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Bishops, environmentalists, activists sue US Navy, PH president over Tubbataha grounding

Posted on 17 April 2013 by admin

News Release
April  17, 2013

Some 19 petitioners, including two Catholic bishops, environmentalists, activists and lawyers filed a petition for a Writ of Kalikasan today before the Supreme Court over the grounding of a US minesweeper in the protected area of Tubbataha Reef. The filing came exactly three months since the grounding of the ship in the protected area known as a United Nations Heritage Site. The ship has since been removed and more than 2,000 square meters have been assessed to have been damaged by the US warship. This is the first time foreign troops have been named respondents in the Philippine’s Writ of Kalikasan.

In their 90-page petition, the groups are asking the High Court for a Temporary Environmental Protection Order for the Tubbataha reef, a determination of the fine to be imposed on the US Navy and the prosecution of the officers of the Guardian. The groups are also asking for a stop to US war games and port calls by US ships absent clear guidelines on environmental protection under the Visiting Forces Agreement.  The petition cites in general, the violation of the right to a balanced and healthful ecology, and in particular, of the Tubbataha Reefs Natural Park Act of 2009, or Republic Act No. 10067.

Petitoners Include Bishop Pedro D. Arigo Of Puerto Princesa,Palawan, Bishop Deogracias S.Iniguez, Jr., Bishop-Emeritus Of Caloocan, Frances Q. Quimpo, Clemente G. Bautista, Jr. of Kalikasan-Pne, Maria Carolina P. Araullo and Renato M. Reyes Jr. of Bagong Alyansang Makabayan (BAYAN), Rep. Neri Javier Colmenares of Bayan Muna Party-List, Roland G. Simbulan, Ph.D., Junk Vfa Movement, , Teresita R. Perez, Ph.D., Rep. Raymond V. Palatino, Kabataan Party-List, Peter SJ. Gonzales of Pamalakaya, Giovanni A. Tapang, Ph.D., Agham, Elmer C. Labog, Kilusang Mayo Uno, Joan May E. Salvador, Gabriela, diver Jose Erique A. Africa, Theresa A. Concepcion, Mary Joan A. Guan, Nestor T. Baguinon, Ph.D., and public interest lawyer Edsel F. Tupaz.

Signing as counsels for petitoner are Tupaz and the National Union of Peoples Lawyers through Atty Edre Olalia, Ephraim Cortez, Cristina Yambot, Vanessa Maguigad, and Terry Ridon.

Named respondents in the petition are Scott H. Swift in his capacity as Commander Of The U.S. 7th Fleet, Mark A. Rice in his capacity as Commanding Officer Of The USS Guardian, President Benigno S. Aquino III in his capacity as Commander-In-Chief of the Armed Forces Of The Philippines, Hon. Albert F. Del Rosario, Secretary, Department Of Foreign Affairs, Hon. Paquito Ochoa, Jr., Executive Secretary, Office Of The President, Hon. Voltaire T. Gazmin, Secretary, Department Of National Defense, Hon. Secretary Ramon Jesus P. Paje, Secretary, Department Of Environment And Natural Resources; Vice Admiral Jose Luis M. Alano, Philippine Navy Flag Officer In Command, Armed Forces Of The Philippines,Admiral Rodolfo D. Isorena, Commandant, Philippine Coast Guard,Commodore Enrico Efren Evangelista, Philippine Coast Guard Palawan, Major Gen. Virgilio O. Domingo, Commandant Of Armed Forces Of The Philippines Command, Lt. Gen. Terry G. Robling, Us Marine Corps Forces, Pacific, And Balikatan 2013 Exercise Co-Director.

Petitioners are demanding a fine for the US that is 12 times the initial estimate of the Philippine government. Comparing valuations in the 2009 grounding of the USS Port Royal in Hawaii, the petitioners peg just and reasonable compensation for the damage to Tubbataha between $16.8 and $27 million, a far cry from the $1.4 PH government estimate. Four years ago under similar circumstances, the US Navy paid the state of Hawaii a total of $15 million for restoration and settlement, for damage to an Oahu reef; which while larger than Tubbataha, has not been identified as a World Heritage Site. Petitioners cited that Tubbataha’s biodiversity concentration is 2.3 times more than that of the Hawaii reef.

