Arigo v. Swift

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

MOST REV. PEDRO D. ARIGO, D.D., Vicar Apostolic
of Puerto Princesa, MOST REV. DEOGRACIAS S.
IÑIGUEZ, JR., BishopEmeritus of Caloocan,
FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA,
JR., KalikasanPNE, MARIA CAROLINA P.
ARAULLO, RENATO M. REYES, JR., Bagong
Alyansang Makabayan, HON. NERI JAVIER
COLMENARES, Bayan Muna Partylist, ROLAND G.
SIMBULAN, PH.D., Junk VFA Movement, TERESITA
R. PEREZ, PH.D., HON. RAYMOND V. PALATINO,
Kabataan Partylist, 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 Officer of the USS
Guardian, PRESIDENT BENIGNO S. AQUINO III, in
his capacity as CommanderinChief of the Armed
Forces of the Philippines, HON. ALBERT F. DEL
ROSARIO, Secretary, Department of Foreign Affairs,
HON. PAQUITO OCHOA, JR., Executive Secretary,
Office of the President, HON. VOLTAIRE T. GAZMIN,
Secretary, Department of National Defense, HON.
RAMON JESUS P. PAJE, Secretary, Department of
Environment and Natural Resources, VICE ADMIRAL
JOSE LUIS M. ALANO, Philippine Navy Flag Officer
in Command, Armed Forces of the Philippines,
ADMIRAL RODOLFO D. ISORENA, Commandant,
Philippine Coast Guard, COMMODORE ENRICO
EFREN EVANGELISTA, Philippine Coast Guard
Palawan, MAJOR GEN. VIRGILIO O. DOMINGO,
Commandant of Armed Forces of the Philippines
Command and LT. GEN. TERRY G.
_______________
* EN BANC.
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ROBLING, US Marine Corps Forces, Pacific and

Balikatan 2013 Exercise CoDirector, respondents.
Remedial Law; Civil Procedure; Locus Standi; Words and

Phrases; Locus standi is “a right of appearance in a court of
justice on a given question.”—Locus standi is “a right of
appearance in a court of justice on a given question.”
Specifically, it is “a party’s personal and substantial interest
in a case where he has sustained or will sustain direct injury
as a result” of the act being challenged, and “calls for more
than just a generalized grievance.” However, the rule on
standing is a procedural matter which this Court has relaxed
for nontraditional plaintiffs like ordinary citizens, taxpayers
and legislators when the public interest so requires, such as
when the subject matter of the controversy is of
transcendental importance, of overreaching significance to
society, or of paramount public interest.
Constitutional Law; Balance and Healthful Ecology; In the
landmark case of Oposa v. Factoran, Jr., 224 SCRA 792
(1993), the Supreme Court (SC) recognized the “public right” of
citizens to “a balanced and healthful ecology which, for the
first time in our constitutional history, is solemnly
incorporated in the fundamental law.”—In the landmark case
of Oposa v. Factoran, Jr., 224 SCRA 792 (1993), we recognized
the “public right” of citizens to “a balanced and healthful
ecology which, for the first time in our constitutional history,
is solemnly incorporated in the fundamental law.” We
declared that the right to a balanced and healthful ecology
need not be written in the Constitution for it is assumed, like
other civil and 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.
Remedial Law; Civil Procedure; Class Suit; On the novel
element in the class suit filed by the petitioners minors in
Oposa, this Court ruled that not only do ordinary citizens have
legal standing to sue for the enforcement of environmental
rights, they can do so in representation of their own and future
generations.—On the novel element in the class suit filed by
the petitioners minors in Oposa, this Court ruled that not only
do ordinary citizens have legal standing to sue for the
enforcement of environmental rights, they can do so in
representation of their own and future generations. Thus:
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Arigo vs. Swift
Petitioners minors assert that they represent their

generation as well as generations yet unborn. We find no
difficulty in ruling that they can, for themselves, for others of
their generation and for the succeeding generations, file 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, fisheries, 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.
Constitutional Law; State Immunity from Suit; 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).
—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.
Same; International Law; International Law of the Sea;
Words and Phrases; The international law of the sea is
generally defined as “a body of treaty rules and customary
norms governing the uses of the
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sea, the exploitation of its resources, and the exercise of

jurisdiction over maritime regimes.—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 which
was opened for signature on December 10, 1982 at Montego
Bay, Jamaica. It was ratified by the Philippines in 1984 but
came into force on November 16, 1994 upon the submission of
the 60th ratification.
Same; Same; Same; United Nations Convention on the
Law of the Sea; The United Nations Convention on the Law of
the Sea (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.—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). 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.
Same; Same; State Immunity from Suit; Visiting Forces
Agreement; Writ of Kalikasan; The waiver of State immunity
under the Visiting Forces Agreement (VFA) pertains only to
criminal jurisdiction and not to special civil actions such as
the present petition for issuance of a writ of Kalikasan.—The
VFA is an agreement which defines 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 defines
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.
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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
filing of a petition for the issuance of the writ of kalikasan
shall not preclude the filing of separate civil, criminal or
administrative actions.
Same; Same; Same; Same; Same; A ruling on the
application or nonapplication of criminal jurisdiction
provisions of the Visiting Forces Agreement (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.—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 find 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 fines
under R.A. No. 10067, in a separate civil suit or that deemed
instituted with the criminal action charging the same
violation of an environmental law.
Same; Same; Foreign Relations; It is settled that “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.”—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 protec
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tion, 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.”
SERENO, CJ., Concurring Opinion:
Constitutional Law; International Law; Visiting Forces
Agreement; Treaties; View that acts done pursuant to the
Visiting Forces Agreement (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.
—In this case, the two Naval Officers were acting pursuant to
their function as the commanding officers of a warship,
traversing Philippine waters under the authority of the
Visiting Forces Agreement (VFA). While the events beg the
question of what the warship was doing in that area, when it
should have been headed towards Indonesia, its presence in
Philippine waters is not wholly unexplainable. The VFA is a
treaty, and it has been affirmed as valid by this Court in
Bayan v. Zamora, 342 SCRA 449 (2000), and affirmed in Lim
v. Executive Secretary, 380 SCRA 739 (2002), and Nicolas v.
Romulo, 578 SCRA 438 (2009). 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.
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Same; Same; State Immunity from Suit; View that under
the regime of international law, there is an added dimension to
sovereign immunity exceptions: the 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) contains
such privilege. Specifically, the FSIA contains exceptions for
(1) waiver; (2) commercial activity; (3) expropriation; (4)
property rights acquired through succession or donation; (5)
damages for personal injury or death or damage to or loss of
property; (6) enforcement of an arbitration agreement; (7)
torture, extrajudicial killing, aircraft sabotage, hostage
taking, or the provision of material support to such an act, if
the state sponsors terrorism; and (8) maritime lien in a suit
for admiralty based on commercial activity.
Same; Same; Same; View that immunity, unlike in other
jurisdictions, is determined not by the courts of law but by the
executive branches.—In Vinuya v. Romulo, 619 SCRA 533
(2010), 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.”
Immunity then, unlike in other jurisdictions, is determined
not by the courts of law but by the executive branches.
Same; Same; Same; View that the basic concept of state
immunity is that no state may be subjected to the jurisdiction
of another state without its consent.—The basic concept of
state immunity is that no state may be subjected to the
jurisdiction of another state without its consent. According to
Professor Ian Brownlie, it is “a procedural bar (not a
substantive defence) based on the status and functions of the
state or official in question.” Furthermore, its applicability
depends on the law and procedural rules of the forum state.
Same; Same; Same; Writ of Kalikasan; View that should
the Court issue the Writ, it could possibly entail international
responsibility for breaching the jurisdictional immunity of a
sovereign state.—No exception exists in Philippine or
international law that
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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.
LEONEN, J., Concurring Opinion:
Writ of Kalikasan; View that the writ of kalikasan is not
an allembracing legal remedy to be wielded like a political
tool.—The writ of kalikasan is not an allembracing 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.
Remedial Law; Civil Procedure; Class Suits; Citizen’s
Suits; View 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.—Citizen’s suits are
suits brought by parties suffering direct and substantial
injuries; although in the environmental field, these injuries
may be shared with others. It is different from class suits
brought as representative suits under Oposa v. Factoran, 224
SCRA 792 (1993). 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
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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.
Constitutional Law; International Law; State Immunity
from Suit; View that the doctrine of sovereign immunity is
understood as a basic right extended to states by other states
on the basis of respect for sovereignty and independence.—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. There appears to be a consensus among
states that sovereign immunity as a concept is legally binding.
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.
Same; Same; Same; View that 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.—This doctrine of
relative jurisdictional immunity (sovereign immunity) of
states and their agents becomes binding in our jurisdiction as
international law only through Section 2 of Article II or
Section 21 of Article VII of the Constitution. Article XVII,
Section 3 of the Constitution is a limitation on suits against
our state. It is not the textual anchor for determining the
extent of jurisdictional immunities that should be accorded to
other states or their agents. International law may have
evolved further than the usual distinction between acta jure
imperii and acta jure gestionis. Indications of state practice
even of public respondents show that jurisdictional immunity
for foreign states may not apply to certain violations of jus
cogens rules of international customary law. There can be tort
exemptions provided by statute and, therefore, the state
practice of an agent’s sovereign being sued in our courts.
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Remedial Law; Civil Procedure; Jurisdiction;

Environmental Cases; View that 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; This means that even in
environmental cases, Rule 3, Sections 2, 3, or 12 of the 1997
Rules of Civil Procedure should still also apply.—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, Sections 2, 3, or 12 of the 1997 Rules of Civil
Procedure should still also apply.
Same; Same; Real PartyinInterest; View that a real
partyininterest is a litigant whose right or interest stands to
benefit or get injured by the judgment of the case.—A real
partyininterest is a litigant whose right or interest stands to
benefit or get injured by the judgment of the case. The
interest referred to must be material interest, founded upon a
legal right sought to be enforced. They bring a suit because
the act or omission of another has caused them to directly
suffer its consequences. Simply put, a real partyininterest
has a cause of action based upon an existing legal rightduty
correlative.
Same; Same; Representatives; Environmental Cases; View
that in environmental cases, Section 3 of Rule 3 of the 1997
Rules of Civil Procedure may be used to bring a suit, provided
that two (2) elements concur: a) the suit is brought on behalf of
an identified party whose right has been violated, resulting in
some form of damage, and b) the representative authorized by
law or the Rules of Court to represent the victim.—A
“representative” is not the party who will actually benefit or
suffer from the judgment of the case. The rule requires that
the beneficiary be identified as he or she is deemed the real
partyininterest. This means that acting in a representative
capacity does not turn into a real partyininterest someone
who is other
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wise an outsider to the cause of action. This rule enumerates

who may act as representatives, including those acting in a
fiduciary capacity. While not an exhaustive list, it does set a
limit by allowing only those who are “authorized by law or
these Rules.” In environmental cases, this section may be
used to bring a suit, provided that two elements concur: a) the
suit is brought on behalf of an identified party whose right
has been violated, resulting in some form of damage, and b)
the representative authorized by law or the Rules of Court to
represent the victim.
Same; Same; Citizen’s Suits; View that 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.—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. 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.”
Same; Same; Same; Environmental Cases; View that 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 (3) possible dangers.—“Minors and generations yet
unborn” is a category of real party in interest that was first
established in Oposa v. Factoran, 224 SCRA 792 (1993). In
Oposa v. Factoran, this court ruled that the representatives
derived their personality to file a suit on behalf of succeeding
generations from “intergenerational responsibility.” 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. 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
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unable to take part in the suit, putting into question its

representativeness. Second, varying interests may potentially
result in arguments that are bordering on political issues, the
resolutions of which do not fall upon this court. Third,
automatically allowing a class or citizen’s suit on behalf of
“minors and generations yet unborn” may result in the
oversimplification of what may be a complex issue, especially
in light of the impossibility of determining future generation’s
true interests on the matter.
Same; Same; Res Judicata; View that the doctrine of res
judicata bars parties to litigate an issue more than once, and
this is strictly applied because “the maintenance of public
order, the repose of society . . . require that what has been
definitely determined by competent tribunals shall be accepted
as irrefragable legal truth.”—Res judicata renders conclusive
between the parties and their privies a ruling on their rights,
not just for the present action, but in all subsequent suits.
This pertains to all points and matters judicially tried by a
competent court. The doctrine bars parties to litigate an issue
more than once, and this is strictly applied because “the
maintenance of public order, the repose of society . . . require
that what has been definitely determined by competent
tribunals shall be accepted as irrefragable legal truth.”
Same; Same; Same; View that 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.—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.
Same; Same; Class Suits; View that in a class suit,
petitioners necessarily bring the suit in two capacities: first, as
persons directly injured by the act or omission complained of;
and second, as representatives of an entire class who have
suffered the same injury.—In a class suit, petitioners
necessarily bring the suit in two capacities: first, as persons
directly injured by the act or omission complained of; and
second, as representatives of an entire class who have suf
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fered 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.
Same; Same; Same; Environmental Cases; View that not
all environmental cases need to be brought as class suits.—Not
all environmental cases need to be brought as class suits.
There is no procedural requirement that majority of those
affected must file a suit in order that an injunctive writ or a
writ of kalikasan can be issued. It is sufficient that the party
has suffered its own direct and substantial interest, its legal
basis is cogent, and it has the capability to move forward to
present the facts and, if necessary, the scientific basis for its
analysis for some of these cases to be given due course.
Same; Same; Same; Same; Wvil prorit of Kalikasan; View
that the writ of kalikasan is a remedy that covers
environmental damages the magnitude of which transcends
both political and territorial boundaries.—The writ of
kalikasan is a remedy that covers environmental damages the
magnitude of which transcends both political and territorial
boundaries. It specifically provides that the prejudice to life,
health, or property caused by an unlawful act or omission of a
public official, public employee, or a private individual or
entity must be felt in at least two cities or provinces. The
petition for its issuance may be filed on behalf of those whose
right to a balanced and healthful ecology is violated, provided
that the group or organization which seeks to represent is
duly accredited.
Same; Same; Same; Same; Same; Temporary
Environmental Protection Order; View that a Temporary
Environmental Protection Order (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.
—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. The crucial elements in its issuance are the
presence of “extreme urgency” and “grave injustice and
irreparable injury” to the applicant. 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
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grounded USS Guardian have been concluded. Furthermore,

the Notice to Mariners No. 0112013 issued by the Philippine
Coast Guard on January 29, 2013 effectively set the metes
and bounds of the damaged area. This notice also prohibited
“leisure trips to Tubbataha” and advised “all watercrafts
transitting the vicinity to take precautionary measures.”
Constitutional Law; International Law; State Immunity
from Suit; 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.—It is my position that doctrine on relative
jurisdictional immunity of foreign states or otherwise referred
to as sovereign immunity should be further refined. I a m of
the view tha t immunity does not necessa rily a pply to a ll
the foreign respondents should the ca se ha ve been
brought in a timely ma nner, with the proper remedy,
a nd in the proper court. Those who ha ve directly a nd
a ctua lly committed culpa ble a cts or a cts resulting from
gross negligence resulting in the grounding of a foreign
wa rship in viola tion of our la ws defining a tortious a ct
or one tha t protects the environment which implement
binding interna tiona l obliga tions ca nnot cla im
sovereign immunity. Some clarification may be necessary to
map the contours of relative jurisdictional immunity of foreign
states otherwise known as the doctrine of sovereign
immunity. The doctrine of sovereign immunity can be
understood either as a domestic or an international concept.
Same; Same; Same; View that there appears to be a
consensus among states that sovereign immunity as a concept
is legally binding.—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. There appears to be a consensus among states
that sovereign immunity as a concept is legally binding.
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. Finke presents: States accept sovereign
immunity as a legally binding concept, but only on a very
abstract level. They a gree on the genera l idea of
immunity, but disa gree on the extent to which they
a ctua lly must gra nt immunity in a specific ca se.
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Arigo vs. Swift
Same; Same; Same; European Convention on State

