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 of Caloocan,
FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE,
MARIA CAROLINA P. ARAULLO, RENATO M. REYES, JR., Bagong Alyansang
Makabayan, HON. NERI JAVIER COLMENARES, Bayan Muna Party-list,
ROLAND G. SIMBULAN, PH.D., Junk VFA Movement, 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, vs . SCOTT H.
SWIFT in his capacity as Commander of the U.S. 7th Fleet, MARK A. RICE
in his capacity as Commanding O cer 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, O ce 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 O cer 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 Command
and LT. GEN. TERRY G. ROBLING, US Marine Corps Forces, Paci c and
Balikatan 2013 Exercise Co-Director , respondents.

DECISION

VILLARAMA, JR. , J : p

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
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.

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 In 1993, Tubbataha was inscribed by the United Nations Educational Scienti c 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 Tubbataha's
outstanding universal value as an important and signi cant natural habitat for in situ
conservation of biological diversity; an example representing signi cant on-going ecological
and biological processes; and an area of exceptional natural beauty and aesthetic importance.
2

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 signi cant economic, biological, sociocultural, educational and
scienti c 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 ned, including shing,
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 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.
On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in
Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship
ran aground on the northwest side of South Shoal of the Tubbataha Reefs, about 80 miles
east-southeast of Palawan. No one was injured in the incident, and there have been no reports
of leaking fuel or oil.
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 meeting at the Department of Foreign Affairs (DFA) on February 4,
"reiterated his regrets over the grounding incident and assured Foreign Affairs Secretary
Albert F. del Rosario that the United States will provide appropriate compensation for damage
to the reef caused by the ship." 6 By March 30, 2013, the US Navy-led salvage team had
finished removing the last piece of the grounded ship from the coral reef. CDcaSA

On April 17, 2013, the above-named petitioners on their behalf and in representation of
their respective sector/organization and others, including minors or generations yet unborn,
led the present petition against Scott H. Swift in his capacity as Commander of the US 7th
Fleet, Mark A. Rice in his capacity as Commanding O cer of the USS Guardian and Lt. Gen.
Terry G. Robling, US Marine Corps Forces, Paci c and Balikatan 2013 Exercises Co-Director
("US respondents"); President Benigno S. Aquino III in his capacity as Commander-in-Chief of
the Armed Forces of the Philippines (AFP), DFA Secretary Albert F. Del Rosario, Executive
Secretary Paquito Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of National Defense),
Secretary Jesus P. Paje (Department of Environment and Natural Resources), Vice-Admiral
Jose Luis M. Alano (Philippine Navy Flag O cer in Command, AFP), Admiral Rodolfo D.
Isorena (Philippine Coast Guard Commandant), Commodore Enrico Efren Evangelista
(Philippine Coast Guard-Palawan), and Major General Virgilio O. Domingo (AFP Commandant),
collectively the "Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging operations of the
USS Guardian cause and continue to cause environmental damage of such magnitude as to
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 affect the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros
Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their
constitutional rights to a balanced and healthful ecology. They also seek a directive from this
Court for the institution of civil, administrative and criminal suits for acts committed in
violation of environmental laws and regulations in connection with the grounding incident.
Speci cally, petitioners cite the following violations committed by US respondents
under R.A. No. 10067: unauthorized entry (Section 19); non-payment of conservation fees
(Section 21); obstruction of law enforcement o cer (Section 30); damages to the reef
(Section 20); and destroying and disturbing resources (Section 26 [g]). Furthermore,
petitioners assail certain provisions of the Visiting Forces Agreement (VFA) which they want
this Court to nullify for being unconstitutional.
The numerous reliefs sought in this case are set forth in the nal prayer of the petition,
to wit:
WHEREFORE, in view of the foregoing, Petitioners respectfully pray that the
Honorable Court:

1. Immediately issue upon the ling of this petition a Temporary Environmental

Protection Order (TEPO) and/or a Writ of Kalikasan, which shall, in particular,

a. Order Respondents and any person acting on their behalf, to cease and desist
all operations over the Guardian grounding incident;
b. Initially demarcating the metes and bounds of the damaged area as well as an
additional buffer zone;

c. Order Respondents to stop all port calls and war games under 'Balikatan'
because of the absence of clear guidelines, duties, and liability schemes for
breaches of those duties, and require Respondents to assume responsibility
for prior and future environmental damage in general, and environmental
damage under the Visiting Forces Agreement in particular.

d. Temporarily de ne and describe allowable activities of ecotourism, diving,

recreation, and limited commercial activities by sherfolk and indigenous
communities near or around the TRNP but away from the damaged site
and an additional buffer zone; ISCDEA

2. After summary hearing, issue a Resolution extending the TEPO until further orders of
the Court;

3. After due proceedings, render a Decision which shall include, without limitation:

a. Order Respondents Secretary of Foreign Affairs, following the dispositive

portion of Nicolas v. Romulo, "to forthwith negotiate with the United States
representatives for the appropriate agreement on [environmental guidelines
and environmental accountability] under Philippine authorities as provided
in Art. V[ ] of the VFA. . ."

b. Direct Respondents and appropriate agencies to commence administrative, civil,

and criminal proceedings against erring o cers and individuals to the full
extent of the law, and to make such proceedings public;

c. Declare that Philippine authorities may exercise primary and exclusive criminal
jurisdiction over erring U.S. personnel under the circumstances of this case;

d. Require Respondents to pay just and reasonable compensation in the

settlement of all meritorious claims for damages caused to the Tubbataha
Reef on terms and conditions no less severe than those applicable to other
States, and damages for personal injury or death, if such had been the
case;
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 e. Direct Respondents to cooperate in providing for the attendance of witnesses
and in the collection and production of evidence, including seizure and
delivery of objects connected with the offenses related to the grounding of
the Guardian;

f. Require the authorities of the Philippines and the United States to notify each
other of the disposition of all cases, wherever heard, related to the
grounding of the Guardian;

g. Restrain Respondents from proceeding with any purported restoration, repair,

salvage or post salvage plan or plans, including cleanup plans covering the
damaged area of the Tubbataha Reef absent a just settlement approved by
the Honorable Court;
h. Require Respondents to engage in stakeholder and LGU consultations in
accordance with the Local Government Code and R.A. 10067;

i. Require Respondent US o cials and their representatives to place a deposit to

the TRNP Trust Fund de ned under Section 17 of RA 10067 as a bona de
gesture towards full reparations;

j. Direct Respondents to undertake measures to rehabilitate the areas affected by

the grounding of the Guardian in light of Respondents' experience in the
Port Royale grounding in 2009, among other similar grounding incidents;
k. Require Respondents to regularly publish on a quarterly basis and in the name
of transparency and accountability such environmental damage
assessment, valuation, and valuation methods, in all stages of negotiation;

l. Convene a multisectoral technical working group to provide scienti c and

technical support to the TPAMB;

m. Order the Department of Foreign Affairs, Department of National Defense, and

the Department of Environment and Natural Resources to review the
Visiting Forces Agreement and the Mutual Defense Treaty to consider
whether their provisions allow for the exercise of erga omnes rights to a
balanced and healthful ecology and for damages which follow from any
violation of those rights;

n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of
protecting the damaged areas of TRNP; ADHaTC

o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and

Article VI of the Visiting Forces Agreement unconstitutional for violating
equal protection and/or for violating the preemptory norm of
nondiscrimination incorporated as part of the law of the land under Section
2, Article II, of the Philippine Constitution;

p. Allow for continuing discovery measures;

q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other

respects; and

4. Provide just and equitable environmental rehabilitation measures and such other
reliefs as are just and equitable under the premises. 7 (Underscoring supplied.)

