COVERAGE STABILIZING greenhouse gas concentrations in the atmosphere at a

level that would prevent interference with climate system.

 Since the UNFCCC entered into force, the parties have been meeting
1. Introduction to Environmental Law
annually in Conferences of the Parties (COP) to assess progress in
2. UNFCC and Kyoto Protocol
dealing with climate change, and beginning in the mid-1990s, to
3. Climate Change Act
4. People’s Survival Fund Act negotiate the Kyoto Protocol to establish legally binding obligations for
5. Renewable Energy Act developed countries to reduce their greenhouse gas emissions.
6. Biofuels Act Under the Convention, governments:
7. Rainwater Collection Facilities and Spring Water Collection
 gather and share information on greenhouse gas emissions,
Law
national policies and best practices;
8. National Disaster Risk Reduction Management Coordinating
 launch national strategies for addressing greenhouse gas
Council
9. Prospects for a Law to Protect the Rights of Internally emissions and adapting to expected impacts, including the
Displaced Persons provision of financial and technological support to developing
10. Seeking freshwater in time of climate change crisis countries ;
11. Pope Francis vis-à-vis earth stewards  cooperate in preparing for adaptation to the impacts of climate
12. Building resilience: adaption to climate change change

INTRODUCTION
ENVIRONMENTAL LAW - has been defined as that set of legal rules
addressed specifically to activities which potentially affect the quality of the
environment, whether natural or man-made. It consists of international and
national laws relating to the protection and enforcement of the environment
and encompasses both “hard law” (i.e. international treaties and national
legislations) and “soft law” (i.e. guidelines, standards, etc.). Its elements are
derived from sectoral subject areas (e.g., air, marine and inland water, soil,
energy, biological diversity) and functional tasks (e.g. environmental impact
assessment, natural resources accounting, environmental auditing, etc.)
[Craig, 2002).
UNFCC AND KYOTO PROTOCOL
KEY ELEMENT: parties should act to protect the climate system on the basis
of EQUALITY and in accordance with their COMMON BUT
DIFFERENTIATED responsibilities and respective capabilities.
The principle of COMMON but DIFFERENTIATED responsibilities includes 2
elements:
1 Common responsibilities of parties to protect the environment, parts
of it, at the national, regional, and global levels
2 Need to take into account the different circumstances, particularly
each party’s contribution to the problem and its ability to prevent,
reduce, and control threat.
*** Common: everyone is in the same position (ex. Everyone uses
machinery) *** Differentiated: developed countries have more responsibility
because they deal with the activities in large scale (ex. More machineries for
factories)
 Another element underpinning the UNFCCC is the polluter pays
principle. This means that the party responsible for producing pollution
is responsible for paying for the damage done to the natural
environment.

 International Environmental Treaty that was produced at the UN

Conference on Environment and Development. It is aimed at

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 1

KYOTO PROTOCOL
 Sets emission targets for developed countries which are binding under
international law
 Countries must meet their targets primarily through national measures
RA 9729 – CLIMATE CHANGE ACT
Section 1. Title. – This Act shall be known as the “Climate Change Act of
2009”.
Section 2. Declaration of Policy. – It is the policy of the State to afford full
protection and the advancement of the right of the people to a healthful
ecology in accord with the rhythm and harmony of nature. In this light, the
State has adopted the Philippine Agenda 21 framework which espouses
sustainable development, to fulfill human needs while maintaining the quality
of the natural environment for current and future generations.
Towards this end, the State adopts the principle of protecting the climate
system for the benefit of humankind, on the basis of climate justice or
common but differentiated responsibilities and the Precautionary Principle to
guide decision-making in climate risk management. As a party to the United
Nations Framework Convention on Climate Change, the State adopts the
ultimate objective of the Convention which is the stabilization of greenhouse
gas concentrations in the atmosphere at a level that would prevent
dangerous anthropogenic interference with the climate system which should
be achieved within a time frame sufficient to allow ecosystems to adapt
naturally to climate change, to ensure that food production is not threatened
and to enable economic development to proceed in a sustainable manner.
As a party to the Hyogo Framework for Action, the State likewise adopts the
strategic goals in order to build national and local resilience to climate
change-related disasters.
Recognizing the vulnerability of the Philippine archipelago and its local
communities, particularly the poor, women, and children, to potential
dangerous consequences of climate change such as rising seas, changing
landscapes, increasing frequency and/or severity of droughts, fires, floods
and storms, climate-related illnesses and diseases, damage to ecosystems,
biodiversity loss that affect the country’s environment, culture, and economy,
the State shall cooperate with the global community in the resolution of
Arcilla | Mendoza - Updated Notes
climate change issues, including disaster risk reduction. It shall be the policy
of the State to enjoin the participation of national and local governments,
businesses, nongovernment organizations, local communities and the public
to prevent and reduce the adverse impacts of climate change and, at the
same time, maximize the benefits of climate change. It shall also be the
policy of the State to incorporate a gender-sensitive, pro-children and pro-
poor perspective in all climate change and renewable energy efforts, plans
and programs. In view thereof, the State shall strengthen, integrate,
consolidate and institutionalize government initiatives to achieve
coordination in the implementation of plans and programs to address climate
change in the context of sustainable development.
Further recognizing that climate change and disaster risk reduction are
closely interrelated and effective disaster risk reduction will enhance climate
change adaptive capacity, the State shall integrate disaster risk reduction
into climate change programs and initiatives.
Cognizant of the need to ensure that national and subnational government
policies, plans, programs and projects are founded upon sound
environmental considerations and the principle of sustainable development,
it is hereby declared the policy of the State to systematically integrate the
concept of climate change in various phases of policy formulation,
development plans, poverty reduction strategies and other development
tools and techniques by all agencies and instrumentalities of the
government.
Section 3. Definition of Terms. – For purposes of this Act, the following shall
have the corresponding meanings:
a. “Adaptation” refers to the adjustment in natural or human systems in
response to actual or expected climatic stimuli or their effects, which
moderates harm or exploits beneficial opportunities.
b. “Adaptive capacity” refers to the ability of ecological, social or
economic systems to adjust to climate change including climate
variability and extremes, to moderate or offset potential damages and to
take advantage of associated opportunities with changes in climate or to
cope with the consequences thereof.
c. “Climate Change” refers to a change in climate that can be identified
by changes in the mean and/or variability of its properties and that
Environmental Law | Summer 2017 2
 persists for an extended period typically decades or longer, whether due
to natural variability or as a result of human activity.
d. “Climate Variability” refers to the variations in the average state and in
other statistics of the climate on all temporal and spatial scales beyond
that of individual weather events.
e. “Climate Risk” refers to the product of climate and related hazards
working over the vulnerability of human and natural ecosystems.
f. “Disaster” refers to a serious disruption of the functioning of a
community or a society involving widespread human, material,
economic or environmental losses and impacts which exceed the ability
of the affected community or society to cope using its own resources.
g. “Disaster risk reduction” refers to the concept and practice of
reducing disaster risks through systematic efforts to analyze and
manage the causal factors of disasters, including through reduced
exposure to hazards, lessened vulnerability of people and property, wise
management of land and the environment, and improved preparedness
for adverse events.
h. “Gender mainstreaming” refers to the strategy for making women’s as
well as men’s concerns and experiences an integral dimension of the
design, implementation, monitoring, and evaluation of policies and
programs in all political, economic, and societal spheres so that women
and men benefit equally and inequality is not perpetuated. It is the
process of assessing the implications for women and men of any
planned action, including legislation, policies, or programs in all areas
and at all levels.
i. “Global Warming” refers to the increase in the average temperature of
the Earth’s near-surface air and oceans that is associated with the
increased concentration of greenhouse gases in the atmosphere.
j. “Greenhouse effect” refers to the process by which the absorption of
infrared radiation by the atmosphere warms the Earth.
k. Greenhouse gases (GHG)” refers to constituents of the atmosphere
that contribute to the greenhouse effect including, but not limited to,
carbon dioxide, methane, nitrous oxide, hydrofluorocarbons,
perfluorocarbons and sulfur hexafluoride.
l. “Mainstreaming” refers to the integration of policies and measures that
address climate change into development planning and sectoral
decision-making.
m. “Mitigation” in the context of climate change, refers to human
intervention to address anthropogenic emissions by sources and
Arcilla | Mendoza - Updated Notes
removals by sinks of all GHG, including ozonedepleting substances and
their substitutes.
n. “Mitigation potential” shall refer to the scale of GHG reductions that
could be made, relative to emission baselines, for a given level of
carbon price (expressed in cost per unit of carbon dioxide equivalent
emissions avoided or reduced).
o. “Sea level rise” refers to an increase in sea level which may be
influenced by factors like global warming through expansion of sea
water as the oceans warm and melting of ice over land and local factors
such as land subsidence.
p. “Vulnerability” refers to the degree to which a system is susceptible to,
or unable to cope with, adverse effects of climate change, including
climate variability and extremes. Vulnerability is a function of the
character, magnitude, and rate of climate change and variation to which
a system is exposed, its sensitivity, and its adaptive capacity.
Section 4. Creation of the Climate Change Commission. – There is hereby
established a Climate Change Commission, hereinafter referred to as the
Commission. The Commission shall be an independent and autonomous
body and shall have the same status as that of a national government
agency. It shall be attached to the Office of the President.
The Commission shall be the sole policy-making body of the government
which shall be tasked to coordinate, monitor and evaluate the programs and
action plans of the government relating to climate change pursuant to the
provisions of this Act.
The Commission shall be organized within sixty (60) days from the effectivity
of this Act.
RA 10174 - PEOPLE’S SURVIVAL FUND (PSF)
In July 2011, the Climate Change Act of 2009 was amended to create the
PSF. The law creating the PSF is embodied in RA 10174 otherwise known
as the “Act Establishing the People’s Survival Fund to Provide Long-term
Finance Streams to Enable the Government to Effectively Address the
Problem of Climate Change”. The fund is established to finance adaptation
programs and projects planned under the NFSCC. An appropriation of one
billion pesos (PhP 1,000,000,000) under the General Appropriation Acts
served as its opening balance which can be augmented by donations,
endowments, grants and contributions. The said fund is being managed by
Environmental Law | Summer 2017 3
PSF Board lodged under the Commission. The CCC, on the other hand,
evaluates and reviews project proposals for funding and recommends
approval of the proposal to the PSF Board.
The fund is used to support adaptation activities of local governments and
communities. Fund allocation are prioritized based on projects that has, but
not limited to the following:
1 level of risk and vulnerability to climate change,
2 participation from the affected communities in the design of the
project,
3 poverty reduction potential,
4 cost effectiveness and sustainability,
5 responsiveness to gender-differentiated vulnerabilities, and
6 availability of climate change action plan
“SEC. 2. Declaration of Policy. – It is the policy of the State to afford full
protection and the advancement of the right of the people to a healthful
ecology in accord with the rhythm and harmony of nature. In this light, the
State has adopted the Philippine Agenda 21 framework which espouses
sustainable development, to fulfill human needs while maintaining the quality
of the natural environment for current and future generations.
Towards this end, the State adopts the principle of protecting the climate
system for the benefit of humankind, on the basis of climate justice or
common but differentiated responsibilities and the Precautionary Principle to
guide decision-making in climate risk management. As a party to the United
Nations Framework Convention on Climate Change (UNFCCC), the State
adopts the ultimate objective of the Convention which is the stabilization of
greenhouse gas concentrations in the atmosphere at a level that would
prevent dangerous anthropogenic interference with the climate system which
should be achieved within a time frame sufficient to allow ecosystems to
adapt naturally to climate change, to ensure that food production is not
threatened and to enable economic development to proceed in a sustainable
manner. As a party to the Hyogo Framework for Action, the State likewise
adopts the strategic goals in order to build national and local resilience to
climate change-related disasters.
Recognizing the vulnerability of the Philippine archipelago and its local
communities, particularly the poor, women, and children, to potential
dangerous consequences of climate change and global warming such as
increasing temperatures, rising seas, changing landscapes, increasing
frequency and/or severity of droughts, fire, floods and storms, climate-
Arcilla | Mendoza - Updated Notes
related illnesses and diseases, damage to ecosystems, biodiversity loss that
affect the country’s environment, culture, and economy, the State shall
cooperate with the global community in the resolution of climate change
issues, including disaster risk reduction. It shall be the policy of the State to
enjoin the participation of national and local governments, businesses,
nongovernment organizations, local communities and the public to prevent
and reduce the adverse impacts of climate change and, at the same time,
maximize the potential benefits of climate change. It shall also be the policy
of the State to incorporate a gender sensitive, pro-children and pro-poor
perspective in all climate change and renewable energy efforts, plans and
programs. In view thereof, the State shall strengthen, integrate, consolidate
and institutionalize government initiatives to achieve coordination in the
implementation of plans and programs to address climate change in the
contest of sustainable development.
Further recognizing that climate change and disaster risk reduction and
management are closely interrelated and effective disaster risk reduction
and management will enhance adaptive capacity to climate change, climate
variability and extreme climate events, the State shall integrate disaster risk
reduction into climate change programs and initiatives.
Cognizant of the need to ensure that national and sub-national government
policies, plans, programs and projects are founded upon sound
environmental considerations and the principle of sustainable development,
it is hereby declared the policy of the State to systematically integrate the
concept of climate change in various phases of policy formulation,
development plans, poverty reduction strategies and other development
tools and techniques by all agencies and instrumentalities of the
government.”
“SEC. 4. Creation of the Climate Change Commission. – There is hereby
established a Climate Change Commission, hereinafter referred to as the
Commission.
The Commission shall be an independent and autonomous body and shall
have the same status as that of a national government agency. It shall be
attached to the Office of the President. The Commission shall be the lead
policy-making body of the government, which shall be tasked to coordinate,
monitor and evaluate the programs and action plans of the government in
order to ensure the mainstreaming of climate change into the national,
sectoral and local development plans and programs pursuant to the
provisions of this Act.
Environmental Law | Summer 2017 4

