA AND EDUAROSA REALTY said treaty upholds the immunity of warships from the jurisdiction of Coastal States while navigating the
DEVELOPMENT, INC., Respondents. latters 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
G.R. No. 211356, September 29, 2014 -
warships or any other government vessel operated for non-commercial purposes under Article 31.
CRISOSTOMO B. AQUINO, Petitioner, v. MUNICIPALITY
OF MALAY, AKLAN, REPRESENTED BY HON. MAYOR
JOHN P. YAP, SANGGUNIANG BAYAN OF MALAY, Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they invoke
AKLAN, REPRESENTED BY HON. EZEL FLORES, DANTE federal statutes in the US under which agencies of the US have statutorily waived their immunity to any
PASUGUIRON, ROWEN AGUIRRE, WILBEC GELITO, action. Even under the common law tort claims, petitioners asseverate that the US respondents are
JUPITER GALLENERO, OFFICE OF THE MUNICIPAL liable for negligence, trespass and nuisance.
ENGINEER, OFFICE OF THE MUNICIPAL TREASURER,
BORACAY PNP CHIEF, BORACAY FOUNDATION, INC., We are not persuaded.
REPRESENTED BY NENETTE GRAF, MUNICIPAL
AUXILIARY POLICE, AND JOHN AND JANE DOES, The VFA is an agreement which defines the treatment of United States troops and personnel visiting the
Respondents. Philippines to promote common security interests between the US and the Philippines in the region. It
provides for the guidelines to govern such visits of military personnel, and further defines the rights of
G.R. No. 205561, September 24, 2014 - DIONISIO B.
the United States and the Philippine government in the matter of criminal jurisdiction, movement of
COLOMA, JR., Petitioner, v. HON. SANDIGANBAYAN
(THIRD DIVISION) AND PEOPLE OF THE PHILIPPINES, vessel and aircraft, importation and exportation of equipment, materials and supplies.36 The invocation
Respondents. of US federal tort laws and even common law is thus improper considering that it is the VFA which
governs disputes involving US military ships and crew navigating Philippine waters in pursuance of the
G.R. No. 209195, September 17, 2014 - MANUEL J. objectives of the agreement.
JIMENEZ, JR., Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.; G.R. NO. 209215 - PEOPLE As it is, the waiver of State immunity under the VFA pertains only to criminal jurisdiction and not to
OF THE PHILIPPINES, Petitioner, v. MANUEL J. special civil actions such as the present petition for issuance of a writ of Kalikasan. In fact, it can be
JIMENEZ, JR., Respondent. 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:
G.R. No. 195594, September 29, 2014 - REPUBLIC OF
chanRoblesvirtualLawlibrary

THE PHILIPPINES, REPRESENTED BY THE NATIONAL


IRRIGATION ADMINISTRATION, Petitioner, v. SPOUSES
Sec. 17. Institution of separate actions.The filing of a petition for the issuance of the
ROGELIO LAZO AND DOLORES LAZO, Respondents.
writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative
G.R. No. 200566, September 17, 2014 - JEBSEN actions.
MARITIME INC., APEX MARITIME SHIP MANAGEMENT
CO. LLC., AND/OR ESTANISLAO SANTIAGO, Petitioners,
v. WILFREDO E. RAVENA, Respondent. In any case, it is our considered view thata 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
G.R. No. 180290, September 29, 2014 - the USS Guardian, would be premature and beyond the province of a petition for a writ of Kalikasan. We
COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. also find it unnecessary at this point to determine whether such waiver of State immunity is indeed
PHILIPPINE NATIONAL BANK, Respondent. 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
G.R. No. 167454, September 24, 2014 - EMERITU C. fines under R.A. No. 10067, in a separate civil suit or that deemed instituted with the criminal action
BARUT, Petitioner, v. PEOPLE OF THE PHILIPPINES,
charging the same violation of an environmental law.37
Respondent.
cralawlawlibrary

G.R. No. 191237, September 24, 2014 - ROBERT Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance of a writ of
KUA, CAROLINE N. KUA, AND MA. TERESITA N. KUA, Kalikasan, to wit: chanRoblesvirtualLawlibrary

Petitioners, v. GREGORIO SACUPAYO AND


MAXIMINIANO PANERIO, Respondents.
Sec. 15. Judgment.Within sixty (60) days from the time the petition is submitted for
decision, the court shall render judgment granting or denying the privilege of the writ of

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8/14/2017 G.R. No. 206510, September 16, 2014 - MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS
A.M. No. MTJ-13-1837 [formerly OCA IPI No. 12- kalikasan.
2463-MTJ], September 24, 2014 - CONRADO ABE
LOPEZ, REPRESENTED BY ATTY. ROMUALDO JUBAY, The reliefs that may be granted under the writ are the following:chanRoblesvirtualLawlibrary

Complainant, v. JUDGE ROGELIO S. LUCMAYON,


MUNICIPAL TRIAL COURT IN CITIES, BRANCH 1, (a) Directing respondent to permanently cease and desist from committing acts or
MANDAUE CITY, CEBU, Respondent.
neglecting the performance of a duty in violation of environmental laws resulting in
G.R. No. 198314, September 24, 2014 - PEOPLE OF
environmental destruction or damage;
THE PHILIPPINES, Plaintiff-Appellee, v. RICHARD
GUINTO Y SAN ANDRES, Accused-Appellant. (b) Directing the respondent public official, government agency, private person or entity
to protect, preserve,rehabilitate or restore the environment;
G.R. No. 185345, September 10, 2014 - RONNIE L.
ABING, Petitioner, v. NATIONAL LABOR RELATIONS (c) Directing the respondent public official, government agency, private person or entity to
COMMISSION, ALLIED BANKING CORPORATION, monitor strict compliance with the decision and orders of the court;
FACILITATORS GENERAL SERVICES AND MARILAG
BUSINESS AND INDUSTRIAL MANAGEMENT SERVICES, (d) Directing the respondent public official, government agency, or private person or
INC., Respondents. entity to make periodic reports on the execution of the final judgment; and
G.R. No. 173632, September 29, 2014 - AMBROSIO
(e) Such other reliefs which relate to the right of the people to a balanced and healthful
ROTAIRO (SUBSTITUTED BY HIS SPOUSE MARIA
RONSAYRO ROTAIRO, AND HIS CHILDREN FELINA ecology or to the protection,preservation, rehabilitation or restoration of the environment,
ROTAIRO, ERLINDA ROTAIRO CRUZ, EUDOSIA except the award of damages to individual petitioners. (Emphasis supplied.)
ROTAIRO CRIZALDO, NIEVES ROTAIRO TUBIG,
REMEDIOS ROTAIRO MACAHILIG, FELISA ROTAIRO
LEGASPI, JOSEFINA ROTAIRO TORREVILLAS, AND We agree with respondents (Philippine officials) in asserting that this petition has become moot in the
CRISENCIO R. ROTAIRO, MARCIANA TIBAY, EUGENIO sense that the salvage operation sought to be enjoined or restrained had already been accomplished
PUNZALAN, AND VICENTE DEL ROSARIO, Petitioners, v. when petitioners sought recourse from this Court. But insofar as the directives to Philippine respondents
ROVIRA ALCANTARA AND VICTOR ALCANTARA, to protect and rehabilitate the coral reef structure and marine habitat adversely affected by the
Respondents. grounding incident are concerned, petitioners are entitled to these reliefs notwithstanding the
completion of the removal of the USS Guardian from the coral reef.
G.R. No. 194176, September 10, 2014 - LIMUELL C.
NARCISO, OMAR C. MATUGUINA, ERIC MATUGUINA, However, we are mindful of the fact that the US and Philippine governments both expressed readiness to
AZENITH MAG-ASO, LILIBETH MASCARIAS, negotiate and discuss the matter of compensation for the damage caused by the USS Guardian. The US
LUTGARDO OGAMA, LOLITO COLLAMAT, IRIS
Embassy has also declared it is closely coordinating with local scientists and experts in assessing the
MATUGUINA AND ELMER BANILAD, CARLOS B.
MATUGUINA, JR., BIBIANO ESTRERA, JR., PEDRO extent of the damage and appropriate methods of rehabilitation.
LINABOG, BOBBY ALQUEZA, SANTIAGO ATIS, MARLON
DAMAYO, CASINILLO NESTRO, BERNARDITO DACAN, Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As can be
SABINIANO PATATAG, JOLLYBOY MONICIT, RODRIGO gleaned from the following provisions, mediation and settlement are available for the consideration of
DAYDAY, REY ESTRERA, CRESENCIO CASIO, DOMINICO the parties, and which dispute resolution methods are encouraged by the court, to wit: chanRoblesvirtualLawlibrary

AVILA, ERVERT RICAZA, ENRIQUE PANTILGAN,


JONARDEN E. GONZAGA, RENATO CASIO, BENNY BOOC, RULE 3
DUA CORSINO, RANILO IGOT, NARCISO PATERNO,
ROBERTO RABAL, JULITO MONSALES, LEOPOLDO
MONGUEZ, JR., ROWEL NEIGAS, EPIFANIO PIAMIL, xxxx
LOUIE JUDILLAS AND MANUEL CENIZA, Petitioners, v.
PACIFIC TRADERS & MANUFACTURING CORPORATION Sec. 3. Referral to mediation.At the start of the pre-trial conference, the court shall
(PTMC)/TABOK WORKERS MULTIPURPOSE
inquire from the parties if they have settled the dispute; otherwise, the court shall
COOPERATIVE (TWMPC), Respondents.
immediately refer the parties or their counsel, if authorized by their clients, to the
G.R. No. 195443, September 17, 2014 - JUANARIO G. Philippine Mediation Center (PMC) unit for purposes of mediation. If not available, the
CAMPIT, Petitioner, v. ISIDRA B. GRIPA, PEDRO court shall refer the case to the clerk of court or legal researcher for mediation.
BARDIAGA, AND SEVERINO BARDIAGA, REPRESENTED
BY HIS SON ROLANDO BARDIAGA, Respondents. Mediation must be conducted within a non-extendible period of thirty (30) days from
receipt of notice of referral to mediation.
G.R. No. 196508, September 24, 2014 - LEONARDO
A. VILLALON AND ERLINDA TALDE-VILLALON, The mediation report must be submitted within ten (10) days from the expiration of the
Petitioners, v. AMELIA CHAN, Respondent. 30-day period.
G.R. No. 185267, September 17, 2014 - CESAR T. Sec. 4. Preliminary conference.If mediation fails, the court will schedule the continuance
QUIAMBAO AND ERIC C. PILAPIL, Petitioners, v. of the pre-trial. Before the scheduled date of continuance, the court may refer the case to
PEOPLE OF THE PHILIPPINES, ADERITO Z. YUJUICO
the branch clerk of court for a preliminary conference for the following purposes:
AND BONIFACIO C. SUMBILLA, Respondents.
chanRoblesvirtualLawlibrary

G.R. No. 187621, September 24, 2014 - MOUNT (a) To assist the parties in reaching a settlement;
CARMEL COLLEGE EMPLOYEES UNION
(MCCEU)/RUMOLO S. BASCAR, MARIBEL TESALUNA, xxxx
ROLANDO TESALUNA, KENNETH BENIGNOS, MARILYN
MANGULABNAN, EMELINA I. NACIONAL, JODELYN Sec. 5. Pre-trial conference; consent decree.The judge shall put the parties and their
REBOTON, EVERSITA S. BASCAR, MAE BAYLEN, ERNA E. counsels under oath, and they shall remain under oath in all pre-trial conferences.
MAHILUM, EVELYN R. ANTONES, Petitioners, v. MOUNT
CARMEL COLLEGE, INCORPORATED, Respondent. The judge shall exert best efforts to persuade the parties to arrive at a settlement of the
dispute. The judge may issue a consent decree approving the agreement between the
G.R. No. 183345, September 17, 2014 - MA. GRACIA
parties in accordance with law, morals, public order and public policy to protect the right
HAO AND DANNY HAO, Petitioners, v. PEOPLE OF THE
of the people to a balanced and healthful ecology.
PHILIPPINES, Respondent.

G.R. No. 187401, September 17, 2014 - MA. xxxx


ROSARIO P. CAMPOS, Petitioner, v. PEOPLE OF THE
PHILIPPINES AND FIRST WOMENS CREDIT Sec. 10. Efforts to settle.The court shall endeavor to make the parties to agree to
CORPORATION, Respondents. compromise or settle in accordance with law at any stage of the proceedings before
rendition of judgment. (Underscoring supplied.)
G.R. No. 180144, September 24, 2014 - LEONARDO
BOGNOT, Petitioner, v. RRI LENDING CORPORATION,
REPRESENTED BY ITS GENERAL MANAGER, DARIO J. The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the USS Port
BERNARDEZ, Respondent. Royal, ran aground about half a mile off the Honolulu Airport Reef Runway and remained stuck for four
days. After spending $6.5 million restoring the coral reef, the US government was reported to have paid
G.R. No. 200055, September 10, 2014 - STANDARD
the State of Hawaii $8.5 million in settlement over coral reef damage caused by the grounding.38
INSURANCE CO., INC., Petitioner, v. ARNOLD
cralawlawlibrary

CUARESMA AND JERRY B. CUARESMA, Respondents.