Since only the Philippine respondents led their comment 8 to the petition, petitioners
also led a motion for early resolution and motion to proceed ex parte against the US
respondents. 9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the application for a TEPO and ocular
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 inspection and production orders, respondents assert that: (1) the grounds relied upon for the
issuance of a TEPO or writ of Kalikasan have become fait accompli as the salvage operations
on the USS Guardian were already completed; (2) the petition is defective in form and
substance; (3) the petition improperly raises issues involving the VFA between the Republic of
the Philippines and the United States of America; and (4) the determination of the extent of
responsibility of the US Government as regards the damage to the Tubbataha Reefs rests
exclusively with the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing of petitioners to le
the present petition.
Locus standi is "a right of appearance in a court of justice on a given question." 10
Speci cally, it is "a party's personal and substantial interest in a case where he has sustained
or will sustain direct injury as a result" of the act being challenged, and "calls for more than just
a generalized grievance." 11 However, the rule on standing is a procedural matter which this
Court has relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers and legislators
when the public interest so requires, such as when the subject matter of the controversy is of
transcendental importance, of overreaching signi cance to society, or of paramount public
interest. 12
In the landmark case of Oposa v. Factoran, Jr. , 13 we recognized the "public right" of
citizens to "a balanced and healthful ecology which, for the rst time in our constitutional
history, is solemnly incorporated in the fundamental law." We declared that the right to a
balanced and healthful ecology need not be written in the Constitution for it is assumed, like
other civil and political rights guaranteed in the Bill of Rights, to exist from the inception of
mankind and it is an issue of transcendental importance with intergenerational implications.
Such right carries with it the correlative duty to refrain from impairing the environment. 14
On the novel element in the class suit led by the petitioners minors in Oposa, this Court
ruled that not only do ordinary citizens have legal standing to sue for the enforcement of
environmental rights, they can do so in representation of their own and future generations.
Thus: SaHcAC

Petitioners minors assert that they represent their generation as well as

generations yet unborn. We nd no di culty in ruling that they can, for themselves, for
others of their generation and for the succeeding generations, le a class suit. Their
personality to sue in behalf of the succeeding generations can only be based
on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned . Such a right, as hereinafter
expounded, considers the "rhythm and harmony of nature." Nature means the created
world in its entirety. Such rhythm and harmony indispensably include, inter alia, the
judicious disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, sheries, wildlife, off-shore areas and other natural
resources to the end that their 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 preserve that rhythm and harmony for the full
enjoyment of a balanced and healthful ecology. Put a little differently, the minors'
assertion of their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the generations
to come. 15 (Emphasis supplied.)

The liberalization of standing rst enunciated in Oposa, insofar as it refers to minors

and generations yet unborn, is now enshrined in the Rules which allows the ling of a citizen
suit in environmental cases. The 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
Having settled the issue of locus standi, we shall address the more fundamental
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 question of whether this Court has jurisdiction over the US respondents who did not submit
any pleading or manifestation in this case.
The immunity of the State from suit, known also as the doctrine of sovereign immunity
or non-suability of the State, 17 is expressly provided in Article XVI of the 1987 Constitution
which states:
Section 3. The State may not be sued without its consent.

I n United States of America v. Judge Guinto , 18 we discussed the principle of state

immunity from suit, as follows:
The rule that a state may not be sued without its consent, now expressed in Article
XVI, 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,
Section 2. . . . .
Even without such a rmation, we would still be bound by the generally accepted
principles of international law under the doctrine of incorporation. Under this doctrine, as
accepted by the majority of states, such principles are deemed incorporated in the law of
every civilized state as a condition and consequence of its membership in the society of
nations. Upon its admission to such society, the state is automatically obligated to
comply with these principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the
justi cation given by Justice Holmes that "there can be no legal right against the
authority which makes the law on which the right depends." [ Kawanakoa v. Polybank ,
205 U.S. 349] There are other practical reasons for the enforcement of the doctrine. In
the case of the foreign state sought to be impleaded in the local jurisdiction,
the added inhibition is expressed in the maxim par in parem, non habet
imperium . All states are sovereign equals and cannot assert jurisdiction over
one another. A contrary disposition would, in the language of a celebrated
case, "unduly vex the peace of nations." [De Haber v. Queen of Portugal , 17 Q. B.
171]
While the doctrine appears to prohibit only suits against the state without its
consent, it is also applicable to complaints led against o cials of the state
for acts allegedly performed by them in the discharge of their duties . The rule is
that if the judgment against such o cials will require the state itself to perform an
a rmative act to satisfy the same, such as the appropriation of the amount needed to
pay the damages awarded against them, the suit must be regarded as against the state
itself although it has not been formally impleaded. [Garcia v. Chief of Staff, 16 SCRA
120] In such a situation, the state may move to dismiss the complaint on the ground that
it has been filed without its consent. 19 (Emphasis supplied.) aEcDTC

Under the American Constitution, the doctrine is expressed in the Eleventh Amendment
which reads:
The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.

In the case of Minucher v. Court of Appeals , 20 we further expounded on the immunity of

foreign states from the jurisdiction of local courts, as follows:
The precept that a State cannot be sued in the courts of a foreign state is a long-
standing rule of customary international law then closely identi ed with the personal
immunity of a foreign sovereign from suit and, with the emergence of democratic states,
made to attach not just to the person of the head of state, or his representative, but also
distinctly to the state itself in its sovereign capacity. If the acts giving rise to a suit
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 are those of a foreign government done by its foreign agent, although not
necessarily a diplomatic personage, but acting in his o cial capacity, the
complaint could be barred by the immunity of the foreign sovereign from suit
without its consent . Suing a representative of a state is believed to be, in effect, suing
the state itself. The proscription is not accorded for the bene t of an individual but for
the State, in whose service he is, under the maxim — par in parem, non habet imperium —
that all states are sovereign equals and cannot assert jurisdiction over one another. The
implication, in broad terms, is that if the judgment against an o cial would require the
state itself to perform an a rmative act to satisfy the award, such as the appropriation
of the amount needed to pay the damages decreed against him, the suit must be
regarded as being against the state itself, although it has not been formally impleaded.
21 (Emphasis supplied.)