“SEC. 5. Composition of the Commission. – The Commission shall be
composed of the President, of the Republic of the Philippines who shall
serve as the Chairperson, and three (3) Commissioners to be appointed by
the President, one of whom shall be appointed as Vice Chairperson of the
Commission.
“SEC. 18. Creation of the People’s Survival Fund. – A People’s Survival
Fund (PSF) is hereby established as a special fund in the National Treasury
for the financing of adaptation programs and projects based on the National
Strategic Framework.” (according to Amb. Tolentino this is merely suppletory
to other climate change programs)
“SEC. 19. Sources of the Fund One billion pesos (P1,000,000,000.00) shall
be appropriated under the General Appropriations Act (GAA) as opening
balance of the PSF… balance of the PSF including the amount appropriated
in the GAA which shall form part of the fund shall not revert to the general
fund
“SEC. 21. The People’s Survival Fund Board. – There is hereby created a
People’s Survival Fund Board, hereinafter referred to as the PSF Board,
which shall be lodged under the Commission
“SEC. 24. Prioritization of Fund Allocation. – The Commission shall develop
criteria to prioritize use of the fund based on, but not. limited to, the
following:
a. Level of risk and vulnerability to climate change;
b. Participation of affected communities in the design of the project;
c. Poverty reduction potential;
d. Cost effectiveness and attainability of the proposal;
e. Identification of potential co-benefits extending beyond LGU
territory;
f. Maximization of multi-sectoral or cross-sectoral benefits;
g. Responsiveness to gender-differentiated vulnerabilities; and
h. Availability of climate change adaptation action plan.”
“SEC. 25. Community Participation. – To ensure transparency and
participation of vulnerable and marginalized groups in the adaptation
projects to be supported by the fund, community representatives and/or
Arcilla | Mendoza - Updated Notes
NGO counterparts may participate as observers in the project identification,
monitoring and evaluation process of the Commission.”
RA 9513 – RENEWABLE ENERGY ACT
Introduction - Energy sector is the leading emitter of greenhouse gases
(GHGs) in the Philippines (REECS, 2010)[3]. In 2000, there is a leap of 39%
from 1994 emission record of 50,038 CO2e Gigagrams on this sector.
Emissions mostly come from the combustion of imported fuels and other
activities related to the production of energy, such as coal mining, oil and
gas exploration, production and processing (EMB, 2011).
Republic Act No. 9513 or the ‘Renewable Energy Act of 2008’ was codified in
December 2008 to affirm the government’s commitment to accelerate the
utilization of renewable energy (RE) resources in the country. This is to
effectively reduce harmful emissions and achieve economic development
while protecting health and environment. Renewable energy is an essential
part of the country’s low emission development strategy and is vital to
addressing challenges of climate change, energy security, and access to
energy.
Under this law, the State is mandated to accelerate exploration and
development of RE resources to achieve energy self-reliance; increase
utilization of RE by institutionalizing the development of national and local
capabilities; encourage the development and utilization of RE resources as
tools to effectively prevent or reduce harmful emissions; and establish
necessary infrastructure and mechanisms to carry out the stipulated
mandates in the Act. The law suggests RE resources that could be
alternatively utilized such as solar, wind, hydro, biomass, geothermal and
ocean energy.
Renewable energy policy mechanisms
RE development is encouraged on both on-grid and off-grid system. In an
on-grid system, several policy mechanisms were promoted which include
Renewable Portfolio Standard, Feed-in-Tariff System, Net-Metering for RE,
Green Energy Option, among others. In an off-grid system, concerned
parties were mandated to source a minimum percentage of its total annual
generation from RE resources in the area concerned.
Renewable Portfolio Standard RPS is a policy which places an obligation on
electric power industry participants such as generators, distribution utilities,
Environmental Law | Summer 2017 5
or suppliers to source or produce a specified fraction of their electricity from
eligible RE resources. The purpose of which is to contribute on the growth of
the renewable energy industry by diversifying energy supply and to help
address environmental concerns of the country by reducing GHG emission.
Feed-in Tariff (FIT) System is a scheme that involves an obligation on the
part of electric power industry participants to source electricity from RE
generation at a guaranteed fixed price for a given period of time. This
system is adopted to accelerate the development of emerging RE resources
through fixed tariff mechanism.
Green Energy Program is a mechanism established to provide end-users or
households the option to choose RE resources as their source of energy.
Net Metering for RE is a consumer-based renewable energy incentive
scheme wherein electric power generated by an end-user (such as house or
office with photovoltaic system) from an eligible on-site RE generating facility
and delivered to the local distribution grid may be used to offset electric
energy provided by the distribution utility to the end-user. Adoption of Waste-
to-Energy Technologies that will encourage conversion of biodegradable
materials such as, but not limited to, animal manure, agricultural waste, into
useful energy through processes of anaerobic digestion, fermentation, and
gasification, among others.
Incentives and privileges for renewable energy development
Incentives and privileges were stipulated for RE development initiatives.
Incentives are provided to RE projects and programs; hybrid and co-
generation system; RE commercialization; and farmers engaged in the
plantation of biomass resources. To avail these incentives and privileges, it is
encouraged that parties be registered and accredited by Department of
Energy and Board of Investments.
For all the entities involved in RE development, fiscal incentives include,
among others, tax exemption for importation of inputs, components, parts,
and materials and income tax holidays. Other incentives and privileges
stipulated include tax rebate for purchase of RE components; financial
assistance program; exemption from the universal charge or charge
imposed for the recovery of the stranded cost; cash incentive of RE
developers for missionary electrification; payment of transmission charges;
and priority and must dispatch for intermittent RE resource.
Arcilla | Mendoza - Updated Notes
Regulatory framework
The Department of Energy (DOE) is mandated to lead the implementation of
the Act. As the lead agency, DOE is mandated, among others, to perform
necessary actions for the execution of enumerated RE policy mechanisms
and formulate and to implement National Renewable Energy Program or
NREP.
Also, embodied in the Act are the creations of National Renewable Energy
Board or NREB (Section 27 of the Act) and Renewable Energy Management
Bureau or REMB (Section 32 of the Act). NREB[5] act as a collegial body
tasked to recommend policies to DOE and monitor the implementation of the
Act. In addition, the Board recommends specific actions to support the
activities of DOE especially the NREP. REMB, on the other hand, is in the
forefront of effective implementation of the provisions of the Act. As such, the
Bureau developed and formulated NREP to accelerate the development,
utilization, and commercialization of RE resources and technologies, among
others.
National renewable energy program
National Renewable Energy program or NREP, launched on June 2011,
outlines the policy framework enshrined in RA 9513. It sets the strategic
building blocks that will help the country achieve the goals set forth in the
Renewable Energy Act. It indicated interim targets for the delivery of energy
sources within the timeframe of 2011 and 2030. In principle, it provided the
basis for national and local renewable energy planning that will identify
specific actions and period upon which outcomes will be generated.
The Program ultimately seeks to increase RE-based capacity to an
estimated 15,304.3 Megawatt (MW) by year 2030, almost triple the 2010
level of 5,438 MW (Table 1). This sum is a consolidation of targets on each
individual sectoral sub-programs namely: geothermal, hydropower, biomass,
wind, solar, and ocean.
Each sectoral sub-programs follows a roadmap that indicates milestones
targeted over a covered period. The realization of these targets depends on
the implementation of several activities that include:
a. RE industry services;
b. RE resource development;
Environmental Law | Summer 2017 6
 c. RE research, development and demonstration; and
d. RE technology support.
Government share
The government has the share on the proceeds derived by RE Developers
which is equal, in general, to one percent (1%) of the RE developers gross
income (except indigenous geothermal energy which is 1.5% of their gross
income). No government share is collected from proceeds of Biomass
resources development and of micro-scale projects for communal purpose
and non-commercial operations which are not greater than one hundred
kilowatts. The accumulated government share will be distributed to national
and local government by 60% and 40% respectively.
Renewable energy trust fund
Renewable Energy Trust Fund or RETF was established, in pursuant to
Section 28 of the Act, to enhance the development and greater utilization of
RE. The fund is utilized through grants, loans, equity investments,
counterpart fund or such other financial arrangements necessary for the
attainment of the activities stipulated in the Act. The fund is used to, among
others, finance research and development works engaged in RE and
support the operation or RE resources to improve their competitiveness in
the market. The RETF is mostly funded from fees and penalties collected
and net annual income of Philippine owned and controlled corporation.
Conclusion
Energy sector is one among the contributors of GHGs in the country.
Through the enactment of the Renewable Energy Act of 2008, it is hoped
that energy self-sufficiency will be achieved and dependence on GHG
emitter energy sources will be reduced. With the policy mechanisms laid
down, incentives and privileges stipulated, regulatory framework established,
financial support appropriated, among others, acceleration of utilization of
RE resources and participation from stakeholders, more importantly from the
private sectors, are expected.
Arcilla | Mendoza - Updated Notes
RA 9367 – BIOFUEL ACT
The act mandates the government to reduce the country’s dependence on
imported fuels, to phase out the use of harmful gasoline additives, to rather
use biofuels, and to create an incentive scheme. With the creation of a
National Biofuel Board (NBB), it shall monitor the Biofuel Program and
ensure the sufficient supply of sugar to meet the domestic demands
Implementing agency:
 Main agency: Department of Energy
 Supporting agency/agencies: Department of Environment and Natural
Resources (DENR), Department of Labor and Employment (DOLE),
Department of Finance (DOF), Department of Science and Technology
(DOST), Department of Trade and Industry (DTI), Departent of
Agriculture (DOA), National Biofuel Board, Bureau of Internal Revenue
(BIR), the Bureau of Customs (BOC), the Philippine Council for Industry
and Energy Research and Development (PCIERD), and local
government units (LGUs)
 law was legislated to develop and utilize renewable energy, to mitigate
toxic and greenhouse gas effects, to decrease the country’s
dependence on imported fuel and to increase rural employment and
income.
 It mandated the incorporation of 1% biodiesel in diesel and 5%
bioethanol in gasoline by 2009.
 DECLARATION OF POLICY: ….reduce dependence on imported fuels
with due regard to the protection of public health, the environment, and
natural ecosystems consistent with the country’s sustainable economic
growth that would expand opportunities for livelihood by mandating the
use of biofuels. as a measure to: a) develop and utilize indigenous
renewable and sustainably-sourced clean energy sources to reduce
dependence on imported oil; b) mitigate toxic and greenhouse gas
(GHG) emissions; c) increase rural employment and income; and d)
ensure the availability of alternative and renewable clean energy without
any detriment to the natural ecosystem, biodiversity and food reserves
of the country.
Environmental Law | Summer 2017 7
DEFINITION OF TERMS
 Bioethanol - shall refer to ethanol (C&Ow) produced
 Biodiesel - shall refer to Fatty Acid Methyl Ester (FAME) or mono-alkyl
esters derived from vegetable oils or animal fats and other biomass-
derived oils that shall be technically proven and approved by the DOE
for use in diesel engines, with quality specifications in accordance with
the Philippine National Standards (PNS); 3
 Bioethmol Fuel - shall refer to hydrous or anhydrous bioethanol suitably
denatured for use as motor fuel, with quality specifications in
accordance with the PNS;
 Biofuel - shall refer to bioethanol and biodiesel and other fuels made
from biomass and primarily used for motive, thermal and power
generation, with quality specifications in accordance with the PNS;
 Biomass - shall refer to any organic matter, particularly cellulosic or
ligno-cellulosic matter, which is available on a renewable or recurring
basis, including trees, crops and associated residues, plant fiber, poultry
litter and other animal wastes, industrial wastes, and the biodegradable
component of solid waste;
SEC. 4. Phasing Out of the Use of Harmful Gasoline Additives and/or
Oxygenates. - Within six months from the effectivity of this Act
 Incentive Scheme: specific tax, VAT, exempt from wastewater charges,
financial assistance
 Primary Agency : Department of Energy
SEC. 12. Prohibited Acts. - The following acts shall be prohibited
• Diversion of biofuels, whether locally produced or imported, to
purposes other than those envisioned in this Act;
• Sale of biofuel-blended gasoline or diesel that fails to comply with
the minimum biofuel-blend by volume in violation of the requirement
under Section 5 of this Act;
• Dishibution, sale and use of automotive fuel containing harmful
additives such as, but not limited to, MTBE at such concentration
exceeding the limits to be determined by the NBB
• Noncompliance with the established guidelines of the PNS and
DOE adopted for the implementation of this Act; and
• False labeling of gasoline, diesel, biofuels and biofuel blended
gasoline and diesel.
Arcilla | Mendoza - Updated Notes
RA 6716 – RAINWATER COLLECTION FACILITIES AND
SPRING WATER COLLECTION LAW
Section 1. Declaration of Policy. — It is hereby declared to be the national
policy to promote the quality of life of every Filipino through the provision of
adequate social service including, but not limited to, the provision of
adequate potable water supply made conveniently available to every
barangay in the country.
Sec. 2. Water Wells, Rainwater Collectors and Spring Development. — The
Department of Public Works and Highways (DPWH) shall, within thirty (30)
days after the approval of this Act, undertake construction of water wells,
rainwater collectors, development of springs and rehabilitation of existing
water wells in all barangays in the Philippines in such number as may be
needed and feasible, taking into consideration the population, hydrologic
conditions, costs of project development and operations, financial and
economic factors and institutional arrangements: provided, however, that the
DPWH shall deduct not more than five percent (5%) for supervision,
engineering, technical and other overhead expenses or fees: provided,
further, that each barangay in the country shall have at least one additional
potable water source.
Sec. 3. Operation and Maintenance. — In order to ensure the proper use of
the water facilities herein provided, a Barangay Waterworks and Sanitation
Association, herein referred to as BWSA, shall be formed and organized for
the purpose of maintaining the water facilities: provided, that pending the
organization of the BWSA, the water facilities shall be operated and
maintained by the barangay council.
The BWSA shall be composed of the member-consumers who shall
administer, operate and maintain the completed water facility and shall be
registered with the corresponding municipal or city council. The BWSA may
impose such minimal charges as may be necessary for the maintenance and
normal repairs of said facility. Nothing herein shall prevent any resident of
the locality from using the water facility under the same terms and conditions
as the member-consumers of the BWSA.
Organizing and training the recipient communities in the operation and
maintenance of water systems shall be conducted by the DPWH prior to the
Environmental Law | Summer 2017 8
turnover of such facilities to the BWSA subject to the guidelines to be
formulated by the Department.
Sec. 5. Funding. — The sum needed for the implementation of the
construction, rehabilitation and repair program shall be taken from any
available appropriations for the Department of Public Works and Highways in
the General Appropriations Act for 1989: provided, that funds for this
purpose shall also be included in the General Appropriations Act for 1990
and 1991: provided, further, that the total program shall be completed not
later than June 30, 1991, and: provided, finally, that there shall be equitable
and proportionate appropriations of funds annually for this purpose for all
provinces, cities and municipalities. In addition, a portion of financial grants
and concessional loans extended to the Philippines by foreign governments
and multilateral agencies every year, the amount to be determined by the
President, shall be allocated by the Department of Budget and Management
to augment the appropriations of the Department of Public Works and
Highways until one hundred thousand (100,000) water wells, rainwater
collectors, and springs are completed as envisioned in this Act.
RA 10121 – NATIONAL DISASTER RISK REDUCTION
MANAGEMENT COORDINATING COUNCIL (NDRRMC)
A working group of various government, non-government, civil sector, and
private sector organizations of the Philippines. It is under the Department of
National Defense. The Council is responsible for ensuring the protection and
welfare of the people during disasters/emergencies.
Section 5. National Disaster Risk Reduction and Management Council. - The
present National Disaster Coordinating Council or NDCC shall henceforth be
known as the National Disaster Risk Reduction and Management Council,
hereinafter referred to as the NDRRMC or the National Council.
The National Council shall be headed by the Secretary of the Department of
National Defense (DND) as Chairperson with the Secretary of the
Department of the Interior and Local Government (DILG) as Vice
Chairperson for Disaster Preparedness, the Secretary of the Department of
Social
Arcilla | Mendoza - Updated Notes
Welfare and Development (DSWD) as Vice Chairperson for Disaster
Response, the Secretary of the Department of Science and Technology
(DOST) as Vice Chairperson for Disaster Prevention and Mitigation, and the
Director-General of the National Economic and Development Authority
(NEDA) as Vice Chairperson for Disaster Rehabilitation and Recovery.
Overview of the councils power:
Section 6. Powers and Functions of the NDRRMC. - The National Council,
being empowered with policy-making, coordination, integration, supervision,
monitoring and evaluation functions
Section 7. Authority of the NDRRMC Chairperson. - The Chairperson of the
NDRRMC may call upon other instrumentalities or entities of the government
and nongovernment and civic organizations for assistance In terms of the
use of their facilities and resources for the protection and preservation of life
and properties in the whole range of disaster risk reduction and
management. This authority includes the power to call on the reserve force
as defined in Republic Act No. 7077 to assist in relief and rescue during
disasters or calamities.
Section 8. The Office of Civil Defense. - The Office of Civil Defense (OCD)
shall have the primary mission of administering a comprehensive national
civil defense and disaster risk reduction and management program by
providing leadership in the continuous development of strategic and
systematic approaches as well as measures to reduce the vulnerabilities and
risks to hazards and manage the consequences of disasters.
Section 13. Accreditation, Mobilization, and Protection of Disaster Volunteers
and National Service Reserve Corps, CSOs and the Private Sector. - The
government agencies, CSOs, private sector and LGUs may mobilize
individuals or organized volunteers to augment their respective personnel
complement and logistical requirements in the delivery of disaster risk
reduction programs and activities. The agencies, CSOs, private sector, and
LGUs concerned shall take full responsibility for the enhancement, welfare
and protection of volunteers, and shall submit the list of volunteers to the
OCD, through the LDRRMOs, for accreditation and inclusion in the database
of community disaster volunteers
Environmental Law | Summer 2017 9
Section 16. Declaration of State of Calamity. - The National Council shall
recommend to the President of the Philippines the declaration of a cluster of
barangays, municipalities, cities, provinces, and regions under a state of
calamity, and the lifting thereof, based on the criteria set by the National
Council. The President's declaration may warrant international humanitarian
assistance as deemed necessary.
The declaration and lifting of the state of calamity may also be issued by the
local sanggunian, upon the recommendation of the LDRRMC, based on the
results of the damage assessment and needs analysis.
PROSPECTS FOR A LAW TO PROTECT THE RIGHTS OF
INTERNALLY DISPLACED PERSONS (IN RELATION TO
MARAWI INCIDENT)
The Bedan Review – Ambassador Tolentino (2015)
Developing and protecting rights, as part of the efforts to safeguard the
environment attain sustainable development and alleviate poverty and
inequalities, is a current concern in many parts of the world. This was bought
about by the grand-scale and unprecedented phenomenon of environmental
refugees as on account of natural disasters and unnatural ones like armed
conflicts.
Refugees are people who seek asylum for fear of political, racial or religious
persecution. They leave their homes because of war or civil strife. This
traditional notion of refugees, however, leaves out the new and growing
phenomenon of people becoming environmental refugees to countries not
their own due to natural occurrences like earthquakes, tsunamis, volcanic
eruptions, floods, landslides, etc. when people seek refuge within their own
countries as environmental refugees, they are commonly referred to as
internally displaced persons. (In some Pacific islands states, people prefer
reference to them as climate migrants.)
To be more specific, it should be noted that neither the UN Framework
Convention on Climate Change nor its Kyoto Protocol includes any
provisions concerning specific assistance for those who will be directly
affected by the effects of climate change. The Convention Relating to the
Arcilla | Mendoza - Updated Notes
Status of Refugees (Refugee Convention), on the other hand, applies to
those prosecuted for reasons of race, religion, nationality, or membership in
a particular racial or political group. As the Refugee Convention is not
applicable to climate-change-displaced-people at the moment, those
persons deserve to get legal identity through the legal system of each
country.
The number of internally displaced persons (IDPs) in the Philippines had
tremendously increased during the last few years on account of conflicts and
natural disasters. Early this year, it was reported that 7 million Filipinos were
displaced by calamities as a consequences of, among others, typhoons
Glenda, Henry, Luis and Mario (internationally known as Rammasun,
Matmo, Kalmagi and Fung-wong) which caused floods, landslides and
monsoon rains that reached the whole of Luzon; the magnitude 7.2
earthquake that struck the islands of Bohol and part of Cebu; and Typhoon
Yolanda (Haiyan) in November 2013 which claimed lives, property and
crops. It was also reported that the number of IDPs affected by the on-going
conflict between the Armed Forces of the Philippines and Muslim
secessionist groups reached 500,000. Add to that, the IDPs – mostly Muslim
resident of Zamboanga including Badjaos, indigenous people dependent on
the sea for livelihood, who fled their communities when armed men from a
faction of the Moro National Liberation Front – went into Zamboanga City in
an attempt to occupy the place. The most frequent IDP-related reports
concern some 500 displaced Maanobo children suffering from ailments
including shelter in Davao City after military operations against the New
People’s Army in Davao de Norte.
Among basic human rights, the right to life and dignity – intrinsically tied to
the right to an ecologically and humanly viable environment – is lately most
written about, discussed and dissected vis-à-vis climate justice and the
future generations of environmental refugees and internally displaced
persons. Compared to their counterparts who crossed internationally
recognized borders, IDPs do not enjoy adequate protection and assistance
and instead experience suffering, neglect and deprivation. This is so, despite
the duty of the government to utilize its resources and provide measures to
address the situation.
Aside from the rights to life, liberty and property (Sec. 5, Art III) and a healthy
environment (Sec. 16, Art II) enshrined in the 1987 Philippine Constitution,
Environmental Law | Summer 2017 10
the fundamental law embodies as one of its state policies – “to value the
dignity of every human life and to guarantee full respect for human rights”
(Sec. 11, Art II). This policy extends to environmental refugees and internally
displaced persons as a consequence of natural calamities and armed
conflicts. In furtherance thereof, the Constitution mandated the Philippine
Commission on Human Rights (CHR) to provide “appropriate legal
measures for the protection of human rights of all persons within the
Philippines … and provide for preventive measure and legal aid services to
the underprivileged whose human rights have been violated or need
protection” (Sec. 18, Art XIII).
Towards the end, the Commission on Human Rights and the UN High
Commissioner for Refugees forged an agreement to strengthen the
monitoring of IDPs in the Philippines as early as 2011. At the same time, bills
were filed before the 15th Congress of the Philippines (legislature) to protect
the rights of internally displaced persons.
Indeed, the Philippine government as well as its international partners like
the UN High Commissioner for Refugees, UN Commission on Human
Rights, International Committee of the Red Cross and the Red Crescent,
among many others, made significant to address the protection and
assistance needs of IDPs.
Problems, Issues and Concerns about Internally Displaces Persons
In Southeast Asia, the Philippines ranks third after Myanmar and Indonesia
as a country with the most number of IDPs and among the top forty (40)
countries all over the world where internal displaced is considered as a
significant phenomenon.
When people are displaced, they are vulnerable and susceptible of being
human rights violation victims. They are deprived of their ordinary and
normal environment, and their ability to meet their most basic need is in
peril.
In the recent natural disasters which hit the Philippines, humanitarian aid
including relief goods distribution was a big problem. Many goods did not
reach the intended beneficiaries. There were allegations of hoarding and
even stealing for profit. It also took time for humanitarian aid groups to
access the areas that were extensively damaged by the disaster.
Arcilla | Mendoza - Updated Notes
Displaced people’s rights to basic needs should be paramount and
safeguarded. The state should exert effort to likewise ensure that all
necessary assistance to humanitarian aid givers is provided. Even the
restrictions on delivery of aid such as excessive delays to obtain the permits
needed must be locked into by the government.
Discrimination is another problem encountered by the IDPs. In the Bohol
earthquake and the storm surge in Leyte, there were reports that victims
were subjected to unequal treatment ascribed to political factors. It was
claimed that those who did not vote for the incumbent official were not given
the relief goods and assistance they need. In the Mindanao region where the
major cause of displacement is armed conflict between the government and
non-state armed groups, reports of discrimination were committed on
account of religious beliefs.
Efforts to eradicate ill-treatment and discrimination ascribed to political and
religious factors must be looked into and remedied.
Protection of rights of women and children must be given priority by the state
because they experience heightened vulnerability to sexual and gender-
bases violence, especially in evacuation camps and in their makeshift
shelters. In Leyte, there were reports of rape and sexual abuse against
women and children days after the storm surge. Child trafficking is another
serious risk when people are displaced; children who have lost their families
are vulnerable to this kind of human rights violations. The state should
secure and intensity their security against sexual predators and human
traffickers.
Important too is the protection of property of IDPs. In Tacloban City (Leyte),
there are families who found their homes looted of contents upon their
return. One who went to the Tacloban airport to collect relief goods found his
car stolen from his garage along with other valuables. When disasters strike,
government authorities should afford and increase security as soon as
possible and military visibility must be present to prevent loss of what was
left of victims.
IDPs should likewise be protected from the combined impact of conflicts and
natural standards. A natural hazard often forces IDPs to fee again either
from the place where they had taken refuge from conflict or from the places
Environmental Law | Summer 2017 11
to which they had returned or relocated. In the Philippines, those living in
poorly equipped evacuation camps and makeshift shelter in Central
Mindanao were exposed to flooding than their counterparts in the general
population. Natural hazards and environmental degradation can also create
apprehensions over scarce resources.
Adopted but Vetoed Proposals for IDP Rights Protection
The 15th Philippine Congress (lawmaking body) (2010-2013) adopted three
legislations on internal displacement in 2012. House Bill 00239, entitled “An
Act Protecting the Rights of Internally Displaced Persons Providing for
Violations thereof and for other purposes,” was a response to the need to
enact a law that adopts human rights-based approach to disaster risk
reduction and management to ensure the continued protection of those who
are internally displaced in a situation of natural or manmade disasters. In
consonance with human rights treaties conventions like the Universal
Declaration on Human Rights and the UN Guiding Principles on Internal
Displacement, the approved bill sets forth the rights and guarantees for
resettlement, return and reintegration of IDPs in all phases of displacement.
The bill likewise recognizes the responsibility of national authorities to
provide protection and assume accountability in cases of violations of rights
of IDPs.
On the other hand, Senate Bill 00530 of the 15 th Congress entitled
“Improving Philippine Commitment to Human Rights Promotion and
Protection by Providing the Necessary Mechanisms for the Prevention of the
Occurrence and Protection from the Adverse Effects of Internal Displaced
and for other purposes” is a measure that seeks to localize the guiding
principles on internal displacement set forth by the United Nations. In this
proposal which was adopted, the government is mandated to establish a
mechanism to support victims of internal displacement in armed conflict, to
be able that the rights and lives of citizens shall not be placed at risk.
The 15th Philippine Congress likewise approves “An Act Protecting the
Rights of Internally Displaces Persons, Providing Penalties for Violations
thereof and for other purposes” or the “Rights of Internally Displaces
Persons Act of 2013.” In accordance with the principles of the 1987
Philippine Constitution and the standards set by international humanitarian
law and human rights laws, international treaties and conventions adhered to
Arcilla | Mendoza - Updated Notes
by the Philippines, this measure seeks to promote and protect the rights of
IDPs in situations of armed conflict, generalized violence, tribal or clan wars,
violations of human rights, aggressive implementation of development
projects, and natural and man-made disasters.
However, on 23 May 2013, President Benigno Aquino III vetoed the
consolidated enrolled bill (Senate Bill 3317 and House Bill 5627) entitles “An
Act Protecting the Rights of Internally Displaces Persons, Providing
Penalties therefor and for other purposes” stating that while the objectives of
the bill on IDPs is laudable, some of the provisions are unconstitutional on
the following grounds: (1) The bill’s provision on damages unlawfully
differentiated between displacement caused by security agents of the State
and other entities; (2) The power granted to the Commission on Human
Rights (CHR) to determine damages incurred against IDPs and facilitate the
award of such claims is a power that belongs exclusively to the Judiciary; (3)
The additional powers it grants to the CHR exceed those which the
Constitution intended to give as it was conceived as an investigative and
recommendatory agency; and (4) The provision allowing individuals to claim
financial assistance and compensation from the government and goes
against the non-suability of the stat principle.
“An Act Providing for the Rights of Internally Displaced Persons” – A
law in the making
Pending before the 16th Congress of the Philippines is a re-filed bill which
covers the rights of internally displaced persons in situations of natural or
manmade disasters like armed conflicts. Formulation of the bill was
preceded by effectivity of some international legal instruments of which the
Philippines is a party. Among them are: the Hyogo Framework of Action
(HFA) and the ASEAN Agreement on Disaster Management and Emergency
Response (AADMER). The HFA outlines five priorities for action and offers
guiding principles and practical means for achieving resilience. Its goal is to
substantially reduce disaster losses by 2015 by building the resilience of
countries and communities disasters. It means reducing loss of lives and
social, economic and environmental assets when disasters strike. On the
other hand, AADMER is expected to provide a framework for the
development of operational procedures to respond collectively and
expeditiously to disasters. The agreement has provisions for movement of
relief assistance, expedited customs and immigration clearance, etc. The
Environmental Law | Summer 2017 12
utilization of military and civilian personnel in disaster relief and the
establishment of a center to coordinate regional disaster response are part
of the Agreement. It has provision also for the setting up of an Asean
disaster relief fund as well as simulation exercise to test emergency
response on a regular basis.
It should be known and noted that on account of the recognized vulnerability
of the Philippine Archipelago to the natural calamities, a Climate Change
Law (Republic Act 10175) was enacted in 2009 with a mandate to address
the vulnerability of local communities and adopts a gender sensitive, pro-
children and pro-poor perspective. It also emphasizes the participation of all
stakeholders including local government units, NGOs and others in
responding to the adverse impacts of climate change. Likewise, it seeks to
integrate disaster risk reduction into climate change programs and initiatives.
Additionally, due to the increasing yearly occurrences commonly
earthquakes, strong typhoons, floods, landslides/mudslides, a National
Disaster Risk Reduction Management Coordinating Council (RA 10121) was
created in 2010 to ensure that unforeseen disastrous events would be
responded too quickly especially by local government prepared with their
contingency plans. It adopts a disaster risk reduction and management
approach that is holistic, comprehensive, integrated and proactive in
lessening the socio-economic and environmental impact of disasters. It also
aims at mainstreaming disaster risk reduction and climate change in national
and local plans and development processes. RA 10121 was amended by the
People’s Survival Fund Act (RA 10174) (2012) which aims to provide direct
access funding to local government units and communities for their own
planned adaptation activities. This can be in the form of provision of
information and medicines against vector-borne diseases triggered by
climate change such as dengue and malaria; forecasting and early warning
systems; support for contingency planning in the most vulnerable areas; and
guarantee for farmers’ risk insurance needs.
The proposed law for IPDs provides for their protection during and after
displacement as well as their resettlement, relocation and re-integration. It
defined “internal displacement” as the “forced or obliged movement of a
person or groups of persons to flee or leave their homes or places of
habitual residence without crossing an internationally recognized border as a
result of or in order to avoid the effects of armed conflict… or other natural or
human made disaster. The proposal sees to it that displacement should not
Arcilla | Mendoza - Updated Notes
be carried out in a manner that violates the rights to life, liberty, dignity and
security of those affected. It contains terms on protection against crimes,
discriminatory practices and curtailment of human freedoms during the
period of displacement; extension of humanitarian assistance and provision
of support during the return, resettlement or local integration. The draft law is
also about provision and access to basic necessities; guarantees freedom of
movement, family unity; health and education; property and possessions;
and protection from all forms of harm and abuse. Likewise being considered
is integration of the needs of pregnant women, mothers and newborns into
the emergency and relief responses.
In addition, IDPs shall not be discriminated against in the enjoyment of the
following rights;
a. to enjoy freedom of thought, conscience, religion or belief, opinion
and expression;
b. to seek freely opportunities for employment and to participate in
economic activities;
c. to vote and participate in the governmental and public affairs
including the right to have access to the means necessary to
exercise these rights; and
d. to communicate in a language they understand. Other rights
contemplated by the proposed law includes, but is not limited to,
the following: the right to appropriate clothing; the right to essential
medicine and sanitation; the right of persons with disabilities; the
right to family reunification; the freedom to choose residence; the
right to seek freely opportunities for employment.
If approved by Congress and hopefully signed into law by the President, the
law to protect the rights of IDPs will be the first in Asia and a model for
countries facing similar issues of displacement and violation of people’s
rights as the government is unable to serve the general welfare of its
constituents. Human rights law clearly imposes obligations on States that
are relevant to the enjoyment of a safe, clean, healthy and sustainable
environment. In pursuance thereof, States should adopt legal and
institutional frameworks protective of those rights. This was recognized by
the UN Human Rights Council in its March 2014 resolution on human rights
and the environment.
Environmental Law | Summer 2017 13
It was recently announced that the Philippine national government is crafting
a disaster preparedness and risk reduction roadmap that includes a storm
surge advisory protocol and flood advisory system in highly vulnerable areas
in the country as well as a disaster response master plan. From local
government units’ Disaster Risk Reduction and Management Councils,
recent reports reveal a variety of disaster preparedness and mitigation plans
encompassing rehabilitation, recovery and quick response ranging from
purchase of motor boats, rubber boats, life-saver equipment, rescue vehicles
including ambulance and other rescue needs to clearing and upgrading or
drainage, canals, river banks to acquisition of lands for the construction of
evacuation centers and relocation sites. Noted are also plans to acquire
early warning devices such as rain gauge and flood early warning device,
stepping up of tree planting activities as part of the disaster mitigation
programs.
Overall, the foregoing would be in furtherance of the promotion of rights of
IDPs. All this, however, needs effective implementation of the series of
climate change-related Philippine policies, legislations and directives aimed
at reducing disaster risk, improving clean energy production and adapting to
shifts in climate change. Concomitant therewith is the budget/funds for
enhancing geo-hazard maps to include multiple hazards, early warning
systems and other infrastructure to improve the capacity to reduce risk.
Truly, it is most advantageous if concrete steps are taken towards
management of weather and geological-related risks; minimize vulnerability
to people and improve preparedness capacity of institutions and
communities; and build resilience s that there will be lesser need for rescue,
evacuation and rehabilitation and improve capacity to get back to one’s feet
immediately.
Conclusion
The growing population of internally displaced persons alarms both the local
and global community. States and international organizations must work
hand in hand in order to address the matter of protection and assistance
needs of IDPs.
Activities for the IDPs like what the International Committee for the Red
Cross (ICRD) does must be supported. These include, but is not limited to,
the following:
Arcilla | Mendoza - Updated Notes
1 interventions to persuade authorities and armed groups to fulfill
their obligations to protect civilian populations;
2 efforts to restore family links;
3 distribution of relief materials such as food, water and essential
household items, seed and farming tools;
4 first aid and surgery, health and health care programs
5 livelihood support programs such as microeconomic initiatives,
agricultural and livestock support. As articulated by ICRD,
“promoting self-reliance to the affected communities is the main aim
to ensure that their basic needs are met and programs that are
helpful to avoid displacement are not and should not be necessary,
and improve the capacity of the host to provide for the IDP needs.”
SEEKING FRESHWATER IN TIMES OF CLIMATE CHANGE
CRISIS
AT the dawn of the 21st century, it was touted that 2001 marks the first year
of the century of water. The idea, however, was overtaken by dramatic
changes in climate throughout the world that many thought climate is the
biggest problem and nothing else matters. Thus, in the meantime, the
looming global water shortage got far less attention than global warming.
According to the United Nations, one reason water receives less attention is
that unlike global warming, there is no such thing as a global water crisis.
Instead, there are a series of regional predicaments in a world where the
distribution of water is so lopsided that 60 percent of it is found in just nine
countries including Brazil, the US and Canada. As a chemical compound,
nothing could be simpler than water. Two atoms of hydrogen joined to one of
oxygen equals water. And, there is no shortage of water on planet Earth,
which is covered by water but more than 97 percent is salty. The shortage is
of fresh water to grow crops, drinking and sanitation water for households
and to cool power plants.
In the past, military conflict over water rights was a grave national security
issue between some countries: Ethiopia and Egypt over the Nile; Botswana
and Namibia over the Okavango; Israel, Palestine and Jordan over the
Jordan River, to mention a few.
Environmental Law | Summer 2017 14
Water from rivers in those countries cross political boundaries with the
concomitant boundary issue. Be that as it may, the situation created a
natural interdependence between countries in sharing the water resource,
drawing people to work together on the water availability aspect even when
countries were officially at war.
Perhaps, “water wars” were averted at that time due to the changing
perception of the concept of permanent sovereignty over natural resources
in favor of functional sovereignty or equitable utilization of transboundary
shared resources. But in the light of the recent changed political and security
environment, could peaceful negotiation over water issues still hold on for a
much longer time?
Figure out the following:
a. China’s damming the source of water of the Mekong River has
sparked serious concern among countries downstream namely
Myanmar, Thailand, Laos, Cambodia and Vietnam;
b. India, China and Pakistan see rising tensions over shared water
resources to boost production to keep up with their huge and
expanding populations;
c. A growing sense of alarm in Central Asia over the prospect that
poor but glacier-heavy nations (Tajikistan, Kyrgyzstan) may one
day restrict the flow of water to their parched but oil-rich neighbors
(Uzbekistan, Kazakhstan and Turkmenistan);
d. Ultimate peace between Pakistan and India may hinge as much on
water as on nuclear weapons for the two countries must share the
glacier-dependent Indus.
The limited supply of freshwater must meet the needs of a human population
that has tripled in the last century and continues to grow at almost 80 million
every year. Right now, there is a torrent of water-related news concerning
the dry spell brought about by the drought effect of El Niño, the declaration
of state of calamity in specified areas due to lack of adequate water supply
and a decline in agricultural production on account of scarcity of water for
agriculture.
Arcilla | Mendoza - Updated Notes
Based on numerous studies, including those done by the Japan International
Cooperation Agency (JICA) and confirmed by a UNICEF-WHO report, 8.4
million Filipinos have no access to clean drinking water. The major reason
for freshwater scarcity in the Philippines is pollution from industries,
households, tourism sites and agricultural areas. Industries use a wide range
of chemicals, many of which are highly toxic and find their way to natural
water systems. Wastewater from households follow the same route to
natural water channels like run-offs of agricultural chemicals such as
fertilizers and pesticides.
A UNDP report further mentioned that the Metro Manila main underground
aquifer is so over pumped that groundwater levels have considerably
dropped to critical levels. This has induced saline water to encroach into
coastal zones and threaten Marikina Valley and places along the Laguna
Lake region. Once again, water rationing plans are on board in Metro
manila.
Even the Rainwater Collection Facilities and Spring Water Protection Law
(1989), which mandates construction of water wells, rainwater collectors,
development of springs, rehabilitation of existing water wells in all barangays
in the Philippines, remains in the books, largely unimplemented.
The solution to water scarcity is largely in the hands of governments
because it requires policies such as better and effective regulation of
groundwater, irrigation and more intelligent use of wastewater. Among
Asean countries, Thailand adopted a policy to minimize use of water by not
growing off-season rice as a response to the gravity of the drought situation.
Water has to be conserved for household consumption. Farmers switched to
drought-resistant crops such as beans or raising livestock. Others resorted
to raising poultry or farming shallow-water fish in baskets. Many rice farmers
have also joined government-sponsored employment schemes such as
working on irrigation canal dredging projects, which generate more than
40,000 jobs nationwide.
With the recent formal signing at the UN Headquarters in New York by 171
countries of the Paris Agreement on reduction of greenhouse gas emission,
water scarcity has “come of age” as a forefront issue. As countries actively
pursue major actions like a shift to renewable energy sources (solar, wind,
Environmental Law | Summer 2017 15
biomass, hydropower, etc.) to stop the devastating impacts of climate
change, it is now the time for action to set the pathway that will lead to a far-
reaching effort to meet the challenges posed by the most precious but finite
resource on Earth – fresh water.
POPE FRANCIS VIS-À-VIS EARTH STEWARDS
AT long last, the Vatican released to the expectant world Pope Francis’
environment encyclical “Laudato Si.” Encyclicals are considered the most
authoritative document a Pope can issue. This one is about the dire effects
of environmental degradation especially on the poor and urges the world to
take action on moral grounds.
The encyclical could at best be described as the Pope’s lament and call to
action for the earth’s protection and sustainability. It links environmental
degradation with economic and social justice aiming to connect environment
very tightly to the Church’s social teaching to give preferential treatment to
the poor.
No one has written an encyclical focused on the environment before. For
analysts, this could be traced to the Pope’s Jesuit formation which reinforces
the idea “that we are stewards of God’s creation and that God is somehow
present in all of creation.” Therefore, we have a duty to look after the earth
responsibly. In that regard, Pope Francis should be credited for having
added the religious/moral dimension to an otherwise purely scientific,
political, and economic issue and concern.
Before the launch of “Laudato Si,” the Pope addressed a local group of
grassroots organizers in Rome saying that an economic system centered
only on money would “….plunder nature to sustain frenetic levels of
consumption. Climate change, the loss of biodiversity, deforestation are
already showing their devastating effects…from which you, the humble,
suffer the most.”
Critics of the Pope’s message against the unbridled pursuit of profits by
businessmen, however, say that the free market, far from being the source
of inequality is the great engine that will pull the world’s poor out of misery.
Arcilla | Mendoza - Updated Notes
While the Pope’s devotion to nature has a theological basis it also has an
ethical component based on who, in particular, is responsible for
environmental problems. But more than the issue of who is responsible is
the dispute over the idea that population control and contraception are the
solutions to the planet’s limited resources rather than curve the consumerist,
wasteful behavior of the rich and the privileged.
Be that as it may, the encyclical emphasizes that man is part of God’s
creation and therefore entitled to protection.
Pope Francis has won much admiration for his humility and reputation as a
truth-teller who speaks simply and plainly. He is the leader of a world-wide
institution with 1.2 billion members with no political interests to protect and
no reelection campaign to wage. Indeed, he is well positioned to win a
debate on the issue of how to steward the Earth.
But will the encyclical make an impact on Catholics worldwide who did not
pay attention to the environmental issues before?
No religion in the world could be identified as against protection of the
environment from the effects of climate change. Buddhism is known to
respect and hold sacred anything that has life – trees, species of fauna, etc.
“In Islam, man is Al Khalifa (The Steward). His role on earth is to act as
God’s steward, and trustee of the bounties of the earth.” Even faith-based
organizations like the Evangelicals and Baptist faiths have been exceptional
leaders working on climate change.
Hopefully, Pope Francis’ “Laudato Si” would lead to a united inter-faith
response to make a case for climate change and urge everyone to take
action on moral grounds. After all, we are the Earth’s Stewards.
BUILDING RESILIENCE: ADAPTATION TO CLIMATE
CHANGE
Manila Times – Ambassador Tolentino (November 29, 2013)
Adaptation is the adjustment in natural or human systems in response to
actual or expected climatic conditions or their effects, which moderates harm
Environmental Law | Summer 2017 16
or exploits beneficial opportunities. It is a necessary strategy to complement
any climate change mitigation legislation in place.
Best practices abound on adaptation activities to cope with climate change
risks.
In Bangladesh, floating vegetable gardens allow for seedlings to be grown
when land is flooded so that they are ready to plant out when the floodwater
recedes. Fish are reared in cages anchored in ponds created by monsoon
rains when the river is too fast flowing for fishing boats to go out. A variety of
rice has been planted that matures before the monsoon rains, and ponds are
used for raising ducks and fish. Ducks provide eggs for the market and are
more resilient to floods than chickens.
In Thailand, bamboo poles are used in beating back waves that slowly
engulf seaside communities. Properly spaced bamboo poles dampen the
force of waves and allow for a more natural exchange between the marine
and freshwater environments. Erecting bamboo screens made of thousands
of poles driven into the seabed has helped restore several hundred meters
of land now planted with mangrove saplings along the Gulf of Thailand coast
as well as on the island of Phuket.
Community resilience in Nepal through local knowledge, practices and
innovations to adapt to climate variability is worth notice too. To cope with
water scarcity, water conservation ponds are built during the monsoon and
farmers use water harvesting tanks to trap rainwater for use in the dry
season.
Interesting are the Nepali improved crop storage systems. Farmers have
been making pits to store potatoes because pits help maintain cooler
temperature allowing the potatoes to last longer. Others protect their seeds
from frost and cold temperature by covering them with cloth and hanging
them in safe places. Rice and other cereals are stored in earthen vessels
and kept on raised beds to protect them from flooding. They are also raising
the level of their houses and cattle sheds to keep them safe during the
monsoon floods.
Arcilla | Mendoza - Updated Notes
In the Solomon Islands in the Pacific, there has been a transition in the types
of root crops people are planting. While in the past, they mainly planted yam
and taro which are harvested at different times of the year and can be stored
for the rainy season, people now are more focused on introduced root crops
like sweet potato and cassava which requires less labor as they grow in
secondary forests and can be harvested after only three months. It led to
current interest at producing banana chips as banana trees fare well under
heavy rainfall and processing is cheap and simple. There are now
processing groups consisting of women in banana chips production.
Against the backdrop of horrifying earthquakes, tsunamis, super typhoons
and storm surge consequences and amidst unprecedented global attention
and intense media coverage on climate change (as in the recently concluded
UN Climate Change Conference in Warsaw (Poland), the 2009 Philippine
Climate Change Law (RA 9729) (An Act mainstreaming climate change into
government policy formulations, establishing the framework strategy and
program on climate change, creating for the purpose the Climate Change
Commission, and for other purposes) is a most significant piece of climate
change mitigation legislation that needs public information and awareness
as well as effective people’s participation in its implementation and
enforcement. In the meantime, the man on the streets wants to know about
adaptation to climate change.
The climate change adaptation practices mentioned above respond to
urgent and immediate adaptation needs, prioritizing the most vulnerable
communities and seek to build capacities on adaptation.
Environmental Law | Summer 2017 17
COVERAGE 3. What are MEA’s or Multilateral Environment Agreements?
4. Natural Resource Law : from use oriented to resource oriented –
why?
1. Environmental Governance: Sustainable Development through
Environmental Law 5. Take note of the Conclusion of the readings
2. 1987 Philippine Constitution
3. PD 1151 – Philippine Environmental Policy ENVIRONMENTAL PROVISIONS OF 1987 CONSTITUTION
4. PD 1152 – Philippine Environmental Code a. Sec. 16, Art. II: The State shall protect and advance the right of the
5. Minors Oposa vs. Secretary of DENR people to a balanced and healthful ecology in accord with the
6. Resident Marine Mammals vs. Sec Reyes rhythm and harmony of nature.
7. MMDA vs. Concerned Citizens of Manila Bay b. Sec. 2 (2), Art. XII: The State shall protect the nation’s marine
8. Prince Hotel vs. GSIS wealth in its archipelagic waters, territorial sea, and exclusive
9. Role of Government Institutions in Environmental Law economic zone, and reserve its use and enjoyment exclusively to
Administration Filipino citizens.
10. Pollution Adjudication Board c. Sec.5, Art. XII: The State, subject to the provisions of this
11. PAB vs. CA & Solar Textile Manufacturing Corp.
Constitution and national development policies and programs, shall
12. Principe vs. Fact-Finding & Intelligence Bureau
protect the rights of indigenous cultural communities to their
13. Mustang Lumber Inc. vs. CA
ancestral lands to ensure their economic, social, and cultural well-
14. Balicas vs. Fact-Finding & Intelligence Bureau
being.
15. Laguna Lake Development Authority
16. LLDA vs. CA The Congress may provide for the applicability of customary laws
17. An Act Adopting the Strategic Plan for Palawan governing property rights or relations in determining the ownership and
18. Tano vs. Socrates extent of ancestral domain. (Note: Indigenous peoples’ traditional
ecological knowledge is an integral part of understanding the
environment).

