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ENVIRONMENTAL

LAWS: Recognizing the vulnerability of the Philippine archipelago


SUMMARY OF TOPICS: LAWS AND CASES and its local communities, particularly the poor, women,
---------------------------------------------------------------------------- and children, to potential dangerous consequences of
FIRST ASSIGNMENT [For Dec 14]: climate change such as rising seas, changing landscapes,
1. Climate Change increasing frequency and/or severity of droughts, fires,
2. UNFCC floods and storms, climate-related illnesses and diseases,
3. Philippines response to climate change damage to ecosystems, biodiversity loss that affect the
4. RA 9729 Climate Change Law countrys environment, culture, and economy, the State
5. RA 9367 Biofuel Act shall cooperate with the global community in the resolution
6. RA 9513 Renewable Energy of climate change issues, including disaster risk reduction. It
7. Vol. I of Bedan Journal Sovereignty [Changing shall be the policy of the State to enjoin the participation of
Concept] national and local governments, businesses,
8. General Environmental Law [Identify relevant nongovernment organizations, local communities and the
provisions in 1987 Consti Art II] public to prevent and reduce the adverse impacts of climate
9. PD 1511 Philippine Environment Policy [Brown change and, at the same time, maximize the benefits of
Legislations] climate change. It shall also be the policy of the State to
10. Fundamental Principles of Environmental Law incorporate a gender-sensitive, pro-children and pro-poor
[Draft Covenant] 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
I. REPUBLIC ACT NO. 9729 - AN ACT MAINSTREAMING implementation of plans and programs to address climate
CLIMATE CHANGE INTO GOVERNMENT POLICY change in the context of sustainable development.
FORMULATIONS, ESTABLISHING THE FRAMEWORK
STRATEGY AND PROGRAM ON CLIMATE CHANGE, Further recognizing that climate change and disaster risk
CREATING FOR THIS PURPOSE THE CLIMATE reduction are closely interrelated and effective disaster risk
CHANGE COMMISSION, AND FOR OTHER PURPOSES reduction will enhance climate change adaptive capacity,
the State shall integrate disaster risk reduction into climate
Section 1. Title. This Act shall be known as the Climate change programs and initiatives.
Change Act of 2009.
Cognizant of the need to ensure that national and
Section 2. Declaration of Policy. It is the policy of the State subnational government policies, plans, programs and
to afford full protection and the advancement of the right of projects are founded upon sound environmental
the people to a healthful ecology in accord with the rhythm considerations and the principle of sustainable
and harmony of nature. In this light, the State has adopted development, it is hereby declared the policy of the State to
the Philippine Agenda 21 framework which espouses systematically integrate the concept of climate change in
sustainable development, to fulfill human needs while various phases of policy formulation, development plans,
maintaining the quality of the natural environment for poverty reduction strategies and other development tools
current and future generations. and techniques by all agencies and instrumentalities of the
government.
Towards this end, the State adopts the principle of
protecting the climate system for the benefit of humankind, Section 3. Definition of Terms. For purposes of this Act, the
on the basis of climate justice or common but differentiated following shall have the corresponding meanings:
responsibilities and the Precautionary Principle to guide (a) Adaptation refers to the adjustment in natural or
decision-making in climate risk management. As a party to human systems in response to actual or expected climatic
the United Nations Framework Convention on Climate stimuli or their effects, which moderates harm or exploits
Change, the State adopts the ultimate objective of the beneficial opportunities.
Convention which is the stabilization of greenhouse gas (b) Adaptive capacity refers to the ability of ecological,
concentrations in the atmosphere at a level that would social or economic systems to adjust to climate change
prevent dangerous anthropogenic interference with the including climate variability and extremes, to moderate or
climate system which should be achieved within a time offset potential damages and to take advantage of
frame sufficient to allow ecosystems to adapt naturally to associated opportunities with changes in climate or to cope
climate change, to ensure that food production is not with the consequences thereof.
threatened and to enable economic development to proceed (c) Anthropogenic causes refer to causes resulting from
in a sustainable manner. As a party to the Hyogo human activities or produced by human beings.
Framework for Action, the State likewise adopts the (d) Climate Change refers to a change in climate that can
strategic goals in order to build national and local resilience be identified by changes in the mean and/or variability of
to climate change-related disasters. its properties and that persists for an extended period

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 1


typically decades or longer, whether due to natural (q) Vulnerability refers to the degree to which a system
variability or as a result of human activity. is susceptible to, or unable to cope with, adverse effects of
(e) Climate Variability refers to the variations in the climate change, including climate variability and extremes.
average state and in other statistics of the climate on all Vulnerability is a function of the character, magnitude, and
temporal and spatial scales beyond that of individual rate of climate change and variation to which a system is
weather events. exposed, its sensitivity, and its adaptive capacity.
(f) Climate Risk refers to the product of climate and
related hazards working over the vulnerability of human Section 4. Creation of the Climate Change Commission.
and natural ecosystems. There is hereby established a Climate Change Commission,
(g) Disaster refers to a serious disruption of the hereinafter referred to as the Commission.
functioning of a community or a society involving The Commission shall be an independent and autonomous
widespread human, material, economic or environmental body and shall have the same status as that of a national
losses and impacts which exceed the ability of the affected government agency. It shall be attached to the Office of the
community or society to cope using its own resources. President.
(h) Disaster risk reduction refers to the concept and The Commission shall be the sole policy-making body of the
practice of reducing disaster risks through systematic government which shall be tasked to coordinate, monitor
efforts to analyze and manage the causal factors of and evaluate the programs and action plans of the
disasters, including through reduced exposure to hazards, government relating to climate change pursuant to the
lessened vulnerability of people and property, wise provisions of this Act.
management of land and the environment, and improved The Commission shall be organized within sixty (60) days
preparedness for adverse events. from the effectivity of this Act.
(i) Gender mainstreaming refers to the strategy for
making womens as well as mens concerns and experiences II. UNFCC AND KYOTO PROTOCOL
an integral dimension of the design, implementation, - International Environmental Treaty that was produced
monitoring, and evaluation of policies and programs in all at the UN Conference on Environment and Development.
political, economic, and societal spheres so that women and It is aimed at STABILIZING greenhouse gas
men benefit equally and inequality is not perpetuated. It is concentrations in the atmosphere at a level that would
the process of assessing the implications for women and prevent interference with climate system.
men of any planned action, including legislation, policies, or - Since the UNFCCC entered into force, the parties have
programs in all areas and at all levels. been meeting annually in Conferences of the Parties
(j) Global Warming refers to the increase in the average (COP) to assess progress in dealing with climate change,
temperature of the Earths near-surface air and oceans that and beginning in the mid-1990s, to negotiate the Kyoto
is associated with the increased concentration of Protocol to establish legally binding obligations for
greenhouse gases in the atmosphere. developed countries to reduce their greenhouse gas
(k) Greenhouse effect refers to the process by which the emissions.
absorption of infrared radiation by the atmosphere warms - Under the Convention, governments:
the Earth. o gather and share information on greenhouse gas
(l) Greenhouse gases (GHG) refers to constituents of the emissions, national policies and best practices;
atmosphere that contribute to the greenhouse effect o launch national strategies for addressing greenhouse
including, but not limited to, carbon dioxide, methane, gas emissions and adapting to expected impacts,
nitrous oxide, hydrofluorocarbons, perfluorocarbons and including the provision of financial and technological
sulfur hexafluoride. support to developing countries ;
(m) Mainstreaming refers to the integration of policies o cooperate in preparing for adaptation to the impacts
and measures that address climate change into of climate change
development planning and sectoral decision-making.
(n) Mitigation in the context of climate change, refers to - KEY ELEMENT: parties should act to protect the climate
human intervention to address anthropogenic emissions by system on the basis of EQUALITY and in accordance with
sources and removals by sinks of all GHG, including ozone- their COMMON BUT DIFFERENTIATED responsibilities
depleting substances and their substitutes. and respective capabilities.
(o) Mitigation potential shall refer to the scale of GHG o The principle of COMMON but DIFFERENTIATED
reductions that could be made, relative to emission responsibilities includes 2 elements:
baselines, for a given level of carbon price (expressed in (1) Common responsibilities of parties to protect the
cost per unit of carbon dioxide equivalent emissions environment, parts of it, at the national, regional, and
avoided or reduced). global levels
(p) Sea level rise refers to an increase in sea level which (2) Need to take into account the different
may be influenced by factors like global warming through circumstances, particularly each partys contribution
expansion of sea water as the oceans warm and melting of to the problem and its ability to prevent, reduce, and
ice over land and local factors such as land subsidence. control threat.

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*** Common: everyone is in the same position (ex. the participation of the national and local government,
Everyone uses machinery) businesses, non-government organizations (NGOs), and
*** Differentiated: developed countries have more local communities and public to mitigate the adverse effects
responsibility because they deal with the activities in of climate change. This is to align initiatives on climate
large scale (ex. More machineries for factories) change into a collective approach (e.g. the disaster and risk
o Another element underpinning the UNFCCC is the reduction measures integrated to climate change programs
polluter pays principle. This means that the party and initiatives).
responsible for producing pollution is responsible for
paying for the damage done to the natural Creation of Climate Change Commission. The Climate
environment. Change Commission (CCC), an attached agency to the Office
of the President, was created as the lead policy making body
KYOTO PROTOCOL on concerns related to climate change. The CCC is tasked to
Sets emission targets for developed countries which are coordinate, formulate, and monitor and evaluate programs
binding under international law and actions on climate change.
Countries must meet their targets primarily through
national measures Ultimately, the CCCs primary goal is to formulate the
National Framework Strategy on Climate Change which
III. The Climate Change Act of 2009: Philippines shall serve as basis in formulating and developing programs
Response to Worlds Changing Condition on climate change planning, research and development
Albert P. Aquino, Christian L. Abeleda and Princess Alma B. (R&D), and monitoring of activities. Further, the CCC
Ani supports capacity building activities of and provides
technical and financial assistance extension to agencies and
Introduction - Climate change is the most serious and most institutions. It also recommends key development
pervasive threat facing humanity today. The investment areas on climate-sensitive sectors such as water
Intergovernmental Panel on Climate Change, the highest resources, agriculture, and forestry.
scientific body responsible for evaluating the risk of climate
change, reported that warming of the earths surface is The Commission is composed of 27 government agencies,
unequivocal. If left uncontrolled, impacts of climate change local government units and representatives from the
to human and nature are unprecedented and will academe, business sector, and NGOs which formed part of
continuously affect lives of future generations. the Advisory Board. It is chaired by the President of the
Philippines together with three (3) Commissioners, one
Section 16 of the 1987 Philippine Constitution declared that being the Vice-Chairperson. The CCC also constituted a
the State shall protect and advance the right of the people to panel of technical experts consisting of practitioners of
a balance and healthful ecology in accord with the rhythm climate change-related disciplines. The panel of technical
and harmony of nature. It is in this statement where the experts primarily provides technical advices on climate
creation of the Republic Act (R.A.) No. 9729 otherwise science, technologies, and best practices for risk assessment
known as the Climate Change Act of 2009 was built upon. and management to the Commission.
The law which was enacted on July 27, 2009 was primarily
conceived as the countrys response to the worldwide Formulation of Framework Strategy and Program on
phenomenon on climate change. Towards the attainment of Climate Change. The National Framework Strategy on
this goal, R.A. No. 9729 allowed mainstreaming of climate Climate Change (NFSCC) was established to serve as the
change into government formulation of programs and roadmap for national programs and plans towards more
projects, plans and strategies, and policies, creation of climate risk-resilient Philippines. Its main goal is to build
Climate Change Commission, and establishment of the adaptive capacity of communities, increase the
Framework Strategy and Program for climate change. resilience of natural ecosystems to climate change, and
optimize mitigation opportunities towards sustainable
Mainstreaming of Climate Change into Government development. As a principle, NFSCC serves as the
Policy Formulation. R.A. 9729 calls for the State to framework for the formulation of climate change action
integrate the concept of climate change in various phases of plans both at the national and local level.
policy formulation, development plans, poverty reduction In 2010, NFSCC identified key result areas (KRAs) or
strategies, and other government development tools and climate-sensitive sectors that would be greatly affected by
techniques. This is to ensure that government plans and the phenomenon. The sectors include among others
actions are founded upon sound environmental agriculture, biodiversity, infrastructure, energy, and
considerations and sustainable development principles. population, health and demography. From these climate-
Aside from that, the government shall take into sensitive sectors, objectives and strategies were laid down
consideration gender-sensitive, pro-children, and pro-poor either in the form of mitigation or adaptation.
perspective as an input to its climate change efforts, plans,
and programs. Likewise, the government shall encourage

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 3


Mitigation strategies aimed to facilitate the transition of the (6) sustainable energy; and (7) knowledge and capacity
country towards low greenhouse gas emissions for development. On the other hand, the LCCAP vary in each
sustainable development in the long run. Targets include local government and are drafted consistently with the
enhancement of clean energy source; realization of full NCCAP. The Barangays, the smallest unit of government in
potential of countrys renewable energy capacity; the Philippines, are expected to support the municipal and
improvement in efficiency of the transport sector through city government in implementing the climate change-
increased uptake of alternative fuels and expansion of mass related activities indicated under the LCCAP.
transport system; reduction of carbon footprints through
energy-efficient design and materials for public Establishment of Peoples Survival Fund (PSF). In July
infrastructure and settlements; reduction of emissions from 2011, the Climate Change Act of 2009 was amended to
deforestation and forest degradation; and full create the PSF. The law creating the PSF is embodied in RA
implementation of proper waste management. 10174 otherwise known as the Act Establishing the
Peoples Survival Fund to Provide Long-term Finance
Adaptation strategies on the other hand, aimed to build the Streams to Enable the Government to Effectively Address
adaptive capacity of communities and to increase the the Problem of Climate Change. The fund is established to
resilience of natural ecosystems to climate change in the finance adaptation programs and projects planned under
long run. Objectives in each KRA include enhancement of the NFSCC. An appropriation of one billion pesos
the availability and quality of vulnerability and adaptation (PhP 1,000,000,000) under the General Appropriation Acts
assessment; strengthen the Integrated Ecosystem-based served as its opening balance which can be augmented by
Management in the Philippines through management of donations, endowments, grants and contributions. The said
watershed ecosystem and multi-polar environments fund is being managed by PSF Board lodged under the
through river basin management approach, improvement of Commission. The CCC, on the other hand, evaluates and
coastal and marine ecosystems and communities resilience reviews project proposals for funding and recommends
to climate change, and mainstreaming biodiversity approval of the proposal to the PSF Board.
adaptation strategies to climate change in government plans
and actions; reduction of water sector vulnerability to The fund is used to support adaptation activities of local
climate change through participative water governance, governments and communities. Fund allocation are
resource management and sectoral policy reforms; prioritized based on projects that has, but not limited to the
protection and enhancement of ecosystem and ecosystem following: (a) level of risk and vulnerability to climate
services to secure food and water resource and livelihood change, (b) participation from the affected communities in
opportunities; management of health risks brought about the design of the project, (3) poverty reduction potential,
by climate change; and reduction of disaster risk from (4) cost effectiveness and sustainability, (5) responsiveness
climate change-induced natural hazards. to gender-differentiated vulnerabilities, and (6) availability
of climate change action plan.
In order to achieve the objectives in each KRA, cross-cutting
strategies are likewise given. These include capacity Conclusion
building, knowledge management and information, The Climate Change Act was enacted to protect the right of
education and communication (IEC), R&D, and technology the people to a balance and healthful ecology. The law
transfer. Implementation on the other hand, is carried out serves as an action plan that lays out the strategies,
through coordination, financing and partnership among initiatives, and activities to prepare the country to the
national and local government agencies and other inevitable effects of climate change. Both the identified
stakeholders. mitigation and adaptation strategies aimed to build a more
climate-risk resilient Philippines. In the end, achieving the
Development of the National Climate Change Action goals of the plans as stipulated in R.A. 9729 is deemed
Plan (NCCAP). In order to detail the proposed strategy attainable with the support and assistance of all
under the NFSCC, the NCCAP was developed. Streaming stakeholders to include among others the national and local
down to the local units, NCCAP served as the guide of the government units, the private sector, the NGOs, and the
municipal and city governments in drafting their local communities.
corresponding Local Climate Change Action Plans (LCCAP).
In all levels of plans and actions, integration of climate IV. RA 9367 Biofuels Act of 2006
change concept and encouragement of participation and
involvement of concerned agencies and units are promoted. INTRODUCTION- The use of biofuels for transport is a
major thrust of the Philippines to reduce the countrys
Under the NCCAP, priority programs and activities for the dependence on imported fossil fuels and to mitigate
government were developed. Seven priority areas were greenhouse gas emissions. To pursue this objective, the
identified which include: (1) food security; (2) water Congress enacted Republic Act No. 9367 otherwise known
sufficiency; (3) ecosystem and environmental stability; (4) as the Biofuels Act of 2006. In accordance to the mandate of
human security; (5) climate-smart industries and services; the said law, the government is presently implementing the

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 4


National Biofuels Program (NBP) to promote investments in employment generation and livelihood improvements in
biofuel productions and encourage the utilization of this the rural areas
product. Other activities that coincide with this program are foreign exchange savings brought about by the decrease in
the establishment of support mechanisms to ensure fuel importation
adequate supply of feedstocks and the adoption of
appropriate technology for vehicles/engines to be able to GOVERNMENT SUPPORT - Laws and policies
use alternative fuels. The Biofuels Act of 2006 (RA 9367) - mandates the
blending of biofuels with all fuel products distributed
In compliance with the mandate of the law, presently and sold by oil companies in the Philippines
available liquid fuels in the market are blended with Omnibus Investment Code (EO 226) - grants incentives
biofuels. Diesel engine fuel contains 2% blend of biodiesel to investment projects/activities that are listed in the
by volume while gasoline fuel contains 5% blend of Investment Priorities Plan, which includes biodiesel
bioethanol by volume. By 2011, the mandated blend of PEZA Law (RA 7196) - grants incentives to investment
bioethanol will increase to 10%. projects/activities that are located in economic zones

MARKET OPPORTUNITY- Increasing demand Development plans and programs - provided for by the
Biofuels Act of 2006 created a market for biofuels National Biofuels Program following a framework that
through the required blend of biodiesel and bioethanol with encompasses the areas of feedstock, industry and
technology development, guidelines and standards
the standard diesel and gasoline fuel
enforcement and evaluation and industry promotion
Bioethanol

- market characterized by demand-supply gap and big
Financial support/guarantee - credit assistance provided by
volume of imports because capacity of existing bioethanol
the Land Bank of the Philippines and the Development Bank
producers cannot meet the local demand
of the Philippines for agri-based and renewable/alternative
- opportunity is in bioethanol production
energy sources projects
Biodiesel

- expected spur on demand due to the recommendation of
V. Renewable Energy Act for Energy Self-Sufficiency
increasing the blend further from 2% to 5%
and Harmful Emission Reduction [RA 9513] Albert P.
Excess supply of Biodiesel
Aquino and Christian L. Abeleda
- market characterized by excess supply of biodiesel

- opportunity is in the exportation of excess supply of
Introduction - Energy sector is the leading emitter of
biodiesel in the market
greenhouse gases (GHGs) in the Philippines (REECS,

2010)[3]. In 2000, there is a leap of 39% from 1994
PHILIPPINE ADVANTAGE - Major Sources of Raw Materials
emission record of 50,038 CO2e Gigagrams on this sector.
- sustained supply of ethanol for bioethanol production
Emissions mostly come from the combustion of imported
because of the availability of raw materials, particularly
fuels and other activities related to the production of
sugarcane, one of the major crops grown in the Philippines
energy, such as coal mining, oil and gas exploration,
- biodiesel: abundant supply of coconut oil
production and processing (EMB, 2011).
- rich coconut oil resource given the vast hectares of land

planted with millions of coconut trees
Republic Act No. 9513 or the Renewable Energy Act of
- bioethanol
2008 was codified in December 2008 to affirm the

governments commitment to accelerate the utilization of
Support industries- contract-growing scheme farmers
renewable energy (RE) resources in the country. This is to
enter into arrangements with processors or manufacturers
effectively reduce harmful emissions and achieve economic

development while protecting health and environment.
Human resources -many readily available farm and factory
Renewable energy is an essential part of the countrys low
workers knowledgeable on the details and technicalities of
farming and manufacturing in the Philippines emission development strategy and is vital to addressing
challenges of climate change, energy security, and access to
Availability - big labor force that is highly skilled, educated, energy.
English-proficient and with strong and good work ethics I
Under this law, the State is mandated to accelerate
INDUSTRY POTENTIALS- Growth in the number of BOI and exploration and development of RE resources to achieve
DOE-registered biofuel-producing companies: energy self-reliance; increase utilization of RE by
- biodiesel: 12 with a total production capacity of 395.62 institutionalizing the development of national and local
million liters per year capabilities; encourage the development and utilization of
- bioethanol: 3 with a total production capacity of 79 RE resources as tools to effectively prevent or reduce
million liters per year harmful emissions; and establish necessary infrastructure
and mechanisms to carry out the stipulated mandates in the
Contribution to the economy Act. The law suggests RE resources that could be

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alternatively utilized such as solar, wind, hydro, biomass, importation of inputs, components, parts, and materials and
geothermal and ocean energy. income tax holidays. Other incentives and privileges
stipulated include tax rebate for purchase of RE
Renewable energy policy mechanisms components; financial assistance program; exemption from
RE development is encouraged on both on-grid and off-grid the universal charge or charge imposed for the recovery of
system. In an on-grid system, several policy mechanisms the stranded cost; cash incentive of RE developers for
were promoted which include Renewable Portfolio missionary electrification; payment of transmission
Standard, Feed-in-Tariff System, Net-Metering for RE, Green charges; and priority and must dispatch for intermittent RE
Energy Option, among others. In an off-grid system, resource.
concerned parties were mandated to source a minimum
percentage of its total annual generation from RE resources Regulatory framework
in the area concerned. The Department of Energy (DOE) is mandated to lead the
implementation of the Act. As the lead agency, DOE is
Renewable Portfolio Standard RPS is a policy which places mandated, among others, to perform necessary actions for
an obligation on electric power industry participants such the execution of enumerated RE policy mechanisms and
as generators, distribution utilities, or suppliers to source or formulate and to implement National Renewable Energy
produce a specified fraction of their electricity from eligible Program or NREP.
RE resources. The purpose of which is to contribute on the
growth of the renewable energy industry by diversifying Also, embodied in the Act are the creations of National
energy supply and to help address environmental concerns Renewable Energy Board or NREB (Section 27 of the Act)
of the country by reducing GHG emission. and Renewable Energy Management Bureau or REMB
(Section 32 of the Act). NREB[5] act as a collegial body
Feed-in Tariff (FIT) System is a scheme that involves an tasked to recommend policies to DOE and monitor the
obligation on the part of electric power industry implementation of the Act. In addition, the Board
participants to source electricity from RE generation at a recommends specific actions to support the activities of
guaranteed fixed price for a given period of time. This DOE especially the NREP. REMB, on the other hand, is in the
system is adopted to accelerate the development of forefront of effective implementation of the provisions of
emerging RE resources through fixed tariff mechanism. the Act. As such, the Bureau developed and formulated
NREP to accelerate the development, utilization, and
Green Energy Program is a mechanism established to commercialization of RE resources and technologies, among
provide end-users or households the option to choose RE others.
resources as their source of energy.
National renewable energy program
Net Metering for RE is a consumer-based renewable energy National Renewable Energy program or NREP, launched on
incentive scheme wherein electric power generated by an June 2011, outlines the policy framework enshrined in RA
end-user (such as house or office with photovoltaic system) 9513. It sets the strategic building blocks that will help the
from an eligible on-site RE generating facility and delivered country achieve the goals set forth in the Renewable Energy
to the local distribution grid may be used to offset electric Act. It indicated interim targets for the delivery of energy
energy provided by the distribution utility to the end-user. sources within the timeframe of 2011 and 2030. In
Adoption of Waste-to-Energy Technologies that will principle, it provided the basis for national and local
encourage conversion of biodegradable materials such as, renewable energy planning that will identify specific actions
but not limited to, animal manure, agricultural waste, into and period upon which outcomes will be generated.
useful energy through processes of anaerobic digestion,
fermentation, and gasification, among others. The Program ultimately seeks to increase RE-based capacity
to an estimated 15,304.3 Megawatt (MW) by year 2030,
Incentives and privileges for renewable energy almost triple the 2010 level of 5,438 MW (Table 1). This
development sum is a consolidation of targets on each individual sectoral
Incentives and privileges were stipulated for RE sub-programs namely: geothermal, hydropower, biomass,
development initiatives. Incentives are provided to RE wind, solar, and ocean.
projects and programs; hybrid and co-generation system;
RE commercialization; and farmers engaged in the Each sectoral sub-programs follows a roadmap that
plantation of biomass resources. To avail these incentives indicates milestones targeted over a covered period. The
and privileges, it is encouraged that parties be registered realization of these targets depends on the implementation
and accredited by Department of Energy and Board of of several activities that include: (a) RE industry services;
Investments. (b) RE resource development; (c) RE research, development
and demonstration; and (d) RE technology support.
For all the entities involved in RE development, fiscal
incentives include, among others, tax exemption for

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Government share
The government has the share on the proceeds derived by VII. Presidential Decree No. 1151/Philippine
RE Developers which is equal, in general, to one percent Environmental Policy
(1%) of the RE developers gross income (except indigenous
geothermal energy which is 1.5% of their gross income). No Enactment and Implementation: June 6, 1977
government share is collected from proceeds of Biomass Purpose: To protect the right of the people to a healthy
resources development and of micro-scale projects for environment through a requirement of environmental
communal purpose and non-commercial operations which impact assessments and statements
are not greater than one hundred kilowatts. The Control Area: Nationwide
accumulated government share will be distributed to
national and local government by 60% and 40% Overview:
respectively. - Conflicting demands of population growth, urbanization,
industrial expansion, rapid natural resources utilization,
Renewable energy trust fund and increasing technological advances have resulted in a
Renewable Energy Trust Fund or RETF was established, in piecemeal-approach concept of environmental protection.
pursuant to Section 28 of the Act, to enhance the - The tunnel-vision concept is not conducive to the
development and greater utilization of RE. The fund is attainment of an ideal environmental situation where
utilized through grants, loans, equity investments, man and nature can thrive in harmony with one another.
counterpart fund or such other financial arrangements - There is now an urgent need to formulate an intensive,
necessary for the attainment of the activities stipulated in integrated program of environmental protection that will
the Act. The fund is used to, among others, finance research bring about a concerted effort towards the protection of
and development works engaged in RE and support the the entire spectrum of the environment through a
operation or RE resources to improve their competitiveness requirement of environmental impact assessments and
in the market. The RETF is mostly funded from fees and statements.
penalties collected and net annual income of Philippine
owned and controlled corporation. Features
- Declares a continuing policy of the State (a) to create,
Conclusion develop, maintain, and improve conditions under which
Energy sector is one among the contributors of GHGs in the man and nature can thrive in productive and enjoyable
country. Through the enactment of the Renewable Energy harmony with each other, (b) to fulfill the social,
Act of 2008, it is hoped that energy self-sufficiency will be economic, and other requirements of present and future
achieved and dependence on GHG emitter energy sources generations of Filipinos, (c) to ensure the attainment of an
will be reduced. With the policy mechanisms laid down, environmental quality that is conducive to a life of dignity
incentives and privileges stipulated, regulatory framework and well being
established, financial support appropriated, among others,
acceleration of utilization of RE resources and participation - In pursuing this policy , it shall be the responsibility of the
from stakeholders, more importantly from the private government, in cooperation of concerned private
sectors, are expected. organizations and entities, to use all practicable means,
consistent with other essential considerations of national
VI. ENVIRONMENTAL PROVISIONS OF 1987 policy, in promoting the general welfare to the end that
CONSTITUTION the nation may (a) recognize, discharge, and fulfill the
Sec. 16, Art. II: The State shall protect and advance the responsibilities of each generation as trustee and
right of the people to a balanced and healthful ecology in guardian of the environment for the succeeding
accord with the rhythm and harmony of nature. generations, (b) assure the people of a safe, decent,
Sec. 2 (2), Art. XII: The State shall protect the nations helpful, productive, and aesthetic environment, (c)
marine wealth in its archipelagic waters, territorial sea, and encourage the widest exploitation of the environment
exclusive economic zone, and reserve its use and enjoyment without degrading it, or endangering human life, health,
exclusively to Filipino citizens. and safety or cr4eating conditions adverse to agriculture,
Sec.5, Art. XII: The State, subject to the provisions of this commerce, and industry, (d) preserve important historic
Constitution and national development policies and and cultural aspects of the Philippine heritage, (e) attain a
programs, shall protect the rights of indigenous cultural rational and orderly balance between population and
communities to their ancestral lands to ensure their resource use, (f) improve the utilization of renewable and
economic, social, and cultural well-being. nonrenewable resources.
The Congress may provide for the applicability of
customary laws governing property rights or relations in - In furtherance of these goals and policies, the government
determining the ownership and extent of ancestral domain. recognizes the right of the people to a healthful
(Note: Indigenous peoples traditional ecological knowledge environment. It shall be the duty and responsibility of
is an integral part of understanding the environment).

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 7


each individual to contribute to the preservation and developmental and environmental needs of humanity in a
enhancement of the Philippine environment. sustainable and equitable manner.

- Pursuant to the above enunciated policies and goals, all ARTICLE 9; ERADICATION OF POVERTY - The eradication of
agencies and instrumentalities of the national poverty, an indispensable requirement for sustainable
government, including all government owned and development, necessitates a global partnership.
controlled corporations as well as private corporations
and firms and entities shall prepare, file, and include in ARTICLE 10; CONSUMPTION PATTERNS AND
every action, project, or undertaking which significantly DEMOGRAPHIC POLICIES - The elimination of unsustainable
affects the quality of the environment a detailed patterns of production and consumption and the promotion
statement on: of appropriate demographic policies are necessary to
o the environmental impact of the proposed action, enhance the quality of life for all humanity and reduce
project, or undertaking; disparities in standards of living.
o any adverse environmental effect which cannot be
avoided should the proposal be implemented; A. Basic Rights in Relation to Environmental Justice
o alternative to the proposed action;
o a determination that the short-term uses of the 1. Sovereignty Over Natural Resources and the
resources of the environment are consistent with the Obligation Not to Cause Harm
maintenance and enhancement of the long-term
productivity of the same; and State sovereignty over natural resources, as embodied in
o whenever a proposal involves the use of depletable or our own Constitution, gives the State the right to the
nonrenewable resources, a finding must be made that utilization and benefits over the resources within its
such use and commitment are warranted. territory. However, since the 1970s, state sovereignty over
natural resources has been read with the obligation not to
VIII. DRAFT INTERNATIONAL COVENANT ON cause harm. Principle 21 of the 1972 Stockholm
ENVIRONMENT AND DEVELOPMENT Declaration, which is the cornerstone of International
Environmental Law, reflects these principles:
FUNDAMENTAL PRINCIPLES - In their actions to achieve - States have, in accordance with the Charter of the
the objective of this Covenant and to implement its United Nations and the principles of international law,
provisions, the Parties shall be guided, inter alia, by the the sovereign right to exploit their own resources
following fundamental principles: pursuant to their own environmental policies, and the
responsibility to ensure that activities within their
ARTICLE 2; RESPECT FOR ALL LIFE FORMS - Nature as a jurisdiction or control do not cause damage to the
whole warrants respect; every form of life is unique and is environment of other States or of areas beyond the
to be safeguarded independent of its value to humanity. limits of national jurisdiction.

ARTICLE 3; COMMON CONCERN OF HUMANITY - The global The sovereign right over natural resources includes the
environment is a common concern of humanity. right of the states to be free from external interference. The
exercise of state sovereignty, however, has its limits.
ARTICLE 4; INTERDEPENDENT VALUES - Peace, Principle 21 provides that the state has the responsibility
development, environmental protection and respect for not to cause harm beyond the limits of its national
human rights and fundamental freedoms are jurisdiction. The No Harm Principle recognizes that a states
interdependent. activities may be transboundary in nature which can affect
or harm the environment of another State. This is meant to
ARTICLE 5; INTERGENERATIONAL EQUITY - The freedom be balanced with the sovereign principle of states and
of action of each generation in regard to the environment is requires them to take responsibility for their actions which
qualified by the needs of future generations. cause harm outside their own territory.

ARTICLE 6 ; PREVENTION - Protection of the environment 2. Principle of Prevention
is best achieved by preventing environmental harm rather The Principle of Prevention aims to stop environmental
than by attempting to remedy or compensate for such harm. damage even before it occurs or when it is critical and
potential damage may already be irreversible. This principle
ARTICLE 7; PRECAUTION - Lack of scientific certainty is no should be differentiated from the Obligation Not to Cause
reason to postpone action to avoid potentially significant or Harm. The Obligation Not to Cause Harm deals with the
irreversible harm to the environment. effects of a states activities outside its own territory without
regard to activities that cause environmental harm within the
ARTICLE 8; RIGHT TO DEVELOPMENT - The exercise of the state. The Principle of Prevention encompasses environmental
right to development entails the obligation to meet the 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 distribution of environmental risks and harms. Procedural
international instruments. The Universal Declaration of justice, on the other hand, focuses on the right of the
Human Rights provides for the right to a standard of living stakeholders to participate in decision making processes
adequate for health and well-being. The right carries with concerning the environment and enabling them to access
it the Right to the Environment. Later on, the 1972 relevant information.
Stockholm Declaration, which is the primary document in
International Environmental Law, would state in clear and While the concept of Environmental Justice differs
express terms the Right to the Environment. Principle 1 of depending on the perspective of the individual or entity, the
the Stockholm Declaration states: ultimate goal is to enhance the involvement of the people
- Man has the fundamental right to freedom, equality and and to ensure access to justice. As a means of addressing
adequate conditions of life, in an environment of a these concerns, there is heavy emphasis on the policies,
quality that permits a life of dignity and well-being, and laws, and legal procedures.30 In the context of the judicial
he bears a solemn responsibility to protect and improve system, Environmental Justice is tested in the light of the
the environment for present and future generations. In existence of adequate laws and policies, the quality of its
this respect, policies promoting or perpetuating enforcement, and the existence of available remedies for
apartheid, racial segregation, discrimination, colonial those affected by violations of environmental laws and
and other forms of oppression and foreign domination regulations.
stand condemned and must be eliminated.
The environmental law principles discussed above will
Subsequently, the Rio Declaration contained 27 principles hopefully help you in better understanding the laws, rules,
with a goal of ensuring the protection of the environment and regulations related to environmental law enforcement
and promoting Sustainable Development. Principle 1 in the Philippines. These principles serve as the foundation
recognizes that human beings are the center of concerns for the development of measures and provisions for the
for sustainable development. The Rio Declaration protection of the environment. With these principles in
underlines the obligations of states not to cause harm mind, the next section will provide a discussion of the most
beyond their jurisdiction, to meet the environmental needs common and typical environmental violations which take
of present and future generations, and to consider place in the Philippines, knowledge of which is the first step
environmental protection as an integral part of in ensuring the proper enforcement of environmental
development. The Rio Declaration also mandates states to protection laws in our country.
eradicate poverty and to give special attention to the least - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
developed and environmentally vulnerable countries 2nd ASSIGNMENT [January 4, 16]
emphasizing that in the cooperative process, states have PHILIPPINE LEGISLATIONS IN REPONSE TO CLIMATE
common but differentiated responsibilities. The Rio CHANGE
Declaration recognizes the importance of enjoining the 1. Oposa v. Factoran [224 SCRA 792]
citizens in addressing environmental issues with particular 2. MMDA v. Concerned Citizens of Manila Bay
emphasis on the role of women, youth and Indigenous [1997]
Peoples in achieving sustainable development. 3. Manila Prince Hotel v. GSIS [1997]
4. E.O. 192 of 1987
Under the Rights-based Approach, the right of persons to 5. PAB v. Solar Textile Co [1991]
environmental protection has the same level as basic human 6. Laguna Lake Development Auth v. CA [1995]
rights. The adoption of this approach plays a crucial role in 7. RA 7611: Strategic Environmental Plan for
litigation because persons would be allowed to litigate on Palawan
the basis of their right to a healthy environment in the same 8. Tano v. Socrates [1997]
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, 1. OPOSA V. FACTORAN [1993]
the concept of Environmental Justice varies among groups. DAVIDE, JR., J p.:
Some define Environmental Justice as the goal of achieving
adequate protection from the harmful effects of 1. CONSTITUTIONAL LAW; DECLARATION OF PRINCIPLES
environmental agents for everyone, regardless of age, AND STATE POLICIES; RIGHT TO A BALANCED AND
culture, ethnicity, gender, race, or socioeconomic status. HEALTHFUL ECOLOGY, CONSTRUED. The complaint
Others view Environmental Justice as the equitable
focuses on one specific fundamental legal right the right
distribution of burdens of the environmental harms among
various groups. One author suggests that there are two to a balanced and healthful ecology which, for the first time
fundamental principles of Environmental Justice namely: in our nation's constitutional history, is solemnly
distributive and procedural justice. In Environmental incorporated in the fundamental law. Section 16, Article II of
Justice, distributive justice refers to the equitable 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 in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary:
balanced and healthful ecology in accord with the rhythm (190 SCRA 673 684 [1990]) ". . . Timber licenses, permits
and harmony of nature." This right unites with the right to and license agreements are the principal instruments by
health which is provided for in the preceding section of the which the State regulates the utilization and disposition of
forest resources to the end that public welfare is promoted.
same article: "SEC. 15. The State shall protect and promote
And it can hardly be gainsaid that they merely evidence a
the right to health of the people and instill health privilege granted by the State to qualified entities, and do
consciousness among them." While the right to a balanced not vest in the latter a permanent or irrevocable right to the
and healthful ecology is to be found under the Declaration of particular concession area and the forest products therein.
Principles and State Policies and not under the Bill of Rights, They may be validly amended, modified, replaced or
it does not follow that it is less important than any of the rescinded by the Chief Executive when national interests so
civil and political rights enumerated in the latter. Such a require. Thus, they are not deemed contracts within the
right belongs to a different category of rights altogether for purview of the due process of law clause [See Sections 3(ee)
and 20 of Pres. Decree No. 705, as amended. Also, Tan v.
it concerns nothing less than self-preservation and self-
Director of Forestry, G.R. No. L-24548, October 27, 1983,
perpetuation aptly and fittingly stressed by the 125 SCRA 302]." Since timber licenses are not contracts, the
petitioners the advancement of which may even be said non-impairment clause, which reads: "SEC. 10. No law
to predate all governments and constitutions. As a matter of impairing the obligation of contracts shall be passed." In the
fact, these basic rights need not even be written in second place, even if it is to be assumed that the same are
the Constitution for they are assumed to exist from the contracts, the instant case does not involve a law or even an
inception of humankind. If they are now explicitly executive issuance declaring the cancellation or
mentioned in the fundamental charter, it is because of the modification of existing timber licenses. Hence, the non-
impairment clause cannot as yet be invoked. Nevertheless,
well-founded fear of its framers that unless the rights to a
granting further that a law has actually been passed
balanced and healthful ecology and to health are mandated mandating cancellations or modifications, the same cannot
as state policies by the Constitution itself, thereby still be stigmatized as a violation of the non-impairment
highlighting their continuing importance and imposing clause. This is because by its very nature and purpose, such
upon the state a solemn obligation to preserve the first and a law could have only been passed in the exercise of the
protect and advance the second, the day would not be too police power of the state for the purpose of advancing the
far when all else would be lost not only for the present right of the people to a balanced and healthful ecology,
generation, but also for those to come generations which promoting their health and enhancing the general welfare.
In Abe vs. Foster Wheeler Corp., (110 Phil. 198, 203 [1960])
stand to inherit nothing but parched earth incapable of
this Court stated: "The freedom of contract, under our
sustaining life. The right to a balanced and healthful ecology
system of government, is not meant to be absolute. The
carries with it the correlative duty to refrain from impairing same is understood to be subject to reasonable legislative
the environment. regulation aimed at the promotion of public health, moral,
safety and welfare. In other words, the constitutional
2. ID.; ID.; TIMBER LICENSES; NATURE THEREOF; NON-
guaranty of non-impairment of obligations of contract is
IMPAIRMENT CLAUSE MAY NOT BE INVOKED; CASE AT
limited by the exercise of the police power of the State, in
BAR. all licenses may thus be revoked or rescinded by
the interest of public health, safety, moral and general
executive action. It is not a contract, property or a property
welfare." The reason for this is emphatically set forth
right protected by the due process clause of
in Nebia vs. New York, (291 U.S. 502, 523, 78 L. ed. 940 947-
the Constitution. In Tan vs. Director of Forestry, (125 SCRA
949) quoted in Philippine American Life Insurance Co. vs.
302, 325 [1983]) This Court held: ". . . A timber license is an
Auditor General, (22 SCRA 135, 146-147 [1968]) to wit:
instrument by which the State regulates the utilization and
"'Under our form of government the use of property and the
disposition of forest resources to the end that public welfare
making of contracts are normally matters of private and not
is promoted. A timber license is not a contract within the
of public concern. The general rule is that both shall be free
purview of the due process clause; it is only a license or
of governmental interference. But neither property rights
privilege, which can be validly withdrawn whenever
nor contract rights are absolute; for government cannot
dictated by public interest or public welfare as in this case.
exist if the citizen may at will use his property to the
'A license is merely a permit or privilege to do what
detriment of his fellows, or exercise his freedom of contract
otherwise would be unlawful, and is not a contract between
to work them harm. Equally fundamental with the private
the authority, federal, state, or municipal, granting it and the
right is that of the public to regulate it in the common
person to whom it is granted; neither is it property or a
interest.'" In court, the non-impairment clause must yield to
property right, nor does it create a vested right; nor is it
the police power of the state.
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

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 11


FELICIANO, J., concurring: or failures to act, imputed to the public respondent by
petitioners so that the trial court can validly render
2. CONSTITUTIONAL LAW; DECLARATION OF PRINCIPLES
judgment granting all or part of the relief prayed for. To my
AND STATE POLICIES; RIGHT TO "A BALANCE AND
mind, the Court should be understood as simply saying that
HEALTHFUL ECOLOGY"; INTERPRETATION. The Court
such a more specific legal right or rights may well exist in
has also declared that the complaint has alleged and focused
our corpus of law, considering the general policy principles
upon "one specific fundamental legal right the right to a
found in the Constitution and the existence of the Philippine
balanced and healthful ecology" (Decision, p. 14). There is
Environment Code, and that the trial court should have
no question that "the right to a balanced and healthful
given petitioners an effective opportunity so to
ecology" is "fundamental" and that, accordingly, it has been
demonstrate, instead of aborting the proceedings on a
"constitutionalized." But although it is fundamental in
motion to dismiss.
character, I suggest, with very great respect, that it cannot
be characterized as "specific," without doing excessive 2. MMDA V. CONCERNED CITIZENS OF MANILA BAY
violence to language. It is in fact very difficult to fashion [2011]
language more comprehensive in scope and generalized in
Facts: On January 29, 1999, respondents Concerned
character than a right to "a balanced and healthful ecology."
Residents of Manila Bay filed a complaint before the
The list of particular claims which can be subsumed under
Regional Trial Court (RTC) in Imus, Cavite against several
this rubric appears to be entirely open-ended: prevention
government agencies, for the cleanup, rehabilitation, and
and control of emission of toxic fumes and smoke from
protection of the Manila Bay.
factories and motor vehicles; of discharge of oil, chemical

effluents, garbage and raw sewage into rivers, inland and
The complaint alleged that the water quality of the Manila
coastal waters by vessels, oil rigs, factories, mines and
Bay had fallen way below the allowable standards set by
whole communities; of dumping of organic and inorganic
law, specifically Presidential Decree No. (PD) 1152 or the
wastes on open land, streets and thoroughfares; failure to
Philippine Environment Code.
rehabilitate land after strip-mining or open-pit

mining; kaingin or slash-and-burn farming; destruction of
In their individual causes of action, respondents alleged that
fisheries, coral reefs and other living sea resources through
the continued neglect of petitioners in abating the pollution
the use of dynamite or cyanide and other chemicals;
of the Manila Bay constitutes a violation of, among others:
contamination of ground water resources; loss of certain

species of fauna and flora; and so on. The other statements
(1) Respondents constitutional right to life, health, and a
pointed out by the Court: Section 3, Executive Order No.
balanced ecology;
192dated 10 June 1987; Section 1, Title XIV, Book IV of the
(2) The Environment Code (PD 1152);
1987 Administrative Code; and P.D. No. 1151, dated 6 June
(3) The Pollution Control Law (PD 984);
1977 all appear to be formulations ofpolicy, as general
(4) The Water Code (PD 1067);
and abstract as the constitutional statements of basic policy
(5) The Sanitation Code (PD 856);
in Article II, Sections 16 ("the right to a balanced and
(6) The Illegal Disposal of Wastes Decree (PD 825);
healthful ecology") and 15 ("the right to health"). As a
(7) The Marine Pollution Law (PD 979);
matter of logic, by finding petitioners' cause of action as
(8) Executive Order No. 192;
anchored on a legal right comprised in the constitutional
(9) The Toxic and Hazardous Wastes Law (RA. 6969);
statements above noted, the Court is in effect saying that
(10) Civil Code provisions on nuisance and human relations;
Section 15 (and Section 16) of Article II of
(11) The Trust Doctrine and the Principle of Guardianship;
the Constitution are self-executing and judicially
and
enforceable even in their present form. The implications of
(12) International Law
this doctrine will have to be explored in future cases; those
Inter alia, respondents, as plaintiffs a quo, prayed that
implications are too large and far-reaching in nature even to
petitioners be ordered to clean the Manila Bay and submit
be hinted at here.
to the RTC a concerted concrete plan of action for the
3. ID.; RIGHT TO HEALTH; SHOULD SPECIFICALLY EXIST IN purpose.
OUR CORPUS OF LAW. Justice Feliciano suggestion is
simply that petitioners must, before the trial court, show a Issues:
more specific legal right a right cast in language of a a) Whether or not pertinent provisions of the Environment
significantly lower order of generality than Article II (15) of Code (PD 1152) relate only to the cleaning of specific
the Constitution that is or may be violated by the actions, 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 Defendant DBM, to provide and set aside an adequate
ministerial act which can be compelled by mandamus. budget solely for the purpose of cleaning up and
rehabilitation of Manila Bay.
Held:
Regional Trial Courts Order to Clean Up and Rehabilitate Defendant DPWH, to remove and demolish structures and
Manila Bay other nuisances that obstruct the free flow of waters to the
bay. These nuisances discharge solid and liquid wastes
On September 13, 2002, the RTC rendered a Decision in which eventually end up in Manila Bay. As the construction
favor of respondents. Finding merit in the complaint, the and engineering arm of the government, DPWH is ordered
Court ordered defendant-government agencies, jointly and to actively participate in removing debris, such as carcass of
solidarily, to clean up and rehabilitate Manila Bay and sunken vessels, and other non-biodegradable garbage in the
restore its waters to SB classification to make it fit for bay.
swimming, skin-diving and other forms of contact
recreation. Defendant DOH, to closely supervise and monitor the
operations of septic and sludge companies and require them
To attain this, defendant-agencies, with defendant DENR as to have proper facilities for the treatment and disposal of
the lead agency, are directed, within six (6) months from fecal sludge and sewage coming from septic tanks.
receipt hereof, to act and perform their respective duties by
devising a consolidated, coordinated and concerted scheme Defendant DECS, to inculcate in the minds and hearts of the
of action for the rehabilitation and restoration of the bay. people through education the importance of preserving and
protecting the environment.
In particular:
Defendant MWSS is directed to install, operate and maintain Defendant Philippine Coast Guard and the PNP Maritime
adequate [sewerage] treatment facilities in strategic places Group, to protect at all costs the Manila Bay from all forms
under its jurisdiction and increase their capacities. of illegal fishing.

Defendant LWUA, to see to it that the water districts under The Court of Appeals Sustained the RTCs Decision
its wings, provide, construct and operate sewage facilities
for the proper disposal of waste. The MWSS, Local Water Utilities Administration (LWUA),
and PPA filed before the Court of Appeals (CA) individual
Defendant DENR, which is the lead agency in cleaning up Notices of Appeal. On the other hand, the DENR,
Manila Bay, to install, operate and maintain waste facilities Department of Public Works and Highways (DPWH),
to rid the bay of toxic and hazardous substances. Metropolitan Manila Development Authority (MMDA),
Philippine Coast Guard (PCG), Philippine National Police
Defendant PPA, to prevent and also to treat the discharge (PNP) Maritime Group, and five other executive
not only of ship-generated wastes but also of other solid and departments and agencies filed directly with this Court a
liquid wastes from docking vessels that contribute to the petition for review under Rule 45.
pollution of the bay.
In the light of the ongoing environmental degradation, the
Defendant MMDA, to establish, operate and maintain an Court wishes to emphasize the extreme necessity for all
adequate and appropriate sanitary landfill and/or adequate concerned executive departments and agencies to
solid waste and liquid disposal as well as other alternative immediately act and discharge their respective official
garbage disposal system such as re-use or recycling of duties and obligations. Indeed, time is of the essence; hence,
wastes. there is a need to set timetables for the performance and
completion of the tasks, some of them as defined for them
Defendant DA, through the Bureau of Fisheries and Aquatic by law and the nature of their respective offices and
Resources, to revitalize the marine life in Manila Bay and mandates.
restock its waters with indigenous fish and other aquatic
animals. The importance of the Manila Bay as a sea resource,
playground, and as a historical landmark cannot be over-
emphasized. 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 patrimony. Moreover, the concept of national patrimony has
tasks ahead, daunting as they may be, could only be been viewed as referring not only to our rich natural
accomplished if those mandated, with the help and resources but also to the cultural heritage of our race. There
cooperation of all civic-minded individuals, would put their is no doubt in my mind that the Manila Hotel is very much a
minds to these tasks and take responsibility. This means part of our national patrimony and, as such deserves
that the State, through petitioners, has to take the lead in constitutional protection as to who shall own it and benefit
the preservation and protection of the Manila Bay. from its operation. This institution has played an important
role in our nation's history, having been the venue of many
So it was that in Oposa v. Factoran, Jr. the Court stated that a historical event, and serving as it did, and as it does, as the
the right to a balanced and healthful ecology need not even Philippine Guest House for visiting foreign heads of state,
be written in the Constitution for it is assumed, like other dignitaries, celebrities, and others.
civil and political rights guaranteed in the Bill of Rights, to
2. ID.; ID.; MANILA HOTEL, PART OF OUR NATIONAL
exist from the inception of mankind and it is an issue of
PATRIMONY. There is no doubt in my mind that
transcendental importance with intergenerational
the Manila Hotel is very much a part of our national
implications. Even assuming the absence of a categorical
patrimony and, as such, deserves constitutional protection
legal provision specifically prodding petitioners to clean up
as to who shall own it and benefit from its operation. This
the bay, they and the men and women representing them
institution has played an important role in our nation's
cannot escape their obligation to future generations of
history, having been the venue of many a historical event,
Filipinos to keep the waters of the Manila Bay clean and
and serving as it did, and as it does, as the Philippine Guest
clear as humanly as possible. Anything less would be a
House for visiting foreign heads of state, dignitaries,
betrayal of the trust reposed in them.
celebrities, and others.

