Santiago suggests termination of VFA

Senator Miriam Defensor-Santiago. INQUIRER FILE PHOTO

The Philippines should consider terminating its Visiting Forces Agreement (VFA) with the United States because US military forces are the actual sources of hazardous waste being dumped in local waters, Sen. Miriam Defensor-Santiago suggested Sunday.

Santiago offered the idea after noting that the new US military strategy of “pivoting” to Asia would mean “the marked frequency of the visits of US aircraft carriers, nuclear-powered submarines and increased presence of US naval forces in the Philippines.”

The way things would go, it could mean “the VFA (is) on the way to becoming by itself, a toxic waste phenomenon,” she said.

A Malaysian contractor that siphons waste from US military vessels docked at Subic Bay in Zambales has caused furor after one of its vessels has been found to have dumped 189,000 liters of domestic waste and about 760 liters of bilge water (a combination of water, oil and grease) in Philippine waters in October.

The barge MT Glenn Guardian, owned by Malaysia’s Glenn Defense Marine Asia, took the waste from the US Navy ship Emory Land and dumped it on a spot in the West Philippine Sea, 37 kilometers from Subic Bay.

Glenn Defense Marine Asia Philippines Inc., the local operator of the Malaysian company, has invoked the VFA in shooing off the Subic Bay Metropolitan Authority (SBMA), which has opened an investigation into the waste dumping by the Glenn Guardian.

The Department of Foreign Affairs (DFA) has said, however, that Glenn Defense cannot seek cover behind the VFA, as the agreement covers only visiting US military forces. Glenn Defense is a civilian contractor of the US Navy.

Edilberto Adan, executive director of the Presidential Commission on the Visiting Forces Agreement (VFACom), on Sunday said the SBMA had the authority to investigate Glenn Defense Marine Philippines.

The company—contracted by the US Navy to collect, treat and dispose of waste from its vessels docked at Subic—is located within SBMA territory and therefore under the jurisdiction of the SBMA, Adan said in an interview with the Inquirer.

“Any entity [that] commits violations should be investigated. Every government agency has its own mandate. By all means [Glenn Defense] should be investigated,” Adan said. “[The] VFACom will not interfere.”

International law

In an e-mailed statement to the Philippine Daily Inquirer, Santiago said Glenn Defense could not hide under the VFA’s skirt because international treaties that laid down norms of customary and conventional international law would supersede bilateral agreements.

“The operations of Glenn Defense Marine Asia Philippines Inc. in question, (dumping of toxic wastes in Philippine waters) are in contravention of Philippine law based on international standards that have long been established as norms of customary and conventional international law,” she said.

“The obligations of (the Philippines and the US) arising from these norms and standards cannot be reduced into the limits of a bilateral treaty between two states, such as the relations of the United States and the Philippines under their Visiting Forces Agreement,” said Santiago, the Senate’s expert in international law.

She noted that “(t)he magnitude of Glenn’s operations in toxic wastes dumping is of record. In the current year alone, it is recorded that 37 US Navy ships were serviced by Glenn, from which it collected ‘tons of liquid wastes from these ships.’”

Santiago pointed out, however, that “(s)ince the toxic wastes operations of Glenn are limited to collection, hauling and dumping, then it follows that the conduct of this company does not involve generation of toxic wastes, or their production.”

These activities are “being accomplished within Philippine jurisdiction by US warships or military ships in the conduct of activities under the legal regime of the VFA,” she said.

Int’l obligations

Santiago clarified that Glenn’s undertaking “deals only with the consequences of the military operations of the US government under the VFA. But the generation or production of toxic wastes in question 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.”

Which means, according to Santiago, that the VFA “must be terminated” as “the resolution of the grave implications at hand points directly to (its) existence and operationalization.”

Santiago said Glenn Defense Marine Asia and the US government could not limit the resolution of the waste dumping issue to the VFA.

“The principles of international law governing the protection and conservation of the environment—such as those against poisoning the seas and oceans by dumping of hazardous wastes—cannot be derogated by treaties or (bilateral) agreements between states,” she said.

“This category of legal obligations is characterized as erga omnes obligations. The International Court of Justice (ICJ) has characterized them as obligations (that) every state owes to the international community as a whole; they involve the rights of every state, as declared by the ICJ in the Barcelona Traction Case (ICJ Reports, 1970, pp. 3, 32),” Santiago said.

“Article 53 of the Vienna Convention on the Law of Treaties characterizes a jus cogens norm as a norm of general international law ‘accepted and recognized by the international community as a whole from which no derogation is permitted,’” Santiago said.

She added that the consequence of contravening a norm of jus cogens character was expressed by the same provision: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general law.”

Santiago also said Article 64 of the Vienna Convention may assume more relevance in evaluating the VFA. “If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates,” she said.

“Article 64 provides for a ground of termination of treaty and Article 53 provides for a ground of invalidity,” she said.

Palace waits

Malacañang is not taking immediate action, however.

Speaking on state-run radio on Sunday, deputy presidential spokesperson Abigail Valte repeated the Palace’s position that it would wait for the results of the SBMA and Senate investigations before taking any action.

Santiago will file a resolution today to ask the Senate to investigate the waste dumping in Subic. The SBMA board meets today to discuss the initial results of the authority’s investigation.

In the interview with the Inquirer, Adan said he had talked with Glenn Defense officials and had been told that Glenn’s VFA assertions “were taken out of context.”

“In their years of operations, there has been no complaint about Glenn Defense. There’s no report to the VFACom [about complaints] relating to the Subic waste dumping] until now,” Adan said.

“We don’t know what happened or where it happened. The report coming out in newspapers is incomplete,” he added.

Use trucks

Felicito Payumo, chair of the Bases Conversion Development Authority (BCDA) which supervises the SBMA, said the SBMA should impose a waste disposal standard on vessels docked at the free port to help reduce environmental problems there.

“Based on our experience, our preferred method of collecting and hauling waste water or oily water from visiting ships is by trucks,” Payumo said.

“In fact, trucks are required in collection, handling and transfer services contracts when ships are docked [at] piers. Barges are used only if the ships are anchored in the middle of the bay,” he said. With reports from TJ Burgonio in Manila and Robert Gonzaga, Inquirer Central Luzon

Originally posted: 6:10 pm | Sunday, November 11th, 2012