Paula Defensor Knack , Former Assistant Secretary for Lands and Legislative Affairs of
the Department of Environment and Natural Resources Philippines; Chair of the Panel of
Experts on Toxic and Hazardous Wastes in Former U.S. Military Bases by Executive
Order of the President.
Philippine Senate quotes report of Paula Defensor in Philippine Senate Committee
Report No. 237.
The Philippine Senate Committee Report
No. 237
On Toxic Contamination in the former U.S.
Bases
in the Philippines
(2000)
ELEVENTH CONGRESS OF THE)
REPUBLIC OF THE PHILIPPINES)
Second Regular Session )
S E N A T E
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COMMITTEE REPORT NO. 237
Submitted by the Committees on Environment and Natural resources, Health and
Demography, and Foreign Relations on ______________.
Re: P.S. Res. Nos. 158, 162, 172, 281, 303, 576 and 587 taking into consideration P.S.
Res. No. 460.
Recommending the adoption of the recommendations contained therein.
Sponsors: Senators Robert S. Jaworski, Juan M. Flavier, Miriam Defensor Santiago,
Loren Legarda Leviste, Anna Dominique M.L. Coseteng, Sergio Osmena III, and the
members of the Committees on Environment and Natural Resources, Health and
Demography, and Foreign Relations.
------------------------------------------------------------------------------------------
Mr. President:
The committees on Environment and Natural Resources, Health and Demography and
Foreign Relations to which ere referred P.S. Resolution No. 158 introduced by
Senator Juan M. Flavier, entitled,
RESOLUTION
DIRECTING THE SENATE COMMITTEES ON ENVIRONMENT AND
NATURAL RESOURCES AND ON HEALTH AND DEMOGRAPHY TO
INVESTIGATE, IN AID OF LEGISLATION, THE ALLEGED PRESENCE OF
TOXIC AND HAZARDOUS WASTES IN THE FORMER U.S. MILITARY
INSTALLATIONS OF SUBIC AND CLARK WITH THE END IN VIES OF
DETERMINING THE LEVEL OF THREAT IT POSES AND IN ORDER TO
INSTITUTE THE NECESSARY REMEDIAL MEASURES
P.S. Resolution No. 162, introduced by Senator Miriam Defensor Santiago, entitled,
RESOLUTION
DIRECTING AN INQUIRY, IN AID OF LEGISLATION, ON THE
REPORTED CONTAMINATION OF CLARK AND SUBIC WATERS WITH
TOXIC SUBSTANCES
P.S. Resolution No. 172, introduced by Senator Loren Legarda-Leviste, entitled,
RESOLUTION
DIRECTING THE SENATE COMMITTEES ON ENVIRONMENT AND
NATURAL RESOURCES AND FOREIGN RELATIONS TO INQUIRE, IN
AID OF LEGISLATION, INTO THE TOXIC CONTAMINATION WITHIN
THE FORMER U.S. BASES AND TO RECOMMEND THE CREATION OF A
MULTI-SECTORAL TASK FORCE COMPOSED OF REPRESENTATIVES
OF THE PHILIPPINE AND UNITED STATES GOVERNMENTS AND THE
SENATE COMMITTEES, CONCERNED NON-GOVERNMENTAL AND
PEOPLE’S ORGANIZATIONS AND TECHNICAL/ SCIENTIFIC EXPERTS
WHICH WILL COOPERATE IN THE PLANNING AND MONITORING OF
THE THOROUGH STUDY, CLEAN-UP AND RESTORATION OF
CONTAMINATED SITES IN SUBIC AND CLARK
P.S. Resolution No. 281, introduced by Anna Dominique M.L. Coseteng, entitled,
RESOLUTION
URGING HIS EXCELLENCY PRESIDENT JOSEPH ESTRADA TO
REQUEST THE GOVERNMENT OF THE UNITED STATES OF AMERICA
TO CONDUCT A STUDY TO DETERMINE AND IDENTIFY THE ACTUAL
ENVIRONMENTAL DAMAGE AND CONTAMINATION RESULTING
FROM THE OCCUPATION OF THE UNITED STATES ARMED FORCES
OF SUBIC NAVAL BASE, CLARK AIR BASE, AND OTHER BASES,
CAMPS, AND INSTALLATIONS IN THE PHILIPPINES, AND FOR THE
GOVERNMENT OF THE UNITED STATES OF AMERICA TO
ACKNOWLEDGE THE RESPONSIBILITY THEREFOR BY CLEANING UP
OR PROVIDING THE PHILIPPINE GOVERNMENT WITH FUNDS,
SPECIAL KNOWLEDGE, AND EQUIPMENT TO CLEAN THESE SITES OF
ENVIRONMENTAL WASTES IN ORDER TO RESTORE THEM TO THEIR
ORIGINAL STATUS
P.S. Resolution No. 303, introduced by Senator Loren Legarda-Leviste, entitled,
RESOLUTION
URGING THE SENATE COMMITTEES ON HEALTH AND DEMOGRAPHY,
ON FOREIGN RELATIONS, AND ENVIRONMENT AND NATURAL
RESOURCES TO INQUIRE, IN AID OF LEGISLATION, INTO THE
HEALTH STATUS OF RESIDENTS OF COMMUNITIES WITHIN AND
ADJOINING THE FORMER U.S. BASES WHO HAVE BEEN EXPOSED TO
TOXIC CONTAMINATION FROM IMPROPERLY TREATED AND
DISPOSED TOXIC WASTE
P.S. Resolution No. 576, introduced by Senators Sergio Osmena III, Franklin Drilon,
Aquilino Pimentel, Loren Legarda-Leviste, Juan Flavier, Teofisto Guingona, Ramon
Revilla, Blas Ople, Robert Barbers, Rodolfo Biazon, Gregorio Honasan, Juan Ponce
Enrile, Robert Jaworski, Renato “Companero” Cayetano and Raul Roco, entitled,
RESOLUTION
URGING PRESIDENT JOSEPH E. ESTRADA TO FORMALLY CREATE A
PHILIPPINE TASK FORCE ON HAZARDOUS WASTE MANAGEMENT
P.S. Resolution No. 587, introduced by Senator Legarda-Leviste, entitled,
RESOLUTION
URGING PRESIDENT JOSEPH EJERCITO ESTRADA TO PURSUE,
THROUGH THE APPROPRIATE JUDICIAL VENUE, LEGAL CLAIMS FOR
CLEAN-UP OF TOXIC WASTES LEFT BY AMERICAN TROOPS IN THE
FORMER U.S. MILITARY BASES, CLARK AND SUBIC, FROM THE
GOVERNMENT OF THE UNITED STATES OF AMERICA
and P.S. Resolution No. 460, introduced by Senator Sergio-Osmena III, entitled,
RESOLUTION
DIRECTING THE SENATE COMMITTEES ON HEALTH AND
DEMOGRAPHY, AND ENVIRONMENT AND NATURAL RESOURCES TO
CONDUCT AN INQUIRY, IN AID OF LEGISLATION, INTO SEVERAL
REPORTS THAT TOXIC AND HAZARDOUS WASTES LEFT BEHIND BY
ELEMENTS OF THE U.S. ARMED FORCES IN THEIR FORMER
MILITARY BASES AT CLARK AND SUBIC HAVE CAUSED INJURY,
ILLNESS, DEFORMATION, AND OTHER DISEASES TO RESIDENTS OF
SAID BASES, AND INTO THE REQUIREMENTS FOR CLEAN-UP AND
RESTORATION THEREIN
have considered the same and have the honor to submit this report to the senate,
finding that
i. Based on the documents released by the U.S. Department of Defense, there is
substantial environmental contamination in the former Subic Bay Naval Base and
Clark Field Air Base;
ii. It is evident from the document released by the U.S. Department of Defense that
the United States Government has knowledge of the existence and location of
known and potential contaminated sites in the former Subic Bay Naval Base and
Clark Field Air Base;
iii. The hazardous activities, operations and improper waste management practices
engaged in the United States Government within the military bases under its
effective control involved appreciable or foreseeable risk of causing environmental
harm;
iv. The United States Government is presumed to know or had the means of
knowing that such hazardous activities, operations and improper waste management
practices were carried out by the U.S. forces within the military bases over which it
had effective control and unhampered access;
v. The environmental damage caused in Subic and Clark was substantial and had
serious adverse ecological, human health and economic implications for the
residents within the area and for the Philippines in general;
vi. The hazardous activities, operations and improper waste management practices
engaged in by the United States forces within the military bases caused the
environmental damage;
vii. The 1947 Military Bases Agreement, as amended, did not grant any license or
authority to the United States to commits acts of tort by indiscriminately disposing
of toxic and hazardous wastes as it pleases, destroy the environment and endanger
the lives of Filipino citizens in exchange for non-removable buildings and
structures;
viii. Inasmuch as the activities conducted within the military bases and under the
effective control of the U.S. caused substantial harm, the United States has the
corresponding duty to repair and compensate for such damage;
ix. Despite allegations to the effect that the matter of reparation and compensation
for toxic contamination is a purely moral question, there is sufficient basis to submit
to an international body the legal question concerning the interpretation of Article
VII of the 1988 Manglapuz-Schultz Memorandum of Agreement amending
Article XVIII of the 1947 Military Bases Agreement;
x. Despite allegations to the effect that the matter of reparation and compensation
for toxic contamination is a purely moral question, there is sufficient basis under
customary international law for a cause of action against the United states for failing
to ensure that the activities conducted by the U.S. forces within the former Subic
bay naval Base and Clark Field Air base were carried out in such a manner as not to
cause harm to the Philippines and its citizens.
and proposing the adoption of the following recommendations and their immediate
implementation:
By the Department of Foreign Affairs:
1. To negotiate with the United states Government, through diplomatic channels, on
the remediation of the areas affected with toxic waste contamination and to initiate
preventive and curative measures in order to suppress the rising number of the
victims of toxic waste contamination in Clark and Subic at the expense of the
former. It should be negotiated along the lines of, or pursuant to, Principle 13 of the
Rio Declaration on Environment and Development, of which the United States is a
signatory, which provides that “States shall develop national law regarding
liability and compensation for the victims of pollution and other environmental
damage. States shall also cooperate in an expeditious and more determined manner
to develop further international law regarding liability and compensation for
adverse effects of environmental damage caused by activities within their
jurisdiction or control to areas beyond their jurisdiction”;
2. To pursue through diplomatic channels, the creation of a Joint R.P.-U.S. Task
Force that will conduct a thorough examination of the extent of toxic waste
contamination in Clark and Subic, determine the ill effects thereof to the inhabitants,
and implement the much needed remediation over these areas at the expense of the
U.S. Government; and
3. In the event that the United States Government should refuse to effect a
remediation of the toxic wastes that the latter left in the former bases of Clark and
Subic, to recommend to the Chief Executive the filing of a suit, in behalf of the
Republic of the Philippines, against the United States of America before the
International Court of Justice pursuant to the principles of customary international law
for failing to ensure that the activities conducted by the U.S. forces within the former
Subic Naval Base and Clark Field Air Base were carried out in such a manner as not
to cause harm to the Philippines and its citizens, and for a judicious and authoritative
interpretation of Article VII of the 1988 Manglapus-Schultz Memorandum of
Agreement Amending Article XVIII of the 1947 Military Bases Agreement;
By the Department of Health:
1. To continue the efforts in protecting the people from the ill effects of toxic waste
contamination in Clark and Subic;
2. To continue strengthening the capability of its regional hospital, particularly the
Jose Lingad Memorial, in managing, diagnosing and treatment of patients with
illnesses that may be attributed to the toxic waste found in said areas;
3. To continue conducting a comprehensive health impact assessment and
epidemiological surveillance studies to validate and monitor the reported illnesses
among the residents in the vicinity;
4. To recommend to the Philippine Task Force on Hazardous Wastes, of which
DOH is a member, to close down the identified contaminated areas; and
5. To work closely with the Philippine Nuclear Atomic Research Institute to
determine the levels of radioactivity in the identified areas.
By the Department of Environment and Natural Resources:
1. To enforce thenceforth the provisions of Republic Act No. 6969 otherwise
known as the “Toxic Substances and Hazardous and Nuclear Wastes Control Act”
to forestall the repetition of similar subsequent toxic waste contamination
throughout the country;
2. To effect the treatment of wells in the affected areas through chlorination or other
scientific methods within or which may hereafter fall within the disposal of the
agency;
3. To continuously conduct analytic research and study on the toxic waste issue;
and
4. To study further the environmental impact assessment on the areas affected by the
toxic contamination.
The Senate Committee on Environment and Natural Resources, Health and
Demography, and Foreign Relations most respectfully recommend that the Chief
Executive
1. Declare a state of environmental calamity in the specific areas affected with toxic
waste contamination and direct the relocation of persons still residing within these
areas;
2. Submit to an international body, in behalf of the Republic of the Philippines, the
question concerning the interpretation of Article VII of the 1988 Manglapus-Schultz
Memorandum of Agreement amending Article XVIII of the 1947 Military Bases
Agreement in view of the differences in opinion by the United States and the
Philippines, and the refusal of the United States to admit liability; and
3. In the event that the United States should refuse to effect a remediation of the
toxic waste in the former Subic Bay Naval Base and Clark Field Air Base. to file a
suit, in behalf of the Republic of the Philippines, against the United States of
America before the International Court of Justice pursuant to the principles of
customary international law for failing to ensure that the activities conducted by the
U.S. Forces within the former military bases were carried out in such a manner as not
to cause harm to the Philippines and its citizens.