By a Decision of September 28, 2005, the CA denied VITUG, J., separate opinion:
petitioners appeal and affirmed the Decision of the RTC in
1. POLITICAL LAW; CONSTITUTION; NATIONAL
toto, stressing that the trial courts decision did not require
PATRIMONY; PROVISION GIVING PREFERENCE TO
petitioners to do tasks outside of their usual basic functions
QUALIFIED FILIPINOS, SELF-EXECUTORY. The provision
under existing laws.
in our fundamental law which provides that "(i)n the grant

of rights, privileges, and concessions covering the national
3.Manila Prince Hotel v. GSIS [1997]
INCLUDES THE NATIONAL RESOURCES AND CULTURAL economy and patrimony, the State shall give preference to
HERITAGE. When the Constitution speaks of national qualified Filipinos" is self-executory. The provision verily
patrimony, it refers not only to the natural resources of the does not need, although it can obviously be amplified or
Philippines, as the Constitution could have very well used regulated by, an enabling law or a set of rules.
the term natural resources, but also to the cultural 2. ID.; ID.; ID.; PATRIMONY INCLUDES CULTURAL
heritageof the Filipinos. HERITAGE OF THE COUNTRY; MANILA HOTEL, EMBRACED
PADILLA, J., concurring opinion: THEREIN. The term "patrimony" does not merely refer to
the country's natural resources but also to its cultural
1. POLITICAL LAW; CONSTITUTION; PATRIMONY OF THE heritage. A "historical landmark," to use the words of Mr.
NATION, CONSTRUED. A study of the 1935 Constitution, Justice Justo P. Torres, Jr., Manila Hotel has now indeed
where the concept of "national patrimony" originated, become part of Philippine heritage.
would show that its framers decided to adopt the even more
comprehensive expression "Patrimony of the Nation" in the PUNO, J., dissenting opinion:
belief that the phrase encircles a concept embracing not MANILA HOTEL CORPORATION, PART OF THE NATIONAL
only the natural resources of the country but practically PATRIMONY. The second issue is whether the sale of a
everything that belongs to the Filipino people, the tangible majority of the stocks of the Manila Hotel Corporation
and the material as well as the intangible and the spiritual involves the disposition of part of our national patrimony.
assets and possessions of the people. It is to be noted that The records of the Constitutional Commission show that the
the framers did not stop with conservation. They knew that Commissioners entertained the same view as to its meaning.
conservation alone does not spell progress; and that this According to Commissioner Nolledo, "patrimony" refers not
may be achieved only through development as a correlative only to our rich natural resources but also to the cultural
factor to assure to the people not only the exclusive heritage of our race. By this yardstick, the sale
ownership, but also the exclusive benefits of their national 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 resources, not only for the present generation but for future
qualified Filipinos in the grant of rights involving our generations as well. It is also the policy of the state to
national patrimony. recognize and apply a true value system including social and
environmental cost implications relative to their utilization,
CASE AT BAR. The right of preference of petitioner arises development and conservation of our natural resources.
only if it tied the bid of Renong Berhad. In that instance, all
things stand equal, and petitioner, as a qualified Filipino SECTION 4. Mandate. The Department shall be the primary
bidder, should be preferred. It is with deep regret that I government agency responsible for the conservation,
management, development and proper use of the countrys
cannot subscribe to the view that petitioner has a right to
environment and natural resources, specifically forest and
match the bid of Renong Berhad. Petitioner's submission grazing lands, mineral resources, including those in
must be supported by the rules but even if we examine the reservation and watershed areas, and lands of the public
rules inside-out a thousand times, they can not justify the domain, as well as the licensing and regulation of all natural
claimed right. Under the rules, the right to match the highest resources as may be provided for by law in order to ensure
bid arises only "if for any reason, the highest bidder cannot equitable sharing of the benefits derived therefrom for the
be awarded the block of shares . . . ." No reason has arisen welfare of the present and future generations of Filipinos.
that will prevent the award to Renong Berhad. It deserves
To accomplish its mandate, the Department shall be guided
the award as a matter of right for the rules clearly did not
by the following objectives that will serve as basis for policy
give to the petitioner as a qualified Filipino the privilege to formulation:
match the higher bid of a foreigner. What the rules did not
grant, petitioner cannot demand. Our sympathies may be (a) Assure the availability and sustainability of the countrys
with petitioner but the court has no power to extend the natural resources through judicious use and systematic
latitude and longitude of the right of preference as defined restoration or replacement, whenever possible;
by the rules. We are duty-bound to respect that (b) Increase the productivity of natural resources in order
determination even if we differ with the wisdom of their to meet the demands for forest, mineral, and land
resources of a growing population;
judgment. The right they grant may be little but we must
(c) Enhance the contribution of natural resources for
uphold the grant for as long as the right of preference is not
achieving national economic and social development;
denied. It is only when a State action amounts to a denial of (d) Promote equitable access to natural resources by the
the right that the Court can come in and strike down the different sectors of the population;
denial as unconstitutional. (e) Conserve specific terrestrial and marine areas
representative of the Philippine natural and cultural
4. E.O. 192 of 1987 heritage for present and future generations.
EXECUTIVE ORDER NO. 192 - PROVIDING FOR THE
REORGANIZATION OF THE DEPARTMENT OF SECTION 5. Powers and Functions. To accomplish its
ENVIRONMENT, ENERGY AND NATURAL RESOURCES, mandate, the Department shall have the following powers
RENAMING IT AS THE DEPARTMENT OF ENVIRONMENT and functions:
AND NATURAL RESOURCES, AND FOR OTHER PURPOSES
(a) Advise the President on the enactment of laws relative
SECTION 1. Title. This Executive Order shall otherwise be to the development, use, regulation, and conservation of
known as the Reorganization Act of the Department of the countrys natural resources and the control of
Environment and Natural Resources. pollution;
(b) Formulate, implement, and supervise the governments
SECTION 2. Reorganization. The Department of policies, plans and programs pertaining to the
Environment, Energy and Natural Resources is hereby management, conservation, development, use and
reorganized structurally and functionally and renamed as replenishment of the countrys natural resources;
the Department of Environment and Natural Resources, (c) Promulgate rules and regulations in accordance with law
hereinafter referred to as Department, in accordance with governing the exploration, development, conservation,
the provisions of this Executive Order. extraction, disposition, use and such other commercial
activities tending to cause the depletion and degradation
SECTION 3. Declaration of Policy. It is hereby declared the of our natural resources;
policy of the State to ensure the sustainable use, (d) Exercise supervision and control over forest lands,
development, management, renewal, and conservation of alienable and disposable lands, and mineral resources
the countrys forest, mineral, land, off-shore areas and other and in the process of exercising such control the
natural resources, including the protection and Department shall impose appropriate payments, fees,
enhancement of the quality of the environment, and charges, rentals and any such form of levy and collect
equitable access of the different segments of the population
to the development and use of the countrys natural

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 15


such revenues for the exploration, development, domain; and the enforcement of natural resources laws,
utilization or gathering of such resources; rules and regulations;
(e) Undertake exploration, assessment, classification and (l) Promulgate rules, regulations and guidelines on the
inventory of the countrys natural resources using issuance of co-production, joint venture or production
ground surveys, remote sensing and complementary sharing agreements, licenses, permits, concessions,
technologies; leases and such other privileges and arrangement
(f) Promote proper and mutual consultation with the concerning the development, exploration and utilization
private sector involving natural resources development, of the countrys natural resources and shall continue to
use and conservation; oversee, supervise and police our natural resources; to
(g) Undertake geological surveys of the whole country cancel or cause to cancel such privileges and
including its territorial waters; arrangements upon failure, non-compliance or violations
(h) Establish policies and implement programs for the: of any regulations, orders, and for all other causes which
(1) Accelerated inventory, surveys and classification of are in furtherance of the conservation of natural
lands, forest, and mineral resources using appropriate resources and supportive of the national interests;
technology, to be able to come up with a more accurate (m) Exercise exclusive jurisdiction on the management and
assessment of resource quality and quantity; disposition of all lands of the public domain and shall
(2) Equitable distribution of natural resources through continue to be the sole agency responsible for
the judicious administration, regulation, utilization, classification, sub-classification, surveying and titling of
development and conservation of public lands, forest, lands in consultation with appropriate agencies.
and mineral resources (including mineral reservation (n) Implement measures for the regulation and supervision
areas), that would benefit a greater number of Filipinos; of the processing of forest products, grading and
(3) Promotion, development and expansion of natural inspection of lumber and other forest products and
resource-based industries; monitoring of the movement of timber and other forest
(4) Preservation of cultural and natural heritage through products;
wildlife conservation and segregation of national parks (o) Promulgate rules and regulations for the control of
and other protected areas; water, air and land pollution;
(5) Maintenance of a wholesome natural environment by (p) Promulgate ambient and effluent standards for water
enforcing environmental protection laws; and and air quality including the allowable levels of other
(6) Encouragement of greater people participation and pollutants and radiations;
private initiative in natural resource management. (q) Promulgate policies, rules and regulations for the
conservation of the countrys genetic resources and
(i) Promulgate rules and regulations necessary to: biological diversity, and endangered habitats;
(1) Accelerate cadastral and emancipation patent (r) Formulate an integrated, multi-sectoral, and multi-
surveys, land use planning and public land titling; disciplinary National Conservation Strategy, which will
(2) Harness forest resources in a sustainable manner, to be presented to the Cabinet for the Presidents approval;
assist rural development, support forest-based (s) Exercise other powers and functions and perform such
industries, and provide raw materials to meet increasing other acts as may be necessary, proper or incidental to
demands, at the same time keeping adequate reserves the attainment of its mandates and objectives.
for environmental stability; and
(3) Expedite mineral resources surveys, promote the SECTION 6. Structural Organization. The Department shall
production of metallic and non-metallic minerals and consist of the Department Proper, the staff offices, the staff
encourage mineral marketing. bureaus and the regional/provincial/community natural
resources offices.
(j) Regulate the development, disposition, extraction,
exploration and use of the countrys forest, land and The Department Proper shall consist of the following:
mineral resources; (a) Office of the Secretary
(k) Assume responsibility for the assessment, development, (b) Offices of Undersecretaries
protection, conservation, licensing and regulation as (c) Offices of Assistant Secretaries
provided for by law, where applicable, of all natural (d) Public Affairs Office
resources; the regulation and monitoring of service (e) Special Concerns Office
contractors, licensees, lessees, and permittees for the (f) Pollution Adjudication Board
extraction, exploration, development and utilization of
natural resource products; the implementation of The staff sectoral bureaus on the other hand, shall be
programs and measures with the end in view of composed of:
promoting close collaboration between the government (a) Forest Management Bureau
and the private sector; the effective and efficient (b) Lands Management Bureau
classification and sub-classification of lands of the public (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 certiorari was a proper remedy since the Orders of
(f) Protected Areas and Wildlife Bureau petitioner Board may result in great and irreparable injury
to Solar; and that while the case might be moot and
SECTION 22. Attached Agencies and Corporations. The academic, "larger issues" demanded that the question of due
following agencies and corporations are attached to the process be settled. Petitioner Board moved for
Department: reconsideration, without success.
(a) National Mapping and Resource Information Authority.
(b) Natural Resources Development Corporation. Arguing that that the ex parte Order and the Writ of
(c) The National Electrification Administration. Execution were issued in accordance with law and were not
violative of the requirements of due process; and the ex
5. PAB v. Solar Textile Co [1991] parte Order and the Writ of Execution are not the proper
G.R. No. 93891, 11 March 1991 subjects of a petition for certiorari, Oscar A. Pascua and
Third Division, Feliciano (J), 4 concur Charemon Clio L. Borre for petitioner asked the Supreme
2. POLITICAL LAW; POLICE POWER; ENACTMENT OF Court to review the Decision and Resolution promulgated
POLLUTION CONTROL STATUTES AND IMPLEMENTING by the Court of Appeals entitled "Solar Textile Finishing
REGULATIONS, AN EXERCISE THEREOF. The relevant Corporation v. Pollution Adjudication Board," which
pollution control statute and implementing regulations reversed an order of the Regional Trial Court. In addition,
were enacted and promulgated in the exercise of that petitioner Board claims that under P.D. No. 984, Section
persuasive, sovereign power to protect the safety, health, 7(a), it has legal authority to issue ex parte orders to
and general welfare and comfort of the public, as well as the suspend the operations of an establishment when there is
protection of plant and animal life, commonly designated as prima facie evidence that such establishment is discharging
the police power. effluents or wastewater, the pollution level of which
exceeds the maximum permissible standards set by the
3. CONSTITUTIONAL LAW; DUE PROCESS; YIELDS TO THE NPCC (now, the Board). Petitioner Board contends that the
EXERCISE OF POLICE POWER. It is a constitutional reports before it concerning the effluent discharges of Solar
common place that the ordinary requirements of procedural into the River provided prima facie evidence of violation by
due process yield to the necessities of protecting vital public Solar of Section 5 of the 1982 Effluent Code. Solar, on the
interests like those here involved, through the exercise of other hand, contends that under the Board's own rules and
police power. regulations, an ex parte order may issue only if the effluents
Pollution Adjudication Board vs. CA et al. discharged pose an "immediate threat to life, public health,
safety or welfare, or to animal and plant life." In the instant
FACTS: Respondent, Solar Textile Finishing Corporation was case, according to Solar, the inspection reports before the
involved in bleaching, rinsing and dyeing textiles with Board made no finding that Solar's wastewater discharged
wastewater being directly discharged into a canal leading to posed such a threat.
the adjacent Tullahan- Tinerejos River. Petitioner Board, an
agency of the Government charged with the task of ISSUE: Whether or not the Court of Appeals erred in
determining whether the effluents of a particular industrial reversing the trial court on the ground that Solar had been
establishment comply with or violate applicable anti- denied due process by the Board.
pollution statutory and regulatory provisions, have been
remarkably forbearing in its efforts to enforce the HELD: The Court found that the Order and Writ of Execution
applicable standards vis-a-vis Solar. Solar, on the other were entirely within the lawful authority of petitioner
hand, seemed very casual about its continued discharge of Board. Ex parte cease and desist orders are permitted by
untreated, pollutive effluents into the river. Petitioner law and regulations in situations like here. The relevant
Board issued an ex parte Order directing Solar immediately pollution control statute and implementing regulations
to cease and desist from utilizing its wastewater pollution were enacted and promulgated in the exercise of that
source installations. Solar, however, with preliminary pervasive, sovereign power to protect the safety, health, and
injunction against the Board, went to the Regional Trial general welfare and comfort of the public, as well as the
Court on petition for certiorari, but it was dismissed upon protection of plant and animal life, commonly designated as
two (2) grounds, i.e., that appeal and not certiorari from the the police power. It is a constitutional commonplace that
questioned Order of the Board as well as the Writ of the ordinary requirements of procedural due process yield
Execution was the proper remedy, and that the Board's to the necessities of protecting vital public interests like
subsequent Order allowing Solar to operate temporarily those here involved, through the exercise of police power.
had rendered Solar's petition moot and academic. Hence, the trial court did not err when it dismissed Solar's
Dissatisfied, Solar went on appeal to the Court of Appeals, petition for certiorari. It follows that the proper remedy was
which reversed the Order of dismissal of the trial court and an appeal from the trial court to the Court of Appeals, as
remanded the case to that court for further proceedings. In Solar did in fact appeal. The Court gave due course on the
addition, the Court of Appeals declared the Writ of Petition for Review and the Decision of the Court of Appeals
Execution null and void. At the same time, the CA said that 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 LLDA for the development of the region. . . . While it is a
the trial court were reinstated, without prejudice to the fundamental rule that an administrative agency has only
right of Solar to contest the correctness of the basis of the such powers as are expressly granted to it by law, it is
Board's Order and Writ of Execution at a public hearing likewise a settled rule that an administrative agency has
before the Board. also such powers as are necessarily implied in the exercise
of its express powers. In the exercise, therefore, of its
6. Laguna Lake Development Auth v. CA [1995] express powers under its charter, as a regulatory and quasi-
HERMOSISIMA, JR., J p: judicial body with respect to pollution cases in the Laguna
POLITICAL LAW; LOCAL GOVERNMENT; REPUBLIC ACT NO. Lake region, the authority of the LLDA to issue a 'cease and
7160; DOES NOT CONTAIN ANY EXPRESS PROVISION desist order' is, perforce, implied. Otherwise, it may well be
CATEGORICALLY REPEALING THE CHARTER OF THE reduced to a 'toothless' paper agency." There is no question
LAGUNA LAKE DEVELOPMENT AUTHORITY. We hold that the Authority has express powers as a regulatory and
that the provisions of Republic Act No. 7160 do not quasi-judicial body in respect to pollution cases with
necessarily repeal the aforementioned laws creating the authority to issue a "cease and desist order" and on matters
Laguna Lake Development Authority and granting the latter affecting the construction of illegal fishpens, fishcages and
water rights authority over Laguna de Bay and the lake other aqua-culture structures in Laguna de Bay. The
region. The Local Government Code of 1991 does not Authority's pretense, however, that it is co-equal to the
contain any express provision which categorically expressly Regional Trial Courts such that all actions against it may
repeal the charter of the Authority. It has to be conceded only be instituted before the Court of Appeals cannot be
that there was no intent on the part of the legislature to sustained. On actions necessitating the resolution of legal
repeal Republic Act No. 4850 and its amendments. The questions affecting the powers of the Authority as provided
repeal of laws should be made clear and expressed. for in its charter, the Regional Trial Courts have jurisdiction.

ADMINISTRATIVE AGENCIES; LAGUNA LAKE 4. ID.; ID.; ID.; HAS EXCLUSIVE JURISDICTION TO ISSUE
DEVELOPMENT AUTHORITY; A REGULATORY AND QUASI- PERMITS FOR THE ENJOYMENT OF FISHERY PRIVILEGES
JUDICIAL BODY. In respect to the question as to whether IN LAGUNA DE BAY TO THE EXCLUSION OF
the Authority is a quasi-judicial agency or not, it is our MUNICIPALITIES SITUATED THEREIN AND THE
holding that, considering the provisions of Section 4 of AUTHORITY TO EXERCISE SUCH POWERS AS ARE BY ITS
Republic Act No. 4850 and Section 4 of Executive Order No. CHARTER VESTED ON IT. This Court holds that Section
927, series of 1983, and the ruling of this Court in Laguna 149 of Republic Act No. 7160, otherwise known as the Local
Lake Development Authority vs. Court of Appeals,231 SCRA Government Code of 1991, has not repealed the provisions
304, 306, which we quote: ". . . As a general rule, the of the charter of the Laguna Lake Development Authority,
adjudication of pollution cases generally pertains to the Republic Act No. 4850, as amended. Thus, the Authority has
Pollution Adjudication Board (PAB), except in cases where the exclusive jurisdiction to issue permits for the enjoyment
the special law provides for another forum. It must be of fishery privileges in Laguna de Bay to the exclusion of
recognized in this regard that the LLDA, as a specialized municipalities situated therein and the authority to exercise
administrative agency, is specifically mandated under such powers as are by its charter vested on it. Removal from
Republic Act No. 4850 and its amendatory laws to carry out the Authority of the aforesaid licensing authority will
and make effective the declared national policy of render nugatory its avowed purpose of protecting and
promoting and accelerating the development and balanced developing the Laguna Lake Region. Otherwise stated, the
growth of the Laguna Lake area and the surrounding abrogation of this power would render useless its reason for
provinces of Rizal and Laguna and the cities of San Pablo, being and will in effect denigrate, if not abolish, the Laguna
Manila, Pasay, Quezon and Caloocan with due regard and Lake Development Authority. This, the Local Government
adequate provisions for environmental management and Code of 1991 had never intended to do.
control, preservation of the quality of human life and
ecological systems, and the prevention of undue ecological 7. RA 7611: Strategic Environmental Plan for Palawan
disturbances, deterioration and pollution. Under such a Sec.1 Title. This Act shall be known as the "Strategic
broad grant of power and authority, the LLDA, by virtue of Environmental Plan (SEP) for Palawan Act."
its special charter, obviously has the responsibility to
protect the inhabitants of the Laguna Lake region from the Sec.2 Declaration of Policy. It is hereby declared the policy
deleterious effects of pollutants emanating from the of the State to protect, develop and conserve its natural
discharge of wastes from the surrounding areas. In carrying resources. Toward this end, it shall assist and support the
out the aforementioned declared policy, the LLDA is implementation of plans, programs and projects formulated
mandated, among others, to pass upon and approve or to preserve and enhance the environment, and at the same
disapprove all plans, programs, and projects proposed by time pursue the socioeconomic development goals of the
local government offices/agencies within the region, public country.
corporations, and private persons or enterprises where
such plans, programs and/or projects are related to those of

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 18


It shall support and promote the sustainable development (10) "SEP" refers to the Strategic Environmental Plan
goals for the provinces through proper conservation, discussed in Section 4 of this Act;
utilization and development of natural resources to provide (11) "ECAN" refers to the Environmentally Critical Areas
optimum yields on a continuing basis. With specific Network as provided in Section 7 of this Act; and
reference to forest resources, the (I2) "EMES" refers to the Environmental Monitoring and
State shall pursue and implement forest conservation and Evaluation System provided in Section 13 of this Act.
protection through the imposition of a total commercial
logging ban as hereinafter provided. Sec.4 Strategic Environmental Plan. -A comprehensive,
framework for the sustainable development of Palawan
It shall also adopt the necessary measures leading to the compatible with protecting and enhancing the natural
creation of an institutional machinery including, among resources and endangered environment of the province is
others, fiscal and financial programs to ensure the effective hereby adopted. Such framework shall be known as the
and efficient implementation of environmental plans, Strategic Environmental Plan for Palawan, hereinafter
programs, and projects. referred to as SEP and shall serve to guide the local
government of Palawan and the government agencies
It shall also promote and encourage the involvement of all concerned in the formulation and implementation of plans,
sectors of society and maximize people participation in programs and projects affecting said province.
natural resource management, conservation and protection. Sec. 5 Strategic Environmental Plan (SEP) Philosophy. - The
SEP shall have, as its general philosophy, the sustainable
Sec. 3 Definition of Terms. - As used in this Act, the following development of Palawan, which is the improvement in the
terms are defined as follows: quality of life of its people in the present and future
(1) "Palawan" refers to the Philippine province composed of generations through the use of complementary activities of
islands and islets located 70 47' and 120 22' north latitude development and conservation that protect life-support
and 1170 00' and 110 951' east longitude, generally ecosystems and rehabilitate exploited areas to allow
bounded by the South China Sea to the northwest and by the upcoming generations to sustain development growth. It
Sulu Sea to the east; shall have the following features:
(2) "Sustainable development" means the improvement in
the quality of life of the present and future generations (1) Ecological viability - The physical and biological cycles
through the complementation of development and that maintain the productivity of natural ecosystems must
environmental protection activities; always be kept intact;
(3) "Natural resources" refers to life-support systems such (2) Social acceptability - The people themselves, through
as the sea, coral reefs, soil, lakes, rivers, streams, and forests participatory processes, should be fully committed to
as well as useful products found therein such as minerals, support sustainable development activities by fostering
wildlife, trees and other plants, including the aesthetic equity in access to resources and the benefits derived from
attributes them; and
of scenic sites that are not man-made; (3) Integrated approach - This allows for a holistic view of
(4) "Tribal land areas" refers to the areas comprising both problems and issues obtaining in the environment as well as
land and sea that are traditionally occupied by the cultural opportunities for coordination and sharing that will
minorities; eventually provide the resources and political will to
(5) "Environmentally critical areas" refers to terrestrial, actually implement and sustain SEP activities.
aquatic and marine areas that need special protection and
conservation measures as they are ecologically fragile; Sec.7 Environmentally Critical Areas Network (ECAN) -The
(6) "Participatory processes" means the involvement of all SEP shall establish a graded system of protection and
the key sectors of development, from the grassroots to the development control over the whole of Palawan, including
policy-making bodies of the National Government, in its tribal lands forests, mines, agricultural areas, settlement
providing the values and ideas from which strategic areas, small islands, mangroves, coral reefs, sea grass beds
development and environmental protection action can come and the surrounding sea. This shall be known as the
about; Environmentally Critical Areas Network, hereinafter
(7) "Conservation" refers to the wise use of natural referred to as ECAN, and shall serve as the main strategy of
resources that assures regeneration and replenishment for the SEP.
continuous benefit;
(8) "Ecology" refers to the life-sustaining interrelationship The ECAN shall ensure the following:
and interactions of organisms with each other and with (I) Forest conservation and protection through the
their physical surroundings; imposition of a total commercial logging ban in all areas of
(9) "Commercial logging" refers to the cutting, felling or maximum protection and in such other restricted use zones
destruction of trees from old growth and residual forests for as the Palawan Council for Sustainable Development as
the purpose of selling or otherwise disposing of the cut or hereinafter created may provide;
felled logs for profit; (2) Protection of watersheds;

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 19


(3) Preservation of biological diversity; powers under the Code is the enforcement of fishery laws in
municipal waters including the conservation of mangroves.
(4) Protection of tribal people and the preservation of their In light then of the principles of decentralization and
culture. (5) Maintenance of maximum sustainable yield; devolution and the powers granted therein to local
(6) Protection of the rare and endangered species and their government units under the General Welfare Clause and
habitat; those which involve the exercise of police power, the
(7) Provision of areas [or environmental and ecological validity of the questioned Ordinances cannot be doubted.
research, education and training; and
(8) Provision of areas for tourist and recreation. The ordinances find full support under R.A. 7611, otherwise
known as the Strategic Environment Plan (SEP) for Palawan
Sec.8 Main Components. - The areas covered by the ECAN Act, approved on 19 June 1992 which adopts a
shall be classified into three (3) main components; comprehensive framework for the sustainable development
(1) Terrestrial - The terrestrial component shall consist of Palawan compatible with protecting and enhancing the
of the mountainous as well as ecologically natural resources and endangered environment of the
important low hills and lowland areas of the whole province.
province. It may be further subdivided into smaller
management components; The dissenting opinion of Justice Bellosillo relies upon the
(2) Coastal/marine area - This area includes the whole lack of authority on the part of the Sangguniang Panlungsod
coastline up to the open sea. This is characterized of Puerto Princesa to enact Ordinance No. 15, series of 1992,
by active fisheries and tourism activities; and as the subject thereof is within the jurisdiction and
(3) Tribal ancestral lands -These are the areas responsibility of the Bureau of Fisheries and Aquatic
traditionally occupied by the cultural communities. Resources (BFAR) under P.D. No. 704, the Fisheries Decree
of 1975, and the ordinance is unenforceable for lack of
8. Tano v. Socrates [1997] approval by the Secretary of the Department of
DAVIDE, JR., J p: Environment and Natural Resources (DENR) under P.D.
On December 15, 1992, the Sangguniang Panlungsod of 704. But BFAR is no longer under the Department of Natural
Puerto Princesa City enacted Ordinance No. 15-92 banning Resources (now DENR), but under the Ministry of
the shipment of all live fish and lobster outside Puerto Agriculture and Food and converted into a mere staff
Princesa City effective for five years. To implement the agency thereof. The approval that should be sought would
ordinance, the City Mayor of Puerto Princesa City issued be that of the Secretary of the Department of Agriculture.
Office Order No. 23 dated January 23, 1993, ordering However, the requirement of approval by the Secretary has
inspections on cargoes containing live fish and lobster being been dispensed with.
shipped out from air and sea. Likewise, on February 19,
1993, the Sangguniang Panlalawigan of the Provincial SYLLABUS:
Government of Palawan, enacted Resolution No. 33 and CONSTITUTIONAL LAWS; SOCIAL JUSTICE AND HUMAN
Ordinance No. 2, series of 1993, prohibiting the catching, RIGHTS; AGRARIAN AND NATURAL RESOURCES REFORM;
gathering, possessing, buying, selling and shipment of live SUBSISTENCE FISHERMEN; DISTINGUISHED FROM
marine coral dwelling aquatic organisms for a period of five MARGINAL FISHERMEN. Since the Constitution does not
years. specifically provide a definition of the terms "subsistence"
or "marginal" fishermen, they should be construed in their
Petitioners challenged the aforementioned ordinances and general and ordinary sense. A marginal fisherman is an
office order on the ground that it deprived them of due individual engaged in fishing whose margin of return or
process of law, their livelihood, and unduly restricted them reward in his harvest of fish as measured by existing price
from the practice of their trade. levels is barely sufficient to yield a profit or cover the cost of
gathering the fish, while a subsistence fisherman is one
The Supreme Court ruled that the challenged ordinances do whose catch yields but the irreducible minimum for his
not suffer any infirmity, both under the Constitution and livelihood. Section 131(p) of the LGC (R.A. No. 7160) defines
applicable laws, including the Local Government Code. a marginal farmer or fisherman as "an individual engaged in
There is no showing that any of the petitioners qualifies as a subsistence farming or fishing which shall be limited to the
subsistence or marginal fisherman. sale, barter or exchange of agricultural or marine products
produced by himself and his immediate family." It bears
The Local Government Code vests municipalities with the repeating that nothing in the record supports a finding that
power to grant fishery privileges in municipal waters and any petitioner falls within these definitions.
impose rentals, fees or charges therefor. The Sangguniangs 6. ID.; ID.; ID.; PREFERENTIAL RIGHT OF SUBSISTENCE OR
are directed to enact ordinances that protect the MARGINAL FISHERMEN TO THE USE OF MARINE
environment and impose appropriate penalties for acts RESOURCES IS NOT AT ALL ABSOLUTE. Anent Section 7
which endanger the environment such as dynamite fishing of Article XIII, it speaks not only of the use of communal
and other forms of destructive fishing. One of the devolved 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 the protection of its marine environment are concerned,
ordinances in question are meant precisely to protect and must be added the following: 1. Issuance of permits to
conserve our marine resources to the end that their construct fish cages within municipal waters; 2. Issuance of
enjoyment may be guaranteed not only for the present permits to gather aquarium fishes within municipal waters;
generation, but also for the generations to come. The so-
3. Issuance of permits to gather kapis shells within
called "preferential right" of subsistence or marginal
fishermen to the use of marine resources is not at all municipal waters; 4. Issuance of permits to gather/culture
absolute. In accordance with the Regalian Doctrine, marine shelled mollusks within municipal waters; 5. Issuance of
resources belong to the State, and, pursuant to the first licenses to establish seaweed farms within municipal
paragraph of Section 2, Article XII of the Constitution, their waters; 6. Issuance of licenses to establish culture pearls
"exploration, development and utilization . . . shall be under within municipal waters; 7. Issuance of auxiliary invoice to
the full control and supervision of the State." Moreover, transport fish and fishery products; and 8. Establishment of
their mandated protection, development and conservation "closed season" in municipal waters. These functions are
as necessarily recognized by the framers of the Constitution,
covered in the Memorandum of Agreement of 5 April 1994
imply certain restrictions on whatever right of enjoyment
there may be in favor of anyone. between the Department of Agriculture and the Department
of Interior and Local Government.
LGC HAS THE POWER TO ENFORCE FISHERIES LAWS IN
11. ID.; ID.; HAS THE POWER, INTER ALIA, TO ENACT
MUNICIPAL WATERS INCLUDING THE CONSERVATION OF
ORDINANCE TO ENHANCE THE RIGHT OF THE PEOPLE TO
MANGROVE. One of the devolved powers enumerated in
A BALANCED ECOLOGY. Under the general welfare
the section of the LGC on devolution is the enforcement of
clause of the LGC, local government units have the
fishery laws in municipal waters including the conservation
power, inter alia, to enact ordinances to enhance the right of
of mangroves. This necessarily includes the enactment of
the people to a balanced ecology. It likewise specifically
ordinances to effectively carry out such fishery laws within
vests municipalities with the power to grant fishery
the municipal waters. The term "municipal waters," in turn,
privileges in municipal waters, and impose rentals, fees or
includes not only streams, lakes, and tidal water within the
charges therefor; to penalize, by appropriate ordinances,
municipality, not being the subject of private ownership and
the use of explosives, noxious or poisonous substances,
not comprised within the national parks, public forest,
electricity, muro-ami, and other deleterious methods of
timber lands, forest reserves, or fishery reserves, but also
fishing; and to prosecute any violation of the provisions of
marine waters included between two lines drawn
applicable fishery laws. Finally, it imposes upon
perpendicularly to the general coastline from points where
the sangguniang bayan, thesangguniang panlungsod, and
the boundary lines of the municipality or city touch the sea
the sangguniang panlalawigan the duty to enact ordinances
at low tide and a third line parallel with the general
to "[p]rotect the environment and impose appropriate
coastline and fifteen kilometers from it. Under P.D. No. 704,
penalties for acts which endanger the environment such as
the marine waters included in municipal waters is limited to
dynamite fishing and other forms of destructive fishing . . .
three nautical miles from the general coastline using the
and such other activities which result in pollution,
above perpendicular lines and a third parallel line. cTDaEH
acceleration of eutrophication of rivers and lakes or of
10. ID.; ID.; ID.; SCOPE. These "fishery laws" which local ecological imbalance."
government units may enforce under Section 17(b)(2)(i) in
12. ID.; BUREAU OF FISHERIES AND AQUATIC RESOURCES;
municipal waters include: (1) P.D. No. 704; (2) P.D. No.
JURISDICTION AND RESPONSIBILITY OVER ALL FISHERY
1015 which, inter alia, authorizes the establishment of a
AND AQUATIC RESOURCES OF THE COUNTRY; NOT ALL-
"closed season" in any Philippine water if necessary for
ENCOMPASSING. The nexus then between the activities
conservation or ecological purposes; (3) P.D. No.
barred by Ordinance No. 15-92 of the City of Puerto
1219 which provides for the exploration, exploitation,
Princesa and the prohibited acts provided in Ordinance No.
utilization and conservation of coral resources; (4) R.A. No.
2, Series of 1993 of the Province of Palawan, on one hand,
5474, as amended by B.P. Blg. 58, which makes it unlawful
and the use of sodium cyanide, on the other, is painfully
for any person, association or corporation to catch or cause
obvious. In sum, the public purpose and reasonableness of
to be caught, sell, offer to sell, purchase, or have in
the Ordinances may not then be controverted. As to Office
possession any of the fish specie called gobiidae or "ipon"
Order No. 23, Series of 1993, issued by Acting City Mayor
during closed season; and (5) R.A. No. 6451 which prohibits
Amado L. Lucero of the City of Puerto Princesa, we find
and punishes electrofishing, as well as various issuances of
nothing therein violative of any constitutional or statutory
the BFAR. To those specifically devolved insofar as the
provision. The Order refers to the implementation of the
control and regulation of fishing in municipal waters and
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 3RD ASSIGNMENT
Panlungsod of Puerto Princesa to enact Ordinance No. 15, 1. PD 1152: Envi Code of Phils
Series of 1992, on the theory that the subject thereof is 2. RA 8749 : Clean Air Act
3. RA 9275: Clean Water Act
within the jurisdiction and responsibility of the Bureau of
4. RA 9003: Ecological Solid Waste Management Act
Fisheries and Aquatic Resources (BFAR) under P.D. No. 704, 5. RA 6969: Toxic Substances Control Act
otherwise known as the Fisheries Decree of 1975; and that, 6. PD 1586: Environmental Impact Assessment
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. 1. PD 1152: Envi Code of Phils - Enacted in June 6, 1977
The majority is unable to accommodate this view. The Purpose : To achieve and maintain such levels of air quality
jurisdiction and responsibility of the BFAR under P.D. No. as to protect public health and to prevent to the greatest
extent practicable, injury and/or damage to plant and
704, over the management, conservation, development,
animal life and property, and promote the social and
protection, utilization and disposition of all fishery and economic development of the country
aquatic resources of the country is not all encompassing. - Control Area - Nationwide
First, Section 4 thereof excludes from such jurisdiction and
responsibility municipal waters, which shall be under the Overview
municipal or city government concerned, except insofar as The broad spectrum of environment has become a matter of
fishpens and seaweed culture in municipal centers are vital concern to the government
concerned. This section provides, however, that all The national leadership has taken a step towards this
direction by creating the National Environmental Protection
municipal or city ordinances and resolutions affecting
Council
fishing and fisheries and any disposition thereunder shall be
submitted to the Secretary of the Department of Natural It is necessary that the creation of the Council be
Resources for appropriate action and shall have full force complemented with the launching of comprehensive
and effect only upon his approval. Second, it must at once be program of environmental protection and management
pointed out that the BFAR is no longer under the Such a program can assume tangible and meaningful
Department of Natural Resources (now Department of significance only by establishing specific environment
Environment and Natural Resources). Executive Order No. management policies and prescribing environment quality
standards in a Philippine Environment Code
967 of 30 June 1984 transferred the BFAR from the control

and supervision of the Minister (formerly Secretary) of
Features
Natural Resources to the Ministry of Agriculture and Food 1. Provided a comprehensive program of environmental
(MAF) and converted it into a mere staff agency thereof, protection and management. The Code established specific
integrating its functions with the regional offices of the environment management policies and prescribes
MAF. environmental quality standards.
2. To achieve and maintain such levels of air quality as to
13. ID.; SECRETARY OF THE DEPARTMENT OF protect public health and to prevent to the greatest extent
AGRICULTURE; APPROVAL OF MUNICIPAL ORDINANCE practicable, injury and/or damage to plant and animal life
AFFECTING FISHING AND FISHERIES IN MUNICIPAL and property, and promote the social and economic
WATERS HAS BEEN DISPENSED WITH; REASON development of the country
THEREFOR. In Executive Order No. 116 of 30 January 3. Prescribe management guidelines to protect and improve
water quality through: classification of Philippine waters,
1987, which reorganized the MAF, the BFAR was retained as
establishment of water quality standards, protection and
an attached agency of the MAF. And under
improvement of the quality of the Philippine water
the Administrative Code of 1987, the BFAR is placed under resources, and responsibilities for surveillance and
the Title concerning the Department of Agriculture. mitigation of pollution incidents
Therefore, it is incorrect to say that the challenged 4. Set guidelines for waste management with a view to
Ordinance of the City of Puerto Princesa is invalid or ensuring its effectiveness, encourage, promote and
unenforceable because it was not approved by the Secretary stimulate technological, educational, economic and social
of the DENR. If at all, the approval that should be sought efforts to prevent environmental damage and unnecessary
loss of valuable resources of the nation through recovery,
would be that of the Secretary of the Department of
recycling and re-use of wastes and wastes products, and
Agriculture. However, the requirement of approval by the
provide measures to guide and encourage appropriate
Secretary of the Department of Agriculture (not DENR) of government agencies in establishing sound, efficient,
municipal ordinances affecting fishing and fisheries in
municipal waters has been dispensed with.

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 22


comprehensive and effective wastes management covering environmental protection into its development plans. It
both solid and liquid wastes relies heavily on the polluter pays principle and other
TITLE III LAND USE MANAGEMENT market-based instruments to promote self-regulation
Purposes (Sec. 22) - Rational, orderly & efficient among the population. It sets emission standards for all
acquisition, utilization & disposition of land to derive motor vehicles and issues registration only upon
maximum benefit demonstration of compliance. It also issues pollutant
- To encourage prudent use and conservation National Land limitations for industry. Polluting vehicles and industrial
Use Scheme (Sec. 23) processes must pay a charge. Any individual, enterprise,
- Human Settlements Commission shall formulate and corporation or groups that installed pollution control
recommend to the National Environmental Protection devices or retrofitted its existing facilities to comply with
Council a land use scheme the emissions standards in the Act can apply for tax
BP 220 & PD 957 (Subdivision and Condominium Buyers incentives of accelerated depreciation, deductibility of R&D
Protective Decree) Location of Industries (Sec. 24) expenditures or tax credits on the VAT of the equipment
and are exempt from real property tax on the machinery or
TITLE IV NATURAL RESOURCES MANAGEMENT AND equipment used to comply. It also establishes a R&D
CONSERVATION program for air pollution reduction mechanisms and
1. Fisheries & Aquatic Resources technologies. It bans incineration and smoking in public
RA 8550- Philippine Fisheries Code of 1998 places. At the local and municipal levels, governments are
2. Wildlife RA 9147- Wildlife Resources Conservation and allowed to set emission quotas by pollution source, and the
Protection Act development of recycling programs is encouraged.
3. Forestry & Soil Conservation
PD 705- Revised Forestry Code of 1998 DECLARATION OF POLICIES
RA 8435 Agriculture & Fisheries Modernization Act of It shall be the policy of the State to: Formulate a holistic
1997 national program of air pollution management that shall be
4. Flood Control and Natural Calamities implemented by the government through proper delegation
PD 10121- Philippine Disaster Risk Reduction and and effective coordination of functions and activities.
Management Act of 2010
5. Energy Development RECOGNITION OF RIGHTS
RA 7638- Department of Energy Act of 1992 1. The right to breathe clean air;
6. Conservation and Utilization of Surface Ground Waters 2. The right to utilize and enjoy all natural resources
PD 1067- Water Code of the Philippines Mineral Resources according to the principle of sustainable development;
RA 7942- Philippine Mining Act of 1995 3. The right to participate in the formulation, planning,
RA 7076- Peoples Small Scale Mining Act of 1991 implementation and monitoring of environmental policies
and programs and in the decision-making process;
TITLE V WASTE MANAGEMENT (RA 9003)
Enforcement Guidelines AIR QUALITY MANAGEMENT SYSTEM
Methods of Solid Waste Management Disposal Air Quality Monitoring and Information Network. - The
Methods of Liquid Waste Management Disposal Department shall prepare an annual National Air Quality
Status Report which shall be used as the basis in
TITLE VI MISCELLANEOUS PROVISIONS formulating the Integrated Air Quality Improvement
Sec. 52. Population-Environment Balance Framework as provided for in Section 7.
Sec. 53. Environmental Education
Sec. 54 Environmental Research Integrated Air Quality Improvement Framework - The
Sec. 55. Monitoring and Dissemination of Environmental Department shall, within six (6) months after the effectivity
Info of this Act, establish, with the participation of LGUs, NGOs,
Sec. 56. Incentives POs, the academe and other concerned entities from the
Sec. 57. Financial Assistance/ Grant private sector, formulate and implement the Integrated Air
Sec. 58. Participation of Local Government Units and Private Quality Improvement Framework for a comprehensive air
Indiv. pollution management and control program.
Sec. 59 Preservation of Prehistoric & Cultural Resources &
Heritage Air Quality Control Action Plan. Within six (6) months after
Sec. 60. Government Offices Performing Environmental the formulation of the framework, the Department shall
Protection with public participation, formulate and implement an air
quality control action plan consistent with Section 7 of this
2. RA 8749 : Philippines: Clean Air Act Act.
To effectively carry out the formulated action plans, a
Overview: The Clean Air Act outlines the governments Governing Board is hereby created, hereinafter referred to
measures to reduce air pollution and incorporate as the Board.

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 23


Pollution from Smoking. - Smoking inside a public building
Air Quality Control Techniques. - Simultaneous with the or an enclosed public place including public vehicles and
issuance of the guideline values and standards, the other means of transport or in any enclosed area outside of
Department, through the research and development one's private residence, private place of work residence, or
program contained in this Act and upon consultation with any duly designated smoking area is hereby prohibited
the appropriate advisory committees, government agencies under this Act. This provision shall be implemented by the
and LGUs, shall issue, and from time to time, revise LGUs.
information on air pollution control techniques.
FUELS, ADDITIVES SUBSTANCES AND POLLUTANT'S
Air Quality Management Fund. - An Air Quality ARTICLE ONE FUELS, ADDITIVES AND SUBSTANCES
Management Fund to be administered by the Department as SEC. 26. Fuels and Additives.
a special account in the National Treasury is hereby the Department of Energy (DOE), co-chaired by the
established to finance containment, removal, and clean-up Department of Environment and Natural Resources (DENR),
operations of the Government in air pollution cases, in consultation with the Bureau of Product Standards (BPS)
guarantee restoration of ecosystem and rehabilitate areas of the DTI, the DOST, the representatives of the fuel and
affected by the acts of violators of this Act. automotive industries, academe and the consumers shall set
the specifications for all types of fuel and fuel-related
Air Pollution Research and Development Program. The products
Department in coordination with the Department of Science
and Technology (DOST), other agencies, the private sector, SEC. 26. Fuels and Additives. - The DOE, shall also specify
the academe, NGOs and POs, shall establish a National the allowable content of additives in all types of fuels and
Research and Development Program for the prevention and fuel-related products. Such standards shall be based
control of air pollution. primarily on threshold levels of health and research studies.
- the DOE shall likewise limit the content or begin the
AIR POLLUTION CLEARANCES AND FOR STATIONARY phase-out of additives in all types of fuels and fuel-related
SOURCES products
Permits. - Consistent with the provisions of this Act, the
Department shall have the authority to issue permits as it SEC. 26. Fuels and Additives
may determine necessary for the prevention and abatement No person shall manufacture, import, sell, supply, offer for
of air pollution. sale, dispense, transport or introduce into commerce
beyond specified indexes.
Pollution From Stationary Sources. - The Department shall
within two (2) years from the effectivity of this Act, and Every two (2) years thereafter or as the need arises, the
every two (2) years thereafter, review, or as the need specifications of unleaded gasoline and of automotive and
therefor arises, revise and publish emission standards for industrial diesel fuels shall be reviewed and revised for
stationary sources of air pollution. further improvement.

Ban on Incineration. Incineration, hereby defined as the SEC. 27. Regulation of Fuels and Fuel Additives
burning of municipal, bio-medical and hazardous wastes, The DOE, in coordination with the Department and the BPS,
which process emits poisonous and toxic fumes, is hereby shall regulate the use of any fuel or fuel additive.
prohibited.
Local government units are hereby mandated to promote, No manufacturer, processor or trader of any fuel or additive
encourage and implement in their respective jurisdiction a may import, sell, offer for sale, or introduce into commerce
comprehensive ecological wastes management that includes such fuel or additive unless the same has been registered
waste segregation, recycling and composting. with the DOE.

Pollution from Motor Vehicles. The DOTC shall implement Prior to registration, the manufacturer, processor or trader
the emission standards for motor vehicles set pursuant to shall provide the DOE with the following relevant
and as provided in this Act. To further improve the emission information.
standards, the Department shall review, revise and publish
the standards every two (2) years, or as the need arises. Misfueling - no person shall introduce or cause or allow the
introduction of leaded gasoline into any motor vehicle
Regulation of All Motor Vehicles and Engines. Any imported equipped with a gasoline tank filler inlet and labeled
new or locally-assembled new motor vehicle shall not be unleaded gasoline only
registered unless it complies with the emission standards
set pursuant to this Act, as evidenced by a Certificate of Prohibition on Manufacture, Import and Sale of Leaded
Conformity (COC) issued by the Department. 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, his duty; or, in any manner, improperly performs his duties
introduce into commerce, convey or otherwise dispose of, in under this Act or its implementing rules and regulations
any manner leaded gasoline and engines and components
requiring the use of leaded gasoline 3. RA 9275: Clean Water Act

Ozone-Depleting Substances shall also be monitored. Why the need for the Clean Water Act?
As early as 1996, monitoring of the countrys rivers showed
Radioactive Emissions - projects which will involve the use, that only 51% of the classified rivers still met the standards
of atomic and/or nuclear energy, shall be regulated in the for their most beneficial use. The rest were already polluted
interest of public health and welfare by the Philippine from domestic, industrial and agricultural sources.
Nuclear Research Institute (PNRI) and other appropriate
government agencies Most studies point to the fact that domestic wastewater is
the principal cause of organic pollution (at 48%) of our
INSTITUTIONAL MECHANISM water bodies. Yet, only 3% of investments in water supply
The Department or its duly accredited entity shall, after and sanitation were going to sanitation and sewage
proper consultation and notice, require any person who treatment.
owns or operates any emission source or who is subject to
any requirement of this Act to: A recent World Bank report pointed out that Metro Manila
- establish and maintain relevant records; was second to the lowest in sewer connections among
- make relevant reports; major cities in Asia and less than 7% compared to 20% for
- install, use and maintain monitoring equipment or Katmandu, Nepal and 30% for Dhaka, Bangladesh.
methods;
- sample emission, in accordance with the methods, Thirty-one percent (31%) of all illnesses in the country are
locations, intervals, and manner prescribed by the attributed to polluted waters. Clearly, to ensure access to
Department; clean water for all Filipinos, it was imperative that
- keep records on control equipment parameters, government put together a comprehensive strategy to
production variables or other indirect data when direct protect water quality.
monitoring of emissions is impractical;
- provide such other information as the Department may What is the Clean Water Act?
reasonably require the Department, through its authorized The Philippine Clean Water Act of 2004 (Republic Act No.
representatives, shall have the right of: 9275) aims to protect the countrys water bodies from
- entry or access to any premises including documents and pollution from land-based sources (industries and
relevant materials commercial establishments, agriculture and
- inspect any pollution or waste source, control device, community/household activities). It provides for a
monitoring equipment or method required; and comprehensive and integrated strategy to prevent and
- test any emission. minimize pollution through a multisectoral and
participatory approach involving all the stakeholders.
Public Education and Information Campaign. - A continuing
air quality information and education campaign shall be Highlights of the Clean Water Act
promoted How will water quality be managed?
Management of water quality will either be based on
ACTIONS watershed, river basin or water resources region. Water
Administrative Action- Sec. 40 provides that the quality management areas with similar hydrological,
Department shall institute administrative proceedings hydrogeological, meteorological or geographic conditions
against any person who violates: which affect the reaction and diffusion of pollutants in
a) Standards or limitation provided under this Act; or water bodies are to be designated by the DENR in
b) Any order, rule or regulation issued by the Department coordination with the
with respect to such standard or limitation.
National Water Resources Board (NWRB).
Citizen Suits- Any person who violates or fails to comply Who will manage these areas?
with the provisions of this Act or its implementing rules and Management will be localized. Multi-sectoral governing
regulations; or boards will be established to manage water quality issues
The Department or other implementing agencies with within their jurisdiction.
respect to orders, rules and regulations issued inconsistent
with this Act, and/or Any public officer who willfully or Who are the members of the Governing Boards?
grossly neglects the performance of an act specifically Governing Boards shall be composed of representatives of
enjoined as a duty by this Act or its implementing rules and mayors and governors as well as local government units,
regulations; or abuses his authority in the performance of representatives of relevant national government agencies,

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 25


duly registered non-government organizations, the receiving body of water. Fiscal and non-fiscal incentives will
concerned water utility sector and the business sector. also be given to LGUs, water districts, enterprise, private
entities and individuals who develop and undertake
What are the functions of the Governing Boards? outstanding and innovative projects in water quality
The Governing Boards will formulate strategies to management.
coordinate policies necessary for the effective
implementation of this Act. They will create a multi-sectoral What safeguards are provided for?
group to establish and effect water quality surveillance and All possible dischargers are required to put up an
monitoring. environmental guarantee fund (EGF) as part of their
environmental management plan. The EGF will finance the
How will discharges of wastewater be controlled? conservation of watersheds and aquifers, and the needs of
All owners or operators of facilities that discharge emergency response, clean up or rehabilitation.
wastewater are required to get a permit to discharge from
the DENR or the Laguna Lake Development Authority. What are the prohibited acts under R.A. 9275?
Existing industries without any permit are given 12 months Among others, the Act prohibits the following:
from the effectivity of the implementing rules and Discharging or depositing any water pollutant to the water
regulations (IRR) promulgated pursuant to this Act to body, or such which will impede natural flow in the
secure a permit to discharge. water body
Discharging, injecting or allowing to enter into the soil,
How will domestic wastewater be addressed? anything that would pollute groundwater
The Department of Public Works and Highways (DPWH), in Operating facilities that discharge regulated water
coordination with local government units will prepare a pollutants without the valid required permits
national program on sewage and septage management not Disposal of potentially infectious medical waste into sea
later than 12 months from effectivity of this Act. A priority by vessels
list will likewise be prepared which will be the basis for the Unauthorized transport or dumping into waters of sewage
allotment of funds on an annual basis by the national sludge or solid waste.
government for the construction and rehabilitation of Transport, dumping or discharge of prohibited chemicals,
required facilities. substances or pollutants listed under Toxic Chemicals,
Hazardous and Nuclear Wastes Control Act (Republic.Act
On the other hand, LGUs are to provide the land including No. 6969)
road right of the way for the construction of sewage and/or Discharging regulated water pollutants without the valid
septage treatment facilities and raise funds for the required discharge permit pursuant to this Act
operations and maintenance of said facilities. Noncompliance of the LGU with the Water Quality
Framework and Management Area Action Plan
The Department of Health (DOH) will formulate guidelines Refusal to allow entry, inspection and monitoring as well
and standards for the collection, treatment and disposal of as access to reports and records by the DENR in
sewage as well as the guidelines for the establishment and accordance with this Act
operation of centralized sewage treatment system. The Refusal or failure to submit reports and/or designate
MWSS and other agencies mandated to provide water pollution control officers whenever required by the
supply and sewerage facilities are required to connect DENR in accordance with this Act
existing sewage lines, subject to the payment of sewerage Directly using booster pumps in the distribution system or
service charges/fees within five years following effectivity tampering with the water supply in such a way to alter
of this Act. or impair the water quality
Operate facilities that discharge or allow to seep, willfully
All sources of sewage and septage are required to comply or through grave negligence, prohibited chemicals,
with the law. substances, or pollutants listed under R.A. No. 6969, into
water bodies.
How will the discharge of wastewater be discouraged? Undertake activities or development and expansion of
Anyone discharging wastewater into a water body will have projects, or operating wastewater treatment/sewerage
to pay a wastewater charge. This economic instrument facilities in violation of P.D.1586 and its IRR.
which will be developed in consultation with all concerned
stakeholders is expected to encourage investments in 4. RA 9003: Ecological Solid Waste Management Act
cleaner production and pollution control technologies to
reduce the amount of pollutants generated and discharged. What is R.A. No. 9003?
Republic Act No. 9003 or the Philippine Ecological Solid
Effluent trading per management area will also be allowed. Waste Management Act of 2000 provides the legal
Rewards will also be given to those whose wastewater framework for the countrys systematic, comprehensive,
discharge is better than the water quality criteria of the and ecological solid waste management program that shall

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 26


ensure protection of public health and the environment. It l. Promotion of research on solid waste management and
emphasizes the need to create the necessary mechanisms environmental education in the formal and non-formal
and incentives to pursue an effective solid waste sectors.
management at the local government levels.
5. R.A 6969 - Toxic Substances and Hazardous and
What are the important features of the Solid Waste Nuclear Wastes Control Act of 1990
Management Act?
a. Creation of the National Solid Waste Management PURPOSE/OBJECTIVES
Commission (NSWMC), the National Ecology Center (NEC), 1. To keep an inventory of chemicals and such other
and the Solid Waste Management Board in every province, information as may be considered relevant to the
city and municipality in the country. protection of health and the environment
- The NSWMC shall be responsible in the formulation of 2. To monitor and regulate the chemical substances and
the National Solid Waste Management Framework mixtures that present unreasonable risk or injury to
(NSWMF) and other policies on solid waste, in overseeing health or to the environment in accordance with national
the implementation of solid waste management plans and policies and international commitments
the management of the solid waste management fund. 3. To inform and educate the populace regarding the
- The NEC, on the other hand, shall be responsible for hazards and risks attendant of toxic chemicals and other
consulting, information, training and networking services substances and mixture
relative to the implementation of R.A.No. 9003. 4. To prevent the entry, even in transit, as well as the
- The Solid Waste Management Board of provinces, cities, keeping or storage and disposal of hazardous and nuclear
and municipalities shall be responsible for the wastes into the country for whatever purpose
development of their respective solid waste management
plans. SCOPE : Importation, Manufacture, Processing, Handling,
storage, Transportation, Sale, distribution, use and disposal
b. Formulation of the NSWMF: 10-year solid management of ALL unregulated chemical substances and mixtures in the
plans by local government units; Philippines, including the entry, even in transit as well as
the keeping or storage and disposal
c. Mandatory segregation of solid waste to be conducted
primarily at the source such as household, institutional, Some Important Definition of Terms
industrial, commercial and agricultural sources; Hazardous substances - Substances which presents either
Short-term acute hazards or Long Term Environmental
d. Setting of minimum requirements to ensure systematic Hazards
collection and transport of wastes and the proper Short Term Acute Hazards- Acute toxicity by
protection of garbage collectors' health; Ingestion / Inhalation or skin absorption / Corrosivity or
other skin or eye contact hazards or
e. Establishment of reclamation programs and buy-back The risk of fire or explosion;
centers for recyclable and toxic materials;
Long-Term Environmental Hazards
f. Promotion of eco-labeling in local products and services; Chronic toxicity upon repeated exposure
Carcinogenicity
g. Prohibition on non-environmentally acceptable products Resistance to detoxification process such as biodegradation
and packaging; The potential to pollute underground or surface waters
Aesthetically objectionable properties such as offensive
h. Establishment of Materials Recovery Facility (MRF) in odors.
every barangay or cluster of barangays;
Hazardous Waste- Substances that are without any safe
i. Prohibition against the use of open dumps; commercial, industrial, agricultural or economic usage

j. Setting of guidelines/criteria for the establishment of IMPLEMENTING AGENCY - The Implementing Agency is the
controlled dumps and sanitary landfills; DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES (DENR)
k. Provision of rewards, incentives both monetary and non-
monetary, financial assistance, grants and the like to In formulating the implanting rules and regulations of this
encourage LGUs and the general public to undertake law, the Inter-Agency Technical Advisory Council was
effective solid waste management; and created.