In the same case we also mentioned that in the case of diplomatic immunity, the
privilege is not an immunity from the observance of the law of the territorial sovereign or from
ensuing legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction. 22
In United States of America v. Judge Guinto , 23 one of the consolidated cases therein
involved a Filipino employed at Clark Air Base who was arrested following a buy-bust
operation conducted by two o cers of the US Air Force, and was eventually dismissed from
his employment when he was charged in court for violation of R.A. No. 6425. In a complaint for
damages led by the said employee against the military o cers, the latter moved to dismiss
the case on the ground that the suit was against the US Government which had not given its
consent. The RTC denied the motion but on a petition for certiorari and prohibition led before
this Court, we reversed the RTC and dismissed the complaint. We held that petitioners US
military o cers were acting in the exercise of their o cial functions when they conducted the
buy-bust operation against the complainant and thereafter testi ed against him at his trial. It
follows that for discharging their duties as agents of the United States, they cannot be directly
impleaded for acts imputable to their principal, which has not given its consent to be sued.
This traditional rule of State immunity which exempts a State from being sued in the
courts of another State without the former's consent or waiver has evolved into a restrictive
doctrine which distinguishes sovereign and governmental acts (jure imperii) from private,
commercial and proprietary acts (jure gestionis). Under the restrictive rule of State immunity,
State immunity extends only to acts jure imperii. The restrictive application of State immunity
is proper only when the proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs. 24
I n Shauf v. Court of Appeals , 25 we discussed the limitations of the State immunity
principle, thus:
It is a different matter where the public o cial is made to account in
his capacity as such for acts contrary to law and injurious to the rights of
plaintiff . 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 only
legal acts by its o cers, unauthorized acts of government o cials or o cers are not
acts of the State, and an action against the o cials or o cers 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 o cer 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." The
rationale for this ruling is that the doctrine of state immunity cannot be used as an
instrument for perpetrating an injustice.
xxx xxx xxx

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 The aforecited authorities are clear on the matter. They state that the doctrine of
immunity from suit will not apply and may not be invoked where the public
o cial is being sued in his private and personal capacity as an ordinary
citizen . The cloak of protection afforded the o cers and agents of the government is
removed the moment they are sued in their individual capacity. This situation usually
arises where the public o cial acts without authority or in excess of the powers vested in
him. It is a well-settled principle of law that a public o cial may be liable in his
personal private capacity for whatever damage he may have caused by his act
done with malice and in bad faith, or beyond the scope of his authority or
jurisdiction . 26 (Emphasis supplied.)

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

During the deliberations, Senior Associate Justice Antonio T. Carpio took the position
that the conduct of the US in this case, when its warship entered a restricted area in violation
of R.A. No. 10067 and caused damage to the TRNP reef system, brings the matter within the
ambit of Article 31 of the United Nations Convention on the Law of the Sea (UNCLOS). He
explained that while historically, warships enjoy sovereign immunity from suit as extensions of
their ag State, Art. 31 of the UNCLOS creates an exception to this rule in cases where they fail
to comply with the rules and regulations of the coastal State regarding passage through the
latter's internal waters and the territorial sea.
According to Justice Carpio, although the US to date has not rati ed the UNCLOS, as a
matter of long-standing policy the US considers itself bound by customary international rules
on the "traditional uses of the oceans" as codified in UNCLOS, as can be gleaned from previous
declarations by former Presidents Reagan and Clinton, and the US judiciary in the case of
United States v. Royal Caribbean Cruise Lines, Ltd. 27
The international law of the sea is generally de ned as "a body of treaty rules and
customary norms governing the uses of the sea, the exploitation of its resources, and the
exercise of jurisdiction over maritime regimes. It is a branch of public international law,
regulating the relations of states with respect to the uses of the oceans." 28 The UNCLOS is a
multilateral treaty which was opened for signature on December 10, 1982 at Montego Bay,
Jamaica. It was rati ed by the Philippines in 1984 but came into force on November 16, 1994
upon the submission of the 60th ratification.
The UNCLOS is a product of international negotiation that seeks to balance State
sovereignty (mare clausum) and the principle of freedom of the high seas (mare liberum) . 29
The freedom to use the world's marine waters is one of the oldest customary principles of
international law. 30 The UNCLOS gives to the coastal State sovereign rights in varying degrees
over the different zones of the sea which are: 1) internal waters, 2) territorial sea, 3)
contiguous zone, 4) exclusive economic zone, and 5) the high seas. It also gives coastal States
more or less jurisdiction over foreign vessels depending on where the vessel is located. 31 TCHEDA

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 over the territorial sea as well as to its bed and subsoil. 32
In the case of warships, 33 as pointed out by Justice Carpio, they continue to enjoy
sovereign immunity subject to the following exceptions:
Article 30
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 Non-compliance by warships with the laws and regulations of the coastal State
If any warship does not comply with the laws and regulations of the coastal State
concerning passage through the territorial sea and disregards any request for compliance
therewith which is made to it, the coastal State may require it to leave the territorial sea
immediately.

Article 31
Responsibility of the flag State for damage caused by a warship or other government
ship operated for non-commercial purposes
The ag State shall bear international responsibility for any loss or damage to
the coastal State resulting from the non-compliance by a warship or other
government ship operated for non-commercial purposes with the laws and
regulations of the coastal State concerning passage through the territorial sea
or with the provisions of this Convention or other rules of international law.

Article 32
Immunities of warships and other government ships operated for non-commercial
purposes
With such exceptions as are contained in subsection A and in articles 30 and 31,
nothing in this Convention affects the immunities of warships and other government
ships operated for non-commercial purposes. (Emphasis supplied.)

A foreign warship's unauthorized entry into our internal waters with resulting damage to
marine resources is one situation in which the above provisions may apply. But what if the
offending warship is a non-party to the UNCLOS, as in this case, the US?
An overwhelming majority — over 80% — of nation states are now members of UNCLOS,
but despite this the US, the world's leading maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation and
drafting, 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 remarkable, multilateral effort to induce U.S. membership, the bulk of UNCLOS member
states cooperated over the succeeding decade to revise the objectionable provisions. The
revisions satis ed the Clinton administration, which signed the revised Part XI
implementing agreement in 1994. In the fall of 1994, President Clinton transmitted
UNCLOS and the Part XI implementing agreement to the Senate requesting its advice and
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
required for the President to internationally bind the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the
108th and 110th Congresses, its progress continues to be hamstrung by signi cant
pockets of political ambivalence over U.S. participation in international institutions. Most
recently, 111th Congress SFRC Chairman Senator John Kerry included "voting out"
UNCLOS for full Senate consideration among his highest priorities. This did not occur,
and no Senate action has been taken on UNCLOS by the 112th Congress. 34 THaCAI

Justice Carpio invited our attention to the policy statement given by President Reagan
on March 10, 1983 that the US will "recognize the rights of the other states in the waters off
their coasts, as re ected in the convention [UNCLOS], so long as the rights and freedom of the
United States and others under international law are recognized by such coastal states", and
President Clinton's reiteration of the US policy "to act in a manner consistent with its [UNCLOS]
provisions relating to traditional uses of the oceans and to encourage other countries to do
likewise." Since Article 31 relates to the "traditional uses of the oceans," and "if under its policy,
the US 'recognize[s] the rights of the other states in the waters off their coasts,'" Justice
Carpio postulates that "there is more reason to expect it to recognize the rights of other
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 states in their internal waters, such as the Sulu Sea in this case."
As to the non-rati cation by the US, Justice Carpio emphasizes that "the US' refusal to
join the UNCLOS was centered on its disagreement with UNCLOS' regime of deep seabed
mining (Part XI) which considers the oceans and deep seabed commonly owned by mankind,"
pointing out that such "has nothing to do with its [the US'] acceptance of customary
international rules on navigation."
It may be mentioned that even the US Navy Judge Advocate General's Corps publicly
endorses the rati cation of the UNCLOS, as shown by the following statement posted on its
official website:
The Convention is in the national interest of the United States because it
establishes stable maritime zones, including a maximum outer limit for territorial seas;
codi es innocent passage, transit passage, and archipelagic sea lanes passage rights;
works against "jurisdictional creep" by preventing coastal nations from expanding their
own maritime zones; and rea rms sovereign immunity of warships, auxiliaries and
government aircraft.