To underscore that the US government is prepared to pay appropriate compensation for the damage
G.R. No. 202838, September 17, 2014 - PEOPLE OF caused by the USS Guardian grounding, the US Embassy in the Philippines has announced the formation
THE PHILIPPINES, Plaintiff-Appellee, v. JULITO of a US interdisciplinary scientific team which will initiate discussions with the Government of the
GERANDOY, Accused-Appellant. Philippines to review coral reef rehabilitation options in Tubbataha, based on assessments by Philippine-
based marine scientists. The US team intends to help assess damage and remediation options, in
G.R. No. 172843, September 24, 2014 - ALFREDO L. coordination with the Tubbataha Management Office, appropriate Philippine government entities, non-
VILLAMOR, JR., Petitioner, v. JOHN S. UMALE, IN governmental organizations, and scientific experts from Philippine universities.39
SUBSTITUTION OF HERNANDO F. BALMORES,
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Respondent.; G.R. NO. 172881 - RODIVAL E. REYES,


A rehabilitation or restoration program to be implemented at the cost of the violator is also a major
HANS M. PALMA AND DOROTEO M. PANGILINAN,
Petitioners, v. HERNANDO F. BALMORES, Respondent. relief that may be obtained under a judgment rendered in a citizens suit under the Rules, viz: chanRoblesvirtualLawlibrary

G.R. No. 200729, September 29, 2014 - TEMIC


AUTOMOTIVE (PHILIPPINES), INC., Petitioner, v. RULE 5
RENATO M. CANTOS, Respondent.
Section 1. Reliefs in a citizen suit.If warranted, the court may grant to the plaintiff
A.M. No. RTJ-08-2140 (Formerly A.M. No. 00-2-86- proper reliefs which shall include the protection, preservation or rehabilitation of the
RTC), October 07, 2014 - OFFICE OF THE COURT environment and the payment of attorneys fees, costs of suit and other litigation
ADMINISTRATOR, Complainant, v. EXECUTIVE JUDGE expenses. It may also require the violator to submit a program of rehabilitation or
OWEN B. AMOR, REGIONAL TRIAL COURT, DAET, restoration of the environment, the costs of which shall be borne by the violator, or to
CAMARINES NORTE, Respondent. contribute to a special trust fund for that purpose subject to the control of the court.

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8/14/2017 G.R. No. 206510, September 16, 2014 - MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS

A.M. No. RTJ-14-2394 (Formerly OCA IPI No. 12- In the light of the foregoing, the Court defers to the Executive Branch on the matter of compensation
3847-RTJ), September 01, 2014 - GEORGE T. CHUA, and rehabilitation measures through diplomatic channels. Resolution of these issues impinges on our
Complainant, v. JUDGE FORTUNITO L. MADRONA, relations with another State in the context of common security interests under the VFA. It is settled that
Respondent. [t]he conduct of the foreign relations of our government is committed by the Constitution to the
executive and legislativethe political--departments of the government, and the propriety of what
G.R. No. 189812, September 01, 2014 - PEOPLE OF
THE PHILIPPINES, Plaintiff-Appellee, v. REYNALDO may be done in the exercise of this political power is not subject to judicial inquiry or decision.40
cralawlawlibrary

BATURI, Accused-Appellant.
On the other hand, we cannot grant the additional reliefs prayed for in the petition to order a review of
G.R. No. 200729, September 29, 2014 - TEMIC the VFA and to nullify certain immunity provisions thereof.
AUTOMOTIVE (PHILIPPINES), INC., Petitioner, v.
RENATO M. CANTOS, Respondent. As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora,41 the VFA was duly concurred
in by the Philippine Senate and has been recognized as a treaty by the United States as attested and
certified by the duly authorized representative of the United States government. The VFA being a valid
and binding agreement, the parties are required as a matter of international law to abide by its terms
and provisions.42 The present petition under the Rules is not the proper remedy to assail the
constitutionality of its provisions.

WHEREFORE, the petition for the issuance of the privilege of the Writ of Kalikasan is hereby DENIED.

No pronouncement as to costs.

SO ORDERED. cralawred

Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Perez, Reyes, and
Perlas-Bernabe, JJ., concur.
Sereno, C.J., see concurring opinion.
Mendoza, J., on official leave.
Leonen, J., see separate concurring opinion.
Jardeleza, J., no part.

3 Days in Ho Chi Minh


Endnotes:
Rooms, Transfers, Meals, More.
Local Tour Guides Ready to Help. 1 Tubbataha Reefs Natural Park .
Inquire Now.
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.

3 Days in Ho Chi 4Rollo, pp. 194-199.

Minh $99 5<http: manila.usembassy.gov="" pressphotoreleases2013=""


expresses-regret-concerning-uss-guardian-grounding.html="">.
navy-commander-

[6Joint Statement Between The Philippines And The United States On The USS Guardian
One Low Price. Everything Included. Grounding On Tubbataha Reef, February 5, 2013.Accessed at US Embassy website - .

7Rollo, pp. 89-92.


Book Now 8 Id. at 156-191. In a letter dated 27 May 2013, the DFAs 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 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 255.)

9 Id. at 215-247.

10Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA 244, 254, citing
David v. Macapagal-Arroyo, 522 Phil. 705, 755 (2006).

11 Id., citing Jumamil v. Cafe, 507 Phil. 455, 465 (2005), citing Integrated Bar of the
Philippines v. Zamora, 392 Phil. 618, 632-633 (2000).

12Biraogo 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 (2008); Tatad v. Secretary of the Department of Energy, 346
Phil. 321 (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 804-805.

15 Id. at 802-803.

16 See Annotation to the Rules of Procedure for Environmental Cases.

17Air Transportation Office v. Ramos, G.R. No. 159402, February 23, 2011, 644 SCRA 36,
41.

18 261 Phil. 777 (1990).

19 Id. at 790-792.

20 445 Phil. 250 (2003).

21 Id. at 269-270. Citations omitted.

22Id. at 268, citing J.L. Brierly, The Law of Nations, Oxford University Press, 6th Edition,
1963, p. 244.

23 Supra note 18, at 788-789 & 797.

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24 United States of America v. Ruiz, 221 Phil. 179, 182-183 & 184 (1985).

25 G.R. No. 90314, November 27, 1990, 191 SCRA 713.

26 Id. at 727-728.

27 24 FSupp. 2d 155, 159 (D.P.R. 1997).

28 Merlin M. Magallona, A Primer on the Law of the Sea, 1997, p. 1.

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 (July-
December 2002), p. 96.

30 Anne Bardin, Coastal States Jurisdiction Over Foreign Vessels 14 Pace Intl. Rev. 27,
28 (2002).

31 Id. at 29.

32 Art. 2, UNCLOS.

33Art. 29 of UNCLOS defines warship as a ship belonging to the armed forces of a State
bearing the external marks distinguishing such ships of its nationality, under the
command of an officer duly commissioned by the government of the State and whose
name appears in the appropriate service list or its equivalent, and manned by a crew
which is under regular armed forces discipline.

34 Commander Robert C. Rock De Tolve, JAGC, USN, At What Cost? Americas UNCLOS
Allergy in the Time of Lawfare, 61 Naval L. Rev. 1, 3 (2012).

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

36 See BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora, 396 Phil. 623, 652
(2000).

37 Rule 10, Rules of Procedure for Environmental Cases.

38 USS Port Royal (CG73) ;USS Port Royal Returns to Homeport , Navy Military
Home Page, Story Number NNS090211-02 Release Date: 2/11/2009 6:00 AM ; Navy,
state reach settlement on USS Port Royal damage, posted Feb. 05, 2011 8:26 AM .

39.

40Vinuya 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.

42Nicolas v. Secretary Romulo, et al., 598 Phil. 262, 280 & 285.

CONCURRING OPINION

SERENO, CJ:

I concur.

Sovereign immunity serves as a bar for the foreign sovereign to be subjected to the trial
process. Supported both by local jurisprudence, as as international law (which forms part
of the Philippine legal structure), the doctrine 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: chanRoblesvirtualLawlibrary

This Court explained the doctrine of sovereign immunity in Holy See v.


Rosario, to wit: chanRoblesvirtualLawlibrary

There are two conflicting concepts of sovereign immunity,


each widely held and firmly established. According to
the classical or absolute theory, a sovereign cannot,
without its consent, be made a respondent in the courts of
another sovereign. According to the newer or restrictive
theory, the immunity of the sovereign is recognized only with
regard to public acts or acts jure imperii of a state, but not
with regard to private acts or acts jure gestionis.

xxxx

The restrictive theory came about because of the entry of sovereign states
into purely commercial activities remotely connected with the discharge of
governmental functions. This is particularly true with respect to the
Communist states which took control of nationalized business activities
and international trading.

In JUSMAG v. National Labor Relations Commission, this Court affirmed the


Philippines adherence to the restrictive theory as follows: chanRoblesvirtualLawlibrary

The doctrine of state immunity from suit has undergone further


metamorphosis. The view evolved that the existence of a contract does not,
per se, mean that sovereign states may, at all times, be sued in local
courts. The complexity of relationships between sovereign states, brought

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about by their increasing commercial activities, mothered a more restrictive
application of the doctrine.

xxxx

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).

Since the Philippines adheres to the restrictive theory, it is crucial to


ascertain the legal nature of the act involved whether the entity
claiming immunity performs governmental, as opposed to
proprietary, functions. As held in United States of America v. Ruiz

The restrictive application of State immunity is proper only when the


proceedings arise out of commercial transactions of the foreign sovereign,
its commercial activities or economic affairs. Stated differently, a State may
be said to have descended to the level of an individual and can thus be
deemed to have tacitly given its consent to be sued only when it enters into
business contracts. It does not apply where the contract relates to the
exercise of its sovereign functions.1 (Emphases supplied. Citations omitted)

From the Philippine perspective, what determines its ability to impose its law upon the
foreign entity would be the act of the foreign entity on whether the act is an aspect of
its sovereign function or a private act.

In this case, the two Naval Officers were acting pursuant to their function as the
commanding officers of a warship, traversing Philippine waters under the authority of the
Visiting Forces Agreement (VFA). While the events beg the question of what the warship
was doing in that area, when it should have been headed towards Indonesia, its presence
in Philippine waters is not wholly unexplainable. The VFA is a treaty, and it has been
affirmed as valid by this Court in Bayan v. Zamora,2 and affirmed in Lim v. Executive
Secretary3 and Nicolas v. Romulo.4 It has, in the past, been used to justify the presence
of United States Armed Forces in the Philippines. In this respect therefore, acts done
pursuant to the VFA take the nature of governmental acts, since both the United States
and Philippine governments recognize the VFA as a treaty with corresponding obligations,
and the presence of these two Naval Officers and the warship in Philippine waters fell
under this legal regime.

From this, the applicability of sovereign immunity cannot be denied as to the presence of
the warship and its officers in Philippine waters. This does not, however, put an end to the
discussion, because even if immunity is applicable to their presence, the specific act of
hitting the Tubbataha Reef and causing damage thereto is a presumably tortuous act. Can
these kinds of acts also be covered by the principle of sovereign immunity?

TORT EXCEPTION

Under the regime of international law, there is an added dimension to sovereign immunity
exceptions: the tort exception. Whether this has evolved into a customary norm is still
debatable; what is important to emphasize is that while some states have enacted
legislation to allow the piercing of sovereign immunity in tortuous actions, the Foreign
Sovereign Immunities Act of 1976 of the United States (FSIA)5 contains such privilege.
Specifically, the FSIA contains exceptions for (1) waiver;6 (2) commercial activity;7 (3)
expropriation;8 (4) property rights acquired through succession or donation;9 (5)
damages for personal injury 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, or the provision of material support to such an act, if the state sponsors
terrorism;12 and (8) maritime lien in a suit for admiralty based on commercial
activity.13
cralawlawlibrary

Any claim under the FSIA goes through a hierarchical process between the diplomatic
channels of the United States and the forum state. However, by explicitly including the
tort exception in its local legislation under the 4th exception discussed above - with due
consideration to the heavy requirements for any doctrine to attain customary status - it
becomes plausible that the exception can be applied to the United 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 of customary


international law according to which states must deny sovereign
immunity in case of tortious acts committed by another country in the
forum state. Even though such an obligation is included in the ECSI and the
UNCJIS, a considerable number of states do not apply this exception. But
this does not answer the question whether states are prohibited from doing
so. Section 1605 of the FSIA, for example, denies immunity in cases in
which money damages are sought for personal injury or death, or
damage to or loss of property, occurring in the United States and caused by
the tortious act or omission of that foreign state. If sovereign immunity is
the default rule and all exceptions must reflect customary international law,
and if the tort exception has not yet evolved into custom, then states such
as the US, UK, Canada, and Australia that have included the tort exception
in their national immunity laws automatically violate international law a
conclusion which no commentator so far has suggested. But if states that
enact this exception as law do not violate international law, why
then should a state do so if its courts apply this exception not on
the basis of national law, but on the basis of how they construe and
interpret the doctrine of sovereign immunity under international
law?14 (Emphasis supplied)

What Finke suggests is that a local court need not find the tort exception concept in its
national law if it can interpret the doctrine from its understanding of international law.
Can the Philippines then interpret the exception as being part of its acceptance of general
principles of international law under the Constitution?15cralawlawlibrary

SOVEREIGN IMMUNITY AS A POLITICAL DECISION

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In Vinuya v. Romulo, we stated that the question whether the Philippine government
should espouse claims of its nationals against a foreign government is a foreign relations
matter, the authority for which is demonstrably committed by our Constitution not to the
courts but to the political branches.16 Immunity then, unlike in other jurisdictions, is
determined not by the courts of law but by the executive branches. Indeed, this was
extensively discussed in Chief Justice Punos concurring opinion in Liang v. People, to
wit:
chanRoblesvirtualLawlibrary

Petitioner's argument that a determination by the Department of Foreign


Affairs that he is entitled to diplomatic immunity is a political question
binding on the courts, is anchored on the ruling enunciated in the case of
WHO, et al. vs. Aquino, et al., viz:chanRoblesvirtualLawlibrary

It is a recognized principle of international law and


under our system of separation of powers that
diplomatic immunity is essentially a political question
and courts should refuse to look beyond a
determination by the executive branch of the
government, and where the plea of diplomatic immunity is
recognized and affirmed by the executive branch of the
government as in the case at bar, it is then the duty of the
courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government, the
Solicitor General in this case, or other officer acting under his
direction. Hence, in adherence to the settled principle
that courts may not so exercise their jurisdiction by
seizure and detention of property, as to embarrass the
executive arm of the government in conducting foreign
relations, it is accepted doctrine that in such cases the
judicial department of the government follows the
action of the political branch and will not embarrass
the latter by assuming an antagonistic jurisdiction.

