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ENVIRONMENTAL

LAWS:
SUMMARY OF TOPICS: LAWS AND CASES

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FIRST ASSIGNMENT [For Dec 14]:
1. Climate Change
2. UNFCC
3. Philippines response to climate change
4. RA 9729 Climate Change Law
5. RA 9367 Biofuel Act
6. RA 9513 Renewable Energy
7. Vol. I of Bedan Journal Sovereignty [Changing
Concept]
8. General Environmental Law [Identify relevant
provisions in 1987 Consti Art II]
9. PD 1511 Philippine Environment Policy [Brown
Legislations]
10. Fundamental Principles of Environmental Law
[Draft Covenant]

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I. REPUBLIC ACT NO. 9729 - AN ACT MAINSTREAMING
CLIMATE CHANGE INTO GOVERNMENT POLICY
FORMULATIONS, ESTABLISHING THE FRAMEWORK
STRATEGY AND PROGRAM ON CLIMATE CHANGE,
CREATING FOR THIS PURPOSE THE CLIMATE
CHANGE COMMISSION, AND FOR OTHER PURPOSES

Section 1. Title. This Act shall be known as the Climate
Change Act of 2009.

Section 2. Declaration of Policy. It is the policy of the State
to afford full protection and the advancement of the right of
the people to a healthful ecology in accord with the rhythm
and harmony of nature. In this light, the State has adopted
the Philippine Agenda 21 framework which espouses
sustainable development, to fulfill human needs while
maintaining the quality of the natural environment for
current and future generations.

Towards this end, the State adopts the principle of
protecting the climate system for the benefit of humankind,
on the basis of climate justice or common but differentiated
responsibilities and the Precautionary Principle to guide
decision-making in climate risk management. As a party to
the United Nations Framework Convention on Climate
Change, the State adopts the ultimate objective of the
Convention which is the stabilization of greenhouse gas
concentrations in the atmosphere at a level that would
prevent dangerous anthropogenic interference with the
climate system which should be achieved within a time
frame sufficient to allow ecosystems to adapt naturally to
climate change, to ensure that food production is not
threatened and to enable economic development to proceed
in a sustainable manner. As a party to the Hyogo
Framework for Action, the State likewise adopts the
strategic goals in order to build national and local resilience
to climate change-related disasters.

Recognizing the vulnerability of the Philippine archipelago


and its local communities, particularly the poor, women,
and children, to potential dangerous consequences of
climate change such as rising seas, changing landscapes,
increasing frequency and/or severity of droughts, fires,
floods and storms, climate-related illnesses and diseases,
damage to ecosystems, biodiversity loss that affect the
countrys environment, culture, and economy, the State
shall cooperate with the global community in the resolution
of climate change issues, including disaster risk reduction. It
shall be the policy of the State to enjoin the participation of
national and local governments, businesses,
nongovernment organizations, local communities and the
public to prevent and reduce the adverse impacts of climate
change and, at the same time, maximize the benefits of
climate change. It shall also be the policy of the State to
incorporate a gender-sensitive, pro-children and pro-poor
perspective in all climate change and renewable energy
efforts, plans and programs. In view thereof, the State shall
strengthen, integrate, consolidate and institutionalize
government initiatives to achieve coordination in the
implementation of plans and programs to address climate
change in the context of sustainable development.

Further recognizing that climate change and disaster risk
reduction are closely interrelated and effective disaster risk
reduction will enhance climate change adaptive capacity,
the State shall integrate disaster risk reduction into climate
change programs and initiatives.

Cognizant of the need to ensure that national and
subnational government policies, plans, programs and
projects are founded upon sound environmental
considerations and the principle of sustainable
development, it is hereby declared the policy of the State to
systematically integrate the concept of climate change in
various phases of policy formulation, development plans,
poverty reduction strategies and other development tools
and techniques by all agencies and instrumentalities of the
government.

Section 3. Definition of Terms. For purposes of this Act, the
following shall have the corresponding meanings:
(a) Adaptation refers to the adjustment in natural or
human systems in response to actual or expected climatic
stimuli or their effects, which moderates harm or exploits
beneficial opportunities.
(b) Adaptive capacity refers to the ability of ecological,
social or economic systems to adjust to climate change
including climate variability and extremes, to moderate or
offset potential damages and to take advantage of
associated opportunities with changes in climate or to cope
with the consequences thereof.
(c) Anthropogenic causes refer to causes resulting from
human activities or produced by human beings.
(d) Climate Change refers to a change in climate that can
be identified by changes in the mean and/or variability of
its properties and that persists for an extended period

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typically decades or longer, whether due to natural


variability or as a result of human activity.
(e) Climate Variability refers to the variations in the
average state and in other statistics of the climate on all
temporal and spatial scales beyond that of individual
weather events.
(f) Climate Risk refers to the product of climate and
related hazards working over the vulnerability of human
and natural ecosystems.
(g) Disaster refers to a serious disruption of the
functioning of a community or a society involving
widespread human, material, economic or environmental
losses and impacts which exceed the ability of the affected
community or society to cope using its own resources.
(h) Disaster risk reduction refers to the concept and
practice of reducing disaster risks through systematic
efforts to analyze and manage the causal factors of
disasters, including through reduced exposure to hazards,
lessened vulnerability of people and property, wise
management of land and the environment, and improved
preparedness for adverse events.
(i) Gender mainstreaming refers to the strategy for
making womens as well as mens concerns and experiences
an integral dimension of the design, implementation,
monitoring, and evaluation of policies and programs in all
political, economic, and societal spheres so that women and
men benefit equally and inequality is not perpetuated. It is
the process of assessing the implications for women and
men of any planned action, including legislation, policies, or
programs in all areas and at all levels.
(j) Global Warming refers to the increase in the average
temperature of the Earths near-surface air and oceans that
is associated with the increased concentration of
greenhouse gases in the atmosphere.
(k) Greenhouse effect refers to the process by which the
absorption of infrared radiation by the atmosphere warms
the Earth.
(l) Greenhouse gases (GHG) refers to constituents of the
atmosphere that contribute to the greenhouse effect
including, but not limited to, carbon dioxide, methane,
nitrous oxide, hydrofluorocarbons, perfluorocarbons and
sulfur hexafluoride.
(m) Mainstreaming refers to the integration of policies
and measures that address climate change into
development planning and sectoral decision-making.
(n) Mitigation in the context of climate change, refers to
human intervention to address anthropogenic emissions by
sources and removals by sinks of all GHG, including ozone-
depleting substances and their substitutes.
(o) Mitigation potential shall refer to the scale of GHG
reductions that could be made, relative to emission
baselines, for a given level of carbon price (expressed in
cost per unit of carbon dioxide equivalent emissions
avoided or reduced).
(p) Sea level rise refers to an increase in sea level which
may be influenced by factors like global warming through
expansion of sea water as the oceans warm and melting of
ice over land and local factors such as land subsidence.

(q) Vulnerability refers to the degree to which a system


is susceptible to, or unable to cope with, adverse effects of
climate change, including climate variability and extremes.
Vulnerability is a function of the character, magnitude, and
rate of climate change and variation to which a system is
exposed, its sensitivity, and its adaptive capacity.

Section 4. Creation of the Climate Change Commission.
There is hereby established a Climate Change Commission,
hereinafter referred to as the Commission.
The Commission shall be an independent and autonomous
body and shall have the same status as that of a national
government agency. It shall be attached to the Office of the
President.
The Commission shall be the sole policy-making body of the
government which shall be tasked to coordinate, monitor
and evaluate the programs and action plans of the
government relating to climate change pursuant to the
provisions of this Act.
The Commission shall be organized within sixty (60) days
from the effectivity of this Act.

II. UNFCC AND KYOTO PROTOCOL
- International Environmental Treaty that was produced
at the UN Conference on Environment and Development.
It is aimed at STABILIZING greenhouse gas
concentrations in the atmosphere at a level that would
prevent interference with climate system.
- Since the UNFCCC entered into force, the parties have
been meeting annually in Conferences of the Parties
(COP) to assess progress in dealing with climate change,
and beginning in the mid-1990s, to negotiate the Kyoto
Protocol to establish legally binding obligations for
developed countries to reduce their greenhouse gas
emissions.
- Under the Convention, governments:
o gather and share information on greenhouse gas
emissions, national policies and best practices;
o launch national strategies for addressing greenhouse
gas emissions and adapting to expected impacts,
including the provision of financial and technological
support to developing countries ;
o cooperate in preparing for adaptation to the impacts
of climate change

- KEY ELEMENT: parties should act to protect the climate
system on the basis of EQUALITY and in accordance with
their COMMON BUT DIFFERENTIATED responsibilities
and respective capabilities.
o The principle of COMMON but DIFFERENTIATED
responsibilities includes 2 elements:
(1) Common responsibilities of parties to protect the
environment, parts of it, at the national, regional, and
global levels
(2) Need to take into account the different
circumstances, particularly each partys contribution
to the problem and its ability to prevent, reduce, and
control threat.

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*** Common: everyone is in the same position (ex.


Everyone uses machinery)
*** Differentiated: developed countries have more
responsibility because they deal with the activities in
large scale (ex. More machineries for factories)
o Another element underpinning the UNFCCC is the
polluter pays principle. This means that the party
responsible for producing pollution is responsible for
paying for the damage done to the natural
environment.

KYOTO PROTOCOL
Sets emission targets for developed countries which are
binding under international law
Countries must meet their targets primarily through
national measures

III. The Climate Change Act of 2009: Philippines
Response to Worlds Changing Condition
Albert P. Aquino, Christian L. Abeleda and Princess Alma B.
Ani

Introduction - Climate change is the most serious and most
pervasive threat facing humanity today. The
Intergovernmental Panel on Climate Change, the highest
scientific body responsible for evaluating the risk of climate
change, reported that warming of the earths surface is
unequivocal. If left uncontrolled, impacts of climate change
to human and nature are unprecedented and will
continuously affect lives of future generations.

Section 16 of the 1987 Philippine Constitution declared that
the State shall protect and advance the right of the people to
a balance and healthful ecology in accord with the rhythm
and harmony of nature. It is in this statement where the
creation of the Republic Act (R.A.) No. 9729 otherwise
known as the Climate Change Act of 2009 was built upon.
The law which was enacted on July 27, 2009 was primarily
conceived as the countrys response to the worldwide
phenomenon on climate change. Towards the attainment of
this goal, R.A. No. 9729 allowed mainstreaming of climate
change into government formulation of programs and
projects, plans and strategies, and policies, creation of
Climate Change Commission, and establishment of
Framework Strategy and Program for climate change.

Mainstreaming of Climate Change into Government
Policy Formulation. R.A. 9729 calls for the State to
integrate the concept of climate change in various phases of
policy formulation, development plans, poverty reduction
strategies, and other government development tools and
techniques. This is to ensure that government plans and
actions are founded upon sound environmental
considerations and sustainable development principles.
Aside from that, the government shall take into
consideration gender-sensitive, pro-children, and pro-poor
perspective as an input to its climate change efforts, plans,
and programs. Likewise, the government shall encourage

the participation of the national and local government,


businesses, non-government organizations (NGOs), and
local communities and public to mitigate the adverse effects
of climate change. This is to align initiatives on climate
change into a collective approach (e.g. the disaster and risk
reduction measures integrated to climate change programs
and initiatives).

Creation of Climate Change Commission. The Climate
Change Commission (CCC), an attached agency to the Office
of the President, was created as the lead policy making body
on concerns related to climate change. The CCC is tasked to
coordinate, formulate, and monitor and evaluate programs
and actions on climate change.

Ultimately, the CCCs primary goal is to formulate the
National Framework Strategy on Climate Change which
shall serve as basis in formulating and developing programs
on climate change planning, research and development
(R&D), and monitoring of activities. Further, the CCC
supports capacity building activities of and provides
technical and financial assistance extension to agencies and
institutions. It also recommends key development
investment areas on climate-sensitive sectors such as water
resources, agriculture, and forestry.

The Commission is composed of 27 government agencies,
local government units and representatives from the
academe, business sector, and NGOs which formed part of
the Advisory Board. It is chaired by the President of the
Philippines together with three (3) Commissioners, one
being the Vice-Chairperson. The CCC also constituted a
panel of technical experts consisting of practitioners of
climate change-related disciplines. The panel of technical
experts primarily provides technical advices on climate
science, technologies, and best practices for risk assessment
and management to the Commission.

Formulation of Framework Strategy and Program on
Climate Change. The National Framework Strategy on
Climate Change (NFSCC) was established to serve as the
roadmap for national programs and plans towards more
climate risk-resilient Philippines. Its main goal is to build
the adaptive capacity of communities, increase the
resilience of natural ecosystems to climate change, and
optimize mitigation opportunities towards sustainable
development. As a principle, NFSCC serves as the
framework for the formulation of climate change action
plans both at the national and local level.
In 2010, NFSCC identified key result areas (KRAs) or
climate-sensitive sectors that would be greatly affected by
the phenomenon. The sectors include among others
agriculture, biodiversity, infrastructure, energy, and
population, health and demography. From these climatesensitive sectors, objectives and strategies were laid down
either in the form of mitigation or adaptation.

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Mitigation strategies aimed to facilitate the transition of the


country towards low greenhouse gas emissions for
sustainable development in the long run. Targets include
enhancement of clean energy source; realization of full
potential of countrys renewable energy capacity;
improvement in efficiency of the transport sector through
increased uptake of alternative fuels and expansion of mass
transport system; reduction of carbon footprints through
energy-efficient design and materials for public
infrastructure and settlements; reduction of emissions from
deforestation and forest degradation; and full
implementation of proper waste management.

Adaptation strategies on the other hand, aimed to build the
adaptive capacity of communities and to increase the
resilience of natural ecosystems to climate change in the
long run. Objectives in each KRA include enhancement of
the availability and quality of vulnerability and adaptation
assessment; strengthen the Integrated Ecosystem-based
Management in the Philippines through management of
watershed ecosystem and multi-polar environments
through river basin management approach, improvement of
coastal and marine ecosystems and communities resilience
to climate change, and mainstreaming biodiversity
adaptation strategies to climate change in government plans
and actions; reduction of water sector vulnerability to
climate change through participative water governance,
resource management and sectoral policy reforms;
protection and enhancement of ecosystem and ecosystem
services to secure food and water resource and livelihood
opportunities; management of health risks brought about
by climate change; and reduction of disaster risk from
climate change-induced natural hazards.

In order to achieve the objectives in each KRA, cross-cutting
strategies are likewise given. These include capacity
building, knowledge management and information,
education and communication (IEC), R&D, and technology
transfer. Implementation on the other hand, is carried out
through coordination, financing and partnership among
national and local government agencies and other
stakeholders.

Development of the National Climate Change Action
Plan (NCCAP). In order to detail the proposed strategy
under the NFSCC, the NCCAP was developed. Streaming
down to the local units, NCCAP served as the guide of the
municipal and city governments in drafting their
corresponding Local Climate Change Action Plans (LCCAP).
In all levels of plans and actions, integration of climate
change concept and encouragement of participation and
involvement of concerned agencies and units are promoted.

Under the NCCAP, priority programs and activities for the
government were developed. Seven priority areas were
identified which include: (1) food security; (2) water
sufficiency; (3) ecosystem and environmental stability; (4)
human security; (5) climate-smart industries and services;

(6) sustainable energy; and (7) knowledge and capacity


development. On the other hand, the LCCAP vary in each
local government and are drafted consistently with the
NCCAP. The Barangays, the smallest unit of government in
the Philippines, are expected to support the municipal and
city government in implementing the climate changerelated activities indicated under the LCCAP.

Establishment of Peoples Survival Fund (PSF). In July
2011, the Climate Change Act of 2009 was amended to
create the PSF. The law creating the PSF is embodied in RA
10174 otherwise known as the Act Establishing the
Peoples Survival Fund to Provide Long-term Finance
Streams to Enable the Government to Effectively Address
the Problem of Climate Change. The fund is established to
finance adaptation programs and projects planned under
the NFSCC. An appropriation of one billion pesos
(PhP 1,000,000,000) under the General Appropriation Acts
served as its opening balance which can be augmented by
donations, endowments, grants and contributions. The said
fund is being managed by PSF Board lodged under the
Commission. The CCC, on the other hand, evaluates and
reviews project proposals for funding and recommends
approval of the proposal to the PSF Board.

The fund is used to support adaptation activities of local
governments and communities. Fund allocation are
prioritized based on projects that has, but not limited to the
following: (a) level of risk and vulnerability to climate
change, (b) participation from the affected communities in
the design of the project, (3) poverty reduction potential,
(4) cost effectiveness and sustainability, (5) responsiveness
to gender-differentiated vulnerabilities, and (6) availability
of climate change action plan.

Conclusion
The Climate Change Act was enacted to protect the right of
the people to a balance and healthful ecology. The law
serves as an action plan that lays out the strategies,
initiatives, and activities to prepare the country to the
inevitable effects of climate change. Both the identified
mitigation and adaptation strategies aimed to build a more
climate-risk resilient Philippines. In the end, achieving the
goals of the plans as stipulated in R.A. 9729 is deemed
attainable with the support and assistance of all
stakeholders to include among others the national and local
government units, the private sector, the NGOs, and the
local communities.

IV. RA 9367 Biofuels Act of 2006

INTRODUCTION- The use of biofuels for transport is a
major thrust of the Philippines to reduce the countrys
dependence on imported fossil fuels and to mitigate
greenhouse gas emissions. To pursue this objective, the
Congress enacted Republic Act No. 9367 otherwise known
as the Biofuels Act of 2006. In accordance to the mandate of
the said law, the government is presently implementing the

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National Biofuels Program (NBP) to promote investments in


biofuel productions and encourage the utilization of this
product. Other activities that coincide with this program are
the establishment of support mechanisms to ensure
adequate supply of feedstocks and the adoption of
appropriate technology for vehicles/engines to be able to
use alternative fuels.

In compliance with the mandate of the law, presently
available liquid fuels in the market are blended with
biofuels. Diesel engine fuel contains 2% blend of biodiesel
by volume while gasoline fuel contains 5% blend of
bioethanol by volume. By 2011, the mandated blend of
bioethanol will increase to 10%.

MARKET OPPORTUNITY- Increasing demand
Biofuels Act of 2006 created a market for biofuels
through the required blend of biodiesel and bioethanol with
the standard diesel and gasoline fuel
Bioethanol
- market characterized by demand-supply gap and big
volume of imports because capacity of existing bioethanol
producers cannot meet the local demand
- opportunity is in bioethanol production
Biodiesel
- expected spur on demand due to the recommendation of
increasing the blend further from 2% to 5%
Excess supply of Biodiesel
- market characterized by excess supply of biodiesel
- opportunity is in the exportation of excess supply of
biodiesel in the market

PHILIPPINE ADVANTAGE - Major Sources of Raw Materials
- sustained supply of ethanol for bioethanol production
because of the availability of raw materials, particularly
sugarcane, one of the major crops grown in the Philippines
- biodiesel: abundant supply of coconut oil
- rich coconut oil resource given the vast hectares of land
planted with millions of coconut trees
- bioethanol

Support industries- contract-growing scheme farmers
enter into arrangements with processors or manufacturers

Human resources -many readily available farm and factory
workers knowledgeable on the details and technicalities of
farming and manufacturing in the Philippines

Availability - big labor force that is highly skilled, educated,
English-proficient and with strong and good work ethics I

INDUSTRY POTENTIALS- Growth in the number of BOI and
DOE-registered biofuel-producing companies:
- biodiesel: 12 with a total production capacity of 395.62
million liters per year
- bioethanol: 3 with a total production capacity of 79
million liters per year

Contribution to the economy

employment generation and livelihood improvements in


the rural areas
foreign exchange savings brought about by the decrease in
fuel importation

GOVERNMENT SUPPORT - Laws and policies
The Biofuels Act of 2006 (RA 9367) - mandates the
blending of biofuels with all fuel products distributed
and sold by oil companies in the Philippines
Omnibus Investment Code (EO 226) - grants incentives
to investment projects/activities that are listed in the
Investment Priorities Plan, which includes biodiesel
PEZA Law (RA 7196) - grants incentives to investment
projects/activities that are located in economic zones

Development plans and programs - provided for by the
National Biofuels Program following a framework that
encompasses the areas of feedstock, industry and
technology development, guidelines and standards
enforcement and evaluation and industry promotion

Financial support/guarantee - credit assistance provided by
the Land Bank of the Philippines and the Development Bank
of the Philippines for agri-based and renewable/alternative
energy sources projects

V. Renewable Energy Act for Energy Self-Sufficiency
and Harmful Emission Reduction [RA 9513] Albert P.
Aquino and Christian L. Abeleda

Introduction - Energy sector is the leading emitter of
greenhouse gases (GHGs) in the Philippines (REECS,
2010)[3]. In 2000, there is a leap of 39% from 1994
emission record of 50,038 CO2e Gigagrams on this sector.
Emissions mostly come from the combustion of imported
fuels and other activities related to the production of
energy, such as coal mining, oil and gas exploration,
production and processing (EMB, 2011).

Republic Act No. 9513 or the Renewable Energy Act of
2008 was codified in December 2008 to affirm the
governments commitment to accelerate the utilization of
renewable energy (RE) resources in the country. This is to
effectively reduce harmful emissions and achieve economic
development while protecting health and environment.
Renewable energy is an essential part of the countrys low
emission development strategy and is vital to addressing
challenges of climate change, energy security, and access to
energy.

Under this law, the State is mandated to accelerate
exploration and development of RE resources to achieve
energy self-reliance; increase utilization of RE by
institutionalizing the development of national and local
capabilities; encourage the development and utilization of
RE resources as tools to effectively prevent or reduce
harmful emissions; and establish necessary infrastructure
and mechanisms to carry out the stipulated mandates in the
Act. The law suggests RE resources that could be

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alternatively utilized such as solar, wind, hydro, biomass,


geothermal and ocean energy.

Renewable energy policy mechanisms
RE development is encouraged on both on-grid and off-grid
system. In an on-grid system, several policy mechanisms
were promoted which include Renewable Portfolio
Standard, Feed-in-Tariff System, Net-Metering for RE, Green
Energy Option, among others. In an off-grid system,
concerned parties were mandated to source a minimum
percentage of its total annual generation from RE resources
in the area concerned.

Renewable Portfolio Standard RPS is a policy which places
an obligation on electric power industry participants such
as generators, distribution utilities, or suppliers to source or
produce a specified fraction of their electricity from eligible
RE resources. The purpose of which is to contribute on the
growth of the renewable energy industry by diversifying
energy supply and to help address environmental concerns
of the country by reducing GHG emission.

Feed-in Tariff (FIT) System is a scheme that involves an
obligation on the part of electric power industry
participants to source electricity from RE generation at a
guaranteed fixed price for a given period of time. This
system is adopted to accelerate the development of
emerging RE resources through fixed tariff mechanism.

Green Energy Program is a mechanism established to
provide end-users or households the option to choose RE
resources as their source of energy.

Net Metering for RE is a consumer-based renewable energy
incentive scheme wherein electric power generated by an
end-user (such as house or office with photovoltaic system)
from an eligible on-site RE generating facility and delivered
to the local distribution grid may be used to offset electric
energy provided by the distribution utility to the end-user.
Adoption of Waste-to-Energy Technologies that will
encourage conversion of biodegradable materials such as,
but not limited to, animal manure, agricultural waste, into
useful energy through processes of anaerobic digestion,
fermentation, and gasification, among others.

Incentives and privileges for renewable energy
development
Incentives and privileges were stipulated for RE
development initiatives. Incentives are provided to RE
projects and programs; hybrid and co-generation system;
RE commercialization; and farmers engaged in the
plantation of biomass resources. To avail these incentives
and privileges, it is encouraged that parties be registered
and accredited by Department of Energy and Board of
Investments.

For all the entities involved in RE development, fiscal
incentives include, among others, tax exemption for

importation of inputs, components, parts, and materials and


income tax holidays. Other incentives and privileges
stipulated include tax rebate for purchase of RE
components; financial assistance program; exemption from
the universal charge or charge imposed for the recovery of
the stranded cost; cash incentive of RE developers for
missionary electrification; payment of transmission
charges; and priority and must dispatch for intermittent RE
resource.

Regulatory framework
The Department of Energy (DOE) is mandated to lead the
implementation of the Act. As the lead agency, DOE is
mandated, among others, to perform necessary actions for
the execution of enumerated RE policy mechanisms and
formulate and to implement National Renewable Energy
Program or NREP.

Also, embodied in the Act are the creations of National
Renewable Energy Board or NREB (Section 27 of the Act)
and Renewable Energy Management Bureau or REMB
(Section 32 of the Act). NREB[5] act as a collegial body
tasked to recommend policies to DOE and monitor the
implementation of the Act. In addition, the Board
recommends specific actions to support the activities of
DOE especially the NREP. REMB, on the other hand, is in the
forefront of effective implementation of the provisions of
the Act. As such, the Bureau developed and formulated
NREP to accelerate the development, utilization, and
commercialization of RE resources and technologies, among
others.

National renewable energy program
National Renewable Energy program or NREP, launched on
June 2011, outlines the policy framework enshrined in RA
9513. It sets the strategic building blocks that will help the
country achieve the goals set forth in the Renewable Energy
Act. It indicated interim targets for the delivery of energy
sources within the timeframe of 2011 and 2030. In
principle, it provided the basis for national and local
renewable energy planning that will identify specific actions
and period upon which outcomes will be generated.

The Program ultimately seeks to increase RE-based capacity
to an estimated 15,304.3 Megawatt (MW) by year 2030,
almost triple the 2010 level of 5,438 MW (Table 1). This
sum is a consolidation of targets on each individual sectoral
sub-programs namely: geothermal, hydropower, biomass,
wind, solar, and ocean.

Each sectoral sub-programs follows a roadmap that
indicates milestones targeted over a covered period. The
realization of these targets depends on the implementation
of several activities that include: (a) RE industry services;
(b) RE resource development; (c) RE research, development
and demonstration; and (d) RE technology support.

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Government share
The government has the share on the proceeds derived by
RE Developers which is equal, in general, to one percent
(1%) of the RE developers gross income (except indigenous
geothermal energy which is 1.5% of their gross income). No
government share is collected from proceeds of Biomass
resources development and of micro-scale projects for
communal purpose and non-commercial operations which
are not greater than one hundred kilowatts. The
accumulated government share will be distributed to
national and local government by 60% and 40%
respectively.

Renewable energy trust fund
Renewable Energy Trust Fund or RETF was established, in
pursuant to Section 28 of the Act, to enhance the
development and greater utilization of RE. The fund is
utilized through grants, loans, equity investments,
counterpart fund or such other financial arrangements
necessary for the attainment of the activities stipulated in
the Act. The fund is used to, among others, finance research
and development works engaged in RE and support the
operation or RE resources to improve their competitiveness
in the market. The RETF is mostly funded from fees and
penalties collected and net annual income of Philippine
owned and controlled corporation.

Conclusion
Energy sector is one among the contributors of GHGs in the
country. Through the enactment of the Renewable Energy
Act of 2008, it is hoped that energy self-sufficiency will be
achieved and dependence on GHG emitter energy sources
will be reduced. With the policy mechanisms laid down,
incentives and privileges stipulated, regulatory framework
established, financial support appropriated, among others,
acceleration of utilization of RE resources and participation
from stakeholders, more importantly from the private
sectors, are expected.

VI. ENVIRONMENTAL PROVISIONS OF 1987
CONSTITUTION
Sec. 16, Art. II: The State shall protect and advance the
right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.
Sec. 2 (2), Art. XII: The State shall protect the nations
marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.
Sec.5, Art. XII: The State, subject to the provisions of this
Constitution and national development policies and
programs, shall protect the rights of indigenous cultural
communities to their ancestral lands to ensure their
economic, social, and cultural well-being.
The Congress may provide for the applicability of
customary laws governing property rights or relations in
determining the ownership and extent of ancestral domain.
(Note: Indigenous peoples traditional ecological knowledge
is an integral part of understanding the environment).


VII. Presidential Decree No. 1151/Philippine
Environmental Policy

Enactment and Implementation: June 6, 1977
Purpose: To protect the right of the people to a healthy
environment through a requirement of environmental
impact assessments and statements
Control Area: Nationwide

Overview:

- Conflicting demands of population growth, urbanization,
industrial expansion, rapid natural resources utilization,
and increasing technological advances have resulted in a
piecemeal-approach concept of environmental protection.
- The tunnel-vision concept is not conducive to the
attainment of an ideal environmental situation where
man and nature can thrive in harmony with one another.
- There is now an urgent need to formulate an intensive,
integrated program of environmental protection that will
bring about a concerted effort towards the protection of
the entire spectrum of the environment through a
requirement of environmental impact assessments and
statements.

Features

- Declares a continuing policy of the State (a) to create,
develop, maintain, and improve conditions under which
man and nature can thrive in productive and enjoyable
harmony with each other, (b) to fulfill the social,
economic, and other requirements of present and future
generations of Filipinos, (c) to ensure the attainment of an
environmental quality that is conducive to a life of dignity
and well being

- In pursuing this policy , it shall be the responsibility of the
government, in cooperation of concerned private
organizations and entities, to use all practicable means,
consistent with other essential considerations of national
policy, in promoting the general welfare to the end that
the nation may (a) recognize, discharge, and fulfill the
responsibilities of each generation as trustee and
guardian of the environment for the succeeding
generations, (b) assure the people of a safe, decent,
helpful, productive, and aesthetic environment, (c)
encourage the widest exploitation of the environment
without degrading it, or endangering human life, health,
and safety or cr4eating conditions adverse to agriculture,
commerce, and industry, (d) preserve important historic
and cultural aspects of the Philippine heritage, (e) attain a
rational and orderly balance between population and
resource use, (f) improve the utilization of renewable and
nonrenewable resources.

- In furtherance of these goals and policies, the government
recognizes the right of the people to a healthful
environment. It shall be the duty and responsibility of

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 7

each individual to contribute to the preservation and


enhancement of the Philippine environment.

- Pursuant to the above enunciated policies and goals, all
agencies and instrumentalities of the national
government, including all government owned and
controlled corporations as well as private corporations
and firms and entities shall prepare, file, and include in
every action, project, or undertaking which significantly
affects the quality of the environment a detailed
statement on:
o the environmental impact of the proposed action,
project, or undertaking;
o any adverse environmental effect which cannot be
avoided should the proposal be implemented;
o alternative to the proposed action;
o a determination that the short-term uses of the
resources of the environment are consistent with the
maintenance and enhancement of the long-term
productivity of the same; and
o whenever a proposal involves the use of depletable or
nonrenewable resources, a finding must be made that
such use and commitment are warranted.

VIII. DRAFT INTERNATIONAL COVENANT ON
ENVIRONMENT AND DEVELOPMENT

FUNDAMENTAL PRINCIPLES - In their actions to achieve
the objective of this Covenant and to implement its
provisions, the Parties shall be guided, inter alia, by the
following fundamental principles:

ARTICLE 2; RESPECT FOR ALL LIFE FORMS - Nature as a
whole warrants respect; every form of life is unique and is
to be safeguarded independent of its value to humanity.

ARTICLE 3; COMMON CONCERN OF HUMANITY - The global
environment is a common concern of humanity.

ARTICLE 4; INTERDEPENDENT VALUES - Peace,
development, environmental protection and respect for
human rights and fundamental freedoms are
interdependent.

ARTICLE 5; INTERGENERATIONAL EQUITY - The freedom
of action of each generation in regard to the environment is
qualified by the needs of future generations.

ARTICLE 6 ; PREVENTION - Protection of the environment
is best achieved by preventing environmental harm rather
than by attempting to remedy or compensate for such harm.

ARTICLE 7; PRECAUTION - Lack of scientific certainty is no
reason to postpone action to avoid potentially significant or
irreversible harm to the environment.

ARTICLE 8; RIGHT TO DEVELOPMENT - The exercise of the
right to development entails the obligation to meet the

developmental and environmental needs of humanity in a


sustainable and equitable manner.

ARTICLE 9; ERADICATION OF POVERTY - The eradication of
poverty, an indispensable requirement for sustainable
development, necessitates a global partnership.

ARTICLE 10; CONSUMPTION PATTERNS AND
DEMOGRAPHIC POLICIES - The elimination of unsustainable
patterns of production and consumption and the promotion
of appropriate demographic policies are necessary to
enhance the quality of life for all humanity and reduce
disparities in standards of living.

A. Basic Rights in Relation to Environmental Justice

1. Sovereignty Over Natural Resources and the
Obligation Not to Cause Harm

State sovereignty over natural resources, as embodied in
our own Constitution, gives the State the right to the
utilization and benefits over the resources within its
territory. However, since the 1970s, state sovereignty over
natural resources has been read with the obligation not to
cause harm. Principle 21 of the 1972 Stockholm
Declaration, which is the cornerstone of International
Environmental Law, reflects these principles:
- 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 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.

The sovereign right over natural resources includes the
right of the states to be free from external interference. The
exercise of state sovereignty, however, has its limits.
Principle 21 provides that the state has the responsibility
not to cause harm beyond the limits of its national
jurisdiction. The No Harm Principle recognizes that a states
activities may be transboundary in nature which can affect
or harm the environment of another State. This is meant to
be balanced with the sovereign principle of states and
requires them to take responsibility for their actions which
cause harm outside their own territory.

2. Principle of Prevention
The Principle of Prevention aims to stop environmental
damage even before it occurs or when it is critical and
potential damage may already be irreversible. This principle
should be differentiated from the Obligation Not to Cause
Harm. The Obligation Not to Cause Harm deals with the
effects of a states activities outside its own territory without
regard to activities that cause environmental harm within the
state. The Principle of Prevention encompasses environmental
harm within a states own territory.

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 8

The Principle of Prevention is based on the idea that it is


The Principle of Sustainable Development is embodied in
better to prevent than employ measures, after harm has
the Philippine Agenda which was formulated as a response
occurred, in order to restore the environment. This
to the countrys commitments in the 1992 Earth Summit in
principle has been expanded by a relatively new principle
Rio de Janeiro, Brazil.
the Precautionary Principle.


5. Intergenerational Equity
3. Precautionary Principle
The concept of Intergenerational Equity supports the
Principle 15 of the Rio Declaration, commonly known as the
Principle of Sustainable Development with respect to
Precautionary Principle states:
holding the natural resources in trust for future
- In order to protect the environment, the precautionary
generations.20 Nevertheless, this principle does not stop
approach shall be widely applied by States according to
there. Intergenerational Equity is defined as each
their capabilities. Where there are threats of serious or
generations responsibility to leave an inheritance of wealth
irreversible damage, lack of full scientific certainty shall no less than what they themselves have inherited.
not be used as a reason for postponing cost- effective
In the landmark case of Oposa v. Factoran, the Supreme
measures to prevent environmental degradation.
Court had the occasion to discuss the concept of

Intergenerational Responsibility. The case was instituted by
This principle advocates that the potential harm should be
minors along with their parents alleging that the then
addressed even with minimal predictability at hand. It is
Secretary of Natural Resources acted with grave abuse of
designed to provide the basis for early international legal
discretion in issuing Timber License Agreements (TLAs) to
action to address serious environmental threats in cases
cover more areas. Respondents alleged that the minors, who
where there is ongoing scientific uncertainty with regard to
invoked the right to a balanced and healthful ecology, had
the causes of these threats. The Principle requires a high
no valid cause of action. On the issue of petitioners
degree of prudence on the part of the stakeholders. Decision standing, the Court held that the minors were entitled to sue
makers are not only mandated to account for scientific
on the basis of Intergenerational Responsibility.
uncertainty but can also take positive action, e.g., restrict a

product or activity even when there is scientific uncertainty. The Supreme Court, through former Chief Justice Davide
Under Rule 20 of the Rules of Procedure for Environmental
explained:
Cases, the Precautionary Principle is adopted as a rule of
- This case, however, has a special and novel element.
evidence. The Supreme Courts adoption of the
Petitioners minors assert that they represent their
Precautionary Principle in the newly promulgated Rules of
generation as well as generations yet unborn. We find no
Procedure for Environmental Cases affords plaintiffs a
difficulty in ruling that they can, for themselves, for
better chance of proving their cases where the risks of
others of their generation and for the succeeding
environmental harm are not easy to prove.
generations, file a class suit. Their personality to sue in

behalf of the succeeding generations can only be based
4. Sustainable Development
on the concept of intergenerational responsibility insofar
Sustainable Development is the process of developing land,
as the right to a balanced and healthful ecology is
cities, businesses, communities, and so forth that meets the
concerned. Such a right, as hereinafter expounded,
needs of the present without compromising the ability of
considers the rhythm and harmony of nature. Nature
future generations to meet their own needs. The concept of
means the created world in its entirety. Such rhythm and
Sustainable Development carries two key concepts. First, is
harmony indispensably include, inter alia, the judicious
the existence of needs with particular focus to the needs of
disposition, utilization, management, renewal and
the poor. Second, is that the environment has limitations in
conservation of the countrys forest, mineral, land,
meeting the needs of present and future generations.
waters, fisheries, wildlife, off-shore areas and other

natural resources to the end that their exploration,
The Principle of Sustainable Development addresses the
development and utilization be equitably accessible to
need to reconcile issues of development
the present as well as future generations. Needless to
andenvironmentalprotection.16
say, every generation has a responsibility to the next to
Itrecognizesthatdevelopmentrequireseconomicexploitation
preserve that rhythm and harmony for the full
tosatisfy the needs of the growing population at the same
enjoyment of a balanced and healthful ecology. Put a
time protecting the environment for future generations. The
little differently, the minors assertion of their right to a
concept of sustainable development seeks to achieve
sound environment constitutes, at the same time, the
exploitation of resources while leaving the environment
performance of their obligation to ensure the protection
intact for the use of future generations. Non-renewable
of that right for the generations to come.
resources must be used as efficiently as possible. According

to this principle, there must be optimal management of
6. Rights-based Approach
natural resources.
Environmental Justice stems from a growing recognition

that the Right to the Environment is a fundamental human
right which ought to be protected. The Rights-based

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 9

Approach in Environmental Justice is reflected in various


international instruments. The Universal Declaration of
Human Rights provides for the right to a standard of living
adequate for health and well-being. The right carries with
it the Right to the Environment. Later on, the 1972
Stockholm Declaration, which is the primary document in
International Environmental Law, would state in clear and
express terms the Right to the Environment. Principle 1 of
the Stockholm Declaration states:
- Man has the fundamental right to freedom, equality and
adequate conditions of life, in an environment of a
quality that permits a life of dignity and well-being, and
he bears a solemn responsibility to protect and improve
the environment for present and future generations. In
this respect, policies promoting or perpetuating
apartheid, racial segregation, discrimination, colonial
and other forms of oppression and foreign domination
stand condemned and must be eliminated.

Subsequently, the Rio Declaration contained 27 principles
with a goal of ensuring the protection of the environment
and promoting Sustainable Development. Principle 1
recognizes that human beings are the center of concerns
for sustainable development. The Rio Declaration
underlines the obligations of states not to cause harm
beyond their jurisdiction, to meet the environmental needs
of present and future generations, and to consider
environmental protection as an integral part of
development. The Rio Declaration also mandates states to
eradicate poverty and to give special attention to the least
developed and environmentally vulnerable countries
emphasizing that in the cooperative process, states have
common but differentiated responsibilities. The Rio
Declaration recognizes the importance of enjoining the
citizens in addressing environmental issues with particular
emphasis on the role of women, youth and Indigenous
Peoples in achieving sustainable development.

Under the Rights-based Approach, the right of persons to
environmental protection has the same level as basic human
rights. The adoption of this approach plays a crucial role in
litigation because persons would be allowed to litigate on
the basis of their right to a healthy environment in the same
way that they can litigate for violations of their civil and
socioeconomic rights.
In line with the Rights-based Approach, there is a growing
trend towards achieving Environmental Justice. Presently,
the concept of Environmental Justice varies among groups.
Some define Environmental Justice as the goal of achieving
adequate protection from the harmful effects of
environmental agents for everyone, regardless of age,
culture, ethnicity, gender, race, or socioeconomic status.
Others view Environmental Justice as the equitable
distribution of burdens of the environmental harms among
various groups. One author suggests that there are two
fundamental principles of Environmental Justice namely:
distributive and procedural justice. In Environmental
Justice, distributive justice refers to the equitable

distribution of environmental risks and harms. Procedural


justice, on the other hand, focuses on the right of the
stakeholders to participate in decision making processes
concerning the environment and enabling them to access
relevant information.

While the concept of Environmental Justice differs
depending on the perspective of the individual or entity, the
ultimate goal is to enhance the involvement of the people
and to ensure access to justice. As a means of addressing
these concerns, there is heavy emphasis on the policies,
laws, and legal procedures.30 In the context of the judicial
system, Environmental Justice is tested in the light of the
existence of adequate laws and policies, the quality of its
enforcement, and the existence of available remedies for
those affected by violations of environmental laws and
regulations.

The environmental law principles discussed above will
hopefully help you in better understanding the laws, rules,
and regulations related to environmental law enforcement
in the Philippines. These principles serve as the foundation
for the development of measures and provisions for the
protection of the environment. With these principles in
mind, the next section will provide a discussion of the most
common and typical environmental violations which take
place in the Philippines, knowledge of which is the first step
in ensuring the proper enforcement of environmental
protection laws in our country.
- - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
2nd ASSIGNMENT [January 4, 16]
PHILIPPINE LEGISLATIONS IN REPONSE TO CLIMATE
CHANGE
1. Oposa v. Factoran [224 SCRA 792]
2. MMDA v. Concerned Citizens of Manila Bay
[1997]
3. Manila Prince Hotel v. GSIS [1997]
4. E.O. 192 of 1987
5. PAB v. Solar Textile Co [1991]
6. Laguna Lake Development Auth v. CA [1995]
7. RA 7611: Strategic Environmental Plan for
Palawan
8. Tano v. Socrates [1997]

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

1. OPOSA V. FACTORAN [1993]
DAVIDE, JR., J p.:
1. CONSTITUTIONAL LAW; DECLARATION OF PRINCIPLES
AND STATE POLICIES; RIGHT TO A BALANCED AND
HEALTHFUL ECOLOGY, CONSTRUED. The complaint
focuses on one specific fundamental legal right the right
to a balanced and healthful ecology which, for the first time
in our nation's constitutional history, is solemnly
incorporated in the fundamental law. Section 16, Article II of
the 1987 Constitution explicitly provides: "SEC. 16. The

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 10

State shall protect and advance the right of the people to a


balanced and healthful ecology in accord with the rhythm
and harmony of nature." This right unites with the right to
health which is provided for in the preceding section of the
same article: "SEC. 15. The State shall protect and promote
the right to health of the people and instill health
consciousness among them." While the right to a balanced
and healthful ecology is to be found under the Declaration of
Principles and State Policies and not under the Bill of Rights,
it does not follow that it is less important than any of the
civil and political rights enumerated in the latter. Such a
right belongs to a different category of rights altogether for
it concerns nothing less than self-preservation and selfperpetuation aptly and fittingly stressed by the
petitioners the advancement of which may even be said
to predate all governments and constitutions. As a matter of
fact, these basic rights need not even be written in
the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly
mentioned in the fundamental charter, it is because of the
well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated
as state policies by the Constitution itself, thereby
highlighting their continuing importance and imposing
upon the state a solemn obligation to preserve the first and
protect and advance the second, the day would not be too
far when all else would be lost not only for the present
generation, but also for those to come generations which
stand to inherit nothing but parched earth incapable of
sustaining life. The right to a balanced and healthful ecology
carries with it the correlative duty to refrain from impairing
the environment.
2. ID.; ID.; TIMBER LICENSES; NATURE THEREOF; NONIMPAIRMENT CLAUSE MAY NOT BE INVOKED; CASE AT
BAR. all licenses may thus be revoked or rescinded by
executive action. It is not a contract, property or a property
right protected by the due process clause of
the Constitution. In Tan vs. Director of Forestry, (125 SCRA
302, 325 [1983]) This Court held: ". . . A timber license is an
instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare
is promoted. A timber license is not a contract within the
purview of the due process clause; it is only a license or
privilege, which can be validly withdrawn whenever
dictated by public interest or public welfare as in this case.
'A license is merely a permit or privilege to do what
otherwise would be unlawful, and is not a contract between
the authority, federal, state, or municipal, granting it and the
person to whom it is granted; neither is it property or a
property right, nor does it create a vested right; nor is it
taxation' (37 C.J. 168). Thus, this Court held that the
granting of license does not create irrevocable rights,
neither is it property or property rights (People vs. Ong Tin,
54 O.G. 7576) . . ." We reiterated this pronouncement

in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary:
(190 SCRA 673 684 [1990]) ". . . Timber licenses, permits
and license agreements are the principal instruments by
which the State regulates the utilization and disposition of
forest resources to the end that public welfare is promoted.
And it can hardly be gainsaid that they merely evidence a
privilege granted by the State to qualified entities, and do
not vest in the latter a permanent or irrevocable right to the
particular concession area and the forest products therein.
They may be validly amended, modified, replaced or
rescinded by the Chief Executive when national interests so
require. Thus, they are not deemed contracts within the
purview of the due process of law clause [See Sections 3(ee)
and 20 of Pres. Decree No. 705, as amended. Also, Tan v.
Director of Forestry, G.R. No. L-24548, October 27, 1983,
125 SCRA 302]." Since timber licenses are not contracts, the
non-impairment clause, which reads: "SEC. 10. No law
impairing the obligation of contracts shall be passed." In the
second place, even if it is to be assumed that the same are
contracts, the instant case does not involve a law or even an
executive issuance declaring the cancellation or
modification of existing timber licenses. Hence, the nonimpairment clause cannot as yet be invoked. Nevertheless,
granting further that a law has actually been passed
mandating cancellations or modifications, the same cannot
still be stigmatized as a violation of the non-impairment
clause. This is because by its very nature and purpose, such
a law could have only been passed in the exercise of the
police power of the state for the purpose of advancing the
right of the people to a balanced and healthful ecology,
promoting their health and enhancing the general welfare.
In Abe vs. Foster Wheeler Corp., (110 Phil. 198, 203 [1960])
this Court stated: "The freedom of contract, under our
system of government, is not meant to be absolute. The
same is understood to be subject to reasonable legislative
regulation aimed at the promotion of public health, moral,
safety and welfare. In other words, the constitutional
guaranty of non-impairment of obligations of contract is
limited by the exercise of the police power of the State, in
the interest of public health, safety, moral and general
welfare." The reason for this is emphatically set forth
in Nebia vs. New York, (291 U.S. 502, 523, 78 L. ed. 940 947949) quoted in Philippine American Life Insurance Co. vs.
Auditor General, (22 SCRA 135, 146-147 [1968]) to wit:
"'Under our form of government the use of property and the
making of contracts are normally matters of private and not
of public concern. The general rule is that both shall be free
of governmental interference. But neither property rights
nor contract rights are absolute; for government cannot
exist if the citizen may at will use his property to the
detriment of his fellows, or exercise his freedom of contract
to work them harm. Equally fundamental with the private
right is that of the public to regulate it in the common
interest.'" In court, the non-impairment clause must yield to
the police power of the state.


Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 11

FELICIANO, J., concurring:


2. CONSTITUTIONAL LAW; DECLARATION OF PRINCIPLES
AND STATE POLICIES; RIGHT TO "A BALANCE AND
HEALTHFUL ECOLOGY"; INTERPRETATION. The Court
has also declared that the complaint has alleged and focused
upon "one specific fundamental legal right the right to a
balanced and healthful ecology" (Decision, p. 14). There is
no question that "the right to a balanced and healthful
ecology" is "fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in
character, I suggest, with very great respect, that it cannot
be characterized as "specific," without doing excessive
violence to language. It is in fact very difficult to fashion
language more comprehensive in scope and generalized in
character than a right to "a balanced and healthful ecology."
The list of particular claims which can be subsumed under
this rubric appears to be entirely open-ended: prevention
and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical
effluents, garbage and raw sewage into rivers, inland and
coastal waters by vessels, oil rigs, factories, mines and
whole communities; of dumping of organic and inorganic
wastes on open land, streets and thoroughfares; failure to
rehabilitate land after strip-mining or open-pit
mining; kaingin or slash-and-burn farming; destruction of
fisheries, coral reefs and other living sea resources through
the use of dynamite or cyanide and other chemicals;
contamination of ground water resources; loss of certain
species of fauna and flora; and so on. The other statements
pointed out by the Court: Section 3, Executive Order No.
192dated 10 June 1987; Section 1, Title XIV, Book IV of the
1987 Administrative Code; and P.D. No. 1151, dated 6 June
1977 all appear to be formulations ofpolicy, as general
and abstract as the constitutional statements of basic policy
in Article II, Sections 16 ("the right to a balanced and
healthful ecology") and 15 ("the right to health"). As a
matter of logic, by finding petitioners' cause of action as
anchored on a legal right comprised in the constitutional
statements above noted, the Court is in effect saying that
Section 15 (and Section 16) of Article II of
the Constitution are self-executing and judicially
enforceable even in their present form. The implications of
this doctrine will have to be explored in future cases; those
implications are too large and far-reaching in nature even to
be hinted at here.
3. ID.; RIGHT TO HEALTH; SHOULD SPECIFICALLY EXIST IN
OUR CORPUS OF LAW. Justice Feliciano suggestion is
simply that petitioners must, before the trial court, show a
more specific legal right a right cast in language of a
significantly lower order of generality than Article II (15) of
the Constitution that is or may be violated by the actions,

or failures to act, imputed to the public respondent by


petitioners so that the trial court can validly render
judgment granting all or part of the relief prayed for. To my
mind, the Court should be understood as simply saying that
such a more specific legal right or rights may well exist in
our corpus of law, considering the general policy principles
found in the Constitution and the existence of the Philippine
Environment Code, and that the trial court should have
given petitioners an effective opportunity so to
demonstrate, instead of aborting the proceedings on a
motion to dismiss.
2. MMDA V. CONCERNED CITIZENS OF MANILA BAY
[2011]
Facts: On January 29, 1999, respondents Concerned
Residents of Manila Bay filed a complaint before the
Regional Trial Court (RTC) in Imus, Cavite against several
government agencies, for the cleanup, rehabilitation, and
protection of the Manila Bay.

The complaint alleged that the water quality of the Manila
Bay had fallen way below the allowable standards set by
law, specifically Presidential Decree No. (PD) 1152 or the
Philippine Environment Code.

In their individual causes of action, respondents alleged that
the continued neglect of petitioners in abating the pollution
of the Manila Bay constitutes a violation of, among others:

(1) Respondents constitutional right to life, health, and a
balanced ecology;
(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD 825);
(7) The Marine Pollution Law (PD 979);
(8) Executive Order No. 192;
(9) The Toxic and Hazardous Wastes Law (RA. 6969);
(10) Civil Code provisions on nuisance and human relations;
(11) The Trust Doctrine and the Principle of Guardianship;
and
(12) International Law
Inter alia, respondents, as plaintiffs a quo, prayed that
petitioners be ordered to clean the Manila Bay and submit
to the RTC a concerted concrete plan of action for the
purpose.

Issues:
a) Whether or not pertinent provisions of the Environment
Code (PD 1152) relate only to the cleaning of specific
pollution incidents and do not cover cleaning in general.

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 12

b) Whether or not the cleaning of the Manila Bay is not a


ministerial act which can be compelled by mandamus.

Held:
Regional Trial Courts Order to Clean Up and Rehabilitate
Manila Bay

On September 13, 2002, the RTC rendered a Decision in
favor of respondents. Finding merit in the complaint, the
Court ordered defendant-government agencies, jointly and
solidarily, to clean up and rehabilitate Manila Bay and
restore its waters to SB classification to make it fit for
swimming, skin-diving and other forms of contact
recreation.

To attain this, defendant-agencies, with defendant DENR as
the lead agency, are directed, within six (6) months from
receipt hereof, to act and perform their respective duties by
devising a consolidated, coordinated and concerted scheme
of action for the rehabilitation and restoration of the bay.

In particular:
Defendant MWSS is directed to install, operate and maintain
adequate [sewerage] treatment facilities in strategic places
under its jurisdiction and increase their capacities.

Defendant LWUA, to see to it that the water districts under
its wings, provide, construct and operate sewage facilities
for the proper disposal of waste.

Defendant DENR, which is the lead agency in cleaning up
Manila Bay, to install, operate and maintain waste facilities
to rid the bay of toxic and hazardous substances.

Defendant PPA, to prevent and also to treat the discharge
not only of ship-generated wastes but also of other solid and
liquid wastes from docking vessels that contribute to the
pollution of the bay.

Defendant MMDA, to establish, operate and maintain an
adequate and appropriate sanitary landfill and/or adequate
solid waste and liquid disposal as well as other alternative
garbage disposal system such as re-use or recycling of
wastes.

Defendant DA, through the Bureau of Fisheries and Aquatic
Resources, to revitalize the marine life in Manila Bay and
restock its waters with indigenous fish and other aquatic
animals.

Defendant DBM, to provide and set aside an adequate


budget solely for the purpose of cleaning up and
rehabilitation of Manila Bay.

Defendant DPWH, to remove and demolish structures and
other nuisances that obstruct the free flow of waters to the
bay. These nuisances discharge solid and liquid wastes
which eventually end up in Manila Bay. As the construction
and engineering arm of the government, DPWH is ordered
to actively participate in removing debris, such as carcass of
sunken vessels, and other non-biodegradable garbage in the
bay.

Defendant DOH, to closely supervise and monitor the
operations of septic and sludge companies and require them
to have proper facilities for the treatment and disposal of
fecal sludge and sewage coming from septic tanks.

Defendant DECS, to inculcate in the minds and hearts of the
people through education the importance of preserving and
protecting the environment.

Defendant Philippine Coast Guard and the PNP Maritime
Group, to protect at all costs the Manila Bay from all forms
of illegal fishing.

The Court of Appeals Sustained the RTCs Decision

The MWSS, Local Water Utilities Administration (LWUA),
and PPA filed before the Court of Appeals (CA) individual
Notices of Appeal. On the other hand, the DENR,
Department of Public Works and Highways (DPWH),
Metropolitan Manila Development Authority (MMDA),
Philippine Coast Guard (PCG), Philippine National Police
(PNP) Maritime Group, and five other executive
departments and agencies filed directly with this Court a
petition for review under Rule 45.

In the light of the ongoing environmental degradation, the
Court wishes to emphasize the extreme necessity for all
concerned executive departments and agencies to
immediately act and discharge their respective official
duties and obligations. Indeed, time is of the essence; hence,
there is a need to set timetables for the performance and
completion of the tasks, some of them as defined for them
by law and the nature of their respective offices and
mandates.

The importance of the Manila Bay as a sea resource,
playground, and as a historical landmark cannot be overemphasized. It is not yet too late in the day to restore the
Manila Bay to its former splendor and bring back the plants

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 13

and sea life that once thrived in its blue waters. But the
tasks ahead, daunting as they may be, could only be
accomplished if those mandated, with the help and
cooperation of all civic-minded individuals, would put their
minds to these tasks and take responsibility. This means
that the State, through petitioners, has to take the lead in
the preservation and protection of the Manila Bay.

So it was that in Oposa v. Factoran, Jr. the Court stated that
the right to a balanced and healthful ecology need not even
be written in the Constitution for it is assumed, like other
civil and political rights guaranteed in the Bill of Rights, to
exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational
implications. Even assuming the absence of a categorical
legal provision specifically prodding petitioners to clean up
the bay, they and the men and women representing them
cannot escape their obligation to future generations of
Filipinos to keep the waters of the Manila Bay clean and
clear as humanly as possible. Anything less would be a
betrayal of the trust reposed in them.

By a Decision of September 28, 2005, the CA denied
petitioners appeal and affirmed the Decision of the RTC in
toto, stressing that the trial courts decision did not require
petitioners to do tasks outside of their usual basic functions
under existing laws.