xxx xxx xxx

Economically, accession to the Convention would support our national interests by
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
that rst established the concept of a maritime Exclusive Economic Zone out to 200
nautical miles, and recognized the rights of coastal states to conserve and manage the
natural resources in this Zone. 35

We fully concur with Justice Carpio's view that non-membership in the UNCLOS does
not mean that the US will disregard the rights of the Philippines as a Coastal State over its
internal waters and territorial sea. We thus expect the US to bear "international responsibility"
under Art. 31 in connection with the USS Guardian grounding which adversely affected the
Tubbataha reefs. Indeed, it is di cult to imagine that our long-time ally and trading partner,
which has been actively supporting the country's efforts to preserve our vital marine
resources, would shirk from its obligation to compensate the damage caused by its warship
while transiting our internal waters. Much less can we comprehend a Government exercising
leadership in international affairs, unwilling to comply with the UNCLOS directive for all nations
to cooperate in the global task to protect and preserve the marine environment as provided in
Article 197, viz.:
Article 197
Cooperation on a global or regional basis.
States shall cooperate on a global basis and, as appropriate, on a regional basis,
directly or through competent international organizations, in formulating and elaborating
international rules, standards and recommended practices and procedures consistent
with this Convention, for the protection and preservation of the marine environment,
taking into account characteristic regional features.
HEcIDa

In ne, the relevance of UNCLOS provisions to the present controversy is beyond

dispute. Although the said treaty upholds the immunity of warships from the jurisdiction of
Coastal States while navigating the latter's territorial sea, the ag States shall be required to
leave the territorial sea immediately if they out the laws and regulations of the Coastal State,
and they will be liable for damages caused by their warships or any other government vessel
operated for non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise,
they invoke federal statutes in the US under which agencies of the US have statutorily waived
their immunity to any action. Even under the common law tort claims, petitioners asseverate
that the US respondents are liable for negligence, trespass and nuisance.
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 We are not persuaded.
The VFA is an agreement which de nes the treatment of United States troops and
personnel visiting the Philippines to promote "common security interests" between the US and
the Philippines in the region. It provides for the guidelines to govern such visits of military
personnel, and further de nes the rights of the United States and the Philippine government in
the matter of criminal jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies. 36 The invocation 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
objectives of the agreement.
As it is, the waiver of State immunity under the VFA pertains only to criminal jurisdiction
and not to special civil actions such as the present petition for issuance of a writ of Kalikasan.
In fact, it can be inferred from Section 17, Rule 7 of the Rules that a criminal case against a
person charged with a violation of an environmental law is to be filed separately:
SEC. 17. Institution of separate actions. — The ling of a petition for the issuance
of the writ of kalikasan shall not preclude the ling of separate civil, criminal or
administrative actions. IEHSDA

In any case, it is our considered view that a ruling on the application or non-application
of criminal jurisdiction provisions of the VFA to US personnel who may be found responsible
for the grounding of the USS Guardian, would be premature and beyond the province of a
petition for a writ of Kalikasan. We also nd it unnecessary at this point to determine whether
such waiver of State immunity is indeed absolute. In the same vein, we cannot grant damages
which have resulted from the violation of environmental laws. The Rules allows the recovery of
damages, including the collection of administrative nes under R.A. No. 10067, in a separate
civil suit or that deemed instituted with the criminal action charging the same violation of an
environmental law. 37
Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for
issuance of a writ of Kalikasan, to wit:
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 kalikasan.

The reliefs that may be granted under the writ are the following:

(a) Directing respondent to permanently cease and desist from committing acts or
neglecting the performance of a duty in violation of environmental laws resulting in
environmental destruction or damage;

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

(c) Directing the respondent public o cial, government agency, private person or
entity to monitor strict compliance with the decision and orders of the court;
(d) Directing the respondent public o cial, government agency, or private person
or entity to make periodic reports on the execution of the final judgment; and

(e) Such other reliefs which relate to the right of the people to a balanced and
healthful ecology or to the protection, preservation, rehabilitation or restoration of the
environment, except the award of damages to individual petitioners . (Emphasis
supplied.)

We agree with respondents (Philippine o cials) in asserting that this petition has
become moot in the sense that the salvage operation sought to be enjoined or restrained had
already been accomplished when petitioners sought recourse from this Court. But insofar as
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 the directives to Philippine respondents to protect and rehabilitate the coral reef structure and
marine habitat adversely affected by the grounding incident are concerned, petitioners are
entitled to these reliefs notwithstanding the completion of the removal of the USS Guardian
from the coral reef.
However, we are mindful of the fact that the US and Philippine governments both
expressed readiness to negotiate and discuss the matter of compensation for the damage
caused by the USS Guardian. The US Embassy has also declared it is closely coordinating with
local scientists and experts in assessing the extent of the damage and appropriate methods
of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed by the Rules.
As can be gleaned from the following provisions, mediation and settlement are available for
the consideration of the parties, and which dispute resolution methods are encouraged by the
court, to wit:
RULE 3
xxx xxx xxx

SEC. 3. Referral to mediation. — At the start of the pre-trial conference, the court
shall inquire from the parties if they have settled the dispute; otherwise, the court shall
immediately refer the parties or their counsel, if authorized by their clients, to the
Philippine Mediation Center (PMC) unit for purposes of mediation. If not available, the
court shall refer the case to the clerk of court or legal researcher for mediation.
CSTDIE

Mediation must be conducted within a non-extendible period of thirty (30) days

from receipt of notice of referral to mediation.

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

SEC. 4. Preliminary conference. — If mediation fails, the court will schedule the
continuance of the pre-trial. Before the scheduled date of continuance, the court may
refer the case to the branch clerk of court for a preliminary conference for the following
purposes:

(a) To assist the parties in reaching a settlement;

xxx xxx xxx

SEC. 5. Pre-trial conference; consent decree. — The judge shall put the parties and
their counsels under oath, and they shall remain under oath in all pre-trial conferences.

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 parties in accordance with law, morals, public order and public policy to protect the
right of the people to a balanced and healthful ecology.

xxx xxx xxx

SEC. 10. Efforts to settle. — The court shall endeavor to make the parties to agree
to compromise or settle in accordance with law at any stage of the proceedings before
rendition of judgment. (Underscoring supplied.)