This ruling was reiterated in the subsequent cases of International Catholic


Migration Commission vs. Calleja; The Holy See vs. Rosario, Jr; Lasco vs.
UN; and DFA vs. NLRC.

The case of WHO vs. Aquino involved the search and seizure of personal
effects of petitioner Leonce Verstuyft, an official of the WHO. Verstyft was
certified to be entitled to diplomatic immunity pursuant to the Host
Agreement executed between the Philippines and the WHO.

ICMC vs. Calleja concerned a petition for certification election filed against
ICMC and IRRI. As international organizations, ICMC and IRRI were
declared to possess diplomatic immunity. It was held that they are not
subject to local jurisdictions. It was ruled that the exercise of jurisdiction by
the Department of Labor over the case would defeat the very purpose of
immunity, which is to shield the affairs of international organizations from
political pressure or control by the host country and to ensure the
unhampered performance of their functions.

In Holy See v. Rosario, Jr. involved an action for annulment of sale of land
against the Holy See, as represented by the Papal Nuncio. The Court upheld
the petitioners defense of sovereign immunity. It ruled that where a
diplomatic envoy is granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action relating to private
immovable property situated in the territory of the receiving state, which
the envoy holds on behalf of the sending state for the purposes of the
mission, with all the more reason should immunity be recognized as
regards the sovereign itself, which in that case is the Holy See.

In Lasco vs. United Nations, the United Nations Revolving Fund for Natural
Resources Exploration was sued before the NLRC for illegal dismissal. The
Court again upheld the doctrine of diplomatic immunity invoked by the
Fund.

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

xxxx

Clearly, the most important immunity to an international official, in the


discharge of his international functions, is immunity from local jurisdiction.
There is no argument in doctrine or practice with the principle that an
international official is independent of the jurisdiction of the local authorities
for his official acts. Those acts are not his, but are imputed to the
organization, and without waiver the local courts cannot hold him liable for
them. In strict law, it would seem that even the organization itself could
have no right to waive an official's immunity for his official acts. This
permits local authorities to assume jurisdiction over and individual for 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 waive its own
immunity and appear in court, not the individual, except insofar as he
appears in the name of the organization. Provisions for immunity from
jurisdiction for official acts appear, aside from the aforementioned treatises,
in the constitution of most modern international organizations. The
acceptance of the principle is sufficiently widespread to be regarded as
declaratory of international law.17 (Emphasis supplied)

In this view, the prudent interpretation of the tort exception would be to allow the
executive branch to first determine whether diplomatic or sovereign immunity can be
invoked by the foreign officials involved. If it can be invoked, then the next analysis
should be whether this invoked immunity is absolute, as in the treatment of diplomatic
envoys. If it is not absolute, then and only then can the Court weave the tort exception
into the law of sovereign immunity and thus attain jurisdiction over the Naval Officers
involved. This is important because the practice has been to afford the foreign entity
absolute immunity, but withdraw the same from its personnel when they commit private

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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 its consent.18 According to Professor Ian Brownlie, it is a
procedural bar (not a substantive defence) based on the status and functions of the state
or official in question.19 Furthermore, its applicability depends on the law and
procedural rules of the forum state.20 In the recent judgment of the International Court of
Justice (ICJ) in the Jurisdictional Immunities of the State (Germany v. Italy: Greece
Intervening) case,21 the doctrine of sovereign immunity was applied in the following
context: chanRoblesvirtualLawlibrary

In 1995, successors in title of the victims of the Distomo massacre, committed by the
German armed forces in a Greek village in June 1944, brought proceedings for
compensation against Germany before the Greek courts. The Greek court ordered
Germany to pay compensation to the claimants. The appeal by Germany against that
judgment was dismissed by a decision of the Hellenic Supreme Court, which ordered
Germany to pay the costs of the appeal proceedings. The successful Greek claimants
under the first-instance and Supreme Court judgments applied to the Italian courts for
exequatur of those judgments, so as to be able to have them enforced in Italy. This was
allowed by the Florence Court of Appeal and confirmed by the Italian Court of Cassation.

Germany raised the dispute before the ICJ, claiming these decisions constituted violations
of its jurisdictional immunity.

The ICJ analyzed the case from the vantage point of immunity, such that the jurisdictional
immunity of states refers primarily to an immunity from the trial process and is thus
preliminary in character, as stated in the following manner: chanRoblesvirtualLawlibrary

At the outset, however, the Court must observe that the proposition that
the availability of immunity will be to some extent dependent upon the
gravity of the unlawful act presents a logical problem. 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.22 (Emphasis supplied)

The ICJ continued dissecting national law in order to determine whether jurisdictional
immunity could be defeated by reason of serious violations of human rights law or the law
of armed conflict. In this, the ICJ clearly saw that there was no customary international
law norm that led to the defeat of immunity by reason of these violations, including the
tort exception, viz: chanRoblesvirtualLawlibrary

Apart from the decisions of the Italian courts which are the subject of the
present proceedings, there is almost no State practice which might be
considered to support the proposition that a State is deprived of its
entitlement to immunity in such a case. Although the Hellenic Supreme
Court in the Distomo case adopted a form of that proposition, the Special
Supreme Court in Margellos repudiated that approach two years later. As
the Court has noted in paragraph 76 above, under Greek law it is the
stance adopted in Margellos which must be followed in later cases unless
the Greek courts find that there has been a change in customary
international law since 2002, which they have not done. As with the
territorial tort principle, the Court considers that Greek practice,
taken as a whole, tends to deny that the proposition advanced by
Italy has become part of customary international law.

In addition, there is a substantial body of State practice from other


countries which demonstrates that customary international law
does not treat a States 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.23 (Emphasis
supplied)

As things stand in the international sphere, the immunity of the state (and by extension,
its agents, in the performance of their governmental functions jure imperii) must stand
against even serious violations of international law, including breaches of
international environmental law (which is an aspect of human rights law as well). The ICJ
concluded 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 is accused of serious
violations of international human rights law or the international law of
armed conflict. In reaching that conclusion, the Court must emphasize that
it is addressing only the immunity of the State itself from the jurisdiction of
the courts of other States; the question of whether, and if so to what
extent, immunity might apply in criminal proceedings against an official of
the State is not in issue in the present case.24 chanrobleslaw

This does not mean that the act of the state is to be considered lawful. However, this also
does not mean that state immunity is waived in the context of an international breach of
even a jus cogens norm, as explained in this manner: chanRoblesvirtualLawlibrary

The rules of State immunity are procedural in character and are confined to
determining whether or not the courts of one State may exercise

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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 of the contemporary law
of State immunity to proceedings concerning events which occurred in
1943-1945 does not infringe the principle that law should not be applied
retrospectively to determine matters of legality and responsibility (as the
Court has explained in paragraph 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 Commissions Articles on State
Responsibility.25 chanrobleslaw

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 answering several questions, summated thusly: chanRoblesvirtualLawlibrary

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

2. In respect of the above question, has the executive branch, in the exercise of its
political power, determined whether absolute diplomatic immunity is applicable?

3. If it is an act jure imperii and thus entitled to sovereign immunity, does an


exception apply to withdraw the 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 is allowed by the VFA, and as a treaty privilege should be considered an
act jure imperii. Its deviation into the waters of Tubbataha, and whether this can be
considered a private act, is a factual issue that should be determined by the proper body.
Indeed, while Philippine authorities may not have authorized the deviation, if the United
States government affirms that it gave the Guardian sufficient discretion to determine its
course, then the act is not necessarily robbed of its jure imperii character and is thus
entitled to immunity. The course of action of the Philippine government would be to
engage in diplomatic negotiations for potential treaty breach liability.

As of this moment, the executive branch has not made a determination of the applicable
immunity. No correspondence has been sent to the Court as to the issue. Thus, the Court
must act in deference to the executive prerogative to first make this determination under
the presumption of regularity of performance of duties, before it can exercise its judicial
power.

Finally, no exception exists in Philippine or international law that would remove the
immunity of the United States in order to place it under the jurisdiction of Philippine
courts. The Writ of Kalikasan is a compulsory writ, and its issuance initiates a legal
process that would circumvent the internationally established rules of immunity. Should
the Court issue the Writ, it could possibly entail international responsibility for breaching
the jurisdictional immunity of a sovereign state.

I therefore vote to dismiss the Petition.

Endnotes:

1 G.R. No. 185572, February 07, 2012

2 G.R. No. 138570, October 10, 2000.

3 G.R. No. 151445, April 11, 2002.

4 G.R. No. 175888, February 11, 2009.

5 Pub. L. 94-583, 90 Stat. 2891, 28 U.S.C. Sec. 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).

14 JASPER FINKE, SOVEREIGN IMMUNITY: RULE, COMITY OR SOMETHING


ELSE?, Eur J Int Law (2010) 21(4), 863-864.

15 Article II, Sec. 2, 1987 CONSTITUTION.

16 G.R. No. 162230, April 28, 2010.

17 G.R. No. 125865, 26 March 2001.

18J-MAURICE ARBOUR & GENEVIEVE PARENTS, DROIT INTERNATIONAL


PUBLIC, 5th Ed., 331 (2006).

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19 JAMES CRAWFORD, BROWNLIES PRINCIPLES OF PUBLIC
INTERNATIONAL LAW, 8th Ed., 487 (2012).

20 Id. at 488.

21 JURISDICTIONAL IMMUNITIES OF THE STATE (Germany v. Italy),


Judgment (Feb 3, 2012).

22 Id. at 82.

23 Id. at 83-84.

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 our extraordinary
procedures in environmental cases in order to avoid their abuse. Abuse of our procedures
contributes to the debasement of the proper function of the remedies and invites
inordinate interference from this court from what may be technical and political decisions
that must be made in a different forum. Our sympathy for environmental concerns never
justifies our conversion to an environmental super body.

The writ of kalikasan is not an all-embracing legal remedy to be wielded like a political
tool. It is both an extraordinary and equitable remedy which assists to prevent
environmental catastrophes. It does not replace other legal remedies similarly motivated
by concern for the environment and the communitys ecological welfare. Certainly, when
the petition itself alleges that remedial and preventive remedies have occurred, the
functions of the writ cease to exist. In case of disagreement, parties need to exhaust the
political and administrative arena. Only when a concrete cause of action arises out of
facts that can be proven with substantial evidence may the proper legal action be
entertained.

Citizens suits are suits brought by parties suffering direct and substantial injuries;
although in the environmental field, these injuries may be shared with others. It is
different from class suits brought as representative suits under Oposa v. Factoran.1 In
my view, there is need to review this doctrine insofar as it allows a nonrepresentative
group to universally represent a whole population as well as an unborn generation binding
them to causes of actions, arguments, and reliefs which they did not choose. Generations
yet unborn suffer from the legal inability to assert against false or unwanted
representation.

Citizens suits are procedural devices that allow a genuine cause of action to be judicially
considered in spite of the social costs or negative externalities of such initiatives. This
should be clearly distinguished in our rules and in jurisprudence from class suits that
purport to represent the whole population and unborn generations. The former is in
keeping with the required constitutional protection for our people. The latter is dangerous
and should be used only in very extraordinary or rare situations. It may be
jurisprudentially inappropriate.

In my view, decisions relating to environmental concerns should be more balanced. It


must attend in a more sober way to the required balance of all interests. Hence, our rule
with respect to standing should require that parties bringing the suit are sufficiently and
substantially possessed of individual interest and capability so that they can properly
shape the issues brought before this court. The capability of the parties to bring suit can
readily be seen through the allegations made in their petition.

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

The doctrine of sovereign immunity evolves out of the theory and practice of sovereignty
and the principle par in parem non habet jurisdictionem. Its particular contours as an
international norm have evolved far beyond the form it took when the theory of absolute
sovereignty was current. Contemporarily, it is understood as a basic right extended to
states by other states on the basis of respect for sovereignty and independence.2 There
appears to be a consensus among states that sovereign immunity as a concept is legally
binding.3 However, there remains to be a lack of international agreement as to how it is
to be invoked and the extent of immunity in some cases.4 cralawlawlibrary

This vagueness arises from the debate on which among the sources of international law
the doctrine of sovereign immunity draws its binding authority and the content of the
doctrine given its source.