Aside from the fines, the petitioners want the US forces responsible for the Tubbataha grounding to be prosecuted under Philippine laws.

VFA assailed

Petitioners believe that the respondents from the US Navy cannot invoke immunity under the Visiting Forces Agreement. They also believe that the US war games and port calls by US war ships pose a threat to the environment especially since there are no clear guidelines under the VFA. Petitioners are asking the High Court to require respondents from the US military to assume responsibility for prior and future environmental damage in general, and environmental damage under the VFA regime in particular. Meanwhile, petitioners are hoping that the TEPO will also include a stop to further US port calls and military exercises.

“It is our hope that the Supreme Court will act favorably on this petition and prevent further damage to our environment caused by the permanent and continuing presence of US troops and warships in our country. It is our hope that those who violated our laws, even if they are foreign troops, will be made accountable. The Aquino government has not acted in our best interest and has shown subservience to the US. With this petition, we hope we can set things right and achieve justice for the people, especially those whose livelihoods depend on Tubbataha,” said petitioner Bayan secretary general Renato M. Reyes, Jr.

Summary of key legal arguments:

1.       The grounding, salvaging, and post-salvage operations of the Guardian cause and continue to cause environmental damage of such magnitude as to affect the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which events violate the constitutional rights of petitioners’ to a balance and healthful ecology within the meaning of Section 16, Article II of the Constitution and the Oposa doctrine. The Oposa doctrine makes the protection and preservation of nature an intergenerational responsibility.

2.       Because the Philippines follows the English rule, a rule based on the territorial principle which is also followed in the United States, crimes perpetrated in or around the USS Guardian are triable in the courts of the territory where those crimes are committed. Philippine courts thus must assume jurisdiction over the crimes of unauthorized entry and disturbance of marine life; obstruction of justice for refusal to allow the local Coast Guard to properly board the USS Guardian as per protocol; unlawful anchoring; and dumping of waste under the Tubbataha Reefs Natural Park Act of 2009, or Republic Act No. 10067.

3.       Philippine case law affirms that Article V (“Criminal Jurisdiction”) of the Visiting Forces Agreement (VFA) is a waiver of immunity from suit, thus, the question is no longer a question of immunity but a question of detention as against custody of erring US Respondents. This is based on the ruling in the Subic rape case Nicolas v. Romulo (2009).

4.       During the lifetime of and in the aftermath of the Military Bases Agreement of 1947, history would show that the presence of U.S. troops in the Philippines has posed a threat to human and environmental health. With VFA in force and the conduct of ongoing Balikatan military operations, there is a need to check the Philippine military officials and the Balikatan joint command from committing further transboundary environmental harm and thus a Writ of Kalikasan is in order.

5.       Heightened ship activity involving no less than fifteen (15) heavy vessels in and around the damaged area of Tubbataha park from January 17, 2013 onward, which activities include the cutting, dismantling, drilling, towing, salvaging, and operation of mechanized equipment cause trauma to marine species in Tubbataha park. The precautionary principle requires the issuance of the Writ of Kalikasanand a Temporary Environmental Protection Order pending the final resolution of the case.

6.       Philippine officials failed to undertake meaningful consultations prior to and during the salvage operations, as well as during the ongoing cleanup and restoration operations, within the meaning of Sections 26 and 27 of the Local Government Code of 1991 and are thus criminally liable for such failure.

7.       From the moment of trespass, grounding, to post-salvage cleanup to date, the US Navy has failed or refused to prepare and provide an environmental impact statement (EIS) to accompany any proposed major extraterritorial federal action, which proposed action includes the salvage, post-salvage, and restoration plan and policies concerning the USS Guardian and her contractors. Thus, both US and Philippine respondents are in a state of continuing violation of Section 28 of R.A. 10067, international environmental law, as well as OJAG Code 12 of the United States Navy.

8.       Assuming without conceding that U.S. troops and military assets deployed in the Philippines in the name of Ballikatan are only “temporary,” still the very temporary nature of the military exercise under the VFA regime reinforces the need for issuance of the Writ of Kalikasan, set forth specific environmental 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 VFA regime in particular.

Tubbataha Petition for Writ of Kalikasan

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