Respectfully submitted:
JUAN M. FLAVIER ROBERT S. JAWORSKI
Chairman Chairman
Committee on Health and Demography Committee on Environment and
Natural Resources
BLAS F. OPLE
Chairman
Committee on Foreign Relations
VICE CHAIRPERSONS:
GREGORIO B. HONASAN LOREN LEGARDA-LEVISTE
SERGIO OSMENA III RAMON B. REVILLA
RODOLFO G. BIAZON JUAN PONCE ENRILE
TERESA AQUINO-ORETA
MEMBERS:
RAUL S. ROCO RAMON B. MAGSAYSAY, JR.
VICENTE C. SOTTO III ANNA DOMINIQUE M.L.
COSETENG
AQUILINO PIMENTEL, JR. ROBERT Z. BARBERS
RENATO L. “COMPANERO” CAYETANO JOHN H. OSMENA
EX OFICIO MEMBERS:
BLAS F. OPLE FRANCISCO S. TATAD
President Pro Tempore Majority Leader
TEOFISTO GUINGONA, JR.
Minority Leader
FRANKLIN M. DRILON
Senate President
ELEVENTH CONGRESS OF THE)
REPUBLIC OF THE PHILIPPINES)
Second Regular Session )
S E N A T E
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COMMITTEE REPORT NO. 237
Submitted by the Committees on Environment and Natural resources, Health and
Demography, and Foreign Relations on ______________.
Re: P.S. Res. Nos. 158, 162, 172, 281, 303, 576 and 587 taking into consideration P.S.
Res. No. 460.
Recommending the adoption of the recommendations contained therein.
Sponsors: Senators Robert S. Jaworski, Juan M. Flavier, Miriam Defensor Santiago,
Loren Legarda Leviste, Anna Dominique M.L. Coseteng, Sergio Osmena III, and the
members of the Committees on Environment and Natural Resources, Health and
Demography, and Foreign Relations.
------------------------------------------------------------------------------------------
Mr. President:
The committees on Environment and Natural Resources, Health and Demography and
Foreign Relations to which ere referred P.S. Resolution No. 158 introduced by
Senator Juan M. Flavier, entitled,
RESOLUTION
DIRECTING THE SENATE COMMITTEES ON ENVIRONMENT AND
NATURAL RESOURCES AND ON HEALTH AND DEMOGRAPHY TO
INVESTIGATE, IN AID OF LEGISLATION, THE ALLEGED PRESENCE OF
TOXIC AND HAZARDOUS WASTES IN THE FORMER U.S. MILITARY
INSTALLATIONS OF SUBIC AND CLARK WITH THE END IN VIES OF
DETERMINING THE LEVEL OF THREAT IT POSES AND IN ORDER TO
INSTITUTE THE NECESSARY REMEDIAL MEASURES
P.S. Resolution No. 162, introduced by Senator Miriam Defensor Santiago, entitled,
RESOLUTION
DIRECTING AN INQUIRY, IN AID OF LEGISLATION, ON THE
REPORTED CONTAMINATION OF CLARK AND SUBIC WATERS WITH
TOXIC SUBSTANCES
P.S. Resolution No. 172, introduced by Senator Loren Legarda-Leviste, entitled,
RESOLUTION
DIRECTING THE SENATE COMMITTEES ON ENVIRONMENT AND
NATURAL RESOURCES AND FOREIGN RELATIONS TO INQUIRE, IN
AID OF LEGISLATION, INTO THE TOXIC CONTAMINATION WITHIN
THE FORMER U.S. BASES AND TO RECOMMEND THE CREATION OF A
MULTI-SECTORAL TASK FORCE COMPOSED OF REPRESENTATIVES
OF THE PHILIPPINE AND UNITED STATES GOVERNMENTS AND THE
SENATE COMMITTEES, CONCERNED NON-GOVERNMENTAL AND
PEOPLE’S ORGANIZATIONS AND TECHNICAL/ SCIENTIFIC EXPERTS
WHICH WILL COOPERATE IN THE PLANNING AND MONITORING OF
THE THOROUGH STUDY, CLEAN-UP AND RESTORATION OF
CONTAMINATED SITES IN SUBIC AND CLARK
P.S. Resolution No. 281, introduced by Anna Dominique M.L. Coseteng, entitled,
RESOLUTION
URGING HIS EXCELLENCY PRESIDENT JOSEPH ESTRADA TO
REQUEST THE GOVERNMENT OF THE UNITED STATES OF AMERICA
TO CONDUCT A STUDY TO DETERMINE AND IDENTIFY THE ACTUAL
ENVIRONMENTAL DAMAGE AND CONTAMINATION RESULTING
FROM THE OCCUPATION OF THE UNITED STATES ARMED FORCES
OF SUBIC NAVAL BASE, CLARK AIR BASE, AND OTHER BASES,
CAMPS, AND INSTALLATIONS IN THE PHILIPPINES, AND FOR THE
GOVERNMENT OF THE UNITED STATES OF AMERICA TO
ACKNOWLEDGE THE RESPONSIBILITY THEREFOR BY CLEANING UP
OR PROVIDING THE PHILIPPINE GOVERNMENT WITH FUNDS,
SPECIAL KNOWLEDGE, AND EQUIPMENT TO CLEAN THESE SITES OF
ENVIRONMENTAL WASTES IN ORDER TO RESTORE THEM TO THEIR
ORIGINAL STATUS
P.S. Resolution No. 303, introduced by Senator Loren Legarda-Leviste, entitled,
RESOLUTION
URGING THE SENATE COMMITTEES ON HEALTH AND DEMOGRAPHY,
ON FOREIGN RELATIONS, AND ENVIRONMENT AND NATURAL
RESOURCES TO INQUIRE, IN AID OF LEGISLATION, INTO THE
HEALTH STATUS OF RESIDENTS OF COMMUNITIES WITHIN AND
ADJOINING THE FORMER U.S. BASES WHO HAVE BEEN EXPOSED TO
TOXIC CONTAMINATION FROM IMPROPERLY TREATED AND
DISPOSED TOXIC WASTE
P.S. Resolution No. 576, introduced by Senators Sergio Osmena III, Franklin Drilon,
Aquilino Pimentel, Loren Legarda-Leviste, Juan Flavier, Teofisto Guingona, Ramon
Revilla, Blas Ople, Robert Barbers, Rodolfo Biazon, Gregorio Honasan, Juan Ponce
Enrile, Robert Jaworski, Renato “Companero” Cayetano and Raul Roco, entitled,
RESOLUTION
URGING PRESIDENT JOSEPH E. ESTRADA TO FORMALLY CREATE A
PHILIPPINE TASK FORCE ON HAZARDOUS WASTE MANAGEMENT
P.S. Resolution No. 587, introduced by Senator Legarda-Leviste, entitled,
RESOLUTION
URGING PRESIDENT JOSEPH EJERCITO ESTRADA TO PURSUE,
THROUGH THE APPROPRIATE JUDICIAL VENUE, LEGAL CLAIMS FOR
CLEAN-UP OF TOXIC WASTES LEFT BY AMERICAN TROOPS IN THE
FORMER U.S. MILITARY BASES, CLARK AND SUBIC, FROM THE
GOVERNMENT OF THE UNITED STATES OF AMERICA
and P.S. Resolution No. 460, introduced by Senator Sergio-Osmena III, entitled,
RESOLUTION
DIRECTING THE SENATE COMMITTEES ON HEALTH AND
DEMOGRAPHY, AND ENVIRONMENT AND NATURAL RESOURCES TO
CONDUCT AN INQUIRY, IN AID OF LEGISLATION, INTO SEVERAL
REPORTS THAT TOXIC AND HAZARDOUS WASTES LEFT BEHIND BY
ELEMENTS OF THE U.S. ARMED FORCES IN THEIR FORMER
MILITARY BASES AT CLARK AND SUBIC HAVE CAUSED INJURY,
ILLNESS, DEFORMATION, AND OTHER DISEASES TO RESIDENTS OF
SAID BASES, AND INTO THE REQUIREMENTS FOR CLEAN-UP AND
RESTORATION THEREIN
have considered the same and have the honor to submit this report to the senate,
proposing the adoption of the recommendations contained herein and their immediate
implementation.
I. STATEMENT OF FACTS
1. On March 14, 1947, the Agreement between the United States of America and the
Republic of the Philippines Concerning Military Bases was signed providing land
areas for the delimitation, establishment, maintenance and operation of U.S. military
bases in the Philippines. It designated bases to be retained by the U.S., including Clark
Field Air Base in Pampanga, Subic Bay, Northwest Shore Naval Base in Zambales
and Naval Reservations in Olongapo City.
2. Pursuant to the Agreement, Subic Bay Naval Base provided logistical, command,
communications and training support to the U.S. Navy as well as practice areas for
air-to-surface bombing, ship gunnery and shore fire control. The complex, among
others, handled millions of barrels of fuel and petroleum products, held tones of
ammunition and explosives and had ammunition storage space and a nuclear storage
site. Clark Field Air Base likewise stored petroleum, oil, lubricants and ammunition.
3. In may 1990, negotiations started for a new military base agreement. On August 27,
1991, the U.S. and the Philippines signed a new agreement, captioned “Treaty of
Friendship, Cooperation, and Security Between the Government of the Republic of the
Philippines and the Government of the United States of America”, that allowed the
U.S. to remain for another ten years. On September 16, 1991, this Chamber
overwhelmingly rejected the 1991 treaty, ending the U.S. leasehold over Clark Field
Air Base and Subic Naval base. Prodded by the eruption of Mt. Pinatubo in 1991, the
U.S. completed its withdrawal from Clark Field Air Base in November 1991 and
vacated Subic Bay Naval base by November 1992.
4. On January 22, 1992, the National Security and International Affairs Division of
the U.S. General Accounting Office submitted a report to U.S. Senator Daniel K.
Inouye and Senator Ted Stevens of the Subcommittee on Defense, U.S. Senate
Committee on Appropriations, and the U.S. Secretaries of Defense and State. Entitled,
Military Bases Closure: U.S. Financial Obligations in the Philippines, the report
claimed “no current liability for environmental damage” and stated,
“The services have identified contaminated sites, such as firefighting training
facilities and underground storage tanks. The cost of bringing all contaminated sites
into compliance with U.S. environmental standards could approach superfund
proportions, according to Air Force and Navy officials. However, under the current
agreement, the United States has no liability for this damage, DOD regulations
require the services to comply with the environmental restoration, and the services
have no plans for restoration. While the proposed new basing agreement contained
and expanded environmental provisions, the Philippine Senate‟s rejection of the
agreement made the issue of increased U.S. environmental liability a moot point.”
5. On May 9, 1993, after conducting interviews and a site assessment of Subic, the
World Health Organization (WHO) submitted its Mission Report on the Subic Bay
environmental risk assessment and investigation program, listing areas and operations
with considerable pollution potential, such as those which used and stored toxic
chemicals, fuels, pesticides, herbicides, polychlorinated biphenyl (PCB), chlorinated
solvents and explosives, produced hazardous wastes, as well as those which involved
heavy engineering operations and sandblasting. It reported that landfills on site were
used for all kinds of wastes, including hazardous waste materials; that industrial waste
waters, untreated sewage and polluted storm water drains were all discharged to Subic
bay, mostly without treatment; and that very large volumes of fuel and oil were stored,
transferred and used around the site. The Mission report recommended further
sampling and analysis programs of near-surface and deeper soils, groundwater and
sediments in waterways and Subic Bay, costing around U.S. $600,000.00.
6. In 1994, due to the danger of being swamped by lava and mudflow from Mt.
Pinatubo, a village consisting of 1,072 families had to evacuate to the former Clark
Air base Communications Center (CABCOM) at Clark Field Air base. While in
CABCOM, the residents complained of unusual taste, smell and color of the water
coming from several shallow artisian wells. An unusually high occurrence of skin
diseases, miscarriages, stillbirths, birth defects, cancers, heart ailments and leukemia
was later observed among the residents. A community leader, Mandy Rivera,
monitored the health condition of 500 families and recorded 144 persons sick with
illnesses caused or aggravated by polluted water from the artesian wells. Seventy-six
of those monitored have already died./1
7. In 1993, after finding no legal barrier to the release of information to the Philippine
Government, the U.S. Department of Defense released documents which included
“Potential Restoration Sites on Board the U.S. Facility, Subic Bay”‟ (October 1992)
by the U.S. Navy, “Underground Storage Tank Inventory: Subic Bay, Philippines”
and “Environmental review of the Drawdown Activities at Clark Air Base, Republic of
the Philippines”, by Col. John J. Allen (September 1991). The U.S. Embassy released
additional information on the former bases in April 1994.
8. On August 13, 1994, a team composed of Paul Bloom, Ph.D., Alex Carlos, M.S.,
Jorge Emmanuel, Ph.D., and Theodore Schettler, M.D. released a report entitled, “An
Environmental and Health Impact Report on Known and Potentially Contaminated
Sites at Former U.S. Military Bases in the Philippines” based on incomplete U.S.
