JURIST Guest Columnist Edsel Tupaz of the The Law Offices of Tupaz & Associates argues that the US Seventh Fleet must be held liable for the destruction of the Tubbataha Reefs...
n Wednesday April 17, 2013 a number of public interest groups, led by two bishops, environmental experts, human rights activists, academics, and congressmenall noticeably occupying the full political spectrumsued the Seventh Fleet of the United States Navy "on behalf of persons whose constitutional right to a balanced and healthful ecology is violated." The citizens' suit requested for the issuance of a "Writ of Kalikasan
" [Rule 7, PDF] and seeks to hold the US Navy liable for environmental damages following the allegedly unlawful entry and January 17, 2013 grounding of the USS Guardian in the middle of the Tubbataha Reefs Natural Park. The Tubbataha Reefs comprise a marine ecological park within the "Coral Triangle
," an area which marine biologists consider the "global center of marine biodiversity" with a very high density of marine species, trumping the Great Barrier Reef in biodiversity richness. Tubbataha was listed by UNESCO as a World Heritage Site since 1993, and by RAMSAR, according to the Ramsar Convention on Wetlands, since 1999.
Assigned to the Amphibious Forces Seventh Fleet, forward deployed to Sasebo, Japan, the USS Guardian (MCM-5) is the fifth Avenger Class Mine Countermeasures ship to join the US Navy and is the second to bear her name. On January 17, 2013, the USS Guardian ran aground on Tubbataha Reef while transiting the Sulu Sea after completing a port call at the former US naval base of Subic Bay, Olongapo City en route to her next port of call in Indonesia.
Tubbatahaa word which means a long reef exposed at low tideis considered the largest and oldest coral reef atoll in the Philippines. When it became obvious that the USS Guardian could not be lifted nor towed out of the damaged zone even on high tide, Vice Admiral Scott Swift, Commander of the US Seventh Fleet, gave the order to cut up the vessel into smaller chunks. On March 30, 2013, after ten weeks of salvage and post salvage operations involving no less than 15 heavy vessels, the final section of the hullthe stern section (weighing approximately 250 tons)was lifted from the reef and sent to Japan.
Curiously, about one week later on April 8, 2013, a Chinese boat ran aground in the same Tubbataha Reef. Unlike the case of the Guardian, the twelve Chinese nationals aboard the vessel, posing as "fishermen," were arrested, the ship impounded and charges filed. Allegations the Chinese poachers attempted to bribe the marine park rangers with $2,500 followed. While detained in the provincial jail facility in Puerto Princesa, Palawan on April 9, 2013, Chinese Consul General Shen Zicheng and 3rd Secretary Li Jian flew to Palawan and held a closed-door meeting with Philippine coast guard and navy officials. Allegations of bribery were also hurled against the Chinese representatives.
Why were Philippine authorities, led by no less than President Aquino, so quick with legal action against the Chinese, when, to date, no single criminal charge had been filed against the crew of the Guardian? Are double standards at work? In fact, according to an April 1, 2013 statement issued by the Commander of the US Pacific Fleet at Pearl Harbor, save for Lieutenant Commander Mark A. Rice, all ex-Guardian crew are now assigned to this ship. Commander Rice introduced the crew to the new ship with an "awards ceremony" and handed the crew members a "letter of recognition." The Warrior is also an Avenger-Class minesweeper.
After all, the US is the Philippines' closest ally in the Pacific. Prior to the decommissioning of US military bases in Clark and Subic, the Philippines was home to the largest force deployed in the East. Today, it is Guam and, increasingly, South Korea. Following the Guardian's entry and grounding, anti-American sentiment is now on the rise, calling for the abrogation of the Visiting Forces Agreementpresumably the basis for the Guardian's passage into Philippine watersand the Mutual Defense Pact of 1951. US troops left the Philippines in 1991 following the expiration and congressional non-renewal of the Military Bases Agreement of 1947, but a "Visiting Forces Agreement," patterned after NATO's Status of Forces Agreements, took its place. There was no doubt that anti-American sentiment peaked during Reagan-Thatcherism, but left-wing groups today argue the Visiting Forces Agreement circumvents what is now a constitutionally entrenched prohibition of "permanent" military installations in the Philippines sans Senate concurrence. Environmentalists are also quick to point to the discharge of toxins, heavy metals and untreated sewerage into the ground and water in and around former Subic Bay in Olongapo City, which was then America's largest naval base in the Pacific, and Clark, Pampanga, a former US Air Force Base. In fact, in 1992 the US General Accounting Office estimated [PDF] the clean-up would cost more than 12-15 million dollars per site. While US Air Force and Navy officials identified significant environmental damage at both bases, the GAO report concluded that "the current basing agreement does not impose any well-defined environmental responsibility on the United States for environmental cleanup and restoration."
The Kalikasan petition argues the same goes for the current Visiting Forces Agreement. The petition raises novel questions because, so far, it is the first time a claim has been raised presenting a clear nexus between the environment and foreign military troops. Public interest groups argue the government's latest valuation for environmental damages and environmental impact in the World Heritage Site is far too low considering the US's own treatment of the grounding of the USS Port Royal in 2009 where the State of Hawaii demanded the US Navy a value between $25 million and $40 million. In the case of the Guardian, local authorities are demanding for a paltry $1.4 million. Will the exertion of extraterritorial federal power make a case for differential treatment between Hawaii and the Philippines? The Polluter Pays Principle [Principle 16] under international legal norms requires federal agencies to subject themselves to legal standards "no less severe" than those which would apply for any equivalent environmental damage occurring within their country under comparable conditions and in comparable zones. To hold otherwise would be allowing unprincipled differential treatment. If the US Navy concedes to the latest figure, surely there may be double standards at work.
Correction: An earlier version of this article incorrectly identified Lt. Cmdr. Mark A. Rice as the commanding officer of the USS Warrior. We have corrected the editorial to note the change.
Edsel Tupaz is counsel for petitioners in this case. He is a public interest lawyer and a professor of international and comparative law, based in Manila, Philippines. Mr. Tupaz is an inaugural columnist of JURIST. Follow Edsel Tupaz on Twitter.
Suggested citation: Edsel Tupaz, Double Standards in the Philippines, JURIST - Sidebar, May 23, 2013, http://jurist.org/sidebar/2013/05/edsel-tupaz-us-navy.php .
This article was prepared for publication by John Paul Regan, an Assistant Editor with JURIST's Professional Commentary Service. Please direct any questions or comments to him at firstname.lastname@example.org