This doctrine of relative jurisdictional immunity (sovereign immunity) of states and their
agents becomes binding in our jurisdiction as international law only through Section 2 of
Article II or Section 21 of Article VII of the Constitution. Article XVII, Section 3 of the
Constitution is a limitation on suits against our state. It is not the textual anchor for
determining the extent of jurisdictional immunities that should be accorded to other states
or their agents. International law may have evolved further than the usual distinction
between acta jure imperii and acta jure gestionis. Indications of state practice even of
public respondents show that jurisdictional immunity for foreign states may not apply to
certain violations of jus cogens rules of international customary law. There can be tort
exemptions provided by statute and, therefore, the state practice of an agents sovereign
being sued in our courts.

International law does not also prohibit legislation that clarifies national policy and,

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therefore, our own considerations of state practice in relation to the limits of jurisdictional
immunities for other sovereigns. Neither does international law prohibit domestic courts
from shaping exceptions to jurisdictional immunity based upon our reading of the
Constitution as well as international and municipal law.

I am of the view, therefore, that this case be dismissed principally for its procedural
infirmities. We should reserve doctrinal exposition and declaration of the content of
jurisdictional immunities for other sovereigns and their agents when the proper cases
merit our attention and not yet unduly limit such jurisprudence in relation to the law of
the sea, municipal torts, and violations of international customary law of a jus cogens
character. The results in this case would have been different if initiated with the proper
remedy, by the proper parties in the proper court.

I
Procedural antecedents

This court was asked to issue a writ of kalikasan with temporary environmental protection
order or TEPO pursuant to Rule 7 of A.M. No. 09-6-8-SC, otherwise known as the Rules of
Procedure for Environmental Cases. Petitioners seek an immediate order from this
court: chanRoblesvirtualLawlibrary

1) for respondents to cease and desist all operations over the Guardian
grounding incident;

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

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

4) for respondents to assume responsibility for prior and future


environmental damage in general and under the Visiting Forces Agreement
(VFA);

5) for the temporary definition of allowable activities near or around the


Tubbataha Reefs [Natural] Park, but 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 an agreement on environmental guidelines and
accountability pursuant to the VFA;

7) for respondents and appropriate agencies to commence administrative,


civil, and criminal proceedings against erring officers and individuals;

8) for the declaration of exclusive criminal jurisdiction of Philippine


authorities over erring USS Guardian personnel;

9) for respondents to pay just and reasonable compensation in the


settlement of all meritorious claims for damages caused to the Tubbataha
Reefs;

10) for respondents to cooperate in securing the attendance of witnesses


and the collection and production of evidence, including objects connected
with the offenses related to the grounding of the Guardian;

11) for respondents US officials and their representatives to place a deposit


to the TRNP Trust Fund, as defined in Section 17 of RA 10067, as a bona
fide gesture towards full reparations;

12) for respondents to undertake rehabilitation measures for areas affected


by the grounding of the Guardian;

13) for respondents to publish on a quarterly basis the environmental


damage assessment, valuation, and valuation methods, in all stages of
negotiations to ensure transparency and accountability;

14) for the convention of a multisectoral technical working group that will
provide scientific and technical support to the Tubbataha Protected Area
Management Board (TPAMB);

15) for respondents Department of Foreign Affairs, Department of National


Defense, and the Department of Environmental and Natural Resources to
review the VFA and the Mutual Defense Treaty in light of the right to a
balanced and healthful ecology, and any violation related thereto;

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

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

18) for other just and equitable environmental rehabilitation measures and
reliefs.5 chanrobleslaw

Petitioners include representatives from peoples organizations, non-government


organizations, accredited public interest groups, environmental institutes, government
officials, and academicians.6 Respondents, on the other hand, are the American
commanding officers of the USS Guardian and the Balikatan 2013 Exercises, incumbent
Philippine government officials, and Philippine military officers involved, by virtue of their
office, in issues arising out of the grounding of the USS Guardian in Tubbataha Reefs and
its subsequent salvage.7 cralawlawlibrary

The USS Guardian is a fifth Avenger Class Mine Countermeasures, United States Navy
ship.8 The three diplomatic notes issued by the Embassy of the United States of America
in the Philippines dated December 3, 2012,9 December 31, 2012,10 and January 14,
201311 all sought clearance for the ship 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.12 cralawlawlibrary

Thus, on January 17, 2013, while en route to Makasaar, Indonesia, the USS Guardian ran

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aground in the Tubbataha Reefs south atoll, approximately 80 miles east-southeast of
Palawan.13 In a statement issued on January 25, 2013, US Ambassador to the
Philippines Harry K. Thomas expressed his regret over the incident, recognizing the
legitimate concerns over the damage caused to the reef.14 On February 5, 2013, a joint
statement was issued by the Philippines and the United States where the latter undertook
to provide compensation.15 On the same day, a salvage plan was submitted by a
Singaporean company contracted by the US Navy to conduct the USS Guardian salvage
operations.16 The salvage operations were completed on March 30, 2013.17 cralawlawlibrary

On April 17, 2013, petitioners filed the present petition for writ of kalikasan with prayer
for temporary environmental protection order (TEPO).

Acting on petitioners petition but without necessarily giving due course, this court on May
8, 2013 issued a resolution. The resolution a) required respondents, except the President
of the Republic of the Philippines, to comment within ten (10) days from notice of the
resolution; and b) held in abeyance the issuance of a TEPO.18 cralawlawlibrary

We note that on May 27, 2013, the Office of Legal Affairs of the Department of Foreign
Affairs sent a letter to this court, requesting that the notice of this courts resolution dated
May 8, 2013 be returned, as it was not an agent for the service of processes upon
American respondents.19 cralawlawlibrary

The pleadings presented the following issues: a) whether petitioners have legal standing
to file a petition for writ of kalikasan with prayer for temporary environmental protection
order (TEPO), and b) whether the doctrine of sovereign immunity applies to foreign
respondents.

Petitioners argued that they have locus standi.20 Having categorized the petition as a
citizen's suit, they alleged that they are representing others, including minors and
generations yet unborn in asserting their constitutional right to a balanced and healthful
ecology.21 Petitioners cited this courts ruling in Oposa v. Factoran that Article II, Section
16 of the 1987 Constitution was immediately enforceable. The pronouncement was
anchored on the premise that the right to a balanced and healthful ecology belonged to a
different category of rights altogether for it concerns nothing less than self-preservation
and self-perpetuation.22 cralawlawlibrary

Petitioners also alleged that the American respondents are not immune from suit.23
Citing Nicolas v. Romulo,24 they argued that Article V of the Visiting Forces Agreement or
VFA, which pertained to Criminal Jurisdiction,25 establishes a waiver of the US military
officers involved in the incident's26 immunity from suit in light of their violation of
Republic Act 10067, or the Tubbataha Reefs Natural Park (TRNP) Act of 2009,27 including
its entry in the area without 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 US federal statutes
clearly provide that American government agencies have statutorily waived their
immunity from any equitable action involving environmental damages.29 They referred
to both Resource Conservation and Recovery Act of 1976 (RCRA) and the Federal Tort
Claims Act (FTCA) as legal bases.30 cralawlawlibrary

Petitioners stated that RCRA waives sovereign immunity in citizens suits when a) there is
a need to enforce a permit, standard, or regulation; b) there is a need to abate an
imminent and substantial danger to health or the environment; or c) the United States
Environmental Protection Agency is required to perform a nondiscretionary duty.31 cralawlawlibrary

On the other hand, the FTCA provides that the U.S. Government is liable in tort in the
same manner and to the same extent as private individuals under like circumstances [but
only] if the laws of the state in which the wrongful act occurred provide recovery in similar
situations involving private parties.32 cralawlawlibrary

Petitioners also argued that the USS Guardian is liable in rem33 to the Philippines for
response costs and damages resulting from the destruction, loss, and injury caused to the
Tubbataha Reefs.34 Aside from not having had prior permit to enter the area, petitioners
pointed out that the American respondents had committed gross and inexcusable
negligence when it failed to utilize its technical expertise and equipment in preventing the
incident.35 It is their position that this necessarily rendered sovereign immunity
inapplicable to American respondents, even if they were acting within the scope of their
authority, office, or employment.36 cralawlawlibrary

II
The parties do not have legal standing

Petitioners brought this case as a citizens suit under the Tubbataha Reefs Natural Park Act
of 2009, in conjunction with the Rules of Procedure for Environmental Cases.37 cralawlawlibrary

Section 37 of the Tubbataha Reefs Natural Park Act of 2009 allows any citizen to file a
civil, criminal, or administrative case against: chanRoblesvirtualLawlibrary

(a) Any person who violates or fails to comply with the provisions of this
Act its implementing rules and regulations; or

(b) Those mandated to implement and enforce the provisions of this Act
with respect to orders, rules and regulations issued inconsistent with this
Act; and/or

(c) Any public officer who wilfully or grossly neglects the performance of an
act, specifically enjoined as a duty by this Act or its implementing rules and
regulations; or abuses his authority in the performance of his duty; or, in
any manner improperly performs his 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 alleged violator concerned and no appropriate action has
been taken thereon. The court shall exempt such action from the payment
of filing fees, upon prima facie showing of the non-enforcement or
violations complained of and exempt the plaintiff from the filing of an
injunction bond for the issuance of preliminary injunction. In the event that
the citizen should prevail, the court shall award reasonable attorney's fees,
moral damages and litigation costs as appropriate.

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While the Tubbataha Reefs Natural Park Act enumerates causes of action available against
duty-bearers, it does not specifically describe the parties who may file a case.

The environmental nature of this petition, based upon the alleged violation of the
Tubbataha Reefs Natural Park Act, by itself does not and should not automatically render
the Rules of Procedure for Environmental Cases applicable. At best, it must be reconciled
with rules on parties as contained in the Rules of Court. This is to preclude a situation
where the interpretation of the Rules of Procedure for Environmental Cases results in a
ruling inconsistent or contrary to established legal concepts. It is my position that unless
the remedy sought will serve the purpose of preventing an environmental catastrophe,
the traditional procedural route should be taken. This means that even in environmental
cases, Rule 3, Section 2, 3, or 12 of the 1997 Rules of Civil Procedure should still also
apply.

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 the party who


stands to be benefited or injured by the judgment in the suit, or the party
entitled to the avails of the suit. Unless otherwise authorized by law or
these Rules, every action must be prosecuted or defended in the name of
the real party in interest. (2a)38 chanrobleslaw

A real party in interest is a litigant whose right or interest stands to benefit or get injured
by the judgment of the case.39 The interest referred to must be material interest,
founded upon a legal right sought to be enforced.40 They bring a suit because the act or
omission of another has caused them to directly suffer its consequences.41 Simply put, a
real party in interest has a cause of action based 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:
chanRoblesvirtualLawlibrary

SEC. 3. Representatives as parties. Where the action is allowed to be


prosecuted or defended by a representative or someone acting in a
fiduciary capacity, the beneficiary shall be included in the title of the case
and shall be deemed to be the real party in interest. A representative may
be a trustee of an express trust, a guardian, an executor or administrator,
or a party authorized by law or these Rules. An agent acting in his own
name and for the benefit of an undisclosed principal may sue or be sued
without joining the principal except when 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 rule requires that the beneficiary be identified as he or she is deemed the
real party in interest.43 This means that acting in a representative capacity does not turn
into a real party in interest someone who is otherwise an outsider to the cause of action.

This rule enumerates who may act as representatives, including those acting in a fiduciary
capacity. While not an exhaustive list, it does set a limit by allowing only those who are
authorized by law or these Rules.44 In environmental cases, this section may be used
to bring a suit, provided that two elements concur: a) the suit is brought on behalf of an
identified party whose right has been violated, resulting in some form of damage, and b)
the representative authorized by law or the Rules of Court to represent the victim.

The citizens suit under the Rules of Procedure for Environmental Cases is a representative
suit. A citizens suit is defined: chanRoblesvirtualLawlibrary

SEC. 5. Citizen suit. Any Filipino citizen in representation of others,


including minors or generations yet unborn, may file an action to enforce
rights or obligations under environmental laws. Upon the filing of a citizen
suit, the court shall issue an order which shall contain a brief description of
the cause of action and the reliefs prayed for, requiring all interested parties
to manifest their interest to intervene in the case within fifteen (15) days
from notice thereof. The plaintiff may publish the order once in a
newspaper of a general circulation in the Philippines or furnish all affected
barangays copies of said order.

In my view, this rule needs to be reviewed. A citizens suit that seeks to enforce
environmental rights and obligations may be brought by any Filipino who is acting as a
representative of others, including minors or generations yet unborn.45 As
representatives, it is not necessary for petitioners to establish that they directly suffered
from the grounding of the USS Guardian and the subsequent salvage operations.
However, it is imperative for them to indicate with certainty the injured parties on whose
behalf they bring the suit. Furthermore, the interest of those they represent must be
based upon concrete legal rights. It is not sufficient to draw out a perceived interest from
a general, nebulous idea of a potential injury.

This is particularly important when the parties sought to be represented are minors and
generations yet unborn.

Minors and generations yet unborn is a category of real party in interest that was first
established in Oposa v. Factoran. In Oposa v. Factoran, this court ruled that the
representatives derived their personality to file a suit on behalf of succeeding generations
from "intergenerational responsibility."46 The case mirrored through jurisprudence the
general moral duty of the present generation to ensure the full enjoyment of a balanced
and healthful ecology by the succeeding generations.47 cralawlawlibrary

Since environmental cases necessarily involve the balancing of different types and
degrees of interests, allowing anyone from the present generation to represent others
who are yet unborn poses three possible dangers.

