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The responsibility of the U.S. under international law for the legacy of toxic waste at the former U.S. bases in the Philippines Mercado, Josine Ruth Remorca

Abstract

In 1992, the Americans completed its withdrawal from the Philippines, ending almost a century of U.S. military presence. However, it was soon discovered that the U.S. left behind several contaminated sites at its former military bases in the Philippines due to inadequate hazardous waste management. It appears that the U.S. Department of Defense failed to implement clear and consistent environmental policies at Clark and Subic. The U.S. maintains that it is under no obligation to undertake further cleanup at its former installations inasmuch as the Philippines has waived its right to do so under the basing agreement. It will be argued that the Philippines made no such waiver under the Manglapus-Schultz Agreement. Thus, the U.S. remains responsible under international law for the resulting environmental damage at its former bases. States have the responsibility under customary international law to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states. A state will be responsible if it breaches this international obligation. It will be argued that the U.S. breached its obligation under international law when activities within its effective control caused significant environmental damage to areas forming part of Philippine territory. Such a breach may also result in the violation of the emerging right to a healthy environment. Existing human rights, such as the right to life and health, right to food and water, right to a safe and healthy working environment and right to information, will be applied from an environmental perspective to determine whether the Filipinos' right to a healthy environment was violated. While a legal claim can be made for the remediation of the environment and compensation of the victims, it will be argued that existing mechanisms for the settlement and adjudication of international claims are inadequate. States are generally reluctant to submit to the jurisdiction of international tribunals and most of these fora do not allow non-state entities to appear before them. Thus, it would be argued that the most promising approach may well be through political and diplomatic means.

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