3.Manila Prince Hotel v. GSIS [1997]
INCLUDES THE NATIONAL RESOURCES AND CULTURAL
HERITAGE. When the Constitution speaks of national
patrimony, it refers not only to the natural resources of the
Philippines, as the Constitution could have very well used
the term natural resources, but also to the cultural
heritageof the Filipinos.
PADILLA, J., concurring opinion:
1. POLITICAL LAW; CONSTITUTION; PATRIMONY OF THE
NATION, CONSTRUED. A study of the 1935 Constitution,
where the concept of "national patrimony" originated,
would show that its framers decided to adopt the even more
comprehensive expression "Patrimony of the Nation" in the
belief that the phrase encircles a concept embracing not
only the natural resources of the country but practically
everything that belongs to the Filipino people, the tangible
and the material as well as the intangible and the spiritual
assets and possessions of the people. It is to be noted that
the framers did not stop with conservation. They knew that
conservation alone does not spell progress; and that this
may be achieved only through development as a correlative
factor to assure to the people not only the exclusive
ownership, but also the exclusive benefits of their national

patrimony. Moreover, the concept of national patrimony has


been viewed as referring not only to our rich natural
resources but also to the cultural heritage of our race. There
is no doubt in my mind that the Manila Hotel is very much a
part of our national patrimony and, as such deserves
constitutional protection as to who shall own it and benefit
from its operation. This institution has played an important
role in our nation's history, having been the venue of many
a historical event, and serving as it did, and as it does, as the
Philippine Guest House for visiting foreign heads of state,
dignitaries, celebrities, and others.
2. ID.; ID.; MANILA HOTEL, PART OF OUR NATIONAL
PATRIMONY. There is no doubt in my mind that
the Manila Hotel is very much a part of our national
patrimony and, as such, deserves constitutional protection
as to who shall own it and benefit from its operation. This
institution has played an important role in our nation's
history, having been the venue of many a historical event,
and serving as it did, and as it does, as the Philippine Guest
House for visiting foreign heads of state, dignitaries,
celebrities, and others.
VITUG, J., separate opinion:
1. POLITICAL LAW; CONSTITUTION; NATIONAL
PATRIMONY; PROVISION GIVING PREFERENCE TO
QUALIFIED FILIPINOS, SELF-EXECUTORY. The provision
in our fundamental law which provides that "(i)n the grant
of rights, privileges, and concessions covering the national
economy and patrimony, the State shall give preference to
qualified Filipinos" is self-executory. The provision verily
does not need, although it can obviously be amplified or
regulated by, an enabling law or a set of rules.
2. ID.; ID.; ID.; PATRIMONY INCLUDES CULTURAL
HERITAGE OF THE COUNTRY; MANILA HOTEL, EMBRACED
THEREIN. The term "patrimony" does not merely refer to
the country's natural resources but also to its cultural
heritage. A "historical landmark," to use the words of Mr.
Justice Justo P. Torres, Jr., Manila Hotel has now indeed
become part of Philippine heritage.
PUNO, J., dissenting opinion:
MANILA HOTEL CORPORATION, PART OF THE NATIONAL
PATRIMONY. The second issue is whether the sale of a
majority of the stocks of the Manila Hotel Corporation
involves the disposition of part of our national patrimony.
The records of the Constitutional Commission show that the
Commissioners entertained the same view as to its meaning.
According to Commissioner Nolledo, "patrimony" refers not
only to our rich natural resources but also to the cultural
heritage of our race. By this yardstick, the sale
of Manila Hotel falls within the coverage of the

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 14

constitutional provision giving preferential treatment to


qualified Filipinos in the grant of rights involving our
national patrimony.
CASE AT BAR. The right of preference of petitioner arises
only if it tied the bid of Renong Berhad. In that instance, all
things stand equal, and petitioner, as a qualified Filipino
bidder, should be preferred. It is with deep regret that I
cannot subscribe to the view that petitioner has a right to
match the bid of Renong Berhad. Petitioner's submission
must be supported by the rules but even if we examine the
rules inside-out a thousand times, they can not justify the
claimed right. Under the rules, the right to match the highest
bid arises only "if for any reason, the highest bidder cannot
be awarded the block of shares . . . ." No reason has arisen
that will prevent the award to Renong Berhad. It deserves
the award as a matter of right for the rules clearly did not
give to the petitioner as a qualified Filipino the privilege to
match the higher bid of a foreigner. What the rules did not
grant, petitioner cannot demand. Our sympathies may be
with petitioner but the court has no power to extend the
latitude and longitude of the right of preference as defined
by the rules. We are duty-bound to respect that
determination even if we differ with the wisdom of their
judgment. The right they grant may be little but we must
uphold the grant for as long as the right of preference is not
denied. It is only when a State action amounts to a denial of
the right that the Court can come in and strike down the
denial as unconstitutional.
4. E.O. 192 of 1987
EXECUTIVE ORDER NO. 192 - PROVIDING FOR THE
REORGANIZATION OF THE DEPARTMENT OF
ENVIRONMENT, ENERGY AND NATURAL RESOURCES,
RENAMING IT AS THE DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, AND FOR OTHER PURPOSES

SECTION 1. Title. This Executive Order shall otherwise be
known as the Reorganization Act of the Department of
Environment and Natural Resources.

SECTION 2. Reorganization. The Department of
Environment, Energy and Natural Resources is hereby
reorganized structurally and functionally and renamed as
the Department of Environment and Natural Resources,
hereinafter referred to as Department, in accordance with
the provisions of this Executive Order.

SECTION 3. Declaration of Policy. It is hereby declared the
policy of the State to ensure the sustainable use,
development, management, renewal, and conservation of
the countrys forest, mineral, land, off-shore areas and other
natural resources, including the protection and
enhancement of the quality of the environment, and
equitable access of the different segments of the population
to the development and use of the countrys natural

resources, not only for the present generation but for future
generations as well. It is also the policy of the state to
recognize and apply a true value system including social and
environmental cost implications relative to their utilization,
development and conservation of our natural resources.

SECTION 4. Mandate. The Department shall be the primary
government agency responsible for the conservation,
management, development and proper use of the countrys
environment and natural resources, specifically forest and
grazing lands, mineral resources, including those in
reservation and watershed areas, and lands of the public
domain, as well as the licensing and regulation of all natural
resources as may be provided for by law in order to ensure
equitable sharing of the benefits derived therefrom for the
welfare of the present and future generations of Filipinos.

To accomplish its mandate, the Department shall be guided
by the following objectives that will serve as basis for policy
formulation:

(a) Assure the availability and sustainability of the countrys
natural resources through judicious use and systematic
restoration or replacement, whenever possible;
(b) Increase the productivity of natural resources in order
to meet the demands for forest, mineral, and land
resources of a growing population;
(c) Enhance the contribution of natural resources for
achieving national economic and social development;
(d) Promote equitable access to natural resources by the
different sectors of the population;
(e) Conserve specific terrestrial and marine areas
representative of the Philippine natural and cultural
heritage for present and future generations.

SECTION 5. Powers and Functions. To accomplish its
mandate, the Department shall have the following powers
and functions:

(a) Advise the President on the enactment of laws relative
to the development, use, regulation, and conservation of
the countrys natural resources and the control of
pollution;
(b) Formulate, implement, and supervise the governments
policies, plans and programs pertaining to the
management, conservation, development, use and
replenishment of the countrys natural resources;
(c) Promulgate rules and regulations in accordance with law
governing the exploration, development, conservation,
extraction, disposition, use and such other commercial
activities tending to cause the depletion and degradation
of our natural resources;
(d) Exercise supervision and control over forest lands,
alienable and disposable lands, and mineral resources
and in the process of exercising such control the
Department shall impose appropriate payments, fees,
charges, rentals and any such form of levy and collect

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 15

such revenues for the exploration, development,


utilization or gathering of such resources;
(e) Undertake exploration, assessment, classification and
inventory of the countrys natural resources using
ground surveys, remote sensing and complementary
technologies;
(f) Promote proper and mutual consultation with the
private sector involving natural resources development,
use and conservation;
(g) Undertake geological surveys of the whole country
including its territorial waters;
(h) Establish policies and implement programs for the:
(1) Accelerated inventory, surveys and classification of
lands, forest, and mineral resources using appropriate
technology, to be able to come up with a more accurate
assessment of resource quality and quantity;
(2) Equitable distribution of natural resources through
the judicious administration, regulation, utilization,
development and conservation of public lands, forest,
and mineral resources (including mineral reservation
areas), that would benefit a greater number of Filipinos;
(3) Promotion, development and expansion of natural
resource-based industries;
(4) Preservation of cultural and natural heritage through
wildlife conservation and segregation of national parks
and other protected areas;
(5) Maintenance of a wholesome natural environment by
enforcing environmental protection laws; and
(6) Encouragement of greater people participation and
private initiative in natural resource management.

(i) Promulgate rules and regulations necessary to:
(1) Accelerate cadastral and emancipation patent
surveys, land use planning and public land titling;
(2) Harness forest resources in a sustainable manner, to
assist rural development, support forest-based
industries, and provide raw materials to meet increasing
demands, at the same time keeping adequate reserves
for environmental stability; and
(3) Expedite mineral resources surveys, promote the
production of metallic and non-metallic minerals and
encourage mineral marketing.

(j) Regulate the development, disposition, extraction,
exploration and use of the countrys forest, land and
mineral resources;
(k) Assume responsibility for the assessment, development,
protection, conservation, licensing and regulation as
provided for by law, where applicable, of all natural
resources; the regulation and monitoring of service
contractors, licensees, lessees, and permittees for the
extraction, exploration, development and utilization of
natural resource products; the implementation of
programs and measures with the end in view of
promoting close collaboration between the government
and the private sector; the effective and efficient
classification and sub-classification of lands of the public

domain; and the enforcement of natural resources laws,


rules and regulations;
(l) Promulgate rules, regulations and guidelines on the
issuance of co-production, joint venture or production
sharing agreements, licenses, permits, concessions,
leases and such other privileges and arrangement
concerning the development, exploration and utilization
of the countrys natural resources and shall continue to
oversee, supervise and police our natural resources; to
cancel or cause to cancel such privileges and
arrangements upon failure, non-compliance or violations
of any regulations, orders, and for all other causes which
are in furtherance of the conservation of natural
resources and supportive of the national interests;
(m) Exercise exclusive jurisdiction on the management and
disposition of all lands of the public domain and shall
continue to be the sole agency responsible for
classification, sub-classification, surveying and titling of
lands in consultation with appropriate agencies.
(n) Implement measures for the regulation and supervision
of the processing of forest products, grading and
inspection of lumber and other forest products and
monitoring of the movement of timber and other forest
products;
(o) Promulgate rules and regulations for the control of
water, air and land pollution;
(p) Promulgate ambient and effluent standards for water
and air quality including the allowable levels of other
pollutants and radiations;
(q) Promulgate policies, rules and regulations for the
conservation of the countrys genetic resources and
biological diversity, and endangered habitats;
(r) Formulate an integrated, multi-sectoral, and multidisciplinary National Conservation Strategy, which will
be presented to the Cabinet for the Presidents approval;
(s) Exercise other powers and functions and perform such
other acts as may be necessary, proper or incidental to
the attainment of its mandates and objectives.

SECTION 6. Structural Organization. The Department shall
consist of the Department Proper, the staff offices, the staff
bureaus and the regional/provincial/community natural
resources offices.

The Department Proper shall consist of the following:
(a) Office of the Secretary
(b) Offices of Undersecretaries
(c) Offices of Assistant Secretaries
(d) Public Affairs Office
(e) Special Concerns Office
(f) Pollution Adjudication Board

The staff sectoral bureaus on the other hand, shall be
composed of:
(a) Forest Management Bureau
(b) Lands Management Bureau
(c) Mines and Geo-Sciences Bureau
(d) Environmental Management Bureau

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 16

(e) Ecosystems Research and Development Bureau


(f) Protected Areas and Wildlife Bureau

SECTION 22. Attached Agencies and Corporations. The
following agencies and corporations are attached to the
Department:
(a) National Mapping and Resource Information Authority.
(b) Natural Resources Development Corporation.
(c) The National Electrification Administration.

5. PAB v. Solar Textile Co [1991]
G.R. No. 93891, 11 March 1991
Third Division, Feliciano (J), 4 concur
2. POLITICAL LAW; POLICE POWER; ENACTMENT OF
POLLUTION CONTROL STATUTES AND IMPLEMENTING
REGULATIONS, AN EXERCISE THEREOF. The relevant
pollution control statute and implementing regulations
were enacted and promulgated in the exercise of that
persuasive, sovereign power to protect the safety, health,
and general welfare and comfort of the public, as well as the
protection of plant and animal life, commonly designated as
the police power.

3. CONSTITUTIONAL LAW; DUE PROCESS; YIELDS TO THE
EXERCISE OF POLICE POWER. It is a constitutional
common place that the ordinary requirements of procedural
due process yield to the necessities of protecting vital public
interests like those here involved, through the exercise of
police power.
Pollution Adjudication Board vs. CA et al.

FACTS: Respondent, Solar Textile Finishing Corporation was
involved in bleaching, rinsing and dyeing textiles with
wastewater being directly discharged into a canal leading to
the adjacent Tullahan- Tinerejos River. Petitioner Board, an
agency of the Government charged with the task of
determining whether the effluents of a particular industrial
establishment comply with or violate applicable antipollution statutory and regulatory provisions, have been
remarkably forbearing in its efforts to enforce the
applicable standards vis-a-vis Solar. Solar, on the other
hand, seemed very casual about its continued discharge of
untreated, pollutive effluents into the river. Petitioner
Board issued an ex parte Order directing Solar immediately
to cease and desist from utilizing its wastewater pollution
source installations. Solar, however, with preliminary
injunction against the Board, went to the Regional Trial
Court on petition for certiorari, but it was dismissed upon
two (2) grounds, i.e., that appeal and not certiorari from the
questioned Order of the Board as well as the Writ of
Execution was the proper remedy, and that the Board's
subsequent Order allowing Solar to operate temporarily
had rendered Solar's petition moot and academic.
Dissatisfied, Solar went on appeal to the Court of Appeals,
which reversed the Order of dismissal of the trial court and
remanded the case to that court for further proceedings. In
addition, the Court of Appeals declared the Writ of
Execution null and void. At the same time, the CA said that

certiorari was a proper remedy since the Orders of


petitioner Board may result in great and irreparable injury
to Solar; and that while the case might be moot and
academic, "larger issues" demanded that the question of due
process be settled. Petitioner Board moved for
reconsideration, without success.

Arguing that that the ex parte Order and the Writ of
Execution were issued in accordance with law and were not
violative of the requirements of due process; and the ex
parte Order and the Writ of Execution are not the proper
subjects of a petition for certiorari, Oscar A. Pascua and
Charemon Clio L. Borre for petitioner asked the Supreme
Court to review the Decision and Resolution promulgated
by the Court of Appeals entitled "Solar Textile Finishing
Corporation v. Pollution Adjudication Board," which
reversed an order of the Regional Trial Court. In addition,
petitioner Board claims that under P.D. No. 984, Section
7(a), it has legal authority to issue ex parte orders to
suspend the operations of an establishment when there is
prima facie evidence that such establishment is discharging
effluents or wastewater, the pollution level of which
exceeds the maximum permissible standards set by the
NPCC (now, the Board). Petitioner Board contends that the
reports before it concerning the effluent discharges of Solar
into the River provided prima facie evidence of violation by
Solar of Section 5 of the 1982 Effluent Code. Solar, on the
other hand, contends that under the Board's own rules and
regulations, an ex parte order may issue only if the effluents
discharged pose an "immediate threat to life, public health,
safety or welfare, or to animal and plant life." In the instant
case, according to Solar, the inspection reports before the
Board made no finding that Solar's wastewater discharged
posed such a threat.

ISSUE: Whether or not the Court of Appeals erred in
reversing the trial court on the ground that Solar had been
denied due process by the Board.

HELD: The Court found that the Order and Writ of Execution
were entirely within the lawful authority of petitioner
Board. Ex parte cease and desist orders are permitted by
law and regulations in situations like here. The relevant
pollution control statute and implementing regulations
were enacted and promulgated in the exercise of that
pervasive, sovereign power to protect the safety, health, and
general welfare and comfort of the public, as well as the
protection of plant and animal life, commonly designated as
the police power. It is a constitutional commonplace that
the ordinary requirements of procedural due process yield
to the necessities of protecting vital public interests like
those here involved, through the exercise of police power.
Hence, the trial court did not err when it dismissed Solar's
petition for certiorari. It follows that the proper remedy was
an appeal from the trial court to the Court of Appeals, as
Solar did in fact appeal. The Court gave due course on the
Petition for Review and the Decision of the Court of Appeals
and its Resolution were set aside. The Order of petitioner

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 17

Board and the Writ of Execution, as well as the decision of


the trial court were reinstated, without prejudice to the
right of Solar to contest the correctness of the basis of the
Board's Order and Writ of Execution at a public hearing
before the Board.

6. Laguna Lake Development Auth v. CA [1995]
HERMOSISIMA, JR., J p:
POLITICAL LAW; LOCAL GOVERNMENT; REPUBLIC ACT NO.
7160; DOES NOT CONTAIN ANY EXPRESS PROVISION
CATEGORICALLY REPEALING THE CHARTER OF THE
LAGUNA LAKE DEVELOPMENT AUTHORITY. We hold
that the provisions of Republic Act No. 7160 do not
necessarily repeal the aforementioned laws creating the
Laguna Lake Development Authority and granting the latter
water rights authority over Laguna de Bay and the lake
region. The Local Government Code of 1991 does not
contain any express provision which categorically expressly
repeal the charter of the Authority. It has to be conceded
that there was no intent on the part of the legislature to
repeal Republic Act No. 4850 and its amendments. The
repeal of laws should be made clear and expressed.

ADMINISTRATIVE AGENCIES; LAGUNA LAKE
DEVELOPMENT AUTHORITY; A REGULATORY AND QUASIJUDICIAL BODY. In respect to the question as to whether
the Authority is a quasi-judicial agency or not, it is our
holding that, considering the provisions of Section 4 of
Republic Act No. 4850 and Section 4 of Executive Order No.
927, series of 1983, and the ruling of this Court in Laguna
Lake Development Authority vs. Court of Appeals,231 SCRA
304, 306, which we quote: ". . . As a general rule, the
adjudication of pollution cases generally pertains to the
Pollution Adjudication Board (PAB), except in cases where
the special law provides for another forum. It must be
recognized in this regard that the LLDA, as a specialized
administrative agency, is specifically mandated under
Republic Act No. 4850 and its amendatory laws to carry out
and make effective the declared national policy of
promoting and accelerating the development and balanced
growth of the Laguna Lake area and the surrounding
provinces of Rizal and Laguna and the cities of San Pablo,
Manila, Pasay, Quezon and Caloocan with due regard and
adequate provisions for environmental management and
control, preservation of the quality of human life and
ecological systems, and the prevention of undue ecological
disturbances, deterioration and pollution. Under such a
broad grant of power and authority, the LLDA, by virtue of
its special charter, obviously has the responsibility to
protect the inhabitants of the Laguna Lake region from the
deleterious effects of pollutants emanating from the
discharge of wastes from the surrounding areas. In carrying
out the aforementioned declared policy, the LLDA is
mandated, among others, to pass upon and approve or
disapprove all plans, programs, and projects proposed by
local government offices/agencies within the region, public
corporations, and private persons or enterprises where
such plans, programs and/or projects are related to those of

the LLDA for the development of the region. . . . While it is a


fundamental rule that an administrative agency has only
such powers as are expressly granted to it by law, it is
likewise a settled rule that an administrative agency has
also such powers as are necessarily implied in the exercise
of its express powers. In the exercise, therefore, of its
express powers under its charter, as a regulatory and quasijudicial body with respect to pollution cases in the Laguna
Lake region, the authority of the LLDA to issue a 'cease and
desist order' is, perforce, implied. Otherwise, it may well be
reduced to a 'toothless' paper agency." There is no question
that the Authority has express powers as a regulatory and
quasi-judicial body in respect to pollution cases with
authority to issue a "cease and desist order" and on matters
affecting the construction of illegal fishpens, fishcages and
other aqua-culture structures in Laguna de Bay. The
Authority's pretense, however, that it is co-equal to the
Regional Trial Courts such that all actions against it may
only be instituted before the Court of Appeals cannot be
sustained. On actions necessitating the resolution of legal
questions affecting the powers of the Authority as provided
for in its charter, the Regional Trial Courts have jurisdiction.

4. ID.; ID.; ID.; HAS EXCLUSIVE JURISDICTION TO ISSUE
PERMITS FOR THE ENJOYMENT OF FISHERY PRIVILEGES
IN LAGUNA DE BAY TO THE EXCLUSION OF
MUNICIPALITIES SITUATED THEREIN AND THE
AUTHORITY TO EXERCISE SUCH POWERS AS ARE BY ITS
CHARTER VESTED ON IT. This Court holds that Section
149 of Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, has not repealed the provisions
of the charter of the Laguna Lake Development Authority,
Republic Act No. 4850, as amended. Thus, the Authority has
the exclusive jurisdiction to issue permits for the enjoyment
of fishery privileges in Laguna de Bay to the exclusion of
municipalities situated therein and the authority to exercise
such powers as are by its charter vested on it. Removal from
the Authority of the aforesaid licensing authority will
render nugatory its avowed purpose of protecting and
developing the Laguna Lake Region. Otherwise stated, the
abrogation of this power would render useless its reason for
being and will in effect denigrate, if not abolish, the Laguna
Lake Development Authority. This, the Local Government
Code of 1991 had never intended to do.

7. RA 7611: Strategic Environmental Plan for Palawan
Sec.1 Title. This Act shall be known as the "Strategic
Environmental Plan (SEP) for Palawan Act."

Sec.2 Declaration of Policy. It is hereby declared the policy
of the State to protect, develop and conserve its natural
resources. Toward this end, it shall assist and support the
implementation of plans, programs and projects formulated
to preserve and enhance the environment, and at the same
time pursue the socioeconomic development goals of the
country.

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 18

It shall support and promote the sustainable development


goals for the provinces through proper conservation,
utilization and development of natural resources to provide
optimum yields on a continuing basis. With specific
reference to forest resources, the
State shall pursue and implement forest conservation and
protection through the imposition of a total commercial
logging ban as hereinafter provided.

It shall also adopt the necessary measures leading to the
creation of an institutional machinery including, among
others, fiscal and financial programs to ensure the effective
and efficient implementation of environmental plans,
programs, and projects.

It shall also promote and encourage the involvement of all
sectors of society and maximize people participation in
natural resource management, conservation and protection.

Sec. 3 Definition of Terms. - As used in this Act, the following
terms are defined as follows:
(1) "Palawan" refers to the Philippine province composed of
islands and islets located 70 47' and 120 22' north latitude
and 1170 00' and 110 951' east longitude, generally
bounded by the South China Sea to the northwest and by the
Sulu Sea to the east;
(2) "Sustainable development" means the improvement in
the quality of life of the present and future generations
through the complementation of development and
environmental protection activities;
(3) "Natural resources" refers to life-support systems such
as the sea, coral reefs, soil, lakes, rivers, streams, and forests
as well as useful products found therein such as minerals,
wildlife, trees and other plants, including the aesthetic
attributes
of scenic sites that are not man-made;
(4) "Tribal land areas" refers to the areas comprising both
land and sea that are traditionally occupied by the cultural
minorities;
(5) "Environmentally critical areas" refers to terrestrial,
aquatic and marine areas that need special protection and
conservation measures as they are ecologically fragile;
(6) "Participatory processes" means the involvement of all
the key sectors of development, from the grassroots to the
policy-making bodies of the National Government, in
providing the values and ideas from which strategic
development and environmental protection action can come
about;
(7) "Conservation" refers to the wise use of natural
resources that assures regeneration and replenishment for
continuous benefit;
(8) "Ecology" refers to the life-sustaining interrelationship
and interactions of organisms with each other and with
their physical surroundings;
(9) "Commercial logging" refers to the cutting, felling or
destruction of trees from old growth and residual forests for
the purpose of selling or otherwise disposing of the cut or
felled logs for profit;

(10) "SEP" refers to the Strategic Environmental Plan


discussed in Section 4 of this Act;
(11) "ECAN" refers to the Environmentally Critical Areas
Network as provided in Section 7 of this Act; and
(I2) "EMES" refers to the Environmental Monitoring and
Evaluation System provided in Section 13 of this Act.

Sec.4 Strategic Environmental Plan. -A comprehensive,
framework for the sustainable development of Palawan
compatible with protecting and enhancing the natural
resources and endangered environment of the province is
hereby adopted. Such framework shall be known as the
Strategic Environmental Plan for Palawan, hereinafter
referred to as SEP and shall serve to guide the local
government of Palawan and the government agencies
concerned in the formulation and implementation of plans,
programs and projects affecting said province.
Sec. 5 Strategic Environmental Plan (SEP) Philosophy. - The
SEP shall have, as its general philosophy, the sustainable
development of Palawan, which is the improvement in the
quality of life of its people in the present and future
generations through the use of complementary activities of
development and conservation that protect life-support
ecosystems and rehabilitate exploited areas to allow
upcoming generations to sustain development growth. It
shall have the following features:

(1) Ecological viability - The physical and biological cycles
that maintain the productivity of natural ecosystems must
always be kept intact;
(2) Social acceptability - The people themselves, through
participatory processes, should be fully committed to
support sustainable development activities by fostering
equity in access to resources and the benefits derived from
them; and
(3) Integrated approach - This allows for a holistic view of
problems and issues obtaining in the environment as well as
opportunities for coordination and sharing that will
eventually provide the resources and political will to
actually implement and sustain SEP activities.

Sec.7 Environmentally Critical Areas Network (ECAN) -The
SEP shall establish a graded system of protection and
development control over the whole of Palawan, including
its tribal lands forests, mines, agricultural areas, settlement
areas, small islands, mangroves, coral reefs, sea grass beds
and the surrounding sea. This shall be known as the
Environmentally Critical Areas Network, hereinafter
referred to as ECAN, and shall serve as the main strategy of
the SEP.

The ECAN shall ensure the following:
(I) Forest conservation and protection through the
imposition of a total commercial logging ban in all areas of
maximum protection and in such other restricted use zones
as the Palawan Council for Sustainable Development as
hereinafter created may provide;
(2) Protection of watersheds;

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 19

(3) Preservation of biological diversity;



(4) Protection of tribal people and the preservation of their
culture. (5) Maintenance of maximum sustainable yield;
(6) Protection of the rare and endangered species and their
habitat;
(7) Provision of areas [or environmental and ecological
research, education and training; and
(8) Provision of areas for tourist and recreation.

Sec.8 Main Components. - The areas covered by the ECAN
shall be classified into three (3) main components;
(1) Terrestrial - The terrestrial component shall consist
of the mountainous as well as ecologically
important low hills and lowland areas of the whole
province. It may be further subdivided into smaller
management components;
(2) Coastal/marine area - This area includes the whole
coastline up to the open sea. This is characterized
by active fisheries and tourism activities; and
(3) Tribal ancestral lands -These are the areas
traditionally occupied by the cultural communities.

8. Tano v. Socrates [1997]
DAVIDE, JR., J p:
On December 15, 1992, the Sangguniang Panlungsod of
Puerto Princesa City enacted Ordinance No. 15-92 banning
the shipment of all live fish and lobster outside Puerto
Princesa City effective for five years. To implement the
ordinance, the City Mayor of Puerto Princesa City issued
Office Order No. 23 dated January 23, 1993, ordering
inspections on cargoes containing live fish and lobster being
shipped out from air and sea. Likewise, on February 19,
1993, the Sangguniang Panlalawigan of the Provincial
Government of Palawan, enacted Resolution No. 33 and
Ordinance No. 2, series of 1993, prohibiting the catching,
gathering, possessing, buying, selling and shipment of live
marine coral dwelling aquatic organisms for a period of five
years.

Petitioners challenged the aforementioned ordinances and
office order on the ground that it deprived them of due
process of law, their livelihood, and unduly restricted them
from the practice of their trade.

The Supreme Court ruled that the challenged ordinances do
not suffer any infirmity, both under the Constitution and
applicable laws, including the Local Government Code.
There is no showing that any of the petitioners qualifies as a
subsistence or marginal fisherman.

The Local Government Code vests municipalities with the
power to grant fishery privileges in municipal waters and
impose rentals, fees or charges therefor. The Sangguniangs
are directed to enact ordinances that protect the
environment and impose appropriate penalties for acts
which endanger the environment such as dynamite fishing
and other forms of destructive fishing. One of the devolved

powers under the Code is the enforcement of fishery laws in


municipal waters including the conservation of mangroves.
In light then of the principles of decentralization and
devolution and the powers granted therein to local
government units under the General Welfare Clause and
those which involve the exercise of police power, the
validity of the questioned Ordinances cannot be doubted.

The ordinances find full support under R.A. 7611, otherwise
known as the Strategic Environment Plan (SEP) for Palawan
Act, approved on 19 June 1992 which adopts a
comprehensive framework for the sustainable development
of Palawan compatible with protecting and enhancing the
natural resources and endangered environment of the
province.

The dissenting opinion of Justice Bellosillo relies upon the
lack of authority on the part of the Sangguniang Panlungsod
of Puerto Princesa to enact Ordinance No. 15, series of 1992,
as the subject thereof is within the jurisdiction and
responsibility of the Bureau of Fisheries and Aquatic
Resources (BFAR) under P.D. No. 704, the Fisheries Decree
of 1975, and the ordinance is unenforceable for lack of
approval by the Secretary of the Department of
Environment and Natural Resources (DENR) under P.D.
704. But BFAR is no longer under the Department of Natural
Resources (now DENR), but under the Ministry of
Agriculture and Food and converted into a mere staff
agency thereof. The approval that should be sought would
be that of the Secretary of the Department of Agriculture.
However, the requirement of approval by the Secretary has
been dispensed with.

SYLLABUS:
CONSTITUTIONAL LAWS; SOCIAL JUSTICE AND HUMAN
RIGHTS; AGRARIAN AND NATURAL RESOURCES REFORM;
SUBSISTENCE FISHERMEN; DISTINGUISHED FROM
MARGINAL FISHERMEN. Since the Constitution does not
specifically provide a definition of the terms "subsistence"
or "marginal" fishermen, they should be construed in their
general and ordinary sense. A marginal fisherman is an
individual engaged in fishing whose margin of return or
reward in his harvest of fish as measured by existing price
levels is barely sufficient to yield a profit or cover the cost of
gathering the fish, while a subsistence fisherman is one
whose catch yields but the irreducible minimum for his
livelihood. Section 131(p) of the LGC (R.A. No. 7160) defines
a marginal farmer or fisherman as "an individual engaged in
subsistence farming or fishing which shall be limited to the
sale, barter or exchange of agricultural or marine products
produced by himself and his immediate family." It bears
repeating that nothing in the record supports a finding that
any petitioner falls within these definitions.
6. ID.; ID.; ID.; PREFERENTIAL RIGHT OF SUBSISTENCE OR
MARGINAL FISHERMEN TO THE USE OF MARINE
RESOURCES IS NOT AT ALL ABSOLUTE. Anent Section 7
of Article XIII, it speaks not only of the use of communal
marine and fishing resources, but of their protection,

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 20

development and conservation. As hereafter shown, the


ordinances in question are meant precisely to protect and
conserve our marine resources to the end that their
enjoyment may be guaranteed not only for the present
generation, but also for the generations to come. The socalled "preferential right" of subsistence or marginal
fishermen to the use of marine resources is not at all
absolute. In accordance with the Regalian Doctrine, marine
resources belong to the State, and, pursuant to the first
paragraph of Section 2, Article XII of the Constitution, their
"exploration, development and utilization . . . shall be under
the full control and supervision of the State." Moreover,
their mandated protection, development and conservation
as necessarily recognized by the framers of the Constitution,
imply certain restrictions on whatever right of enjoyment
there may be in favor of anyone.

LGC HAS THE POWER TO ENFORCE FISHERIES LAWS IN
MUNICIPAL WATERS INCLUDING THE CONSERVATION OF
MANGROVE. One of the devolved powers enumerated in
the section of the LGC on devolution is the enforcement of
fishery laws in municipal waters including the conservation
of mangroves. This necessarily includes the enactment of
ordinances to effectively carry out such fishery laws within
the municipal waters. The term "municipal waters," in turn,
includes not only streams, lakes, and tidal water within the
municipality, not being the subject of private ownership and
not comprised within the national parks, public forest,
timber lands, forest reserves, or fishery reserves, but also
marine waters included between two lines drawn
perpendicularly to the general coastline from points where
the boundary lines of the municipality or city touch the sea
at low tide and a third line parallel with the general
coastline and fifteen kilometers from it. Under P.D. No. 704,
the marine waters included in municipal waters is limited to
three nautical miles from the general coastline using the
above perpendicular lines and a third parallel line. cTDaEH
10. ID.; ID.; ID.; SCOPE. These "fishery laws" which local
government units may enforce under Section 17(b)(2)(i) in
municipal waters include: (1) P.D. No. 704; (2) P.D. No.
1015 which, inter alia, authorizes the establishment of a
"closed season" in any Philippine water if necessary for
conservation or ecological purposes; (3) P.D. No.
1219 which provides for the exploration, exploitation,
utilization and conservation of coral resources; (4) R.A. No.
5474, as amended by B.P. Blg. 58, which makes it unlawful
for any person, association or corporation to catch or cause
to be caught, sell, offer to sell, purchase, or have in
possession any of the fish specie called gobiidae or "ipon"
during closed season; and (5) R.A. No. 6451 which prohibits
and punishes electrofishing, as well as various issuances of
the BFAR. To those specifically devolved insofar as the
control and regulation of fishing in municipal waters and

the protection of its marine environment are concerned,


must be added the following: 1. Issuance of permits to
construct fish cages within municipal waters; 2. Issuance of
permits to gather aquarium fishes within municipal waters;
3. Issuance of permits to gather kapis shells within
municipal waters; 4. Issuance of permits to gather/culture
shelled mollusks within municipal waters; 5. Issuance of
licenses to establish seaweed farms within municipal
waters; 6. Issuance of licenses to establish culture pearls
within municipal waters; 7. Issuance of auxiliary invoice to
transport fish and fishery products; and 8. Establishment of
"closed season" in municipal waters. These functions are
covered in the Memorandum of Agreement of 5 April 1994
between the Department of Agriculture and the Department
of Interior and Local Government.
11. ID.; ID.; HAS THE POWER, INTER ALIA, TO ENACT
ORDINANCE TO ENHANCE THE RIGHT OF THE PEOPLE TO
A BALANCED ECOLOGY. Under the general welfare
clause of the LGC, local government units have the
power, inter alia, to enact ordinances to enhance the right of
the people to a balanced ecology. It likewise specifically
vests municipalities with the power to grant fishery
privileges in municipal waters, and impose rentals, fees or
charges therefor; to penalize, by appropriate ordinances,
the use of explosives, noxious or poisonous substances,
electricity, muro-ami, and other deleterious methods of
fishing; and to prosecute any violation of the provisions of
applicable fishery laws. Finally, it imposes upon
the sangguniang bayan, thesangguniang panlungsod, and
the sangguniang panlalawigan the duty to enact ordinances
to "[p]rotect the environment and impose appropriate
penalties for acts which endanger the environment such as
dynamite fishing and other forms of destructive fishing . . .
and such other activities which result in pollution,
acceleration of eutrophication of rivers and lakes or of
ecological imbalance."
12. ID.; BUREAU OF FISHERIES AND AQUATIC RESOURCES;
JURISDICTION AND RESPONSIBILITY OVER ALL FISHERY
AND AQUATIC RESOURCES OF THE COUNTRY; NOT ALLENCOMPASSING. The nexus then between the activities
barred by Ordinance No. 15-92 of the City of Puerto
Princesa and the prohibited acts provided in Ordinance No.
2, Series of 1993 of the Province of Palawan, on one hand,
and the use of sodium cyanide, on the other, is painfully
obvious. In sum, the public purpose and reasonableness of
the Ordinances may not then be controverted. As to Office
Order No. 23, Series of 1993, issued by Acting City Mayor
Amado L. Lucero of the City of Puerto Princesa, we find
nothing therein violative of any constitutional or statutory
provision. The Order refers to the implementation of the
challenged ordinance and is not the Mayor's Permit. The

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 21

dissenting opinion of Mr. Justice Josue N. Bellosillo relies


upon the lack of authority on the part of the Sangguniang
Panlungsod of Puerto Princesa to enact Ordinance No. 15,
Series of 1992, on the theory that the subject thereof is
within the jurisdiction and responsibility of the Bureau of
Fisheries and Aquatic Resources (BFAR) under P.D. No. 704,
otherwise known as the Fisheries Decree of 1975; and that,
in any event, the Ordinance is unenforceable for lack of
approval by the Secretary of the Department of Natural
Resources (DNR), likewise in accordance with P.D. No. 704.
The majority is unable to accommodate this view. The
jurisdiction and responsibility of the BFAR under P.D. No.
704, over the management, conservation, development,
protection, utilization and disposition of all fishery and
aquatic resources of the country is not all encompassing.
First, Section 4 thereof excludes from such jurisdiction and
responsibility municipal waters, which shall be under the
municipal or city government concerned, except insofar as
fishpens and seaweed culture in municipal centers are
concerned. This section provides, however, that all
municipal or city ordinances and resolutions affecting
fishing and fisheries and any disposition thereunder shall be
submitted to the Secretary of the Department of Natural
Resources for appropriate action and shall have full force
and effect only upon his approval. Second, it must at once be
pointed out that the BFAR is no longer under the
Department of Natural Resources (now Department of
Environment and Natural Resources). Executive Order No.
967 of 30 June 1984 transferred the BFAR from the control
and supervision of the Minister (formerly Secretary) of
Natural Resources to the Ministry of Agriculture and Food
(MAF) and converted it into a mere staff agency thereof,
integrating its functions with the regional offices of the
MAF.
13. ID.; SECRETARY OF THE DEPARTMENT OF
AGRICULTURE; APPROVAL OF MUNICIPAL ORDINANCE
AFFECTING FISHING AND FISHERIES IN MUNICIPAL
WATERS HAS BEEN DISPENSED WITH; REASON
THEREFOR. In Executive Order No. 116 of 30 January
1987, which reorganized the MAF, the BFAR was retained as
an attached agency of the MAF. And under
the Administrative Code of 1987, the BFAR is placed under
the Title concerning the Department of Agriculture.
Therefore, it is incorrect to say that the challenged
Ordinance of the City of Puerto Princesa is invalid or
unenforceable because it was not approved by the Secretary
of the DENR. If at all, the approval that should be sought
would be that of the Secretary of the Department of
Agriculture. However, the requirement of approval by the
Secretary of the Department of Agriculture (not DENR) of
municipal ordinances affecting fishing and fisheries in
municipal waters has been dispensed with.

- - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
3RD ASSIGNMENT
1. PD 1152: Envi Code of Phils
2. RA 8749 : Clean Air Act
3. RA 9275: Clean Water Act
4. RA 9003: Ecological Solid Waste Management Act
5. RA 6969: Toxic Substances Control Act
6. PD 1586: Environmental Impact Assessment
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

1. PD 1152: Envi Code of Phils - Enacted in June 6, 1977
Purpose : To achieve and maintain such levels of air quality
as to protect public health and to prevent to the greatest
extent practicable, injury and/or damage to plant and
animal life and property, and promote the social and
economic development of the country
- Control Area - Nationwide

Overview
The broad spectrum of environment has become a matter of
vital concern to the government
The national leadership has taken a step towards this
direction by creating the National Environmental Protection
Council

It is necessary that the creation of the Council be
complemented with the launching of comprehensive
program of environmental protection and management
Such a program can assume tangible and meaningful
significance only by establishing specific environment
management policies and prescribing environment quality
standards in a Philippine Environment Code

Features

1. Provided a comprehensive program of environmental
protection and management. The Code established specific
environment management policies and prescribes
environmental quality standards.
2. To achieve and maintain such levels of air quality as to
protect public health and to prevent to the greatest extent
practicable, injury and/or damage to plant and animal life
and property, and promote the social and economic
development of the country
3. Prescribe management guidelines to protect and improve
water quality through: classification of Philippine waters,
establishment of water quality standards, protection and
improvement of the quality of the Philippine water
resources, and responsibilities for surveillance and
mitigation of pollution incidents
4. Set guidelines for waste management with a view to
ensuring its effectiveness, encourage, promote and
stimulate technological, educational, economic and social
efforts to prevent environmental damage and unnecessary
loss of valuable resources of the nation through recovery,
recycling and re-use of wastes and wastes products, and
provide measures to guide and encourage appropriate
government agencies in establishing sound, efficient,

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 22

comprehensive and effective wastes management covering


both solid and liquid wastes
TITLE III LAND USE MANAGEMENT
Purposes (Sec. 22) - Rational, orderly & efficient
acquisition, utilization & disposition of land to derive
maximum benefit
- To encourage prudent use and conservation National Land
Use Scheme (Sec. 23)
- Human Settlements Commission shall formulate and
recommend to the National Environmental Protection
Council a land use scheme
BP 220 & PD 957 (Subdivision and Condominium Buyers
Protective Decree) Location of Industries (Sec. 24)

TITLE IV NATURAL RESOURCES MANAGEMENT AND
CONSERVATION
1. Fisheries & Aquatic Resources
RA 8550- Philippine Fisheries Code of 1998
2. Wildlife RA 9147- Wildlife Resources Conservation and
Protection Act
3. Forestry & Soil Conservation
PD 705- Revised Forestry Code of 1998
RA 8435 Agriculture & Fisheries Modernization Act of
1997
4. Flood Control and Natural Calamities
PD 10121- Philippine Disaster Risk Reduction and
Management Act of 2010
5. Energy Development
RA 7638- Department of Energy Act of 1992
6. Conservation and Utilization of Surface Ground Waters
PD 1067- Water Code of the Philippines Mineral Resources
RA 7942- Philippine Mining Act of 1995
RA 7076- Peoples Small Scale Mining Act of 1991

TITLE V WASTE MANAGEMENT (RA 9003)
Enforcement Guidelines
Methods of Solid Waste Management Disposal
Methods of Liquid Waste Management Disposal

TITLE VI MISCELLANEOUS PROVISIONS
Sec. 52. Population-Environment Balance
Sec. 53. Environmental Education
Sec. 54 Environmental Research
Sec. 55. Monitoring and Dissemination of Environmental
Info
Sec. 56. Incentives
Sec. 57. Financial Assistance/ Grant
Sec. 58. Participation of Local Government Units and Private
Indiv.
Sec. 59 Preservation of Prehistoric & Cultural Resources &
Heritage
Sec. 60. Government Offices Performing Environmental
Protection

2. RA 8749 : Philippines: Clean Air Act

Overview: The Clean Air Act outlines the governments
measures to reduce air pollution and incorporate

environmental protection into its development plans. It


relies heavily on the polluter pays principle and other
market-based instruments to promote self-regulation
among the population. It sets emission standards for all
motor vehicles and issues registration only upon
demonstration of compliance. It also issues pollutant
limitations for industry. Polluting vehicles and industrial
processes must pay a charge. Any individual, enterprise,
corporation or groups that installed pollution control
devices or retrofitted its existing facilities to comply with
the emissions standards in the Act can apply for tax
incentives of accelerated depreciation, deductibility of R&D
expenditures or tax credits on the VAT of the equipment
and are exempt from real property tax on the machinery or
equipment used to comply. It also establishes a R&D
program for air pollution reduction mechanisms and
technologies. It bans incineration and smoking in public
places. At the local and municipal levels, governments are
allowed to set emission quotas by pollution source, and the
development of recycling programs is encouraged.

DECLARATION OF POLICIES
It shall be the policy of the State to: Formulate a holistic
national program of air pollution management that shall be
implemented by the government through proper delegation
and effective coordination of functions and activities.

RECOGNITION OF RIGHTS
1. The right to breathe clean air;
2. The right to utilize and enjoy all natural resources
according to the principle of sustainable development;
3. The right to participate in the formulation, planning,
implementation and monitoring of environmental policies
and programs and in the decision-making process;

AIR QUALITY MANAGEMENT SYSTEM
Air Quality Monitoring and Information Network. - The
Department shall prepare an annual National Air Quality
Status Report which shall be used as the basis in
formulating the Integrated Air Quality Improvement
Framework as provided for in Section 7.

Integrated Air Quality Improvement Framework - The
Department shall, within six (6) months after the effectivity
of this Act, establish, with the participation of LGUs, NGOs,
POs, the academe and other concerned entities from the
private sector, formulate and implement the Integrated Air
Quality Improvement Framework for a comprehensive air
pollution management and control program.

Air Quality Control Action Plan. Within six (6) months after
the formulation of the framework, the Department shall
with public participation, formulate and implement an air
quality control action plan consistent with Section 7 of this
Act.
To effectively carry out the formulated action plans, a
Governing Board is hereby created, hereinafter referred to
as the Board.

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 23


Air Quality Control Techniques. - Simultaneous with the
issuance of the guideline values and standards, the
Department, through the research and development
program contained in this Act and upon consultation with
the appropriate advisory committees, government agencies
and LGUs, shall issue, and from time to time, revise
information on air pollution control techniques.

Air Quality Management Fund. - An Air Quality
Management Fund to be administered by the Department as
a special account in the National Treasury is hereby
established to finance containment, removal, and clean-up
operations of the Government in air pollution cases,
guarantee restoration of ecosystem and rehabilitate areas
affected by the acts of violators of this Act.

Air Pollution Research and Development Program. The
Department in coordination with the Department of Science
and Technology (DOST), other agencies, the private sector,
the academe, NGOs and POs, shall establish a National
Research and Development Program for the prevention and
control of air pollution.

AIR POLLUTION CLEARANCES AND FOR STATIONARY
SOURCES
Permits. - Consistent with the provisions of this Act, the
Department shall have the authority to issue permits as it
may determine necessary for the prevention and abatement
of air pollution.

Pollution From Stationary Sources. - The Department shall
within two (2) years from the effectivity of this Act, and
every two (2) years thereafter, review, or as the need
therefor arises, revise and publish emission standards for
stationary sources of air pollution.

Ban on Incineration. Incineration, hereby defined as the
burning of municipal, bio-medical and hazardous wastes,
which process emits poisonous and toxic fumes, is hereby
prohibited.
Local government units are hereby mandated to promote,
encourage and implement in their respective jurisdiction a
comprehensive ecological wastes management that includes
waste segregation, recycling and composting.

Pollution from Motor Vehicles. The DOTC shall implement
the emission standards for motor vehicles set pursuant to
and as provided in this Act. To further improve the emission
standards, the Department shall review, revise and publish
the standards every two (2) years, or as the need arises.

Regulation of All Motor Vehicles and Engines. Any imported
new or locally-assembled new motor vehicle shall not be
registered unless it complies with the emission standards
set pursuant to this Act, as evidenced by a Certificate of
Conformity (COC) issued by the Department.

Pollution from Smoking. - Smoking inside a public building


or an enclosed public place including public vehicles and
other means of transport or in any enclosed area outside of
one's private residence, private place of work residence, or
any duly designated smoking area is hereby prohibited
under this Act. This provision shall be implemented by the
LGUs.

FUELS, ADDITIVES SUBSTANCES AND POLLUTANT'S
ARTICLE ONE FUELS, ADDITIVES AND SUBSTANCES
SEC. 26. Fuels and Additives.
the Department of Energy (DOE), co-chaired by the
Department of Environment and Natural Resources (DENR),
in consultation with the Bureau of Product Standards (BPS)
of the DTI, the DOST, the representatives of the fuel and
automotive industries, academe and the consumers shall set
the specifications for all types of fuel and fuel-related
products

SEC. 26. Fuels and Additives. - The DOE, shall also specify
the allowable content of additives in all types of fuels and
fuel-related products. Such standards shall be based
primarily on threshold levels of health and research studies.
- the DOE shall likewise limit the content or begin the
phase-out of additives in all types of fuels and fuel-related
products

SEC. 26. Fuels and Additives
No person shall manufacture, import, sell, supply, offer for
sale, dispense, transport or introduce into commerce
beyond specified indexes.

Every two (2) years thereafter or as the need arises, the
specifications of unleaded gasoline and of automotive and
industrial diesel fuels shall be reviewed and revised for
further improvement.

SEC. 27. Regulation of Fuels and Fuel Additives
The DOE, in coordination with the Department and the BPS,
shall regulate the use of any fuel or fuel additive.

No manufacturer, processor or trader of any fuel or additive
may import, sell, offer for sale, or introduce into commerce
such fuel or additive unless the same has been registered
with the DOE.

Prior to registration, the manufacturer, processor or trader
shall provide the DOE with the following relevant
information.

Misfueling - no person shall introduce or cause or allow the
introduction of leaded gasoline into any motor vehicle
equipped with a gasoline tank filler inlet and labeled
unleaded gasoline only

Prohibition on Manufacture, Import and Sale of Leaded
Gasoline and of Engines and/or Components Requiring
Leaded Gasoline

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 24

no person shall manufacture, import, sell, offer for sale,


introduce into commerce, convey or otherwise dispose of, in
any manner leaded gasoline and engines and components
requiring the use of leaded gasoline

Ozone-Depleting Substances shall also be monitored.

Radioactive Emissions - projects which will involve the use,
of atomic and/or nuclear energy, shall be regulated in the
interest of public health and welfare by the Philippine
Nuclear Research Institute (PNRI) and other appropriate
government agencies

INSTITUTIONAL MECHANISM
The Department or its duly accredited entity shall, after
proper consultation and notice, require any person who
owns or operates any emission source or who is subject to
any requirement of this Act to:
- establish and maintain relevant records;
- make relevant reports;
- install, use and maintain monitoring equipment or
methods;
- sample emission, in accordance with the methods,
locations, intervals, and manner prescribed by the
Department;
- keep records on control equipment parameters,
production variables or other indirect data when direct
monitoring of emissions is impractical;
- provide such other information as the Department may
reasonably require the Department, through its authorized
representatives, shall have the right of:
- entry or access to any premises including documents and
relevant materials
- inspect any pollution or waste source, control device,
monitoring equipment or method required; and
- test any emission.

Public Education and Information Campaign. - A continuing
air quality information and education campaign shall be
promoted

ACTIONS
Administrative Action- Sec. 40 provides that the
Department shall institute administrative proceedings
against any person who violates:
a) Standards or limitation provided under this Act; or
b) Any order, rule or regulation issued by the Department
with respect to such standard or limitation.

Citizen Suits- Any person who violates or fails to comply
with the provisions of this Act or its implementing rules and
regulations; or
The Department or other implementing agencies with
respect to orders, rules and regulations issued inconsistent
with this Act, and/or Any public officer who willfully or
grossly neglects the performance of an act specifically
enjoined as a duty by this Act or its implementing rules and
regulations; or abuses his authority in the performance of

his duty; or, in any manner, improperly performs his duties


under this Act or its implementing rules and regulations

3. RA 9275: Clean Water Act

Why the need for the Clean Water Act?
As early as 1996, monitoring of the countrys rivers showed
that only 51% of the classified rivers still met the standards
for their most beneficial use. The rest were already polluted
from domestic, industrial and agricultural sources.

Most studies point to the fact that domestic wastewater is
the principal cause of organic pollution (at 48%) of our
water bodies. Yet, only 3% of investments in water supply
and sanitation were going to sanitation and sewage
treatment.

A recent World Bank report pointed out that Metro Manila
was second to the lowest in sewer connections among
major cities in Asia and less than 7% compared to 20% for
Katmandu, Nepal and 30% for Dhaka, Bangladesh.

Thirty-one percent (31%) of all illnesses in the country are
attributed to polluted waters. Clearly, to ensure access to
clean water for all Filipinos, it was imperative that
government put together a comprehensive strategy to
protect water quality.

What is the Clean Water Act?
The Philippine Clean Water Act of 2004 (Republic Act No.
9275) aims to protect the countrys water bodies from
pollution from land-based sources (industries and
commercial establishments, agriculture and
community/household activities). It provides for a
comprehensive and integrated strategy to prevent and
minimize pollution through a multisectoral and
participatory approach involving all the stakeholders.

Highlights of the Clean Water Act
How will water quality be managed?
Management of water quality will either be based on
watershed, river basin or water resources region. Water
quality management areas with similar hydrological,
hydrogeological, meteorological or geographic conditions
which affect the reaction and diffusion of pollutants in
water bodies are to be designated by the DENR in
coordination with the

National Water Resources Board (NWRB).
Who will manage these areas?
Management will be localized. Multi-sectoral governing
boards will be established to manage water quality issues
within their jurisdiction.

Who are the members of the Governing Boards?
Governing Boards shall be composed of representatives of
mayors and governors as well as local government units,
representatives of relevant national government agencies,

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 25

duly registered non-government organizations, the


concerned water utility sector and the business sector.

What are the functions of the Governing Boards?
The Governing Boards will formulate strategies to
coordinate policies necessary for the effective
implementation of this Act. They will create a multi-sectoral
group to establish and effect water quality surveillance and
monitoring.

How will discharges of wastewater be controlled?
All owners or operators of facilities that discharge
wastewater are required to get a permit to discharge from
the DENR or the Laguna Lake Development Authority.
Existing industries without any permit are given 12 months
from the effectivity of the implementing rules and
regulations (IRR) promulgated pursuant to this Act to
secure a permit to discharge.

How will domestic wastewater be addressed?
The Department of Public Works and Highways (DPWH), in
coordination with local government units will prepare a
national program on sewage and septage management not
later than 12 months from effectivity of this Act. A priority
list will likewise be prepared which will be the basis for the
allotment of funds on an annual basis by the national
government for the construction and rehabilitation of
required facilities.

On the other hand, LGUs are to provide the land including
road right of the way for the construction of sewage and/or
septage treatment facilities and raise funds for the
operations and maintenance of said facilities.

The Department of Health (DOH) will formulate guidelines
and standards for the collection, treatment and disposal of
sewage as well as the guidelines for the establishment and
operation of centralized sewage treatment system. The
MWSS and other agencies mandated to provide water
supply and sewerage facilities are required to connect
existing sewage lines, subject to the payment of sewerage
service charges/fees within five years following effectivity
of this Act.

All sources of sewage and septage are required to comply
with the law.

How will the discharge of wastewater be discouraged?
Anyone discharging wastewater into a water body will have
to pay a wastewater charge. This economic instrument
which will be developed in consultation with all concerned
stakeholders is expected to encourage investments in
cleaner production and pollution control technologies to
reduce the amount of pollutants generated and discharged.

Effluent trading per management area will also be allowed.
Rewards will also be given to those whose wastewater
discharge is better than the water quality criteria of the

receiving body of water. Fiscal and non-fiscal incentives will


also be given to LGUs, water districts, enterprise, private
entities and individuals who develop and undertake
outstanding and innovative projects in water quality
management.

What safeguards are provided for?
All possible dischargers are required to put up an
environmental guarantee fund (EGF) as part of their
environmental management plan. The EGF will finance the
conservation of watersheds and aquifers, and the needs of
emergency response, clean up or rehabilitation.

What are the prohibited acts under R.A. 9275?
Among others, the Act prohibits the following:
Discharging or depositing any water pollutant to the water
body, or such which will impede natural flow in the
water body
Discharging, injecting or allowing to enter into the soil,
anything that would pollute groundwater
Operating facilities that discharge regulated water
pollutants without the valid required permits
Disposal of potentially infectious medical waste into sea
by vessels
Unauthorized transport or dumping into waters of sewage
sludge or solid waste.
Transport, dumping or discharge of prohibited chemicals,
substances or pollutants listed under Toxic Chemicals,
Hazardous and Nuclear Wastes Control Act (Republic.Act
No. 6969)
Discharging regulated water pollutants without the valid
required discharge permit pursuant to this Act
Noncompliance of the LGU with the Water Quality
Framework and Management Area Action Plan
Refusal to allow entry, inspection and monitoring as well
as access to reports and records by the DENR in
accordance with this Act
Refusal or failure to submit reports and/or designate
pollution control officers whenever required by the
DENR in accordance with this Act
Directly using booster pumps in the distribution system or
tampering with the water supply in such a way to alter
or impair the water quality
Operate facilities that discharge or allow to seep, willfully
or through grave negligence, prohibited chemicals,
substances, or pollutants listed under R.A. No. 6969, into
water bodies.
Undertake activities or development and expansion of
projects, or operating wastewater treatment/sewerage
facilities in violation of P.D.1586 and its IRR.

