No VFA cover for dumping

The United States Navy contractor accused of dumping hazardous waste into Subic Bay last month is not covered by the Visiting Forces Agreement between the US and the Philippines, the Department of Foreign Affairs said on Friday.

“The VFA only covers US military personnel and US civilian personnel who are individuals employed by the US Armed Forces or those that accompany them such as employees of the American Red Cross and United Services Organization,” said Assistant Secretary Raul Hernandez, the DFA spokesperson.

“Since Glenn Defense Marine Asia Philippines Inc. cannot be considered US personnel, clearly its acts as third-party contractors are not covered by the VFA,” Hernandez said.

The VFA, the 1999 agreement that provides the framework for regulating the presence of US military forces and equipment in the Philippines, allows the US government to retain jurisdiction over US military personnel accused of committing crimes in the Philippines, unless the crimes are of “particular” importance to the Philippines.

The debate over this controversial aspect of the VFA—which many Filipinos see as one-sided and an affront to the sovereignty of the Philippines—has come into play once again after the Malaysia-based US Navy contractor accused by the Subic Bay Metropolitan Authority (SBMA) of dumping toxic waste in its waters invoked the protection of the VFA.

Glenn Defense Marine Asia Phil., through its politically influential law firm, Villaraza, Cruz, Marcelo and Angangco, when confronted with a “show-cause” letter by the SBMA to explain its illegal acts cheekily replied that the Presidential Commission on the Visiting Forces Agreement (VFACOM), not the government agency that administers the free port, had jurisdiction over it.

The Inquirer reported on Friday that the SBMA was investigating the US Navy contractor for allegedly dumping untreated toxic and hazardous waste on Subic Bay last month. The waste was reportedly dumped by the tanker Glenn Guardian, a vessel owned by Glenn Defense, which reportedly collected the waste from US ships that participated in recently concluded joint military exercises in the country.

Hernandez pointed to Article I of the VFA, which defines the term “military personnel” and “civilian personnel” covered by the agreement, as referring only to individuals employed by the US military and those accompanying them.

Additionally, a provision under Article VI (Claims) states: “Except for contractual arrangements… both governments waive any and all claims against each other for damage, loss or destruction to property of each other’s armed forces or for death or injury to their military and civilian personnel arising from activities to which this agreement applies.”

At the Senate, Sen. Miriam Defensor-Santiago was on Friday poised to file a resolution calling for a legislative inquiry into the issue. But as Senate offices were closed on Fridays, Santiago had to defer the filing of the resolution for Monday.

Clearly illegal

The Senate’s acknowledged expert on international law, Santiago laid out the exact international and national laws that were violated by the US Navy contractor and dismissed its jurisdictional claims.

Santiago said the dumping of toxic waste by Glenn Defense in Subic Bay was clearly illegal. It was not just a violation of the VFA but an infraction of international conventions on maritime pollution as well as national laws on toxic waste.

On Glenn Defense’s position that the VFACOM was the sole authority to handle its case, Santiago said the commission was only a monitoring body mandated to submit regular reports to the President.

SBMA has jurisdiction

Under Republic Act No. 7227, also known as the Bases Conversion and Development Act of 1992, the SBMA has authority to inspect and investigate Glenn Defense’s ships, she said.

Santiago said the law mandates SBMA “to adopt and implement measures and standards for environmental pollution control of all areas within its territory, including, but not limited to all bodies of water and to enforce the same.”

Assuming that the act of dumping hazardous waste is within the concern of the VFA, it is clearly a breach of obligation under Philippine law against pollution from ships, the senator said.

Santiago said the act of polluting was a violation of the VFA itself under Article II of the pact.

“It is the duty of the United States 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,” she said in a statement.

Santiago said Glenn Defense Marine Asia could be characterized as “civilian personnel” of the US Armed Forces under Article 1 of the VFA.

However, being a US civilian personnel is only one of Glenn Defense’s legal characters. She said that it is a Malaysian corporation with legal status under Malaysian law engaged in a particular line of business and is hired by entities outside of the US Armed Forces.