Immunity; Words and Phrases; View that in the Council of
Europe’s explanatory report, sovereign immunity is defined as
“a concept of international law, which has developed out of the
principle par in parem non habet imperium, by virtue of which
one State is not subject to the jurisdiction of another State.”—
The European Convention on State Immunity is a treaty
established through the Council of Europe on May 16, 1972.
In the Council of Europe’s explanatory report, sovereign
immunity is defined as “a concept of international law, which
has developed out of the principle par in parem non habet
imperium, by virtue of which one State is not subject to the
jurisdiction of another State.” 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 interna tiona l rela tions a nd
the increa sing intervention of Sta tes in spheres
belonging to priva te la w ha ve posed the problem still
more a cutely by increa sing the number of disputes
opposing individua ls a nd foreign Sta tes. There are, at
present, two theories, that of a bsolute Sta te immunity
which is the logical consequence of the principle stated above
a nd that of rela tive Sta te immunity which is tending to
predomina te on a ccount of the requirement of modern
conditions. According to this la tter theory, the Sta te
enjoys immunity for a cts jure imperii but not for a cts
jure gestionis, tha t is to sa y when it a cts in the sa me
wa y a s a priva te person in rela tions governed by priva te
la w. This divergence of opinion causes difficulties in
international relations. States whose courts and
administrative authorities apply the theory of absolute State
immunity are led to call for the same treatment abroad.
Same; Same; Visiting Forces Agreement; View that the
extent of the Visiting Forces Agreement’s (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.—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 in
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Arigo vs. Swift
cludes respecting jurisdictional issues in cases involving an

offense committed by a US military personnel.
Same; Same; State Immunity from Suit; 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.—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.” The inconsistencies in state practice render the
possibility of invoking international comity even more
problematic.
Same; Same; Same; View that the International Court of
Justice’s position that sovereign immunity remains applicable
even if the action is based upon violations of international law
should be limited only to acts during armed conflict.—In sum,
the International Court of Justice’s position that sovereign
immunity remains applicable even if the action is based upon
violations of international law should be limited only to acts
during armed conflict. Jurisdictional Immunities of the State
(Germany v. Italy) also referred to actions commited during
World War II and especially referred to the situation of
international law at that time. The majority reflected the
attitude that sovereign immunity is a customary norm. It,
however, recognizes that uniformity in state practice is far
from the consensus required to articulate specific rules
pertaining to other circumstances — such as transgressions of
foreign warships of domestic legislation while granted
innocent passage. It impliedly accepted that states enjoyed
wide latitude to specify their own norms.
Same; Same; Same; View that as a principle of
international law, the doctrine of sovereign immunity is
deemed automatically incorporated in our domestic legal
system as per Article II, Section 2 of the Constitution.—
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.” This appears to be an accepted arrangement in light of
the different state immunity laws all over the world. As it
stands, states are allowed to draw the line in the application
of sovereign immunity in cases involving foreign states and
their agents. As a principle of
118
Arigo vs. Swift
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.
Same; Same; Same; View that tortious acts or crimes
committed while discharging official functions are also not
covered by sovereign immunity.—Shauf v. Court of Appeals,
191 SCRA 713 (1990), 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.” Tortious acts or crimes committed while
discharging official functions are also not covered by sovereign
immunity. Quoting the ruling in Chavez v. Sandiganbayan,
193 SCRA 282 (1991), this court held American naval officers
personally liable for damages in Wylie v. Rarang, 209 SCRA
357 (1992), 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 official duty. It was a tortious
act which ridiculed the private respondent.
Same; Same; Same; View that 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.—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.
Same; Same; Same; 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.—Considering the flexibility in
international law and the doctrines that we have evolved so
far, I a m of the view tha t immunity does not necessa rily
a pply to a ll the foreign respondents should the ca se
ha ve been brought in a timely ma nner, with the proper
remedy, a nd in the proper court. Those who ha ve
directly a nd a ctua lly committed culpa ble a cts or a cts
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Arigo vs. Swift
resulting from gross negligence resulting in the

grounding of a foreign wa rship in viola tion of our la ws
defining a tortious a ct or one tha t protects the
environment which implement binding interna tiona l
obliga tions ca nnot cla im sovereign immunity.
PETITION for issuance of a Writ of Kalikasan.

The facts are stated in the opinion of the Court.
Anthony Edsel Conrad F. Tupaz and National
Union of People’s Lawyers for petitioners.
VILLARAMA, JR., J.:

Before us is a petition for the issuance of a Writ of
Kalikasan with prayer for the issuance of a Temporary
Environmental Protection Order (TEPO) under Rule 7
of A.M. No.
0968SC, 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.
Fa ctua l Ba ckground

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
_______________
1 Tubbataha Reefs Natural Park <http://tubbatahareef.org>.
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Arigo vs. Swift
Central Sulu Sea, 150 kilometers southeast of Puerto

Princesa City, Tubbataha lies at the heart of the Coral
Triangle, the global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United
Nations Educational Scientific and Cultural
Organization (UNESCO) as a World Heritage Site. It
was recognized as one of the Philippines’ oldest
ecosystems, containing excellent examples of pristine
reefs and a high diversity of marine life. The 97,030
hectare protected marine park is also an important
habitat for internationally threatened and endangered
marine species. UNESCO cited Tubbataha’s
outstanding universal value as an important and
significant natural habitat for in situ conservation of
biological diversity; an example representing significant
ongoing 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 significant
economic, biological, sociocultural, educational and
scientific values of the Tubbataha Reefs into perpetuity
for the enjoyment of present and future generations.”
Under the “notake” policy, entry into the waters of
TRNP is strictly regulated and many human activities
are prohibited and penalized or fined, including fishing,
gathering, destroying and disturbing the resources
within the TRNP. The law likewise created the
Tubbataha Protected Area Management Board
(TPAMB) which shall be the sole policymaking and
permitgranting body of the TRNP.
_______________
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.”
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The USS Guardian is an Avengerclass 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 eastsoutheast 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 Navyled salvage team had finished removing the
last piece of the grounded ship from the coral reef.
_______________
4 Rollo, pp. 194199.

5<http://manila.usembassy.gov/pressphotoreleases 2013/navy
commanderexpressesregretconcerningussguardian
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>.
122

Arigo vs. Swift
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, filed the present petition
against 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 and Lt. Gen.
Terry G. Robling, US Marine Corps Forces, Pacific and
Balikatan 2013 Exercises CoDirector (“US
respondents”); President Benigno S. Aquino III in his
capacity as CommanderinChief 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 Officer 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
postsalvaging operations of the USS Guardian cause
and continue to cause environmental damage of such
magnitude as to affect the provinces of Palawan,
Antique, Aklan, Guimaras, Iloilo, Negros Occidental,
Negros Oriental, Zamboanga del Norte, Basilan, Sulu,
and TawiTawi, 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.
Specifically, petitioners cite the following violations
committed by US respondents under R.A. No. 10067:
unauthorized entry (Section 19); nonpayment of
conservation fees (Sec
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Arigo vs. Swift
tion 21); obstruction of law enforcement officer (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 final prayer of the petition, to wit:
WHEREFORE, in view of the foregoing, Petitioners

respectfully pray that the Honorable Court:
1. Immediately issue upon the filing 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 define and describe allowable activities of
ecotourism, diving, recreation, and limited commercial
activities by fisherfolk and indigenous communities near or
around the TRNP but away from the damaged site and an
additional buffer zone;
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Arigo vs. Swift
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 officers 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;
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;
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Arigo vs. Swift
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 officials and their
representatives to place a deposit to the TRNP Trust Fund
defined under Section 17 of RA 10067 as a bona fide 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 scientific and technical support to the TPAMB;
m. Order the Department of Foreign Affairs, Department of
National Defense, and the Department of Environment
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Arigo vs. Swift
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;
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 filed their

comment8 to the petition, petitioners also filed a motion
for early resolu
_______________
7 Rollo, pp. 8992.

8 Id., at pp. 156191. In a letter dated 27 May 2013, the DFA’s
Office of Legal Affairs informed this Court that it has received from
the Embassy of the United States the Notice sent by this Court, with
a request to return the same. It said that the US Embassy “asserts
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Arigo vs. Swift
tion and motion to proceed ex parte against the US

respondents.9

Respondents’ Consolida ted Comment

In their consolidated comment with opposition to the
application for a TEPO and ocular 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 file the present petition.
Locus standi is “a right of appearance in a court of
justice on a given question.”10 Specifically, it is “a
party’s personal and substantial interest in a case
where he has sustained or will sustain direct injury as a
result” of the act being challenged, and “calls for more
than just a generalized griev
_______________
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 p. 255.)
9 Id., at pp. 215247.
10 Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011,
641 SCRA 244, 254, citing David v. MacapagalArroyo, 522 Phil. 705,
755; 489 SCRA 160, 216 (2006).
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Arigo vs. Swift
ance.”11 However, the rule on standing is a procedural

matter which this Court has relaxed for nontraditional
plaintiffs like ordinary citizens, taxpayers and
legislators when the public interest so requires, such as
when the subject matter of the controversy is of
transcendental importance, of overreaching significance
to society, or of paramount public interest.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 first time in our
constitutional history, is solemnly incorporated in the
fundamental law.” We declared that the right to a
balanced and healthful ecology need not be written in
the Constitution for it is assumed, like other civil and
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 filed by the
petitioners minors in Oposa, this Court ruled that not
only do ordinary citizens have legal standing to sue for
the enforcement of environmental rights, they can do so
in representation of their own and future generations.
Thus:
_______________
11 Id., citing Jumamil v. Cafe, 507 Phil. 455, 465; 470 SCRA 475,
487 (2005), citing Integrated Bar of the Philippines v. Zamora, 392
Phil. 618, 632633; 338 SCRA 81, 100 (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; 570 SCRA 410, 421 (2008); Tatad v. Secretary of the Department
of Energy, 346 Phil. 321; 281 SCRA 330 (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 pp. 804805.
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Petitioners minors assert that they represent their

generation as well as generations yet unborn. We find no
difficulty in ruling that they can, for themselves, for others of
their generation and for the succeeding generations, file 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, fisheries, 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 first enunciated in
Oposa, insofar as it refers to minors and generations yet
unborn, is now enshrined in the Rules which allows the
filing 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 question of whether this
Court has
_______________
15 Id., at pp. 802803.

16 See Annotation to the Rules of Procedure for Environmental
Cases.
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Arigo vs. Swift
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 nonsuability 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.

In 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. x x x.
Even without such affirmation, 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 justification 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
_______________
17 Air Transportation Office v. Ramos, G.R. No. 159402, February 23,

2011, 644 SCRA 36, 41.
18 261 Phil. 777; 182 SCRA 644 (1990).
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be impleaded in the local jurisdiction, the added

inhibition is expressed in the maxim pa r in pa rem, non
ha bet 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 filed against officials of the state for acts
allegedly performed by them in the discharge of their
duties. The rule is that 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. [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)

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:
_______________
19 Id., at pp. 790792; pp. 652654.
20 445 Phil. 250; 397 SCRA 244 (2003).
132

Arigo vs. Swift
The precept that a State cannot be sued in the courts of a

foreign state is a longstanding rule of customary
international law then closely identified 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 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. The proscription is not accorded
for the benefit 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 official would require
the state itself to perform an affirmative 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 buybust opera
_______________
21 Id., at pp. 269270; pp. 259261. Citations omitted.

22 Id., at p. 268; p. 259, citing J.L. Brierly, “The Law of Nations,”
Oxford University Press, 6th edition, p. 244, (1963).
23 Supra note 18 at pp. 788789 & 797; p. 650.
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Arigo vs. Swift
tion conducted by two officers 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 filed by the said employee
against the military officers, the latter moved to dismiss
the case on the ground that the suit was against the US
Government which had not given its consent. The RTC
denied the motion but on a petition for certiorari and
prohibition filed before this Court, we reversed the RTC
and dismissed the complaint. We held that petitioners
US military officers were acting in the exercise of their
official functions when they conducted the buybust
operation against the complainant and thereafter
testified against him at his trial. It follows that for
discharging their duties as agents of the United States,
they cannot be directly impleaded for 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
In Shauf v. Court of Appeals,25 we discussed the
limitations of the State immunity principle, thus:
It is a different matter where the public official 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
_______________
24 United States of America v. Ruiz, 221 Phil. 179, 182183 & 184; 136
SCRA 487, 492 (1985).
25 G.R. No. 90314, November 27, 1990, 191 SCRA 713.
134
Arigo vs. Swift
Director of the Bureau of Telecommunications, et al. v.

Aligaen, etc., et al.: “Inasmuch as the State authorizes only
legal acts by its officers, unauthorized acts of government
officials or officers are not acts of the State, and an action
against the officials or officers by one whose rights have been
invaded or violated by such acts, for the protection of his
rights, is not a suit against the State within the rule of
immunity of the State from suit. In the same tenor, it has
been said that an action at law or suit in equity against a
State officer or the director of a State department on the
ground that, while claiming to act for the State, he violates or
invades the personal and property rights of the plaintiff,
under an unconstitutional act or under an assumption of
authority which he does not have, is not a suit against the
State within the constitutional provision that the State may
not be sued without its consent.” The rationale for this ruling
is that the doctrine of state immunity cannot be used as an
instrument for perpetrating an injustice.
xxxx
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 official
is being sued in his private and personal capacity as an
ordinary citizen. The cloak of protection afforded the
officers and agents of the government is removed the moment
they are sued in their individual capacity. This situation
usually arises where the public official acts without authority
or in excess of the powers vested in him. It is a wellsettled
principle of law that a public official 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)
_______________
26 Id., at pp. 727728.
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In this case, the US respondents were sued in their
official capacity as commanding officers of the US Navy
who had control and supervision over the USS
Guardian and its crew. The alleged act or omission
resulting in the unfortunate grounding of the USS
Guardian on the TRNP was committed while they were
performing official military duties. Considering that the
satisfaction of a judgment against said officials will
require remedial actions and appropriation of funds by
the US government, the suit is deemed to be one
against the US itself. The principle of State immunity
therefore bars the exercise of jurisdiction by this Court
over the persons of respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice
Antonio T. Carpio took the position that the conduct of
the US in this case, when its warship entered a
restricted area in violation of R.A. No. 10067 and
caused damage to the TRNP reef system, brings the
matter within the ambit of Article 31 of the United
Nations Convention on the Law of the Sea (UNCLOS).
He explained that while historically, warships enjoy
sovereign immunity from suit as extensions of their flag
State, Art. 31 of the UNCLOS creates an exception to
this rule in cases where they fail to comply with the
rules and regulations of the coastal State regarding
passage through the latter’ s internal waters and the
territorial sea.
According to Justice Carpio, although the US to date
has not ratified the UNCLOS, as a matter of long
standing policy the US considers itself bound by
customary international rules on the “traditional uses
of the oceans” as codified in UNCLOS, 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
_______________
27 24 F Supp. 2d 155, 159 (D.P.R. 1997).
136

Arigo vs. Swift
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.”28 The UNCLOS is a multilateral
treaty which was opened for signature on December 10,
1982 at Montego Bay, Jamaica. It was ratified 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

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

(1997).
29 Bertrand Theodor L. Santos, “Untangling a Tangled Net of

Confusion: Reconciling the Philippine Fishery Poaching Law and the
UNCLOS,” World Bulletin, Vol. 18: 83116, p. 96 (JulyDecember
2002).
30 Anne Bardin, “Coastal State’s Jurisdiction Over Foreign
Vessels,” 14 Pace Int’l. Rev. 27, 28 (2002).
31 Id., at p. 29.
32 Art. 2, UNCLOS.
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Arigo vs. Swift
In the case of warships,33 as pointed out by Justice

Carpio, they continue to enjoy sovereign immunity
subject to the following exceptions:
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.”
Article 30
Noncompliance 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
noncommercial purposes
The flag State shall bear international responsibility for
any loss or damage to the coastal State resulting from
the noncompliance by a warship or other government ship
operated for noncommercial 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 noncommercial purposes
With such exceptions as are contained in subsection A and
in Articles 30 and 31, nothing in this Conven
138

Arigo vs. Swift
tion affects the immunities of warships and other government
ships operated for noncommercial 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
nonparty 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 satisfied 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 significant 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
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no Senate action has been taken on UNCLOS by the 112th
Congress.34
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 reflected 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 states in their
internal waters, such as the Sulu Sea in this case.”
As to the nonratification 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
ratification 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
_______________
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).
140

Arigo vs. Swift
fies 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 reaffirms sovereign immunity of
warships, auxiliaries and government aircraft.
xxxx
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 first 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

nonmembership in the UNCLOS does not mean that
the US will disregard the rights of the Philippines as a
Coastal State over its internal waters and territorial
sea. We thus expect the US to bear “international
responsibility” under Art. 31 in connection with the
USS Guardian grounding which adversely affected the
Tubbataha reefs. Indeed, it is difficult to imagine that
our longtime 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.:
_______________
35 <http://www.jag.navy.mil/organization/code 10 law of the

sea.htm>.
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Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as
appropriate, on a regional basis, directly or through
competent international organizations, in formulating and
elaborating international rules, standards and recommended
practices and procedures consistent with this Convention, for
the protection and preservation of the marine environment,
taking into account characteristic regional features.