4. RA 9003: Ecological Solid Waste Management Act

What is R.A. No. 9003?
Republic Act No. 9003 or the Philippine Ecological Solid
Waste Management Act of 2000 provides the legal
framework for the countrys systematic, comprehensive,
and ecological solid waste management program that shall

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 26

ensure protection of public health and the environment. It


emphasizes the need to create the necessary mechanisms
and incentives to pursue an effective solid waste
management at the local government levels.

What are the important features of the Solid Waste
Management Act?
a. Creation of the National Solid Waste Management
Commission (NSWMC), the National Ecology Center (NEC),
and the Solid Waste Management Board in every province,
city and municipality in the country.
- The NSWMC shall be responsible in the formulation of
the National Solid Waste Management Framework
(NSWMF) and other policies on solid waste, in overseeing
the implementation of solid waste management plans and
the management of the solid waste management fund.
- The NEC, on the other hand, shall be responsible for
consulting, information, training and networking services
relative to the implementation of R.A.No. 9003.
- The Solid Waste Management Board of provinces, cities,
and municipalities shall be responsible for the
development of their respective solid waste management
plans.

b. Formulation of the NSWMF: 10-year solid management
plans by local government units;

c. Mandatory segregation of solid waste to be conducted
primarily at the source such as household, institutional,
industrial, commercial and agricultural sources;

d. Setting of minimum requirements to ensure systematic
collection and transport of wastes and the proper
protection of garbage collectors' health;

e. Establishment of reclamation programs and buy-back
centers for recyclable and toxic materials;

f. Promotion of eco-labeling in local products and services;

g. Prohibition on non-environmentally acceptable products
and packaging;

h. Establishment of Materials Recovery Facility (MRF) in
every barangay or cluster of barangays;

i. Prohibition against the use of open dumps;

j. Setting of guidelines/criteria for the establishment of
controlled dumps and sanitary landfills;

k. Provision of rewards, incentives both monetary and nonmonetary, financial assistance, grants and the like to
encourage LGUs and the general public to undertake
effective solid waste management; and

l. Promotion of research on solid waste management and


environmental education in the formal and non-formal
sectors.

5. R.A 6969 - Toxic Substances and Hazardous and
Nuclear Wastes Control Act of 1990

PURPOSE/OBJECTIVES
1. To keep an inventory of chemicals and such other
information as may be considered relevant to the
protection of health and the environment
2. To monitor and regulate the chemical substances and
mixtures that present unreasonable risk or injury to
health or to the environment in accordance with national
policies and international commitments
3. To inform and educate the populace regarding the
hazards and risks attendant of toxic chemicals and other
substances and mixture
4. To prevent the entry, even in transit, as well as the
keeping or storage and disposal of hazardous and nuclear
wastes into the country for whatever purpose

SCOPE : Importation, Manufacture, Processing, Handling,
storage, Transportation, Sale, distribution, use and disposal
of ALL unregulated chemical substances and mixtures in the
Philippines, including the entry, even in transit as well as
the keeping or storage and disposal

Some Important Definition of Terms
Hazardous substances - Substances which presents either
Short-term acute hazards or Long Term Environmental
Hazards
Short Term Acute Hazards- Acute toxicity by
Ingestion / Inhalation or skin absorption / Corrosivity or
other skin or eye contact hazards or
The risk of fire or explosion;

Long-Term Environmental Hazards
Chronic toxicity upon repeated exposure
Carcinogenicity
Resistance to detoxification process such as biodegradation
The potential to pollute underground or surface waters
Aesthetically objectionable properties such as offensive
odors.

Hazardous Waste- Substances that are without any safe
commercial, industrial, agricultural or economic usage

IMPLEMENTING AGENCY - The Implementing Agency is the
DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES (DENR)

In formulating the implanting rules and regulations of this
law, the Inter-Agency Technical Advisory Council was
created.

Inter-Agency Technical Advisory Council - This council is
composed of Director of Phil. Nuclear Research Institute and

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 27

3 Representatives of NGO and the Secretaries of DENR,


DOH, DTI, DOST, DND (Dept. of National Defense), DFA,
DOLE, DOF (Dept. of Finance), DA

PRE-MANUFACTURING AND PRE-IMPORTATION
REQUIREMENTS
- the manufacturer, processor or importer shall submit the
following information: the name of the chemical substance
or mixture, its chemical identity and molecular structure,
proposed categories of use, an estimate of the amount to be
manufactured, processed or imported, processing and
disposal thereof , any test data related to health and
environmental effects which the manufacturer, processor or
importer has.

After passing the requirements, what happens next?
The Secretary of Environment and Natural Resources or his
duly authorized representative shall, within ninety (90)
days from the date of filing of the notice of manufacture,
processing or importation of a chemical substance or
mixture, decide whether or not to regulate or prohibit its
importation, manufacture, processing, sale, distribution, use
or disposal.

The Secretary may, for justifiable reasons, extend the
ninety-day pre-manufacture period within a reasonable
time.

Chemicals Exempt from Pre-Manufacture Notification:
- Those included in the categories of chemical substances
and mixtures already listed in the inventory of existing
chemicals;

- Those to be produced in small quantities solely for
experimental or research and developmental purposes;
- Chemical substances and mixtures that will not present an
unreasonable risk to health and the environment; and
- Chemical substances and mixtures that exist temporarily
and which have no human or environmental exposure such
as those which exist as a result of chemical reaction in the
manufacture or processing of a mixture of another chemical
substance.

When will be the testing be required?
- When there is a reason to believe that the chemical
substances or mixture may present an unreasonable risk to
health or the environment or there may be substantial
human or environmental exposure thereto, When there are
insufficient data and experience for determining or
predicting the health and environmental effects of the
chemical substance or mixture; and, When the testing of the
chemical substance or mixture is necessary to develop such
data.

PROHIBITED ACTS
- Knowingly use a chemical substance or mixture which is
imported, manufactured, processed or distributed in

violation of this Act or implementing rules and regulations


or orders;
- Failure or refusal to submit reports, notices or other
information, access to records, as required by this Act, or
permit inspection of establishment where chemicals are
manufactured, processed, stored or otherwise held;
- Failure or refusal to comply with the pre-manufacture and
pre-importation requirements; and
- Cause, aid or facilitate, directly or indirectly, in the storage,
importation, or bringing into Philippines territory, including
its maritime economic zones, even in transit, either by
means of land, air or sea transportation or otherwise
keeping in storage any amount of hazardous and nuclear
wastes in any part of the Philippines.

6. PD 1586: Environmental Impact Assessment
Enacted and Implemented in 1978

The Environmental Impact Assessment (EIA) System in the
Philippines, officially referred to as the Philippine EIS
System (PEISS), was established under Presidential Decree
(PD) 1586 on 11 June 1978. Section 4 of PD 1586 provides
that no person, partnership or corporation shall undertake
or operate any such declared environmentally critical
project or area without first securing an Environmental
Compliance Certificate (ECC). Full implementation of the
PEISS transpired after the issuance of Presidential
Proclamation 2146 in 1981 where the technical definition of
Environmentally Critical Projects (ECPs) and
Environmentally Critical Areas (ECAs) was provided.

Purpose: To attain and maintain a rational and orderly
balance between socio-economic growth and environmental
protection

Overview

- The pursuit of a comprehensive and integrated
environmental protection program necessitates the
establishment and institutionalization of a system whereby
the exigencies of socio-economic undertakings can be
reconciled with the requirements of environmental quality
- The regulatory requirements of Environmental Impact
Statement and Assessments instituted in pursuit of this
national environmental protection program have to work
into their full regulatory and procedural details in a manner
consistent with the goals of the program

Features

1. Declared environmentally critical projects and areas are
required to obtain an Environmental Compliance
Certificate before operation
2. Environmentally Critical Projects includes heavy
industries, resource extractive industries, infrastructure
projects, golf course projects
3. Characteristics of Environmentally Critical Areas:
- Areas declared by law as natural parks, watershed
reserves, wildlife reserves, and sanctuaries
- Areas set aside as aesthetic, potential tourist spots

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 28

- Areas which constitute the habitat for any endangered


or threatened species of indigenous Philippine wildlife
(flora and fauna)
- Areas of unique historical, archeological, geological or
scientific interests
- Areas which are traditionally occupied by cultural
communities or tribes
- Areas frequently visited and/or hard hit by natural
calamities (geologic hazards, floods, typhoons, volcanic
activity, etc.)
- Areas of critical slope
- Areas classified as prime agricultural lands
- Recharged areas of aquifers
- Waterbodies
- Mangrove areas
- Coral reefs
- Violators shall be punished by the suspension of
cancellation of his/its certificate and or fine for each
violation

THE PROCESS
1. Project Screening
2. Preliminary Site and Project Evaluation
3. Scoping
4. Baseline Studies
5. EIA PROPER (THE EIA STUDY)
6. EIA Review
7. Decision
8. Monitoring
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

4th ASSIGNMENT:
1. RA 7586 [NIPAS Act]
2. RA 9147 [Wildlife Act]
3. RA 8550 [ Fisheries Code]
4. RA 7942 [ Mineral Resources Act]
5. RA 7076 [People's Small Scale Mining]
6. PD 705 [ Forestry Reform Code]

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
1. RA 7586 [NIPAS Act]

What does this act aim to do?
-to secure for the Filipino people of present and future
generations the perpetual existence of all native plants and
animals through the establishment of a comprehensive
system of integrated protected areas within the
classification of national park as provided for in the
Constitution.
- to establish a National Integrated Protected Areas System
(NIPAS)

What are protected areas?
- refers to identified portions of land and water set aside by
reason of their unique physical and biological significance,
managed to enhance biological diversity and protected
against destructive human exploitation;

What are national parks?


- refers to a forest reservation essentially of natural
wilderness character which has been withdrawn from
settlement, occupancy or any form of exploitation except in
conformity with approved management plan and set aside
as such exclusively to conserve the area or preserve the
scenery, the natural and historic objects, wild animals and
plants therein and to provide enjoyment of these features in
such areas;
- Examples:
Hundred Islands in Alaminos Pangasinan
Mt. Pulag National Park (Benguet, Ifugao)

What are natural parks?
- a relatively large area not materially altered by human
activity where extractive resource uses are not allowed and
maintained to protect outstanding natural and scenic areas
of national or international significance for scientific,
educational and recreational use;
Apo Reef Natural Park (Oriental Mindoro)
Mayon Volcano (Albay, Bicol)

What are natural monuments?
- is a relatively small area focused on protection of small
features to protect or preserve nationally significant natural
features on account of their special interest or unique
characteristics
Chocolate Hills (Bohol)

How will this be operationalized?
- The DENR shall submit to the Senate and the House of
Representatives a map and legal descriptions or natural
boundaries of each protected area initially comprising the
System.
- It will also be made public
How will this be operationalized?
- Notify the public of the proposed action
- the President shall issue a presidential proclamation
designating the recommended areas as protected areas and
providing for measures for their protection until such time
when Congress shall have enacted a law finally declaring
such recommended areas as part of the integrated protected
area systems;

Who will be in charge of administration and
management of the system?
- The National Integrated Protected Areas System is hereby
placed under the control and administration of the
Department of Environment and Natural Resources.
- A Protected Areas and Wildlife Division will be created as
a division in the regional offices of the DENR.

What is the Protected Area Management Board?
- The Board shall, by a majority vote, decide the allocations
for budget, approve proposals for funding, decide matters
relating to planning, peripheral protection and general
administration of the area in accordance with the general
management strategy.

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 29


What is Environmental Impact Assessment?
- Proposals for activities which are outside the scope of the
management plan for protected areas shall be subject to an
environmental impact assessment as required by law before
they are adopted, and the results thereof shall be taken into
consideration in the decision-making process.
- Republic of the Philippines vs City of Davao G.R. No. 148622

What if the protected area is an ancestral land?
- Ancestral lands and customary rights and interest arising
shall be accorded due recognition.
- The DENR shall prescribe rules and regulations to govern
ancestral lands within protected areas. They can be evicted
by the DENR or arranged in a resettlement without their
consent provided there is notice and hearing.

What are the prohibited acts?
- Hunting, destroying, disturbing, or mere possession of any
plants or animals or products derived therefrom without a
permit from the Management Board;
- Dumping of any waste products detrimental to the
protected area, or to the plants and animals or inhabitants
- Use of any motorized equipment without a permit from
the Management Board
- Mutilating, defacing or destroying objects of natural
beauty, or objects of interest to cultural communities (of
scenic value)
- Damaging and leaving roads and trails in a damaged
condition
Squatting, mineral locating, or otherwise occupying any
land
- Constructing or maintaining any kind of structure, fence or
enclosures, conducting any business enterprise without a
permit
- Leaving in exposed or unsanitary conditions refuse or
debris, or depositing in ground or in bodies of water
- Altering, removing destroying or defacing boundary marks
or signs

2. RA 9147 [Wildlife Act]
Approved by President Gloria Macapagal-Arroyo was an
important legislative measure geared towards ensuring
environmental sustainability. Originating in the House of
Representatives as HB 10622, filed by Rep. J.R. Nereus O.
Acosta, the Wildlife Resources Conservation and Protection
Act (RA 9147) aims to protect our countrys fauna from
illicit trade, abuse and destruction, through (1) conserving
and protecting wildlife species and their habitats, (2)
regulating the collection and trade of wildlife,
(3) pursuing, with due regard to the national interest, the
Philippine commitment to international conventions,
protection of wildlife and their habitats, and
(4) initiating or supporting scientific studies on the
conservation of biological diversity.

The provisions of this Act shall be enforceable for all wildlife
species found in all areas of the country, including critical

habitats and protected areas under the National Integrated


Protected Areas System (NIPAS) Act. Exotic species, or
species which do not naturally occur in the country, are also
covered by this Act. All designated critical habitats shall be
protected, in coordination with the local government units
and other concerned groups, from any form of exploitation
or destruction which may be detrimental to the survival of
species dependent upon these areas.

The introduction, reintroduction or re-stocking of endemic
and indigenous wildlife shall be allowed only for population
enhancement or recovery. Any introduction shall be subject
to a scientific study. The Act also prohibits the introduction
of exotic species into protected areas and critical habitats. If
and when introduction is allowed, it shall be subjected to
environmental impact assessment and the informed
consent from local stakeholders.

Conservation breeding or propagation of threatened species
shall be encouraged to enhance its population in its natural
habitat. Breeding shall be done simultaneously with the
rehabilitation and protection of the habitat where the
captive-bred or propagated species shall be released or
reintroduced. When economically important species
become threatened, collection shall be limited to scientific,
educational or breeding purposes.

The Act makes it unlawful for any person to undertake the
following:
- killing and destroying wildlife species, except when it is
done as part of the religious rituals of established tribal
groups or indigenous cultural communities, when the
wildlife is afflicted with an incurable communicable disease,
when it is deemed necessary to put an end to the misery
suffered by the wildlife, or when it is done to prevent an
imminent danger to the life or limb of a human being; when
the wildlife is killed or destroyed after it has been used in
authorized research or experiments
- inflicting injury which cripples and/or impairs the
reproductive system of wildlife species
- effecting any of the following acts in critical habitats:
dumping of waste products detrimental to wildlife;
squatting or otherwise occupying any portion of the
critical habitat; mineral exploration and/or extraction;
burning; logging; and quarrying
- introduction, reintroduction, or restocking of wildlife
resource
- trading of wildlife
- collecting, hunting or possessing wildlife, their byproducts and derivatives
- gathering or destroying of active nests, nest trees, host
plants and the like
- maltreating and/or inflicting other injuries not covered
by the preceding paragraph; and
- transporting of wildlife.

For any person who undertakes these illegal acts, stiff
penalties and fines are meted out. Imprisonment of as much

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 30

as 12 years and a fine of P1 million pesos shall be imposed,


if inflicted or undertaken against species listed as critical.

With the approval of The Wildlife Resources Conservation
and Protection Act, Congress continues its commitment to
protect the environment to ensure an economically and
ecologically sustainable future, following the constitutional
mandate of the State to protect and advance the right of its
people to a balanced and healthful ecology in accord with
rhythm and harmony of nature.

3. RA 8550 [ Fisheries Code]
The Code makes provision for the management and
conservation of fisheries and aquaculture in the Philippines
and the reconstitution or establishment of fisheries
institutions both at the national and local level.

The text consists of 133 sections which are divided into 8
Chapters: Chapter 1 - declares the policy of the State with
respect to fisheries and contains a large definitions section.
It is a declared policy to limit access to the fishery and
aquatic resources of the Philippines for the exclusive use
and enjoyment of Filipino citizens. Another principle of
policy is the protection of municipal fishermen. Fishery and
aquatic resources shall be managed in a manner consistent
with the concept of integrated coastal area management.
Definitions listed in section 4 include: coastal area/zone;
commercial fishing; municipal waters; foreshore land;
maximum sustainable yield; post harvest facilities.

Chapter II - contains the main body of rules relative to the
management and conservation of fisheries and to
aquaculture. Fisheries are classified in municipal fisheries,
i.e. fishing in municipal waters, and commercial fishing.
Provisions of the Chapter also regulate post-harvest
facilities, activities and trade.

The Bureau of Fisheries and Aquatic resources is
reconstituted and Fisheries and Aquatic Management
Councils are created under provisions of Chapter III. The
Bureau is a national policy advisory and policy
implementation body. A National Fisheries and Aquatic
Management Council is created under section 70 and
municipal/city councils under section 73. These institutions
shall assist in the formulation of national polices and local
policies respectively. The Department of Fisheries may
designate areas in Philippine waters beyond 15 kilometres
of the shoreline as fishery reservation or fish refuges and
sanctuaries in bays, foreshore lands, continental shelf or any
fishing ground to be set aside for the cultivation of
mangroves to strengthen the habitat and the spawning
grounds of fish.

Remaining Chapters deal with fisheries research and
development (V), prescribe penalties and offences (VI), and
contain general provisions (VII).

4. RA 7942 [ Mineral Resources Act]



The Philippine Mining Act of 1995 and its Revised
Implementing Rules and Regulations (RIRR) is considered
in the industry today as one of the most socially and
environmentally-sensitive legislations in its class. It has
specific provisions that take into consideration:
Local government empowerment;
Respect and concern for the indigenous cultural
communities;
Equitable sharing of benefits of natural wealth;
Economic demands of present generation while
providing the necessary foundation for future
generations;
Worldwide trend towards globalization; and
Protection for and wise management of the environment.
These were the products of long periods of assessment,
evaluation, and rectification of the sins of the past, the
gaps of the old mining law, and the realities of the
present times.

GOVERNING PRINCIPLES
The Implementing Rules and Regulations (DENR
Administrative Order No.96-40) of the Philippine Mining
Act of 1995 provides strict adherence to the principle of
SUSTAINABLE DEVELOPMENT. This strategy mandates that
the needs of the present should be met without
compromising the ability of the future generations to meet
their own needs, with the view of improving the quality of
life, both now and in the future. Sustainable development
provides that the use of mineral wealth shall be pro-people
and pro-environment in sustaining wealth creation and
improve quality of life.

The principles of SUSTAINABLE MINING operates under the
following terms:
Mining is a temporary land use for the creation of wealth,
leading to an optimum land use in post-mining stage as
consequence of progressive and engineered mine
rehabilitation works done in cycle with mining
operations;
Mining activities must always be guided by current Best
Practices in environmental management committed to
reducing the impacts of mining while efficiently and
effectively protecting the environment.
The wealth created as a result of mining accruing to the
Government and the community should lead to other
wealth-generating opportunities for people in the
communities and for other environment-responsible
endeavors.
Mining activities shall be undertaken with due and equal
regard for economic and environmental considerations,
as well as for health, safety, social and cultural concerns.
Conservation of minerals is effected not only through
technological efficiencies of mining operations but also
through the recycling of mineral-based products, to
effectively lengthen the usable life of mineral
commodities.

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 31

The granting of mining rights shall harmonize existing


activities, policies and programs of the Government that
directly or indirectly promote self-reliance, development
and resource management. Activities, policies and
programs that promote community-based, communityoriented and procedural development shall be
encouraged, consistent with the principles of people
empowerment and grassroots development.

ORGANIZATIONAL IMPLEMENTATION - The Mining Act
reverts back the Mines and Geosciences Bureau (MGB) from
a Staff to a Line Bureau. Under this arrangement, the MGB
Central Office has now the administrative jurisdiction and
responsibility over its regional offices. The Line Bureau
structure was contemplated to ensure organizational
efficiency and flexibility in managing limited resources and
technical expertise.

ROLE OF LOCAL GOVERNMENTS - The IRR highlights the
role of local government units (LGUs) in mining projects,
both as beneficiaries and as active participants in mineral
resources management, in consonance with the
Constitution and government policies on local autonomy
and empowerment.

AREAS CLOSED TO THE MINING APPLICATION
Pursuant to the Mining Act of 1995 and in consonance with
State policies and existing laws, areas may either be closed
to mining operations, or conditionally opened, as follows:
Areas CLOSED to mining applications:
Areas covered by valid and existing mining rights and
applications;
Old growth or virgin forests, mossy forests, national parks,
provincial/municipal forests, tree parks, greenbelts, game
refuge, bird sanctuaries and areas proclaimed as marine
reserve/marine parks and sanctuaries and areas
proclaimed as marine reserve/marine parks and tourist
zones as defined by law and identified initial components
of the NIPAS, and such areas as expressly prohibited
thereunder, as well as under DENR Administrative Order
No. 25, s. 1992, and other laws;
Areas which the Secretary may exclude based, inter alia, or
proper assessment of their environmental impacts and
implications on sustainable land uses, such as built-up
areas and critical watershed with appropriate
barangay/municipal/ provincial Sanggunian ordinances
specifying therein the location and specific boundaries of
the concerned area; and
Areas expressly prohibited by law

ANCESTRAL LANDS AND ICC AREAS - The Mining Act fully
recognizes the rights of the Indigenous Peoples
(IPs)/Indigenous Cultural Communities (ICCs) and
respect their ancestral lands.

ENVIRONMENTAL AND SAFETY CONCERNS
A significant feature of the Mining Act of 1995 and its IRR is
the premium given to environmental protection. Stringent

measures were institutionalized to ensure the compliance of


mining contractors/operators to internationally accepted
standards of environmental management.

TAXES AND INCENTIVES
Mining contractors of MPSA and FTAA can avail of fiscal and
non-fiscal incentives granted under the Omnibus
Investment Code of 1987, as amended.

In addition to these incentives, the following are also
granted by the Mining Act.
Incentives for pollution control devises;
Incentives for income tax carry forward of losses;
Incentives for income tax accelerated depreciation on
fixed assets;
Investment guarantees, such as investment repatriation,
earnings remittance, freedom from expropriation, and
requisition of investment, and confidentiality of
information.

5. RA 7076 [People's Small Scale Mining]
Republic Act No. 7076 (1991), otherwise known as the
Peoples Small-Scale Mining Act defines small-scale mining
as minimum activities which rely heavily on manual labor
using simple implements and methods, and which do not
use explosives or heavy mining equipment.

The main purpose of the law is:
(1) To effect an orderly and systematic disposition of smallscale mining areas in the country;
(2) To regulate the small-scale mining industry with the
view to encourage their growth and productivity; and
(3) To provide technical, financial and marketing assistance
and efficient collection of government revenues.

Through this law, the harmful effects of the classic trade-off
between development and environment could be minimized
if not totally avoided. This law was authored by Senator
Aquilino Pimentel Jr.

With Republic Act 7076 it allows small miners under this
law to use only simple equipments like pick and shovel in
extracting gold and other precious metals in their mining
areas. In this age of modern technology, this law is making
sure that the small mining law should benefit the small
miners and not only the big-time operators who are using
the skills and sweat of small-scale miners to accumulate a
fortune.

Under RA 7076, no ancestral land may be declared as a
peoples small scale mining area without the prior consent
of the cultural communities concerned. This respects the
rights of the indigenous peoples to their ancestral lands
which are fully guaranteed under existing laws. The law
defines small miners as Filipino citizens who, individually or
in tandem with others, voluntarily form a cooperative, duly
licensed by the Department of Environment and Natural

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 32

Resources, to engage in the extraction or removal of


minerals or ore-bearing materials from the ground.

HIGHLIGHTS - Its implementing rules lay down the
powers and functions of the Department of Environment
and Natural Resources, the Provincial/City Mining
Regulatory Board and in coordination with other concerned
government agencies. The DENR together with the other
concerned government agencies is designed to achieve an
orderly, systematic and rational scheme for the small-scale
development and utilization of mineral resources in certain
mineral areas in order to address the social, economic,
technical, and environmental connected with small-scale
mining activities.

While the Provincial/City Mining Regulatory Board
(PCMRB) created under the direct supervision and control
of the Secretary which is the board of PCMRB, is the
implementing agency of the Department of Environment
and Natural Resources which has the powers and function
subject to review by the Secretary.

PROHIBITED ACTS
Awarded contracts may canceled on the following grounds:
1. Non-Compliance with the terms and conditions of the
contract and that of existing mining laws, rules and
regulations including those pertaining to mine safety,
environmental protection and conservation, tree cutting,
mineral processing and pollution control;
2. Non.-compliance with the contractor's obligations to
existing mining claim holders/private landowners as
stipulated in Section 13, 17 and 18 of this Order;
3. Non-payment of fees, taxes, royalties or government
share in accordance with this Order and existing mining
laws;
4. Abandonment of mining site by the contractor; and
5. Ejectment from the People's Small-scale Mining Area of
the Contractor by the government for reasons of national
interest and security.

PENALTIES/FINES - When contracts are canceled for
grounds from the abovementioned, the Secretary may
impose fines of an amount not less than Twenty Thousand
Pesos (P20, 000.00) but not more than One Hundred
Thousand Pesos (P100, 000.00). Non-payment of the fine
imposed shall render the small-scale mining contractor
ineligible for other small-scale mining contracts.

6. PD 705 [ Forestry Reform Code]

Forest management in the Philippines is governed by
Presidential Decree No. 705, also known as the Revised
Forestry Code of the Philippines. Issued on 19 May 1975,
the decree, specifically Section 2, outlines the policies of the
state for the management of forest resources as follows:
1. Multiple use of forestland shall be oriented to the
countrys development and progress requirements, the

advancement of science and technology and the public


welfare;
2. Land classification and survey shall be systematized and
accelerated;
3. The establishment of wood-processing plants shall be
encouraged and rationalized; and
4. The protection, development and rehabilitation of
forestlands shall be emphasized so as to ensure continuity
in production.

For the purpose of implementing the provisions of this
Code, the Bureau of Forestry, the Reforestation
Administration, the Southern Cebu Reforestation
Development Project, and the Parks and Wildlife Office are
merged into single agency to be known as the Bureau of
Forest Development (sect. 4). The Bureau shall have
jurisdiction and authority over all forest land, grazing lands,
and all forest reservations including watershed reservations
presently administered by other government agencies. The
Bureau shall be directly under the control and supervision
of the Secretary of the Department of Natural Resources,
hereinafter referred to as the Department Head (sect. 7).
The Department Head, upon the recommendation of the
Director of Forest Development, shall promulgate the rules
and regulations necessary to implement effectively the
provisions of this Code (sect. 9). The Agency shall have
divisions, including a Wildlife and Parks Division, and
district and regional offices, here created. The Department
Head shall prescribe the criteria, guidelines and methods for
the proper and accurate classification and survey of all
lands of the public domain into agricultural, industrial or
commercial, residential, resettlement, mineral, timber or
forest, and grazing lands, and into such other classes as now
or may hereafter be provided by law, rules and regulations
(sect. 13). Areas needed for forest purposes are outlined in
section 16.

Chapter III provides for matters relating to use of forest
resources, such as licenses, license agreements, leases and
permits for purposes of utilize, exploit, occupy, possess or
conduct any forestry activity, harvesting methods (sect. 22),
timber inventory, annual allowable cut (sect. 26), forest
concessions (sect. 28), wood processing industry,
reforestation (sect. 33). industrial tree plantations, tree
farms and agro-forestry farms (sect. 34), forest protection
(sects. 37 to 53), including protection of swamplands and
mangrove forests (sect. 43), forest roads, etc. This Chapter
also makes provision for special uses of forest resources,
such as grazing, wildlife, and recreation, and for the
measuring of timber.
The last part (Chap. IV) of this Act prescribes criminal
offences, including unlawful occupation or destruction of
forest lands and grazing lands. (92 sections)

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Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 33

5th ASSIGNMENT:
1. AARHUS Convention
2. Writ of Kalikasan
3. PD 1160: Expansion of Authority of Brgy. Captains
B. CASES
1. G.R. No. 180771, April 21, 2015 - RESIDENT MARINE
MAMMALS v. Sec. Reyes
2. G.R. No. 194239, June 16, 2015 - WEST TOWER
CONDOMINIUM CORPORATION v. FIRST PHILIPPINE
INDUSTRIAL CORPORATION
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1. AARHUS Convention

The Aarhus Convention was adopted on 25th June 1998 in
the Danish city of Aarhus at the Fourth Ministerial
Conference in the 'Environment for Europe' process. It lays
down a set of basic rules to promote the involvement of
citizens in environmental matters and improve enforcement
of environmental law. The Convention is legally binding on
States that have become Parties to it. As the European Union
is a Party, the Convention also applies to the EU institutions.

The Three Pillars of the Convention: The provisions of
the Aarhus Convention are broken down into three pillars:
access to information, public participation in decisionmaking and access to justice.

1. Access to Information
Articles 4 and 5 of the Convention concern environmental
information. Members of the public are entitled to request
environmental information from public bodies and these
bodies are obliged to maintain this information. This
includes information on the state of the environment,
policies and measures taken, or on the state of human
health and safety, where this can be affected by the state of
the environment. Some information is exempt from release,
for example where the disclosure would adversely affect
international relations, national defence, public security, the
course of justice, commercial confidentiality or the
confidentiality of personal data. Information may also be
withheld if its release could harm the environment, such as
the breeding sites of rare species.

2. Public Participation in Decision-Making
Under the Convention, the public has a right to participate
in decision-making in environmental matters.
Arrangements should be made by public authorities to
enable the public to comment on, for example, proposals for
projects affecting the environment, or plans and
programmes relating to the environment. Any subsequent
comments are to be taken into consideration in the
decision-making process. Information must be provided on
the final decisions and the reasons for it. In the European
Union, this part of the Aarhus Convention has been
implemented by Directive 2003/35/EC on public
participation (the Public Participation Directive).

3. Access to Justice
Article 9 of the Aarhus Convention allows the public to
access to justice, i.e. the right to seek redress when
environmental law is infringed and the right to access
review procedures to challenge public decisions that have
been made without regard to the two other pillars of the
Convention.
Article 9(1) deals with access to justice in respect of
requests for environmental information. It has been
implemented in Ireland by the European Communities
(Access to Information on the Environment) Regulations
2007-2011. These regulations provide for an internal
review mechanism in respect of information requests and
assign the role of Commissioner for Environmental
Information to the Information Commissioner.

All members of the public are required to have access to
review procedures to challenge decisions relating to the
environment, made by public bodies or private persons.
These procedures must be 'fair, equitable, timely and not
prohibitively expensive'.

2. Writ of Kalikasan

RULE 7 - WRIT OF KALIKASAN
SECTION 1. Nature of the writ. The writ is a remedy
available to a natural or juridical person, entity authorized
by law, peoples organization, non-governmental
organization, or any public interest group accredited by or
registered with any government agency, on behalf of
persons whose constitutional right to a balanced and
healthful ecology is violated, or threatened with violation by
an unlawful act or omission of a public official or employee,
or private individual or entity, involving environmental
damage of such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or provinces.

SEC. 2. Contents of the petition. The verified petition shall
contain the following:
(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent
or if the name and personal circumstances are unknown
and uncertain, the respondent may be described by an
assumed appellation;
(c) The environmental law, rule or regulation violated or
threatened to be violated, the act or omission
complained of, and the environmental damage of such
magnitude as to prejudice the life, health or property of
inhabitants in two or more cities or provinces;
(d) All relevant and material evidence consisting of the
affidavits of witnesses, documentary evidence, scientific
or other expert studies, and if possible, object evidence;
(e) The certification of petitioner under oath that:
(1) petitioner has not commenced any action or filed
any claim involving the same issues in any court,
tribunal or quasi-judicial agency, and no such other
action or claim is pending therein;

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 34

(2) if there is such other pending action or claim, a


complete statement of its present status;
(3) if petitioner should learn that the same or similar
action or claim has been filed or is pending, petitioner
shall report to the court that fact within five days
therefrom; and
(f) The reliefs prayed for which may include a prayer for the
issuance of a TEPO.

SEC. 3. Where to file. The petition shall be filed with the
Supreme Court or with any of the stations of the Court of
Appeals.

SEC. 5. Issuance of the writ. Within three days from the
date of filing of the petition, if the petition is sufficient in
form and substance, the court shall give an order:
(a) issuing the writ; and
(b) requiring the respondent to file a verified return as
provided in
Section 8 of this Rule. The clerk of court shall forthwith
issue the writ under the seal of the court including the
issuance of a cease
and desist order and other temporary reliefs effective until
further order.

3. PD 1160: VESTING AUTHORITY IN BARANGAY
CAPTAINS TO ENFORCE POLLUTION AND
ENVIRONMENTAL CONTROL LAWS AND FOR OTHER
PURPOSES

WHEREAS, the National Government has taken cognizance
of the increasing problems and grave danger brought about
by pollution, ecological imbalance and other environmental
disturbance throughout the country;
WHEREAS, in order to contain such problems and obviate
any further aggravation of the consequent danger to public
health, safety, national interest and survival of the present
and future generations, there is need for a more vigorous,
coordinated and effective method of enforcing national and
local laws, ordinances, rules and regulations that prohibit,
control or regulate activities which create imbalance
between man and his natural environment;

WHEREAS, it is expedient to involve and mobilize the
Barangays in a concerted and sustained national campaign
to minimize, if not totally eradicate, the causes of
disharmony between mans economic needs and his
environmental conditions;

Section 1. Deputizing the Barangay Captain, the Barangay
Councilman and Barangay Zone Chairman as Peace Officers.
All laws to the contrary notwithstanding, the Barangay
Captain, the Barangay Councilman, and the Barangay Zone
Chairman are hereby deputized as peace officers, with
authority to effect arrest of violators in accordance with
law, for purposes of enforcing and implementing national
and local laws, ordinances and rules and regulations
governing pollution control and other activities which

create imbalance in the ecology or disturbance in


environmental conditions.

Section 3. Method of Enforcement and Implementation.
The criminal aspect, such as the arrest and prosecution of
offenders, and the civil and administrative aspects, such as
the summary or judicial abatement of a thing, act or
condition that constitutes nuisance, or the cancellation of
the government license or permit for the existence of a
thing, act or condition that gives rise to a nuisance, shall be
vigorously enforced and implemented.
Section 4. Preferential Disposition of Cases. The courts
and proper prosecuting or administrative officials or
agencies shall give preference to the expeditious
disposition of cases involving a violation of the laws,
ordinances, rules and regulations referred to in Section 2 of
this Decree when the magnitude of the violation is such as
to adversely affect an entire or major portion of a
community as may be certified to by the National Pollution
Control Commission or the National Environmental
Protection Council as the case may be.

Section 5. Rules and Regulations. The National
Environmental Protection Council shall promulgate the
necessary rules and regulations for the effective
implementation of this Decree.

B. CASES

1. G.R. No. 180771, April 21, 2015 - RESIDENT MARINE
MAMMALS v. Sec. Reyes

Summary:
The Supreme Court of the Republic of the Philippines ruled
that a service contract for oil exploration, development, and
production issued by the government of the Philippines in
the protected area of the Tanon Strait was unconstitutional.

Case Note:
Two sets of petitioners filed separate cases challenging the
legality of Service Contract No. 46 (SC-46) awarded to Japan
Petroleum Exploration Co. (JAPEX). The service contract
allowed JAPEX to conduct oil exploration in the Tanon Strait
during which it performed seismic surveys and drilled one
exploration well. The first petition was brought on behalf of
resident marine mammals in the Tanon Strait by two
individuals acting as legal guardians and stewards of the
marine mammals. The second petition was filed by a nongovernmental organization representing the interests of
fisherfolk, along with individual representatives from
fishing communities impacted by the oil exploration
activities. The petitioners filed their cases in 2007, shortly
after JAPEX began drilling in the strait. In 2008, JAPEX and
the government of the Philippines mutually terminated the
service contract and oil exploration activities ceased. The
Supreme Court consolidated the cases for the purpose of
review.

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 35

In its decision, the Supreme Court first addressed the


important procedural point of whether the case was moot
because the service contract had been terminated. The
Court declared that mootness is not a magical formula that
can automatically dissuade the courts in resolving a case.
Id., p. 12. Due to the alleged grave constitutional violations
and paramount public interest in the case, not to mention
the fact that the actions complained of could be repeated,
the Court found it necessary to reach the merits of the case
even though the particular service contract had been
terminated. Id.

Reviewing the numerous claims filed by the petitioners, the
Supreme Court narrowed them down to two: 1) whether
marine mammals, through their stewards, have legal
standing to pursue the case; and 2) whether the service
contract violated the Philippine Constitution or other
domestic laws. Id., p. 11.

As to standing, the Court declined to extend the principle of
standing beyond natural and juridical persons, even though
it recognized that the current trend in Philippine
jurisprudence moves towards simplification of procedures
and facilitating court access in environmental cases. Id., p.
15. Instead, the Court explained, the need to give the
Resident Marine Mammals legal standing has been
eliminated by our Rules, which allow any Filipino citizen, as
a steward of nature, to bring a suit to enforce our
environmental laws. Id., p. 16-17.

The Court then held that while SC-46 was authorized
Presidential Decree No. 87 on oil extraction, the contract did
not fulfill two additional constitutional requirements.
Section 2 Article XII of the 1987 Constitution requires a
service contract for oil exploration and extraction to be
signed by the president and reported to congress. Because
the JAPEX contract was executed solely by the Energy
Secretary, and not reported to the Philippine congress, the
Court held that it was unconstitutional. Id., pp. 24-25.

In addition, the Court also ruled that the contract violated
the National Integrated Protected Areas System Act of 1992
(NIPAS Act), which generally prohibits exploitation of
natural resources in protected areas. In order to explore for
resources in a protected area, the exploration must be
performed in accordance with an environmental impact
assessment (EIA). The Court noted that JAPEX started the
seismic surveys before any EIA was performed; therefore its
activity was unlawful. Id., pp. 33-34. Furthermore, the
Tanon Strait is a NIPAS area, and exploration and utilization
of energy resources can only be authorized through a law
passed by the Philippine Congress. Because Congress had
not specifically authorized the activity in Tanon Strait, the
Court declared that no energy exploration should be
permitted in that area. Id., p. 34.

2. G.R. No. 194239, June 16, 2015 - WEST TOWER


CONDOMINIUM CORPORATION v. FIRST PHILIPPINE
INDUSTRIAL CORPORATION

Residents of the West Tower condominium in Makati on
Friday filed a petition for writ of kalikasan (nature) before
the Supreme Court (SC) against the officials of the company
which owns and operates the pipeline that caused an oil
leak near their residential area. The 36-page petition, the
residents asked the SC to direct FPIC to permanently shut
down and replace the damaged pipeline.

Kapunan explained that the residents wanted the pipeline
to be permanently closed because it poses a potential
environmental and security threat" not only to the
condominiums occupants but also to people living in areas
under which the 117-kilometer pipeline runs. The residents
likewise urged the high court to compel the pipelines
operator to rehabilitate and restore the environment"
affected by the oil leak, and to open a special trust fund to
answer for similar incidents in the future.

On November 19, 2010, the Court issued the Writ of
Kalikasan with a Temporary Environmental Protection
Order (TEPO) requiring respondents FPIC, FGC, and the
members of their Boards of Directors to file their respective
verified returns. The TEPO enjoined FPIC and FGC to: (a)
cease and desist from operating the WOPL until further
orders; (b) check the structural integrity of the whole span
of the 117-kilometer WOPL while implementing sufficient
measures to prevent and avert any untoward incident that
may result from any leak of the pipeline; and (c) make a
report thereon within 60 days from receipt thereof.

In compliance with the writ, FPIC directors Edgar Chua,
Dennis Javier, Dennis Gamab and Willie Sarmiento
submitted a Joint Return praying for the dismissal of the
petition and the denial of the privilege of the Writ of
Kalikasan. They alleged that: petitioners had no legal
capacity to institute the petition; there is no allegation that
the environmental damage affected the inhabitants of two
(2) or more cities or provinces; and the continued operation
of the pipeline should be allowed in the interest of
maintaining adequate petroleum supply to the public.

On January 21, 2011, FPIC, in compliance with the writ,
submitted its 4-page "Report on Pipeline Integrity Check
and Preventive Maintenance Program. In compliance with
the Court's July 30, 2013 Resolution, the DOE Secretary
issued on October 25, 2013 a Certification, attesting that the
WOPL is safe to resume commercial operations, subject to
monitoring or inspection requirements, and imposing
several conditions that FPIC must comply with.

On February 3, 2015, the Court required the parties to
submit their comment Sec. Petilla's letter within ten (10)
days from receipt of the Resolution. On various dates,
respondents First Gen Corporation, FPIC, and petitioner

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 36

West Tower filed their respective comments in compliance


with the Court's resolution

The Issues
1. Whether petitioner West Tower Corp. has the legal
capacity to represent the other petitioners and whether the
other petitioners, apart from the residents of West Tower
and Barangay Bangkal, are real parties-in-interest;
2. Whether a Permanent Environmental Protection Order
should be issued to direct the respondents to perform or to
desist from performing acts in order to protect, preserve,
and rehabilitate the affected environment;
3. Whether a special trust fund should be opened by
respondents to answer for future similar contingencies; and
4. Whether FGC and the directors and officers of
respondents FPIC and FGC may be held liable under the
environmental protection order.

HELD:
I. Petitioners as Real Parties-in-Interest
On the procedural aspect, We agree with the CA that
petitioners who are affected residents of West Tower and
Barangay Bangkal have the requisite concern to be real
parties-in-interest to pursue the instant petition. In the case
at bar, there can be no quibble that the oil leak from the
WOPL affected all the condominium unit owners and
residents of West Tower as, in fact, all had to evacuate their
units at the wee hours in the morning of July 23, 2010, when
the condominium's electrical power was shut down. Until
now, the unit owners and residents of West Tower could
still not return to their condominium units. Thus, there is no
gainsaying that the residents of West Tower are real
parties-in-interest.

II. Propriety of Converting the TEPO to PEPO or its Lifting in
light of the DOE Certification of the WOPL's Commercial
Viability
It must be stressed that what is in issue in the instant
petition is the WOPL's compliance with pipeline structure
standards so as to make it fit for its purpose, a question of
fact that is to be determined on the basis of the evidence
presented by the parties on the WOPL's actual state. Hence,
Our consideration of the numerous findings and
recommendations of the CA, the DOE, and the amici curiae
on the WOPL's present structure.
In this regard, the Court deems it best to take the necessary
safeguards, which are not similar to applying the
precautionary principle as previously explained, in order to
prevent a similar incident from happening in the future.

III. Propriety of the Creation of a Special Trust Fund
Anent petitioners' prayer for the creation of a special trust
fund, We note that under Sec. 1, Rule 5 of the Rules of
Procedure for Environmental Cases, a trust fund is limited
solely for the purpose of rehabilitating or restoring the
environment.
A reading of the petition and the motion for partial
reconsideration readily reveals that the prayer is for the

creation of a trust fund for similar future contingencies. This


is clearly outside the limited purpose of a special trust fund
under the Rules of Procedure for Environmental Cases,
which is to rehabilitate or restore the environment that has
presumably already suffered. Hence, the Court affirms with
concurrence the observation of the appellate court that the
prayer is but a claim for damages, which is prohibited by the
Rules of Procedure for Environmental Cases. As such, the
Court is of the considered view that the creation of a special
trust fund is misplaced.

IV. Liability of FPIC, FGC and their respective Directors and
Officers
On the last issue of the liability of FPIC, FGC and their
respective directors and officers, the CA found FGC not
liable under the TEPO and, without prejudice to the
outcome of the civil case and criminal complaint filed
against them, the individual directors and officers of FPIC
and FGC are not liable in their individual capacities.
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MIDTERM EXAM QUESTIONS:
1. What is the fastest way to close a factory causing grave air
and water pollution
2. a. sovereignty vis--vis principle of equitable utilization of
shared resources
b. common but differentiated responsibilities principle
3. SALIENT FEATURES OF some laws: [choose 1]
a. climate change act
4. What are the lead agencies of the government tasked to
implement environmental protection and sustainable
development
5. Is the Environmental Impact Assessment [EIA] a
requirement in all government permits for buildings and
sanitation etc. Explain
6. W/N animals may be duly represented by man in
environmental cases [marine mammals case/minors in
Oposa case]
7. Explain Writ of Kalikasan
8. A. Right to a balanced and healthful ecology in accordance
with the rhythm and harmony of nature
B. Philippine environmental policy embodied in PD 1151.
9. W/n you are in favor of the proposal to amend the Clean Air
Act to allow the use of incinerators to dispose wastes
10. May government agencies be mandated to spearhead
operations in ensuring that the Philippine environment is
duly maintained? [MMDA case]
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FINALS

1ST TOPIC: ASEAN Environmental Laws
1. ASEAN Structure [Reference: ASEAN Charter (2007)]
2. ASEAN Environmental Programs
Articles:
a. ASEAN Identity [Manila Times 11-30-2013]
b. Sovereignty as responsibility [Manila Times November
2, 2003]
3. ASEAN and China Cooperation in Mekong River
4. 1995 Agreement on Cooperation for Sustainable
Development of Mekong River Basin

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 37

5. 2009 Agreement on Disaster Management and


Emergency Response
6. ASEAN Agreement on TransBoundary Pollution
Control
Articles:
a. Maritime Convulsions in ASEAN [ Manila Times May
30, 2015]
b. ASEAN: Changed in Security Environment [Manila
Times Dec. 19, 2015]
***See supplemental notes on Problems, Issues and Concerns
in Implementation and Enforcement of National
Environmental Legislations.
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1. ASEAN Structure [Reference: ASEAN Charter (2007)]
ESTABLISHMENT - The Association of Southeast Asian
Nations, or ASEAN, was established on 8 August 1967 in
Bangkok, Thailand, with the signing of the ASEAN
Declaration (Bangkok Declaration) by the Founding Fathers
of ASEAN, namely Indonesia, Malaysia, Philippines,
Singapore and Thailand.

Brunei Darussalam then joined on 7 January 1984, Viet Nam
on 28 July 1995, Lao PDR and Myanmar on 23 July 1997,
and Cambodia on 30 April 1999, making up what is today
the ten Member States of ASEAN.

AIMS AND PURPOSES - As set out in the ASEAN
Declaration, the aims and purposes of ASEAN are:
1. To accelerate the economic growth, social progress and
cultural development in the region through joint
endeavours in the spirit of equality and partnership in
order to strengthen the foundation for a prosperous and
peaceful community of Southeast Asian Nations;
2. To promote regional peace and stability through abiding
respect for justice and the rule of law in the relationship
among countries of the region and adherence to the
principles of the United Nations Charter;
3. To promote active collaboration and mutual assistance
on matters of common interest in the economic, social,
cultural, technical, scientific and administrative fields;
4. To provide assistance to each other in the form of
training and research facilities in the educational,
professional, technical and administrative spheres;
5. To collaborate more effectively for the greater utilization
of their agriculture and industries, the expansion of their
trade, including the study of the problems of
international commodity trade, the improvement of their
transportation and communications facilities and the
raising of the living standards of their peoples;
6. To promote Southeast Asian studies; and
7. To maintain close and beneficial cooperation with
existing international and regional organizations with
similar aims and purposes, and explore all avenues for
even closer cooperation among themselves.

FUNDAMENTAL PRINCIPLES - In their relations with one
another, the ASEAN Member States have adopted the
following fundamental principles, as contained in the Treaty
of Amity and Cooperation in Southeast Asia (TAC) of 1976:


1. Mutual respect for the independence, sovereignty,
equality, territorial integrity, and national identity of all
nations;
2. The right of every State to lead its national existence free
from external interference, subversion or coercion;
3. Non-interference in the internal affairs of one another;
4. Settlement of differences or disputes by peaceful
manner;
5. Renunciation of the threat or use of force; and
6. Effective cooperation among themselves.

ASEAN COMMUNITY - The ASEAN Vision 2020, adopted by
the ASEAN Leaders on the 30th Anniversary of ASEAN,
agreed on a shared vision of ASEAN as a concert of
Southeast Asian nations, outward looking, living in peace,
stability and prosperity, bonded together in partnership in
dynamic development and in a community of caring
societies.

At the 9th ASEAN Summit in 2003, the ASEAN Leaders
resolved that an ASEAN Community shall be established.

At the 12th ASEAN Summit in January 2007, the Leaders
affirmed their strong commitment to accelerate the
establishment of an ASEAN Community by 2015 and signed
the Cebu Declaration on the Acceleration of the
Establishment of an ASEAN Community by 2015.

The ASEAN Community is comprised of three pillars,
namely the ASEAN Political-Security Community, ASEAN
Economic Community and ASEAN Socio-Cultural
Community. Each pillar has its own Blueprint, and, together
with the Initiative for ASEAN Integration (IAI) Strategic
Framework and IAI Work Plan Phase II (2009-2015), they
form the Roadmap for an ASEAN Community 2009-2015.

ASEAN CHARTER
The ASEAN Charter serves as a firm foundation in achieving
the ASEAN Community by providing legal status and
institutional framework for ASEAN. It also codifies ASEAN
norms, rules and values; sets clear targets for ASEAN; and
presents accountability and compliance.

The ASEAN Charter entered into force on 15 December
2008. A gathering of the ASEAN Foreign Ministers was held
at the ASEAN Secretariat in Jakarta to mark this very
historic occasion for ASEAN.

With the entry into force of the ASEAN Charter, ASEAN will
henceforth operate under a new legal framework and
establish a number of new organs to boost its communitybuilding process.

In effect, the ASEAN Charter has become a legally binding
agreement among the 10 ASEAN Member States.

2. ASEAN Environmental Programs
The ASEAN region is endowed with rich natural resources
that sustain essential life support systems both for the

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 38

region and the world. Apart from providing water, food and
energy, these natural resources play an important role in
sustaining a wide range of economic activities and
livelihoods.

The region is blessed with a variety of unique ecosystems
such as the Mekong River Basin, Ha Long Bay and Lake
Toba. The region has a long coastline, measuring about
173,000 kilometres in total, and is surrounded by major
seas and gulfs such as the South China Sea, the Andaman Sea
and the Gulf of Thailand.

By virtue of its location in the tropics, ASEAN region is also
endowed with abundant freshwater resources. In 2007, the
region had a total capacity of 5,675 billion cubic metres of
internal renewable water resources, with Brunei
Darussalam, Lao PDR and Malaysia having the highest per
capita water resource availability.

While occupying only 3 per cent of the worlds total land
area, the region is renowned for its rich biological heritage,
comprising the three mega biodiversity countries, namely
Indonesia, Malaysia and the Philippines, which together
represent around 80 per cent of global biological diversity.
The forest cover in ASEAN is about 45 per cent compared to
the worlds average of 30.3 per cent and it provides the
natural habitat for up to 40 per cent of all species on Earth.

In terms of demography, ASEAN is highly populated. In mid
2008, the region had about 580 million people with a
density of 130 people per square kilometre, one of the
highest in the world. Population density is especially high in
megacities such as Jakarta and Manila at about 10,000
people per square kilometre, spurred by increasing ruralurban migration and rapid urbanisation. In 2005, 44
percent of the regions total population were living in urban
areas and this is projected to increase to 55 percent by
2020.

Increased population, rapid economic growth, combined
with the existing and region-wide social inequities among
the ASEAN countries have essentially exerted increasing
pressures on the natural resources of the region and
brought along various common or transboundary
environmental issues, such as air, water and land pollution,
urban environmental degradation, transboundary haze
pollution, and depletion of natural resources, particularly
biological diversity. It has also led to increased consumption
of resources and generation of waste, resulting in
unsustainable development. Therefore, despite an
abundance of natural resources, ASEAN, as elsewhere, is
facing an enormous challenge in keeping a delicate balance
of environmental sustainability and economic development.

Policy and Institutional Framework
Recognizing the importance of environmental cooperation
for sustainable development and regional integration,
ASEAN has since 1977 cooperated closely in promoting
environmental cooperation among its member states.
Currently, ASEAN environmental cooperation focuses on ten

priority areas of regional importance as reflected in the


Blueprint for the ASEAN Socio-Cultural Community (ASCC
Blueprint) 2009-2015 as follows:

ASEAN Socio-Cultural Community (ASCC)
Blueprint 09-15
Section D. Ensuring Environmental Sustainability
ASEAN shall work towards achieving sustainable
development as well as promoting clean and green
environment by protecting the natural resource base for
economic and social development including the sustainable
management and conservation of soil, water, mineral,
energy, biodiversity, forest, coastal and marine resources as
well as the improvement in water and air quality for the
ASEAN region. ASEAN will actively participate in global
efforts towards addressing global environmental challenges,
including climate change and the ozone layer protection, as
well as developing and adapting environmentally-sound
technology for development needs and environmental
sustainability.

D.1. Addressing global environmental issues
D.2. Managing and preventing transboundary
environmental pollution (transboundary haze pollution and
transboundary movement of hazardous wastes)
D.3. Promoting sustainable development through
environmental education and public participation
D.4. Promoting environmentally sound technology
D.5. Promoting quality living standards in ASEAN
cities/urban areas
D.6. Harmonizing environmental policies and databases
D.7. Promoting the sustainable use of coastal and marine
environment
D.8. Promoting sustainable management of natural
resources and biodiversity
D.9. Promoting the sustainability of freshwater resources
D.10.Responding to climate change and addressing its
impacts
D.11.Promoting sustainable forest management

Articles:
a. ASEAN Identity [Manila Times 11-30-2013]
While the main goals of the Association of Southeast
Asian Nations (Asean) Brunei Darussalam, Cambodia,
Indonesia, Lao PDR, Malaysia, Myanmar, the Philippines,
Singapore, Thailand and Vietnamare described in trade
terms (single market and production base, highly
competitive economic region, equitable economic
development, further integration into the global
economy), the documents that have come out of various
Asean meetings talk about many other things.

On the matter of an Asean identity, the Asean Charter
(2007), the Asean Declaration on Cultural Heritage
(2000) and of late, the Asean Socio-Cultural Community
Blueprint (2009-20015), specify The Asean Identity is
the basis of Southeast Asias regional interests. It is our
collective personality, norms, values and beliefs as well
as aspirations as one Asean Community..The strategic
objective is to create a sense of belonging, consolidate

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 39

unity in diversity and enhance deeper mutual


understanding among Asean member countries about
their culture, history, religion and civilization

There are, however, sorts of cultural war among some
Asean countries related to cultural heritage. In 2012, it
was reported that riots erupted in Jakarta when
Indonesian protesters targeted the Malaysian Embassy
over dance heritage, in particular, the Tor-tor dance.
Likewise, some quarters claim Malaysias national
anthem Negaraku is based on Indonesias Terang Bulan
(Bright Moon). In the area of cuisine, the Yu Sheng/Lo
Hei, a dish served during Chinese Lunar Festival and
traditionally thought to bring prosperity is separately
claimed by the Chinese in Singapore and Malaysia as
theirs.

Even the Peranakan (Nonya) dishes, a fusion of Malay
and Chinese recipes, did not escape similar claims.
(Ethnic tension within Malaysia between Chinese
Malaysians and ethnic Malays is still on because of the
countrys economic policy of Bumiputra which gives
preferential treatment to the ethnic Malay majority.)
Another example is the Preah Vihar temple issue
between Cambodia and Thailand which had to be settled
by the International Court of Justice. In April 2013,
about 500 nationalists of the Patriot Thai Group raised
the flag of Thailand to assert Thai sovereignty over Preah
Vihar.

