State immunity and Tubbataha
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A motion for issuance of writ of execution was filed yesterday with the Supreme Court in the case of Salonga et. al. versus Executive Secretary. Recall that former Senate President Jovito Salonga attempted to declare the Visiting Forces Agreement unconstitutional in connection with the then criminal prosecution of US Serviceman Lance Corporal Daniel Smith who was accused of raping a Filipina under the name of “Nicole”. Salonga’s petition came after RTC Judge Benjamin Pozon found Smith guilty of rape and ordered him detained in the Makati City Jail pending his appeal. But literally at midnight, former President Gloria Arroyo and her Cabinet members took custody of the person of Smith and delivered him to the US Embassy, where he was beyond reach of Philippine authorities. This is because diplomatic premises are immune from the jurisdiction of host states.
Salonga’s petition sought to reopen the decision of the Supreme Court in the case of Bayan versus Zamora, which earlier upheld the constitutionality of the VFA. In this earlier case, the party list group Bayan sought to have the agreement declared invalid because it was concurred in only by the Philippine Senate and not by the US Senate. Under the 1987 Constitution, and to avoid a repeat of the notorious US-Philippine bases agreement where only the Philippine Senate gave its concurrence to the treaty, it is now expressly required that the presence of foreign troops and bases shall only be pursuant to a treaty “duly recognized by the other party as such”. In Bayan, the Court upheld the VFA’s constitutionality because the court was satisfied that the United States recognized the agreement as a valid binding international agreement. Anent the non-concurrence by the US Senate, the Court ruled that it is not its business to inquire on the requirements of a foreign law before a treaty can have the effect of binding law in that foreign jurisdiction.
Salonga reiterated that the VFA was unconstitutional since the US Senate did not concur it in. But in addition, he argued that the Kearney-Romulo agreement providing that US servicemen found guilty of the commission of non-service related offenses should remain in American custody pending appeal was illegal. This was pursuant to an express provision of the VFA itself, which provides that these servicemen should, after conviction, hence be turned over to the custody of Philippine authorities.
Salonga’s petition, unlike that of the earlier petition of Bayan, was partially granted. While the court upheld anew the constitutionality of the VFA, it nonetheless ruled that the Kearney-Romulo agreement was invalid. It then ordered that the Foreign Affairs Department “is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA.”
This was the partial victory that Salonga et al sought to enforce through a writ of execution last Tuesday.
While it is true that the Court ordered the renegotiation for a specific purpose, Petitioners further argued that the recent grounding of the USS Guardian in the UNESCO heritage site Tubbataha reef now justifies a renegotiation of the agreement towards abrogating the same. Under the VFA, the same can only be terminated upon the giving of 180 days notice. The petitioners argued that the grounding clearly demonstrates that the VFA has not and will not uphold Philippine interest. The motion states that while the occasion that gave rise to Salonga’s petition was the rape of our women, the Tubbataha grounding is yet another form of rape- this time, against the national patrimony. Petitioners asked: “what was the USS Guardian doing in the protected area? Why did they ignore park rangers repeated demands for the vessel not to enter the protected area?” The petitioners then speculated that the obvious reason for the incursion of the minesweeper onto the park was to enable its crew to engage in recreational diving in the area. This they said, made the grounding “non-service related” for which reason its captain and crew should have been arrested and prosecuted before Philippine courts under the VFA. If found guilty for incursion into the Tubbataha protected area, they should then be turned over to Philippine authorities pending their appeal. This was the ruling of the Court in Salonga.
The Tubbataha grounding presents difficult issues of state immunity under international law. While the ICJ has only last year reiterated that the presence and acts of foreign troops in an armed conflict are undeniably covered by sovereign immunity, the court, in a previous case involving a Congolese foreign minister charged with incitement to genocide, nonetheless emphasized that “immunity was a mere procedural bar” and not intended to defeat substantive law.
If immunity from suit is a procedural bar merely to refer the controversy to another tribunal, the search should then continue on how to hold the Captain and crew of the USS Guardian, and all American authorities responsible for the destruction of one of our greatest natural wealth, responsible for their acts. In this regard, Salonga’s motion for issuance of a writ of execution for its partial victory against the VFA is only the first step.
Harry Roque Jr. is a professor of law at the University of the Philippines.
Follow him on Twitter @attyharryroque.