In fine, the relevance of UNCLOS provisions to the
present controversy is beyond dispute. Although the
said treaty upholds the immunity of warships from the
jurisdiction of Coastal States while navigating the
latter’s territorial sea, the flag States shall be required
to leave the territorial sea immediately if they flout the
laws and regulations of the Coastal State, and they will
be liable for damages caused by their warships or any
other government vessel operated for noncommercial
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.
We are not persuaded.
The VFA is an agreement which defines 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 defines 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
142

Arigo vs. Swift
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 filing of a

petition for the issuance of the writ of kalikasan shall not
preclude the filing of separate civil, criminal or administrative
actions.
In any case, it is our considered view that a ruling on

the application or nonapplication 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 find 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 fines under R.A. No. 10067,
in a separate civil suit or that deemed instituted with
the criminal action charging the same violation of an
environmental law.37
_______________
36 See BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec.

Zamora, 396 Phil. 623, 652; 342 SCRA 449, 483 (2000).
37 Rule 10, Rules of Procedure for Environmental Cases.
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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 official, government
agency, private person or entity to protect, preserve,
rehabilitate or restore the environment;
(c) Directing the respondent public official, government
agency, private person or entity to monitor strict compliance
with the decision and orders of the court;
(d) Directing the respondent public official, 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 officials) 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 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
144

Arigo vs. Swift
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
xxxx
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.
Mediation must be conducted within a nonextendible
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 30day period.
SEC. 4. Preliminary conference.—If mediation fails, the
court will schedule the continuance of the pretrial. 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:
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Arigo vs. Swift
(a) To assist the parties in reaching a settlement;

xxxx
SEC. 5. Pretrial conference; consent decree.—The judge
shall put the parties and their counsels under oath, and they
shall remain under oath in all pretrial 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.
xxxx
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 guidedmissile cruiser, the USS Port
Royal, ran a ground 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

To underscore that the US government is prepared
to pay appropriate compensation for the damage caused
by the USS Guardian grounding, the US Embassy in
the Philippines has announced the formation of a US
interdisciplinary scientific
_______________
38 “USS Port Royal (CG73)” <http://navysite.de/cg/cg73.html>;

“USS Port Royal Returns to Homeport,” Navy Military Home Page,
Story Number NNS09021102 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
statereachsettlementonussportroyalreefdamage>.
146

Arigo vs. Swift
team which will “initiate discussions with the

Government of the Philippines to review coral reef
rehabilitation options in Tubbataha, based on
assessments by Philippinebased marine scientists.”
The US team intends to “help assess damage and
remediation options, in coordination with the
Tubbataha Management Office, appropriate Philippine
government entities, nongovernmental 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 exer
_______________
39
<http://manila.usembassy.gov/usgtargetedassistancetubbataha.html>.
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Arigo vs. Swift
cise 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 certified by
the duly authorized representative of the United States
government. The VFA being a valid and binding
agreement, the parties are required as a matter of
international law to abide by its terms and provisions.42
The present petition under the Rules is not the proper
remedy to assail the constitutionality of its provisions.

WHEREFORE, the petition for the issuance of the
privilege of the Writ of Kalikasan is hereby DENIED.
No pronouncement as to costs.
SO ORDERED.
Carpio, Velasco, Jr., LeonardoDe Castro, Brion,

Peralta, Bersamin, Del Castillo, Perez, Reyes and
PerlasBernabe, JJ., concur.
Sereno, CJ., See Concurring Opinion.
Mendoza, J., On Official Leave.
Leonen, J., See Separate Concurring Opinion.
Jardeleza, J., No Part.
_______________
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;
578 SCRA 438, 462 (2009).
148

Arigo vs. Swift
CONCURRING OPINION

SERENO, CJ.:

I concur.
Sovereign immunity serves as a bar for the foreign
sovereign to be subjected to the trial process. Supported
both by local jurisprudence, as well as international law
(which forms part of the Philippine legal structure), the
doctrine should not be reversed in this particular case.

Sovereign Immunity in Philippine La w

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 conflicting concepts of sovereign immunity,
each widely held and firmly established. According to
the classical or absolute theory, a sovereign cannot,
without its consent, be made a respondent in the courts of
another sovereign. According to the newer or restrictive
theory, the immunity of the sovereign is recognized only with
regard to public acts or acts jure imperii of a state, but not
with regard to private acts or acts jure gestionis.
xxxx
The restrictive theory came about because of the entry of
sovereign states into purely commercial activities remotely
connected with the discharge of governmental functions. This
is particularly true with respect to the Communist states
which took
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control of nationalized business activities and international

trading.
In JUSMAG v. National Labor Relations Commission, this
Court affirmed the Philippines’ adherence to the restrictive
theory as follows:
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.
xxxx
As it stands now, the application of the doctrine of
immunity from suit has been restricted to sovereign or
governmental activities (jure imperii). The mantle of
state immunity cannot be extended to commercial, private
and proprietary acts (jure gestionis).
Since the Philippines adheres to the restrictive theory, it is
crucial to ascertain the legal nature of the act involved —
whether the entity claiming immunity performs
governmental, as opposed to proprietary, functions. As
held in United States of America v. Ruiz —
The restrictive application of State immunity is proper only
when the proceedings arise out of commercial transactions of
the foreign sovereign, its commercial activities or economic
affairs. Stated differently, a State may be said to have
descended to the level of an individual and can thus be
deemed to have tacitly given its consent to be sued only when
it enters into business contracts. It does not
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apply where the contract relates to the exercise of its

sovereign functions.1 (Emphases supplied. Citations
omitted)

From the Philippine perspective, what determines its
ability to impose its law upon the foreign entity would
be the act of the foreign entity — on whether the act is
an aspect of its sovereign function or a private act.
In this case, the two Naval Officers were acting
pursuant to their function as the commanding officers
of a warship, traversing Philippine waters under the
authority of the Visiting Forces Agreement (VFA).
While the events beg the question of what the warship
was doing in that area, when it should have been
headed towards Indonesia, its presence in Philippine
waters is not wholly unexplainable. The VFA is a
treaty, and it has been affirmed as valid by this Court
in Bayan v. Zamora,2 and affirmed in Lim v. Executive
Secretary3 and Nicolas v. Romulo.4 It has, in the past,
been used to justify the presence of United States
Armed Forces in the Philippines. In this respect
therefore, acts done pursuant to the VFA take the
nature of governmental acts, since both the United
States and Philippine governments recognize the VFA
as a treaty with corresponding obligations, and the
presence of these two Naval Officers and the warship in
Philippine waters fell under this legal regime.
From this, the applicability of sovereign immunity
cannot be denied as to the presence of the warship and
its officers in Philippine waters. This does not, however,
put an end to the discussion, because even if immunity
is applicable to their presence, the specific act of hitting
the Tubbataha Reef and causing damage thereto is a
presumably tortuous act. Can
_______________
1 G.R. No. 185572, February 7, 2012, 665 SCRA 189.

2 G.R. No. 138570, October 10, 2000, 342 SCRA 449.
3 G.R. No. 151445, April 11, 2002, 380 SCRA 739.
4 G.R. No. 175888, February 11, 2009, 578 SCRA 438.
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these kinds of acts also be covered by the principle of

sovereign immunity?

Tort Exception

Under the regime of international law, there is an
added dimension to sovereign immunity exceptions: the
tort exception. Whether this has evolved into a
customary norm is still debatable; what is important to
emphasize is that while some states have enacted
legislation to allow the piercing of sovereign immunity
in tortuous actions, the Foreign Sovereign Immunities
Act of 1976 of the United States (FSIA)5 contains such
privilege. Specifically, the FSIA contains exceptions for
(1) waiver;6 (2) commercial activity;7 (3) expropriation;8
(4) property rights acquired through succession or
donation;9 (5) damages for personal injury or death or
damage to or loss of property;10 (6) enforcement of an
arbitration agreement;11 (7) torture, extrajudicial
killing, aircraft sabotage, hostage taking, or the
provision of material support to such an act, if the state
sponsors terrorism;12 and (8) maritime lien in a suit for
admiralty based on commercial activity.13
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 require
_______________
5 Pub. L. 94583, 90 Stat. 2891, 28 U.S.C. Secs. 1330, 1332(a),

1391(f) and 16011611.
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).
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ments for any doctrine to attain customary status — it

becomes plausible that the exception can be applied to
the United States, if not through customary
international law, then by reason of acquiescence or
estoppel.
As explained by Jasper Finke,
x x x x the current state practice may not support a rule of

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

find the tort exception concept in its national law if it
can interpret the doctrine from its understanding of
international law. Can
_______________
14 Jasper Finke, Sovereign Immunity: Rule, Comity or Something

Else? Eur J Int Law (2010) 21(4), 863864.
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the Philippines then interpret the exception as being

part of its acceptance of “general principles of
international law” under the Constitution?15

Sovereign Immunity a s a Politica l 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:
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. v. 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 affirmed by the executive branch of the
government as in the case at bar, it is then the duty of the
courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government, the
Solicitor General in this case, or other officer acting under his
direction. Hence, in adher
_______________
15 Article II, Sec. 2, 1987 Constitution.

16 G.R. No. 162230, April 28, 2010, 619 SCRA 533.
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Arigo vs. Swift
ence 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 v. Calleja; The
Holy See v. Rosario, Jr; Lasco v. UN; and DFA v. NLRC.
The case of WHO v. Aquino involved the search and seizure
of personal effects of petitioner Leonce Verstuyft, an official of
the WHO. Verstyft was certified to be entitled to diplomatic
immunity pursuant to the Host Agreement executed between
the Philippines and the WHO.
ICMC v. Calleja concerned a petition for certification
election filed against ICMC and IRRI. As international
organizations, ICMC and IRRI were declared to possess
diplomatic immunity. It was held that they are not subject to
local jurisdictions. It was ruled that the exercise of
jurisdiction by the Department of Labor over the case would
defeat the very purpose of immunity, which is to shield the
affairs of international organizations from political pressure
or control by the host country and to ensure the unhampered
performance of their functions.
In Holy See v. Rosario, Jr. involved an action for
annulment of sale of land against the Holy See, as
represented by the Papal Nuncio. The Court upheld the
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
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purposes of the mission, with all the more reason should

immunity be recognized as regards the sovereign itself, which
in that case is the Holy See.
In Lasco v. United Nations, the United Nations Revolving
Fund for Natural Resources Exploration was sued before the
NLRC for illegal dismissal. The Court again upheld the
doctrine of diplomatic immunity invoked by the Fund.
Finally, DFA v. NLRC involved an illegal dismissal case
filed against the Asian Development Bank. Pursuant to its
Charter and the Headquarters Agreement, the diplomatic
immunity of the Asian Development Bank was recognized by
the Court.
xxxx
Clearly, the most important immunity to an international
official, in the discharge of his international functions, is
immunity from local jurisdiction. There is no argument in
doctrine or practice with the principle that an international
official is independent of the jurisdiction of the local
authorities for his official acts. Those acts are not his, but are
imputed to the organization, and without waiver the local
courts cannot hold him liable for them. In strict law, it would
seem that even the organization itself could have no right to
waive an official’s immunity for his official acts. This permits
local authorities to assume jurisdiction over and individual for
an act which is not, in the wider sense of the term, his act at
all. It is the organization itself, as a juristic person, which
should waive its own immunity and appear in court, not the
individual, except insofar as he appears in the name of the
organization. Provisions for immunity from jurisdiction for
official acts appear, aside from the aforementioned treatises,
in the constitution of most modern international
organizations. The acceptance of the principle is sufficiently
widespread to be regarded as declaratory of international
law.17 (Emphasis supplied)
_______________
17 G.R. No. 125865, 26 March 2001, 355 SCRA 125.
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Arigo vs. Swift
In this view, the prudent interpretation of the tort

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

Sovereign Immunity Under Interna tiona l La w

The basic concept of state immunity is that no state
may be subjected to the jurisdiction of another state
without its consent.18 According to Professor Ian
Brownlie, it is “a procedural bar (not a substantive
defence) based on the status and functions of the state
or official in question.”19 Furthermore, its applicability
depends on the law and procedural rules of the forum
state.20 In the recent judgment of the International
Court of Justice (ICJ) in the Jurisdictional Immunities
of the State (Germany v. Italy: Greece Intervening)
case,21 the doctrine of sovereign immunity was applied
in the following context:

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
_______________
18 JMaurice Arbour & Genevieve Parents, Droit International

Public, 5th ed., p. 331, (2006).
19 James Crawford, Brownlie’s Principles of Public International
Law, 8th ed., p. 487, (2012).
20 Id., at p. 488.
21 Jurisdictional Immunities of the State (Germany v. Italy),
Judgment (Feb. 3, 2012).
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against Germany before the Greek courts. The Greek

court ordered Germany to pay compensation to the
claimants. The appeal by Germany against that
judgment was dismissed by a decision of the Hellenic
Supreme Court, which ordered Germany to pay the
costs of the appeal proceedings. The successful Greek
claimants under the first instance and Supreme Court
judgments applied to the Italian courts for exequatur of
those judgments, so as to be able to have them enforced
in Italy. This was allowed by the Florence Court of
Appeals 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:
At the outset, however, the Court must observe that the
proposition that the availability of immunity will be to some
extent dependent upon the gravity of the unlawful act
presents a logical problem. Immunity from jurisdiction is
an immunity not merely from being subjected to an
adverse judgment but from being subjected to the trial
process. It is, therefore, necessarily preliminary in nature.
Consequently, a national court is required to determine
whether or not a foreign State is entitled to immunity as a
matter of international law before it can hear the merits of
the case brought before it and before the facts have been
established. If immunity were to be dependent upon the State
actually having committed a serious violation of international
human rights law or the law of armed conflict, then it would
become necessary for the national court to hold an enquiry
into the merits in order to determine whether it had
jurisdiction. If, on the other hand, the mere allegation that
the State had committed such wrongful acts were to be
sufficient to deprive the State of its entitlement to immunity,
immunity could, in effect be negated
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simply by skilful construction of the claim.22 (Emphasis

supplied

The ICJ continued dissecting national law in order to
determine whether jurisdictional immunity could be
defeated by reason of serious violations of human rights
law or the law of armed conflict. In this, the ICJ clearly
saw that there was no customary international law
norm that led to the defeat of immunity by reason of
these violations, including the tort exception, viz.:
Apart from the decisions of the Italian courts which are the
subject of the present proceedings, there is almost no State
practice which might be considered to support the proposition
that a State is deprived of its entitlement to immunity in such
a case. Although the Hellenic Supreme Court in the Distomo
case adopted a form of that proposition, the Special Supreme
Court in Margellos repudiated that approach two years later.
As the Court has noted in paragraph 76 above, under Greek
law it is the stance adopted in Margellos which must be
followed in later cases unless the Greek courts find that there
has been a change in customary international law since 2002,
which they have not done. As with the territorial tort
principle, the Court considers that Greek practice,
taken as a whole, tends to deny that the proposition
advanced by Italy has become part of customary
international law.
In addition, there is a substantial body of State
practice from other countries which demonstrates that
customary international law does not treat a 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)
_______________
22 Id., at p. 82.