The examples cited demonstrate that cultures should not
be thought to have fixed borders. Many of these cultures
evolved in the course of time during Hindu, Muslim,
Buddhist or Christian periods. Meaning, practices in
countries within the Asean region continued to be
shaped by various peoples and events.
Even the legal culture is not an exception. Asean
countries have a mosaic of legislations with traces of
foreign influence brought about by periods of Spanish
(Philippines),

French (Cambodia, Lao PDR, Vietnam), British (Brunei
Darussalam, Malaysia, Myanmar, Singapore) AND Dutch
(Indonesia) occupation.

The lack of knowledge of historical roots and evolution
of particular ways of life and practices can result in too
nationalistic and divisive views. There should be space
for two or more forms of heritages, complementary but
not in conflict.

In short, they should be considered shared cultures that
transcend political boundaries. In this rubric are the
angklung (bamboo) orchestra as well as the gamelan
(gongs) ensemble of Indonesia, Malaysia and the
Philippines which are like one. Also batiks which are
either Indonesian, Malaysian or Thai like the wayang
kulit (shadow play).
The Philippine Bayanihan Dance Co. researched Singkil
and found that it has its equivalent in Indonesia and

Malaysia, which should not be a surprise considering the


geographic proximity of the three countries collectively
called Maphilindo before the birth of Asean. In the
same way, the popular Philippine folk dance Tinikling
has a slow movement version in Thailand. Truly Asean,
on the other hand, is kite flying as a pastime as well as
the tube-like-wrap-around malong, a real-life practical
garment for men still evident all over Southeast Asia
from Brunei Darussalam to Myanmar to Vietnam.

The case of the Preah Vihar temple between Cambodia
and Thailand, however, should be viewed in another
light. Involved is sovereignty but a way out is recognition
of functional sovereignty as distinguished from
territorial sovereignty. Functional sovereignty refers to
specific uses of a resource rather than absolute and
unlimited jurisdiction within a geographic space. It
means interdependence in the sustainable use of a
resource emphasizing that states are dutybound to
cooperate with each other to promote development
sustainability of the common environment.
Preah Vihar ought to be enjoyed as an Asean tourism
resource, a cultural heritage of both Cambodia and
Thailand aside from a religious destination in the Asean
jurisdiction. Or, in different words, the change of
perception of the role of sovereignty in relations
between states regarding their environment should be
characterized by equitable utilization ultimately
redounding to the benefit of the Asean region.

A good model for an Asean identity is the Asean Heritage
Parks system which continues to focus on cooperation
among member countries to develop a regional
conservation and management plan for the current
string of over 40 heritage parks in the region. The
criteria to determine if the region qualifies as an Asean
heritage park include high ethno-biological significance,
uniqueness and respresentativeness. Designation as a
heritage park strengthens cooperation, awareness and
appreciation among Asean countries.

Together with the other aspects of the Asean cultural
heritage, the designation promotes the twin objectives of
community building and identity. Best of all, the concept
of an Asean heritage parks system advances protected
area goals expressed in the Convention on Biological
Diversity, the Ramsar Convention on Wetlands
Conservation as well as the World Heritage Convention.

All this will help forge an Asean identity which is
important for the future implementation of Asean
policies. It is a complementary to the principles of
sovereignty and non-intervention (Asean Way) which
can, without the recognition of a cultural bridge, hinder
the implementation of Asean legal instruments and tools
including environmental laws. After all, what society
chooses to preserve of the past defines who we are
today, creates our collective memory and hastens our
new development as Asean Community bound by a
common regional identity. In the words of Asean law

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 40

expert Koh Kheng Lian, an Asean identity is crucial to


bringing about enhanced cooperation to supplement the
Asean Way and make it more meaningful, to encourage
all to THINK Asean instead of only Think National.

Before joining the Philippine Foreign Service, the author
was the first Director of the Environmental Management
Bureau (DENR) and served as Coordinator, Asean
Experts Group on the Environment.

b. Sovereignty as responsibility [Manila Times
November 2, 2003]
Sovereignty in its widest sense means the supreme,
absolute and uncontrollable power by which any
independent State is governed. Through the years, the
concept of sovereignty has evolved to include not only
internal or territorial sovereignty but also permanent
sovereignty over natural resources. Fundamentally, it
means the State can freely dispose of its natural wealth
and resources within its territory. Correlatively, the
principle brings about the State duty to properly manage
its wealth and natural resources as well as due care of
the environment. Derived from this principle is also the
right of the State to pursue its own socioeconomic and
environmental policies.

The growth of the principle of permanent sovereignty
over natural resources is closely associated with two
main concerns at the time of the creation of the United
Nations in 1945. These are (i) the economic development
of developing countries; and (ii) the self-determination
of colonial peoples.

The principle progressively developed that by 1972, the
well-known principle of the Stockholm Declaration on
the Human Environment declares the sovereign right of
States to exploit their own natural resources pursuant to
their own environmental policies. However, the right is
qualified by the obligation not to cause any
extraterritorial environmental harm. Principle 2 of the
Rio Declaration on the Environment and Development
restates Principle 21 as mentioned and confirms that
sovereignty does not only give rise to State rights but to
State obligations and responsibilities as well.
Emerging environmental challenges such as climate
change mitigation, food and water security and disaster
management add new dimensions to environmental
issues. No country can deal with those challenges alone.
States must continually identify common priorities to
deal with those concerns. It must enhance coordination
among states and even challenge the dichotomy between
regional and national interests, reexamining principles of
sovereignty and non-interference in the context of
environmental challenges. Asean response in this regard
are the on-going cooperative efforts to promote
conservation activities which include, among others, (i)
The Heart of Borneo initiative to create a
transboundary biodiversity sanctuary straddling
Malaysia, Brunei Darussalam and Indonesia against
illegal logging and clearing land for palm oil plantations;

(ii) The Asean Heritage Parks program which consists of


identified and proclaimed protected areas of high
conservation importance in each member country,
preserving in total a complete spectrum of
representative

3. ASEAN and China Cooperation in Mekong River
The Mekong River is the twelfth longest river in the world at
4,173 kms. and the largest international river within
Southeast Asia. It encompasses six countries China, Lao
Peoples Democratic Republic (PDR), Myanmar, Thailand,
Cambodia, Vietnam with the headwaters originating in the
Tibetan region of China. Its notable characteristic is the
extent to which the river is international in nature; not
only is it a boundary river for over 1,000 kms. but also
constitute all the water resources of Cambodia and Lao PDR
as well as the Northeast of Thailand and the Vietnamese
rice bowl in the Mekong Delta.

A 1995 Agreement on the Cooperation for the Sustainable
Development of the Mekong River Basin was signed by four
Asean member riparian countries, namely, Cambodia, Lao
PDR, Thailand and Vietnam. The Agreement emphasizes
joint development, ecological protection and dynamic
process of water allocation. China and Myanmar (a member
of Asean), two upper basin countries are not parties to the
Agreement but were designated dialogue partners in 1996
and have participated in various Mekong River-related
activities.

Mention should be made of the fact that customary
international law played an important role in reaching the
Agreement on cooperation by providing a framework of
guiding principles among which are: (i) Principle of
international waters, i.e. watercourse which means a system
of surface and groundwater constituting by virtue of their
physical relationship a unitary whole and normally flowing
into a common terminus; (ii) Principle of reasonable and
equitable utilization whereby all watercourse states are
entitled to the reasonable and equitable uses and benefits
of an international watercourse within their territory and,
by implication, have a correlative obligation not to deprive
other watercourse states of their right to reasonable and
equitable utilization; (iii) Obligation not to cause significant
harm which requires states to exercise due diligence to
utilize an international watercourse in such a way as not to
cause significant harm to other states; (iv) Principle of
notification and negotiation on planned measure the
purpose of which is to assist watercourse states in
maintaining an equitable balance between their respective
uses of an international watercourse by helping to avoid
disputes and providing the context for negotiations if
harmful effects are unavoidable; and (v) Duty to cooperate
through regular exchange of data to allow watercourse
states to practice due diligence in their activities.

The Agreement established a Mekong River Commission
which articulated the principles mentioned above and
outlined a set of rules for the reasonable and equitable use
of the basins water resources. It also provides for

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 41

cooperation in all fields of sustainable development,


utilization, management and conservation of the water and
related resources of the Mekong River Basin with the end in
view that the livelihood of 60 million people living within
the Lower Mekong River Basin will improve.
Identified areas for cooperation include, but is not limited
to, irrigation, hydro-power, navigation, flood control,
fisheries, timber floating, recreation and tourism.

Lately, regional cooperation is evident at the way Asean
(Lower Mekong) riparian countries cooperate with China in
regard to the Mekong River. There is a proliferation of
regional frameworks and cooperative mechanisms to
promote development of the riparian countries. For
instance, a Quadripartite Economic Cooperation Initiative
was launched by Thailand and China in 1993 to promote
economic cooperation among Mekongs upper riparian
countries (China, Lao PDR, Myanmar and Thailand) through
transportrelated projects. Another example is the Asean
Mekong Basin Development Cooperation launched in 1996,
a larger framework which encompasses riparian countries
and non-riparian countries. It aims to stimulate economic
cooperation addressing the economic disparity between
long-time Asean countries and the later Asean members
Cambodia, Lao PDR, Myanmar and Vietnam.

In addition, the Asian Development Bank supported
improved environmental management in the Greater
Mekong Sub-region in 2006 through its Core Environment
Program. The sub-region is composed of Cambodia, Lao
PDR, Myanmar and China (for the southern region),
Thailand and Vietnam. The program aims to mainstream
environmental considerations into the transport, energy,
tourism and agricultural sectors of the sub-regions
economic cooperation program. It promoted the application
of development planning tools and integrate environment
into sustainable development. Likewise, a Mekong Wetlands
Biodiversity Conservation and Sustainable Use Program
exists among Lower Mekong River Basin countries
(Cambodia, Lao PDR, Thailand and Vietnam) for the
purpose of building awareness of conservation of natural
resources in the Mekong Basin wetlands and reinforcing the
effectiveness and strength of local organizations and
communities to uplift their quality of life and to manage
wetlands and biodiversity wisely.

The cooperation mechanisms in place show that while
China opted not to be a member of the Mekong River
Commission set up in 1995, it can be enticed to cooperate
with other riparian countries through some regional
development frameworks. The above-mentioned
mechanisms have China as a major actor which draws China
out of its self-imposed isolation as far as the Mekong is
concerned. China as a dialogue partner of Asean sits at the
negotiating table to discuss the regional development of the
Mekong riparian countries. It could, perhaps, be assumed
that riparian countries in the Mekong Basin (Cambodia, Lao
PDR, Thailand and Vietnam) have functioning
communication channels with China through various
cooperation mechanisms.


4. 1995 Agreement on Cooperation for Sustainable
Development of Mekong River Basin
The Governments of The Kingdom of Cambodia, The Lao
People's Democratic Republic, The Kingdom of Thailand,
and The Socialist Republic of Viet Nam, being equally
desirous of continuing to cooperate in a constructive and
mutually beneficial manner for sustainable development,
utilization, conservation and management of the Mekong
River Basin water and related resources, have resolved to
conclude this Agreement setting forth the framework for
cooperation acceptable to all parties hereto to accomplish
these ends
Who, having communicated to each other their respective
full powers and having found them in good and due form,
have agreed to the following:

CHAPTER I. PREAMBLE
RECALLING the establishment of the Committee for the
Coordination of Investigations of the Lower Mekong Basin
on 17 September 1957 by the Governments of these
countries by Statute endorsed by the United Nations,

NOTING the unique spirit of cooperation and mutual
assistance that inspired the work of the Committee for the
Coordination of Investigations of the Lower Mekong Basin
and the many accomplishments that have been achieved
through its efforts,
ACKNOWLEDGING the great political, economic and social
changes that have taken place in these countries of the
region during this period of time which necessitate these
efforts to re-assess, re-define and establish the future
framework for cooperation,
RECOGNIZING that the Mekong River Basin and the related
natural resources and environment are natural assets of
immense value to all the riparian countries for the economic
and socia! well-being and living standards of their peoples,

REAFFIRMING the determination to continue to cooperate
and promote in a constructive and mutually beneficial
manner in the sustainable development, utilization,
conservation and management of the Mekong River Basin
water and related resources for navigational and nonnavigational purposes, for social and economic
development and the well-being of all riparian States,
consistent with the needs to protect, preserve, enhance and
manage the environmental and aquatic conditions and
maintenance of the ecological balance exceptional to this
river basin,

AFFIRMING to promote or assist in the promotion of
interdependent sub-regional growth and cooperation
among the community of Mekong nations, taking into
account the regional benefits that could be derived and/or
detriments that could be avoided or mitigated from
activities within the Mekong River Basin undertaken by this
framework of cooperation,

REALIZING the necessity to provide an adequate, efficient
and functional joint organizational structure to implement

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 42

this Agreement and the projects, programs and activities


taken thereunder in cooperation and coordination with
each member and the international community, and to
address and resolve issues and problems that may arise
from the use and development of the Mekong River Basin
water and related resources in an amicable, timely and good
neighbourly manner,

PROCLAIMING further the following specific objectives,
principles, institutional framework and ancillary provisions
in conformity with the objectives and principles of the
Charter of the United Nations and international law.

Objectives: To establish a framework for co-operation in
the sustainable development, utilization, conservation and
management of the Mekong River Basin.

Summary of provisions:
Parties agree to, inter alia, co-operate in all fields of
sustainable development, utilization, management and
conservation of the water and related resources of the
Mekong River Basin (art. 1), and protect the environment,
natural resources, aquatic life and conditions and ecological
balance from pollution or other harmful effects resulting
from any use of the Basin (art. 3). Other provisions deal
with equitable and reasonable utilization of the Basin,
prevention and cessation of harmful effects, State
responsibility for damages, freedom of navigation, and
emergency situations. Institutional mechanisms: A Mekong
River Commission is established, consisting of three
permanent bodies: the Council, the Joint Committee and a
Secretariat (art. 11). The Joint Committee is to, inter alia,
prepare and propose for approval of the Council Rules for
Water Utilization and Inter-Basin Diversions (art. 26).

5. 2009 Agreement on Disaster Management and
Emergency Response
The ASEAN Agreement on Disaster Management and
Emergency Response (AADMER) is a regional framework
for cooperation, coordination, technical assistance, and
resource mobilization in all aspects of disaster
management. AADMER provides the guidelines for effective
mechanisms to achieve substantial reduction of disaster
losses in lives and in the social, economic, and
environmental assets, and to jointly respond to disaster
emergencies through concerted national efforts and
intensified regional and international cooperation.

AADMER affirms ASEANs commitment to the Hyogo
Framework of Action (HFA) and is the first legally-binding
HFA related instrument in the world. It serves as the
foundation for disaster management initiatives in the
region, including for the establishment of AHA Centre.

Signed by the Foreign Ministers of ASEAN in Vientiane, Lao
PDR in July 2005, the Agreement has been ratified by all ten
Member States and entered into force on 24 December
2009. A work programme for the period of 2010 - 2015 has
been developed and its progress has been monitored.

Article 2 Objective - The objective of this Agreement is to


provide effective mechanisms to achieve substantial
reduction of disaster losses in lives and in the social,
economic and environmental assets of the Parties, and to
jointly respond to disaster emergencies through concerted
national efforts and intensified regional and international
co-operation. This should be pursued in the overall context
of sustainable development and in accordance with the
provisions of this Agreement.

Article 3 Principles - The Parties shall be guided by the
following principles in the implementation of this
Agreement:
1. The sovereignty, territorial integrity and national unity of
the Parties shall be respected, in accordance with the
Charter of the United Nations and the Treaty of Amity and
Cooperation in Southeast Asia, in the implementation of this
Agreement. In this context, each affected Party shall have
the primary responsibility to respond to disasters occurring
within its territory and external assistance or offers of
assistance shall only be provided upon the request or with
the consent of the affected Party.
2. The Requesting or Receiving Party shall exercise the
overall direction, control, co-ordination and supervision of
the assistance within its territory.
3. The Parties shall, in the spirit of solidarity and
partnership and in accordance with their respective needs,
capabilities and situations, strengthen co-operation and coordination to achieve the objectives of this Agreement.
4. The Parties shall give priority to prevention and
mitigation, and thus shall take precautionary measures to
prevent, monitor and mitigate disasters.
5. The Parties shall, to the extent possible, mainstream
disaster risk reduction efforts into sustainable development
policies, planning and programming at all levels.
6. The Parties, in addressing disaster risks, shall involve, as
appropriate, all stakeholders including local communities,
nongovernmental organisations and private enterprises,
utilising, among others, community-based disaster
preparedness and early response approaches.

Article 4 General Obligations: In pursuing the objective
of this Agreement, the Parties shall:
a. co-operate in developing and implementing measures to
reduce disaster losses including identification of disaster
risk, development of monitoring, assessment and early
warning systems, standby arrangements for disaster relief
and emergency response, exchange of information and
technology, and the provision of mutual assistance;
b. immediately respond to a disaster occurring within their
territory. When the said disaster is likely to cause possible
impacts on other Member States, respond promptly to a
request for relevant information sought by a Member State
or States that are or may be affected by such disasters, with
a view to minimising the consequences;
c. promptly respond to a request for assistance from an
affected Party; and
d. take legislative, administrative and other measures as
necessary to implement their obligations under this
Agreement.

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 43

PART II. DISASTER RISK IDENTIFICATION, ASSESSMENT


AND MONITORING
Article 5 : Risk Identification and Monitoring
1. Each Party shall take appropriate measures to identify
disaster risks in its respective territories covering, among
others, the following aspects:
a. natural and human-induced hazards;
b. risk assessment;
c. monitoring of vulnerabilities; and
d. disaster management capacities.
2. The Parties shall assign risk levels to each identified
hazard according to agreed criteria.
3. Each Party shall ensure that its National Focal Point, at
agreed regular intervals, communicates the above
information to the ASEAN Co-ordinating Centre for
Humanitarian Assistance on disaster management,
hereinafter referred to as "the AHA Centre", established in
accordance with Article 20 of this Agreement.
4. The AHA Centre shall receive and consolidate data as
analysed by and recommendations on risk level from the
National Focal Points. On the basis of such information, the
AHA Centre shall disseminate to each Party, through its
National Focal Point, the analysed data and risk level arising
from the identified hazards. The AHA Centre may also,
where appropriate, conduct analysis on possible regionallevel implications.

PART III. DISASTER PREVENTION AND MITIGATION
Article 6 Prevention and Mitigation
1. The Parties shall, jointly or individually, develop
strategies to identify, prevent and reduce risks arising from
hazards.
2. Each Party shall undertake measures to reduce losses
from disasters which include:
a. developing and implementing legislative and other
regulatory measures, as well as policies, plans, programmes
and strategies;
b. strengthening local and national disaster management
capability and co-ordination;
c. promoting public awareness and education and
strengthening community participation; and d. promoting
and utilising indigenous knowledge and practices.
3. The Parties shall co-operate in developing and
implementing regional disaster prevention and mitigation
programmes to complement national-level efforts.



PART IV. DISASTER PREPAREDNESS
Article 7 Disaster Early Warning
1. The Parties shall, as appropriate, establish, maintain and
periodically review national disaster early warning
arrangements including:
a. regular disaster risk assessment;
b. early warning information systems;
c. communication network for timely delivery of
information; and
d. public awareness and preparedness to act upon the early
warning information.

2. The Parties shall co-operate, as appropriate, to monitor


hazards which have trans-boundary effects, to exchange
information and to provide early warning information
through appropriate arrangements.

Article 8 Preparedness
1. The Parties shall, jointly or individually, develop
strategies and contingency/response plans to reduce losses
from disasters.
2. The Parties shall, as appropriate, prepare Standard
Operating Procedures for regional co-operation and
national action required under this Agreement including the
following:
a. regional standby arrangements for disaster relief and
emergency response;
b. utilisation of military and civilian personnel,
transportation and communication equipment, facilities,
goods and services and to facilitate their trans-boundary
movement; and c. co-ordination of joint disaster relief
and emergency response operations.
3. The Parties shall, jointly or individually enhance their
national capacities, as appropriate, inter alia, to:
a. facilitate mobilisation of national resources to support
such regional standby arrangements for disaster relief
and emergency response;
b. co-ordinate with the ASEAN Food Security Reserve
Board to facilitate release of rice from the ASEAN
Emergency Rice Reserve; and
c. conduct training and exercises to attain and maintain
the relevance and applicability of such Standard
Operating Procedures.
4. Each Party shall regularly inform the AHA Centre of its
available resources for the regional standby arrangements
for disaster relief and emergency response.
5. The AHA Centre shall facilitate the establishment,
maintenance and periodical review of regional standby
arrangements for disaster relief and emergency response.
6. The AHA Centre shall facilitate periodic review of regional
standard operating procedures.

PART V. EMERGENCY RESPONSE
Article 10 National Emergency Response
1. Each Party shall ensure according to their national
legislation that the necessary measures are taken to
mobilize equipment, facilities, materials, human and
financial resources required to respond to disasters.
2. Each Party may forthwith inform other Parties and the
AHA Centre of such measures.
Article 11 Joint Emergency Response through the Provision
of Assistance
Article 12 Direction and Control of Assistance
Article 13 Respect of National Laws and Regulations
Article 14 Exemptions and Facilities in Respect of the
Provision of Assistance
Article 15 Identification
Article 16 Transit of Personnel, Equipment, Facilities and
Materials in Respect of the Provision of Assistance


Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 44

PART VI. REHABILITATION


Article 17 Rehabilitation : For the purpose of the
implementation of this Agreement, the Parties shall, jointly
or individually, develop strategies and implement
programmes for rehabilitation as a result of a disaster. The
Parties shall promote, as appropriate, bilateral, regional and
international co-operation for rehabilitation as a result of a
disaster.

PART VII. TECHNICAL CO-OPERATION AND SCIENTIFIC
RESEARCH
Article 18 Technical Co-operation
Article 19 Scientific and Technical Research

PART VIII. ASEAN CO-ORDINATING CENTRE FOR
HUMANITARIAN ASSISTANCE
Article 20 ASEAN Co-ordinating Centre for Humanitarian
Assistance

6. ASEAN Agreement on TransBoundary Pollution
Control
ASEAN Agreement on Transboundary Haze Pollution - The
Governments of the ten ASEAN Member Countries signed
the ASEAN Agreement on Transboundary Haze Pollution on
10 June 2002 in Kuala Lumpur, Malaysia. The Agreement is
the first regional arrangement in the world that binds a
group of contiguous states to tackle transboundary haze
pollution resulting from land and forest fires. It has also
been considered as a global role model for the tackling of
transboundary issues.

The Agreement requires the Parties to the Agreement to:
(i) cooperate in developing and implementing measures to
prevent, monitor, and mitigate transboundary haze
pollution by controlling sources of land and/or forest
fires, development of monitoring, assessment and early
warning systems, exchange of information and
technology, and the provision of mutual assistance;
(ii) respond promptly to a request for relevant information
sought by a State or States that are or may be affected by
such transboundary haze pollution, with a view to
minimising the consequence of the transboundary haze
pollution; and
(iii) take legal, administrative and/ or other measures to
implement their obligations under the Agreement.

The Agreement establishes an ASEAN Coordinating Centre
for Transboundary Haze Pollution Control to facilitate
cooperation and coordination in managing the impact of
land and forest fires in particular haze pollution arising
from such fires. Pending the establishment of the Centre,
ASEAN Secretariat and ASEAN Specialised Meteorological
Centre (ASMC) co-performed the interim functions of the
Centre.

The Agreement entered into force on 25 November 2003.
To date, nine Member Countries, namely Brunei
Darussalam, Cambodia, Lao PDR, Malaysia, Myanmar,
Philippines, Singapore, Thailand, and Viet Nam, have
ratified the Haze Agreement.

Articles:
a. Maritime Convulsions in ASEAN [ Manila Times
May 30, 2015]
The sea belongs to nobody but interests clash over its
uses.
At no other time in history do some Asean countries face
several maritime challenges than during this second
decade of the 21st. All because of the uses of the South
China Sea and its resources major shipping routes,
important fishing grounds and abundant oil and gas
reserves. But over and above those maritime pursuits is
the question of territorial (land, water and air space)
ownership as developed in law.

The South China Sea is a marginal sea that is part of the
Pacific Ocean, encompassing an area from Singapore and
Malacca Straits to the Strait of Taiwan of around 3,500,000
square kilometers. Center of dispute is the Spratly Islands
area. Chinas unilaterally declared nine-dash line
ownership of 90% of the South China Sea overlaps with the
competing claims of some Asean countries Brunei
Darussalam, Malaysia, the Philippines and Vietnam. NonAsean claimant is Taiwan. Similarly claimed by China is
Natuna Islands at the southern tip of South China Sea
which is within Indonesias exclusive economic zone (EEZ)
and sits on Indonesias maritime borders with Brunei
Darussalam, Malaysia and Vietnam. Likewise, Chinas
recent announcement of a fishing ban to all fishing
activities in Hoang Sa (Paracel) archipelago was strongly
objected to by Vietnam.

Vietnam says it has sufficient legal and historical
foundations testifying to its sovereignty over Hoang Sa and
the sovereign rights and jurisdiction over its waters, EEZ
and continental shelf in line with the UN Law of the Sea.
Scarborough Shoal which is well within the Philippine EEZ
is contested too. (Japan is into a bitter territorial dispute
with China over the Sinkaku/Diaoyu islands in the East
China Sea).

At the recently concluded Summit of Heads of States held
in Malaysia, Asean leaders expressed their concern at
Chinas massive reclamation in the Spratlys which has
eroded trust and confidence and may undermine, peace,
security and stability in the South China Sea. Asean
foreign ministers were instructed to urgently address the
matter constructively via frameworks such as AseanChina relations. The Asean Chairmans statement also
reasserted (i) the importance of freedom of navigation in
and over-flight in the South China Sea; (ii) called for the
full implementation of the Declaration of the Conduct of
Parties in the South China Sea; and (iii) demanded that the
parties concerned should resolve their differences in
accordance with international law including the Law of the
Sea treaty.

The rising tension in the disputed waters prompted the US
to warn against militarization of the territorial disputes.
Lately, satellite imagery showed the extensive reclamation
activities for a land mass that could support an airstrip,

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 45

apron, harbor, etc. which China defined as being within its


sovereign territory. The US navy sent a littoral combat
ship on its first patrol and used a P8-A Poseidon, the most
advanced surveillance aircraft in the US arsenal, over the
contested area. Prior to this development, the US had its
6th Naval Engagement Activity in Vietnam. Likewise, the
Philippines and US militaries recently held its largest
Balikatan exercises in years with nearly 12,000 troops
participating (double the number that participated in
2014).

Coincidentally, IHS Janes Defence Weekly, a leading
provider of defense and security insight and information,
noted that the rest of the Asean countries are modernizing
their respective navies as part of a wider Southeast Asian
trend towards greater maritime capabilities. Singapore has
the most potent military in Southeast Asia. Myanmar, on
the other hand, embarked on an ambitious program of
indigenous shipbuilding backed up by naval exercises on
its own.

The territorial sovereignty issue in the South China Sea had
become an external sovereignty or regional security issue
with environmental security threats revolving around
exploitation of natural resources alongside strategic ones,
i.e. potential military uses of the islands.
In all these maritime rivalries, ecological security ought to
be recognized as an inseparable component of the concept
of sovereignty to attain regional security. Contending
states must recognize their joint responsibility for the
protection of the transnational environment.
For the rich in marine and mineral resources but object of
overlapping ownership claims Spratly islands group, some
arguments favor cooperation to preserve/conserve the
ecological wealth of the area rather than tackling head-on
the sovereignty issue. In this regard, serious thought
should be given to the long-standing suggestion for an
Asean Area of Cooperation in the Spratlys as well as the
possibilities for the designation of an internationally
protected area status, i.e. Marine Peace Park, through
multilateral cooperative options available. These could
further elaboration of confidence and security building
measures in both the military and civilian sectors by the
adoption of less offensive military postures in defense of
the environment.

The removal of confrontation between States is an
important precondition for the removal of confrontation
between humankind and the natural environment
considering the fundamental necessity of securing the
long-term availability of natural resources.
The pursuit of environmental security could become a
major agent of change in international affairs, promoting
an international order more compatible with human needs.
Common sovereignty over natural resources should be
recognized and given priority in the resolution of conflicts
and hostilities among States.
b. ASEAN: Changed in Security Environment [Manila
Times Dec. 19, 2015]


NEW thinking about defense and security environment
during the last few years pervades countries around the
world. This was brought about by, to mention a few, the
emergence of a terrorist quasi-state in the Middle East;
home-grown terrorist attacks prompting governments to
be on extreme alert; mass immigration to Europe; the
proliferation of advanced defense technologies; internal
displacement of people due to armed conflicts; the
phenomenon of environmental refugees including climate
migrants as a consequence of natural disasters; popularity
of cyber warfare, which gave way to various levels of
internal uncertainty and a new perception about security
concerns.

In the Asean region, tension prevails as rivals jostle over
territories in the West Philippine Sea which has enormous
geo-strategic and economic significance. This climate of
conflict has security implications which forced
governments to re-think their long-term defense
strategies. In fact, some analysts opined that defense
planning is increasingly being shaped by climate and
resource considerations too. Take note that majority of the
Asean countries are vulnerable to extreme climate
disturbances due to global warming and disaster relief had
come to be accepted as the militarys secondary role.

The changed defense and security environment in the
Asean countries has led to procurement drivesto ensure
stability. Singapore highlights its island defense
capabilities centered on automation and mobility
enhancements. The Singapore Armed Forces recently
acquired protected mobility vehicles which enhances
ballistic protection for troops and incorporates a host of
safety measures. Earlier, the country significantly boosted
its sea power by commissioning six new frigates.

The Philippines, as part of its long awaited military
modernization program, recently received new aircrafts
including jet fighters and helicopters from South Korea.
Medium lift transport and surveillance aircrafts were also
acquired from Spain while heavy landing craft vessels will
be acquired from Australia. Meanwhile, as Vietnams
economy improves tremendously, reforms to further
professionalize the Vietnam Peoples Army are under way.
Its procurements include, among others, fighter aircrafts,
submarines, coastal radar system, maritime patrol
helicopters and fast patrol vessels for the Vietnam Coast
Guard.

Brunei Darrusalams off-shore patrol vessels from
Germany considerably enhanced its naval operational
capabilities. To improve training, its Navy is building a
center of excellence for seamanship warfare, weapons
handling, firefighting and damage control, communications
and engineering training.

Indonesia, on the other hand, identified its need for a
complementary submarine fleet that can fill in the gaps of

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 46

their new ocean-going submarines. Note that Indonesia


maintains a submarine base in Sulawesi Island.
Malaysia, which established its own Malaysian Maritime

Enforcement Agency in 2005, took delivery of its first
Scorpene submarines in 2009 while Thailand, the first to
possess Southeast Asias aircraft carrier has been exploring
submarine procurement.

The rapid expansion of Myanmars Navy backed up by an
ambitious program of indigenous shipbuilding is well
noted in the region. Myanmars military or Tatmadaw,
however, was drawn into its largest and costliest military
campaign against insurgents in the Kokang region of
northeaster Shan State. The Kokang campaign marked the
first time the Tatmadaw undertook combined arms
operations involving mechanized infantry, artillery, armor
and air power under combat conditions.

Those acquisitions of military hardware were made prior
to Washingtons announcement of a US $250 million plan
to bolster naval capabilities of the Philippines, Indonesia,
Malaysia, Vietnam and Japan and before Singapore agreed
to the first deployment in the city state of a US P8Poseidon
spy plane, the most advance surveillance aircraft of the US,
and long before the arrival in Subic Bay of USS Tucson, a
high endurance submarine with advanced stealth
capabilities.

A rising China turning closer to Russia with US as Pacific
hegemon are obviously contributory to the changed
defense and security environment in the countries of
Southeast Asia.

Be that as it may, the most pressing priority for Asean
countries in the changed security environment is to
improve their intelligence-gathering capabilities.
Procurement of munitions alone would not suffice to meet
the countries security needs. There ought to have
improvement in the regions intelligence sharing and
coordinating capabilities. More than any other time, the
new era of intel-centric warfare using innovative
information, communications and computer technologies
demands the ability to assess, analyze and decisively act in
an emerging situation of critical importance. In short,
military equipment and weapons advantage should be
backed by an effective intelligence capability.
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Assignment for Feb 22:
1. Strengthening Sustainable Development in Regional
InterGovernmental Governance: Lessons from the
'ASEAN Way' [SG journal of International and
Comparative Law Vol. 6, 2002]
2. ASEAN: Indonesian Haze NOT a Sovereignty Issue
[Manila Times June 22, 2013]
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

1. Strengthening Sustainable Development in Regional


InterGovernmental Governance: Lessons from the
'ASEAN Way'

"The existing frameworks for regional inter-governmental
governance should be fully utilized as part of the
international governance structure. Greater use should be
made of regional, inter-governmental and other
organizations to promote coordinated sustainable
development initiatives for that region."
Joint Statement of Environment Ministers of ASEAN to the
World Summit on Sustainable Development, 4 June 2002,
Bali, Indonesia, in Report of the 12th Meeting of the ASEAN
Working Group on Nature Conservation and Biodiversity
(AWGNCB), 17-18 June 2002, Yangon, Annex 12, at para. 21
[ASEAN is the acronym for the Association of South East
Asian Nations]

Sustainable development, worldwide, cannot be attained
unless each country undertakes common but differentiated
actions to implement the recommendations made in Agenda
21. These undertakings can be encouraged through
strengthened international support networks, such as
international cooperation to provide information on
whether patterns and climatic conditions or to fashion new,
collaborative financing systems for implementing needed
actions. However, work at the international level is remote
from each country's specific problems or their remediation.
Countries also need regional support, where networks are
closer to actual problems and can understand them
realistically.

Moreover, most transboundary issues appear first
regionally, as pollution in a shared river basin or the loss of
habitat across the range of a species migrating across two or
more States. A single country alone cannot cope effectively
with shared environmental problems. Therefore, regional
systems of environmental management are essential to
securing agreements for, and implementation of, specific
action programs.'

ASEAN has rapidly matured. ASEAN was founded with the
1967 Bangkok Declaration in order to encourage stable
relations among its original member states, i.e. Indonesia,
Malaysia,
Singapore, Thailand and the Philippines, and to resist
destabilizing influences from the war in Viet Nam. The
means to stability was to promote economic, social and
cultural cooperation in the spirit of equality and
partnership. A formal treaty system was not required. As
the Viet Nam war ended, ASEAN held its fist Summit
Meeting in Bali (1976), followed by the 1977 Summit in
Kuala Lumpur, where cooperation on regional
industrializations was launched. In this first phase of
cooperation, national ASEAN secretariats carried on the
projects.

From 1977 to 1992, ASEAN worked with an administrative
regional secretariat, based in Indonesia. ASEAN participated
actively in the process to define sustainable development in

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 47

Agenda 21, and since 1992 ASEAN has elaborated ever


more sophisticated measures for coordination of policy, and
expanded its membership to include among its members
Cambodia, Laos, Myanmar Purma), and Viet Nam. Since the
four new members have substantial needs in building their
capacity for environmental protection specifically, and
sustainable development more broadly, ASEAN has begun
to include a capacity-building dimension to its cooperation.

11. THE "ASEAN WAY" - Cooperation to build toward stable
relations came to be known as the "ASEAN Way." ASEAN's
regional collaboration emphasizes three norms:
(1) non-interference or non-intervention in each
others' domestic affairs, as underscored in the United
Nations Charter, Article 2(7),
(2) the use of consensus planning and cooperative
programs and a preference for national implementation
rather than reliance on a strong region-wide agency or
bureaucracy.

There are only two ASEAN hard law agreements in ASEAN's
35 years of history (see infra), and these have yet to be
ratified. ASEAN has set a goal of closer cohesion and
economic integration through building a recognized ASEAN
community through adopting in 1997 its Vision 2020. In
contrast to practices in Oceana reflecting the experience of
the British Commonwealth, 6 in ASEAN disputes tend to be
settled by conciliation and consultation, not by formal
judicial types of dispute resolutions. ASEAN's origins in
1967 did not include environmental management as an
express concern. The then ASEAN members attended the
United Nations Conference on the Human Environment in
Stockholm, in 1972, and thereafter ASEAN began to include
environment as a theme among its complex system of
regional consultations to promote cooperation in areas of
economic, social, technical and scientific development.
ASEAN's accomplishments are not easily cited, since ASEAN
has emphasized programmatic cooperation rather than
adoption of formal, easily cited legal instruments requiring
environmental protection. However, it would be a mistake
to suggest that ASEAN's quiet cooperation is somehow less
effective than western sponsored treaty arrangements. In
fact, when ASEAN is compared to the Asia-Pacific Economic
Cooperation (APEC) forum. ASEAN appears to have
sustained a regional system for collaboration while APEC
has a hard time keeping up a dialogue. ASEAN's measured
accomplishments may be discerned is a description of its
systems for regional environmental governance.
Environmental governance has been defined by Miranda
Schreurs as "the interactions among formal and informal
institutions and the actors within society that influence how
environmental problems are identified and named. To this
definition, we would add "and are implemented." Examining
environmental governance necessarily involves
examination of not only "institutions", which is the
organizational structures and framework of ASEAN, but also
requires study of the decision-making practices and
programs of the organization. Some of ASEAN's institutions
for environmental governance can be illustrated with
reference to how ASEAN addresses biodiversity

conservation and transfrontier air pollution born forest


fires. ASEAN's "rules and practices," its programs and plans
of action, can be illuminated by the need for actual
implementation of its programs, as in the case of the "Haze."
The "ASEAN Way" faces new challenges as it knits together
programs across the 10 South East Asian countries, yet the
very fact that its participants see ASEAN's Way as a defined
approach, distinct from the more formalistic parliamentary
decision-making systems of European or North America, is
the best evidence for the proposition that that ASEAN bears
close study by those who would understand how to foster
governance for sustainability internationally.

2. ASEAN: Indonesian Haze NOT a Sovereignty Issue
[Manila Times June 22, 2013]
Illustrative of Asean cooperation on the principle of
sovereignty over natural resources is the Asean response to
the recurring Indonesian haze, which has been affecting the
neighboring countries specifically Singapore, Malaysia and
southern Thailand since 1982.

It is the result of land-clearing fires for palm plantations and
the practice of swidden (kaingin) agriculture particularly on
peat lands in Indonesia.

Only in 2002 did Asean formulate a hard law instrument on
the issue: the ASEAN Agreement on Transboundary Haze
Pollution (ATHP). Although generally applicable to all Asean
states, it was formulated in response to the Indonesian haze.
It took effect in November 2003 with the ratification by nine
member states. Indonesia has yet to ratify, which rendered
the Agreement essentially ineffective.
In October 2006, Singapore decided to raise the issue at the
UN General Assembly, a permissible move under Article 2 of
ATHP, which specifically states that the Agreements
objective is to prevent and monitor transboundary haze
pollution through concerted national efforts and intensified
regional and international cooperation. Indonesia, however,
invoked the principle of sovereignty and non-interference in
domestic affairs. (A word must be said about the Asean way
of doing things. Cooperation is done through consensus.
There is no Asean Parliament to issue laws, regulations and
directives to its members and no enforcement agencies.
Non-interference in the domestic affairs of a member State
is the rule of conduct.)
This controversy illustrates the complex political and
economic dimensions of the haze problem as well as the
conflict between national and regional interests confronting
the Asean. The successful adoption and ratification of ATHP
attests to Aseans growing stature as a transnational
environmental lawmaker. But, at the same time, the
controversy demonstrates the obstacles in Aseans path
towards environmental regulatory effectiveness.
Perhaps it is time for Asean to take a strong stand, that the
principle of sovereignty be modified in the context of
environmental law. Far from undermining state
sovereignty, enhanced cooperation in the area of
environment will strengthen states sustainable
development. By adopting a flexible engagement approach
to transboundary environmental issues, Asean member

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 48

states could discuss complex problems such as the


Indonesian Haze without being accused of interfering with
the internal affairs of the country.

Flexible engagement is not yet an accepted principle in the
Asean, but its application to transboundary environmental
issues is relevant. Flexible engagement is an attempt to
delimit the range of situations in which individual member
states would be justified in appealing to non-interference to
ward off outside involvement in their internal affairs. As
serious threats to sustainable development and human
security more broadly, transboundary environmental issues
would be classified as beyond the scope of internal affairs
and would be subject to regional governance despite
sovereignty.

It is interesting to compare Aseans response to the Haze
issue with the threat posed by zoonotic diseases, e.g. SARS,
avian flu, swine flu (H1N1) during the last 7 years which
raised not only issues of human security but also challenged
animal protection, the protection of biodiversity and
ecosystems and the pursuit of sustainable development, i.e.
sustainability of the chain of animal food production.

The threat of a pandemic drove Asean to act with prompt
response with no less than 25 Asean soft law instruments.
Possibly, Aseans response to zoonotic diseases was more
successful as a result of the threat of pandemic not only in
the region but also in many parts of the world. In the words
of eminent Asean law expert, Koh Kheng Lian, Asean
should use its rich history of cooperation among States to
build . . .environmental cooperation . . . This would enhance
respect for sovereignty, not undermine it; it can be argued
that the inability to avert an environmental disaster is a
greater loss of sovereign authority than cooperation in
agreed programs to control the harm. Aseans deferential
approach to others domestic affairs can inadvertently lead
to violations of Principle 21 of the UN Declaration on the
Human Environment in which all States acknowledge that
each must act so as not to harm the environment of each
other.

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Assignment for Feb 29
1. COBSEA (coordinating bodies of East Asia)
2. Economic and Social Commission (ECOSOC)
UN body -> Envi
U.N. Environmental Program
3. UN, UN organs, general assembly, ECOSOC,
International court of justice, UNEP,
4. UN Specialized agencies: ILO, IMO, WMO, UNESCO,
FAO5. Intergovernmental institution: IUCN
5. Continental groupings: OAS, OAU, EU- ASEAN
counterparts
6. Convention on Wetlands of International importance
especially as waterfowl habitat 1971 Ramsar
convention
7. 1985 ASEAN agreement (on environmental
protection) Nature and Natural Resources

8. Forerunner on the International Convention on


Biological Diversity CBD 1992
9. Access and Benefit Sharing with Pharmaceutical
Companies
**Take note of ASEAN Initiatives on Turtles in Malaysia and
PH; Borneo Initiative; Coral Triangle Initiative in Indonesia,
PH, Timor Leste,
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1. COBSEA (coordinating bodies of East Asia)

COBSEA, UNEP Regional Seas Programme for the East Asian
Seas Region 9 countries; Formed in 1981 as an
INTERGOVERNMENTAL PLATFORM but no legally binding
convention;

Mandate - to coordinate activities on the conservation and
management of the marine and coastal environment;

(COBSEA Secretariat) is based in Bangkok.

ABOUT COBSEA: East Asia's astonishing variety of political,
economic and social systems is matched by its environment:
ship-crowded straits, island groups, wide gulfs, shallow
estuaries - and some of the most heavily populated
countries in the world where millions rely on seafood for
much of their protein. The threats to the coastal and marine
environment in the region seem just as varied, and include
erosion and siltation from land development, logging and
mining, blast fishing in coral reefs, cutting and conversion of
mangroves, overfishing, unimpeded development and
disposal of untreated wastes.

The Action Plan for the Protection and Development of the
Marine Environment and Coastal Areas of the East Asian
Seas Region (the East Asian Seas Action Plan) was approved
in 1981 stimulated by concerns on the effects and sources of
marine pollution. Initially, the action plan involved five
countries (Indonesia, Malaysia, Philippines, Singapore and
Thailand). In 1994, it was revised to involve another five
countries (Australia, Cambodia, People's Republic of China,
Republic of Korea and Vietnam) and up to this date the
action plan has nine participating countries (Australia is no
longer a participating country). The main components of
East Asian Seas Action Plan are assessment of the effects of
human activities on the marine environment, control of
coastal pollution, protection of mangroves, seagrasses and
coral reefs, and waste management.

Among the Regional Seas Programmes, East Asia has
steered a unique course. There is no regional convention;
instead the programme promotes compliance with
existing environmental treaties and is based on
member country goodwill.

East Asian Seas Action Plan is steered by the Coordinating
Body on the Seas of East Asia (COBSEA) that is consisting
of the ten member countries (Cambodia, China, Indonesia,
Rep of Korea, Malaysia, Philippines, Singapore, Thailand,
Vietnam). The COBSEA Secretariat is in fact the lead

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 49

agency of the United Nations for marine environmental


matters in East Asia, responsible for coordinating the
activities of governments, NGOs, UN and donor agencies,
and individuals in caring for the region's marine
environment.

2. Economic and Social Commission (ECOSOC)

U.N. Environmental Program
The United Nations Economic and Social Council is one of
the principal organs of the United Nations, responsible for
coordinating the economic, social and related work of 14 UN
specialized agencies, their functional commissions and five
regional commissions. The ECOSOC has 54 members. It
holds one four-week session each year in July, and since
1998, it has also held a meeting each April with finance
ministers heading key committees of the World Bank and
the International Monetary Fund (IMF).

The ECOSOC serves as the central forum for discussing
international economic and social issues, and for
formulating policy recommendations addressed to member
states and the United Nations system. A number of nongovernmental organizations have been granted consultative
status to the Council to participate in the work of the United
Nations.

The United Nations Environment Programme (UNEP) is
an agency that coordinates its environmental activities,
assisting developing countries in implementing
environmentally sound policies and practices. It was
founded by Maurice Strong, its first director, as a result of
the United Nations Conference on the Human Environment
in June 1972 and has its headquarters in the Gigiri
neighborhood of Nairobi, Kenya. UNEP also has six regional
offices and various country offices.

Its activities cover a wide range of issues regarding the
atmosphere, marine and terrestrial ecosystems,
environmental governance and green economy. It has
played a significant role in developing international
environmental conventions, promoting environmental
science and information and illustrating the way those can
be implemented in conjunction with policy, working on the
development and implementation of policy with national
governments, regional institutions in conjunction with
environmental non-governmental organizations (NGOs).
UNEP has also been active in funding and implementing
environment related development projects.

The winner of the Miss Earth beauty pageant serves as the
spokesperson of UNEP.

UNEP has aided in the formulation of guidelines and treaties
on issues such as the international trade in potentially
harmful chemicals, transboundary air pollution, and
contamination of international waterways.

The World Meteorological Organization and UNEP
established the Intergovernmental Panel on Climate Change

(IPCC) in 1988. UNEP is also one of several Implementing


Agencies for the Global Environment Facility (GEF) and the
Multilateral Fund for the Implementation of the Montreal
Protocol, and it is also a member of the United Nations
Development Group.[1] The International Cyanide
Management Code, a program of best practice for the
chemicals use at gold mining operations, was developed
under UNEPs aegis.

UNEP's main activities are related to:
climate change;
including the Territorial Approach to Climate Change
(TACC);
disasters and conflicts;
ecosystem management;
environmental governance;
environment under review;
harmful substances; and
resource efficiency.

b. UN, UN organs, general assembly, ECOSOC,
International court of justice, UNEP,

The United Nations (UN) is an organization of sovereign
nations. It provides the machinery for its Member States to
help solve disputes or problems, and deal with matters of
concern to all humanity. It does not legislate.

The International Court of Justice (ICJ) is the principal
judicial organ of the UN.

The General Assembly is the UN's main deliberative body.
All Member States are represented in it and each has one
vote.

The Economic and Social Council (ECOSOC) coordinates
the economic and social work of the UN.

The Security Council has primary responsibility for
maintenance of international peace and security. It has five
permanent members each with the right to veto, and ten
others elected for two-year terms. Member States are
obligated to carry out its decisions.

The Secretariat services all organs of the UN except the ICJ,
doing the day-to-day work of the UN, ranging from
administering peace-keeping operations to organizing
conferences.

The Secretary-General controls and directs the Secretariat,
and is chief administrative officer at all meetings of the
General Assembly, Security Council ECOSOC and the
Trusteeship Council.

The Trusteeship Council was established to ensure that
governments responsible for administering Trust
Territories took adequate steps to prepare them for selfgovernment or independence. This task having been

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 50

completed in 1994, the Council will now meet as and when


required.

The specialized agencies and programmes have wide
international responsibilities for development, health and
economic, social, cultural, educational, scientific and
technical, and other fields.

The United Nations Environment Programme (UNEP) is
an agency that coordinates its environmental activities,
assisting developing countries in implementing
environmentally sound policies and practices. It was
founded by Maurice Strong, its first director, as a result of
the United Nations Conference on the Human Environment
in June 1972 and has its headquarters in the Gigiri
neighborhood of Nairobi, Kenya. UNEP also has six regional
offices and various country offices.

Its activities cover a wide range of issues regarding the
atmosphere, marine and terrestrial ecosystems,
environmental governance and green economy. It has
played a significant role in developing international
environmental conventions, promoting environmental
science and information and illustrating the way those can
be implemented in conjunction with policy, working on the
development and implementation of policy with national
governments, regional institutions in conjunction with
environmental non-governmental organizations (NGOs).
UNEP has also been active in funding and implementing
environment related development projects.

The winner of the Miss Earth beauty pageant serves as the
spokesperson of UNEP.

UNEP has aided in the formulation of guidelines and treaties
on issues such as the international trade in potentially
harmful chemicals, transboundary air pollution, and
contamination of international waterways.

The World Meteorological Organization and UNEP
established the Intergovernmental Panel on Climate Change
(IPCC) in 1988. UNEP is also one of several Implementing
Agencies for the Global Environment Facility (GEF) and the
Multilateral Fund for the Implementation of the Montreal
Protocol, and it is also a member of the United Nations
Development Group.[1] The International Cyanide
Management Code, a program of best practice for the
chemicals use at gold mining operations, was developed
under UNEPs aegis.

c. UN Specialized agencies: ILO, IMO, WMO, UNESCO,
FAO

Specialized agencies are autonomous organizations
working with the United Nations and each other through
the coordinating machinery of the United Nations Economic
and Social Council at the intergovernmental level, and
through the Chief Executives Board for coordination (CEB)
at the inter-secretariat level.[1] Specialized agencies may or
may not have been originally created by the United Nations,

but they are incorporated into the United Nations System by


the United Nations Economic and Social Council acting
under Articles 57 and 63 of the United Nations Charter. At
present the UN has in total 15. specialized agencies that
carry out various functions on behalf of the UN.

The Food and Agriculture Organization of the United
Nations leads international efforts to defeat hunger. Serving
both developed and developing countries, FAO acts as a
neutral forum where all nations meet as equals to negotiate
agreements and debate policy. FAO's mandate is to raise
levels of nutrition, improve agricultural productivity, better
the lives of rural populations and contribute to the growth
of the world economy. FAO is the largest of UN agencies and
its headquarters is in Rome, Italy.
The International Civil Aviation Organization (ICAO)
was founded in 1947. It codifies the principles and
techniques of international air navigation and fosters the
planning and development of international air transport to
ensure safe and orderly growth. Its headquarters are
located in the Quartier international de Montral of
Montreal, Canada.

The ICAO Council adopts standards and recommended
practices concerning air navigation, prevention of unlawful
interference, and facilitation of border-crossing procedures
for international civil aviation. In addition, ICAO defines the
protocols for air accident investigation followed by
transport safety authorities in countries signatory to the
Convention on International Civil Aviation, commonly
known as the Chicago Convention.

The International Labour Organization (ILO) deals with
labour issues. Its headquarters are in Geneva, Switzerland.
Founded in 1919, it was formed through the negotiations of
the Treaty of Versailles, and was initially an agency of the
League of Nations. It became a member of the UN system
after the demise of the League and the formation of the UN
at the end of World War II. Its Constitution, as amended to
date, includes the Declaration of Philadelphia on the aims
and purposes of the Organization. Its secretariat is known
as the International Labour Office.

The International Maritime Organization (IMO),
formerly known as the Inter-Governmental Maritime
Consultative Organization (IMCO), was established in 1948
through the United Nations to coordinate international
maritime safety and related practices. However the IMO did
not enter into full force until 1958.

Headquartered in London, United Kingdom, the IMO
promotes cooperation among governments and the
shipping industry to improve maritime safety and to
prevent marine pollution.

International Monetary Fund (IMF) is sometimes
considered to be a specialized agency. It is part of the United
Nations system and has a formal relationship agreement
with the UN, but retains its independence The IMF provides
monetary cooperation and financial stability and acts as a

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 51

forum for advice, negotiation and assistance on financial


issues. It is headquartered in Washington, D.C., United
States of America.

The United Nations Educational, Scientific and Cultural
Organization (UNESCO) is a specialized agency of the
United Nations established in 1946 with its headquarters in
Paris, France. Its stated purpose is to contribute to peace
and security by promoting international collaboration
through education, science, and culture in order to further
universal respect for justice, the rule of law, and the human
rights and fundamental freedoms proclaimed in the UN
Charter.

The United Nations Industrial Development
Organization (UNIDO) is a specialized agency of the United
Nations system, headquartered in Vienna, Austria. The
Organization's primary objective is the promotion and
acceleration of industrial development in developing
countries and countries with economics in transition and
the promotion of international industrial cooperation.

The World Health Organization (WHO) acts as a
coordinating authority on international public health and
deals with health and sanitation and diseases and sends
medical teams to help combat epidemics. Established on 7
April 1948, and headquartered in Geneva, Switzerland, the
agency inherited the mandate and resources of its
predecessor, the Health Organization, which had been an
agency of the League of Nations.

The World Meteorological Organization (WMO)
originated from the International Meteorological
Organization (IMO), which was founded in 1873.
Established in 1950, WMO became the specialized agency of
the United Nations for modern meteorology (weather and
climate), operational hydrology and related geophysical
sciences. It has its headquarters in Geneva, Switzerland.

d. Intergovernmental institution: IUCN
The International Union for Conservation of Nature and
Natural Resources (IUCN) is an international organization
working in the field of nature conservation and sustainable
use of natural resources. It is involved in data gathering and
analysis, research, field projects, advocacy, lobbying and
education. IUCN's mission is to "influence, encourage and
assist societies throughout the world to conserve nature
and to ensure that any use of natural resources is equitable
and ecologically sustainable."

Over the past decades, IUCN has widened its focus beyond
conservation ecology and now incorporates issues related
to gender equality, poverty alleviation and sustainable
business in its projects. Unlike other international NGOs,
IUCN does not itself aim to mobilize the public in support of
nature conservation. It tries to influence the actions of
governments, business and other stakeholders by providing
information and advice, and through lobbying and
partnerships. The organization is best known to the wider
public for compiling and publishing the IUCN Red List of

Threatened Species, which assesses the conservation status


of species worldwide.

IUCN has a membership of over 1200 governmental and
non-governmental organizations. Some 11,000 scientists
and experts participate in the work of IUCN commissions on
a voluntary basis. It employs approximately 1000 full-time
staff in more than 60 countries. Its headquarters are in
Gland, Switzerland.

IUCN has observer and consultative status at the United
Nations, and plays a role in the implementation of several
international conventions on nature conservation and
biodiversity. It was involved in establishing the World Wide
Fund for Nature and the World Conservation Monitoring
Centre. In the past, IUCN has been criticized for placing the
interests of nature over those of indigenous peoples. In
recent years, its closer relations with the business sector
have caused controversy.

IUCN was established in 1948. It was previously called the
International Union for Protection of Nature (19481956)
and the World Conservation Union (19902008). Its full
legal name is International Union for Conservation of
Nature and Natural Resources.

e. Continental groupings: OAS, OAU, EU- counterparts of
ASEAN
Basically, regionalism from below means that countries in a
geographical area cooperate either for specific purposes or
general mutual benefit, especially involving economic
cooperation and peacekeeping. The most important general
such institutions are the European Union (EU), Organization
of American States (OAS), Organization of African Unity
(OAU), Association of Southeast Asian Nations (ASEAN), and
the Arab League.

The Organization of American States or the OAS or OEA,
is an inter-continental organization founded on 30 April
1948, for the purposes of regional solidarity and
cooperation among its member states. Headquartered in
Washington, D.C., United States, the OAS's members are the
35 independent states of the Americas.