Department of Defense documentation provided by the U.S. State Department and the
team‟s site visits. The paper showed that based on incomplete U.S. Defense
Department reports, the former bases contain sites known to be contaminated by toxic
wastes that pose risk to human health, and recommended actions to be taken to initiate
a complete assessment of the toxic contamination and the clean-up process.
9. The Department of health released in 1995 the results of 32 well samples taken
inside and adjacent to Clark, five of which tested positive for oil and grease.
10. In 1996, A Canadian epidemiologist, Dr. Rosalie Bertell, conducted a health
survey of 761 families in 13 communities around Clark Field Air Force Base. In her
letter to President Fidel Ramos dated October 9, 1997, Dr. Bertell noted the
“startlingly high” level of kidney diseases and kidney problems reported in the area
which is “apparently connected with both water and air exposures.”
11. In November 1996, the Subic bay metropolitan Authority released the result of
Woodward-Clyde Environmental Baseline survey and Environmental Quality Survey
of Subic. The report stated, “the only areas where restrictions on development and
land use are recommended are the Subic Landfill, OSIR Basin Landfill, and the main
explosives Ordnance Disposal area at Camayan Point. Restrictions are recommended
at the landfills due to the evidence of hazardous wastes including asbestos in the Subic
landfill, and metal and fuel contaminated soils in the OSIR Basin Landfill.” With
regard to the level of concentration of certain hazardous wastes in the soils and
groundwater, the study stated that “(b)ased on the result of this preliminary survey,
the level of contamination detected in most of the sites investigated does not pose a
significant risk to human health and the environment if the land use of these areas
remain the same.”
On human health risks, the study stated that “(b)ased on the screening level risk
assessment, the concentrations of chemicals found in soils at 44 sites investigated in
the current study pose a negligible risk to health of the current non-residential
occupiers/users of the sites due to an identifiable exposure pathway, and the non-
residential land use of the area. There is also no evidence of potentially unacceptable
health risk to people living off-site. Any contaminant in the groundwater of SBF will
not migrate to Olongapo City since the groundwater flows towards Subic bay.”
The study indicated a list of seven specific contamination sites, remediation of which
is estimated to cost P175 to 250 million.
12. In September 1997, the Clark development Corporation released a summary of
Weston International Environmental baseline Study and Soil and Water Baseline
Study at Clark. The environmental baseline study identified eight sites with
contamination ranging from oil and petroleum lubricants, pesticides, PCB and lead.
“These are contaminants found elsewhere in places where you have aviation and
motorpool areas. Some water production wells registered levels of arsenic and dieldrin
above Philippine National Standards (PNS) but the quality of water being taken from
the taps pass the required national standards. The contaminated sites have been
covered with topsoil and have been restricted if they are not isolated areas. The
contaminated wells have been shut down and secured.”
13. In a letter dated November 20,997, The Department of Foreign Affairs (DFA)
Secretary Domingo Siazon proposed to U.S. State Secretary Madeleine Albright the
establishment of a joint Philippine-U.S. Task Force that will assess the degree of toxic
and hazardous waste contamination. Citing reports on surveys conducted by
international environmental contractors disclosing the existence of areas of
contamination in Subic Bay and Clark, he requested for assistance in the technical
evaluation of the baseline surveys conducted by Woodward-Clyde and Weston
International./2 Secretary Albight‟s April 8, 1998 reply to Secretary Siazon‟s letter
markedly failed to respond to the issue of toxic waste contamination or the proposal to
form a joint Philippine-U.S. Task Force. Secretary Siazon met U.S. Secretary Albight
during the visit of President Ramos to the U.S. in April 1998 and again raised the
issue of toxic hazardous waste.
14. On May 8, 1998, President Fidel V. Ramos created the Philippine Task Force on
toxic waste composed of representatives from the Department of Environment and
Natural Resources (DENR), Department of Health (DOH), Department of Science and
Technology (DOST), Philippine Nuclear Research Institute (PNRI), Clark
Development Authority (CDA) and Subic Bay Metropolitan Authority (SBMA).
15. On August 31, 1998, noting that toxic and hazardous wastes from the U.S.
military have been found “in significant quantity” in Subic Bay, Olongapo and Clark
Field, Pampanga, DENR Secretary Antonio Cerilles formally requested Foreign
Affairs Secretary Siazon to convey to the U.S. a “request for assistance for the
cleaning up and remediation of confirmed contaminated sites” in the former military
bases.
16. On April 13, 1999, toxic waste victims filed a complaint with the Commission on
Human Rights (CHR). After conducting an onsite investigation, the CHR Forensics
Officer reported that the residents medically examined manifested signs and
symptoms consistent with chemical exposure. Of those examined, 13 children aged
one to seven years old showed signs of birth defects and neurological disorder; four
females suffered spontaneous abortion and stillbirth, which can be attributed to
mercury exposure; and residents showed signs of central nervous system disorders,
kidney disorder and cyanosis (methemoglobin) which can be traced to nitrates
exposure. The laboratory analysis of water samples collected by the CHR team from
different deep wells sites at Clark Air Force Base Command revealed the presence of
mercury and nitrates.
17. On February 3, 1999, then the Chair of the Senate Environment Committee
Senator Loren Legarda-Leviste brought the issue of toxic contamination in the former
bases to the attention of U.S. Senator John Chafee, Chair of the U.S. Senate
Environment and Public Works Committee. Replying to Senator Legarda-Leviste in a
letter dated June 24, 1999, U.S. Deputy Undersecretary of Defense Sherry Goodman
stated hat the U.S. Government has no legal obligation to clean up the toxic waste in
the former U.S. bases in the Philippine. Undersecretary Goodman maintained that the
1947 Military bases Agreement, as amended, did not require the United States to
conduct any environmental restoration upon its termination and that the Philippine
government expressly agreed to waive any right to demand cleanup in return for the
United States‟ agreement not to seek compensation for improvements.
18. The Senate Joint Committees on Environment and Natural Resources, Health and
Demography, and Foreign relations conducted three committee hearings on Proposed
Senate Resolution Nos. 158, 162, 172, 281, 303, and 460 on July 21, July 30 and
September 15, 1999, and an executive session on October 14, 1999 for the purpose of
assessing the impact of toxic waste presence in Subic and Clark. Other concerns were
raised, such as the extent of contamination, the imminent danger to life, health and
well being of the residents therein, and the question of whether the U.S. is obliged to
clean up the former military bases.
19. On January 18, 200, President Joseph Estrada issued Executive Order No. 202
creating the Philippine Task Force on Hazardous Wastes in the former U.S. Military
Installations under the joint supervision of the Department of Foreign Affairs and
Environment and Natural Resources. Funded from the President‟s Contingent Fund in
the amount of P50,000,000.00, the Philippine Task Force (PTF) is tasked to perform
the following functions, to wit:
“1. Formulate plans of action in addressing the issue of hazardous wastes in the
former U.S. military installations.
“2. Ensure that studies are undertaken to assess the extent of hazardous waste
contamination and its effects on the environment and human health.
“3. Initiate and coordinate clean-up and environmental restoration efforts of
contaminated sites identified and assessed by Subic and Clark studies.
“4. Undertake immediate actions to address the identified environmental and health
concerns in Subic, Clark and other former military bases.
“5. Ensure long-term capacity building programs of technical transfer which focus
on contamination identification, contamination assessment, contamination clean up
and laboratory analysis at the former U.S. military installations.
“6. Secure the firm cooperation of U.S. agencies. the private sector and other entities
in harnessing and making available technical, administrative and financial resources
for effective implementation of the plans of action, programs, projects of the
PTF.
“7. Assist in the formulation and implementation of applicable government policies,
laws, rules and regulations in connection with the clean up of hazardous wastes in
former U.S. military installations.
“8. Coordinate the conduct of public information, education, communication
campaign on hazards and risks, if any, involved in the reuse of former U.S. military
installations in the Philippines and the need for contamination assessment and clean
up.
“9. Pursue other related functions which may be deemed necessary by the
President.”
II. ISSUES
The following are the factual and legal issues to be resolved by the Committees:
A. Whether or not the Philippines sustained environmental harm.
B. In case of any affirmative finding, what activities or operations within the military
bases caused the environmental harm? Which of the two States had effective control
of the activities or operations within the military bases that caused the environmental
harm?
C. In the event of a finding that the activities or operations of the United States within
the military bases caused the environmental harm:
(a) Can the U.S. be held liable under the 1947 Military Bases Agreement, as
amended?
(b) Can the U.S. be held liable under customary international law?
III. FINDINGS
A. WHETHER THE PHILIPPINES SUSTAINED SUBSTANTIAL
ENVIRONMENTAL HARM
i. U.S. General Accounting Office Report
That the Philippines sustained environmental harm cannot be denied by the U.S.
Government. While rejecting U.S. liability, a governmental agency of the U.S., the
General Accounting Office, reported that the Air Force and Navy officials had
identified significant environmental damage of Superfund/3 proportions at Subic and
Clark. The U.S. General Accounting Office report states:
“CONTAMINATED SITES HAVE BEEN IDENTIFIED AT BOTH BASES
“Although the services are not generally required to comply with U.S. standards at
overseas locations, some service regulations indicate that they are intended to apply
overseas. Environmental officers at both Clark and Subic Bay Naval Facility have
identified contaminated sites that would not be in compliance with U.S.
environmental standards. Their identification of contamination is based on
limited environmental surveys of Clark Air Base and Subic Bay Naval Facility.
No soil and water testing has been conducted in the contaminated areas; therefore, the extent of the damage is not known. According to one Air Force
official, testing alone would be very costly, and the cost of clean up and restoration
would be significantly greater. According to base officials, both Clark and Subic
Bay Naval Facility have common environmental problems with underground
storage tanks and fire-fighting training facilities that do not comply with U.S. standards. For example, the underground storage tanks lack leak detection
equipment, and fire-fighting facilities have no drainage systems. Instead, the
fuel and chemicals used in fire-fighting exercises seep directly into the soil and water table, and at the Navy facility, the overflow goes directly into Subic Bay.
“Navy environmental officials have identified the following sites at the Subic Naval
Base Facility that, in their opinion, represent significant environmental damage:
“The Subic Naval Base Facility does not have a complete sanitary sewer system
and treatment facility. Instead, sewage and waste waters from the naval base
and air station industrial complexes are discharged directly into Subic Bay.
Only 25 percent of the 5 million gallons of sewage generated daily is treated.
“Lead and other heavy metals from the ship repair facility’s sandblasting site
drain directly into the bay or are buried in the landfill. Neither procedure
complies with U.S. standards, which require that lead and heavy metals be
handled and disposed of as hazardous waste.
“The Subic Bay Navy Facility’s power plant contains unknown amounts of
polychorinated biphenyl (PCB) and emits untreated pollutants directly into the
air. No testing has been performed to analyze the content of emissions, but
officials stated that air emissions would not meet U.S. clean air standards.
“At the time of our review, the Air Force and Navy had no plans to clean up these
sites. However, the Navy plans to build a sewage treatment plant.” (Emphasis
supplied.)
The committee note that the information disclosed by the U.S. General Accounting
Report on contaminated sites was confirmed by separate reports, such as (a) the U.S.
Navy‟s “Potential Restoration Sites on Board the U.S. Facility, Subic Bay,” dated
October 1992, which identified 28 potentially contaminated sites in Subic and 28
potentially contaminated training areas and ranges utilized by naval forces; (b) the
“Subic Bay Environmental Risk Assessment and Investigation” conducted by the
WHO on Subic; (c) the “Environmental and Health Impact Report on Known and
Potentially Contaminated Sites at Former U.S. Military Bases in the Philippines” by a
team composed of Paul Bloom, Ph.D., Alex Carlos, M.S., Jorge Emmanuel, Ph.D.,
and Theodore Schettler, M.D.; and (d) the “Environmental Baseline Study/Soil and
Water Baseline Study” on Clark by Weston International. Even the Woodward-Clyde
International‟s “Environmental Baseline Study/Environmental Quality Study” on
Subic, whose conclusions was questioned by other experts, recommended remediation
in seven specific contaminated sites and further investigation and possible
investigation in 13 areas.
In 1993, the U.S. released Department of Defense documents to the Philippine
government identifying potential restoration sites at both sides. Basing its assessment
on the review of these documents, the Environmental and Health Impact Report on
Known and Potentially Contaminated Sites at Former U.S. Military Bases in the
Philippines written by a team composed of Paul Bloom, Jorge Emmanuel, et al.,
identified the known contaminated sites in Clark to include the Mechanical Room
Building 7509; Supply Storage Yard adjacent to the Defense Reutilization and
Marketing Office (DRMO); Clark Subic pipeline; Philrock Products Compound
Building 18; Asbestos landfill. The known contaminated sites in Subic included the
following: Public Works Center (Sanitary landfill; Power Plant Building 1800; Fleet
Mooring/Sandblasting Yard); U.S. Naval Station (Old dumpsite; Underground
Storage Tanks (UST) Structure 1459 Navy Exchange Taxi Compound); Ship Repair
Facility (Sandblasting facility and causeway; Foundry Shop Building 30); Naval
Supply Depot (Tank Farm UST Structure 1758); Naval Magazine (Wood Preservation
and Treatment Facility Building 2259); Cubi Point Naval Air Station (Fuel Farm;
Firefighting Training/Crash Crew Training Area Tank Structure 8061; Washtrack
Holding Tanks Structure Nos. 8415 and 8416; Cubi Power Plant); Other areas
(DRMO yard); 12 other potentially contaminated on-site areas and five off-site areas.