ENVIRONMENTAL GOVERNANCE: SUSTAINABLE PD 1151 – PHILIPPINE ENVIRONMENTAL POLICY

DEVELOPMENT THROUGH ENVIRONMENTAL LAW
Purpose: To protect the right of the people to a healthy environment through
a requirement of environmental impact assessments and statements
SUSTAINABLE DEVELOPMENT (Tagalog: Likas-kayang pag-unlad) -often
equated with “development without destruction.” It is optimal development
Overview:
with minimal destruction. In short, “wise use” of the environment. By wise
 Conflicting demands of population growth, urbanization, industrial
use is meant sustainable utilization for the benefit of mankind in a way
expansion, rapid natural resources utilization, and increasing
compatible with the maintenance of the natural elements of the ecosystem. It
technological advances have resulted in a piecemeal-approach
is, in other words, a forward-looking development.
concept of environmental protection.
 The tunnel-vision concept is not conducive to the attainment of an
Things to take note of:
ideal environmental situation where man and nature can thrive in
1. What is Environmental Law?
harmony with one another.
2. What is the role of man in the environment? – custodian….

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 18

  There is now an urgent need to formulate an intensive, integrated
program of environmental protection that will bring about a
concerted effort towards the protection of the entire spectrum of the
environment through a requirement of environmental impact
assessments and statements.
Features:
 Declares a continuing policy of the State
a. to create, develop, maintain, and improve conditions under
which man and nature can thrive in productive and
enjoyable harmony with each other,
b. to fulfill the social, economic, and other requirements of
present and future generations of Filipinos,
c. to ensure the attainment of an environmental quality that is
conducive to a life of dignity and well being
b. In pursuing this policy , it shall be the responsibility of the
government, in cooperation of concerned private organizations and
entities, to use all practicable means, consistent with other
essential considerations of national policy, in promoting the general
welfare to the end that the nation may
a. recognize, discharge, and fulfill the responsibilities of each generation
as trustee and guardian of the environment for the succeeding
generations,
b. assure the people of a safe, decent, helpful, productive, and aesthetic
environment,
c. encourage the widest exploitation of the environment without degrading
it, or endangering human life, health, and safety or cr4eating conditions
adverse to agriculture, commerce, and industry,
d. preserve important historic and cultural aspects of the Philippine
heritage,
e. attain a rational and orderly balance between population and resource
use,
f. improve the utilization of renewable and nonrenewable resources.
 In furtherance of these goals and policies, the government recognizes
the right of the people to a healthful environment. It shall be the duty
and responsibility of each individual to contribute to the preservation
and enhancement of the Philippine environment.
 Pursuant to the above enunciated policies and goals, all agencies and
instrumentalities of the national government, including all government
Arcilla | Mendoza - Updated Notes
owned and controlled corporations as well as private corporations and
firms and entities shall prepare, file, and include in every action, project,
or undertaking which significantly affects the quality of the environment
a detailed statement on:
a. the environmental impact of the proposed action, project, or
undertaking;
b. any adverse environmental effect which cannot be avoided
should the proposal be implemented;
c. alternative to the proposed action;
d. a determination that the short-term uses of the resources of the
environment are consistent with the maintenance and
enhancement of the long-term productivity of the same; and
e. whenever a proposal involves the use of depletable or
nonrenewable resources, a finding must be made that such
use and commitment are warranted.
PD 1152 – PHILIPPINE ENVIRONMENTAL CODE
Purpose: To achieve and maintain such levels of air quality as to protect
public health and to prevent to the greatest extent practicable, injury and/or
damage to plant and animal life and property, and promote the social and
economic development of the country - Control Area - Nationwide
The broad spectrum of environment has become a matter of vital concern to
the government The national leadership has taken a step towards this
direction by creating the National Environmental Protection Council
It is necessary that the creation of the Council be complemented with the
launching of comprehensive program of environmental protection and
management Such a program can assume tangible and meaningful
significance only by establishing specific environment management policies
and prescribing environment quality standards in a Philippine Environment
Code
Features:
1 Provided a comprehensive program of environmental protection and
management. The Code established specific environment management
policies and prescribes environmental quality standards.
2 To achieve and maintain such levels of air quality as to protect public
health and to prevent to the greatest extent practicable, injury and/or
Environmental Law | Summer 2017 19
 damage to plant and animal life and property, and promote the social
and economic development of the country
3 Prescribe management guidelines to protect and improve water quality
through: classification of Philippine waters, establishment of water
quality standards, protection and improvement of the quality of the
Philippine water resources, and responsibilities for surveillance and
mitigation of pollution incidents
4 Set guidelines for waste management with a view to ensuring its
effectiveness, encourage, promote and stimulate technological,
educational, economic and social efforts to prevent environmental
damage and unnecessary loss of valuable resources of the nation
through recovery, recycling and re-use of wastes and wastes products,
and provide measures to guide and encourage appropriate government
agencies in establishing sound, efficient, comprehensive and effective
wastes management covering both solid and liquid wastes
MINORS OPOSA VS. SECRETRY OF DENR (224 SCRA 792)
A taxpayer’s class suit was filed by minors Juan Antonio Oposa, et al.,
representing their generation and generations yet unborn, and represented
by their parents against Fulgencio Factoran Jr., Secretary of DENR. They
prayed that judgment be rendered ordering the defendant, his agents,
representatives and other persons acting in his behalf to:
1. Cancel all existing Timber Licensing Agreements (TLA) in the
country;
2. Cease and desist from receiving, accepting, processing,
renewing, or appraising new TLAs;
and granting the plaintiffs “such other reliefs just and equitable under the
premises.” They alleged that they have a clear and constitutional right to a
balanced and healthful ecology and are entitled to protection by the State in
its capacity as parens patriae. Furthermore, they claim that the act of the
defendant in allowing TLA holders to cut and deforest the remaining forests
constitutes a misappropriation and/or impairment of the natural resources
property he holds in trust for the benefit of the plaintiff minors and
succeeding generations.
The defendant filed a motion to dismiss the complaint on the following
grounds:
1. Plaintiffs have no cause of action against him;
Arcilla | Mendoza - Updated Notes
2. The issues raised by the plaintiffs is a political question which
properly pertains to the legislative or executive branches of the
government.
ISSUE: Do the petitioner-minors have a cause of action in filing a class suit
to “prevent the misappropriation or impairment of Philippine rainforests?”
HELD:
Yes. Petitioner-minors assert that they represent their generation as well as
generations to come. The Supreme Court ruled that they can, for
themselves, for others of their generation, and for the succeeding
generation, file a class suit. Their personality to sue in behalf of succeeding
generations is based on the concept of intergenerational responsibility
insofar as the right to a balanced and healthful ecology is concerned. Such a
right considers the “rhythm and harmony of nature” which indispensably
include, inter alia, the judicious disposition, utilization, management, renewal
and conservation of the country’s forest, mineral, land, waters, fisheries,
wildlife, offshore areas and other natural resources to the end that their
exploration, development, and utilization be equitably accessible to the
present as well as the future generations.
Needless to say, every generation has a responsibility to the next to
preserve that rhythm and harmony for the full enjoyment of a balanced and
healthful ecology. Put a little differently, the minor’s assertion of their right to
a sound environment constitutes at the same time, the performance of their
obligation to ensure the protection of that right for the generations to come.
RESIDENT MARINE MAMMALS VS. SEC REYES (GR NO
180771)
Summary:
The Supreme Court of the Republic of the Philippines ruled that a service
contract for oil exploration, development, and production issued by the
government of the Philippines in the protected area of the Tanon Strait was
unconstitutional.
Case Note:
Two sets of petitioners filed separate cases challenging the legality of
Service Contract No. 46 (SC-46) awarded to Japan Petroleum Exploration
Co. (JAPEX). The service contract allowed JAPEX to conduct oil exploration
in the Tanon Strait during which it performed seismic surveys and drilled one
Environmental Law | Summer 2017 20
exploration well. The first petition was brought on behalf of resident marine
mammals in the Tanon Strait by two individuals acting as legal guardians
and stewards of the marine mammals. The second petition was filed by a
nongovernmental organization representing the interests of fisherfolk, along
with individual representatives from fishing communities impacted by the oil
exploration activities. The petitioners filed their cases in 2007, shortly after
JAPEX began drilling in the strait. In 2008, JAPEX and the government of
the Philippines mutually terminated the service contract and oil exploration
activities ceased. The Supreme Court consolidated the cases for the
purpose of review. In its decision, the Supreme Court first addressed the
important procedural point of whether the case was moot because the
service contract had been terminated. The Court declared that mootness is
“not a magical formula that can automatically dissuade the courts in
resolving a case.” Due to the alleged grave constitutional violations and
paramount public interest in the case, not to mention the fact that the actions
complained of could be repeated, the Court found it necessary to reach the
merits of the case even though the particular service contract had been
terminated.
Reviewing the numerous claims filed by the petitioners, the Supreme Court
narrowed them down to two: 1) whether marine mammals, through their
stewards, have legal standing to pursue the case; and 2) whether the
service contract violated the Philippine Constitution or other domestic laws.
As to standing, the Court declined to extend the principle of standing beyond
natural and juridical persons, even though it recognized that the current
trend in Philippine jurisprudence “moves towards simplification of procedures
and facilitating court access in environmental cases.” Instead, the Court
explained, “the need to give the Resident Marine Mammals legal standing
has been eliminated by our Rules, which allow any Filipino citizen, as a
steward of nature, to bring a suit to enforce our environmental laws.”
The Court then held that while SC-46 was authorized Presidential Decree
No. 87 on oil extraction, the contract did not fulfill two additional
constitutional requirements. Section 2 Article XII of the 1987 Constitution
requires a service contract for oil exploration and extraction to be signed by
the president and reported to congress. Because the JAPEX contract was
executed solely by the Energy Secretary, and not reported to the Philippine
congress, the Court held that it was unconstitutional.
In addition, the Court also ruled that the contract violated the National
Integrated Protected Areas System Act of 1992 (NIPAS Act), which generally
prohibits exploitation of natural resources in protected areas. In order to
Arcilla | Mendoza - Updated Notes
explore for resources in a protected area, the exploration must be performed
in accordance with an environmental impact assessment (EIA). The Court
noted that JAPEX started the seismic surveys before any EIA was
performed; therefore its activity was unlawful. Furthermore, the Tanon Strait
is a NIPAS area, and exploration and utilization of energy resources can only
be authorized through a law passed by the Philippine Congress. Because
Congress had not specifically authorized the activity in Tanon Strait, the
Court declared that no energy exploration should be permitted in that area.
MMDA VS. CONCERNED CITIZENS OF MANILA BAY
At the core of this case is Manila Bay, a place with proud historic past, once
brimming with marine life, but now a dirty and slowly dying expanse mainly
due to official indifference of people and institutions that could have
otherwise made a difference.
Respondents Concerned Residents filed a complaint before the RTC in
Imus, Cavite against several government agencies, among them the
petitioners, for the cleanup, rehabilitation, and protection of Manila Bay and
to submit to RTC a concerted concrete plan of action for the purpose.
The complaint alleged the following:
• Water quality had fallen way below the allowable standards set by
law (as confirmed by the DENR). Given the sample water collected,
the amount of fecal coliform content is beyond the standard.
• The continued neglect of officials violates several laws
With the reckless, accumulated, and ongoing acts, omission, commission of
defendants resulting in clear and present danger to public health and in the
depletion and contamination of the marine life of Manila Bay, the RTC held
petitioner liable and ordered to clean up and rehabilitate Manila Bay and to
restore its water quality to class B waters fit for swimming, skin-diving, and
other forms of contact recreation.
Petitioners appealed before the CA contending that the provisions of
Environmental Code (PD 1152) relate only to the cleaning of specific
pollution incidents and do not cover cleaning in general. They also asserted
that cleaning of the Manila Bay is not a ministerial act which can be
compelled by mandamus.
Environmental Law | Summer 2017 21
ISSUES:
(1) Whether Sec. 17 and 20 f PD 1152 under the headings, Upgrading
of Water Quality and Clean-Up Operations, envisage a clean-up in
general or are they limited only to the cleanup of specific pollution
incidents?
(2) Can petitioner be compelled by mandamus to clean up and
rehabilitate Manila Bay?
HELD:
(1) NO. Sec. 17 does not state that government agencies concerned
ought to confine themselves to containment, removal, and cleaning
operations when specific pollution incident occurs.
On the contrary, Sec. 17 requires them to act even in the absence
of specific pollution incident, as long as the water quality “has
deteriorated to a degree where its state will adversely affect its best
usage.” This is not conditional on occurrence of any pollution
incident.
(2) YES. SC held that cleaning up and rehabilitating Manila Bay is
ministerial in nature and can be compelled by mandamus. Sec. 3
(c) of RA No. 7924 (law creating MMDA) is mandated to put up an
adequate and appropriate sanitary landfill and solid waste and
liquid disposal as well as alternative garbage disposal systems.
This is set up by law (enjoined as a matter of statutory obligations).
PRINCE HOTEL VS. GSIS (67 SCRA 40)
The Government Service Insurance System (GSIS), pursuant to the
privatization program of the Philippine Government under Proclamation 50
dated 8 December 1986, decided to sell through public bidding 30% to 51%
of the issued and outstanding shares of the Manila Hotel (MHC). In a close
bidding held on 18 September 1995 only two bidders participated: Manila
Prince Hotel Corporation, a Filipino corporation, which offered to buy 51% of
the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a
Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the
same number of shares at P44.00 per share, or P2.42 more than the bid of
petitioner. Pending the declaration of Renong Berhard as the winning
Arcilla | Mendoza - Updated Notes
bidder/strategic partner and the execution of the necessary contracts, the
Manila Prince Hotel matched the bid price of P44.00 per share tendered by
Renong Berhad in a letter to GSIS dated 28 September 1995. Manila Prince
Hotel sent a manager’s check to the GSIS in a subsequent letter, but which
GSIS refused to accept. On 17 October 1995, perhaps apprehensive that
GSIS has disregarded the tender of the matching bid and that the sale of
51% of the MHC may be hastened by GSIS and consummated with Renong
Berhad, Manila Prince Hotel came to the Court on prohibition and
mandamus.
Issue(s):
• Whether the provisions of the Constitution, particularly Article XII
Section 10, are self-executing.
• Whether the 51% share is part of the national patrimony.
Held:
A provision which lays down a general principle, such as those found in
Article II of the 1987 Constitution, is usually not self-executing. But a
provision which is complete in itself and becomes operative without the aid
of supplementary or enabling legislation, or that which supplies sufficient rule
by means of which the right it grants may be enjoyed or protected, is self-
executing. Thus a constitutional provision is self-executing if the nature and
extent of the right conferred and the liability imposed are fixed by the
constitution itself, so that they can be determined by an examination and
construction of its terms, and there is no language indicating that the subject
is referred to the legislature for action. In self-executing constitutional
provisions, the legislature may still enact legislation to facilitate the exercise
of powers directly granted by the constitution, further the operation of such a
provision, prescribe a practice to be used for its enforcement, provide a
convenient remedy for the protection of the rights secured or the
determination thereof, or place reasonable safeguards around the exercise
of the right. The mere fact that legislation may supplement and add to or
prescribe a penalty for the violation of a self-executing constitutional
provision does not render such a provision ineffective in the absence of such
legislation. The omission from a constitution of any express provision for a
remedy for enforcing a right or liability is not necessarily an indication that it
was not intended to be self-executing. The rule is that a self-executing
provision of the constitution does not necessarily exhaust legislative power
on the subject, but any legislation must be in harmony with the constitution,
Environmental Law | Summer 2017 22
further the exercise of constitutional right and make it more available. ROLE OF THE GOVERNMENT INSTITUTIONS IN
Subsequent legislation however does not necessarily mean that the subject ENVIRONMENTAL LAW ADMINISTRATION
constitutional provision is not, by itself, fully enforceable. As against
constitutions of the past, modern constitutions have been generally drafted
upon a different principle and have often become in effect extensive codes of Department of Health (DOH)
laws intended to operate directly upon the people in a manner similar to that a. Has environmental health programs. These concerns
of statutory enactments, and the function of constitutional conventions has PREVENTING ILLNESS through managing the environment. These
evolved into one more like that of a legislative body. Hence, unless it is are primarily concerned with effects of the environment to health of
expressly provided that a legislative act is necessary to enforce a people.
constitutional mandate, the presumption now is that all provisions of the b. Issues environmental sanitation clearance
constitution are self-executing. If the constitutional provisions are treated as Department of Agriculture (DOA)
requiring legislation instead of self-executing, the legislature would have the a. Executive branch responsible for the promotion of agriculture and
power to ignore and practically nullify the mandate of the fundamental law. In fisheries development and growth.
fine, Section 10, second paragraph, Art. XII of the 1987 Constitution is a b. Emphasizes on the productivity and sustainability in the use of
mandatory, positive command which is complete in itself and which needs no agricultural resources.
further guidelines or implementing laws or rules for its enforcement. From its c. Reports on areas where marine life has to be restored.
very words the provision does not require any legislation to put it in d. Extends assistance to LGUS in developing fisheries.
operation.
In its plain and ordinary meaning, the term patrimony pertains to heritage. Department of Education (DepEd)
When the Constitution speaks of national patrimony, it refers not only to the a. Department responsible for ensuring access to, promoting equity in,
natural resources of the Philippines, as the Constitution could have very well and improving the quality of basic education.
used the term natural resources, but also to the cultural heritage of the b. Integrates environmental education in schools’ curricula (e.g.
Filipinos. It also refers to Filipino’s intelligence in arts, sciences and letters. environmental laws concepts and principles), thus promoting
In the present case, Manila Hotel has become a landmark, a living environmental awareness.
testimonial of Philippine heritage. While it was restrictively an American hotel c. Integrates lessons in pollution prevention, waste management,
when it first opened in 1912, a concourse for the elite, it has since then environmental protection etc.
become the venue of various significant events which have shaped
Philippine history. In the granting of economic rights, privileges, and Department of Tourism (DOT)
concessions, especially on matters involving national patrimony, when a a. Department responsible for the regulation of Philippine tourism
choice has to be made between a “qualified foreigner” and a “qualified industry and promotion of the Philippines as a tourist destination.
Filipino,” the latter shall be chosen over the former. b. Assumes prominent role in developing “responsible tourism”
The Supreme Court directed the GSIS, the Manila Hotel Corporation, the thereby ensuring protection, preservation, and promotion of
Committee on Privatization and the Office of the Government Corporate resources.
Counsel to cease and desist from selling 51% of the Share of the MHC to c. Promotes tourism industry that is ecologically sustainable.
Renong Berhad, and to accept the matching bid of Manila Prince Hotel at Department of Public Works and Highways (DPWH)
P44 per shere and thereafter execute the necessary agreements and a. Department responsible for the safety of projects in the field of
document to effect the sale, to issue the necessary clearances and to do public works. It is also responsible for the maintenance of Philippine
such other acts and deeds as may be necessary for the purpose. road network and irrigation system.