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

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 27


3 Representatives of NGO and the Secretaries of DENR, violation of this Act or implementing rules and regulations
DOH, DTI, DOST, DND (Dept. of National Defense), DFA, or orders;
DOLE, DOF (Dept. of Finance), DA - Failure or refusal to submit reports, notices or other
information, access to records, as required by this Act, or
PRE-MANUFACTURING AND PRE-IMPORTATION permit inspection of establishment where chemicals are
REQUIREMENTS manufactured, processed, stored or otherwise held;
- the manufacturer, processor or importer shall submit the - Failure or refusal to comply with the pre-manufacture and
following information: the name of the chemical substance pre-importation requirements; and
or mixture, its chemical identity and molecular structure, - Cause, aid or facilitate, directly or indirectly, in the storage,
proposed categories of use, an estimate of the amount to be importation, or bringing into Philippines territory, including
manufactured, processed or imported, processing and its maritime economic zones, even in transit, either by
disposal thereof , any test data related to health and means of land, air or sea transportation or otherwise
environmental effects which the manufacturer, processor or keeping in storage any amount of hazardous and nuclear
importer has. wastes in any part of the Philippines.

After passing the requirements, what happens next? 6. PD 1586: Environmental Impact Assessment
The Secretary of Environment and Natural Resources or his Enacted and Implemented in 1978
duly authorized representative shall, within ninety (90)
days from the date of filing of the notice of manufacture, The Environmental Impact Assessment (EIA) System in the
processing or importation of a chemical substance or Philippines, officially referred to as the Philippine EIS
mixture, decide whether or not to regulate or prohibit its System (PEISS), was established under Presidential Decree
importation, manufacture, processing, sale, distribution, use (PD) 1586 on 11 June 1978. Section 4 of PD 1586 provides
or disposal. that no person, partnership or corporation shall undertake
or operate any such declared environmentally critical
The Secretary may, for justifiable reasons, extend the project or area without first securing an Environmental
ninety-day pre-manufacture period within a reasonable Compliance Certificate (ECC). Full implementation of the
time. PEISS transpired after the issuance of Presidential
Proclamation 2146 in 1981 where the technical definition of
Chemicals Exempt from Pre-Manufacture Notification: Environmentally Critical Projects (ECPs) and
- Those included in the categories of chemical substances Environmentally Critical Areas (ECAs) was provided.
and mixtures already listed in the inventory of existing
chemicals; Purpose: To attain and maintain a rational and orderly
balance between socio-economic growth and environmental
- Those to be produced in small quantities solely for protection
experimental or research and developmental purposes;
- Chemical substances and mixtures that will not present an Overview
unreasonable risk to health and the environment; and - The pursuit of a comprehensive and integrated
- Chemical substances and mixtures that exist temporarily environmental protection program necessitates the
and which have no human or environmental exposure such establishment and institutionalization of a system whereby
as those which exist as a result of chemical reaction in the the exigencies of socio-economic undertakings can be
manufacture or processing of a mixture of another chemical reconciled with the requirements of environmental quality
substance. - The regulatory requirements of Environmental Impact
Statement and Assessments instituted in pursuit of this
When will be the testing be required? national environmental protection program have to work
- When there is a reason to believe that the chemical into their full regulatory and procedural details in a manner
substances or mixture may present an unreasonable risk to consistent with the goals of the program
health or the environment or there may be substantial
human or environmental exposure thereto, When there are Features
insufficient data and experience for determining or 1. Declared environmentally critical projects and areas are
predicting the health and environmental effects of the required to obtain an Environmental Compliance
chemical substance or mixture; and, When the testing of the Certificate before operation
chemical substance or mixture is necessary to develop such 2. Environmentally Critical Projects includes heavy
data. industries, resource extractive industries, infrastructure
projects, golf course projects
PROHIBITED ACTS 3. Characteristics of Environmentally Critical Areas:
- Knowingly use a chemical substance or mixture which is - Areas declared by law as natural parks, watershed
imported, manufactured, processed or distributed in reserves, wildlife reserves, and sanctuaries
- Areas set aside as aesthetic, potential tourist spots

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 28


- Areas which constitute the habitat for any endangered What are national parks?
or threatened species of indigenous Philippine wildlife - refers to a forest reservation essentially of natural
(flora and fauna) wilderness character which has been withdrawn from
- Areas of unique historical, archeological, geological or settlement, occupancy or any form of exploitation except in
scientific interests conformity with approved management plan and set aside
- Areas which are traditionally occupied by cultural as such exclusively to conserve the area or preserve the
communities or tribes scenery, the natural and historic objects, wild animals and
- Areas frequently visited and/or hard hit by natural plants therein and to provide enjoyment of these features in
calamities (geologic hazards, floods, typhoons, volcanic such areas;
activity, etc.) - Examples:
- Areas of critical slope Hundred Islands in Alaminos Pangasinan
- Areas classified as prime agricultural lands Mt. Pulag National Park (Benguet, Ifugao)
- Recharged areas of aquifers
- Waterbodies What are natural parks?
- Mangrove areas - a relatively large area not materially altered by human
- Coral reefs activity where extractive resource uses are not allowed and
- Violators shall be punished by the suspension of maintained to protect outstanding natural and scenic areas
cancellation of his/its certificate and or fine for each of national or international significance for scientific,
violation educational and recreational use;
Apo Reef Natural Park (Oriental Mindoro)
THE PROCESS Mayon Volcano (Albay, Bicol)
1. Project Screening
2. Preliminary Site and Project Evaluation What are natural monuments?
3. Scoping - is a relatively small area focused on protection of small
4. Baseline Studies features to protect or preserve nationally significant natural
5. EIA PROPER (THE EIA STUDY) features on account of their special interest or unique
6. EIA Review characteristics
7. Decision Chocolate Hills (Bohol)
8. Monitoring
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - How will this be operationalized?
- The DENR shall submit to the Senate and the House of
4th ASSIGNMENT: Representatives a map and legal descriptions or natural
1. RA 7586 [NIPAS Act] boundaries of each protected area initially comprising the
2. RA 9147 [Wildlife Act] System.
3. RA 8550 [ Fisheries Code] - It will also be made public
4. RA 7942 [ Mineral Resources Act] How will this be operationalized?
5. RA 7076 [People's Small Scale Mining] - Notify the public of the proposed action
6. PD 705 [ Forestry Reform Code] - the President shall issue a presidential proclamation
designating the recommended areas as protected areas and
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - providing for measures for their protection until such time
1. RA 7586 [NIPAS Act] when Congress shall have enacted a law finally declaring
such recommended areas as part of the integrated protected
What does this act aim to do? area systems;
-to secure for the Filipino people of present and future
generations the perpetual existence of all native plants and Who will be in charge of administration and
animals through the establishment of a comprehensive management of the system?
system of integrated protected areas within the - The National Integrated Protected Areas System is hereby
classification of national park as provided for in the placed under the control and administration of the
Constitution. Department of Environment and Natural Resources.
- to establish a National Integrated Protected Areas System - A Protected Areas and Wildlife Division will be created as
(NIPAS) a division in the regional offices of the DENR.

What are protected areas? What is the Protected Area Management Board?
- refers to identified portions of land and water set aside by - The Board shall, by a majority vote, decide the allocations
reason of their unique physical and biological significance, for budget, approve proposals for funding, decide matters
managed to enhance biological diversity and protected relating to planning, peripheral protection and general
against destructive human exploitation; administration of the area in accordance with the general
management strategy.

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 29


habitats and protected areas under the National Integrated
What is Environmental Impact Assessment? Protected Areas System (NIPAS) Act. Exotic species, or
- Proposals for activities which are outside the scope of the species which do not naturally occur in the country, are also
management plan for protected areas shall be subject to an covered by this Act. All designated critical habitats shall be
environmental impact assessment as required by law before protected, in coordination with the local government units
they are adopted, and the results thereof shall be taken into and other concerned groups, from any form of exploitation
consideration in the decision-making process. or destruction which may be detrimental to the survival of
- Republic of the Philippines vs City of Davao G.R. No. 148622 species dependent upon these areas.

What if the protected area is an ancestral land? The introduction, reintroduction or re-stocking of endemic
- Ancestral lands and customary rights and interest arising and indigenous wildlife shall be allowed only for population
shall be accorded due recognition. enhancement or recovery. Any introduction shall be subject
- The DENR shall prescribe rules and regulations to govern to a scientific study. The Act also prohibits the introduction
ancestral lands within protected areas. They can be evicted of exotic species into protected areas and critical habitats. If
by the DENR or arranged in a resettlement without their and when introduction is allowed, it shall be subjected to
consent provided there is notice and hearing. environmental impact assessment and the informed
consent from local stakeholders.
What are the prohibited acts?
- Hunting, destroying, disturbing, or mere possession of any Conservation breeding or propagation of threatened species
plants or animals or products derived therefrom without a shall be encouraged to enhance its population in its natural
permit from the Management Board; habitat. Breeding shall be done simultaneously with the
- Dumping of any waste products detrimental to the rehabilitation and protection of the habitat where the
protected area, or to the plants and animals or inhabitants captive-bred or propagated species shall be released or
- Use of any motorized equipment without a permit from reintroduced. When economically important species
the Management Board become threatened, collection shall be limited to scientific,
- Mutilating, defacing or destroying objects of natural educational or breeding purposes.
beauty, or objects of interest to cultural communities (of
scenic value) The Act makes it unlawful for any person to undertake the
- Damaging and leaving roads and trails in a damaged following:
condition - killing and destroying wildlife species, except when it is
Squatting, mineral locating, or otherwise occupying any done as part of the religious rituals of established tribal
land groups or indigenous cultural communities, when the
- Constructing or maintaining any kind of structure, fence or wildlife is afflicted with an incurable communicable disease,
enclosures, conducting any business enterprise without a when it is deemed necessary to put an end to the misery
permit suffered by the wildlife, or when it is done to prevent an
- Leaving in exposed or unsanitary conditions refuse or imminent danger to the life or limb of a human being; when
debris, or depositing in ground or in bodies of water the wildlife is killed or destroyed after it has been used in
- Altering, removing destroying or defacing boundary marks authorized research or experiments
or signs - inflicting injury which cripples and/or impairs the
reproductive system of wildlife species
2. RA 9147 [Wildlife Act] - effecting any of the following acts in critical habitats:
Approved by President Gloria Macapagal-Arroyo was an dumping of waste products detrimental to wildlife;
important legislative measure geared towards ensuring squatting or otherwise occupying any portion of the
environmental sustainability. Originating in the House of critical habitat; mineral exploration and/or extraction;
Representatives as HB 10622, filed by Rep. J.R. Nereus O. burning; logging; and quarrying
Acosta, the Wildlife Resources Conservation and Protection - introduction, reintroduction, or restocking of wildlife
Act (RA 9147) aims to protect our countrys fauna from resource
illicit trade, abuse and destruction, through (1) conserving - trading of wildlife
and protecting wildlife species and their habitats, (2) - collecting, hunting or possessing wildlife, their by-
regulating the collection and trade of wildlife, products and derivatives
(3) pursuing, with due regard to the national interest, the - gathering or destroying of active nests, nest trees, host
Philippine commitment to international conventions, plants and the like
protection of wildlife and their habitats, and - maltreating and/or inflicting other injuries not covered
(4) initiating or supporting scientific studies on the by the preceding paragraph; and
conservation of biological diversity. - transporting of wildlife.

The provisions of this Act shall be enforceable for all wildlife For any person who undertakes these illegal acts, stiff
species found in all areas of the country, including critical penalties and fines are meted out. Imprisonment of as much

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 30


as 12 years and a fine of P1 million pesos shall be imposed, 4. RA 7942 [ Mineral Resources Act]
if inflicted or undertaken against species listed as critical.
The Philippine Mining Act of 1995 and its Revised
With the approval of The Wildlife Resources Conservation Implementing Rules and Regulations (RIRR) is considered
and Protection Act, Congress continues its commitment to in the industry today as one of the most socially and
protect the environment to ensure an economically and environmentally-sensitive legislations in its class. It has
ecologically sustainable future, following the constitutional specific provisions that take into consideration:
mandate of the State to protect and advance the right of its Local government empowerment;
people to a balanced and healthful ecology in accord with Respect and concern for the indigenous cultural
rhythm and harmony of nature. communities;
Equitable sharing of benefits of natural wealth;
3. RA 8550 [ Fisheries Code] Economic demands of present generation while
The Code makes provision for the management and providing the necessary foundation for future
conservation of fisheries and aquaculture in the Philippines generations;
and the reconstitution or establishment of fisheries Worldwide trend towards globalization; and
institutions both at the national and local level. Protection for and wise management of the environment.
These were the products of long periods of assessment,
The text consists of 133 sections which are divided into 8 evaluation, and rectification of the sins of the past, the
Chapters: Chapter 1 - declares the policy of the State with gaps of the old mining law, and the realities of the
respect to fisheries and contains a large definitions section. present times.
It is a declared policy to limit access to the fishery and
aquatic resources of the Philippines for the exclusive use GOVERNING PRINCIPLES
and enjoyment of Filipino citizens. Another principle of The Implementing Rules and Regulations (DENR
policy is the protection of municipal fishermen. Fishery and Administrative Order No.96-40) of the Philippine Mining
aquatic resources shall be managed in a manner consistent Act of 1995 provides strict adherence to the principle of
with the concept of integrated coastal area management. SUSTAINABLE DEVELOPMENT. This strategy mandates that
Definitions listed in section 4 include: coastal area/zone; the needs of the present should be met without
commercial fishing; municipal waters; foreshore land; compromising the ability of the future generations to meet
maximum sustainable yield; post harvest facilities. their own needs, with the view of improving the quality of
life, both now and in the future. Sustainable development
Chapter II - contains the main body of rules relative to the provides that the use of mineral wealth shall be pro-people
management and conservation of fisheries and to and pro-environment in sustaining wealth creation and
aquaculture. Fisheries are classified in municipal fisheries, improve quality of life.
i.e. fishing in municipal waters, and commercial fishing.
Provisions of the Chapter also regulate post-harvest The principles of SUSTAINABLE MINING operates under the
facilities, activities and trade. following terms:
Mining is a temporary land use for the creation of wealth,
The Bureau of Fisheries and Aquatic resources is leading to an optimum land use in post-mining stage as
reconstituted and Fisheries and Aquatic Management consequence of progressive and engineered mine
Councils are created under provisions of Chapter III. The rehabilitation works done in cycle with mining
Bureau is a national policy advisory and policy operations;
implementation body. A National Fisheries and Aquatic Mining activities must always be guided by current Best
Management Council is created under section 70 and Practices in environmental management committed to
municipal/city councils under section 73. These institutions reducing the impacts of mining while efficiently and
shall assist in the formulation of national polices and local effectively protecting the environment.
policies respectively. The Department of Fisheries may The wealth created as a result of mining accruing to the
designate areas in Philippine waters beyond 15 kilometres Government and the community should lead to other
of the shoreline as fishery reservation or fish refuges and wealth-generating opportunities for people in the
sanctuaries in bays, foreshore lands, continental shelf or any communities and for other environment-responsible
fishing ground to be set aside for the cultivation of endeavors.
mangroves to strengthen the habitat and the spawning Mining activities shall be undertaken with due and equal
grounds of fish. regard for economic and environmental considerations,
as well as for health, safety, social and cultural concerns.
Remaining Chapters deal with fisheries research and Conservation of minerals is effected not only through
development (V), prescribe penalties and offences (VI), and technological efficiencies of mining operations but also
contain general provisions (VII). through the recycling of mineral-based products, to
effectively lengthen the usable life of mineral
commodities.

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 31


The granting of mining rights shall harmonize existing measures were institutionalized to ensure the compliance of
activities, policies and programs of the Government that mining contractors/operators to internationally accepted
directly or indirectly promote self-reliance, development standards of environmental management.
and resource management. Activities, policies and
programs that promote community-based, community- TAXES AND INCENTIVES
oriented and procedural development shall be Mining contractors of MPSA and FTAA can avail of fiscal and
encouraged, consistent with the principles of people non-fiscal incentives granted under the Omnibus
empowerment and grassroots development. Investment Code of 1987, as amended.

ORGANIZATIONAL IMPLEMENTATION - The Mining Act In addition to these incentives, the following are also
reverts back the Mines and Geosciences Bureau (MGB) from granted by the Mining Act.
a Staff to a Line Bureau. Under this arrangement, the MGB Incentives for pollution control devises;
Central Office has now the administrative jurisdiction and Incentives for income tax carry forward of losses;
responsibility over its regional offices. The Line Bureau Incentives for income tax accelerated depreciation on
structure was contemplated to ensure organizational fixed assets;
efficiency and flexibility in managing limited resources and Investment guarantees, such as investment repatriation,
technical expertise. earnings remittance, freedom from expropriation, and
requisition of investment, and confidentiality of
ROLE OF LOCAL GOVERNMENTS - The IRR highlights the information.
role of local government units (LGUs) in mining projects,
both as beneficiaries and as active participants in mineral 5. RA 7076 [People's Small Scale Mining]
resources management, in consonance with the Republic Act No. 7076 (1991), otherwise known as the
Constitution and government policies on local autonomy Peoples Small-Scale Mining Act defines small-scale mining
and empowerment. as minimum activities which rely heavily on manual labor
using simple implements and methods, and which do not
AREAS CLOSED TO THE MINING APPLICATION use explosives or heavy mining equipment.
Pursuant to the Mining Act of 1995 and in consonance with
State policies and existing laws, areas may either be closed The main purpose of the law is:
to mining operations, or conditionally opened, as follows: (1) To effect an orderly and systematic disposition of small-
Areas CLOSED to mining applications: scale mining areas in the country;
Areas covered by valid and existing mining rights and (2) To regulate the small-scale mining industry with the
applications; view to encourage their growth and productivity; and
Old growth or virgin forests, mossy forests, national parks, (3) To provide technical, financial and marketing assistance
provincial/municipal forests, tree parks, greenbelts, game and efficient collection of government revenues.
refuge, bird sanctuaries and areas proclaimed as marine
reserve/marine parks and sanctuaries and areas Through this law, the harmful effects of the classic trade-off
proclaimed as marine reserve/marine parks and tourist between development and environment could be minimized
zones as defined by law and identified initial components if not totally avoided. This law was authored by Senator
of the NIPAS, and such areas as expressly prohibited Aquilino Pimentel Jr.
thereunder, as well as under DENR Administrative Order
No. 25, s. 1992, and other laws; With Republic Act 7076 it allows small miners under this
Areas which the Secretary may exclude based, inter alia, or law to use only simple equipments like pick and shovel in
proper assessment of their environmental impacts and extracting gold and other precious metals in their mining
implications on sustainable land uses, such as built-up areas. In this age of modern technology, this law is making
areas and critical watershed with appropriate sure that the small mining law should benefit the small
barangay/municipal/ provincial Sanggunian ordinances miners and not only the big-time operators who are using
specifying therein the location and specific boundaries of the skills and sweat of small-scale miners to accumulate a
the concerned area; and fortune.
Areas expressly prohibited by law
Under RA 7076, no ancestral land may be declared as a
ANCESTRAL LANDS AND ICC AREAS - The Mining Act fully peoples small scale mining area without the prior consent
recognizes the rights of the Indigenous Peoples of the cultural communities concerned. This respects the
(IPs)/Indigenous Cultural Communities (ICCs) and rights of the indigenous peoples to their ancestral lands
respect their ancestral lands. which are fully guaranteed under existing laws. The law
defines small miners as Filipino citizens who, individually or
ENVIRONMENTAL AND SAFETY CONCERNS in tandem with others, voluntarily form a cooperative, duly
A significant feature of the Mining Act of 1995 and its IRR is licensed by the Department of Environment and Natural
the premium given to environmental protection. Stringent

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 32


Resources, to engage in the extraction or removal of advancement of science and technology and the public
minerals or ore-bearing materials from the ground. welfare;
2. Land classification and survey shall be systematized and
HIGHLIGHTS - Its implementing rules lay down the accelerated;
powers and functions of the Department of Environment 3. The establishment of wood-processing plants shall be
and Natural Resources, the Provincial/City Mining encouraged and rationalized; and
Regulatory Board and in coordination with other concerned 4. The protection, development and rehabilitation of
government agencies. The DENR together with the other forestlands shall be emphasized so as to ensure continuity
concerned government agencies is designed to achieve an in production.
orderly, systematic and rational scheme for the small-scale
development and utilization of mineral resources in certain For the purpose of implementing the provisions of this
mineral areas in order to address the social, economic, Code, the Bureau of Forestry, the Reforestation
technical, and environmental connected with small-scale Administration, the Southern Cebu Reforestation
mining activities. Development Project, and the Parks and Wildlife Office are
merged into single agency to be known as the Bureau of
While the Provincial/City Mining Regulatory Board Forest Development (sect. 4). The Bureau shall have
(PCMRB) created under the direct supervision and control jurisdiction and authority over all forest land, grazing lands,
of the Secretary which is the board of PCMRB, is the and all forest reservations including watershed reservations
implementing agency of the Department of Environment presently administered by other government agencies. The
and Natural Resources which has the powers and function Bureau shall be directly under the control and supervision
subject to review by the Secretary. of the Secretary of the Department of Natural Resources,
hereinafter referred to as the Department Head (sect. 7).
PROHIBITED ACTS The Department Head, upon the recommendation of the
Awarded contracts may canceled on the following grounds: Director of Forest Development, shall promulgate the rules
1. Non-Compliance with the terms and conditions of the and regulations necessary to implement effectively the
contract and that of existing mining laws, rules and provisions of this Code (sect. 9). The Agency shall have
regulations including those pertaining to mine safety, divisions, including a Wildlife and Parks Division, and
environmental protection and conservation, tree cutting, district and regional offices, here created. The Department
mineral processing and pollution control; Head shall prescribe the criteria, guidelines and methods for
2. Non.-compliance with the contractor's obligations to the proper and accurate classification and survey of all
existing mining claim holders/private landowners as lands of the public domain into agricultural, industrial or
stipulated in Section 13, 17 and 18 of this Order; commercial, residential, resettlement, mineral, timber or
3. Non-payment of fees, taxes, royalties or government forest, and grazing lands, and into such other classes as now
share in accordance with this Order and existing mining or may hereafter be provided by law, rules and regulations
laws; (sect. 13). Areas needed for forest purposes are outlined in
4. Abandonment of mining site by the contractor; and section 16.
5. Ejectment from the People's Small-scale Mining Area of
the Contractor by the government for reasons of national Chapter III provides for matters relating to use of forest
interest and security. resources, such as licenses, license agreements, leases and
permits for purposes of utilize, exploit, occupy, possess or
PENALTIES/FINES - When contracts are canceled for conduct any forestry activity, harvesting methods (sect. 22),
grounds from the abovementioned, the Secretary may timber inventory, annual allowable cut (sect. 26), forest
impose fines of an amount not less than Twenty Thousand concessions (sect. 28), wood processing industry,
Pesos (P20, 000.00) but not more than One Hundred reforestation (sect. 33). industrial tree plantations, tree
Thousand Pesos (P100, 000.00). Non-payment of the fine farms and agro-forestry farms (sect. 34), forest protection
imposed shall render the small-scale mining contractor (sects. 37 to 53), including protection of swamplands and
ineligible for other small-scale mining contracts. mangrove forests (sect. 43), forest roads, etc. This Chapter
also makes provision for special uses of forest resources,
6. PD 705 [ Forestry Reform Code] such as grazing, wildlife, and recreation, and for the
measuring of timber.
Forest management in the Philippines is governed by The last part (Chap. IV) of this Act prescribes criminal
Presidential Decree No. 705, also known as the Revised offences, including unlawful occupation or destruction of
Forestry Code of the Philippines. Issued on 19 May 1975, forest lands and grazing lands. (92 sections)
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

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 33


5th ASSIGNMENT: 3. Access to Justice
1. AARHUS Convention Article 9 of the Aarhus Convention allows the public to
2. Writ of Kalikasan access to justice, i.e. the right to seek redress when
3. PD 1160: Expansion of Authority of Brgy. Captains environmental law is infringed and the right to access
B. CASES review procedures to challenge public decisions that have
1. G.R. No. 180771, April 21, 2015 - RESIDENT MARINE been made without regard to the two other pillars of the
MAMMALS v. Sec. Reyes Convention.
2. G.R. No. 194239, June 16, 2015 - WEST TOWER Article 9(1) deals with access to justice in respect of
CONDOMINIUM CORPORATION v. FIRST PHILIPPINE requests for environmental information. It has been
INDUSTRIAL CORPORATION implemented in Ireland by the European Communities
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (Access to Information on the Environment) Regulations
2007-2011. These regulations provide for an internal
1. AARHUS Convention review mechanism in respect of information requests and
assign the role of Commissioner for Environmental
The Aarhus Convention was adopted on 25th June 1998 in Information to the Information Commissioner.
the Danish city of Aarhus at the Fourth Ministerial
Conference in the 'Environment for Europe' process. It lays All members of the public are required to have access to
down a set of basic rules to promote the involvement of review procedures to challenge decisions relating to the
citizens in environmental matters and improve enforcement environment, made by public bodies or private persons.
of environmental law. The Convention is legally binding on These procedures must be 'fair, equitable, timely and not
States that have become Parties to it. As the European Union prohibitively expensive'.
is a Party, the Convention also applies to the EU institutions.
2. Writ of Kalikasan
The Three Pillars of the Convention: The provisions of
the Aarhus Convention are broken down into three pillars: RULE 7 - WRIT OF KALIKASAN
access to information, public participation in decision- SECTION 1. Nature of the writ. The writ is a remedy
making and access to justice. available to a natural or juridical person, entity authorized
by law, peoples organization, non-governmental
1. Access to Information organization, or any public interest group accredited by or
Articles 4 and 5 of the Convention concern environmental registered with any government agency, on behalf of
information. Members of the public are entitled to request persons whose constitutional right to a balanced and
environmental information from public bodies and these healthful ecology is violated, or threatened with violation by
bodies are obliged to maintain this information. This an unlawful act or omission of a public official or employee,
includes information on the state of the environment, or private individual or entity, involving environmental
policies and measures taken, or on the state of human damage of such magnitude as to prejudice the life, health or
health and safety, where this can be affected by the state of property of inhabitants in two or more cities or provinces.
the environment. Some information is exempt from release,
for example where the disclosure would adversely affect SEC. 2. Contents of the petition. The verified petition shall
international relations, national defence, public security, the contain the following:
course of justice, commercial confidentiality or the (a) The personal circumstances of the petitioner;
confidentiality of personal data. Information may also be (b) The name and personal circumstances of the respondent
withheld if its release could harm the environment, such as or if the name and personal circumstances are unknown
the breeding sites of rare species. and uncertain, the respondent may be described by an
assumed appellation;
2. Public Participation in Decision-Making (c) The environmental law, rule or regulation violated or
Under the Convention, the public has a right to participate threatened to be violated, the act or omission
in decision-making in environmental matters. complained of, and the environmental damage of such
Arrangements should be made by public authorities to magnitude as to prejudice the life, health or property of
enable the public to comment on, for example, proposals for inhabitants in two or more cities or provinces;
projects affecting the environment, or plans and (d) All relevant and material evidence consisting of the
programmes relating to the environment. Any subsequent affidavits of witnesses, documentary evidence, scientific
comments are to be taken into consideration in the or other expert studies, and if possible, object evidence;
decision-making process. Information must be provided on (e) The certification of petitioner under oath that:
the final decisions and the reasons for it. In the European (1) petitioner has not commenced any action or filed
Union, this part of the Aarhus Convention has been any claim involving the same issues in any court,
implemented by Directive 2003/35/EC on public tribunal or quasi-judicial agency, and no such other
participation (the Public Participation Directive). 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 create imbalance in the ecology or disturbance in
complete statement of its present status; environmental conditions.
(3) if petitioner should learn that the same or similar
action or claim has been filed or is pending, petitioner Section 3. Method of Enforcement and Implementation.
shall report to the court that fact within five days The criminal aspect, such as the arrest and prosecution of
therefrom; and offenders, and the civil and administrative aspects, such as
(f) The reliefs prayed for which may include a prayer for the the summary or judicial abatement of a thing, act or
issuance of a TEPO. condition that constitutes nuisance, or the cancellation of
the government license or permit for the existence of a
SEC. 3. Where to file. The petition shall be filed with the thing, act or condition that gives rise to a nuisance, shall be
Supreme Court or with any of the stations of the Court of vigorously enforced and implemented.
Appeals. Section 4. Preferential Disposition of Cases. The courts
and proper prosecuting or administrative officials or
SEC. 5. Issuance of the writ. Within three days from the agencies shall give preference to the expeditious
date of filing of the petition, if the petition is sufficient in disposition of cases involving a violation of the laws,
form and substance, the court shall give an order: ordinances, rules and regulations referred to in Section 2 of
(a) issuing the writ; and this Decree when the magnitude of the violation is such as
(b) requiring the respondent to file a verified return as to adversely affect an entire or major portion of a
provided in community as may be certified to by the National Pollution
Section 8 of this Rule. The clerk of court shall forthwith Control Commission or the National Environmental
issue the writ under the seal of the court including the Protection Council as the case may be.
issuance of a cease
and desist order and other temporary reliefs effective until Section 5. Rules and Regulations. The National
further order. Environmental Protection Council shall promulgate the
necessary rules and regulations for the effective
3. PD 1160: VESTING AUTHORITY IN BARANGAY implementation of this Decree.
CAPTAINS TO ENFORCE POLLUTION AND
ENVIRONMENTAL CONTROL LAWS AND FOR OTHER B. CASES
PURPOSES
1. G.R. No. 180771, April 21, 2015 - RESIDENT MARINE
WHEREAS, the National Government has taken cognizance MAMMALS v. Sec. Reyes
of the increasing problems and grave danger brought about
by pollution, ecological imbalance and other environmental Summary:
disturbance throughout the country; The Supreme Court of the Republic of the Philippines ruled
WHEREAS, in order to contain such problems and obviate that a service contract for oil exploration, development, and
any further aggravation of the consequent danger to public production issued by the government of the Philippines in
health, safety, national interest and survival of the present the protected area of the Tanon Strait was unconstitutional.
and future generations, there is need for a more vigorous,
coordinated and effective method of enforcing national and Case Note:
local laws, ordinances, rules and regulations that prohibit, Two sets of petitioners filed separate cases challenging the
control or regulate activities which create imbalance legality of Service Contract No. 46 (SC-46) awarded to Japan
between man and his natural environment; Petroleum Exploration Co. (JAPEX). The service contract
allowed JAPEX to conduct oil exploration in the Tanon Strait
WHEREAS, it is expedient to involve and mobilize the during which it performed seismic surveys and drilled one
Barangays in a concerted and sustained national campaign exploration well. The first petition was brought on behalf of
to minimize, if not totally eradicate, the causes of resident marine mammals in the Tanon Strait by two
disharmony between mans economic needs and his individuals acting as legal guardians and stewards of the
environmental conditions; marine mammals. The second petition was filed by a non-
governmental organization representing the interests of
Section 1. Deputizing the Barangay Captain, the Barangay fisherfolk, along with individual representatives from
Councilman and Barangay Zone Chairman as Peace Officers. fishing communities impacted by the oil exploration
All laws to the contrary notwithstanding, the Barangay activities. The petitioners filed their cases in 2007, shortly
Captain, the Barangay Councilman, and the Barangay Zone after JAPEX began drilling in the strait. In 2008, JAPEX and
Chairman are hereby deputized as peace officers, with the government of the Philippines mutually terminated the
authority to effect arrest of violators in accordance with service contract and oil exploration activities ceased. The
law, for purposes of enforcing and implementing national Supreme Court consolidated the cases for the purpose of
and local laws, ordinances and rules and regulations review.
governing pollution control and other activities which

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 35


In its decision, the Supreme Court first addressed the 2. G.R. No. 194239, June 16, 2015 - WEST TOWER
important procedural point of whether the case was moot CONDOMINIUM CORPORATION v. FIRST PHILIPPINE
because the service contract had been terminated. The INDUSTRIAL CORPORATION
Court declared that mootness is not a magical formula that
can automatically dissuade the courts in resolving a case. Residents of the West Tower condominium in Makati on
Id., p. 12. Due to the alleged grave constitutional violations Friday filed a petition for writ of kalikasan (nature) before
and paramount public interest in the case, not to mention the Supreme Court (SC) against the officials of the company
the fact that the actions complained of could be repeated, which owns and operates the pipeline that caused an oil
the Court found it necessary to reach the merits of the case leak near their residential area. The 36-page petition, the
even though the particular service contract had been residents asked the SC to direct FPIC to permanently shut
terminated. Id. down and replace the damaged pipeline.

Reviewing the numerous claims filed by the petitioners, the Kapunan explained that the residents wanted the pipeline
Supreme Court narrowed them down to two: 1) whether to be permanently closed because it poses a potential
marine mammals, through their stewards, have legal environmental and security threat" not only to the
standing to pursue the case; and 2) whether the service condominiums occupants but also to people living in areas
contract violated the Philippine Constitution or other under which the 117-kilometer pipeline runs. The residents
domestic laws. Id., p. 11. likewise urged the high court to compel the pipelines
operator to rehabilitate and restore the environment"
As to standing, the Court declined to extend the principle of affected by the oil leak, and to open a special trust fund to
standing beyond natural and juridical persons, even though answer for similar incidents in the future.
it recognized that the current trend in Philippine
jurisprudence moves towards simplification of procedures On November 19, 2010, the Court issued the Writ of
and facilitating court access in environmental cases. Id., p. Kalikasan with a Temporary Environmental Protection
15. Instead, the Court explained, the need to give the Order (TEPO) requiring respondents FPIC, FGC, and the
Resident Marine Mammals legal standing has been members of their Boards of Directors to file their respective
eliminated by our Rules, which allow any Filipino citizen, as verified returns. The TEPO enjoined FPIC and FGC to: (a)
a steward of nature, to bring a suit to enforce our cease and desist from operating the WOPL until further
environmental laws. Id., p. 16-17. orders; (b) check the structural integrity of the whole span
of the 117-kilometer WOPL while implementing sufficient
The Court then held that while SC-46 was authorized measures to prevent and avert any untoward incident that
Presidential Decree No. 87 on oil extraction, the contract did may result from any leak of the pipeline; and (c) make a
not fulfill two additional constitutional requirements. report thereon within 60 days from receipt thereof.
Section 2 Article XII of the 1987 Constitution requires a
service contract for oil exploration and extraction to be In compliance with the writ, FPIC directors Edgar Chua,
signed by the president and reported to congress. Because Dennis Javier, Dennis Gamab and Willie Sarmiento
the JAPEX contract was executed solely by the Energy submitted a Joint Return praying for the dismissal of the
Secretary, and not reported to the Philippine congress, the petition and the denial of the privilege of the Writ of
Court held that it was unconstitutional. Id., pp. 24-25. Kalikasan. They alleged that: petitioners had no legal
capacity to institute the petition; there is no allegation that
In addition, the Court also ruled that the contract violated the environmental damage affected the inhabitants of two
the National Integrated Protected Areas System Act of 1992 (2) or more cities or provinces; and the continued operation
(NIPAS Act), which generally prohibits exploitation of of the pipeline should be allowed in the interest of
natural resources in protected areas. In order to explore for maintaining adequate petroleum supply to the public.
resources in a protected area, the exploration must be
performed in accordance with an environmental impact On January 21, 2011, FPIC, in compliance with the writ,
assessment (EIA). The Court noted that JAPEX started the submitted its 4-page "Report on Pipeline Integrity Check
seismic surveys before any EIA was performed; therefore its and Preventive Maintenance Program. In compliance with
activity was unlawful. Id., pp. 33-34. Furthermore, the the Court's July 30, 2013 Resolution, the DOE Secretary
Tanon Strait is a NIPAS area, and exploration and utilization issued on October 25, 2013 a Certification, attesting that the
of energy resources can only be authorized through a law WOPL is safe to resume commercial operations, subject to
passed by the Philippine Congress. Because Congress had monitoring or inspection requirements, and imposing
not specifically authorized the activity in Tanon Strait, the several conditions that FPIC must comply with.
Court declared that no energy exploration should be
permitted in that area. Id., p. 34. 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 creation of a trust fund for similar future contingencies. This
with the Court's resolution is clearly outside the limited purpose of a special trust fund
under the Rules of Procedure for Environmental Cases,
The Issues which is to rehabilitate or restore the environment that has
1. Whether petitioner West Tower Corp. has the legal presumably already suffered. Hence, the Court affirms with
capacity to represent the other petitioners and whether the concurrence the observation of the appellate court that the
other petitioners, apart from the residents of West Tower prayer is but a claim for damages, which is prohibited by the
and Barangay Bangkal, are real parties-in-interest; Rules of Procedure for Environmental Cases. As such, the
2. Whether a Permanent Environmental Protection Order Court is of the considered view that the creation of a special
should be issued to direct the respondents to perform or to trust fund is misplaced.
desist from performing acts in order to protect, preserve,
and rehabilitate the affected environment; IV. Liability of FPIC, FGC and their respective Directors and
3. Whether a special trust fund should be opened by Officers
respondents to answer for future similar contingencies; and On the last issue of the liability of FPIC, FGC and their
4. Whether FGC and the directors and officers of respective directors and officers, the CA found FGC not
respondents FPIC and FGC may be held liable under the liable under the TEPO and, without prejudice to the
environmental protection order. outcome of the civil case and criminal complaint filed
against them, the individual directors and officers of FPIC
HELD: and FGC are not liable in their individual capacities.
I. Petitioners as Real Parties-in-Interest - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
On the procedural aspect, We agree with the CA that MIDTERM EXAM QUESTIONS:
petitioners who are affected residents of West Tower and 1. What is the fastest way to close a factory causing grave air
Barangay Bangkal have the requisite concern to be real and water pollution
parties-in-interest to pursue the instant petition. In the case 2. a. sovereignty vis--vis principle of equitable utilization of
at bar, there can be no quibble that the oil leak from the shared resources
WOPL affected all the condominium unit owners and b. common but differentiated responsibilities principle
residents of West Tower as, in fact, all had to evacuate their 3. SALIENT FEATURES OF some laws: [choose 1]
units at the wee hours in the morning of July 23, 2010, when a. climate change act
the condominium's electrical power was shut down. Until 4. What are the lead agencies of the government tasked to
now, the unit owners and residents of West Tower could implement environmental protection and sustainable
still not return to their condominium units. Thus, there is no development
gainsaying that the residents of West Tower are real 5. Is the Environmental Impact Assessment [EIA] a
parties-in-interest. requirement in all government permits for buildings and
sanitation etc. Explain
II. Propriety of Converting the TEPO to PEPO or its Lifting in 6. W/N animals may be duly represented by man in
light of the DOE Certification of the WOPL's Commercial environmental cases [marine mammals case/minors in
Viability Oposa case]
It must be stressed that what is in issue in the instant 7. Explain Writ of Kalikasan
petition is the WOPL's compliance with pipeline structure 8. A. Right to a balanced and healthful ecology in accordance
standards so as to make it fit for its purpose, a question of with the rhythm and harmony of nature
fact that is to be determined on the basis of the evidence B. Philippine environmental policy embodied in PD 1151.
presented by the parties on the WOPL's actual state. Hence, 9. W/n you are in favor of the proposal to amend the Clean Air
Our consideration of the numerous findings and Act to allow the use of incinerators to dispose wastes
recommendations of the CA, the DOE, and the amici curiae 10. May government agencies be mandated to spearhead
on the WOPL's present structure. operations in ensuring that the Philippine environment is
In this regard, the Court deems it best to take the necessary duly maintained? [MMDA case]
safeguards, which are not similar to applying the - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
precautionary principle as previously explained, in order to FINALS
prevent a similar incident from happening in the future.
1ST TOPIC: ASEAN Environmental Laws
III. Propriety of the Creation of a Special Trust Fund 1. ASEAN Structure [Reference: ASEAN Charter (2007)]
Anent petitioners' prayer for the creation of a special trust 2. ASEAN Environmental Programs
fund, We note that under Sec. 1, Rule 5 of the Rules of Articles:
Procedure for Environmental Cases, a trust fund is limited a. ASEAN Identity [Manila Times 11-30-2013]
solely for the purpose of rehabilitating or restoring the b. Sovereignty as responsibility [Manila Times November
environment. 2, 2003]
A reading of the petition and the motion for partial 3. ASEAN and China Cooperation in Mekong River
reconsideration readily reveals that the prayer is for the 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 1. Mutual respect for the independence, sovereignty,
6. ASEAN Agreement on TransBoundary Pollution equality, territorial integrity, and national identity of all
Control nations;
Articles: 2. The right of every State to lead its national existence free
a. Maritime Convulsions in ASEAN [ Manila Times May from external interference, subversion or coercion;
30, 2015] 3. Non-interference in the internal affairs of one another;
b. ASEAN: Changed in Security Environment [Manila 4. Settlement of differences or disputes by peaceful
Times Dec. 19, 2015] manner;
***See supplemental notes on Problems, Issues and Concerns 5. Renunciation of the threat or use of force; and
in Implementation and Enforcement of National 6. Effective cooperation among themselves.
Environmental Legislations.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ASEAN COMMUNITY - The ASEAN Vision 2020, adopted by
the ASEAN Leaders on the 30th Anniversary of ASEAN,
1. ASEAN Structure [Reference: ASEAN Charter (2007)] agreed on a shared vision of ASEAN as a concert of
ESTABLISHMENT - The Association of Southeast Asian Southeast Asian nations, outward looking, living in peace,
Nations, or ASEAN, was established on 8 August 1967 in stability and prosperity, bonded together in partnership in
Bangkok, Thailand, with the signing of the ASEAN dynamic development and in a community of caring
Declaration (Bangkok Declaration) by the Founding Fathers societies.
of ASEAN, namely Indonesia, Malaysia, Philippines,
Singapore and Thailand. At the 9th ASEAN Summit in 2003, the ASEAN Leaders
resolved that an ASEAN Community shall be established.
Brunei Darussalam then joined on 7 January 1984, Viet Nam
on 28 July 1995, Lao PDR and Myanmar on 23 July 1997, At the 12th ASEAN Summit in January 2007, the Leaders
and Cambodia on 30 April 1999, making up what is today affirmed their strong commitment to accelerate the
the ten Member States of ASEAN. establishment of an ASEAN Community by 2015 and signed
the Cebu Declaration on the Acceleration of the
AIMS AND PURPOSES - As set out in the ASEAN Establishment of an ASEAN Community by 2015.
Declaration, the aims and purposes of ASEAN are:
1. To accelerate the economic growth, social progress and The ASEAN Community is comprised of three pillars,
cultural development in the region through joint namely the ASEAN Political-Security Community, ASEAN
endeavours in the spirit of equality and partnership in Economic Community and ASEAN Socio-Cultural
order to strengthen the foundation for a prosperous and Community. Each pillar has its own Blueprint, and, together
peaceful community of Southeast Asian Nations; with the Initiative for ASEAN Integration (IAI) Strategic
2. To promote regional peace and stability through abiding Framework and IAI Work Plan Phase II (2009-2015), they
respect for justice and the rule of law in the relationship form the Roadmap for an ASEAN Community 2009-2015.
among countries of the region and adherence to the
principles of the United Nations Charter; ASEAN CHARTER
3. To promote active collaboration and mutual assistance The ASEAN Charter serves as a firm foundation in achieving
on matters of common interest in the economic, social, the ASEAN Community by providing legal status and
cultural, technical, scientific and administrative fields; institutional framework for ASEAN. It also codifies ASEAN
4. To provide assistance to each other in the form of norms, rules and values; sets clear targets for ASEAN; and
training and research facilities in the educational, presents accountability and compliance.
professional, technical and administrative spheres;
5. To collaborate more effectively for the greater utilization The ASEAN Charter entered into force on 15 December
of their agriculture and industries, the expansion of their 2008. A gathering of the ASEAN Foreign Ministers was held
trade, including the study of the problems of at the ASEAN Secretariat in Jakarta to mark this very
international commodity trade, the improvement of their historic occasion for ASEAN.
transportation and communications facilities and the
raising of the living standards of their peoples; With the entry into force of the ASEAN Charter, ASEAN will
6. To promote Southeast Asian studies; and henceforth operate under a new legal framework and
7. To maintain close and beneficial cooperation with establish a number of new organs to boost its community-
existing international and regional organizations with building process.
similar aims and purposes, and explore all avenues for
even closer cooperation among themselves. In effect, the ASEAN Charter has become a legally binding
agreement among the 10 ASEAN Member States.
FUNDAMENTAL PRINCIPLES - In their relations with one
another, the ASEAN Member States have adopted the 2. ASEAN Environmental Programs
following fundamental principles, as contained in the Treaty The ASEAN region is endowed with rich natural resources
of Amity and Cooperation in Southeast Asia (TAC) of 1976: that sustain essential life support systems both for the

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 38


region and the world. Apart from providing water, food and priority areas of regional importance as reflected in the
energy, these natural resources play an important role in Blueprint for the ASEAN Socio-Cultural Community (ASCC
sustaining a wide range of economic activities and Blueprint) 2009-2015 as follows:
livelihoods.
ASEAN Socio-Cultural Community (ASCC)
The region is blessed with a variety of unique ecosystems Blueprint 09-15
such as the Mekong River Basin, Ha Long Bay and Lake Section D. Ensuring Environmental Sustainability
Toba. The region has a long coastline, measuring about ASEAN shall work towards achieving sustainable
173,000 kilometres in total, and is surrounded by major development as well as promoting clean and green
seas and gulfs such as the South China Sea, the Andaman Sea environment by protecting the natural resource base for
and the Gulf of Thailand. economic and social development including the sustainable
management and conservation of soil, water, mineral,
By virtue of its location in the tropics, ASEAN region is also energy, biodiversity, forest, coastal and marine resources as
endowed with abundant freshwater resources. In 2007, the well as the improvement in water and air quality for the
region had a total capacity of 5,675 billion cubic metres of ASEAN region. ASEAN will actively participate in global
internal renewable water resources, with Brunei efforts towards addressing global environmental challenges,
Darussalam, Lao PDR and Malaysia having the highest per including climate change and the ozone layer protection, as
capita water resource availability. well as developing and adapting environmentally-sound
technology for development needs and environmental
While occupying only 3 per cent of the worlds total land sustainability.
area, the region is renowned for its rich biological heritage,
comprising the three mega biodiversity countries, namely D.1. Addressing global environmental issues
Indonesia, Malaysia and the Philippines, which together D.2. Managing and preventing transboundary
represent around 80 per cent of global biological diversity. environmental pollution (transboundary haze pollution and
The forest cover in ASEAN is about 45 per cent compared to transboundary movement of hazardous wastes)
the worlds average of 30.3 per cent and it provides the D.3. Promoting sustainable development through
natural habitat for up to 40 per cent of all species on Earth. environmental education and public participation
D.4. Promoting environmentally sound technology
In terms of demography, ASEAN is highly populated. In mid D.5. Promoting quality living standards in ASEAN
2008, the region had about 580 million people with a cities/urban areas
density of 130 people per square kilometre, one of the D.6. Harmonizing environmental policies and databases
highest in the world. Population density is especially high in D.7. Promoting the sustainable use of coastal and marine
megacities such as Jakarta and Manila at about 10,000 environment
people per square kilometre, spurred by increasing rural- D.8. Promoting sustainable management of natural
urban migration and rapid urbanisation. In 2005, 44 resources and biodiversity
percent of the regions total population were living in urban D.9. Promoting the sustainability of freshwater resources
areas and this is projected to increase to 55 percent by D.10.Responding to climate change and addressing its
2020. impacts
D.11.Promoting sustainable forest management
Increased population, rapid economic growth, combined
with the existing and region-wide social inequities among Articles:
the ASEAN countries have essentially exerted increasing a. ASEAN Identity [Manila Times 11-30-2013]
pressures on the natural resources of the region and While the main goals of the Association of Southeast
brought along various common or transboundary Asian Nations (Asean) Brunei Darussalam, Cambodia,
environmental issues, such as air, water and land pollution, Indonesia, Lao PDR, Malaysia, Myanmar, the Philippines,
urban environmental degradation, transboundary haze Singapore, Thailand and Vietnamare described in trade
pollution, and depletion of natural resources, particularly terms (single market and production base, highly
biological diversity. It has also led to increased consumption competitive economic region, equitable economic
of resources and generation of waste, resulting in development, further integration into the global
unsustainable development. Therefore, despite an economy), the documents that have come out of various
abundance of natural resources, ASEAN, as elsewhere, is Asean meetings talk about many other things.
facing an enormous challenge in keeping a delicate balance
of environmental sustainability and economic development. On the matter of an Asean identity, the Asean Charter
(2007), the Asean Declaration on Cultural Heritage
Policy and Institutional Framework (2000) and of late, the Asean Socio-Cultural Community
Recognizing the importance of environmental cooperation Blueprint (2009-20015), specify The Asean Identity is
for sustainable development and regional integration, the basis of Southeast Asias regional interests. It is our
ASEAN has since 1977 cooperated closely in promoting collective personality, norms, values and beliefs as well
environmental cooperation among its member states. as aspirations as one Asean Community..The strategic
Currently, ASEAN environmental cooperation focuses on ten objective is to create a sense of belonging, consolidate

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 39


unity in diversity and enhance deeper mutual Malaysia, which should not be a surprise considering the
understanding among Asean member countries about geographic proximity of the three countries collectively
their culture, history, religion and civilization called Maphilindo before the birth of Asean. In the
same way, the popular Philippine folk dance Tinikling
There are, however, sorts of cultural war among some has a slow movement version in Thailand. Truly Asean,
Asean countries related to cultural heritage. In 2012, it on the other hand, is kite flying as a pastime as well as
was reported that riots erupted in Jakarta when the tube-like-wrap-around malong, a real-life practical
Indonesian protesters targeted the Malaysian Embassy garment for men still evident all over Southeast Asia
over dance heritage, in particular, the Tor-tor dance. from Brunei Darussalam to Myanmar to Vietnam.
Likewise, some quarters claim Malaysias national
anthem Negaraku is based on Indonesias Terang Bulan The case of the Preah Vihar temple between Cambodia
(Bright Moon). In the area of cuisine, the Yu Sheng/Lo and Thailand, however, should be viewed in another
Hei, a dish served during Chinese Lunar Festival and light. Involved is sovereignty but a way out is recognition
traditionally thought to bring prosperity is separately of functional sovereignty as distinguished from
claimed by the Chinese in Singapore and Malaysia as territorial sovereignty. Functional sovereignty refers to
theirs. specific uses of a resource rather than absolute and
unlimited jurisdiction within a geographic space. It
Even the Peranakan (Nonya) dishes, a fusion of Malay means interdependence in the sustainable use of a
and Chinese recipes, did not escape similar claims. resource emphasizing that states are dutybound to
(Ethnic tension within Malaysia between Chinese cooperate with each other to promote development
Malaysians and ethnic Malays is still on because of the sustainability of the common environment.
countrys economic policy of Bumiputra which gives Preah Vihar ought to be enjoyed as an Asean tourism
preferential treatment to the ethnic Malay majority.) resource, a cultural heritage of both Cambodia and
Another example is the Preah Vihar temple issue Thailand aside from a religious destination in the Asean
between Cambodia and Thailand which had to be settled jurisdiction. Or, in different words, the change of
by the International Court of Justice. In April 2013, perception of the role of sovereignty in relations
about 500 nationalists of the Patriot Thai Group raised between states regarding their environment should be
the flag of Thailand to assert Thai sovereignty over Preah characterized by equitable utilization ultimately
Vihar. redounding to the benefit of the Asean region.