The Environmental and Health Impact Report’s review of U.S. Department of
Defense documents is extensively quoted hereunder.
ii. The Environmental and Health Impact Report: A Review of U.S. Department
of Defense Documents
Based on an analysis of the operations performed at Subic, including reports of spills
or improper practices during the last 15 years, the U.S. Navy identified sites believed
to be potentially contaminated with hazardous waste. Sites were classified into known
contaminated sites and potentially contaminated sites. Known contaminated sites are
those (a) a history of spills, dumping, or burying of toxic materials has been
documented or reported; (b) remedial actions were admittedly inadequate or never
conducted; and (c) the nature of the hazardous substances site conditions, and any
visual observations indicate an existing toxic contamination problem. Potentially
contaminated sites are those that have a history of improper toxic waste management
practices, high chemical use and storage, generation of large quantities of hazardous
waste, or reported violations or non-conformance to hazardous materials management
standards./4
SUBIC BAY
KNOWN CONTAMINATED SITES/5
A. PUBLIC WORKS CENTER
1. SANITARY LANDFILL
Source: Dumping of asbestos in the following areas:
Area A- “considerable amounts” of double-bagged asbestos since 1982
Area B- four bags of asbestos
Area C- unknown amounts of asbestos dumped in 1988
Area E- unknown amounts of asbestos dumped in 1979
Dumping of creosote-contaminated posts in Area D in 1983
Dumping of sandblasting grit and paint chips since 1983
Dumping of industrial wastes including electroplating wastes
Contaminants: Asbestos, creosote; possibly organotins and other toxic metals from
anti-fowling agents and paints; heavy metals from electroplating and other industrial
operations; possibly oils, solvents, acids and bases from industrial wastes.
Clean-up Action: None
Notes: Asbestos fragments into microscopic mineral fibers which, when inhaled, are
known to be a cause of fatal lung cancer and mesothelioma as well as asbestosis and
pleural disease. Of these illnesses, mesothelioma may result from small exposures,
after a latency of 20-30 years. Ingestion of asbestos may also cause gastrointestinal
cancer. Any digging or accidental disturbances of the soil resulting in the release of
the asbestos fibers pose a health risk to workers and other populations downwind of
the landfill. The aerodynamics properties of the asbestos fibers result in the
suspension, deposition, resuspension and transport of the toxic fibers to great
distances.
Creosote is heavy, flammable oily mixture consisting primarily of phenols and
cresols, as well as cresols and other aromatic compounds including polynuclear
aromatic hydrocarbons (PAHs). The complex phenols in creosote are insoluble or
only slightly soluble in water. Cresols and creosols are slightly soluble, while phenol
itself is soluble and highly mobile. One of two creeks cuts across the landfill, passing
area D, a probable human carcinogen, causing both cancer and mutations in laboratory
animals. It is also listed as a hazardous air pollutant.
Organotins are highly toxic to marine ecosystems, lethal at very low concentrations to
certain fish and shellfish species. In water, they hydrolyze into inorganic tin which is
much less toxic. Some organotins cause injury to the peripheral nervous system and to
brain in humans. Some also cause alternations in the immune system.
There are hundreds of solvents used in military bases and industrial operations. The
most common organic solvents include halogenated hydrocarbons such as methylene
chloride, 1,1,1,-trichoroethane, trichloroethylene and perchloroethylene; ketones such
as methyl ethyl ketone and methyl isobutyl ketone, aromatics such as toluene,
alipathic hydrocarbons such as hexane, alcohols such as methanol and isopropanol
and glycol ethers. Many of these solvents are volatile. Some , such as the chlorinated
solvents, are resistant to degradation in soil and water and can contaminate
groundwater; others such as trichloroethylene, decompose in soil to form toxic
chemicals. Human exposure pathways, therefore, include both inhalation and
ingestion as well as skin absorption from direct contact. Health effects due to chronic
exposure to solvents vary considerably depending on the solvent. Some solvents are
irritants, others can damage the skin, liver, blood, central nervous system, lungs
and/or kidneys. Commonly used chlorinated solvents, such as benzene,
trichloroethylene, perchloroethylene, and methylene chloride, are known to cause or
are suspected of causing cancer. Some solvents such as glycol ethers, have been found
to cause birth defects in animals and infertility in men. Others are suspected of
causing birth defects in humans. Some, at low exposure levels, cause subtle
impairment of reaction time, psychomotor performance, and cognitive abilities. In
certain cases, the exposure to more than one solvent can increase toxic effects due to a
synergistic reaction; an example is exposure to both methyl ethyl and carbon
tetrachloride.
2. Subic Power Plant (Building 1800)
Sources: Reported spills due to overflows of fuel tanks and oil-water separators;
reported spills during fuel transfer operations, use of PCB-contaminated equipment
and temporary storage of PCBs, used oils and solvents; photographic evidence of oil
and solvent spills.
Contaminants: Petroleum hydrocarbons, solvents, and possibly PCBs.
Clean-up Actions: Most, but not all, of spills were reportedly cleaned-up; no
documentation of the results of the clean-up activities
3. Fleet Mooring/Sandblasting Yard
Sources: Over 20 years of sandblasting operations; sandblasting wastes used to
backfill a section of the site
Contaminants: Heavy metals and chromates from sandblasting waste, solvents
Clean-up Action: None
Notes: Contaminants may have leached out into the nearby bay. Chromium in the
form of chromates could be toxic to plants. Of the different states of chromium VI or
hexavalent chromium is of greatest concern. Chromium VI is mobile in non-flooded
soils and is toxic to aquatic life. However, it is readily transformed into the less toxic
and less mobile chromium III in flooded soils and bottom sediments. Acute exposures
to chromium VI may cause kidney disorders. Chromic, low-dose exposures cause
dermatitis, damage to the respiratory tract, and lung cancer. It has been shown to
damage genetic material and reproductive problems in laboratory animals.
B. U.S. Naval Base
1. Old Dumpsite
Sources: Dumping of industrial wastes, cans of paint and oils since the 1950s; areas
where no plants and weeds can grow (an indicator of possible toxic contamination);
photographic evidence on non-biodegradable items (plastics and tires) coming out of
the ground.
Contaminants: Heavy metals such as lead and chromates, petroleum hydrocarbons
and possibly solvents.
Clean-up Actions: None
Notes: The old dumpsite is immedistely adjacent to the OSIR basin. Groundwater is
most probably very shallow and any toxic substances could be leaching out into the
basin.
Although lead is slightly soluble in water, it is not very mobile especially at pH values
near neutral and only somewhat mobile (still much less so than cadmium) in very
acidic soils. However, lead contaminated soil particles may be carried into the basin
through erosion and other processes. In general, exposures to lead may occur through
ingestion of contaminated water, food, or soil, or by inhalation of lead particles or
contaminated dusts. Lead accumulates in bone so that blood lead levels are a poor
indicator of total body burden of the metal. In adults, moderate elevations of lead
levels cause disorders of the nervous system (neuropathies), blood cells (anemia),
kidneys (tubular damage), and reproductive system (infertility in men). Lead readily
crosses the placenta, and low lead levels in pregnant women cause developmental
effects in the fetus including impaired nervous system development, hearing and
growth. Infants and children with only slight elevations in lead levels demonstrate IQ
deficiencies. Overt mental retardation occurs at higher levels.
2. Underground Storage Tanks (UST) Structure No. 1459, Navy
Exchange Taxi Compound
Sources: Several reported spills of diesel fuel; underground storage tank suspected of
leaking after the earthquakes in 1991; as of August and October 1992, area around the
tank was still saturated with fuel
Contaminants: Petroleum hydrocarbons and possible solvents and metals
Clean-up Actions: None
Notes: There are apparently two 5,000-gallon underground storage tanks (USTs)
installed 20 years ago at the site.
C. Ship Repair Facility
The ship repair facility as a whole is an area of concern. The team of scientists was
informed during a site visit that chlorinated solvents and non-chlorinated solvent such
as toluene were used in many operations and dumped into the bay for many years
until the 1980s. Generally heavier than seawater, chlorinated solvents would be a
particular concern in the bay sediments. Bottom sediments are expected to be heavily
contaminated with lead, tin and other metals. The following are specific sites
mentioned in the U.S. Department of Defense reports:
Sandblasting Facility and Causeway
Sources: Extensive sandblasting or organotin paints since the 1960s; disposal of
organotin-contaminated wastewater into Subic Bay without treatment since 1986; area
still saturated with organotin-contaminated waste; photographic evidence of blasting
grit around the causeway area
Contaminants: Tributyl tin (TBT) oxide and other organotins; possibly lead, barium,
chromates and other paint-based contaminants; also fuel and solvents
Clean-up Actions: Project to treat organotin-contaminated wastewater was never
implemented
Notes: The team of scientists was told that chlorinated solvents (in particular, carbon
tetrachloride and possibly trichloroethylene) were dumped into Subic Bay.
Chlorinated solvents are more resistant to biodegradation than non-chlorinated
hydrocarbons. They may form dense non-aqueous phase liquids in the groundwater or
accumulate in the sediments in surface water. Carbon tetrachloride can percolate
through the soil, contaminate groundwater and surface water or contaminate air where
it takes 50 years to break down. Chronic exposures through inhalation or ingestion can
affect the liver, kidneys and nervous system; it is a possible human carcinogen.
Trichloroethylene, like carbon tetrachloride, can also contaminate the groundwater
and bay, can affect the liver and nervous system, and has been found to cause liver
and lung cancers as well as reproductive effects in animals. Tricholoethylene in the
soil and groundwater can take years to degrade, forming vinyl chloride (a known
human carcinogen) and vinylidene chloride (a suspected carcinogen) as by products.
2. Foundry Shop, Building 30
Sources: Explosion of PCB capacitor containing 385,000 ppm PCBs; other PCB
spills reported; tests in 1989 confirmed PCB contamination on all electrical control
panels of the furnaces; photographic evidence of spills on the wooden flooring and
panels; foundry shop was used for melting metals.
Contaminants: PCBs; possibly metals such as lead cadmium, etc.
Clean-up Actions: Not reported
Notes: PCBs (Polychlorinated biphenyls) are a class of compounds that are known to
be highly sorbed in soil and insoluble water. Since PCBs are generally resistant to
degradation, they are very persistent in the environment. Moreover, PCBs are
bioconcentrated from soils or sediments by organisms and move up the food chain,
thereby posing a health hazard. PCBs interfere with reproduction in wildlife and
experimental animals. Children born to women who consume fish with elevated PCB
content before and during pregnancy show decreased birth weight, reduced head
circumference, and tend to deliver prematurely. Even at four years of age, children
show deficiencies in weight gain and decreased performance in some intellectual
testing. PCBs have estrogenic activity, suppress the immune system in animal and
humans, and induce liver enzymes. Chronic exposures causes skin disorders. PCBs
promote tumors in experimental animals and may be carcinogenic in humans. Because
PCBs are fat soluble, maternal milk represents a continual exposure pathway for
nursing infants during critically important periods of development.
Because of foundry operations, contaminations with toxic metals such as lead, and
cadmium may also be possible. Cadmium metal tends to adhere to ash, dust, and soil
particles and can be released into the atmosphere. Cadmium is relatively mobile. Dust
particles containing cadmium can also
be washed into storm drains and eventually reach the bay where it is sorbed in
sediments from which it can enter the aquatic food chain. Cadmium can also be
sorbed in clay particles in the soil where it can be accumulated by vegetation.
Cadmium, when inhaled at high concentrations, has been associated with lung cancer,
while at lower concentrations, chronic exposures may result in lung diseases.
Moreover chronic exposures may also result in kidney and liver disorders, heart
disease anemia, brittle bone and immunological effects.
In addition, other toxic metals include nickel, arsenic, mercury, chromium, serelium,
beryllium, etc. Toxic effects due to long term exposures to toxic metals at low
concentrations vary. Lead, methyl mercury, organotin, and arsenic affect the nervous
system. Various metals such as chromium, selenium, cadmium, nickel, and arsenic,
damage the liver, kidney and skin. Lead, cadmium, chromium, selenium, nickel and
arsenic have been found to produce mutations in human and other cells in laboratory
tests. Arsenic, beryllium, cadmium. chromium, and nickel dust are known to cause
cancer.
D. Naval Supply Depot
1. Tank Farm, area around UST Structure No. 1785
Sources: 67,000 gallons of fuels spilled after Mt. Pinatubo eruption, of which only
1,800 gallons were recovered; fuel was seen coming out of the base of the tank; as of
August and September 1992, fuel was still coming out of the tank.
Contaminants: Petroleum hydrocarbon components of the fuel
Clean-up Actions: A trench was dug at the base of the tank from which fuel was
collected; no corrective actions were taken.
E. Naval Magazine
1. Wood Preservation and Treatment Facility, Building 2259
Sources: Toxic sludges from the pentachlorophenol (PCP) dip tank were dumped into
the ground from the 1960s until around 1984; approximately 55 gallons of toxic
sludge were dumped annually.