The Court takes judicial notice of a similar incident in 2009 when a guided-missile
cruiser, the USS Port 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 the State of Hawaii $8.5 million in settlement over
coral reef damage caused by the grounding. 38 aSIAHC

To underscore that the US government is prepared to pay appropriate compensation

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 for the damage caused by the USS Guardian grounding, the US Embassy in the Philippines has
announced the formation of a US interdisciplinary scienti c team which will "initiate
discussions with the Government of the 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 coordination with the Tubbataha
Management O ce, appropriate Philippine government entities, non-governmental
organizations, and scientific experts from Philippine universities." 39
A rehabilitation or restoration program to be implemented at the cost of the violator is
also a major relief that may be obtained under a judgment rendered in a citizens' suit under the
Rules, viz.:
RULE 5

SECTION 1. Reliefs in a citizen suit. — If warranted, the court may grant to the
plaintiff proper reliefs which shall include the protection, preservation or rehabilitation of
the environment and the payment of attorney's fees, costs of suit and other litigation
expenses. It may also require the violator to submit a program of rehabilitation or
restoration of the environment, the costs of which shall be borne by the violator, or to
contribute to a special trust fund for that purpose subject to the control of the court.

In the light of the foregoing, the Court defers to the Executive Branch on the matter of
compensation and rehabilitation measures through diplomatic channels. Resolution of these
issues impinges on our relations with another State in the context of common security
interests under the VFA. It is settled that "[t]he conduct of the foreign relations of our
government is committed by the Constitution to the executive and legislative — "the political"
— departments of the government, and the propriety of what may be done in the exercise of
this political power is not subject to judicial inquiry or decision." 40
On the other hand, we cannot grant the additional reliefs prayed for in the petition to
order a review of the VFA and to nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora , 41 the VFA was
duly concurred in by the Philippine Senate and has been recognized as a treaty by the United
States as attested and certi ed 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 .
Carpio, Velasco, Jr., Leonardo-de Castro, Brion, Peralta, Bersamin, Del Castillo, Perez,
Reyes and Perlas-Bernabe, JJ., concur.
Sereno, C.J., see concurring opinion.
Leonen, J., see separate concurring opinion.
Mendoza, * J., is on official leave.
Jardeleza, ** J., took no part.

Separate Opinions
SERENO , C.J., concurring :

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 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 well as international law (which forms part
of the Philippine legal structure), the doctrine should not be reversed in this particular case. DEcTCa

SOVEREIGN IMMUNITY IN PHILIPPINE LAW

Sovereign immunity in Philippine law has been lengthily discussed by the Court in China
National Machinery & Equipment Corp. v. Hon. Santamaria in the following manner:
This Court explained the doctrine of sovereign immunity in Holy See v. Rosario , to
wit:

There are two con icting concepts of sovereign immunity, each widely
held and rmly 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.
xxx xxx xxx
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 a rmed
the Philippines' adherence to the restrictive theory as follows:
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 about by their
increasing commercial activities, mothered a more restrictive application of the
doctrine.
xxx xxx xxx

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.
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 In this case, the two Naval O cers were acting pursuant to their function as the
commanding o cers 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 a rmed as
valid by this Court in Bayan v. Zamora, 2 and a rmed in Lim v. Executive Secretary 3 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. cASIED

From this, the applicability of sovereign immunity cannot be denied as to the presence
of the warship and its o cers in Philippine waters. This does not, however, put an end to the
discussion, because even if immunity is applicable to their presence, the speci c 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.
Speci cally, 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
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,
. . . . 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 re ect
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)

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 What Finke suggests is that a local court need not nd 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? 15
SOVEREIGN IMMUNITY AS A POLITICAL DECISION

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 Puno's concurring opinion in Liang v. People, to wit: TIaEDC

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.:

"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 a rmed 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 o cer of
the government, the Solicitor General in this case, or other o cer 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 o cial of the WHO. Verstuyft was certi ed 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 certi cation election led 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 petitioner's
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.
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 I n 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 led 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.

xxx xxx xxx

Clearly, the most important immunity to an international o cial 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 o cial is independent of the
jurisdiction of the local authorities for his o cial 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 o cial's immunity for his o cial 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 o cial acts
appear, aside from the aforementioned treatises, in the constitution of most modern
international organizations. The acceptance of the principle is su ciently 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 rst determine whether diplomatic or sovereign immunity can be involved
by the foreign o cials involved. If it can be invoked, then the next analysis should be whether
this involved 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 O cers 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 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
o cial 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: ISTHED

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 rst-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:
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 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 con ict, 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 su cient 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 con ict. 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.:
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 nd
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 State's 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
. . . [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 of the international law of armed con ict. 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

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:
The rules of State immunity are procedural in character and are con ned to
determining whether or not the courts of one State may exercise jurisdiction in respect of
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 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 Commission's Articles on State Responsibility. 25
cHCIDE

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:
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 o cers 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
a rms that it gave the Guardian su cient 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 rst 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.
LEONEN , J., concurring :

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
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 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 justi es 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 community's 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. CAHaST

Citizen's suits are suits brought by parties suffering direct and substantial injuries;
although in the environmental eld, 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.
Citizen's 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 su ciently 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 re ned 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
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
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 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 agent's sovereign being sued in our
courts.
International law does not also prohibit legislation that clari es national policy and,
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
in rmities. 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. HEAcDC

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:
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 de nition 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 o cials and their representatives to place a deposit to the
TRNP Trust Fund, as de ned in Section 17 of RA 10067, as a bona de gesture towards
full reparations;
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 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
scienti c 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 Environment 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;
ACEIac

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

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

Petitioners include representatives from people's organizations, non-government

organizations, accredited public interest groups, environmental institutes, government
o cials, and academicians. 6 Respondents, on the other hand, are the American commanding
o cers of the USS Guardian and the Balikatan 2013 Exercises, incumbent Philippine
government o cials, and Philippine military o cers involved, by virtue of their o ce, in issues
arising out of the grounding of the USS Guardian in Tubbataha Reefs and its subsequent
salvage. 7
The USS Guardian is a fth 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, 2013 11 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
Thus, on January 17, 2013, while en route to Makasaar, Indonesia, the USS Guardian ran
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
On April 17, 2013, petitioners led 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
We note that on May 27, 2013, the O ce of Legal Affairs of the Department of Foreign
Affairs sent a letter to this court, requesting that the notice of this court's resolution dated
May 8, 2013 be returned, as it was not an agent for the service of processes upon American
respondents. 19
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 The pleadings presented the following issues: a) whether petitioners have legal
standing to le 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 court's 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 HATICc

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," 2 5 establishes a waiver of the US military o cers
involved in the incident's 26 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
Petitioners stated that RCRA waives sovereign immunity in citizen's 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
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
Petitioners also argued that the USS Guardian is liable in rem 33 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, o ce, or
employment. 36 EDATSI

II
The parties do not have legal standing
Petitioners brought this case as a citizen's suit under the Tubbataha Reefs Natural Park
Act of 2009, in conjunction with the Rules of Procedure for Environmental Cases. 37
Section 37 of the Tubbataha Reefs Natural Park Act of 2009 allows any citizen to le a
civil, criminal, or administrative case against:
(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 o cer who wilfully or grossly neglects the performance of an act,
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 speci cally 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 led until after a thirty (30)-day notice has been given to
the public o cer and the alleged violator concerned and no appropriate action has been
taken thereon. The court shall exempt such action from the payment of ling fees, upon
prima facie showing of the non-enforcement or violations complained of and exempt the
plaintiff from the ling 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.

