Press Release
November 17, 2012

Miriam calls for VFA termination amidst Subic Bay controversy

Senator Miriam Defensor Santiago, resident Senate constitutionalist and international law expert, called again for the termination of the Visiting Forces Agreement (VFA) in light of the recent controversy involving Glenn Defense Marine Asia, a U.S. naval ship service contractor allegedly dumping hazardous wastes in Subic Bay. In a speech delivered at the annual convention of the Philippine Academy of Medical Specialists on 17 November 2012, Santiago said that she will file a resolution with the Senate on Monday directing the Secretary of Foreign Affairs to give notice of termination of the VFA to the US. Copies of the text of the joint resolution have been distributed to the media.

"I charge the United States for failing to comply with, and for violating, Philippine law, as well as international norms and customs on the protection and preservation of the environment as these obligations are now codified respectively in articles 192 and 211 of the U.N. Convention on the Law of the Sea," Santiago said.

According to the resolution, the government should consider the Vienna Convention on the Law of Treaties, specifically Article 64, which provides for a ground of termination of treaty; and Article 53, which provides for a ground of invalidity. The senator said that the legal obligations arising from norms of customary and conventional international law are characterized by the International Court of Justice as erga omnes obligations. Citing the Barcelona Traction Case (ICJ Reports, 1970), Santiago explained that erga omnes obligations involve the rights and obligations of every State which they owe to each State and the international community as a whole.

"The principles of international law governing the protection and conservation of the environment cannot be derogated by treaties or agreements between States; they are in the nature of jus cogens or peremptory norms of general international law," Santiago explained.

The senator stressed that under the VFA, neither the Philippines nor the US needs to cite a basis or to comply with any prerequisite to terminate the agreement. Santiago also said that the joint resolution will be treated as a bill passed by the two chambers of Congress.

"One party will simply notify the other in writing that it desires to terminate the agreement. Just like a bill, this resolution can be vetoed by the President; otherwise, it shall become a law as if he has signed it. But even so, I hope that this resolution will become a historic compulsive force among the Filipino youth, particularly in our universities. I call on students throughout the country to demand that the VFA should be scrapped," Santiago said.

Santiago, in her resolution, claimed that Glenn Defense Marine Asia could be characterized as civilian personnel employed by the United States armed forces under Article I (2) of the VFA.

"The illegality of Glenn Marine Asia's acts in toxic dumping ceases to be an individual act but is actually a breach of obligation in international law attributable to its principal, namely, the United States Government. It is thus an act of State," Santiago said.

The senator explained that Glenn Marine Asia deals only with the consequences of the military operations of the U.S. government under the VFA, but the generation or production of toxic wastes is done as an integral part of the activities of the U.S. armed forces as built into the nature of the function of the U.S. Government as a party to the VFA.

"The reason why toxic wastes are being dumped in Subic Bay is because of the existence of these U.S. Navy ships; thus, the act of pollution by dumping is within the concern of the VFA. Clearly it is a breach of obligation under Philippine law against pollution from ship," the senator said.

Akbayan Representative Walden Bello, in an interview, claimed that he is poised to file Santiago's counterpart resolution in the House of Representatives also on Monday. Bello alleged that Glenn Defense has been reckless in their toxic waste disposal.

"There have already been reports of fish kill in certain areas around Subic Bay, and the risk to the health of the people becomes more imminent," Bello said.

Bello added that although the accountability of the US Navy has yet to be established, U.S.' two-point agenda in the Philippines is no secret to most congressmen.

"The U.S' main motivations to pursue the VFA are to contain China's ascent to power, and refocus its war on terror to South East Asia, which it has tagged as one of the training grounds of Islamic fundamentalism, especially as its sojourn in the Middle East expires. In exchange, the Philippine Armed Forces get major upgrade through joint military exercises and investments in infrastructure," Bello said.

According to Santiago, she has the permission of Rep. Walden Bello to announce that he will file a counterpart resolution in the House of Representatives.

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