Contaminants: Pentachlorophenol
Clean-up Actions: None
Notes: Pentachlorophenol or PCP is somewhat resistant to degradation and relatively
insoluble in water. Chronic exposure to pentachlorophenol can lead to liver and
kidney damage. It is a skin irritant and, at high concentrations, can also affect the
lungs, blood, central nervous system, and gastrointestinal system. Pentachlorophenol
can be lethal by inhalation at high doses. Many commercial pentachlorophenol
products have been found to be contaminated with dibenzodioxins and dibenzofurans
which are also highly toxic and persistent in the environment. They are likely to be
found wherever pentachlorophenol has been discarded. These compounds are known
to cause reproductive and developmental abnormalities, altered immune system, and
may be human carcinogens.
F. Cubi Point Naval Air Station
1. Fuel Farm Area
Sources: Several reported spill incidents; fresh fuel oozed out of an excavation pit
where more than 4,000 gallons were recovered; fuel still found at another excavation
pit 100 feet away; as of October 1992, fuel was still being pumped out of the pit
Contaminants: AVGAS and JP5, according to laboratory analysis
Clean-up Actions: Area was monitored but no corrective action taken
Notes: Aviation gasoline (AVGAS) and jet fuels (such as the U.S. Navy‟s JP5) are
light petroleum distillates. AVGAS is a blend of refined hydrocarbons derived from
crude petroleum and natural gasoline, and synthetic hydrocarbons. JP5 is kerosene
used for jet fuel; its components are mainly paraffins and napthenes in the C10 to C14
range, with aromatics comprising up to 15 % of the fuel. Gasoline also contains a
number of additives, including lead or substitute anti-knock compounds, anti-
oxidants, metal deactivators, corrosion inhibitors, lubricants, and dyes. One additive
found commonly at contaminated sites is ethylene dibromide, a known spermatotoxin
and carcinogen.
Most petroleum contain varying amounts of aromatics, in particular, the BTEX
compounds (benzene, toluene, ethyl benzene, and xylenes). Toluene, ethyl benzene
and xylenes share many of the same physical characteristics as benzene. Chronic
exposure to these aromatics compounds could result in liver and kidney damage, and
could affect fetal development in the case of pregnant women. The most toxic of the
four is benzene which, when released from leaking underground storage tanks,
percolate through the soil into the groundwater where it forms a light aqueus phase
liquid. While it can be broken down by microorganisms in soil and aquatic sediments,
benzene is a significant contaminant in groundwater where it is not easily degraded.
Chronic exposure to benzene can result in aplastic anemia, bone marrow changes and
other effects on the blood, and it has also been linked to chromosomal aberrations,
Benzene, classified as a known carcinogen, causes leukemia.
2. Firefighting Training Area/Crash Crew Training Tank Structure No. 8061
Sources: Weekend and bi-weekly training during which accumulated firefighting
chemicals were drained into a creek and into the bay; cracks discovered in August
1992 allowed oils and firefighting chemicals to seep through the pavement and into
the ground; some oils used for burning were possibly contaminated with PCBs, no
vegetation grows within a 50-foot radius
Contaminants: Solvents and oils, AFFF, heavy metals, possibly PCBs
Clean-up Actions: Mock airplane removed; no corrective action taken
Notes: Aqueous film forming foam or AFFF, used for aircraft crash fire control, is a
low viscosity synthetic fluorochemical that forms air foams and a water solution film
on surface of flammable liquids. AFFF is a derivative of alkyl perfluoro-sulfonamide
and may also contain a high molecular weight polymer to retard breakdown of its
surface properties.
3. Washrack Holding Tanks, Structure No. 8415 and 8416
Sources: Oil-water separator drains into creek and bay, holding tanks were found to
contain toxic sludge in 1987; the waste sludge corroded the seals of a pump during
attempts to pump waste out in 1989; inspectors had cited this operation three times for
improper segregation and disposal of waste.
Contaminants: Sludge analysis showed aromatic hydrocarbons, methylene chloride,
sodium chromate, phenols, 2-butoxyethanol, butyl ether, hexylene glycol and
Stoddard solvent (a grade of petroleum distillates).
Clean-up Actions: Separator was apparently cleaned up in 1992 with the removal of
accumulated sludge, but no other corrective action taken
4. Cubi Power Plant
Sources: Reported spills and temporary storage of PCBs, used oils and 0solvents
Contaminants: Petroleum hydrocarbons, solvents and possibly PCBs
Clean-up Actions: Most, but not all, of spills were reportedly cleaned-up; no
documentation of the results of the clean-up activities
G. Other Areas
1. Defense reutilization and Marketing Office (DRMO) Yard
Sources: Reported spill incidents; hazardous waste was stored in an open yard
exposed to the elements causing deterioration of hazardous waste containers; storage
facility was cited for not conforming to standards
Contaminants: PCBs, acids, oil, solvents
Clean-up Actions: None
Notes: Cement slab remains where the DRMO building used to stand before it was
destroyed by Mt. Pinatubo ashfall. DRMO Yard is a flood plain and runoff drains
directly into adjacent bay. During a site visit, groundwater was measured
(approximately 3 feet below ground surface) in open boreholes in the yard. It is
probable that spill incidents especially in unpaved areas may have impacted the sandy
soils and the shallow groundwater.
CLARK AIR BASE
KNOWN CONTAMINATED SITES/6
1. Mechanical Room, Building 7509
Sources: Transformer in this building was involved in a fire that caused PCB
contamination of the transformer, walls, and ceilings in the transformer room.
Significant concentrations of PCB (338,001 ug/100cm2) were detected in wipe
samples.
Contaminants: PCB
2. Supply Storage Yard Adjacent to the DRMO
Sources: Leaking 55-gallon drums containing solvents, acids, surfactants, and
possibly paint wastes were observed two years ago in this area and many of the
containers were corroding.
Contaminants: Petroleum Hydrocarbons
3. Clark-Subic POL (Petroleum, oil and lubricants) pipeline
Sources: Spill incidents have been reported along the Clark-Subic POL pipeline by
the Pasig and Abacan River crossings
Contaminants: Petroleum hydrocarbons
Clean-up Action: None documented
4. Phil Rock Products Compound, Building 18
Sources: 110 gallons of hydrotor 400 oil (Petron) used as fuel spilled on October 13,
1990.
Contaminants: Petroleum hydrocarbons
Clean-up Actions: Contaminated soils were excavated and let dry under the sun. Soil
samples were taken but no results were included in the report. Information on the final
disposition of contaminated soils was not provided.
5. Asbestos Landfill
Sources:
project of the base hospital, the landfill was located in the of an antenna ray. The area
was divided into 50 square foot plots with concrete monuments placed at the corners
of each plot. Records regarding the location and amount of asbestos buried exist.
Contamination: Asbestos
Clean-up Action: None
Notwithstanding an assertion that the U.S. removed all containers of hazardous wastes
and materials in the former military bases/7, the Committee concur with the authors of
the Environmental and Health Impact Report that there is substantial environmental
contamination at both Clark and Subic. It is evident from a review of the documents
released by the U.S. Department of Defense that (1) the U.S. Government had
knowledge of the existence and location of known and potential contaminated
sites; and (2) despite such knowledge no comprehensive cleanup of the
contaminated sites was done by the U.S. Government.
The Committee agree with the authors of the report that the “contamination has
significant and urgent adverse ecological, human health, and economic implications
for the surrounding communities and x x x for the Philippines generally.” In the
absence of a thorough cleanup of the contaminated sites, it cannot be seriously refuted
that the Philippines sustained and continues to sustain substantial environmental
damage.
B. THE U.S. GOVERNMENT HAD EFFECTIVE CONTROL OVER THE
ACTIVITIES AND OPERATIONS WITHIN THE MILITARY BASES
Under Article III of the 1947 Military Bases Agreement, the U.S. had the “rights,
power and authority within the bases which are necessary for establishment, use,
operation and defense thereof or appropriate for the control thereof and all the rights,
power and authority within the limits of territorial waters and air space adjacent to, or
in the vicinity of, the bases which are necessary to provide access, or appropriate for
their control.” Such rights, power and authority, included, among others, the
following:
(a) to construct (including dredging and filling), operate, maintain, utilize, occupy,
garrison and control the bases;
(b) to improve and deepen the harbors, channels, entrances and anchorages, and to
construct or maintain necessary roads and bridges affording access to the bases;
(c) to control (including to prohibit) in so far as may be required for efficient
operation and safety of the bases, and within the limits of military necessity,
anchorages, moorings, landings, takeoffs, movements and operation of ships and
waterborne craft, aircraft, and other vehicles on water, in the air, or on land
comprising or in the vicinity of the bases;
(d) the right to acquire, as may be agreed between the two governments, such rights of
way, and to construct thereon, as may be required for military purposes, wire and
radio communications facilities, including submarine and subterranean cables, pie
lines and spur tracks from railroads to bases, and the right, as may be agreed upon
between the Governments to construct the necessary facilities;
(e) to construct, install, maintain and employ on any base any type of facilities,
weapons, substance, device, vessel or vehicle on or under the ground, in the air or on
or under the water that may be requisite or appropriate, including meteorological
systems, aerial and water navigational lights, radio and radar apparatus and electronic
devices, of any desired power, type or emission and frequency.
The U.S. agreed that in the exercise of these rights, power and authority, the powers
granted it will not be used “unreasonably.”
In January 1979, The “Arrangements Regarding Delineation of the United States
Facilities at Clark Air Base and Subic Naval Base; Powers and Responsibilities of the
Philippine Base Commanders and Related Powers and Responsibilities of the United
States Facility Commanders; and the Tabones Training Complex” was signed,
amending the 1947 Military Bases Agreement. While the 1979 amendment provided
that the powers and responsibilities of the Philippine base commanders and the U.S.
Facility commanders would be guided by full respect for Philippine sovereignty, it
also assured unhampered U.S. military operations involving its forces in the
Philippines. Thus, it was agreed, “the United States shall have the use of certain
facilities and areas within the bases and shall have effective command and control over such facilities and over United States personnel, employees, equipment
and material.”/8
Even as the United States reaffirmed that Philippine sovereignty extended over the
bases and that each base was under the command of a Philippine Base Commander,/9
certain areas were reserved for the exclusive use of the U.S. Armed Forces and the
U.S. Navy. For instance, a portion of Subic Bay waters was reserved for U.S. forces‟
use; and within the depicted reserved waters, the U.S. Commander was authorized to
control movement and operation of ships and waterborne craft and to perform other
activities that may be appropriate for the unhampered operation of U.S. forces.
Moreover, the Philippine government assured unhampered access to, egress from,
movement within and operational use of the water of Subic Bay by U.S. government
vessels and vessels chartered or engaged on behalf of the United States./10 It will be
noted that facilities and installations identified as potential sources of pollution, such
as the communication facilities at Clark, the Naval Supply Depot and the industrial
area at Subic, were part of the areas used for exclusive American use./11
From the foregoing, it cannot be denied that the United States exercised effective
control of the activities within the military bases.
C. THE ACTIVITIES CONDUCTED BY THE U.S. WITHIN THE
FORMER MILITARY BASES CAUSED ENVIRONMENTAL
HARM
Inasmuch as the U.S. had effective control of the territory and all the activities
conducted within the bases, the environmental harm within Subic and Clark can only
be attributed to the activities conducted by the U.S. within the bases.
Again, a review of the Department of Defense documents released by the United
States to the Philippine government would provide evidence that the U.S. carried out
activities, operations and practices within the military bases which caused
environmental harm. As stated, known contaminated sites in Subic Naval Base and
Clark Field Air Base were identified based on an analysis of the operations performed
by the U.S. forces at the military bases and on documented and reported history of
spills, dumping burying toxic materials and other improper practices, while potentially
contaminated sites were identified by examining the history of improper toxic waste
management practices, high chemical use and storage, generation of large quantities
of hazardous waste, or reported violations or non-conformance to hazardous materials
management standards./12
The U.S. General Accounting Report noted some of these improper practices and
deficiencies as follows: underground storage tanks had no leak detection equipment;
firefighting facilities lacked drainage systems; the Subic Bay Naval Facility‟s power
plant contained unknown amounts of polychlorinated biphenyl (PCB) and emitted
untreated pollutants directly into the air; the Subic Bay Naval Facility had no
complete sanitary sewer system and treatment facility; and only 25 percent of the five
million gallons of sewage generated daily was treated. As a result, thereof, the fuel
and chemicals used in fire-fighting exercises seeped into the soil and water table, and
the overflow went directly into Subic Bay. Sewage and process waste water from the
naval base and air station industrial complexes were discharged directly into Subic
Bay, while lead and other metals from the ship repair facility‟s sandblasting site either
drained directly into the bay or were buried in the landfill./13
The U.S. General Accounting Office Report admitted that at the time of the review,
the U.S. Air Force and the U.S. Navy had no plans to clean up the contaminated sites.
From the foregoing, it is patent from the documents released by the U.S. Department
of Defense that (1) the United States had knowledge of or had the means of knowing
that its agents were carrying out such hazardous activities, operations and improper
waste management practices within the military bases under its effective control; and
that the U.S. had knowledge of or had the means of knowing that the activities
undertaken within the military bases involved appreciable or foreseeable risk of
causing environmental harm; and (3) lastly, that notwithstanding such knowledge, the
United States government had no visible plans of repairing or compensating for the
environmental harm.