23 Id., at pp. 8384.
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As things stand in the international sphere, the

immunity of the state (and by extension, its agents, in
the performance of their governmental functions jure
imperii) must stand against even serious violations of
international law, including breaches of international
environmental law (which is an aspect of human rights
law as well). The ICJ concluded that:
x x x [U]nder customary international law as it presently

stands, a State is not deprived of immunity by reason of the
fact that it is accused of serious violations of international
human rights law or the international law of armed conflict.
In reaching that conclusion, the Court must emphasize that it
is addressing only the immunity of the State itself from the
jurisdiction of the courts of other States; the question of
whether, and if so to what extent, immunity might apply in
criminal proceedings against an official of the State is not in
issue in the present case.24

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 confined to determining whether or not the courts of
one State may exercise jurisdiction in respect of another
State. They do not bear upon the question whether or not the
conduct in respect of which the proceedings are brought was
lawful or unlawful. That is why the application of the
contemporary law of State immunity to proceedings
concerning events which occurred in 19431945 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
_______________
24 Id., at p. 91.
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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
Conclusion of J urisdictiona l Arguments

a nd 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 officers in entering Philippine waters
is allowed by the VFA, and as a treaty privilege should
be considered an act jure imperii. Its deviation into the
waters of Tubbataha, and whether this can be
considered a private act, is a factual issue that should
be determined by the proper body. Indeed, while
Philippine authorities may not have authorized the
deviation, if the United States government affirms that
it gave the Guardian sufficient discretion to determine
its course, then the act is not necessarily robbed of its
jure imperii character
_______________
25 Id., at p. 93.
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and is thus entitled to immunity. The course of action of

the Philippine government would be to engage in
diplomatic negotiations for potential treaty breach
liability.
As of this moment, the executive branch has not
made a determination of the applicable immunity. No
correspondence has been sent to the Court as to the
issue. Thus, the Court must act in deference to the
executive prerogative to first make this determination
under the presumption of regularity of performance of
duties, before it can exercise its judicial power.
Finally, no exception exists in Philippine or
international law that would remove the immunity of
the United States in order to place it under the
jurisdiction of Philippine courts. The Writ of Kalikasan
is a compulsory writ, and its issuance initiates a legal
process that would circumvent the internationally
established rules of immunity. Should the Court issue
the Writ, it could possibly entail international
responsibility for breaching the jurisdictional immunity
of a sovereign state.
I therefore vote to dismiss the Petition.

CONCURRING OPINION

LEONEN, J.:
Prefa tory

I agree that the petition should be dismissed
primarily because it is moot and academic.
The parties who brought this petition have no legal
standing. They also invoke the wrong remedy. In my
view, it is time to clearly unpack the rudiments of our
extraordinary procedures in environmental cases in
order to avoid their abuse. Abuse of our procedures
contributes to the debasement of the proper function of
the remedies and invites inordinate interference from
this court from what may be technical and political
decisions that must be made in a different forum. Our
sympathy
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for environmental concerns never justifies our

conversion to an environmental super body.
The writ of kalikasan is not an allembracing 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.
Citizen’s suits are suits brought by parties suffering
direct and substantial injuries; although in the
environmental field, these injuries may be shared with
others. It is different from class suits brought as
representative suits under Oposa v. Factoran.1 In my
view, there is need to review this doctrine insofar as it
allows a nonrepresentative group to universally
represent a whole population as well as an unborn
generation binding them to causes of actions,
arguments, and reliefs which they did not choose.
Generations yet unborn suffer from the legal inability
to assert against false or unwanted representation.
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 extraordi
_______________
1 G.R. No. 101083, July 30, 1993, 224 SCRA 792 [Per J. Davide,
Jr., En Banc].
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nary or rare situations. It may be jurisprudentially

inappropriate.
In my view, decisions relating to environmental
concerns should be more balanced. It must attend in a
more sober way to the required balance of all interests.
Hence, our rule with respect to standing should require
that parties bringing the suit are sufficiently and
substantially possessed of individual interest and
capability so that they can properly shape the issues
brought before this court. The capability of the parties
to bring suit can readily be seen through the allegations
made in their petition.
Our doctrine regarding sovereign immunity also
needs to be refined in the proper case with respect to its
nature, source, and its limitations.
The doctrine of sovereign immunity evolves out of
the theory and practice of sovereignty and the principle
par in parem non habet jurisdictionem. Its particular
contours as an international norm have evolved far
beyond the form it took when the theory of absolute
sovereignty was current. Contemporarily, it is
understood as a basic right extended to states by other
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.
_______________
2 See J. Finke, Sovereign Immunity: Rule, Comity or Something

Else? 21(4) Eur J Int. Law 853881, 854 (2011) <http://ejil.org/pdfs/
21/4/2112.pdf>.
3 Id., at p. 856.
4 Id.
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Arigo vs. Swift
This doctrine of relative jurisdictional immunity

(sovereign immunity) of states and their agents
becomes binding
in our jurisdiction as international law only through
Section 2 of Article II or Section 21 of Article VII of the
Constitution. Article XVII, Section 3 of the Constitution
is a limitation on suits against our state. It is not the
textual anchor for determining the extent of
jurisdictional immunities that should be accorded to
other states or their agents. International law may
have evolved further than the usual distinction between
acta jure imperii and acta jure gestionis. Indications of
state practice even of public respondents show that
jurisdictional immunity for foreign states may not apply
to certain violations of jus cogens rules of international
customary law. There can be tort exemptions provided
by statute and, therefore, the state practice of an
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.
I am of the view, therefore, that this case be
dismissed principally for its procedural infirmities. We
should reserve doctrinal exposition and declaration of
the content of jurisdictional immunities for other
sovereigns and their agents when the proper cases
merit our attention and not yet unduly limit such
jurisprudence in relation to the law of the sea,
municipal torts, and violations of international
customary law of a jus cogens character. The results in
this case would have been different if initiated with the
proper remedy, by the proper parties in the proper
court.
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I
Procedura l a ntecedents

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. 0968SC,
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 definition of allowable activities near
or around the Tubbataha Reefs [Natural] Park, but away from
the damaged site and the additional buffer zone;
6) for respondent Secretary of Foreign Affairs to negotiate
with the United States representatives for an agreement on
environmental guidelines and accountability pursuant to the
VFA;
7) for respondents and appropriate agencies to commence
administrative, civil, and criminal proceedings against erring
officers and individuals;
8) for the declaration of exclusive criminal jurisdiction of
Philippine authorities over erring USS Guardian personnel;
9) for respondents to pay just and reasonable compensation
in the settlement of all meritorious claims for damages caused
to the Tubbataha Reefs;
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Arigo vs. Swift
10) for respondents to cooperate in securing the attendance

of witnesses and the collection and production of evidence,
including objects connected with the offenses related to the
grounding of the Guardian;
11) for respondents US officials and their representatives
to place a deposit to the TRNP Trust Fund, as defined in
Section 17 of RA 10067, as a bona fide gesture towards full
reparations;
12) for respondents to undertake rehabilitation measures
for areas affected by the grounding of the Guardian;
13) for respondents to publish on a quarterly basis the
environmental damage assessment, valuation, and valuation
methods, in all stages of negotiations to ensure transparency
and accountability;
14) for the convention of a multisectoral technical working
group that will provide scientific and technical support to the
Tubbataha Protected Area Management Board (TPAMB);
15) for respondents Department of Foreign Affairs,
Department of National Defense, and the Department of
Environmental and Natural Resources to review the VFA and
the Mutual Defense Treaty in light of the right to a balanced
and healthful ecology, and any violation related thereto;
16) for the declaration of the grant of immunity under
Articles V and VI of the VFA as being violative of equal
protection and/or the peremptory norm of nondiscrimination;
17) for permission to resort to continuing discovery
measures; and
18) for other just and equitable environmental
rehabilitation measures and reliefs.5
_______________
5 Rollo, pp. 8992.
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Petitioners include representatives from people’s

organizations, nongovernment organizations, accredited
public interest groups, environmental institutes,
government officials, and academicians.6 Respondents,
on the other hand, are the American commanding
officers of the USS Guardian and the Balikatan 2013
Exercises, incumbent Philippine government officials,
and Philippine military officers involved, by virtue of
their office, in issues arising out of the grounding of the
USS Guardian in Tubbataha Reefs and its subsequent
salvage.7
The USS Guardian is a fifth Avenger Class Mine
Countermeasures, United States Navy ship.8 The three
diplomatic notes issued by the Embassy of the United
States of America in the Philippines dated December 3,
2012,9 December 31, 2012,10 and January 14, 201311 all
sought clearance for the ship to “enter and exit the
territorial waters of the Philippines and to arrive at the
port of Subic Bay for the purpose of routine ship
replenishment, maintenance, and crew liberty.”12
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 eastsoutheast 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
_______________
6 Id., at pp. 57.

7 Id., at pp. 78.
8 Id., at p. 13.
9 Id., at p. 194.
10 Id., at p. 196.
11 Id., at p. 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. 333334.
14 Id., at p. 336.
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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 filed the present
petition for writ of kalikasan with prayer for temporary
environmental protection order (TEPO).
Acting on petitioners’ petition but without
necessarily giving due course, this court on May 8, 2013
issued a resolution. The resolution a) required
respondents, except the President of the Republic of the
Philippines, to comment within ten (10) days from
notice of the resolution; and b) held in abeyance the
issuance of a TEPO.18
We note that on May 27, 2013, the Office of Legal
Affairs of the Department of Foreign Affairs sent a
letter to this court, requesting that the notice of this
court’s resolution dated May 8, 2013 be returned, as it
was not an agent for the service of processes upon
American respondents.19
The pleadings presented the following issues: a)
whether petitioners have legal standing to file a
petition for writ of kalikasan with prayer for temporary
environmental protection order (TEPO), and b) whether
the doctrine of sovereign immunity applies to foreign
respondents.
Petitioners argued that they have locus standi.20
Having categorized the petition as a citizen’s suit, they
alleged that they are representing “others, including
minors and generations yet unborn” in asserting their
constitutional right to a
_______________
15 Id., at p. 161.

16 Id.
17 Id.
18 Id., at p. 145.
19 Id., at p. 255.
20 Id., at p. 31.
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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 selfperpetuation.”22
Petitioners also alleged that the American
respondents are not immune from suit.23 Citing Nicolas
v. Romulo,24 they argued that Article V of the Visiting
Forces Agreement or VFA, which pertained to
“Criminal Jurisdiction,”25 establishes a
_______________
21 Id., at pp. 57.

22 Rollo, p. 32.
23 Id., at pp. 3738.
24 598 Phil. 262; 578 SCRA 438 (2009) [Per J. Azcuna, En Banc].
25 Sections 1 and 2 of Article V provide:
“1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States
personnel with respect to offenses committed within the Philippines
and punishable under the law of the Philippines.
(b) United States military authorities shall have the right to
exercise within the Philippines all criminal and disciplinary
jurisdiction conferred on them by the military law of the United
States over United States personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over
United States personnel with respect to offenses, including offenses
relating to the security of the Philippines, punishable under the laws
of the Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over
United States personnel with respect to offenses, including offenses
relating to the security of the United States, punishable under the
laws of the United States, but not under the laws of the Philippines.
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waiver of the US military officers involved in the

incident’s26 immunity from suit in light of their
violation of Republic Act 10067, or the Tubbataha Reefs
Natural Park (TRNP) Act of 2009,27 including its entry
in the area without proper permit.28 Also citing US
cases New York v. United States Army Corps of
Engineers (E.D.N.Y. September 24, 2012) and Trudeau
v. FTC (456 F.3d 178, D.C. Cir. 2006), petitioners
further argued that existing US federal statutes clearly
provide that American government agencies have
statutorily waived their immunity from any equitable
action involving environmental damages.29 They
referred to both Resource Conservation and Recovery
Act of 1976 (RCRA) and the Federal Tort Claims Act
(FTCA) as legal bases.30
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
Environhmental 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
_______________
(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 p. 19.
28 Id., at p. 47, as per Rep. Act No. 10067, Sec. 19.
29 Id., at p. 47.
30 Id., at p. 38.
31 Id.
32 Id., at p. 41.
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Petitioners also argued that the USS Guardian is

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

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 file 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
_______________
33 Petitioners cited the United States Code (16 U.S.C.A. § 19jj1[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 p. 48.
36 Id.
37 Id., at p. 4.
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Arigo vs. Swift
(b) Those mandated to implement and enforce the

provisions of this Act with respect to orders, rules and
regulations issued inconsistent with this Act; and/or
(c) Any public officer who wilfully or grossly neglects the
performance of an act, specifically enjoined as a duty by this
Act or its implementing rules and regulations; or abuses his
authority in the performance of his duty; or, in any manner
improperly performs his duties under this act or its
implementing rules and regulations: Provided, however, That,
no suit can be filed until after a thirty (30)day notice has
been given to the public officer and the alleged violator
concerned and no appropriate action has been taken thereon.
The court shall exempt such action from the payment of filing
fees, upon prima facie showing of the nonenforcement or
violations complained of and exempt the plaintiff from the
filing of an injunction bond for the issuance of preliminary
injunction. In the event that the citizen should prevail, the
court shall award reasonable attorney’s fees, moral damages
and litigation costs as appropriate.

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

Rule 3, Section 2 pertains to real partyininterest:
SEC. 2. Pa rtiesininterest.—A real partyininterest is

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

interest stands to benefit or get injured by the judgment
of the case.39 The interest referred to must be material
interest, founded upon a legal right sought to be
enforced.40 They bring a suit because the act or
omission of another has caused them to directly suffer
its consequences.41 Simply put, a real partyininterest
has a cause of action based upon an existing legal right
duty correlative.

Representa tives a s pa rties

Section 3 of Rule 3, on the other hand, discusses
parties acting in representation of the real partyin
interest:
SEC. 3. Representa tives a s pa rties.—Where the action

is allowed to be prosecuted or defended by a representative or
someone acting in a fiduciary
_______________
38 Rules of Civil Procedure, Rule 3, Sec. 2.

