Press Release
February 12, 2013


(Part 2 of speech delivered at the UP Manila on 12 February 2013,
at the symposium sponsored by the University Student Council.)

I have such a high opinion of the Student Council of the University of the Philippines, my own alma mater, that I will have to beg your indulgence in addressing myself to two topics of national importance: the Tubbataha disaster; and weaponizing social media for the ongoing political campaign.

The Tubbataha Disaster

The Tubbataha Reef in Philippine territory has been proclaimed a UN World Heritage Site. It is home to a spectacular, breathtaking panorama of marine life consisting of:

  • 600 species of fish

  • 360 species of corals

  • 11 species of sharks

  • 13 species of dolphins and whales, and

  • 100 species of birds and sea turtles

This magical spot within Philippine territory is governed by R.A. No. 10067, or the Tubbataha Reef Park Act of 2009.

Last month, on January 17, the USS Guardian, a US Navy minesweeper passed by this marine sanctuary. It is said that park rangers radioed the ship with the advice that it was nearing the Reef. However, the ship captain allegedly insisted that the park rangers should instead raise their complaint with the US embassy.

According to the official statement of the Tubbataha Management Office, the US ship did not have a permit to enter the park, which is a marine protected area. It was also found that the vessel did not inform the marine park rangers of its presence and situation. When the rangers informed the Americans of their violations and announced the intention of the rangers to board the vessels, the radio contact was unanswered and the boarding protocol was aborted, specially since the Filipinos saw the Americans taking positions armed with weapons.

Under Philippine law, the American ship violated the provisions on unauthorized entry, damages to the Reef, nonpayment of conservation fees, destroying and disturbing resources, and obstruction of law-enforcement officers.

The American vessel directly caused environmental disaster over an area of some 4,000 square meters, which is the size of 10 basketball courts. Under Philippine law, the US Navy has the duty to pay a fine of $300, or some P12,000 per square meter, plus another $300 per square meter for rehabilitation efforts.

The American crew were transferred to support vessels. But the warship, which is 68 meters long, is still there. Under the US Navy salvage operation plan, the ship will eventually be broken down into pieces and taken away. But while it is there, it will continue to destroy marine life.

It was an unspeakable crime to inflict such damage on the Reef. The only defense of the Americans is that they allegedly used a faulty map that misplaced the location of the Reef. In other words, the Americans seem to admit that they were sloppy with their map, and that they were arrogant with the Filipino park rangers whose advice they disregarded.

On February 4, the American ambassador reiterated regrets over the incident and assured our foreign affairs secretary that the United States will provide appropriate compensation. However, as a student of international law, I find that the statement issued by the US ambassador is disturbing, and amounts to doublespeak. The statement calls the Tubbataha event as an "accident." The word "accident" implies that the act of the US ship involved no negligence or fault. Furthermore, the US government has offered other forms of assistance. Thus, in my view, the statement issued by the US embassy makes American compensation and other activities look like foreign assistance, for which we Filipinos are expected to be grateful!

In other words, I am concerned that the American offer of compensation is made to appear, not as a dictate of legal obligation under international law, but as an indulgence in American magnanimity. If the Philippine government resorts to the legal process to demand compensation, on record the Americans could have evaded any admission of guilt. Instead, the Americans could oppose any complaint in an international law tribunal, by raising the defense of sovereign immunity from suit.

Allow me to make a simple analysis of the international law dimensions of the Tubbataha event. There is no question that Tubbataha near Palawan is part of Philippine territory, protected not only by Philippine law, but also by the UN declaration that it is a World Heritage Site. When the American warship ran aground in the Reef, the US government committed what international law calls an "internationally wrongful act." As such, the Tubbataha event is a violation of the international law codified under the topic of "Responsibility of States for Internationally Wrongful Acts" issued by the International Law Commission.

Under this topic, the Tubbataha event is covered by at least two articles. Under Article 1: "Every internationally wrongful act of a State entails the international responsibility of that State."

Under Article 2: "There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) Is attributable to the State under international law; and (b) Constitutes a breach of an international obligation of the State." Therefore, as provided by the International Law Commission, under the principle of attribution, the conduct of the officials and personnel of the USS Guardian is considered as an act of the US government under international law, and consequently, the US government bears responsibility.

The International Law Commission is one authority. Let me cite another authority: Sir Ian Brownlie, Oxford professor emeritus of public international law. The latest seventh edition of his famous book, Principles of Public International Law, was published in 2008. By 2009, Prof. Brownlie had passed away and the eighth edition of his book was issued by Professor James Crawford in 2012.

According to Brownlie: "In principle, an act or omission which is on its face a breach of legal obligation gives rise to responsibility in international law. . . The practice of states and jurisprudence of arbitral tribunals and the International Court have followed the theory of objective responsibility as a general principle." What this means is that under the principle of objective responsibility, a breach of international obligation occurs by result alone, even in the absence of negligence or fault.

Let me go on to my third authority, the time-honored decision in the 1927 case of Chorzow Factory. In its decision, the Permanent Court of International Justice said: "It is a principle of international law that the breach of an international engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention. . . . It is a principle of international law . . . that any breach of an engagement involves an obligation to make reparation."

Finally, let me cite one more authority: the RP-US Visiting Forces Agreement, Article 2 on "Respect for Law." Article 2 provides: "It is the duty of the US personnel to respect the laws of the Republic of the Philippines . . . The government of the United States shall take all measures within its authority to ensure that this is done."

In sum, international law is clear that whether or not there was negligence or fault on the part of the US warship, under the principle of state responsibility, the US government is responsible for the partial destruction of Tubbataha Reef, which some say will need 250 years to be fully restored. Under the principle of objective responsibility, the basic test is whether there has been a breach of international obligation. The US has accepted that it has committed such a breach. Therefore, the US government should stop referring to the Tubbataha event as an "accident." Instead, the Tubbataha event should be called a "breach of international obligation."

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