The examples cited demonstrate that cultures should not A good model for an Asean identity is the Asean Heritage
be thought to have fixed borders. Many of these cultures Parks system which continues to focus on cooperation
evolved in the course of time during Hindu, Muslim, among member countries to develop a regional
Buddhist or Christian periods. Meaning, practices in conservation and management plan for the current
countries within the Asean region continued to be string of over 40 heritage parks in the region. The
shaped by various peoples and events. criteria to determine if the region qualifies as an Asean
Even the legal culture is not an exception. Asean heritage park include high ethno-biological significance,
countries have a mosaic of legislations with traces of uniqueness and respresentativeness. Designation as a
foreign influence brought about by periods of Spanish heritage park strengthens cooperation, awareness and
(Philippines), appreciation among Asean countries.

French (Cambodia, Lao PDR, Vietnam), British (Brunei Together with the other aspects of the Asean cultural
Darussalam, Malaysia, Myanmar, Singapore) AND Dutch heritage, the designation promotes the twin objectives of
(Indonesia) occupation. community building and identity. Best of all, the concept
of an Asean heritage parks system advances protected
The lack of knowledge of historical roots and evolution area goals expressed in the Convention on Biological
of particular ways of life and practices can result in too Diversity, the Ramsar Convention on Wetlands
nationalistic and divisive views. There should be space Conservation as well as the World Heritage Convention.
for two or more forms of heritages, complementary but
not in conflict. All this will help forge an Asean identity which is
important for the future implementation of Asean
In short, they should be considered shared cultures that policies. It is a complementary to the principles of
transcend political boundaries. In this rubric are the sovereignty and non-intervention (Asean Way) which
angklung (bamboo) orchestra as well as the gamelan can, without the recognition of a cultural bridge, hinder
(gongs) ensemble of Indonesia, Malaysia and the the implementation of Asean legal instruments and tools
Philippines which are like one. Also batiks which are including environmental laws. After all, what society
either Indonesian, Malaysian or Thai like the wayang chooses to preserve of the past defines who we are
kulit (shadow play). today, creates our collective memory and hastens our
The Philippine Bayanihan Dance Co. researched Singkil new development as Asean Community bound by a
and found that it has its equivalent in Indonesia and common regional identity. In the words of Asean law

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 40


expert Koh Kheng Lian, an Asean identity is crucial to (ii) The Asean Heritage Parks program which consists of
bringing about enhanced cooperation to supplement the identified and proclaimed protected areas of high
Asean Way and make it more meaningful, to encourage conservation importance in each member country,
all to THINK Asean instead of only Think National. preserving in total a complete spectrum of
representative
Before joining the Philippine Foreign Service, the author
was the first Director of the Environmental Management 3. ASEAN and China Cooperation in Mekong River
Bureau (DENR) and served as Coordinator, Asean The Mekong River is the twelfth longest river in the world at
Experts Group on the Environment. 4,173 kms. and the largest international river within
Southeast Asia. It encompasses six countries China, Lao
b. Sovereignty as responsibility [Manila Times Peoples Democratic Republic (PDR), Myanmar, Thailand,
November 2, 2003] Cambodia, Vietnam with the headwaters originating in the
Sovereignty in its widest sense means the supreme, Tibetan region of China. Its notable characteristic is the
absolute and uncontrollable power by which any extent to which the river is international in nature; not
independent State is governed. Through the years, the only is it a boundary river for over 1,000 kms. but also
concept of sovereignty has evolved to include not only constitute all the water resources of Cambodia and Lao PDR
internal or territorial sovereignty but also permanent as well as the Northeast of Thailand and the Vietnamese
sovereignty over natural resources. Fundamentally, it rice bowl in the Mekong Delta.
means the State can freely dispose of its natural wealth
and resources within its territory. Correlatively, the A 1995 Agreement on the Cooperation for the Sustainable
principle brings about the State duty to properly manage Development of the Mekong River Basin was signed by four
its wealth and natural resources as well as due care of Asean member riparian countries, namely, Cambodia, Lao
the environment. Derived from this principle is also the PDR, Thailand and Vietnam. The Agreement emphasizes
right of the State to pursue its own socioeconomic and joint development, ecological protection and dynamic
environmental policies. process of water allocation. China and Myanmar (a member
of Asean), two upper basin countries are not parties to the
The growth of the principle of permanent sovereignty Agreement but were designated dialogue partners in 1996
over natural resources is closely associated with two and have participated in various Mekong River-related
main concerns at the time of the creation of the United activities.
Nations in 1945. These are (i) the economic development
of developing countries; and (ii) the self-determination Mention should be made of the fact that customary
of colonial peoples. international law played an important role in reaching the
Agreement on cooperation by providing a framework of
The principle progressively developed that by 1972, the guiding principles among which are: (i) Principle of
well-known principle of the Stockholm Declaration on international waters, i.e. watercourse which means a system
the Human Environment declares the sovereign right of of surface and groundwater constituting by virtue of their
States to exploit their own natural resources pursuant to physical relationship a unitary whole and normally flowing
their own environmental policies. However, the right is into a common terminus; (ii) Principle of reasonable and
qualified by the obligation not to cause any equitable utilization whereby all watercourse states are
extraterritorial environmental harm. Principle 2 of the entitled to the reasonable and equitable uses and benefits
Rio Declaration on the Environment and Development of an international watercourse within their territory and,
restates Principle 21 as mentioned and confirms that by implication, have a correlative obligation not to deprive
sovereignty does not only give rise to State rights but to other watercourse states of their right to reasonable and
State obligations and responsibilities as well. equitable utilization; (iii) Obligation not to cause significant
Emerging environmental challenges such as climate harm which requires states to exercise due diligence to
change mitigation, food and water security and disaster utilize an international watercourse in such a way as not to
management add new dimensions to environmental cause significant harm to other states; (iv) Principle of
issues. No country can deal with those challenges alone. notification and negotiation on planned measure the
States must continually identify common priorities to purpose of which is to assist watercourse states in
deal with those concerns. It must enhance coordination maintaining an equitable balance between their respective
among states and even challenge the dichotomy between uses of an international watercourse by helping to avoid
regional and national interests, reexamining principles of disputes and providing the context for negotiations if
sovereignty and non-interference in the context of harmful effects are unavoidable; and (v) Duty to cooperate
environmental challenges. Asean response in this regard through regular exchange of data to allow watercourse
are the on-going cooperative efforts to promote states to practice due diligence in their activities.
conservation activities which include, among others, (i)
The Heart of Borneo initiative to create a The Agreement established a Mekong River Commission
transboundary biodiversity sanctuary straddling which articulated the principles mentioned above and
Malaysia, Brunei Darussalam and Indonesia against outlined a set of rules for the reasonable and equitable use
illegal logging and clearing land for palm oil plantations; of the basins water resources. It also provides for

Environmental Laws [Amb. Tolentino] 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 4. 1995 Agreement on Cooperation for Sustainable
related resources of the Mekong River Basin with the end in Development of Mekong River Basin
view that the livelihood of 60 million people living within The Governments of The Kingdom of Cambodia, The Lao
the Lower Mekong River Basin will improve. People's Democratic Republic, The Kingdom of Thailand,
Identified areas for cooperation include, but is not limited and The Socialist Republic of Viet Nam, being equally
to, irrigation, hydro-power, navigation, flood control, desirous of continuing to cooperate in a constructive and
fisheries, timber floating, recreation and tourism. mutually beneficial manner for sustainable development,
utilization, conservation and management of the Mekong
Lately, regional cooperation is evident at the way Asean River Basin water and related resources, have resolved to
(Lower Mekong) riparian countries cooperate with China in conclude this Agreement setting forth the framework for
regard to the Mekong River. There is a proliferation of cooperation acceptable to all parties hereto to accomplish
regional frameworks and cooperative mechanisms to these ends
promote development of the riparian countries. For Who, having communicated to each other their respective
instance, a Quadripartite Economic Cooperation Initiative full powers and having found them in good and due form,
was launched by Thailand and China in 1993 to promote have agreed to the following:
economic cooperation among Mekongs upper riparian
countries (China, Lao PDR, Myanmar and Thailand) through CHAPTER I. PREAMBLE
transportrelated projects. Another example is the Asean RECALLING the establishment of the Committee for the
Mekong Basin Development Cooperation launched in 1996, Coordination of Investigations of the Lower Mekong Basin
a larger framework which encompasses riparian countries on 17 September 1957 by the Governments of these
and non-riparian countries. It aims to stimulate economic countries by Statute endorsed by the United Nations,
cooperation addressing the economic disparity between
long-time Asean countries and the later Asean members NOTING the unique spirit of cooperation and mutual
Cambodia, Lao PDR, Myanmar and Vietnam. assistance that inspired the work of the Committee for the
Coordination of Investigations of the Lower Mekong Basin
In addition, the Asian Development Bank supported and the many accomplishments that have been achieved
improved environmental management in the Greater through its efforts,
Mekong Sub-region in 2006 through its Core Environment ACKNOWLEDGING the great political, economic and social
Program. The sub-region is composed of Cambodia, Lao changes that have taken place in these countries of the
PDR, Myanmar and China (for the southern region), region during this period of time which necessitate these
Thailand and Vietnam. The program aims to mainstream efforts to re-assess, re-define and establish the future
environmental considerations into the transport, energy, framework for cooperation,
tourism and agricultural sectors of the sub-regions RECOGNIZING that the Mekong River Basin and the related
economic cooperation program. It promoted the application natural resources and environment are natural assets of
of development planning tools and integrate environment immense value to all the riparian countries for the economic
into sustainable development. Likewise, a Mekong Wetlands and socia! well-being and living standards of their peoples,
Biodiversity Conservation and Sustainable Use Program
exists among Lower Mekong River Basin countries REAFFIRMING the determination to continue to cooperate
(Cambodia, Lao PDR, Thailand and Vietnam) for the and promote in a constructive and mutually beneficial
purpose of building awareness of conservation of natural manner in the sustainable development, utilization,
resources in the Mekong Basin wetlands and reinforcing the conservation and management of the Mekong River Basin
effectiveness and strength of local organizations and water and related resources for navigational and non-
communities to uplift their quality of life and to manage navigational purposes, for social and economic
wetlands and biodiversity wisely. development and the well-being of all riparian States,
consistent with the needs to protect, preserve, enhance and
The cooperation mechanisms in place show that while manage the environmental and aquatic conditions and
China opted not to be a member of the Mekong River maintenance of the ecological balance exceptional to this
Commission set up in 1995, it can be enticed to cooperate river basin,
with other riparian countries through some regional
development frameworks. The above-mentioned AFFIRMING to promote or assist in the promotion of
mechanisms have China as a major actor which draws China interdependent sub-regional growth and cooperation
out of its self-imposed isolation as far as the Mekong is among the community of Mekong nations, taking into
concerned. China as a dialogue partner of Asean sits at the account the regional benefits that could be derived and/or
negotiating table to discuss the regional development of the detriments that could be avoided or mitigated from
Mekong riparian countries. It could, perhaps, be assumed activities within the Mekong River Basin undertaken by this
that riparian countries in the Mekong Basin (Cambodia, Lao framework of cooperation,
PDR, Thailand and Vietnam) have functioning
communication channels with China through various REALIZING the necessity to provide an adequate, efficient
cooperation mechanisms. and functional joint organizational structure to implement

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 42


this Agreement and the projects, programs and activities Article 2 Objective - The objective of this Agreement is to
taken thereunder in cooperation and coordination with provide effective mechanisms to achieve substantial
each member and the international community, and to reduction of disaster losses in lives and in the social,
address and resolve issues and problems that may arise economic and environmental assets of the Parties, and to
from the use and development of the Mekong River Basin jointly respond to disaster emergencies through concerted
water and related resources in an amicable, timely and good national efforts and intensified regional and international
neighbourly manner, co-operation. This should be pursued in the overall context
of sustainable development and in accordance with the
PROCLAIMING further the following specific objectives, provisions of this Agreement.
principles, institutional framework and ancillary provisions
in conformity with the objectives and principles of the Article 3 Principles - The Parties shall be guided by the
Charter of the United Nations and international law. following principles in the implementation of this
Agreement:
Objectives: To establish a framework for co-operation in 1. The sovereignty, territorial integrity and national unity of
the sustainable development, utilization, conservation and the Parties shall be respected, in accordance with the
management of the Mekong River Basin. Charter of the United Nations and the Treaty of Amity and
Cooperation in Southeast Asia, in the implementation of this
Summary of provisions: Agreement. In this context, each affected Party shall have
Parties agree to, inter alia, co-operate in all fields of the primary responsibility to respond to disasters occurring
sustainable development, utilization, management and within its territory and external assistance or offers of
conservation of the water and related resources of the assistance shall only be provided upon the request or with
Mekong River Basin (art. 1), and protect the environment, the consent of the affected Party.
natural resources, aquatic life and conditions and ecological 2. The Requesting or Receiving Party shall exercise the
balance from pollution or other harmful effects resulting overall direction, control, co-ordination and supervision of
from any use of the Basin (art. 3). Other provisions deal the assistance within its territory.
with equitable and reasonable utilization of the Basin, 3. The Parties shall, in the spirit of solidarity and
prevention and cessation of harmful effects, State partnership and in accordance with their respective needs,
responsibility for damages, freedom of navigation, and capabilities and situations, strengthen co-operation and co-
emergency situations. Institutional mechanisms: A Mekong ordination to achieve the objectives of this Agreement.
River Commission is established, consisting of three 4. The Parties shall give priority to prevention and
permanent bodies: the Council, the Joint Committee and a mitigation, and thus shall take precautionary measures to
Secretariat (art. 11). The Joint Committee is to, inter alia, prevent, monitor and mitigate disasters.
prepare and propose for approval of the Council Rules for 5. The Parties shall, to the extent possible, mainstream
Water Utilization and Inter-Basin Diversions (art. 26). disaster risk reduction efforts into sustainable development
policies, planning and programming at all levels.
5. 2009 Agreement on Disaster Management and 6. The Parties, in addressing disaster risks, shall involve, as
Emergency Response appropriate, all stakeholders including local communities,
The ASEAN Agreement on Disaster Management and nongovernmental organisations and private enterprises,
Emergency Response (AADMER) is a regional framework utilising, among others, community-based disaster
for cooperation, coordination, technical assistance, and preparedness and early response approaches.
resource mobilization in all aspects of disaster
management. AADMER provides the guidelines for effective Article 4 General Obligations: In pursuing the objective
mechanisms to achieve substantial reduction of disaster of this Agreement, the Parties shall:
losses in lives and in the social, economic, and a. co-operate in developing and implementing measures to
environmental assets, and to jointly respond to disaster reduce disaster losses including identification of disaster
emergencies through concerted national efforts and risk, development of monitoring, assessment and early
intensified regional and international cooperation. warning systems, standby arrangements for disaster relief
and emergency response, exchange of information and
AADMER affirms ASEANs commitment to the Hyogo technology, and the provision of mutual assistance;
Framework of Action (HFA) and is the first legally-binding b. immediately respond to a disaster occurring within their
HFA related instrument in the world. It serves as the territory. When the said disaster is likely to cause possible
foundation for disaster management initiatives in the impacts on other Member States, respond promptly to a
region, including for the establishment of AHA Centre. request for relevant information sought by a Member State
or States that are or may be affected by such disasters, with
Signed by the Foreign Ministers of ASEAN in Vientiane, Lao a view to minimising the consequences;
PDR in July 2005, the Agreement has been ratified by all ten c. promptly respond to a request for assistance from an
Member States and entered into force on 24 December affected Party; and
2009. A work programme for the period of 2010 - 2015 has d. take legislative, administrative and other measures as
been developed and its progress has been monitored. necessary to implement their obligations under this
Agreement.

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 43


PART II. DISASTER RISK IDENTIFICATION, ASSESSMENT 2. The Parties shall co-operate, as appropriate, to monitor
AND MONITORING hazards which have trans-boundary effects, to exchange
Article 5 : Risk Identification and Monitoring information and to provide early warning information
1. Each Party shall take appropriate measures to identify through appropriate arrangements.
disaster risks in its respective territories covering, among
others, the following aspects: Article 8 Preparedness
a. natural and human-induced hazards; 1. The Parties shall, jointly or individually, develop
b. risk assessment; strategies and contingency/response plans to reduce losses
c. monitoring of vulnerabilities; and from disasters.
d. disaster management capacities. 2. The Parties shall, as appropriate, prepare Standard
2. The Parties shall assign risk levels to each identified Operating Procedures for regional co-operation and
hazard according to agreed criteria. national action required under this Agreement including the
3. Each Party shall ensure that its National Focal Point, at following:
agreed regular intervals, communicates the above a. regional standby arrangements for disaster relief and
information to the ASEAN Co-ordinating Centre for emergency response;
Humanitarian Assistance on disaster management, b. utilisation of military and civilian personnel,
hereinafter referred to as "the AHA Centre", established in transportation and communication equipment, facilities,
accordance with Article 20 of this Agreement. goods and services and to facilitate their trans-boundary
4. The AHA Centre shall receive and consolidate data as movement; and c. co-ordination of joint disaster relief
analysed by and recommendations on risk level from the and emergency response operations.
National Focal Points. On the basis of such information, the 3. The Parties shall, jointly or individually enhance their
AHA Centre shall disseminate to each Party, through its national capacities, as appropriate, inter alia, to:
National Focal Point, the analysed data and risk level arising a. facilitate mobilisation of national resources to support
from the identified hazards. The AHA Centre may also, such regional standby arrangements for disaster relief
where appropriate, conduct analysis on possible regional- and emergency response;
level implications. b. co-ordinate with the ASEAN Food Security Reserve
Board to facilitate release of rice from the ASEAN
PART III. DISASTER PREVENTION AND MITIGATION Emergency Rice Reserve; and
Article 6 Prevention and Mitigation c. conduct training and exercises to attain and maintain
1. The Parties shall, jointly or individually, develop the relevance and applicability of such Standard
strategies to identify, prevent and reduce risks arising from Operating Procedures.
hazards. 4. Each Party shall regularly inform the AHA Centre of its
2. Each Party shall undertake measures to reduce losses available resources for the regional standby arrangements
from disasters which include: for disaster relief and emergency response.
a. developing and implementing legislative and other 5. The AHA Centre shall facilitate the establishment,
regulatory measures, as well as policies, plans, programmes maintenance and periodical review of regional standby
and strategies; arrangements for disaster relief and emergency response.
b. strengthening local and national disaster management 6. The AHA Centre shall facilitate periodic review of regional
capability and co-ordination; standard operating procedures.
c. promoting public awareness and education and
strengthening community participation; and d. promoting PART V. EMERGENCY RESPONSE
and utilising indigenous knowledge and practices. Article 10 National Emergency Response
3. The Parties shall co-operate in developing and 1. Each Party shall ensure according to their national
implementing regional disaster prevention and mitigation legislation that the necessary measures are taken to
programmes to complement national-level efforts. 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.
PART IV. DISASTER PREPAREDNESS Article 11 Joint Emergency Response through the Provision
Article 7 Disaster Early Warning of Assistance
1. The Parties shall, as appropriate, establish, maintain and Article 12 Direction and Control of Assistance
periodically review national disaster early warning Article 13 Respect of National Laws and Regulations
arrangements including: Article 14 Exemptions and Facilities in Respect of the
a. regular disaster risk assessment; Provision of Assistance
b. early warning information systems; Article 15 Identification
c. communication network for timely delivery of Article 16 Transit of Personnel, Equipment, Facilities and
information; and Materials in Respect of the Provision of Assistance
d. public awareness and preparedness to act upon the early
warning information.

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 44


PART VI. REHABILITATION Articles:
Article 17 Rehabilitation : For the purpose of the a. Maritime Convulsions in ASEAN [ Manila Times
implementation of this Agreement, the Parties shall, jointly May 30, 2015]
or individually, develop strategies and implement The sea belongs to nobody but interests clash over its
programmes for rehabilitation as a result of a disaster. The uses.
Parties shall promote, as appropriate, bilateral, regional and At no other time in history do some Asean countries face
international co-operation for rehabilitation as a result of a several maritime challenges than during this second
disaster. decade of the 21st. All because of the uses of the South
China Sea and its resources major shipping routes,
PART VII. TECHNICAL CO-OPERATION AND SCIENTIFIC important fishing grounds and abundant oil and gas
RESEARCH reserves. But over and above those maritime pursuits is
Article 18 Technical Co-operation the question of territorial (land, water and air space)
Article 19 Scientific and Technical Research ownership as developed in law.

PART VIII. ASEAN CO-ORDINATING CENTRE FOR The South China Sea is a marginal sea that is part of the
HUMANITARIAN ASSISTANCE Pacific Ocean, encompassing an area from Singapore and
Article 20 ASEAN Co-ordinating Centre for Humanitarian Malacca Straits to the Strait of Taiwan of around 3,500,000
Assistance square kilometers. Center of dispute is the Spratly Islands
area. Chinas unilaterally declared nine-dash line
6. ASEAN Agreement on TransBoundary Pollution ownership of 90% of the South China Sea overlaps with the
Control competing claims of some Asean countries Brunei
ASEAN Agreement on Transboundary Haze Pollution - The Darussalam, Malaysia, the Philippines and Vietnam. Non-
Governments of the ten ASEAN Member Countries signed Asean claimant is Taiwan. Similarly claimed by China is
the ASEAN Agreement on Transboundary Haze Pollution on Natuna Islands at the southern tip of South China Sea
10 June 2002 in Kuala Lumpur, Malaysia. The Agreement is which is within Indonesias exclusive economic zone (EEZ)
the first regional arrangement in the world that binds a and sits on Indonesias maritime borders with Brunei
group of contiguous states to tackle transboundary haze Darussalam, Malaysia and Vietnam. Likewise, Chinas
pollution resulting from land and forest fires. It has also recent announcement of a fishing ban to all fishing
been considered as a global role model for the tackling of activities in Hoang Sa (Paracel) archipelago was strongly
transboundary issues. objected to by Vietnam.

The Agreement requires the Parties to the Agreement to: Vietnam says it has sufficient legal and historical
(i) cooperate in developing and implementing measures to foundations testifying to its sovereignty over Hoang Sa and
prevent, monitor, and mitigate transboundary haze the sovereign rights and jurisdiction over its waters, EEZ
pollution by controlling sources of land and/or forest and continental shelf in line with the UN Law of the Sea.
fires, development of monitoring, assessment and early Scarborough Shoal which is well within the Philippine EEZ
warning systems, exchange of information and is contested too. (Japan is into a bitter territorial dispute
technology, and the provision of mutual assistance; with China over the Sinkaku/Diaoyu islands in the East
(ii) respond promptly to a request for relevant information China Sea).
sought by a State or States that are or may be affected by
such transboundary haze pollution, with a view to At the recently concluded Summit of Heads of States held
minimising the consequence of the transboundary haze in Malaysia, Asean leaders expressed their concern at
pollution; and Chinas massive reclamation in the Spratlys which has
(iii) take legal, administrative and/ or other measures to eroded trust and confidence and may undermine, peace,
implement their obligations under the Agreement. security and stability in the South China Sea. Asean
foreign ministers were instructed to urgently address the
The Agreement establishes an ASEAN Coordinating Centre matter constructively via frameworks such as Asean-
for Transboundary Haze Pollution Control to facilitate China relations. The Asean Chairmans statement also
cooperation and coordination in managing the impact of reasserted (i) the importance of freedom of navigation in
land and forest fires in particular haze pollution arising and over-flight in the South China Sea; (ii) called for the
from such fires. Pending the establishment of the Centre, full implementation of the Declaration of the Conduct of
ASEAN Secretariat and ASEAN Specialised Meteorological Parties in the South China Sea; and (iii) demanded that the
Centre (ASMC) co-performed the interim functions of the parties concerned should resolve their differences in
Centre. accordance with international law including the Law of the
Sea treaty.
The Agreement entered into force on 25 November 2003.
To date, nine Member Countries, namely Brunei The rising tension in the disputed waters prompted the US
Darussalam, Cambodia, Lao PDR, Malaysia, Myanmar, to warn against militarization of the territorial disputes.
Philippines, Singapore, Thailand, and Viet Nam, have Lately, satellite imagery showed the extensive reclamation
ratified the Haze Agreement. 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 NEW thinking about defense and security environment
ship on its first patrol and used a P8-A Poseidon, the most during the last few years pervades countries around the
advanced surveillance aircraft in the US arsenal, over the world. This was brought about by, to mention a few, the
contested area. Prior to this development, the US had its emergence of a terrorist quasi-state in the Middle East;
6th Naval Engagement Activity in Vietnam. Likewise, the home-grown terrorist attacks prompting governments to
Philippines and US militaries recently held its largest be on extreme alert; mass immigration to Europe; the
Balikatan exercises in years with nearly 12,000 troops proliferation of advanced defense technologies; internal
participating (double the number that participated in displacement of people due to armed conflicts; the
2014). phenomenon of environmental refugees including climate
migrants as a consequence of natural disasters; popularity
Coincidentally, IHS Janes Defence Weekly, a leading of cyber warfare, which gave way to various levels of
provider of defense and security insight and information, internal uncertainty and a new perception about security
noted that the rest of the Asean countries are modernizing concerns.
their respective navies as part of a wider Southeast Asian
trend towards greater maritime capabilities. Singapore has In the Asean region, tension prevails as rivals jostle over
the most potent military in Southeast Asia. Myanmar, on territories in the West Philippine Sea which has enormous
the other hand, embarked on an ambitious program of geo-strategic and economic significance. This climate of
indigenous shipbuilding backed up by naval exercises on conflict has security implications which forced
its own. governments to re-think their long-term defense
strategies. In fact, some analysts opined that defense
The territorial sovereignty issue in the South China Sea had planning is increasingly being shaped by climate and
become an external sovereignty or regional security issue resource considerations too. Take note that majority of the
with environmental security threats revolving around Asean countries are vulnerable to extreme climate
exploitation of natural resources alongside strategic ones, disturbances due to global warming and disaster relief had
i.e. potential military uses of the islands. come to be accepted as the militarys secondary role.
In all these maritime rivalries, ecological security ought to
be recognized as an inseparable component of the concept The changed defense and security environment in the
of sovereignty to attain regional security. Contending Asean countries has led to procurement drivesto ensure
states must recognize their joint responsibility for the stability. Singapore highlights its island defense
protection of the transnational environment. capabilities centered on automation and mobility
For the rich in marine and mineral resources but object of enhancements. The Singapore Armed Forces recently
overlapping ownership claims Spratly islands group, some acquired protected mobility vehicles which enhances
arguments favor cooperation to preserve/conserve the ballistic protection for troops and incorporates a host of
ecological wealth of the area rather than tackling head-on safety measures. Earlier, the country significantly boosted
the sovereignty issue. In this regard, serious thought its sea power by commissioning six new frigates.
should be given to the long-standing suggestion for an
Asean Area of Cooperation in the Spratlys as well as the The Philippines, as part of its long awaited military
possibilities for the designation of an internationally modernization program, recently received new aircrafts
protected area status, i.e. Marine Peace Park, through including jet fighters and helicopters from South Korea.
multilateral cooperative options available. These could Medium lift transport and surveillance aircrafts were also
further elaboration of confidence and security building acquired from Spain while heavy landing craft vessels will
measures in both the military and civilian sectors by the be acquired from Australia. Meanwhile, as Vietnams
adoption of less offensive military postures in defense of economy improves tremendously, reforms to further
the environment. professionalize the Vietnam Peoples Army are under way.
Its procurements include, among others, fighter aircrafts,
The removal of confrontation between States is an submarines, coastal radar system, maritime patrol
important precondition for the removal of confrontation helicopters and fast patrol vessels for the Vietnam Coast
between humankind and the natural environment Guard.
considering the fundamental necessity of securing the
long-term availability of natural resources. Brunei Darrusalams off-shore patrol vessels from
The pursuit of environmental security could become a Germany considerably enhanced its naval operational
major agent of change in international affairs, promoting capabilities. To improve training, its Navy is building a
an international order more compatible with human needs. center of excellence for seamanship warfare, weapons
Common sovereignty over natural resources should be handling, firefighting and damage control, communications
recognized and given priority in the resolution of conflicts and engineering training.
and hostilities among States.
Indonesia, on the other hand, identified its need for a
b. ASEAN: Changed in Security Environment [Manila complementary submarine fleet that can fill in the gaps of
Times Dec. 19, 2015]

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 46


their new ocean-going submarines. Note that Indonesia 1. Strengthening Sustainable Development in Regional
maintains a submarine base in Sulawesi Island. InterGovernmental Governance: Lessons from the
Malaysia, which established its own Malaysian Maritime 'ASEAN Way'

Enforcement Agency in 2005, took delivery of its first "The existing frameworks for regional inter-governmental
Scorpene submarines in 2009 while Thailand, the first to governance should be fully utilized as part of the
possess Southeast Asias aircraft carrier has been exploring international governance structure. Greater use should be
submarine procurement. made of regional, inter-governmental and other
organizations to promote coordinated sustainable
The rapid expansion of Myanmars Navy backed up by an development initiatives for that region."
ambitious program of indigenous shipbuilding is well Joint Statement of Environment Ministers of ASEAN to the
noted in the region. Myanmars military or Tatmadaw, World Summit on Sustainable Development, 4 June 2002,
however, was drawn into its largest and costliest military Bali, Indonesia, in Report of the 12th Meeting of the ASEAN
campaign against insurgents in the Kokang region of Working Group on Nature Conservation and Biodiversity
northeaster Shan State. The Kokang campaign marked the (AWGNCB), 17-18 June 2002, Yangon, Annex 12, at para. 21
first time the Tatmadaw undertook combined arms [ASEAN is the acronym for the Association of South East
operations involving mechanized infantry, artillery, armor Asian Nations]
and air power under combat conditions.
Sustainable development, worldwide, cannot be attained
Those acquisitions of military hardware were made prior unless each country undertakes common but differentiated
to Washingtons announcement of a US $250 million plan actions to implement the recommendations made in Agenda
to bolster naval capabilities of the Philippines, Indonesia, 21. These undertakings can be encouraged through
Malaysia, Vietnam and Japan and before Singapore agreed strengthened international support networks, such as
to the first deployment in the city state of a US P8Poseidon international cooperation to provide information on
spy plane, the most advance surveillance aircraft of the US, whether patterns and climatic conditions or to fashion new,
and long before the arrival in Subic Bay of USS Tucson, a collaborative financing systems for implementing needed
high endurance submarine with advanced stealth actions. However, work at the international level is remote
capabilities. from each country's specific problems or their remediation.
Countries also need regional support, where networks are
A rising China turning closer to Russia with US as Pacific closer to actual problems and can understand them
hegemon are obviously contributory to the changed realistically.
defense and security environment in the countries of
Southeast Asia. Moreover, most transboundary issues appear first
regionally, as pollution in a shared river basin or the loss of
Be that as it may, the most pressing priority for Asean habitat across the range of a species migrating across two or
countries in the changed security environment is to more States. A single country alone cannot cope effectively
improve their intelligence-gathering capabilities. with shared environmental problems. Therefore, regional
Procurement of munitions alone would not suffice to meet systems of environmental management are essential to
the countries security needs. There ought to have securing agreements for, and implementation of, specific
improvement in the regions intelligence sharing and action programs.'
coordinating capabilities. More than any other time, the
new era of intel-centric warfare using innovative ASEAN has rapidly matured. ASEAN was founded with the
information, communications and computer technologies 1967 Bangkok Declaration in order to encourage stable
demands the ability to assess, analyze and decisively act in relations among its original member states, i.e. Indonesia,
an emerging situation of critical importance. In short, Malaysia,
military equipment and weapons advantage should be Singapore, Thailand and the Philippines, and to resist
backed by an effective intelligence capability. 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
Assignment for Feb 22: the Viet Nam war ended, ASEAN held its fist Summit
1. Strengthening Sustainable Development in Regional Meeting in Bali (1976), followed by the 1977 Summit in
InterGovernmental Governance: Lessons from the Kuala Lumpur, where cooperation on regional
'ASEAN Way' [SG journal of International and industrializations was launched. In this first phase of
Comparative Law Vol. 6, 2002] cooperation, national ASEAN secretariats carried on the
2. ASEAN: Indonesian Haze NOT a Sovereignty Issue projects.
[Manila Times June 22, 2013]
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 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 conservation and transfrontier air pollution born forest
more sophisticated measures for coordination of policy, and fires. ASEAN's "rules and practices," its programs and plans
expanded its membership to include among its members of action, can be illuminated by the need for actual
Cambodia, Laos, Myanmar Purma), and Viet Nam. Since the implementation of its programs, as in the case of the "Haze."
four new members have substantial needs in building their The "ASEAN Way" faces new challenges as it knits together
capacity for environmental protection specifically, and programs across the 10 South East Asian countries, yet the
sustainable development more broadly, ASEAN has begun very fact that its participants see ASEAN's Way as a defined
to include a capacity-building dimension to its cooperation. approach, distinct from the more formalistic parliamentary
decision-making systems of European or North America, is
11. THE "ASEAN WAY" - Cooperation to build toward stable the best evidence for the proposition that that ASEAN bears
relations came to be known as the "ASEAN Way." ASEAN's close study by those who would understand how to foster
regional collaboration emphasizes three norms: governance for sustainability internationally.
(1) non-interference or non-intervention in each
others' domestic affairs, as underscored in the United 2. ASEAN: Indonesian Haze NOT a Sovereignty Issue
Nations Charter, Article 2(7), [Manila Times June 22, 2013]
(2) the use of consensus planning and cooperative Illustrative of Asean cooperation on the principle of
programs and a preference for national implementation sovereignty over natural resources is the Asean response to
rather than reliance on a strong region-wide agency or the recurring Indonesian haze, which has been affecting the
bureaucracy. neighboring countries specifically Singapore, Malaysia and
southern Thailand since 1982.
There are only two ASEAN hard law agreements in ASEAN's
35 years of history (see infra), and these have yet to be It is the result of land-clearing fires for palm plantations and
ratified. ASEAN has set a goal of closer cohesion and the practice of swidden (kaingin) agriculture particularly on
economic integration through building a recognized ASEAN peat lands in Indonesia.
community through adopting in 1997 its Vision 2020. In
contrast to practices in Oceana reflecting the experience of Only in 2002 did Asean formulate a hard law instrument on
the British Commonwealth, 6 in ASEAN disputes tend to be the issue: the ASEAN Agreement on Transboundary Haze
settled by conciliation and consultation, not by formal Pollution (ATHP). Although generally applicable to all Asean
judicial types of dispute resolutions. ASEAN's origins in states, it was formulated in response to the Indonesian haze.
1967 did not include environmental management as an It took effect in November 2003 with the ratification by nine
express concern. The then ASEAN members attended the member states. Indonesia has yet to ratify, which rendered
United Nations Conference on the Human Environment in the Agreement essentially ineffective.
Stockholm, in 1972, and thereafter ASEAN began to include In October 2006, Singapore decided to raise the issue at the
environment as a theme among its complex system of UN General Assembly, a permissible move under Article 2 of
regional consultations to promote cooperation in areas of ATHP, which specifically states that the Agreements
economic, social, technical and scientific development. objective is to prevent and monitor transboundary haze
ASEAN's accomplishments are not easily cited, since ASEAN pollution through concerted national efforts and intensified
has emphasized programmatic cooperation rather than regional and international cooperation. Indonesia, however,
adoption of formal, easily cited legal instruments requiring invoked the principle of sovereignty and non-interference in
environmental protection. However, it would be a mistake domestic affairs. (A word must be said about the Asean way
to suggest that ASEAN's quiet cooperation is somehow less of doing things. Cooperation is done through consensus.
effective than western sponsored treaty arrangements. In There is no Asean Parliament to issue laws, regulations and
fact, when ASEAN is compared to the Asia-Pacific Economic directives to its members and no enforcement agencies.
Cooperation (APEC) forum. ASEAN appears to have Non-interference in the domestic affairs of a member State
sustained a regional system for collaboration while APEC is the rule of conduct.)
has a hard time keeping up a dialogue. ASEAN's measured This controversy illustrates the complex political and
accomplishments may be discerned is a description of its economic dimensions of the haze problem as well as the
systems for regional environmental governance. conflict between national and regional interests confronting
Environmental governance has been defined by Miranda the Asean. The successful adoption and ratification of ATHP
Schreurs as "the interactions among formal and informal attests to Aseans growing stature as a transnational
institutions and the actors within society that influence how environmental lawmaker. But, at the same time, the
environmental problems are identified and named. To this controversy demonstrates the obstacles in Aseans path
definition, we would add "and are implemented." Examining towards environmental regulatory effectiveness.
environmental governance necessarily involves Perhaps it is time for Asean to take a strong stand, that the
examination of not only "institutions", which is the principle of sovereignty be modified in the context of
organizational structures and framework of ASEAN, but also environmental law. Far from undermining state
requires study of the decision-making practices and sovereignty, enhanced cooperation in the area of
programs of the organization. Some of ASEAN's institutions environment will strengthen states sustainable
for environmental governance can be illustrated with development. By adopting a flexible engagement approach
reference to how ASEAN addresses biodiversity 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 8. Forerunner on the International Convention on
Indonesian Haze without being accused of interfering with Biological Diversity CBD 1992
the internal affairs of the country. 9. Access and Benefit Sharing with Pharmaceutical
Companies
Flexible engagement is not yet an accepted principle in the **Take note of ASEAN Initiatives on Turtles in Malaysia and
Asean, but its application to transboundary environmental PH; Borneo Initiative; Coral Triangle Initiative in Indonesia,
issues is relevant. Flexible engagement is an attempt to PH, Timor Leste,
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 1. COBSEA (coordinating bodies of East Asia)
serious threats to sustainable development and human
security more broadly, transboundary environmental issues COBSEA, UNEP Regional Seas Programme for the East Asian
would be classified as beyond the scope of internal affairs Seas Region 9 countries; Formed in 1981 as an
and would be subject to regional governance despite INTERGOVERNMENTAL PLATFORM but no legally binding
sovereignty. convention;

It is interesting to compare Aseans response to the Haze Mandate - to coordinate activities on the conservation and
issue with the threat posed by zoonotic diseases, e.g. SARS, management of the marine and coastal environment;
avian flu, swine flu (H1N1) during the last 7 years which
raised not only issues of human security but also challenged (COBSEA Secretariat) is based in Bangkok.
animal protection, the protection of biodiversity and
ecosystems and the pursuit of sustainable development, i.e. ABOUT COBSEA: East Asia's astonishing variety of political,
sustainability of the chain of animal food production. economic and social systems is matched by its environment:
ship-crowded straits, island groups, wide gulfs, shallow
The threat of a pandemic drove Asean to act with prompt estuaries - and some of the most heavily populated
response with no less than 25 Asean soft law instruments. countries in the world where millions rely on seafood for
Possibly, Aseans response to zoonotic diseases was more much of their protein. The threats to the coastal and marine
successful as a result of the threat of pandemic not only in environment in the region seem just as varied, and include
the region but also in many parts of the world. In the words erosion and siltation from land development, logging and
of eminent Asean law expert, Koh Kheng Lian, Asean mining, blast fishing in coral reefs, cutting and conversion of
should use its rich history of cooperation among States to mangroves, overfishing, unimpeded development and
build . . .environmental cooperation . . . This would enhance disposal of untreated wastes.
respect for sovereignty, not undermine it; it can be argued
that the inability to avert an environmental disaster is a The Action Plan for the Protection and Development of the
greater loss of sovereign authority than cooperation in Marine Environment and Coastal Areas of the East Asian
agreed programs to control the harm. Aseans deferential Seas Region (the East Asian Seas Action Plan) was approved
approach to others domestic affairs can inadvertently lead in 1981 stimulated by concerns on the effects and sources of
to violations of Principle 21 of the UN Declaration on the marine pollution. Initially, the action plan involved five
Human Environment in which all States acknowledge that countries (Indonesia, Malaysia, Philippines, Singapore and
each must act so as not to harm the environment of each Thailand). In 1994, it was revised to involve another five
other. 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
Assignment for Feb 29 longer a participating country). The main components of
1. COBSEA (coordinating bodies of East Asia) East Asian Seas Action Plan are assessment of the effects of
2. Economic and Social Commission (ECOSOC) human activities on the marine environment, control of
UN body -> Envi coastal pollution, protection of mangroves, seagrasses and
U.N. Environmental Program coral reefs, and waste management.
3. UN, UN organs, general assembly, ECOSOC,
International court of justice, UNEP, Among the Regional Seas Programmes, East Asia has
4. UN Specialized agencies: ILO, IMO, WMO, UNESCO, steered a unique course. There is no regional convention;
FAO5. Intergovernmental institution: IUCN instead the programme promotes compliance with
5. Continental groupings: OAS, OAU, EU- ASEAN existing environmental treaties and is based on
counterparts member country goodwill.
6. Convention on Wetlands of International importance
especially as waterfowl habitat 1971 Ramsar East Asian Seas Action Plan is steered by the Coordinating
convention Body on the Seas of East Asia (COBSEA) that is consisting
7. 1985 ASEAN agreement (on environmental of the ten member countries (Cambodia, China, Indonesia,
protection) Nature and Natural Resources 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 (IPCC) in 1988. UNEP is also one of several Implementing
matters in East Asia, responsible for coordinating the Agencies for the Global Environment Facility (GEF) and the
activities of governments, NGOs, UN and donor agencies, Multilateral Fund for the Implementation of the Montreal
and individuals in caring for the region's marine Protocol, and it is also a member of the United Nations
environment. Development Group.[1] The International Cyanide
Management Code, a program of best practice for the
2. Economic and Social Commission (ECOSOC) chemicals use at gold mining operations, was developed
under UNEPs aegis.
U.N. Environmental Program
The United Nations Economic and Social Council is one of UNEP's main activities are related to:
the principal organs of the United Nations, responsible for climate change;
coordinating the economic, social and related work of 14 UN including the Territorial Approach to Climate Change
specialized agencies, their functional commissions and five (TACC);
regional commissions. The ECOSOC has 54 members. It disasters and conflicts;
holds one four-week session each year in July, and since ecosystem management;
1998, it has also held a meeting each April with finance environmental governance;
ministers heading key committees of the World Bank and environment under review;
the International Monetary Fund (IMF). harmful substances; and
resource efficiency.
The ECOSOC serves as the central forum for discussing
international economic and social issues, and for b. UN, UN organs, general assembly, ECOSOC,
formulating policy recommendations addressed to member International court of justice, UNEP,
states and the United Nations system. A number of non-
governmental organizations have been granted consultative The United Nations (UN) is an organization of sovereign
status to the Council to participate in the work of the United nations. It provides the machinery for its Member States to
Nations. help solve disputes or problems, and deal with matters of
concern to all humanity. It does not legislate.
The United Nations Environment Programme (UNEP) is
an agency that coordinates its environmental activities, The International Court of Justice (ICJ) is the principal
assisting developing countries in implementing judicial organ of the UN.
environmentally sound policies and practices. It was
founded by Maurice Strong, its first director, as a result of The General Assembly is the UN's main deliberative body.
the United Nations Conference on the Human Environment All Member States are represented in it and each has one
in June 1972 and has its headquarters in the Gigiri vote.
neighborhood of Nairobi, Kenya. UNEP also has six regional
offices and various country offices. The Economic and Social Council (ECOSOC) coordinates
the economic and social work of the UN.
Its activities cover a wide range of issues regarding the
atmosphere, marine and terrestrial ecosystems, The Security Council has primary responsibility for
environmental governance and green economy. It has maintenance of international peace and security. It has five
played a significant role in developing international permanent members each with the right to veto, and ten
environmental conventions, promoting environmental others elected for two-year terms. Member States are
science and information and illustrating the way those can obligated to carry out its decisions.
be implemented in conjunction with policy, working on the
development and implementation of policy with national The Secretariat services all organs of the UN except the ICJ,
governments, regional institutions in conjunction with doing the day-to-day work of the UN, ranging from
environmental non-governmental organizations (NGOs). administering peace-keeping operations to organizing
UNEP has also been active in funding and implementing conferences.
environment related development projects.
The Secretary-General controls and directs the Secretariat,
The winner of the Miss Earth beauty pageant serves as the and is chief administrative officer at all meetings of the
spokesperson of UNEP. General Assembly, Security Council ECOSOC and the
Trusteeship Council.
UNEP has aided in the formulation of guidelines and treaties
on issues such as the international trade in potentially The Trusteeship Council was established to ensure that
harmful chemicals, transboundary air pollution, and governments responsible for administering Trust
contamination of international waterways. Territories took adequate steps to prepare them for self-
government or independence. This task having been
The World Meteorological Organization and UNEP
established the Intergovernmental Panel on Climate Change

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 50


completed in 1994, the Council will now meet as and when but they are incorporated into the United Nations System by
required. the United Nations Economic and Social Council acting
under Articles 57 and 63 of the United Nations Charter. At
The specialized agencies and programmes have wide present the UN has in total 15. specialized agencies that
international responsibilities for development, health and carry out various functions on behalf of the UN.
economic, social, cultural, educational, scientific and
technical, and other fields. The Food and Agriculture Organization of the United
Nations leads international efforts to defeat hunger. Serving
The United Nations Environment Programme (UNEP) is both developed and developing countries, FAO acts as a
an agency that coordinates its environmental activities, neutral forum where all nations meet as equals to negotiate
assisting developing countries in implementing agreements and debate policy. FAO's mandate is to raise
environmentally sound policies and practices. It was levels of nutrition, improve agricultural productivity, better
founded by Maurice Strong, its first director, as a result of the lives of rural populations and contribute to the growth
the United Nations Conference on the Human Environment of the world economy. FAO is the largest of UN agencies and
in June 1972 and has its headquarters in the Gigiri its headquarters is in Rome, Italy.
neighborhood of Nairobi, Kenya. UNEP also has six regional The International Civil Aviation Organization (ICAO)
offices and various country offices. was founded in 1947. It codifies the principles and
techniques of international air navigation and fosters the
Its activities cover a wide range of issues regarding the planning and development of international air transport to
atmosphere, marine and terrestrial ecosystems, ensure safe and orderly growth. Its headquarters are
environmental governance and green economy. It has located in the Quartier international de Montral of
played a significant role in developing international Montreal, Canada.
environmental conventions, promoting environmental
science and information and illustrating the way those can The ICAO Council adopts standards and recommended
be implemented in conjunction with policy, working on the practices concerning air navigation, prevention of unlawful
development and implementation of policy with national interference, and facilitation of border-crossing procedures
governments, regional institutions in conjunction with for international civil aviation. In addition, ICAO defines the
environmental non-governmental organizations (NGOs). protocols for air accident investigation followed by
UNEP has also been active in funding and implementing transport safety authorities in countries signatory to the
environment related development projects. Convention on International Civil Aviation, commonly
known as the Chicago Convention.
The winner of the Miss Earth beauty pageant serves as the
spokesperson of UNEP. The International Labour Organization (ILO) deals with
labour issues. Its headquarters are in Geneva, Switzerland.
UNEP has aided in the formulation of guidelines and treaties Founded in 1919, it was formed through the negotiations of
on issues such as the international trade in potentially the Treaty of Versailles, and was initially an agency of the
harmful chemicals, transboundary air pollution, and League of Nations. It became a member of the UN system
contamination of international waterways. after the demise of the League and the formation of the UN
at the end of World War II. Its Constitution, as amended to
The World Meteorological Organization and UNEP date, includes the Declaration of Philadelphia on the aims
established the Intergovernmental Panel on Climate Change and purposes of the Organization. Its secretariat is known
(IPCC) in 1988. UNEP is also one of several Implementing as the International Labour Office.
Agencies for the Global Environment Facility (GEF) and the
Multilateral Fund for the Implementation of the Montreal The International Maritime Organization (IMO),
Protocol, and it is also a member of the United Nations formerly known as the Inter-Governmental Maritime
Development Group.[1] The International Cyanide Consultative Organization (IMCO), was established in 1948
Management Code, a program of best practice for the through the United Nations to coordinate international
chemicals use at gold mining operations, was developed maritime safety and related practices. However the IMO did
under UNEPs aegis. not enter into full force until 1958.

c. UN Specialized agencies: ILO, IMO, WMO, UNESCO, Headquartered in London, United Kingdom, the IMO
FAO promotes cooperation among governments and the
shipping industry to improve maritime safety and to
Specialized agencies are autonomous organizations prevent marine pollution.
working with the United Nations and each other through
the coordinating machinery of the United Nations Economic International Monetary Fund (IMF) is sometimes
and Social Council at the intergovernmental level, and considered to be a specialized agency. It is part of the United
through the Chief Executives Board for coordination (CEB) Nations system and has a formal relationship agreement
at the inter-secretariat level.[1] Specialized agencies may or with the UN, but retains its independence The IMF provides
may not have been originally created by the United Nations, monetary cooperation and financial stability and acts as a

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 51


forum for advice, negotiation and assistance on financial Threatened Species, which assesses the conservation status
issues. It is headquartered in Washington, D.C., United of species worldwide.
States of America.
IUCN has a membership of over 1200 governmental and
The United Nations Educational, Scientific and Cultural non-governmental organizations. Some 11,000 scientists
Organization (UNESCO) is a specialized agency of the and experts participate in the work of IUCN commissions on
United Nations established in 1946 with its headquarters in a voluntary basis. It employs approximately 1000 full-time
Paris, France. Its stated purpose is to contribute to peace staff in more than 60 countries. Its headquarters are in
and security by promoting international collaboration Gland, Switzerland.
through education, science, and culture in order to further
universal respect for justice, the rule of law, and the human IUCN has observer and consultative status at the United
rights and fundamental freedoms proclaimed in the UN Nations, and plays a role in the implementation of several
Charter. international conventions on nature conservation and
biodiversity. It was involved in establishing the World Wide
The United Nations Industrial Development Fund for Nature and the World Conservation Monitoring
Organization (UNIDO) is a specialized agency of the United Centre. In the past, IUCN has been criticized for placing the
Nations system, headquartered in Vienna, Austria. The interests of nature over those of indigenous peoples. In
Organization's primary objective is the promotion and recent years, its closer relations with the business sector
acceleration of industrial development in developing have caused controversy.
countries and countries with economics in transition and
the promotion of international industrial cooperation. IUCN was established in 1948. It was previously called the
International Union for Protection of Nature (19481956)
The World Health Organization (WHO) acts as a and the World Conservation Union (19902008). Its full
coordinating authority on international public health and legal name is International Union for Conservation of
deals with health and sanitation and diseases and sends Nature and Natural Resources.
medical teams to help combat epidemics. Established on 7
April 1948, and headquartered in Geneva, Switzerland, the e. Continental groupings: OAS, OAU, EU- counterparts of
agency inherited the mandate and resources of its ASEAN
predecessor, the Health Organization, which had been an Basically, regionalism from below means that countries in a
agency of the League of Nations. geographical area cooperate either for specific purposes or
general mutual benefit, especially involving economic
The World Meteorological Organization (WMO) cooperation and peacekeeping. The most important general
originated from the International Meteorological such institutions are the European Union (EU), Organization
Organization (IMO), which was founded in 1873. of American States (OAS), Organization of African Unity
Established in 1950, WMO became the specialized agency of (OAU), Association of Southeast Asian Nations (ASEAN), and
the United Nations for modern meteorology (weather and the Arab League.
climate), operational hydrology and related geophysical
sciences. It has its headquarters in Geneva, Switzerland. The Organization of American States or the OAS or OEA,
is an inter-continental organization founded on 30 April
d. Intergovernmental institution: IUCN 1948, for the purposes of regional solidarity and
The International Union for Conservation of Nature and cooperation among its member states. Headquartered in
Natural Resources (IUCN) is an international organization Washington, D.C., United States, the OAS's members are the
working in the field of nature conservation and sustainable 35 independent states of the Americas.
use of natural resources. It is involved in data gathering and
analysis, research, field projects, advocacy, lobbying and As of 26 May 2015, the Secretary General of OAS is Luis
education. IUCN's mission is to "influence, encourage and Almagro
assist societies throughout the world to conserve nature
and to ensure that any use of natural resources is equitable The OAS constitutes the main political, juridical, and social
and ecologically sustainable." governmental forum in the Hemisphere. In addition, it has
granted permanent observer status to 69 states, as well as
Over the past decades, IUCN has widened its focus beyond to the European Union (EU).
conservation ecology and now incorporates issues related
to gender equality, poverty alleviation and sustainable The OAS uses a four-pronged approach to effectively
business in its projects. Unlike other international NGOs, implement its essential purposes. The Organizations four
IUCN does not itself aim to mobilize the public in support of main pillarsdemocracy, human rights, security, and
nature conservation. It tries to influence the actions of developmentsupport each other and are intertwined
governments, business and other stakeholders by providing through political dialogue, inclusiveness, cooperation, and
information and advice, and through lobbying and legal and follow-up instruments that provide the OAS with
partnerships. The organization is best known to the wider the tools to maximize its work in the Hemisphere.
public for compiling and publishing the IUCN Red List of

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 52


The Organisation of African Unity was established on 25
May 1963 in Addis Ababa, with 32 signatory governments. The Ramsar Convention (formally, the Convention on
It was disbanded on 9 July 2002 by its last chairperson, Wetlands of International Importance, especially as
South African President Thabo Mbeki, and replaced by the Waterfowl Habitat) is an international treaty for the
African Union conservation and sustainable utilization of wetlands,
The OAU had the following primary aims: recognizing the fundamental ecological functions of
1. To co-ordinate and intensify the co-operation of African wetlands and their economic, cultural, scientific, and
states in order to achieve a better life for the people of recreational value. It is named after the city of Ramsar in
Africa. Iran, where the Convention was signed in 1971.
2. To defend the sovereignty, territorial integrity and
independence of African states. The Convention on Wetlands, called the Ramsar Convention,
is an intergovernmental treaty that provides the framework
The OAU was also dedicated to the eradication of all forms for national action and international cooperation for the
of colonialism and white minority rule as, when it was conservation and wise use of wetlands and their resources.
established, there were several states that had not yet won Number of Contracting Parties: 169
their independence or were white minority-ruled. South Number of Ramsar Sites: 2,231
Africa and Angola were two such countries. The OAU Total surface of designated sites: 214,936,005 ha
proposed two ways of ridding the continent of colonialism
and white minority rule. Firstly, it would defend the The Conventions mission is the conservation and wise use
interests of independent countries and help to pursue the of all wetlands through local and national actions and
independence those of still-colonised ones. Secondly, it international cooperation, as a contribution towards
would remain neutral in terms of world affairs, preventing achieving sustainable development throughout the world.
its members from being controlled once more by outside
powers. Wetlands are among the most diverse and productive
ecosystems. They provide essential services and supply all
The African Union (AU) is a continental union consisting of our fresh water. However they continue to be degraded and
54 countries in Africa. The only African state that is not a converted to other uses.
member is Morocco, due to the status of the Western
Sahara, although Burkina Faso and the Central African The Convention uses a broad definition of wetlands. It
Republic have had their memberships suspended due to the includes all lakes and rivers, underground aquifers, swamps
recent coup d'tat and ongoing civil war, respectively. The and marshes, wet grasslands, peatlands, oases, estuaries,
AU was established on 26 May 2001 in Addis Ababa and deltas and tidal flats, mangroves and other coastal areas,
launched on 9 July 2002 in South Africa,[6] with the aim of coral reefs, and all human-made sites such as fish ponds,
replacing the Organisation of African Unity (OAU) rice paddies, reservoirs and salt pans.