39 See Consumido v. Ros, 555 Phil. 652, 658; 528 SCRA 696, 702 (2007)
[Per J. Tinga, Second Division].
40 Id.
41 Rebollido v. Court of Appeals, 252 Phil. 831, 839; 170 SCRA 800, 806
(1989) [Per J. Gutierrez, Jr., Third Division], citing Lee, et al. v. Romillo, Jr.,
244 Phil. 606, 612; 161 SCRA 589, 595 (1988) [Per J. Gutierrez, Jr., Third
Division].
174

Arigo vs. Swift
capacity, the beneficiary shall be included in the title of the

case and shall be deemed to be the real partyininterest. A
representative may be a trustee of an express trust, a
guardian, an executor or administrator, or a party authorized
by law or these Rules. An agent acting in his own name and
for the benefit of an undisclosed principal may sue or be sued
without joining the principal except when the contract
involves things belonging to the principal. (3a)42

A “representative” is not the party who will actually
benefit or suffer from the judgment of the case. The rule
requires that the beneficiary be identified as he or she
is deemed the real partyininterest.43 This means that
acting in a representative capacity does not turn into a
real partyininterest someone who is otherwise an
outsider to the cause of action.
This rule enumerates who may act as
representatives, including those acting in a fiduciary
capacity. While not an exhaustive list, it does set a limit
by allowing only those who are “authorized by law or
these Rules.”44 In environmental cases, this section may
be used to bring a suit, provided that two elements
concur: a) the suit is brought on behalf of an identified
party whose right has been violated, resulting in some
form of damage, and b) the representative authorized
by law or the Rules of Court to represent the victim.
The 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
un
_______________
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, supra.
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born, may file an action to enforce rights or obligations under

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

In my view, this rule needs to be reviewed. A
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 partyininterest that was first established in
Oposa v. Factoran. In Oposa v. Factoran, this court
ruled that the representatives derived their personality
to file a suit on behalf of succeeding generations from
“intergenerational responsibility.”46 The case mirrored
through jurisprudence the general moral duty of the
present generation to ensure the full enjoy
_______________
45 Revised Procedure on Environmental Cases, Rule II, Sec. 5.

46 Supra note 1 at p. 803.
176

Arigo vs. Swift
ment 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
oversimplification 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 longestablished doctrine on litigation, res
judicata:
. . . is an old axiom of law, dictated by wisdom and

sanctified by age, and founded on the broad principle that it is
to the interest of the public tha t there should be a n end
to litiga tion by the sa me pa rties over a subject once fully
a nd fa irly a djudica ted. It has been appropriately said that
the doctrine is a rule pervading every wellregulated system of
jurisprudence, a nd is put upon two grounds embodied in
va rious ma xims of the common la w: one, public policy
a nd necessity, which ma kes it to the interest of the Sta te
_______________
47 Id.
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tha t there should be a n end to litiga tion —

interest reipublica e ut sit finis litium; the other,
the ha rdship on the individua l tha t he should be
vexed twice for one a nd the sa me ca use — nemo
debet bis vexa ri pro una et ea dem ca usa . A contrary
doctrine would subject the public peace and quiet to the
will and neglect of individuals and prefer the
gratification of the litigious disposition on the part of
suitors to the preservation of the public tranquillity and
happiness.48 (Emphasis supplied, citation omitted)
The elements of res judicata are:
. . . (1) the former judgment must be fina l; (2) the

former judgment must ha ve been rendered by a court
ha ving jurisdiction of the subject matter and the parties;
(3) the former judgment must be a judgment on the
merits; and (4) there must be between the first a nd
subsequent a ctions (i) identity of pa rties or at least such
as representing the same interest in both actions; (ii) identity
of subject ma tter, or of the rights asserted and relief prayed
for, the relief being founded on the same facts; and, (iii)
identity of ca uses of a ction 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
_______________
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 p. 304.
50 Id., at p. 306.
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Arigo vs. Swift
and matters judicially tried by a competent court. The

doctrine bars parties to litigate an issue more than
once, and this is strictly applied because “the
maintenance of public order, the repose of society . . .
require that what has been definitely determined by
competent tribunals shall be accepted as irrefragable
legal truth.”51
Considering the effect of res judicata, the ruling in
Oposa v. Factoran has opened a dangerous practice of
binding parties who are yet incapable of making choices
for themselves, either due to minority or the sheer fact
that they do not yet exist. Once res judicata sets in, the
impleaded minors and generations yet unborn will be
unable to bring a suit to relitigate their interest.
Perhaps it is time to revisit the ruling in Oposa v.
Factoran.
That case was significant in that, at that time, there
was need to call attention to environmental concerns in
light of emerging international legal principles. While
“intergenerational responsibility” is a noble principle, it
should not be used to obtain judgments that would
preclude future generations from making their own
assessment based on their actual concerns. The present
generation must restrain itself from assuming that it
can speak best for those who will exist at a different
time, under a different set of circumstances. In essence,
the unbridled resort to representative suit will inevitably
result in preventing future generations from protecting
their own rights and pursuing their own interests and
decisions. It reduces the autonomy of our children and
our 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
_______________
51 Id., at p. 308.
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within the population represented or those that are yet to

be born; and d) there is an absolute necessity for such
standing because there is a threat of catastrophe so
imminent that an immediate protective measure is
necessary. Better still, in the light of its costs and risks,
we abandon the precedent all together.

Cla ss 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. Cla ss suit.—When the subject matter of the

controversy is one of common or general interest to many
persons so numerous that it is impracticable to join all as
parties, a number of them which the court finds to be
sufficiently numerous and representative as to fully protect
the interests of all concerned may sue or defend for the benefit
of all. Any partyininterest shall have the right to intervene
to protect his individual interest. (12a)
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:
The necessa ry elements for the ma intena nce of a cla ss

suit are accordingly (1) tha t the subject ma tter of the
controversy be one of common or genera l interest to
ma ny persons, and (2) tha t such persons be so numerous
a s to ma ke it impra ctica ble to bring them a ll 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 cla ss suit depends upon the a ttending fa cts,
and the complaint, or
_______________
52 157 Phil. 551; 58 SCRA 559 (1974) [Per J. Zaldivar, Second Division].
180

Arigo vs. Swift
other pleading initiating the class action should allege the

existence of the necessary facts, to wit, the existence of a
subject ma tter of common interest, a nd the existence of
a cla ss a nd the number of persons in the a lleged cla ss,
in order tha t the court might be ena bled to determine
whether the members of the cla ss a re so numerous a s to
ma ke it impra ctica ble to bring them a ll before the
court, to contra st the number a ppea ring on the record
with the number in the cla ss a nd to determine whether
cla ima nts on record a dequa tely represent the cla ss a nd
the subject ma tter of genera l or common interest.
The complaint in the instant case explicitly declared that
the plaintiffsappellants 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, tha t the pa rties a ctua lly before it
were sufficiently numerous a nd representa tive in order
tha t a ll 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 ha s been
rema rked tha t the “innocent ‘common or genera l
interest’ requirement is not very helpful in determining
whether or not the suit is proper,” the decided ca ses in
our jurisdiction ha ve more incisively certified the
ma tter when there is such common or genera l interest
in the subject ma tter of the controversy. By the phra se
“subject ma tter of the a ction” is mea nt “the physica l
fa cts, the things rea l or persona l, the money, la nds,
cha ttels, a nd the like, in rela tion to which the suit is
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prosecuted, a nd not the delict or wrong committed by

the defenda nt.”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 conflict with the authorities cited; those were

rulings under the Federa l Rules of Civil Procedure, pursua nt to
Rule 23 of which, there were three types of cla ss suits, namely:
the true, the hybrid, a nd the spurious, a nd these three ha d only
one fea ture in common, tha t is, in ea ch the persons
constituting the cla ss must be so numerous a s to ma ke it
impra ctica ble to bring them a ll before the court. The authorities
cited by plaintiffsappellants 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 ma y be gra nted tha t the cla ims of a ll the a ppella nts
involved the sa me question of la w. But this a lone, a s sa id
a bove, did not constitute the common interest over the subject
ma tter indispensa ble in a cla ss suit. . . .54 (Emphasis supplied,
citations omitted)
_______________
53 Id., at pp. 563565; pp. 570571.

54 Id., at pp. 567568; p. 574.
182

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In a class suit, petitioners necessarily bring the suit

in two capacities: first, as persons directly injured by
the act or omission complained of; and second, as
representatives of an entire class who have suffered the
same injury. In order to fully protect all those
concerned, petitioners must show that they belong in
the same universe as those they seek to represent. More
importantly, they must establish that, in that universe,
they can intervene on behalf of the rest.
These requirements equally apply in environmental
cases.
Petitioners who bring the suit both for themselves
and those they seek to represent must share a common
legal interest — that is, the subject of the suit over
which there exists a cause of action is common to all
persons who belong to the group.55 As a result, the right
sought to be enforced is enjoyed collectively, and not
separately or individually.56 The substantial injury
must have been suffered by both the parties bringing
the suit and the represented class.
However, it is recognized that any damage to the
environment affects people differently, rendering it
impossible for the injury suffered to be of the same
nature and degree for each and every person. For
instance, secondhand 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 wellmaintained and wellventilated buildings. The
same may be said for dumpsites along the shores of a
bay. The gravity of injury they cause to those whose
source of livelihood is purely fishing in the affected area
would be entirely different from that suffered by an
office worker.
_______________
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. 8816460, March 3, 1988, 159 SCRA 623,
627 [En Banc].
56 Id.
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The differences in effects, ranging from miniscule to

grave, increase the possibility of “freeriders” in a case.
This results in a negative externality: an environmental
management concept that delves into the effect of an
individual’s or firm’s action on others.57 In this case, the
effect on others is a disadvantage or an injury.
In most instances where this freerider or negative
externality exists, a suit is not filed because the cost of
maintaining and litigating outweighs the actual
damage suffered due to the act or omission of another.
The theory is that bringing a class suit allows those
who are not as affected as petitioners, though they may
share the same interest, to latch their claim on someone
else without any personal expense. There must be some
assurances, however, that the interests are the same
and the arguments that should have been brought by
others who do not have the resources to bring the suit
are properly represented. This is why the rules allow
courts to be liberal in assessing “common interest.”
Another essential element of a class suit is that
petitioners must be sufficiently numerous and
representative so as to fully protect the interest of all
concerned. One of the dangers of bringing a class suit is
that while the parties’ environmental interest shares a
common legal basis, the extent and nature of that
interest differ depending on circumstances.
In the case of Re: Request of the Plaintiffs, Heirs of
the Passengers of the Doña Paz,58 which quoted Moore’s
Federal Practice we noted:
A “true cla ss a ction” — distinguished from the so

ca lled hybrid a nd the spurious cla ss a ction in U.S.
Federal Practice — “involves principles of compulsory joinder,
since . . . (were it not) for the numerosity of
_______________
57 J.E. Stiglitz, Economics of the Public Sector, p. 215 (3rd ed., 2000).
58 Supra note 55.
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Arigo vs. Swift
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 cla ss suit,
whether fa vora ble or unfa vora ble to the cla ss, is
binding under res judica ta principles upon a ll the
members of the cla ss, whether or not they were before
the court. It is the nondivisible na ture of the right sued
on which determines both the membership of the cla ss
a nd the res judica ta effect of the fina l determina tion of
the right.”59 (Emphasis supplied)
Those who bring class suits do so, carrying a heavy

burden of representation. All the parties represented
may not have consented to the agency imposed on them.
Courts, therefore, must ensure that the parties that
bring the suit are sufficiently numerous to ensure that
all possible interests and arguments have been
considered. The community, class, group, or identity
that is represented must be sufficiently defined so that
the court will be able to properly assess that the parties
bringing the suit are properly representative.
In view of the technical nature of some
environmental cases, not only should the parties be
representative in terms of the interests and arguments
that they bring, they must likewise show that they have
the capability to bring reasonably cogent, rational,
scientific, wellfounded 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
_______________
59 Id., at p. 627.
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Arigo vs. Swift
actions invoked in this case, this court has the

discretion to scrutinize the initiatory pleading to
determine whether it should grant due course prior or
after the filing of a comment. In my view, this pleading
falls short of the requirement of representativeness.
For instance, it is clear in some of the reliefs that
were requested that the arguments may not be what all
those they purport to represent really want. As an
illustration, the petition requests:
3) for respondents to stop all port calls and war games

under the Balikatan;
The facts in this case and the writ of kalikasan

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

in the petition:
4) for respondents to assume responsibility for prior
and future environmental damage in general and under
the Visiting Forces Agreement (VFA);
5) for the temporary definition of allowable
activities near or around the Tubbataha Reefs [Natural]
Park, but
186

Arigo vs. Swift
away from the damaged site and the additional buffer

zone;
6) for respondent Secretary of Foreign Affairs to
negotiate with the United States representatives for an
agreement on environmental guidelines and
accountability pursuant to the VFA;
....
8) for the declaration of exclusive criminal
jurisdiction of Philippine authorities over erring USS
Guardian personnel;
....
14) for the convention of a multisectoral technical
working group that will provide scientific and technical
support to the Tubbataha Protected Area Management
Board (TPAMBl);
15) for respondents Department of Foreign Affairs,
Department of National Defense, and the Department
of Environmental and Natural Resources to review the
VFA and the Mutual Defense Treaty in light of the
right to a balanced and healthful ecology, and any
violation related thereto;
16) for the declaration of the grant of immunity
under Articles V and VI of the VFA as being violative of
equal protection and/or the peremptory norm of
nondiscrimination;
17) for permission to resort to continuing discovery
measures.
Not all environmental cases need to be brought as

class suits. There is no procedural requirement that
majority of those affected must file a suit in order that
an injunctive writ or a writ of kalikasan can be issued.
It is sufficient that the party has suffered its own direct
and substantial interest, its legal basis is cogent, and it
has the capability to move forward to present the facts
and, if necessary, the scientific basis for its analysis for
some of these cases to be given due course.
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Parenthetically, the humility of bringing suits only

in the name of petitioners will protect them from the
charge that more than the legal arguments they want
to bring, they also want to impose their own political
views as views which are universally accepted.
In all environmental cases, it is also not necessary
that generations yet unborn be represented. It is not also
necessary that minors bring the suit. In my view,
pleading their interests have no value added to the case
except for its emotive effect at the risk of encouraging a
paternal attitude toward our children and for those
belonging to generations yet unborn. Certainly, it was
not necessary with respect to the putative cause of
action relating to the grounding of the USS Guardian.
With the class suit improperly brought, the parties
who filed this petition have no legal standing. To
protect the individuals, families, and communities who
are improperly represented, this case should be
dismissed.
III
A petition for a writ of kalikasan is
a wrong remedy
Rule 7, Part III of the Rules of Procedure for
Environmental Cases pertaines to the writ of kalikasan.
It describes the nature of the writ:
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, nongovernmental organization, or
any public interest group a ccredited by or registered with
a ny government a gency, on beha lf of persons whose
constitutiona l right to a ba la nced a nd hea lthful ecology
is viola ted, or threa tened with viola tion by a n unla wful
a ct or omission of a public official or employee, or private
individual or entity, involving environmenta l da ma ge of
such ma gnitude a s to prejudice the life, hea lth or prop
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Arigo vs. Swift
erty of inha bita nts in two or more cities or provinces.