As of 26 May 2015, the Secretary General of OAS is Luis
Almagro

The OAS constitutes the main political, juridical, and social
governmental forum in the Hemisphere. In addition, it has
granted permanent observer status to 69 states, as well as
to the European Union (EU).

The OAS uses a four-pronged approach to effectively
implement its essential purposes. The Organizations four
main pillarsdemocracy, human rights, security, and
developmentsupport each other and are intertwined
through political dialogue, inclusiveness, cooperation, and
legal and follow-up instruments that provide the OAS with
the tools to maximize its work in the Hemisphere.

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The Organisation of African Unity was established on 25


May 1963 in Addis Ababa, with 32 signatory governments.
It was disbanded on 9 July 2002 by its last chairperson,
South African President Thabo Mbeki, and replaced by the
African Union
The OAU had the following primary aims:
1. To co-ordinate and intensify the co-operation of African
states in order to achieve a better life for the people of
Africa.
2. To defend the sovereignty, territorial integrity and
independence of African states.

The OAU was also dedicated to the eradication of all forms
of colonialism and white minority rule as, when it was
established, there were several states that had not yet won
their independence or were white minority-ruled. South
Africa and Angola were two such countries. The OAU
proposed two ways of ridding the continent of colonialism
and white minority rule. Firstly, it would defend the
interests of independent countries and help to pursue the
independence those of still-colonised ones. Secondly, it
would remain neutral in terms of world affairs, preventing
its members from being controlled once more by outside
powers.

The African Union (AU) is a continental union consisting of
54 countries in Africa. The only African state that is not a
member is Morocco, due to the status of the Western
Sahara, although Burkina Faso and the Central African
Republic have had their memberships suspended due to the
recent coup d'tat and ongoing civil war, respectively. The
AU was established on 26 May 2001 in Addis Ababa and
launched on 9 July 2002 in South Africa,[6] with the aim of
replacing the Organisation of African Unity (OAU)

The European Union is a unique economic and political
partnership between 28 European countries that together
cover much of the continent.

The EU was created in the aftermath of the Second World
War.
The EU is based on the rule of law: everything that it does is
founded on treaties, voluntarily and democratically agreed
by all member countries. These binding agreements set out
the EU's goals in its many areas of activity.

The EU has developed an internal single market through a
standardized system of laws that apply in all member states.
Within the Schengen Area, passport controls have been
abolished.EU policies aim to ensure the free movement of
people, goods, services, and capital, enact legislation in
justice and home affairs, and maintain common policies on
trade, agriculture, fisheries, and regional development. The
monetary union was established in 1999 and came into full
force in 2002. It is currently composed of 19 member states
that use the euro as their legal tender.

2. Convention on Wetlands of International importance
especially as water fowl habitat 1971 Ramsar
Convention


The Ramsar Convention (formally, the Convention on
Wetlands of International Importance, especially as
Waterfowl Habitat) is an international treaty for the
conservation and sustainable utilization of wetlands,
recognizing the fundamental ecological functions of
wetlands and their economic, cultural, scientific, and
recreational value. It is named after the city of Ramsar in
Iran, where the Convention was signed in 1971.

The Convention on Wetlands, called the Ramsar Convention,
is an intergovernmental treaty that provides the framework
for national action and international cooperation for the
conservation and wise use of wetlands and their resources.
Number of Contracting Parties: 169
Number of Ramsar Sites: 2,231
Total surface of designated sites: 214,936,005 ha

The Conventions mission is the conservation and wise use
of all wetlands through local and national actions and
international cooperation, as a contribution towards
achieving sustainable development throughout the world.

Wetlands are among the most diverse and productive
ecosystems. They provide essential services and supply all
our fresh water. However they continue to be degraded and
converted to other uses.

The Convention uses a broad definition of wetlands. It
includes all lakes and rivers, underground aquifers, swamps
and marshes, wet grasslands, peatlands, oases, estuaries,
deltas and tidal flats, mangroves and other coastal areas,
coral reefs, and all human-made sites such as fish ponds,
rice paddies, reservoirs and salt pans.

Under the three pillars of the Convention, the Contracting
Parties commit to:
a. work towards the wise use of all their wetlands;
b. designate suitable wetlands for the list of Wetlands of
International Importance (the Ramsar List) and ensure
their effective management;
c. cooperate internationally on transboundary wetlands,
shared wetland systems and shared species.

The Ramsar Convention works closely with five other
organisations known as International Organization Partners
(IOPs). These are Birdlife International, the International
Union for Conservation of Nature (IUCN), the International
Water Management Institute (IWMI), Wetlands
International and WWF International. These support the
work of the Convention by providing expert technical
advice, helping implement field studies and providing
financial support.






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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 53

* SUPPLEMENT NOTES: Wetlands [Ramsar Convention]


Wetlands
all marshes, peatlands, mudflats, deltas, floodplains,
lagoons, estuary, rivers and lakes (seasonal or
permanent), wet grassland, subtidal aquatic beds, sand
beaches, moss bogs, swamps, oxbows, wet meadows,
cypress swamps, reed marshes
coastal areas such as saltmarshes, mangroves and
seagrass beds
coral reefs and other marine areas no deeper than 6
metres at low tide
human made wetlands such as wastewater treatment
ponds and reservoirs
karst subterranean hydrological systems

Benefits from Ramsar Convention
facilitates the development at national level of policies
and actions, including legislation, that help nations to
make the best possible use of their wetland resources in
their quest for sustainable development;
presents an opportunity for a country to make its voice
heard in the principal intergovernmental forum on the
conservation and wise use of wetlands;
increased publicity and prestige for the wetlands
designated for the List of Wetlands of International
Importance, hence increased possibilities of support for
conservation and wise use measures;
access to the latest information and advice on adoption of
the Conventions internationally-accepted standards, such
as criteria for identifying wetlands of international
importance, advice on application of the wise use concept,
and guidelines on management planning in wetlands;
brings access to expert advice on national and site-related
problems of wetland conservation and management
through contacts with Ramsar Secretariat personnel and
collaborators and through application of the Ramsar
Advisory Mission when appropriate; and
encourages international cooperation on wetland issues
and brings the possibility of support for wetland projects,
either through the Conventions own small grants
assistance programmes or through the Conventions
contacts with multilateral and bilateral external support
agencies
Ramsar Small Grants Fund

RAMSAR vis--vis other MEAs
CBD
- CMS
- CITES

2 Priority Issues
Defining wetlands of global importance (Ramsar list)
promoting wise-use of wetlands

Party commitments
i. designation of at least 1 site
ii. inclusion of wetland conservation in national land use
planning
iii. establishing nature reserves on wetlands and training
on wetland research, management, and wardening
iv. consulting with other parties regarding
implementation

Administrative Authority
Scientific and Technical Review Panel [STRP]

Implementation of the Policy
- action plan
- work plan
- guidelines to implement the policy

Review of Legislation
Designation of Lead Agency

Monitoring
-wetland health and land use monitoring
- program success monitoring

Wetland Risk Assessment Framework
EIA

Local Indigenous People Participation
1. collaboration with the management of inhabited or
privately owned wetland
2. access to natural resources within wetland
essential for livelihood, security, cultural heritage
3. people express interest to get involved

Objectives of the Ramsar List
1. Establish networks of Ramsar sites
2. Contribute to maintaining biodiversity
3. Foster cooperation among CP, etc.
4. Use network to promote cooperation in relation to
complementary treaties

National Wetland Policy Opportunities
- establish wetland conservation and objectives in
government policies
- enhance coordination of agencies
- incentives to create wetlands
- foster better wetland management
- better knowledge about wetland conservation and
application

Wetland Policy Objectives Focus on:
- maintenance of wetland functions
- advance land use planning affecting wetlands
- enhancement and rehabilitation of wetlands
- proclamation of sites
- mitigation of impact of activites
- wise use of wetland resources

Goal Statements
Principles

Wetland Functions:
- water supply
- flood control
- tourism
- saline intrusion
- shoreline protection
- sediment trap
- natural products

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 54

- water transport
- cultural significance
- carbon sink

Principal Threats to Wetland Functions:
- agriculture
- logging
- mining
- urban expansion
- infrastructure development

Primarily on Birds ecological dependence on wetlands

Recognizes the importance of wetlands as resources of
great economic, cultural, scientific and recreational value

Convention broadened to cover all aspects of wetland
conservation and wise use

CONSIDER FOR FINALS: *** Provide Laws where PH
provides for implementation of RAMSAR Convention

3. 1985 ASEAN agreement (on environmental
protection) Nature and Natural Resources
Objectives: To maintain essential ecological processes and
life-support systems, to preserve genetic diversity, and to
ensure the sustainable utilisation of living resources.

Summary of provisions:
Chapter II of the Agreement provides for the conservation of
species and ecosystems through extensive management
measures.

Chapter II deals with species genetic diversity (art. 3),
sustainable use of species (art. 4), endangered and endemic
species (art. 5), vegetation cover and forest and endemic
species (art. 5), vegetation cover and forest (art. 9).

Chapter III of the Agreement relates to the conservation of
ecological processes with a view to maintaining their proper
functioning. Articles 10 and 11 concern the reduction,
prevention and control of environmental degradation and
pollution.

Chapter IV provides for environmental planning measures
with a view to integrating natural resources conservation
into the land use process. Articles of chapter IV deal with
land use planning (art. 12), establishment of protected areas
(art. 13), and impact assessments (art. 14).

Chapter V concerns national supporting measures which
consist in, inter alia, promoting education, information and
participation of the public in the planning and
implementation of conservation measures, and in training
scientific and technical personnel (art. 16).

Chapter VI provides for international co-operation between
the Parties through, inter alia, the co-ordination of their
activities in the field of conservation of nature and
management of natural resources, especially when these are

shared (art. 18 and 19). Parties recognize their international


responsibility in regards of transfrontier environmental
effects and undertake to avoid and reduce adverse
environmental effects of activities under their jurisdiction
(art. 20).

Institutional mechanisms: Meetings of the Contracting
Parties, provided in article 21, are to be held in as far as
possible in conjunction with appropriate meetings of the
Association of Southeast Asian Nations (ASEAN). A
Secretariat is to be designated by the Contracting Parties on
the coming into force of the Agreement (art. 22).

4. Forerunner on the International Convention on
Biological Diversity CBD 1992

The Convention on Biological Diversity (CBD) entered into
force on 29 December 1993. It has 3 main objectives:
1. The conservation of biological diversity
2. The sustainable use of the components of biological
diversity
3. The fair and equitable sharing of the benefits arising out
of the utilization of genetic resources

The convention recognized for the first time in international
law that the conservation of biological diversity is "a
common concern of humankind" and is an integral part of
the development process. The agreement covers all
ecosystems, species, and genetic resources. It links
traditional conservation efforts to the economic goal of
using biological resources sustainably. It sets principles for
the fair and equitable sharing of the benefits arising from
the use of genetic resources, notably those destined for
commercial use. It also covers the rapidly expanding field of
biotechnology through its Cartagena Protocol on Biosafety,
addressing technology development and transfer, benefitsharing and biosafety issues. Importantly, the Convention is
legally binding; countries that join it ('Parties') are obliged
to implement its provisions.

The convention reminds decision-makers that natural
resources are not infinite and sets out a philosophy of
sustainable use. While past conservation efforts were aimed
at protecting particular species and habitats, the Convention
recognizes that ecosystems, species and genes must be used
for the benefit of humans. However, this should be done in a
way and at a rate that does not lead to the long-term decline
of biological diversity.

The convention also offers decision-makers guidance based
on the precautionary principle that where there is a threat
of significant reduction or loss of biological diversity, lack of
full scientific certainty should not be used as a reason for
postponing measures to avoid or minimize such a threat.
The Convention acknowledges that substantial investments
are required to conserve biological diversity. It argues,
however, that conservation will bring us significant
environmental, economic and social benefits in return.

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The Convention on Biological Diversity of 2010 would ban


some forms of geoengineering.

The Cartagena Protocol on Biosafety of the Convention, also
known as the Biosafety Protocol, was adopted in January
2000. The Biosafety Protocol seeks to protect biological
diversity from the potential risks posed by living modified
organisms resulting from modern biotechnology.

The Nagoya Protocol on Access to Genetic Resources and
the Fair and Equitable Sharing of Benefits Arising from their
Utilization to the Convention on Biological Diversity is a
supplementary agreement to the Convention on Biological
Diversity. It provides a transparent legal framework for the
effective implementation of one of the three objectives of
the CBD: the fair and equitable sharing of benefits arising
out of the utilization of genetic resources. The Protocol was
adopted on 29 October 2010 in Nagoya, Aichi Province,
Japan, and entered into force on 12 October 2014. Its
objective is the fair and equitable sharing of benefits arising
from the utilization of genetic resources, thereby
contributing to the conservation and sustainable use of
biodiversity.

5. Access and Benefit Sharing with Pharmaceutical
Companies

Access and benefit-sharing refers to the way in which
genetic resources may be accessed, and how users and
providers reach agreement on the fair and equitable sharing
of the benefits that might result from their use.

Article 15 of the Convention on Biological Diversity (CBD)
sets out rules which govern access and benefit-sharing.
Under these rules, the governments of countries have two
key responsibilities:
1. To put in place systems that facilitate access to genetic
resources for environmentally sound purposes
2. To ensure that the benefits resulting from their use are
shared fairly and equitably between users and providers

Users of genetic resources include research institutes or
companies seeking access for basic scientific research or
product development. To gain access, users must first get
permission (known as prior informed consent or PIC) from
the provider country. In addition, the provider and the user
must negotiate an agreement (known as mutually agreed
terms or MAT) to share the resulting benefits equitably.

Why is it important?
Providers of genetic resources are governments or civil
society bodies, which can include private land owners and
communities within a country, who are entitled to provide
access to genetic resources and share the benefits resulting
from their use. The access and benefit-sharing provisions of
the Convention on Biological Diversity (CBD) are designed
to ensure that the physical access to genetic resources is
facilitated and that the benefits obtained from their use are
shared equitably with the providers. In some cases this also

includes valuable traditional knowledge associated with


genetic resources that comes from ILCs.
The benefits to be shared can be monetary, such as sharing
royalties when the resources are used to create a
commercial product, or non-monetary, such as the
development of research skills and knowledge. It is vital
that both users and providers understand and respect
institutional frameworks such as those outlined by the CBD
and in the Bonn Guidelines. These help governments to
establish their own national frameworks which ensure that
access and benefit-sharing happens in a fair and equitable
way.
How does it work?
Access and benefit-sharing is based on prior informed
consent (PIC) being granted by a provider to a user and
negotiations between both parties to develop mutually
agreed terms (MAT) to ensure the fair and equitable sharing
of genetic resources and associated benefits.

Who is involved in access and benefit-sharing?
Providers of genetic resources: States have sovereign rights
over natural resources under their jurisdiction. They are
obligated to put in place conditions that facilitate access to
these resources for environmentally sound uses.
Providers agree terms, which include PIC and MAT, for
granting access and sharing benefits equitably. Laws within
the provider country may entitle others, such as ILCs, to also
negotiate terms of access and benefit-sharing. The
participation of ILCs is necessary in instances where
traditional knowledge associated with genetic resources is
being accessed.

Users of genetic resources: Users are responsible for
sharing the benefits derived from genetic resources with the
providers. They seek access to genetic resources for a wide
range of purposes, from basic research to the development
of new products. They are a diverse group, including
botanical gardens, industry researchers such as
pharmaceutical, agriculture and cosmetic industries,
collectors and research institutes.

National Focal Points: To facilitate access, users need a clear
and transparent process that details who to contact and
what the requirements and processes are in provider
countries in order to gain access. National Focal Points are
responsible for providing this information.

Competent National Authorities (CNAs): CNAs are bodies
established by governments and are responsible for
granting access to users of their genetic resources, and
representing providers on a local or national level. National
implementation measures establish how CNAs work in a
given country.

Key agreements
Prior informed consent (PIC): Permission given from the
CNAs of a provider country to a user prior to accessing
genetic resources, in line with an appropriate legal and
institutional framework.

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Mutually agreed terms (MAT): An agreement reached


between the providers of genetic resources and users on the
conditions of access and use of the resources, and the
benefits to be shared between both parties.

- - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Assignment for March 7
A. Manila Times Article [Feb 2] - Save the Mudflats
B. Multilateral Environmental Agreements:
1. Convention on the Conservation of Migratory Species
of Wild Animals (also known as CMS or the Bonn
Convention)
2. Convention concerning the Protection of World
Cultural and Natural Heritage (World Heritage
Convention)
3. CITES (the Convention on International Trade in
Endangered Species of Wild Fauna and Flora, also
known as the Washington Convention)
*** Notes: CITES Appendices; Damaged Wetlands
Montreaux List/San Jose List
*** PRINCIPLE OF PRIOR INFORMED CONSENT
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A. Manila Times Article [Feb 2] - Save the Mudflats
Rain and snowmelt flow down towards the sea from the
mountain height, watering forests and marshes and filling
lakes and ponds along the way. Living things grow along the
waters stream which supports our daily lives as well.
Tatsuichi Tujii

Its World Wetlands Day today (February 2).

WETLANDS (lupaing tubig) are where water meets life.
The Ramsar Convention for the Conservation of Wetlands
(1971), about which the Philippines is a Party, identifies 42
wetlands type. Among these are mangrove areas, seagrass
beds, rivers, freshwater lakes, marshlands, rice paddies,
coral reefs, peatlands and mudflats. The least known are
peatlands and mudflats.
For purposes of climate change adaptation governance,
peatlands as known in soil science are rich in plant species
sustained only by nutrient-poor rainfall but enriched by
trophic salts from rivers. Aside from providing important
habitats for species, they also capture carbon and store it
away from the atmosphere.
Mudflats, on the other hand, are low-lying coastal lands
overflowed during flood tide when water is affected by the
ebb and flow of the tide. When exposed and submerged
repeatedly, rich and nutritious sediments from the sea are
deposited there to build up a rich community of micro
organisms and benthos. The water purification function of
these organisms is a great attraction to peoples attention
these days.

Mudflats soft bottom also make up blue carbon habitats
that absorb and store up to 70% carbon and greenhouse
gasses. Blue carbon plays a big role in mitigating the effects
of climate change. And yet, conservation of mudflats is
ignored.

Mudflats are indispensable habitat for shorebirds and


hundreds of migratory birds depend on them for their
existence. In fact, their mass movement is one of the worlds
greatest phenomena, connecting locations as diverse as the
Arctic tundra to the mudflats and deltas of the tropics. This
coastal ecosystem also protects large human communities
and provide ecosystem services to millions of people
around the world, e.g. nurturing fisheries and providing
livelihoods to communities through shellfisheries,
supporting migratory waterbirds for scientific and aesthetic
purposes, water infiltration and regulation, ameliorating
flood and drought events, etc.

The problem for mudflats as a type of wetlands is the
shifting character of coastal zones. The last 50 years or so
have seen the global human population migrating rapidly to
coastal areas. As a consequence, coastlines extending to
mudflats have become a focus of expansion of the urban,
agricultural and industrial sectors including, of late, as
location for coastal wind farms to meet peoples energy
needs. In fact, they have become the targets of many
development projects and thousands of hectares of mudflats
have disappeared.

What remains are continuously under the threat of
development. The diminution of mudflats is having a major
impact on coastal ecosystems which results also in the
widespread loss and degradation of related ecosystems
such as mangroves, seagrasses and coral reefs. And worst, it
has major consequences for humans and nature in
particular the loss of insect, fish and plant species.
Mudflats abound in many countries of Asia like South Korea,
North Korea and China. In those countries, mudflats
measure up to 20 kilometers wide in some places. While
studies show that Japan lost some 6,000 hectares of
mudflats in the last 50 years, the existing ones are valuable
examples of flats that have been preserved. Among these
are the Ramsar sites of Yatsu-higata, Manko, Yonaha-wan
and Nagura Amparu.

In the Philippines, a group of citizens led by Senator Cynthia
Villar filed a petition for a writ of kalikasan as a remedy to
stop a reclamation project beside the Las Pinas-Paranaque
Critical Habitat and Ecotourism Area in Manila Bay declared
so under Executive Order No. 01412 (2007) banning
activities that would impede its ecologically vital role as a
bird sanctuary. The area is around 30 hectares planted with
8 species of mangrove and 113 hectares of mudflats. These
mangroves and mudflats serve as roosting and feeding
grounds for 27 species of threatened and rare waterbirds.

The first designated Ramsar site in the country called
Olango Island Wildlife Sanctuary in Mactan, Cebu is the
habitat of various species of fish, shells, crabs, sea urchin,
etc. and is visited by 10,000 species of migratory birds every
year coming from other parts of Asia like Siberia, China and
Japan during the cold months of August to November.
Mention should also be made of the Liguasan Marsh
comprising 288,000 hectares of marshes, swamps and
mudflats in the provinces of Maguindanao, Cotabato and

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 57

Sultan Kudarat in Central Mindanao which is home to


endemic waterbirds found only in the place.

Actually, there is no definitive way to know how much of
mudflats ecosystem has been destroyed or how much and
where it remains. Lack of accurate maps is due to the
rapidly changing conditions they encounter changing tides
either expose or cover them, seriously limiting the
application of available remote sensing methods and
technologies.

In Asia, the most popular and cheapest method of land
acquisition for coastal development affecting mudflats is
reclamation or landfill. The process involves construction of
seawalls and infilling for land use. These areas are then
developed into new parcels of land for aquaculture, housing
projects, industries, shopping malls as well as tourist
resorts like casinos, sports and entertainment centers.

The over-reliance on the ecosystem services approach
putting monetary value to mudflats services, i.e., housing
projects and tourist industries, gives rise to the implication
that alternative development services can be created
through the modification of the water ecosystem to provide
a greater economic return.
To be more specific, reclamation of mudflats becomes
justified on much higher economic returns from, as
mentioned, housing or tourism development. The fact that
the economic returns largely accrue to a group of wealthy
businessmen rather than impoverished shellfish collectors
is seldom mentioned. And the developers and their agents
even say that the shellfish collectors would be better off if
they switched to jobs in the newly created tourism sector.

The urgent need, therefore, is for an effective conservation
strategy that will guide the complex economic and social
trade-offs that drive coastal development. This could ease
pressure on a functioning network of coastal protected
areas including mudflats and ensure continued delivery of
other equally important ecosystem services, i.e. biodiversity
conservation.

In the words of Secretary-General Braulio Dias of the UN
Biodiversity Conservation Secretariat, to save biodiversity,
all you have to do is save a few mudflats.

B. Multilateral Environmental Agreements [MEAs]:
1. Convention on the Conservation of Migratory Species
of Wild Animals (also known as CMS or the Bonn
Convention)

The purpose of the Bonn Convention is to develop
international cooperation with a view to the conservation of
migratory species of wild animals.

ACT- Council Decision 82/461/EEC of 24 June 1982 on the
conclusion of the Convention on the conservation of
migratory species of wild animals (Bonn Convention).


SUMMARY - The objective of the Bonn Convention is the
conservation of migratory species worldwide. Wild animals
require special attention because of their importance from
the environmental, ecological, genetic, scientific,
recreational, cultural, educational, social and economic
points of view.

The Convention defines the following terms:
"migratory species" means the entire population or any
geographically separate part of the population of any
species or lower taxon of wild animals a significant
proportion of whose members cyclically and predictably
cross one or more national jurisdictional boundaries;
"conservation status of a migratory species" means the
sum of the influences acting on the migratory species
that may affect its long-term distribution and
abundance;
"endangered" means that the migratory species is in
danger of extinction throughout all or part of the
territory of a State.

The parties to the Convention acknowledge the importance
of conserving migratory species, and the need to pay special
attention to species the conservation status of which is
unfavorable.

To avoid any migratory species becoming endangered, the
parties must endeavour:
to promote, cooperate in or support research relating to
migratory species;
to provide immediate protection for migratory species
included in Appendix I; and
to conclude Agreements covering the conservation and
management of migratory species listed in Appendix II.

To protect endangered migratory species, the parties to the
Convention will endeavor:
to conserve or restore the habitats of endangered
species;
to prevent, remove, compensate for or minimise the
adverse effects of activities or obstacles that impede the
migration of the species; and
to the extent feasible and appropriate, to prevent,
reduce or control factors that are endangering or are
likely to further endanger the species.

Range States of migratory species ("range" means areas of
land or water that a migratory species inhabits, crosses or
overflies on its migration route) must prohibit the taking of
animals belonging to species listed in Appendix I, subject to
certain exceptions (taking for scientific purposes, or to
enhance the propagation or survival of the species). Such
exceptions must be precise as to content and limited in
space and time, and should not operate to the disadvantage
of the species.

The conservation and management of the species listed in
Appendix II may require international agreements.

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 58

Guidelines for agreements:


restore or maintain the migratory species concerned;
cover the whole of the range of the migratory species
concerned;
be open to accession by all Range States, whether or not
they are parties to the Convention;
where feasible, concern several species.

Each agreement must contain the following information:
the name of the migratory species concerned;
its range and migration route;
measures for implementing the agreement;
procedures for the settlement of disputes;
designation of the authority concerned with the
implementation of the Agreement.

Agreements may also provide for:
research into the species;
the exchange of information on the migratory species;
the restoration or maintenance of a network of suitable
habitats for the conservation of the species;
periodic review of the conservation status of the species;
emergency procedures whereby conservation action
would be rapidly strengthened.

The Conference of the Parties is the decision-making organ
of the Convention. It reviews the implementation of the
Convention and can adopt recommendations.
The Convention, and Appendices I and II thereto, can be
amended.
Any dispute between parties to the Convention must be
settled by negotiation between the parties involved. If the
dispute cannot be resolved by negotiation, it may be
submitted to arbitration, in particular that of the Permanent
Court of Arbitration at The Hague, whose decision will be
binding on the parties.
The Bonn Convention was signed in 1979 and entered into
force on 1 November 1983.

reports suggested that the Director-General should prepare


an international recommendation, which could serve as a
basis for creating or perfecting national systems of
protection, and prepare an international convention or
other appropriate means to favour the establishment of an
international system for the protection of monuments,
groups of buildings and sites of universal value. In 1970, the
General Conference, by resolution 3.412, entrusted the
Acting Director-General with drafting an international
convention and invited him to convene a Special Committee
tasked with examining and finalizing the drafts. The
Committee completed its work with the adoption of the
draft Convention for the Protection of the Cultural and
Natural World Heritage and the draft Recommendation
Concerning the Protection, at National Level, of the Cultural
and Natural Heritage in April 1972. The two texts were
submitted to the seventeenth session of the General
Conference on 15 November 1972 and adopted the
following day.

2. Convention concerning the Protection of World


Cultural and Natural Heritage (World Heritage
Convention)

Credibility
Conservation
Capacity-building
Communication
Communities

What the Convention contains - The Convention defines
the kind of natural or cultural sites which can be considered
for inscription on the World Heritage List.

The Convention concerning the Protection of the World


Cultural and Natural Heritage entered into force on 17
December 1975, three months after the date of the deposit
of the twentieth instrument of ratification, acceptance or
accession, pursuant to its article 33.
Efforts aimed at the preservation of artistic and historic
heritage of mankind date back to the time of the League of
Nations. The establishment of the United Nations
Educational, Scientific and Cultural Organization (UNESCO),
on 16 November 1945, gave new impetus to such efforts. In
1966, UNESCOs General Conference adopted resolution
3.342, by which it instructed the Director-General to
coordinate and secure the international adoption of
appropriate principles and scientific, technical and legal
criteria for the protection of cultural property, monuments
and sites. Meetings of experts were held and their final

The Convention contains 38 articles which are divided into


eight parts: I. Definition of the Cultural and Natural
Heritage; II. National Protection and International
Protection of the Cultural and Natural Heritage; III.
Intergovernmental Committee for the Protection of the
World Cultural and Natural Heritage; IV. Fund for the
Protection of the World Cultural and Natural Heritage; V.
Conditions and Arrangements for International Assistance;
VI. Educational Programmes; VII. Reports; and VIII. Final
Clauses.

The World Heritage Convention - The most significant
feature of the 1972 World Heritage Convention is that it
links together in a single document the concepts of nature
conservation and the preservation of cultural properties.
The Convention recognizes the way in which people interact
with nature, and the fundamental need to preserve the
balance between the two.
Strategic Objectives: the "Five Cs"

The Convention sets out the duties of States Parties in


identifying potential sites and their role in protecting and
preserving them. By signing the Convention, each country
pledges to conserve not only the World Heritage sites
situated on its territory, but also to protect its national
heritage. The States Parties are encouraged to integrate the
protection of the cultural and natural heritage into regional
planning programmes, set up staff and services at their
sites, undertake scientific and technical conservation

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 59

research and adopt measures which give this heritage a


function in the day-to-day life of the community.
It explains how the World Heritage Fund is to be used and
managed and under what conditions international financial
assistance may be provided.
The Convention stipulates the obligation of States Parties to
report regularly to the World Heritage Committee on the
state of conservation of their World Heritage properties.
These reports are crucial to the work of the Committee as
they enable it to assess the conditions of the sites, decide on
specific programme needs and resolve recurrent problems.
It also encourages States Parties to strengthen the
appreciation of the public for World Heritage properties and
to enhance their protection through educational and
information programmes.
Brief History -The idea of creating an international
movement for protecting heritage emerged after World War
I. The 1972 Convention concerning the Protection of the
World Cultural and Natural Heritage developed from the
merging of two separate movements: the first focusing on
the preservation of cultural sites, and the other dealing with
the conservation of nature.
Preserving cultural heritage - The event that aroused
particular international concern was the decision to build
the Aswan High Dam in Egypt, which would have flooded
the valley containing the Abu Simbel temples , a treasure of
ancient Egyptian civilization. In 1959, after an appeal from
the governments of Egypt and Sudan, UNESCO launched an
international safeguarding campaign. Archaeological
research in the areas to be flooded was accelerated. Above
all, the Abu Simbel and Philae temples were dismantled,
moved to dry ground and reassembled.
The campaign cost about US$80 million, half of which was
donated by some 50 countries, showing the importance of
solidarity and nations' shared responsibility in conserving
outstanding cultural sites. Its success led to other
safeguarding campaigns, such as saving Venice and its
Lagoon (Italy) and the Archaeological Ruins at Moenjodaro
(Pakistan) , and restoring the Borobodur Temple
Compounds (Indonesia).
Consequently, UNESCO initiated, with the help of the
International Council on Monuments and Sites (ICOMOS),
the preparation of a draft convention on the protection of
cultural heritage.
Linking the protection of cultural and natural heritage
The idea of combining conservation of cultural sites with
those of nature comes from the United States of America. A
White House Conference in Washington, D.C., in 1965 called
for a World Heritage Trust that would stimulate
international cooperation to protect the world's superb
natural and scenic areas and historic sites for the present
and the future of the entire world citizenry. In 1968, the
International Union for Conservation of Nature (IUCN)
developed similar proposals for its members. These
proposals were presented to the 1972 United Nations
conference on Human Environment in Stockholm.

Eventually, a single text was agreed upon by all parties


concerned. The Convention concerning the Protection of
World Cultural and Natural Heritage was adopted by the
General Conference of UNESCO on 16 November 1972.
The same General Conference adopted on 16 November
1972 the Recommendation concerning the Protection, at
National Level, of the Cultural and Natural Heritage.
By regarding heritage as both cultural and natural, the
Convention reminds us of the ways in which people interact
with nature, and of the fundamental need to preserve the
balance between the two.
Benefits of Ratification
The overarching benefit of ratifying the World Heritage
Convention is that of belonging to an international
community of appreciation and concern for universally
significant properties that embody a world of outstanding
examples of cultural diversity and natural wealth.
The States Parties to the Convention , by joining hands to
protect and cherish the world's natural and cultural
heritage, express a shared commitment to preserving our
legacy for future generations.
The prestige that comes from being a State Party to the
Convention and having sites inscribed on the World
Heritage List often serves as a catalyst to raising awareness
for heritage preservation.
A key benefit of ratification, particularly for developing
countries, is access to the World Heritage Fund . Annually,
about US$4 million is made available to assist States Parties
in identifying, preserving and promoting World Heritage
sites. Emergency assistance may also be made available for
urgent action to repair damage caused by human-made or
natural disasters. In the case of sites included on the List of
World Heritage in Danger , the attention and the funds of
both the national and the international community are
focused on the conservation needs of these particularly
threatened sites.
Today, the World Heritage concept is so well understood
that sites on the List are a magnet for international
cooperation and may thus receive financial assistance for
heritage conservation projects from a variety of sources.
Sites inscribed on the World Heritage List also benefit from
the elaboration and implementation of a comprehensive
management plan that sets out adequate preservation
measures and monitoring mechanisms. In support of these,
experts offer technical training to the local site management
team.
Finally, the inscription of a site on the World Heritage List
brings an increase in public awareness of the site and of its
outstanding values, thus also increasing the tourist activities
at the site. When these are well planned for and organized
respecting sustainable tourism principles, they can bring
important funds to the site and to the local economy.

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 60

3. CITES (the Convention on International Trade in


Endangered Species of Wild Fauna and Flora, also
known as the Washington Convention)

What is CITES?
CITES (the Convention on International Trade in
Endangered Species of Wild Fauna and Flora) is an
international agreement between governments. Its aim is to
ensure that international trade in specimens of wild animals
and plants does not threaten their survival.

Widespread information nowadays about the endangered
status of many prominent species, such as the tiger and
elephants, might make the need for such a convention seem
obvious. But at the time when the ideas for CITES were first
formed, in the 1960s, international discussion of the
regulation of wildlife trade for conservation purposes was
something relatively new. With hindsight, the need for
CITES is clear. Annually, international wildlife trade is
estimated to be worth billions of dollars and to include
hundreds of millions of plant and animal specimens. The
trade is diverse, ranging from live animals and plants to a
vast array of wildlife products derived from them, including
food products, exotic leather goods, wooden musical
instruments, timber, tourist curios and medicines. Levels of
exploitation of some animal and plant species are high and
the trade in them, together with other factors, such as
habitat loss, is capable of heavily depleting their
populations and even bringing some species close to
extinction. Many wildlife species in trade are not
endangered, but the existence of an agreement to ensure the
sustainability of the trade is important in order to safeguard
these resources for the future.

Because the trade in wild animals and plants crosses
borders between countries, the effort to regulate it requires
international cooperation to safeguard certain species from
over-exploitation. CITES was conceived in the spirit of such
cooperation. Today, it accords varying degrees of protection
to more than 35,000 species of animals and plants, whether
they are traded as live specimens, fur coats or dried herbs.

CITES was drafted as a result of a resolution adopted in
1963 at a meeting of members of IUCN (The World
Conservation Union). The text of the Convention was finally
agreed at a meeting of representatives of 80 countries in
Washington, D.C., the United States of America, on 3 March
1973, and on 1 July 1975 CITES entered in force. The
original of the Convention was deposited with the
Depositary Government in the Chinese,
English, French, Russian and Spanish languages, each
version being equally authentic.

CITES is an international agreement to which States
(countries) adhere voluntarily. States that have agreed to be
bound by the Convention ('joined' CITES) are known as
Parties. Although CITES is legally binding on the Parties in
other words they have to implement the Convention it
does not take the place of national laws. Rather it provides a

framework to be respected by each Party, which has to


adopt its own domestic legislation to ensure that CITES is
implemented at the national level.

For many years CITES has been among the conservation
agreements with the largest membership, with now 181
Parties.

How CITES works
CITES works by subjecting international trade in specimens
of selected species to certain controls. All import, export, reexport and introduction from the sea of species covered by
the Convention has to be authorized through a licensing
system. Each Party to the Convention must designate one or
more Management Authorities in charge of administering
that licensing system and one or more Scientific Authorities
to advise them on the effects of trade on the status of the
species.

The species covered by CITES are listed in three
Appendices, according to the degree of protection they
need.

The Fundamental Principles of CITES are described in
Article 2: arguably the most important part of the
Convention. This defines the criteria for listing under the
three appendices. Appendix I is reserved for those species
that are threatened with extinction that are now, or may
become, further endangered by international trade. As such,
trade in those species is prohibited for all Parties, although
there are some exceptions. These include, for example,
specimens that are raised in captivity or parts that were
derived from specimens before the treaty came into force.
Species listed on Appendix II fall into two categories. This
includes those that are not necessarily threatened with
extinction by trade, but may become so unless conservation
measures are taken, and those that may look like other
species affected by trade and listed on an Appendix. The
second category includes, for example, all crocodilians. In
this case, some species are common and can be
commercially traded under the CITES permit system (such
as American alligators and common caiman from many
Latin American countries), while other are rare and are
listed under Appendix I (Orinoco crocodile). This is meant
to assure that rare species are not traded under labels of
more common species. Appendix II listings have increased
greatly over the years; all wild cats and wild orchids, for
example, not listed in Appendix I are now listed in Appendix
II. Appendix III includes species that are protected by
individual States within their respective jurisdictions.
Ghana, for example, protects all songbirds, and trade in any
species, including those that are common, from that country
is prohibited.

The Provisions of CITES
CITES has 25 Articles and each is described briefly here.
Article 1 provides broad legal and scientific definitions used
in subsequent articles. A species" under the Convention can
refer to a biological species, subspecies or a
separate population and a specimen can refer to any

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 61

animal or plant, whether dead or alive, and/or any


recognizable part or derivative thereof, that is listed on any
one of the three Appendices (see below). Definitions are
also provided for what constitutes trade, export, re-export,
and the scientific and management authorities that the
Parties are required to designate under the treaty.

Articles 3 through 5 provide broad legal guidelines under
which CITES operates to regulate trade in specimens or
parts/ derivatives there from, and defines the role of the
Scientific and Management Authorities that all Parties are
required to have. In general terms, the Management
Authority of each respective party is responsible for issuing
import and export permits for listed species in each Party,
and the Scientific Authority has the responsibility for
properly identifying specimens to assure compliance. In
most Parties, the Management Authority is the nationallevel wildlife agency and the Scientific Authority may
include government-funded research institutions such as a
national Natural History Museum. Articles 6 and 7 describe
in more detail the permit system, the role of both import
and export permits, and exemptions under CITES for, for
example, specimens propagated in captivity.

Articles 8 through 10 obligate Parties to take enforcement
measures, including confiscation of and penalties for listed
specimens illegally obtained, and it elaborates on the legal
roles of the Scientific and Management Authorities. Article
10 seeks to ensure that trade with non-Parties to CITES
does not undermine its objectives by requiring comparable
documentation from non-parties in any transaction
involving wildlife trade between Parties to non-Parties.

The CITES Secretariat is obliged under Article 11 to convene
a Conference of Parties (COPs) at least biennially, and its
role is further elaborated in Article 12 to arrange
conferences, undertake research, and publish periodic
editions of the Appendices. The Secretariat also performs
the role of preparing annual research reports and
implementing recommendations made at the COPs. The
Secretariat is further responsible to inform Parties when
they are not in compliance with CITES and instruct Parties
to respond to such information. Inquiries are subject to
review at the next COP and any Party has the power to make
recommendations regarding non-compliance of any other
Party. For example, the United States reprimanded Taiwan
in 1994 regarding trade in tiger parts for traditional Chinese
medicine, and threatened trade sanctions. Taiwan
responded with further enforcement. Any Party is free to
adopt domestic protective measures that are more strict
that those required by CITES under Article 14, and Articles
15 and 16 provide procedures for amending the
Appendices, while procedures for amending the Convention
itself are set forth in Article 17 and procedures for dispute
resolution are given in Article 18.

The remaining 7 articles of CITES deal with its
administrative aspects. These include signature of the
agreement (which closed in December of 1974), ratification
(Article 20), and accession to the Convention (Article 21).

Provisions for entry into force of the treaty (which took


place in 1975) are set forth in Article 22 and procedures for
making specific reservations are provided for in Article 23.
Article 24 permits Parties to denounce CITES and Article 25
outlines the duties of the Depositary Government
(Switzerland). The CITES Secretariat is within the United
Nations Environmental Programme (UNEP) and is located
in Geneva.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Assignment for March 14:
1. Convention on Biological Diversity (CBD), known
informally as the Biodiversity Convention
2. Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and Their Disposal,
usually known as the Basel Convention
3. United Nations Convention on the Law of the Sea
(UNCLOS), also called the Law of the Sea Convention or
the Law of the Sea treaty
- PART XII:PROTECTION AND PRESERVATION OF THE
MARINE ENVIRONMENT
- ANNEX VI. STATUTE OF THE INTERNATIONAL
TRIBUNAL FOR THE LAW OF THE SEA
- ANNEX VII. ARBITRATION
*** FOR FINALS: What is a protocol? What is the role of
Arbitration in peaceful way of settling disputes; What is EEZ?;
Principle of common heritage of mankind
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

1. Convention on Biological Diversity (CBD), known
informally as the Biodiversity Convention
Summary: The Convention on Biological Diversity was
negotiated under the auspices of the United Nations
Environment Programme (UNEP). It was opened for
signature at the June 1992 UN Conference on Environment
and Development (UNCED) and entered into force on 29
December 1993, ninety days after the 30th ratification. As
of October 1998, more than 170 countries had become
Parties (pdf file). The three goals of the CBD are to promote
the conservation of biodiversity, the sustainable use of its
components, and the fair and equitable sharing of benefits
arising out of the utilization of genetic resources. The CBD
Secretariat is located in Montral, Canada. The Subsidiary
Body on Scientific, Technical and Technological Advice
(SBSTTA), which advises the Conference of the Parties
(COP), meets several months prior to each COP.
Negotiations on the first protocol to the Convention,
conducted by the Ad Hoc Working Group on Biosafety
(BSWG), concluded in January 2000.

The Earth Negotiations Bulletin has covered each COP,
SBSTTA and BSWG session plus two sessions prior to the
CBD's entry into force and an intersessional workshop.
ENB coverage of biodiversity issues also includes several
sessions of the Commission on Plant Genetic Resources for
Food and Agriculture, which meets under FAO auspices (see
the ENB CBD Archives for all biodiversity coverage; see also
the Linkages Homepage on Genetic Resources). The
following discussion focuses on decisions taken by the CBD
COP, SBSTTA and the BSWG.

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 62


The CBD Conference of the Parties (COP):
The first meeting of the COP took place in Nassau, the
Bahamas from 28 November - 9 December 1994. Key
decisions taken by COP-1 included: adoption of the
medium-term work programme; designation of the
Permanent Secretariat; establishment of the Clearing House
Mechanism (CHM) and the SBSTTA; and designation of the
Global Environment Facility (GEF) as the interim
institutional structure for the financial mechanism.

The second session of the COP met in Jakarta, Indonesia
from 6-17 November 1995. Decisions taken by COP-2
included: designation of the permanent location of the
Secretariat in Montral, Canada; agreement to develop a
protocol on biosafety; operation of the CHM; designation of
the GEF as the continuing interim institutional structure for
the financial mechanism; consideration of its first
substantive issue, marine and coastal biodiversity; and
agreement to address forests and biodiversity, including the
development of a statement from the CBD to the
Intergovernmental Panel on Forests (IPF) of the
Commission on Sustainable Development. COP-2 also
addressed the issue of Plant Genetic Resources for Food and
Agriculture (PGRFA), adopting a statement for input to the
FAOs Fourth International Technical Conference on PGRFA
(ITCPGR-4).

COP-3 met in Buenos Aires, Argentina, from 4-15 November
1996. Delegates' decisions included: a work programme on
agricultural biodiversity and a more limited one on forest
biodiversity; agreement to hold an intersessional workshop
on traditional knowledge (Article 8(j)); application by the
Executive Secretary for observer status to the World Trade
Organization (WTO) Committee on Trade and the
Environment; and a statement from the CBD to the Special
Session of the UN General Assembly (UNGASS) to review
implementation of Agenda 21.

COP-4 took place from 4-15 May 1998 in Bratislava,
Slovakia. Delegates addressed, inter alia: inland water,
marine and coastal, agricultural and forest biodiversity; the
clearing-house mechanism; biosafety; implementation of
Article 8(j) (traditional and indigenous knowledge); access
and benefit sharing; a review of the operations of the
Convention; and national reports. Delegates also conducted
a review of the financial mechanism.

COP-5 is scheduled to take place from 15-26 May 2000 in
Nairobi, Kenya.

The Subsidiary Body on Scientific, Technical and
Technological Advice (SBSTTA):
Article 25 of the CBD establishes a Subsidiary Body on
Scientific, Technical and Technological Advice to provide
the COP with "timely advice" relating to implementation of
the Convention.

The first session of the SBSTTA took place from 4-8
September 1995 in Paris, France. Recommendations on the

modus operandi of the SBSTTA affirmed its subsidiary role


to the COP and requested flexibility to create: two openended working groups to meet simultaneously during
future SBSTTA meetings; Ad Hoc Technical Panels of
Experts as needed; and a roster of experts. On the
conservation and sustainable use of coastal and marine
biological diversity, SBSTTA-1 identified three priorities:
sustainable use of living coastal and marine resources;
mariculture; and control of alien organisms.

The second session of SBSTTA took place from 2-6
September 1996 in Montral, Canada. The agenda included
issues such as the monitoring and assessment of
biodiversity, practical approaches to taxonomy, economic
valuation of biodiversity, access to genetic resources,
agricultural biodiversity, terrestrial biodiversity, marine
and coastal biodiversity, biosafety and the CHM.

The third session of SBSTTA met in Montral, Canada, from
1-5
September
1997.

Delegates
produced
recommendations on biodiversity in inland water
ecosystems, marine and coastal biodiversity, agricultural
biodiversity, forest biodiversity, and biodiversity indicators.

The fourth session of SBSTTA met in Montral, Canada, from
21-25 June 1999. The first Intersessional meeting on the
Operations of the Convention (ISOC) convened in Montral
from 28-30 June 1999. ENB coverage

SBSTTA-4 delegates met in two working groups. The first
considered developing a work programme on dryland
ecosystems, principles for the prevention of impacts of alien
species, and further advancement of the Global Taxonomy
Initiative. Working Group II discussed: new plant
technology for the control of plant gene expression;
sustainable use of biological resources, including tourism;
and incorporation of biological diversity considerations into
environmental impact assessments. Delegates also
discussed the SBSTTA work programme, cooperation with
other bodies and progress on thematic areas. They
considered the terms of reference of ad hoc technical expert
groups, but deferred making a decision to SBSTTA-5.

ISOC was convened based on COP-4 Decision IV/16, which
called for an open-ended meeting to consider possible
arrangements to improve preparations for and conduct of
the meetings of the Conference of the Parties (COP). ISOC
also held preparatory discussions on the COP-5 agenda item
on access to genetic resources and benefit sharing, focusing
on the upcoming Experts Panel on Access and Benefit
Sharing, which will meet in October 1999 in Costa Rica, ex
situ collections that were acquired prior to the Convention's
entry into force and the relationship between intellectual
property rights and the relevant provisions of the
Agreement on Trade-Related Aspects of Intellectual
Property Rights and the CBD.

The fifth session of SBSTTA met in Montral, Canada from
31 January - 4 February, 2000. Over 430 participants,
representing 130 governments, NGOs, the scientific

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 63

community and indigenous peoples' organizations, attended


the meeting.

SBSTTA-5 delegates met in two Working Groups. Working
Group 1 considered: alien species; marine and coastal
biological diversity, including coral bleaching; the
programme of work for drylands, Mediterranean, arid,
semi-arid, grassland and savannah biological diversity; and
agricultural biological diversity. Working Group 2 discussed
the ecosystem approach, development of biodiversity
indicators, and sustainable use of the components of
biological diversity. The Plenary reviewed cooperation with
other bodies, the Global Taxonomy Initiative, the pilot phase
of the Clearing-House Mechanism, guidelines for the second
national reports, work programmes on inland waters and
forest biological diversity, and rosters and terms of
reference for ad hoc technical expert groups. The
recommendations from SBSTTA-5 will be forwarded to the
fifth Conference of the Parties (COP-5) to be held in Nairobi,
Kenya, from 15-26 May 2000.

Biosafety Protocol:
Since the early 1970s, modern biotechnology has enabled
scientists to genetically and biochemically modify plants,
animals and micro-organisms to create living modified
organisms (LMOs). Many countries with biotechnology
industries already have domestic legislation in place
intended to ensure the safe transfer, handling, use and
disposal of LMOs and their products. These precautionary
practices are collectively known as "biosafety." However,
there are no binding international agreements addressing
situations where LMOs cross national borders. Article 19 of
the CBD provides for Parties to consider the need for and
modalities of a protocol on biosafety.

At COP-2, delegates established an Open-ended Ad Hoc
Working Group on Biosafety (BSWG), which held its first
meeting in Aarhus, Denmark, from 22-26 July 1996.
Governments listed elements for a future protocol and
outlined the information required to guide their future
work.

Four subsequent BSWG meetings, all held in Montral,
Canada, continued to identify and narrow the elements to
be included in the protocol. Discussion ranged from: the
protocol's scope, including which LMOs and "products
thereof" would be covered; which LMOs would be subject to
Advanced Informed Agreement and what that procedure
would entail; whether there would be a clearing-house; who
would conduct risk assessments and/or how risks would be
managed; whether action would be based on the
precautionary principle, scientific knowledge and/or some
other criteria; and whether there would be liability and
compensation/redress provisions. Additional issues on the
table addressed capacity building, unintentional
transboundary movement, handling, transportation,
packaging and transit requirements, and monitoring and
compliance. Most of the text remained bracketed going into
the final week of negotiations in Cartegena, Colombia.

The sixth session of the Open-ended Ad Hoc Working Group


on Biosafety (BSWG-6) was held from Sunday, 14 February,
to Monday morning, 22 February 1999, in Cartagena de
Indias, Colombia. The first Extraordinary Meeting of the
Conference of the Parties (ExCOP) to the CBD was held from
22-23 February 1999. Over 600 participants representing
138 governments, business and environmental NGOs and
the scientific community, attempted to finalize a protocol on
biosafety during the BSWG for adoption by the ExCOP.
Despite ten days of non-stop debate, including weekend,
late night and early morning sessions, delegates were not
able to agree on a protocol. The main areas of contention
centered on trade issues, treatment of commodities and
domestic vs. international regulatory regimes. Instead the
ExCOP adopted a decision to suspend the meeting and
request the ExCOP President and the COP-4 Bureau to
decide when and where the session would resume, no later
than the fifth meeting of the Conference of the Parties.
Delegates also decided that the Protocol will be called the
Cartagena Protocol on Biosafety to the Convention on
Biological Diversity. The text of the draft Protocol, set out in
Appendix I to the Report of BSWG-6, as well as the
statements by governments with respect to the text of the
draft Protocol contained in that report, will be transmitted
to the resumed ExCOP session for further debate.

The Informal Consultations regarding the Resumed Session
of the Extraordinary Meeting Of The Conference of the
Parties (ExCOP) for the Adoption of the Protocol on
Biosafety to the Convention on Biological Diversity met in
Vienna, Austria, from Wednesday, 15 September to Sunday,
19 September 1999. Approximately 300 representatives
from over 115 governments and 70 representatives from
intergovernmental, nongovernmental and industry
organizations attended. The first two days of the meeting
were devoted to consultations within negotiating groups;
the third day was for informal exchanges between groups;
and the final two days were devoted to resolving differences
between groups on pending core issues. During the final
two days of discussions, negotiating groups addressed the
issues of commodities, the protocols relationship with
other international agreements, the protocols scope and
application of the advance informed agreement procedure.
Negotiating groups agreed on a basic set of concepts for
commodities and relations with other international
agreements, while acknowledging that the central
differences on those and other issues remain. (Note: ENB's
briefing note covers only the final two days of
consultations.)

The Resumed Session of the Extraordinary Meeting of the
Conference of the Parties (ExCOP) for the Adoption of the
Protocol on Biosafety to the Convention on Biological
Diversity was held from 24-28 January 2000, in Montral,
Canada. Over 750 participants, representing 133
governments, NGOs, industry organizations and the
scientific community, attended the meeting. Following nine
days of negotiations, including late evening and early
morning sessions, delegates adopted the Cartagena Protocol
on Biosafety in the early morning hours of 29 January 2000.

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 64


The Cartagena Protocol addresses the safe transfer,
handling and use of living modified organisms (LMOs) that
may have an adverse effect on biodiversity with a specific
focus on transboundary movements. The Protocol
establishes an advance informed agreement (AIA)
procedure for imports of LMOs, incorporates the
precautionary principle and details information and
documentation requirements. The Protocol also contains
provisions
regarding
documentation,
confidential
information and information-sharing, capacity-building, and
financial resources, with special attention to the situation of
developing countries and those without domestic
regulatory systems.

2. Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and Their Disposal,
usually known as the Basel Convention

Overview: The Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and their
Disposal was adopted on 22 March 1989 by the Conference
of Plenipotentiaries in Basel, Switzerland, in response to a
public outcry following the discovery, in the 1980s, in Africa
and other parts of the developing world of deposits of toxic
wastes imported from abroad.

Awakening environmental awareness and corresponding
tightening of environmental regulations in the
industrialized world in the 1970s and 1980s had led to
increasing public resistance to the disposal of hazardous
wastes in accordance with what became known as the
NIMBY (Not In My Back Yard) syndrome and to an
escalation of disposal costs. This in turn led some operators
to seek cheap disposal options for hazardous wastes in
Eastern Europe and the developing world, where
environmental awareness was much less developed and
regulations and enforcement mechanisms were lacking. It
was against this background that the Basel Convention was
negotiated in the late 1980s, and its thrust at the time of its
adoption was to combat the toxic trade, as it was termed.
The Convention entered into force in 1992.

Objective - The overarching objective of the Basel
Convention is to protect human health and the environment
against the adverse effects of hazardous wastes. Its scope of
application covers a wide range of wastes defined as
hazardous wastes based on their origin and/or
composition and their characteristics, as well as two types
of wastes defined as other wastes - household waste and
incinerator ash.

Aims and provisions: The provisions of the Convention
center around the following principal aims:

- the reduction of hazardous waste generation and the
promotion of environmentally sound management of
hazardous wastes, wherever the place of disposal;

- the restriction of transboundary movements of hazardous


wastes except where it is perceived to be in accordance with
the principles of environmentally sound management; and
- a regulatory system applying to cases where
transboundary movements are permissible.

The first aim is addressed through a number of general
provisions requiring States to observe the fundamental
principles of environmentally sound waste management
(article 4). A number of prohibitions are designed to attain
the second aim: hazardous wastes may not be exported to
Antarctica, to a State not party to the Basel Convention, or to
a party having banned the import of hazardous wastes
(article 4). Parties may, however, enter into bilateral or
multilateral agreements on hazardous waste management
with other parties or with non-parties, provided that such
agreements are no less environmentally sound than the
Basel Convention (article 11). In all cases where
transboundary movement is not, in principle, prohibited, it
may take place only if it represents an environmentally
sound solution, if the principles of environmentally sound
management and non-discrimination are observed and if it
is carried out in accordance with the Conventions
regulatory system.

The regulatory system is the cornerstone of the Basel
Convention as originally adopted. Based on the concept of
prior informed consent, it requires that, before an export
may take place, the authorities of the State of export notify
the authorities of the prospective States of import and
transit, providing them with detailed information on the
intended movement. The movement may only proceed if
and when all States concerned have given their written
consent (articles 6 and 7). The Basel Convention also
provides for cooperation between parties, ranging from
exchange of information on issues relevant to the
implementation of the Convention to technical assistance,
particularly to developing countries (articles 10 and 13).
The Secretariat is required to facilitate and support this
cooperation, acting as a clearing-house (article 16). In the
event of a transboundary movement of hazardous wastes
having been carried out illegally, i.e. in contravention of the
provisions of articles 6 and 7, or cannot be completed as
foreseen, the Convention attributes responsibility to one or
more of the States involved, and imposes the duty to ensure
safe disposal, either by re-import into the State of
generation or otherwise (articles 8 and 9).

The Convention also provides for the establishment of
regional or sub-regional centres for training and technology
transfers regarding the management of hazardous wastes
and other wastes and the minimization of their generation
to cater to the specific needs of different regions and
subregions (article 14). Fourteen such centres have been
established. They carry out training and capacity building
activities in the regions.