The European Union is a unique economic and political Under the three pillars of the Convention, the Contracting
partnership between 28 European countries that together Parties commit to:
cover much of the continent. a. work towards the wise use of all their wetlands;
b. designate suitable wetlands for the list of Wetlands of
The EU was created in the aftermath of the Second World International Importance (the Ramsar List) and ensure
War. their effective management;
The EU is based on the rule of law: everything that it does is c. cooperate internationally on transboundary wetlands,
founded on treaties, voluntarily and democratically agreed shared wetland systems and shared species.
by all member countries. These binding agreements set out
the EU's goals in its many areas of activity. The Ramsar Convention works closely with five other
organisations known as International Organization Partners
The EU has developed an internal single market through a (IOPs). These are Birdlife International, the International
standardized system of laws that apply in all member states. Union for Conservation of Nature (IUCN), the International
Within the Schengen Area, passport controls have been Water Management Institute (IWMI), Wetlands
abolished.EU policies aim to ensure the free movement of International and WWF International. These support the
people, goods, services, and capital, enact legislation in work of the Convention by providing expert technical
justice and home affairs, and maintain common policies on advice, helping implement field studies and providing
trade, agriculture, fisheries, and regional development. The financial support.
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

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 53


* SUPPLEMENT NOTES: Wetlands [Ramsar Convention] Administrative Authority
Wetlands Scientific and Technical Review Panel [STRP]
all marshes, peatlands, mudflats, deltas, floodplains,
lagoons, estuary, rivers and lakes (seasonal or Implementation of the Policy
permanent), wet grassland, subtidal aquatic beds, sand - action plan
beaches, moss bogs, swamps, oxbows, wet meadows, - work plan
cypress swamps, reed marshes - guidelines to implement the policy
coastal areas such as saltmarshes, mangroves and
seagrass beds Review of Legislation
coral reefs and other marine areas no deeper than 6 Designation of Lead Agency
metres at low tide
human made wetlands such as wastewater treatment Monitoring
ponds and reservoirs -wetland health and land use monitoring
karst subterranean hydrological systems - program success monitoring

Benefits from Ramsar Convention Wetland Risk Assessment Framework
facilitates the development at national level of policies EIA
and actions, including legislation, that help nations to
make the best possible use of their wetland resources in Local Indigenous People Participation
their quest for sustainable development; 1. collaboration with the management of inhabited or
presents an opportunity for a country to make its voice privately owned wetland
heard in the principal intergovernmental forum on the 2. access to natural resources within wetland
conservation and wise use of wetlands; essential for livelihood, security, cultural heritage
increased publicity and prestige for the wetlands 3. people express interest to get involved
designated for the List of Wetlands of International
Importance, hence increased possibilities of support for Objectives of the Ramsar List
conservation and wise use measures; 1. Establish networks of Ramsar sites
access to the latest information and advice on adoption of 2. Contribute to maintaining biodiversity
the Conventions internationally-accepted standards, such 3. Foster cooperation among CP, etc.
as criteria for identifying wetlands of international 4. Use network to promote cooperation in relation to
importance, advice on application of the wise use concept, complementary treaties
and guidelines on management planning in wetlands;
brings access to expert advice on national and site-related National Wetland Policy Opportunities
problems of wetland conservation and management - establish wetland conservation and objectives in
through contacts with Ramsar Secretariat personnel and government policies
collaborators and through application of the Ramsar - enhance coordination of agencies
Advisory Mission when appropriate; and - incentives to create wetlands
encourages international cooperation on wetland issues - foster better wetland management
and brings the possibility of support for wetland projects, - better knowledge about wetland conservation and
either through the Conventions own small grants application
assistance programmes or through the Conventions
contacts with multilateral and bilateral external support Wetland Policy Objectives Focus on:
agencies - maintenance of wetland functions
Ramsar Small Grants Fund - advance land use planning affecting wetlands
- enhancement and rehabilitation of wetlands
RAMSAR vis--vis other MEAs - proclamation of sites
CBD - CMS - CITES - mitigation of impact of activites
- wise use of wetland resources
2 Priority Issues
Defining wetlands of global importance (Ramsar list) Goal Statements
promoting wise-use of wetlands Principles

Party commitments Wetland Functions:
i. designation of at least 1 site - water supply
ii. inclusion of wetland conservation in national land use - flood control
planning - tourism
iii. establishing nature reserves on wetlands and training - saline intrusion
on wetland research, management, and wardening - shoreline protection
iv. consulting with other parties regarding - sediment trap
implementation - natural products

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 54


- water transport shared (art. 18 and 19). Parties recognize their international
- cultural significance responsibility in regards of transfrontier environmental
- carbon sink effects and undertake to avoid and reduce adverse
environmental effects of activities under their jurisdiction
Principal Threats to Wetland Functions: (art. 20).
- agriculture
- logging Institutional mechanisms: Meetings of the Contracting
- mining Parties, provided in article 21, are to be held in as far as
- urban expansion possible in conjunction with appropriate meetings of the
- infrastructure development Association of Southeast Asian Nations (ASEAN). A
Secretariat is to be designated by the Contracting Parties on
Primarily on Birds ecological dependence on wetlands the coming into force of the Agreement (art. 22).

Recognizes the importance of wetlands as resources of 4. Forerunner on the International Convention on
great economic, cultural, scientific and recreational value Biological Diversity CBD 1992

Convention broadened to cover all aspects of wetland The Convention on Biological Diversity (CBD) entered into
conservation and wise use force on 29 December 1993. It has 3 main objectives:
1. The conservation of biological diversity
CONSIDER FOR FINALS: *** Provide Laws where PH 2. The sustainable use of the components of biological
provides for implementation of RAMSAR Convention diversity
3. The fair and equitable sharing of the benefits arising out
3. 1985 ASEAN agreement (on environmental of the utilization of genetic resources
protection) Nature and Natural Resources
Objectives: To maintain essential ecological processes and The convention recognized for the first time in international
life-support systems, to preserve genetic diversity, and to law that the conservation of biological diversity is "a
ensure the sustainable utilisation of living resources. common concern of humankind" and is an integral part of
the development process. The agreement covers all
Summary of provisions: ecosystems, species, and genetic resources. It links
Chapter II of the Agreement provides for the conservation of traditional conservation efforts to the economic goal of
species and ecosystems through extensive management using biological resources sustainably. It sets principles for
measures. the fair and equitable sharing of the benefits arising from
the use of genetic resources, notably those destined for
Chapter II deals with species genetic diversity (art. 3), commercial use. It also covers the rapidly expanding field of
sustainable use of species (art. 4), endangered and endemic biotechnology through its Cartagena Protocol on Biosafety,
species (art. 5), vegetation cover and forest and endemic addressing technology development and transfer, benefit-
species (art. 5), vegetation cover and forest (art. 9). sharing and biosafety issues. Importantly, the Convention is
legally binding; countries that join it ('Parties') are obliged
Chapter III of the Agreement relates to the conservation of to implement its provisions.
ecological processes with a view to maintaining their proper
functioning. Articles 10 and 11 concern the reduction, The convention reminds decision-makers that natural
prevention and control of environmental degradation and resources are not infinite and sets out a philosophy of
pollution. sustainable use. While past conservation efforts were aimed
at protecting particular species and habitats, the Convention
Chapter IV provides for environmental planning measures recognizes that ecosystems, species and genes must be used
with a view to integrating natural resources conservation for the benefit of humans. However, this should be done in a
into the land use process. Articles of chapter IV deal with way and at a rate that does not lead to the long-term decline
land use planning (art. 12), establishment of protected areas of biological diversity.
(art. 13), and impact assessments (art. 14).
The convention also offers decision-makers guidance based
Chapter V concerns national supporting measures which on the precautionary principle that where there is a threat
consist in, inter alia, promoting education, information and of significant reduction or loss of biological diversity, lack of
participation of the public in the planning and full scientific certainty should not be used as a reason for
implementation of conservation measures, and in training postponing measures to avoid or minimize such a threat.
scientific and technical personnel (art. 16). The Convention acknowledges that substantial investments
are required to conserve biological diversity. It argues,
Chapter VI provides for international co-operation between however, that conservation will bring us significant
the Parties through, inter alia, the co-ordination of their environmental, economic and social benefits in return.
activities in the field of conservation of nature and
management of natural resources, especially when these are

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 55


The Convention on Biological Diversity of 2010 would ban includes valuable traditional knowledge associated with
some forms of geoengineering. genetic resources that comes from ILCs.
The benefits to be shared can be monetary, such as sharing
The Cartagena Protocol on Biosafety of the Convention, also royalties when the resources are used to create a
known as the Biosafety Protocol, was adopted in January commercial product, or non-monetary, such as the
2000. The Biosafety Protocol seeks to protect biological development of research skills and knowledge. It is vital
diversity from the potential risks posed by living modified that both users and providers understand and respect
organisms resulting from modern biotechnology. institutional frameworks such as those outlined by the CBD
and in the Bonn Guidelines. These help governments to
The Nagoya Protocol on Access to Genetic Resources and establish their own national frameworks which ensure that
the Fair and Equitable Sharing of Benefits Arising from their access and benefit-sharing happens in a fair and equitable
Utilization to the Convention on Biological Diversity is a way.
supplementary agreement to the Convention on Biological How does it work?
Diversity. It provides a transparent legal framework for the Access and benefit-sharing is based on prior informed
effective implementation of one of the three objectives of consent (PIC) being granted by a provider to a user and
the CBD: the fair and equitable sharing of benefits arising negotiations between both parties to develop mutually
out of the utilization of genetic resources. The Protocol was agreed terms (MAT) to ensure the fair and equitable sharing
adopted on 29 October 2010 in Nagoya, Aichi Province, of genetic resources and associated benefits.
Japan, and entered into force on 12 October 2014. Its
objective is the fair and equitable sharing of benefits arising Who is involved in access and benefit-sharing?
from the utilization of genetic resources, thereby Providers of genetic resources: States have sovereign rights
contributing to the conservation and sustainable use of over natural resources under their jurisdiction. They are
biodiversity. obligated to put in place conditions that facilitate access to
these resources for environmentally sound uses.
5. Access and Benefit Sharing with Pharmaceutical Providers agree terms, which include PIC and MAT, for
Companies granting access and sharing benefits equitably. Laws within
the provider country may entitle others, such as ILCs, to also
Access and benefit-sharing refers to the way in which negotiate terms of access and benefit-sharing. The
genetic resources may be accessed, and how users and participation of ILCs is necessary in instances where
providers reach agreement on the fair and equitable sharing traditional knowledge associated with genetic resources is
of the benefits that might result from their use. being accessed.

Article 15 of the Convention on Biological Diversity (CBD) Users of genetic resources: Users are responsible for
sets out rules which govern access and benefit-sharing. sharing the benefits derived from genetic resources with the
Under these rules, the governments of countries have two providers. They seek access to genetic resources for a wide
key responsibilities: range of purposes, from basic research to the development
1. To put in place systems that facilitate access to genetic of new products. They are a diverse group, including
resources for environmentally sound purposes botanical gardens, industry researchers such as
2. To ensure that the benefits resulting from their use are pharmaceutical, agriculture and cosmetic industries,
shared fairly and equitably between users and providers collectors and research institutes.

Users of genetic resources include research institutes or National Focal Points: To facilitate access, users need a clear
companies seeking access for basic scientific research or and transparent process that details who to contact and
product development. To gain access, users must first get what the requirements and processes are in provider
permission (known as prior informed consent or PIC) from countries in order to gain access. National Focal Points are
the provider country. In addition, the provider and the user responsible for providing this information.
must negotiate an agreement (known as mutually agreed
terms or MAT) to share the resulting benefits equitably. Competent National Authorities (CNAs): CNAs are bodies
established by governments and are responsible for
Why is it important? granting access to users of their genetic resources, and
Providers of genetic resources are governments or civil representing providers on a local or national level. National
society bodies, which can include private land owners and implementation measures establish how CNAs work in a
communities within a country, who are entitled to provide given country.
access to genetic resources and share the benefits resulting
from their use. The access and benefit-sharing provisions of Key agreements
the Convention on Biological Diversity (CBD) are designed Prior informed consent (PIC): Permission given from the
to ensure that the physical access to genetic resources is CNAs of a provider country to a user prior to accessing
facilitated and that the benefits obtained from their use are genetic resources, in line with an appropriate legal and
shared equitably with the providers. In some cases this also institutional framework.

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 56


Mutually agreed terms (MAT): An agreement reached Mudflats are indispensable habitat for shorebirds and
between the providers of genetic resources and users on the hundreds of migratory birds depend on them for their
conditions of access and use of the resources, and the existence. In fact, their mass movement is one of the worlds
benefits to be shared between both parties. 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
Assignment for March 7 and provide ecosystem services to millions of people
A. Manila Times Article [Feb 2] - Save the Mudflats around the world, e.g. nurturing fisheries and providing
B. Multilateral Environmental Agreements: livelihoods to communities through shellfisheries,
1. Convention on the Conservation of Migratory Species supporting migratory waterbirds for scientific and aesthetic
of Wild Animals (also known as CMS or the Bonn purposes, water infiltration and regulation, ameliorating
Convention) flood and drought events, etc.
2. Convention concerning the Protection of World
Cultural and Natural Heritage (World Heritage The problem for mudflats as a type of wetlands is the
Convention) shifting character of coastal zones. The last 50 years or so
3. CITES (the Convention on International Trade in have seen the global human population migrating rapidly to
Endangered Species of Wild Fauna and Flora, also coastal areas. As a consequence, coastlines extending to
known as the Washington Convention) mudflats have become a focus of expansion of the urban,
*** Notes: CITES Appendices; Damaged Wetlands agricultural and industrial sectors including, of late, as
Montreaux List/San Jose List location for coastal wind farms to meet peoples energy
*** PRINCIPLE OF PRIOR INFORMED CONSENT needs. In fact, they have become the targets of many
- - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - development projects and thousands of hectares of mudflats
have disappeared.
A. Manila Times Article [Feb 2] - Save the Mudflats
What remains are continuously under the threat of
Rain and snowmelt flow down towards the sea from the
development. The diminution of mudflats is having a major
mountain height, watering forests and marshes and filling
impact on coastal ecosystems which results also in the
lakes and ponds along the way. Living things grow along the
widespread loss and degradation of related ecosystems
waters stream which supports our daily lives as well.
such as mangroves, seagrasses and coral reefs. And worst, it
Tatsuichi Tujii
has major consequences for humans and nature in

particular the loss of insect, fish and plant species.
Its World Wetlands Day today (February 2).
Mudflats abound in many countries of Asia like South Korea,

North Korea and China. In those countries, mudflats
WETLANDS (lupaing tubig) are where water meets life.
measure up to 20 kilometers wide in some places. While
The Ramsar Convention for the Conservation of Wetlands
studies show that Japan lost some 6,000 hectares of
(1971), about which the Philippines is a Party, identifies 42
mudflats in the last 50 years, the existing ones are valuable
wetlands type. Among these are mangrove areas, seagrass
examples of flats that have been preserved. Among these
beds, rivers, freshwater lakes, marshlands, rice paddies,
are the Ramsar sites of Yatsu-higata, Manko, Yonaha-wan
coral reefs, peatlands and mudflats. The least known are
and Nagura Amparu.
peatlands and mudflats.

For purposes of climate change adaptation governance,
In the Philippines, a group of citizens led by Senator Cynthia
peatlands as known in soil science are rich in plant species
Villar filed a petition for a writ of kalikasan as a remedy to
sustained only by nutrient-poor rainfall but enriched by
stop a reclamation project beside the Las Pinas-Paranaque
trophic salts from rivers. Aside from providing important
Critical Habitat and Ecotourism Area in Manila Bay declared
habitats for species, they also capture carbon and store it
so under Executive Order No. 01412 (2007) banning
away from the atmosphere.
activities that would impede its ecologically vital role as a
Mudflats, on the other hand, are low-lying coastal lands
bird sanctuary. The area is around 30 hectares planted with
overflowed during flood tide when water is affected by the
8 species of mangrove and 113 hectares of mudflats. These
ebb and flow of the tide. When exposed and submerged
mangroves and mudflats serve as roosting and feeding
repeatedly, rich and nutritious sediments from the sea are
grounds for 27 species of threatened and rare waterbirds.
deposited there to build up a rich community of micro

organisms and benthos. The water purification function of
The first designated Ramsar site in the country called
these organisms is a great attraction to peoples attention
Olango Island Wildlife Sanctuary in Mactan, Cebu is the
these days.
habitat of various species of fish, shells, crabs, sea urchin,

etc. and is visited by 10,000 species of migratory birds every
Mudflats soft bottom also make up blue carbon habitats
year coming from other parts of Asia like Siberia, China and
that absorb and store up to 70% carbon and greenhouse
Japan during the cold months of August to November.
gasses. Blue carbon plays a big role in mitigating the effects
Mention should also be made of the Liguasan Marsh
of climate change. And yet, conservation of mudflats is
comprising 288,000 hectares of marshes, swamps and
ignored.
mudflats in the provinces of Maguindanao, Cotabato and

Environmental Laws [Amb. Tolentino] 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. SUMMARY - The objective of the Bonn Convention is the
conservation of migratory species worldwide. Wild animals
Actually, there is no definitive way to know how much of require special attention because of their importance from
mudflats ecosystem has been destroyed or how much and the environmental, ecological, genetic, scientific,
where it remains. Lack of accurate maps is due to the recreational, cultural, educational, social and economic
rapidly changing conditions they encounter changing tides points of view.
either expose or cover them, seriously limiting the
application of available remote sensing methods and The Convention defines the following terms:
technologies. "migratory species" means the entire population or any
geographically separate part of the population of any
In Asia, the most popular and cheapest method of land species or lower taxon of wild animals a significant
acquisition for coastal development affecting mudflats is proportion of whose members cyclically and predictably
reclamation or landfill. The process involves construction of cross one or more national jurisdictional boundaries;
seawalls and infilling for land use. These areas are then "conservation status of a migratory species" means the
developed into new parcels of land for aquaculture, housing sum of the influences acting on the migratory species
projects, industries, shopping malls as well as tourist that may affect its long-term distribution and
resorts like casinos, sports and entertainment centers. abundance;
"endangered" means that the migratory species is in
The over-reliance on the ecosystem services approach danger of extinction throughout all or part of the
putting monetary value to mudflats services, i.e., housing territory of a State.
projects and tourist industries, gives rise to the implication
that alternative development services can be created The parties to the Convention acknowledge the importance
through the modification of the water ecosystem to provide of conserving migratory species, and the need to pay special
a greater economic return. attention to species the conservation status of which is
To be more specific, reclamation of mudflats becomes unfavorable.
justified on much higher economic returns from, as
mentioned, housing or tourism development. The fact that To avoid any migratory species becoming endangered, the
the economic returns largely accrue to a group of wealthy parties must endeavour:
businessmen rather than impoverished shellfish collectors to promote, cooperate in or support research relating to
is seldom mentioned. And the developers and their agents migratory species;
even say that the shellfish collectors would be better off if to provide immediate protection for migratory species
they switched to jobs in the newly created tourism sector. included in Appendix I; and
to conclude Agreements covering the conservation and
The urgent need, therefore, is for an effective conservation management of migratory species listed in Appendix II.
strategy that will guide the complex economic and social
trade-offs that drive coastal development. This could ease To protect endangered migratory species, the parties to the
pressure on a functioning network of coastal protected Convention will endeavor:
areas including mudflats and ensure continued delivery of to conserve or restore the habitats of endangered
other equally important ecosystem services, i.e. biodiversity species;
conservation. to prevent, remove, compensate for or minimise the
adverse effects of activities or obstacles that impede the
In the words of Secretary-General Braulio Dias of the UN migration of the species; and
Biodiversity Conservation Secretariat, to save biodiversity,
to the extent feasible and appropriate, to prevent,
all you have to do is save a few mudflats.
reduce or control factors that are endangering or are
likely to further endanger the species.
B. Multilateral Environmental Agreements [MEAs]:
Range States of migratory species ("range" means areas of
1. Convention on the Conservation of Migratory Species land or water that a migratory species inhabits, crosses or
of Wild Animals (also known as CMS or the Bonn overflies on its migration route) must prohibit the taking of
Convention) animals belonging to species listed in Appendix I, subject to
certain exceptions (taking for scientific purposes, or to
The purpose of the Bonn Convention is to develop enhance the propagation or survival of the species). Such
international cooperation with a view to the conservation of exceptions must be precise as to content and limited in
migratory species of wild animals. space and time, and should not operate to the disadvantage
of the species.
ACT- Council Decision 82/461/EEC of 24 June 1982 on the
conclusion of the Convention on the conservation of The conservation and management of the species listed in
migratory species of wild animals (Bonn Convention). Appendix II may require international agreements.

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 58


Guidelines for agreements: reports suggested that the Director-General should prepare
restore or maintain the migratory species concerned; an international recommendation, which could serve as a
cover the whole of the range of the migratory species basis for creating or perfecting national systems of
concerned; protection, and prepare an international convention or
be open to accession by all Range States, whether or not other appropriate means to favour the establishment of an
they are parties to the Convention; international system for the protection of monuments,
where feasible, concern several species. groups of buildings and sites of universal value. In 1970, the
General Conference, by resolution 3.412, entrusted the
Each agreement must contain the following information: Acting Director-General with drafting an international
the name of the migratory species concerned; convention and invited him to convene a Special Committee
its range and migration route; tasked with examining and finalizing the drafts. The
measures for implementing the agreement; Committee completed its work with the adoption of the
procedures for the settlement of disputes; draft Convention for the Protection of the Cultural and
Natural World Heritage and the draft Recommendation
designation of the authority concerned with the
Concerning the Protection, at National Level, of the Cultural
implementation of the Agreement.
and Natural Heritage in April 1972. The two texts were
Agreements may also provide for: submitted to the seventeenth session of the General
Conference on 15 November 1972 and adopted the
research into the species;
following day.
the exchange of information on the migratory species;
the restoration or maintenance of a network of suitable The Convention contains 38 articles which are divided into
habitats for the conservation of the species; eight parts: I. Definition of the Cultural and Natural
periodic review of the conservation status of the species; Heritage; II. National Protection and International
emergency procedures whereby conservation action Protection of the Cultural and Natural Heritage; III.
would be rapidly strengthened. Intergovernmental Committee for the Protection of the
World Cultural and Natural Heritage; IV. Fund for the
The Conference of the Parties is the decision-making organ Protection of the World Cultural and Natural Heritage; V.
of the Convention. It reviews the implementation of the Conditions and Arrangements for International Assistance;
Convention and can adopt recommendations. VI. Educational Programmes; VII. Reports; and VIII. Final
The Convention, and Appendices I and II thereto, can be Clauses.
amended.
Any dispute between parties to the Convention must be
The World Heritage Convention - The most significant
settled by negotiation between the parties involved. If the
feature of the 1972 World Heritage Convention is that it
dispute cannot be resolved by negotiation, it may be
links together in a single document the concepts of nature
submitted to arbitration, in particular that of the Permanent
conservation and the preservation of cultural properties.
Court of Arbitration at The Hague, whose decision will be
The Convention recognizes the way in which people interact
binding on the parties.
with nature, and the fundamental need to preserve the
The Bonn Convention was signed in 1979 and entered into
balance between the two.
force on 1 November 1983.
Strategic Objectives: the "Five Cs"
2. Convention concerning the Protection of World Credibility
Cultural and Natural Heritage (World Heritage Conservation
Convention) Capacity-building
The Convention concerning the Protection of the World Communication
Cultural and Natural Heritage entered into force on 17 Communities
December 1975, three months after the date of the deposit
of the twentieth instrument of ratification, acceptance or What the Convention contains - The Convention defines
accession, pursuant to its article 33. the kind of natural or cultural sites which can be considered
for inscription on the World Heritage List.
Efforts aimed at the preservation of artistic and historic
heritage of mankind date back to the time of the League of The Convention sets out the duties of States Parties in
Nations. The establishment of the United Nations identifying potential sites and their role in protecting and
Educational, Scientific and Cultural Organization (UNESCO), preserving them. By signing the Convention, each country
on 16 November 1945, gave new impetus to such efforts. In pledges to conserve not only the World Heritage sites
1966, UNESCOs General Conference adopted resolution situated on its territory, but also to protect its national
3.342, by which it instructed the Director-General to heritage. The States Parties are encouraged to integrate the
coordinate and secure the international adoption of protection of the cultural and natural heritage into regional
appropriate principles and scientific, technical and legal planning programmes, set up staff and services at their
criteria for the protection of cultural property, monuments sites, undertake scientific and technical conservation
and sites. Meetings of experts were held and their final

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 59


research and adopt measures which give this heritage a Eventually, a single text was agreed upon by all parties
function in the day-to-day life of the community. concerned. The Convention concerning the Protection of
It explains how the World Heritage Fund is to be used and World Cultural and Natural Heritage was adopted by the
managed and under what conditions international financial General Conference of UNESCO on 16 November 1972.
assistance may be provided. The same General Conference adopted on 16 November
The Convention stipulates the obligation of States Parties to 1972 the Recommendation concerning the Protection, at
report regularly to the World Heritage Committee on the National Level, of the Cultural and Natural Heritage.
state of conservation of their World Heritage properties. By regarding heritage as both cultural and natural, the
These reports are crucial to the work of the Committee as Convention reminds us of the ways in which people interact
they enable it to assess the conditions of the sites, decide on with nature, and of the fundamental need to preserve the
specific programme needs and resolve recurrent problems. balance between the two.
It also encourages States Parties to strengthen the Benefits of Ratification
appreciation of the public for World Heritage properties and The overarching benefit of ratifying the World Heritage
to enhance their protection through educational and Convention is that of belonging to an international
information programmes. community of appreciation and concern for universally
Brief History -The idea of creating an international significant properties that embody a world of outstanding
movement for protecting heritage emerged after World War examples of cultural diversity and natural wealth.
I. The 1972 Convention concerning the Protection of the The States Parties to the Convention , by joining hands to
World Cultural and Natural Heritage developed from the protect and cherish the world's natural and cultural
merging of two separate movements: the first focusing on heritage, express a shared commitment to preserving our
the preservation of cultural sites, and the other dealing with legacy for future generations.
the conservation of nature.
The prestige that comes from being a State Party to the
Preserving cultural heritage - The event that aroused Convention and having sites inscribed on the World
particular international concern was the decision to build Heritage List often serves as a catalyst to raising awareness
the Aswan High Dam in Egypt, which would have flooded for heritage preservation.
the valley containing the Abu Simbel temples , a treasure of
ancient Egyptian civilization. In 1959, after an appeal from A key benefit of ratification, particularly for developing
the governments of Egypt and Sudan, UNESCO launched an countries, is access to the World Heritage Fund . Annually,
international safeguarding campaign. Archaeological about US$4 million is made available to assist States Parties
research in the areas to be flooded was accelerated. Above in identifying, preserving and promoting World Heritage
all, the Abu Simbel and Philae temples were dismantled, sites. Emergency assistance may also be made available for
moved to dry ground and reassembled. urgent action to repair damage caused by human-made or
natural disasters. In the case of sites included on the List of
The campaign cost about US$80 million, half of which was World Heritage in Danger , the attention and the funds of
donated by some 50 countries, showing the importance of both the national and the international community are
solidarity and nations' shared responsibility in conserving focused on the conservation needs of these particularly
outstanding cultural sites. Its success led to other threatened sites.
safeguarding campaigns, such as saving Venice and its
Lagoon (Italy) and the Archaeological Ruins at Moenjodaro Today, the World Heritage concept is so well understood
(Pakistan) , and restoring the Borobodur Temple that sites on the List are a magnet for international
Compounds (Indonesia). cooperation and may thus receive financial assistance for
heritage conservation projects from a variety of sources.
Consequently, UNESCO initiated, with the help of the
International Council on Monuments and Sites (ICOMOS), Sites inscribed on the World Heritage List also benefit from
the preparation of a draft convention on the protection of the elaboration and implementation of a comprehensive
cultural heritage. management plan that sets out adequate preservation
measures and monitoring mechanisms. In support of these,
Linking the protection of cultural and natural heritage experts offer technical training to the local site management
The idea of combining conservation of cultural sites with team.
those of nature comes from the United States of America. A Finally, the inscription of a site on the World Heritage List
White House Conference in Washington, D.C., in 1965 called brings an increase in public awareness of the site and of its
for a World Heritage Trust that would stimulate outstanding values, thus also increasing the tourist activities
international cooperation to protect the world's superb at the site. When these are well planned for and organized
natural and scenic areas and historic sites for the present respecting sustainable tourism principles, they can bring
and the future of the entire world citizenry. In 1968, the important funds to the site and to the local economy.
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.

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 60


3. CITES (the Convention on International Trade in framework to be respected by each Party, which has to
Endangered Species of Wild Fauna and Flora, also adopt its own domestic legislation to ensure that CITES is
known as the Washington Convention) implemented at the national level.

What is CITES? For many years CITES has been among the conservation
CITES (the Convention on International Trade in agreements with the largest membership, with now 181
Endangered Species of Wild Fauna and Flora) is an Parties.
international agreement between governments. Its aim is to
ensure that international trade in specimens of wild animals How CITES works
and plants does not threaten their survival. CITES works by subjecting international trade in specimens
of selected species to certain controls. All import, export, re-
Widespread information nowadays about the endangered export and introduction from the sea of species covered by
status of many prominent species, such as the tiger and the Convention has to be authorized through a licensing
elephants, might make the need for such a convention seem system. Each Party to the Convention must designate one or
obvious. But at the time when the ideas for CITES were first more Management Authorities in charge of administering
formed, in the 1960s, international discussion of the that licensing system and one or more Scientific Authorities
regulation of wildlife trade for conservation purposes was to advise them on the effects of trade on the status of the
something relatively new. With hindsight, the need for species.
CITES is clear. Annually, international wildlife trade is
estimated to be worth billions of dollars and to include The species covered by CITES are listed in three
hundreds of millions of plant and animal specimens. The Appendices, according to the degree of protection they
trade is diverse, ranging from live animals and plants to a need.
vast array of wildlife products derived from them, including
food products, exotic leather goods, wooden musical The Fundamental Principles of CITES are described in
instruments, timber, tourist curios and medicines. Levels of Article 2: arguably the most important part of the
exploitation of some animal and plant species are high and Convention. This defines the criteria for listing under the
the trade in them, together with other factors, such as three appendices. Appendix I is reserved for those species
habitat loss, is capable of heavily depleting their that are threatened with extinction that are now, or may
populations and even bringing some species close to become, further endangered by international trade. As such,
extinction. Many wildlife species in trade are not trade in those species is prohibited for all Parties, although
endangered, but the existence of an agreement to ensure the there are some exceptions. These include, for example,
sustainability of the trade is important in order to safeguard specimens that are raised in captivity or parts that were
these resources for the future. derived from specimens before the treaty came into force.
Species listed on Appendix II fall into two categories. This
Because the trade in wild animals and plants crosses includes those that are not necessarily threatened with
borders between countries, the effort to regulate it requires extinction by trade, but may become so unless conservation
international cooperation to safeguard certain species from measures are taken, and those that may look like other
over-exploitation. CITES was conceived in the spirit of such species affected by trade and listed on an Appendix. The
cooperation. Today, it accords varying degrees of protection second category includes, for example, all crocodilians. In
to more than 35,000 species of animals and plants, whether this case, some species are common and can be
they are traded as live specimens, fur coats or dried herbs. commercially traded under the CITES permit system (such
as American alligators and common caiman from many
CITES was drafted as a result of a resolution adopted in Latin American countries), while other are rare and are
1963 at a meeting of members of IUCN (The World listed under Appendix I (Orinoco crocodile). This is meant
Conservation Union). The text of the Convention was finally to assure that rare species are not traded under labels of
agreed at a meeting of representatives of 80 countries in more common species. Appendix II listings have increased
Washington, D.C., the United States of America, on 3 March greatly over the years; all wild cats and wild orchids, for
1973, and on 1 July 1975 CITES entered in force. The example, not listed in Appendix I are now listed in Appendix
original of the Convention was deposited with the II. Appendix III includes species that are protected by
Depositary Government in the Chinese, individual States within their respective jurisdictions.
English, French, Russian and Spanish languages, each Ghana, for example, protects all songbirds, and trade in any
version being equally authentic. species, including those that are common, from that country
is prohibited.
CITES is an international agreement to which States
(countries) adhere voluntarily. States that have agreed to be The Provisions of CITES
bound by the Convention ('joined' CITES) are known as CITES has 25 Articles and each is described briefly here.
Parties. Although CITES is legally binding on the Parties in Article 1 provides broad legal and scientific definitions used
other words they have to implement the Convention it in subsequent articles. A species" under the Convention can
does not take the place of national laws. Rather it provides a refer to a biological species, subspecies or a
separate population and a specimen can refer to any

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 61


animal or plant, whether dead or alive, and/or any Provisions for entry into force of the treaty (which took
recognizable part or derivative thereof, that is listed on any place in 1975) are set forth in Article 22 and procedures for
one of the three Appendices (see below). Definitions are making specific reservations are provided for in Article 23.
also provided for what constitutes trade, export, re-export, Article 24 permits Parties to denounce CITES and Article 25
and the scientific and management authorities that the outlines the duties of the Depositary Government
Parties are required to designate under the treaty. (Switzerland). The CITES Secretariat is within the United
Nations Environmental Programme (UNEP) and is located
Articles 3 through 5 provide broad legal guidelines under in Geneva.
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 Assignment for March 14:
required to have. In general terms, the Management 1. Convention on Biological Diversity (CBD), known
Authority of each respective party is responsible for issuing informally as the Biodiversity Convention
import and export permits for listed species in each Party, 2. Basel Convention on the Control of Transboundary
and the Scientific Authority has the responsibility for Movements of Hazardous Wastes and Their Disposal,
properly identifying specimens to assure compliance. In usually known as the Basel Convention
most Parties, the Management Authority is the national- 3. United Nations Convention on the Law of the Sea
level wildlife agency and the Scientific Authority may (UNCLOS), also called the Law of the Sea Convention or
include government-funded research institutions such as a the Law of the Sea treaty
national Natural History Museum. Articles 6 and 7 describe - PART XII:PROTECTION AND PRESERVATION OF THE
in more detail the permit system, the role of both import MARINE ENVIRONMENT
and export permits, and exemptions under CITES for, for - ANNEX VI. STATUTE OF THE INTERNATIONAL
example, specimens propagated in captivity. TRIBUNAL FOR THE LAW OF THE SEA
- ANNEX VII. ARBITRATION
Articles 8 through 10 obligate Parties to take enforcement *** FOR FINALS: What is a protocol? What is the role of
measures, including confiscation of and penalties for listed Arbitration in peaceful way of settling disputes; What is EEZ?;
specimens illegally obtained, and it elaborates on the legal Principle of common heritage of mankind
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 1. Convention on Biological Diversity (CBD), known
documentation from non-parties in any transaction informally as the Biodiversity Convention
involving wildlife trade between Parties to non-Parties. Summary: The Convention on Biological Diversity was
negotiated under the auspices of the United Nations
The CITES Secretariat is obliged under Article 11 to convene Environment Programme (UNEP). It was opened for
a Conference of Parties (COPs) at least biennially, and its signature at the June 1992 UN Conference on Environment
role is further elaborated in Article 12 to arrange and Development (UNCED) and entered into force on 29
conferences, undertake research, and publish periodic December 1993, ninety days after the 30th ratification. As
editions of the Appendices. The Secretariat also performs of October 1998, more than 170 countries had become
the role of preparing annual research reports and Parties (pdf file). The three goals of the CBD are to promote
implementing recommendations made at the COPs. The the conservation of biodiversity, the sustainable use of its
Secretariat is further responsible to inform Parties when components, and the fair and equitable sharing of benefits
they are not in compliance with CITES and instruct Parties arising out of the utilization of genetic resources. The CBD
to respond to such information. Inquiries are subject to Secretariat is located in Montral, Canada. The Subsidiary
review at the next COP and any Party has the power to make Body on Scientific, Technical and Technological Advice
recommendations regarding non-compliance of any other (SBSTTA), which advises the Conference of the Parties
Party. For example, the United States reprimanded Taiwan (COP), meets several months prior to each COP.
in 1994 regarding trade in tiger parts for traditional Chinese Negotiations on the first protocol to the Convention,
medicine, and threatened trade sanctions. Taiwan conducted by the Ad Hoc Working Group on Biosafety
responded with further enforcement. Any Party is free to (BSWG), concluded in January 2000.
adopt domestic protective measures that are more strict
that those required by CITES under Article 14, and Articles The Earth Negotiations Bulletin has covered each COP,
15 and 16 provide procedures for amending the SBSTTA and BSWG session plus two sessions prior to the
Appendices, while procedures for amending the Convention CBD's entry into force and an intersessional workshop.
itself are set forth in Article 17 and procedures for dispute ENB coverage of biodiversity issues also includes several
resolution are given in Article 18. sessions of the Commission on Plant Genetic Resources for
Food and Agriculture, which meets under FAO auspices (see
The remaining 7 articles of CITES deal with its the ENB CBD Archives for all biodiversity coverage; see also
administrative aspects. These include signature of the the Linkages Homepage on Genetic Resources). The
agreement (which closed in December of 1974), ratification following discussion focuses on decisions taken by the CBD
(Article 20), and accession to the Convention (Article 21). COP, SBSTTA and the BSWG.

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 62


modus operandi of the SBSTTA affirmed its subsidiary role
The CBD Conference of the Parties (COP): to the COP and requested flexibility to create: two open-
The first meeting of the COP took place in Nassau, the ended working groups to meet simultaneously during
Bahamas from 28 November - 9 December 1994. Key future SBSTTA meetings; Ad Hoc Technical Panels of
decisions taken by COP-1 included: adoption of the Experts as needed; and a roster of experts. On the
medium-term work programme; designation of the conservation and sustainable use of coastal and marine
Permanent Secretariat; establishment of the Clearing House biological diversity, SBSTTA-1 identified three priorities:
Mechanism (CHM) and the SBSTTA; and designation of the sustainable use of living coastal and marine resources;
Global Environment Facility (GEF) as the interim mariculture; and control of alien organisms.
institutional structure for the financial mechanism.
The second session of SBSTTA took place from 2-6
The second session of the COP met in Jakarta, Indonesia September 1996 in Montral, Canada. The agenda included
from 6-17 November 1995. Decisions taken by COP-2 issues such as the monitoring and assessment of
included: designation of the permanent location of the biodiversity, practical approaches to taxonomy, economic
Secretariat in Montral, Canada; agreement to develop a valuation of biodiversity, access to genetic resources,
protocol on biosafety; operation of the CHM; designation of agricultural biodiversity, terrestrial biodiversity, marine
the GEF as the continuing interim institutional structure for and coastal biodiversity, biosafety and the CHM.
the financial mechanism; consideration of its first
substantive issue, marine and coastal biodiversity; and The third session of SBSTTA met in Montral, Canada, from
agreement to address forests and biodiversity, including the 1-5 September 1997. Delegates produced
development of a statement from the CBD to the recommendations on biodiversity in inland water
Intergovernmental Panel on Forests (IPF) of the ecosystems, marine and coastal biodiversity, agricultural
Commission on Sustainable Development. COP-2 also biodiversity, forest biodiversity, and biodiversity indicators.
addressed the issue of Plant Genetic Resources for Food and
Agriculture (PGRFA), adopting a statement for input to the The fourth session of SBSTTA met in Montral, Canada, from
FAOs Fourth International Technical Conference on PGRFA 21-25 June 1999. The first Intersessional meeting on the
(ITCPGR-4). Operations of the Convention (ISOC) convened in Montral
from 28-30 June 1999. ENB coverage
COP-3 met in Buenos Aires, Argentina, from 4-15 November
1996. Delegates' decisions included: a work programme on SBSTTA-4 delegates met in two working groups. The first
agricultural biodiversity and a more limited one on forest considered developing a work programme on dryland
biodiversity; agreement to hold an intersessional workshop ecosystems, principles for the prevention of impacts of alien
on traditional knowledge (Article 8(j)); application by the species, and further advancement of the Global Taxonomy
Executive Secretary for observer status to the World Trade Initiative. Working Group II discussed: new plant
Organization (WTO) Committee on Trade and the technology for the control of plant gene expression;
Environment; and a statement from the CBD to the Special sustainable use of biological resources, including tourism;
Session of the UN General Assembly (UNGASS) to review and incorporation of biological diversity considerations into
implementation of Agenda 21. environmental impact assessments. Delegates also
discussed the SBSTTA work programme, cooperation with
COP-4 took place from 4-15 May 1998 in Bratislava, other bodies and progress on thematic areas. They
Slovakia. Delegates addressed, inter alia: inland water, considered the terms of reference of ad hoc technical expert
marine and coastal, agricultural and forest biodiversity; the groups, but deferred making a decision to SBSTTA-5.
clearing-house mechanism; biosafety; implementation of
Article 8(j) (traditional and indigenous knowledge); access ISOC was convened based on COP-4 Decision IV/16, which
and benefit sharing; a review of the operations of the called for an open-ended meeting to consider possible
Convention; and national reports. Delegates also conducted arrangements to improve preparations for and conduct of
a review of the financial mechanism. the meetings of the Conference of the Parties (COP). ISOC
also held preparatory discussions on the COP-5 agenda item
COP-5 is scheduled to take place from 15-26 May 2000 in on access to genetic resources and benefit sharing, focusing
Nairobi, Kenya. on the upcoming Experts Panel on Access and Benefit
Sharing, which will meet in October 1999 in Costa Rica, ex
The Subsidiary Body on Scientific, Technical and situ collections that were acquired prior to the Convention's
Technological Advice (SBSTTA): entry into force and the relationship between intellectual
Article 25 of the CBD establishes a Subsidiary Body on property rights and the relevant provisions of the
Scientific, Technical and Technological Advice to provide Agreement on Trade-Related Aspects of Intellectual
the COP with "timely advice" relating to implementation of Property Rights and the CBD.
the Convention.
The fifth session of SBSTTA met in Montral, Canada from
The first session of the SBSTTA took place from 4-8 31 January - 4 February, 2000. Over 430 participants,
September 1995 in Paris, France. Recommendations on the representing 130 governments, NGOs, the scientific

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 63


community and indigenous peoples' organizations, attended The sixth session of the Open-ended Ad Hoc Working Group
the meeting. on Biosafety (BSWG-6) was held from Sunday, 14 February,
to Monday morning, 22 February 1999, in Cartagena de
SBSTTA-5 delegates met in two Working Groups. Working Indias, Colombia. The first Extraordinary Meeting of the
Group 1 considered: alien species; marine and coastal Conference of the Parties (ExCOP) to the CBD was held from
biological diversity, including coral bleaching; the 22-23 February 1999. Over 600 participants representing
programme of work for drylands, Mediterranean, arid, 138 governments, business and environmental NGOs and
semi-arid, grassland and savannah biological diversity; and the scientific community, attempted to finalize a protocol on
agricultural biological diversity. Working Group 2 discussed biosafety during the BSWG for adoption by the ExCOP.
the ecosystem approach, development of biodiversity Despite ten days of non-stop debate, including weekend,
indicators, and sustainable use of the components of late night and early morning sessions, delegates were not
biological diversity. The Plenary reviewed cooperation with able to agree on a protocol. The main areas of contention
other bodies, the Global Taxonomy Initiative, the pilot phase centered on trade issues, treatment of commodities and
of the Clearing-House Mechanism, guidelines for the second domestic vs. international regulatory regimes. Instead the
national reports, work programmes on inland waters and ExCOP adopted a decision to suspend the meeting and
forest biological diversity, and rosters and terms of request the ExCOP President and the COP-4 Bureau to
reference for ad hoc technical expert groups. The decide when and where the session would resume, no later
recommendations from SBSTTA-5 will be forwarded to the than the fifth meeting of the Conference of the Parties.
fifth Conference of the Parties (COP-5) to be held in Nairobi, Delegates also decided that the Protocol will be called the
Kenya, from 15-26 May 2000. Cartagena Protocol on Biosafety to the Convention on
Biological Diversity. The text of the draft Protocol, set out in
Biosafety Protocol: Appendix I to the Report of BSWG-6, as well as the
Since the early 1970s, modern biotechnology has enabled statements by governments with respect to the text of the
scientists to genetically and biochemically modify plants, draft Protocol contained in that report, will be transmitted
animals and micro-organisms to create living modified to the resumed ExCOP session for further debate.
organisms (LMOs). Many countries with biotechnology
industries already have domestic legislation in place The Informal Consultations regarding the Resumed Session
intended to ensure the safe transfer, handling, use and of the Extraordinary Meeting Of The Conference of the
disposal of LMOs and their products. These precautionary Parties (ExCOP) for the Adoption of the Protocol on
practices are collectively known as "biosafety." However, Biosafety to the Convention on Biological Diversity met in
there are no binding international agreements addressing Vienna, Austria, from Wednesday, 15 September to Sunday,
situations where LMOs cross national borders. Article 19 of 19 September 1999. Approximately 300 representatives
the CBD provides for Parties to consider the need for and from over 115 governments and 70 representatives from
modalities of a protocol on biosafety. intergovernmental, nongovernmental and industry
organizations attended. The first two days of the meeting
At COP-2, delegates established an Open-ended Ad Hoc were devoted to consultations within negotiating groups;
Working Group on Biosafety (BSWG), which held its first the third day was for informal exchanges between groups;
meeting in Aarhus, Denmark, from 22-26 July 1996. and the final two days were devoted to resolving differences
Governments listed elements for a future protocol and between groups on pending core issues. During the final
outlined the information required to guide their future two days of discussions, negotiating groups addressed the
work. issues of commodities, the protocols relationship with
other international agreements, the protocols scope and
Four subsequent BSWG meetings, all held in Montral, application of the advance informed agreement procedure.
Canada, continued to identify and narrow the elements to Negotiating groups agreed on a basic set of concepts for
be included in the protocol. Discussion ranged from: the commodities and relations with other international
protocol's scope, including which LMOs and "products agreements, while acknowledging that the central
thereof" would be covered; which LMOs would be subject to differences on those and other issues remain. (Note: ENB's
Advanced Informed Agreement and what that procedure briefing note covers only the final two days of
would entail; whether there would be a clearing-house; who consultations.)
would conduct risk assessments and/or how risks would be
managed; whether action would be based on the The Resumed Session of the Extraordinary Meeting of the
precautionary principle, scientific knowledge and/or some Conference of the Parties (ExCOP) for the Adoption of the
other criteria; and whether there would be liability and Protocol on Biosafety to the Convention on Biological
compensation/redress provisions. Additional issues on the Diversity was held from 24-28 January 2000, in Montral,
table addressed capacity building, unintentional Canada. Over 750 participants, representing 133
transboundary movement, handling, transportation, governments, NGOs, industry organizations and the
packaging and transit requirements, and monitoring and scientific community, attended the meeting. Following nine
compliance. Most of the text remained bracketed going into days of negotiations, including late evening and early
the final week of negotiations in Cartegena, Colombia. morning sessions, delegates adopted the Cartagena Protocol
on Biosafety in the early morning hours of 29 January 2000.