(Emphasis supplied)
The writ of kalikasan is a remedy that covers

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

Two things must be examined: first, whether
petitioners are qualified to bring this suit under the
requirements of the provisions; and second, whether
there are actual injured parties being represented. On
the first issue, the following petitioners bring this case
as individuals:
Rev. Pedro Agiro, Vicar Apostolic of Puerto Princesa63

Rev. Deogracias Iniguez, Jr., BishopEmeritus of
Caloocan64
Frances Quimpo65
Teresita R. Perez, Ph.D.66
Giovanni Tapang, Ph.D.67
Jose Enrique Africa68
_______________
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 p. 6.
67 Id.
68 Id.
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Arigo vs. Swift
Nestor Baguinon69
Edsel Tupa70
The following petitioners represent organizations:
Clemente Bautista Jr., Coordinator of Kalikasan People’s

Network for the Environment71
Maria Carolina Araullo, Chairperson of Bagong Alyansang
Makabayan (Bayan)72
Renato Reyes Jr., SecretaryGeneral of Bagong Alyansang
Makabayan (Bayan)73
Hon. Neri Javier Colmenares, Representative of Bayan
Muna Partylist74
Roland Simbulan, Ph.D., Junk VFA Movement75
Hon. Raymond Palatino, Representative of Kabataan
Partylist76
Peter Gonzales, Vice Chairperson of Pambansang Lakas ng
Kilusang Mamamalakaya ng Pilipinas (Pamalakaya)77
Elmer Labog, Chairperson of Kilusang Mayo Uno78
Joan May Salvador, SecretaryGeneral of Gabriela79
Theresa Concepcion, Earth Island Institute80
_______________
69 Id., at p. 7.
70 Id.
71 Id., at p. 5.
72 Id.
73 Id.
74 Id.
75 Id., at p. 6.
76 Id.
77 Id.
78 Id.
79 Id.
80 Id.
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Arigo vs. Swift
Mary Joan Guan, Executive Director for Center for

Women’s Resource81
Petitioners satisfy the first requirement as they

comprise both natural persons and groups duly
recognized by the government. It is doubtful, however,
whether there are actual injured parties being
represented. As discussed previously, a citizen’s suit on
an environmental issue must be resorted to responsibly.
Petitioners in this case also seek the issuance of a
temporary environmental protection order or TEPO.
Rule 7, Part III of the Rules of Procedure for
Environmental Cases provides:
SEC. 8. Issuance of Temporary Environmental Protection

Order (TEPO).—If it appears from the verified complaint with
a prayer for the issuance of an Environmental Protection
Order (EPO) that the ma tter is of extreme urgency a nd the
a pplica nt will suffer gra ve injustice a nd irrepa ra ble
injury, the executive judge of the multiplesala court before
raffle or the presiding judge of a singlesala 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)
_______________
81 Id.
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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. 0112013 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 rela tive jurisdictiona l immunity
(sovereign immunity)

It is my position that doctrine on relative
jurisdictional immunity of foreign states or otherwise
referred to as sovereign immunity should be further
refined. I a m of the view tha t immunity does not
necessa rily a pply to a ll the foreign respondents
should the ca se ha ve been brought in a timely
ma nner, with the proper remedy, a nd in the
_______________

83 Id., at p. 114.
84 Rollo, p. 164.
85 Id.
86 Id., at p. 161.
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Arigo vs. Swift
proper court. Those who ha ve directly a nd

a ctua lly committed culpa ble a cts or a cts resulting
from gross negligence resulting in the grounding
of a foreign wa rship in viola tion of our la ws
defining a tortious a ct or one tha t protects the
environment which implement binding
interna tiona l obliga tions ca nnot cla im sovereign
immunity.
Some clarification may be necessary to map the
contours of relative jurisdictional immunity of foreign
states otherwise known as the doctrine of sovereign
immunity.
The doctrine of sovereign immunity can be
understood either as a domestic or an international
concept.87
As a domestic concept, sovereign immunity is
understood as the nonsuability of the state. In the case
of the Republic of the Philippines as a State, this is
contained in Article XVI, Section 3 of the 1987
Philippine Constitution, which provides that “[the]
State may not be sued without its consent.”
In Air Transportation Office v. Spouses Ramos,88 this
court underscored the practical considerations
underlying the doctrine:
Pra ctica l considera tions dicta te the esta blishment of

a n immunity from suit in fa vor of the Sta te. Otherwise,
and the State is suable at the instance of every other
individual, government service ma y be severely
obstructed a nd public sa fety enda ngered beca use of the
number of suits tha t the Sta te ha s to defend a ga inst . . .
.89 (Emphasis supplied, citation omitted)
_______________
87 Supra note 2.

88 G.R. No. 159402, February 23, 2011, 644 SCRA 36 [Per J.
Bersamin, Third Division].
89 Id., at p. 42.
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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 treaty91 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 twothirds 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 294 as
basis for its discussion:
_______________
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; 405 SCRA 126 (2003) [Per J. Azcuna, En Banc].
93 Id., at p. 1107; p. 131.
94 Const. (1987), Art. II, Sec. 2 states, “The Philippines renounces
war as an instrument of national policy, a dopts the gener
194

Arigo vs. Swift
Interna tiona l la w is founded la rgely upon the

principles of reciprocity, comity, independence, a nd
equa lity of Sta tes which were a dopted a s pa rt of the la w
of our la nd under Article II, Section 2 of the 1987
Constitution. The rule that a Sta te ma y not be sued
without its consent is a necessa ry consequence of the
principles of independence a nd equa lity of Sta tes. 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 ca se of foreign
Sta tes, the rule is derived from the principle of the
sovereign equa lity of Sta tes, a s expressed in the ma xim
pa r in pa rem non ha bet imperium. All states are
sovereign equals and cannot assert jurisdiction over one
another. A contrary attitude would “unduly vex the peace of
nations.”95 (Emphasis supplied, citations omitted)
V
Sovereign immunity under interna tiona l la w
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
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:
______________
a lly a ccepted principles of interna tiona l la w a s pa rt of the
la w of the la nd a nd a dheres to the policy of pea ce, equa lity,
justice, freedom, coopera tion, a nd a mity with a ll na tions.”
95 Supra note 92 at p. 1107; pp. 130131.
96 Supra note 2.
97 Id., at p. 856.
98 Id.
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Arigo vs. Swift
States accept sovereign immunity as a legally binding

concept, but only on a very abstract level. They a gree on the
genera l idea of immunity, but disa gree on the extent to
which they a ctua lly must gra nt immunity in a specific
ca se.99 (Emphasis supplied, citations omitted)
This vagueness arises from the debate about the

sources of international law for the doctrine of
sovereign immunity.
Article 38(1) of the Statute of the International Court
of Justice (ICJ Statute)100 enumerates the classic
sources of international law:101
The Court, whose function is to decide in accordance with

international law such disputes as are submitted to it, shall
apply:
a. interna tiona l conventions, whether general or
particular, establishing rules expressly recognized by the
contesting states;
b. interna tiona l custom, a s evidence of a genera l
pra ctice a ccepted a s la w;
c. the genera l principles of la w recognized by civilized
na tions;
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 what
_______________
99 Id., at pp. 856857.

100 Available at
<http://legal.un.org/avl/pdf/ha/sicj/icj_statue_e.pdf>.
101 See D. Kennedy, The Sources of International Law, 2(1)
American University Int. Law Review, 196 (1987).
196

Arigo vs. Swift
ever 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 trea ty la w

Attempts have been made to establish sovereign
immunity under treaty law.105 On a multilateral level,
two treaties on this issue have been codified: a) the
European Convention on State Immunity (ECSI), and
b) the UN Convention on Jurisdictional Immunities of
States (UNCJIS).
_______________
102 Vienna Convention on the Law of Treaties (1961), Art. 2(1)(a)

<https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume
1155118232English.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: Revisiting general principles of International Law,
Ancilla Juris, and
<http://www.anci.ch/_media/beitrag/ancilla2007_66_panezi_sources.pdf>.
See also 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.

197
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Arigo vs. Swift
The European Convention on State Immunity is a

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

of eminent jurists. It is also the object of abundant case law.
The development of interna tiona l rela tions a nd the
increa sing intervention of Sta tes in spheres belonging
to priva te la w ha ve posed the problem still more a cutely
by increa sing the number of disputes opposing
individua ls a nd foreign Sta tes.
There are, at present, two theories, that of a bsolute
Sta te immunity which is the logical consequence of the
principle stated above a nd that of rela tive Sta te immunity
which is tending to predomina te on a ccount of the
requirement of modern conditions. According to this
la tter theory, the Sta te enjoys immunity for a cts jure
imperii but not for a cts jure gestionis, tha t is to sa y
when it a cts in the sa me wa y a s a priva te person in
rela tions governed by priva te la w. This divergence of
opinion causes difficulties in international relations. States
whose courts and administrative authorities apply the theory
of absolute State immunity are led to call for the same
treatment abroad. (Emphasis supplied)
_______________
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.
198

Arigo vs. Swift
However, the European Convention on Sovereign

Immunity’s application is limited to the signatories of
the treaty:
The Convention requires each Contracting State to give

effect to judgments rendered against it by the courts of
another Contracting State. It is in pa rticula r for this
rea son tha t it opera tes only between the Contra cting
Sta tes on the ba sis of the specia l confidence subsisting
a mong the Members of the Council of Europe. The
Convention confers no rights on nonContra cting Sta tes;
in particular, it leaves open all questions as to the exercise of
jurisdiction against nonContracting States in Contracting
States, and vice versa.
On the other hand, the UN Convention on

Jurisdictional Immunities of States108 is a treaty
adopted by the UN General Assembly in December
2004. It was opened for signature on January 27, 2005,
but is yet to be in force109 for lacking the requisite
number of memberstate signatories.110 At present, it
only has 28 signatories, 16 of which have either ratified,
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
_______________
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 07172014,
<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/issue2
winter2013/theemerging

199
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Arigo vs. Swift
It may be true that a ll sta tes recognize jurisdictiona l

immunity, but as we have already alluded to, that is so only
at an abstract level; there is “substa ntia l disa greement on
deta il a nd substa nce.” 114 (Emphasis supplied, citations
omitted)
Wiesinger adds:
The UN Convention is not a codifica tion of customa ry

interna tiona l la w concerning enforcement mea sures
either, since it introduces new ca tegories of Sta te
property, which a re immune from execution. Moreover, it
contains a connection requirement of property serving
commercial purposes with the entity against which the claim
was directed, which is a novelty in international law.115
(Emphasis supplied)
The Philippines has neither signed nor ratified the

UNCJIS. Article VII, Section 21 of the Constitution
clearly provides the legal requisites to a valid and
enforceable international treaty: “No treaty or
international agreement shall be valid and effective
unless concurred in by at least twothirds 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:
_______________
restrictionsonsovereignimmunityperemptorynormsof
internationallawtheuncharterandtheapplicationofmodern
communicationtheo/>.
114 Id., at pp. 6061.
115 M.E. Wiesinger, State Immunity from Enforcement Measures
(2006)
<http://intlaw.univie.ac.at/fileadmin/user_upload/int_beziehungen/
Internetpubl/wiesinger.pdf>.
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Article 31
Responsibility of the flag State for damage caused
by a warship or other government ship operated
for noncommercial purposes
The flag State shall bear international responsibility for
any loss or damage to the coastal State resulting from the
noncompliance by a warship or other government ship
operated for noncommercial 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 noncommercial 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 noncommercial purposes.
I agree that the UNCLOS does provide an opening

clarifying the “international responsibility” of the flag
ship for noncompliance 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 interna tiona l a greements
The text of Article VII, Section 21 would seem to
require Senate concurrence for treaties and
“international agreements.” The term “international
agreements,” however, for
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Arigo vs. Swift
purposes of granting sovereign immunity, should not

cover mere executive agreements.
We are aware of Bayan Muna v. Romulo116 where
the
ponente for this court held:
. . . Interna tiona l a greements ma y be in the form of

(1) trea ties tha t require legisla tive concurrence a fter
executive ra tifica tion; or (2) executive a greements tha t
a re simila r to trea ties, except tha t they do not require
legisla tive concurrence a nd a re usua lly less forma l a nd
dea l with a na rrower ra nge of subject ma tters tha n
trea ties.
Under international law, there is no difference between
trea ties a nd executive a greements in terms of their
binding effects on the contra cting sta tes concerned, a s
long a s the negotia ting functiona ries ha ve rema ined
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 concurrencerequirement
aspect. As has been observed by US constitutional scholars, a
treaty has greater “dignity” than an executive agreement,
because its constitutional efficacy is beyond doubt, a treaty
having behind it the authority of the President, the Senate,
and the people; a ratified treaty, unlike an executive
agreement, takes precedence over any prior statutory
enactment.117 (Emphasis supplied, citations omitted)
This statement, however, should be confined only to
the facts of that case. Executive agreements are not the
same as treaties as a source of international law. It
certainly may have a different effect in relation to our
present statutes unlike a treaty that is properly
ratified.
_______________
116 Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011,

641 SCRA 244 [Per J. Velasco, Jr., En Banc].
117 Id., at pp. 258260.
202

Arigo vs. Swift
Due to the nature of respondents’ position in the

United States Armed Forces, the Visiting Forces
Agreement of 1998 (VFA) is relevant in this case. In
particular, the question of whether the VFA, executed
between the Republic of the Philippines and the United
States government, may be treated as a “treaty” upon
which the doctrine of foreign sovereign immunity is
founded must be addressed.
In BAYAN v. Zamora,118 this court tackled the issues
pertaining to the constitutionality of the VFA. It was
described as “consist[ing] of a Preamble and nine (9)
Articles, [and it] provides for the mechanism for
regulating the circumstances and conditions under
which [the] US Armed Forces and defense personnel
maybe present in the Philippines. . . . ”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 nonconcurrence of the
United States Senate, the VFA is validly categorized as
a treaty:
This Court is of the firm view that the phra se

“recognized a s a trea ty” mea ns tha t the other
contra cting pa rty a ccepts or a cknowledges the
a greement a s a trea ty. To require the other contracting
state, the United States of America in this case, to submit the
VFA to the United States Senate for concurrence pursuant to
its Constitution, is to accord strict meaning to the phrase.
Wellentrenched is the principle that the words used in the
Constitution are to be given their ordinary meaning except
where technical terms are employed, in which case the
significance thus attached to them pre
_______________
118 396 Phil. 623; 342 SCRA 449 (2000) [Per J. Buena, En Banc].
119 Id., at p. 637; p. 469.
120 Id., at p. 656; p. 487.
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Arigo vs. Swift
vails. Its language should be understood in the sense they

have in common use.
Moreover, it is inconsequentia l whether the United
Sta tes trea ts the VFA only a s a n executive a greement
beca use, under interna tiona l la w, a n executive
a greement is a s binding a s a trea ty. To be sure, a s long
a s the VFA possesses the elements of a n a greement
under interna tiona l la w, the sa id a greement is to be
ta ken equa lly a s a trea ty.
A treaty, as defined by the Vienna Convention on the Law
of Treaties, is “an international instrument concluded
between States in written form and governed by international
law, whether embodied in a single instrument or in two or
more related instruments, and whatever its particular
designation.” There are many other terms used for a treaty or
international agreement, some of which are: act, protocol,
agreement, compromis d’ arbitrage, concordat, convention,
declaration, exchange of notes, pact, statute, charter and
modus vivendi. All writers, from Hugo Grotius onward, have
pointed out that the names or titles of international
agreements included under the general term treaty have little
or no legal significance. Certain terms are useful, but they
furnish little more than mere description.
Article 2(2) of the Vienna Convention provides tha t
the provisions of pa ra gra ph 1 rega rding the use of
terms in the present Convention a re without prejudice
to the use of those terms, or to the mea nings which ma y
be given to them in the interna l la w of the Sta te.
Thus, in interna tiona l la w, there is no difference
between trea ties a nd executive a greements in their
binding effect upon sta tes concerned, a s long a s the
negotia ting functiona ries ha ve rema ined within their
powers. Interna tiona l la w continues to ma ke no
distinction between trea ties a nd executive a greements:
they a re equa lly binding obliga tions upon na tions.
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Arigo vs. Swift
In our jurisdiction, we ha ve recognized the binding

effect of executive a greements even without the
concurrence of the Sena te or Congress. . . .
....
The records reveal that the United States Government,
through Ambassador Thomas C. Hubbard, has stated that the
United States government has fully committed to living up to
the terms of the VFA. For as long as the United States of
America accepts or acknowledges the VFA as a treaty, and
binds itself further to comply with its obligations under the
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 ratification by a twothirds majority.
Secondly, Congress may authorize congressionalexecutive
agreements. Thirdly, many treaties and executive agreements
are not selfexecuting, meaning that implementing legislation
is required to provide U.S. bodies with the domestic legal
_______________
121 Id., at pp. 657660; pp. 488491.