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3. United Nations Convention on the Law of the Sea


(UNCLOS), also called the Law of the Sea Convention or
the Law of the Sea treaty

PART XII : PROTECTION AND PRESERVATION OF THE
MARINE ENVIRONMENT

SECTION 1. GENERAL PROVISIONS
Article 192: General obligation - States have the obligation to
protect and preserve the marine environment.

Article 193: Sovereign right of States to exploit their natural
resources - States have the sovereign right to exploit their
natural resources pursuant to their environmental policies
and in accordance with their duty to protect and preserve
the marine environment.

Article 194: Measures to prevent, reduce and control pollution
of the marine environment
1. States shall take, individually or jointly as appropriate, all
measures consistent with this Convention that are
necessary to prevent, reduce and control pollution of the
marine environment from any source, using for this purpose
the best practicable means at their disposal and in
accordance with their capabilities, and they shall endeavour
to harmonize their policies in this connection.
2. States shall take all measures necessary to ensure that
activities under their jurisdiction or control are so
conducted as not to cause damage by pollution to other
States and their environment, and that pollution arising
from incidents or activities under their jurisdiction or
control does not spread beyond the areas where they
exercise sovereign rights in accordance with this
Convention.
3. The measures taken pursuant to this Part shall deal with
all sources of pollution of the marine environment. These
measures shall include, inter alia, those designed to
minimize to the fullest possible extent:
(a) the release of toxic, harmful or noxious substances,
especially those which are persistent, from land-based
sources, from or through the atmosphere or by
dumping;
(b) pollution from vessels, in particular measures for
preventing accidents and dealing with emergencies,
ensuring the safety of operations at sea, preventing
intentional and unintentional discharges, and regulating
the design, construction, equipment, operation and
manning of vessels;
(c) pollution from installations and devices used in
exploration or exploitation of the natural resources of
the seabed and subsoil, in particular measures for
preventing accidents and dealing with emergencies,
ensuring the safety of operations at sea, and regulating
the design, construction, equipment, operation and
manning of such installations or devices;
(d) pollution from other installations and devices
operating in the marine environment, in particular
measures for preventing accidents and dealing with
emergencies, ensuring the safety of operations at sea,

and regulating the design, construction, equipment,


operation and manning of such installations or devices.
4. In taking measures to prevent, reduce or control pollution
of the marine environment, States shall refrain from
unjustifiable interference with activities carried out by
other States in the exercise of their rights and in pursuance
of their duties in conformity with this Convention.
5. The measures taken in accordance with this Part shall
include those necessary to protect and preserve rare or
fragile ecosystems as well as the habitat of depleted,
threatened or endangered species and other forms of
marine life.

Article 195: Duty not to transfer damage or hazards or
transform one type of pollution into another
In taking measures to prevent, reduce and control pollution
of the marine environment, States shall act so as not to
transfer, directly or indirectly, damage or hazards from one
area to another or transform one type of pollution into
another.

Article 196: Use of technologies or introduction of alien or
new species
1. States shall take all measures necessary to prevent,
reduce and control pollution of the marine environment
resulting from the use of technologies under their
jurisdiction or control, or the intentional or accidental
introduction of species, alien or new, to a particular part of
the marine environment, which may cause significant and
harmful changes thereto.
2. This article does not affect the application of this
Convention regarding the prevention, reduction and control
of pollution of the marine environment.

ANNEX VI. STATUTE OF THE INTERNATIONAL
TRIBUNAL FOR THE LAW OF THE SEA

Article 1: General provisions
1. The International Tribunal for the Law of the Sea is
constituted and shall function in accordance with the
provisions of this Convention and this Statute.
2. The seat of the Tribunal shall be in the Free and Hanseatic
City of Hamburg in the Federal Republic of Germany.
3. The Tribunal may sit and exercise its functions elsewhere
whenever it considers this desirable.
4.A reference of a dispute to the Tribunal shall be governed
by the provisions of Parts XI and XV.

SECTION 1. ORGANIZATION OF THE TRIBUNAL
Article 2: Composition
1. The Tribunal shall be composed of a body of
21 independent members, elected from among persons
enjoying the highest reputation for fairness and integrity
and of recognized competence in the field of the law of the
sea.
2. In the Tribunal as a whole the representation of the
principal legal systems of the world and equitable
geographical distribution shall be assured.

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Article 3: Membership
1. No two members of the Tribunal may be nationals of the
same State. A person who for the purposes of membership
in the Tribunal could be regarded as a national of more than
one State shall be deemed to be a national of the one in
which he ordinarily exercises civil and political rights.
2. There shall be no fewer than three members from each
geographical group as established by the General Assembly
of the United Nations.

Article 4 : Nominations and elections
1. Each State Party may nominate not more than two
persons having the qualifications prescribed in article 2 of
this Annex. The members of the Tribunal shall be elected
from the list of persons thus nominated.
2. At least three months before the date of the election, the
Secretary-General of the United Nations in the case of the
first election and the Registrar of the Tribunal in the case of
subsequent elections shall address a written invitation to
the States Parties to submit their nominations for members
of the Tribunal within two months. He shall prepare a list in
alphabetical order of all the persons thus nominated, with
an indication of the States Parties which have nominated
them, and shall submit it to the States Parties before the
seventh day of the last month before the date of each
election.
3. The first election shall be held within six months of the
date of entry into force of this Convention.
4. The members of the Tribunal shall be elected by secret
ballot. Elections shall be held at a meeting of the States
Parties convened by the Secretary-General of the United
Nations in the case of the first election and by a procedure
agreed to by the States Parties in the case of subsequent
elections. Two thirds of the States Parties shall constitute a
quorum at that meeting. The persons elected to the Tribunal
shall be those nominees who obtain the largest number of
votes and a two-thirds majority of the States Parties present
and voting, provided that such majority includes a majority
of the States Parties.

Article 5: Term of office
1. The members of the Tribunal shall be elected for nine
years and may be re-elected; provided, however, that of the
members elected at the first election, the terms of seven
members shall expire at the end of three years and the
terms of seven more members shall expire at the end of six
years.
2. The members of the Tribunal whose terms are to expire
at the end of the above-mentioned initial periods of three
and six years shall be chosen by lot to be drawn by the
Secretary-General of the United Nations immediately after
the first election.
3. The members of the Tribunal shall continue to discharge
their duties until their places have been filled. Though
replaced, they shall finish any proceedings which they may
have begun before the date of their replacement.
4. In the case of the resignation of a member of the Tribunal,
the letter of resignation shall be addressed to the President
of the Tribunal. The place becomes vacant on the receipt of
that letter.

Article 6: Vacancies
1. Vacancies shall be filled by the same method as that laid
down for the first election, subject to the following
provision: the Registrar shall, within one month of the
occurrence of the vacancy, proceed to issue the invitations
provided for in article 4 of this Annex, and the date of the
election shall be fixed by the President of the Tribunal after
consultation with the States Parties.
2. A member of the Tribunal elected to replace a member
whose term of office has not expired shall hold office for the
remainder of his predecessor's term.

Article 7:Incompatible activities
1. No member of the Tribunal may exercise any political or
administrative function, or associate actively with or be
financially interested in any of the operations of any
enterprise concerned with the exploration for or
exploitation of the resources of the sea or the seabed or
other commercial use of the sea or the seabed.
2. No member of the Tribunal may act as agent, counsel or
advocate in any case.
3. Any doubt on these points shall be resolved by decision of
the majority of the other members of the Tribunal present.

Article 8: Conditions relating to participation of members in a
particular case
1. No member of the Tribunal may participate in the
decision of any case in which he has previously taken part
as agent, counsel or advocate for one of the parties, or as a
member of a national or international court or tribunal, or
in any other capacity.
2. If, for some special reason, a member of the Tribunal
considers that he should not take part in the decision of a
particular case, he shall so inform the President of the
Tribunal.
3. If the President considers that for some special reason
one of the members of the Tribunal should not sit in a
particular case, he shall give him notice accordingly.
4. Any doubt on these points shall be resolved by decision of
the majority of the other members of the Tribunal present.

Article 9:Consequence of ceasing to fulfil required conditions
If, in the unanimous opinion of the other members of the
Tribunal, a member has ceased to fulfil the required
conditions, the President of the Tribunal shall declare the
seat vacant.

Article 10: Privileges and immunities
The members of the Tribunal, when engaged on the
business of the Tribunal, shall enjoy diplomatic privileges
and immunities.

Article 11: Solemn declaration by members
Every member of the Tribunal shall, before taking up his
duties, make a solemn declaration in open session that he
will exercise his powers impartially and conscientiously.

Article 12: President, Vice-President and Registrar
1. The Tribunal shall elect its President and Vice-President
for three years; they may be re-elected.

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2. The Tribunal shall appoint its Registrar and may provide


for the appointment of such other officers as may be
necessary.
3. The President and the Registrar shall reside at the seat of
the Tribunal.

Article 13: Quorum
1. All available members of the Tribunal shall sit; a quorum
of 11 elected members shall be required to constitute the
Tribunal.
2. Subject to article 17 of this Annex, the Tribunal shall
determine which members are available to constitute the
Tribunal for the consideration of a particular dispute,
having regard to the effective functioning of the chambers
as provided for in articles 14 and 15 of this Annex.
3. All disputes and applications submitted to the Tribunal
shall be heard and determined by the Tribunal, unless
article 14 of this Annex applies, or the parties request that it
shall be dealt with in accordance with article 15 of this
Annex.

Article 14: Seabed Disputes Chamber
A Seabed Disputes Chamber shall be established in
accordance with the provisions of section 4 of this Annex.
Its jurisdiction, powers and functions shall be as provided
for in Part XI, section 5.

Article 15: Special chambers
1. The Tribunal may form such chambers, composed of
three or more of its elected members, as it considers
necessary for dealing with particular categories of disputes.
2. The Tribunal shall form a chamber for dealing with a
particular dispute submitted to it if the parties so request.
The composition of such a chamber shall be determined by
the Tribunal with the approval of the parties.
3. With a view to the speedy dispatch of business, the
Tribunal shall form annually a chamber composed of five of
its elected members which may hear and determine
disputes by summary procedure. Two alternative members
shall be selected for the purpose of replacing members who
are unable to participate in a particular proceeding.
4. Disputes shall be heard and determined by the chambers
provided for in this article if the parties so request.
5. A judgment given by any of the chambers provided for in
this article and in article 14 of this Annex shall be
considered as rendered by the Tribunal.

Article 16: Rules of the Tribunal
The Tribunal shall frame rules for carrying out its functions.
In particular it shall lay down rules of procedure.

Article 17:Nationality of members
1. Members of the Tribunal of the nationality of any of the
parties to a dispute shall retain their right to participate as
members of the Tribunal.
2. If the Tribunal, when hearing a dispute, includes upon the
bench a member of the nationality of one of the parties, any
other party may choose a person to participate as a member
of the Tribunal.

3. If the Tribunal, when hearing a dispute, does not include


upon the bench a member of the nationality of the parties,
each of those parties may choose a person to participate as
a member of the Tribunal.
4. This article applies to the chambers referred to in
articles 14 and 15 of this Annex. In such cases, the
President, in consultation with the parties, shall request
specified members of the Tribunal forming the chamber, as
many as necessary, to give place to the members of the
Tribunal of the nationality of the parties concerned, and,
failing such, or if they are unable to be present, to the
members specially chosen by the parties.
5. Should there be several parties in the same interest, they
shall, for the purpose of the preceding provisions, be
considered as one party only. Any doubt on this point shall
be settled by the decision of the Tribunal.
6. Members chosen in accordance with paragraphs 2,
3 and 4 shall fulfil the conditions required by articles 2,
8 and 11 of this Annex. They shall participate in the decision
on terms of complete equality with their colleagues.

Article 18: Remuneration of members
1. Each elected member of the Tribunal shall receive an
annual allowance and, for each day on which he exercises
his functions, a special allowance, provided that in any year
the total sum payable to any member as special allowance
shall not exceed the amount of the annual allowance.
2. The President shall receive a special annual allowance.
3. The Vice-President shall receive a special allowance for
each day on which he acts as President.
4. The members chosen under article 17 of this Annex, other
than elected members of the Tribunal, shall receive
compensation for each day on which they exercise their
functions.
5. The salaries, allowances and compensation shall be
determined from time to time at meetings of the States
Parties, taking into account the workload of the Tribunal.
They may not be decreased during the term of office.
6. The salary of the Registrar shall be determined at
meetings of the States Parties, on the proposal of the
Tribunal.
7. Regulations adopted at meetings of the States Parties
shall determine the conditions under which retirement
pensions may be given to members of the Tribunal and to
the Registrar, and the conditions under which members of
the Tribunal and Registrar shall have their travelling
expenses refunded.
8. The salaries, allowances, and compensation shall be free
of all taxation.

Article 19: Expenses of the Tribunal
1. The expenses of the Tribunal shall be borne by the States
Parties and by the Authority on such terms and in such a
manner as shall be decided at meetings of the States Parties.
2. When an entity other than a State Party or the Authority
is a party to a case submitted to it, the Tribunal shall fix the
amount which that party is to contribute towards the
expenses of the Tribunal.

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SECTION 2. COMPETENCE
Article 20: Access to the Tribunal
1. The Tribunal shall be open to States Parties.
2. The Tribunal shall be open to entities other than States
Parties in any case expressly provided for in Part XI or in
any case submitted pursuant to any other agreement
conferring jurisdiction on the Tribunal which is accepted by
all the parties to that case.

Article 21:Jurisdiction - The jurisdiction of the Tribunal
comprises all disputes and all applications submitted to it in
accordance with this Convention and all matters specifically
provided for in any other agreement which confers
jurisdiction on the Tribunal.

Article 22: Reference of disputes subject to other agreements
If all the parties to a treaty or convention already in force
and concerning the subject-matter covered by this
Convention so agree, any disputes concerning the
interpretation or application of such treaty or convention
may, in accordance with such agreement, be submitted to
the Tribunal.

Article 23:Applicable law - The Tribunal shall decide all
disputes and applications in accordance with article 293.

SECTION 3. PROCEDURE
Article 24: Institution of proceedings
1. Disputes are submitted to the Tribunal, as the case may
be, either by notification of a special agreement or by
written application, addressed to the Registrar. In either
case, the subject of the dispute and the parties shall be
indicated.
2. The Registrar shall forthwith notify the special agreement
or the application to all concerned.
3. The Registrar shall also notify all States Parties.

Article 25: Provisional measures
1. In accordance with article 290, the Tribunal and its
Seabed Disputes Chamber shall have the power to prescribe
provisional measures.
2. If the Tribunal is not in session or a sufficient number of
members is not available to constitute a quorum, the
provisional measures shall be prescribed by the chamber of
summary procedure formed under article 15, paragraph 3,
of this Annex. Notwithstanding article 15, paragraph 4, of
this Annex, such provisional measures may be adopted at
the request of any party to the dispute. They shall be subject
to review and revision by the Tribunal.

Article 26: Hearing
1. The hearing shall be under the control of the President or,
if he is unable to preside, of the Vice-President. If neither is
able to preside, the senior judge present of the Tribunal
shall preside.
2. The hearing shall be public, unless the Tribunal decides
otherwise or unless the parties demand that the public be
not admitted.

Article 27: Conduct of case


The Tribunal shall make orders for the conduct of the case,
decide the form and time in which each party must conclude
its arguments, and make all arrangements connected with
the taking of evidence.

Article 28: Default
When one of the parties does not appear before the
Tribunal or fails to defend its case, the other party may
request the Tribunal to continue the proceedings and make
its decision. Absence of a party or failure of a party to
defend its case shall not constitute a bar to the proceedings.
Before making its decision, the Tribunal must satisfy itself
not only that it has jurisdiction over the dispute, but also
that the claim is well founded in fact and law.

Article 29:Majority for decision
1. All questions shall be decided by a majority of the
members of the Tribunal who are present.
2. In the event of an equality of votes, the President or the
member of the Tribunal who acts in his place shall have a
casting vote.

Article 30: Judgment
1. The judgment shall state the reasons on which it is based.
2. It shall contain the names of the members of the Tribunal
who have taken part in the decision.
3. If the judgment does not represent in whole or in part the
unanimous opinion of the members of the Tribunal, any
member shall be entitled to deliver a separate opinion.
4. The judgment shall be signed by the President and by the
Registrar. It shall be read in open court, due notice having
been given to the parties to the dispute.

Article 3l: Request to intervene
1. Should a State Party consider that it has an interest of a
legal nature which may be affected by the decision in any
dispute, it may submit a request to the Tribunal to be
permitted to intervene.
2. It shall be for the Tribunal to decide upon this request.
3. If a request to intervene is granted, the decision of the
Tribunal in respect of the dispute shall be binding upon the
intervening State Party in so far as it relates to matters in
respect of which that State Party intervened.

Article 32: Right to intervene in cases of interpretation or
application
1. Whenever the interpretation or application of this
Convention is in question, the Registrar shall notify all
States Parties forthwith.
2. Whenever pursuant to article 21 or 22 of this Annex the
interpretation or application of an international agreement
is in question, the Registrar shall notify all the parties to the
agreement.
3. Every party referred to in paragraphs 1 and 2 has the
right to intervene in the proceedings; if it uses this right, the
interpretation given by the judgment will be equally binding
upon it.

Article 33:Finality and binding force of decisions

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1. The decision of the Tribunal is final and shall be complied


with by all the parties to the dispute.
2. The decision shall have no binding force except between
the parties in respect of that particular dispute.
3. In the event of dispute as to the meaning or scope of the
decision, the Tribunal shall construe it upon the request of
any party.
Article 34: Costs
Unless otherwise decided by the Tribunal, each party shall
bear its own costs.

SECTION 4. SEABED DISPUTES CHAMBER
Article 35 : Composition
1. The Seabed Disputes Chamber referred to in article 14 of
this Annex shall be composed of 11 members, selected by a
majority of the elected members of the Tribunal from
among them.
2. In the selection of the members of the Chamber, the
representation of the principal legal systems of the world
and equitable geographical distribution shall be assured.
The Assembly of the Authority may adopt recommendations
of a general nature relating to such representation and
distribution.
3. The members of the Chamber shall be selected every
three years and may be selected for a second term.
4. The Chamber shall elect its President from among its
members, who shall serve for the term for which the
Chamber has been selected.
5. If any proceedings are still pending at the end of any
three-year period for which the Chamber has been selected,
the Chamber shall complete the proceedings in its original
composition.
6. If a vacancy occurs in the Chamber, the Tribunal shall
select a successor from among its elected members, who
shall hold office for the remainder of his predecessor's term.
7. A quorum of seven of the members selected by the
Tribunal shall be required to constitute the Chamber.

Article 36: Ad hoc chambers
1. The Seabed Disputes Chamber shall form an ad hoc
chamber, composed of three of its members, for dealing
with a particular dispute submitted to it in accordance with
article 188, paragraph 1(b). The composition of such a
chamber shall be determined by the Seabed Disputes
Chamber with the approval of the parties.
2. If the parties do not agree on the composition of an ad hoc
chamber, each party to the dispute shall appoint one
member, and the third member shall be appointed by them
in agreement. If they disagree, or if any party fails to make
an appointment, the President of the Seabed Disputes
Chamber shall promptly make the appointment or
appointments from among its members, after consultation
with the parties.
3. Members of the ad hoc chamber must not be in the
service of, or nationals of, any of the parties to the dispute.


Article 37: Access

The Chamber shall be open to the States Parties, the


Authority and the other entities referred to in Part XI,
section 5.

Article 38: Applicable law
In addition to the provisions of article 293, the Chamber
shall apply:
(a) the rules, regulations and procedures of the Authority
adopted in accordance with this Convention; and
(b) the terms of contracts concerning activities in the Area
in matters relating to those contracts.

Article 39: Enforcement of decisions of the Chamber
The decisions of the Chamber shall be enforceable in the
territories of the States Parties in the same manner as
judgments or orders of the highest court of the State Party
in whose territory the enforcement is sought.

Article 40: Applicability of other sections of this Annex
1. The other sections of this Annex which are not
incompatible with this section apply to the Chamber.
2. In the exercise of its functions relating to advisory
opinions, the Chamber shall be guided by the provisions of
this Annex relating to procedure before the Tribunal to the
extent to which it recognizes them to be applicable.

SECTION 5. AMENDMENTS
Article 4l: Amendments
1. Amendments to this Annex, other than amendments to
section 4, may be adopted only in accordance with
article 313 or by consensus at a conference convened in
accordance with this Convention.
2. Amendments to section 4 may be adopted only in
accordance with article 314.
3. The Tribunal may propose such amendments to this
Statute as it may consider necessary, by written
communications to the States Parties for their consideration
in conformity with paragraphs 1 and 2.

ANNEX VII. ARBITRATION
Article 1: Institution of proceedings
Subject to the provisions of Part XV, any party to a dispute
may submit the dispute to the arbitral procedure provided
for in this Annex by written notification addressed to the
other party or parties to the dispute. The notification shall
be accompanied by a statement of the claim and the
grounds on which it is based.

Article 2: List of arbitrators
l. A list of arbitrators shall be drawn up and maintained by
the Secretary-General of the United Nations. Every State
Party shall be entitled to nominate four arbitrators, each of
whom shall be a person experienced in maritime affairs and
enjoying the highest reputation for fairness, competence
and integrity. The names of the persons so nominated shall
constitute the list.
2. If at any time the arbitrators nominated by a State Party
in the list so constituted shall be fewer than four, that State
Party shall be entitled to make further nominations as
necessary.

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3. The name of an arbitrator shall remain on the list until


withdrawn by the State Party which made the nomination,
provided that such arbitrator shall continue to serve on any
arbitral tribunal to which that arbitrator has been
appointed until the completion of the proceedings before
that arbitral tribunal.

Article 3: Constitution of arbitral tribunal
For the purpose of proceedings under this Annex, the
arbitral tribunal shall, unless the parties otherwise agree, be
constituted as follows:
(a) Subject to subparagraph (g), the arbitral tribunal shall
consist of five members.
(b) The party instituting the proceedings shall appoint one
member to be chosen preferably from the list referred to
in article 2 of this Annex, who may be its national. The
appointment shall be included in the notification
referred to in article l of this Annex.
(c) The other party to the dispute shall, within 30 days of
receipt of the notification referred to in article l of this
Annex, appoint one member to be chosen preferably
from the list, who may be its national. If the appointment
is not made within that period, the party instituting the
proceedings may, within two weeks of the expiration of
that period, request that the appointment be made in
accordance with subparagraph (e).
(d) The other three members shall be appointed by
agreement between the parties. They shall be chosen
preferably from the list and shall be nationals of third
States unless the parties otherwise agree. The parties to
the dispute shall appoint the President of the arbitral
tribunal from among those three members. If, within
60 days of receipt of the notification referred to in
article l of this Annex, the parties are unable to reach
agreement on the appointment of one or more of the
members of the tribunal to be appointed by agreement,
or on the appointment of the President, the remaining
appointment or appointments shall be made in
accordance with subparagraph (e), at the request of a
party to the dispute. Such request shall be made within
two weeks of the expiration of the aforementioned 60day period.
(e) Unless the parties agree that any appointment under
subparagraphs (c) and (d) be made by a person or a
third State chosen by the parties, the President of the
International Tribunal for the Law of the Sea shall make
the necessary appointments. If the President is unable to
act under this subparagraph or is a national of one of the
parties to the dispute, the appointment shall be made by
the next senior member of the International Tribunal for
the Law of the Sea who is available and is not a national
of one of the parties. The appointments referred to in
this subparagraph shall be made from the list referred to
in article 2 of this Annex within a period of 30 days of the
receipt of the request and in consultation with the
parties. The members so appointed shall be of different
nationalities and may not be in the service of, ordinarily
resident in the territory of, or nationals of, any of the
parties to the dispute.

(f) Any vacancy shall be filled in the manner prescribed for


the initial appointment.
(g) Parties in the same interest shall appoint one member of
the tribunal jointly by agreement. Where there are
several parties having separate interests or where there
is disagreement as to whether they are of the same
interest, each of them shall appoint one member of the
tribunal. The number of members of the tribunal
appointed separately by the parties shall always be
smaller by one than the number of members of the
tribunal to be appointed jointly by the parties.
(h) In disputes involving more than two parties, the
provisions of subparagraphs (a) to (f) shall apply to the
maximum extent possible.

Article 4: Functions of arbitral tribunal - An arbitral tribunal
constituted under article 3 of this Annex shall function in
accordance with this Annex and the other provisions of this
Convention.

Article 5: Procedure - Unless the parties to the dispute
otherwise agree, the arbitral tribunal shall determine its
own procedure, assuring to each party a full opportunity to
be heard and to present its case.

Article 6: Duties of parties to a dispute
The parties to the dispute shall facilitate the work of the
arbitral tribunal and, in particular, in accordance with their
law and using all means at their disposal, shall:
(a) provide it with all relevant documents, facilities and
information; and
(b) enable it when necessary to call witnesses or experts
and receive their evidence and to visit the localities to
which the case relates.

Article 7: Expenses
Unless the arbitral tribunal decides otherwise because of
the particular circumstances of the case, the expenses of the
tribunal, including the remuneration of its members, shall
be borne by the parties to the dispute in equal shares.

Article 8: Required majority for decisions
Decisions of the arbitral tribunal shall be taken by a
majority vote of its members. The absence or abstention of
less than half of the members shall not constitute a bar to
the tribunal reaching a decision. In the event of an equality
of votes, the President shall have a casting vote.

Article 9: Default of appearance
If one of the parties to the dispute does not appear before
the arbitral tribunal or fails to defend its case, the other
party may request the tribunal to continue the proceedings
and to make its award. Absence of a party or failure of a
party to defend its case shall not constitute a bar to the
proceedings. Before making its award, the arbitral tribunal
must satisfy itself not only that it has jurisdiction over the
dispute but also that the claim is well founded in fact and
law.

Article 10: Award

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The award of the arbitral tribunal shall be confined to the


subject-matter of the dispute and state the reasons on
which it is based. It shall contain the names of the members
who have participated and the date of the award. Any
member of the tribunal may attach a separate or dissenting
opinion to the award.


Article 11: Finality of award
The award shall be final and without appeal, unless the
parties to the dispute have agreed in advance to an
appellate procedure. It shall be complied with by the parties
to the dispute.

Article 12: Interpretation or implementation of award
1. Any controversy which may arise between the parties to
the dispute as regards the interpretation or manner of
implementation of the award may be submitted by either
party for decision to the arbitral tribunal which made the
award. For this purpose, any vacancy in the tribunal shall be
filled in the manner provided for in the original
appointments of the members of the tribunal.
2. Any such controversy may be submitted to another court
or tribunal under article 287 by agreement of all the parties
to the dispute.

Article 13: Application to entities other than States Parties
The provisions of this Annex shall apply mutatis mutandis to
any dispute involving entities other than States Parties.
-----------------------------------------------------------------------------
HW for March 21:
Phil response to World Heritage Convention
1. Constitutional provisions (Art 14.: secs. 14-17, 18[1,2],
1987 constitution)
2. Cultural properties preservation and protection act RA
4846
3. Natl Museum Law RA 8492
4. Natl Historical Commission Act RA 4368
5. Indigenous Peoples Rights Act RA 8371 (connected to
CBA)
* Manila Prince Hotel vs GSIS
* Joya et al. vs PCGG et al. GR 96541 August 24 1993
6. Minamata Convention on Mercury - in rel. Peoples
small scale mining in the Phil.
*** FOR FINALS: Relate IPRA with CBD; Distinguish between
National Cultural Treasure and Important Cultural
Properties
-----------------------------------------------------------------------------
A. PHIL. RESPONSE TO WORLD HERITAGE CONVENTION

1. 1987 CONSTI. ART XIV: Arts and Culture

SECTION 14. The State shall foster the preservation,
enrichment, and dynamic evolution of a Filipino national
culture based on the principle of unity in diversity in a
climate of free artistic and intellectual expression.

SECTION 15. Arts and letters shall enjoy the patronage of
the State. The State shall conserve, promote, and popularize

the nations historical and cultural heritage and resources,


as well as artistic creations.

SECTION 16. All the countrys artistic and historic wealth
constitutes the cultural treasure of the nation and shall be
under the protection of the State which may regulate its
disposition.

SECTION 17. The State shall recognize, respect, and protect
the rights of indigenous cultural communities to preserve
and develop their cultures, traditions, and institutions. It
shall consider these rights in the formulation of national
plans and policies.

SECTION 18. (1) The State shall ensure equal access to
cultural opportunities through the educational system,
public or private cultural entities, scholarships, grants and
other incentives, and community cultural centers, and other
public venues.
(2) The State shall encourage and support researches and
studies on the arts and culture.

2. RA 4846 Cultural Properties Preservation and
Protection Act. (AS AMENDED BY P.D. 374)

Cultural properties are old buildings, monuments,
shrines, documents, and objects which may be classified as
antiques, relics, or artifacts, landmarks, anthropological and
historical sites, and specimens of natural history which are
of cultural, historical, anthropological or scientific value and
significance to the nation; such as physical, and
anthropological, archaeological and ethnographical
materials, meteorites and tektites; historical objects and
manuscripts; house and agricultural implements; decorative
articles or personal adornment; works of art such as
paintings, sculptures, carvings, jewelry, music, architecture,
sketches drawings or illustrations in part or in whole;
works of industrial and commercial art such as furniture,
pottery, ceramics, wrought iron, gold, bronze, silver, wood
or other heraldic items, metals, coins, medals, badges,
insignias, coat of arms, crests, flags, arms, and armor;
vehicles or ships or boats in part or in whole.

Cultural properties which have been singled out from
among the innumerable cultural properties as having
exceptional historical and cultural significance to the
Philippines, but are not sufficiently outstanding to merit the
classification of "National Cultural Treasurers." are
important cultural properties.

A National Cultural Treasurer is a unique object found
locally, possessing outstanding historical, cultural, artistic
and/or scientific value which is highly significant and
important to this country and nation.

Type as mentioned in Section seven-b in the context of
this Act is a specimen selected as the best to represent a
kind or class of objects consisting of any but almost identical
individuals or pieces. In the case of specimens of natural
history, the type is the individual specimen which was used

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as the basis of description establishing the species, in


accordance with the rules of nomenclature.

A historical site is any place, province, city, town and/or
any location and structure which has played a significant
and important role in the history of our country and nation.
Such significance and importance may be cultural, political,
sociological or historical.

An archaeological site is any place which may be
underground or on the surface, underwater or at sea level
which contains fossils, artifacts and other cultural,
geological, botanical, zoological materials which depict and
document evidences of paleontological and pre-historic
events.

Sec. 7. In designation of a particular cultural property as a
"national cultural treasure," the following procedure shall
be observed:

a. Before the actual designation, the owner, if the property
is privately owned, shall be notified at least fifteen days
prior to the intended designation, and he shall be invited to
attend the deliberation and given a chance to be heard.
Failure on the part of the owner to attend the deliberation
shall not bar the panel to render its decision. Decision shall
be given by the panel within a week after its deliberation. In
the event that the owner desires to seek reconsideration of
the designation made by the panel, he may do so within
days from the date that the decision has been rendered. If
no request for reconsideration is filed after this period, the
designation is then considered final and executory. Any
request for reconsideration filed within thirty days and
subsequently again denied by the panel, may be further
appealed to another panel chairmanned by the Secretary of
Education, with two experts as members appointed by the
Secretary of Education. Their decision shall be final and
binding.

b. Within each kind or class of objects, only the rare and
unique objects may be designated as "National Cultural
Treasures." The remainder, if any, shall be treated as
cultural property.

c. Designated "National Cultural Treasures" shall be
marked, described, and photographed by the National
Museum. The owner retains possession of the same but the
Museum shall keep a record containing such information as:
name of article, owner, period, source, location, condition,
description, photograph, identifying marks, approximate
value, and other pertinent data.

Sec. 8. National Cultural Treasures shall not change
ownership, except by inheritance or sale approved by the
Director of the National Museum, without the prior
notification to and notations made by the Museum in the
records. They may not be taken out of the country for
reasons of inheritance. Where there is no heir, National
Cultural Treasures shall revert to the National Museum or
to any state museum.


Sec. 9. National Cultural Treasurers may be taken out of
the country only with written permit from the Director of
the National Museum, and only for the purpose of exchange
programs or for scientific scrutiny, but shall be returned
immediately after such exhibition or study: provided, that
the Director of the National Museum shall require that the
cultural treasures be adequately, insured against loss or
damage by the owners thereof, and shall be properly
accompanied by a duly authorized representative of the
National Museum and/or protected.

SECTION 10. It shall be unlawful to export or to cause to
be taken out of the Philippines any of the cultural properties
defined in Section three of this Act, without previous
registration of the objects with the National Museum and a
written permit from the Director of the National Museum:
provided, however, that in the granting or the withholding
of permit, the provisions of Section seven of this Act shall
have been satisfied.

SECTION 11. No cultural property may be imported
without an official certification of exportation from the
country of origin.

SECTION 12. It shall be unlawful to explore, excavate, or
make diggings on archaeological or historical sites for the
purpose of obtaining materials of cultural historical value
without the prior written authority from the Director of the
National Museum. No excavation or diggings shall be
permitted without the supervision of an archaeologist
certified as such by the Director of the National Museum, or
of such other person who, in the opinion of the Director, is
competent to supervise the work, and who shall, upon
completion of the project, deposit with the Museum a
catalogue of all the materials found thereon, and a
description of the archaeological context in accordance with
accepted archaeological practices. When excavators shall
strike upon any buried cultural property, the excavation
shall be suspended and the matter reported immediately to
the Director of the National Museum who shall take the
appropriate steps to have the discovery investigated and to
insure the proper and safe removal thereof, with the
knowledge and consent of the owner. The suspension shall
not be lifted until the Director of the National Museum shall
so allow it.

All exploration, excavation, or diggings on government and
private property for archaeological or historical purposes
shall be undertaken only by the National Museum, or any
institution duly authorized by the Director of the National
Museum.

SECTION 13. All restorations, reconstructions, and
preservations of government historical buildings, shrines,
landmarks, monuments, and sites, which have been
designated as "National Cultural Treasures," and "important
cultural properties" shall only be undertaken with the
written permission of the Director of the National Museum
who shall designate the supervision of the same.

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SECTION 14. Any donation or support by private
individuals or institutions to the National Museum, and any
investment for the purchase of cultural properties
registered with the National Museum or for the support of
scientific and cultural expeditions, explorations, or
excavations when so certified by the Director of the
National Museum, shall be tax exempt and deductible from
the income tax returns of the individual or institution.

Donations of National Cultural Treasures and important
cultural properties to the National Museum or any
accredited institution for preservation for posterity, or of
any monetary contribution to the National Museum or any
accredited institution for the purchase of National Cultural
Treasures and important cultural properties shall also be
deductible from the income tax returns: provided, that such
donations are duly acknowledge and receipted by the
recipient and certified by the Director of the National
Museum.

SECTION 15. Any cultural property for sale as allowed
under this Act, should be registered with the National
Museum and the proceeds thereof shall be considered as
income and therefore subject to taxation: provided,
however, that the Government shall be given the first option
for three months to buy these cultural properties placed on
sale.

SECTION 16. All dealers of cultural properties shall secure
a license as a dealer in cultural properties from the Director
of the National Museum.

SECTION 17. All dealers engaged in the business of
exporting cultural properties shall secure a license as
exporter of cultural properties from the Director of the
National Museum.

SECTION 18. The Director of the National Museum is
hereby empowered to promulgate rules and regulations for
the implementation of the provisions of this Act, which rules
and regulations shall be given the widest publicity and also
shall be given directly to known collectors, excavators,
archaeologists, dealers, exporters and others affected by
this Act. Such rules and regulations shall be approved by the
Secretary of education.



3. Natl Museum Law RA 8492

The National Museum is mandated to declare cultural
properties of the Philippines as either Important Cultural
Properties or National Cultural Treasures, pursuant to
several laws, including Republic Act No. 4846 (Cultural
Properties Preservation and Protection Act) as amended by
Presidential Decree No. 374, Presidential Decree No. 260,
Republic Act No.8492 (National Museum Act of 1998) and
most recently, Republic Act No. 10066 (National Cultural
Heritage Act of 2009).


Section 2. Declaration of Policy. It is the policy of the State
to pursue and support the cultural development of the
Filipino people, through the preservation, enrichment and
dynamic evolution of the Filipino national culture, based on
the principle of unity in diversity in a climate of free artistic
and intellectual expression.

Section 3. Conversion of the National Museum. To
implement the above declared State policies, and to ensure
its independence and autonomy, the present National
Museum hereafter referred to as the National Museum, is
hereby converted into a trust of the government. The
National Museum is detached from the Department of
Education, Culture, and Sports and from the National
Commission for Culture and the Arts. It shall be placed
solely for budgetary purposes under the Office of the
President.

The Museum, as established under this Act shall be known
by the name of National Museum and by the name shall
known and have perpetual succession with the power,
limitations, and restriction hereafter contained and no
other.

The National Museum shall be permanent institution in the
service of the community and its development, accessible to
the public, and not intended for profit. It shall obtain, keep,
study and present material evidence of man and his
environment. The National Museum shall inform the general
public about these activities for the purpose of study,
education and entertainment.

The primary mission of the National Museum shall be to
acquire documents, preserve, exhibit and foster scholarly
study and appreciation of works of art specimens and
cultural and historical artifacts. Pending its reorganization
by the Board of Trustees, the National Museum shall be
composed of the Museum structure, organization and its
collections, properties, assets and liabilities.

Section 4. Permanent Home; Evidence of Title to Site and
Buildings. The whole Executive House Building also
known as the Old Congress Building, the Department of
Finance Building and Department of Tourism Building on
Agrifina Circle shall be the permanent and exclusive site of
the National Museum. They shall be known as the National
Museum Complex. The Executive House shall now be known
as the National Museum.

The site and lands selected for the building for the Museum
shall be deemed appropriated to the Museum, and the
record of the description of such site and lands, or a copy
thereof, certified by the Chairman and Secretary of the
Board of Trustees, shall be received as evidence in all courts
of the extent and boundaries of the lands appropriated to
the Museum.
Section 2. Declaration of Policy. It is the policy of the State
to pursue and support the cultural development of the
Filipino people, through the preservation, enrichment and

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dynamic evolution of the Filipino national culture, based on


the principle of unity in diversity in a climate of free artistic
and intellectual expression.

Section 6. Objectives. The Museum shall have the
following objectives:

6.1. As an educational institution, the National Museum
shall take the lead in disseminating knowledge of Filipino
cultural and historical heritage and developing a corps of
professional knowledgeable about the preservation,
enrichment and dynamic evaluation of the Filipino national
culture.

6.2. As a scientific institution, the Museum shall continue to
conduct basic and systematic research programs combining
integrated laboratory and field work in anthropology and
archaeology, geology and paleontology, botany, and zoology.
It shall maintain reference collections on these disciplines
and promote scientific development in the Philippines.

6.3. As a cultural center, the Museum shall take the lead in
the study and preservation of the nation's rich artistic, and
cultural heritage, in the reconstruction and rebuilding of our
past, and the development of the national cultural wealth.

Section 7. Duties and function. The Museum shall have the
following duties and functions:

7.1. Acquire documents, collect, preserve, maintain,
administer and exhibit to the public, cultural materials,
objects of art, archaeological artifacts, ecofacts, relics and
other materials embodying the cultural and natural heritage
of the Filipino nation, as well as those of foreign origin.
Materials relevant to the recent history of the country shall
be likewise acquired, collected, preserved, maintained,
advertised and exhibited by the Museum;

7.2. Conduct researches, archaeological and scientific, on
Philippine flora and fauna; collect, preserve, identify and
exhibit to the public systematically all types of plants and
animals found in the Philippines, prepare for publication
manuscripts and scientific papers on them and maintain a
reference collection on such subjects;

7.3. Document all objects held by the National Museum in its
collections or borrowed by the Museum by registering them
in an inventory and cataloguing them, and manage any
movement of the collections both within the Museum and
elsewhere in such a way that the Museum is able to locate
any object in the collections at any time, initially on paper
records, but to be converted to computerized records on a
professional museum documentation system as soon as
time and budget allow.

7.4. Conduct researches on the origin, history and
geographic distribution of, and to collect, preserve, study
and exhibit rocks, minerals and fossils of plants and
animals; maintain a reference collection and to prepare for
publication scientific studies on them;


7.5. Regulate registration, excavation, preservation and
exportation of Philippine cultural properties through a legal
department and customs department which shall be
established for these purposes;

7.6. Implement the pertinent provisions of Presidential
Decree No. 374, as further amended, and other related laws
on the protection and conservation of cultural properties;

7.7. Undertake research on salvage archaeology, monitor
and control archaeological excavations, diggings and
researches into Philippine pre-history and proto-history;

7.8. Gather, identify, reconstruct, restore and maintain a
national archaeological reference collection; study
archaeological artifacts and ecofacts, with their
corresponding data and deduce archaeological
interpretations;

7.9. Undertake researches on the pre-history of the
Philippines in order to define the foundations of the
cultures of the people by conducting systematic and
controlled archaeological excavations in different sites on
land and underwater, and to supplement existing historical
documentation;

7.10. Collect, preserve, restore and exhibit to the public
objects of arts;

7.11. Conduct researches on Philippine arts and its relations
to the arts of other countries and prepare for publication
research papers on them;

7.12. Carry out researches among different people of the
Philippines to define the ethnography of each group, to
establish the ethnology and to document for posterity and
exhibit to the public their traditional and existing cultures,
practices and artistic forms expressive of their culture;

7.13. Collect, acquire, identify, reconstruct, restore, preserve
and maintain ethnographic items; gather their
interpretations; mount exhibitions and prepare technical
manuscripts for publication;

7.14. Maintain a chemical and physical laboratory where
scientific analysis of materials recovered from
archaeological and ethnographic sites may be undertaken
for their preservation;

7.15. Plan, organize and stage exhibitions in all disciplines
covered by the Museum geology, cultural properties,
zoology, botany, archaeology, arts, anthropology,
restoration and engineering;

7.16. Plan and organize library services, guided tours,
lectures, seminars, symposia or workshops;

7.17. Implement and enforce Presidential Decree Nos. 260,
374, 756, 1109, 1492, 996, 1683 and 1726-A;

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7.18. Supervise restoration, preservation, reconstruction,
demolition, alteration, relocation and remodeling of
immovable properties and archaeological landmarks and
sites;

7.19. Disseminate astronomical knowledge and information
through planetarium shows, lectures and demonstrations,
exhibits and actual celestial observations;

7.20. Maintain, preserve, interpret and exhibit to the public
the artifacts in sites of the Paleolithic habitation site of the
possible earliest man to the Philippines, the Neolithic
habitation of the ancient Filipino at the Tabon Caves, and
other important archaeological sites;

7.21. Secure and receive bilateral and international grants
and endowments to support its programs/projects.

7.22. Initiate, promote, encourage and support the
establishment and promotion of, and extend management,
technical and financial assistance to regional, provincial, city
and/or local museums; and

7.23. Develop and implement consortium agreements and
linkages with institutions of higher learning and other
organizations engaged in similar researches being
undertaken by the National Museum.

4. Natl Historical Commission Act RA 4368

AN ACT TO ESTABLISH A NATIONAL HISTORICAL
COMMISSION, TO DEFINE ITS POWERS AND FUNCTIONS,
AUTHORIZING THE APPROPRIATION OF FUNDS
THEREFOR, AND FOR OTHER PURPOSES

Section 1. There is hereby created a National Historical
Commission which shall be composed of a Chairman and
four regular members and two ex-officio members, namely,
the Director of Public Libraries and the Director of the
National Museum: provided, that the ex-officio members
shall not receive any compensation and shall not have the
right to vote.

Section 2. The Chairman and four members shall be
appointed by the President of the Philippines with the
consent of the Commission on Appointments. No one shall
be appointed to any of these positions unless he be a citizen
of the Philippines, at least thirty years old, at least a holder
of a four-year college degree, and has distinguished himself
in historical research and writing. The Chairman shall
receive a compensation of twelve thousand pesos per
annum, and the four members shall each receive eight
thousand four hundred pesos per annum.

Section 3. The National Historical Commission shall be
under the direct control and supervision of the Department
of Education. The Chairman and the four members shall
hold office during good behavior until they reach retirement

age or until they shall have been incapacitated to discharge


their duties effectively.

Section 4. It shall be the duty of the National Historical
Commission:
(a) To publish or cause to have written or published the
works of our national heroes and other great and good
Filipinos;
(b) To compile from various sources here and abroad data
on Philippine history and prepare and publish there from
source books on Philippine history;
(c) For the purpose stated in subparagraph (a) and (b), to
enter into negotiations or agreements, subject to the
approval of the Secretary of Education, with institutions of
learning, learned societies and individuals for the purpose
of securing original documents of copies, photostat and
microfilms thereof, dealing with the Philippines: provided,
that any acquisition involved in excess of fifty thousand
pesos shall be with the approval of the President of the
Philippines;
(d) To gather and publish source books, reports, records
and other valuable information relating to historic places,
markets and events;
(e) To identify, designate and appropriately mark historic
places in the Philippines and to cause the construction or
reconstruction and to maintain and care for national
monuments, shrines and historic markets that have been or
may hereafter be erected in pursuance of this Act: provided,
however, that the Commission shall enlist the assistance of
the public;
(f) To take charge of all historical activities or projects, not
otherwise undertaken by any entity of the government;
(g) To gather data on historical dates, personages, events,
and documents presented for evaluation, and to acquire
through purchase, donation, exchange or otherwise,
important historical documents and materials;
(h) To encourage researches in Philippine history and the
writing and publication of textbooks on the subject, the
research and writing of biographies of heroes, accounts of
historical events, translation of important scholarly works
of Filipino and foreigners by providing appropriate or
adequate incentives, setting aside, for this purpose, such
portions of its appropriation as the Commission may deem
necessary; and
(i) To work in coordination with the Institute of National
Language for the translation of its works and materials to
the National Language.

5. Indigenous Peoples Rights Act RA 8371
(connected to Convention on Biodiversity Act)
ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS
OF INDIGENOUS CULTURAL COMMUNITIES/INDIGENOUS
PEOPLES, CREATING A NATIONAL COMMISSION ON
INDIGENOUS PEOPLES, ESTABLISHING IMPLEMENTING
MECHANISMS, APPROPRIATING FUNDS THEREFOR, AND
FOR OTHER PURPOSES

SECTION 2. Declaration of State Policies. The State shall
recognize and promote all the rights of Indigenous Cultural

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Communities/Indigenous Peoples (ICCs/IPs) hereunder


enumerated within the framework of the Constitution:

a) The State shall recognize and promote the rights of
ICCs/IPs within the framework of national unity and
development;

b) The State shall protect the rights of ICCs/IPs to their
ancestral domains to ensure their economic, social and
cultural well being and shall recognize the applicability of
customary laws governing property rights or relations in
determining the ownership and extent of ancestral domain;

c) The State shall recognize, respect and protect the rights
of ICCs/IPs to preserve and develop their cultures,
traditions and institutions. It shall consider these rights in
the formulation of national laws and policies;

d) The State shall guarantee that members of the ICCs/IPs
regardless of sex, shall equally enjoy the full measure of
human rights and freedoms without distinction or
discrimination;

e) The State shall take measures, with the participation of
the ICCs/IPs concerned, to protect their rights and
guarantee respect for their cultural integrity, and to ensure
that members of the ICCs/IPs benefit on an equal footing
from the rights and opportunities which national laws and
regulations grant to other members of the population; and

f) The State recognizes its obligations to respond to the
strong expression of the ICCs/IPs for cultural integrity by
assuring maximum ICC/IP participation in the direction of
education, health, as well as other services of ICCs/IPs, in
order to render such services more responsive to the needs
and desires of these communities.

Towards these ends, the State shall institute and establish
the necessary mechanisms to enforce and guarantee the
realization of these rights, taking into consideration their
customs, traditions, values, beliefs, interests and
institutions, and to adopt and implement measures to
protect their rights to their ancestral domains.

Section 3. Definition of Terms. - For purposes of this Act, the
following terms shall mean:

a) Ancestral Domains - Subject to Section 56 hereof, refer to
all areas generally belonging to ICCs/IPs comprising
lands,inland waters, coastal areas, and natural resources
therein, held under a claim of ownership, occupied or
possessed by ICCs/IPs, themselves or through their
ancestors, communally or individually since time
immemorial, continuously to the present except when
interrupted by war, force majeure or displacement by force,
deceit, stealth or as a consequence of government projects
or any other voluntary dealings entered into by government
and private individuals, corporations, and which are
necessary to ensure their economic, social and cultural
welfare. It shall include ancestral land, forests, pasture,

residential, agricultural, and other lands individually owned


whether alienable and disposable or otherwise, hunting
grounds, burial grounds, worship areas, bodies of water,
mineral and other natural resources, and lands which may
no longer be exclusively occupied by ICCs/IPs but from
which their traditionally had access to for their subsistence
and traditional activities, particularly the home ranges of
ICCs/IPs who are still nomadic and/or shifting cultivators;

b) Ancestral Lands - Subject to Section 56 hereof, refers to
land occupied, possessed and utilized by individuals,
families and clans who are members of the ICCs/IPs since
time immemorial, by themselves or through their
predecessors-in-interest, under claims of individual or
traditional group ownership,continuously, to the present
except when interrupted by war, force majeure or
displacement by force, deceit, stealth, or as a consequence
of government projects and other voluntary dealings
entered into by government and private
individuals/corporations, including, but not limited to,
residential lots, rice terraces or paddies, private forests,
swidden farms and tree lots;

h) Indigenous Cultural Communities/Indigenous Peoples refer to a group of people or homogenous societies
identified by self-ascription and ascription by other, who
have continuously lived as organized community on
communally bounded and defined territory, and who have,
under claims of ownership since time immemorial,
occupied, possessed customs, tradition and other distinctive
cultural traits, or who have, through resistance to political,
social and cultural inroads of colonization, non-indigenous
religions and culture, became historically differentiated
from the majority of Filipinos. ICCs/IPs shall likewise
include peoples who are regarded as indigenous on account
of their descent from the populations which inhabited the
country, at the time of conquest or colonization, or at the
time of inroads of non-indigenous religions and cultures, or
the establishment of present state boundaries, who retain
some or all of their own social, economic, cultural and
political institutions, but who may have been displaced from
their traditional domains or who may have resettled outside
their ancestral domains;

k) National Commission on Indigenous Peoples (NCIP) refers to the office created under this Act, which shall be
under the Office of the President, and which shall be the
primary government agency responsible for the formulation
and implementation of policies, plans and programs to
recognize, protect and promote the rights of ICCs/IPs;

l) Native Title - refers to pre-conquest rights to lands and
domains which, as far back as memory reaches, have been
held under a claim of private ownership by ICCs/IPs, have
never been public lands and are thus indisputably
presumed to have been held that way since before the
Spanish Conquest;

o) Sustainable Traditional Resource Rights - refer to the
rights of ICCs/IPs to sustainably use,manage, protect and

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conserve a) land, air, water, and minerals; b) plants, animals


and other organisms; c) collecting, fishing and hunting
grounds; d) sacred sites; and e) other areas of economic,
ceremonial and aesthetic value in accordance with their
indigenous knowledge, beliefs, systems and practices; and

p) Time Immemorial - refers to a period of time when as far
back as memory can go, certain ICCs/IPs are known to have
occupied, possessed in the concept of owner, and utilized a
defined territory devolved to them, by operation of
customary law or inherited from their ancestors, in
accordance with their customs and traditions.

CHAPTER III RIGHTS TO ANCESTRAL DOMAINS

Section 4. Concept of Ancestral Lands/Domains. -
Ancestral lands/domains shall include such concepts of
territories which cover not only the physical environment
but the total environment including the spiritual and
cultural bonds to the area which the ICCs/IPs possess,
occupy and use and to which they have claims of ownership.

Section 5. Indigenous Concept of Ownership. - Indigenous
concept of ownership sustains the view that ancestral
domains and all resources found therein shall serve as the
material bases of their cultural integrity. The indigenous
concept of ownership generally holds that ancestral
domains are the ICC's/IP's private but community property
which belongs to all generations and therefore cannot be
sold, disposed or destroyed. It likewise covers sustainable
traditional resource rights.

Section 6. Composition of Ancestral Lands/Domains. -
Ancestral lands and domains shall consist of all areas
generally belonging to ICCs/IPs as referred under Sec. 3,
items (a) and (b) of this Act.

Section 7. Rights to Ancestral Domains. - The rights of
ownership and possession of ICCs/IPs t their ancestral
domains shall be recognized and protected. Such rights shall
include:
a. Rights of Ownership.- The right to claim ownership over
lands, bodies of water traditionally and actually occupied by
ICCs/IPs, sacred places, traditional hunting and fishing
grounds, and all improvements made by them at any time
within the domains;
b. Right to Develop Lands and Natural Resources. - Subject to
Section 56 hereof, right to develop, control and use lands
and territories traditionally occupied, owned, or used; to
manage and conserve natural resources within the
territories and uphold the responsibilities for future
generations; to benefit and share the profits from allocation
and utilization of the natural resources found therein; the
right to negotiate the terms and conditions for the
exploration of natural resources in the areas for the purpose
of ensuring ecological, environmental protection and the
conservation measures, pursuant to national and customary
laws; the right to an informed and intelligent participation
in the formulation and implementation of any project,
government or private, that will affect or impact upon the

ancestral domains and to receive just and fair compensation


for any damages which they sustain as a result of the
project; and the right to effective measures by the
government to prevent any interfere with, alienation and
encroachment upon these rights;
c. Right to Stay in the Territories- The right to stay in the
territory and not be removed therefrom. No ICCs/IPs will be
relocated without their free and prior informed consent, nor
through any means other than eminent domain. Where
relocation is considered necessary as an exceptional
measure, such relocation shall take place only with the free
and prior informed consent of the ICCs/IPs concerned and
whenever possible, they shall be guaranteed the right to
return to their ancestral domains, as soon as the grounds
for relocation cease to exist. When such return is not
possible, as determined by agreement or through
appropriate procedures, ICCs/IPs shall be provided in all
possible cases with lands of quality and legal status at least
equal to that of the land previously occupied by them,
suitable to provide for their present needs and future
development. Persons thus relocated shall likewise be fully
compensated for any resulting loss or injury;
d. Right in Case of Displacement. - In case displacement
occurs as a result of natural catastrophes, the State shall
endeavor to resettle the displaced ICCs/IPs in suitable areas
where they can have temporary life support system:
Provided, That the displaced ICCs/IPs shall have the right to
return to their abandoned lands until such time that the
normalcy and safety of such lands shall be determined:
Provided, further, That should their ancestral domain cease
to exist and normalcy and safety of the previous settlements
are not possible, displaced ICCs/IPs shall enjoy security of
tenure over lands to which they have been resettled:
Provided, furthermore, That basic services and livelihood
shall be provided to them to ensure that their needs are
adequately addressed:
e. Right to Regulate Entry of Migrants. - Right to regulate the
entry of migrant settlers and organizations into the
domains;
f. Right to Safe and Clean Air and Water. - For this purpose,
the ICCs/IPs shall have access to integrated systems for the
management of their inland waters and air space;
g. Right to Claim Parts of Reservations. - The right to claim
parts of the ancestral domains which have been reserved
for various purposes, except those reserved and intended
for common and public welfare and service; and
h. Right to Resolve Conflict. - Right to resolve land conflicts in
accordance with customary laws of the area where the land
is located, and only in default thereof shall the complaints
be submitted to amicable settlement and to the Courts of
Justice whenever necessary.

Section 8. Rights to Ancestral Lands. - The right of
ownership and possession of the ICCs/IPs, to their ancestral
lands shall be recognized and protected.
a. Right to transfer land/property. - Such right shall include
the right to transfer land or property rights to/among
members of the same ICCs/IPs, subject to customary laws
and traditions of the community concerned.