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. TcCDIS

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 bene ted 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

A real party in interest is a litigant whose right or interest stands to bene t 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: ACTESI

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

prosecuted or defended by a representative or someone acting in a duciary
capacity, the bene ciary 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 bene t 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 bene t or suffer from the judgment
of the case. The rule requires that the bene ciary be identi ed 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
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 duciary 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 identi ed
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 citizen's suit under the Rules of Procedure for Environmental Cases is a
representative suit. A citizen's suit is defined:
SEC. 5. Citizen suit. — Any Filipino citizen in representation of others,
including minors or generations yet unborn, may le an action to enforce rights or
obligations under environmental laws. Upon the ling 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 fteen (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 citizen's 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 rst
established in Oposa v. Factoran. In Oposa v. Factoran, this court ruled that the
representatives derived their personality to le 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
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.
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 oversimpli cation of what may be a complex issue,
especially in light of the impossibility of determining future generation's 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 unborn's
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:
. . . is an old axiom of law, dictated by wisdom and sancti ed 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
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 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 nis 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 grati cation 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: TDCcAE

. . . (1) the former judgment must be nal; (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 rst 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
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 de nitely determined by competent tribunals
shall be accepted as irrefragable legal truth." 51
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 signi cant 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 children's 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
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 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:
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 nds to be
su ciently numerous and representative as to fully protect the interests of all
concerned may sue or defend for the bene t of all. Any party in interest shall have
the right to intervene to protect his individual interest. (12a)
HECaTD

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:
T h e 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
su ciently 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 certi ed 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:
. . . We have no con ict 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
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 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) ACTISD

In a class suit, petitioners necessarily bring the suit in two capacities: rst, 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 shing 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
"free-riders" in a case. This results in a negative externality: an environmental management
concept that delves into the effect of an individual's or rm's 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 led
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 su ciently
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 Doña Paz, 58
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 which quoted Moore's Federal Practice we noted:
A "true class action" — distinguished from the so-called hybrid and the
spurious class action in U.S. Federal Practice — "involves principles of compulsory
joinder, since . . . (were it not) 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. EIaDHS

Courts, therefore, must ensure that the parties that bring the suit are su ciently
numerous to ensure that all possible interests and arguments have been considered. The
community, class, group, or identity that is represented must be su ciently de ned 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, scienti c, 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 ling 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:
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 o cials 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:
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 de nition of allowable activities near or around the
Tubbataha Reefs [Natural] Park, but away from the damaged site and the additional
buffer zone;
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 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;
xxx xxx xxx

8) for the declaration of exclusive criminal jurisdiction of Philippine authorities

over erring USS Guardian personnel;

xxx xxx xxx

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

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

Defense, and the Department of Environment 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;
cIHDaE

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 le a suit in order that an injunctive writ or a
writ of kalikasan can be issued. It is su cient 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 scienti c 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 led 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: EHCaDS

Section 1. Nature of the writ. — The writ is a remedy available to a natural or

juridical person, entity authorized by law, people's 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 o cial or employee, or private individual or
entity, involving environmental damage of such magnitude as to prejudice the
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 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 speci cally provides that the
prejudice to life, health, or property caused by an unlawful act or omission of a public o cial,
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 led 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
Two things must be examined: rst, whether petitioners are quali ed 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 Princesa 63
• Rev. Deogracias Iniguez, Jr., Bishop-Emeritus of Caloocan 64
• Frances Quimpo 65
• Teresita R. Perez, Ph.D 66
• Giovanni Tapang, Ph.D 67
• Jose Enrique Africa 68
• Nestor Baguinon 69
• A. Edsel Tupaz 70
The following petitioners represent organizations:
• Clemente Bautista Jr., Coordinator of Kalikasan People's Network for the
Environment 71
• 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-list 74
• Roland Simbulan, Ph.D., Junk VFA Movement 75
• Hon. Raymond Palatino, Representative of Kabataan Party-list 76
• Peter Gonzales, Vice Chairperson of Pambansang Lakas ng Kilusang
Mamamalakaya ng Pilipinas (Pamalakaya) 77
• Elmer Labog, Chairperson of Kilusang Mayo Uno 78
• Joan May Salvador, Secretary-General of Gabriela 79
• Theresa Concepcion, Earth Island Institute 80
• Mary Joan Guan, Executive Director for Center for Women's Resources 81 CcTHaD

Petitioners satisfy the rst 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 environmental
issue must be resorted to responsibly.
Petitioners in this case also seek the issuance of a temporary environmental protection
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 order or TEPO. Rule 7, Part III of the Rules of Procedure for Environmental Cases provides: STIHaE

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

it appears from the veri ed 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 ra e 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
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
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 state or
otherwise referred to as sovereign immunity should be further re ned. 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 de ning a tortious act or one that protects the environment
which implement binding international obligations cannot claim sovereign
immunity .
Some clari cation 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
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."
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 In Air Transportation O ce v. Spouses Ramos , 88 this court underscored the practical
considerations underlying the doctrine:
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) ETDaIC

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:
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

Alternatively, should there be an international agreement or a treaty 91 that articulates

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

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 2 94 as basis for its discussion:
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 1 987 Const itution . 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) IaECcH

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:
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 speci c case . 99
(Emphasis supplied, citations omitted)

This vagueness arises from the debate about the sources of international law for the
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 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
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
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 codi ed: 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 de ned 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:
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 . EISCaD

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 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 di culties 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:
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 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 con dence 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 States 108 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 force 109 for lacking the requisite number of member-
state signatories. 110 At present, it only has 28 signatories, 16 of which have either rati ed,
accepted, approved, or acceded to the treaty. 111
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 TDCAIS

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:
The UN Convention is not a codi cation 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 rati ed 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:
Article 31
Responsibility of the flag State for damage caused by a warship or other
government ship operated for non-commercial purposes
The ag 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:
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
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 ships operated for non-commercial purposes.

I agree that the UNCLOS does provide an opening clarifying the "international
responsibility" of the ag 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. HDATCc

We are aware of Bayan Muna v. Romulo 116 where the ponente for this court held:
. . . International agreements may be in the form of (1) treaties that
require legislative concurrence after executive rati cation; 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 e cacy is beyond doubt, a treaty having behind it the
authority of the President, the Senate, and the people; a rati ed treaty, unlike an executive
agreement, takes precedence over any prior statutory enactment. 117 (Emphasis supplied,
citations omitted)

This statement, however, should be con ned 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 may be present in the Philippines. . . ." 119
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:
This Court is of the rm 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,
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 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 signi cance 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 . EcTDCI

A treaty, as de ned 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 signi cance. 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. . . .
xxx xxx xxx

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 the United States of America accepts or
acknowledges the VFA as a treaty, and binds itself further to comply with its obligations
under the 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
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 rati cation 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
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 international agreement's 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 t o federal statute. In any case, self-executing
executive agreements have a status that is superior to U.S. state law
and inferior to the Constitu tion. 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 gure into the effect of an
executive agreement in the United States. Garcia adds: HDacIT

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

xxx xxx xxx

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 Congress's opinion on the matter. If, however, the President
enters into an agreement and his constitutional authority over the agreement's subject
matter is unclear, a reviewing court may consider Congress's 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
President's 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." 125
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:
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 . Speci cally, 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
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 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 justi ed applying foreign law out of
deference to foreign sovereigns, courts later justi ed their decisions out of deference to
the autonomy of private parties or to the political branches. Most recently, courts have
justi ed 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 justi cation for deference in a wide range of
cases concerning prescriptive, adjudicatory, and enforcement jurisdiction. (Emphasis
supplied, citation omitted)

On a substantive note, another issue raised in BAYAN v. Zam ora 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
nding at the outset that the VFA did not amount to grave abuse of discretion, this court no
longer proceeded to rule on this matter: ACaDTH

In fine, absent any clear showing of grave abuse of discretion on the part
of respondents, this Court — as the nal 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:

. . . the collection of international behavioral regularities that nations
over time come to view as binding on them as a matter of law. This standard
de nition 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 Root 130 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:
. . . 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
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 of the courts of another state . . . ." The Restatement further states unambiguously that
the rule of sovereign immunity is "an undisputed principle of international law." . . .