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First, they run the risk of foreclosing arguments of others who are unable to take part in
the suit, putting into question its representativeness. Second, varying interests may
potentially result in arguments that are bordering on political issues, the resolutions of
which do not fall upon this court. Third, automatically allowing a class or citizen's suit on
behalf of "minors and generations yet unborn" may result in the oversimplification of what
may be a complex issue, especially in light of the impossibility of determining future
generations true interests on the matter.

Decisions of this court will bind future generations. The unbridled and misguided use of
this remedy by supposed representatives may not only weaken the minors and unborns
ability to decide for themselves but may have unforeseen and unintended detrimental
effects on their interests.

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

. . . is an old axiom of law, dictated by wisdom and sanctified by age, 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 pervading every 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 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 subject the public peace and quiet to the
will and neglect of individuals and prefer the gratification of the litigious
disposition on the part of suitors to the preservation of the public
tranquillity and happiness.48 (Emphasis supplied, citation omitted)

The elements of res judicata are: chanRoblesvirtualLawlibrary

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

An absolute identity of the parties is not required for res judicata to apply, for as long as
there exists an identity or community of interest.50 cralawlawlibrary

Res judicata renders conclusive between the parties and their privies a ruling on their
rights, not just for the present action, but in all subsequent suits. This pertains to all
points and matters judicially tried by a competent court. The doctrine bars parties to
litigate an issue more than once, and this is strictly applied because the maintenance of
public order, the repose of society . . . require that what has been definitely determined
by competent tribunals shall be accepted as irrefragable legal truth.51 cralawlawlibrary

Considering the effect of res judicata, the ruling in Oposa v. Factoran has opened a
dangerous practice of binding parties 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 yet unborn will be unable 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 was need to call attention to
environmental concerns in light of emerging international legal principles. While
intergenerational responsibility is a noble principle, it should not be used to obtain
judgments that would preclude future generations from making their own assessment
based on their actual concerns. The present generation must restrain itself from
assuming that it can speak best for those who will exist at a different time, under a
different set of circumstances. In essence, the unbridled resort to representative suit will
inevitably result in preventing future generations from protecting their own rights and
pursuing their own interests and decisions. It reduces the autonomy of our children and
our childrens children. Even before they are born, we again restricted their ability to
make their own arguments.

It is my opinion that, at best, the use of the Oposa doctrine in environmental cases should
be allowed only when a) there is a clear legal basis for the representative suit; b) there
are actual concerns based squarely upon an existing legal right; c) there is no possibility
of any countervailing interests existing within the population represented or those that are
yet to be born; and d) there is an absolute necessity for such standing because there is a
threat of catastrophe so imminent that an immediate protective measure is necessary.
Better still, in the light of its costs and risks, we abandon the precedent all together.

Class suit

The same concern regarding res judicata also applies to a class suit.

Rule 3, Section 12 of the Rules of Court states: chanRoblesvirtualLawlibrary

SEC. 12. Class suit. When the subject matter of the controversy is one
of common or general interest to many persons so numerous that it is
impracticable to join all as parties, a number of them which the court finds
to be sufficiently numerous and representative as to fully protect the
interests of all concerned may sue or defend for the benefit of all. Any party
in interest shall have the right to intervene to protect his individual interest.
(12a)

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In Mathay et al. v. The Consolidated Bank and Trust Company,52 this court held that a
class suit must essentially contain the following elements: chanRoblesvirtualLawlibrary

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 class suit 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
other pleading initiating the class action should allege the existence of 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 Section 12, Rule 3, of the
Rules of Court in behalf of CMI subscribing stockholders" but did not state
the number of said CMI subscribing stockholders so that the trial court
could not infer, much less make sure 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
large number of parties before the court.

The statute also requires, as a prerequisite to a class suit, that the subject-
matter of the controversy be of common or general interest to numerous
persons. Although it has been remarked that the "innocent 'common
or general interest' 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 prosecuted,
and not the delict or wrong committed by the defendant."53
(Emphasis supplied, citations omitted)

The same case referred to the United States Federal Rules of Civil Procedure. After
having been raised by Mathay et al. as legal basis for its class suit, this court held: chanRoblesvirtualLawlibrary

. . . 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)

In a class suit, petitioners necessarily bring the suit in two capacities: first, as persons
directly injured by the act or omission complained of; and second, as representatives of
an entire class who have suffered the same injury. In order to fully protect all those
concerned, petitioners must show that they belong in the same universe as those they
seek to represent. More importantly, they must establish that, in that universe, they can
intervene on behalf of the rest.

These requirements equally apply in environmental cases.

Petitioners who bring the suit both for themselves and those they seek to represent must
share a common legal interest that is, the subject of the suit over which there exists a
cause of action is common to all persons who belong to the group.55 As a result, the
right sought to be enforced is enjoyed collectively, and not separately or individually.56
The substantial injury must have been suffered by both the parties bringing the suit and
the represented class.

However, it is recognized that any damage to the environment affects people differently,
rendering it impossible for the injury suffered to be of the same nature and degree for
each and every person. For instance, second-hand smoke from one who lights up a
cigarette may cause lung and other health complications of a much graver degree to
exposed commuters, compared to those who are kept insulated by well-maintained and
well-ventilated buildings. The same may be said for dumpsites along the shores of a bay.
The gravity of injury they cause to those whose source of livelihood is purely fishing in the
affected area would be entirely different from that suffered by an office worker.

The differences in effects, ranging from miniscule to grave, increase the possibility of

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free-riders in a case. This results in a negative externality: an environmental
management concept that delves into the effect of an individuals or firms action on
others.57 In this case, the effect on others is a disadvantage or an injury.

In most instances where this free-rider or negative externality exists, a suit is not filed
because the cost of maintaining and litigating outweighs the actual damage suffered due
to the act or omission of another. The theory is that bringing a class suit allows those
who are not as affected as petitioners, though they may share the same interest, to latch
their claim on someone else without any personal expense. There must be some
assurances, however, that the interests are the same and the arguments that should have
been brought by others who do not have the resources to bring the suit are properly
represented. This is why the rules allow courts to be liberal in assessing common
interest.

Another essential element of a class suit is that petitioners must be sufficiently numerous
and representative so as to fully protect the interest of all concerned. One of the dangers
of bringing a class suit is that while the parties environmental interest shares a common
legal basis, the extent and nature of that interest differ depending on circumstances.

In the case of Re: Request of the Plaintiffs, Heirs of the Passengers of the Doa Paz,58
which quoted Moores Federal Practice we noted: chanRoblesvirtualLawlibrary

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) for the numerosity of the
class members all should . . . (be) before the court. Included within the
true class suit . . . (are) the shareholders' derivative suit and 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 heavy burden of representation. All the
parties represented may not have consented to the agency imposed on them.

Courts, therefore, must ensure that the parties that bring the suit are sufficiently
numerous to ensure that all possible interests and arguments have been considered. The
community, class, group, or identity that is represented must be sufficiently defined so
that the court will be able to properly assess that the parties bringing the suit are properly
representative.

In view of the technical nature of some environmental cases, not only should the parties
be representative in terms of the interests and arguments that they bring, they must
likewise show that they have the capability to bring reasonably cogent, rational, scientific,
well-founded arguments. This is so because if they purportedly represent a community,
class, group, or identity, we should assume that all those represented would have wanted
to argue in the best possible manner.

The cogency and representativeness of the arguments can readily be seen in the initiatory
pleading. In the special civil actions invoked in this case, this court has the discretion to
scrutinize the initiatory pleading to determine whether it should grant due course prior or
after the filing of a comment. In my view, this pleading falls short of the requirement of
representativeness.

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

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

The facts in this case and the writ of kalikasan certainly have no bearing on why this court
should issue an injunction against all port calls in any part of the country made by all
kinds of ships even if this is related to the Balikatan exercises. War games even
undertaken solely on land has no bearing on the subject matter of this case. Also, in the
facts as alleged in the pleading, it is not clear how all those affected by the ecological
mishap that may have occurred in the Tubbataha Reefs would also be interested in
stopping war games under the Balikatan. The pleading asserts that it represents all
generations yet unborn. Thus, it includes the sons and daughters of all government
officials who are now involved in the Balikatan exercises. It also includes the military
commanders who are now administering such exercise. The broad relief requested belies
the representativeness of the suit.

Of similar nature are the following prayers for relief in the petition: chanRoblesvirtualLawlibrary

4) for respondents to assume responsibility for prior and future


environmental damage in general and under the Visiting Forces Agreement
(VFA);

5) for the temporary definition of allowable activities near or around the


Tubbataha Reefs [Natural] Park, but 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 an agreement on environmental guidelines and
accountability pursuant to the VFA;

....

8) for the declaration of exclusive criminal jurisdiction of Philippine


authorities over erring USS Guardian personnel;

....

14) for the convention of a multisectoral technical working group that will
provide scientific and technical support to the Tubbataha Protected Area

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Management Board (TPAMBl);

15) for respondents Department of Foreign Affairs, Department of National


Defense, and the Department of Environmental and Natural Resources to
review the VFA and the Mutual Defense Treaty in light of the right to a
balanced and healthful ecology, and any violation related thereto;

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

17) for permission to resort to continuing discovery measures

Not all environmental cases need to be brought as class suits. There is no procedural
requirement that majority of those affected must file a suit in order that an injunctive writ
or a writ of kalikasan can be issued. It is sufficient that the party has suffered its own
direct and substantial interest, its legal basis is cogent, and it has the capability to move
forward to present the facts and, if necessary, the scientific basis for its analysis for some
of these cases to be given due course.

Parenthetically, the humility of bringing suits only in the name of petitioners will protect
them from the charge that more than the legal arguments they want to bring, they also
want to impose their own political views as views which are universally accepted.

In all environmental cases, it is also not necessary that generations yet unborn be
represented. It is not also necessary that minors bring the suit. In my view, pleading
their interests have no value added to the case except for its emotive effect at the risk of
encouraging a paternal attitude toward our children and for those belonging to
generations yet unborn. Certainly, it was not necessary with respect to the putative cause
of action relating to the grounding of the USS Guardian.

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

III
A petition for a writ of kalikasan
is a wrong remedy

Rule 7, Part III of the Rules of Procedure for Environmental Cases pertaines to the writ of
kalikasan. It describes the nature of the writ: chanRoblesvirtualLawlibrary

Section 1. Nature of the writ. - The writ is a remedy available to a


natural or juridical person, entity authorized by law, peoples organization,
non-governmental organization, or any public interest group 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 public official or employee, or private individual or entity,
involving environmental damage of such magnitude as to prejudice
the life, health or property of inhabitants in two or more cities or
provinces. (Emphasis supplied)

The writ of kalikasan is a remedy that covers environmental damages the magnitude of
which transcends both political and territorial boundaries.60 It specifically provides that
the prejudice to life, health, or property caused by an unlawful act or omission of a public
official, public employee, or a private individual or entity must be felt in at least two cities
or provinces.61 The petition for its issuance may be filed on behalf of those whose right
to a balanced and healthful ecology is violated, provided that the group or organization
which seeks to represent is duly accredited.62 cralawlawlibrary

Two things must be examined: first, whether petitioners are qualified to bring this suit
under the requirements of the provisions; and second, whether there are actual injured
parties being represented. On the first issue, the following 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.D66
Giovanni Tapang, Ph.D67
Jose Enrique Africa68
Nestor Baguinon69
A. Edsel Tupaz70

The following petitioners represent organizations: chanRoblesvirtualLawlibrary

Clemente Bautista Jr., Coordinator of Kalikasan People's Network for the


Environment71
Maria Carolina Araullo, Chairperson of Bagong Alyansang Makabayan (Bayan)72
Renato Reyes Jr., Secretary-General of Bagong Alyansang Makabayan (Bayan)73
Hon. Neri Javier Colmenares, Representative of Bayan Muna Party-list74
Roland Simbulan, Ph.D., Junk VFA Movement75
Hon. Raymond Palatino, Representative of Kabataan Party-list76
Peter Gonzales, Vice Chairperson of Pambansang Lakas ng Kilusang
Mamamalakaya ng Pilipinas (Pamalakaya)77
Elmer Labog, Chairperson of Kilusang Mayo Uno78
Joan May Salvador, Secretary-General of Gabriela79
Theresa Concepcion, Earth Island Institute80
Mary Joan Guan, Executive Director for Center for Women's Resources81

Petitioners satisfy the first requirement as they comprise both natural persons and groups
duly recognized by the government. It is doubtful, however, whether there are actual
injured parties being represented. As discussed previously, a citizen's suit on an

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environmental issue must be resorted to responsibly.

Petitioners in this case also seek the issuance of a temporary environmental protection
order or TEPO. Rule 7, Part III of the Rules of Procedure for Environmental Cases
provides:chanRoblesvirtualLawlibrary

SEC. 8. Issuance of Temporary Environmental Protection Order (TEPO). If


it appears from the verified complaint with a prayer for the issuance of an
Environmental Protection Order (EPO) that the matter is of extreme
urgency and the applicant will suffer grave injustice and irreparable
injury, the executive judge of the multiple-sala court before raffle or the
presiding judge of a single-sala court as the case may be, may issue ex
parte a TEPO effective for only seventy-two (72) hours from date of the
receipt of the TEPO by the party or person enjoined. Within said period, the
court where the case is assigned, shall conduct a summary hearing to
determine whether the TEPO may be extended until the termination of the
case.

The court where the case is assigned, shall periodically monitor the
existence of acts that are the subject matter of the TEPO even if issued by
the executive judge, and may lift the same at any time as circumstances
may warrant.

