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General Considerations – State Immunity/Sovereign Immunity

ARIGO v. SWIFT
G.R. No. 206510 | September 16, 2014 | J. Villarama, Jr.

Petitioners: Father Pedro Arigo (Vicar Apostolic of Puerto Princesa), Fr. Deogracias Iñiguez, Jr. (Bishop-
Emeritus of Caloocan), Kalikasan-PNE, Bagong Alyansang Makabayan, Bayan Muna Partylist, Junk VFA
Movement, Teresita Perez, Kabataan Partylist, Pamalakaya, Agham, Kilusang Mayo Uno, Gabriela, Jose
Enrique Africa, Theresa Concepcion, Mary Joan Guan, Nestor Baguinon, Edsel Tupaz

Respondents: Scott Swift (Commander of the U.S. 7th Fleet), Mark Rice (Commanding Officer of the
USS Guardian), President Benigno Aquino IIII (AFP Commander-in-Chief), DFA Secretary Albert Del
Rosario, Executive Secretary Paquito Ochoa, Jr., DND Secretary Voltaire Gazmin, Secretary, DENR
Secretary Ramon Jesus Paje, Vice Admiral Jose Luis M. Alano (PH Navy Flag Officer In Command),
Admiral Rodolfo Isorena (PH Coast Guard Commandant), Commodore Enrico Efren Evangelista (PH
Coastguard-Palawan), Major Gen. Virgilio Domingo (Commandant of APF Command), Lt. Gen. Terry
Robling (US Marine Corps Forces, Pacific and Balikatan 2013 Exercise Co-Director)

Doctrine: If the acts giving rise to a suit are those of a foreign government done by its foreign agent,
although not necessarily a diplomatic personage, but acting in his official 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. If the judgment against such officials will require
the state itself to perform an affirmative 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.

CASE SUMMARY
FACTS: A US warship obtained clearance to enter and exit Philippine territorial waters, but while it was
exiting, it ran aground at the Tubbataha Reefs Natural Park. Petitioners filed a petition for the issuance of
a writ of kalikasan, with prayer for the issuance of a Temporary Environmental Protection Order (TEPO),
payment of damages and other reliefs against US military officials, also impleading Philippine government
officials for reliefs.

HELD: The Supreme Court held that the US respondents cannot be sued in light of the doctrine of
sovereign immunity. However, this does not preclude the international responsibility of US under the
UNCLOS, even if the country not a party to the UNCLOS. Since UNCLOS is a codification of traditional
uses of the oceans, the US can be bound under Article 31 that is considered to reflect customary
international law. However, the SC ultimately denied the petition for the writ, saying that it is better for the
executive department to work out solutions as to reparation and damages, which is a political matter not
within the ambit of the court.

FACTS
 Tubbataha is recognized as one of Philippine’s oldest ecosystems and an important habitat for
internationally endangered marine species.
o It is composed of 2 huge reefs at the heart of the Coral Triangle in Central Sulu Sea.
o In 1988, it was declared a National Marine Park by virtue of proclamation issued by
President Cory Aquino.
o In 1993, UNESCO inscribed it as a World Heritage Site, recognizing its ecological and
aesthetic importance.
o In 2010, Congress passed R.A. No. 10067 or the Tubbataha Reefs Natural Park (TRNP)
Act to ensure protection of the globally significant economic, biological, sociocultural, and
educational values of the Tubbataha. Under its “no-take” policy, entry into the TRNP is
strictly regulated.

 In 2012, the US Embassy in the Philippines requested diplomatic clearance for the USS
Guardian, an Avenger-class mine countermeasure ship of the US Navy, to enter and exit the
territorial waters of the Philippines for maintenance and routine ship replenishment. On January

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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.

 Petitioners, composed of the clergy, partylist representatives, progressive and non-government

organizations and networks, and individual citizens filed a petition for the issuance of a writ of
kalikasan, with prayer for the issuance of a TEPO.
o Petitioners claim that the grounding, salvaging, and post-salvaging operations of the US
caused and continue to cause environmental damages of such magnitude as to affect
Palawan and nearby provinces.
o Impleading as respondents Scott Swift (Commander of the U.S. 7th Fleet), Mark Rice
(Commanding Officer of the USS Guardian), and Terry Robling (US Marine Corps
Forces, Pacific and Balikatan 2013 Exercise Co-Director), together with several high-
ranking PH government and military officials as respondents, petitioners asked, among
other things, that the respondents cease and desist all operations over the grounding
incident, as well as the payment of just compensation and the settlement of all
meritorious claims for damages caused to Tubbataha Reef.
o The petitioners also sought a directive from the Supreme 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

ISSUES + HELD
ISSUE #1: W/N the Supreme Court has jurisdiction over the US respondents – NO

 The immunity of the State from suit, also known as the doctrine of sovereign immunity or non-
suability of the State, is expressly provided in Article XVI of the 1987 Constitution, which states
that the State may not be sued without its consent.

 Sovereign immunity is one of the generally accepted principles of international law that the
Philippines adopted as part of the law of the land. Even without such affirmation, the Philippines
would still be bound by the generally accepted principles of international law under the doctrine of
incorporation, which provides that 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.