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- the restriction of transboundary movements of hazardous
The Cartagena Protocol addresses the safe transfer, wastes except where it is perceived to be in accordance with
handling and use of living modified organisms (LMOs) that the principles of environmentally sound management; and
may have an adverse effect on biodiversity with a specific - a regulatory system applying to cases where
focus on transboundary movements. The Protocol transboundary movements are permissible.
establishes an advance informed agreement (AIA)
procedure for imports of LMOs, incorporates the The first aim is addressed through a number of general
precautionary principle and details information and provisions requiring States to observe the fundamental
documentation requirements. The Protocol also contains principles of environmentally sound waste management
provisions regarding documentation, confidential (article 4). A number of prohibitions are designed to attain
information and information-sharing, capacity-building, and the second aim: hazardous wastes may not be exported to
financial resources, with special attention to the situation of Antarctica, to a State not party to the Basel Convention, or to
developing countries and those without domestic a party having banned the import of hazardous wastes
regulatory systems. (article 4). Parties may, however, enter into bilateral or
multilateral agreements on hazardous waste management
2. Basel Convention on the Control of Transboundary with other parties or with non-parties, provided that such
Movements of Hazardous Wastes and Their Disposal, agreements are no less environmentally sound than the
usually known as the Basel Convention Basel Convention (article 11). In all cases where
transboundary movement is not, in principle, prohibited, it
Overview: The Basel Convention on the Control of may take place only if it represents an environmentally
Transboundary Movements of Hazardous Wastes and their sound solution, if the principles of environmentally sound
Disposal was adopted on 22 March 1989 by the Conference management and non-discrimination are observed and if it
of Plenipotentiaries in Basel, Switzerland, in response to a is carried out in accordance with the Conventions
public outcry following the discovery, in the 1980s, in Africa regulatory system.
and other parts of the developing world of deposits of toxic
wastes imported from abroad. The regulatory system is the cornerstone of the Basel
Convention as originally adopted. Based on the concept of
Awakening environmental awareness and corresponding prior informed consent, it requires that, before an export
tightening of environmental regulations in the may take place, the authorities of the State of export notify
industrialized world in the 1970s and 1980s had led to the authorities of the prospective States of import and
increasing public resistance to the disposal of hazardous transit, providing them with detailed information on the
wastes in accordance with what became known as the intended movement. The movement may only proceed if
NIMBY (Not In My Back Yard) syndrome and to an and when all States concerned have given their written
escalation of disposal costs. This in turn led some operators consent (articles 6 and 7). The Basel Convention also
to seek cheap disposal options for hazardous wastes in provides for cooperation between parties, ranging from
Eastern Europe and the developing world, where exchange of information on issues relevant to the
environmental awareness was much less developed and implementation of the Convention to technical assistance,
regulations and enforcement mechanisms were lacking. It particularly to developing countries (articles 10 and 13).
was against this background that the Basel Convention was The Secretariat is required to facilitate and support this
negotiated in the late 1980s, and its thrust at the time of its cooperation, acting as a clearing-house (article 16). In the
adoption was to combat the toxic trade, as it was termed. event of a transboundary movement of hazardous wastes
The Convention entered into force in 1992. having been carried out illegally, i.e. in contravention of the
provisions of articles 6 and 7, or cannot be completed as
Objective - The overarching objective of the Basel foreseen, the Convention attributes responsibility to one or
Convention is to protect human health and the environment more of the States involved, and imposes the duty to ensure
against the adverse effects of hazardous wastes. Its scope of safe disposal, either by re-import into the State of
application covers a wide range of wastes defined as generation or otherwise (articles 8 and 9).
hazardous wastes based on their origin and/or
composition and their characteristics, as well as two types The Convention also provides for the establishment of
of wastes defined as other wastes - household waste and regional or sub-regional centres for training and technology
incinerator ash. transfers regarding the management of hazardous wastes
and other wastes and the minimization of their generation
Aims and provisions: The provisions of the Convention to cater to the specific needs of different regions and
center around the following principal aims: subregions (article 14). Fourteen such centres have been
established. They carry out training and capacity building
- the reduction of hazardous waste generation and the activities in the regions.
promotion of environmentally sound management of
hazardous wastes, wherever the place of disposal;

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 65


3. United Nations Convention on the Law of the Sea and regulating the design, construction, equipment,
(UNCLOS), also called the Law of the Sea Convention or operation and manning of such installations or devices.
the Law of the Sea treaty 4. In taking measures to prevent, reduce or control pollution
of the marine environment, States shall refrain from
PART XII : PROTECTION AND PRESERVATION OF THE unjustifiable interference with activities carried out by
MARINE ENVIRONMENT other States in the exercise of their rights and in pursuance
of their duties in conformity with this Convention.
SECTION 1. GENERAL PROVISIONS 5. The measures taken in accordance with this Part shall
Article 192: General obligation - States have the obligation to include those necessary to protect and preserve rare or
protect and preserve the marine environment. fragile ecosystems as well as the habitat of depleted,
threatened or endangered species and other forms of
Article 193: Sovereign right of States to exploit their natural marine life.
resources - States have the sovereign right to exploit their
natural resources pursuant to their environmental policies Article 195: Duty not to transfer damage or hazards or
and in accordance with their duty to protect and preserve transform one type of pollution into another
the marine environment. In taking measures to prevent, reduce and control pollution
of the marine environment, States shall act so as not to
Article 194: Measures to prevent, reduce and control pollution transfer, directly or indirectly, damage or hazards from one
of the marine environment area to another or transform one type of pollution into
1. States shall take, individually or jointly as appropriate, all another.
measures consistent with this Convention that are
necessary to prevent, reduce and control pollution of the Article 196: Use of technologies or introduction of alien or
marine environment from any source, using for this purpose new species
the best practicable means at their disposal and in 1. States shall take all measures necessary to prevent,
accordance with their capabilities, and they shall endeavour reduce and control pollution of the marine environment
to harmonize their policies in this connection. resulting from the use of technologies under their
2. States shall take all measures necessary to ensure that jurisdiction or control, or the intentional or accidental
activities under their jurisdiction or control are so introduction of species, alien or new, to a particular part of
conducted as not to cause damage by pollution to other the marine environment, which may cause significant and
States and their environment, and that pollution arising harmful changes thereto.
from incidents or activities under their jurisdiction or 2. This article does not affect the application of this
control does not spread beyond the areas where they Convention regarding the prevention, reduction and control
exercise sovereign rights in accordance with this of pollution of the marine environment.
Convention.
3. The measures taken pursuant to this Part shall deal with ANNEX VI. STATUTE OF THE INTERNATIONAL
all sources of pollution of the marine environment. These TRIBUNAL FOR THE LAW OF THE SEA
measures shall include, inter alia, those designed to
minimize to the fullest possible extent: Article 1: General provisions
(a) the release of toxic, harmful or noxious substances, 1. The International Tribunal for the Law of the Sea is
especially those which are persistent, from land-based constituted and shall function in accordance with the
sources, from or through the atmosphere or by provisions of this Convention and this Statute.
dumping; 2. The seat of the Tribunal shall be in the Free and Hanseatic
(b) pollution from vessels, in particular measures for City of Hamburg in the Federal Republic of Germany.
preventing accidents and dealing with emergencies, 3. The Tribunal may sit and exercise its functions elsewhere
ensuring the safety of operations at sea, preventing whenever it considers this desirable.
intentional and unintentional discharges, and regulating 4.A reference of a dispute to the Tribunal shall be governed
the design, construction, equipment, operation and by the provisions of Parts XI and XV.
manning of vessels;
(c) pollution from installations and devices used in SECTION 1. ORGANIZATION OF THE TRIBUNAL
exploration or exploitation of the natural resources of Article 2: Composition
the seabed and subsoil, in particular measures for 1. The Tribunal shall be composed of a body of
preventing accidents and dealing with emergencies, 21 independent members, elected from among persons
ensuring the safety of operations at sea, and regulating enjoying the highest reputation for fairness and integrity
the design, construction, equipment, operation and and of recognized competence in the field of the law of the
manning of such installations or devices; sea.
(d) pollution from other installations and devices 2. In the Tribunal as a whole the representation of the
operating in the marine environment, in particular principal legal systems of the world and equitable
measures for preventing accidents and dealing with geographical distribution shall be assured.
emergencies, ensuring the safety of operations at sea,

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 66


Article 3: Membership Article 6: Vacancies
1. No two members of the Tribunal may be nationals of the 1. Vacancies shall be filled by the same method as that laid
same State. A person who for the purposes of membership down for the first election, subject to the following
in the Tribunal could be regarded as a national of more than provision: the Registrar shall, within one month of the
one State shall be deemed to be a national of the one in occurrence of the vacancy, proceed to issue the invitations
which he ordinarily exercises civil and political rights. provided for in article 4 of this Annex, and the date of the
2. There shall be no fewer than three members from each election shall be fixed by the President of the Tribunal after
geographical group as established by the General Assembly consultation with the States Parties.
of the United Nations. 2. A member of the Tribunal elected to replace a member
whose term of office has not expired shall hold office for the
Article 4 : Nominations and elections remainder of his predecessor's term.
1. Each State Party may nominate not more than two
persons having the qualifications prescribed in article 2 of Article 7:Incompatible activities
this Annex. The members of the Tribunal shall be elected 1. No member of the Tribunal may exercise any political or
from the list of persons thus nominated. administrative function, or associate actively with or be
2. At least three months before the date of the election, the financially interested in any of the operations of any
Secretary-General of the United Nations in the case of the enterprise concerned with the exploration for or
first election and the Registrar of the Tribunal in the case of exploitation of the resources of the sea or the seabed or
subsequent elections shall address a written invitation to other commercial use of the sea or the seabed.
the States Parties to submit their nominations for members 2. No member of the Tribunal may act as agent, counsel or
of the Tribunal within two months. He shall prepare a list in advocate in any case.
alphabetical order of all the persons thus nominated, with 3. Any doubt on these points shall be resolved by decision of
an indication of the States Parties which have nominated the majority of the other members of the Tribunal present.
them, and shall submit it to the States Parties before the
seventh day of the last month before the date of each Article 8: Conditions relating to participation of members in a
election. particular case
3. The first election shall be held within six months of the 1. No member of the Tribunal may participate in the
date of entry into force of this Convention. decision of any case in which he has previously taken part
4. The members of the Tribunal shall be elected by secret as agent, counsel or advocate for one of the parties, or as a
ballot. Elections shall be held at a meeting of the States member of a national or international court or tribunal, or
Parties convened by the Secretary-General of the United in any other capacity.
Nations in the case of the first election and by a procedure 2. If, for some special reason, a member of the Tribunal
agreed to by the States Parties in the case of subsequent considers that he should not take part in the decision of a
elections. Two thirds of the States Parties shall constitute a particular case, he shall so inform the President of the
quorum at that meeting. The persons elected to the Tribunal Tribunal.
shall be those nominees who obtain the largest number of 3. If the President considers that for some special reason
votes and a two-thirds majority of the States Parties present one of the members of the Tribunal should not sit in a
and voting, provided that such majority includes a majority particular case, he shall give him notice accordingly.
of the States Parties. 4. Any doubt on these points shall be resolved by decision of
the majority of the other members of the Tribunal present.
Article 5: Term of office
1. The members of the Tribunal shall be elected for nine Article 9:Consequence of ceasing to fulfil required conditions
years and may be re-elected; provided, however, that of the If, in the unanimous opinion of the other members of the
members elected at the first election, the terms of seven Tribunal, a member has ceased to fulfil the required
members shall expire at the end of three years and the conditions, the President of the Tribunal shall declare the
terms of seven more members shall expire at the end of six seat vacant.
years.
2. The members of the Tribunal whose terms are to expire Article 10: Privileges and immunities
at the end of the above-mentioned initial periods of three The members of the Tribunal, when engaged on the
and six years shall be chosen by lot to be drawn by the business of the Tribunal, shall enjoy diplomatic privileges
Secretary-General of the United Nations immediately after and immunities.
the first election.
3. The members of the Tribunal shall continue to discharge Article 11: Solemn declaration by members
their duties until their places have been filled. Though Every member of the Tribunal shall, before taking up his
replaced, they shall finish any proceedings which they may duties, make a solemn declaration in open session that he
have begun before the date of their replacement. will exercise his powers impartially and conscientiously.
4. In the case of the resignation of a member of the Tribunal,
the letter of resignation shall be addressed to the President Article 12: President, Vice-President and Registrar
of the Tribunal. The place becomes vacant on the receipt of 1. The Tribunal shall elect its President and Vice-President
that letter. for three years; they may be re-elected.

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 67


2. The Tribunal shall appoint its Registrar and may provide 3. If the Tribunal, when hearing a dispute, does not include
for the appointment of such other officers as may be upon the bench a member of the nationality of the parties,
necessary. each of those parties may choose a person to participate as
3. The President and the Registrar shall reside at the seat of a member of the Tribunal.
the Tribunal. 4. This article applies to the chambers referred to in
articles 14 and 15 of this Annex. In such cases, the
Article 13: Quorum President, in consultation with the parties, shall request
1. All available members of the Tribunal shall sit; a quorum specified members of the Tribunal forming the chamber, as
of 11 elected members shall be required to constitute the many as necessary, to give place to the members of the
Tribunal. Tribunal of the nationality of the parties concerned, and,
2. Subject to article 17 of this Annex, the Tribunal shall failing such, or if they are unable to be present, to the
determine which members are available to constitute the members specially chosen by the parties.
Tribunal for the consideration of a particular dispute, 5. Should there be several parties in the same interest, they
having regard to the effective functioning of the chambers shall, for the purpose of the preceding provisions, be
as provided for in articles 14 and 15 of this Annex. considered as one party only. Any doubt on this point shall
3. All disputes and applications submitted to the Tribunal be settled by the decision of the Tribunal.
shall be heard and determined by the Tribunal, unless 6. Members chosen in accordance with paragraphs 2,
article 14 of this Annex applies, or the parties request that it 3 and 4 shall fulfil the conditions required by articles 2,
shall be dealt with in accordance with article 15 of this 8 and 11 of this Annex. They shall participate in the decision
Annex. on terms of complete equality with their colleagues.

Article 14: Seabed Disputes Chamber Article 18: Remuneration of members
A Seabed Disputes Chamber shall be established in 1. Each elected member of the Tribunal shall receive an
accordance with the provisions of section 4 of this Annex. annual allowance and, for each day on which he exercises
Its jurisdiction, powers and functions shall be as provided his functions, a special allowance, provided that in any year
for in Part XI, section 5. the total sum payable to any member as special allowance
shall not exceed the amount of the annual allowance.
Article 15: Special chambers 2. The President shall receive a special annual allowance.
1. The Tribunal may form such chambers, composed of 3. The Vice-President shall receive a special allowance for
three or more of its elected members, as it considers each day on which he acts as President.
necessary for dealing with particular categories of disputes. 4. The members chosen under article 17 of this Annex, other
2. The Tribunal shall form a chamber for dealing with a than elected members of the Tribunal, shall receive
particular dispute submitted to it if the parties so request. compensation for each day on which they exercise their
The composition of such a chamber shall be determined by functions.
the Tribunal with the approval of the parties. 5. The salaries, allowances and compensation shall be
3. With a view to the speedy dispatch of business, the determined from time to time at meetings of the States
Tribunal shall form annually a chamber composed of five of Parties, taking into account the workload of the Tribunal.
its elected members which may hear and determine They may not be decreased during the term of office.
disputes by summary procedure. Two alternative members 6. The salary of the Registrar shall be determined at
shall be selected for the purpose of replacing members who meetings of the States Parties, on the proposal of the
are unable to participate in a particular proceeding. Tribunal.
4. Disputes shall be heard and determined by the chambers 7. Regulations adopted at meetings of the States Parties
provided for in this article if the parties so request. shall determine the conditions under which retirement
5. A judgment given by any of the chambers provided for in pensions may be given to members of the Tribunal and to
this article and in article 14 of this Annex shall be the Registrar, and the conditions under which members of
considered as rendered by the Tribunal. the Tribunal and Registrar shall have their travelling
expenses refunded.
Article 16: Rules of the Tribunal 8. The salaries, allowances, and compensation shall be free
The Tribunal shall frame rules for carrying out its functions. of all taxation.
In particular it shall lay down rules of procedure.
Article 19: Expenses of the Tribunal
Article 17:Nationality of members 1. The expenses of the Tribunal shall be borne by the States
1. Members of the Tribunal of the nationality of any of the Parties and by the Authority on such terms and in such a
parties to a dispute shall retain their right to participate as manner as shall be decided at meetings of the States Parties.
members of the Tribunal. 2. When an entity other than a State Party or the Authority
2. If the Tribunal, when hearing a dispute, includes upon the is a party to a case submitted to it, the Tribunal shall fix the
bench a member of the nationality of one of the parties, any amount which that party is to contribute towards the
other party may choose a person to participate as a member expenses of the Tribunal.
of the Tribunal.

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SECTION 2. COMPETENCE Article 27: Conduct of case
Article 20: Access to the Tribunal The Tribunal shall make orders for the conduct of the case,
1. The Tribunal shall be open to States Parties. decide the form and time in which each party must conclude
2. The Tribunal shall be open to entities other than States its arguments, and make all arrangements connected with
Parties in any case expressly provided for in Part XI or in the taking of evidence.
any case submitted pursuant to any other agreement
conferring jurisdiction on the Tribunal which is accepted by Article 28: Default
all the parties to that case. When one of the parties does not appear before the
Tribunal or fails to defend its case, the other party may
Article 21:Jurisdiction - The jurisdiction of the Tribunal request the Tribunal to continue the proceedings and make
comprises all disputes and all applications submitted to it in its decision. Absence of a party or failure of a party to
accordance with this Convention and all matters specifically defend its case shall not constitute a bar to the proceedings.
provided for in any other agreement which confers Before making its decision, the Tribunal must satisfy itself
jurisdiction on the Tribunal. not only that it has jurisdiction over the dispute, but also
that the claim is well founded in fact and law.
Article 22: Reference of disputes subject to other agreements
If all the parties to a treaty or convention already in force Article 29:Majority for decision
and concerning the subject-matter covered by this 1. All questions shall be decided by a majority of the
Convention so agree, any disputes concerning the members of the Tribunal who are present.
interpretation or application of such treaty or convention 2. In the event of an equality of votes, the President or the
may, in accordance with such agreement, be submitted to member of the Tribunal who acts in his place shall have a
the Tribunal. casting vote.

Article 23:Applicable law - The Tribunal shall decide all Article 30: Judgment
disputes and applications in accordance with article 293. 1. The judgment shall state the reasons on which it is based.
2. It shall contain the names of the members of the Tribunal
SECTION 3. PROCEDURE who have taken part in the decision.
Article 24: Institution of proceedings 3. If the judgment does not represent in whole or in part the
1. Disputes are submitted to the Tribunal, as the case may unanimous opinion of the members of the Tribunal, any
be, either by notification of a special agreement or by member shall be entitled to deliver a separate opinion.
written application, addressed to the Registrar. In either 4. The judgment shall be signed by the President and by the
case, the subject of the dispute and the parties shall be Registrar. It shall be read in open court, due notice having
indicated. been given to the parties to the dispute.
2. The Registrar shall forthwith notify the special agreement
or the application to all concerned. Article 3l: Request to intervene
3. The Registrar shall also notify all States Parties. 1. Should a State Party consider that it has an interest of a
legal nature which may be affected by the decision in any
Article 25: Provisional measures dispute, it may submit a request to the Tribunal to be
1. In accordance with article 290, the Tribunal and its permitted to intervene.
Seabed Disputes Chamber shall have the power to prescribe 2. It shall be for the Tribunal to decide upon this request.
provisional measures. 3. If a request to intervene is granted, the decision of the
2. If the Tribunal is not in session or a sufficient number of Tribunal in respect of the dispute shall be binding upon the
members is not available to constitute a quorum, the intervening State Party in so far as it relates to matters in
provisional measures shall be prescribed by the chamber of respect of which that State Party intervened.
summary procedure formed under article 15, paragraph 3,
of this Annex. Notwithstanding article 15, paragraph 4, of Article 32: Right to intervene in cases of interpretation or
this Annex, such provisional measures may be adopted at application
the request of any party to the dispute. They shall be subject 1. Whenever the interpretation or application of this
to review and revision by the Tribunal. Convention is in question, the Registrar shall notify all
States Parties forthwith.
Article 26: Hearing 2. Whenever pursuant to article 21 or 22 of this Annex the
1. The hearing shall be under the control of the President or, interpretation or application of an international agreement
if he is unable to preside, of the Vice-President. If neither is is in question, the Registrar shall notify all the parties to the
able to preside, the senior judge present of the Tribunal agreement.
shall preside. 3. Every party referred to in paragraphs 1 and 2 has the
2. The hearing shall be public, unless the Tribunal decides right to intervene in the proceedings; if it uses this right, the
otherwise or unless the parties demand that the public be interpretation given by the judgment will be equally binding
not admitted. 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 The Chamber shall be open to the States Parties, the
with by all the parties to the dispute. Authority and the other entities referred to in Part XI,
2. The decision shall have no binding force except between section 5.
the parties in respect of that particular dispute.
3. In the event of dispute as to the meaning or scope of the Article 38: Applicable law
decision, the Tribunal shall construe it upon the request of In addition to the provisions of article 293, the Chamber
any party. shall apply:
Article 34: Costs (a) the rules, regulations and procedures of the Authority
Unless otherwise decided by the Tribunal, each party shall adopted in accordance with this Convention; and
bear its own costs. (b) the terms of contracts concerning activities in the Area
in matters relating to those contracts.
SECTION 4. SEABED DISPUTES CHAMBER
Article 35 : Composition Article 39: Enforcement of decisions of the Chamber
1. The Seabed Disputes Chamber referred to in article 14 of The decisions of the Chamber shall be enforceable in the
this Annex shall be composed of 11 members, selected by a territories of the States Parties in the same manner as
majority of the elected members of the Tribunal from judgments or orders of the highest court of the State Party
among them. in whose territory the enforcement is sought.
2. In the selection of the members of the Chamber, the
representation of the principal legal systems of the world Article 40: Applicability of other sections of this Annex
and equitable geographical distribution shall be assured. 1. The other sections of this Annex which are not
The Assembly of the Authority may adopt recommendations incompatible with this section apply to the Chamber.
of a general nature relating to such representation and 2. In the exercise of its functions relating to advisory
distribution. opinions, the Chamber shall be guided by the provisions of
3. The members of the Chamber shall be selected every this Annex relating to procedure before the Tribunal to the
three years and may be selected for a second term. extent to which it recognizes them to be applicable.
4. The Chamber shall elect its President from among its
members, who shall serve for the term for which the SECTION 5. AMENDMENTS
Chamber has been selected. Article 4l: Amendments
5. If any proceedings are still pending at the end of any 1. Amendments to this Annex, other than amendments to
three-year period for which the Chamber has been selected, section 4, may be adopted only in accordance with
the Chamber shall complete the proceedings in its original article 313 or by consensus at a conference convened in
composition. accordance with this Convention.
6. If a vacancy occurs in the Chamber, the Tribunal shall 2. Amendments to section 4 may be adopted only in
select a successor from among its elected members, who accordance with article 314.
shall hold office for the remainder of his predecessor's term. 3. The Tribunal may propose such amendments to this
7. A quorum of seven of the members selected by the Statute as it may consider necessary, by written
Tribunal shall be required to constitute the Chamber. communications to the States Parties for their consideration
in conformity with paragraphs 1 and 2.
Article 36: Ad hoc chambers
1. The Seabed Disputes Chamber shall form an ad hoc ANNEX VII. ARBITRATION
chamber, composed of three of its members, for dealing Article 1: Institution of proceedings
with a particular dispute submitted to it in accordance with Subject to the provisions of Part XV, any party to a dispute
article 188, paragraph 1(b). The composition of such a may submit the dispute to the arbitral procedure provided
chamber shall be determined by the Seabed Disputes for in this Annex by written notification addressed to the
Chamber with the approval of the parties. other party or parties to the dispute. The notification shall
2. If the parties do not agree on the composition of an ad hoc be accompanied by a statement of the claim and the
chamber, each party to the dispute shall appoint one grounds on which it is based.
member, and the third member shall be appointed by them
in agreement. If they disagree, or if any party fails to make Article 2: List of arbitrators
an appointment, the President of the Seabed Disputes l. A list of arbitrators shall be drawn up and maintained by
Chamber shall promptly make the appointment or the Secretary-General of the United Nations. Every State
appointments from among its members, after consultation Party shall be entitled to nominate four arbitrators, each of
with the parties. whom shall be a person experienced in maritime affairs and
3. Members of the ad hoc chamber must not be in the enjoying the highest reputation for fairness, competence
service of, or nationals of, any of the parties to the dispute. 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
Article 37: Access 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 (f) Any vacancy shall be filled in the manner prescribed for
withdrawn by the State Party which made the nomination, the initial appointment.
provided that such arbitrator shall continue to serve on any (g) Parties in the same interest shall appoint one member of
arbitral tribunal to which that arbitrator has been the tribunal jointly by agreement. Where there are
appointed until the completion of the proceedings before several parties having separate interests or where there
that arbitral tribunal. is disagreement as to whether they are of the same
interest, each of them shall appoint one member of the
Article 3: Constitution of arbitral tribunal tribunal. The number of members of the tribunal
For the purpose of proceedings under this Annex, the appointed separately by the parties shall always be
arbitral tribunal shall, unless the parties otherwise agree, be smaller by one than the number of members of the
constituted as follows: tribunal to be appointed jointly by the parties.
(a) Subject to subparagraph (g), the arbitral tribunal shall (h) In disputes involving more than two parties, the
consist of five members. provisions of subparagraphs (a) to (f) shall apply to the
(b) The party instituting the proceedings shall appoint one maximum extent possible.
member to be chosen preferably from the list referred to
in article 2 of this Annex, who may be its national. The Article 4: Functions of arbitral tribunal - An arbitral tribunal
appointment shall be included in the notification constituted under article 3 of this Annex shall function in
referred to in article l of this Annex. accordance with this Annex and the other provisions of this
(c) The other party to the dispute shall, within 30 days of Convention.
receipt of the notification referred to in article l of this
Annex, appoint one member to be chosen preferably Article 5: Procedure - Unless the parties to the dispute
from the list, who may be its national. If the appointment otherwise agree, the arbitral tribunal shall determine its
is not made within that period, the party instituting the own procedure, assuring to each party a full opportunity to
proceedings may, within two weeks of the expiration of be heard and to present its case.
that period, request that the appointment be made in
accordance with subparagraph (e). Article 6: Duties of parties to a dispute
(d) The other three members shall be appointed by The parties to the dispute shall facilitate the work of the
agreement between the parties. They shall be chosen arbitral tribunal and, in particular, in accordance with their
preferably from the list and shall be nationals of third law and using all means at their disposal, shall:
States unless the parties otherwise agree. The parties to (a) provide it with all relevant documents, facilities and
the dispute shall appoint the President of the arbitral information; and
tribunal from among those three members. If, within (b) enable it when necessary to call witnesses or experts
60 days of receipt of the notification referred to in and receive their evidence and to visit the localities to
article l of this Annex, the parties are unable to reach which the case relates.
agreement on the appointment of one or more of the
members of the tribunal to be appointed by agreement, Article 7: Expenses
or on the appointment of the President, the remaining Unless the arbitral tribunal decides otherwise because of
appointment or appointments shall be made in the particular circumstances of the case, the expenses of the
accordance with subparagraph (e), at the request of a tribunal, including the remuneration of its members, shall
party to the dispute. Such request shall be made within be borne by the parties to the dispute in equal shares.
two weeks of the expiration of the aforementioned 60-
day period. Article 8: Required majority for decisions
(e) Unless the parties agree that any appointment under Decisions of the arbitral tribunal shall be taken by a
subparagraphs (c) and (d) be made by a person or a majority vote of its members. The absence or abstention of
third State chosen by the parties, the President of the less than half of the members shall not constitute a bar to
International Tribunal for the Law of the Sea shall make the tribunal reaching a decision. In the event of an equality
the necessary appointments. If the President is unable to of votes, the President shall have a casting vote.
act under this subparagraph or is a national of one of the
parties to the dispute, the appointment shall be made by Article 9: Default of appearance
the next senior member of the International Tribunal for If one of the parties to the dispute does not appear before
the Law of the Sea who is available and is not a national the arbitral tribunal or fails to defend its case, the other
of one of the parties. The appointments referred to in party may request the tribunal to continue the proceedings
this subparagraph shall be made from the list referred to and to make its award. Absence of a party or failure of a
in article 2 of this Annex within a period of 30 days of the party to defend its case shall not constitute a bar to the
receipt of the request and in consultation with the proceedings. Before making its award, the arbitral tribunal
parties. The members so appointed shall be of different must satisfy itself not only that it has jurisdiction over the
nationalities and may not be in the service of, ordinarily dispute but also that the claim is well founded in fact and
resident in the territory of, or nationals of, any of the law.
parties to the dispute.
Article 10: Award

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 71


The award of the arbitral tribunal shall be confined to the the nations historical and cultural heritage and resources,
subject-matter of the dispute and state the reasons on as well as artistic creations.
which it is based. It shall contain the names of the members
who have participated and the date of the award. Any SECTION 16. All the countrys artistic and historic wealth
member of the tribunal may attach a separate or dissenting constitutes the cultural treasure of the nation and shall be
opinion to the award. under the protection of the State which may regulate its
disposition.

Article 11: Finality of award SECTION 17. The State shall recognize, respect, and protect
The award shall be final and without appeal, unless the the rights of indigenous cultural communities to preserve
parties to the dispute have agreed in advance to an and develop their cultures, traditions, and institutions. It
appellate procedure. It shall be complied with by the parties shall consider these rights in the formulation of national
to the dispute. plans and policies.

Article 12: Interpretation or implementation of award SECTION 18. (1) The State shall ensure equal access to
1. Any controversy which may arise between the parties to cultural opportunities through the educational system,
the dispute as regards the interpretation or manner of public or private cultural entities, scholarships, grants and
implementation of the award may be submitted by either other incentives, and community cultural centers, and other
party for decision to the arbitral tribunal which made the public venues.
award. For this purpose, any vacancy in the tribunal shall be (2) The State shall encourage and support researches and
filled in the manner provided for in the original studies on the arts and culture.
appointments of the members of the tribunal.
2. Any such controversy may be submitted to another court 2. RA 4846 Cultural Properties Preservation and
or tribunal under article 287 by agreement of all the parties Protection Act. (AS AMENDED BY P.D. 374)
to the dispute.
Cultural properties are old buildings, monuments,
Article 13: Application to entities other than States Parties shrines, documents, and objects which may be classified as
The provisions of this Annex shall apply mutatis mutandis to antiques, relics, or artifacts, landmarks, anthropological and
any dispute involving entities other than States Parties. historical sites, and specimens of natural history which are
----------------------------------------------------------------------------- of cultural, historical, anthropological or scientific value and
HW for March 21: significance to the nation; such as physical, and
Phil response to World Heritage Convention anthropological, archaeological and ethnographical
1. Constitutional provisions (Art 14.: secs. 14-17, 18[1,2], materials, meteorites and tektites; historical objects and
1987 constitution) manuscripts; house and agricultural implements; decorative
2. Cultural properties preservation and protection act RA articles or personal adornment; works of art such as
4846 paintings, sculptures, carvings, jewelry, music, architecture,
3. Natl Museum Law RA 8492 sketches drawings or illustrations in part or in whole;
4. Natl Historical Commission Act RA 4368 works of industrial and commercial art such as furniture,
5. Indigenous Peoples Rights Act RA 8371 (connected to pottery, ceramics, wrought iron, gold, bronze, silver, wood
CBA) or other heraldic items, metals, coins, medals, badges,
* Manila Prince Hotel vs GSIS insignias, coat of arms, crests, flags, arms, and armor;
* Joya et al. vs PCGG et al. GR 96541 August 24 1993 vehicles or ships or boats in part or in whole.
6. Minamata Convention on Mercury - in rel. Peoples
small scale mining in the Phil. Cultural properties which have been singled out from
*** FOR FINALS: Relate IPRA with CBD; Distinguish between among the innumerable cultural properties as having
National Cultural Treasure and Important Cultural exceptional historical and cultural significance to the
Properties Philippines, but are not sufficiently outstanding to merit the
----------------------------------------------------------------------------- classification of "National Cultural Treasurers." are
A. PHIL. RESPONSE TO WORLD HERITAGE CONVENTION important cultural properties.

1. 1987 CONSTI. ART XIV: Arts and Culture A National Cultural Treasurer is a unique object found
locally, possessing outstanding historical, cultural, artistic
SECTION 14. The State shall foster the preservation, and/or scientific value which is highly significant and
enrichment, and dynamic evolution of a Filipino national important to this country and nation.
culture based on the principle of unity in diversity in a
climate of free artistic and intellectual expression. Type as mentioned in Section seven-b in the context of
this Act is a specimen selected as the best to represent a
SECTION 15. Arts and letters shall enjoy the patronage of kind or class of objects consisting of any but almost identical
the State. The State shall conserve, promote, and popularize individuals or pieces. In the case of specimens of natural
history, the type is the individual specimen which was used

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 72


as the basis of description establishing the species, in
accordance with the rules of nomenclature. Sec. 9. National Cultural Treasurers may be taken out of
the country only with written permit from the Director of
A historical site is any place, province, city, town and/or the National Museum, and only for the purpose of exchange
any location and structure which has played a significant programs or for scientific scrutiny, but shall be returned
and important role in the history of our country and nation. immediately after such exhibition or study: provided, that
Such significance and importance may be cultural, political, the Director of the National Museum shall require that the
sociological or historical. cultural treasures be adequately, insured against loss or
damage by the owners thereof, and shall be properly
An archaeological site is any place which may be accompanied by a duly authorized representative of the
underground or on the surface, underwater or at sea level National Museum and/or protected.
which contains fossils, artifacts and other cultural,
geological, botanical, zoological materials which depict and SECTION 10. It shall be unlawful to export or to cause to
document evidences of paleontological and pre-historic be taken out of the Philippines any of the cultural properties
events. defined in Section three of this Act, without previous
registration of the objects with the National Museum and a
Sec. 7. In designation of a particular cultural property as a written permit from the Director of the National Museum:
"national cultural treasure," the following procedure shall provided, however, that in the granting or the withholding
be observed: of permit, the provisions of Section seven of this Act shall
have been satisfied.
a. Before the actual designation, the owner, if the property
is privately owned, shall be notified at least fifteen days SECTION 11. No cultural property may be imported
prior to the intended designation, and he shall be invited to without an official certification of exportation from the
attend the deliberation and given a chance to be heard. country of origin.
Failure on the part of the owner to attend the deliberation
shall not bar the panel to render its decision. Decision shall SECTION 12. It shall be unlawful to explore, excavate, or
be given by the panel within a week after its deliberation. In make diggings on archaeological or historical sites for the
the event that the owner desires to seek reconsideration of purpose of obtaining materials of cultural historical value
the designation made by the panel, he may do so within without the prior written authority from the Director of the
days from the date that the decision has been rendered. If National Museum. No excavation or diggings shall be
no request for reconsideration is filed after this period, the permitted without the supervision of an archaeologist
designation is then considered final and executory. Any certified as such by the Director of the National Museum, or
request for reconsideration filed within thirty days and of such other person who, in the opinion of the Director, is
subsequently again denied by the panel, may be further competent to supervise the work, and who shall, upon
appealed to another panel chairmanned by the Secretary of completion of the project, deposit with the Museum a
Education, with two experts as members appointed by the catalogue of all the materials found thereon, and a
Secretary of Education. Their decision shall be final and description of the archaeological context in accordance with
binding. accepted archaeological practices. When excavators shall
strike upon any buried cultural property, the excavation
b. Within each kind or class of objects, only the rare and shall be suspended and the matter reported immediately to
unique objects may be designated as "National Cultural the Director of the National Museum who shall take the
Treasures." The remainder, if any, shall be treated as appropriate steps to have the discovery investigated and to
cultural property. insure the proper and safe removal thereof, with the
knowledge and consent of the owner. The suspension shall
c. Designated "National Cultural Treasures" shall be not be lifted until the Director of the National Museum shall
marked, described, and photographed by the National so allow it.
Museum. The owner retains possession of the same but the
Museum shall keep a record containing such information as: All exploration, excavation, or diggings on government and
name of article, owner, period, source, location, condition, private property for archaeological or historical purposes
description, photograph, identifying marks, approximate shall be undertaken only by the National Museum, or any
value, and other pertinent data. institution duly authorized by the Director of the National
Museum.
Sec. 8. National Cultural Treasures shall not change
ownership, except by inheritance or sale approved by the SECTION 13. All restorations, reconstructions, and
Director of the National Museum, without the prior preservations of government historical buildings, shrines,
notification to and notations made by the Museum in the landmarks, monuments, and sites, which have been
records. They may not be taken out of the country for designated as "National Cultural Treasures," and "important
reasons of inheritance. Where there is no heir, National cultural properties" shall only be undertaken with the
Cultural Treasures shall revert to the National Museum or written permission of the Director of the National Museum
to any state museum. who shall designate the supervision of the same.

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 73



SECTION 14. Any donation or support by private Section 2. Declaration of Policy. It is the policy of the State
individuals or institutions to the National Museum, and any to pursue and support the cultural development of the
investment for the purchase of cultural properties Filipino people, through the preservation, enrichment and
registered with the National Museum or for the support of dynamic evolution of the Filipino national culture, based on
scientific and cultural expeditions, explorations, or the principle of unity in diversity in a climate of free artistic
excavations when so certified by the Director of the and intellectual expression.
National Museum, shall be tax exempt and deductible from
the income tax returns of the individual or institution. Section 3. Conversion of the National Museum. To
implement the above declared State policies, and to ensure
Donations of National Cultural Treasures and important its independence and autonomy, the present National
cultural properties to the National Museum or any Museum hereafter referred to as the National Museum, is
accredited institution for preservation for posterity, or of hereby converted into a trust of the government. The
any monetary contribution to the National Museum or any National Museum is detached from the Department of
accredited institution for the purchase of National Cultural Education, Culture, and Sports and from the National
Treasures and important cultural properties shall also be Commission for Culture and the Arts. It shall be placed
deductible from the income tax returns: provided, that such solely for budgetary purposes under the Office of the
donations are duly acknowledge and receipted by the President.
recipient and certified by the Director of the National
Museum. The Museum, as established under this Act shall be known
by the name of National Museum and by the name shall
SECTION 15. Any cultural property for sale as allowed known and have perpetual succession with the power,
under this Act, should be registered with the National limitations, and restriction hereafter contained and no
Museum and the proceeds thereof shall be considered as other.
income and therefore subject to taxation: provided,
however, that the Government shall be given the first option The National Museum shall be permanent institution in the
for three months to buy these cultural properties placed on service of the community and its development, accessible to
sale. the public, and not intended for profit. It shall obtain, keep,
study and present material evidence of man and his
SECTION 16. All dealers of cultural properties shall secure environment. The National Museum shall inform the general
a license as a dealer in cultural properties from the Director public about these activities for the purpose of study,
of the National Museum. education and entertainment.

SECTION 17. All dealers engaged in the business of The primary mission of the National Museum shall be to
exporting cultural properties shall secure a license as acquire documents, preserve, exhibit and foster scholarly
exporter of cultural properties from the Director of the study and appreciation of works of art specimens and
National Museum. cultural and historical artifacts. Pending its reorganization
by the Board of Trustees, the National Museum shall be
SECTION 18. The Director of the National Museum is composed of the Museum structure, organization and its
hereby empowered to promulgate rules and regulations for collections, properties, assets and liabilities.
the implementation of the provisions of this Act, which rules
and regulations shall be given the widest publicity and also Section 4. Permanent Home; Evidence of Title to Site and
shall be given directly to known collectors, excavators, Buildings. The whole Executive House Building also
archaeologists, dealers, exporters and others affected by known as the Old Congress Building, the Department of
this Act. Such rules and regulations shall be approved by the Finance Building and Department of Tourism Building on
Secretary of education. 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.
3. Natl Museum Law RA 8492
The site and lands selected for the building for the Museum
The National Museum is mandated to declare cultural shall be deemed appropriated to the Museum, and the
properties of the Philippines as either Important Cultural record of the description of such site and lands, or a copy
Properties or National Cultural Treasures, pursuant to thereof, certified by the Chairman and Secretary of the
several laws, including Republic Act No. 4846 (Cultural Board of Trustees, shall be received as evidence in all courts
Properties Preservation and Protection Act) as amended by of the extent and boundaries of the lands appropriated to
Presidential Decree No. 374, Presidential Decree No. 260, the Museum.
Republic Act No.8492 (National Museum Act of 1998) and Section 2. Declaration of Policy. It is the policy of the State
most recently, Republic Act No. 10066 (National Cultural to pursue and support the cultural development of the
Heritage Act of 2009). Filipino people, through the preservation, enrichment and

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 74


dynamic evolution of the Filipino national culture, based on
the principle of unity in diversity in a climate of free artistic 7.5. Regulate registration, excavation, preservation and
and intellectual expression. exportation of Philippine cultural properties through a legal
department and customs department which shall be
Section 6. Objectives. The Museum shall have the established for these purposes;
following objectives:
7.6. Implement the pertinent provisions of Presidential
6.1. As an educational institution, the National Museum Decree No. 374, as further amended, and other related laws
shall take the lead in disseminating knowledge of Filipino on the protection and conservation of cultural properties;
cultural and historical heritage and developing a corps of
professional knowledgeable about the preservation, 7.7. Undertake research on salvage archaeology, monitor
enrichment and dynamic evaluation of the Filipino national and control archaeological excavations, diggings and
culture. researches into Philippine pre-history and proto-history;

6.2. As a scientific institution, the Museum shall continue to 7.8. Gather, identify, reconstruct, restore and maintain a
conduct basic and systematic research programs combining national archaeological reference collection; study
integrated laboratory and field work in anthropology and archaeological artifacts and ecofacts, with their
archaeology, geology and paleontology, botany, and zoology. corresponding data and deduce archaeological
It shall maintain reference collections on these disciplines interpretations;
and promote scientific development in the Philippines.
7.9. Undertake researches on the pre-history of the
6.3. As a cultural center, the Museum shall take the lead in Philippines in order to define the foundations of the
the study and preservation of the nation's rich artistic, and cultures of the people by conducting systematic and
cultural heritage, in the reconstruction and rebuilding of our controlled archaeological excavations in different sites on
past, and the development of the national cultural wealth. land and underwater, and to supplement existing historical
documentation;
Section 7. Duties and function. The Museum shall have the
following duties and functions: 7.10. Collect, preserve, restore and exhibit to the public
objects of arts;
7.1. Acquire documents, collect, preserve, maintain,
administer and exhibit to the public, cultural materials, 7.11. Conduct researches on Philippine arts and its relations
objects of art, archaeological artifacts, ecofacts, relics and to the arts of other countries and prepare for publication
other materials embodying the cultural and natural heritage research papers on them;
of the Filipino nation, as well as those of foreign origin.
Materials relevant to the recent history of the country shall 7.12. Carry out researches among different people of the
be likewise acquired, collected, preserved, maintained, Philippines to define the ethnography of each group, to
advertised and exhibited by the Museum; establish the ethnology and to document for posterity and
exhibit to the public their traditional and existing cultures,
7.2. Conduct researches, archaeological and scientific, on practices and artistic forms expressive of their culture;
Philippine flora and fauna; collect, preserve, identify and
exhibit to the public systematically all types of plants and 7.13. Collect, acquire, identify, reconstruct, restore, preserve
animals found in the Philippines, prepare for publication and maintain ethnographic items; gather their
manuscripts and scientific papers on them and maintain a interpretations; mount exhibitions and prepare technical
reference collection on such subjects; manuscripts for publication;

7.3. Document all objects held by the National Museum in its 7.14. Maintain a chemical and physical laboratory where
collections or borrowed by the Museum by registering them scientific analysis of materials recovered from
in an inventory and cataloguing them, and manage any archaeological and ethnographic sites may be undertaken
movement of the collections both within the Museum and for their preservation;
elsewhere in such a way that the Museum is able to locate
any object in the collections at any time, initially on paper 7.15. Plan, organize and stage exhibitions in all disciplines
records, but to be converted to computerized records on a covered by the Museum geology, cultural properties,
professional museum documentation system as soon as zoology, botany, archaeology, arts, anthropology,
time and budget allow. restoration and engineering;

7.4. Conduct researches on the origin, history and 7.16. Plan and organize library services, guided tours,
geographic distribution of, and to collect, preserve, study lectures, seminars, symposia or workshops;
and exhibit rocks, minerals and fossils of plants and
animals; maintain a reference collection and to prepare for 7.17. Implement and enforce Presidential Decree Nos. 260,
publication scientific studies on them; 374, 756, 1109, 1492, 996, 1683 and 1726-A;

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age or until they shall have been incapacitated to discharge
7.18. Supervise restoration, preservation, reconstruction, their duties effectively.
demolition, alteration, relocation and remodeling of
immovable properties and archaeological landmarks and Section 4. It shall be the duty of the National Historical
sites; Commission:
(a) To publish or cause to have written or published the
7.19. Disseminate astronomical knowledge and information works of our national heroes and other great and good
through planetarium shows, lectures and demonstrations, Filipinos;
exhibits and actual celestial observations; (b) To compile from various sources here and abroad data
on Philippine history and prepare and publish there from
7.20. Maintain, preserve, interpret and exhibit to the public source books on Philippine history;
the artifacts in sites of the Paleolithic habitation site of the (c) For the purpose stated in subparagraph (a) and (b), to
possible earliest man to the Philippines, the Neolithic enter into negotiations or agreements, subject to the
habitation of the ancient Filipino at the Tabon Caves, and approval of the Secretary of Education, with institutions of
other important archaeological sites; learning, learned societies and individuals for the purpose
of securing original documents of copies, photostat and
7.21. Secure and receive bilateral and international grants microfilms thereof, dealing with the Philippines: provided,
and endowments to support its programs/projects. that any acquisition involved in excess of fifty thousand
pesos shall be with the approval of the President of the
7.22. Initiate, promote, encourage and support the Philippines;
establishment and promotion of, and extend management, (d) To gather and publish source books, reports, records
technical and financial assistance to regional, provincial, city and other valuable information relating to historic places,
and/or local museums; and markets and events;
(e) To identify, designate and appropriately mark historic
7.23. Develop and implement consortium agreements and places in the Philippines and to cause the construction or
linkages with institutions of higher learning and other reconstruction and to maintain and care for national
organizations engaged in similar researches being monuments, shrines and historic markets that have been or
undertaken by the National Museum. may hereafter be erected in pursuance of this Act: provided,
however, that the Commission shall enlist the assistance of
4. Natl Historical Commission Act RA 4368 the public;
(f) To take charge of all historical activities or projects, not
AN ACT TO ESTABLISH A NATIONAL HISTORICAL otherwise undertaken by any entity of the government;
COMMISSION, TO DEFINE ITS POWERS AND FUNCTIONS, (g) To gather data on historical dates, personages, events,
AUTHORIZING THE APPROPRIATION OF FUNDS and documents presented for evaluation, and to acquire
THEREFOR, AND FOR OTHER PURPOSES through purchase, donation, exchange or otherwise,
important historical documents and materials;
Section 1. There is hereby created a National Historical (h) To encourage researches in Philippine history and the
Commission which shall be composed of a Chairman and writing and publication of textbooks on the subject, the
four regular members and two ex-officio members, namely, research and writing of biographies of heroes, accounts of
the Director of Public Libraries and the Director of the historical events, translation of important scholarly works
National Museum: provided, that the ex-officio members of Filipino and foreigners by providing appropriate or
shall not receive any compensation and shall not have the adequate incentives, setting aside, for this purpose, such
right to vote. portions of its appropriation as the Commission may deem
necessary; and
Section 2. The Chairman and four members shall be (i) To work in coordination with the Institute of National
appointed by the President of the Philippines with the Language for the translation of its works and materials to
consent of the Commission on Appointments. No one shall the National Language.
be appointed to any of these positions unless he be a citizen
of the Philippines, at least thirty years old, at least a holder 5. Indigenous Peoples Rights Act RA 8371
of a four-year college degree, and has distinguished himself (connected to Convention on Biodiversity Act)
in historical research and writing. The Chairman shall ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS
receive a compensation of twelve thousand pesos per OF INDIGENOUS CULTURAL COMMUNITIES/INDIGENOUS
annum, and the four members shall each receive eight PEOPLES, CREATING A NATIONAL COMMISSION ON
thousand four hundred pesos per annum. INDIGENOUS PEOPLES, ESTABLISHING IMPLEMENTING
MECHANISMS, APPROPRIATING FUNDS THEREFOR, AND
Section 3. The National Historical Commission shall be FOR OTHER PURPOSES
under the direct control and supervision of the Department
of Education. The Chairman and the four members shall SECTION 2. Declaration of State Policies. The State shall
hold office during good behavior until they reach retirement recognize and promote all the rights of Indigenous Cultural

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Communities/Indigenous Peoples (ICCs/IPs) hereunder residential, agricultural, and other lands individually owned
enumerated within the framework of the Constitution: whether alienable and disposable or otherwise, hunting
grounds, burial grounds, worship areas, bodies of water,
a) The State shall recognize and promote the rights of mineral and other natural resources, and lands which may
ICCs/IPs within the framework of national unity and no longer be exclusively occupied by ICCs/IPs but from
development; which their traditionally had access to for their subsistence
and traditional activities, particularly the home ranges of
b) The State shall protect the rights of ICCs/IPs to their ICCs/IPs who are still nomadic and/or shifting cultivators;
ancestral domains to ensure their economic, social and
cultural well being and shall recognize the applicability of b) Ancestral Lands - Subject to Section 56 hereof, refers to
customary laws governing property rights or relations in land occupied, possessed and utilized by individuals,
determining the ownership and extent of ancestral domain; families and clans who are members of the ICCs/IPs since
time immemorial, by themselves or through their
c) The State shall recognize, respect and protect the rights predecessors-in-interest, under claims of individual or
of ICCs/IPs to preserve and develop their cultures, traditional group ownership,continuously, to the present
traditions and institutions. It shall consider these rights in except when interrupted by war, force majeure or
the formulation of national laws and policies; displacement by force, deceit, stealth, or as a consequence
of government projects and other voluntary dealings
d) The State shall guarantee that members of the ICCs/IPs entered into by government and private
regardless of sex, shall equally enjoy the full measure of individuals/corporations, including, but not limited to,
human rights and freedoms without distinction or residential lots, rice terraces or paddies, private forests,
discrimination; swidden farms and tree lots;

e) The State shall take measures, with the participation of h) Indigenous Cultural Communities/Indigenous Peoples -
the ICCs/IPs concerned, to protect their rights and refer to a group of people or homogenous societies
guarantee respect for their cultural integrity, and to ensure identified by self-ascription and ascription by other, who
that members of the ICCs/IPs benefit on an equal footing have continuously lived as organized community on
from the rights and opportunities which national laws and communally bounded and defined territory, and who have,
regulations grant to other members of the population; and under claims of ownership since time immemorial,
occupied, possessed customs, tradition and other distinctive
f) The State recognizes its obligations to respond to the cultural traits, or who have, through resistance to political,
strong expression of the ICCs/IPs for cultural integrity by social and cultural inroads of colonization, non-indigenous
assuring maximum ICC/IP participation in the direction of religions and culture, became historically differentiated
education, health, as well as other services of ICCs/IPs, in from the majority of Filipinos. ICCs/IPs shall likewise
order to render such services more responsive to the needs include peoples who are regarded as indigenous on account
and desires of these communities. of their descent from the populations which inhabited the
country, at the time of conquest or colonization, or at the
Towards these ends, the State shall institute and establish time of inroads of non-indigenous religions and cultures, or
the necessary mechanisms to enforce and guarantee the the establishment of present state boundaries, who retain
realization of these rights, taking into consideration their some or all of their own social, economic, cultural and
customs, traditions, values, beliefs, interests and political institutions, but who may have been displaced from
institutions, and to adopt and implement measures to their traditional domains or who may have resettled outside
protect their rights to their ancestral domains. their ancestral domains;

Section 3. Definition of Terms. - For purposes of this Act, the k) National Commission on Indigenous Peoples (NCIP) -
following terms shall mean: refers to the office created under this Act, which shall be
under the Office of the President, and which shall be the
a) Ancestral Domains - Subject to Section 56 hereof, refer to primary government agency responsible for the formulation
all areas generally belonging to ICCs/IPs comprising and implementation of policies, plans and programs to
lands,inland waters, coastal areas, and natural resources recognize, protect and promote the rights of ICCs/IPs;
therein, held under a claim of ownership, occupied or
possessed by ICCs/IPs, themselves or through their l) Native Title - refers to pre-conquest rights to lands and
ancestors, communally or individually since time domains which, as far back as memory reaches, have been
immemorial, continuously to the present except when held under a claim of private ownership by ICCs/IPs, have
interrupted by war, force majeure or displacement by force, never been public lands and are thus indisputably
deceit, stealth or as a consequence of government projects presumed to have been held that way since before the
or any other voluntary dealings entered into by government Spanish Conquest;
and private individuals, corporations, and which are
necessary to ensure their economic, social and cultural o) Sustainable Traditional Resource Rights - refer to the
welfare. It shall include ancestral land, forests, pasture, rights of ICCs/IPs to sustainably use,manage, protect and

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conserve a) land, air, water, and minerals; b) plants, animals ancestral domains and to receive just and fair compensation
and other organisms; c) collecting, fishing and hunting for any damages which they sustain as a result of the
grounds; d) sacred sites; and e) other areas of economic, project; and the right to effective measures by the
ceremonial and aesthetic value in accordance with their government to prevent any interfere with, alienation and
indigenous knowledge, beliefs, systems and practices; and encroachment upon these rights;
c. Right to Stay in the Territories- The right to stay in the
p) Time Immemorial - refers to a period of time when as far territory and not be removed therefrom. No ICCs/IPs will be
back as memory can go, certain ICCs/IPs are known to have relocated without their free and prior informed consent, nor
occupied, possessed in the concept of owner, and utilized a through any means other than eminent domain. Where
defined territory devolved to them, by operation of relocation is considered necessary as an exceptional
customary law or inherited from their ancestors, in measure, such relocation shall take place only with the free
accordance with their customs and traditions. and prior informed consent of the ICCs/IPs concerned and
whenever possible, they shall be guaranteed the right to
CHAPTER III RIGHTS TO ANCESTRAL DOMAINS return to their ancestral domains, as soon as the grounds
for relocation cease to exist. When such return is not
Section 4. Concept of Ancestral Lands/Domains. - possible, as determined by agreement or through
Ancestral lands/domains shall include such concepts of appropriate procedures, ICCs/IPs shall be provided in all
territories which cover not only the physical environment possible cases with lands of quality and legal status at least
but the total environment including the spiritual and equal to that of the land previously occupied by them,
cultural bonds to the area which the ICCs/IPs possess, suitable to provide for their present needs and future
occupy and use and to which they have claims of ownership. development. Persons thus relocated shall likewise be fully
compensated for any resulting loss or injury;
Section 5. Indigenous Concept of Ownership. - Indigenous d. Right in Case of Displacement. - In case displacement
concept of ownership sustains the view that ancestral occurs as a result of natural catastrophes, the State shall
domains and all resources found therein shall serve as the endeavor to resettle the displaced ICCs/IPs in suitable areas
material bases of their cultural integrity. The indigenous where they can have temporary life support system:
concept of ownership generally holds that ancestral Provided, That the displaced ICCs/IPs shall have the right to
domains are the ICC's/IP's private but community property return to their abandoned lands until such time that the
which belongs to all generations and therefore cannot be normalcy and safety of such lands shall be determined:
sold, disposed or destroyed. It likewise covers sustainable Provided, further, That should their ancestral domain cease
traditional resource rights. to exist and normalcy and safety of the previous settlements
are not possible, displaced ICCs/IPs shall enjoy security of
Section 6. Composition of Ancestral Lands/Domains. - tenure over lands to which they have been resettled:
Ancestral lands and domains shall consist of all areas Provided, furthermore, That basic services and livelihood
generally belonging to ICCs/IPs as referred under Sec. 3, shall be provided to them to ensure that their needs are
items (a) and (b) of this Act. adequately addressed:
e. Right to Regulate Entry of Migrants. - Right to regulate the
Section 7. Rights to Ancestral Domains. - The rights of entry of migrant settlers and organizations into the
ownership and possession of ICCs/IPs t their ancestral domains;
domains shall be recognized and protected. Such rights shall f. Right to Safe and Clean Air and Water. - For this purpose,
include: the ICCs/IPs shall have access to integrated systems for the
a. Rights of Ownership.- The right to claim ownership over management of their inland waters and air space;
lands, bodies of water traditionally and actually occupied by g. Right to Claim Parts of Reservations. - The right to claim
ICCs/IPs, sacred places, traditional hunting and fishing parts of the ancestral domains which have been reserved
grounds, and all improvements made by them at any time for various purposes, except those reserved and intended
within the domains; for common and public welfare and service; and
b. Right to Develop Lands and Natural Resources. - Subject to h. Right to Resolve Conflict. - Right to resolve land conflicts in
Section 56 hereof, right to develop, control and use lands accordance with customary laws of the area where the land
and territories traditionally occupied, owned, or used; to is located, and only in default thereof shall the complaints
manage and conserve natural resources within the be submitted to amicable settlement and to the Courts of
territories and uphold the responsibilities for future Justice whenever necessary.
generations; to benefit and share the profits from allocation
and utilization of the natural resources found therein; the Section 8. Rights to Ancestral Lands. - The right of
right to negotiate the terms and conditions for the ownership and possession of the ICCs/IPs, to their ancestral
exploration of natural resources in the areas for the purpose lands shall be recognized and protected.
of ensuring ecological, environmental protection and the a. Right to transfer land/property. - Such right shall include
conservation measures, pursuant to national and customary the right to transfer land or property rights to/among
laws; the right to an informed and intelligent participation members of the same ICCs/IPs, subject to customary laws
in the formulation and implementation of any project, and traditions of the community concerned.
government or private, that will affect or impact upon the

