蜜桃工作室

Santiago suggests termination of VFA

Senator Miriam Defensor-Santiago. 蜜桃工作室 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 鈥減ivoting鈥 to Asia would mean 鈥渢he marked frequency of the visits of US aircraft carriers, nuclear-powered submarines and increased presence of US naval forces in the Philippines.鈥

The way things would go, it could mean 鈥渢he VFA (is) on the way to becoming by itself, a toxic waste phenomenon,鈥 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鈥檚 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鈥攃ontracted by the US Navy to collect, treat and dispose of waste from its vessels docked at Subic鈥攊s located within SBMA territory and therefore under the jurisdiction of the SBMA, Adan said in an interview with the Inquirer.

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

International law

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

鈥淭he 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,鈥 she said.

鈥淭he 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,鈥 said Santiago, the Senate鈥檚 expert in international law.

She noted that 鈥(t)he magnitude of Glenn鈥檚 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 鈥榯ons of liquid wastes from these ships.鈥欌

Santiago pointed out, however, that 鈥(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.鈥

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

Int鈥檒 obligations

Santiago clarified that Glenn鈥檚 undertaking 鈥渄eals 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.鈥

Which means, according to Santiago, that the VFA 鈥渕ust be terminated鈥 as 鈥渢he resolution of the grave implications at hand points directly to (its) existence and operationalization.鈥

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

鈥淭he principles of international law governing the protection and conservation of the environment鈥攕uch as those against poisoning the seas and oceans by dumping of hazardous wastes鈥攃annot be derogated by treaties or (bilateral) agreements between states,鈥 she said.

鈥淭his 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),鈥 Santiago said.

鈥淎rticle 53 of the Vienna Convention on the Law of Treaties characterizes a jus cogens norm as a norm of general international law 鈥榓ccepted and recognized by the international community as a whole from which no derogation is permitted,鈥欌 Santiago said.

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

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

鈥淎rticle 64 provides for a ground of termination of treaty and Article 53 provides for a ground of invalidity,鈥 she said.

Palace waits

Malaca帽ang is not taking immediate action, however.

Speaking on state-run radio on Sunday, deputy presidential spokesperson Abigail Valte repeated the Palace鈥檚 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鈥檚 investigation.

In the interview with the Inquirer, Adan said he had talked with Glenn Defense officials and had been told that Glenn鈥檚 VFA assertions 鈥渨ere taken out of context.鈥

鈥淚n their years of operations, there has been no complaint about Glenn Defense. There鈥檚 no report to the VFACom [about complaints] relating to the Subic waste dumping] until now,鈥 Adan said.

鈥淲e don鈥檛 know what happened or where it happened. The report coming out in newspapers is incomplete,鈥 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.

鈥淏ased on our experience, our preferred method of collecting and hauling waste water or oily water from visiting ships is by trucks,鈥 Payumo said.

鈥淚n 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,鈥 he said. With reports from TJ Burgonio in Manila and Robert Gonzaga, Inquirer Central Luzon

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

LATEST STORIES
Read more...