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

A TEPO is an order which either directs or enjoins a person or government agency to


perform or refrain from a certain act, for the purpose of protecting, preserving, and/or
rehabilitating the environment.82 The crucial elements in its issuance are the presence of
"extreme urgency" and "grave injustice and irreparable injury" to the applicant.83 cralawlawlibrary

Petitioners hinge the basis for this prayer on the salvage operations conducted
immediately after the incident. The remedy is no longer available considering that all
activities to remove the grounded USS Guardian have been concluded.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 damaged area.85 This notice also
prohibited "leisure trips to Tubbataha" and advised "all watercrafts transitting the vicinity
to take precautionary measures." 86 cralawlawlibrary

In light of the facts of this case, I vote that the petition be 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 as sovereign 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 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 states otherwise known as the doctrine of sovereign immunity.

The doctrine of sovereign immunity can be understood either as a domestic or an


international concept.87 cralawlawlibrary

As a domestic concept, sovereign immunity is understood as the non-suability of the


state. In the case of the Republic of the Philippines as a State, this is contained in Article
XVI, Section 3 of the 1987 Philippine Constitution, which provides that "[the] State may
not be sued without its consent."

In Air Transportation Office v. Spouses Ramos,88 this court underscored the practical
considerations underlying the doctrine: chanRoblesvirtualLawlibrary

Practical considerations dictate the establishment of an immunity


from suit in favor of the State. Otherwise, and the State 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,
citation omitted)

The textual reference to [the] State in Article XVI, Section 3 of the Constitution does not
refer to foreign governments. Rather, as a doctrine in international law, the concept of
sovereign immunity is incorporated into our jurisdiction as international custom or general
principle of international law through Article II, Section 2, which provides: chanRoblesvirtualLawlibrary

Section 2. The Philippine renounces war as an instrument of national policy,


adopts the generally 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.90 chanrobleslaw

Alternatively, should there be an international agreement or a treaty91 that articulates the


scope of jurisdictional immunity for other sovereigns, then it can be incorporated through
Article VII, Section 21, which provides: chanRoblesvirtualLawlibrary

No treaty or international agreement shall be valid and effective unless


concurred in by at least two-thirds of all the Members of the Senate.

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In Republic of Indonesia v. Vinzon,92 this court ruled that [the] rule that a State may not
be sued without its consent is a necessary consequence of the principles of independence
and equality of States.93 However, it did not make any reference to Article XVI, Section
3 of the Constitution. Instead, it used Article II, Section 294 as basis for its
discussion:chanRoblesvirtualLawlibrary

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 a State 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 practical justification for the doctrine of sovereign
immunity is that there can be no legal right against the authority that
makes the law on which the 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
over one another. A contrary attitude would "unduly vex the peace of
nations.95 (Emphasis supplied, citations omitted)

V
Sovereign immunity under international law

Under international law, sovereign immunity remains to be an abstract concept. On a


basic level, it is understood as a basic right extended to states by other states on the
basis of respect for sovereignty and independence.96 There appears to be a consensus
among states that sovereign immunity as a concept is legally binding.97 Nevertheless,
legal scholars observe that there remains to be a lack of agreement as to how it is to be
invoked or exercised in actual cases.98 Finke presents: chanRoblesvirtualLawlibrary

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 (Emphasis supplied, citations omitted)

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

Article 38(1) of the Statute of the International Court of Justice (ICJ Statute)100
enumerates the classic sources of international law:101 cralawlawlibrary

The Court, whose function is to decide in accordance with international 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 various
nations, as subsidiary means for the determination of rules of law.

International conventions, or treaties, are international agreement[s] concluded between


States in written form and governed by international law, whether embodied in a single
instrument, or in two or more related instruments and whatever its particular
designation.102 International custom, or customary international law, pertains to
principles, not necessarily expressed in treaties, resulting from practices consistently
followed by states due to a sense of legal obligation.103 General principles of law
recognized by civilized nations are "(those) principles of law, private and public, which
contemplation of the legal experience of civilized nations leads one to regard as obvious
maxims of jurisprudence of a general and fundamental character."104 cralawlawlibrary

Sovereign immunity under treaty law

Attempts have been made to establish sovereign immunity under treaty law.105 On a
multilateral level, two treaties on this issue have been codified: a) the European
Convention on State Immunity (ECSI), and b) the UN Convention on Jurisdictional
Immunities of States (UNCJIS).

The European Convention on State Immunity is a treaty established through the Council
of Europe on May 16, 1972.106 In the Council of Europe's explanatory report, sovereign
immunity is defined as "a concept of international law, which has developed out of the
principle par in parem non habet imperium, by virtue of which one State is not subject to
the jurisdiction of another State."107 The treaty arose out of the need to address cases
where states become involved in areas of private law: chanRoblesvirtualLawlibrary

For many years State immunity has occupied the attention of eminent
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 stated above 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

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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
of opinion causes difficulties in international relations. States whose courts
and administrative authorities apply the theory of absolute State immunity
are led to call for the same treatment abroad. (Emphasis supplied)

However, the European Convention on Sovereign Immunity's application is limited to the


signatories of the treaty: chanRoblesvirtualLawlibrary

The Convention requires each Contracting State to give effect to judgments


rendered against it by the courts of another Contracting State. 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 exercise of jurisdiction against non-Contracting
States in Contracting States, and vice versa.

On the other hand, the UN Convention on Jurisdictional Immunities of States108 is a


treaty adopted by the UN General Assembly in December 2004. It was opened for
signature on January 27, 2005, but is yet to be in force109 for lacking the requisite
number of member-state signatories.110 At present, it only has 28 signatories, 16 of
which have either ratified, accepted, approved, or acceded to the treaty.111 cralawlawlibrary

UNCJIS refers to jurisdictional immunities of states as a principle of customary


international law.112 Scholars, however, point out that this posture is not accurate.
According to Nagan and Root:113 cralawlawlibrary

It may be true that all states recognize jurisdictional immunity, but as


we have already alluded to, that is so only at an abstract level; there is
substantial disagreement on detail and substance.114 (Emphasis
supplied, citations omitted)

Wiesinger adds: chanRoblesvirtualLawlibrary

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 connection requirement of property
serving commercial purposes with the entity against which the claim was
directed, which is a novelty in international law.115 (Emphasis supplied)

The Philippines has neither signed nor ratified the UNCJIS. Article VII, Section 21 of the
Constitution clearly provides the legal requisites to a valid and enforceable international
treaty: "No treaty or international agreement shall be valid and effective unless concurred
in by at least two-thirds of all the Members of the Senate."

Senior Associate Justice Antonio T. Carpio ably points to the UN Convention on the Law of
the Sea (UNCLOS) as basis for the waiver of sovereign immunity in this case, on account
of a warship entering a restricted area and causing damage to the TRNP reef system.
This is based on a reading of Articles 31 and 32 of the UNCLOS, thus: chanRoblesvirtualLawlibrary

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.

This is, however, subject to Article 32 of the same treaty which provides: chanRoblesvirtualLawlibrary

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.

I agree that the UNCLOS does provide an opening clarifying the international
responsibility of the flag ship for non-compliance by a warship with the laws of a coastal
State. However, because of Article 32 of the same treaty, it would seem that it should not
be the only basis for this court to infer either a waiver by the United States or authority
under international law for domestic courts to shape their own doctrines of sovereign
jurisdictional immunity.

Other international agreements

The text of Article VII, Section 21 would seem to require Senate concurrence for treaties
and international agreements. The term international agreements, however, for
purposes of granting sovereign immunity, should not cover mere executive agreements.

We are aware of Bayan Muna v. Romulo116 where the ponente for this court held: chanRoblesvirtualLawlibrary

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. . . 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 it violates the Constitution.
Authorities are, however, agreed that one is distinct from another for
accepted reasons apart from the concurrence-requirement aspect. As has
been observed by US constitutional scholars, a treaty has greater "dignity"
than an executive agreement, because its constitutional efficacy is beyond
doubt, a treaty having behind it the authority of the President, the Senate,
and the people; a ratified treaty, unlike an executive agreement, takes
precedence over any prior statutory enactment.117 (Emphasis supplied,
citations omitted)

This statement, however, should be confined only to the facts of that case. Executive
agreements are not the same as treaties as a source of international law. It certainly may
have a different effect in relation to our present statutes unlike a treaty that is properly
ratified.

Due to the nature of respondents' position in the United States Armed Forces, the Visiting
Forces Agreement of 1998 (VFA) is relevant in this case. In particular, the question of
whether the VFA, executed between the Republic of the Philippines and the United States
government, may be treated as a "treaty" upon which the doctrine of foreign sovereign
immunity is founded must be addressed.

In BAYAN v. Zamora,118 this court tackled the issues pertaining to the constitutionality of
the VFA. It was described as "consist[ing] of a Preamble and nine (9) Articles, [and it]
provides for the mechanism for regulating the circumstances and conditions under which
[the] US Armed Forces and defense personnel maybe present in the Philippines. . . .
"119cralawlawlibrary

As a preliminary issue, this court ruled that the Senate concurrence as required by the
Constitution was achieved, thereby giving VFA a legally binding effect upon the
government.120 However, the agreement's characterization as a "treaty" was put in
question. This court held that despite the non-concurrence of the United States Senate,
the VFA is validly categorized as a treaty: chanRoblesvirtualLawlibrary

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 other contracting state, the
United States of America in this case, to submit the VFA to the United
States Senate for concurrence pursuant to its Constitution, is to accord
strict meaning to the phrase.

Well-entrenched is the principle that the words used in the Constitution are
to be given their ordinary meaning except where technical terms are
employed, in which case the significance thus attached to them prevails. Its
language should be understood in the sense they have in common 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 States in written form and
governed by international law, whether embodied in a single instrument or
in two or more related instruments, and whatever its particular
designation." There are many other terms used for a treaty or international
agreement, some of which are: act, protocol, agreement, compromis d
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 international agreements
included under the general term treaty have little or no legal significance.
Certain terms are useful, but they furnish little more 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.

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 States
government has fully committed to living up to the terms of the VFA. For as
long as the United States of America accepts or acknowledges the VFA as a
treaty, and binds itself further to comply with its obligations under the

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treaty, there is indeed marked compliance with the mandate of the
Constitution.121 (Emphasis supplied, citations omitted)

Under the US legal system, however, an executive agreement, while legally binding, may
not have the same effect as a treaty. It may, under certain circumstances, be considered
as inferior to US law and/or Constitution. According to Garcia:122 cralawlawlibrary

Under the U.S. legal system, international agreements can be entered into
by means of a treaty or an executive agreement. The Constitution allocates
primary responsibility for entering into such agreements to the executive
branch, but Congress also plays an essential role. First, in order for a treaty
(but not an executive agreement) to become binding upon the United
States, the Senate must provide its advice and consent to treaty ratification
by a two-thirds majority. Secondly, Congress may authorize congressional-
executive agreements. Thirdly, many treaties and executive agreements are
not self-executing, meaning that implementing legislation is required to
provide U.S. bodies with the domestic legal authority necessary to enforce
and comply with an international agreements provisions.

The status of an international agreement within the United States


depends on a variety of factors. Self-executing treaties have a status
equal to federal statute, superior to U.S. state law, 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 also figure into the effect of an executive
agreement in the United States. Garcia adds: chanRoblesvirtualLawlibrary

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 the entry of such an agreement.
Although executive agreements are not specifically discussed in the
Constitution, they nonetheless have been considered valid international
compacts under Supreme Court jurisprudence and as a matter of historical
practice.

....

Sole executive agreements rely on neither treaty nor congressional


authority to provide for their legal basis. The Constitution may confer
limited authority upon the President to promulgate such agreements on the
basis of his foreign affairs power. If the President enters into an executive
agreement pursuant to and dealing with an area where he has clear,
exclusive constitutional authority such as an agreement to recognize a
particular foreign government for diplomatic purposes the agreement is
legally permissible regardless of Congresss opinion on the matter. If,
however, the President enters into an agreement and his constitutional
authority over the agreements subject matter is unclear, a reviewing court
may consider Congresss position in determining whether the agreement is
legitimate. If Congress has given its implicit approval to the President
entering the agreement, or is silent on the matter, it is more likely that the
agreement will be deemed valid. When Congress opposes the agreement
and the Presidents constitutional authority to enter the agreement is
ambiguous, it is unclear if or when such an agreement would be given
effect.124 (Emphasis supplied, citation omitted)

The recognition of the complex nature and legal consequences of an executive agreement
entered into by the United States with another State must not be taken lightly. This is
especially in light of the invocation of "international comity", which loosely refers to
"applying foreign law or limiting domestic jurisdiction out of respect for foreign
sovereignty."125cralawlawlibrary

As it stands, international comity is by itself no longer a simple matter. In quoting an


1895 US case, Hilton v. Guyot,126 Paul argues that at the beginning of the 20th century,
the underlying principle of international comity was the respect afforded by one sovereign
to another. At present, however, Paul posits: chanRoblesvirtualLawlibrary

For all these reasons, international comity would seem to be too


vague, incoherent, illusory, and ephemeral to serve as a foundation for
U.S. private international law. Yet, it is precisely these 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 a discretionary doctrine that empowered courts to decide when
to defer to foreign law out of respect for foreign sovereigns. Comity has
become a rule that obligates courts to apply foreign law in certain
circumstances. Second, the object of comity has changed. Whereas once
courts justified applying foreign law out of deference to foreign sovereigns,
courts later justified their decisions out of deference to the autonomy of
private parties or to the political branches. Most recently, courts have
justified limits on domestic law out of deference to the global market. Third,
the function of comity has changed. Comity is no longer merely a
doctrine for deciding when to apply foreign law; it has become a
justification for deference in a wide range of cases concerning prescriptive,
adjudicatory, and enforcement jurisdiction. (Emphasis supplied, citation
omitted)

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On a substantive note, another issue raised in BAYAN v. Zamora is whether the VFA
amounted to an abdication of Philippine sovereignty insofar as the jurisdiction of local
courts "to hear and try offenses committed by US military personnel"127 was concerned.
Upon finding at the outset that the VFA did not amount to grave abuse of discretion, this
court no longer proceeded to rule on this matter: chanRoblesvirtualLawlibrary

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 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 distinct boundaries and limits the
metes and bounds within which each of the three political branches of
government may exercise the powers exclusively and essentially conferred
to it by law.128 (Emphasis supplied)

In sum, the extent of the VFA's categorization as between the Philippine and United
States government either as a "treaty"/"executive agreement" or as a matter subject to
international comity remains vague. Nevertheless, it is certain that the United States
have made a political commitment to recognize the provisions and execute their
obligations under the VFA. This includes respecting jurisdictional issues in cases involving
an offense committed by a US military personnel.