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 23

 b. Responsible for removal and demolition of structures obstructing 1 Ecosystems Research and Development Bureau - principal research
free flow of water. and development (R & D) unit of DENR. Its R & D and extension
c. Integrates environmental and social concerns into road and activities are focused on the 5 major ecosystems of the Philippines
infrastructure development projects. which include forests, upland farms, grassland and degraded areas,
d. Utilizes Environmental Impact Assessment in its projects. coastal zone and freshwater, and urban areas.

Philippine National Police (PNP)

a. Enforces laws involving agriculture, environment, and natural
2 Environmental Management Bureau (EMB) - the primary government
resources.
agency under the Department of Environment and Natural Resources to
b. Apprehends violators of environmental laws.
formulate, integrate, coordinate, supervise and implement all policies,
Department of Interior and Local Government (DILG) programs, projects and activities relative to the prevention and control of
a. Improves performance of local governments in governance, pollution as well as the management and enhancement of environment
administrative, social, and economic development and (e.g. It is mainly responsible for the implementation and enforcement of
ENVIRONMENTAL MANAGEMENT (e.g. It may order LGUs to RA 8749 (Phil Clean Air Act of 1999).
determine if they have proper wastewater treatment facilities).

3 Forest Management Bureau (FMB) - provides support for the effective

Philippine Atmospheric Geophysical and Astronomical Services
protection, development, occupancy management, and conservation of
Administration (PAGASA).
FOREST LANDS and WATERSHEDS.
a. Government agency for weather forecasting, flood control,
astronomical observations, and time service.
b. Maintains NATIONWIDE NETWORK pertaining to observation and
4 Land Management Bureau (LMB) - As per Executive Order 192, LMB
forecasting of weather and other climatological conditions affecting
national safety, welfare, and economy. shall ADVISE the Secretary on matters pertaining to rational land
c. Undertakes researches on the structure, development, and motion classification, management, and disposition. It is an agency of the
of typhoons and formulates measures for their moderation. Philippine government under the Department of Environment and
d. Maintains effective linkages with scientific organization here and Natural Resources responsible for administering, surveying, managing,
and disposing Alienable and Disposable (A&D) lands and other
abroad, and promotes exchange of scientific information and
cooperation among personnel engaged in atmospheric, geological, government lands not placed under the jurisdiction of other government
and astronomical studies agencies.

DENR AND ITS BUREAUS

5 Mines and Geosciences Bureau (MGB) - government agency
DENR: Reorganized under EO 192 responsible for the conservation, management, development, and
 PAB is under the Office of the president proper use of the country’s mineral resources including those in
 Applicable: Doctrine of Exhaustion reservations and lands of public domains.

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 24

6 Protective Areas and Wildlife Bureau (PAWB) Now – Biodiversity
Management Bureau (BMB)
The Bureau shall have the following functions:
 Formulate and recommend policies, guidelines, rules and
regulations for the establishment and management of an
Integrated Protected Areas Systems such as national parks,
wildlife sanctuaries and refuge, marine parks, and biospheric
reserves;
 Formulate an up-to-date listing of endangered Philippine flora
and fauna and recommend a program of conservation and
propagation of the same;
 Assist the Secretary in the monitoring and assessment of the
management of the Integrated Protected Areas System and
provide technical assistance to the regional offices in the
implementation of programs for these areas;
 Formulate and recommend policies, guidelines, rules and
regulations for the preservation of biological diversity, genetic
resources, the endangered Philippine flora and fauna;
 Perform other functions as may be assigned by the Secretary
and/or provided by law.
POLLUTION ADJUDICATORY BOARD
The Pollution Adjudication Board (PAB) is a quasi-judicial body created
under Section 19 of Executive Order (E.O.) 192 for the adjudication of
pollution cases.
It is created under the Office of the Secretary. The Board shall be composed
of the Secretary as the Chairman, Two (2) Undersecretaries as may be
designated by the Secretary, the Director of the Environmental Management
Bureau (EMB), the Three (3) others to be designated by the Secretary as
members. The Board shall assume the powers and functions of the
Commission/ Commissioners of the National Pollution Control Commission
(NPCC) with respect to the adjudication of pollution cases under Republic
Act 3931 and Presidential Decree 984.
Arcilla | Mendoza - Updated Notes
The PAB is organizationally under the supervision of the Office of the
Secretary of the Department of Environment and Natural Resources (the
DENR) with Secretariat support provided by the Environmental Management
Bureau (EMB).
Power and function maybe delegated to the DENR Regional Officers in
accordance with rules and regulations of the Board.
PAB VS. CA & SOLAR TEXTILE MANUFACTURING CORP.
(GR NO 93891)
Solar Textile Finishing Corporation was involved in bleaching, rinsing, and
dyeing textiles with wastewater being directly discharged into a canal leading
to adjacent Tullahan-Tinejeros River.
Petitioner Board, an agency charged with the task of determining whether
effluents of a particular industrial establishments comply with or violate
applicable anti-pollution statutory and regulatory provisions have been
remarkably forbearing, enforced the applicable standards vis-à-vis Solar.
Yes. The Board was acting within its powers in issuing the cease and desist
orders as per PD 9874, Sec. 7 (a). It is not essential that an immediate
threat to life, public health, safety exists before an ex-parte cease and desist
order may be issued. It is enough if the Board finds that the wastes
discharged do exceed the allowable standards set by the Board.
PRINCIPE VS. FACT-FINDING & INTELLIGENCE BUREAU
(GR NO 145973)
On February 19, 1991, then City Mayor of Antipolo City, Daniel S. Garcia,
endorsed the Philjas Corporation to the Housing and Land Use Regulatory
Board (HLURB) for the creation, development and sale of lots of the
Cherry Hills Subdivision (CHS) located in the above-mentioned
city. Thereafter, Philjas was issued different permits and documents for
purposes of proceeding with the project. Eventually, a Small Scale Mining
Permit (SSMP) was issued to Philjas to extract and remove 10,000 cu.
Meters of filling materials from the area where the proposed subdivision is to
be constructed. However, another respondent (in the CA case) informed
Environmental Law | Summer 2017 25
Philjas that CHS is within the EIS System and as such must secure ECC
from the DENR. Subsequently, Philjas applied for an ECC permit.
Upon the recommendation of one of the subordinates of herein petitioner,
the latter approved Philjas’s application for an ECC permit. The petitioner
approved the same based from the Inspection Report conducted
by petitioner’s subordinates.
The Ombudsman rendered a decision finding
the petitioner Principe administratively liable for Gross Neglect of Duty and
imposed upon him the penalty of dismissal from office. The CA affirmed the
Ombudsman’s decision. Hence, this petition.
ISSUE:
Whether or not theOmbudsman may dismiss petitioner from the service on a
nadministrative charge for gross neglect of duty, initiated, investigated and d
ecided by the Ombudsman himself without substantial evidence to support
his findings of gross neglect of duty because the duty to monitor and inspect
the project was not vested in the petitioner.
HELD:
DAO 38-1990 specifically points out the functions of the office attached to
the petitioner and nowhere in it can be found the latter’s responsibility of
monitoring housing and land development projects. The Ombudsman,
without taking into consideration the lawfully mandated duties and functions
attached to petitioner’s position, immediately concluded that as the signing
and approving authority of the ECC issued to Philjas, it was incumbent upon
the petitioner to conduct actual monitoring and enforce strict compliance with
the terms of the ECC.
Hence, how could petitioner be guilty of neglecting a duty, which is not even
his to begin with? Administrative liability could not be based on the fact that
petitioner was the person who signed and approved the ECC, without proof
of actual act or omission constituting neglect of duty.
In the absence of substantial evidence of gross neglect
of petitioner, administrative liability could not be based on the principle of
command responsibility. The negligence of the petitioner’s subordinates is
not tantamount to his own negligence.
It was not within the mandated responsibilities of petitioner to conduct actual
monitoring of projects. The principles governing public officers under the
Revised Administrative Code of 1987 clearly provide that a head of a
Arcilla | Mendoza - Updated Notes
department or a superior officer shall not be civilly liable for the wrongful
acts, omissions of duty, negligence, or misfeasance of his subordinates,
unless he has actually authorized by written order the specific act or
misconduct complained of.
MUSTANG LUMBER INC VS. CA (257 SCRA 430)
The Revised Forestry Code contains no definition of either timber or lumber.
While the former is included in forest products as defined in paragraph (q) of
Section 3, the latter is found in paragraph (aa) of the same section in the
definition of “Processing plant,” which reads:
(aa) Processing plant is any mechanical set-up, machine or combination of
machine used for the processing of logs and other forest raw materials into
lumber, veneer, plywood, wallbond, blockboard, paper board, pulp, paper or
other finished wood products.
This simply means that lumber is a processed log or processed forest raw
material. Clearly, the Code uses the term lumber in its ordinary or common
usage. In the 1993 copyright edition of Webster’s Third New International
Dictionary, lumber is defined, inter alia, as “timber or logs after being
prepared for the market.” Simply put, lumber is processed log or timber.
Facts:
The present suit is a consolidation of three cases, the first case being the
one pertinent to environmental law. An organized team of foresters and
policemen apprehended the truck belonging to Mustang Lumber, Inc. which
contained lauan and almaciga lumber of assorted sizes and dimensions. The
driver was unable to produce the necessary legal documents, thus, the team
seized the truck. Afterwards, the team obtained a search warrant to inspect
the premises of Mustang Lumber. During the search, the team found more
lumber in the lumberyard without the necessary papers. Thus, the lumbers
were confiscated. Secretary Factoran ordered the disposal of the
confiscated lumber.
A complaint against Mustang Lumber’s president and general manager was
filed in court. Mustang Lumber filed a motion to quash on the ground that
“the information does not charge an offense. According to Mustang Lumber,
the possession of lumber as opposed to timber is not penalized under
Section 68 of PD No. 705.
Environmental Law | Summer 2017 26
Issue: Whether possession of lumber, as opposed to timber, is penalized in
Section 68 of PD No. 705.
Ruling: Yes. The possession of lumber is covered by Section 68 of PD No.
705. While the Revised Forestry Code does not contain any definition of
timber or lumber, it does define forest products. The definition of Processing
Plant includes lumber, to wit: “[p]rocessing plant is any mechanical set-up,
machine or combination of machine used for the processing of logs and
other forest raw materials into lumber, veneer, plywood, wallbond,
blockboard (sic), paper board, pulp, paper or other finished wood products.”
“This simply means that lumber is a processed log or processed forest raw
material. Clearly, the Code uses the term lumber in its ordinary or common
usage. In the 1993 copyright edition of Webster’s Third New International
Dictionary, lumber is defined, inter alia, as ‘timber or logs after being
prepared for the market.’ Simply put, lumber is a processed log or timber.”
BALICAS VS. FACT-FINDING & INTELLIGENCE BUREAU
(GR NO 145972)
FACTS:
In the development of the Cherry Hills Subdivision (CHS), Philjas applied for
the issuance of ECC from the DENR-Region IV
Respondent BALICAS, PENRO senior environmental management
specialist, monitored the implementation of the CHS Project Development to
check compliance with the terms and conditions in the ECC. She conducted
another monitoring on the project for the same purpose. In both instances,
she noted that the project was still in the construction stage hence,
compliance with the stipulated conditions could not be fully assessed, and
therefore, a follow-up monitoring is proper. It appeared from the records that
this August 23, 1995 monitoring inspection was the last one conducted by
the DENR.
Immediately after the tragic incident on August 3, 1999, a fact-finding
investigation was conducted by the Office of the Ombudsman through its
Fact-Finding and Intelligence Bureau (FFIB), which duly filed an
administrative complaint with the Office of the Ombudsman against several
officials of the Housing and Land Use Regulatory Board (HLURB),
Arcilla | Mendoza - Updated Notes
Department of Environment and Natural Resources (DENR), and the local
government of Antipolo.
The charge against petitioner involved a supposed failure on her part to
monitor and inspect the development of CHS, which was assumed to be her
duty as DENR senior environmental management specialist assigned in the
province of Rizal.
For her part, petitioner belied allegations that monitoring was not conducted,
claiming that she monitored the development of CHS as evidenced by 3
monitoring reports .She further claimed good faith and exercise of due
diligence, insisting that the tragedy was a fortuitous event. She reasoned
that the collapse did not occur in Cherry Hills, but in the adjacent mountain
eastern side of the subdivision.
The Office of the Ombudsman rendered a decision imposing upon petitioner
the supreme penalty of dismissal from office for gross neglect of duty.
Petitioner seasonably filed a petition for review of the Ombudsmans decision
with the CA. The Court of Appeals dismissed the petition for lack of merit
and affirmed the appealed decision. It found that the landslide was a
preventable occurrence and that petitioner was guilty of gross negligence in
failing to closely monitor Philjas compliance with the conditions of the ECC
given the known inherent instability of the ground where the subdivision was
developed. The appellate court likewise denied petitioners motion for
reconsideration.
This petition for review on certiorari
ISSUE: WON Balicas is guilty of gross neglect of duty
HELD: The petition is hereby GRANTED, The CA decision affirming the
Ombudsmans dismissal of petitioner IGNACIA BALICAS from office is
REVERSED and SET ASIDE, and petitioners REINSTATEMENT to her
position with back pay and without loss of seniority rights is hereby ordered.
No. In order to ascertain if there had been gross neglect of duty, we have to
look at the lawfully prescribed duties of petitioner. Unfortunately, DENR
regulations are silent on the specific duties of a senior environmental
management specialist. Internal regulations merely speak of the functions of
the Provincial Environment and Natural Resources Office (PENRO) to which
petitioner directly reports.
Environmental Law | Summer 2017 27
The monitoring duties of the PENRO mainly deal with broad environmental management specialist. In fact, the law imposes no clear and direct duty
concerns, particularly pollution abatement. This general monitoring duty is on petitioner to perform such narrowly defined monitoring function.
applicable to all types of physical developments that may adversely impact
on the environment, whether housing projects, industrial sites, recreational RA 4850 – LAGUNA LAKE DEVELOPMENT AUTHORITY
facilities, or scientific undertakings.
• The LLDA was organized by virtue of Republic Act No. 4850 as a
However, a more specific monitoring duty is imposed on the HLURB as the
quasigovernment agency with regulatory and proprietary functions. Through
sole regulatory body for housing and land development.
Presidential Decree 813 in 1975, and Executive Order 927 in 1983, its
P.D. No. 1586 prescribes the following duties on the HLURB (then Ministry of
powers and functions were further strengthened to include environmental
Human Settlements) in connection with environmentally critical projects
protection and jurisdiction over the lake basin’s surface water. In 1993,
requiring an ECC:
through Executive Order 149, the administrative supervision over LLDA was
SECTION 4. Presidential Proclamation of Environmentally Critical Areas and
transferred from the Office of the President to the Department of
Projects. The President of the Philippines may, on his own initiative or upon
Environment and Natural Resources (DENR).
recommendation of the National Environment Protection Council, by
proclamation declare certain projects, undertakings or areas in the country
LLDA has jurisdiction over the following towns/cities:
as environmentally critical. No person, partnership or corporation shall
(1) Rizal and Laguna Provinces,
undertake or operate any such declared environmentally critical project or
(2) towns of Silang, General Mariano Alvarez, Carmona,
area without first securing an Environmental Compliance Certificate issued
(3) Tagaytay City in Cavite,
by the President or his duly authorized representative. For the proper
(4) Lucban, Quezon,
management of said critical project or area, the President may by his
(5) City of Tanauan, towns of Sto. Tomas
proclamation reorganize such government offices, agencies, institutions,
(6) Malvar in Batangas,
corporations or instrumentalities including the re-alignment of government
(7) Cities of Marikina,
personnel, and their specific functions and responsibilities.
(8) Pasig,
(9) Taguig,
For the same purpose as above, the Ministry of Human Settlements [now
(10) Muntinlupa,
HLURB] shall:
(11) Pasay,
(12) Caloocan,
a. prepare the proper land or water use pattern for said critical
(13) Quezon
project(s) or area(s);
(14) Town of Pateros in Metro Manila.
b. establish ambient environmental quality standards;
c. develop a program of environmental enhancement or protective Special Powers and Functions
measures against calamitous factors such as earthquake, floods, 1 To make a comprehensive survey of the physical and natural resources
water erosion and others; and potentialities of the Laguna Lake region particularly its social and
d. and perform such other functions as may be directed by the economic conditions, hydrologic characteristics, power potentials,
President from time to time. scenic and tourist spots, regional problems, and on the basis thereof, to
draft a comprehensive and detailed plan designed to conserve and
The legal duty to monitor housing projects, like the CHP, against calamities
utilize optimally the resources within the region particularly Laguna de
such as landslides due to continuous rain, is clearly placed on the
Bay to promote the region's rapid social and economic development and
HLURB, not on the petitioner as PENRO senior environmental
upon approval by the National Economic and Development Authority

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 28

 (NEDA) Board of such plan, to implement the same including projects in
line with said plan: Provided, That implementation of all fisheries plans
and programs of the authority shall require prior consensus of the
Bureau of Fisheries and Aquatic Resources to ensure that such plans
and programs are consistent with the national fisheries plans and
programs. For the purpose of said survey, public agencies shall submit
and private entities shall provide necessary data except such data
which under existing laws are deemed inviolable. 
 pass appropriate zoning ordinances and other regulatory measures
2 To provide the machinery for extending the necessary planning,
management and technical assistance to prospective and existing
investors in the region; 
 9 The provisions of existing laws to the contrary notwithstanding, to
3 To make recommendation to the proper agencies on the peso or dollar
financing, technical support, physical assistance and, generally, the
level of priority to be accorded agricultural, industrial and commercial
projects, soliciting or requiring direct help from or through the
government or any of its instrumentalities; 
 National Water Resources Council created by Presidential Decree No.
4 To pass upon and approve or disapprove all plans, programs, and
projects proposed by local government offices/agencies within the
region, public corporations, and private persons or enterprises where
such plans, programs and/or projects are related to those of the
Authority for the development of the region as envisioned in this Act.
5 
 To engage in agriculture, industry, commerce, or other activities within
the region which may be necessary or directly contributory to the socio-
economic development of the region, and, for this purposes, whether by
itself or in cooperation with private persons or entities, to organize,
finance, invest in, and operate subsidiary corporations: Provided, That
the Authority shall engage only, unless public interest requires
otherwise, in those activities as are in the nature of new ventures or are
clearly beyond the scope, capacity, or interest or private enterprises due
to consideration of geography, technical or capital requirements, returns
on investment, and risk;
6 To plan, program finance/or undertake infrastructure projects such as
river, flood and tidal control works, waste water and sewerage works,
water supply, roads, portworks, irrigation, housing and related works,
when so required within the context of its development plans and
programs including the readjustment, relocation or settlement of
population within the region as may be necessary and beneficial by the
Authority: Provided, That should any project be financed wholly or in
part by the Authority, it is hereby authorized to collect reasonable fees
Arcilla | Mendoza - Updated Notes
and tolls as may be fixed by its Board of Directors subject to the
approval of the NEDA Board from users and/or beneficiaries thereof to
recover costs of construction, operation and maintenance of the projects
7 To lend or facilitate the extension of financial assistance and/or act as
surety or guarantor to worthwhile agricultural, industrial and commercial
enterprises; 

8 To require the cities and municipalities embraced within the region to
necessary to carry out the objectives of the Authority and enforce the
same with the assistance of the Authority.
exercise water rights over public waters within the Laguna de Bay
region whenever necessary to carry out the Authority's projects;
10 To develop water supply from ground and/or lake water resources for
municipal, agricultural and industrial usages, in coordination with the
424
LLDA VS. CA (GR NO 120865)
FACTS:
Laguna Lake Development Authority (LLDA) was created through RA No.
4850 in order to execute the policy of towards environmental protection and
sustainable development so as to accelerate the development and balanced
growth of the Laguna Lake Area and the surrounding provinces and towns.
EO 927 further defined and enlarged the powers and functions of LLDA and
enumerated towns, cities, and provinces encompassed by the term “Laguna
de Bay Region.”
Upon the implementation of RA No. 7160 (Local Government Code), the
municipalities assumed EXCLUSIVE JURISDICTION and authority to issue
fishing privileges within their municipal waters since Sec. 149 thereof
provides that Municipal corporations shall have authority to grant “in
municipal waters and impose rental fees or charges thereof.”
Big fish pen operators took advantage of the occasion to establish fish pens
and fish cages to the dismay of LLDA. Implementation of separate,
independent policies in fish cages/fish pen operation and the
INDISCRIMINATE grant of fish pen permits by the lakeshore municipalities
aggravated the current environmental problems and ecological stress of
Laguna Lake.
Environmental Law | Summer 2017 29

LLDA then served notice to general public that:
a. Fish pens, cages, and other aquaculture structures unregistered
with LLDA are declared illegal;
b. Those declared illegal shall be subject to demolition;
c. Owners of those declared illegal shall be criminally charged with
violations of provisions of RA No. 4850/PD 813.
A month later, LLDA sent notices advising the owner of the illegally
constructed fish pens/cages and aqua structures, advising them to dismantle
their respective structures otherwise demolition shall be effected.
ISSUE:
Which agency of the government—LLDA or towns/municipalities comprising
the region—should exercise jurisdiction over the Laguna Lake and its
surrounding district insofar as issuance of permits for fishing privileges is
concerned.
HELD:
LLDA. Sec. 4 (k) of LLDA charter and Sec. 2 of EO 927, specifically provide
that the LLDA shall have exclusive jurisdiction to issue permits for the use of
all surface water for any projects or activities affecting the region. On the
other hand, RA No. 7610 has granted municipalities exclusive authority to
grant fishery privilege on municipal waters.
Provisions of RA No. 7610 do not necessarily repeal the laws creating LLDA.
Where there’s conflict between general and special laws, the latter should
prevail as it evinces legislative intent more clearly than general statute.
Special law cannot be repealed, amended, or altered by a subsequent
general law by mere implications.
Moreover, the powers of LLDA , for the purpose of effectively rehabilitating
and monitoring Laguna de Bay, partakes of the nature of police power, most
pervasive, least limitable, most demanding of all state powers.
RA 7611 – AN ACT ADOPTING THE STRATEGIC PLAN
FOR PALAWAN
Sec.1 Title. This Act shall be known as the "Strategic Environmental Plan
(SEP) for Palawan Act."
Arcilla | Mendoza - Updated Notes
Sec.2 Declaration of Policy. It is hereby declared the policy of the State to
protect, develop and conserve its natural resources. Toward this end, it shall
assist and support the implementation of plans, programs and projects
formulated to preserve and enhance the environment, and at the same time
pursue the socioeconomic development goals of the country.
It shall support and promote the sustainable development goals for the
provinces through proper conservation, utilization and development of
natural resources to provide optimum yields on a continuing basis. With
specific reference to forest resources, the State shall pursue and implement
forest conservation and protection through the imposition of a total
commercial logging ban as hereinafter provided.
It shall also adopt the necessary measures leading to the creation of an
institutional machinery including, among others, fiscal and financial
programs to ensure the effective and efficient implementation of
environmental plans, programs, and projects. It shall also promote and
encourage the involvement of all sectors of society and maximize people
participation in natural resource management, conservation and protection.
Sec. 3 Definition of Terms. - As used in this Act, the following terms are
defined as follows:
(1) "Palawan" refers to the Philippine province composed of islands
and islets located 70 47' and 120 22' north latitude and 1170 00'
and 110 951' east longitude, generally bounded by the South
China Sea to the northwest and by the Sulu Sea to the east;
(2) "Sustainable development" means the improvement in the quality
of life of the present and future generations through the
complementation of development and environmental protection
activities;
(3) "Natural resources" refers to life-support systems such as the sea,
coral reefs, soil, lakes, rivers, streams, and forests as well as
useful products found therein such as minerals, wildlife, trees and
other plants, including the aesthetic attributes of scenic sites that
are not man-made;
(4) "Tribal land areas" refers to the areas comprising both land and
sea that are traditionally occupied by the cultural minorities;
(5) "Environmentally critical areas" refers to terrestrial, aquatic and
marine areas that need special protection and conservation
measures as they are ecologically fragile;
(6) "Participatory processes" means the involvement of all the key
sectors of development, from the grassroots to the policy-making
Environmental Law | Summer 2017 30
 bodies of the National Government, in providing the values and
ideas from which strategic development and environmental
protection action can come about;
(7) "Conservation" refers to the wise use of natural resources that
assures regeneration and replenishment for continuous benefit;
(8) "Ecology" refers to the life-sustaining interrelationship and
interactions of organisms with each other and with their physical
surroundings;
(9) "Commercial logging" refers to the cutting, felling or destruction of
trees from old growth and residual forests for the purpose of
selling or otherwise disposing of the cut or felled logs for profit;
(10) "SEP" refers to the Strategic Environmental Plan discussed in
Section 4 of this Act;
(11) "ECAN" refers to the Environmentally Critical Areas Network as
provided in Section 7 of this Act; and
(12) "EMES" refers to the Environmental Monitoring and Evaluation
System provided in Section 13 of this Act.
Sec.4 Strategic Environmental Plan. -A comprehensive, framework for the
sustainable development of Palawan compatible with protecting and
enhancing the natural resources and endangered environment of the
province is hereby adopted. Such framework shall be known as the Strategic
Environmental Plan for Palawan, hereinafter referred to as SEP and shall
serve to guide the local government of Palawan and the government
agencies concerned in the formulation and implementation of plans,
programs and projects affecting said province.
Sec. 5 Strategic Environmental Plan (SEP) Philosophy. - The SEP shall
have, as its general philosophy, the sustainable development of Palawan,
which is the improvement in the quality of life of its people in the present and
future generations through the use of complementary activities of
development and conservation that protect life-support ecosystems and
rehabilitate exploited areas to allow upcoming generations to sustain
development growth. It shall have the following features:
(1) Ecological viability - The physical and biological cycles that
maintain the productivity of natural ecosystems must always be
kept intact;
(2) Social acceptability - The people themselves, through participatory
processes, should be fully committed to support sustainable
Arcilla | Mendoza - Updated Notes
development activities by fostering equity in access to resources
and the benefits derived from them; and
(3) Integrated approach - This allows for a holistic view of problems
and issues obtaining in the environment as well as opportunities
for coordination and sharing that will eventually provide the
resources and political will to actually implement and sustain SEP
activities.
Sec.7 Environmentally Critical Areas Network (ECAN) -The SEP shall
establish a graded system of protection and development control over the
whole of Palawan, including its tribal lands forests, mines, agricultural areas,
settlement areas, small islands, mangroves, coral reefs, sea grass beds and
the surrounding sea. This shall be known as the Environmentally Critical
Areas Network, hereinafter referred to as ECAN, and shall serve as the main
strategy of the SEP.
The ECAN shall ensure the following:
(1) Forest conservation and protection through the imposition of a
total commercial logging ban in all areas of maximum protection
and in such other restricted use zones as the Palawan Council for
Sustainable Development as hereinafter created may provide;
(2) Protection of watersheds;
(3) Preservation of biological diversity;
(4) Protection of tribal people and the preservation of their culture.
(5) Maintenance of maximum sustainable yield;
(6) Protection of the rare and endangered species and their habitat;
(7) Provision of areas [or environmental and ecological research,
education and training; and
(8) Provision of areas for tourist and recreation.
Sec.8 Main Components. - The areas covered by the ECAN shall be
classified into three (3) main components;
(1) Terrestrial - The terrestrial component shall consist of the
mountainous as well as ecologically important low hills and lowland
areas of the whole province. It may be further subdivided into
smaller management components;
(2) Coastal/marine area - This area includes the whole coastline up to
the open sea. This is characterized by active fisheries and tourism
activities; and
(3) Tribal ancestral lands -These are the areas traditionally occupied
by the cultural communities.
Environmental Law | Summer 2017 31
 COVERAGE
TANO VS. SOCRATES (278 SCRA 154)
1. Environmental Impact Assessment
FACTS: 2. RP vs. City of Davao
The Sangguniang Panglungsod of Puerto Princesa enacted Ordinance No. 3. Technology Developers Inc. vs. CA
15-92 banning the shipment of live fish and lobster outside Puerto Princesa
4. Bangus Fry Fisherfalk vs. Lanzanas
City for a period of 5 years. In the same light, the SP Palawan also enacted
a Resolution that prohibits the catching, gathering, buying, selling,
possessing, and shipment of live marine coral-dwelling aquatic organisms
for 5 years within Palawan waters.
Petitioners Airline Shippers Association of Palawan, together with marine PD 1586 - ENVIRONMENTAL IMPACT ASSESSMEMT
merchants, were charged for violating the above ordinance and resolution by
the city and provincial governments.
The Environmental Impact Assessment (EIA) System in the Philippines,
Petitioners now alleged that they have the preferential rights as marginal
officially referred to as the Philippine EIS System (PEISS), was established
fishermen granted with privileges provided in Sec. 149 of the Local
under Presidential Decree (PD) 1586 on 11 June 1978. Section 4 of PD
Government Code, invoking the invalidity of the enactments as violative of
1586 provides that no person, partnership or corporation shall undertake or
their preferential rights.
operate any such declared environmentally critical project or area without
first securing an Environmental Compliance Certificate (ECC). Full
ISSUE:
implementation of the PEISS transpired after the issuance of Presidential
Whether the enactments are violative of preferential rights.
Proclamation 2146 in 1981 where the technical definition of Environmentally
Critical Projects (ECPs) and Environmentally Critical Areas (ECAs) was
provided.
HELD:
No. Enactments are valid exercise of police power of LGU to protect public
Purpose: To attain and maintain a rational and orderly balance between
interests and the public rights to a balanced and healthful ecology.
socio-economic growth and environmental protection
Rights and privileges invoked by petitioner are not absolute. The General
Welfare Clause of the Local Government Code mandates for the liberal
Overview
interpretation in giving the LGUs more powers to accelerate economic
 The pursuit of a comprehensive and integrated environmental protection
development and to upgrade the life of people in the community. LGUs are
program necessitates the establishment and institutionalization of a
then empowered to enact fishery laws in its municipal waters which
system whereby the exigencies of socio-economic undertakings can be
necessarily include the enactment of ordinances in order to effectively carry
reconciled with the requirements of environmental quality
out enforcement of fishery laws in the community.
 The regulatory requirements of Environmental Impact Statement and
Assessments instituted in pursuit of this national environmental
protection program have to work into their full regulatory and procedural
details in a manner consistent with the goals of the program
 Planning / Management Tool
o EIA – Procedure
o EIS – Document passed to the Department