T h e 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
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 speci c 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:
. . . 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 EHTADa

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 o cial 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
o cial or employee of that State acting within the scope of his o ce 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) 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
The Australian Foreign States Immunities Act of 1985 provides for exceptions similar to
the ones found in the United Kingdom law. 147
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 involved 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
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 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
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:
In the present context, State practice of particular signi cance 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 re ected 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.ESIcaC

56. Although there has been much debate regarding the origins of State immunity
and the identi cation 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
con rmed 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 I, 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

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-
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 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:
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 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 con ict, 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 su cient 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 con ict. 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 State's
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 . AECcTS

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).
xxx xxx xxx

93. This argument therefore depends upon the existence of a con ict 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 con ict exists.
Assuming for this purpose that the rules of the law of armed con ict which prohibit the
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 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 con ict 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 con ned 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
Commission's Articles on State Responsibility . cDTSHE

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 con ict, 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 modi cation 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. 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

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 ag. 158
cSTCDA

Ghana countered:
. . . that the coastal State [Ghana] enjoys full territorial sovereignty over
internal waters, and that any foreign vessel located in internal waters is
subject to the legislative, administrative, judicial and jurisdictional powers of
the coastal State. " 159 (Emphasis supplied)

The order dated December 15, 2012 ruled the following:

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 . . . that a warship is an expression of the sovereignty of the State whose ag it
flies; 160

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

including in internal waters. . . . 161

xxx xxx xxx

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 con ict. Jurisdictional Immunities of the State (Germany v. Italy)
also referred to actions committed during World War II and especially referred to the situation
of international law at that time. The majority re ected 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 speci c 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 ag 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 re nes the limits of the
doctrine of sovereign immunity's application when determining jurisdictional
immunities of foreign warships speci cally 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 signi cant, as principles provide the leeway to accommodate legal and
factual circumstances surrounding each case that customary rules generally do not. 164 DHITCc

General principles of international law are said to be:

. . . 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

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
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 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

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
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 o cial (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
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. NLRC 173 discussed the restrictive application:
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).

xxx xxx xxx

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:
. . . 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: IDASHa

. . . 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.
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 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:
Express consent may be embodied in a general law or a special law.
xxx xxx xxx

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
les 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 o cial. In the 1970 case of Director of Bureau of
Telecommunications, et al. v. Aligaen, et al., 181 this court held that:
Inasmuch as the State authorizes only legal acts by its o cers, unauthorized
acts of government o cials or o cers are not acts of the State, and an
action against the o cials or o cers 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 o cer 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)DCIEac

Shauf v. Court of Appeals 183 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
Tortious acts or crimes committed while discharging o cial 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:
. . . 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 o cial duty. It was a tortious act which ridiculed the private
respondent. 187

We note that the American naval o cers were held to be accountable in their personal
capacities. 188
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 re ects one of the positions taken by scholars in
the jurisdiction-immunity discourse:
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 o cial acts of a
state (if we accept the principal distinction between private and public acts)
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 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 o cial character of the foreign state's conduct. 1 8 9 (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 di cult 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 exibility 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 de ning 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.

Footnotes

* On official leave.

** No part.

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

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."

4. Rollo, pp. 194-199.

5. <http://manila.usembassy.gov/pressphotoreleases2013/navy-commander-expresses-regret-
concerning-uss-guardian-grounding.html>.
6. "Joint Statement Between the Philippines and the United States on the USS Guardian Grounding on
Tubbataha Reef," February 5, 2013. Accessed at US Embassy website —
<http://manila.usembassy.gov/jointstatementguardiantubbataha.html>.

7. Rollo, pp. 89-92.

8. Id. at 156-191. In a letter dated 27 May 2013, the DFA's Office of Legal Affairs informed this Court
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 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.

10. Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA 244, 254, citing David v.
Macapagal-Arroyo, 522 Phil. 705, 755 (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).
12. Biraogo v. Philippine Truth Commission of 2010, G.R. Nos. 192935 & 193036, December 7, 2010,
637 SCRA 78, 151, citing Social Justice Society (SJS) v. Dangerous Drugs Board, et al., 591 Phil.
393, 404 (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.

17. Air 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.

22. Id. 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.

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 F Supp. 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 State's Jurisdiction Over Foreign Vessels" 14 Pace Int'l. Rev. 27, 28 (2002).

31. Id. at 29.

32. Art. 2, UNCLOS.

33. Art. 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."
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 34. Commander Robert C. "Rock" De Tolve, JAGC, USN, "At What Cost? America's 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)" — <http://navysite.de/cg/cg73.html>; "USS Port Royal Returns to
Homeport", Navy Military Home Page, Story Number NNS090211-02 Release Date: 2/11/2009
6:00 AM — <http://www.navy.mil/submit/display.asp?story_id=42502>; "Navy, state reach
settlement on USS Port Royal damage", posted Feb. 05, 2011 8:26 AM —
<http://www.hawaiinewsnow.com/story/13974224/navy-state-reach-settlement-on-uss-port-
royal-reef-damage>.
39. <http://manila.usembassy.gov/usgtargetedassistancetubbataha.html>.

40. Vinuya v. Romulo, G.R. No. 162230, April 28, 2010, 619 SCRA 533, 559, citing Oetjen v. Central
Leather Co., 246 U.S. 297, 302 (1918).
41. Supra note 36.

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

SERENO, C.J., concurring:

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.

18. J-MAURICE ARBOUR & GENEVIEVE PARENTS, DROIT INTERNATIONAL PUBLIC, 5th Ed., 331 (2006).

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

24. Id. at 91.

25. Id. at 93.

LEONEN, J., concurring:

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

2. See J. Finke, Sovereign Immunity: Rule, Comity or Something Else? , 21 (4) EUR J INT LAW 853-881,
854 (2011) <http://www.ejil.org/pdfs/21/4/2112.pdf>.

3. Id. at 856.

4. Id.

5. Rollo, pp. 89-92.

6. Id. at 5-7.

7. Id. at 7-8.

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.

13. Rollo, pp. 333-334.

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 5-7.

22. Rollo, p. 32.

23. Id. at 37-38.

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

25. Sections 1 and 2 of Article V provide:

"1. Subject to the provisions of this article:

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 (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."