122 M. J. Garcia (Legislative Attorney), International Law and
Agreements: their effect upon US law, Congressional Research Service 75700
RL32528 (2014), <http://fas.org/sgp/crs/misc/RL32528.
pdf>.
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Arigo vs. Swift
authority necessary to enforce and comply with an

international agreement’s provisions.
The sta tus of a n interna tiona l a greement within the
United Sta tes depends on a va riety of fa ctors. Self
executing treaties have a status equal to federal statute,
superior to U.S. state law, and inferior to the Constitution.
Depending upon the na ture of executive a greements,
they ma y or ma y not ha ve a sta tus equa l to federa l
sta tute. In a ny ca se, selfexecuting executive a greements
ha ve a sta tus tha t is superior to U.S. sta te la w a nd
inferior to the Constitution. Trea ties or executive
a greements tha t a re not selfexecuting ha ve been
understood by the courts to ha ve limited sta tus
domestica lly; ra ther, the legisla tion or regula tions
implementing these a greements a re controlling.123
(Emphasis supplied, citation omitted)
Domestic politics and constitutional guidelines also

figure into the effect of an executive agreement in the
United States. Garcia adds:
The grea t ma jority of interna tiona l a greements tha t

the United Sta tes enters into a re not trea ties but
executive a greements — a greements entered into by the
executive bra nch tha t a re not submitted to the Sena te
for its a dvice a nd consent. Congress generally requires
notification upon the entry of such an agreement. Although
executive agreements are not specifically discussed in the
Constitution, they nonetheless have been considered valid
international compacts under Supreme Court jurisprudence
and as a matter of historical practice.
....
Sole executive agreements rely on neither treaty nor
congressional authority to provide for their legal ba
_______________
123 Id.
206

Arigo vs. Swift
sis. 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:
_______________
125 J. Paul, The Transformation of International Comity (2008)

<http://www.law.duke.edu/journals/lcp>.
124 Id., at p. 4.
126 Id., at p. 27.
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For a ll these rea sons, interna tiona l comity would

seem to be too va gue, incoherent, illusory, a nd
ephemera l to serve as a foundation for U.S. private
international law. Yet, it is precisely these qualities that have
allowed the doctrine of interna tiona l comity to muta te
over time in wa ys tha t respond to different geopolitica l
circumsta nces. Specifically, international comity has shifted
in three distinct respects. First, the mea ning of comity ha s
shifted over time. Originally, international comity was a
discretionary doctrine that empowered courts to decide when
to defer to foreign law out of respect for foreign sovereigns.
Comity has become a rule that obligates courts to apply
foreign law in certain circumstances. Second, the object of
comity ha s cha nged. Whereas once courts justified applying
foreign law out of deference to foreign sovereigns, courts later
justified their decisions out of deference to the autonomy of
private parties or to the political branches. Most recently,
courts have justified limits on domestic law out of deference to
the global market. Third, the function of comity ha s
cha nged. Comity is no longer merely a doctrine for deciding
when to apply foreign law; it has become a justification for
deference in a wide range of cases concerning prescriptive,
adjudicatory, and enforcement jurisdiction. (Emphasis
On a substantive note, another issue raised in

BAYAN v. Zamora is whether the VFA amounted to an
abdication of Philippine sovereignty insofar as the
jurisdiction of local courts “to hear and try offenses
committed by US military personnel”127 was concerned.
Upon finding at the outset that the VFA did not amount
to grave abuse of discretion, this court no longer
proceeded to rule on this matter:
In fine, a bsent a ny clea r showing of gra ve a buse of

discretion on the pa rt of respondents, this Court — a s
the fina l a rbiter of lega l controversies
_______________
127 Supra note 118 at p. 646; p. 477.
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Arigo vs. Swift
a nd sta unch sentinel of the rights of the people — is

then without power to conduct a n incursion a nd meddle
with such a ffa irs purely executive a nd legisla tive in
cha ra cter a nd na ture. 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 a s cus
toma ry interna tiona l la w
Customary international law traditionally pertains
to:
. . . the collection of interna tiona l beha viora l

regula rities tha t na tions over time come to view a s
binding on them a s a ma tter of la w. This standard
definition contain two elements. There must be a
widesprea d a nd uniform pra ctice of na tions. And
na tions must enga ge in the pra ctice out of a sense of
lega l obliga tion. 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
_______________
128 Id., at p. 666; p. 497.
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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
Nagan and Root130 categorize the doctrine of

sovereign immunity as a customary rule of
international law. They argue that the doctrine, which
is also referred to as jurisdictional immunity, “has its
roots in treaties, domestic statutes, state practice, and
the writings of juris consults.”131 Quoting United States
law,132 Nagan and Root state:
. . . The doctrine of jurisdictiona l immunity ta kes the

a bstra ct concept of sovereignty a nd a pplies it to fa cts on
the ground. As the Restatement notes, “Under international
law, a state or state instrumentality is immune from the
jurisdiction of the courts of another state . . . .” The
Restatement further states unambiguously that the rule of
sovereign immunity is “an undisputed principle of
international law.” . . .
The doctrine of sovereign immunity is one of the older
concepts in customa ry interna tiona l la w. . . .133
While the doctrine in itself is recognized by states,

they do so only in abstraction.134
_______________
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 Supra note 113.
131 Id., at p. 4.
132 Restatement (Third) of Foreign Relations Law.
133 Id., at p. 38.
210

Arigo vs. Swift
There appears to be a general recognition that

foreign states are to be afforded immunity on account of
equality of states, but the “practice” lacks uniformity.
Finke points out that the doctrine as exercised by
different states suffers from “substantial disagreement
on detail and substance.”135 The inconsistencies in state
practice render the possibility of invoking international
comity even more problematic.
The legislation of other states highlight the
differences in specific treatment of sovereign immunity.
For instance, the United States Foreign Sovereign
Immunities Act (FSIA) of 1978 was enacted in order to
render uniform determinations in cases involving
sovereign immunity.136 While it recognizes sovereign
immunity, it provides the following exceptions:
. . . the genera l principle tha t a foreign sta te is

immune from the jurisdiction of the courts of the United
Sta tes, but sets forth several limited exceptions. The
prima ry exceptions are:
1. wa iver (“the foreign state has waived its immunity
either expressly or by implication”),
2. commercia l a ctivity (“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 officia l within the
United Sta tes (the “suit is brought against a foreign State for
persona l injury or dea th, or da ma ge to property
occurring in the United Sta tes a s a result of the tortious
a ct of a n officia l or employee of tha t Sta te a cting within
the scope of his office or employment”). (Emphasis
_______________
135 Id., at p. 871.

136 J. K. Elsea and S. V. Yousef, The Foreign Sovereign
Immunities Act (FSIA) and Foreign Officials, Congressional Research
Service 75700 (2013).
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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)
mem
_______________
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.”
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.”
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.”
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.”
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.”
provides: A State is not immune as respects proceedings relating to —
(a) any patent, trademark, 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
212

Arigo vs. Swift
bership of bodies corporate, etc.;143 h) arbitration;144 i)

ships used for commercial purposes;145 and j) 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
_______________
patent, trademark, design, plant breeders’ rights or copyright; or

(c) the right to use a trade or business name in the United Kingdom.
provides: A State is not immune as respects proceedings relating to its
membership of a body corporate, an unincorporated body or a
partnership which — (a) has members other than States; and (b) is
incorporated or constituted under the law of the United Kingdom or is
controlled from or has its principal place of business in the United
Kingdom, being proceedings arising between the State and the body
or its other members or, as the case may be, between the State and
the other partners.
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.
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.
provides: A State is not immune as respects proceedings relating to its
liability for — (a) valueadded 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,
trademarks, etc.; (g) membership of bodies corporate etc.; (h)
arbitrations; (i) actions in rem; (j) bills of exchange; and (k) taxes.

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Aside from the variations in foreign laws, rulings in

domestic cases have also remained on a theoretical
level. There appears to be a general refusal by
international bodies to set particular rules and
guidelines for the disposition of actual cases involving
sovereign immunity.
Two cases are relevant for the purpose of discussing
sovereign immunity as an international customary
norm: the International Court of Justice’s decision in
Germany v. Italy, and the International Tribunal for the
Law of the Sea’s procedural order on the Ara Libertad
case. While stare decisis does not apply, these are
nevertheless instructive in understanding the status of
sovereign immunity in international law.
The issue of sovereign immunity as invoked between
two States was dealt with in the 2012 case of
Jurisdictional Immunities of the State (Germany v.
Italy).148 This arose out of a civil case brought before
Italian domestic courts, seeking reparations from
Germany for grave breaches of international
humanitarian law during World War II.149 The Italian
Court of Cassation held that it had jurisdiction over the
claims on the ground that state immunity was
untenable if the act complained of was an international
crime.150 Thereafter, an Italian real estate owned by
Germany was attached for execution.151 As a result,
Germany brought the case before the International
Court of Justice, questioning the legality of the
judgment rendered by the Italian court. It based its
claim on state immunity.152
_______________
148 Jurisdictional Immunities of the State (Germany v. Italy)

(2012); See also P. B. Stephan, Sovereign Immunity and the
International Court of Justice: The State System Triumphant,
Virginia Public Law and Legal Theory Research Paper No. 201247
(2012) <http://ssrn.com/abstract=2137805>.
149 Id., at pars. 2729.
150 Id.
151 Id., at par. 37.
152 Id.
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Arigo vs. Swift
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, Sta te pra ctice of pa rticula r

significa nce is to be found in the judgments of na tiona l
courts fa ced with the question whether a foreign Sta te
is immune, the legisla tion of those Sta tes which ha ve
ena cted sta tutes dea ling with immunity, the cla ims to
immunity a dva nced by Sta tes before foreign courts a nd
the sta tements ma de by Sta tes, first in the course of the
extensive study of the subject by the Interna tiona l La w
Commission a nd then in the context of the a doption of
the United Na tions Convention. Opinio juris in this
context is reflected in pa rticula r in the a ssertion by
Sta tes cla iming immunity tha t interna tiona l la w
a ccords them a right to such immunity from the
jurisdiction of other Sta tes; in the a cknowledgment, by
Sta tes gra nting immunity, tha t interna tiona l la w
imposes upon them a n obliga tion to do so; a nd,
conversely, in the a ssertion by Sta tes in other ca ses of a
right to exercise jurisdiction over foreign Sta tes. While it
may be true that States sometimes decide to accord an
immunity more extensive than that required by international
law, for present purposes, the point is that the grant of
immunity in such a case is not accompanied by the requisite
opinio juris and therefore sheds no light upon the issue
currently under consideration by the Court.
56. Although there has been much debate regarding the
origins of State immunity and the identification of the
principles underlying that immunity in the past, the
Interna tiona l La w Commission concluded in 1980 tha t
the rule of Sta te immunity ha d been “a dopted a s a
genera l rule of customa ry interna
_______________
153 Id., at par. 79.
215
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Arigo vs. Swift
tiona l la w solidly rooted in the current pra ctice of

Sta tes” (Yearbook of the International Law Commission,
1980, Vol. II[2], p. 147, para. 26). Tha t conclusion wa s
ba sed upon a n extensive survey of Sta te pra ctice a nd, in
the opinion of the Court, is confirmed by the record of
na tiona l legisla tion, judicia l decisions, a ssertions of a
right to immunity a nd the comments of Sta tes on wha t
beca me the United Na tions Convention. That practice
shows that, whether in claiming immunity for themselves or
according it to others, Sta tes genera lly proceed on the
ba sis tha t there is a right to immunity under
interna tiona l la w, together with a corresponding
obliga tion on the pa rt of other Sta tes to respect a nd give
effect to tha t immunity.
57. The Court considers tha t the rule of Sta te
immunity occupies a n importa nt pla ce in interna tiona l
la w a nd interna tiona l rela tions. It derives from the
principle of sovereign equa lity of Sta tes, which, a s
Article 2, pa ra gra ph 1, of the Cha rter of the United
Na tions ma kes clea r, is one of the funda menta l
principles of the interna tiona l lega l order.
This principle ha s to be viewed together with the
principle tha t ea ch Sta te possesses sovereignty over its
own territory a nd tha t there flows from tha t sovereignty
the jurisdiction of the Sta te over events a nd persons
within tha t territory. Exceptions to the immunity of the
Sta te represent a depa rture from the principle of
sovereign equa lity. 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 nonsovereign
_______________
154 Id., at pars. 5557.

216

Arigo vs. Swift
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
a n immunity not merely from being subjected to a n
a dverse judgment but from being subjected to the tria l
process. It is, therefore, necessa rily prelimina ry in
na ture. Consequently, a na tiona l court is required to
determine whether or not a foreign Sta te is entitled to
immunity a s a ma tter of interna tiona l la w before it ca n
hea r the merits of the ca se brought before it a nd before
the fa cts ha ve been esta blished. If immunity were to be
dependent upon the Sta te a ctua lly ha ving committed a
serious viola tion of interna tiona l huma n rights la w or
the la w of a rmed conflict, then it would become
necessa ry for the na tiona l court to hold a n enquiry into
the merits in order to determine whether it ha d
jurisdiction. If, on the other ha nd, the mere a llega tion
tha t the Sta te ha d committed such wrongful a cts were
to be sufficient to deprive the Sta te of its entitlement to
immunity, immunity could, in effect be nega ted simply
by skilful construction of the cla im.
83. That said, the Court must nevertheless inquire
whether customary international law has developed to the
point where a State is not entitled to immunity in the case of
serious violations of human rights law or the law of armed
conflict. Apart from the decisions of the Italian courts which
are the subject of the present proceedings, there is almost no
State practice which might be considered to support the
proposition that a
_______________
155 Id., at par. 60.