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 32

Procedure: THE PROCESS
• To attain and maintain a rational and orderly balance between 1. Project Screening
socio- economic growth and environmental protection 2. Preliminary Site and Project Evaluation
• This established an ENVIRONMENTAL IMPACT STATEMENT 3. Scoping
SYSTEM founded and based on environmental impact statement, 4. Baseline Studies
required under Section 4 of P.D. No. 1151, of all agencies, 5. EIA PROPER (THE EIA STUDY)
instrumentalities of national government, including GOCCs, as well 6. EIA Review
as private corporations and entities for every proposed 7. Decision
project/undertaking which significantly affect the quality of the 8. Monitoring
environment.

Features RP VS. CITY OF DAVAO (388 SCRA 691)

1. Declared environmentally critical projects and areas are required to
obtain an Environmental Compliance Certificate before operation
2. Environmentally Critical Projects includes heavy industries, resource
extractive industries, infrastructure projects, golf course projects
3. Characteristics of Environmentally Critical Areas:
- Areas declared by law as natural parks, watershed reserves,
wildlife reserves, and sanctuaries
- Areas set aside as aesthetic, potential tourist spots
- Areas which constitute the habitat for any endangered or
threatened species of indigenous Philippine wildlife (flora and
fauna)
- Areas of unique historical, archeological, geological or scientific
interests - Areas which are traditionally occupied by cultural
communities or tribes
- Areas frequently visited and/or hard hit by natural calamities
(geologic hazards, floods, typhoons, volcanic activity, etc.)
- Areas of critical slope - Areas classified as prime agricultural lands
- Recharged areas of aquifers
- Waterbodies
- Mangrove areas
- Coral reefs
- Violators shall be punished by the suspension of cancellation of
his/its certificate and or fine for each violation
FACTS:
City of Davao filed an application for a Certificate of Non-Coverage (CNC)
for its proposed project, the ARTICA Sports Dome. The application was filed
with the DENR-Environmental Management Bureau (EMB). Attached is a
certificate from Planning & Development Office that the project is not located
in a critical area.
EMB denied application. It found:
 Davao is located in an environmentally-critical area.
 It must undergo Environmental Impact Assessment process and
submit EIS.
Davao filed a petition for mandamus and injunction with the RTC. RTC
granted. It held that nothing in P.D. No. 1586 requires LGU to comply.
ISSUES:
1. Whether Davao City, as a local government unit, is covered by PD
No. 1586.
2. Whether CNC should be issued to it.
HELD:
a. YES. Sec. 16 of the Local Government Code states that
among the duties of an LGU is to promote people’s right to a
balanced ecology. Hence, it is not exempt Also, as per the Civil
Code, a person is either natural or juridical. The State and its
political subdivisions are juridical persons. Hence, LGU is a
person covered by PD No. 1586.

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 33

 b. YES. Davao has sufficiently shown that the project area is not
environmentally-critical. Proclamation 2146 laid down all the
environmentally-critical areas/projects. The Sports Dome does
not fall under any of the categories.
TECHNOLOGY DEVELOPERS INC VS. CA (193 SCRA 147)
hazardous to the health of the people. As such, the company should cease
operating until such a time that the proper air pollution device is installed and
operational."
Reassessing the evidence, the RTC set aside its order granted the writ of
preliminary mandatory injunction. The CA denied Technology Developer's
petition for certiorari for lack of merit.

ISSUE: W/N the acting mayor had a legal ground for ordering the stoppage
Technology Developers, a corporation engaged in the manufacture and
of Technology Developer
export of charcoal briquette, received a letter from acting mayor Pablo Cruz:
1) ordering the full cessation of its plant in Guyong, Sta. Maria, Bulacan until
further order, and 2) requesting its Plant Manager to bring before the office
HELD:
of the mayor its building permit, mayor's permit, and Region III-Pollution of
Environment and Natural Resources Anti-Pollution Permit.
YES. The following circumstances militate against the maintenance of the
writ of preliminary injunction sought by petitioner:
Technology Developers undertook to comply with the request to produce the
required documents. It sought to secure the Region III-Pollution of
1. No mayor's permit had been secured. While it is true that the matter of
Environment and Natural Resources Anti-Pollution Permit although prior to
determining whether there is a pollution of the environment that requires
the operation of the plant, a Temporary Permit to Operate Air
control if not prohibition of the operation of a business is essentially
Pollution Installation was issued to it. Petitioners also sent its representatives
addressed to the Environmental Management Bureau of the
to the office of the mayor to secure a mayor’s permit but were not
Department of Environment and Natural Resources, it must be
entertained.
recognized that the mayor of a town has as much responsibility to
protect its inhabitants from pollution, and by virtue of his police power,
Eventually, the acting mayor ordered that the plant premises be padlocked,
he may deny the application for a permit to operate a business or
effectively causing the stoppage of operation. This was done without
otherwise close the same unless appropriate measures are taken to
previous and reasonable notice.
control and/or avoid injury to the health of the residents of the
community from the emissions in the operation of the business.
Technology Developers then instituted an action for certiorari, prohibition and
mandamus with preliminary injunction against the acting mayor with Bulacan
2. The Acting Mayor called the attention of petitioner to the pollution
RTC, alleging that the closure order was issued in grave abuse of discretion.
emitted by the fumes of its plant whose offensive odor "not only pollute
the air in the locality but also affect the health of the residents in the
The RTC found that the issuance of the writ of preliminary mandatory
area," so that petitioner was ordered to stop its operation until further
injunction was proper, ordering the acting mayor to immediately revoke his
orders.
closure order and allow Technology Developers to resume its normal
business operations until the case has been adjudicated on the merits.
3. This action of the Acting Mayor was in response to the complaint of the
residents of Barangay Guyong, Sta. Maria, Bulacan, directed to the
Upon MR, the Provincial Prosecutor presented evidence as to the allegation
Provincial Governor through channels.
that "Due to the manufacturing process and nature of raw materials used,
the fumes coming from the factory may contain particulate matters which are

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 34

4. The closure order of the Acting Mayor was issued only after an
investigation was made by Marivic Guina who in her report observed
that the fumes emitted by the plant goes directly to the surrounding
houses and that no proper air pollution device has been installed.
5. Petitioner failed to produce a building permit from the municipality of
Sta. Maria, but instead presented a building permit issued by
an official of Makati on March 6, 1987.
6. While petitioner was able to present a temporary permit to operate by
the then National Pollution Control Commission on December 15, 1987,
the permit was good only up to May 25, 1988. Petitioner had not exerted
any effort to extend or validate its permit much less to install any device
to control the pollution and prevent any hazard to the health of the
residents of the community.
Court takes note of the plea of petitioner focusing on its huge investment in
this dollar-earning industry. It must be stressed however, that concomitant
with the need to promote investment and contribute to the growth of the
economy is the equally essential imperative of protecting the health, nay the
very lives of the people, from the deleterious effect of the pollution of the
environment.
The well-known rule is that the matter of issuance of a writ of preliminary
injunction is addressed to the sound judicial discretion of the trial court and
its action shall not be disturbed on appeal unless it is demonstrated that it
acted without jurisdiction or in excess of jurisdiction or otherwise, in grave
abuse of its discretion. By the same token the court that issued such a
preliminary relief may recall or dissolve the writ as the circumstances may
warrant.
BANGUS FRY FISHERFOLK VS. LANZANAS (GR NO
131442)
FACTS:
Regional Executive Director Antonio G. Principe ("RED Principe") of Region
IV, Department of Environment and Natural Resources ("DENR"), issued an
Environmental Clearance Certificate ("ECC") in favor of respondent National
Arcilla | Mendoza - Updated Notes
Power Corporation("NAPOCOR"). The ECC authorized NAPOCOR to
construct a temporary mooring facility in Minolo Cove, Sitio Minolo,
Barangay San Isidro, Puerto Galera, Oriental Mindoro. The Sangguniang
Bayan of Puerto Galera has declared Minolo Cove, a mangrove area and
breeding ground for bangus fry, an eco-tourist zone.
The mooring facility would serve as the temporary docking site of
NAPOCOR's power barge, which, due to turbulent waters at its former
mooring site in Calapan, OrientalMindoro, required relocation to a safer site
like Minolo Cove. The 14.4 megawatts powerbarge would provide the main
source of power for the entire province of Oriental Mindoro pending the
construction of a land-based power plant in Calapan, Oriental Mindoro. The
ECC for the mooring facility was valid for two years counted from its date of
issuance or until 30June 1999. Petitioners, claiming to be fisherfolks from
Minolo, San Isidro, Puerto Galera, sought reconsideration of the ECC
issuance. Petitioners filed a complaint with the Regional Trial Court of
Manila, Branch 7, for the cancellation of the ECC and for the issuance of a
writ of injunction to stop the construction of the mooring facility.
Petitioners opposed the motion on the ground that there was no need to
exhaust administrative remedies. They argued that the issuance of the ECC
was in patent violation of Presidential Decree No. 1605, 8 Sections 26 and
27 of Republic Act No. 7160, and the provisions of DENR Department
Administrative Order No. 96-37 ("DAO 96-37") on the documentation of ECC
applications. Petitioners also claimed that the implementation of the ECC
was in patent violation of its terms. TC dismissed complaint.
ISSUE:
Whether the trial court erred in dismissing petitioners' complaint for lack of
cause action and lack of jurisdiction.
HELD:
Jurisdiction over the subject matter of a case is conferred by law. Such
jurisdiction is determined by the allegations in the complaint, irrespective of
whether the plaintiff is entitled to all or some of the reliefs sought.
A perusal of the allegations in the complaint shows that petitioners' principal
cause of action is the alleged illegality of the issuance of the ECC. The
violation of laws on environmental protection and on local government
participation in the implementation of environmentally critical projects is an
issue that involves the validity of NAPOCOR's ECC. If the ECC is void, the
necessary consequence, NAPOCOR or the provincial government of
Environmental Law | Summer 2017 35
Oriental Mindoro could not construct the mooring facility. The subsidiary COVERAGE
issue of non-compliance with pertinent local ordinances in the construction 1. Clean Air Act
of the mooring facility becomes immaterial for purposes of granting 2. Clean Water Act
petitioners' main prayer, which is the annulment of the ECC. Thus, if the 3. Ecological Solid Waste Management Act
court has jurisdiction to determine the validity of the issuance of the ECC, 4. Toxic Substance Control Act
then it has jurisdiction to hear and decide petitioners' complaint. 5. National Integrated Protected Areas Act
Clearly, the Manila RTC has jurisdiction to determine the validity of the 6. Wildlife Act
issuance of the ECC, although it could not issue an injunctive writ against 7. Fisheries Code
the DENR or NAPOCOR. However, since the construction of the mooring 8. Mineral Resources Conservation Act
facility could not proceed without a valid ECC, the validity of the ECC 9. People’s Small Scale Mining Program
remains the determinative issue in resolving petitioners' complaint. 10. Forestry Reform Code
11. Indigenous People’s Right Act

RA 8749 – CLEAN AIR ACT

DECLARATION OF PRINCIPLES
• The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and
harmony of nature
• The State shall promote and protect the global environment to
attain sustainable development while recognizing the primary
responsibility of local government units to deal with environmental
problems.
• The State recognizes that the responsibility of cleaning the habitat
and environment is primarily area-based. The State also recognizes
the principle that "polluters must pay".
• Finally, the State recognizes that a clean and healthy environment
is for the good of all and should therefore be the concern of all.

WHAT? outlines the government’s measures to REDUCE air pollution and

INCORPORATE environmental protection into its development plans.
It mandates the various government agencies to do the following in support
of the Act:

1. Department of Environment and Natural Resources (DENR) – act as

overall of the lead agency; prepare a National Air Quality Status Report
which shall be used as a basis in formulating the Integrated Air Quality