Sovereign immunity as
customary international law

Customary international law traditionally pertains to: chanRoblesvirtualLawlibrary

. . . 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 as opinio juris, is the central concept of CIL.
Because opinio juris refers to the reason why a nation acts in accordance
with a behavioral regularity, it is often described as the psychological
element of CIL. It is what distinguishes a national act done voluntarily or
out of comity from one that a nation follows because required to do so by
law. Courts and scholars say that a longstanding practice among nations
ripens or hardens into a rule of CIL when it becomes accepted by
nations as legally binding.129 (Emphasis supplied, citation omitted)

Nagan and Root130 categorize the doctrine of sovereign immunity as a customary rule of
international law. They argue that the doctrine, which is also referred to as jurisdictional
immunity, "has its roots in treaties, domestic statutes, state practice, and the writings of
juris consults".131 Quoting United States law,132 Nagan and Root state: chanRoblesvirtualLawlibrary

. . . 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, a state or state
instrumentality is immune from the jurisdiction of the courts of another
state . . . . The Restatement further states unambiguously that the rule of
sovereign immunity is an undisputed principle of international law. . . .

The doctrine of sovereign immunity is one of the older concepts in


customary international law. . . .133 (Emphasis supplied, citation
omitted)

While the doctrine in itself is recognized by states, they do so only in abstraction.134 cralawlawlibrary

There appears to be a general recognition that foreign states are to be afforded immunity
on account of equality of states, but the "practice" lacks uniformity. Finke points out that
the doctrine as exercised by different states suffers from "substantial disagreement on
detail and substance."135 The inconsistencies in state practice render the possibility of
invoking international comity even more problematic.

The legislation of other states highlight the differences in specific treatment of sovereign
immunity. For instance, the United States Foreign Sovereign Immunities Act (FSIA) of
1978 was enacted in order to render uniform determinations in cases involving sovereign
immunity.136 While it recognizes sovereign immunity, it provides the following
exceptions:chanRoblesvirtualLawlibrary

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


jurisdiction of the courts of the United States, but sets forth several
limited exceptions. The primary exceptions are

1. waiver (the foreign state has waived its immunity either expressly or
by implication),

2. commercial activity (the action is based upon a commercial activity


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)

The United Kingdom State Immunity Act of 1978 also recognizes general immunity from
jurisdiction, subject to the following exceptions: a) submission to jurisdiction;137 b)
commercial transactions and contracts to be performed in the United Kingdom;138 c)
contracts of employment;139 d) personal injuries and damage to property;140 e)

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ownership, possession, and use of property;141 f) patents, trademarks, etc.;142 g)
membership of bodies corporate, etc.;143 h) arbitration;144 i) ships used for commercial
purposes;145 and value-added tax, customs duties, etc.146 cralawlawlibrary

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

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

Two cases are relevant for the purpose of discussing sovereign immunity as an
international customary norm: the International Court of Justice's decision in Germany v.
Italy, and the International Tribunal for the Law of the Sea's procedural order on the Ara
Libertad case. While stare decisis does not apply, these are nevertheless instructive in
understanding the status of sovereign immunity in international law.

The issue of sovereign immunity as invoked between two States was dealt with in the
2012 case of Jurisdictional Immunities of the State (Germany v. Italy).148 This arose out
of a civil case brought before Italian domestic courts, seeking reparations from Germany
for grave breaches of international humanitarian law during World War II.149 The Italian
Court of Cassation held that it had jurisdiction over the claims on the ground that state
immunity was untenable if the act complained of was an international crime.150
Thereafter, an Italian real estate owned by Germany was attached for execution.151 As a
result, Germany brought the case before the International Court of Justice, questioning
the legality of the judgment rendered by the Italian court. It based its claim on state
immunity.152 cralawlawlibrary

The International Court of Justice ruled that Italy had violated customary international law
when it took cognizance of the claim against Germany before its local courts.153 It held
that: chanRoblesvirtualLawlibrary

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 inter- national
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 decide to accord an immunity more extensive than that required
by international law, for present purposes, the point is that the grant of
immunity in such a case is not accompanied by the requisite opinio juris
and therefore sheds no light upon the issue currently under consideration
by the Court.

56. Although there has been much debate regarding the origins of State
immunity and the identification of the principles underlying 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 international 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 claiming immunity 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. Immunity may represent a departure from the principle of
territorial sovereignty and the jurisdiction which flows from it. (Emphasis
supplied)154 chanrobleslaw

The International Court of Justice deemed it unnecessary to discuss the difference


between the application of sovereign immunity in sovereign acts (jus imperii) and non-
sovereign activities (jus gestionis) of a State.155 As to the argument that a serious
violation of international law or peremptory norms (jus cogens) is an exception to
sovereign immunity, the International Court of Justice held that: chanRoblesvirtualLawlibrary

82. At the outset, however, the Court must observe that the proposition
that the availability of immunity will be to some extent dependent upon the
gravity of the unlawful act presents a logical problem. Immunity from
jurisdiction is an immunity not merely from being subjected to an
adverse judgment but from being subjected to the trial process. It

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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 a State is not entitled to
immunity in the case of serious violations of human rights law or the law of
armed conflict. Apart from the decisions of the Italian courts which are the
subject of the present proceedings, there is almost no State practice which
might be considered to support the proposition that a 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 States 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 of Iran, Court of Appeal of Ontario, [2004] Dominion Law
Reports (DLR), 4th Series, Vol. 243, p. 406; ILR, Vol. 128, p. 586;
allegations of torture), France (judgment of the Court of Appeal of Paris, 9
September 2002, and Cour de cassation, No. 02-45961, 16 December
2003, 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 X case) and Cour de cassation, No.
04-47504, 3 January 2006 (the Grosz case); allegations of crimes against
humanity), Slovenia (case No. Up-13/99, Constitutional Court of Slovenia;
allegations of war crimes 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 of International Law, Vol. XXX,
2010, p. 299; allegations of war crimes 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).

....

93. This argument therefore depends upon the existence of a conflict


between a rule, or rules, of jus cogens, and the rule of customary law which
requires one State to accord immunity to another. In the opinion of the
Court, however, no such conflict exists. Assuming for this purpose that the
rules of the law of armed conflict which prohibit the murder of civilians in
occupied territory, the deportation of civilian inhabitants to slave labour and
the deportation of prisoners of war to slave labour are rules of jus cogens,
there is no conflict between those rules and the rules on State 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 of the con- temporary law of State immunity to proceedings
concerning events which occurred in 1943-1945 does not infringe the
principle that law should not be applied retrospectively to determine
matters of legality and responsibility (as the Court has explained in
paragraph 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 Commissions 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 is permitted but the rules which
determine the scope and extent of jurisdiction and when that jurisdiction
may be exercised do not derogate from those substantive rules which
possess jus cogens status, nor is there anything inherent in the concept of
jus cogens which would require their modification or would displace their
application. The Court has taken that approach in two cases,
notwithstanding that the effect was that a means by which a jus cogens
rule might be enforced was rendered unavailable. 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), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 2006, p. 32, para. 64, and p. 52,
para. 125). In Arrest Warrant, the Court held, albeit without express
reference to the concept of jus cogens, that the fact that a Minister for
Foreign Affairs was accused of criminal violations of rules which
undoubtedly possess the character of jus cogens did not deprive the
Democratic Republic of the Congo of the entitlement which it possessed as
a matter of customary international law to demand immunity on his behalf
(Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.

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Belgium), Judgment, I.C.J. Reports 2002, p. 24, para. 58, and p. 33, para.
78). The Court considers that the same reasoning is applicable to the
application of the customary international law regarding the immunity of
one State from proceedings in the courts of another.156 chanrobleslaw

Though pertaining to provisional measures, another case that involved the issue of
sovereign immunity is the "Ara Libertad" case (Argentina v. Ghana). Lodged before the
International Tribunal for the Law of the Sea (ITLOS), the case arose after "ARA Fragata
Libertad," an Argentinian warship, was alleged to have been detained and subjected to
several judicial measures by the Republic of Ghana.157 In doing so, Argentina alleged
that Ghana violated the immunities from jurisdiction and execution extended to the
warship by its flag.158 cralawlawlibrary

Ghana countered: chanRoblesvirtualLawlibrary

. . . 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 the coastal State."159 (Emphasis supplied)

The order dated December 15, 2012 ruled the following: chanRoblesvirtualLawlibrary

. . . that a warship is an expression of the sovereignty of the State whose


flag it flies;160 cralawlawlibrary

. . . in accordance with general international law, a warship enjoys


immunity, including in internal waters. . . .161 cralawlawlibrary

....

Ghana shall forthwith and unconditionally release the frigate ARA Libertad,
shall ensure that the frigate ARA Libertad, its Commander and crew are
able to leave the port of Tema and the maritime areas under the jurisdiction
of Ghana, and shall ensure that the frigate ARA Libertad is resupplied to
that end.162 (Citation supplied)

In sum, the International Court of Justice's position that sovereign immunity remains
applicable even if the action is based upon violations of international law should be limited
only to acts during armed conflict. Jurisdictional Immunities of the State (Germany v.
Italy) also referred to actions commited during World War II and especially referred to the
situation of international law at that time. The majority reflected the attitude that
sovereign immunity is a customary norm. It, however, recognizes that uniformity in state
practice is far from the consensus required to articulate specific rules pertaining to other
circumstances such as transgressions of foreign warships of domestic legislation while
granted innocent passage. It impliedly accepted that states enjoyed wide latitude to
specify their own norms.

The provisional order in the ITLOS Ara Libertad case should also be read within its factual
ambient. That is, that the warship was the subject of seizure to enforce a commercial
obligation of its flag state. In this case, the foreign warship enjoys sovereign immunity.
The case, however, did not interpret Sections 31 and 32 of the UNCLOS.

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 immunity's 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 is understood as a general principle of international law rather than
as international obligation arising out of treaty or customary norm.

Finke suggests that this provides the better platform. Whereas a rule is more precise and
consistent in both its application and legal consequences, a principle "allows for a broader
spectrum of possible behaviour."163 Principles recognize a general idea and serve as a
guide in policy determinations, rather than prescribe a particular mode of action, which is
what rules do. This distinction is significant, as principles provide the leeway to
accommodate legal and factual circumstances surrounding each case that customary rules
generally do not.164 cralawlawlibrary

General principles of international law are said to be: chanRoblesvirtualLawlibrary

. . . an autonomous, created by general consensus, systematically


fundamental part of International Law, that consists of different normative
notions, in which judges refer to, through a creative process, in order to
promote the consistency of International Law.165 chanrobleslaw

Clearly, sovereign immunity is a doctrine recognized by states under the international law
system. However, its characterization as a principle is more appropriate in that "the
extent to which foreign states are awarded immunity differs from state to state."166 This
appears to be an accepted arrangement in light of the different state immunity laws all
over the world.

As it stands, states are allowed to draw the line in the application of sovereign immunity
in cases involving foreign states and their agents. As a principle of international law, it is
deemed automatically incorporated in our domestic legal system as per Article II, Section
2 of the Constitution. Considering this leeway, along with the urgency and importance of
the case at hand, the Philippines is, therefore, free to provide guidelines consistent with
international law, domestic legislation, and existing jurisprudence.

Exceptions to sovereign
immunity

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Our own jurisprudence is consistent with the pronouncement that the doctrine of
sovereign immunity is not an absolute rule. Thus, the doctrine should take the form of
relative sovereign jurisdictional immunity.167 cralawlawlibrary

The tendency in our jurisprudence moved along with the development in other states.