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b. Right to Redemption. - In cases where it is shown that the morality, public order and the general welfare in a
transfer of land/property rights by virtue of any agreement democratic society; and f) Transparency and Capacity
or devise, to a non-member of the concerned ICCs/IPs is Building. The Commission shall perform its tasks on the
tainted by the vitiated consent of the ICCs/IPs,or is basis of transparency and active support and participation
transferred for an unconscionable consideration or price, by the ICCs/IPs, and shall take a proactive strategy in
the transferor ICC/IP shall have the right to redeem the empowering ICCs/IPs and in the fulfillment of its mandate
same within a period not exceeding fifteen (15) years from
the date of transfer. CASES:

Section 9. Responsibilities of ICCs/IPs to their Ancestral a. Manila Prince Hotel vs GSIS
Domains. - ICCs/IPs occupying a duly certified ancestral
domain shall have the following responsibilities: Facts:
a. Maintain Ecological Balance- To preserve, restore, and The Respondent Government Service Insurance System
maintain a balanced ecology in the ancestral domain by (GSIS) in pursuant to the privatization program of the
protecting the flora and fauna, watershed areas, and other Philippine Government under Proclamation No. 50 dated 8
reserves; December 1986, decided to sell through public bidding 30%
b. Restore Denuded Areas- To actively initiate, undertake to 51% of the issued. In a close bidding held on 18
and participate in the reforestation of denuded areas and September 1995 only two (2) bidders participated:
other development programs and projects subject to just petitioner Manila Prince Hotel Corporation, a Filipino
and reasonable remuneration; and corporation, which offered to buy 51% of the MHC or
c. Observe Laws- To observe and comply with the 15,300,000 shares at P41.58 per share, and Renong Berhad,
provisions of this Act and the rules and regulations for its a Malaysian firm, with ITT-Sheraton as its hotel operator,
effective implementation. which bid for the same number of shares at P44.00 per
share, or P2.42 more than the bid of petitioner.
National Commission on Indigenous Peoples Pending the declaration of Renong Berhad as the winning
[AO No. 1, s. 1998] bidder/strategic partner of MHC, petitioner matched the
RULES AND REGULATIONS IMPLEMENTING THE formers bid prize also with Php 44.00 per share followed
INDIGENOUS PEOPLES RIGHTS ACT OF 1997 by a managers check worth Php 33 million as Bid Security,
but the GSIS refused to accept both the bid match and the
Section 4. Operating Principles. In implementing the policies managers check.
enumerated in these Rules, the following operating The petitioner invokes Sec. 10, second par., Art. XII, of the
principles shall be adhered to: 1987 Constitution Filipino first policy and submits that
a) Cultural Diversity. As the beginning of unity is difference, the Manila Hotel has been identified with the Filipino nation
the diversity of cultures, traditions, beliefs and aspirations and has practically become a historical monument which
of indigenous peoples shall be encouraged and fostered in reflects the vibrancy of Philippine heritage and culture. To
openness, mutual respect for, and active defense of the all intents and purposes, it has become a part of the national
equal and inalienable dignity and universal, indivisible, patrimony. Petitioner also argues that since 51% of the
interdependent and interrelated rights of every human shares of the MHC carries with it the ownership of the
being, in the spirit of inter-people cooperation; business of the hotel which is owned by respondent GSIS, a
b) Consensus and Peace-Building. In resolving conflicts or government-owned and controlled corporation, the hotel
disputes affecting or pertaining to indigenous peoples, any business of respondent GSIS being a part of the tourism
determination or decision thereon shall be reached through industry is unquestionably a part of the national economy.
dialogue and consensus as far as practicable;
c) Cultural Integrity. Within ancestral domains/lands, the Pertinent Issue: w/n Manila Hotel is part of National
holistic and integrated adherence of indigenous peoples to Patrimony
their respective customs, beliefs, traditions, indigenous
knowledge systems and practices, and the assertion of their In its plain and ordinary meaning, the term patrimony
character and identity as peoples shall remain inviolable; pertains to heritage. When the Constitution speaks of
d) Human Dignity. The inherent and inalienable distinct national patrimony, it refers not only to the natural
character, sacred human dignity, and unique identity of resources of the Philippines, as the Constitution could have
indigenous peoples as peoples shall be respected; very well used the term natural resources, but also to the
e) Subsidiarity, Solidarity and Total Human Development. In cultural heritage of the Filipinos. It also refers to Filipinos
the pursuit of civil, political, economic, social and cultural intelligence in arts, sciences and letters. In the present case,
development, the human person shall be the central subject Manila Hotel has become a landmark, a living testimonial of
thereof and its active participant and beneficiary. Everyone Philippine heritage. While it was restrictively an American
has duties to the community. In the exercise of rights and hotel when it first opened in 1912, a concourse for the elite,
freedoms, everyone shall be subject only to such limitations it has since then become the venue of various significant
as are determined by custom or law, solely for the purpose events which have shaped Philippine history. In the
of securing due recognition and respect for the rights and granting of economic rights, privileges, and concessions,
freedoms of others and of meeting the just requirements of especially on matters involving national patrimony, when a

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 79


choice has to be made between a qualified foreigner and a culture based on the principle of unity in diversity in a
qualified Filipino, the latter shall be chosen over the climate of free artistic and intellectual expression." And, in
former. urging this Court to grant their petition, petitioners invoke
this policy of the state on the protection of the arts.
The Supreme Court directed the GSIS, the Manila Hotel Petitioners claim that as Filipino citizens, taxpayers and
Corporation, the Committee on Privatization and the Office artists deeply concerned with the preservation and
of the Government Corporate Counsel to cease and desist protection of the country's artistic wealth, they have the
from selling 51% of the Share of the MHC to Renong Berhad, legal personality to restrain respondents Executive
and to accept the matching bid of Manila Prince Hotel at P44 Secretary and PCGG from acting contrary to their public
per share and thereafter execute the necessary agreements duty to conserve the artistic creations as mandated by the
and document to effect the sale, to issue the necessary 1987 Constitution, particularly Art. XIV, Secs. 14 to 18, on
clearances and to do such other acts and deeds as may be Arts and Culture, and R.A. 4846 known as "The Cultural
necessary for the purpose. Properties Preservation and Protection Act," governing the
preservation and disposition of national and important
b. Joya et al. vs PCGG et al. GR 96541 August 24 1993 cultural properties. Petitioners also anchor their case on the
premise that the paintings and silverware are public
Facts: The PCGG Chairman Mateo Caparas wrote on 09 properties collectively owned by them and by the people in
August 1990 to President Corazon Aquino regarding the general to view and enjoy as great works of art. They allege
scheduled sale between the Republic of the Philippines and that with the unauthorized act of PCGG in selling the art
Christies of 82 Old Masers Painting housed in Metropolitan pieces, petitioners have been deprived of their right to
Museum of Manila and 7 boxes of antique silverware in the public property without due process of law in violation of
custody of Central Bank. This was approved on 14 August the Constitution.
1990 and the consignment was signed the following day. On
26 October 1990 the Commission on Audit submitted audit Petitioners' arguments are devoid of merit. They lack basis
findings to the President the assets subject of auction in fact and in law. They themselves allege that the paintings
were historical relics and had cultural significance and were donated by private persons from different parts of the
thereby prohibited by law. As Filipino citizens, taxpayers world to the Metropolitan Museum of Manila Foundation,
and artists, petitioners Dean Jose Joya et al contended that which is a non-profit and non-stock corporations
they have legal personality to restrain respondent from established to promote non-Philippine arts. The
acting contrary to preserving artistic creations pursuant to foundation's chairman was former First Lady Imelda R.
Sec 14-18 Article XIV of the Constitution. Marcos, while its president was Bienvenido R. Tantoco. On
this basis, the ownership of these paintings legally belongs
1. w./n petitioners have legal standing to the foundation or corporation or the members thereof,
2. whether the Old Masters Paintings and antique although the public has been given the opportunity to view
silverware are embraced in the phrase "cultural treasure of and appreciate these paintings when they were placed on
the nation" which is under the protection of the state exhibit.
pursuant to the 1987 Constitution and/or "cultural
properties" contemplated under R.A. 4846, otherwise 2. . Clearly, the cultural properties of the nation which shall
known as "The Cultural Properties Preservation and be under the protection of the state are classified as the
Protection Act;" "important cultural properties" and the "national cultural
2. whether the paintings and silverware are properties of treasures." "Important cultural properties" are cultural
public dominion on which can be disposed of through the properties which have been singled out from among the
joint concurrence of the President and Congress; innumerable cultural properties as having exceptional
historical cultural significance to the Philippines but are not
Before proceeding, we wish to emphasize that we admire sufficiently outstanding to merit the classification of
and commend petitioners' zealous concern to keep and national cultural treasures. On the other hand, a "national
preserve within the country great works of art by well- cultural treasures" is a unique object found locally,
known old masters. Indeed, the value of art cannot be possessing outstanding historical, cultural, artistic and/or
gainsaid. For, by serving as a creative medium through scientific value which is highly significant and important to
which man can express his innermost thoughts and this country and nation. This Court takes note of the
unbridled emotions while, at the same time, reflecting his certification issued by the Director of the Museum that the
deep-seated ideals, art has become a true expression of Italian paintings and silverware subject of this petition do
beauty, joy, and life itself. Such artistic creations give us not constitute protected cultural properties and are not
insights into the artists' cultural heritage the historic past among those listed in the Cultural Properties Register of the
of the nation and the era to which they belong in their National Museum.
triumphant, glorious, as well as troubled and turbulent
years. It must be for this reason that the framers of the 1987 We agree with the certification of the Director of the
Constitution mandated in Art. XIV, Sec. 14, that is the Museum. Under the law, it is the Director of the Museum
solemn duty of the state to "foster the preservation, who is authorized to undertake the inventory, registration,
enrichment, and dynamic evolution of a Filipino national 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 Why is a global response needed?
agencies who have acquired expertise because their Mercury pollution is a global problem that requires global
jurisdiction is confined to specific matters are generally action because it moves with air and water, transcends
accorded not only respect but at times even finality if such political borders, and can be transported thousands of miles
findings are supported by substantial evidence and are in the atmosphere.
controlling on the reviewing authorities because of their
acknowledged expertise in the fields of specialization to What will the Minamata Covention require?
which they are assigned. The Minamata Convention, once in force, will require party
nations to:
In view of the foregoing, this Court finds no compelling a. Reduce and where feasible eliminate the use and release
reason to grant the petition. Petitioners have failed to show of mercury from artisanal and small-scale gold mining.
that respondents Executive Secretary and PCGG exercised b. Control mercury air emissions from coal-fired power
their functions with grave abuse of discretion or in excess of plants, coal-fired industrial boilers, certain non-ferrous
their jurisdiction. metals production operations, waste incineration and
cement production.
6. Minamata Convention on Mercury c. Phase-out or take measures to reduce mercury use in
- in relation with Peoples small scale mining in the Phil. certain products such as batteries, switches, lights,
cosmetics, pesticides and measuring devices, and create
The Convention opened for signature at the Diplomatic initiatives to reduce the use of mercury in dental
Conference in Kumamoto, Japan, on October 10, 2013. The amalgam.
Convention will enter into force after 50 countries have d. Phase out or reduce the use of mercury in manufacturing
joined. processes such as chlor-alkali production, vinyl chloride
monomer production, and acetaldehyde production.
The Convention is named after the Japanese city of e. In addition, the Convention addresses the supply and
Minamata, which experienced a severe, decades-long trade of mercury; safer storage and disposal, and
incidence of mercury poisoning after industrial wastewater strategies to address contaminated sites.
from a chemical factory was discharged into Minamata Bay. f. The Convention includes provisions for technical
The wastewater contained methylmercury, which assistance, information exchange, public awareness, and
bioaccumulated in fish and shellfish in the bay. Local people research and monitoring. It also requires Parties to report
who consumed seafood from Minamata Bay became very on measures taken to implement certain provisions. The
sick, and many died or were left severely disabled. Convention will be periodically evaluated to assess its
How does mercury threaten our health? effectiveness at meeting its objective of protecting human
health and the environment from mercury pollution.
Exposure to mercury threatens our health, with many often
irreversible toxic effects. Developing fetuses and young Summary of the Minamata Treaty on Mercury on the
children are most at risk. Mercury pollution also harms basis of conference room papers (CRPs) at the end of
wildlife and ecosystems. INC 5. [28 January 2013]

Mercury occurs naturally in the earths crust, but human Preamble (CRP 53) - Reaffirms the Rio+20 principles
activities, such as mining and fossil fuel combustion, have including common but differentiated responsibilities;
led to widespread global mercury pollution. Mercury Recognizes the health concerns of vulnerable populations
emitted into the air eventually settles into water or onto and particular vulnerabilities of indigenous communities;
land where it can be washed into water. Once deposited, Discusses the importance of financial, technical,
certain microorganisms can change it into methylmercury, a technological and capacity-building support, particularly for
highly toxic form that builds up in fish, shellfish and animals developing countries and economies in transition;
that eat fish. Most human exposure to mercury is from States that the Convention and other international
eating fish and shellfish contaminated with methylmercury, agreements are mutually supportive and includes
both in the United States and worldwide. references to WHO activities related to human health and
mercury.
Almost all people in the world have at least trace amounts of
methylmercury in their tissues, reflecting its pervasive Convention Objective (Article 1, CRP 15 and 20)
presence in the environment. Some communities eat The objective of the Convention is to protect human health
significantly more quantities of fish than the general and the environment from anthropogenic emissions and
population, and thus may be exposed to much greater releases of mercury and mercury compounds.
mercury contamination than the general population. It is
estimated that more than 75,000 newborns in the United Mercury supply sources and trade (Article 3, CRP 55)
States each year may have increased risk of learning New mercury mines in a country are prohibited as of the
disabilities associated with in-utero exposure to date the Convention enters into force by that government;
methylmercury.

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 NAP designed to prohibit the worst practices, undertake
years of the date the Convention enters into force by that measures to reduce and where feasible eliminate mercury
government; use over time.
Mercury from mercury mines and chlor-alkali plant To send the right market signals to miners and reduce
decommissioning cannot be used for small-scale gold mercury availability, mercury from mercury mines and
mining once the Convention comes into force; chlor-alkali plant decommissioning cannot be used for
Mercury from decommissioning chlor-alkali plants small-scale gold mining once the
(factories using mercury to make chlorine and caustic soda, Convention comes into force;
required to be phased out by 2025), cannot be sold or Emissions (Article 10, CRP 55)
reused except within the chloralkali sector itself, otherwise Air emissions from coal-fired power plants and industrial
mercury should be directed to final disposal; boilers; lead, zinc, copper, and industrial gold roasting and
The trading of mercury requires the written consent of the smelting processes; cement plants; and waste incinerators
importing country; will be covered by the treaty. New (and substantially
modified) sources within these sectors will be subject to
Mercury-added products (Article 6, CRP 54) BAT/BEP
Parties shall discourage the manufacture and the (Best Available Techniques/Best Environmental Practices)
distribution in commerce of mercury-added products not latest 5 years after the Convention comes into force, where
covered by any known use prior to the date of entry into feasible, for that government, but existing sources (in
force of the Convention for it. existence one year after the
Specified mercury-added products are subject to a 2020 Convention comes into force for that government) are
phase out date. These products are batteries (except silver subject to a wider range of possible regulatory regimes,
oxide and zinc air button cells), the vast majority of taking into account its national circumstances, and the
switches and relays, skin lightening soaps and creams economic and technical feasibility, and affordability of the
(>1ppm), pesticides, biocides (but not vaccines), topical measures, as soon as practicable that need not be applied
antiseptics, barometers, hygrometers, manometers, until 10 years after the Convention comes into force for that
thermometers, and blood pressure cuffs. Exceptions are government;
provided for calibration and scientific research, and certain
replacement applications; Releases (Article 11, CRP 55)
The use of mercury in dental amalgam, are subject to Mercury releases to water and land from relevant sources
requirements in Annex C, Part II, which specifies that not addressed elsewhere in the convention shall be
parties shall undertake two or more of the measures listed identified within 3 years of entry into force of the
to phase down amalgam use; Convention by that government and are to be controlled
Manufacturing processes in which mercury or mercury and, where feasible, reduced;
compounds are used (Article 7, CRP 55) Control measures include a wide range of possible
Mercury is not allowed in a facility that did not exist prior regulatory regimes;
to the date of entry into force of the Convention; Environmentally sound interim storage of mercury, other
Parties shall discourage the development of any new than waste mercury (Article 12, CRP 35)
process in which mercury is used that did not exist prior to Measures need to be taken to ensure that the interim
the date of entry into force of the Convention; storage of mercury intended for a use allowed is undertaken
The mercury cell chlor-alkali plants are subject to a 2025 in an environmentally sound manner, taking into account
phase out date. The manufacture of acetaldehyde using any existing guidelines; specific requirements for interim
mercury is to be phased out by 2018; storage may be developed at a later stage by the Conference
The manufacture of vinyl chloride monomer, polyurethane, of the Parties (COP).
and sodium methylate are subject to phase down
requirements; Mercury wastes (Article 13, CRP 35)
Exemptions available to a Party upon request (Article 8, Appropriate measures shall be taken so that mercury
CRP 55) waste is managed in an environmentally sound manner on
The phase out dates for products and the chlor-alkali the basis of specific requirements that will be developed by
sector may be extended if a country requests an exemption. the COP.
An initial five year extension will be easy to get; the second The Basel Convention applies on the transport of mercury
and last possible five year extension is subject to review and waste, and non parties to the Basel Convention should take
approval by all Parties to the Convention; into account relevant international rules, standards, and
Artisanal and small-scale gold mining (Article 9, from INC 4- guidelines.
para 5 deleted at INC 5)
To address mercury use in small-scale gold mining, if Contaminated sites (Article 14, CRP 55)
determined use is more than insignificant, governments Requires parties to endeavor to develop appropriate
must develop and implement national action plans (NAP) no strategies that can be developed for identifying and
later than 3 years after assessing sites contaminated by mercury, and actions to
Convention enters into force and report progress every 3 reduce relevant risks has to be performed in an
years thereafter 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 b. Prinsipe v. Fact Finding and Investigation Bureau
by the COP at a later stage. [FFIB]
c. Balikas v. FFIB
Financial Resources and Mechanism (Art. 15, CRP 52) d. Lipin Opadan v. Rio Tuba Nickel Mining
A special trust fund will be created within the Global e. Bangus Fry Fisherfolk v. Lanzanas
Environmental Facility to support developing nations as f. Tech Development Inc. v. CA
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 1. Renewable Energy Act (RA 9513)
(perhaps ongoing support for focal points in developing ** See previous discussion for full text of RA 9513
countries working on multiple chemical treaties).Both will ARTICLE: Amicus Curiae: The law on renewable energy
be operated under the guidance of and be accountable to Richmund C. Sta. Lucia | August 26, 2015
the Conference of the Parties.
Renewable energy offers an alternative to traditional fossil
Implementation and compliance committee (Art. 17, fuels (e.g., coal, natural gas, and petroleum). The trend is to
CRP 51) shift to renewable energy, also known as green energy or
An implementation and compliance committee will be clean energy.
established to promote implementation of, and review
compliance with, all provisions of the Convention. Recently, rooftops of new commercial buildings in France
Information exchange (Article 18, CRP 15 and 20) are required by law to be covered either with plants or solar
Requires parties to facilitate exchange of information on photovoltaic panels. These green roofs are also popular in
scientific, economic and legal information concerning Germany, Canada, and Australia.
mercury and mercury compounds; on viable alternatives to
mercury use in products and processes; and on Here in the Philippines, we can be proud of our very own
epidemiological information on health impacts from Leandro Leviste from Yale University, who at his young age,
mercury. is the president of Solar Philippines. In November 2014, his
Each party shall designate a national focal contact points company activated SM North Edsas solar-powered rooftop -
for information exchange - the biggest in the world.
Health and safety information shall not be regarded as
confidential By definition, the term renewable energy resources or,
Health (Article 20bis, CRP 35) simply, renewables, refers to energy resources that do not
Parties are encouraged to promote strategies to identify have an upper limit on the total quantity to be used. These
and protect populations at risk, implement programs to include biomass, solar, wind, geothermal, ocean energy, and
prevent occupational exposure and strengthen health hydropower, among others, which conform with
professional capacities for reducing exposure risks to internationally accepted standards.
mercury
In December 2008, the Philippines enacted Republic Act
National Implementation Plans (Article 21, CRP 50) (RA) No. 9513, also known as the Renewable Energy Act of
Parties, may develop and execute a national 2008. The Implementing Rules and Regulations were issued
implementation plan (NIP) for meeting the obligations in May 2009. The law affirmed the governments
under the convention, following an initial assessment of the commitment to accelerate the exploration and development
domestic implications of each obligation for that Party of Philippine renewable energy resources.
Parties should consult with national stakeholders in the
development, implementation, review and updating of NIPs RA 9513 declared the States policy to achieve energy
security by reducing reliance on fossil fuels and minimizing
Evaluation (Article 23, CRP 26) exposure to price fluctuations in oil markets. The
Conference of the Parties shall evaluate the Conventions government agencies tasked to implement the law include
effectiveness no later than 6 years after the date of entry the Department of Energy, the Energy Regulatory
into force Commission, and the National Renewable Energy Board.

Entry into force (Article 32, CRP 15) RA 9513 also seeks to increase the utilization of renewable
Fifty (50) countries will need to sign the Treaty so that it energy resources by developing national and local
enters into force capabilities in the use of renewable energy systems, and
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - promoting their efficient and effective application by
HW for March 28: offering fiscal and non-fiscal incentives.
1. Renewable Energy Act (RA 9513)
2. RA 6716: Rainwater Collection/Development of These incentives include: (1) income tax holiday; (2) duty-
Springs free importation of renewable machinery, equipment, and
Cases: materials; (3) special realty tax rates; (4) net operating loss
a. Mustang Lumber Corp v. CA 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% deduct not more than five percent (5%) for supervision,
value-added tax rate; (8) tax exemption on carbon credits; engineering, technical and other overhead expenses or fees:
and (9) cash incentive for missionary electrification. provided, further, that each barangay in the country shall
have at least one additional potable water source.
In the course of developing sources of renewable energy in
the country, certain issues need to be addressed by Sec. 3. Operation and Maintenance. In order to ensure
regulators, industry players, and other stakeholders. the proper use of the water facilities herein provided, a
Barangay Waterworks and Sanitation Association, herein
These include: (1) high upfront cost and technologies; (2) referred to as BWSA, shall be formed and organized for the
non-competitiveness among market players; (3) non-viable purpose of maintaining the water facilities: provided, that
renewable energy markets; (4) inaccessible financial pending the organization of the BWSA, the water facilities
packages; and (5) social acceptability. shall be operated and maintained by the barangay council.

Moreover, other issues which are inherent in renewable The BWSA shall be composed of the member-consumers
energy regulation (especially in relation to incentives) who shall administer, operate and maintain the completed
consist of: (1) implementation of Feed-in Tariff rules; (2) water facility and shall be registered with the
setting of Renewable Portfolio Standards; and (3) corresponding municipal or city council.
formulation of guidelines on other renewable energy policy
mechanisms, such as net metering, green energy option, etc. The BWSA may impose such minimal charges as may be
necessary for the maintenance and normal repairs of said
Even though there are challenges in developing the facility. Nothing herein shall prevent any resident of the
countrys renewable energy sector, we should not be locality from using the water facility under the same terms
discouraged; instead, we must continue to find ways to and conditions as the member-consumers of the BWSA.
meet those challenges with the hope that, ultimately, it will
lead the nation towards the enjoyment of sustainable green Organizing and training the recipient communities in the
and clean energy. operation and maintenance of water systems shall be
conducted by the DPWH prior to the turnover of such
In June 2011 during the launch of the National Renewable facilities to the BWSA subject to the guidelines to be
Energy Program, President Aquino described the prospects formulated by the Department.
of realizing the promise of renewable energy in the
Philippines. He best summed up why our country needs Sec. 4. Submission of Report. The Department of Public
green and clean energy: Renewable energy will fuel our Works and Highways shall, within ninety (90) days after the
future. approval of this Act and every one hundred eighty (80) days
thereafter, submit periodic reports to the respective
2. RA 6716: Rainwater Collection/Development of Committees on Public Works and Highways of both Houses
Springs of the Congress of the Philippines for evaluation and
REPUBLIC ACT NO. 6716 - AN ACT PROVIDING FOR THE consideration.
CONSTRUCTION OF WATER WELLS, RAINWATER
COLLECTORS, DEVELOPMENT OF SPRINGS AND Sec. 5. Funding. The sum needed for the
REHABILITATION OF EXISTING WATER WELLS IN ALL implementation of the construction, rehabilitation and
BARANGAYS IN THE PHILIPPINES repair program shall be taken from any available
appropriations for the Department of Public Works and
Section 1. Declaration of Policy. It is hereby declared to Highways in the General Appropriations Act for 1989:
be the national policy to promote the quality of life of every provided, that funds for this purpose shall also be included
Filipino through the provision of adequate social service in the General Appropriations Act for 1990 and 1991:
including, but not limited to, the provision of adequate provided, further, that the total program shall be completed
potable water supply made conveniently available to every not later than June 30, 1991, and: provided, finally, that
barangay in the country. there shall be equitable and proportionate appropriations of
funds annually for this purpose for all provinces, cities and
Sec. 2. Water Wells, Rainwater Collectors and Spring municipalities.n addition, a portion of financial grants and
Development. The Department of Public Works and concessional loans extended to the Philippines by foreign
Highways (DPWH) shall, within thirty (30) days after the governments and multilateral agencies every year, the
approval of this Act, undertake construction of water wells, amount to be determined by the President, shall be
rainwater collectors, development of springs and allocated by the Department of Budget and Management to
rehabilitation of existing water wells in all barangays in the augment the appropriations of the Department of Public
Philippines in such number as may be needed and feasible, Works and Highways until one hundred thousand (100,000)
taking into consideration the population, hydrologic water wells, rainwater collectors, and springs are completed
conditions, costs of project development and operations, as envisioned in this Act.
financial and economic factors and institutional
arrangements: provided, however, that the DPWH shall Cases:

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 84


a. Mustang Lumber Corp v. CA Dictionary, lumber is defined, inter alia, as timber or logs
G.R. No. 104988, June 18, 1996, 257 SCRA 430 after being prepared for the market. Simply put, lumber is a
The Revised Forestry Code contains no definition of either processed log or timber.
timber or lumber. While the former is included in forest
products as defined in paragraph (q) of Section 3, the latter b. Principe v. Fact Finding and Investigation Bureau
is found in paragraph (aa) of the same section in the [FFIB]
definition of Processing plant, which reads: EN BANC [G.R. No. 145973. January 23, 2002]
(aa) Processing plant is any mechanical set-up, machine or
combination of machine used for the processing of logs and ANTONIO G. PRINCIPE, petitioner, vs. FACT-FINDING &
other forest raw materials into lumber, veneer, plywood, INTELLIGENCE, BUREAU (FFIB), OFFICE OF THE
wallbond, blockboard, paper board, pulp, paper or other OMBUDSMAN,
finished wood products. PARDO, J.:
This simply means that lumber is a processed log or
processed forest raw material. Clearly, the Code uses the The Case is a petition for review on certiorari seeking to
term lumber in its ordinary or common usage. In the 1993 reverse the decision of the Court of Appeals[1] affirming the
copyright edition of Websters Third New Ombudsmans dismissal of petitioner from the government
International Dictionary, lumber is defined, inter alia, as service for gross neglect of duty in connection with the
timber or logs after being prepared for the market. Simply collapse of the housing project at the Cherry Hills
put, lumber is processed log or timber. Subdivision, Antipolo City, on August 3, 1999.

Facts: The Facts as found by the Court of Appeals, are as follows:
The present suit is a consolidation of three cases, the first August 28, 1990- Philjas Corporation, whose primary
case being the one pertinent to environmental law. purposes, among others are: to own, develop, subdivide,
An organized team of foresters and policemen apprehended market and provide low-cost housing for the poor, was
the truck belonging to Mustang Lumber, Inc. which registered with the Securities and Exchange Commission
contained lauan and almaciga lumber of assorted sizes and (SEC).
dimensions. The driver was unable to produce the
necessary legal documents, thus, the team seized the truck. February 19, 1991 - then City Mayor Daniel S. Garcia,
Afterwards, the team obtained a search warrant to inspect endorsed to the Housing and Land Use Regulatory Board
the premises of Mustang Lumber. During the search, the (HLURB) the proposed CHS.
team found more lumber in the lumberyard without the
necessary papers. Thus, the lumbers were confiscated. Thereafter, or on 07 March 1991, based on the favorable
Secretary Factoran ordered the disposal of the confiscated recommendation of Mayor Garcia, respondent TAN, issued
lumber. the Preliminary Approval and Locational Clearance (PALC)
for the development of CHS.
A complaint against Mustang Lumbers president and
general manager was filed in court. Mustang Lumber filed a On July 5, 1991, then HLURB Commissioner respondent
motion to quash on the ground that the information does TUNGPALAN issued Development Permit No. 91-0216 for
not charge an offense. land development only for the entire land area of 12.1034
According to Mustang Lumber, the possession of lumber as hectares covered by TCT No. 35083 (now TCT 208837) and
opposed to timber is not penalized under Section 68 of PD with 1,003 saleable lots/units with project classification B.
No. 705. P. 220 Model A-Socialized Housing (p. 96, Records), with
several conditions for its development.
Issue: Whether possession of lumber, as opposed to timber,
is penalized in Section 68 of PD No. 705. Three (3) days thereafter or on July 8, 1991, respondent
JASARENO, allowed/granted the leveling/earth-moving
Ruling: Yes. The possession of lumber is covered by Section operations of the development project of the area subject to
68 of PD No. 705. While the Revised Forestry Code does not certain conditions.
contain any definition of timber or lumber, it does define
forest products. The definition of Processing Plant includes On November 18, 1991, then HLURB Commissioner AMADO
lumber, to wit: [p]rocessing plant is any mechanical set-up, B. DELORIA issued Certificate of Registration No. 91-11-
machine or combination of machine used for the processing 0576 in favor of CHS, with License to Sell No. 91-11-0592
of logs and other forest raw materials into lumber, veneer, for the 1,007 lots/units in the subdivision.
plywood, wallbond, blockboard (sic), paper board, pulp,
paper or other finished wood products. Eventually, on December 10, 1991, respondent POLLISCO
issued Small Scale Mining Permit (SSMP) No. IV-316 to
This simply means that lumber is a processed log or Philjas to extract and remove 10,000 cu. meters of filling
processed forest raw material. Clearly, the Code uses the materials from the area where the CHS is located.
term lumber in its ordinary or common usage. In the 1993
copyright edition of Websters Third New International

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 85


Thereafter, or on January 12, 1994, Philjas applied for a On August 25, 2000, the Court of Appeals promulgated a
Small Scale Mining Permit (SSMP) under P. D. 1899 with the decision denying the petition and affirming the decision of
Rizal Provincial Government to extract and remove 50,000 the Ombudsman.[5]
metric tons of filling materials per annum on CHS 2.8
hectares. Hence, this appeal.

Thus, on January 17, 1994, respondent MAGNO, informed The Issue raised is whether the Ombudsman may dismiss
ELIEZER I. RODRIGUEZ of Philjas that CHS is within the EIS petitioner from the service on an administrative charge for
System and as such must secure ECC from the DENR. Philjas gross neglect of duty, initiated, investigated and decided by
was accordingly informed of the matter such that it applied the Ombudsman himself without substantial evidence to
for the issuance of ECC from the DENR-Region IV, on support his finding of gross neglect of duty because the duty
February 3, 1994. to monitor and inspect the project was not vested in
petitioner.
On March 12, 1994, an Inspection Report allegedly prepared
by respondent BALICAS, attested by respondent RUTAQUIO The Court's Ruling
and approved by respondent TOLENTINO re: field
evaluation to the issuance of ECC, was submitted. Republic Act No. 6770, Section 15, prescribed the powers of
the Ombudsman.
Consequently, on April 28, 1994, upon recommendation of
respondent TOLENTINO, Philjas application for ECC was The Ombudsman without taking into consideration the
approved by respondent PRINCIPE, then Regional Executive lawfully mandated duties and functions attached to
Director, DENR under ECC-137-RI-212-94. petitioners position, immediately concluded that as the
signing and approving authority of the ECC issued to
A Mining Field Report for SSMP dated May 10, 1994 was PHILJAS, it was incumbent upon petitioner to conduct actual
submitted pursuant to the inspection report prepared by monitoring and enforce strict compliance with the terms
respondents CAYETANO, FELICIANO, HILADO and BURGOS, and conditions of the ECC.
based on their inspection conducted on April 25 to 29, 1994.
The report recommended, among others, that the proposed The applicable administrative orders provide that the
extraction of materials would pose no adverse effect to the function of monitoring environmental programs, projects
environment. and activities in the region is lodged with the Regional
Technical Director, not with the Regional Executive
Records further disclosed that on August 10, 1994, Director, the position occupied by petitioner. Under DAO
respondent BALICAS monitored the implementation of the 38-1990, the following were the functions attached to the
CHS Project Development to check compliance with the office of petitioner, to wit:
terms and conditions in the ECC. Again, on August 23, 1995,
she conducted another monitoring on the project for the I. REGULATORY MATTERS
same purpose. In both instances, she noted that the project
was still in the construction stage hence, compliance with D. REGIONAL EXECUTIVE DIRECTOR
the stipulated conditions could not be fully assessed, and 1. Forest Management
therefore, a follow-up monitoring inspection was the last 2. Land Management
one conducted by the DENR. 3. Mines and Geo-Sciences Development
4. Environmental Management
On September 24, 1994, GOV. CASIMIRO I. YNARES, JR., 4.1 Issues authority to construct and permit to operate
approved the SSMP applied for by Philjas under SSMP No. pollution control equipment/devices including the
RZL-012, allowing Philjas to extract and remove 50,000 collection of corresponding fees/charges.
metric tons of filling materials from the area for a period of 4.2 Issues accreditation of pollution control office of
two (2) years from date of its issue until September 6, industrial firms and local government entities.
1996.[2] 4.3 Hears/gathers evidences or facts on pollution cases as
delegated by the Pollution Adjudication Board.
On November 15, 1999, the Ombudsman rendered a 4.4. Approves plans and issues permit for mine tailings
decision finding petitioner Principe administratively liable disposal, including environmental rehabilitation plans.[9]
for gross neglect of duty and imposing upon him the penalty
of dismissal from office. Clearly, there is no mention of the responsibility of a
regional executive director to monitor projects. More
On January 4, 2000, petitioner filed with the Court of apropos is the description of the functions of a regional
Appeals a petition for review assailing the decision of the technical director, to wit:
Ombudsman.[4]
E. REGIONAL TECHNICAL DIRECTOR

1. Forest Management

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 86


2. Land Management As heretofore stated, the responsibility of monitoring
3. Mines and Geo-Sciences Development housing and land development projects is not lodged with
4. Environmental Management the office of petitioner. The Administrative Code of 1987
4.1 Issues clearance certificate to vehicles which have spelled out the mandate of the Department of Environment
passed the smoke-belching test. and Natural Resources, the agency that has authority over
4.2 Issues pollution clearance and temporary permit to petitioner, which reads:
operate pollution control devices including the collection of
corresponding fees/charges. Section 1. Declaration of Policy.- (1) The State shall ensure
4.3 Conducts monitoring and investigation of pollution for the benefit of the Filipino people, the full exploration and
sources and control facilities. development as well as the judicious disposition, utilization,
4.4 Supervises, coordinates and monitors the management, renewal and conservation of the countrys
implementation of environmental programs, projects and forest, mineral, land, waters, fisheries, wildlife, off-shore
activities in the region.[10] [emphasis supplied] areas and other natural resources, consistent with the
necessity of maintaining a sound ecological balance and
Furthermore, monitoring is defined in DAO No. 21, Series of protecting and enhancing the quality of the environment
1992, as the activity designed to gauge the level of and the objective of making the exploration, development
compliance with the conditions stipulated in the ECC,[11] and utilization of such natural resources equitably
and in the EIS[12] or PD[13] submitted.[14] This is the accessible to the different segments of the present as well as
function of the PENR and CENR offices as mandated in DAO future generations.
No. 37, Series of 1996.[15] Particularly, it provided that:
(2) The State shall likewise recognize and apply a true value
Section 10. Compliance Monitoring system that takes into account social and environmental
x x x cost implications relative to the utilization, development
b. Monitoring of compliance with the proponents ECC issued and conservation of our natural resources.
pursuant to an IEE,[16] and applicable laws, rules and
regulations, shall be undertaken by the concerned PENRO Section 2. Mandate.- (1) The Department of Environment
and CENRO with support from the Regional Office and/or and Natural Resources shall be primarily responsible for the
EMB whenever necessary. implementation of the foregoing policy.

Hence, how could petitioner be guilty of neglecting a duty, (2) It shall, subject to law and higher authority, be in charge
which is not even his to begin with? Administrative liability of carrying out the States constitutional mandate to control
could not be based on the fact that petitioner was the and supervise the exploration, development, utilization, and
person who signed and approved the ECC, without proof of conservation of the countrys natural resources.[19]
actual act or omission constituting neglect of duty.
However, pursuant to Executive Order No. 90,[20] the
In the absence of substantial evidence of gross neglect of Human Settlements Regulatory Commission, which became
petitioner, administrative liability could not be based on the the Housing and Land Use Regulatory Board (HLURB), is the
principle of command responsibility.[17] The negligence of sole regulatory body for housing and land development.[21]
petitioners subordinates is not tantamount to his own
negligence. The Fallo: WHEREFORE, the Court REVERSES the decision
of the Court of Appeals.[22] In lieu thereof, the Court annuls
It was not within the mandated responsibilities of petitioner the decision of the Ombudsman in OMB-ADM-09-661, dated
to conduct actual monitoring of projects. The principles December 1, 1999, dismissing the petitioner from the
governing public officers under the Revised Administrative government service, and orders his reinstatement with back
Code of 1987 clearly provide that a head of a department or pay and without loss of seniority.
a superior officer shall not be civilly liable for the wrongful
acts, omissions of duty, negligence, or misfeasance of his c. Balicas v. FFIB
subordinates, unless he has actually authorized by written SECOND DIVISION [G.R. No. 145972. March 23, 2004]
order the specific act or misconduct complained of.[18]
IGNACIA BALICAS, petitioner, vs. FACT-FINDING &
The investigation conducted by the Ombudsman refers to INTELLIGENCE BUREAU (FFIB), OFFICE OF THE
the tragic incident in Cherry Hills Subdivision, Antipolo OMBUDSMAN, respondent.
Rizal, where several families lost lives and homes. Despite QUISUMBING, J.:
the fact that what was involved was a housing and land
development project, petitioner, as the Regional Executive This petition for review on certiorari assails the Court of
Director for Region IV, Department of Environment and Appeals decision[1] dated August 25, 2000 and
Natural Resources, was found negligent because he was the resolution[2] of November 13, 2000 in CA-G.R. SP No.
one who signed and approved the ECC. 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. On March 12, 1994, an Inspection Report allegedly prepared
by respondent BALICAS, attested by respondent RUTAQUIO
The antecedent facts as summarized in the Ombudsmans and approved by respondent TOLENTINO re: field
decision are as follows: evaluation to the issuance of ECC, was submitted.

Based on the evidence adduced by the complainant, the Consequently, on April 28, 1994, upon recommendations of
following is the chronological series of events which led to respondent TOLENTINO, Philjas application for ECC was
the development of the CHS (Cherry Hills Subdivision): approved by respondent PRINCIPE, then Regional Executive
Director, DENR under ECC-137-R1-212-94.
August 28, 1990 Philjas Corporation, whose primary
purposes, among others are: to own, develop, subdivide, A Mining Field Report for SSMP dated May 10, 1994 was
market and provide low-cost housing for the poor, was submitted pursuant to the inspection report prepared by
registered with the Securities and Exchange Commission respondents CAYETANO, FELICIANO, HILADO and BURGOS,
(SEC). based on their inspection conducted on April 25 to 29, 1994.
The report recommended, among others, that the proposed
February 19, 1991 then City Mayor Daniel S. Garcia, extraction of materials would pose no adverse effect to the
endorsed to the Housing and Land Use Regulatory Board environment.
(HLURB) the proposed CHS.
Records further disclosed that on August 10, 1994,
Thereafter, or on 07 March 1991, based on the favorable respondent BALICAS monitored the implementation of the
recommendations of Mayor Garcia, respondent TAN, issued CHS Project Development to check compliance with the
the Preliminary Approval and Locational Clearance (PALC) terms and conditions in the ECC. Again, on August 23, 1995,
for the development of CHS. she conducted another monitoring on the project for the
same purpose. In both instances, she noted that the project
On July 5, 1991, then HLURB Commissioner respondent was still in the construction stage hence, compliance with
TUNGPALAN issued Development Permit No. 91-0216 for the stipulated conditions could not be fully assessed, and
land development only for the entire land area of 12.1034 therefore, a follow-up monitoring is proper. It appeared
hectares covered by TCT No. 35083 (now TCT 208837) and from the records that this August 23, 1995 monitoring
with 1,003 saleable lots/units with project classification B.P. inspection was the last one conducted by the DENR.
220 Model A-Socialized Housing (p. 96, Records), with
several conditions for its development. On September 24, 1994, GOV. CASIMIRO I. YNARES, JR.,
approved the SSMP applied for by Philjas under SSMP No.
Three (3) days thereafter or on July 8, 1991, respondent RZL-012, allowing Philjas to extract and remove 50,000
JASARENO, allowed/granted the leveling/earth-moving metric tons of filling materials from the area for a period of
operations of the development project of the area subject to two (2) years from date of its issue until September 6,
certain conditions. 1996.[4]

On November 18, 1991, then HLURB Commissioner AMADO Immediately after the tragic incident on August 3, 1999, a
B. DELORIA issued Certificate of Registration No. 91-11- fact-finding investigation was conducted by the Office of the
0576 in favor of CHS, with License to Sell No. 91-11-0592 Ombudsman through its Fact-Finding and Intelligence
for the 1,007 lots/units in the subdivision. Bureau (FFIB), which duly filed an administrative complaint
with the Office of the Ombudsman against several officials of
Eventually, on December 10, 1991, respondent POLLISCO the Housing and Land Use Regulatory Board (HLURB),
issued Small Scale Mining Permit (SSMP) No. IV-316 to Department of Environment and Natural Resources (DENR),
Philjas to extract and remove 10,000 cu. meters of filling and the local government of Antipolo.
materials from the area where the CHS is located.
The charge against petitioner involved a supposed failure
Thereafter, or on January 12, 1994, Philjas applied for a on her part to monitor and inspect the development of
Small Scale Mining Permit (SSMP) under P.D. 1899 with the Cherry Hills Subdivision, which was assumed to be her duty
Rizal Provincial Government to extract and remove 50,000 as DENR senior environmental management specialist
metric tons of filling materials per annum on CHS 2.8 assigned in the province of Rizal.
hectares.
For her part, petitioner belied allegations that monitoring
Thus, on January 17, 1994, respondent MAGNO, informed was not conducted, claiming that she monitored the
ELIEZER I. RODRIGUEZ of Philjas that CHS is within the EIS development of Cherry Hills Subdivision as evidenced by
System and as such must secure ECC from the DENR. Philjas three (3) monitoring reports dated March 12, 1994, August
was accordingly informed of the matter such that it applied 10, 1994 and August 23, 1995. She averred that she also
for the issuance of ECC from the DENR-Region IV, on conducted subsequent compliance monitoring of the terms
February 3, 1994. 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 2. The landslide which caused the death of several residents
thereon. She further claimed good faith and exercise of due of the subdivision and the destruction of property is not a
diligence, insisting that the tragedy was a fortuitous event. fortuitous event and therefore preventible.[6]
She reasoned that the collapse did not occur in Cherry Hills,
but in the adjacent mountain eastern side of the subdivision. The main issues are whether or not the Court of Appeals
committed serious errors of law in: (1) holding petitioner
On November 15, 1999, the Office of the Ombudsman guilty of gross neglect of duty and (2) imposing upon her
rendered a decision imposing upon petitioner the supreme the extreme penalty of dismissal from office.
penalty of dismissal from office for gross neglect of duty
finding: In order to ascertain if there had been gross neglect of duty,
we have to look at the lawfully prescribed duties of
RESPONDENT BALICAS petitioner. Unfortunately, DENR regulations are silent on
the specific duties of a senior environmental management
Records show that she monitored and inspected the CHS specialist. Internal regulations merely speak of the functions
[Cherry Hills Subdivision] only thrice (3). Verily, with this of the Provincial Environment and Natural Resources Office
scant frequency, how can respondent Balicas sweepingly (PENRO) to which petitioner directly reports.
claim that there was no violation of ECC compliance and
that she had done what is necessary in accordance with the Nonetheless, petitioner relies on a letter[7] dated December
regular performance of her duties. She herself recognized 13, 1999 from the chief of personnel, DENR Region IV,
the fact that the collapsed area is not the subdivision in which defines the duties of a senior environmental
question but the adjacent mountain eastern side of the CHS. management specialist as follows:
It is incumbent upon her to establish the same in her
monitoring and inspection reports and make objective 1. Conducts investigation of pollution sources or
recommendations re: its possible adverse effect to the complaints;
environment and to the residents of the CHS and nearby 2. Review[s] plans and specifications of proposes (sic) or
areas. Her defense that the position of the CHS shows the existing treatment plants and pollution abatement
impossibility of checking the would-be adverse effect clearly structures and devices to determine their efficiency and
established her incompetence. No expert mind is needed to suitability for the kind of pollutants to be removed and to
know that mountains cause landslide and erosion. Cherry recommend issuance or denial of permits;
Hills Subdivision is a living witness to this.[5] 3. Conducts follow-up inspection of construction of
pollution abatement/work and structures to oversee
Petitioner seasonably filed a petition for review of the compliance with approved plans and specifications;
Ombudsmans decision with the Court of Appeals. In its 4. Recommends remedial measures for the prevention,
decision dated August 25, 2000, the Court of Appeals abatement and control of pollution;
dismissed the petition for lack of merit and affirmed the 5. Prepares technical reports on pollution investigation and
appealed decision. It found that the landslide was a related activities; and
preventable occurrence and that petitioner was guilty of 6. Performs related work as assigned.
gross negligence in failing to closely monitor Philjas
compliance with the conditions of the ECC given the known It is readily apparent that no monitoring duty whatsoever is
inherent instability of the ground where the subdivision mentioned in the said letter. The PENRO, on the other hand,
was developed. The appellate court likewise denied is mandated to:
petitioners motion for reconsideration in its resolution
dated November 13, 2000. 1. conduct surveillance and inspection of pollution sources
and control facilities and undertake/initiate measures
Petitioner now comes to this Court for review on certiorari, relative to pollution-related complaints of the general public
under Rule 45 of the Rules of Civil Procedure, of the for appropriate referral to the regional office;
appellate courts decision. She alleges that the Court of 2. comment on the project description, determine if the
Appeals committed serious errors of law in affirming the project fall within the Environmental Impact Statement
Ombudsmans conclusion that: (EIS) System[8] and submit the same to the regional office;
and
1 There was gross negligence on the part of petitioner 3. implement programs and projects related to
Balicas in the performance of her official duties as Senior environmental management within the PENRO.[9]
Environmental Management Specialist (SEMS) of the
Provincial Environment and Natural Resources Office In addition, the PENRO is likewise tasked to monitor the
(PENRO) Province of Rizal, DENR Region IV; and the alleged project proponents compliance with the conditions
gross neglect of duty of petitioner warranted the imposition stipulated in the ECC, with support from the DENR regional
of the extreme penalty of dismissal from the service. 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 to continuous rain, is clearly placed on the HLURB, not on
particular project. Specifically, it aims to: the petitioner as PENRO senior environmental management
specialist. In fact, the law imposes no clear and direct duty
1. monitor project compliance with the conditions set in the on petitioner to perform such narrowly defined monitoring
ECC; function.
2. monitor compliance with the Environmental Management
Plan (EMP) and applicable laws, rules and regulations; and In the related case of Principe v. Fact-Finding and
3. provide a basis for timely decision-making and effective Intelligence Bureau,[14] this Court found Antonio Principe,
planning and management of environmental measures regional executive director for DENR Region IV who
through the monitoring of actual project impacts vis--vis approved Philjas application for ECC, not liable for gross
predicted impacts in the EIS.[11] neglect of duty. The Court reversed the decision of the Court
of Appeals and thereby annulled the decision of the
Based on the foregoing, the monitoring duties of the PENRO Ombudsman in OMB-ADM-09-661, dated December 1, 1999,
mainly deal with broad environmental concerns, dismissing Principe from the government service. We
particularly pollution abatement. This general monitoring ordered his reinstatement with back pay and without loss of
duty is applicable to all types of physical developments that seniority.[15]
may adversely impact on the environment, whether housing
projects, industrial sites, recreational facilities, or scientific The rationale for our decision in Principe bears reiteration:
undertakings. the responsibility of monitoring housing and land
development projects is not lodged with the DENR, but with
However, a more specific monitoring duty is imposed on the the HLURB as the sole regulatory body for housing and land
HLURB as the sole regulatory body for housing and land development. Thus, we must stress that we find no legal
development. It is mandated to encourage greater private basis to hold petitioner, who is an officer of DENR, liable for
sector participation in low-cost housing through (1) gross neglect of the duty pertaining to another agency, the
liberalization of development standards, (2) simplification HLURB. It was grave error for the appellate court to sustain
of regulations and (3) decentralization of approvals for the Ombudsmans ruling that she should be dismissed from
permits and licenses.[12] the service. The reinstatement of petitioner is clearly called
for.
P.D. No. 1586[13] prescribes the following duties on the
HLURB (then Ministry of Human Settlements) in connection WHEREFORE, the petition is hereby GRANTED. The Court of
with environmentally critical projects requiring an ECC: Appeals decision affirming the Ombudsmans dismissal of
petitioner IGNACIA BALICAS from office is REVERSED and
SECTION 4. Presidential Proclamation of Environmentally SET ASIDE, and petitioners REINSTATEMENT to her
Critical Areas and Projects. The President of the Philippines position with back pay and without loss of seniority rights is
may, on his own initiative or upon recommendation of the hereby ordered.
National Environment Protection Council, by proclamation
declare certain projects, undertakings or areas in the d. Lipin Otadan v. Rio Tuba Nickel Mining
country as environmentally critical. No person, partnership [G.R. No. 161436. June 23, 2004] SECOND DIVISION
or corporation shall undertake or operate any such declared
environmentally critical project or area without first Gentlemen:
securing an Environmental Compliance Certificate issued by Quoted hereunder, for your information, is a resolution of
the President or his duly authorized representative. For the this Court dated JUN 23 2004.
proper management of said critical project or area, the
President may by his proclamation reorganize such G.R. No. 161436 (Lipin Otadan, et al. vs. Rio Tuba Nickel
government offices, agencies, institutions, corporations or Mining Corporation.)
instrumentalities including the re-alignment of government
personnel, and their specific functions and responsibilities. Acting on the Motion for Reconsideration dated April 26,
2004 filed by the petitioners of this Court's Resolution dated
For the same purpose as above, the Ministry of Human February 23, 2004 denying their petition for review on
Settlements [now HLURB] shall: (a) prepare the proper land certiorari for late filing, the Court resolved to DENY WITH
or water use pattern for said critical project(s) or area(s); FINALITY said motion for lack of merit. It is axiomatic that
(b) establish ambient environmental quality standards; (c) the perfection of an appeal in the manner and within the
develop a program of environmental enhancement or period prescribed by law is not only mandatory but
protective measures against calamitous factors such as jurisdictional and the failure to perfect the appeal has the
earthquake, floods, water erosion and others; and (d) effect of rendering the judgment final and
perform such other functions as may be directed by the executory.[1]cralaw
President from time to time. (Emphasis ours.)
Moreover, the petitioners mainly assail the Decision dated
The legal duty to monitor housing projects, like the Cherry September 30, 2003 of the Court of Appeals in CA-G.R. SP
Hills Subdivision, against calamities such as landslides due 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 temporary mooring facility in Minolo Cove, Sitio Minolo,
Natural Resources (DENR) when he issued the Barangay San Isidro, Puerto Galera, Oriental Mindoro. The
Environmental Compliance Certificate (ECC) No. 0201-021- Sangguniang Bayan of Puerto Galera has declared Minolo
313 to the respondent Rio Tuba Nickel Mining Corporation Cove, a mangrove area and breeding ground for bangus fry,
for its Hydrometallurgical Processing Plant in Barangay Rio an eco-tourist zone.[3]
Tuba, Municipality of Bataraza, Palawan. The issuance of the
ECC is an exercise by the Secretary of the DENR of his quasi- The mooring facility would serve as the temporary docking
judicial functions. This Court has consistently held that the site of NAPOCORs power barge, which, due to turbulent
courts will not interfere in matters which are addressed to waters at its former mooring site in Calapan, Oriental
the sound discretion of the government agency entrusted Mindoro, required relocation to a safer site like Minolo
with the regulation of activities coming under the special Cove. The 14.4 megawatts power barge would provide the
and technical training and knowledge of such main source of power for the entire province of Oriental
agency.[2]cralaw It has also been held that the exercise of Mindoro pending the construction of a land-based power
administrative discretion is a policy decision and a matter plant in Calapan, Oriental Mindoro. The ECC for the mooring
that can best be discharged by the government agency facility was valid for two years counted from its date of
concerned, and not by the courts.[3]cralaw This Court has issuance or until 30 June 1999.[4]
likewise consistently adhered to the principle that factual
findings of quasi-judicial bodies which have acquired Petitioners, claiming to be fisherfolks from Minolo, San
expertise because their jurisdiction is confined to specific Isidro, Puerto Galera,[5] sought reconsideration of the ECC
matters are generally accorded not only respect but even issuance. RED Principe, however, denied petitioners plea on
finality and are binding even upon the Supreme Court if 15 July 1997. On 21 July 1997, petitioners filed a complaint
they are supported by substantial evidence.[4]cralaw with the Regional Trial Court of Manila, Branch 7, for the
Further, administrative agencies are given a wide latitude in cancellation of the ECC and for the issuance of a writ of
the evaluation of evidence and in the exercise of its injunction to stop the construction of the mooring facility.
adjudicative functions. This latitude includes the authority Impleaded as defendants were the following: (1) NAPOCOR,
to take judicial notice of facts within its special (2) RED Principe, (3) DENR Region IV Technical Director for
competence.[5]cralaw The petitioners failed to present Environment Oscar Dominguez, (4) Oriental Mindoro
compelling reasons to warrant the deviation by this Court Electric Cooperative (ORMECO), which is engaged in the
from the foregoing salutary principles. distribution of electricity in Oriental Mindoro, and (5)
certain officials of Puerto Galera.[6] Petitioners
Likewise, the petitioners' Motion for Leave to File Attached subsequently amended their complaint to include as
Motion for Extension of Time and Amended Petition for additional defendants the elective officials of Oriental
Review on Certiorari is DENIED. Mindoro represented by then Governor Rodolfo G. Valencia.
Petitioners further prayed for the demolition of mooring
The Opposition dated May 7, 2004 filed by the respondent, structures that respondents had already built.
the Letters, in the vernacular, dated May 8, 2004, of the
Katutubong Palawan at Katutubong Mulbog ng Barangay On 28 July 1997, prior to the filing of the amended
Sarong, Bataraza, Palawan and the undated Separate complaint, the trial court issued a 20-day temporary
Letters, in the vernacular, of the residents of Barangay restraining order enjoining the construction of the mooring
Iwahig, Sarong, and Rio Tuba, Bataraza, Palawan are facility. However, the trial court lifted the same on 6 August
NOTED. 1997 on NAPOCORs manifestation that the provincial
government of Oriental Mindoro was the one undertaking
Very truly yours, the construction of the mooring facility.[7]
(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court On 28 August 1997, before filing their answers, respondents
ORMECO and the provincial officials of Oriental Mindoro
e. Bangus Fry Fisherfolk v. Lanzanas moved to dismiss the complaint. These respondents claimed
CARPIO, J.: that petitioners failed to exhaust administrative remedies,
rendering the complaint without cause of action. They also
This is a petition for review[1] of the Order[2] dated 7 asserted that the Manila RTC has no jurisdiction to enjoin
November 1997 of the Regional Trial Court of Manila, the construction of the mooring facility in Oriental Mindoro,
Branch 7 (Manila RTC), dismissing petitioners complaint for which lies outside the Manila RTCs territorial jurisdiction.
lack of cause of action and lack of jurisdiction.
Petitioners opposed the motion on the ground that there
The Facts ; On 30 June 1997, Regional Executive Director was no need to exhaust administrative remedies. They
Antonio G. Principe (RED Principe) of Region IV, argued that the issuance of the ECC was in patent violation
Department of Environment and Natural Resources (DENR), of Presidential Decree No. 1605,[8] Sections 26 and 27 of
issued an Environmental Clearance Certificate (ECC) in Republic Act No. 7160,[9] and the provisions of DENR
favor of respondent National Power Corporation Department Administrative Order No. 96-37 (DAO 96-37)
(NAPOCOR). The ECC authorized NAPOCOR to construct a 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 government infrastructure projects like the mooring facility
violation of its terms. in the present case. Republic Act No. 8975 (RA No. 8975),
which took effect on 26 November 2000, superseded PD No.
In its order of 7 November 1997, the trial court granted the 1818 and delineates more clearly the coverage of the
motion and dismissed petitioners complaint. prohibition, reserves the power to issue such writs
exclusively with this Court, and provides penalties for its
Hence, this petition. violation.15 Obviously, neither the Manila RTC nor the
Oriental Mindoro RTC can issue an injunctive writ to stop
The issue is whether the trial court erred in dismissing the construction of the mooring facility. Only this Court can
petitioners complaint for lack of cause action and lack of do so under PD No. 1818 and later under RA No. 8975. Thus,
jurisdiction. the question of whether the Manila RTC has jurisdiction
over the complaint considering that its injunctive writ is not
The Ruling of the Court: The petition has no merit. enforceable in Oriental Mindoro is academic.