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 36

 Improvement Framework; issue rules and regulations in
implementation of the Act.
2. Department of Transportation and Communication (DOTC) – in
coordination with the DENR in case of industrial dischargers and the
DOTC, in case of motor vehicles, shall, based on environmental
techniques, design, impose on and collect regular emission fees from all
said dischargers as part of the emission permitting system or vehicle
registration renewal system, as the case may be; implement the
emission standards for motor vehicles
3. Department of Science and Technology (DOST) – with the DENR,
other agencies, private sector , the academe, non-government
organizations and people’s organization, shall establish a National
Research Development Program for the prevention and control of air
pollution.
4. Department of Trade and Industry (DTI) , DOST Local Government
Units (LGUs) - together with the DENR shall develop an action plan for
the control and management of air pollution from motor vehicles with the
Integrated Air Quality Management Framework.
5. DOTC, DTI and DENR - shall establish the procedures for the
inspection of motor vehicles and the testing of their emissions for the
purpose of determining the concentration and/or rate of emission of
pollutants discharged by the said sources.
6. Department of Energy (DOE) co-chaired with the DENR, in
consultation with the Bureau of Product Standards of DTI, DOST
with the fuel and automotive industries, academe and the
consumers – shall set specifications for all types of fuel and fuel-
related products, to improve fuel composition for increased efficiency
and reduced emissions.
7. Philippine Atmospheric, Geophysical and astronomical Service
Administration (PAGASA) – shall regularly monitor meteorological
factors affecting environmental conditions including ozone depletion and
greenhouse gases.
Arcilla | Mendoza - Updated Notes
the 8. Philippine Nuclear Research Institute (PNRI) – with the DENR shall
regulate all projects which will involve the use of atomic and/or nuclear
energy, and will entail relaease of radioactive substances into the
environment, incident to the establishment or possession of nuclear
energy facilities and radioactive materials, handling, transport ,
production , storage and use of radioactive materials.
9. Department of Education (DepEd), Commission on Higher
Education (CHED) , Department of Interior and Local Governments
(DILG) and the Philippine Information Agency ( PIA) – shall
encourage participation of government agencies and the private sector
including NGOs, POs, academe, environmental groups and other
private entities in a multi-sectoral campaign.
PROHIBITED ACTS
1. BURNING
a. Burning of Municipal Waste
b. Burning of Hazardous Substances and Wastes
c. Burning of Bio-Medical Waste (Incineration)
2. SMOKING
a. Smoking in Public Places
3. FUEL RELATED ACTS
a. Manufacture, Importation, Sale, Offer for Sale, Introduction
into Commerce, Conveyance or other Disposition of
Leaded Gasoline
b. Manufacture, Processing, Trade of Fuel or Fuel Additive
Without Prior Registration of the Fuel or Fuel Additive with
the DOE
c. Misfuelling
COVERED BY CLEAN AIR ACT
A. POLLUTION FROM MOTOR VEHICLES - refers to vehicle like cars,
trucks, buses, jeepneys, tricycles, motorcycles and vans.
B. POLLUTION FROM STATIONARY SOURCES - refers industrial firms
and smokestacks of power plants, hotels and other establishments.
Environmental Law | Summer 2017 37
 With respect to any trade, industry, process and fuel burning equipment
or industrial plant emitting air pollutants, the concentration at the point of
emission shall not exceed the following limits:
All stationary sources must comply with the National Emission
Standards for Source Specific Air Pollutants (NESSAP) and National
Ambient Air Quality Standards (NAAQS) and must secure their permit to
operate, prior to operation.
C. POLLUTION FROM OTHER SOURCES - refers to sources of emission
other than the above. These include smoking, burning of garbage, and
dust from construction, unpaved grounds, etc.
RA 9275 – CLEAN WATER ACT
- aims to protect the country’s water bodies from pollution from land-based
sources, industries and commercial establishments, agriculture and
community (household activities).
Coverage of the Act - This Act shall apply to water quality management in
all water bodies: Provided, That it shall primarily apply to the abatement and
control of pollution from land based sources: Provided, further, That the
water quality standards and regulations and the civil liability and penal
provisions under this Act shall be enforced irrespective of sources of
pollution.
It mandates the various government agencies to do the following in support
of the Act:
1 Philippine Coast Guard in coordination with DA and the Department
shall enforce for the enforcement of water quality standards in marine
waters, set pursuant to this Act, specifically from offshore sources;
2 DPWH through its attached agencies, such as the MWSS, LWUA, and
including other urban water utilities for the provision or sewerage and
sanitation facilities and the efficient and safe collection, treatment and
disposal of sewage within their area of jurisdiction;
3 DA, shall coordinate with the Department, in the formulation of
guidelines for the re-use of wastewater for irrigation and other
agricultural uses and for the prevention, control and abatement of
pollution from agricultural and aquaculture activities: Provided, That
discharges coming from non-point sources be categorized and further
defined pursuant to this Act: Provided, further, That the Bureau of
Fisheries and Aquatic Resources (BFAR) of the DA shall be primarily
responsible for the prevention and control of water pollution for the
Arcilla | Mendoza - Updated Notes
development, management and conservation of the fisheries and
aquatic resources;
4 DOH shall be primarily responsible for the promulgation, revision and
enforcement of drinking water quality standards;
5 DOST, in coordination with the Department and other concerned
agencies, shall prepare a program for the evaluation, verification,
development and public dissemination of pollution prevention and
cleaner production technologies; and
6 Department of Education (DepEd), Commission Higher Education
(CHED), Department of the Interior and Local Government (DILG) and
Philippine Information Agency (PIA) shall assist and coordinate with the
Department in, the preparation and implementation of a comprehensive
program pursuant to the objectives of this Act.
The Act also outlines the beneficial use of water (as follows):
Beneficial use - means the use of the environment or any element or
segment thereof conducive to public or private welfare, safety and health;
and shall include, but not be limited to, the use of water for domestic,
municipal, irrigation, power generation, fisheries, livestock raising, industrial,
recreational and other purposes.
(a) Use of water for domestic purposes - means the utilization of
water for drinking, washing, bathing, cooking or other household
needs, home gardens and watering of lawns or domestic animals;
(b) Use of water for municipal purposes - means the utilization of
water for supplying water requirements of the community;
(c) Use of water for irrigation - means the utilization of water for
producing agricultural crops;
(d) Use of water for power generation - means the utilization of
water for producing electrical or mechanical power;
(e) Use of water for fisheries - means the utilization of water for the
propagation of culture of fish as a commercial enterprise;
(f) Use of water for livestock raising - means the utilization of water
for large herds or flocks of animals raised as a commercial
enterprise;
(g) Use of water for industrial purposes - means the utilization of
water in factories, industrial plants and mines, including the use of
water as an ingredient of a finished product; and
(h) Use of water for recreational purposes - means the utilization of
water for swimming pools, bath houses, boating, water skiing, golf
Environmental Law | Summer 2017 38
 courses and other similar facilities in resorts and other places of
recreation.
RA 9003 – ECOLOGICAL SOLID WASTE MANAGEMENT
ACT
This law aims for the reduction of solid waste through source reduction and
waste minimization measures, treatment and disposal of solid waste in
accordance with ecologically sustainable development principles.
It also aims to ensure the proper segregation, collection, transport, storage,
treatment, and disposal of solid waste through the formulation and adoption
of the best environmental practice in ecological waste management
EXCLUDING INCINERATION [burning of waste].
R.A. No. 9003 considers “waste” as a resource that can be recovered,
emphasizing RECYCLING, REUSE, and COMPOSTING as methods to
minimize waste problems.
The Act also gives strong emphasis on the role of municipal and LGUs
providing for the creation of solid waste management communities up to the
barangay level.
NOTES:
 Approach: Womb to Tomb – the law deals from the source of the
waste up to the disposal
 Problem: ^ inc. in population - ^ inc. in waste - ^ inc. in pollution
RA 6969 – TOXIC SUBSTANCES CONTROL ACT
Overview: It has been recognized that the public and the environment are at
risk in the use or exposure to chemicals as well as the long term damage
brought about by careless handling or disposal of hazardous wastes.
Under this act importation, manufacture, processing, handling, storage,
transportation, sale, distribution, use and disposal of all unregulated
chemical substances and mixtures in the Philippines, as well as the entry
even in transit, or storage and disposal of hazardous and nuclear wastes are
regulated.
The Department of Environment and Natural Resources shall be the
implementing agency and shall be assisted by the Inter-Agency Advisory
Council
It provides for the regulation of all chemical substances that may pose threat
to public health and the environment through import, manufacture, sale, use,
Arcilla | Mendoza - Updated Notes
distribution, and disposal as well as the regulation of all hazardous wastes
from generation, transport, storage, re-use/recycling, treatment and disposal
[and to prevent entry of nuclear wastes into the country FOR WHATEVER
PURPOSE.]
Registration of the following is required to ensure that industrial economic
growth is achieved in an environmentally sound manner to effectively
manage hazardous wastes in order to minimize human and environmental
impacts cause by industrial activities:
 Hazardous wastes generators
 Hazardous wastes treater
 Hazardous wastes transporter
Violators shall be subject to fines, imprisonment, dismissal from office,
confiscation and forfeiture chemical substances and mixtures in favor of the
government, deportation and barred from entry into the Philippines in case of
foreigner
APPROACH:
• Womb to Tomb – the law deals from the source of the waste up to
the disposal
Chemical Substance Exempt from the Pre-Manufacture Notification
• Those included in the categories of chemical substances and
mixtures already listed in the inventory or existing chemical;
• Those to be produces in small quantities solely for experimental or
research and development purposes;
• Chemical substances and mixtures that will not present an
unreasonable risk to health and the environment; and
• Chemical substances and mixtures that exists temporarily and
which have no human or environmental exposure such as those
which exist as a result of chemical reactions in the manufacture or
processing of a mixture of another chemical substance
Prohibited Acts
• Knowingly use in chemical substance or mixture which is imported,
manufactured, processed or distributed in violation of this Act or
implementing rules and regulations or orders;
• Failure or refusal to submit reports, notices or on the information,
access to records as required by this Act, or permit inspection of
Environmental Law | Summer 2017 39
 establishment where chemicals are manufactured, processed,
stored or otherwise held;
• Failure or refusal to comply with the pre-manufacture and pre-
importation requirements;
• Cause, aid, or facilitate, directly or indirectly, in the storage,
importation or bringing into Philippine territory, including its maritime
economic zones, even in transit either by means of land, air or sea
transportation or otherwise keeping in storage any amount of
hazardous and nuclear wastes in any part of the Philippines.
RA 7586 – NATIONAL INTEGRATED PROTECTED AREAS
ACT
-provides the legal framework for the establishment/management of
protected areas in the Philippines.
The law defines PROTECTED AREAS as the identified portions of land
and/or water set aside by reason of their unique physical and biological
significance, managed to enhance biological diversity and protected against
destructive human exploration.
It establishes a National Integrated Protected Areas System (NIPAS) which
will designate, whether terrestrial, wetland or marine, protected areas, areas
that "shall encompass outstanding remarkable areas and biologically
important public lands that are habitats of rare and endangered species of
plants and animals, biogeographic zones and related ecosystems."
Enlisting categories of protected areas are as follows:
(1) Strict nature reserve;
(2) Natural park;
(3) Natural monument;
(4) Wildlife sanctuary;
(5) Protected landscapes and seascapes;
(6) Resource reserve;
(7) Natural biotic areas; and,
(8) Other categories established by law, conventions or
international agreements which the Philippine Government
is a signatory.
Buffer zones - are identified areas outside the boundaries of and
immediately adjacent to designated protected areas pursuant to Section 8
Arcilla | Mendoza - Updated Notes
that need special development control in order to avoid or minimize harm to
the protected area;
Examples : Mayon Volcano, Caramoan National Park, Tañon Strait
ESTABLISHMENT AND EXTENT OF THE SYSTEM
 Upon the recommendation of the DENR, a certain protected area
may be established, disestablished, or its boundaries may be
modified pursuant to an act of Congress.
PROHIBITED ACTS
• Hunting, destroying, disturbing, or mere possession of any plants or
animals or products derived therefrom without a permit from the
Management Board;
• Dumping of any waste products detrimental to the protected area,
or to the plants and animals or inhabitants therein;
• Use of any motorized equipment without a permit from the
Management Board;
• Mutilating, defacing or destroying objects of natural beauty or
objects of interest to cultural communities (of scenic value);
• Damaging and leaving roads and trails in a damaged condition;
• Squatting, mineral locating, or otherwise occupying any land;
• Constructing or maintaining any kind of structure, fences or
enclosures, conducting any business enterprise without a permit;
• Leaving in exposed or unsanitary conditions refuse or debris, or
depositing in ground or in bodies of water; and
• Altering, removing destroying or defacing boundary marks or signs.
Ancestral domain and other customary rights and interests of indigenous
communities shall be accorded due recognition in protected areas.
Moreover, the preservation of ancestral domain and customary rights within
protected areas shall be a management objective.
Indigenous Cultural Communities - Ancestral domain and other customary
rights and interests of indigenous communities shall be accorded due
recognition in protected areas. Moreover, the preservation of ancestral
domain and customary rights within protected areas shall be a management
objective. Tenured Migrants - Any person who has actually and continuously
occupied an area for five (5) years prior to its designation as part of a
protected area. As a tenured migrant he shall be eligible to become a
Environmental Law | Summer 2017 40
steward of a portion of land within the multiple use management or buffer
zone of the protected area, and from which he may derive subsistence
RA 9147 – WILDLIFE ACT
This Act calls for the CONSERVATION of the country’s wildlife resources
and their habitats for sustainability as a policy of the State.
Among its features are:
• Guidelines on access and benefits sharing
• Quota for collection of specimens
• Ecological and rehabilitation bond to be posted by researchers.
• Monitoring system for bioprospecting. [NOTE: Check the definition
of terms as provided by the law.]
Objectives: (a) Protection/conservation of species and their habitats, (b)
Regulation in the collection and trade of wildlife, (c) to initiate and support
scientific studies on conservation of biodiversity.
JURISDICTION
• Section 4. Jurisdiction of the Department of Environment and
Natural Resources and the Department of Agriculture. The
Department of Environment and Natural Resources (DENR) shall
have jurisdiction over all terrestrial plant and animal species, all
turtles and tortoises and wetland species, including but not limited
to crocodiles, waterbirds and all amphibians and dugong. The
Department of Agriculture (DA) shall have jurisdiction over all
declared aquatic critical habitats, all aquatic resources including but
not limited to all fishes, aquatic plants, invertebrates and all marine
mammals, except dugong. The secretaries of the DENR and the DA
shall review, and by joint administrative order, revise and regularly
update the list of species under their respective jurisdiction. In the
Province of Palawan, jurisdiction herein conferred is vested to the
Palawan Council for Sustainable Development pursuant to
Republic Act No. 7611.
• All activities shall be authorized by the Secretary upon proper
evaluation of best available information or scientific data showing
that the activity is, or for a purpose, not detrimental to the survival
of the species or subspecies involved and/or their habitat.
Arcilla | Mendoza - Updated Notes
DEFINITION OF TERMS • (a) "Bioprospecting" means the research,
collection and utilization of biological and genetic resources for purposes of
applying the knowledge derived there from solely for commercial purposes;
ILLEGAL ACTS - Section 27. Illegal Acts. - Unless otherwise allowed in
accordance with this Act, it shall be unlawful for any person to willfully and
knowingly exploit wildlife resources and their habitats, or undertake the
following acts;
(a) killing and destroying wildlife species, except in the following
instances;
(b) when it is done as part of the religious rituals of established tribal
groups or indigenous cultural communities;
(c) when the wildlife is afflicted with an incurable communicable
disease;
(d) when it is deemed necessary to put an end to the misery suffered
by the wildlife;
(e) when it is done to prevent an imminent danger to the life or limb of
a human being; and
(f) when the wildlife is killed or destroyed after it has been used in
authorized research or experiments.
a. inflicting injury which cripples and/or impairs the
reproductive system of wildlife species;
b. effecting any of the following acts in critical habitat(s)
(g) dumping of waste products detrimental to wildlife;
(h) squatting or otherwise occupying any portion of the critical habitat;
(i) mineral exploration and/or extraction;
(j) burning;
(k) logging; and
(l) quarrying
a. introduction, reintroduction or restocking of wildlife
resources;
b. trading of wildlife;
c. collecting, hunting or possessing wildlife, their by-products
and derivatives;
d. gathering or destroying of active nests, nest trees, host
plants and the like;
e. maltreating and/or inflicting other injuries not covered by
the preceding paragraph; and
f. transporting of wildlife.
Environmental Law | Summer 2017 41
LIST/CATEGORY
• Sec. 5(s) – Threatened Species: General term for
species/subspecies which are critically endangered, endangered,
vulnerable or other accepted categories of wildlife whose
population is at risk of extinction
• Sec. 5(f) – Critically Endangered Species: Facing extremely high
risk of extinction in the wild in the immediate future
• Sec. 5(h) – Endangered Species: Not critically endangered but
survival in the wild is unlikely if the causal factors continue
operating
• Sec. 5(w) – Vulnerable Species: Not critically endangered or
endangered but is under threat from adverse factors throughout
their range and likely to become endangered in the near future
RA 8550 – FISHERIES CODE
Objectives:
 Conservation, protection and sustained management of the
country’s fishery and aquatic resources;
 Poverty alleviation and the provision of supplementary
livelihood among municipal fisherfolk;
 Improvement of productivity of aquaculture within ecological
limits;
 Optimal utilization of offshore and deep-sea resources; and
 Upgrading of post-harvest technology.
Chapter 1 declares the policy of the State with respect to fisheries and
contains a large definitions section. It is a declared policy to limit access
to the fishery and aquatic resources of the Philippines for the exclusive
use and enjoyment of Filipino citizens. Another principle of policy is the
protection of municipal fishermen. Fishery and aquatic resources shall
be managed in a manner consistent with the concept of integrated
coastal area management.
Chapter II contains the main body of rules relative to the management
and conservation of fisheries and to aquaculture. Fisheries are
classified in municipal fisheries, i.e. fishing in municipal waters, and
commercial fishing. Provisions of the Chapter also regulate post-harvest
facilities, activities and trade.
Arcilla | Mendoza - Updated Notes
The Department of Fisheries may designate areas in Philippine waters
beyond 15 kilometers of the shoreline as fishery reservation or fish
refuges and sanctuaries in bays, foreshore lands, continental shelf or
any fishing ground to be set aside for the cultivation of mangroves to
strengthen the habitat and the spawning grounds of fish. Remaining
Chapters deal with fisheries research and development (V), prescribe
penalties and offences (VI), and contain general provisions (VII).
RA 7942 – MINERAL RESOURCES CONSERVATION
ACT
-mandates the State to manage the country’s mineral resources and to
control and supervise the exploration, development, and utilization of
mineral resources.
The law reiterates the constitutional provision that only the government
may grant mining rights to individuals and corporations. It also provides
for areas open to mining operations subject to any existing rights on
reservation and prior agreements of all parties.
Open to mining:
– Public and private lands with minerals
– Timberlands and forests with minerals
Not open to mining:
– Military and government reservations
– Areas near or under buildings, cemeteries, highways, bridges,
reservoirs, roads, plantations
– Areas covered by valid and existing mining rights
– Those expressly prohibited by law
– Areas covered by small-scale mining operations
– Virgin forests, watershed reserves, mangroves, national parks,
areas covered under NIPAS Law
ANCESTRAL LANDS AND ICC AREAS
• No mineral agreements, FTAA and mining permits shall be granted
in ancestral lands/domains.
• A royalty payment shall be negotiated which shall not be less than
1% of the Gross Output of the mining operations in the area.
• Representation in the Multi-partite Monitoring Committee.
Environmental Law | Summer 2017 42
 SOCIAL AND COMMUNITY DEVELOPMENT AND RESEARCH AND
DEVELOPMENT
• Provide for the mandatory Filipinization program, technology
transfer, and the training and priority employment of local residents.
ENVIRONMENTAL AND SAFETY CONCERNS
• Mandatory allocation of an approximately 10% of the initial capital
expenditures of the mining project for environment-related
activities.
• Mandatory annual allocation of 3-5% of the direct mining and
milling costs to implement an Annual Environmental Protection and
Enhancement Program.
• Mandatory establishment of a MINE REHABILITATION FUND
(MRF).
• Mandatory establishment of the Contingent Liability and
Rehabilitation Fund (CLRF).
• Conduct of Environmental Work Program (EWP) during the
exploration stage and an Environmental Protection and
Enhancement Program (EPEP) during the development and
operations stage.
RA 7076 – PEOPLE’S SMALL SCALE MINING PROGRAM
Republic Act No. 7076 (1991), otherwise known as the “People’s Small-
Scale Mining Act” defines small-scale mining as minimum activities which
rely heavily on manual labor using simple implements and methods, and
which do not use explosives or heavy mining equipment.
The main purpose of the law is:
(1) To effect an orderly and systematic disposition of small-scale
mining areas in the country;
(2) To regulate the small-scale mining industry with the view to
encourage their growth and productivity; and
(3) To provide technical, financial and marketing assistance and
efficient collection of government revenues.
Through this law, the harmful effects of the classic trade-off between
development and environment could be minimized if not totally avoided. This
law was authored by Senator Aquilino Pimentel Jr.
With Republic Act 7076 it allows small miners under this law to use only
simple equipment like pick and shovel in extracting gold and other precious
Arcilla | Mendoza - Updated Notes
metals in their mining areas. In this age of modern technology, this law is
making sure that the small mining law should benefit the small miners and
not only the big-time operators who are using the skills and sweat of small-
scale miners to accumulate a fortune.
Under RA 7076, no ancestral land may be declared as a people’s small
scale mining area without the prior consent of the cultural communities
concerned. This respects the rights of the indigenous peoples to their
ancestral lands which are fully guaranteed under existing laws. The law
defines small miners as Filipino citizens who, individually or in tandem with
others, voluntarily form a cooperative, duly licensed by the Department of
Environment and Natural Resources, to engage in the extraction or removal
of minerals or ore-bearing materials from the ground.
PD 705 – FORESTRY REFORM CODE
Forest management in the Philippines is governed by Presidential Decree
No. 705, also known as the “Revised Forestry Code of the Philippines”.
Issued on 19 May 1975, the decree, specifically Section 2, outlines the
policies of the state for the management of forest resources as follows:
1. Multiple use of forestland shall be oriented to the country’s
development and progress requirements, the advancement of
science and technology and the public welfare;
2. Land classification and survey shall be systematized and
accelerated;
3. The establishment of wood-processing plants shall be encouraged
and rationalized; and
4. The protection, development and rehabilitation of forestlands shall
be emphasized so as to ensure continuity in production.
For the purpose of implementing the provisions of this Code, the Bureau of
Forestry, the Reforestation Administration, the Southern Cebu Reforestation
Development Project, and the Parks and Wildlife Office are merged into
single agency to be known as the Bureau of Forest Development (sect. 4).
The Bureau shall have jurisdiction and authority over all forest land, grazing
lands, and all forest reservations including watershed reservations presently
administered by other government agencies. The Bureau shall be directly
under the control and supervision of the Secretary of the Department of
Natural Resources, hereinafter referred to as the Department Head (sect. 7).
The Department Head, upon the recommendation of the Director of Forest
Environmental Law | Summer 2017 43
Development, shall promulgate the rules and regulations necessary to
implement effectively the provisions of this Code (sect. 9). The Agency shall
have divisions, including a Wildlife and Parks Division, and district and
regional offices, here created. The Department Head shall prescribe the
criteria, guidelines and methods for the proper and accurate classification
and survey of all lands of the public domain into agricultural, industrial or
commercial, residential, resettlement, mineral, timber or forest, and grazing
lands, and into such other classes as now or may hereafter be provided by
law, rules and regulations (sect. 13). Areas needed for forest purposes are
outlined in section 16.
Chapter III provides for matters relating to use of forest resources, such as
licenses, license agreements, leases and permits for purposes of utilize,
exploit, occupy, possess or conduct any forestry activity, harvesting methods
(sect. 22), timber inventory, annual allowable cut (sect. 26), forest
concessions (sect. 28), wood processing industry, reforestation (sect. 33).
industrial tree plantations, tree farms and agro-forestry farms (sect. 34),
forest protection (sects. 37 to 53), including protection of swamplands and
mangrove forests (sect. 43), forest roads, etc. This Chapter also makes
provision for special uses of forest resources, such as grazing, wildlife, and
recreation, and for the measuring of timber. The last part (Chap. IV) of this
Act prescribes criminal offences, including unlawful occupation or destruction
of forest lands and grazing lands. (92 sections)
RA 8371 – INDIGENOUS PEOPLE’S RIGHTS ACT
ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF
INDIGENOUS CULTURAL COMMUNITIES/INDIGENOUS PEOPLES,
CREATING A NATIONAL COMMISSION ON INDIGENOUS PEOPLES,
ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING
FUNDS THEREFOR, AND FOR OTHER PURPOSES
SECTION 2. Declaration of State Policies. — The State shall recognize and
promote all the rights of Indigenous Communities/Indigenous Peoples
(ICCs/IPs) hereunder enumerated within the framework of the Constitution:
a) The State shall recognize and promote the rights of ICCs/IPs within
the framework of national unity and development;
b) The State shall protect the rights of ICCs/IPs to their ancestral
domains to ensure their economic, social and cultural well being
and shall recognize the applicability of customary laws governing
Arcilla | Mendoza - Updated Notes
property rights or relations in determining the ownership and extent
of ancestral domain;
c) The State shall recognize, respect and protect the rights of
ICCs/IPs to preserve and develop their cultures, traditions and
institutions. It shall consider these rights in the formulation of
national laws and policies;
d) The State shall guarantee that members of the ICCs/IPs regardless
of sex, shall equally enjoy the full measure of human rights and
freedoms without distinction or discrimination;
e) The State shall take measures, with the participation of the
ICCs/IPs concerned, to protect their rights and guarantee respect
for their cultural integrity, and to ensure that members of the
ICCs/IPs benefit on an equal footing from the rights and
opportunities which national laws and regulations grant to other
members of the population; and
f) The State recognizes its obligations to respond to the strong
expression of the ICCs/IPs for cultural integrity by assuring
maximum ICC/IP participation in the direction of education, health,
as well as other services of ICCs/IPs, in order to render such
services more responsive to the needs and desires of these
communities.
Towards these ends, the State shall institute and establish the necessary
mechanisms to enforce and guarantee the realization of these rights, taking
into consideration their customs, traditions, values, beliefs, interests and
institutions, and to adopt and implement measures to protect their rights to
their ancestral domains.
Section 3. Definition of Terms. - For purposes of this Act, the following terms
shall mean:
a) Ancestral Domains - Subject to Section 56 hereof, refer to all areas
generally belonging to ICCs/IPs comprising lands,inland waters, coastal
areas, and natural resources therein, held under a claim of ownership,
occupied or possessed by ICCs/IPs, themselves or through their
ancestors, communally or individually since time immemorial,
continuously to the present except when interrupted by war, force
majeure or displacement by force, deceit, stealth or as a consequence
of government projects or any other voluntary dealings entered into by
government and private individuals, corporations, and which are
necessary to ensure their economic, social and cultural welfare. It shall
Environmental Law | Summer 2017 44
 include ancestral land, forests, pasture, residential, agricultural, and
other lands individually owned whether alienable and disposable or
otherwise, hunting grounds, burial grounds, worship areas, bodies of
water, mineral and other natural resources, and lands which may no
longer be exclusively occupied by ICCs/IPs but from which their
traditionally had access to for their subsistence and traditional activities,
particularly the home ranges of ICCs/IPs who are still nomadic and/or
shifting cultivators;
b) Ancestral Lands - Subject to Section 56 hereof, refers to land occupied,
possessed and utilized by individuals, families and clans who are
members of the ICCs/IPs since time immemorial, by themselves or
through their predecessors-in-interest, under claims of individual or
traditional group ownership,continuously, to the present except when
interrupted by war, force majeure or displacement by force, deceit,
stealth, or as a consequence of government projects and other
voluntary dealings entered into by government and private
individuals/corporations, including, but not limited to, residential lots, rice
terraces or paddies, private forests, swidden farms and tree lots;
c) Indigenous Cultural Communities/Indigenous Peoples - refer to a group
of people or homogenous societies identified by self-ascription and
ascription by other, who have continuously lived as organized
community on communally bounded and defined territory, and who
have, under claims of ownership since time immemorial, occupied,
possessed customs, tradition and other distinctive cultural traits, or who
have, through resistance to political, social and cultural inroads of
colonization, non-indigenous religions and culture, became historically
differentiated from the majority of Filipinos. ICCs/IPs shall likewise
include peoples who are regarded as indigenous on account of their
descent from the populations which inhabited the country, at the time of
conquest or colonization, or at the time of inroads of non-indigenous
religions and cultures, or the establishment of present state boundaries,
who retain some or all of their own social, economic, cultural and
political institutions, but who may have been displaced from their
traditional domains or who may have resettled outside their ancestral
domains;
d) National Commission on Indigenous Peoples (NCIP) - refers to the
office created under this Act, which shall be under the Office of the
President, and which shall be the primary government agency
Arcilla | Mendoza - Updated Notes
responsible for the formulation and implementation of policies, plans
and programs to recognize, protect and promote the rights of ICCs/IPs;
e) Native Title - refers to pre-conquest rights to lands and domains which,
as far back as memory reaches, have been held under a claim of
private ownership by ICCs/IPs, have never been public lands and are
thus indisputably presumed to have been held that way since before the
Spanish Conquest;
f) Sustainable Traditional Resource Rights - refer to the rights of ICCs/IPs
to sustainably use,manage, protect and conserve a) land, air, water, and
minerals; b) plants, animals and other organisms; c) collecting, fishing
and hunting grounds; d) sacred sites; and e) other areas of economic,
ceremonial and aesthetic value in accordance with their indigenous
knowledge, beliefs, systems and practices; and
g) Time Immemorial - refers to a period of time when as far back as
memory can go, certain ICCs/IPs are known to have occupied,
possessed in the concept of owner, and utilized a defined territory
devolved to them, by operation of customary law or inherited from their
ancestors, in accordance with their customs and traditions.
CHAPTER III RIGHTS TO ANCESTRAL DOMAINS
Section 4. Concept of Ancestral Lands/Domains. - Ancestral lands/domains
shall include such concepts of territories which cover not only the physical
environment but the total environment including the spiritual and cultural
bonds to the area which the ICCs/IPs possess, occupy and use and to which
they have claims of ownership.
Section 5. Indigenous Concept of Ownership. - Indigenous concept of
ownership sustains the view that ancestral domains and all resources found
therein shall serve as the material bases of their cultural integrity. The
indigenous concept of ownership generally holds that ancestral domains are
the ICC's/IP's private but community property which belongs to all
generations and therefore cannot be sold, disposed or destroyed. It likewise
covers sustainable traditional resource rights.
Section 6. Composition of Ancestral Lands/Domains. - Ancestral lands and
domains shall consist of all areas generally belonging to ICCs/IPs as
referred under Sec. 3, items (a) and (b) of this Act.
Environmental Law | Summer 2017 45
Section 7. Rights to Ancestral Domains. - The rights of ownership and
possession of ICCs/IPs t their ancestral domains shall be recognized and
protected. Such rights shall include:
a) Rights of Ownership.- The right to claim ownership over lands,
bodies of water traditionally and actually occupied by ICCs/IPs,
sacred places, traditional hunting and fishing grounds, and all
improvements made by them at any time within the domains;
b) Right to Develop Lands and Natural Resources. - Subject to
Section 56 hereof, right to develop, control and use lands and
territories traditionally occupied, owned, or used; to manage and
conserve natural resources within the territories and uphold the
responsibilities for future generations; to benefit and share the
profits from allocation and utilization of the natural resources found
therein; the right to negotiate the terms and conditions for the
exploration of natural resources in the areas for the purpose of
ensuring ecological, environmental protection and the conservation
measures, pursuant to national and customary laws; the right to an
informed and intelligent participation in the formulation and
implementation of any project, government or private, that will affect
or impact upon the ancestral domains and to receive just and fair
compensation for any damages which they sustain as a result of
the project; and the right to effective measures by the government
to prevent any interfere with, alienation and encroachment upon
these rights;
c) Right to Stay in the Territories- The right to stay in the territory and
not be removed therefrom. No ICCs/IPs will be relocated without
their free and prior informed consent, nor through any means other
than eminent domain. Where relocation is considered necessary as
an exceptional measure, such relocation shall take place only with
the free and prior informed consent of the ICCs/IPs concerned and
whenever possible, they shall be guaranteed the right to return to
their ancestral domains, as soon as the grounds for relocation
cease to exist. When such return is not possible, as determined by
agreement or through appropriate procedures, ICCs/IPs shall be
provided in all possible cases with lands of quality and legal status
at least equal to that of the land previously occupied by them,
suitable to provide for their present needs and future development.
Persons thus relocated shall likewise be fully compensated for any
resulting loss or injury;
Arcilla | Mendoza - Updated Notes
d) Right in Case of Displacement. - In case displacement occurs as a
result of natural catastrophes, the State shall endeavor to resettle
the displaced ICCs/IPs in suitable areas where they can have
temporary life support system: Provided, That the displaced
ICCs/IPs shall have the right to return to their abandoned lands
until such time that the normalcy and safety of such lands shall be
determined: Provided, further, That should their ancestral domain
cease to exist and normalcy and safety of the previous settlements
are not possible, displaced ICCs/IPs shall enjoy security of tenure
over lands to which they have been resettled: Provided,
furthermore, That basic services and livelihood shall be provided to
them to ensure that their needs are adequately addressed:
e) Right to Regulate Entry of Migrants. - Right to regulate the entry of
migrant settlers and organizations into the domains;
f) Right to Safe and Clean Air and Water. - For this purpose, the
ICCs/IPs shall have access to integrated systems for the
management of their inland waters and air space;
g) Right to Claim Parts of Reservations. - The right to claim parts of
the ancestral domains which have been reserved for various
purposes, except those reserved and intended for common and
public welfare and service; and
h) Right to Resolve Conflict. - Right to resolve land conflicts in
accordance with customary laws of the area where the land is
located, and only in default thereof shall the complaints be
submitted to amicable settlement and to the Courts of Justice
whenever necessary.
Section 8. Rights to Ancestral Lands. - The right of ownership and
possession of the ICCs/IPs, to their ancestral lands shall be recognized and
protected.
a) Right to transfer land/property. - Such right shall include the right to
transfer land or property rights to/among members of the same
ICCs/IPs, subject to customary laws and traditions of the
community concerned
b) Right to Redemption. - In cases where it is shown that the transfer
of land/property rights by virtue of any agreement or devise, to a
non-member of the concerned ICCs/IPs is tainted by the vitiated
consent of the ICCs/IPs,or is transferred for an unconscionable
consideration or price, the transferor ICC/IP shall have the right to
Environmental Law | Summer 2017 46
 redeem the same within a period not exceeding fifteen (15) years
from the date of transfer.
Section 9. Responsibilities of ICCs/IPs to their Ancestral Domains. -
ICCs/IPs occupying a duly certified ancestral domain shall have the following
responsibilities:
a) Maintain Ecological Balance- To preserve, restore, and maintain a
balanced ecology in the ancestral domain by protecting the flora
and fauna, watershed areas, and other reserves;
b) Restore Denuded Areas- To actively initiate, undertake and
participate in the reforestation of denuded areas and other
development programs and projects subject to just and reasonable
remuneration; and
c) Observe Laws- To observe and comply with the provisions of this
Act and the rules and regulations for its effective implementation.
National Commission on Indigenous Peoples [AO No. 1, s.
1998] RULES AND REGULATIONS IMPLEMENTING “THE
INDIGENOUS PEOPLES’ RIGHTS ACT OF 1997”
d) Human Dignity. The inherent and inalienable distinct character,
sacred human dignity, and unique identity of indigenous peoples as
peoples shall be respected;
e) Subsidiarity, Solidarity and Total Human Development. In the
pursuit of civil, political, economic, social and cultural development,
the human person shall be the central subject thereof and its active
participant and beneficiary. Everyone has duties to the community.
In the exercise of rights and freedoms, everyone shall be subject
only to such limitations as are determined by custom or law, solely
for the purpose of securing due recognition and respect for the
rights and freedoms of others and of meeting the just requirements
of morality, public order and the general welfare in a democratic
society; and f) Transparency and Capacity Building. The
Commission shall perform its tasks on the basis of transparency
and active support and participation by the ICCs/IPs, and shall take
a proactive strategy in empowering ICCs/IPs and in the fulfillment
of its mandate

Section 4. Operating Principles. In implementing the policies enumerated in

these Rules, the following operating principles shall be adhered to:
a) Cultural Diversity. As the beginning of unity is difference, the
diversity of cultures, traditions, beliefs and aspirations of indigenous
peoples shall be encouraged and fostered in openness, mutual
respect for, and active defense of the equal and inalienable dignity
and universal, indivisible, interdependent and interrelated rights of
every human being, in the spirit of inter-people cooperation;
b) Consensus and Peace-Building. In resolving conflicts or disputes
affecting or pertaining to indigenous peoples, any determination or
decision thereon shall be reached through dialogue and consensus
as far as practicable;
c) Cultural Integrity. Within ancestral domains/lands, the holistic and
integrated adherence of indigenous peoples to their respective
customs, beliefs, traditions, indigenous knowledge systems and
practices, and the assertion of their character and identity as
peoples shall remain inviolable;