“It is this legal status that brings Glenn Defense within the sovereign prerogative of the Philippine government in the enforcement of environmental laws in its jurisdiction,” Santiago said.

Breach of international law

Since Glenn Defense is a US government contractor, the illegality of its acts of toxic dumping ceases to be an individual act, but a breach of obligation in international law attributed to its principal, the US government, she said.

“It is an internationally wrongful conduct in breach of the duty in international or customary law to protect and preserve the environment in general and to prevent pollution from vessels, in particular,” Santiago said.

She said these obligations are codified in Articles 192 and 211 of the United Nations Convention on the Law of the Sea. Pollution from ships as a customary principle of international law is also codified in the International Convention for the Prevention of Pollution from Ships of 1978 (Marpol).

“As a treaty, Marpol is of universal application and enforcement. It must be stressed that the customary norms it embodies are generally accepted principles of international law, which our Constitution proclaims as part of the law of the land,” Santiago said.

Environmental laws violated

Santiago said Department of Environment and Natural Resources (DENR) Administrative Order No. 2001-28 provides that military exercises and related activities undertaken under the VFA should be in accordance with the country’s environmental laws, such as RA 6969, or Toxic Substances and Hazardous and Nuclear Wastes Control Act.

The DENR AO 2001-28 embodies the implementing rules and regulations on the protection and preservation of the environment during VFA-related activities in the country.

RA 6969, meanwhile, prohibits “the storage, importation, or bringing into Philippine territory, including its maritime economic zones, even in transit, either by means of land, air or sea transportation or otherwise keeping in storage any amount of hazardous and nuclear wastes in any part of the Philippines.”

According to Santiago, the Subic incident was not the first time that Glenn Defense has been accused of environmental violations.

In 2011, Glenn Defense was charged for dumping liquid waste a few kilometers from Manila Bay. The case is still pending with the DENR.

VFA review to follow

Sen. Loren Legarda, cochair of the legislative oversight committee on the Visiting Forces Agreement, said she would file a resolution to look into Glenn Defense’s alleged environmental crime and that a review of the VFA would logically follow.

“The committee will conduct the hearing so, in effect we will review the VFA in the light of this,” Legarda said in a text message.

Legarda said the VFACOM, chaired by Executive Secretary Paquito Ochoa, is mandated to coordinate with the legislative oversight committee to ensure that the agreement continues to serve national interest.

“Clearly, the incident did not serve national interest at all. We shall require a report on this incident and demand immediate action against all those involved in violating our laws,” she said in a statement.

Legarda said it is shameless for the US military’s service contractor to hide behind the VFA and raise jurisdictional issues. Glenn Defense is neither a part of US personnel nor of the civilian personnel contemplated in the VFA, she said.

“[It] is a contractor whose status in the Philippines is clearly within the bounds of our laws… There is no jurisdictional issue as far as this case is concerned. If it is indeed established that they violated our environmental laws, they should be made to answer, and penalties need to be imposed to the fullest extent of the law,” she said.

Sen. Francis Escudero, chair of the Senate committee on environment and natural resources, also saw a clear violation of Philippine laws by Glenn Defense.

“Our laws are clear on environmental protection, particularly RA 9275 or The Philippine Clean Water Act of 2004 if indeed hazardous waste was dumped on Subic Bay,” Escudero said.

Port visits continue

The Department of National Defense on Friday said the port visits of the US Navy to the Philippines will continue despite the controversy regarding dumping of toxic waste by the US Navy contractor.

“The US dumping is a separate issue to be addressed by the parties—the SBMA or the Office of the President and the contractor. That’s still under investigation. That’s separate from the port visits,” said defense spokesperson Peter Galvez.

“The port visits may be done without doing any kind of waste disposal. These two issues should not be addressed as if they are one and the same,” Galvez added.

The US Navy’s port visits are part of the Obama administration’s so-called Asian pivot policy, or the United States’ strategic shift to the Asia-Pacific. With a report from Nikko Dizon