 The doctrine of state immunity is based on the following:

1. In the case of the local state, the doctrine of state immunity is based on the justification given
by Justice Holmes that “there can be no legal right against the authority which makes the law
on which the right depends.
2. In the case of the foreign state sought to be impleaded in the local jurisdiction, the 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.

 Such doctrine applies not only to suits against the State itself, but also to complaints filed against
officials of the state for acts allegedly performed by them in the discharge of their duties.

 The requisites for the doctrine of sovereign immunity to apply are the following:
1. The foreign agent, although not necessarily a diplomatic personage, was acting in his official
capacity, such that judgment against him would require affirmative action on the part of his
State to satisfy the judgment, such as the appropriation of the amount needed to pay the
damages decreed against him; and
2. Pursuant to the restrictive rule of state immunity, the act must have the character of jure
imperii, which pertains to sovereign and governmental acts, as distinguished from jure
gestionis that pertains to private, commercial, and proprietary acts.

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 The doctrine of sovereign immunity will not apply where the public official is being sued in his
private capacity as an ordinary citizen. This situation usually arises where the public official acts
without authority or in excess of the powers vested in him.

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

ISSUE #2: W/N the US has international responsibility under the UNCLOS for the damage caused
to the Tubbataha even if it is not a party to the said Convention – YES

 The international law of the sea is generally defined 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.”

 The UNCLOS is a multilateral treaty that 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). The freedom to use the world’s marine waters is one of the oldest customary principles
of international law. 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.

 While historically, warships enjoy sovereign immunity from suit as extensions of their flag State,
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 territorial waters.
o Article 30 of the UNCLOS provides: If any warship does not comply with the laws and
regulations of the coastal State concerning passage through its territorial sea, and disregards
any request for compliance therewith, the coastal State may require it to leave the territorial
sea immediately.
o Article 31 of the UNCLOS provides: The flag State shall bear international responsibility for
any loss or damage to the coastal State resulting from noncompliance

 Although the US is a non-party to the UNCLOS, Justice Carpio pointed out that:
1. President Raegan made a policy statement that the US will recognize the rights of other
States in the waters off their coasts, as reflected in the UNCLOS, so long as the rights of US
are also recognized by such States – Thus, Justice Carpio postulated that there is more
reason to expect US to recognize the rights of other states in their internal waters, such as
the Sulu Sea in this case.
2. President Clinton reiterated the policy to act in a matter consistent with the UNCLOS
provision relating to traditional uses of the oceans.
3. The non-ratification by US of the UNCLOS was due to its concerns over deep seabed mining
technology transfer provisions contained in UNCLOS’ regime of deep seabed mining (Part
XI), which has nothing to do with customary international rules on navigation.

 Hence, the SC concurred with Justice Carpio’s view that non-membership in the UNCLOS does
not mean that the US will disregard the rights of Philippines, as a coastal state, over its internal
waters and territorial sea.
o Accordingly, although UNCLOS upholds the immunity of warships from the jurisdiction of
Coastal States while navigating the latter’s territorial sea, the flag States shall be required

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General Considerations – State Immunity/Sovereign Immunity

to leave the territorial sea immediately if they flout the laws and regulations of the Coastal
State, and they will be liable for damages caused by their warships or any other
government vessel operated for noncommercial purposes under Article 31.
o It is difficult to imagine that our long-time ally and trading partner, which has been actively
supporting the country’s efforts to preserve our vital marine resources, would shirk from
its obligation to compensate the damage caused by its warship while transiting our
internal waters.
o 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 on
cooperation on a global or regional basis.

ISSUE #3: W/N the waiver of immunity from suit under VFA applies in this case – NO

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

 Moreover, the Court viewed that a ruling on the application or non-application of criminal
jurisdiction provisions of the VFA to US personnel who may be found responsible for the
grounding of the USS Guardian would be premature and beyond the province of a petition for a
writ of kalikasan.

 The Court also found it unnecessary to determine whether such waiver of State immunity is
indeed absolute. In the same vein, the SC said that it cannot grant damages which have resulted
from the violation of environmental laws. The Rules of Procedure for Environmental Cases allow
the recovery of damages, including the collection of administrative fines under RA 10067, in a
separate civil suit or that deemed instituted with the criminal action charging the same violation of
an environmental law. Moreover, exploring avenues for settlement of environmental cases is not
proscribed by the Rules. As can be gleaned from its provisions, mediation and settlement are
available for the consideration of the parties, and which dispute resolution methods are
encouraged by the court.

In the light of the foregoing, and particularly 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 SC deferred to the Executive Branch on the matter of compensation and
rehabilitation measures through diplomatic channels.
 The 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.

DISPOSITIVE: Wherefore, the petition for the issuance of the privilege of the writ of kalikasan is hereby
denied. No pronouncement as to costs. So ordered.

CONCURRING OPINIONS
Sereno, C.J.
 The US is immune from suit, as the USS Guardian was in Philippine waters under the authority of
the VFA, which has been upheld by the Court as valid. In this jurisdiction, the immunity of foreign
States is determined not by the courts, but rather by the executive branches (Vinuya v. Romulo).

Leonen, J.

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

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