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 47

COVERAGE
1. Writ of Kalikasan
2. Problem areas in implementing Environmental Law.
3. West Tower Condominum v First PH Industrial Corp
4. Las Pinas – Paranaque Protected Area (Bird Sanctuary)
5. ASEAN Identity
6. Changing Concept of Sovereignty over natural resources
7. Common Sovereignty Over Natural Resources
8. Common Sovereignty over trans boundary Natural Resources
9. Sovereignty as a responsibility in the ASEAN
10. ASEAN: Indonesian haze not a sovereignty issue
11. ASEAN Water partnership: The Great Mekong River
12. ASEAN Agreement on Disaster Management and Emergency
Response (ADMER)
13. Strategy for Disaster Risk Reduction
14. ASEAN: Better, faster, disaster relief
15. ASEAN Environment: Wetlands for Disaster Resilience
RULE 7 - WRIT OF KALIKASAN
 Form of a Special Civil Action  no need of a cause of action. Can be
filed as long as detrimental to the health of the people or the
environment.
 Remedy granted to
1 Natural or juridical person
2 Entities authorized by law
3 Peoples organization
4 Non governmental organization
5 Any public interest group accredited by or registered with any
government agency
 Violation against the constitutional right to a balanced and healthful
ecology
 Threatened with violation by an unlawful act or omission involving
environmental damage to prejudice life, health, property of inhabitants in
2 or more cities
 Contents of the petition:
Arcilla | Mendoza - Updated Notes
(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent or if the
name and personal circumstances are unknown and uncertain, the
respondent may be described by an assumed appellation;
(c) The environmental law, rule or regulation violated or threatened to
be violated, the act or omission complained of, and the
environmental damage of such magnitude as to prejudice the life,
health or property of inhabitants in two or more cities or provinces;
(d) All relevant and material evidence consisting of the affidavits of
witnesses, documentary evidence, scientific or other expert studies,
and if possible, object evidence;
(e) The certification of petitioner under oath that:

(1) petitioner has not commenced any action or filed any claim
involving the same issues in any court, tribunal or quasi-judicial
agency, and no such other action or claim is pending therein;
(2) if there is such other pending action or claim, a complete
statement of its present status;
(3) if petitioner should learn that the same or similar action or
claim has been filed or is pending, petitioner shall report to the
court that fact within five days therefrom; and
(f) The reliefs prayed for which may include a prayer for the issuance
of a TEPO.
 Where to file?  Supreme Court or with any of the stations of the Court
of Appeals.
 Issuance of the writ  Within 3 days from the date of filing of the
petition, if the petition is sufficient in form and substance, the court shall
give an order:

a) Issuing the writ;
b) Requiring the respondent to file a verified return as provided
in
 Section 8 of this Rule. The clerk of court shall forthwith
issue the writ under the seal of the court including the issuance
of a cease and desist order and other temporary reliefs
effective until further order.
 Discovery Measures.
a. Ocular Inspection
o To show that an ocular inspection order is necessary to
establish the magnitude of the violation or the threat as to
prejudice the life, health or property of inhabitants in two or
more cities or provinces.
Environmental Law | Summer 2017 48
 o State in detail the place or places to be inspected.
o Supported by affidavits of witnesses having personal
knowledge of the violation or threatened violation of PROBLEM AREAS, ISSUES AND CONCERNS IN THE
environmental law.
o The order shall specify the person or persons authorized to
IMPLEMENTATION OF ENVIRONMENTAL LAWS

make the inspection and the date, time, place and manner of
making the inspection and may prescribe other conditions to Barriers to Compliance and
protect the constitutional rights of all parties. Factors Motivating Compliance Factors Encouraging Non-
b. Production or inspection of documents or things Compliance
o The motion must show that a production order is necessary to
Economic
establish the magnitude of the violation or the threat as to
prejudice the life, health or property of inhabitants in two or
more cities or provinces.  Desire to avoid a penalty  Lack of Funds
o After hearing, the court may order any person in possession,  Desire to avoid future liability  Greed/ desire to achieve
custody or control of any designated documents, papers,  Desire to save money by doing competitive advantage
books, accounts, letters, photographs, objects or tangible more cost efficient and  Compelling demands for
things, or objects in digitized or electronic form, which environmentally sound practices resources
constitute or contain evidence relevant to the petition or the
return, to produce and permit their inspection, copying or Social/ Moral
photographing by or on behalf of the movant.
o The production order shall specify the person or persons
 Lack of social respect for the
authorized to make the production and the date, time, place  Moral and Social Values for
law
and manner of making the inspection or production and may environmental quality
 Lack of public support
prescribe other conditions to protect the constitutional rights of  Societal respect for law
environmental concerns
all parties.  Clear governmental will to
 Lack of Government
 Reliefs granted enforce environmental laws
willingness to enforce
a. To permanently cease and desist from committing acts or
neglecting the performance of a duty in violation of
environmental laws resulting in environmental destruction or Personal
damage;
 Positive personal relationships
b. To protect, preserve, rehabilitate or restore the environment;
between program personnel and
c. To monitor strict compliance with the decision and orders of the  Fear of Change
facility managers
court;  Inertia
 Desire on the part of the facility
d. To make periodic reports on the execution of the final judgment;  Ignorance about requirement
manager to avoid legal process
and  Ignorance about how to meet
 Desire to avoid jail, the stigma of
e. Such other reliefs which relate to the right of the people to a requirements
enforcement and adverse
balanced and healthful ecology or to the protection,
publicity
preservation, rehabilitation or restoration of the environment,
except the award of damages to individual petitioners.

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 49

 Management FPIC, FGC, and the members of their Boards of Directors to file their
respective verified returns. The TEPO enjoined FPIC and FGC to:
 Lack of internal accountability
 Jobs and training dedicated to
for compliance a. cease and desist from operating the WOPL until further orders;
compliance
 Lack of management systems b. check the structural integrity of the whole span of the 117-kilometer
 Bonuses or salary increase
for compliance WOPL while implementing sufficient measures to prevent and avert
based on environmental
 Lack of compliance training for any untoward incident that may result from any leak of the pipeline;
compliance
personnel c. make a report thereon within 60 days from receipt thereof.

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

CASE : WEST TOWER CONDOMINIUM CORPORATION v.
FIRST PHILIPPINE INDUSTRIAL CORPORATION
Residents of the West Tower condominium in Makati on Friday filed a
petition for writ of kalikasan (nature) before the Supreme Court (SC) against
the officials of the company which owns and operates the pipeline that
caused an oil leak near their residential area. The 36-page petition, the
residents asked the SC to direct FPIC to permanently shut down and replace
the damaged pipeline.
Kapunan explained that the residents wanted the pipeline to be permanently
closed because it poses a “potential environmental and security threat" not
only to the condominium’s occupants but also to people living in areas under
which the 117-kilometer pipeline runs. The residents likewise urged the high
court to compel the pipeline’s operator to “rehabilitate and restore the
environment" affected by the oil leak, and to open a special trust fund to
answer for similar incidents in the future.
On November 19, 2010, the Court issued the Writ of Kalikasan with a
Temporary Environmental Protection Order (TEPO) requiring respondents
On January 21, 2011, FPIC, in compliance with the writ, submitted its 4-page
"Report on Pipeline Integrity Check and Preventive Maintenance Program”.
In compliance with the Court's July 30, 2013 Resolution, the DOE Secretary
issued on October 25, 2013 a Certification, attesting that the WOPL is safe
to resume commercial operations, subject to monitoring or inspection
requirements, and imposing several conditions that FPIC must comply with.
On February 3, 2015, the Court required the parties to submit their comment
Sec. Petilla's letter within ten (10) days from receipt of the Resolution. On
various dates, respondents First Gen Corporation, FPIC, and petitioner West
Tower filed their respective comments in compliance with the Court's
resolution
HELD:
1 Petitioners as Real Parties-in-Interest
 On the procedural aspect, We
agree with the CA that petitioners who are affected residents of West
Tower and Barangay Bangkal have the requisite concern to be real
parties-in-interest to pursue the instant petition. In the case at bar, there
can be no quibble that the oil leak from the WOPL affected all the
condominium unit owners and residents of West Tower as, in fact, all

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 50

 had to evacuate their units at the wee hours in the morning of July 23,
2010, when the condominium's electrical power was shut down. Until
now, the unit owners and residents of West Tower could still not return
to their condominium units. Thus, there is no gainsaying that the
residents of West Tower are real parties-in-interest.
2 Propriety of Converting the TEPO to PEPO or its Lifting in light of the
DOE Certification of the WOPL's Commercial Viability
 It must be
stressed that what is in issue in the instant petition is the WOPL's
compliance with pipeline structure standards so as to make it fit for its
purpose, a question of fact that is to be determined on the basis of the
evidence presented by the parties on the WOPL's actual state. Hence,
Our consideration of the numerous findings and recommendations of
the CA, the DOE, and the amici curiae on the WOPL's present structure.
In this regard, the Court deems it best to take the necessary
safeguards, which are not similar to applying the precautionary principle
as previously explained, in order to prevent a similar incident from
happening in the future.
3 Propriety of the Creation of a Special Trust Fund
 Anent petitioners'
prayer for the creation of a special trust fund, We note that under Sec.
1, Rule 5 of the Rules of Procedure for Environmental Cases, a trust
fund is limited solely for the purpose of rehabilitating or restoring the
environment.
 A reading of the petition and the motion for partial
reconsideration readily reveals that the prayer is for the creation of a
trust fund for similar future contingencies. This is clearly outside the
limited purpose of a special trust fund under the Rules of Procedure for
Environmental Cases, which is to rehabilitate or restore the environment
that has presumably already suffered. Hence, the Court affirms with
concurrence the observation of the appellate court that the prayer is but
a claim for damages, which is prohibited by the Rules of Procedure for
Environmental Cases. As such, the Court is of the considered view that
the creation of a special trust fund is misplaced.
4 Liability of FPIC, FGC and their respective Directors and Officers
 On
the last issue of the liability of FPIC, FGC and their respective directors
and officers, the CA found FGC not liable under the TEPO and, without
prejudice to the outcome of the civil case and criminal complaint filed
against them, the individual directors and officers of FPIC and FGC are
not liable in their individual capacities.
Arcilla | Mendoza - Updated Notes
CASE:
Las Pinas Paranaque Protected Area (Bird Sanctuary)
(Mrs Cynthia Villar)
Senator Cynthia Villar has filed Senate Resolution 294 directing the Senate
Committee on Government Corporations and Public Enterprises to conduct
an inquiry, in aid of legislation, with the view to introduce reforms, revisions
and amendments in the mandate, powers and responsibilities of the
Philippine Reclamation Authority (PRA).
Villar calls attention to the government’s National Reclamation Plan (NRP),
made by PRA, which will involve 102 projects or 38,000 hectares all over the
country. Thirty eight of these reclamation projects encompassing 26,234
hectares, will be implemented in the Manila Bay area alone — or 70 per cent
of the entire NRP. This creates another Metro Manila along Manila Bay, she
said in her privilege speech delivered before her peers last week.
Villar has an ongoing petition (backed by the signatures of 315,849 residents
of Las Pinas) vs. a Manila Bay reclamation project. which would result in the
reclamation of 635.14-hectares of Manila Bay, around the 175-hectare Las
Piñas-Parañaque Critical Habitat and Ecotourism Area or LPPCHEA, which
is a protected area by virtue of Proclamation Nos. 1412 and 1412-A and
included in the Ramsar list of wetlands of international importance, along
with Tubbataha and the Palawan Underground River. The said reclamation
could affect 65 barangays in three cities (37 in Bacoor, 11 in Paranaque, and
17 in Las Pinas.
Villar elevated her petition to the Supreme Court to challenge the ruling of
the Court of Appeals, which favored the planned reclamation project in
Manila Bay. Besides the 38 reclamation projects in Manila, there are other
big reclamation projects planned in Cebu, Antique, Iloilo, Bohol, Negros
Occidental, Aklan, Albay, Davao gulf, Leyte, and Cagayan.
Villar questions whether there was public consultation about the National
Reclamation Plan, how the projects under NRP were approved, and if
environmental risks had been taken into consideration.
Environmental Law | Summer 2017 51
From the outset, this is a fight reminiscent of David and Goliath – of a
legislator and communities vs. Big Business who wants to reclaim big
portions of Manila Bay and other coastal areas in the country and convert
them to huge, profit- making enterprises.
The idea of new cities rising from the sea seems nice and compelling, but a
serious study of Senator Villar’s resolution makes us rethink our position.
Villar cited the damage rendered by reclamation projects on multiple
ecosystems, such as mangroves, sea grass, coral reefs and intertidal zones
and depletion of fish stocks. Also, scientists have declared the subsiding of
Manila Bay land due to reclamation.
She cited a Japan International Cooperation Agency (JICA) study which said
that Metro Manila is overdue to experience a catastrophic magnitude of 7.2
earthquake and the coastal areas to suffer the most due to liquefaction (the
reclaimed land reverts to a liquid state).
The question is, who gives the final go-signal for reclamation? The Philippine
Reclamation Authority, which she said, has a questionable legal basis.
The PRA was established on February 4, 1977 under President Marcos, to
provide a coordinated, economical and efficient administration of lands,
especially reclaimed lands, that belong to, are managed and/or operated by
the government, with the object of maximizing their utilization and hastening
their development consistent with the public interest. Executive Order no 525
issued on Feb. 14, 1979, provides that all reclamation projects shall be
approved by the President upon the recommendation of PRA.
 But PRA was
given tremendous powers when President Gloria Macapagal-Arroyo issued
Executive Order 380 on Oct. 26, transforming PEA into the Philippine
Reclamation Authority, and, on June 24, 2006, issued EO 543, delegating to
PRA the power of the President to approve reclamation projects.
Subsequently, on Feb. 25, 2001, the PRA Board of Directors approved the
National Reclamation Plan under PRA Board Resolution No. 4161 covering
a total of 102 reclamation projects over a total area of 38,272 hectares within
Manila Bay, Visayas, Mindanao and other locations.
PRA’s NRP and the multiple issues attached to reclamation have gained so
Arcilla | Mendoza - Updated Notes
much alarm from different sectors, Villar said. In a People’s Summit held in
October 2012 attended by experts from relevant fields, a call was made for a
moratorium on reclamation projects under the NRP.
PRA’s NRP would result in the loss of one-tenth of our coastal and marine
habitats, a scientist reported to Villar. The reclamation projects could
potentially translate to a loss of value of nearly P30 billion per year in
seagrass and ecosystems alone.
Villar cited the “grandmother of all scams” — the PEA-AMARI deal , as a
basis for a change in PRA policies. The deal was signed April 25, 1995,
which allowed AMARI, a private corporation to develop the three reclaimed
islands known as the “Freedom Islands” along the Las Pinas-Parañaque
portion of Manila Bay and includes the reclamation of additional hectares of
submerged areas surrounding the islands.
Upon investigation in aid of legislation, the Senate Blue Ribbon and the
Senate Committee on Government Corporations and Public Enterprises
ruled that the joint venture was illegal because the reclaimed lands that PEA
sought to transfer to AMARI are lands of the public domain which the
government cannot alienate.
Any land reclamation, regardless of who initiates it (i.e. PRA, private sector,
LGU), is considered “unclassified public land” and therefore part of the public
domain, which is now under the DENR, Villar said.
Villar asks, why reclaim in the first place? Why not develop the blighted
areas of the metropolis instead? The amount to be used to reclaim instead
of destroying ecosystems and driving reclaimed lands to sell for sky high
prices, could be used for inclusive development and urban renewal of Metro
Manila.
Villar to Elevate Petition vs Reclamation of Manila Bay to the Supreme
Court After Court of Appeals junked her motion for reconsideration
Villar filed a petition for Writ of Kalikasan on March 16 against the Las Piñas-
Parañaque Coastal Bay project, which the Supreme Court granted on April
10 last year. Respondents in Villar's petition are ALLTECH Contractors , Inc.
, the Philippine Reclamation Authority (PRA), Department of Environment
Environmental Law | Summer 2017 52
and Natural Resources (DENR), Environmental Management Bureau (EMB)
and the cities of Las Pinas, Paranaque and Bacoor.
Villar's petition submitted to the SC was supported by the signatures of
315,849 Las Piñas residents who signified their opposition to the project.
She also attached in her petition the findings of a hydrological services
consultant to bolster her claim of massive flooding with the reclamation
project.
In the petition, it was shown that the planned 635.14-hectare Manila Bay
reclamation project that is poised to affect the LPPCHEA, which had been
recently included on the Ramsar List of Wetlands of International
Importance.
LPPCHEA serves as a sanctuary to migratory bird species from as far as
Siberia. According to the Wild Bird Club of the Philippines, the entire Metro
Manila is host to 150 species of birds, 72 of which are found at LPPCHEA.
LPPCHEA is the only bird sanctuary located in an urban setting. Because of
its biodiversity, LPPCHEA was declared as a critical habitat in 2007 by
Proclamation Nos. 1412 and 1412-A.
Ramsar Convention cited on its website that LPPCHEA "faces threats" such
as "ongoing land reclamation projects and mangrove cutting", and "waste
from nearby cities (that) accumulates along the coast"
ASEAN Structure [Reference: ASEAN Charter (2007)]
 Established August 8, 1967 in Bangkok Thailand
 Members
1. Indonesia
2. Malaysia
3. Philippines
4. Singapore
5. Thailand
6. Brunei
7. Viet Nam
8. Lao PDR
9. Myanmar
10. Cambodia
Arcilla | Mendoza - Updated Notes
AIMS AND PURPOSES - As set out in the ASEAN Declaration, the aims
and purposes of ASEAN are:
1 To accelerate the economic growth, social progress and cultural
development in the region through joint endeavours in the spirit of
equality and partnership in order to strengthen the foundation for a
prosperous and peaceful community of Southeast Asian Nations; 

2 To promote regional peace and stability through abiding respect for
justice and the rule of law in the relationship among countries of the
region and adherence to the principles of the United Nations Charter; 

3 To promote active collaboration and mutual assistance on matters of
common interest in the economic, social, cultural, technical, scientific
and administrative fields; 

4 To provide assistance to each other in the form of training and research
facilities in the educational, professional, technical and administrative
spheres; 

5 To collaborate more effectively for the greater utilization of their
agriculture and industries, the expansion of their trade, including the
study of the problems of international commodity trade, the
improvement of their transportation and communications facilities and
the raising of the living standards of their peoples; 

6 To promote Southeast Asian studies; and 

7 To maintain close and beneficial cooperation with 
 existing international
and regional organizations with similar aims and purposes, and explore
all avenues for even closer cooperation among themselves. 

FUNDAMENTAL PRINCIPLES - In their relations with one another, the
ASEAN Member States have adopted the following fundamental principles,
as contained in the Treaty of Amity and Cooperation in Southeast Asia
(TAC) of 1976:
1 Mutual respect for the independence, sovereignty, equality,
territorial integrity, and national identity of all nations;
Environmental Law | Summer 2017 53
 2 The right of every State to lead its national existence free from
external interference, subversion or coercion;
3 Non-interference in the internal affairs of one another;
4 Settlement of differences or disputes by peaceful manner;

5 Renunciation of the threat or use of force; and
6 Effective cooperation among themselves.
ASEAN COMMUNITY - The ASEAN Vision 2020, adopted by the ASEAN
Leaders on the 30th Anniversary of ASEAN, agreed on a shared vision of
ASEAN as a concert of Southeast Asian nations, outward looking, living in
peace, stability and prosperity, bonded together in partnership in dynamic
development and in a community of caring societies.
At the 9th ASEAN Summit in 2003, the ASEAN Leaders resolved that an
ASEAN Community shall be established.
At the 12th ASEAN Summit in January 2007, the Leaders affirmed their
strong commitment to accelerate the establishment of an ASEAN
Community by 2015 and signed the Cebu Declaration on the Acceleration of
the Establishment of an ASEAN Community by 2015.
The ASEAN Community is comprised of three pillars, namely the ASEAN
Political-Security Community, ASEAN Economic Community and ASEAN
Socio-Cultural Community. Each pillar has its own Blueprint, and, together
with the Initiative for ASEAN Integration (IAI) Strategic Framework and IAI
Work Plan Phase II (2009-2015), they form the Roadmap for an ASEAN
Community 2009-2015.
ASEAN CHARTER
The ASEAN Charter serves as a firm foundation in achieving the ASEAN
Community by providing legal status and institutional framework for ASEAN.
It also codifies ASEAN norms, rules and values; sets clear targets for
ASEAN; and presents accountability and compliance.
The ASEAN Charter entered into force on 15 December 2008. A gathering
of the ASEAN Foreign Ministers was held at the ASEAN Secretariat in
Jakarta to mark this very historic occasion for ASEAN.
Arcilla | Mendoza - Updated Notes
With the entry into force of the ASEAN Charter, ASEAN will henceforth
operate under a new legal framework and establish a number of new organs
to boost its community- building process.
In effect, the ASEAN Charter has become a legally binding agreement
among the 10 ASEAN Member States.
THE "ASEAN WAY" - Cooperation to build toward stable relations came to
be known as the "ASEAN Way." ASEAN's regional collaboration emphasizes
three norms:

(1) Non-interference or non-intervention in each others' domestic affairs, as
underscored in the United Nations Charter, Article 2(7),