217
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Arigo vs. Swift
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
customa ry interna tiona l la w does not trea t a Sta te’s
entitlement to immunity a s dependent upon the gra vity
of the a ct of which it is a ccused or the peremptory
na ture of the rule which it is a lleged to ha ve viola ted.
85. Tha t pra ctice is pa rticula rly evident in the
judgments of na tiona l courts. Arguments to the effect
tha t interna tiona l la w no longer required Sta te
immunity in ca ses of a llega tions of serious viola tions of
interna tiona l huma n rights la w, wa r crimes or crimes
a ga inst huma nity ha ve 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. 0245961, 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.
0341851, 2 June 2004, Bull. civ., 2004, I, No. 158, p. 132 [the
X case] and Cour de cassation, No. 0447504, 3 January 2006
[the Grosz case]; allegations of crimes against humanity],
Slovenia [case No. Up13/99, 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, p. 299,
[2010]; 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).
....
218

Arigo vs. Swift
93. This argument therefore depends upon the existence

of a conflict between a rule, or rules, of jus cogens, and the
rule of customary law which requires one State to accord
immunity to another. In the opinion of the Court, however, no
such conflict exists. Assuming for this purpose that the rules
of the law of armed conflict which prohibit the murder of
civilians in occupied territory, the deportation of civilian
inhabitants to slave labour and the deportation of prisoners of
war to slave labour are rules of jus cogens, there is no conflict
between those rules and the rules on State immunity. The
two sets of rules a ddress different ma tters. The rules of
Sta te immunity a re procedura l in cha ra cter a nd a re
confined to determining whether or not the courts of one
Sta te ma y exercise jurisdiction in respect of a nother
Sta te. They do not bea r upon the question whether or
not the conduct in respect of which the proceedings a re
brought wa s la wful or unla wful. That is why the
application of the contemporary law of State immunity to
proceedings concerning events which occurred in 19431945
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 sa me rea son, recognizing the immunity of
a foreign Sta te in a ccorda nce with customa ry
interna tiona l la w does not a mount to recognizing a s
la wful a situa tion crea ted by the brea ch of a jus cogens
rule, or rendering a id a nd a ssista nce in ma inta ining
tha t situa tion, a nd so ca nnot contra vene the principle
in Article 41 of the Interna tiona l La w Commission’s
Articles on Sta te Responsibility.
95. To the extent tha t it is a rgued tha t no rule which
is not of the sta tus of jus cogens ma y be a pplied if to do
so would hinder the enforcement of a jus cogens rule,
even in the a bsence of a direct conflict, the Court sees no
ba sis 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
219
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Arigo vs. Swift
exercised do not derogate from those substantive rules which
possess jus cogens status, nor is there anything inherent in
the concept of jus cogens which would require their
modification or would displace their application. The Court
has taken that approach in two cases, notwithstanding that
the effect was that a means by which a jus cogens rule might
be enforced was rendered unavailable. In Armed Activities,
it held tha t the fa ct tha t a rule ha s the sta tus 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
_______________
156 Id., at pars. 8295.

157 Id., at par. 26.
220

Arigo vs. Swift
jurisdiction and execution extended to the warship by
its flag.158
Ghana countered:
. . . that the coastal State [Ghana] enjoys full territoria l

sovereignty over interna l wa ters, a nd tha t a ny foreign
vessel loca ted in interna l wa ters is subject to the
legisla tive, a dministra tive, judicia l a nd jurisdictiona l
powers of the coastal State.”159 (Emphasis supplied)
The order dated December 15, 2012 ruled the following:
. . . that a warship is an expression of the sovereignty of the
State whose flag it flies;160
. . . in accordance with general international law, a warship
enjoys immunity, including in internal waters. . . .161
....
Ghana shall forthwith and unconditionally release the
frigate ARA Libertad, shall ensure that the frigate ARA
Libertad, its Commander and crew are able to leave the port
of Tema and the maritime areas under the jurisdiction of
Ghana, and shall ensure that the frigate ARA Libertad is
resupplied to that end.162 (Citation supplied)
In sum, the International Court of Justice’s position

that sovereign immunity remains applicable even if the
action is based upon violations of international law
should be limited only to acts during armed conflict.
Jurisdictional Immunities of the State (Germany v.
Italy) also referred to actions commited during World
War II and especially referred to the
_______________
158 Id.
159 Id., at par. 56.
160 Id., at par. 94.
161 Id., at par. 95.
162 Id., at par. 108.
221
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Arigo vs. Swift
situation of international law at that time. The majority

reflected the attitude that sovereign immunity is a
customary norm. It, however, recognizes that
uniformity in state practice is far from the consensus
required to articulate specific rules pertaining to other
circumstances — such as transgressions of foreign
warships of domestic legislation while granted innocent
passage. It impliedly accepted that states enjoyed wide
latitude to specify their own norms.
The provisional order in the ITLOS Ara Libertad
case should also be read within its factual ambient.
That is, that the warship was the subject of seizure to
enforce a commercial obligation of its flag state. In this
case, the foreign warship enjoys sovereign immunity.
The case, however, did not interpret Sections 31 and 32
of the UNCLOS.
On this note, it is my opinion tha t there would
be no viola tion of customa ry interna tiona l la w or
existing trea ty la w if this court further refines the
limits of the doctrine of sovereign immunity’s
a pplica tion when determining jurisdictiona l
immunities of foreign wa rships specifica lly when
it viola tes domestic la ws implementing
interna tiona l obliga tions even while on innocent
pa ssa ge.

Sovereign immunity a s
genera l principle of la w

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
222

Arigo vs. Swift
broader spectrum of possible behaviour.”163 Principles

recognize a general idea and serve as a guide in policy
determinations, rather than prescribe a particular
mode of action, which is what rules do. This distinction
is significant, as principles provide the leeway to
accommodate legal and factual circumstances
surrounding each case that customary rules generally
do not.164
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 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.
_______________

164 Id.
165 M. Panezi, Sources of Law in Transition: Revisiting general
principles of International Law, Ancilla Juris 71 (2007)
<http://www.ejil.org/pdfs/21/4/2112.pdf>.

223
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Arigo vs. Swift
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
167
immunity.
The tendency in our jurisprudence moved along with
the development in other states.
States began to veer away from absolute sovereign
immunity when “international trade increased and
governments expanded into what had previously been
private spheres.”168 The relative theory of sovereign
immunity distinguishes a state’s official (acta jure
imperii) from private (acta jure gestionis) conduct.169
The distinction is founded on the premise “[that] once
the sovereign has descended from his throne and
entered the marketplace[,] he has divested himself of
his sovereign status and is therefore no longer immune
to the domestic jurisdiction of the courts of other
countries.”170
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. JUS
_______________
167 Id., at p. 853.

168 N.J. Shmalo, Is the Restrictive Theory of Sovereign Immunity
Workable? Government Immunity and Liability, 17(3) International
Stanford Law Review 501507 (1965).
170 Id., at p. 859.
171 Supra note 92 at p. 1107; p. 131.
172 Id.
224

Arigo vs. Swift
MAG Philippines v. NLRC173 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 Sta te from suit is one of these
universa lly recognized principles. In interna tiona l la w,
“immunity” is commonly understood a s a n exemption of
the sta te a nd its orga ns from the judicia l jurisdiction of
a nother sta te. This is anchored on the principle of the
sovereign equality of states under which one state cannot
assert jurisdiction over another in violation of the maxim par
in parem non habet imperium (an equal has no power over an
equal).
....
As it sta nds now, the a pplica tion of the doctrine of
immunity from suit ha s been restricted to sovereign or
governmenta l a ctivities (jure imperii). The ma ntle of
sta te immunity ca nnot be extended to commercia l,
priva te a nd proprieta ry a cts (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 a pplica tion of Sta te

immunity is not the conclusion of a contract by a State but
the lega l na ture of the a ct. . . .176 (Emphasis supplied)
_______________
173 G.R. No. 108813, December 15, 1994, 239 SCRA 224 [Per J.
Puno, Second Division].
174 Id., at pp. 230232.
175 221 Phil. 179; 136 SCRA 487 (1985) [Per J. Abad Santos, En
Banc].
176 Id., at p. 184; p. 492.
225
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Arigo vs. Swift
In JUSMAG, this court stated:
. . . if the contra ct wa s entered into in the discha rge of

its governmenta l functions, the sovereign sta te ca nnot
be deemed to ha ve wa ived its immunity from suit.177
These cases involved contracts. This made the

determination of whether there was waiver on the part
of the state simpler.
Further in Municipality of San Fernando, La Union
v. Firme,178 this court stated that two exceptions are a)
when the State gives its consent to be sued and b) when
it enters into a business contract.179 It ruled that:
Express consent ma y be embodied in a genera l la w or

a specia l la w.
....
Consent is implied when the government enters into
business contra cts, thereby descending to the level of the
other contracting party, a nd a lso when the Sta te files a
compla int, thus opening itself to a counterclaim.180
(Emphasis supplied, citations omitted)
Other exceptions are cases involving acts

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

178 273 Phil. 56; 195 SCRA 692 (1991) [Per J. Medialdea, First
Division].
179 Id., at p. 62; p. 697.
180 Id.
181 144 Phil. 257; 33 SCRA 368 (1970) [Per J. Zaldivar, En Banc].
226

Arigo vs. Swift
Inasmuch as the State authorizes only legal acts by its

officers, una uthorized a cts of government officia ls or
officers a re not a cts of the Sta te, a nd a n a ction a ga inst
the officia ls or officers by one whose rights ha ve been
inva ded or viola ted by such a cts, for the protection of
his rights, is not a suit a ga inst the Sta te within the rule
of immunity of the Sta te from suit. In the same tenor, it
has been said that an a ction a t la w or suit in equity
a ga inst a Sta te officer or the director of a Sta te
depa rtment on the ground tha t, while cla iming to a ct
for the Sta te, he viola tes or inva des the persona l a nd
property rights of the pla intiff, under an
unconstitutiona l a ct or under a n a ssumption of
a uthority which he does not ha ve, is not a suit a ga inst
the Sta te within the constitutiona l provision tha t the
Sta te ma y not be sued without its consent.182 (Emphasis
supplied, citations omitted)

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

Tortious acts or crimes committed while discharging
official functions are also not covered by sovereign
immunity. Quoting the ruling in Chavez v.
Sandiganbayan,185 this court held American naval
officers personally liable for damages in Wylie v.
Rarang,186 to wit:
_______________
182 Id., at pp. 267268; pp. 377378.

183 G.R. No. 90314, November 27, 1990, 191 SCRA 713 [Per J.
Regalado, Second Division].
184 Id., at p. 727.
185 271 Phil. 293 (1991); 193 SCRA 282 [Per J. Gutierrez, Jr., En
Banc].
186 G.R. No. 74135, May 28, 1992, 209 SCRA 357 [Per J.
Gutierrez, Jr., Third Division].
227
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Arigo vs. Swift
. . . The petitioners, however, were negligent because under

their direction they issued the publication without deleting
the name “Auring.” Such act or omission is ultra vires and
cannot be part of official duty. It was a tortious act which
ridiculed the private respondent.187
We note that the American naval officers were held to

be accountable in their personal capacities.188
As it stands, the Philippines has no law on the
application of sovereign immunity in cases of damages
and/or violations of domestic law involving agents of a
foreign state. But our jurisprudence does have openings
to hold those who have committed an act ultra vires
responsible in our domestic courts.
As previously discussed, it was held in Germany v.
Italy that the issue of implied waiver of sovereign
immunity and a State’s commission of a serious
violation of a peremptory norm (jus cogens) are two
independent areas. This reflects one of the positions
taken by scholars in the jurisdictionimmunity
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 ha nd, is linked to officia l a cts of a sta te (if we
a ccept the principa l distinction between priva te a nd
public a cts) a nd is therefore more sensitive to the
sovereignty of the foreign sta te. Linking immunity to the
limits of jurisdiction to adjudicate in civil matters would
therefore mean disre
_______________
187 Id., at p. 370.

188 Id.
228

Arigo vs. Swift
garding the official character of the foreign state’s conduct.189

This ruling holds no value as a precedent, and,

therefore, does not preclude the Philippines to make a
determination that may be different from the
International Court of Justice’s ruling. Its value must
only be to elucidate on the concept of sovereign
immunity, in the context of that case, as the general
rule with the possibility of other exceptions.
Furthermore, if we consider the doctrine of sovereign
immunity as a binding general principle of
international law rather than an international
customary norm, the particular rules and guidelines in
its application and invocation may be determined on a
domestic level either through statute or by
jurisprudence.
It is difficult to imagine that the recognition of
equality among nations is still, in these modern times,
as absolute as we have held it to be in the past or only
has commercial acts as an exception. International law
has conceded jus cogens rules of international law and
other obligations erga omnes. It is time that our
domestic jurisprudence adopts correspondingly.
Considering the flexibility in international law and
the doctrines that we have evolved so far, I a m of the
view tha t immunity does not necessa rily a pply to
a ll the foreign respondents should the ca se ha ve
been brought in a timely ma nner, with the proper
remedy, a nd in the proper court. Those who ha ve
directly a nd a ctua lly committed culpa ble a cts or
a cts resulting from gross negligence resulting in
the grounding of a foreign wa rship in viola tion of
our la ws defining a tortious a ct or one tha t
protects the environment which implement
_______________
229
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Arigo vs. Swift
binding interna tiona l obliga tions ca nnot cla im

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.
Petition denied.
Notes.—The Civil Service Commission has standing

as a real party in interest and can appeal the Court of
Appeals’ decisions modifying or reversing the Civil
Service Commission’s rulings, when the Court of
Appeals action would have an adverse impact on the
integrity of the civil service. (Civil Service Commission
vs. Almojuela, 694 SCRA 441 [2013])
Immunity statutes seek to provide a balance between
the state’s interests and the individual’s right against
selfincrimination. (People vs. Sandiganbayan [Fourth
Division], 699 SCRA 713 [2013])
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G.R. No. 206510. September 16, 2014.

VOL. 735, SEPTEMBER 16, 2014 103

ROBLING, US Marine Corps Forces, Pacific and

Remedial Law; Civil Procedure; Locus Standi; Words and

104 SUPREME COURT REPORTS ANNOTATED

Arigo vs. Swift

Petitioners minors assert that they represent their

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sea, the exploitation of its resources, and the exercise of

106 SUPREME COURT REPORTS ANNOTATED

Arigo vs. Swift

The invocation of US federal tort laws and even common law

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tion, preservation or rehabilitation of the environment and

108 SUPREME COURT REPORTS ANNOTATED

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would remove the immunity of the United States in order to

110 SUPREME COURT REPORTS ANNOTATED

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the social costs or negative externalities of such initiatives.

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Arigo vs. Swift

Remedial Law; Civil Procedure; Jurisdiction;

112 SUPREME COURT REPORTS ANNOTATED

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wise an outsider to the cause of action. This rule enumerates

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unable to take part in the suit, putting into question its

114 SUPREME COURT REPORTS ANNOTATED

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fered the same injury. In order to fully protect all those

VOL. 735, SEPTEMBER 16, 2014 115

grounded USS Guardian have been concluded. Furthermore,

116 SUPREME COURT REPORTS ANNOTATED

Arigo vs. Swift

Same; Same; Same; European Convention on State

VOL. 735, SEPTEMBER 16, 2014 117

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cludes respecting jurisdictional issues in cases involving an

118 SUPREME COURT REPORTS ANNOTATED

Arigo vs. Swift

international law, it is deemed automatically incorporated in

VOL. 735, SEPTEMBER 16, 2014 119

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resulting from gross negligence resulting in the

PETITION for issuance of a Writ of Kalikasan.

VILLARAMA, JR., J.:

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

120 SUPREME COURT REPORTS ANNOTATED

Central Sulu Sea, 150 kilometers southeast of Puerto

VOL. 735, SEPTEMBER 16, 2014 121

The USS Guardian is an Avenger­class mine

4 Rollo, pp. 194­199.

122 SUPREME COURT REPORTS ANNOTATED

On April 17, 2013, the above named petitioners on

VOL. 735, SEPTEMBER 16, 2014 123

tion 21); obstruction of law enforcement officer (Section

WHEREFORE, in view of the foregoing, Petitioners

124 SUPREME COURT REPORTS ANNOTATED

The USS Guardian is an Avengerclass mine

4 Rollo, pp. 194199.

7 Rollo, pp. 8992.

15 Id., at pp. 802803.

19 Id., at pp. 790792; pp. 652654.

21 Id., at pp. 269270; pp. 259261. Citations omitted.

26 Id., at pp. 727728.

Carpio, Velasco, Jr., LeonardoDe Castro, Brion,