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b. Right to Redemption. - In cases where it is shown that the


transfer of land/property rights by virtue of any agreement
or devise, to a non-member of the concerned ICCs/IPs is
tainted by the vitiated consent of the ICCs/IPs,or is
transferred for an unconscionable consideration or price,
the transferor ICC/IP shall have the right to redeem the
same within a period not exceeding fifteen (15) years from
the date of transfer.

Section 9. Responsibilities of ICCs/IPs to their Ancestral
Domains. - ICCs/IPs occupying a duly certified ancestral
domain shall have the following responsibilities:
a. Maintain Ecological Balance- To preserve, restore, and
maintain a balanced ecology in the ancestral domain by
protecting the flora and fauna, watershed areas, and other
reserves;
b. Restore Denuded Areas- To actively initiate, undertake
and participate in the reforestation of denuded areas and
other development programs and projects subject to just
and reasonable remuneration; and
c. Observe Laws- To observe and comply with the
provisions of this Act and the rules and regulations for its
effective implementation.

National Commission on Indigenous Peoples
[AO No. 1, s. 1998]
RULES AND REGULATIONS IMPLEMENTING THE
INDIGENOUS PEOPLES RIGHTS ACT OF 1997

Section 4. Operating Principles. In implementing the policies
enumerated in these Rules, the following operating
principles shall be adhered to:
a) Cultural Diversity. As the beginning of unity is difference,
the diversity of cultures, traditions, beliefs and aspirations
of indigenous peoples shall be encouraged and fostered in
openness, mutual respect for, and active defense of the
equal and inalienable dignity and universal, indivisible,
interdependent and interrelated rights of every human
being, in the spirit of inter-people cooperation;
b) Consensus and Peace-Building. In resolving conflicts or
disputes affecting or pertaining to indigenous peoples, any
determination or decision thereon shall be reached through
dialogue and consensus as far as practicable;
c) Cultural Integrity. Within ancestral domains/lands, the
holistic and integrated adherence of indigenous peoples to
their respective customs, beliefs, traditions, indigenous
knowledge systems and practices, and the assertion of their
character and identity as peoples shall remain inviolable;
d) Human Dignity. The inherent and inalienable distinct
character, sacred human dignity, and unique identity of
indigenous peoples as peoples shall be respected;
e) Subsidiarity, Solidarity and Total Human Development. In
the pursuit of civil, political, economic, social and cultural
development, the human person shall be the central subject
thereof and its active participant and beneficiary. Everyone
has duties to the community. In the exercise of rights and
freedoms, everyone shall be subject only to such limitations
as are determined by custom or law, solely for the purpose
of securing due recognition and respect for the rights and
freedoms of others and of meeting the just requirements of

morality, public order and the general welfare in a


democratic society; and f) Transparency and Capacity
Building. The Commission shall perform its tasks on the
basis of transparency and active support and participation
by the ICCs/IPs, and shall take a proactive strategy in
empowering ICCs/IPs and in the fulfillment of its mandate

CASES:

a. Manila Prince Hotel vs GSIS

Facts:
The Respondent Government Service Insurance System
(GSIS) in pursuant to the privatization program of the
Philippine Government under Proclamation No. 50 dated 8
December 1986, decided to sell through public bidding 30%
to 51% of the issued. In a close bidding held on 18
September 1995 only two (2) bidders participated:
petitioner Manila Prince Hotel Corporation, a Filipino
corporation, which offered to buy 51% of the MHC or
15,300,000 shares at P41.58 per share, and Renong Berhad,
a Malaysian firm, with ITT-Sheraton as its hotel operator,
which bid for the same number of shares at P44.00 per
share, or P2.42 more than the bid of petitioner.
Pending the declaration of Renong Berhad as the winning
bidder/strategic partner of MHC, petitioner matched the
formers bid prize also with Php 44.00 per share followed
by a managers check worth Php 33 million as Bid Security,
but the GSIS refused to accept both the bid match and the
managers check.
The petitioner invokes Sec. 10, second par., Art. XII, of the
1987 Constitution Filipino first policy and submits that
the Manila Hotel has been identified with the Filipino nation
and has practically become a historical monument which
reflects the vibrancy of Philippine heritage and culture. To
all intents and purposes, it has become a part of the national
patrimony. Petitioner also argues that since 51% of the
shares of the MHC carries with it the ownership of the
business of the hotel which is owned by respondent GSIS, a
government-owned and controlled corporation, the hotel
business of respondent GSIS being a part of the tourism
industry is unquestionably a part of the national economy.

Pertinent Issue: w/n Manila Hotel is part of National
Patrimony

In its plain and ordinary meaning, the term patrimony
pertains to heritage. When the Constitution speaks of
national patrimony, it refers not only to the natural
resources of the Philippines, as the Constitution could have
very well used the term natural resources, but also to the
cultural heritage of the Filipinos. It also refers to Filipinos
intelligence in arts, sciences and letters. In the present case,
Manila Hotel has become a landmark, a living testimonial of
Philippine heritage. While it was restrictively an American
hotel when it first opened in 1912, a concourse for the elite,
it has since then become the venue of various significant
events which have shaped Philippine history. In the
granting of economic rights, privileges, and concessions,
especially on matters involving national patrimony, when a

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AKD&ITG NOTES | 2ND SEM SY 15-16 P. 79

choice has to be made between a qualified foreigner and a


qualified Filipino, the latter shall be chosen over the
former.

The Supreme Court directed the GSIS, the Manila Hotel
Corporation, the Committee on Privatization and the Office
of the Government Corporate Counsel to cease and desist
from selling 51% of the Share of the MHC to Renong Berhad,
and to accept the matching bid of Manila Prince Hotel at P44
per share and thereafter execute the necessary agreements
and document to effect the sale, to issue the necessary
clearances and to do such other acts and deeds as may be
necessary for the purpose.

b. Joya et al. vs PCGG et al. GR 96541 August 24 1993

Facts: The PCGG Chairman Mateo Caparas wrote on 09
August 1990 to President Corazon Aquino regarding the
scheduled sale between the Republic of the Philippines and
Christies of 82 Old Masers Painting housed in Metropolitan
Museum of Manila and 7 boxes of antique silverware in the
custody of Central Bank. This was approved on 14 August
1990 and the consignment was signed the following day. On
26 October 1990 the Commission on Audit submitted audit
findings to the President the assets subject of auction
were historical relics and had cultural significance and
thereby prohibited by law. As Filipino citizens, taxpayers
and artists, petitioners Dean Jose Joya et al contended that
they have legal personality to restrain respondent from
acting contrary to preserving artistic creations pursuant to
Sec 14-18 Article XIV of the Constitution.

1. w./n petitioners have legal standing
2. whether the Old Masters Paintings and antique
silverware are embraced in the phrase "cultural treasure of
the nation" which is under the protection of the state
pursuant to the 1987 Constitution and/or "cultural
properties" contemplated under R.A. 4846, otherwise
known as "The Cultural Properties Preservation and
Protection Act;"
2. whether the paintings and silverware are properties of
public dominion on which can be disposed of through the
joint concurrence of the President and Congress;

Before proceeding, we wish to emphasize that we admire
and commend petitioners' zealous concern to keep and
preserve within the country great works of art by wellknown old masters. Indeed, the value of art cannot be
gainsaid. For, by serving as a creative medium through
which man can express his innermost thoughts and
unbridled emotions while, at the same time, reflecting his
deep-seated ideals, art has become a true expression of
beauty, joy, and life itself. Such artistic creations give us
insights into the artists' cultural heritage the historic past
of the nation and the era to which they belong in their
triumphant, glorious, as well as troubled and turbulent
years. It must be for this reason that the framers of the 1987
Constitution mandated in Art. XIV, Sec. 14, that is the
solemn duty of the state to "foster the preservation,
enrichment, and dynamic evolution of a Filipino national

culture based on the principle of unity in diversity in a


climate of free artistic and intellectual expression." And, in
urging this Court to grant their petition, petitioners invoke
this policy of the state on the protection of the arts.
Petitioners claim that as Filipino citizens, taxpayers and
artists deeply concerned with the preservation and
protection of the country's artistic wealth, they have the
legal personality to restrain respondents Executive
Secretary and PCGG from acting contrary to their public
duty to conserve the artistic creations as mandated by the
1987 Constitution, particularly Art. XIV, Secs. 14 to 18, on
Arts and Culture, and R.A. 4846 known as "The Cultural
Properties Preservation and Protection Act," governing the
preservation and disposition of national and important
cultural properties. Petitioners also anchor their case on the
premise that the paintings and silverware are public
properties collectively owned by them and by the people in
general to view and enjoy as great works of art. They allege
that with the unauthorized act of PCGG in selling the art
pieces, petitioners have been deprived of their right to
public property without due process of law in violation of
the Constitution.

Petitioners' arguments are devoid of merit. They lack basis
in fact and in law. They themselves allege that the paintings
were donated by private persons from different parts of the
world to the Metropolitan Museum of Manila Foundation,
which is a non-profit and non-stock corporations
established to promote non-Philippine arts. The
foundation's chairman was former First Lady Imelda R.
Marcos, while its president was Bienvenido R. Tantoco. On
this basis, the ownership of these paintings legally belongs
to the foundation or corporation or the members thereof,
although the public has been given the opportunity to view
and appreciate these paintings when they were placed on
exhibit.

2. . Clearly, the cultural properties of the nation which shall
be under the protection of the state are classified as the
"important cultural properties" and the "national cultural
treasures." "Important cultural properties" are cultural
properties which have been singled out from among the
innumerable cultural properties as having exceptional
historical cultural significance to the Philippines but are not
sufficiently outstanding to merit the classification of
national cultural treasures. On the other hand, a "national
cultural treasures" is a unique object found locally,
possessing outstanding historical, cultural, artistic and/or
scientific value which is highly significant and important to
this country and nation. This Court takes note of the
certification issued by the Director of the Museum that the
Italian paintings and silverware subject of this petition do
not constitute protected cultural properties and are not
among those listed in the Cultural Properties Register of the
National Museum.

We agree with the certification of the Director of the
Museum. Under the law, it is the Director of the Museum
who is authorized to undertake the inventory, registration,
designation or classification, with the aid of competent

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 80

experts, of important cultural properties and national


cultural treasures. 21 Findings of administrative officials and
agencies who have acquired expertise because their
jurisdiction is confined to specific matters are generally
accorded not only respect but at times even finality if such
findings are supported by substantial evidence and are
controlling on the reviewing authorities because of their
acknowledged expertise in the fields of specialization to
which they are assigned.

In view of the foregoing, this Court finds no compelling
reason to grant the petition. Petitioners have failed to show
that respondents Executive Secretary and PCGG exercised
their functions with grave abuse of discretion or in excess of
their jurisdiction.

6. Minamata Convention on Mercury
- in relation with Peoples small scale mining in the Phil.

The Convention opened for signature at the Diplomatic
Conference in Kumamoto, Japan, on October 10, 2013. The
Convention will enter into force after 50 countries have
joined.

The Convention is named after the Japanese city of
Minamata, which experienced a severe, decades-long
incidence of mercury poisoning after industrial wastewater
from a chemical factory was discharged into Minamata Bay.
The wastewater contained methylmercury, which
bioaccumulated in fish and shellfish in the bay. Local people
who consumed seafood from Minamata Bay became very
sick, and many died or were left severely disabled.
How does mercury threaten our health?

Exposure to mercury threatens our health, with many often
irreversible toxic effects. Developing fetuses and young
children are most at risk. Mercury pollution also harms
wildlife and ecosystems.

Mercury occurs naturally in the earths crust, but human
activities, such as mining and fossil fuel combustion, have
led to widespread global mercury pollution. Mercury
emitted into the air eventually settles into water or onto
land where it can be washed into water. Once deposited,
certain microorganisms can change it into methylmercury, a
highly toxic form that builds up in fish, shellfish and animals
that eat fish. Most human exposure to mercury is from
eating fish and shellfish contaminated with methylmercury,
both in the United States and worldwide.

Almost all people in the world have at least trace amounts of
methylmercury in their tissues, reflecting its pervasive
presence in the environment. Some communities eat
significantly more quantities of fish than the general
population, and thus may be exposed to much greater
mercury contamination than the general population. It is
estimated that more than 75,000 newborns in the United
States each year may have increased risk of learning
disabilities associated with in-utero exposure to
methylmercury.


Why is a global response needed?
Mercury pollution is a global problem that requires global
action because it moves with air and water, transcends
political borders, and can be transported thousands of miles
in the atmosphere.

What will the Minamata Covention require?
The Minamata Convention, once in force, will require party
nations to:
a. Reduce and where feasible eliminate the use and release
of mercury from artisanal and small-scale gold mining.
b. Control mercury air emissions from coal-fired power
plants, coal-fired industrial boilers, certain non-ferrous
metals production operations, waste incineration and
cement production.
c. Phase-out or take measures to reduce mercury use in
certain products such as batteries, switches, lights,
cosmetics, pesticides and measuring devices, and create
initiatives to reduce the use of mercury in dental
amalgam.
d. Phase out or reduce the use of mercury in manufacturing
processes such as chlor-alkali production, vinyl chloride
monomer production, and acetaldehyde production.
e. In addition, the Convention addresses the supply and
trade of mercury; safer storage and disposal, and
strategies to address contaminated sites.
f. The Convention includes provisions for technical
assistance, information exchange, public awareness, and
research and monitoring. It also requires Parties to report
on measures taken to implement certain provisions. The
Convention will be periodically evaluated to assess its
effectiveness at meeting its objective of protecting human
health and the environment from mercury pollution.

Summary of the Minamata Treaty on Mercury on the
basis of conference room papers (CRPs) at the end of
INC 5. [28 January 2013]

Preamble (CRP 53) - Reaffirms the Rio+20 principles
including common but differentiated responsibilities;
Recognizes the health concerns of vulnerable populations
and particular vulnerabilities of indigenous communities;
Discusses the importance of financial, technical,
technological and capacity-building support, particularly for
developing countries and economies in transition;
States that the Convention and other international
agreements are mutually supportive and includes
references to WHO activities related to human health and
mercury.

Convention Objective (Article 1, CRP 15 and 20)
The objective of the Convention is to protect human health
and the environment from anthropogenic emissions and
releases of mercury and mercury compounds.

Mercury supply sources and trade (Article 3, CRP 55)
New mercury mines in a country are prohibited as of the
date the Convention enters into force by that government;

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 81

Existing mines in a country must be phased out within 15


years of the date the Convention enters into force by that
government;
Mercury from mercury mines and chlor-alkali plant
decommissioning cannot be used for small-scale gold
mining once the Convention comes into force;
Mercury from decommissioning chlor-alkali plants
(factories using mercury to make chlorine and caustic soda,
required to be phased out by 2025), cannot be sold or
reused except within the chloralkali sector itself, otherwise
mercury should be directed to final disposal;
The trading of mercury requires the written consent of the
importing country;

Mercury-added products (Article 6, CRP 54)
Parties shall discourage the manufacture and the
distribution in commerce of mercury-added products not
covered by any known use prior to the date of entry into
force of the Convention for it.
Specified mercury-added products are subject to a 2020
phase out date. These products are batteries (except silver
oxide and zinc air button cells), the vast majority of
switches and relays, skin lightening soaps and creams
(>1ppm), pesticides, biocides (but not vaccines), topical
antiseptics, barometers, hygrometers, manometers,
thermometers, and blood pressure cuffs. Exceptions are
provided for calibration and scientific research, and certain
replacement applications;
The use of mercury in dental amalgam, are subject to
requirements in Annex C, Part II, which specifies that
parties shall undertake two or more of the measures listed
to phase down amalgam use;
Manufacturing processes in which mercury or mercury
compounds are used (Article 7, CRP 55)
Mercury is not allowed in a facility that did not exist prior
to the date of entry into force of the Convention;
Parties shall discourage the development of any new
process in which mercury is used that did not exist prior to
the date of entry into force of the Convention;
The mercury cell chlor-alkali plants are subject to a 2025
phase out date. The manufacture of acetaldehyde using
mercury is to be phased out by 2018;
The manufacture of vinyl chloride monomer, polyurethane,
and sodium methylate are subject to phase down
requirements;
Exemptions available to a Party upon request (Article 8,
CRP 55)
The phase out dates for products and the chlor-alkali
sector may be extended if a country requests an exemption.
An initial five year extension will be easy to get; the second
and last possible five year extension is subject to review and
approval by all Parties to the Convention;
Artisanal and small-scale gold mining (Article 9, from INC 4-
para 5 deleted at INC 5)
To address mercury use in small-scale gold mining, if
determined use is more than insignificant, governments
must develop and implement national action plans (NAP) no
later than 3 years after
Convention enters into force and report progress every 3
years thereafter

NAP designed to prohibit the worst practices, undertake


measures to reduce and where feasible eliminate mercury
use over time.
To send the right market signals to miners and reduce
mercury availability, mercury from mercury mines and
chlor-alkali plant decommissioning cannot be used for
small-scale gold mining once the
Convention comes into force;
Emissions (Article 10, CRP 55)
Air emissions from coal-fired power plants and industrial
boilers; lead, zinc, copper, and industrial gold roasting and
smelting processes; cement plants; and waste incinerators
will be covered by the treaty. New (and substantially
modified) sources within these sectors will be subject to
BAT/BEP
(Best Available Techniques/Best Environmental Practices)
latest 5 years after the Convention comes into force, where
feasible, for that government, but existing sources (in
existence one year after the
Convention comes into force for that government) are
subject to a wider range of possible regulatory regimes,
taking into account its national circumstances, and the
economic and technical feasibility, and affordability of the
measures, as soon as practicable that need not be applied
until 10 years after the Convention comes into force for that
government;

Releases (Article 11, CRP 55)
Mercury releases to water and land from relevant sources
not addressed elsewhere in the convention shall be
identified within 3 years of entry into force of the
Convention by that government and are to be controlled
and, where feasible, reduced;
Control measures include a wide range of possible
regulatory regimes;
Environmentally sound interim storage of mercury, other
than waste mercury (Article 12, CRP 35)
Measures need to be taken to ensure that the interim
storage of mercury intended for a use allowed is undertaken
in an environmentally sound manner, taking into account
any existing guidelines; specific requirements for interim
storage may be developed at a later stage by the Conference
of the Parties (COP).

Mercury wastes (Article 13, CRP 35)
Appropriate measures shall be taken so that mercury
waste is managed in an environmentally sound manner on
the basis of specific requirements that will be developed by
the COP.
The Basel Convention applies on the transport of mercury
waste, and non parties to the Basel Convention should take
into account relevant international rules, standards, and
guidelines.

Contaminated sites (Article 14, CRP 55)
Requires parties to endeavor to develop appropriate
strategies that can be developed for identifying and
assessing sites contaminated by mercury, and actions to
reduce relevant risks has to be performed in an
environmentally safe manner;

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 82

Guidance on managing contaminated sites is to be adopted


by the COP at a later stage.

Financial Resources and Mechanism (Art. 15, CRP 52)
A special trust fund will be created within the Global
Environmental Facility to support developing nations as
they undertake activities to implement this Convention, and
an additional source of funds will be made available to
provide general capacity-building and technical assistance
(perhaps ongoing support for focal points in developing
countries working on multiple chemical treaties).Both will
be operated under the guidance of and be accountable to
the Conference of the Parties.

Implementation and compliance committee (Art. 17,
CRP 51)
An implementation and compliance committee will be
established to promote implementation of, and review
compliance with, all provisions of the Convention.
Information exchange (Article 18, CRP 15 and 20)
Requires parties to facilitate exchange of information on
scientific, economic and legal information concerning
mercury and mercury compounds; on viable alternatives to
mercury use in products and processes; and on
epidemiological information on health impacts from
mercury.
Each party shall designate a national focal contact points
for information exchange
Health and safety information shall not be regarded as
confidential
Health (Article 20bis, CRP 35)
Parties are encouraged to promote strategies to identify
and protect populations at risk, implement programs to
prevent occupational exposure and strengthen health
professional capacities for reducing exposure risks to
mercury

National Implementation Plans (Article 21, CRP 50)
Parties, may develop and execute a national
implementation plan (NIP) for meeting the obligations
under the convention, following an initial assessment of the
domestic implications of each obligation for that Party
Parties should consult with national stakeholders in the
development, implementation, review and updating of NIPs

Evaluation (Article 23, CRP 26)
Conference of the Parties shall evaluate the Conventions
effectiveness no later than 6 years after the date of entry
into force

Entry into force (Article 32, CRP 15)
Fifty (50) countries will need to sign the Treaty so that it
enters into force
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
HW for March 28:
1. Renewable Energy Act (RA 9513)
2. RA 6716: Rainwater Collection/Development of
Springs
Cases:
a. Mustang Lumber Corp v. CA

b. Prinsipe v. Fact Finding and Investigation Bureau


[FFIB]
c. Balikas v. FFIB
d. Lipin Opadan v. Rio Tuba Nickel Mining
e. Bangus Fry Fisherfolk v. Lanzanas
f. Tech Development Inc. v. CA
----------------------------------------------------------------------------

1. Renewable Energy Act (RA 9513)
** See previous discussion for full text of RA 9513
ARTICLE: Amicus Curiae: The law on renewable energy
Richmund C. Sta. Lucia | August 26, 2015

Renewable energy offers an alternative to traditional fossil
fuels (e.g., coal, natural gas, and petroleum). The trend is to
shift to renewable energy, also known as green energy or
clean energy.

Recently, rooftops of new commercial buildings in France
are required by law to be covered either with plants or solar
photovoltaic panels. These green roofs are also popular in
Germany, Canada, and Australia.

Here in the Philippines, we can be proud of our very own
Leandro Leviste from Yale University, who at his young age,
is the president of Solar Philippines. In November 2014, his
company activated SM North Edsas solar-powered rooftop - the biggest in the world.

By definition, the term renewable energy resources or,
simply, renewables, refers to energy resources that do not
have an upper limit on the total quantity to be used. These
include biomass, solar, wind, geothermal, ocean energy, and
hydropower, among others, which conform with
internationally accepted standards.

In December 2008, the Philippines enacted Republic Act
(RA) No. 9513, also known as the Renewable Energy Act of
2008. The Implementing Rules and Regulations were issued
in May 2009. The law affirmed the governments
commitment to accelerate the exploration and development
of Philippine renewable energy resources.

RA 9513 declared the States policy to achieve energy
security by reducing reliance on fossil fuels and minimizing
exposure to price fluctuations in oil markets. The
government agencies tasked to implement the law include
the Department of Energy, the Energy Regulatory
Commission, and the National Renewable Energy Board.

RA 9513 also seeks to increase the utilization of renewable
energy resources by developing national and local
capabilities in the use of renewable energy systems, and
promoting their efficient and effective application by
offering fiscal and non-fiscal incentives.

These incentives include: (1) income tax holiday; (2) dutyfree importation of renewable machinery, equipment, and
materials; (3) special realty tax rates; (4) net operating loss
carry-over; (5) corporate tax rate of 10%; (6) accelerated

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 83

depreciation of plant, machinery, and equipment; (7) 0%


value-added tax rate; (8) tax exemption on carbon credits;
and (9) cash incentive for missionary electrification.

In the course of developing sources of renewable energy in
the country, certain issues need to be addressed by
regulators, industry players, and other stakeholders.

These include: (1) high upfront cost and technologies; (2)
non-competitiveness among market players; (3) non-viable
renewable energy markets; (4) inaccessible financial
packages; and (5) social acceptability.

Moreover, other issues which are inherent in renewable
energy regulation (especially in relation to incentives)
consist of: (1) implementation of Feed-in Tariff rules; (2)
setting of Renewable Portfolio Standards; and (3)
formulation of guidelines on other renewable energy policy
mechanisms, such as net metering, green energy option, etc.

Even though there are challenges in developing the
countrys renewable energy sector, we should not be
discouraged; instead, we must continue to find ways to
meet those challenges with the hope that, ultimately, it will
lead the nation towards the enjoyment of sustainable green
and clean energy.

In June 2011 during the launch of the National Renewable
Energy Program, President Aquino described the prospects
of realizing the promise of renewable energy in the
Philippines. He best summed up why our country needs
green and clean energy: Renewable energy will fuel our
future.

2. RA 6716: Rainwater Collection/Development of
Springs
REPUBLIC ACT NO. 6716 - AN ACT PROVIDING FOR THE
CONSTRUCTION OF WATER WELLS, RAINWATER
COLLECTORS, DEVELOPMENT OF SPRINGS AND
REHABILITATION OF EXISTING WATER WELLS IN ALL
BARANGAYS IN THE PHILIPPINES

Section 1. Declaration of Policy. It is hereby declared to
be the national policy to promote the quality of life of every
Filipino through the provision of adequate social service
including, but not limited to, the provision of adequate
potable water supply made conveniently available to every
barangay in the country.

Sec. 2. Water Wells, Rainwater Collectors and Spring
Development. The Department of Public Works and
Highways (DPWH) shall, within thirty (30) days after the
approval of this Act, undertake construction of water wells,
rainwater collectors, development of springs and
rehabilitation of existing water wells in all barangays in the
Philippines in such number as may be needed and feasible,
taking into consideration the population, hydrologic
conditions, costs of project development and operations,
financial and economic factors and institutional
arrangements: provided, however, that the DPWH shall

deduct not more than five percent (5%) for supervision,


engineering, technical and other overhead expenses or fees:
provided, further, that each barangay in the country shall
have at least one additional potable water source.

Sec. 3. Operation and Maintenance. In order to ensure
the proper use of the water facilities herein provided, a
Barangay Waterworks and Sanitation Association, herein
referred to as BWSA, shall be formed and organized for the
purpose of maintaining the water facilities: provided, that
pending the organization of the BWSA, the water facilities
shall be operated and maintained by the barangay council.

The BWSA shall be composed of the member-consumers
who shall administer, operate and maintain the completed
water facility and shall be registered with the
corresponding municipal or city council.

The BWSA may impose such minimal charges as may be
necessary for the maintenance and normal repairs of said
facility. Nothing herein shall prevent any resident of the
locality from using the water facility under the same terms
and conditions as the member-consumers of the BWSA.

Organizing and training the recipient communities in the
operation and maintenance of water systems shall be
conducted by the DPWH prior to the turnover of such
facilities to the BWSA subject to the guidelines to be
formulated by the Department.

Sec. 4. Submission of Report. The Department of Public
Works and Highways shall, within ninety (90) days after the
approval of this Act and every one hundred eighty (80) days
thereafter, submit periodic reports to the respective
Committees on Public Works and Highways of both Houses
of the Congress of the Philippines for evaluation and
consideration.

Sec. 5. Funding. The sum needed for the
implementation of the construction, rehabilitation and
repair program shall be taken from any available
appropriations for the Department of Public Works and
Highways in the General Appropriations Act for 1989:
provided, that funds for this purpose shall also be included
in the General Appropriations Act for 1990 and 1991:
provided, further, that the total program shall be completed
not later than June 30, 1991, and: provided, finally, that
there shall be equitable and proportionate appropriations of
funds annually for this purpose for all provinces, cities and
municipalities.n addition, a portion of financial grants and
concessional loans extended to the Philippines by foreign
governments and multilateral agencies every year, the
amount to be determined by the President, shall be
allocated by the Department of Budget and Management to
augment the appropriations of the Department of Public
Works and Highways until one hundred thousand (100,000)
water wells, rainwater collectors, and springs are completed
as envisioned in this Act.

Cases:

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 84

a. Mustang Lumber Corp v. CA


G.R. No. 104988, June 18, 1996, 257 SCRA 430
The Revised Forestry Code contains no definition of either
timber or lumber. While the former is included in forest
products as defined in paragraph (q) of Section 3, the latter
is found in paragraph (aa) of the same section in the
definition of Processing plant, which reads:
(aa) Processing plant is any mechanical set-up, machine or
combination of machine used for the processing of logs and
other forest raw materials into lumber, veneer, plywood,
wallbond, blockboard, paper board, pulp, paper or other
finished wood products.
This simply means that lumber is a processed log or
processed forest raw material. Clearly, the Code uses the
term lumber in its ordinary or common usage. In the 1993
copyright edition of Websters Third New
International Dictionary, lumber is defined, inter alia, as
timber or logs after being prepared for the market. Simply
put, lumber is processed log or timber.

Facts:
The present suit is a consolidation of three cases, the first
case being the one pertinent to environmental law.
An organized team of foresters and policemen apprehended
the truck belonging to Mustang Lumber, Inc. which
contained lauan and almaciga lumber of assorted sizes and
dimensions. The driver was unable to produce the
necessary legal documents, thus, the team seized the truck.
Afterwards, the team obtained a search warrant to inspect
the premises of Mustang Lumber. During the search, the
team found more lumber in the lumberyard without the
necessary papers. Thus, the lumbers were confiscated.
Secretary Factoran ordered the disposal of the confiscated
lumber.

A complaint against Mustang Lumbers president and
general manager was filed in court. Mustang Lumber filed a
motion to quash on the ground that the information does
not charge an offense.
According to Mustang Lumber, the possession of lumber as
opposed to timber is not penalized under Section 68 of PD
No. 705.

Issue: Whether possession of lumber, as opposed to timber,
is penalized in Section 68 of PD No. 705.

Ruling: Yes. The possession of lumber is covered by Section
68 of PD No. 705. While the Revised Forestry Code does not
contain any definition of timber or lumber, it does define
forest products. The definition of Processing Plant includes
lumber, to wit: [p]rocessing plant is any mechanical set-up,
machine or combination of machine used for the processing
of logs and other forest raw materials into lumber, veneer,
plywood, wallbond, blockboard (sic), paper board, pulp,
paper or other finished wood products.

This simply means that lumber is a processed log or
processed forest raw material. Clearly, the Code uses the
term lumber in its ordinary or common usage. In the 1993
copyright edition of Websters Third New International

Dictionary, lumber is defined, inter alia, as timber or logs


after being prepared for the market. Simply put, lumber is a
processed log or timber.

b. Principe v. Fact Finding and Investigation Bureau
[FFIB]
EN BANC [G.R. No. 145973. January 23, 2002]

ANTONIO G. PRINCIPE, petitioner, vs. FACT-FINDING &
INTELLIGENCE, BUREAU (FFIB), OFFICE OF THE
OMBUDSMAN,
PARDO, J.:

The Case is a petition for review on certiorari seeking to
reverse the decision of the Court of Appeals[1] affirming the
Ombudsmans dismissal of petitioner from the government
service for gross neglect of duty in connection with the
collapse of the housing project at the Cherry Hills
Subdivision, Antipolo City, on August 3, 1999.

The Facts as found by the Court of Appeals, are as follows:
August 28, 1990- Philjas Corporation, whose primary
purposes, among others are: to own, develop, subdivide,
market and provide low-cost housing for the poor, was
registered with the Securities and Exchange Commission
(SEC).

February 19, 1991 - then City Mayor Daniel S. Garcia,
endorsed to the Housing and Land Use Regulatory Board
(HLURB) the proposed CHS.

Thereafter, or on 07 March 1991, based on the favorable
recommendation of Mayor Garcia, respondent TAN, issued
the Preliminary Approval and Locational Clearance (PALC)
for the development of CHS.

On July 5, 1991, then HLURB Commissioner respondent
TUNGPALAN issued Development Permit No. 91-0216 for
land development only for the entire land area of 12.1034
hectares covered by TCT No. 35083 (now TCT 208837) and
with 1,003 saleable lots/units with project classification B.
P. 220 Model A-Socialized Housing (p. 96, Records), with
several conditions for its development.

Three (3) days thereafter or on July 8, 1991, respondent
JASARENO, allowed/granted the leveling/earth-moving
operations of the development project of the area subject to
certain conditions.

On November 18, 1991, then HLURB Commissioner AMADO
B. DELORIA issued Certificate of Registration No. 91-110576 in favor of CHS, with License to Sell No. 91-11-0592
for the 1,007 lots/units in the subdivision.

Eventually, on December 10, 1991, respondent POLLISCO
issued Small Scale Mining Permit (SSMP) No. IV-316 to
Philjas to extract and remove 10,000 cu. meters of filling
materials from the area where the CHS is located.

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 85

Thereafter, or on January 12, 1994, Philjas applied for a


Small Scale Mining Permit (SSMP) under P. D. 1899 with the
Rizal Provincial Government to extract and remove 50,000
metric tons of filling materials per annum on CHS 2.8
hectares.

Thus, on January 17, 1994, respondent MAGNO, informed
ELIEZER I. RODRIGUEZ of Philjas that CHS is within the EIS
System and as such must secure ECC from the DENR. Philjas
was accordingly informed of the matter such that it applied
for the issuance of ECC from the DENR-Region IV, on
February 3, 1994.

On March 12, 1994, an Inspection Report allegedly prepared
by respondent BALICAS, attested by respondent RUTAQUIO
and approved by respondent TOLENTINO re: field
evaluation to the issuance of ECC, was submitted.

Consequently, on April 28, 1994, upon recommendation of
respondent TOLENTINO, Philjas application for ECC was
approved by respondent PRINCIPE, then Regional Executive
Director, DENR under ECC-137-RI-212-94.

A Mining Field Report for SSMP dated May 10, 1994 was
submitted pursuant to the inspection report prepared by
respondents CAYETANO, FELICIANO, HILADO and BURGOS,
based on their inspection conducted on April 25 to 29, 1994.
The report recommended, among others, that the proposed
extraction of materials would pose no adverse effect to the
environment.

Records further disclosed that on August 10, 1994,
respondent BALICAS monitored the implementation of the
CHS Project Development to check compliance with the
terms and conditions in the ECC. Again, on August 23, 1995,
she conducted another monitoring on the project for the
same purpose. In both instances, she noted that the project
was still in the construction stage hence, compliance with
the stipulated conditions could not be fully assessed, and
therefore, a follow-up monitoring inspection was the last
one conducted by the DENR.

On September 24, 1994, GOV. CASIMIRO I. YNARES, JR.,
approved the SSMP applied for by Philjas under SSMP No.
RZL-012, allowing Philjas to extract and remove 50,000
metric tons of filling materials from the area for a period of
two (2) years from date of its issue until September 6,
1996.[2]

On November 15, 1999, the Ombudsman rendered a
decision finding petitioner Principe administratively liable
for gross neglect of duty and imposing upon him the penalty
of dismissal from office.

On January 4, 2000, petitioner filed with the Court of
Appeals a petition for review assailing the decision of the
Ombudsman.[4]

On August 25, 2000, the Court of Appeals promulgated a


decision denying the petition and affirming the decision of
the Ombudsman.[5]

Hence, this appeal.

The Issue raised is whether the Ombudsman may dismiss
petitioner from the service on an administrative charge for
gross neglect of duty, initiated, investigated and decided by
the Ombudsman himself without substantial evidence to
support his finding of gross neglect of duty because the duty
to monitor and inspect the project was not vested in
petitioner.

The Court's Ruling

Republic Act No. 6770, Section 15, prescribed the powers of
the Ombudsman.

The Ombudsman without taking into consideration the
lawfully mandated duties and functions attached to
petitioners position, immediately concluded that as the
signing and approving authority of the ECC issued to
PHILJAS, it was incumbent upon petitioner to conduct actual
monitoring and enforce strict compliance with the terms
and conditions of the ECC.

The applicable administrative orders provide that the
function of monitoring environmental programs, projects
and activities in the region is lodged with the Regional
Technical Director, not with the Regional Executive
Director, the position occupied by petitioner. Under DAO
38-1990, the following were the functions attached to the
office of petitioner, to wit:

I. REGULATORY MATTERS

D. REGIONAL EXECUTIVE DIRECTOR
1. Forest Management
2. Land Management
3. Mines and Geo-Sciences Development
4. Environmental Management
4.1 Issues authority to construct and permit to operate
pollution control equipment/devices including the
collection of corresponding fees/charges.
4.2 Issues accreditation of pollution control office of
industrial firms and local government entities.
4.3 Hears/gathers evidences or facts on pollution cases as
delegated by the Pollution Adjudication Board.
4.4. Approves plans and issues permit for mine tailings
disposal, including environmental rehabilitation plans.[9]

Clearly, there is no mention of the responsibility of a
regional executive director to monitor projects. More
apropos is the description of the functions of a regional
technical director, to wit:

E. REGIONAL TECHNICAL DIRECTOR

1. Forest Management

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 86

2. Land Management
3. Mines and Geo-Sciences Development
4. Environmental Management
4.1 Issues clearance certificate to vehicles which have
passed the smoke-belching test.
4.2 Issues pollution clearance and temporary permit to
operate pollution control devices including the collection of
corresponding fees/charges.
4.3 Conducts monitoring and investigation of pollution
sources and control facilities.
4.4 Supervises, coordinates and monitors the
implementation of environmental programs, projects and
activities in the region.[10] [emphasis supplied]

Furthermore, monitoring is defined in DAO No. 21, Series of
1992, as the activity designed to gauge the level of
compliance with the conditions stipulated in the ECC,[11]
and in the EIS[12] or PD[13] submitted.[14] This is the
function of the PENR and CENR offices as mandated in DAO
No. 37, Series of 1996.[15] Particularly, it provided that:

Section 10. Compliance Monitoring
x x x
b. Monitoring of compliance with the proponents ECC issued
pursuant to an IEE,[16] and applicable laws, rules and
regulations, shall be undertaken by the concerned PENRO
and CENRO with support from the Regional Office and/or
EMB whenever necessary.

Hence, how could petitioner be guilty of neglecting a duty,
which is not even his to begin with? Administrative liability
could not be based on the fact that petitioner was the
person who signed and approved the ECC, without proof of
actual act or omission constituting neglect of duty.

In the absence of substantial evidence of gross neglect of
petitioner, administrative liability could not be based on the
principle of command responsibility.[17] The negligence of
petitioners subordinates is not tantamount to his own
negligence.

It was not within the mandated responsibilities of petitioner
to conduct actual monitoring of projects. The principles
governing public officers under the Revised Administrative
Code of 1987 clearly provide that a head of a department or
a superior officer shall not be civilly liable for the wrongful
acts, omissions of duty, negligence, or misfeasance of his
subordinates, unless he has actually authorized by written
order the specific act or misconduct complained of.[18]

The investigation conducted by the Ombudsman refers to
the tragic incident in Cherry Hills Subdivision, Antipolo
Rizal, where several families lost lives and homes. Despite
the fact that what was involved was a housing and land
development project, petitioner, as the Regional Executive
Director for Region IV, Department of Environment and
Natural Resources, was found negligent because he was the
one who signed and approved the ECC.

As heretofore stated, the responsibility of monitoring


housing and land development projects is not lodged with
the office of petitioner. The Administrative Code of 1987
spelled out the mandate of the Department of Environment
and Natural Resources, the agency that has authority over
petitioner, which reads:

Section 1. Declaration of Policy.- (1) The State shall ensure
for the benefit of the Filipino people, the full exploration and
development as well as the judicious disposition, utilization,
management, renewal and conservation of the countrys
forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources, consistent with the
necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment
and the objective of making the exploration, development
and utilization of such natural resources equitably
accessible to the different segments of the present as well as
future generations.

(2) The State shall likewise recognize and apply a true value
system that takes into account social and environmental
cost implications relative to the utilization, development
and conservation of our natural resources.

Section 2. Mandate.- (1) The Department of Environment
and Natural Resources shall be primarily responsible for the
implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge
of carrying out the States constitutional mandate to control
and supervise the exploration, development, utilization, and
conservation of the countrys natural resources.[19]

However, pursuant to Executive Order No. 90,[20] the
Human Settlements Regulatory Commission, which became
the Housing and Land Use Regulatory Board (HLURB), is the
sole regulatory body for housing and land development.[21]

The Fallo: WHEREFORE, the Court REVERSES the decision
of the Court of Appeals.[22] In lieu thereof, the Court annuls
the decision of the Ombudsman in OMB-ADM-09-661, dated
December 1, 1999, dismissing the petitioner from the
government service, and orders his reinstatement with back
pay and without loss of seniority.

c. Balicas v. FFIB
SECOND DIVISION [G.R. No. 145972. March 23, 2004]

IGNACIA BALICAS, petitioner, vs. FACT-FINDING &
INTELLIGENCE BUREAU (FFIB), OFFICE OF THE
OMBUDSMAN, respondent.
QUISUMBING, J.:

This petition for review on certiorari assails the Court of
Appeals decision[1] dated August 25, 2000 and
resolution[2] of November 13, 2000 in CA-G.R. SP No.
56386, which affirmed the Ombudsmans decision[3]
dismissing petitioner from government service for gross

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 87

neglect of duty in connection with the tragedy at the Cherry


Hills Subdivision in Antipolo City on August 3, 1999.

The antecedent facts as summarized in the Ombudsmans
decision are as follows:

Based on the evidence adduced by the complainant, the
following is the chronological series of events which led to
the development of the CHS (Cherry Hills Subdivision):

August 28, 1990 Philjas Corporation, whose primary
purposes, among others are: to own, develop, subdivide,
market and provide low-cost housing for the poor, was
registered with the Securities and Exchange Commission
(SEC).

February 19, 1991 then City Mayor Daniel S. Garcia,
endorsed to the Housing and Land Use Regulatory Board
(HLURB) the proposed CHS.

Thereafter, or on 07 March 1991, based on the favorable
recommendations of Mayor Garcia, respondent TAN, issued
the Preliminary Approval and Locational Clearance (PALC)
for the development of CHS.

On July 5, 1991, then HLURB Commissioner respondent
TUNGPALAN issued Development Permit No. 91-0216 for
land development only for the entire land area of 12.1034
hectares covered by TCT No. 35083 (now TCT 208837) and
with 1,003 saleable lots/units with project classification B.P.
220 Model A-Socialized Housing (p. 96, Records), with
several conditions for its development.

Three (3) days thereafter or on July 8, 1991, respondent
JASARENO, allowed/granted the leveling/earth-moving
operations of the development project of the area subject to
certain conditions.

On November 18, 1991, then HLURB Commissioner AMADO
B. DELORIA issued Certificate of Registration No. 91-110576 in favor of CHS, with License to Sell No. 91-11-0592
for the 1,007 lots/units in the subdivision.

Eventually, on December 10, 1991, respondent POLLISCO
issued Small Scale Mining Permit (SSMP) No. IV-316 to
Philjas to extract and remove 10,000 cu. meters of filling
materials from the area where the CHS is located.

Thereafter, or on January 12, 1994, Philjas applied for a
Small Scale Mining Permit (SSMP) under P.D. 1899 with the
Rizal Provincial Government to extract and remove 50,000
metric tons of filling materials per annum on CHS 2.8
hectares.

Thus, on January 17, 1994, respondent MAGNO, informed
ELIEZER I. RODRIGUEZ of Philjas that CHS is within the EIS
System and as such must secure ECC from the DENR. Philjas
was accordingly informed of the matter such that it applied
for the issuance of ECC from the DENR-Region IV, on
February 3, 1994.


On March 12, 1994, an Inspection Report allegedly prepared
by respondent BALICAS, attested by respondent RUTAQUIO
and approved by respondent TOLENTINO re: field
evaluation to the issuance of ECC, was submitted.

Consequently, on April 28, 1994, upon recommendations of
respondent TOLENTINO, Philjas application for ECC was
approved by respondent PRINCIPE, then Regional Executive
Director, DENR under ECC-137-R1-212-94.

A Mining Field Report for SSMP dated May 10, 1994 was
submitted pursuant to the inspection report prepared by
respondents CAYETANO, FELICIANO, HILADO and BURGOS,
based on their inspection conducted on April 25 to 29, 1994.
The report recommended, among others, that the proposed
extraction of materials would pose no adverse effect to the
environment.

Records further disclosed that on August 10, 1994,
respondent BALICAS monitored the implementation of the
CHS Project Development to check compliance with the
terms and conditions in the ECC. Again, on August 23, 1995,
she conducted another monitoring on the project for the
same purpose. In both instances, she noted that the project
was still in the construction stage hence, compliance with
the stipulated conditions could not be fully assessed, and
therefore, a follow-up monitoring is proper. It appeared
from the records that this August 23, 1995 monitoring
inspection was the last one conducted by the DENR.

On September 24, 1994, GOV. CASIMIRO I. YNARES, JR.,
approved the SSMP applied for by Philjas under SSMP No.
RZL-012, allowing Philjas to extract and remove 50,000
metric tons of filling materials from the area for a period of
two (2) years from date of its issue until September 6,
1996.[4]

Immediately after the tragic incident on August 3, 1999, a
fact-finding investigation was conducted by the Office of the
Ombudsman through its Fact-Finding and Intelligence
Bureau (FFIB), which duly filed an administrative complaint
with the Office of the Ombudsman against several officials of
the Housing and Land Use Regulatory Board (HLURB),
Department of Environment and Natural Resources (DENR),
and the local government of Antipolo.

The charge against petitioner involved a supposed failure
on her part to monitor and inspect the development of
Cherry Hills Subdivision, which was assumed to be her duty
as DENR senior environmental management specialist
assigned in the province of Rizal.

For her part, petitioner belied allegations that monitoring
was not conducted, claiming that she monitored the
development of Cherry Hills Subdivision as evidenced by
three (3) monitoring reports dated March 12, 1994, August
10, 1994 and August 23, 1995. She averred that she also
conducted subsequent compliance monitoring of the terms
and conditions of Philjas Environmental Compliance

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 88

Certificate (ECC) on May 19, 1997 and noted no violation


thereon. She further claimed good faith and exercise of due
diligence, insisting that the tragedy was a fortuitous event.
She reasoned that the collapse did not occur in Cherry Hills,
but in the adjacent mountain eastern side of the subdivision.

On November 15, 1999, the Office of the Ombudsman
rendered a decision imposing upon petitioner the supreme
penalty of dismissal from office for gross neglect of duty
finding:

RESPONDENT BALICAS

Records show that she monitored and inspected the CHS
[Cherry Hills Subdivision] only thrice (3). Verily, with this
scant frequency, how can respondent Balicas sweepingly
claim that there was no violation of ECC compliance and
that she had done what is necessary in accordance with the
regular performance of her duties. She herself recognized
the fact that the collapsed area is not the subdivision in
question but the adjacent mountain eastern side of the CHS.
It is incumbent upon her to establish the same in her
monitoring and inspection reports and make objective
recommendations re: its possible adverse effect to the
environment and to the residents of the CHS and nearby
areas. Her defense that the position of the CHS shows the
impossibility of checking the would-be adverse effect clearly
established her incompetence. No expert mind is needed to
know that mountains cause landslide and erosion. Cherry
Hills Subdivision is a living witness to this.[5]

Petitioner seasonably filed a petition for review of the
Ombudsmans decision with the Court of Appeals. In its
decision dated August 25, 2000, the Court of Appeals
dismissed the petition for lack of merit and affirmed the
appealed decision. It found that the landslide was a
preventable occurrence and that petitioner was guilty of
gross negligence in failing to closely monitor Philjas
compliance with the conditions of the ECC given the known
inherent instability of the ground where the subdivision
was developed. The appellate court likewise denied
petitioners motion for reconsideration in its resolution
dated November 13, 2000.

Petitioner now comes to this Court for review on certiorari,
under Rule 45 of the Rules of Civil Procedure, of the
appellate courts decision. She alleges that the Court of
Appeals committed serious errors of law in affirming the
Ombudsmans conclusion that:

1 There was gross negligence on the part of petitioner
Balicas in the performance of her official duties as Senior
Environmental Management Specialist (SEMS) of the
Provincial Environment and Natural Resources Office
(PENRO) Province of Rizal, DENR Region IV; and the alleged
gross neglect of duty of petitioner warranted the imposition
of the extreme penalty of dismissal from the service.

2. The landslide which caused the death of several residents


of the subdivision and the destruction of property is not a
fortuitous event and therefore preventible.[6]

The main issues are whether or not the Court of Appeals
committed serious errors of law in: (1) holding petitioner
guilty of gross neglect of duty and (2) imposing upon her
the extreme penalty of dismissal from office.

In order to ascertain if there had been gross neglect of duty,
we have to look at the lawfully prescribed duties of
petitioner. Unfortunately, DENR regulations are silent on
the specific duties of a senior environmental management
specialist. Internal regulations merely speak of the functions
of the Provincial Environment and Natural Resources Office
(PENRO) to which petitioner directly reports.

Nonetheless, petitioner relies on a letter[7] dated December
13, 1999 from the chief of personnel, DENR Region IV,
which defines the duties of a senior environmental
management specialist as follows:

1. Conducts investigation of pollution sources or
complaints;
2. Review[s] plans and specifications of proposes (sic) or
existing treatment plants and pollution abatement
structures and devices to determine their efficiency and
suitability for the kind of pollutants to be removed and to
recommend issuance or denial of permits;
3. Conducts follow-up inspection of construction of
pollution abatement/work and structures to oversee
compliance with approved plans and specifications;
4. Recommends remedial measures for the prevention,
abatement and control of pollution;
5. Prepares technical reports on pollution investigation and
related activities; and
6. Performs related work as assigned.

It is readily apparent that no monitoring duty whatsoever is
mentioned in the said letter. The PENRO, on the other hand,
is mandated to:

1. conduct surveillance and inspection of pollution sources
and control facilities and undertake/initiate measures
relative to pollution-related complaints of the general public
for appropriate referral to the regional office;
2. comment on the project description, determine if the
project fall within the Environmental Impact Statement
(EIS) System[8] and submit the same to the regional office;
and
3. implement programs and projects related to
environmental management within the PENRO.[9]

In addition, the PENRO is likewise tasked to monitor the
project proponents compliance with the conditions
stipulated in the ECC, with support from the DENR regional
office and the Environmental Management Bureau.[10] The
primary purpose of compliance monitoring is to ensure the
judicious implementation of sound and standard

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 89

environmental quality during the development stage of a


particular project. Specifically, it aims to:

1. monitor project compliance with the conditions set in the
ECC;
2. monitor compliance with the Environmental Management
Plan (EMP) and applicable laws, rules and regulations; and
3. provide a basis for timely decision-making and effective
planning and management of environmental measures
through the monitoring of actual project impacts vis--vis
predicted impacts in the EIS.[11]

Based on the foregoing, the monitoring duties of the PENRO
mainly deal with broad environmental concerns,
particularly pollution abatement. This general monitoring
duty is applicable to all types of physical developments that
may adversely impact on the environment, whether housing
projects, industrial sites, recreational facilities, or scientific
undertakings.

However, a more specific monitoring duty is imposed on the
HLURB as the sole regulatory body for housing and land
development. It is mandated to encourage greater private
sector participation in low-cost housing through (1)
liberalization of development standards, (2) simplification
of regulations and (3) decentralization of approvals for
permits and licenses.[12]

P.D. No. 1586[13] prescribes the following duties on the
HLURB (then Ministry of Human Settlements) in connection
with environmentally critical projects requiring an ECC:

SECTION 4. Presidential Proclamation of Environmentally
Critical Areas and Projects. The President of the Philippines
may, on his own initiative or upon recommendation of the
National Environment Protection Council, by proclamation
declare certain projects, undertakings or areas in the
country as environmentally critical. No person, partnership
or corporation shall undertake or operate any such declared
environmentally critical project or area without first
securing an Environmental Compliance Certificate issued by
the President or his duly authorized representative. For the
proper management of said critical project or area, the
President may by his proclamation reorganize such
government offices, agencies, institutions, corporations or
instrumentalities including the re-alignment of government
personnel, and their specific functions and responsibilities.

For the same purpose as above, the Ministry of Human
Settlements [now HLURB] shall: (a) prepare the proper land
or water use pattern for said critical project(s) or area(s);
(b) establish ambient environmental quality standards; (c)
develop a program of environmental enhancement or
protective measures against calamitous factors such as
earthquake, floods, water erosion and others; and (d)
perform such other functions as may be directed by the
President from time to time. (Emphasis ours.)

The legal duty to monitor housing projects, like the Cherry
Hills Subdivision, against calamities such as landslides due

to continuous rain, is clearly placed on the HLURB, not on


the petitioner as PENRO senior environmental management
specialist. In fact, the law imposes no clear and direct duty
on petitioner to perform such narrowly defined monitoring
function.

In the related case of Principe v. Fact-Finding and
Intelligence Bureau,[14] this Court found Antonio Principe,
regional executive director for DENR Region IV who
approved Philjas application for ECC, not liable for gross
neglect of duty. The Court reversed the decision of the Court
of Appeals and thereby annulled the decision of the
Ombudsman in OMB-ADM-09-661, dated December 1, 1999,
dismissing Principe from the government service. We
ordered his reinstatement with back pay and without loss of
seniority.[15]

The rationale for our decision in Principe bears reiteration:
the responsibility of monitoring housing and land
development projects is not lodged with the DENR, but with
the HLURB as the sole regulatory body for housing and land
development. Thus, we must stress that we find no legal
basis to hold petitioner, who is an officer of DENR, liable for
gross neglect of the duty pertaining to another agency, the
HLURB. It was grave error for the appellate court to sustain
the Ombudsmans ruling that she should be dismissed from
the service. The reinstatement of petitioner is clearly called
for.

WHEREFORE, the petition is hereby GRANTED. The Court of
Appeals decision affirming the Ombudsmans dismissal of
petitioner IGNACIA BALICAS from office is REVERSED and
SET ASIDE, and petitioners REINSTATEMENT to her
position with back pay and without loss of seniority rights is
hereby ordered.

d. Lipin Otadan v. Rio Tuba Nickel Mining
[G.R. No. 161436. June 23, 2004] SECOND DIVISION

Gentlemen:
Quoted hereunder, for your information, is a resolution of
this Court dated JUN 23 2004.

G.R. No. 161436 (Lipin Otadan, et al. vs. Rio Tuba Nickel
Mining Corporation.)

Acting on the Motion for Reconsideration dated April 26,
2004 filed by the petitioners of this Court's Resolution dated
February 23, 2004 denying their petition for review on
certiorari for late filing, the Court resolved to DENY WITH
FINALITY said motion for lack of merit. It is axiomatic that
the perfection of an appeal in the manner and within the
period prescribed by law is not only mandatory but
jurisdictional and the failure to perfect the appeal has the
effect of rendering the judgment final and
executory.[1]cralaw

Moreover, the petitioners mainly assail the Decision dated
September 30, 2003 of the Court of Appeals in CA-G.R. SP
No. 75014 finding no grave abuse of discretion on the part

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 90

of the Secretary of the Department of Environment and


Natural Resources (DENR) when he issued the
Environmental Compliance Certificate (ECC) No. 0201-021313 to the respondent Rio Tuba Nickel Mining Corporation
for its Hydrometallurgical Processing Plant in Barangay Rio
Tuba, Municipality of Bataraza, Palawan. The issuance of the
ECC is an exercise by the Secretary of the DENR of his quasijudicial functions. This Court has consistently held that the
courts will not interfere in matters which are addressed to
the sound discretion of the government agency entrusted
with the regulation of activities coming under the special
and technical training and knowledge of such
agency.[2]cralaw It has also been held that the exercise of
administrative discretion is a policy decision and a matter
that can best be discharged by the government agency
concerned, and not by the courts.[3]cralaw This Court has
likewise consistently adhered to the principle that factual
findings of quasi-judicial bodies which have acquired
expertise because their jurisdiction is confined to specific
matters are generally accorded not only respect but even
finality and are binding even upon the Supreme Court if
they are supported by substantial evidence.[4]cralaw
Further, administrative agencies are given a wide latitude in
the evaluation of evidence and in the exercise of its
adjudicative functions. This latitude includes the authority
to take judicial notice of facts within its special
competence.[5]cralaw The petitioners failed to present
compelling reasons to warrant the deviation by this Court
from the foregoing salutary principles.

Likewise, the petitioners' Motion for Leave to File Attached
Motion for Extension of Time and Amended Petition for
Review on Certiorari is DENIED.

The Opposition dated May 7, 2004 filed by the respondent,
the Letters, in the vernacular, dated May 8, 2004, of the
Katutubong Palawan at Katutubong Mulbog ng Barangay
Sarong, Bataraza, Palawan and the undated Separate
Letters, in the vernacular, of the residents of Barangay
Iwahig, Sarong, and Rio Tuba, Bataraza, Palawan are
NOTED.