D. WHETHER THE U.S. CAN BE HELD LIABLE UNDER THE 1947
MILITARY BASES AGREEMENT, AS AMENDED
The U.S., in the General Accounting report, does not deny the contamination of site
within the former bases, such as fire-fighting training facilities and underground
storage tanks. It denies, however, liability of environmental damage under the
Military Bases Agreement. This is evident from the letter dated June 24, 1999 written
by U.S. Deputy Undersecretary of Defense Sherri Goodman to Senator Legarda-
Leviste alleging that the United States Government has no legal obligation to clean up
the toxic waste in the former U.S. bases in the Philippines. The letter states:
“The United States used military installations in the Philippines under the1947
Military Bases Agreement. Neither that Agreement, nor major amendments to it,
required the United States to conduct any environmental restoration when the
Agreement terminated. Your government expressly agreed to waive any right to
demand cleanup in return for the agreement of the United States not to seek
compensation for the value of the substantial improvements we left behind. You can
find this language in the1988 Amendment. It reads as follows:
„The United States is not obliged to turn over the bases to the Philippines at the
expiration of this Agreement or the earlier relinquishment of any bases in the
condition in which they were at the time of their occupation, nor is the Philippine
obliged to make any compensation to the United States for the improvements in
the bases or for the non-removable buildings or structures left thereon, the right of
which shall revert to the Philippines upon the termination of this Agreement or the
earlier relinquishment by the United States of the bases where the buildings or
structures have been built.‟
“Nothing in international law alters the rights established by the Military Bases
Agreement. Consequently, the United States has no further obligation to undertake
restoration activities at its former installations in the Philippines. In the absence of
legal authority, our laws do not permit us to spend funds for the purposes you have
requested.”
Commenting on the letter of undersecretary Goodman, the Philippine Department of
Foreign Affairs stated in part:
“The Department of Foreign Affairs is aware of the U.S. Government‟s position that
it is under no legal obligation to clean-up suspected contaminated sites in the former
U.S. military bases of Subic and Clark. x x x
“Subsequent amendments made on Article XVII of the 1947 Military Bases
Agreement to mean that the Philippine Government “expressly agreed” to waive its
rights to the ownership, removal and disposition of improvement made by the United
States in the former U.S. military bases. The Philippine Government did not at any
time waive ant right to demand clean-up of the former U.S. bases in exchange for
improvements made by the U.S. Government in the premises of the former U.S.
bases. It must be noted that when the 1947 Military Bases Agreement was signed,
there was no knowledge or experience at the time of the adverse effects of hazardous
wastes on the life and health of humans.”/14
The pertinent provisions of the Agreement and the amendments thereto are as
follows:
Military Bases Agreement
1947
Manglapus-Schultz
Memorandum of
Agreement
October 17, 1988
ARTICLE XVIII
REMOVAL OF
IMPROVEMENTS
ARTICLE VII
OWNERSHIP AND
DISPOSITION OF
BUILDINGS, STRUCTURES
AND OTHER PROPERTY
1. It is mutually agreed that
the United States shall have
the right to remove or dispose
of any or all removable
improvements, equipment or
facilities located at or on any
base and paid for with funds
of the United States. No
export tax shall be charged on
any material or equipment so
removed from the
Philippines.
1. It is mutually agreed that
the United States shall have
the right to remove or dispose
of any or all removable
improvements, equipment or
facilities located at or on any
base paid for with funds of
the United States. No export
tax shall be charged on any
material or equipment so
removed from the
Philippines. The Government
of the Philippines shall have
the first option to acquire,
upon the mutually agreed
terms, such removable United
States Government property
within the bases as the United
States Government
determines to be excess
property available for
disposition in the Philippines.
1. All buildings and
structures which are erected
by the United States in the
bases shall be the property of
the United States and may be
removed by it before the
expiration of this Agreement
or the earlier relinquishment
of the base on which the
structures are situated. There
shall be no obligation on the
part of the Philippines or of
the United States to rebuild or
repair any destruction or
damage inflicted from any
cause whatsoever on any of
2. Non-removable buildings
and structures within the
bases, including essential
utility systems such as energy
and water production and
distribution systems and
heating and air conditioning
systems that are an integral
part of such buildings and
structures, are the property of
the Government of the
Philippines, and shall be so
registered. The United States
shall, however, have the right
to full use, in accordance
with this Agreement, of such
the said buildings or
structures owned or used by
the United States in the bases.
The United States is not
obliged to turn over the bases
in the condition in which they
were at the time of their
occupation, nor is the
Philippines obliged to make
any compensation to the
United States for the
improvements made in the
bases or for the buildings or
structures left thereon, all of
which shall become the
property of the Philippines
upon termination of the
Agreement or the earlier
relinquishment by the United
States of the bases where the
structure have been built.
non-removable buildings and
structures within the United
States Facilities at the bases
including the right to repair,
alter or, when necessary for
reasons of safety or new
construction, to demolish
them. There shall be no
obligation on the part of the
United States or of the
Philippines to rebuild or
repair any destruction or
damage inflicted from any
cause whatsoever on any of
the non-removable buildings
or structures used by the
United States in the bases.
The United States is not
obliged to turn over the bases
to the Philippines at the
expiration of this Agreement
or the earlier relinquishment
of any bases in the condition
in which they were at the time
of their occupation, nor is the
Philippines obliged to make
any compensation to the
United States of the bases
where the structures have
been built.
3. Upon the final termination
of the use by the Government
of the United States of the
Facilities or earlier
relinquishment, the United
States and the Republic of the
Philippines will take
appropriate measures as they
shall jointly determine to
ensure a
smooth transition with respect
to custody and control of the
Facilities and in order to
minimize any disruptive
effects of such termination.
The question, therefore, is whether this clause, “The United States is not obligated
to turn over the bases to the Philippines at the expiration of this Agreement or the
earlier relinquishment of any bases in the condition in which they were at the time
of their occupation.” can be interpreted to grant the United States blanket
authority to inflict significant blanket authority to inflict significant
environmental damage within or in the vicinity of the bases by wanton acts of
dumping contaminants, burying of toxic materials and other improper waste
management practices, thereby causing enormous health hazards to residents
within the area. Does Article XVIII of the Military Bases Agreement (on
Removal of Improvements), as amended by Article VII (on Ownership and
Disposition of Buildings, Structures and Other Property) of the Manglapus-
Schultz Memorandum of Agreement, give the United States the license to commit
acts of destruction of the environment or of tort in exchange for non-removable
buildings and structures?
The committee are not inclined to so hold, considering that under Article III of
the 1947 Military Bases Agreement, the United States agreed not to exercise its rights, power and authority “unreasonably.” As correctly noted in House
Resolution No. 75 adopted by the Philippine House of Representatives on September
21, 1999, the Agreement, like any other valid contracts, contemplated only reasonable
activities and that the indiscriminate and negligent disposal of toxic and hazardous
wastes in any area not safely meant therefor is an illegal and unreasonable
undertaking. Nothing in the 1947 Military Bases Agreement of the amendments
thereto authorized the United States to unduly pollute the territorial waters with
contaminants, destroy the environment by dumping toxic wastes within the bases
and endanger the lives of residents in the vicinity. The tortious act of inflicting
damage, whether to the environment or to the lives of the people of the
contracting State, could not have been authorized or contemplated under the
Military Bases Agreement or any of its amendments, or could toxic tort/15
injuring Filipino citizens have been sanctioned by the Philippines in exchange for
non-removable building or structures. To so interpret the Agreement would reduce
its provisions to an absurdity and violate a fundamental canon of statutory
construction that any interpretation of a provision that will lead to an absurdity or
irrationality should be avoided at all costs.
“The usual canons of statutory construction are employed in the interpretation of
treaties. Thus, to mention a few, specific provisions must be read in the light of the
whole instrument and especially of the purposes of the treaty. Words used to be given
their natural meaning unless a technical sense was intended, and, when they have
different meanings in the contracting states, should be interpreted in accordance with
the usage of the state where they are supposed to take effect. x x x At all events, an
interpretation that will lead to an absurdity is to be avoided and a more rational result
preferred.”/16
The Committees find the Philippine Department of Foreign Affairs‟ interpretation to
the effect that Article VII of the 1988 Manglapus-Schultz Memorandum of
Agreement amending Article XVIII of the 1947 Military Bases Agreement, refers to
the ownership and disposition of buildings, structures and improvements at the
expiration of the Agreement or the earlier relinquishment of the bases, more rational
and in keeping with the statutory construction rule that a specific provision must not
be taken in isolation but read in the light of the whole instrument, including the title of
the article to which it refers. Considering the undertaking of the United states to its
powers, rights and authority under the Agreement reasonable, the Committees also
hold that the provision quoted above does not bar the Philippines from protecting its
citizens who have suffered damage or injury as a result of toxic tort or wanton
contamination in Subic and Clark.
In any case, conflicts in the interpretation of treaties or international agreements may
be resolved by agreement of the parties themselves or by an international body./17 In
view of the differences in opinion by the United States and the Philippines in the
interpretation of Article VII on Ownership and Disposition of Buildings, Structures
and Other Property under the Manglapus-Schultz 1988 Memorandum of Agreement,
amending Article XVIII on Removal of Improvements under the 1947 Military Bases
Agreement, the Committees submit that the question whether the United States can be
held liable under the 1947 Military Bases Agreement and amendments thereto can
best be resolved by an international body.
E. WHETHER THE U.S. CAN BE HELD LIABLE UNDER CUSTOMARY
INTERNATIONAL LAW
As in the foregoing paragraph, an international body can best resolve the question
whether the United States can be held liable under customary international law.
Under generally accepted principles of international law, particularly the maxim
of sic utere jure tuo ut alienum non laedas,/18 the United States had the duty to
ensure that the activities conducted within the military bases and under its
effective control were carried out in such a manner as not to cause
environmental harm to the Philippines and its citizens. If The activities
conducted within the military bases and under the United States’ effective
control caused harm, then the United States has the corresponding duty to repair
or compensate such damage.
It is interesting to note the U.S. position that nothing in international law alters the
rights established by the Military Bases Agreement and that the United states has no
further obligation to undertake restoration activities at the former military bases. The
Committees take exception to this position, particularly in the light of the discussion
that the provision in the 1947 Military bases Agreement or its amendments thereto
granted the United Sates the right to pollute the territorial waters of the Philippines
with contaminants, dump toxic wastes and endanger the lives of the residents in the
vicinity. No article or section in the 1947 Military Bases Agreement or in its
amendments referred to any right or authority granted to the United States to
inflict damage to the environment or to commit toxic tort with impunity. In fact,
it was only the Supplementary Agreement Number Two to the 1991 Treaty of
Friendship, Cooperation and Security Between the Government of the Republic of
the Philippines and the Government of the United States of America: Agreement on
Installations and Military Operating Procedures, which the Philippine Senate
overwhelmingly rejected, that contained an article specifically referring to the
environment./19 The absence in the 1947 Military Bases Agreement or its
amendments of any provision on the environment bolsters the interpretation that
the clause, “The United states is not obliged to turn over the bases to the
Philippines at the expiration of this Agreement or the earlier relinquishment of any
bases in the condition in which they were at the time of their occupation,” referred
only to the ownership and disposition of buildings, structures and other
properties at the expiration of the Agreement and was not meant as a license for
the American forces to commit wrongful or negligent acts of environmental
destruction.
In the absence of any specific provision under the 1947 Military Bases Agreement, as
amended, granting the United States the right to dispose of hazardous or toxic wastes
in Subic and Clark as it pleases, the general principles of international law will apply.
And under the customary principle of international law, sic utere jure tuo ut alienum
non laedas, a State is responsible for environmental damage to another State. The
protection of the environment is a universal duty and the obligation to prevent
environmental damage is well established by custom./20
The principle of sic utere tuo ut alienum non laedas which holds a State liable for
environmental damage to another evolved from landmark cases and arbitral decisions
in international law, such as the Trail Smelter Arbitration award/21 and the Corfu
Channel Case/22. In the Trail Smelter Arbitration case, the United States filed a claim
against Canada for air pollution-causing fumes coming from a privately owned
smelter plant in Trail, British Columbia. Applying the general principles of
international law, particularly the sic utere jure tuo principle, the Special Arbitral
Tribunal held that States are obliged to regulate activities with potentially harmful
effects to other States and that “no State has the right to use or permit the use of its
territory in such a manner as to cause injury by fumes in or to the territory of another
or the properties or persons therein, when the case is of serious consequences and the
injury is established by clear and convincing evidence.” After mandating regulatory
controls for Canada, the Tribunal held Canada liable for the air pollution caused by a
private company within its territory and to make reparations if any harm occurred in
the future even from wholly lawful activities.
In the Corfu Channel case, the Corfu Channel. located between Corfu Island and
Albania, was considered free of mines. The British Government claimed the right of
passage through the channel while the Albanian Government opined that the foreign
ships‟ passage required prior Albanian permission. In October 1946 two British
warships struck mines in the North Corfu Strait and were heavily damaged with
deaths and injuries among the naval personnel. Britain unilaterally undertook
minesweeping operations in the channel after the incident amid protests from Albania.
The United States Security Council in a resolution recommended that the parties
should refer the dispute to the International Court of Justice in accordance with the
provisions of the Statute of the Court, which resolution was accepted by both States.
