Miriam Cites Violation Of Philippine Law, International Norms

Manila, Philippines - As a resident Senate constitutionalist and international law expert, Sen. Miriam Defensor Santiago has again sought the termination of the Philippines-US Visiting Forces Agreement (VFA) following the controversial dumping of alleged toxic wastes in Subic Bay.

Subic Bay was once the largest port of the United States for its naval forces in Southeast Asia until it was closed down in late 1992 following the rejection by the Philippine Senate of a US request to extend the stay of its naval station at Subic and Air Force Base at Clark Air Force Base in Pampanga.

The hazardous waste materials were allegedly dumped by Glenn Defense Marine Asia, a US naval ship service contractor. The waste materials were reportedly taken from US naval ships in the area.

In a speech delivered yesterday at the annual convention of the Philippine Academy of Medical Specialists, Santiago said she would file today a resolution with the Senate directing the Department of Foreign Affairs (DFA) secretary to give notice of termination of the VFA to the US.

"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 UN Convention on the Law of the Sea (UNCLOS)," Santiago said.

In her resolution, Santiago 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 US government under the VFA, but the generation or production of toxic wastes is done as an integral part of the activities of the US armed forces as built into the nature of the function of the US 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 US 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.

The Santiago resolution stated that 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.

Santiago, former chairperson of the Senate foreign relations committee, stressed 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.

Santiago said under the VFA, neither the Philippines nor the US needs to cite a basis or to comply with any prerequisite to terminate the agreement.

She also said that the joint resolution would be treated as a bill passed by the two chambers (Senate and the House of Representatives) 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.

Akbayan Rep. 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, a human rights advocate, maintained 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.

Although the accountability of the US Navy has yet to be established, the two-point agenda of the United States in the Philippines is no secret to most congressmen, he said.

"The US main motivations to pursue the VFA are to contain China's ascent to power, and refocus its war on terror to Southeast 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.

Santiago said she has the permission of Bello to announce that he would file a counterpart resolution at the Lower House.