Jurisdiction of the Manila RTC over the Case - Jurisdiction Clearly, the Manila RTC has jurisdiction to determine the
over the subject matter of a case is conferred by law. Such validity of the issuance of the ECC, although it could not
jurisdiction is determined by the allegations in the issue an injunctive writ against the DENR or NAPOCOR.
complaint, irrespective of whether the plaintiff is entitled to However, since the construction of the mooring facility
all or some of the reliefs sought.11 could not proceed without a valid ECC, the validity of the
ECC remains the determinative issue in resolving
A perusal of the allegations in the complaint shows that petitioners complaint.
petitioners principal cause of action is the alleged illegality
of the issuance of the ECC. The violation of laws on On the Alleged Patent Illegality of the ECC
environmental protection and on local government Petitioners nevertheless contend that they are exempt from
participation in the implementation of environmentally filing an appeal with the DENR Secretary because the
critical projects is an issue that involves the validity of issuance of the ECC was in patent violation of existing laws
NAPOCORs ECC. If the ECC is void, then as a necessary and regulations. These are (1) Section 1 of Presidential
consequence, NAPOCOR or the provincial government of Decree No. 1605, as amended, (2) Sections 26 and 27 of
Oriental Mindoro could not construct the mooring facility. Republic Act No. 7160 (Local Government Code of 1991),
The subsidiary issue of non-compliance with pertinent local and (3) the provisions of DAO 96-37 on the documentary
ordinances in the construction of the mooring facility requirements for the zoning permit and social acceptability
becomes immaterial for purposes of granting petitioners of the mooring facility.
main prayer, which is the annulment of the ECC. Thus, if the
court has jurisdiction to determine the validity of the Petitioners contention is without merit. While the patent
issuance of the ECC, then it has jurisdiction to hear and illegality of an act exempts a party from complying with the
decide petitioners complaint. rule on exhaustion Of administrative remedies,22 this does
not apply in the present case.
Petitioners complaint is one that is not capable of pecuniary
estimation. It falls within the exclusive and original Presidential Decree No. 1605
jurisdiction of the Regional Trial Courts under Section 19(1) Presidential Decree No. 1605 (PD No. 1605),23 as
of Batas Pambansa Blg. 129, as amended by Republic Act amended by Presidential Decrees Nos. 1605-A and 1805,
No. 7691. The question of whether petitioners should file declares as ecologically threatened zone the coves and
their complaint in the Regional Trial Court of Manila or waters embraced by Puerto Galera Bay as protected by
Oriental Mindoro then becomes a matter of venue, to be Medio Island. This decree provides in part:
determined by the residence of the parties.12
Section 1. Any provision of law to the contrary
Petitioners main prayer is the annulment of the ECC. The notwithstanding, the construction of marinas, hotels,
principal respondent, DENR Region IV, has its main office at restaurants, other commercial structures; commercial or
the L & S Building, Roxas Boulevard, Manila. Regional semi-commercial wharfs [sic]; commercial docking within
Executive Director Principe of the DENR Region IV, who the enclosed coves of Puerto Galera; the destruction of its
issued the ECC, holds office there. Plainly, the principal mangrove stands; the devastation of its corals and coastline
respondent resides in Manila, which is within the territorial by large barges, motorboats, tugboat propellers, and any
jurisdiction of the Manila RTC. Thus, petitioners filed their form of destruction by other human activities are hereby
complaint in the proper venue. prohibited.

On the other hand, the jurisdiction of Regional Trial Courts Section 2. x x x
to issue injunctive writs is limited to acts committed or
about to be committed within their judicial region.13 No permit for the construction of any wharf, marina, hotel,
Moreover, Presidential Decree No. 1818 (PD No. 1818) restaurants and other commercial structures in Puerto
prohibited14 courts from issuing injunctive writs against 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 provided, in accordance with the provisions of the
Tourism Authority. (Emphasis supplied) Constitution.

NAPOCOR claims that since Minolo Cove lies outside of In Lina, Jr. v. Pao,27 the Court interpreted these provisions
Puerto Galera Bay as protected by Medio Island,24 PD No. in this manner:
1605 does not apply to this case. However, petitioners
assert that Minolo Cove is one of the enclosed coves of Section 27 of the Code should be read in conjunction with
Puerto Galera25 and thus protected under PD No. 1605. Section 26 thereof x x x.
This is a question of fact that the DENR Secretary should
have first resolved. In any event, there is no dispute that Thus, the projects and programs mentioned in Section 27
NAPOCOR will use the mooring facility for its power barge should be interpreted to mean projects and programs
that will supply 14.4 megawatts of electricity to the entire whose effects are among those enumerated in Sections 26
province of Oriental Mindoro, including Puerto Galera. The and 27, to wit, those that: (1) may cause pollution; (2) may
mooring facility is obviously a government-owned public bring about climatic change; (3) may cause the depletion of
infrastructure intended to serve a basic need of the people non-renewable resources; (4) may result in loss of crop
of Oriental Mindoro. The mooring facility is not a land, rangeland, or forest cover; (5) may eradicate certain
commercial structure; commercial or semi-commercial animal or plant species; and (6) other projects or programs
wharf or commercial docking as contemplated in Section 1 that may call for the eviction of a particular group of people
of PD No. 1605. Therefore, the issuance of the ECC does not residing in the locality where these will be implemented.
violate PD No. 1605 which applies only to commercial
structures like wharves, marinas, hotels and restaurants. Again, Sections 26 and 27 do not apply to this case because
as petitioners admit,28 the mooring facility itself is not
Sections 26 and 27 of RA No. 7160 environmentally critical and hence does not belong to any of
Congress introduced Sections 26 and 27 in the Local the six types of projects mentioned in the law. There is no
Government Code to emphasize the legislative concern for statutory requirement for the concerned sanggunian to
the maintenance of a sound ecology and clean approve the construction of the mooring facility. It is
environment.26 These provisions require every national another matter if the operation of the power barge is at
government agency or government-owned and controlled issue. As an environmentally critical project that causes
corporation to hold prior consultations with the local pollution, the operation of the power barge needs the prior
government unit concerned and to secure the prior approval of the concerned sanggunian. However, what is
approval of its sanggunian before implementing any before this Court is only the construction of the mooring
project or program that may cause pollution, climatic facility, not the operation of the power barge. Thus, the
change, depletion of non-renewable resources, loss of issuance of the ECC does not violate Sections 26 and 27 of
cropland, rangeland, or forest cover and extinction of RA No. 7160.
animal or plant species. Sections 26 and 27 respectively
provide: Documentary Requirements for ECC Applications
Under DAO 96-37, an ECC applicant for a project located
Section 26. Duty of National Government Agencies in the within an environmentally critical area is required to
Maintenance of Ecological Balance. It shall be the duty of submit an Initial Environment Examination, which must
every national agency or government-owned or controlled contain a brief description of the environmental setting and
corporation authorized or involved in the planning and a documentation of the consultative process undertaken,
implementation of any project or program that may cause when appropriate.29 As part of the description of the
pollution, climatic change, depletion of non-renewable environmental setting, the ECC applicant must submit a
resources, loss of crop land, rangeland, or forest cover and certificate of locational clearance or zoning certificate.
extinction of animal or plant species, to consult with the
local government units, non-governmental organizations, Petitioners further contend that NAPOCOR, in applying for
and other sectors concerned and explain the goals and the ECC, did not submit to the DENR Region IV Office the
objectives of the project or program, its impact upon the documents proving the holding of consultations and the
people and the community in terms of environmental or issuance of a locational clearance or zoning certificate.
ecological balance, and the measures that will be Petitioners assert that this omission renders the issuance of
undertaken to prevent or minimize the adverse effects the ECC patently illegal.
thereof.
The contention is also without merit. While such documents
Section 27. Prior Consultations Required. No project or are part of the submissions required from a project
program shall be implemented by government authorities proponent, their mere absence does not render the issuance
unless the consultations mentioned in Section . . . 26 hereof of the ECC patently illegal. To justify non-exhaustion of
are complied with, and prior approval of the sanggunian administrative remedies due to the patent illegality of the
concerned is obtained: Provided, That occupants in areas ECC, the public officer must have issued the ECC [without
where such projects are to be implemented shall not be any] semblance of compliance, or even an attempt to
evicted unless appropriate relocation sites have been 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 of protecting the environment.33 Indeed, we have called for
jurisdiction, or has committed a grave abuse of discretion; the vigorous prosecution of violators of environmental
or when his act is clearly and obviously devoid of any color laws.34 Legal actions to achieve this end, however, must be
of authority.30 done in accordance with established rules of procedure that
were intended, in the first place, to achieve orderly and
RED Principe, as chief of DENR Region IV, is the officer duly efficient administration of justice.
authorized under DAO 96-3731 to issue ECCs for projects
located within environmentally critical areas. RED Principe WHEREFORE, we DENY the petition for lack of merit.
issued the ECC on the recommendation of Amelia Supetran,
the Director of the Environmental Management Bureau. f. Tech Development Inc. v. CA
Thus, RED Principe acted with full authority pursuant to G.R. No. 94759, Jan. 21, 1991, 201 SCRA
DENR regulations. Moreover, the legal presumption is that
he acted with the requisite authority.32 This clothes RED FACTS: Technology Developers, a corporation engaged in
Principes acts with presumptive validity and negates any the manufacture and export of charcoal briquette, received
claim that his actions are patently illegal or that he gravely a letter from acting mayor Pablo Cruz: 1) ordering the full
abused his discretion. While petitioners may present proof cessation of its plant in Guyong, Sta. Maria, Bulacan until
to the contrary, they must do so before the proper further order, and 2) requesting its Plant Manager to bring
administrative forum before resorting to judicial remedies. before the office of the mayor its building permit, mayor's
permit, and Region III--Pollution of Environment and
On the Alleged Non-Compliance with the Terms of the ECC Natural Resources Anti--Pollution Permit.

Lastly, petitioners claim that they are justified in Technology Developers undertook to comply with the
immediately seeking judicial recourse because NAPOCOR is request to produce the required documents. It sought to
guilty of violating the conditions of the ECC, which requires secure the Region III-Pollution of Environment and Natural
it to secure a separate ECC for the operation of the power Resources Anti--Pollution Permit although prior to the
barge. The ECC also mandates NAPOCOR to secure the usual operation of the plant, a Temporary Permit to Operate Air
local government permits, like zoning and building permits, Pollution Installation was issued to it. Petitioners also sent
from the municipal government of Puerto Galera. its representatives to the office of the mayor to secure a
mayors permit but were not entertained.
The contention is similarly without merit. The fact that
NAPOCORs ECC is subject to cancellation for non- Eventually, the acting mayor ordered that the plant
compliance with its conditions does not justify petitioners premises be padlocked, effectively causing the stoppage of
conduct in ignoring the procedure prescribed in DAO 96-37 operation. This was done without previous and reasonable
on appeals from the decision of the DENR Executive notice.
Director. Petitioners vigorously insist that NAPOCOR should
comply with the requirements of consultation and Technology Developers then instituted an action for
locational clearance prescribed in DAO 96-37. Ironically, certiorari, prohibition and mandamus with preliminary
petitioners themselves refuse to abide with the procedure injunction against the acting mayor with Bulacan RTC,
for filing complaints and appealing decisions laid down in alleging that the closure order was issued in grave abuse of
DAO 96-37. discretion.

DAO 96-37 provides for a separate administrative The RTC found that the issuance of the writ of preliminary
proceeding to address complaints for the cancellation of an mandatory injunction was proper, ordering the acting
ECC. Under Article IX of DAO 96-37, complaints to nullify an mayor to immediately revoke his closure order and allow
ECC must undergo an administrative investigation, after Technology Developers to resume its normal business
which the hearing officer will submit his report to the EMB operations until the case has been adjudicated on the
Director or the Regional Executive Director, who will then merits.
render his decision. The aggrieved party may file an appeal
to the DENR Secretary, who has authority to issue cease and Upon MR, the Provincial Prosecutor presented evidence as
desist orders. Article IX also classifies the types of violations to the allegation that "Due to the manufacturing process and
covered under DAO 96-37, including projects operating nature of raw materials used, the fumes coming from the
without an ECC or violating the conditions of the ECC. This factory may contain particulate matters which are
is the applicable procedure to address petitioners hazardous to the health of the people. As such, the company
complaint on NAPOCORs alleged violations and not the should cease operating until such a time that the proper air
filing of the instant case in court. pollution device is installed and operational."

A Final Word Reassessing the evidence, the RTC set aside its order
The Court commends petitioners for their courageous granted the writ of preliminary mandatory injunction. The
efforts to safeguard and maintain the ecological balance of CA denied Technology Developer's petition for certiorari for
Minolo Cove. This Court recognizes the utmost importance lack of merit.

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 94


The well-known rule is that the matter of issuance of a writ
ISSUE:W/N the acting mayor had a legal ground for of preliminary injunction is addressed to the sound judicial
ordering the stoppage of Technology Developer discretion of the trial court and its action shall not be
disturbed on appeal unless it is demonstrated that it acted
HELD: YES. The following circumstances militate against the without jurisdiction or in excess of jurisdiction or
maintenance of the writ of preliminary injunction sought by otherwise, in grave abuse of its discretion. By the same
petitioner: token the court that issued such a preliminary relief may
recall or dissolve the writ as the circumstances may
1. No mayor's permit had been secured. While it is true that warrant. Petition denied.
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 FOR APRIL 11:
Environmental Management Bureau of the Department of
Environment and Natural Resources, it must be recognized 1. Armed Conflict and the Environment: Legal
that the mayor of a town has as much responsibility to Perspective [PLJ Vol. 81 Feb 2007, p. 377-389]
protect its inhabitants from pollution, and by virtue of his by Amado S. Tolentino Jr.
police power, he may deny the application for a permit to
operate a business or otherwise close the same unless Armed conflict or wars endanger or damage the
appropriate measures are taken to control and/or avoid environment in ways or forms such as the long-lasting
injury to the health of the residents of the community from chemical pollution on land, maritime, and atmospheric
the emissions in the operation of the business. pollution, despoliation of land by mines and other
dangerous objects, and threats to water supplies and
2. The Acting Mayor called the attention of petitioner to the other necessities of life.
pollution emitted by the fumes of its plant whose offensive
odor "not only pollute the air in the locality but also affect Scorched earth policy a method used in war where
the health of the residents in the area," so that petitioner fields are burned and wells are poisoned
was ordered to stop its operation until further orders.
Since the inception of modern warfare, multilateral
3. This action of the Acting Mayor was in response to the treaties and international organizations have attempted
complaint of the residents of Barangay Guyong, Sta. Maria, to create and implement legal provisions addressing the
Bulacan, directed to the Provincial Governor through growing problem of environmental damage resulting
channels. from armed conflict. Unfortunately, international
acceptance and enforcement of such provisions has
4. The closure order of the Acting Mayor was issued only arrived only in incremental responses to the horrors of
after an investigation was made by Marivic Guina who in previous wars.
her report observed that the fumes emitted by the plant
goes directly to the surrounding houses and that no proper This is an attempt at summarizing the international law
air pollution device has been installed. of war vis--vis the environment, at the same time
exposing the many deficiencies of the legal framework
5. Petitioner failed to produce a building permit from the addressing the environmental consequences of war.
municipality of Sta. Maria, but instead presented a building Emerging approaches culled from international
permit issued by an official of Makati on March 6, 1987. consultations are likewise covered to invite attention to
possibilities at preventing or minimizing damage to the
6. While petitioner was able to present a temporary permit environment in times of armed conflict.
to operate by the then National Pollution Control
Commission on December 15, 1987, the permit was good THE EXISTING LAW
only up to May 25, 1988. Petitioner had not exerted any
effort to extend or validate its permit much less to install From the standpoint of customary law:
any device to control the pollution and prevent any hazard
to the health of the residents of the community. - environmental protection during wartime may be
inferred from the general protection of the civilian
Court takes note of the plea of petitioner focusing on its population and property based on the fundamental
huge investment in this dollar-earning industry. It must be rule expressed in the 1868 Declaration of St.
stressed however, that concomitant with the need to Petersburg that military actions by states should be
promote investment and contribute to the growth of the limited to the objective of weakening military force
economy is the equally essential imperative of protecting of the enemy.
the health, nay the very lives of the people, from the
deleterious effect of the pollution of the environment. 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 2 major groups of international conventions which
protection are tempered with principles applied in protect the environment during wartime:
the law of war [principles of necessity,
proportionality, discrimination, and humanity] a. Geneva Conventions [Switzerland] a body of
treaties governing the behavior of belligerents and
ENVIRONMENTAL PRINCIPLES OF WAR provides varying degrees of protection of
PRINCIPLES combatants, prisoners of war, civilians and their
property, and cultural property
1. DUE DILIGENCE 1. NECESSITY Composed of:
- aka Good - w/n the act of war to be a. 1976 Convention on the Prohibition of
Neighborliness done is necessary in order Military and Any other Hostile Use of
- where the sovereign right to achieve a legitimate Environmental Modification Techniques
to exploit own resources military advantage [ENMOD] where the natural environment is
entails responsibility to deliberately manipulated to cause destruction
ensure that the activities do 2. PROPORTIONALITY - example: altering weather patterns,
not cause damage to other -w/n the advantage sought earthquake modification, ocean current
states or areas beyond by the necessary action modification to create tidal waves, river
jurisdiction. outweighs the anticipated diversion, destruction of a dam
collateral damage b. 1977 Additional Protocol [Protocol I] with
ENMOD, applies to international wars
2. PRECAUTIONARY 3. DISCRIMINATION - placed great emphasis on objects necessary to
PRINCIPLE - w/n the chosen weapon the survival of civilian population including
or tactic sufficiently civilian infrastructures such as power plants
- that in order to protect the discriminates between and water treatment facilities
environment, the military and civilian c. 1977 Additional Protocol to the Protection
precautionary approach objects; or between of Victims in Non International Armed
shall be applied: where combatants and non Conflicts applied to internal conflicts
there are threats of serious combatants
or irreversible damage, the b. Hague Convention [Netherlands] governed
lack of full scientific 4. HUMANITY weapons which sought to ban weapons that cause
certainty shall not be used - w/n the act causes unnecessary suffering pursuant to the right of
as a reason of postponing unnecessary suffering to Parties in armed conflict to choose methods or
cost-effective measures to the victim means of warfare is NOT unlimited.
prevent environmental Conventions:
degradation -w/n minimal force is 1. Convention IV Respectng the Laws and Customs of
used to achieve enemy War on Land with Annex of Regulations [1907]
submission 2. Protocol for the Prohibition of the Use in War of
Asphyxiating, Poisonous, or other Gases, and
Objective of ENVIRONMENTAL PRINCIPLES: to prevent Bacteriological Methods of Warfare [1925]
invention of new and more destructive weapons of war 3. Convention on the Prohibition on the Development,
thereby anticipating and preventing damage to the Production, Stockpiling of bacteriological
environment. (Biological) and Toxin Weapons and their
Destruction [1972]
Principle 24 of the UN Declaration on Environment and 4. Convention on the Prohibitions and Restrictions on
Development states: Warfare is inherently destructive of the Use of Certain Conventional Weapons which
sustainable development. States shall therefore respect may be Deemed to be Excessively Injurious or to
international law providing protection for the environment have Indiscriminate Effects (1980)
in times of armed conflict and cooperate in its further 5. Convention on the Prohibition on the Development,
development as necessary. Production, Stockpiling, and Use of Chemical
Weapons and on their Destruction [1993]
Martens Clause in cases not covered by specific - restricted weapons included:
provisions, civilians and combatants remain under the o exploding munitions
protection and authority of: o poisonous gas
1. principles of war [necessity/proportionality o chemical and biological weapons
/discrimination/humanity] o blinding lasers
2. principles of international law derived from o land mines
established customs - while most are designed to target humans, many
3. principles of humanity bring about environmental consequences [i.e.
4. dictates of public conscience

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 96


chemical contents can persist in the ecosystem and Yugoslavia under the present circumstances such use
disrupt the food chain.] raises very serious issues in international law.

1954 Hague Convention on the Protection of Cultural 3. GULF Wars US and coalition forces devastated Iraqi
Property in the Event of Armed Conflict sets up a factories and refineries, employing the same necessity and
comprehensive regime including the triple use of the justification, dropped millions of cluster bombs.
distinctive blue and white emblem for marking cultural
property under special protection [not been fully utilized in 4. Vietnam War show what could happen when defoliation
contrast with Red cross marking which affords protection to was not implemented to destroy forests per se but was a
areas marked as such] strategy used to eliminate cover for enemy fighters in jungle
areas [As per Amb. Tol: enemy used harmful gas to lure
1972 Convention for the Protection of the Worlds Vietnamese out of the jungles, only to fail because of the
Cultural and Natural Heritage imposes a duty to refrain elaborate tunnels used since the Vietnamese were hiding
from deliberate activities harming designated sites but does underground]
not create a regime to protect sites of biological diversity
import during armed conflict. The experience in many armed conflicts demonstrate the
NEED FOR SPECIAL PROTECTION OF THE CULTURAL
DEFICIENCIES AND CURRENT CHALLENGES ENVIRONMENT, such as monuments and other immovable
cultural property during hostilities. For this reason, there is a
Like the rest of international law, international provision in the 1954 Convention for the Protection of
humanitarian law has been slow in providing the Cultural Property in the Event of Armed Conflict for the
environment with a set of rules of law specific to it. Thus, marking of cultural property with a special emblem
the word environment does not even appear in the Geneva best example: VATICAN CITY which allows the military to
Conventions [1949] and Hague Conventions [1907] take all necessary measures in times of peace or during
conflict to protect it.
To be able to comply, it is necessary to clarify and interpret
the scope and context of some of those rules: Current deficiency with regard to the prohibition of hostile
1. what constitutes widespread, longterm, and severe military activities in natural sites or protected areas referring
damage to the environment? to natural or cultural areas of outstanding international
2. Defining with certainty the threshold of application significance from the point of view of ecology, history, art,
of the rules, the need for a clear decision regarding science, ethnology, anthropology, or natural beauty which
the applicability in wartime of provisions of include areas designated under international agreement or
international environmental law, and the inter-governmental programme which meets the criteria.
advisability of setting up a mechanism to sanction
breaches thereof. Listings of natural and cultural areas of outstanding
international significance exists under:
Cases in point: 1. 1971 Ramsar Convention on Wetlands of International
1. Kosovo conflict a fertilizer, oil refinery and Significance [Ramsar List]
petrochemical complex in Pancevo was deliberately and 2. 1972 Convention on the Protection of World Cultural
repeatedly bombed since NATO claimed that in addition to and Natural Heritage [World Heritage Sites]
making products for purely civilian consumption, the
complex supplied gasoline and other essential materials to - Their protection in times of armed conflict entails :
the Serb army and was therefore a legitimate military target a. the preparation of detailed maps
- the Danube River was also poisoned as a result of the b. elaboration of materials on international heritage
bombing of such industrial facilities protection during armed conflict for dissemination
c. formulation of guidelines for military manuals to make
2. Yugoslavia filed a case before the ICJ against NATO protected areas free of weapons
alleging breaches of: *** In order to afford the protection, the state involved in the
a. obligation NOT to cause considerable environmental exercise of territorial sovereignty SHOULD NOT maintain
damage military installations or military activities in the protected
b. obligation NOT to cause far-reaching health and areas.
environmental damage
c, obligation NOT to use prohibited weapons AN EMERGING NEW APPROACH
- however, upon objection of US and Spain, ICJ did not
acquire jurisdiction over the case. DRAFT CONVENTION on the Prohibition of Hostile
- NATO asserted that military advantage outweighed the Military Activities in Internationally Protected Areas
incidental human and environmental loss - an initiative of the International Council on Environmental
- ICJ opined [despite dismissing the case] the court is Law (ICEL) and International Union for the Conservation of
profoundly concerned with the use of force in 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 FINALLY [SEVENTH] - States should be encouraged to
take action under Chapter VII of the Charter, in response to enter into bilateral agreements on the establishment of
a situation of armed conflict shall include a list of the international parks and protected areas in transboundary
relevant internationally protected areas, thereby designated locations and for the joint protection of habitats, to enter
as non- target areas in which all hostile military activities into other bilateral and regional agreements to enhance
shall not be permitted during the armed conflict in question protection of such parks and protected areas in times of
armed conflicts.
Art. 3 Any internationally protected area, .. shall cease to
enjoy such protection when the State Party in whose Suggestions on the protection of the environment in
territory the area is situated: general in times of armed conflict:
a. maintains military installations of any kind within of 1. any new instrument concerning the protection of the
the area in question environment in times of armed conflict should be
b. decides to use the area in question to carry out any based on the concept that the environment per se
military activities during armed conflict should be protected

- Art 3 strives to make the area protected uninteresting for 2. further international and national measures to prevent
the military so as not to be targeted by military operations. harm to the environment should be developed. In
particular, 2 lists should be prepared:
Measures to increase the effectiveness of legal norms and a. a catalogue of human activities with hostile
proposals to ensure better development of environmental purposes injurious to the environment.
protection in times of armed conflict recommended: - list of hostile acts would include:
o intentional attacks on the environment
FIRST the lists of currently designated cultural and o manipulation of natural processes causing
natural sites [Ramsar List and World Heritage Sites; UN environmental damage
list of Parks and Protected Areas; UNESCO Biosphere o significant collateral damage to the
Reserve Systems] be reviewed to establish priorities, environment
taking into account the need for protection of relevant sites b. A registry of all protected areas should be
in times of armed conflict completed

SECOND - sufficiently detailed maps showing specifically 3. States should revise and update military procedures in
the location and extent of designated cultural and natural order to ensure protection of the environment to the
sites should be prepared for each area and provided to all fullest possible extent in times of armed conflict
military and civilian authorities worldwide. necessitates a reconsideration of traditional targets;
- model provisions for military manuals on the protection sites which although not inherently dangerous, are
of designated cultural and natural sites should also be essential to human health or the environment should
prepared NOT be military targets.

THIRD a distinctive emblem should be used for natural 4. UN to establish a system of emergency preparedness
site for identification and protection [blue and white to protect the environment in times of conflict
emblem designated for cultural sites must be extended to
natural sites as well] 5. Damage, actual or potential, and restoration should
include all reasonable measures to reinstate or restore
FOURTH the UN Secretary General, should address the damaged or destroyed components of the environment
need to identify and protect designated sites as soon as the equivalent to those impaired or lost. Compensation
threat to peace and security is determined, where such shall be required if restoration is not possible.
sites which could be affected must be communicated to
members of the Security Council and authorities in the MOST DIFFICULT ISSUE IN CONFRONTING THE
area concerned. COMMUNITY OF NATIONS IN REGARD TO PROTECTION OF
THE ENVIRONMENT IN TIMES OF ARMED CONFLICT
FIFTH - all designated cultural and natural sites should be How to impose the law against powerful nations [ US vs.
considered analogous to demilitarized zones [DMZ] Vietnam, Russia vs. Afghanistan, Allied forces in Gulf War
similar to those under Art. 60 of Protocol I and such sites and Kosovo]
should not be used for military activity ----------------------------------------------------------------------------
FOR APRIL 18:
SIXTH States should provide continuing education of 2. A World Tribunal to Protect the Environment?
senior military personnel and senior civilian officials Premises, Opportunities, Obstacles [PLJ Vol. 79, 4,
in the field of protection of designated cultural and natural February 2005] by: Amado S. Tolentino Jr.
sites in times of armed conflict

A WORLD TRIBUNAL TO PROTECT THE ENVIRONMENT?

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 98


PREMISES, OPPORTUNITIES, OBSTACLES ideally positioned to guarantee balanced management of the
(Amado S. Tolentino, Jr.) environmental problems in the context of international law.
These problems are objectively international, and, in some
The development of international environmental law has cases, are even outside the control of States. IN FACT, even
been accelerated by the emergence of disputes due to States themselves cannot control manmade environmental
numerous physical, economic, social and political factors. phenomena such as greenhouse effect, the ozone hole, and
These are: transborder pollution. These phenomena require
international cooperation, common decisions, and new
Danger of climate change, ozone layer reduction, trans- rules and procedures for the application of real sanctions.
border air pollution, waste disposal in bodies of water and Only new organizations can confront the environment at the
on land, transport of hazardous waste, location of global level, providing new approaches to control
dangerous industries (esp. in undeveloped countries), phenomena, to prevent new sources of pollution, to
desertification, deforestation, drought, destruction of plant equitably manage common resources, and to apply
and animal genetic resources, genetically modified sanctions, where necessary. The principle of universality
organisms, nuclear accidents, accidents at sea, and the should apply since problems of a universal nature should be
exploitation of the seabed and the Antarctic. addressed at the same level.

The international community was appalled by a series of
environmental disasters. Some of the notable ones are: Some argue that an international tribunal dealing with
environmental issues would create a threat to state
a) 1967 Torrey Canyon oil spill off Cornwall; sovereignty. While it is true that states are unwilling to
b) 1976 Seveso chemical plant accident in Italy; discuss the principle of territorial sovereignty, it is also true
c) 1984 Bhopal chemical plant accident in India; that the environment is an issue that cannot be solved
d) 1988 Sandoz chemical plant accident in Switzerland; within the well-defined space of an individual States
e) 1978 Amoco Cadiz oil spill off Brest; sovereignty. In fact, in a very broad sense, a States territory
f) 1986 Chernobyl nuclear plant accident in Russia; is the issue as the quality of its natural and human resources
g) 1989 Bahia Paraiso oil spill in the Antarctic; are concerned. Therefore, the principle of territorial
h) 1989 Exxon Valdez oil spill off Alaska; and sovereignty us not refuted, but must adapt to new demands.
i) 1991 and 2004 burning of oil wells in the Gulf Area, Otherwise, territorial sovereignty will be left without any
among others. true meaning as environmental threats respect no States
borders. States would have already lost their sovereignty, as
Common characteristics of these environmental risks are: a single State is unable to defend its ecology on its own.
globality, interdependence, indivisibility, the lack of
transparency and access to information, dearth of Thus, we should strive towards new concept of national
participation, and access to justice. sovereignty, which stresses both a States Constitutional
independence and mutual restrictions on political
As early as 1988, a committee was formed in Rome, now independence made necessary by the international
known as the international Court of the Environment communitys requirements. The 1972 Stockholm
Foundation (ICEF), as a private initiative to examine the Declaration on the Environment and the 1982 World
subject. The committee came out with a proposal on the Charter for Nature provide examples of recognition of an
creation of an International Court of Environment (ICE) -- obligation of a sovereign state towards its own people in
endowed with an exclusive, specialized and international relation to permanent sovereignty over natural resources.
competence in the field of environment and empowered to
implement international law to guarantee a right of access PRIORITY ISSUES
to individuals to protect their human right to the
environment -- as a new and permanent body separate from Two points vital to the creation of an International Court of
the International Court of Justice in Hague. The ICE could the environment:
undertake advisory, investigative and conciliatory a.) the individual as subject of international law; and
functions. b.) the place of the human right to the environment in
international law.
PRINCIPLE OF UNIVERSALITY VIS--VIS TERRITORIAL Currently the question of whether an individual can be a
SOVEREIGNTY subject of international law has been met with negative
response, but its clear that this position will change under
The enforcement of environmental regulations depends on the influence of numerous, interdependent factors. An
the sovereignty of States and different national regulations, example of these factors is the enormous increase in world
and these are not subject to a compulsory higher authority. population, which is already not manageable in the current
state. Other possible factors include the bureaucratic
The current structure of international law is characterized structure of international society because migratory
by the principle that States do not recognize authorities as movements are explosive and spontaneous, the limited
higher than their own. The principle does not seem to be 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 The first identification of the human right to a healthy
mind, how can international law remain oblivious to the environment appeared in the United Nations Declaration on
individual this 21st century? the Human Environment, or the Stockholm Declaration. Its
Principle 1 states:
Society as a whole will have to strike new balances and find
common basis for the respect of human right, including the Man has the fundamental right to freedom, equality and
right to the environment that would place the individual adequate conditions of life, in an environment of a quality
rather than States at the forefront. Right now, supranational that permits a life of dignity and well-being, and he bears a
tribunals like the European Court of Human Rights (ECHR) solemn responsibility to protect and improve the
is Strasbourg provide judicial redress to individuals. environment of present and future generations.
Through its 1994 landmark decision in the Lopez-Ostra
case, this Court opened the door for the protection of Some legal experts are in quandary regarding the content,
human rights against nearly all sources of environmental effect and enforcement of such a human right. There are
pollution. Briefly, some members of the Gregoria Lopez- those who regard the right to a healthy environment as an
Ostra family suffered from nausea, vomiting, allergic independent right, which imposes obligations upon
reactions, bronchitis and anorexia due to emissions from a individual states and the world at large. Others view the
waste treatment plant built by the government in Lorea, in same part of universally recognized rules which dictate that
Murcia, Spain, just twelve meters from the Lopez-Ostra States are not allowed to contract out of, or jus cogens
house. She filed with the Administrative Division of the norms, per the Vienna Convention on the Law of Treaties
Murcia Audencia Territorial, the Supreme Court and the and international customary law on the assumption that the
Constitutional Court, to no avail. right has been accepted by the World community. Still
others regard environmental rights as belonging to the grey
Afterwards, she submitted a complaint to ECHR, alleging area between a political guideline and a rule of law, simply
inaction by the local authorities violated her rights under stated: a law in the making.
the European Convention by the Local authorities violated
her rights under the European Convention on Human From the human perspective, the human right to a healthy
Rights, namely protection of private life and family life and environment could be viewed as a portion of the rights to
claimed compensation. The court unanimously held that the life and to dignity. For indigenous people, it means the right
pollution from the plant and Spains inaction violated the to a living. It could also be regarded as the means to combat
Conventions article 8. It explained that States have the environmental deterioration as far as it threatens human
positive duty to secure rights under this article and a life.
negative duty to stop official interference. The progressive
decision provides a most comprehensive individual right to Noticeably, the right to a healthy environment is not
environmental protection and stimulates the discussion on mentioned in the Universal Declaration on Human Rights.
the existence of a human right to a decent environment. However, it should be borne in mind that the Stockholm
Declaration is considered an authentic interpretation of the
Structurally, international law will recognize a more notion of human rights embodied in the UN Charter. Thus, it
articulate group of legal subjects: individuals, state provides the minimum standard for the moral duty of
communities, regional communities such as European States. Furthermore, the UN Commission on Human Rights
Union, and new international organizations. From the point has put it on record that:
of view of norms, it can readily be anticipated that the
number of international conventions will grow to meet new State parties to the International Covenant on Economic,
problems such as those posed by the environment. Above Social and Cultural Rights, reorganized the right of everyone
all, the contents of these conventions will impose on states to the enjoyment of the highest attainable standard of
an increasing duty of service towards the international physical and metal health and agreed, for the purpose, to
community and will allow States less recourse to claims of take steps necessary for the improvement of all aspects of
sovereignty. environmental and industrial health.

The questions asked is whether international law A very interesting interpretation is the one drawn from the
recognizes the right to the environmental as a fundamental preamble of the 1982 World Charter for Nature:
right of every person. To answer this question, a careful
examination is required of customary law, treaty norms and Every form of life is unique, warranting respect regardless
constitutional norms. The constitutional norms in many of its worth to man
states already recognize the individuals right to the This statement has led to the issue of awarding rights to
environment, and provide indirect evidence of communis subjects other than man, and has granted legal standing to
opinio. What is even more significant is that in these States, natural entities such as rivers and mountains, and the right
it captured attention at the grassroots level of even the of species to survive.
smallest communities.
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 As proposed, the following parties may appear before the
Oposa v Factoran where due recognition was given to the International Court of the environment:
standing of minor citizens for the environmental right as an a) Individuals;
inter-generational right. The Supreme Court said that while b) Non-governmental organizations and environmental
right to a balanced and healthful ecology is guaranteed by associations;
the Philippine Constitution, it need not be actually written c) States;
in the fundamental law of the land as it is assumed from the d) Supranational organizations such as the European
inception of humankind. If it is so written, it is because of Union; and
the: e) International organizations under the UN and the
individual organs of the UN.
well founded fear of the framers that unless the right to a
balanced and healthful ecology and to health are mandated Of relevance is the fact that, to date, the International Court
as state policies by the Constitution itself the day would of Justice has declined to submit decisions by UN organs to
not be too far when all else would be lost not only for the judicial review. International organizations are not
present generation but also for those to come generations accountable in law and do not exercise powered
which stand to inherit nothing but parched earth incapable independently of their member states. How can the World
of sustaining life. Bank, for example, be held legally accountable for it
participation in an oil and pipeline project were to result in
It must further be recognized that the environment now environmental harm? In connection, take note than in
receives a complex legal treatment throughout the world at recent times, international financing institutions such as the
various levels. Environmental law attracts great attention International Monetary Fund and regional development
because it can be found in all organs that have the banks have become the object of ire of nongovernmental
responsibility for the environmental protection, as can be organizations (NGOs), and even some government arms,
shown by one established fact: the rights-duties of due to development projects perceived as destructive of the
environmental protection are exercised by existing environment.
institutions, in particular, by lawmaking bodies, executives
and the judiciary in individual states, although with varying At present, international organizations, environmental
zeal and effectiveness. associations, NGOs and potentially affected individuals are
not granted direct access to the ICJ. Only States have direct
Individuals are not considered the mere beneficiaries but access and not the individuals who are the direct victims of
rather active proponents of environmental protection. This environmental destruction. While it is commonly known
explains the existence of procedural rules which confer that States themselves may commit or tolerate
upon individuals the right-duty to information, participation environmental crimes, it is advisable and realistic to work
and standing in legal proceedings. Environmental law and towards strengthening international judicial guarantees for
the right to the environment are intimately connected effectively protecting the rights of the individual to a
because, as world-renowned French environmental law healthy and undisturbed environment.
Professor Alexander Kiss observed, The first is the
guarantee for the exercise of the latter. The international community must be aware that a proper
international court exists where they can make their claims
The environment as a human right also finds an indirect apart from a higher authority responsible for its
legal basis in conventions, instruments, written accords, and management, supervision and control. That proposed
in the written record of meetings on the environment higher authority can exist in the form of the proposed
between states and other international subjects. This International Environment Agency. Further, the evolution of
written normative framework embraces well over 199 the concept of environmental crime, the widening of liability
international instruments on the environment. law for environmental damages, and the application of the
Polluter Pays Principle could make a new court necessary.
Lastly, the classic customary rule announced in the Trail Supplementary arguments are the jurisdictional deficiencies
Smelter case and Corfu Channel found its place in in different state systems, the social and ethical need for
international law at the 1972 UN Stockholm Conference on environmental justice and the educational role of such an
the Environment. In particular 21 says: institution. Last but not the least, an international court for
the environment ould be able to focus special attention on
States have the sovereign right to exploit their own areas outside the jurisdiction of individual states. For
resources pursuant to their own environmental policies, example, such a body could concentrate on the urgent
and the responsibility to ensure that activities within their problems of protecting the global commons.
jurisdiction and control do not cause damage to the
environment of other States or of areas beyond their Critics may point out that the ICJ established a Chamber for
national jurisdiction. environmental matters in 1993. Nevertheless, it is
unrealistic to expect that tribunal to extend legal access to
III. ACCESS TO ENVIRONMENTAL JUSTICE 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 international conservation obligations did not apply to the
expose themselves to legal proceeding. fishing activities complained of and that Canada had acted
illegally in arresting the vessel.
Another institution, the Permanent Court of Arbitration
(PCA), is also mentioned as a possibility in resolving The question here is whether the dispute involves
environmental disputes. But as the jurisdiction of the PCA is international resources law, international fisheries law,
not compulsory, its competence can be derived only from an international environmental law, or international law
agreement to arbitrate, or an agreement submitting an related to the conservation of biological diversity. Spain
existing dispute to arbitration. presented the case to ICJ for infringement of its rights as a
flag state, an aspect that was also part of the overall dispute.
III. ARGUMENTS AGAINST THE CREATION OF AN ICJ ruled it had no jurisdiction to consider the merits of the
INTERNATIONAL COURT OF THE ENVIRONMENT case. Nevertheless, it cannot be denied that the above areas
of law would have influenced a decision had the ICJ
The proliferation of international adjudicatory bodies leads assumed jurisdiction. Assuming that such a case is
to the enumeration of arguments against the creation of a submitted before an international environmental court,
world court on the environment. At the global level, the ICJ, what is the assurance that is has sufficient expertise to
the Appellate Body of the World Trade Organization, and cover all these other aspects of international law? Would it
the Tribunal of the Law of the Sea have handed down thus not be better if existing tribunals instead be provided
decisions in disputes related to protection of the with sufficient expertise in international environmental
environment. Other forums include the ICJ Environment law?
Chamber and the Permanent Court of Arbitrations
Environment Facility. Arbitral procedures are also available There is the argument that the proliferation of international
to settle disputes like the arbitral tribunal which may be set courts and tribunals risks fragmentation in the international
up under article 27(3)(a) of the Conventions on Biological legal system. For instance, the ICJ, tin Reservations to the
Diversity and special bodies such as the United Nations Convention on Genocide, held that a State that makes a
Compensation Commission which may rule on cases declaration containing a reservation to which another State
involving international environmental law. Likewise, party to the Genocide Convention objects can be considered
regional forums such as RCHR, the Inter-American Court of a non party to that Convention vis--vis the objecting state,
Human Rights, and the Court of Justice of the European thereby preventing the declaration from having a legal
Community have decided on cases relating to international effect. The ECHR, however, ruled in the celebrated case of
environmental law. Loizidou v. Turkey that the declaration by Turkey on the
Courts jurisdiction, which contained a reservation
It can thus be said that existing courts and tribunals are, or regarding the non-application of the Convention to the
may be made well-equipped, to consider cases on northern part of Cyprus, was valid with respect to the
environmental issues. Moreover, disputes concerning jurisdiction of the court but void with regard to the
international environmental law also involve other aspects reservation. The ECHR awarded Greek-Cypriot refugee
of international law. For instance, multilateral Titana Loizidou USD 1.3M, which the Turks agreed to pay,
environmental agreements often provide for trade-related for obstructing Loizidous access to her home by its
instruments to be implemented with special consideration occupation in the north. Turkey may have to pay millions
for the interests or rights of particular groups such as more in similar cases.
indigenous people. A dispute that may arise under an
environmental treaty may also be defined in terms of a Some practitioners and academicians propose frequent
dispute under other treaties, such as the UN Convention on consultations among the members of the different tribunals
the Law of the Sea. So what kind of international to allay fears about fragmentation of international law. The
environmental dispute would be handled by an ICJ should likewise develop an active judicial body not only
international court for the environment when several other of the UN, but of the entire international legal system as
areas of international law such as international water law, well. Moreover, multiplicity of international forums permits
human rights law, fisheries law, trade law, and international a degree of experimentation and exploration which can lead
law related to the use of force are involved? to improvements through integration of positive resuls in
the body of international law.
Such a situation is illustrated by the Fisheries Jurisdiction
case (Spain v. Canada), a suit brought by Spain against Examples of experimentation and exploration that could
Canada before the ICJ. Canada arrested a Spanish fishing introduce changes in the international legal system include,
vessel on the high seas based on the argument that the first, the non-compliance or compliance procedure
vessel was illegally fishing in that area contrary to Canadian established or in the process of being established within
law and international fisheries conservation obligations multilateral environmental agreements. The Kyoto Protocol
applicable to the European Community. Canada further on Climate Change goes a step further by proposing to
alleged that marine biological diversity was being establish an enforcement branch that could take decisions
threatened by Spains fishing activities. The European with legally binding consequences as part of the non-
Community and Spain, on the other hand, argued that the compliance procedure for the Protocol.

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 102
stigma of enforcement
Second, the Permanent Court of Arbitrations Environment and adverse publicity
Facility could result in increased confidence in the PCA as a Management
venue for settling disputes involving international - jobs and training - lack of internal
environmental issues. One notes the PCAs rules on dedicated to compliance accountability for
international arbitration where only one party is a State, - bonuses or salary compliance
and similar rules for disputes involving intergovernmental increase based on - lack of management
organizations and States and international organizations environmental systems for compliance
and private parties. compliance - lack of compliance training
for personnel
Finally, the establishment of the Inspection Panel by the Technological
World Bank and similar units by other development banks - availability of affordable - inability to meet
such as the Asian Development Bank and the Inter- technology requirements due to lack
American Development Bank could translate factual of appropriate technology
relationships that exist between individuals and groups and - technologies that are
an international body into a legal relationship and enable unreliable or difficult to
them to hold the organization accountable. The operate
International Monetary Fund will likewise be establishing
an Independent Evaluation Office. b. MEA Negotiation

--------------------------------------------------------------------------- - Bilateral treaties are negotiated at ministerial or
government-to-government level
SUPPLEMENTING SOURCES BY AMB. TOLENTINO
- Multilateral Treaties are often negotiated at diplomatic
a. PROBLEM AREAS, ISSUES AND CONCERNS IN THE
conferences convened by:
IMPLEMENTATION OF ENVIRONMENTAL LAWS

*** CONSIDER FOR FINALS: THINK OF MEANS OF HOW TO
1. an international organization (UN) or one of its
SOLVE SUCH ENVIRONMENTAL CONCERNS
agencies (UNEP)

2. at invitation by a state
Barriers to Compliance
Factors Motivating
and Factors Encouraging
Compliance
Non-compliance
Depositary Secretariat
Economic
- desire to avoid a penalty - lack of funds - notes signatures - day-to-day administration
- desire to avoid future - greed/desire to achieve - receives instruments of of the treaty regime
liability competitive advantage ratification, acceptance - receive reports from CP on
- desire to save money by - compelling demands for or accession implementation and
doing more cost-efficient resources - maintains list of all the infringement
and environmentally status of CP and - convening annual
sound practices signatories meetings or special
Social / Moral - amendments made to the meetings on specific issues
- moral and social values -lack of social respect for the treaty or review meetings
for environmental law
equality - lack of public support for
- social respect for the law environmental concerns c. MAJOR GLOBAL ENVIRONMENTAL INSTRUMENTS
- clear Governmental will - lack of governmental [EXCLUDING MARINE ENVIRONMENT]
to enforce environmental willingness to enforce
laws 1971 - RAMSAR Convention on Wetlands of International
Importance [Ramsar Convention]
1972 - Convention Concernin the Protection of the World
Personal Cultural and Natural Heritage [World Heritage
- positive personal - fear of change Convention]
relationships between - inertia 1972 - Declaration of the United Nations Conference on the
program personnel and - ignorance about Human Environment
facility managers requirement 1973 - Convention on International Trade in Endangered
- desire on the part of the - ignorance about how to Species of Wild Flora and Fauna [CITES]
facility manager to avoid meet the requirement 1979 - Convention on the Conservation of Migratory
legal process Species of Wild Animals [Bonn Convention]
- desire to avoid jail, the

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 103
1985 - Convention for the Protection of the Ozone Layer ~conciliatory in style and not penal in style ( in envi law,
and 1987 Montreal Protocol [Ozone Convention and there is harm to the environment as there is harm to people,
Montreal Protection] contrary to penal principle of an eye for an eye)
1989 - Basel Convention on the Control of Transboundary ~use tripartite team for mediation (one representative from
Movements of Hazardous Wastes and their Disposal the gov't, the factory, and the community)
[Basel Convention] ~severe warnings, temporary suspension, revocation
1992 - Rio Declaration on the Environment and
Development MALAYSIA
1992 - Agenda 21 [UNCED, 1992] ~provision on environmental audit (they audit themselves
1992 - Convention on Biological Diversity [Biodiversity like what environmental procedure is taken and etc.)
Convention] ~multiple increase; fines (more discretion is given to the
1992 - United Nations Framework Convention on Climate court)
Change [Climate Change Convention]
2001 - Stockholm Convention on Persistent Organic -----------------------------------------------------------------------------
Pollutants [POPs] CONSIDER THE FF QUESTIONS FOR FINALS:
1. Provide Laws where PH provides for implementation
d. Biosphere Reserves Linkages with Select Multilateral of RAMSAR Convention
Environmental Agreements 2. PRINCIPLE OF PRIOR INFORMED CONSENT
3. What is a protocol?
4. What is the role of Arbitration in peaceful way of
settling disputes;
Wetlands 1971 5. What is EEZ?;
Ramsar
Convention 6. Principle of common heritage of mankind
7. Management of High Seas re UNCLOS [areas beyond
Desertiication
national jurisdiction/areas]
1994 World Heritage 8. Relate IPRA with CBD;
Convention to 1972
combat Convention 9. Distinguish between National Cultural Treasure and
desertiication Important Cultural Properties
10. PRECAUTIONARY PRINCIPLE
Biosphere
Reserves & 11. Convention on Biodiversity vs. Intellectual Property
Multilateral Rights
Environmental
Agreements 12. Exhaustion of Administrative Remedies in
Environmental Law suits
Migratory
Climate Change Species of Wild 13. What are national legislations passed to implement
1972 Rio Animals 1979 Environmental MEA/Treaties
Convention Bonn
Convention 14. ASEAN ENVI LAW re: Transboundary Haze, Disaster
Mgt, Cooperation in Mekong River
1992 Biological
Diversity
Convention`` ---------------End----------------
UIOGD




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:

Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 104