States began to veer away from absolute sovereign immunity when "international trade
increased and governments expanded into what had previously been private spheres."168
The relative theory of sovereign immunity distinguishes a state's official (acta jure
imperii) from private (acta jure gestionis) conduct.169 The distinction is founded on the
premise "[that] once the sovereign has descended from his throne and entered the
marketplace[,] he has divested himself of his sovereign status and is therefore no longer
immune to the domestic jurisdiction of the courts of other countries."170 cralawlawlibrary

In the 2003 case of Republic of Indonesia v. Vinzon, this court enunciated that in cases
involving foreign states, the basis of sovereign immunity is the maxim par in parem non
habet imperium. Founded on sovereign equality, a state cannot assert its jurisdiction over
another.171 To do so otherwise would "unduly vex the peace of nations."172 However, it
also underscored that the doctrine only applies to public acts or acts jure imperii, thus,
referring to the relative theory. JUSMAG Philippines v. NLRC173 discussed the restrictive
application:
chanRoblesvirtualLawlibrary

In this jurisdiction, we recognize and adopt the generally accepted


principles of international law as part of the law of the land. 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 is anchored on the principle of the sovereign
equality of states under which one state cannot assert jurisdiction over
another in violation of the maxim par in parem non habet imperium (an
equal has no power 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 with a contract involving the repair of
wharves in Subic Bay's US naval installation, this court further adds that: chanRoblesvirtualLawlibrary

. . . the correct test for the application of State immunity is not the
conclusion of a contract by a State but the legal nature of the act. . .
.176 (Emphasis supplied)

In JUSMAG, this court stated: chanRoblesvirtualLawlibrary

. . . 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 (Emphasis supplied, citation
omitted)

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

Further in Municipality of San Fernando, La Union v. Firme,178 this court stated that two
exceptions are a) when the State gives its consent to be sued and b) when it enters into a
business contract.179 It ruled that: chanRoblesvirtualLawlibrary

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 other contracting 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 unauthorized by the State, and violation of
rights by the impleaded government official. In the 1970 case of Director of Bureau of
Telecommunications, et al. v. Aligaen, et al.,181 this court held that: chanRoblesvirtualLawlibrary

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 (Emphasis supplied,
citations omitted)

Shauf v. Court of Appeals183 evolved the doctrine further as it stated that "[the] rational
for this ruling is that the doctrine of state immunity cannot be used as an instrument for
perpetrating an injustice."184 cralawlawlibrary

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Tortious acts or crimes committed while discharging official functions are also not covered
by sovereign immunity. Quoting the ruling in Chavez v. Sandiganbayan,185 this court
held American naval officers personally liable for damages in Wylie v. Rarang,186 to
wit:
chanRoblesvirtualLawlibrary

. . . The petitioners, however, were negligent because under their direction


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 private respondent.187

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

As it stands, the Philippines has no law on the application of sovereign immunity in cases
of damages and/or violations of domestic law involving agents of a foreign state. But our
jurisprudence does have openings to hold those who have committed an act ultra vires
responsible in our domestic courts.

As previously discussed, it was held in Germany v. Italy that the issue of implied waiver of
sovereign immunity and a State's commission of a serious violation of a peremptory norm
(jus cogens) are two independent areas. This reflects one of the positions taken by
scholars in the jurisdiction-immunity discourse: chanRoblesvirtualLawlibrary

Jurisdiction and its limits have developed differently depending on the


subject matter. The jurisdiction to adjudicate in civil matters has, for
example, developed mainly in the context of private international law, even
though it is not unrelated to public international 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.
Linking immunity to the limits of jurisdiction to adjudicate in civil matters
would therefore mean disregarding the official character of the foreign
state's conduct.189 (Emphasis supplied, citation omitted)

This ruling holds no value as a precedent, and, therefore, does not preclude the
Philippines to make a determination that may be different from the International Court of
Justice's ruling. Its value must only be to elucidate on the concept of sovereign immunity,
in the context of that case, as the general rule with the possibility of other exceptions.

Furthermore, if we consider the doctrine of sovereign immunity as a binding general


principle of international law rather than an international customary norm, the particular
rules and guidelines in its application and invocation may be determined on a domestic
level either through statute or by jurisprudence.

It is difficult to imagine that the recognition of equality among nations is still, in these
modern times, as absolute as we have held it to be in the past or only has commercial
acts as an exception. International law has conceded jus cogens rules of international law
and other obligations erga omnes. It is time that our domestic jurisprudence adopts
correspondingly.

Considering the flexibility in international law and the 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 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.

Certainly, this petition being moot and not brought by the proper parties, I agree that it is
not the proper case where we can lay down this doctrine. I, therefore, can only concur in
the result.

ACCORDINGLY, I vote to DISMISS the petition.

Endnotes:

1 G.R. No. 101083, July 30, 1993, 224 SCRA 792 [Per J. Davide, Jr., En
Banc].

2See J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21


(4) Eur J Int Law 853-881, 854 (2011) .

3 Id. at 856.

4 Id.

5Rollo, pp. 8992.

6 Id. at 57.

7 Id. at 78.

8 Id. at 13.

9 Id. at 194.

10 Id. at 196.

11 Id. at 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.

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13Rollo, pp. 333334.

14 Id. at 336.

15 Id. at 161.

16 Id.

17 Id.

18 Id. at 145.

19 Id. at 255.

20 Id. at 31.

21 Id. at 57.

22Rollo, p. 32.

23 Id. at 3738.

24 598 Phil. 262 (2009) [Per J. Azcuna, En Banc].

25 Sections 1 and 2 of Article V provide:


chanRoblesvirtualLawlibrary

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.
(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.

26Rollo, p. 36.

27 Id. at 19.

28 Id. at 47, as per Rep. Act No. 10067, sec. 19.

29 Id. at 47.

30 Id. at 38.

31 Id.

32 Id. at 41.

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.

34Rollo, p. 40.

35 Id. at 48.

36 Id.

37 Id. at 4.

38 RULES OF CIVIL PROCEDURE, Rule 3, sec. 2.

39 See Consumido v. Ros, 555 Phil. 652, 658 (2007) [Per J. Tinga, Second
Division].

40 Id.

41Rebollido v. Court of Appeals, 252 Phil. 831, 839 (1989) [Per J. Gutierrez,
Jr., Third Division], citing Lee et al. v. Romillo, Jr., 244 Phil. 606, 612
(1988) [Per J. Gutierrez, Jr., Third Division].

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, Rule 3, sec. 3.

45 REVISED PROCEDURE ON ENVIRONMENTAL CASES, Rule II, sec. 5.

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46 G.R. No. 101083, July 30, 1993, 224 SCRA 792, 803 [Per J. Davide, Jr.,
En Banc].

47 Id.

48Heirsof Sotto v. Palicte, G.R. No. 159691, June 13, 2013, 698 SCRA 294,
308 [Per J. Bersamin, First Division].

49 Id. at 304.

50 Id. at 306.

51 Id. at 308.

52 157 Phil. 551 (1974) [Per J. Zaldivar, Second Division].

53 Id. at 563565.

54 Id. at 567568.

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

57 J. E. STIGLITZ, ECONOMICS OF THE PUBLIC SECTOR 215 (3rd ed.,


2000).

58 A.M. No. 88-1-646-0, March 3, 1988, 159 SCRA 623, 627 [En Banc].

59 Id. at 627.

60 ANNOTATION TO THE RULES OF PROCEDURE FOR ENVIRONMENTAL


CASES, p. 133.

61 Id.

62 Id.

63Rollo, p. 5.

64 Id.

65 Id.

66 Id. at 6.

67 Id.

68 Id.

69 Id. at 7.

70 Id.

71 Id. at 5.

72 Id.

73 Id.

74 Id.

75 Id. at 6.

76 Id.

77 Id.

78 Id.

79 Id.

80 Id.

81 Id.

82 ANNOTATION TO THE RULES OF PROCEDURE FOR ENVIRONMENTAL


CASES, p. 113.

83 Id. at 114.

84Rollo, p. 164.

85 Id.

86 Id. at 161.

87J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4)


EUR J INT LAW 853-881, 854 (2011) .

88 G.R. No. 159402, February 23, 2011, 644 SCRA 36 [Per J. Bersamin,
Third Division].

89 Id. at 42.

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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 (2003) [Per J. Azcuna, En Banc].

93 Id. at 1107.

94 Const. (1987), art. II, sec. 2 states, The Philippines renounces war as
an instrument of national policy, adopts the generally 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.

95Republic of Indonesia v. Vinzon, 452 Phil. 1100, 1107 (2003) [Per J.


Azcuna, En Banc].

96 J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4)


Eur J Int Law 853-881, 854 (2011) .

97 Id. at 856.

98 Id.

99J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4)


EUR J INT LAW 856-857 (2011) .

100 Available at .

101See D. Kennedy, The Sources of International Law, 2 (1) American


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

102 VIENNA CONVENTION ON THE LAW OF TREATIES (1961), art. 2(1)(a) .

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, . See also RESTATEMENT
(THIRD) OF FOREIGN RELATIONS LAW (1987), sec. 102(2).

104E. 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.

105 J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4)


Eur J Int Law 853-881, 857 (2011) .

106COUNCIL OF EUROPE - EXPLANATORY REPORT ON THE EUROPEAN


CONVENTION ON STATE IMMUNITY (ETS No. 074), .

107 Id.

108 December 2, 2004.

109 The Philippines is not a signatory to the Convention.

110See art. 30 of Convention.

111 Status according to the UN Treaty Collection as of 07-17-2014, .

112UN 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. Int'l L. &
Comm. Reg. 375 (2013) .

114 Id. at 6061.

115 M. E. Wiesinger, State Immunity from Enforcement Measures (2006) .

116Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA
244 [Per J. Velasco, Jr., En Banc].

117 Id. at 258260.

118 396 Phil. 623 (2000) [Per J. Buena, En Banc].

119 Id. at 637.

120 Id. at 656.

121 Id. at 657660.

122 M. J. Garcia (Legislative Attorney), International Law and Agreements:


their effect upon US law, CONGRESSIONAL RESEARCH SERVICE 7-5700
RL32528 (2014), .

123 Id.

124 Id. at 4.

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125 J. Paul, The Transformation of International Comity (2008) .

126 Id. at 27.

127 396 Phil. 623, 646 (2000) [Per J. Buena, En Banc].

128 Id. at 666.

129 E. Posner and J. L. Goldsmith, A Theory of Customary International Law


(John M. Olin Program in Law and Economics Working Paper No. 63) 5
(1998).

130 W. P. Nagan and J. L. Root, The Emerging Restrictions on Foreign


Immunity: Peremptory Norms of International Law, the UN Charter, and
the Application of Modern Communications Theory, 38 N.C. J. Int'l L. &
Comm. Reg. 375 (2013).

131 Id. at 4.

132 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW.

133 Id. at 38.

134 J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4)


Eur J Int Law 853-881, 856 (2011) .

135 J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4)


Eur J Int Law 853-881, 871 (2011) .

136 J. K. Elsea and S. V. Yousef, The Foreign Sovereign Immunities Act


(FSIA) and Foreign Officials, CONGRESSIONAL RESEARCH SERVICE 7-5700
(2013).

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."

138 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I, 3--(1)


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.

139 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I, 4--(1)


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."

140 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I, 5--(1)


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."

141 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I, 6--(1)


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.

142 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I, 7--(1)


provides: A State is not immune as respects proceedings relating to(a)
any patent, trade-mark, design or plant breeders 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 patent, trade-mark, design, plant
breeders rights or copyright; or (c)the right to use a trade or business
name in the United Kingdom.

143 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I, 8--(1)


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.

144 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I, 9--(1)


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.

145 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I, 10--(2)


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

146 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part I, 11--(1)


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,

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and use of property, etc.; (f) copyright, patents, trade marks, etc., (g)
membership of bodies corporate etc.; (h) arbitrations; (i) actions in rem;
(j) bills of exchange; and (k) taxes.

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).

149 Id. at pars. 2729.

150 Id.

151 Id. at par. 37.

152 Id.

153 Id. at par. 79.

154 Id. at pars. 5557.

155 Id. at par. 60.

156 Id. at pars. 8295.

157 Id. at par. 26.

158 Id.

159 Id. at par. 56.

160 Id. at par. 94.

161 Id. at par. 95.

162 Id. at par. 108.

163 J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4)


Eur J Int Law 853-881, 872 (2011) .

164 J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4)


Eur J Int Law 853-881, 872 (2011) .

165 M. Panezi, Sources of Law in Transition: Re-visiting general principles of


International Law, Ancilla Juris 71 (2007) .

166 J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4)


Eur J Int Law 853-881, 874 (2011) .

167 J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4)


Eur J Int Law 853-881, 853 (2011) .

168 N. J. Shmalo, Is the Restrictive Theory of Sovereign Immunity


Workable? Government Immunity and Liability, 17 (3) INTERNATIONAL
STANFORD LAW REVIEW (1965) 501-507.

169 J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4)


Eur J Int Law 853-881, 858 (2011) .

170 J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4)


Eur J Int Law 853-881, 859 (2011) .

171 452 Phil. 1100, 1107 (2003) [Per J. Azcuna, En Banc].

172 Id.

173 G.R. No. 108813, December 15, 1994, 239 SCRA 224 [Per J. Puno,
Second Division].

174 Id. at 230232.

175 221 Phil. 179 (1985) [Per J. Abad Santos, En Banc].

176 Id. at 184.

177G.R. No. 108813, December 15, 1994, 239 SCRA 224, 233 [Per J. Puno,
Second Division].

178 273 Phil. 56 (1991) [Per J. Medialdea, First Division].

179 Id. at 62.

180 Id.

181 144 Phil. 257 (1970) [Per J. Zaldivar, En Banc].

182 Id. at 267268.

183G.R. No. 90314, November 27, 1990, 191 SCRA 713 [Per J. Regalado,
Second Division].

184 Id. at 727.

185 271 Phil. 293 (1991) [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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187 Id. at 370.

188 Id.

189 J. Finke, Sovereign Immunity: Rule, Comity or Something Else?, 21 (4)


Eur J Int Law 853-881, 878 (2011) .

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