Very truly yours,
(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court

e. Bangus Fry Fisherfolk v. Lanzanas
CARPIO, J.:

This is a petition for review[1] of the Order[2] dated 7
November 1997 of the Regional Trial Court of Manila,
Branch 7 (Manila RTC), dismissing petitioners complaint for
lack of cause of action and lack of jurisdiction.

The Facts ; On 30 June 1997, Regional Executive Director
Antonio G. Principe (RED Principe) of Region IV,
Department of Environment and Natural Resources (DENR),
issued an Environmental Clearance Certificate (ECC) in
favor of respondent National Power Corporation
(NAPOCOR). The ECC authorized NAPOCOR to construct a

temporary mooring facility in Minolo Cove, Sitio Minolo,


Barangay San Isidro, Puerto Galera, Oriental Mindoro. The
Sangguniang Bayan of Puerto Galera has declared Minolo
Cove, a mangrove area and breeding ground for bangus fry,
an eco-tourist zone.[3]

The mooring facility would serve as the temporary docking
site of NAPOCORs power barge, which, due to turbulent
waters at its former mooring site in Calapan, Oriental
Mindoro, required relocation to a safer site like Minolo
Cove. The 14.4 megawatts power barge would provide the
main source of power for the entire province of Oriental
Mindoro pending the construction of a land-based power
plant in Calapan, Oriental Mindoro. The ECC for the mooring
facility was valid for two years counted from its date of
issuance or until 30 June 1999.[4]

Petitioners, claiming to be fisherfolks from Minolo, San
Isidro, Puerto Galera,[5] sought reconsideration of the ECC
issuance. RED Principe, however, denied petitioners plea on
15 July 1997. On 21 July 1997, petitioners filed a complaint
with the Regional Trial Court of Manila, Branch 7, for the
cancellation of the ECC and for the issuance of a writ of
injunction to stop the construction of the mooring facility.
Impleaded as defendants were the following: (1) NAPOCOR,
(2) RED Principe, (3) DENR Region IV Technical Director for
Environment Oscar Dominguez, (4) Oriental Mindoro
Electric Cooperative (ORMECO), which is engaged in the
distribution of electricity in Oriental Mindoro, and (5)
certain officials of Puerto Galera.[6] Petitioners
subsequently amended their complaint to include as
additional defendants the elective officials of Oriental
Mindoro represented by then Governor Rodolfo G. Valencia.
Petitioners further prayed for the demolition of mooring
structures that respondents had already built.

On 28 July 1997, prior to the filing of the amended
complaint, the trial court issued a 20-day temporary
restraining order enjoining the construction of the mooring
facility. However, the trial court lifted the same on 6 August
1997 on NAPOCORs manifestation that the provincial
government of Oriental Mindoro was the one undertaking
the construction of the mooring facility.[7]

On 28 August 1997, before filing their answers, respondents
ORMECO and the provincial officials of Oriental Mindoro
moved to dismiss the complaint. These respondents claimed
that petitioners failed to exhaust administrative remedies,
rendering the complaint without cause of action. They also
asserted that the Manila RTC has no jurisdiction to enjoin
the construction of the mooring facility in Oriental Mindoro,
which lies outside the Manila RTCs territorial jurisdiction.

Petitioners opposed the motion on the ground that there
was no need to exhaust administrative remedies. They
argued that the issuance of the ECC was in patent violation
of Presidential Decree No. 1605,[8] Sections 26 and 27 of
Republic Act No. 7160,[9] and the provisions of DENR
Department Administrative Order No. 96-37 (DAO 96-37)
on the documentation of ECC applications. Petitioners also

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 91

claimed that the implementation of the ECC was in patent


violation of its terms.

In its order of 7 November 1997, the trial court granted the
motion and dismissed petitioners complaint.

Hence, this petition.

The issue is whether the trial court erred in dismissing
petitioners complaint for lack of cause action and lack of
jurisdiction.

The Ruling of the Court: The petition has no merit.

Jurisdiction of the Manila RTC over the Case - Jurisdiction
over the subject matter of a case is conferred by law. Such
jurisdiction is determined by the allegations in the
complaint, irrespective of whether the plaintiff is entitled to
all or some of the reliefs sought.11

A perusal of the allegations in the complaint shows that
petitioners principal cause of action is the alleged illegality
of the issuance of the ECC. The violation of laws on
environmental protection and on local government
participation in the implementation of environmentally
critical projects is an issue that involves the validity of
NAPOCORs ECC. If the ECC is void, then as a necessary
consequence, NAPOCOR or the provincial government of
Oriental Mindoro could not construct the mooring facility.
The subsidiary issue of non-compliance with pertinent local
ordinances in the construction of the mooring facility
becomes immaterial for purposes of granting petitioners
main prayer, which is the annulment of the ECC. Thus, if the
court has jurisdiction to determine the validity of the
issuance of the ECC, then it has jurisdiction to hear and
decide petitioners complaint.

Petitioners complaint is one that is not capable of pecuniary
estimation. It falls within the exclusive and original
jurisdiction of the Regional Trial Courts under Section 19(1)
of Batas Pambansa Blg. 129, as amended by Republic Act
No. 7691. The question of whether petitioners should file
their complaint in the Regional Trial Court of Manila or
Oriental Mindoro then becomes a matter of venue, to be
determined by the residence of the parties.12

Petitioners main prayer is the annulment of the ECC. The
principal respondent, DENR Region IV, has its main office at
the L & S Building, Roxas Boulevard, Manila. Regional
Executive Director Principe of the DENR Region IV, who
issued the ECC, holds office there. Plainly, the principal
respondent resides in Manila, which is within the territorial
jurisdiction of the Manila RTC. Thus, petitioners filed their
complaint in the proper venue.

On the other hand, the jurisdiction of Regional Trial Courts
to issue injunctive writs is limited to acts committed or
about to be committed within their judicial region.13
Moreover, Presidential Decree No. 1818 (PD No. 1818)
prohibited14 courts from issuing injunctive writs against

government infrastructure projects like the mooring facility


in the present case. Republic Act No. 8975 (RA No. 8975),
which took effect on 26 November 2000, superseded PD No.
1818 and delineates more clearly the coverage of the
prohibition, reserves the power to issue such writs
exclusively with this Court, and provides penalties for its
violation.15 Obviously, neither the Manila RTC nor the
Oriental Mindoro RTC can issue an injunctive writ to stop
the construction of the mooring facility. Only this Court can
do so under PD No. 1818 and later under RA No. 8975. Thus,
the question of whether the Manila RTC has jurisdiction
over the complaint considering that its injunctive writ is not
enforceable in Oriental Mindoro is academic.

Clearly, the Manila RTC has jurisdiction to determine the
validity of the issuance of the ECC, although it could not
issue an injunctive writ against the DENR or NAPOCOR.
However, since the construction of the mooring facility
could not proceed without a valid ECC, the validity of the
ECC remains the determinative issue in resolving
petitioners complaint.

On the Alleged Patent Illegality of the ECC
Petitioners nevertheless contend that they are exempt from
filing an appeal with the DENR Secretary because the
issuance of the ECC was in patent violation of existing laws
and regulations. These are (1) Section 1 of Presidential
Decree No. 1605, as amended, (2) Sections 26 and 27 of
Republic Act No. 7160 (Local Government Code of 1991),
and (3) the provisions of DAO 96-37 on the documentary
requirements for the zoning permit and social acceptability
of the mooring facility.

Petitioners contention is without merit. While the patent
illegality of an act exempts a party from complying with the
rule on exhaustion Of administrative remedies,22 this does
not apply in the present case.

Presidential Decree No. 1605
Presidential Decree No. 1605 (PD No. 1605),23 as
amended by Presidential Decrees Nos. 1605-A and 1805,
declares as ecologically threatened zone the coves and
waters embraced by Puerto Galera Bay as protected by
Medio Island. This decree provides in part:

Section 1. Any provision of law to the contrary
notwithstanding, the construction of marinas, hotels,
restaurants, other commercial structures; commercial or
semi-commercial wharfs [sic]; commercial docking within
the enclosed coves of Puerto Galera; the destruction of its
mangrove stands; the devastation of its corals and coastline
by large barges, motorboats, tugboat propellers, and any
form of destruction by other human activities are hereby
prohibited.

Section 2. x x x

No permit for the construction of any wharf, marina, hotel,
restaurants and other commercial structures in Puerto
Galera shall be issued without prior approval of the Office of

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 92

the President upon the recommendation of the Philippine


Tourism Authority. (Emphasis supplied)

NAPOCOR claims that since Minolo Cove lies outside of
Puerto Galera Bay as protected by Medio Island,24 PD No.
1605 does not apply to this case. However, petitioners
assert that Minolo Cove is one of the enclosed coves of
Puerto Galera25 and thus protected under PD No. 1605.
This is a question of fact that the DENR Secretary should
have first resolved. In any event, there is no dispute that
NAPOCOR will use the mooring facility for its power barge
that will supply 14.4 megawatts of electricity to the entire
province of Oriental Mindoro, including Puerto Galera. The
mooring facility is obviously a government-owned public
infrastructure intended to serve a basic need of the people
of Oriental Mindoro. The mooring facility is not a
commercial structure; commercial or semi-commercial
wharf or commercial docking as contemplated in Section 1
of PD No. 1605. Therefore, the issuance of the ECC does not
violate PD No. 1605 which applies only to commercial
structures like wharves, marinas, hotels and restaurants.

Sections 26 and 27 of RA No. 7160
Congress introduced Sections 26 and 27 in the Local
Government Code to emphasize the legislative concern for
the maintenance of a sound ecology and clean
environment.26 These provisions require every national
government agency or government-owned and controlled
corporation to hold prior consultations with the local
government unit concerned and to secure the prior
approval of its sanggunian before implementing any
project or program that may cause pollution, climatic
change, depletion of non-renewable resources, loss of
cropland, rangeland, or forest cover and extinction of
animal or plant species. Sections 26 and 27 respectively
provide:

Section 26. Duty of National Government Agencies in the
Maintenance of Ecological Balance. It shall be the duty of
every national agency or government-owned or controlled
corporation authorized or involved in the planning and
implementation of any project or program that may cause
pollution, climatic change, depletion of non-renewable
resources, loss of crop land, rangeland, or forest cover and
extinction of animal or plant species, to consult with the
local government units, non-governmental organizations,
and other sectors concerned and explain the goals and
objectives of the project or program, its impact upon the
people and the community in terms of environmental or
ecological balance, and the measures that will be
undertaken to prevent or minimize the adverse effects
thereof.

Section 27. Prior Consultations Required. No project or
program shall be implemented by government authorities
unless the consultations mentioned in Section . . . 26 hereof
are complied with, and prior approval of the sanggunian
concerned is obtained: Provided, That occupants in areas
where such projects are to be implemented shall not be
evicted unless appropriate relocation sites have been

provided, in accordance with the provisions of the


Constitution.

In Lina, Jr. v. Pao,27 the Court interpreted these provisions
in this manner:

Section 27 of the Code should be read in conjunction with
Section 26 thereof x x x.

Thus, the projects and programs mentioned in Section 27
should be interpreted to mean projects and programs
whose effects are among those enumerated in Sections 26
and 27, to wit, those that: (1) may cause pollution; (2) may
bring about climatic change; (3) may cause the depletion of
non-renewable resources; (4) may result in loss of crop
land, rangeland, or forest cover; (5) may eradicate certain
animal or plant species; and (6) other projects or programs
that may call for the eviction of a particular group of people
residing in the locality where these will be implemented.

Again, Sections 26 and 27 do not apply to this case because
as petitioners admit,28 the mooring facility itself is not
environmentally critical and hence does not belong to any of
the six types of projects mentioned in the law. There is no
statutory requirement for the concerned sanggunian to
approve the construction of the mooring facility. It is
another matter if the operation of the power barge is at
issue. As an environmentally critical project that causes
pollution, the operation of the power barge needs the prior
approval of the concerned sanggunian. However, what is
before this Court is only the construction of the mooring
facility, not the operation of the power barge. Thus, the
issuance of the ECC does not violate Sections 26 and 27 of
RA No. 7160.

Documentary Requirements for ECC Applications
Under DAO 96-37, an ECC applicant for a project located
within an environmentally critical area is required to
submit an Initial Environment Examination, which must
contain a brief description of the environmental setting and
a documentation of the consultative process undertaken,
when appropriate.29 As part of the description of the
environmental setting, the ECC applicant must submit a
certificate of locational clearance or zoning certificate.

Petitioners further contend that NAPOCOR, in applying for
the ECC, did not submit to the DENR Region IV Office the
documents proving the holding of consultations and the
issuance of a locational clearance or zoning certificate.
Petitioners assert that this omission renders the issuance of
the ECC patently illegal.

The contention is also without merit. While such documents
are part of the submissions required from a project
proponent, their mere absence does not render the issuance
of the ECC patently illegal. To justify non-exhaustion of
administrative remedies due to the patent illegality of the
ECC, the public officer must have issued the ECC [without
any] semblance of compliance, or even an attempt to
comply, with the pertinent laws; when manifestly, the

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 93

officer has acted without jurisdiction or has exceeded his


jurisdiction, or has committed a grave abuse of discretion;
or when his act is clearly and obviously devoid of any color
of authority.30

RED Principe, as chief of DENR Region IV, is the officer duly
authorized under DAO 96-3731 to issue ECCs for projects
located within environmentally critical areas. RED Principe
issued the ECC on the recommendation of Amelia Supetran,
the Director of the Environmental Management Bureau.
Thus, RED Principe acted with full authority pursuant to
DENR regulations. Moreover, the legal presumption is that
he acted with the requisite authority.32 This clothes RED
Principes acts with presumptive validity and negates any
claim that his actions are patently illegal or that he gravely
abused his discretion. While petitioners may present proof
to the contrary, they must do so before the proper
administrative forum before resorting to judicial remedies.

On the Alleged Non-Compliance with the Terms of the ECC

Lastly, petitioners claim that they are justified in
immediately seeking judicial recourse because NAPOCOR is
guilty of violating the conditions of the ECC, which requires
it to secure a separate ECC for the operation of the power
barge. The ECC also mandates NAPOCOR to secure the usual
local government permits, like zoning and building permits,
from the municipal government of Puerto Galera.

The contention is similarly without merit. The fact that
NAPOCORs ECC is subject to cancellation for noncompliance with its conditions does not justify petitioners
conduct in ignoring the procedure prescribed in DAO 96-37
on appeals from the decision of the DENR Executive
Director. Petitioners vigorously insist that NAPOCOR should
comply with the requirements of consultation and
locational clearance prescribed in DAO 96-37. Ironically,
petitioners themselves refuse to abide with the procedure
for filing complaints and appealing decisions laid down in
DAO 96-37.

DAO 96-37 provides for a separate administrative
proceeding to address complaints for the cancellation of an
ECC. Under Article IX of DAO 96-37, complaints to nullify an
ECC must undergo an administrative investigation, after
which the hearing officer will submit his report to the EMB
Director or the Regional Executive Director, who will then
render his decision. The aggrieved party may file an appeal
to the DENR Secretary, who has authority to issue cease and
desist orders. Article IX also classifies the types of violations
covered under DAO 96-37, including projects operating
without an ECC or violating the conditions of the ECC. This
is the applicable procedure to address petitioners
complaint on NAPOCORs alleged violations and not the
filing of the instant case in court.

A Final Word
The Court commends petitioners for their courageous
efforts to safeguard and maintain the ecological balance of
Minolo Cove. This Court recognizes the utmost importance

of protecting the environment.33 Indeed, we have called for


the vigorous prosecution of violators of environmental
laws.34 Legal actions to achieve this end, however, must be
done in accordance with established rules of procedure that
were intended, in the first place, to achieve orderly and
efficient administration of justice.

WHEREFORE, we DENY the petition for lack of merit.

f. Tech Development Inc. v. CA
G.R. No. 94759, Jan. 21, 1991, 201 SCRA

FACTS: Technology Developers, a corporation engaged in
the manufacture and export of charcoal briquette, received
a letter from acting mayor Pablo Cruz: 1) ordering the full
cessation of its plant in Guyong, Sta. Maria, Bulacan until
further order, and 2) requesting its Plant Manager to bring
before the office of the mayor its building permit, mayor's
permit, and Region III--Pollution of Environment and
Natural Resources Anti--Pollution Permit.

Technology Developers undertook to comply with the
request to produce the required documents. It sought to
secure the Region III-Pollution of Environment and Natural
Resources Anti--Pollution Permit although prior to the
operation of the plant, a Temporary Permit to Operate Air
Pollution Installation was issued to it. Petitioners also sent
its representatives to the office of the mayor to secure a
mayors permit but were not entertained.

Eventually, the acting mayor ordered that the plant
premises be padlocked, effectively causing the stoppage of
operation. This was done without previous and reasonable
notice.

Technology Developers then instituted an action for
certiorari, prohibition and mandamus with preliminary
injunction against the acting mayor with Bulacan RTC,
alleging that the closure order was issued in grave abuse of
discretion.

The RTC found that the issuance of the writ of preliminary
mandatory injunction was proper, ordering the acting
mayor to immediately revoke his closure order and allow
Technology Developers to resume its normal business
operations until the case has been adjudicated on the
merits.

Upon MR, the Provincial Prosecutor presented evidence as
to the allegation that "Due to the manufacturing process and
nature of raw materials used, the fumes coming from the
factory may contain particulate matters which are
hazardous to the health of the people. As such, the company
should cease operating until such a time that the proper air
pollution device is installed and operational."

Reassessing the evidence, the RTC set aside its order
granted the writ of preliminary mandatory injunction. The
CA denied Technology Developer's petition for certiorari for
lack of merit.

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 94


ISSUE:W/N the acting mayor had a legal ground for
ordering the stoppage of Technology Developer

HELD: YES. The following circumstances militate against the
maintenance of the writ of preliminary injunction sought by
petitioner:

1. No mayor's permit had been secured. While it is true that
the matter of determining whether there is a pollution of
the environment that requires control if not prohibition of
the operation of a business is essentially addressed to the
Environmental Management Bureau of the Department of
Environment and Natural Resources, it must be recognized
that the mayor of a town has as much responsibility to
protect its inhabitants from pollution, and by virtue of his
police power, he may deny the application for a permit to
operate a business or otherwise close the same unless
appropriate measures are taken to control and/or avoid
injury to the health of the residents of the community from
the emissions in the operation of the business.

2. The Acting Mayor called the attention of petitioner to the
pollution emitted by the fumes of its plant whose offensive
odor "not only pollute the air in the locality but also affect
the health of the residents in the area," so that petitioner
was ordered to stop its operation until further orders.

3. This action of the Acting Mayor was in response to the
complaint of the residents of Barangay Guyong, Sta. Maria,
Bulacan, directed to the Provincial Governor through
channels.

4. The closure order of the Acting Mayor was issued only
after an investigation was made by Marivic Guina who in
her report observed that the fumes emitted by the plant
goes directly to the surrounding houses and that no proper
air pollution device has been installed.

5. Petitioner failed to produce a building permit from the
municipality of Sta. Maria, but instead presented a building
permit issued by an official of Makati on March 6, 1987.

6. While petitioner was able to present a temporary permit
to operate by the then National Pollution Control
Commission on December 15, 1987, the permit was good
only up to May 25, 1988. Petitioner had not exerted any
effort to extend or validate its permit much less to install
any device to control the pollution and prevent any hazard
to the health of the residents of the community.

Court takes note of the plea of petitioner focusing on its
huge investment in this dollar-earning industry. It must be
stressed however, that concomitant with the need to
promote investment and contribute to the growth of the
economy is the equally essential imperative of protecting
the health, nay the very lives of the people, from the
deleterious effect of the pollution of the environment.

The well-known rule is that the matter of issuance of a writ


of preliminary injunction is addressed to the sound judicial
discretion of the trial court and its action shall not be
disturbed on appeal unless it is demonstrated that it acted
without jurisdiction or in excess of jurisdiction or
otherwise, in grave abuse of its discretion. By the same
token the court that issued such a preliminary relief may
recall or dissolve the writ as the circumstances may
warrant. Petition denied.

-----------------------------------------------------------------------------
FOR APRIL 11:

1. Armed Conflict and the Environment: Legal
Perspective [PLJ Vol. 81 Feb 2007, p. 377-389]
by Amado S. Tolentino Jr.

Armed conflict or wars endanger or damage the
environment in ways or forms such as the long-lasting
chemical pollution on land, maritime, and atmospheric
pollution, despoliation of land by mines and other
dangerous objects, and threats to water supplies and
other necessities of life.

Scorched earth policy a method used in war where
fields are burned and wells are poisoned

Since the inception of modern warfare, multilateral
treaties and international organizations have attempted
to create and implement legal provisions addressing the
growing problem of environmental damage resulting
from armed conflict. Unfortunately, international
acceptance and enforcement of such provisions has
arrived only in incremental responses to the horrors of
previous wars.

This is an attempt at summarizing the international law
of war vis--vis the environment, at the same time
exposing the many deficiencies of the legal framework
addressing the environmental consequences of war.
Emerging approaches culled from international
consultations are likewise covered to invite attention to
possibilities at preventing or minimizing damage to the
environment in times of armed conflict.

THE EXISTING LAW

From the standpoint of customary law:

- environmental protection during wartime may be
inferred from the general protection of the civilian
population and property based on the fundamental
rule expressed in the 1868 Declaration of St.
Petersburg that military actions by states should be
limited to the objective of weakening military force
of the enemy.

In theory:

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 95

general principles of due diligence and the


precautionary principle in field of environmental
protection are tempered with principles applied in
the law of war [principles of necessity,
proportionality, discrimination, and humanity]


ENVIRONMENTAL
PRINCIPLES

PRINCIPLES OF WAR


1. DUE DILIGENCE
- aka Good
Neighborliness
- where the sovereign right
to exploit own resources
entails responsibility to
ensure that the activities do
not cause damage to other
states or areas beyond
jurisdiction.


1. NECESSITY
- w/n the act of war to be
done is necessary in order
to achieve a legitimate
military advantage

2. PROPORTIONALITY
-w/n the advantage sought
by the necessary action
outweighs the anticipated
collateral damage


2. PRECAUTIONARY
3. DISCRIMINATION
PRINCIPLE
- w/n the chosen weapon

or tactic sufficiently
- that in order to protect the discriminates between
environment, the
military and civilian
precautionary approach
objects; or between
shall be applied: where
combatants and non
there are threats of serious combatants
or irreversible damage, the
lack of full scientific
4. HUMANITY
certainty shall not be used
- w/n the act causes
as a reason of postponing
unnecessary suffering to
cost-effective measures to
the victim
prevent environmental

degradation
-w/n minimal force is

used to achieve enemy
submission

Objective of ENVIRONMENTAL PRINCIPLES: to prevent
invention of new and more destructive weapons of war
thereby anticipating and preventing damage to the
environment.

Principle 24 of the UN Declaration on Environment and
Development states: Warfare is inherently destructive of
sustainable development. States shall therefore respect
international law providing protection for the environment
in times of armed conflict and cooperate in its further
development as necessary.

Martens Clause in cases not covered by specific
provisions, civilians and combatants remain under the
protection and authority of:
1. principles of war [necessity/proportionality
/discrimination/humanity]
2. principles of international law derived from
established customs
3. principles of humanity
4. dictates of public conscience


2 major groups of international conventions which
protect the environment during wartime:

a. Geneva Conventions [Switzerland] a body of
treaties governing the behavior of belligerents and
provides varying degrees of protection of
combatants, prisoners of war, civilians and their
property, and cultural property
Composed of:
a. 1976 Convention on the Prohibition of
Military and Any other Hostile Use of
Environmental Modification Techniques
[ENMOD] where the natural environment is
deliberately manipulated to cause destruction
- example: altering weather patterns,
earthquake modification, ocean current
modification to create tidal waves, river
diversion, destruction of a dam
b. 1977 Additional Protocol [Protocol I] with
ENMOD, applies to international wars
- placed great emphasis on objects necessary to
the survival of civilian population including
civilian infrastructures such as power plants
and water treatment facilities
c. 1977 Additional Protocol to the Protection
of Victims in Non International Armed
Conflicts applied to internal conflicts

b. Hague Convention [Netherlands] governed
weapons which sought to ban weapons that cause
unnecessary suffering pursuant to the right of
Parties in armed conflict to choose methods or
means of warfare is NOT unlimited.
Conventions:
1. Convention IV Respectng the Laws and Customs of
War on Land with Annex of Regulations [1907]
2. Protocol for the Prohibition of the Use in War of
Asphyxiating, Poisonous, or other Gases, and
Bacteriological Methods of Warfare [1925]
3. Convention on the Prohibition on the Development,
Production, Stockpiling of bacteriological
(Biological) and Toxin Weapons and their
Destruction [1972]
4. Convention on the Prohibitions and Restrictions on
the Use of Certain Conventional Weapons which
may be Deemed to be Excessively Injurious or to
have Indiscriminate Effects (1980)
5. Convention on the Prohibition on the Development,
Production, Stockpiling, and Use of Chemical
Weapons and on their Destruction [1993]
- restricted weapons included:
o exploding munitions
o poisonous gas
o chemical and biological weapons
o blinding lasers
o land mines
- while most are designed to target humans, many
bring about environmental consequences [i.e.

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 96

chemical contents can persist in the ecosystem and


disrupt the food chain.]

1954 Hague Convention on the Protection of Cultural
Property in the Event of Armed Conflict sets up a
comprehensive regime including the triple use of the
distinctive blue and white emblem for marking cultural
property under special protection [not been fully utilized in
contrast with Red cross marking which affords protection to
areas marked as such]

1972 Convention for the Protection of the Worlds
Cultural and Natural Heritage imposes a duty to refrain
from deliberate activities harming designated sites but does
not create a regime to protect sites of biological diversity
import during armed conflict.

DEFICIENCIES AND CURRENT CHALLENGES

Like the rest of international law, international
humanitarian law has been slow in providing the
environment with a set of rules of law specific to it. Thus,
the word environment does not even appear in the Geneva
Conventions [1949] and Hague Conventions [1907]

To be able to comply, it is necessary to clarify and interpret
the scope and context of some of those rules:
1. what constitutes widespread, longterm, and severe
damage to the environment?
2. Defining with certainty the threshold of application
of the rules, the need for a clear decision regarding
the applicability in wartime of provisions of
international environmental law, and the
advisability of setting up a mechanism to sanction
breaches thereof.

Cases in point:
1. Kosovo conflict a fertilizer, oil refinery and
petrochemical complex in Pancevo was deliberately and
repeatedly bombed since NATO claimed that in addition to
making products for purely civilian consumption, the
complex supplied gasoline and other essential materials to
the Serb army and was therefore a legitimate military target
- the Danube River was also poisoned as a result of the
bombing of such industrial facilities

2. Yugoslavia filed a case before the ICJ against NATO
alleging breaches of:
a. obligation NOT to cause considerable environmental
damage
b. obligation NOT to cause far-reaching health and
environmental damage
c, obligation NOT to use prohibited weapons
- however, upon objection of US and Spain, ICJ did not
acquire jurisdiction over the case.
- NATO asserted that military advantage outweighed the
incidental human and environmental loss
- ICJ opined [despite dismissing the case] the court is
profoundly concerned with the use of force in

Yugoslavia under the present circumstances such use


raises very serious issues in international law.

3. GULF Wars US and coalition forces devastated Iraqi
factories and refineries, employing the same necessity and
justification, dropped millions of cluster bombs.

4. Vietnam War show what could happen when defoliation
was not implemented to destroy forests per se but was a
strategy used to eliminate cover for enemy fighters in jungle
areas [As per Amb. Tol: enemy used harmful gas to lure
Vietnamese out of the jungles, only to fail because of the
elaborate tunnels used since the Vietnamese were hiding
underground]

The experience in many armed conflicts demonstrate the
NEED FOR SPECIAL PROTECTION OF THE CULTURAL
ENVIRONMENT, such as monuments and other immovable
cultural property during hostilities. For this reason, there is a
provision in the 1954 Convention for the Protection of
Cultural Property in the Event of Armed Conflict for the
marking of cultural property with a special emblem
best example: VATICAN CITY which allows the military to
take all necessary measures in times of peace or during
conflict to protect it.

Current deficiency with regard to the prohibition of hostile
military activities in natural sites or protected areas referring
to natural or cultural areas of outstanding international
significance from the point of view of ecology, history, art,
science, ethnology, anthropology, or natural beauty which
include areas designated under international agreement or
inter-governmental programme which meets the criteria.

Listings of natural and cultural areas of outstanding
international significance exists under:
1. 1971 Ramsar Convention on Wetlands of International
Significance [Ramsar List]
2. 1972 Convention on the Protection of World Cultural
and Natural Heritage [World Heritage Sites]

- Their protection in times of armed conflict entails :
a. the preparation of detailed maps
b. elaboration of materials on international heritage
protection during armed conflict for dissemination
c. formulation of guidelines for military manuals to make
protected areas free of weapons
*** In order to afford the protection, the state involved in the
exercise of territorial sovereignty SHOULD NOT maintain
military installations or military activities in the protected
areas.

AN EMERGING NEW APPROACH

DRAFT CONVENTION on the Prohibition of Hostile
Military Activities in Internationally Protected Areas
- an initiative of the International Council on Environmental
Law (ICEL) and International Union for the Conservation of
the Natures Commission on Environmental Law (IUCN-CEL)
Articles mentioned:

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 97

Art. 2 - Each resolution adopted by the Security Council to


take action under Chapter VII of the Charter, in response to
a situation of armed conflict shall include a list of the
relevant internationally protected areas, thereby designated
as non- target areas in which all hostile military activities
shall not be permitted during the armed conflict in question

Art. 3 Any internationally protected area, .. shall cease to
enjoy such protection when the State Party in whose
territory the area is situated:
a. maintains military installations of any kind within of
the area in question
b. decides to use the area in question to carry out any
military activities during armed conflict

- Art 3 strives to make the area protected uninteresting for
the military so as not to be targeted by military operations.

Measures to increase the effectiveness of legal norms and
proposals to ensure better development of environmental
protection in times of armed conflict recommended:

FIRST the lists of currently designated cultural and
natural sites [Ramsar List and World Heritage Sites; UN
list of Parks and Protected Areas; UNESCO Biosphere
Reserve Systems] be reviewed to establish priorities,
taking into account the need for protection of relevant sites
in times of armed conflict

SECOND - sufficiently detailed maps showing specifically
the location and extent of designated cultural and natural
sites should be prepared for each area and provided to all
military and civilian authorities worldwide.
- model provisions for military manuals on the protection
of designated cultural and natural sites should also be
prepared

THIRD a distinctive emblem should be used for natural
site for identification and protection [blue and white
emblem designated for cultural sites must be extended to
natural sites as well]

FOURTH the UN Secretary General, should address the
need to identify and protect designated sites as soon as the
threat to peace and security is determined, where such
sites which could be affected must be communicated to
members of the Security Council and authorities in the
area concerned.

FIFTH - all designated cultural and natural sites should be
considered analogous to demilitarized zones [DMZ]
similar to those under Art. 60 of Protocol I and such sites
should not be used for military activity

SIXTH States should provide continuing education of
senior military personnel and senior civilian officials
in the field of protection of designated cultural and natural
sites in times of armed conflict

FINALLY [SEVENTH] - States should be encouraged to


enter into bilateral agreements on the establishment of
international parks and protected areas in transboundary
locations and for the joint protection of habitats, to enter
into other bilateral and regional agreements to enhance
protection of such parks and protected areas in times of
armed conflicts.

Suggestions on the protection of the environment in
general in times of armed conflict:
1. any new instrument concerning the protection of the
environment in times of armed conflict should be
based on the concept that the environment per se
should be protected

2. further international and national measures to prevent
harm to the environment should be developed. In
particular, 2 lists should be prepared:
a. a catalogue of human activities with hostile
purposes injurious to the environment.
- list of hostile acts would include:
o intentional attacks on the environment
o manipulation of natural processes causing
environmental damage
o significant collateral damage to the
environment
b. A registry of all protected areas should be
completed

3. States should revise and update military procedures in
order to ensure protection of the environment to the
fullest possible extent in times of armed conflict
necessitates a reconsideration of traditional targets;
sites which although not inherently dangerous, are
essential to human health or the environment should
NOT be military targets.

4. UN to establish a system of emergency preparedness
to protect the environment in times of conflict

5.

Damage, actual or potential, and restoration should


include all reasonable measures to reinstate or restore
damaged or destroyed components of the environment
equivalent to those impaired or lost. Compensation
shall be required if restoration is not possible.


MOST DIFFICULT ISSUE IN CONFRONTING THE
COMMUNITY OF NATIONS IN REGARD TO PROTECTION OF
THE ENVIRONMENT IN TIMES OF ARMED CONFLICT
How to impose the law against powerful nations [ US vs.
Vietnam, Russia vs. Afghanistan, Allied forces in Gulf War
and Kosovo]
----------------------------------------------------------------------------
FOR APRIL 18:
2. A World Tribunal to Protect the Environment?
Premises, Opportunities, Obstacles [PLJ Vol. 79, 4,
February 2005] by: Amado S. Tolentino Jr.


A WORLD TRIBUNAL TO PROTECT THE ENVIRONMENT?

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 98

PREMISES, OPPORTUNITIES, OBSTACLES


(Amado S. Tolentino, Jr.)

The development of international environmental law has
been accelerated by the emergence of disputes due to
numerous physical, economic, social and political factors.
These are:

Danger of climate change, ozone layer reduction, transborder air pollution, waste disposal in bodies of water and
on land, transport of hazardous waste, location of
dangerous industries (esp. in undeveloped countries),
desertification, deforestation, drought, destruction of plant
and animal genetic resources, genetically modified
organisms, nuclear accidents, accidents at sea, and the
exploitation of the seabed and the Antarctic.

The international community was appalled by a series of
environmental disasters. Some of the notable ones are:

a) 1967 Torrey Canyon oil spill off Cornwall;
b) 1976 Seveso chemical plant accident in Italy;
c) 1984 Bhopal chemical plant accident in India;
d) 1988 Sandoz chemical plant accident in Switzerland;
e) 1978 Amoco Cadiz oil spill off Brest;
f) 1986 Chernobyl nuclear plant accident in Russia;
g) 1989 Bahia Paraiso oil spill in the Antarctic;
h) 1989 Exxon Valdez oil spill off Alaska; and
i) 1991 and 2004 burning of oil wells in the Gulf Area,
among others.

Common characteristics of these environmental risks are:
globality, interdependence, indivisibility, the lack of
transparency and access to information, dearth of
participation, and access to justice.

As early as 1988, a committee was formed in Rome, now
known as the international Court of the Environment
Foundation (ICEF), as a private initiative to examine the
subject. The committee came out with a proposal on the
creation of an International Court of Environment (ICE) --
endowed with an exclusive, specialized and international
competence in the field of environment and empowered to
implement international law to guarantee a right of access
to individuals to protect their human right to the
environment -- as a new and permanent body separate from
the International Court of Justice in Hague. The ICE could
undertake advisory, investigative and conciliatory
functions.

PRINCIPLE OF UNIVERSALITY VIS--VIS TERRITORIAL
SOVEREIGNTY

The enforcement of environmental regulations depends on
the sovereignty of States and different national regulations,
and these are not subject to a compulsory higher authority.

The current structure of international law is characterized
by the principle that States do not recognize authorities as
higher than their own. The principle does not seem to be

ideally positioned to guarantee balanced management of the


environmental problems in the context of international law.
These problems are objectively international, and, in some
cases, are even outside the control of States. IN FACT, even
States themselves cannot control manmade environmental
phenomena such as greenhouse effect, the ozone hole, and
transborder pollution. These phenomena require
international cooperation, common decisions, and new
rules and procedures for the application of real sanctions.
Only new organizations can confront the environment at the
global level, providing new approaches to control
phenomena, to prevent new sources of pollution, to
equitably manage common resources, and to apply
sanctions, where necessary. The principle of universality
should apply since problems of a universal nature should be
addressed at the same level.


Some argue that an international tribunal dealing with
environmental issues would create a threat to state
sovereignty. While it is true that states are unwilling to
discuss the principle of territorial sovereignty, it is also true
that the environment is an issue that cannot be solved
within the well-defined space of an individual States
sovereignty. In fact, in a very broad sense, a States territory
is the issue as the quality of its natural and human resources
are concerned. Therefore, the principle of territorial
sovereignty us not refuted, but must adapt to new demands.
Otherwise, territorial sovereignty will be left without any
true meaning as environmental threats respect no States
borders. States would have already lost their sovereignty, as
a single State is unable to defend its ecology on its own.

Thus, we should strive towards new concept of national
sovereignty, which stresses both a States Constitutional
independence and mutual restrictions on political
independence made necessary by the international
communitys requirements. The 1972 Stockholm
Declaration on the Environment and the 1982 World
Charter for Nature provide examples of recognition of an
obligation of a sovereign state towards its own people in
relation to permanent sovereignty over natural resources.

PRIORITY ISSUES

Two points vital to the creation of an International Court of
the environment:
a.)
the individual as subject of international law; and
b.)
the place of the human right to the environment in
international law.
Currently the question of whether an individual can be a
subject of international law has been met with negative
response, but its clear that this position will change under
the influence of numerous, interdependent factors. An
example of these factors is the enormous increase in world
population, which is already not manageable in the current
state. Other possible factors include the bureaucratic
structure of international society because migratory
movements are explosive and spontaneous, the limited
resources available in terms of energy, and the phenomenon

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 99

of planetary pollution. Bearing these and other factors in


mind, how can international law remain oblivious to the
individual this 21st century?

Society as a whole will have to strike new balances and find
common basis for the respect of human right, including the
right to the environment that would place the individual
rather than States at the forefront. Right now, supranational
tribunals like the European Court of Human Rights (ECHR)
is Strasbourg provide judicial redress to individuals.
Through its 1994 landmark decision in the Lopez-Ostra
case, this Court opened the door for the protection of
human rights against nearly all sources of environmental
pollution. Briefly, some members of the Gregoria LopezOstra family suffered from nausea, vomiting, allergic
reactions, bronchitis and anorexia due to emissions from a
waste treatment plant built by the government in Lorea, in
Murcia, Spain, just twelve meters from the Lopez-Ostra
house. She filed with the Administrative Division of the
Murcia Audencia Territorial, the Supreme Court and the
Constitutional Court, to no avail.

Afterwards, she submitted a complaint to ECHR, alleging
inaction by the local authorities violated her rights under
the European Convention by the Local authorities violated
her rights under the European Convention on Human
Rights, namely protection of private life and family life and
claimed compensation. The court unanimously held that the
pollution from the plant and Spains inaction violated the
Conventions article 8. It explained that States have the
positive duty to secure rights under this article and a
negative duty to stop official interference. The progressive
decision provides a most comprehensive individual right to
environmental protection and stimulates the discussion on
the existence of a human right to a decent environment.

Structurally, international law will recognize a more
articulate group of legal subjects: individuals, state
communities, regional communities such as European
Union, and new international organizations. From the point
of view of norms, it can readily be anticipated that the
number of international conventions will grow to meet new
problems such as those posed by the environment. Above
all, the contents of these conventions will impose on states
an increasing duty of service towards the international
community and will allow States less recourse to claims of
sovereignty.

The questions asked is whether international law
recognizes the right to the environmental as a fundamental
right of every person. To answer this question, a careful
examination is required of customary law, treaty norms and
constitutional norms. The constitutional norms in many
states already recognize the individuals right to the
environment, and provide indirect evidence of communis
opinio. What is even more significant is that in these States,
it captured attention at the grassroots level of even the
smallest communities.

The first identification of the human right to a healthy


environment appeared in the United Nations Declaration on
the Human Environment, or the Stockholm Declaration. Its
Principle 1 states:

Man has the fundamental right to freedom, equality and
adequate conditions of life, in an environment of a quality
that permits a life of dignity and well-being, and he bears a
solemn responsibility to protect and improve the
environment of present and future generations.

Some legal experts are in quandary regarding the content,
effect and enforcement of such a human right. There are
those who regard the right to a healthy environment as an
independent right, which imposes obligations upon
individual states and the world at large. Others view the
same part of universally recognized rules which dictate that
States are not allowed to contract out of, or jus cogens
norms, per the Vienna Convention on the Law of Treaties
and international customary law on the assumption that the
right has been accepted by the World community. Still
others regard environmental rights as belonging to the grey
area between a political guideline and a rule of law, simply
stated: a law in the making.

From the human perspective, the human right to a healthy
environment could be viewed as a portion of the rights to
life and to dignity. For indigenous people, it means the right
to a living. It could also be regarded as the means to combat
environmental deterioration as far as it threatens human
life.

Noticeably, the right to a healthy environment is not
mentioned in the Universal Declaration on Human Rights.
However, it should be borne in mind that the Stockholm
Declaration is considered an authentic interpretation of the
notion of human rights embodied in the UN Charter. Thus, it
provides the minimum standard for the moral duty of
States. Furthermore, the UN Commission on Human Rights
has put it on record that:

State parties to the International Covenant on Economic,
Social and Cultural Rights, reorganized the right of everyone
to the enjoyment of the highest attainable standard of
physical and metal health and agreed, for the purpose, to
take steps necessary for the improvement of all aspects of
environmental and industrial health.

A very interesting interpretation is the one drawn from the
preamble of the 1982 World Charter for Nature:

Every form of life is unique, warranting respect regardless
of its worth to man
This statement has led to the issue of awarding rights to
subjects other than man, and has granted legal standing to
natural entities such as rivers and mountains, and the right
of species to survive.

Nevertheless, the best interpretation is the one which
regards the environmental right as a traditional human

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 100

right to be guaranteed by the State. This is the


interpretation used by the Philippine Supreme Court in
Oposa v Factoran where due recognition was given to the
standing of minor citizens for the environmental right as an
inter-generational right. The Supreme Court said that while
right to a balanced and healthful ecology is guaranteed by
the Philippine Constitution, it need not be actually written
in the fundamental law of the land as it is assumed from the
inception of humankind. If it is so written, it is because of
the:

well founded fear of the framers that unless the right to a
balanced and healthful ecology and to health are mandated
as state policies by the Constitution itself the day would
not be too far when all else would be lost not only for the
present generation but also for those to come generations
which stand to inherit nothing but parched earth incapable
of sustaining life.

It must further be recognized that the environment now
receives a complex legal treatment throughout the world at
various levels. Environmental law attracts great attention
because it can be found in all organs that have the
responsibility for the environmental protection, as can be
shown by one established fact: the rights-duties of
environmental protection are exercised by existing
institutions, in particular, by lawmaking bodies, executives
and the judiciary in individual states, although with varying
zeal and effectiveness.

Individuals are not considered the mere beneficiaries but
rather active proponents of environmental protection. This
explains the existence of procedural rules which confer
upon individuals the right-duty to information, participation
and standing in legal proceedings. Environmental law and
the right to the environment are intimately connected
because, as world-renowned French environmental law
Professor Alexander Kiss observed, The first is the
guarantee for the exercise of the latter.

The environment as a human right also finds an indirect
legal basis in conventions, instruments, written accords, and
in the written record of meetings on the environment
between states and other international subjects. This
written normative framework embraces well over 199
international instruments on the environment.

Lastly, the classic customary rule announced in the Trail
Smelter case and Corfu Channel found its place in
international law at the 1972 UN Stockholm Conference on
the Environment. In particular 21 says:

States have the sovereign right to exploit their own
resources pursuant to their own environmental policies,
and the responsibility to ensure that activities within their
jurisdiction and control do not cause damage to the
environment of other States or of areas beyond their
national jurisdiction.

III. ACCESS TO ENVIRONMENTAL JUSTICE


As proposed, the following parties may appear before the
International Court of the environment:
a) Individuals;
b) Non-governmental organizations and environmental
associations;
c) States;
d) Supranational organizations such as the European
Union; and
e) International organizations under the UN and the
individual organs of the UN.

Of relevance is the fact that, to date, the International Court
of Justice has declined to submit decisions by UN organs to
judicial review. International organizations are not
accountable in law and do not exercise powered
independently of their member states. How can the World
Bank, for example, be held legally accountable for it
participation in an oil and pipeline project were to result in
environmental harm? In connection, take note than in
recent times, international financing institutions such as the
International Monetary Fund and regional development
banks have become the object of ire of nongovernmental
organizations (NGOs), and even some government arms,
due to development projects perceived as destructive of the
environment.

At present, international organizations, environmental
associations, NGOs and potentially affected individuals are
not granted direct access to the ICJ. Only States have direct
access and not the individuals who are the direct victims of
environmental destruction. While it is commonly known
that States themselves may commit or tolerate
environmental crimes, it is advisable and realistic to work
towards strengthening international judicial guarantees for
effectively protecting the rights of the individual to a
healthy and undisturbed environment.

The international community must be aware that a proper
international court exists where they can make their claims
apart from a higher authority responsible for its
management, supervision and control. That proposed
higher authority can exist in the form of the proposed
International Environment Agency. Further, the evolution of
the concept of environmental crime, the widening of liability
law for environmental damages, and the application of the
Polluter Pays Principle could make a new court necessary.
Supplementary arguments are the jurisdictional deficiencies
in different state systems, the social and ethical need for
environmental justice and the educational role of such an
institution. Last but not the least, an international court for
the environment ould be able to focus special attention on
areas outside the jurisdiction of individual states. For
example, such a body could concentrate on the urgent
problems of protecting the global commons.

Critics may point out that the ICJ established a Chamber for
environmental matters in 1993. Nevertheless, it is
unrealistic to expect that tribunal to extend legal access to
private parties or political action groups because States

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 101

are inherently reluctant to relinquish sovereignty and


expose themselves to legal proceeding.

Another institution, the Permanent Court of Arbitration
(PCA), is also mentioned as a possibility in resolving
environmental disputes. But as the jurisdiction of the PCA is
not compulsory, its competence can be derived only from an
agreement to arbitrate, or an agreement submitting an
existing dispute to arbitration.

III. ARGUMENTS AGAINST THE CREATION OF AN
INTERNATIONAL COURT OF THE ENVIRONMENT

The proliferation of international adjudicatory bodies leads
to the enumeration of arguments against the creation of a
world court on the environment. At the global level, the ICJ,
the Appellate Body of the World Trade Organization, and
the Tribunal of the Law of the Sea have handed down
decisions in disputes related to protection of the
environment. Other forums include the ICJ Environment
Chamber and the Permanent Court of Arbitrations
Environment Facility. Arbitral procedures are also available
to settle disputes like the arbitral tribunal which may be set
up under article 27(3)(a) of the Conventions on Biological
Diversity and special bodies such as the United Nations
Compensation Commission which may rule on cases
involving international environmental law. Likewise,
regional forums such as RCHR, the Inter-American Court of
Human Rights, and the Court of Justice of the European
Community have decided on cases relating to international
environmental law.

It can thus be said that existing courts and tribunals are, or
may be made well-equipped, to consider cases on
environmental issues. Moreover, disputes concerning
international environmental law also involve other aspects
of international law. For instance, multilateral
environmental agreements often provide for trade-related
instruments to be implemented with special consideration
for the interests or rights of particular groups such as
indigenous people. A dispute that may arise under an
environmental treaty may also be defined in terms of a
dispute under other treaties, such as the UN Convention on
the Law of the Sea. So what kind of international
environmental dispute would be handled by an
international court for the environment when several other
areas of international law such as international water law,
human rights law, fisheries law, trade law, and international
law related to the use of force are involved?

Such a situation is illustrated by the Fisheries Jurisdiction
case (Spain v. Canada), a suit brought by Spain against
Canada before the ICJ. Canada arrested a Spanish fishing
vessel on the high seas based on the argument that the
vessel was illegally fishing in that area contrary to Canadian
law and international fisheries conservation obligations
applicable to the European Community. Canada further
alleged that marine biological diversity was being
threatened by Spains fishing activities. The European
Community and Spain, on the other hand, argued that the

international conservation obligations did not apply to the


fishing activities complained of and that Canada had acted
illegally in arresting the vessel.

The question here is whether the dispute involves
international resources law, international fisheries law,
international environmental law, or international law
related to the conservation of biological diversity. Spain
presented the case to ICJ for infringement of its rights as a
flag state, an aspect that was also part of the overall dispute.
ICJ ruled it had no jurisdiction to consider the merits of the
case. Nevertheless, it cannot be denied that the above areas
of law would have influenced a decision had the ICJ
assumed jurisdiction. Assuming that such a case is
submitted before an international environmental court,
what is the assurance that is has sufficient expertise to
cover all these other aspects of international law? Would it
thus not be better if existing tribunals instead be provided
with sufficient expertise in international environmental
law?

There is the argument that the proliferation of international
courts and tribunals risks fragmentation in the international
legal system. For instance, the ICJ, tin Reservations to the
Convention on Genocide, held that a State that makes a
declaration containing a reservation to which another State
party to the Genocide Convention objects can be considered
a non party to that Convention vis--vis the objecting state,
thereby preventing the declaration from having a legal
effect. The ECHR, however, ruled in the celebrated case of
Loizidou v. Turkey that the declaration by Turkey on the
Courts jurisdiction, which contained a reservation
regarding the non-application of the Convention to the
northern part of Cyprus, was valid with respect to the
jurisdiction of the court but void with regard to the
reservation. The ECHR awarded Greek-Cypriot refugee
Titana Loizidou USD 1.3M, which the Turks agreed to pay,
for obstructing Loizidous access to her home by its
occupation in the north. Turkey may have to pay millions
more in similar cases.

Some practitioners and academicians propose frequent
consultations among the members of the different tribunals
to allay fears about fragmentation of international law. The
ICJ should likewise develop an active judicial body not only
of the UN, but of the entire international legal system as
well. Moreover, multiplicity of international forums permits
a degree of experimentation and exploration which can lead
to improvements through integration of positive resuls in
the body of international law.

Examples of experimentation and exploration that could
introduce changes in the international legal system include,
first, the non-compliance or compliance procedure
established or in the process of being established within
multilateral environmental agreements. The Kyoto Protocol
on Climate Change goes a step further by proposing to
establish an enforcement branch that could take decisions
with legally binding consequences as part of the noncompliance procedure for the Protocol.

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 102


Second, the Permanent Court of Arbitrations Environment
Facility could result in increased confidence in the PCA as a
venue for settling disputes involving international
environmental issues. One notes the PCAs rules on
international arbitration where only one party is a State,
and similar rules for disputes involving intergovernmental
organizations and States and international organizations
and private parties.

Finally, the establishment of the Inspection Panel by the
World Bank and similar units by other development banks
such as the Asian Development Bank and the InterAmerican Development Bank could translate factual
relationships that exist between individuals and groups and
an international body into a legal relationship and enable
them to hold the organization accountable. The
International Monetary Fund will likewise be establishing
an Independent Evaluation Office.

---------------------------------------------------------------------------

SUPPLEMENTING SOURCES BY AMB. TOLENTINO

a. PROBLEM AREAS, ISSUES AND CONCERNS IN THE
IMPLEMENTATION OF ENVIRONMENTAL LAWS
*** CONSIDER FOR FINALS: THINK OF MEANS OF HOW TO
SOLVE SUCH ENVIRONMENTAL CONCERNS

Barriers to Compliance
Factors Motivating
and Factors Encouraging
Compliance
Non-compliance
Economic
- desire to avoid a penalty
- lack of funds
- desire to avoid future
- greed/desire to achieve
liability
competitive advantage
- desire to save money by
- compelling demands for
doing more cost-efficient
resources
and environmentally

sound practices
Social / Moral
- moral and social values
-lack of social respect for the
for environmental
law
equality
- lack of public support for
- social respect for the law
environmental concerns
- clear Governmental will
- lack of governmental
to enforce environmental
willingness to enforce
laws



Personal
- positive personal
- fear of change
relationships between
- inertia
program personnel and
- ignorance about
facility managers
requirement
- desire on the part of the
- ignorance about how to
facility manager to avoid
meet the requirement
legal process

- desire to avoid jail, the

stigma of enforcement
and adverse publicity
Management
- jobs and training
- lack of internal
dedicated to compliance
accountability for
- bonuses or salary
compliance
increase based on
- lack of management
environmental
systems for compliance
compliance
- lack of compliance training
for personnel
Technological
- availability of affordable
- inability to meet
technology
requirements due to lack
of appropriate technology
- technologies that are
unreliable or difficult to
operate

b. MEA Negotiation

- Bilateral treaties are negotiated at ministerial or
government-to-government level

- Multilateral Treaties are often negotiated at diplomatic
conferences convened by:

1. an international organization (UN) or one of its
agencies (UNEP)
2. at invitation by a state


Depositary
Secretariat
- notes signatures
- day-to-day administration
- receives instruments of
of the treaty regime
ratification, acceptance
- receive reports from CP on
or accession
implementation and
- maintains list of all the
infringement
status of CP and
- convening annual
signatories
meetings or special
- amendments made to the
meetings on specific issues
treaty
or review meetings


c. MAJOR GLOBAL ENVIRONMENTAL INSTRUMENTS
[EXCLUDING MARINE ENVIRONMENT]

1971 - RAMSAR Convention on Wetlands of International
Importance [Ramsar Convention]
1972 - Convention Concernin the Protection of the World
Cultural and Natural Heritage [World Heritage
Convention]
1972 - Declaration of the United Nations Conference on the
Human Environment
1973 - Convention on International Trade in Endangered
Species of Wild Flora and Fauna [CITES]
1979 - Convention on the Conservation of Migratory
Species of Wild Animals [Bonn Convention]

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 103

1985 - Convention for the Protection of the Ozone Layer


and 1987 Montreal Protocol [Ozone Convention and
Montreal Protection]
1989 - Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal
[Basel Convention]
1992 - Rio Declaration on the Environment and
Development
1992 - Agenda 21 [UNCED, 1992]
1992 - Convention on Biological Diversity [Biodiversity
Convention]
1992 - United Nations Framework Convention on Climate
Change [Climate Change Convention]
2001 - Stockholm Convention on Persistent Organic
Pollutants [POPs]

d. Biosphere Reserves Linkages with Select Multilateral
Environmental Agreements



Wetlands 1971

Ramsar
Convention

Desertiication
1994
Convention to
combat
desertiication

World Heritage
1972
Convention
Biosphere
Reserves &
Multilateral
Environmental
Agreements



Climate Change
1972 Rio
Convention

Migratory
Species of Wild
Animals 1979
Bonn
Convention

1992 Biological

Diversity
Convention``






e. Legislations in Compliance by ASEAN Countries in
Environmental Laws

SINGAPORE considered most rule conscious among
ASEAN
Regulates system permits; license mandatory rec
~system of inspection warnings (e.g factories required to
have anti-pollution equipment)
~consultation prior prosecution
~creativeness in littering (w/ vest to clean; seminar; media)


INDONESIA
Compliance strategy is:

~conciliatory in style and not penal in style ( in envi law,


there is harm to the environment as there is harm to people,
contrary to penal principle of an eye for an eye)
~use tripartite team for mediation (one representative from
the gov't, the factory, and the community)
~severe warnings, temporary suspension, revocation

MALAYSIA
~provision on environmental audit (they audit themselves
like what environmental procedure is taken and etc.)
~multiple increase; fines (more discretion is given to the
court)

-----------------------------------------------------------------------------
CONSIDER THE FF QUESTIONS FOR FINALS:
1. Provide Laws where PH provides for implementation
of RAMSAR Convention
2. PRINCIPLE OF PRIOR INFORMED CONSENT
3. What is a protocol?
4. What is the role of Arbitration in peaceful way of
settling disputes;
5. What is EEZ?;
6. Principle of common heritage of mankind
7. Management of High Seas re UNCLOS [areas beyond
national jurisdiction/areas]
8. Relate IPRA with CBD;
9. Distinguish between National Cultural Treasure and
Important Cultural Properties
10. PRECAUTIONARY PRINCIPLE
11. Convention on Biodiversity vs. Intellectual Property
Rights
12. Exhaustion of Administrative Remedies in
Environmental Law suits
13. What are national legislations passed to implement
Environmental MEA/Treaties
14. ASEAN ENVI LAW re: Transboundary Haze, Disaster
Mgt, Cooperation in Mekong River


---------------End----------------
UIOGD

Environmental Laws [Amb. Tolentino]

AKD&ITG NOTES | 2ND SEM SY 15-16 P. 104