In 1947, the United Kingdom unilaterally instituted proceedings before the
International Court of Justice, with protests from Albania against the unilateral British
application./23
Noting that it was improbable for Albania to have been unaware of the existence of
the minefield recently laid in its territorial waters, the International Court of Justice
declared that Albania was presumed to know of the minefield‟s existence and was
obliged to notify the ships of the imminent danger from the minefield. The Court then
held Albania liable under international law for the explosions and for the loss of
human lives based on the general and well-recognized principle that each State is
obliged “not to allow knowingly its territory to be used for acts contrary to the rights
of other states.”
The committees, moreover, note of the following discussion in the paper entitled,
Toxic Waste Contamination in Former U.S. Military Bases in the Philippines and the
Concept of Sate Responsibility for Damage to the Environment by Department of
Environment and Natural Resources Undersecretary Paula Defensor:
“The development of principles applicable to state responsibility for environmental
damage eventually led to a global conference to discuss matters relating to the present
state and future of the human environment. Thus came about the 1972 Stockholm
Conference and as a corollary, the Stockholm Declaration on the Human
Environment, the most significant provision of which is Principle 21, which states:
„States have, in accordance with the Charter of the United Nations and the
principles of international law, the sovereign right to exploit their own natural
resources pursuant to their own environmental policies, and the responsibility to
ensure that activities within their jurisdiction or control do not cause damage to
the environment of other States or of areas beyond the limits of national
jurisdiction.‟
“In addition to Principle 21, there is also Principle 22 which provides that States
were to cooperate to further principles regarding liability and compensation to
victims of pollution and other environmental damage. It provides:
„States shall cooperate to develop further the international law regarding liability
and compensation for the victims of pollution and other environmental damage
caused by activities within the jurisdiction and control of such states to areas beyond
their jurisdiction.‟
“Principle 22 is a restatement of the judgement in the Trail Smelter case despite little
development in the concept of state responsibility for environmental damage in
international law. On account, however, of continued reference to and opinio juris on
Principle 21 in various fora and international documents, it is now commonly
accepted as representing customary international law.
Principle 21 of the Stockholm Declaration was later repeated and expanded during
the Conference on Environment and Development (UNCED) in 1992 which adopted
a Declaration known as the Declaration of the UN Conference on Environment and
Development or the Rio Declaration. Principle 2 of the Rio Declaration provides:
„States have in accordance with the Charter of the United Nations and the principles
of international law, the sovereign right to exploit their own resources pursuant to
their own environmental and developmental policies, and the responsibility to
ensure that activities within their jurisdiction or control do not cause damage to the
environment of other states or areas beyond the limits of national jurisdiction.‟”
Again, the author reasoned:
“The protection of the doctrine of territorial integrity is the rationale behind the
acceptance in state practice of the principle of sic utere tuo, placing the acting state in
breach of duty under customary international law. The recognition of this principle in
the municipal law of states gives the necessary confirmation and evidence of the
juridical character of the principle involved. This principle is reiterated in current
applications of international law on the rights and duties of states with respect to state
territory. It has little bearing therefore that toxic waste contamination in the former
U.S. military bases was caused by the nature of activities conducted by the U.S.
military within the bases. It has been established that portions of those sites are no
longer reusable due to toxic waste contamination and worse, pose substantial and
imminent danger to human life and environment. Under customary international
law, the United States fell short of the standard of diligence which other states are expected from it. The degree of diligence varies with the circumstances, and
among the factors to be considered are the foreseeability of the risk and the means
available to the state. The basis of United States responsibility for the injurious
acts of its servicemen stationed in the former military bases is not complicity
with the perpetrators, but its failure to perform its international duty to prevent
the unlawful act, or failure to observe the diligence to abate the unlawful act.
The present state of international law admits of responsibility on the basis of
either fault or negligence on the part of the state. The state is liable if it failed to
take such measures as, under the circumstance, should normally have been
taken to prevent, redress or inflict punishment for the acts causing the damage.”/25 (Emphasis supplied)
Applying the generally accepted principles of international law, particularly of
sic utere tuo ut alienum non laedas, one will note that there is sufficient basis for
a cause of action under international law against the United States. From a
review of the Department of Defense documents released by the United States
Government, the veracity of which the United States cannot deny, it is clear that
the Philippines sustained significant environmental damage at both Clark Field
Air Base and Subic Naval Base and that it is highly improbable for the U.S.
Government not to have knowledge of the existence of the contaminated sites in
the former military bases over which it had effective control and unhampered
access under the 1947 Military Bases Agreement, as amended. The records from
the U.S. Department of Defense will confirm that the United States had
knowledge or had means of knowing that its agents were carrying out hazardous
activities, operations and improper waste management practices within the
military bases, and that these activities, operations and practices involved
appreciable or foreseeable risk of causing environmental harm. It cannot be
argued that the principle of sic utere jure tuo will not apply because Subic and
Clark are part of the Philippine territory, for the reason that the U.S. military
bases were located in a portion of Philippine territory of which the United States
enjoyed exclusive and unimpeded use. It also cannot be disputed, again based on
the U.S. Department of Defense documents, that despite such knowledge, the
United States Government has not executed a thorough and comprehensive
cleanup of the known and potential contaminated sites in Subic and Clark. In
fact, reasoning that it is not obligated to turn over the bases in the
environmentally safe condition in which they were at the time of their
occupation, it continues to deny responsibility for cleanup operations
notwithstanding its knowledge of the toxic contamination as manifest in the U.S.
General Accounting Report.
IV. COMMITTEES’ CONCLUSIONS AND RECOMMENDATIONS
In summary, the Committee on Natural Resources, Health and Demography, and
Foreign Relations find that
xi. Based on the documents released by the U.S. Department of Defense, there is
substantial environmental contamination in the former Subic Bay Naval Base
and Clark Field Air Base;
xii. It is evident from the documents released by the U.S. Department of Defense
that the United States Government has knowledge of the existence and location
of known and potential contaminated sites in the former Subic bay Naval Base
and Clark Field Air base;
xiii. The hazardous activities, operations and improper waste management
practices engaged in by the United States Government within the military bases
under its effective control involved appreciable and foreseeable risk of causing
environmental harm;
xiv. The United States Government is presumed to know or had the means of
knowing that such hazardous activities, operations and improper waste
management practices were carried out by the U.S. forces within the military
bases over which it had effective control and unhampered access;
xv. The environmental damage caused in Subic and Clark was substantial and
had serious adverse ecological, human health and economic implications for the
residents within the area and for the Philippines in general.
xvi. The hazardous activities, operations and improper waste management
practices engaged in by the United States forces within the military bases caused
the environmental damage;
xviii. Inasmuch as the activities conducted within the military bases and under
the effective control of the U.S. caused substantial harm, the United States has
the corresponding duty to repair and compensate for such damage;
xix. Despite allegations to the effect that the matter of reparation and
compensation for toxic contamination is a purely moral question, there is
sufficient basis to submit to an international body the legal question concerning
the interpretation of Article VII of the 1988 Manglapus-Schultz
Memorandum of Agreement amending Article XVIII of the 1947 Military
Bases Agreement;
xx. Despite allegations to the effect that the matter of reparation and
compensation for toxic contamination is a purely moral question, there is
sufficient basis under customary international law for a cause of action against
the United States for failing to ensure that the activities conducted by the U.S.
forces within the former Subic Bay Naval Base and Clark Field Air Base were
carried out in such a manner as not to cause harm to the Philippines and its
citizens.
In view of the foregoing, the Committees respectfully recommend that the following
measures be taken:
By the Department of Foreign Affairs:
4. To negotiate with the United States Government, the remediation of the areas
affected with toxic waste contamination and to initiate preventive and curative
measures in order to suppress the rising number of victims of toxic waste
contamination in Clark and Subic at the expense of the former. It should be
negotiated along the lines of, or pursuant to, Principle 13 of the 1992 Rio
Declaration on Environment and Development, of which the United States is a
signatory, which provides that “States shall develop national law regarding liability
and compensation for the victims of pollution and other environmental damage.
States shall also cooperate in expeditious and more determined manner to develop
further international law regarding liability and compensation for adverse effects of
environmental damage caused by activities within their jurisdiction or control to
areas beyond their jurisdiction”;
5. To pursue, through diplomatic channels, the creation of a Joint R.P.-U.S. Task
Force that will conduct a thorough examination of the extent of toxic waste
contamination in Clark and Subic, determine the ill effects thereof to the inhabitants,
and implement the much-needed remediation over these areas at the expense of
the U.S. Government; and
6. In the event that the United States Government should refuse to effect a
remediation on the toxic wastes that the latter left in the former bases of Clark and
Subic, to recommend to the Chief executive the filing of a suit, in behalf of the
Republic of the Philippines, against the United States of America before the
International Court of Justice pursuant to the principles of customary international
law for failing to ensure that the activities conducted by the U.S. forces within the
former Subic Bay Naval Base and Clark Field Air Base were carried out in such a
manner as not to cause harm to the Philippines and its citizens, and for a judicious
and authoritative interpretation of Article VII of the 1988 Manglapus-Schultz
Memorandum of Agreement amending Article XVIII of the 1947 Military Bases
Agreement.
By the Department of Health:
6. To continue its efforts in protecting the people from the ill-effects of toxic waste
contamination in Clark and Subic;
7. To continue strengthening the capability of its regional hospital, particularly the
Jose Lingad Memorial, in managing, diagnosing, and treatment of patients with
illnesses that may be attributed to the toxic waste found in said areas;
8. To continue conducting a comprehensive health impact assessment and
epidemiological surveillance studies to validate and monitor the reported illnesses
among the residents in the vicinity;
9. To recommend to the Philippine Task Force on Hazardous Wastes, of which
DOH is a member, to close than the identified contaminated areas; and
10. To work closely with the Philippine Nuclear Research Institute to determine the
levels of radioactivity in the identified areas.
By the Department of Environment and Natural Resources:
5. To enforce thenceforth the provisions of Republic Act No.6969 otherwise known
as the “Toxic Substances and Hazardous Nuclear Wastes Control Act” to forestall
the repetition of similar subsequent toxic waste contamination throughout the
country;
6. To effect the treatment of wells in the affected areas through chlorination or other
scientific methods within or which may hereafter fall within the disposal of the
agency;
7. To continuously conduct analytic research and study on the toxic waste issue;
and
8. To study further the environmental impact assessment on the areas affected by the
waste contamination.
Finally, The Senate Committees on Environment and Natural Resources, Health and
Demography, and Foreign Relations most respectfully recommend to the Chief
Executive
4. Declare a state of environmental calamity in the specific areas affected with toxic
waste contamination and direct the relocation of persons still residing within these
areas;
5. Submit to an international body, in behalf of the Republic of the Philippines, the
question concerning the interpretation of Article VII of the 1988 Manglapus-Schultz
Memorandum of Agreement amending Article XVIII of the 1947 Military Bases
Agreement in view of the differences in opinion by the United States and the
Philippines, and the refusal of the United States to admit liability; and
6. In the event that the United States Government should refuse to affect a
remediation on the toxic wastes in the former Subic Naval Base and Clark Field Air
Base, to file a suit, in behalf of the Republic of the Philippines, against the United
States of America before the International Court of Justice pursuant to the principles
of customary international law for failing to ensure that the activities conducted by
the U.S. forces within the former military bases were carried out in such a manner as
not to cause harm to the Philippines and its citizens.