26. Rollo, 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."

34. Rollo, 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.

41. Rebollido 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.

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

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

47. Id.

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

49. Id. at 304.

50. Id. at 306.

51. Id. at 308.

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

53. Id. at 563-565.

54. Id. at 567-568.

55. See Re: Request of the Plaintiffs, Heirs of the Passengers of the Doña Paz to Set Aside the Order
dated January 4, 1988 of Judge B.D. Chingcuangco, A.M. No. 88-1-646-0, March 3, 1988, 159
SCRA 623, 627 [En Banc].

56. Id.

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.

63. Rollo, 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.

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 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.

84. Rollo, p. 164.

85. Id.

86. Id. at 161.

87. J. Finke, Sovereign Immunity: Rule, Comity or Something Else? , 21 (4) EUR J INT LAW 853-881, 854
(2011) <http://www.ejil.org/pdfs/21/4/2112.pdf>.

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

89. Id. at 42.

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. "
95. Republic 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) <http://www.ejil.org/pdfs/21/4/2112.pdf>.

97. Id. at 856.

98. Id.

99. J. Finke, Sovereign Immunity: Rule, Comity or Something Else? , 21 (4) EUR J INT LAW 856-857
(2011) <http://www.ejil.org/pdfs/21/4/2112.pdf>.

100. Available at <http://legal.un.org/avl/pdf/ha/sicj/icj_statute_e.pdf>.

101. See D. Kennedy, The Sources of International Law, 2 (1) AMERICAN UNIVERSITY INT LAW
REVIEW, 196 (1987).

102. VIENNA CONVENTION ON THE LAW OF TREATIES (1961), art. 2 (1) (a)
<https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-1-18232-
English.pdf>.

103. E. Posner and Jack L. Goldsmith, A Theory of Customary International Law (John M. Olin
Program in Law and Economics Working Paper No. 63, 1998). See also M. Panezi, Sources of
Law in Transition: Re-visiting general principles of International Law, Ancilla Juris,
<http://www.anci.ch/_media/beitrag/ancilla2007_66_panezi_sources.pdf>. See also
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 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW (1987), sec. 102 (2).

104. E. Posner and Jack L. Goldsmith, A Theory of Customary International Law 70 (John M. Olin
Program in Law and Economics Working Paper No. 63, 1998). See also, E. LAUTERPACHT,
INTERNATIONAL LAW BEING THE COLLECTED PAPERS OF HERSCH LAUTERPACHT, Vol. I, The
General Works.

105. J. Finke, Sovereign Immunity: Rule, Comity or Something Else? , 21 (4) EUR J INT LAW 853-881,
857 (2011) <http://www.ejil.org/pdfs/21/4/2112.pdf>.

106. COUNCIL OF EUROPE — EXPLANATORY REPORT ON THE EUROPEAN CONVENTION ON STATE

IMMUNITY (ETS No. 074), <http://conventions.coe.int/Treaty/EN/Reports/Html/074.htm>.

107. Id.

108. December 2, 2004.

109. The Philippines is not a signatory to the Convention.

110. See art. 30 of Convention.

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

<https://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=III-13&chapter=3&lang=en>.

112. UN CONVENTION ON JURISDICTIONAL IMMUNITIES OF STATES AND THEIR PROPERTIES,

preamble.

113. W. Nagan and J. L. Root, The Emerging Restrictions on Sovereign Immunity: Peremptory Norms of
International Law, the UN Charter, and the Application of Modern Communications Theory, 38
N.C. J. INT'L L. & COMM. REG. 375 (2013)
<http://www.law.unc.edu/journals/ncilj/issues/volume38/issue-2-winter-2013/the-emerging-
restrictions-on-sovereign-immunity-peremptory-norms-of-international-law-the-un-charter-and-
the-application-of-modern-communications-theo/>.

114. Id. at 60-61.

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

<https://intlaw.univie.ac.at/fileadmin/user_upload/int_beziehungen/Internetpubl/wiesinger.pdf>.

116. Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA 244 [Per J. Velasco, Jr., En
Banc].
117. Id. at 258-260.

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

119. Id. at 637.

120. Id. at 656.

121. Id. at 657-660.

122. M. J. Garcia (Legislative Attorney), International Law and Agreements: their effect upon US law,
CONGRESSIONAL RESEARCH SERVICE 7-5700 RL32528 (2014),
<http://fas.org/sgp/crs/misc/RL32528.pdf>.

123. Id.

124. Id. at 4.

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

<http://www.law.duke.edu/journals/Icp>.

126. Id. at 27.

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 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)
<http://www.law.unc.edu/journals/ncilj/issues/volume38/issue-2-winter-2013/the-emerging-
restrictions-on-sovereign-immunity-peremptory-norms-of-international-law-the-un-charter-and-
the-application-of-modern-communications-theo/>.
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) <http://www.ejil.org/pdfs/21/4/2112.pdf>.

135. J. Finke, Sovereign Immunity: Rule, Comity or Something Else? , 21 (4) EUR J INT LAW 853-881,
871 (2011) <http://www.ejil.org/pdfs/21/4/2112.pdf>.

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
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 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, II — (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, 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 <http://www.icj-

cij.org/docket/files/143/16883.pdf.>; See also P. B. Stephan, Sovereign Immunity and the
International Court of Justice: The State System Triumphant, VIRGINIA PUBLIC LAW AND
LEGAL THEORY RESEARCH PAPER NO. 2012-47 (2012) <http://ssrn.com/abstract=2137805>.

149. Id. at pars. 27-29.

150. Id.

151. Id. at par. 37.

152. Id.

153. Id. at par. 79.

154. Id. at pars. 55-57.

155. Id. at par. 60.

156. Id. at pars. 82-95.

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) <http://www.ejil.org/pdfs/21/4/2112.pdf>.

164. J. Finke, Sovereign Immunity: Rule, Comity or Something Else? , 21 (4) EUR J INT LAW 853-881,
872 (2011) <http://www.ejil.org/pdfs/21/4/2112.pdf>.

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 165. M. Panezi, Sources of Law in Transition: Re-visiting general principles of International Law,
Ancilla Juris 71 (2007)
<http://www.anci.ch/_media/beitrag/ancilla2007_66_panezi_sources.pdf>.

166. J. Finke, Sovereign Immunity: Rule, Comity or Something Else? , 21 (4) EUR J INT LAW 853-881,
874 (2011) <http://www.ejil.org/pdfs/21/4/2112.pdf>.

167. J. Finke, Sovereign Immunity: Rule, Comity or Something Else? , 21 (4) EUR J INT LAW 853-881,
853 (2011) <http://www.ejil.org/pdfs/21/4/2112.pdf>.

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) <http://www.ejil.org/pdfs/21/4/2112.pdf>.

170. J. Finke, Sovereign Immunity: Rule, Comity or Something Else? , 21 (4) EUR J INT LAW 853-881,
859 (2011) <http://www.ejil.org/pdfs/21/4/2112.pdf>.

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 230-232.

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

176. Id. at 184.

177. G.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 267-268.

183. G.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].

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) <http://www.ejil.org/pdfs/21/4/2112.pdf>.

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