ENDNOTES
1/ List of Deceased CABCOM evacuees as monitored by Mandy Rivera from a community of
500 families
NAME AGE DATE OF DEATH ILLNESS
1. Alfonso Lapira 59 Jan. 2, 1996 Cancer
2. Aniceta Miranda July 13, 1999 Cancer
3. Dominga Valencis 77 July 5, 1997 Cancer
4. Emerenciana Abalos 78 Apr. 29, 1999 Cancer
5. Ernesto Licup Sept. 9, 1999 Cancer
6. Jesus Mendoza 21 March 4, 1999 Cancer
7. Michelle Lapira Jan. 2, 1999 Cancer
8. Narcisa Cortez 62 July 13, 1998 Cancer
9. Ponciano Ayson 71 Nov. 17, 1997 Cancer
10. Juan Cortez June 1999 Bone Cancer
11. Erlinda Baltazar 47 Dec. 1998 Ovarian Cancer
12. Victoria Morales 86 Dec. 1, 1998 Ovarian Cancer
13. Teofila Escoto Sept. 17, 1997 Cancer of the Uterus
14. Eleonor Borja March 13, 1999 Breast Cancer
15. Milagros Quiambao Oct. 15, 1999 Breast Cancer
16. Erlinda Yanga 1999 Cancer of the Liver
17. Crisel Jane Valencia 6 Feb. 25, 2000 Acute Myelocytic Leukemia
18. Estella Estrada June 1999 Leukemia
19. Alberto Pallasique 69 July 23,1997 Heart Attack
20. Benjamin Yumul 60 Sept. 21, 1998 Heart Attack
21. Dolores Zalta 42 May 18, 1997 Heart Attack
22. Enrico Lumanlan August 1999 Heart Attack
23. Igmedio Escoto 78 July 25, 1998 Heart Attack
24. Incocencio Rodriguez July 9, 1999 Heart Attack
25. Jaquina Escoto 78 Jan. 15, 1998 Heart Attack
26. Jose Castro 58 Feb. 14, 1998 Heart Attack
27. Juanito Rodriguez 64 Oct. 13, 1996 Heart Attack
28. Pablo Manalac 28 Feb. 20, 1999 Heart Attack
29. Soledad Loanzon 40 Dec. 7, 1998 Heart Attack
30. Vicencio Escoto 61 Nov. 3, 1997 Heart Attack
31. Marissa Valencia May 5, 1999 Heart Failure
32. Carmelita Lachica 50 Mar. 9, 1999 Heart Ailment
33. Roberto Ocampo 56 Jan. 1, 1999 Heart Ailment
34. James Munoz 41 July 17, 1998 Heart Ailment
35. Maribeth Valencia 3 Aug. 15, 1995 Heart Ailment
36. Fausta Licup 67 Mar. 26, 1996 Heart Kidney Ailment
37. Nelia Miranda 28 Oct. 14, 1999 Heart, Respiratory Ailment
38. Rosemarie 2000 Heart Failure
39. Fortunato Canlapan 1999 Kidney Disorder
40. Josefa Canlapan 70 1999 Kidney Disorder
41. Luz Ayson 10 Feb. 20, 1997 Kidney Disorder
42. Teodoro Canlapan 70 Oct. 31, 1998 Kidney Disorder
43. Juan Manalac 64 May 8, 1998 Kidney Infection
44. Ricardo Baltazar 43 Mar. 10, 1995 KidneyDisorder,Heart Failure
45. Leonor Garcia 45 Apr. 29, 1997 Kidney, Lung Ailment, Diabetes
46. Diego Licup 70 June 1996 Lung Problem
47. Euterio Manaje 82 July 2, 1998 Lung Problem
48. Maricel Hermudo 3 mos. Aug. 16, 1999 Lung Problem
49. Roberto Manquera May 15, 1999 Lung Problem
50. Cesaria Baluyot 72 Aug. 20, 1996 Lung Problem
51. Teodora Nicasio 1999 Lung Problem
52. Alejandro tayag 59 Aug. 13, 1998 Tuberculosis
53. Maxima Rivera 79 Dec. 27, 1998 Tuberculosis
54. Adriano Sicat July 12, 1999 Asthma
55. Edwin Mercado 3 Aug. 15, 1999 Asthma
56. Severina Ocampo 79 Aug. 23, 1999 Asthma
57. Victoriano Dionisio 72 Aug. 22, 1999 Asthma
58. Annabel Miranda 4 1995 Asthma
59. Gualupe Tolentino 73 July 25, 1998 Asthma, Diabetes
60. Jesus Valencia 62 Nov. 25, 1995 Infection and Diabetes
61. Angela Rodriguez 85 Jan. 22, 1996 Diabetes
62. Cayetano Simbulan 87 June 2, 1998 Diabetes
63. Maricel Valencia 15 Nov. 29, 1995 Enlargement of Stomach
64. Pasencia balbin 77 July 24, 1998 Fever, Stomach Problem
65. Vernalin Canlapan 6 June 17, 1996 Stomach Problem
66. Maximiano Mercado 82 Dec. 1998 Stomach Problem
67. Aurelio Pingol 40 July 10, 1997 Vomiting of blood
68. Ernesto Serrano 50 Dec. 1998 Ulcer
69. Diosdado Loanzon Sept. 6, 1995 Enlargement of Testes
70. Julieta Aguilar May 19, 1999 Infection
71. Jose Zapanta 9 mos. Aug. 1996 Internal Obstruction
72. Carolina Licup Jan. 12, 1999 Infection
73. Jude Dela Cruz 1 yr. 9 mos. 1995 Sudden Death
74. Kenneth Cortez 1 yr. 1 mo. Mar. 1997 Sudden Death
75. Ma. Corazon Mariano 21 Oct. 25, 1997 Sudden Death
76. Pascual Rodriguez 86 May 29, 1996 Sudden Death
List od sick at CABCOM Evacuees as monitored by Mandy Rivera from a community of 500
families
NAME AGE ILLNESS
1. Genelyn Valencia 7 Congenital Heart Disease
2. Ronelyn Mercado 7 Congenital Heart Disease
3. Rowell Borja 5 Congenital Heart Disease
4. Sarah Jane Anicete 5 Congenital Heart Disease
5. Shiela Pineda 4 Congenital Heart Disease
6. Syra Tolentino 4 Congenital Heart Disease
7. Abraham Taruc 5 Central Nervous System Disorder
8. Amril Rose Pabelas 4 Central Nervous System Disorder
9. Maritess Miranda Breast Cancer
10. Milagros Quiambao Breast Cancer
11. Daniel Yangga 33 Cancer
12. Roger Bungque Cancer of the Liver
13. Gerlin Alonzo Cancerous Cyst
14. Leonardo Gonzales Cancerous Cyst
15. Regina Abalos 58 Cancerous Cyst
16. Corazon Sicat Cyst of the back
17. Betty Valencia 40 Cyst in the Ovary
18. Josie Soriano 36 Cyst in the Ovary
19. Alma Escoto Cyst on right ovary
20. Auria Ocampo Breast mass and skin disease
21. Ligaya Pabustan Mass on right hand
22. Erlinda Cruz Heart Ailment
23. Lourdes Ocampo Heart Ailment
24. Norma Samson Heart Ailment
25. Pascual Calma Heart Enlargement
26. Roliza San Juan Kidney and lung disorder
27. Juliana Escoto 52 Kidney Disorder
28. Ponciano Escoto Kidney Disorder
29. Rita Serrano Kidney Disorder
30. Yolanda Lumanlan 35 Kidney Disorder
31. Camille Lumanlan 2 Kidney Disorder, cannot walk
32. Alberto Carlos Kidney Disorder, Diabetes
33. Ernesto Borja Kidney Problems
34. Benjamin Simbulan Kidney Disorder
35. Ailyn Simbulan Kidney Disorder
36. Edmarie Escoto 5 Cannot talk and walk
37. Michelle de Leon 7 Cannot talk and walk
38. Crisel Pabustan 3 Cannot talk
39. Jeffrey John Mallari 5 Cannot talk
40. Aliaro Mercado 5 Cannot talk, small for his age
41. Micah Rose Pabalan 4 Cannot talk and walk
42. Joel Miranda 3 Deformed feet
43. Kevin Baluyot 7 Deformities
44. Ria Baluyot Leg is becoming shorter or thinner
45. Joren Rodriguez 2 Enlargement of Head
46. Jose Baluyot Diabetes, Lung problem
47. Mario Escoto Tuberculosis
48. Dionisio Canlapan Epilepsy
49. Avelina Manalo Skin Disease
50. Hilario Austria Skin Disease
51. Ivan Escoto 2 Skin Disease
52. Jonald Escoto 4 Skin Disease
53. Joshua Casbuena 3 Skin Disease
54. Lamberto de Leon 54 Skin Disease
55. Narcisa Manusig Skin Disease
56. Nerissa Tobias 19 Skin Disease
57. Nicole Escoto 6 Skin Disease
58. Noel Lapira Skin Disease
59. Patrick Escoto 8 Skin Disease
60. Teresita Ocampo Skin Disease
61. Adelaida Umali Spontaneous Abortion
62. Agripina Canlas Spontaneous Abortion (twice)
63. Ailyn Quinto Spontaneous Abortion (twice)
64. Aurea Manusig Spontaneous Abortion (twice)
65. Luzviminda Evaristo Still Birth
66. Dolores Canlapan Still Birth
67. Elizabeth Balbin Still Birth
68. Ofelia Escoto 43 Still Birth (twice)
2/ DFA Secretary Siazon‟s letter to US State Secretary Albright, dated November 20, 1997,
reads in part:
“To be able to say with certainty that both Subic and Clark are clean and free of toxic wastes, an
affirmation that would benefit the United States and the Philippines, I am requesting the U.S.
government for assistance in the following:
“1. Evaluation or confirmation of the two surveys conducted by Woodward-Clyde (Subic) and
Asia Star Western International (Clark), through technical assistance, possible by the
Environmental Protection Agency.
“2. The establishment of a joint Philippine-U.S. task force to assess the degree of
contamination at Subic and Clark and to formulate plans for remedial action, if warranted.
“In the light of the U.S. concerns for global environmental degradation, it would be no more than
appropriate and no less than morally imperative if measures were taken to ensure that no long-
term harmful effects were to arise from the past use of the land for military purposes.
Cooperation on contamination assessment would be seen as a logical step in addressing
environmental concerns. The resolution of the issue needs concerted action, and I would suggest
that the joint task force also look at the possibility of World bank involvement in this endeavor.”
3/ Sites included in the U.S. Environmental Protection Agency‟s “Superfund” National Priorities
List are among the Most contaminated and most hazardous places in the United States.
4/ Environmental and Health Impact Report on Known and Potentially Contaminated Sites at
Former U.S. Military Bases in the Philippines by Paul Bloom, Jorge Emmanuel, et al.
5/ Ibid.; the Environmental and Health Impact Report took the data under “Source”, “Clean-Up
Action” and some information under “Contaminant” directly from the U.S. Department of
Defense documents.
6/ Ibid.
7/ In her letter to Senator Legarda-Leviste, U.S. Defense Undersecretary Sherri Goodman
claimed that the United States conducted comprehensive environmental studies at Subic and
Clark and “removed all containers of hazardous wastes and materials that we could” within the
time allowed for its withdrawal.
8/ Exchange of Notes Constituting an Agreement Between the Republic of the Philippines and
the United States of America Amending the Military Bases Agreement of 1947, Manila, January
7, 1979.
9/ Joint Statement of Philippine President Marcos and U.S. Vice President Mondale, May 4,
1978.
10/ Annex II, Subic Naval Base, Arrangements Regarding Delineation of United States Facilities
at Clark Air Base and Subic Naval Base; Powers and Responsibilities of the Philippines Base
Commanders and Related Powers and Responsibilities of the United States Facility
Commanders, and the Tabones Training Complex.
11/ Environmental Damage Caused by Activities in the United States Military Facilities: An
Application of the Principles of State Responsibility for Transborder Pollution, by Vicente
Gerochi IV, a thesis presented to the Ateneo de Manila College of Law, 1993.
12/ Environmental and Health Impact Report on Known and Potentially Contaminated Sites at
Former U.S. Military Bases in the Philippines by Paul Bloom, Jorge Emmanuel, et al.
13/ U.S. General Accounting Report.
14/ Statement by the Department of Foreign Affairs on the letter to Senator Loren Legarda-
Leviste From U.S. Defense Deputy Undersecretary For Environmental Security Sherri Goodman
Regarding the U.S. Obligation to Clean-Up Hazardous Wastes in Subic and Clark.
15/ Toxic tort has been defined as comprising harm to persons, property or the environment due
to the toxicity of a process or substance; see Steve Gold, Toxic Torts: Burden of Proof, Standards
of Persuasion and Statistical Evidence, 96 Yale Law Journal (1986)
16/ International Law, by Isagani Cruz, Central Lawbook Publishing Co., Inc., 1998 ed., p. 180.
17/ Ibid.
18/ (Lat.) “So exercise your rights as not to injure another”; a principle recognized in municipal
law and in relations between States, which states that one can exercise one‟s rights in ways that
do not harm the interests of others. In the Trail Smelter Arbitration case, the maxim was applied
to mean that under international law, no State has the right to use or permit the use of its territory
in such a manner as to cause injury to the territory of another State.
19/ Article VIII of the Supplementary Agreement Number Two to the 1991 Treaty of Friendship,
Cooperation and Security Between the Government of the Republic of the Philippines and the
Government of the United States of America: Agreement on Installations and Military Operating
Procedure provides:
“1. An overall environmental protection program will be formulated by the Philippine
Commander and the United States Commander. The Philippine Commander shall be
responsible for the management and control of the disposal of hazardous or toxic waste
generated by the operations, activities and training of Philippine forces on the base under this
Agreement. The United States Commander shall be responsible for the management and
control of the disposal of hazardous or toxic waste generated by the operations, activities and
training of United States forces on the installations under this Agreement. The Commanders
shall coordinate in the development and implementation of their respective programs to
provide for environmental protection.
“2. The Philippine Commander and the United States Commander shall promulgated agreed
substantive standards, consistent with Philippine laws of general application, governing the
disposal of such waste in accordance with their responsibilities under this Agreement.
“3. Appropriate arrangements shall be made by the Philippine Commander and the United
States Commander to enable to Government of the Philippines to monitor and check adherence
to the standards as set forth in paragraphs 1 and 2 of this Article.”
21/ 3 U.N.R. International Arbitration Award 1905 (1941).
22/ I.C.J. Rep. 4 (1949).
23/ On this issue, the International Court of Justice ruled that unilateral applications were
possible not only where compulsory jurisdiction exists. The Court declared that in submitting the
case by means of an Application, the United Kingdom gave Albania the opportunity to accept the
International Court of Justice‟s jurisdiction. This acceptance was given in the Albanian
Government‟s letter dated July 2, 1947. It will be noted that the International Court of Justice
made an important pronouncement in this case on the possibility of forum prorogation in
international judicial proceedings or the acceptance of unilateral summons to appear before the
international court.
24/ Philippine Law Journal, June 1998 issue.
25/ Ibid.