(2) the use of Consensus planning and Cooperative programs and a
preference for national implementation rather than reliance on a strong
region-wide agency or bureaucracy.
There are only two ASEAN hard law agreements in ASEAN's 35 years of
history (see infra), and these have yet to be ratified. ASEAN has set a goal
of closer cohesion and economic integration through building a recognized
ASEAN community through adopting in 1997 its Vision 2020. In contrast to
practices in Oceana reflecting the experience of the British Commonwealth,
6 in ASEAN disputes tend to be settled by conciliation and consultation, not
by formal judicial types of dispute resolutions. ASEAN's origins in 1967 did
not include environmental management as an express concern. The then
ASEAN members attended the United Nations Conference on the Human
Environment in Stockholm, in 1972, and thereafter ASEAN began to include
environment as a theme among its complex system of regional consultations
to promote cooperation in areas of economic, social, technical and scientific
development. ASEAN's accomplishments are not easily cited, since ASEAN
has emphasized programmatic cooperation rather than adoption of formal,
easily cited legal instruments requiring environmental protection. However, it
would be a mistake to suggest that ASEAN's quiet cooperation is somehow
less effective than western sponsored treaty arrangements. In fact, when
ASEAN is compared to the Asia-Pacific Economic Cooperation (APEC)
forum. ASEAN appears to have sustained a regional system for
collaboration while APEC has a hard time keeping up a dialogue. ASEAN's
measured accomplishments may be discerned is a description of its systems
for regional environmental governance. Environmental governance has been
Environmental Law | Summer 2017 54
defined by Miranda Schreurs as "the interactions among formal and informal
institutions and the actors within society that influence how environmental
problems are identified and named. To this definition, we would add "and are
implemented." Examining environmental governance necessarily involves
examination of not only "institutions", which is the organizational structures
and framework of ASEAN, but also requires study of the decision-making
practices and programs of the organization. Some of ASEAN's institutions
for environmental governance can be illustrated with reference to how
ASEAN addresses biodiversity conservation and transfrontier air pollution
born forest fires. ASEAN's "rules and practices," its programs and plans of
action, can be illuminated by the need for actual implementation of its
programs, as in the case of the "Haze." The "ASEAN Way" faces new
challenges as it knits together programs across the 10 South East Asian
countries, yet the very fact that its participants see ASEAN's Way as a
defined approach, distinct from the more formalistic parliamentary decision-
making systems of European or North America, is the best evidence for the
proposition that that ASEAN bears close study by those who would
understand how to foster governance for sustainability internationally.
ASEAN Identity [Manila Times 11-30-2013]
 The examples cited demonstrate that cultures should not be thought to have
While the main goals of the Association of Southeast Asian Nations
(Asean)– Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia,
Myanmar, the Philippines, Singapore, Thailand and Vietnam–are described
in trade terms (single market and production base, highly competitive
economic region, equitable economic development, further integration into
the global economy), the documents that have come out of various Asean
meetings talk about many other things.
On the matter of an Asean identity, the Asean Charter (2007), the Asean
Declaration on Cultural Heritage (2000) and of late, the Asean Socio-Cultural
Community Blueprint (2009-20015), specify “The Asean Identity is the basis
of Southeast Asia’s regional interests. It is our collective personality, norms,
values and beliefs as well as aspirations as one Asean Community.....The
strategic objective is ...to create a sense of belonging, consolidate unity in
diversity and enhance deeper mutual understanding among Asean member
countries about their culture, history, religion and civilization......”
There are, however, sorts of “cultural war” among some Asean countries
Arcilla | Mendoza - Updated Notes
related to cultural heritage. In 2012, it was reported that riots erupted in
Jakarta when Indonesian protesters targeted the Malaysian Embassy over
dance heritage, in particular, the Tor-tor dance. Likewise, some quarters
claim Malaysia’s national anthem Negaraku is based on Indonesia’s Terang
Bulan (Bright Moon). In the area of cuisine, the Yu Sheng/Lo Hei, a dish
served during Chinese Lunar Festival and traditionally thought to bring
prosperity is separately claimed by the Chinese in Singapore and Malaysia
as theirs.
Even the Peranakan (Nonya) dishes, a fusion of Malay and Chinese recipes,
did not escape similar claims. (Ethnic tension within Malaysia between
Chinese Malaysians and ethnic Malays is still on because of the country’s
economic policy of Bumiputra which gives preferential treatment to the
ethnic Malay majority.) Another example is the Preah Vihar temple issue
between Cambodia and Thailand which had to be settled by the International
Court of Justice. In April 2013, about 500 nationalists of the Patriot Thai
Group raised the flag of Thailand to assert Thai sovereignty over Preah
Vihar.
fixed borders. Many of these cultures evolved in the course of time during
Hindu, Muslim, Buddhist or Christian periods. Meaning, practices in
countries within the Asean region continued to be shaped by various
peoples and events.
Even the legal culture is not an exception. Asean countries have a mosaic of
legislations with traces of foreign influence brought about by periods of
Spanish (Philippines),
French (Cambodia, Lao PDR, Vietnam), British (Brunei Darussalam,
Malaysia, Myanmar, Singapore) AND Dutch (Indonesia) occupation.
The lack of knowledge of historical roots and evolution of particular ways of
life and practices can result in too nationalistic and divisive views. There
should be space for two or more forms of heritages, complementary but not
in conflict.
In short, they should be considered shared cultures that transcend political
boundaries. In this rubric are the angklung (bamboo) orchestra as well as
Environmental Law | Summer 2017 55
the gamelan (gongs) ensemble of Indonesia, Malaysia and the Philippines
which are like one. Also batiks which are either Indonesian, Malaysian or
Thai like the wayang kulit (shadow play).
The Philippine Bayanihan Dance Co. researched Singkil and found that it
has its equivalent in Indonesia and
Malaysia, which should not be a surprise considering the geographic
proximity of the three countries collectively called “Maphilindo” before the
birth of Asean. In the same way, the popular Philippine folk dance Tinikling
has a slow movement version in Thailand. Truly Asean, on the other hand, is
kite flying as a pastime as well as the tube-like-wrap-around malong, a real-
life practical garment for men still evident all over Southeast Asia from
Brunei Darussalam to Myanmar to Vietnam.
The case of the Preah Vihar temple between Cambodia and Thailand,
however, should be viewed in another light. Involved is sovereignty but a
way out is recognition of functional sovereignty as distinguished from
territorial sovereignty. Functional sovereignty refers to specific uses of a
resource rather than absolute and unlimited jurisdiction within a geographic
space. It means interdependence in the sustainable use of a resource
emphasizing that states are dutybound to cooperate with each other to
promote development sustainability of the common environment.
Preah Vihar ought to be enjoyed as an Asean tourism resource, a cultural
heritage of both Cambodia and Thailand aside from a religious destination in
the Asean jurisdiction. Or, in different words, the change of perception of the
role of sovereignty in relations between states regarding their environment
should be characterized by equitable utilization ultimately redounding to the
benefit of the Asean region.
A good model for an Asean identity is the Asean Heritage Parks system
which continues to focus on cooperation among member countries to
develop a regional conservation and management plan for the current string
of over 40 heritage parks in the region. The criteria to determine if the region
qualifies as an Asean heritage park include high ethno-biological
significance, uniqueness and respresentativeness. Designation as a heritage
park strengthens cooperation, awareness and appreciation among Asean
countries.
Arcilla | Mendoza - Updated Notes
Together with the other aspects of the Asean cultural heritage, the
designation promotes the twin objectives of community building and identity.
Best of all, the concept of an Asean heritage parks system advances
protected area goals expressed in the Convention on Biological Diversity,
the Ramsar Convention on Wetlands Conservation as well as the World
Heritage Convention.
All this will help forge an Asean identity which is important for the future
implementation of Asean policies. It is a complementary to the principles of
sovereignty and non-intervention (Asean Way) which can, without the
recognition of a cultural bridge, hinder the implementation of Asean legal
instruments and tools including environmental laws. After all, what society
chooses to preserve of the past defines who we are today, creates our
collective memory and hastens our new development as Asean Community
bound by a common regional identity. In the words of Asean law expert Koh
Kheng Lian, “an Asean identity is crucial to bringing about enhanced
cooperation to supplement the Asean Way and make it more meaningful, to
encourage all to “THINK Asean” instead of only “Think National.”
Before joining the Philippine Foreign Service, the author was the first
Director of the Environmental Management Bureau (DENR) and served as
Coordinator, Asean Experts Group on the Environment.
Changing concept of sovereignty over natural resources
“it is time to bring sovereignty down to earth, cut it down to size, discard its
own rhetoric, to examine, analyze, reconceive the conceptand break out
its normative content; to repackage it, even rename it;and slowly ease the
term out of polite language in international relations, particularly in law.”
Louis Henkin (1994)
Sovereignty in its widest sense means the supreme, absolute and
uncontrollable power by which any independent State is governed. Through
the years, the concept of sovereignty has evolved to include not only
territorial sovereignty but permanent sovereignty over natural resources
(PSNR) as well. Fundamentally, PSNR means the State can freely dispose
of its natural wealth and resources within its territory. Correlatively, the
principle brings about the State duty to properly manage its wealth and
resources as well as due care of the environment.
Environmental Law | Summer 2017 56
Efforts at formulation of the principle culminated in the adoption of a UN
resolution called Declaration on Permanent Sovereignty over Natural
Resources in 1962. The principle progressively developed that by 1972, the
well-known Principle 21 of the Stockholm Declaration on the Human
Environment declares the sovereign right of States to exploit their own
natural resources pursuant to their own environmental policies. However, the
right is qualified by the obligation not to cause any extra-territorial
environmental harm.
For many years, the main purpose of international agreements related to the
principle of permanent sovereignty over natural resources was the maximum
use and development of natural resources instead of rational management
and conservation of natural resources in order to prevent their depletion or
degradation. Perhaps, the reason was the concept of sovereignty is difficult,
if not impossible, to fathom in an ecological frame of reference. The very
thought of ecology is based on the notion of interdependence rather than
independence. In fact, rights of full disposal were granted to States on the
basis of territorial sovereignty rather than a principle of sharing the world’s
resources. The trend was overtaken after the 1972 UN Stockholm
Conference on the Human Environment by resource-oriented multilateral
environmental agreements (MEAs) or treaties. An example is the UN Law of
the Sea Convention (1982) which adopted the regime of “ common heritage
of mankind” by which non-State areas are not freely appropriated anymore
by financially capable developed countries for their exclusive use. Similarly,
incorporation of the integrated ecosystem approach in the Convention on
Biological Diversity (1992) enumerates State duties to properly manage its
species of plants and animals which, in effect, limits a State’s exercise of
jurisdiction over its natural resources. From unrestrained freedom of action,
State sovereignty was interpreted in a more functional way to mean specific
uses of a resource rather than absolute and unlimited jurisdiction within a
given geographical space.
Functional sovereignty is bolstered by reference of various PSNR-related
UN resolutions and treaties to “mankind” referring to areas and resources
beyond the limits of national jurisdiction or the “global commons.” In this
connection, mention should be made that at the 1992 UN Conference on
Environment and Development in Rio de Janeiro, proposals were made to
characterize biological and genetic resources as well as the world’s forests
as the “common heritage of humankind.” Thus, the three Rio treaties
Arcilla | Mendoza - Updated Notes
recognize that change in the Earth’s climate and its adverse effects are a
common concern of humankind (Climate Change Convention); that the
conservation of biological diversity is a concern of humankind (Convention
on Biological Diversity); and desertification and drought are problems of
global dimension and human beings in affected areas should be at the
centre of concerns to combat desertification and to mitigate the effects of
drought (Convention to Combat Desertification). Note that in those treaties
people, humankind and the environment as such are objects rather than
subjects of international law. As objects, indirectly they have rights under or
are beneficiaries of international law through subjects of international law,
referring to the State actors in the international legal system.
Sovereignty has served as the foundation of public international law since
the Peace of Westphalia (1648) with sovereign states as the principal actors
in international relations. But as can be gleaned, times have changed. What
does the principle represent in the changing world? Current thinking
maintains permanent sovereignty over natural resources as a State-oriented
law under which natural resources regimes co-exist but barely interact. Be
that as it may, the trend, as can be observed, is towards a legal
interpretation that is humankind-oriented, under which sustainable
development and environmental preservation are approached from a global
perspective. At its core is cooperation aimed at implementation of the right to
development, the wise management of natural resources, equitable sharing
of transboundary natural resources and the global commons for preservation
for the coming generations. With this legal thinking and the concomitant
framework, sovereignty over natural resources as the fountainhead of rights
and obligations can very well continue to serve as a basic principle of public
international law. The above-enumerated treaties incorporate the law of
interdependence in the sustainable use of natural resources emphasizing
States are under the duty to cooperate with each other to promote
development sustainability of the common environment.
With this latest development in the increasing appreciation of PSNR, is it not
time to re-think and re-actualize sovereignty in order to formally recognize
its functional role as demanded by changing times?
After all, the general principle that ensues from all this is that the Earth’s
biosphere is the common heritage of all life on earth of which humanity is
the steward.
Environmental Law | Summer 2017 57
Common sovereignty over Trans boundary natural international watercourses. Examples are the Indus Waters Treaty between
resources India and Pakistan (1960) and the Agreement Regulating the Withdrawal of
Water from Lake Constance between Austria, Federal Republic of Germany
and Switzerland (1996), which determined the delimitation of the rights and
Transboundary natural resources transcend national jurisdictions, which
duties of each State over the trans boundary, waters.
means that the exercise of jurisdiction of one state affects the environment
of one or more other states or areas
An example in Southeast Asia is the Agreement on the Cooperation for the
Sustainable Development of the Mekong River Basin (1995) drawn in
Owing to the original and traditional interpretation of “sovereign rights of
accordance with the principle of safeguarding sovereignty, territorial integrity
sates over their natural wealth,” resources become depleted or exhausted as
and mutual benefit.
each state seeks to maximize its own benefit by exploiting the resources.
Also, existing international law on trans boundary natural resources tends to
Aside from treaties, the equitable utilization principle was also a
be piecemeal and uneven when dealing with the issue of trans boundary
recommendation in the 1972 UN Stockholm Conference on the Human
waters, e.g. ECE Trans boundary Watercourses Convention (1992), Danube
Environment which says “The net benefits of hydrologic regions common to
Convention (1992); and living resources, e.g. Whaling Convention (1946),
more than one national jurisdiction are to be shared equitably by the nations
Antartic Marine Living Resources Convention (1980).
concerned (Recommendation 51). It was also a recommendation of the
Action Plan adopted by the 1977 UN Water Conference which declared that
The international challenge for coordination and cooperation to ensure the
“ In relation to the use, management and development of shared water
equitable and sustainable or reasonable utilization and management of trans
resources, national policies should take into consideration the right of each
boundary natural resources was brought forth by two international legal
State . . . to equitably utilize such resources (Recommendation 91).
studies done by the World Commission on Environment and Development
Furthermore, highest courts or arbitral tribunals in Germany, the United
(1986) and the International Council of Environmental Law (2004) which
States, Switzerland and India have also frequently applied the principle of
expound on the principle that States are entitled to a reasonable and
equitable utilization in the sharing of waters of interstate watercourses.
equitable share in the beneficial uses of a trans boundary natural resource.
According to this principle, no use or category of uses is inherently superior
To efficiently manage what is left of the earth’s natural resources, a “relaxed”
to any other use or category of uses. Whether a certain use is reasonable or
concept of sovereignty was thought of through equitable sharing of trans
not has to be determined in the light of all relevant factors in each particular
boundary natural resources and the global commons. It appears on the
case. These factors may include, inter alia, geographic, hydrologic, climatic,
basis of State practice that a rule of customary international law has
biologic or ecological conditions, the existing use made of the natural
emerged requiring States to cooperate in the conservation and management
resource, the economic and social needs of the States concerned, the
of trans boundary natural resources.
feasibility of alternative means – including the availability of other
resources—to satisfy these needs and the possibility of compensation to one
or more of the States concerned as a means of adjusting conflicts among Sovereignty as a responsibility in the ASEAN
uses. The essence of the principle of equitable utilization is that instead of
laying down a norm with a more or less specific content, it rather prescribes Sovereignty in its widest sense means the supreme, absolute and
a certain technique aimed at reaching an equitable result in each concrete uncontrollable power by which any independent State is governed. Through
case. the years, the concept of sovereignty has evolved to include not only internal
or territorial sovereignty but also permanent sovereignty over natural
The principle has been applied in many multilateral environmental resources. Fundamentally, it means the State can freely dispose of its
agreements or treaties specifically those concerning the use of the waters of natural wealth and resources within its territory. Correlatively, the principle

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 58

brings about the State duty to properly manage its wealth and natural
resources as well as due care of the environment. Derived from this principle
is also the right of the State to pursue its own socioeconomic and
environmental policies.
The growth of the principle of permanent sovereignty over natural resources
is closely associated with two main concerns at the time of the creation of
the United Nations in 1945. These are (i) the economic development of
developing countries; and (ii) the self-determination of colonial peoples. The
principle progressively developed that by 1972, the well-known principle of
the Stockholm Declaration on the Human Environment declares the
sovereign right of States to exploit their own natural resources pursuant to
their own environmental policies. However, the right is qualified by the
obligation not to cause any extraterritorial environmental harm. Principle 2 of
the Rio Declaration on the Environment and Development restates Principle
21 as mentioned and confirms that sovereignty does not only give rise to
State rights but to State obligations and responsibilities as well.
Emerging environmental challenges such as climate change mitigation, food
and water security and disaster management add new dimensions to
environmental issues. No country can deal with those challenges alone.
States must continually identify common priorities to deal with those
concerns. It must enhance coordination among states and even challenge
the dichotomy between regional and national interests, reexamining
principles of sovereignty and non-interference in the context of
environmental challenges. Asean response in this regard are the on-going
cooperative efforts to promote conservation activities which include, among
others,
(a) The “Heart of Borneo” initiative to create a trans boundary
biodiversity sanctuary straddling Malaysia, Brunei Darussalam and
Indonesia against illegal logging and clearing land for palm oil
plantations;
(b) The Asean Heritage Parks program which consists of identified and
proclaimed protected areas of high conservation importance in
each member country, preserving in total a complete spectrum of
representative ecosystems of the Asean region;
Arcilla | Mendoza - Updated Notes
(c) The Asean Turtle Conservation and Protection Memorandum of
Understanding between the Philippines and Malaysia to jointly
manage, protect and conserve all species of turtle and their
habitats in the region through unified management, conservation
and protection strategies;
(d) The Sulu Sulawesi Marine Eco region as part of the Asean Marine
Heritage Areas about which conservation plans for joint
implementation are in place to protect and conserve the coral
triangle bounded by the Philippines, Malaysia and Indonesia.
The involvements of Asean countries mentioned above demonstrate the
right of states, within the framework of other principles and rules of
international law, to manage natural resources in accord with developmental
and environmental policies and objectives. It confirms that a state’s
sovereignty over its natural resources involves a number of duties.
Among them:
i. The duty to ensure benefits for the whole population and not to
compromise the rights of future generations;
ii. The duty to prevent harm to the environment of neighbouring states
or areas beyond national jurisdiction. This implies a prudent use of
natural resources not only to protect biodiversity but also to prevent
and control pollution. Gradually, it has become recognized that
under international law, natural resources management is no longer
exclusively within the jurisdiction of individual states and that
sovereignty is a responsibility and not an absolute right.
There is much discourse nowadays about sovereignty vis-a-vis natural
resources and economic growth, natural resources and conflict in use and
natural resource governance mechanisms; proof that the 21st century marks
an increasing and continuing appreciation of the concept of sovereignty over
natural resources. Looking back, the decades after the 1972 UN Stockholm
Conference on the Human Environment could well be described as decades
of clarifying and updating the earlier economic and political concept of
sovereignty and integrating it into the present legal thinking—a dynamic
response to changed circumstances and insights in the changing world.
Environmental Law | Summer 2017 59
ASEAN Agreement on Trans Boundary Pollution Control
 ASEAN: Indonesian Haze NOT a Sovereignty Issue [Manila
ASEAN Agreement on Transboundary Haze Pollution - The Governments of
the ten ASEAN Member Countries signed the ASEAN Agreement on
Transboundary Haze Pollution on 10 June 2002 in Kuala Lumpur, Malaysia.
The Agreement is the first regional arrangement in the world that binds a
group of contiguous states to tackle transboundary haze pollution resulting
from land and forest fires. It has also been considered as a global role model
for the tackling of transboundary issues.
The Agreement requires the Parties to the Agreement to:
1 cooperate in developing and implementing measures to prevent,
monitor, and mitigate transboundary haze pollution by controlling
sources of land and/or forest fires, development of monitoring,
assessment and early warning systems, exchange of information
and technology, and the provision of mutual assistance;
2 respond promptly to a request for relevant information sought by a
State or States that are or may be affected by such transboundary
haze pollution, with a view to minimising the consequence of the
transboundary haze pollution; and
3 take legal, administrative and/ or other measures to implement their
obligations under the Agreement.
The Agreement establishes an ASEAN Coordinating Centre for
Transboundary Haze Pollution Control to facilitate cooperation and
coordination in managing the impact of land and forest fires in particular
haze pollution arising from such fires. Pending the establishment of the
Centre, ASEAN Secretariat and ASEAN Specialised Meteorological Centre
(ASMC) co-performed the interim functions of the Centre.
The Agreement entered into force on 25 November 2003. To date, nine
Member Countries, namely Brunei Darussalam, Cambodia, Lao PDR,
Malaysia, Myanmar, Philippines, Singapore, Thailand, and Viet Nam, have
ratified the Haze Agreement.
Arcilla | Mendoza - Updated Notes
Times June 22, 2013]

Illustrative of Asean cooperation on the principle of sovereignty over natural
resources is the Asean response to the recurring Indonesian haze, which
has been affecting the neighboring countries specifically Singapore,
Malaysia and southern Thailand since 1982.
It is the result of land-clearing fires for palm plantations and the practice of
swidden (kaingin) agriculture particularly on peat lands in Indonesia.
Only in 2002 did Asean formulate a hard law instrument on the issue: the
ASEAN Agreement on Trans boundary Haze Pollution (ATHP). Although
generally applicable to all Asean states, it was formulated in response to the
Indonesian haze. It took effect in November 2003 with the ratification by nine
member states. Indonesia has yet to ratify, which rendered the Agreement
essentially ineffective.
In October 2006, Singapore decided to raise the issue at the UN General
Assembly, a permissible move under Article 2 of ATHP, which specifically
states that the Agreement’s objective is to prevent and monitor
transboundary haze pollution through concerted national efforts and
intensified regional and international cooperation. Indonesia, however,
invoked the principle of sovereignty and non-interference in domestic affairs.
(A word must be said about the Asean way of doing things. Cooperation is
done through consensus. There is no Asean Parliament to issue laws,
regulations and directives to its members and no enforcement agencies.
Non-interference in the domestic affairs of a member State is the rule of
conduct.)
This controversy illustrates the complex political and economic dimensions
of the haze problem as well as the conflict between national and regional
interests confronting the Asean. The successful adoption and ratification of
ATHP attests to Asean’s growing stature as a transnational environmental
lawmaker. But, at the same time, the controversy demonstrates the
obstacles in Asean’s path towards environmental regulatory effectiveness.
Environmental Law | Summer 2017 60
Perhaps it is time for Asean to take a strong stand, that the principle of 1995 Agreement on Cooperation for Sustainable
sovereignty be modified in the context of environmental law. Far from Development of Mekong River Basin

undermining state sovereignty, enhanced cooperation in the area of
environment will strengthen states’ sustainable development. By adopting a
The Governments of The Kingdom of Cambodia, The Lao People's
flexible engagement approach to transboundary environmental issues,
Democratic Republic, The Kingdom of Thailand, and The Socialist Republic
Asean member states could discuss complex problems such as the
of Viet Nam, being equally desirous of continuing to cooperate in a
Indonesian Haze without being accused of interfering with the internal affairs
constructive and mutually beneficial manner for sustainable development,
of the country.
utilization, conservation and management of the Mekong River Basin water
and related resources, have resolved to conclude this Agreement setting
Flexible engagement is not yet an accepted principle in the Asean, but its
forth the framework for cooperation acceptable to all parties hereto to
application to trans boundary environmental issues is relevant. Flexible
accomplish these ends...
engagement is an attempt to delimit the range of situations in which
individual member states would be justified in appealing to non-interference
Who, having communicated to each other their respective full powers and
to ward off outside involvement in their internal affairs. As serious threats to
having found them in good and due form, have agreed to the following:
sustainable development and human security more broadly, trans boundary
environmental issues would be classified as beyond the scope of “internal
CHAPTER I. PREAMBLE
affairs” and would be subject to regional governance despite sovereignty.
RECALLING the establishment of the Committee for the Coordination of
It is interesting to compare Asean’s response to the Haze issue with the
Investigations of the Lower Mekong Basin on 17 September 1957 by the
threat posed by zoonotic diseases, e.g. SARS, avian flu, swine flu (H1N1)
Governments of these countries by Statute endorsed by the United Nations,
during the last 7 years which raised not only issues of human security but
also challenged animal protection, the protection of biodiversity and
NOTING the unique spirit of cooperation and mutual assistance that inspired
ecosystems and the pursuit of sustainable development, i.e. sustainability of
the work of the Committee for the Coordination of Investigations of the
the chain of animal food production.
Lower Mekong Basin and the many accomplishments that have been
achieved through its efforts,

The threat of a pandemic drove Asean to act with prompt response with no
less than 25 Asean soft law instruments. Possibly, Asean’s response to
ACKNOWLEDGING the great political, economic and social changes that
zoonotic diseases was more successful as a result of the threat of pandemic
have taken place in these countries of the region during this period of time
not only in the region but also in many parts of the world. In the words of
which necessitate these efforts to re-assess, re-define and establish the
eminent Asean law expert, Koh Kheng Lian, “Asean should use its rich
future framework for cooperation, RECOGNIZING that the Mekong River
history of cooperation among States to build . . .environmental cooperation .
Basin and the related natural resources and environment are natural assets
. . This would enhance respect for sovereignty, not undermine it; it can be
of immense value to all the riparian countries for the economic and socia!
argued that the inability to avert an environmental disaster is a greater loss
well-being and living standards of their peoples,
of sovereign authority than cooperation in agreed programs to control the
harm. Asean’s deferential approach to other’s domestic affairs can
REAFFIRMING the determination to continue to cooperate and promote in a
inadvertently lead to violations of Principle 21 of the UN Declaration on the
constructive and mutually beneficial manner in the sustainable development,
Human Environment in which all States acknowledge that each must act so
utilization, conservation and management of the Mekong River Basin water
as not to harm the environment of each other.”
and related resources for navigational and non- navigational purposes, for

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 61

social and economic development and the well-being of all riparian States,
consistent with the needs to protect, preserve, enhance and manage the
environmental and aquatic conditions and maintenance of the ecological
balance exceptional to this river basin,
AFFIRMING to promote or assist in the promotion of interdependent sub-
regional growth and cooperation among the community of Mekong nations,
taking into account the regional benefits that could be derived and/or
detriments that could be avoided or mitigated from activities within the
Mekong River Basin undertaken by this framework of cooperation,
REALIZING the necessity to provide an adequate, efficient and functional
joint organizational structure to implement this Agreement and the projects,
programs and activities taken thereunder in cooperation and coordination
with each member and the international community, and to address and
resolve issues and problems that may arise from the use and development
of the Mekong River Basin water and related resources in an amicable,
timely and good neighbourly manner,
PROCLAIMING further the following specific objectives, principles,
institutional framework and ancillary provisions in conformity with the
objectives and principles of the Charter of the United Nations and
international law.
Objectives: To establish a framework for co-operation in the sustainable
development, utilization, conservation and management of the Mekong River
Basin.
Summary of provisions:
 Parties agree to, inter alia, co-operate in all fields
of sustainable development, utilization, management and conservation of the
water and related resources of the Mekong River Basin (art. 1), and protect
the environment, natural resources, aquatic life and conditions and
ecological balance from pollution or other harmful effects resulting from any
use of the Basin (art. 3). Other provisions deal with equitable and reasonable
utilization of the Basin, prevention and cessation of harmful effects, State
responsibility for damages, freedom of navigation, and emergency
situations. Institutional mechanisms: A Mekong River Commission is
established, consisting of three permanent bodies: the Council, the Joint
Committee and a Secretariat (art. 11). The Joint Committee is to, inter alia,
Arcilla | Mendoza - Updated Notes
prepare and propose for approval of the Council Rules for Water Utilization
and Inter-Basin Diversions (art. 26).
The Great Mekong River
THE Mekong River is the twelfth longest river in the world at 4,173
kilometers. The headwaters originate in the Tibetan region of China and the
river then flows through Yunan province in China into five Asean countries:
Myanmar, Cambodia, Laos, Thailand and Vietnam.
The Mekong forms the boundary between Laos and Myanmar. It courses
through Laos for approximately 500 km before once again becoming the
boundary between Laos and Thailand. Then the Mekong passes through the
southwest corner of Laos and flows through the heart of Cambodia where a
very unique physical feature exists, the Tonle River and the Tonle Sap Lake.
Then it flows into Vietnam and empties out through the Mekong Delta of
Vietnam into the South China Sea.
The Mekong River basin covers 795 km. (A water basin, also known as a
catchment basin, is a geographical and hydrological unit consisting of a main
river and all the territories between the water source, the spring and the
mouth of the river).
The tremendous natural resources of the Mekong Basin have long been
recognized. The tropical climate of the region along with the abundance of
water during the wet season supports an extremely productive and diverse
aquatic ecosystem with numerous ecologically important wetlands. In
addition, the basin states rely upon the natural productivity of the basin’s
fisheries to help meet the subsistence needs of many of the approximately
60 million residents of the Mekong basin.
Common ground
While the interest of each country is different and there are diverse upstream
and downstream issues, the Lower Mekong countries have found a common
ground on which to cooperate in addressing issues from a basin point of
view. Cooperation in all fields of sustainable development, utilization,
management conservation of water and other resources is somehow evident
in irrigation, hydro-power, navigation, flood control, fisheries, timber floating,
Environmental Law | Summer 2017 62
recreation and tourism initiatives and projects.
It was the United Nations which drew attention to the potential for integrated
development in the lower Mekong basin as early as the 1950s. A Mekong
Committee was set up by Cambodia, Laos, Thailand and the then Republic
of South Vietnam in 1957 “to promote, coordinate, supervise and control the
planning and investigations of water resource development projects.”
Political events, however, transpired to dampen the committee’s prospects
and the change of government in Laos, Cambodia and Vietnam during the
mid-1970s cast doubt on the committee’s future. By 1991, reactivation of the
Mekong Committee began.
Circumstances, however, had changed considerably since the mid-1970s in
many ways:
a) although the region seemed to be entering a new era of peace in
the 1990s, the governments were no longer as closely allied to
each other as they were before the mid-1970s;
b) the viability of large mainstream dams, the quest for joint
developments under the original Mekong Committee was under
question due to the potential environmental and social impacts;
c) China was in the process of implementing a large-scale
hydropower development program in the upper reaches of the
Mekong River which could significantly alter the downstream flow
regimes and hence, there was a need to bring China into a more
active cooperation framework (Far Eastern Economic Review,
1992).
Basin nations’ agreement
In 1995, the Agreement on Cooperation for the Sustainable Development of
the Mekong River Basin was signed by Cambodia, Laos, Thailand and
Vietnam and established the Mekong River Commission. The philosophy of
the agreement is “to improve the livelihood of 60 million people living in the
Lower Mekong River Basin. China and Myanmar which are part of the
Mekong River Basin have not signed the agreement but were designated
Asean “dialogue partners” in 1996 and have participated in various Mekong
River-related activities.
Arcilla | Mendoza - Updated Notes
A close look at the 1995 agreement reveals that while signatory countries
agreed to “cooperate in maintaining minimum flow levels of no less than the
acceptable monthly minimum flow rates during each month of the dry
season,” the same agreement does not require
consent/consensus/agreement of the riparians for national projects which
may affect the river flow levels. The prior legal agreement in place required
the consent/concurrence of all riparian countries for any national project that
involved the Mekong River. Moreover, the agreement is silent about
distribution of water to the member states although basic principles to be
applied in developing rules for water distribution are set forth in the
agreement.
After sixty 60 years of Asean riparian country cooperation in the utilization of
the Great Mekong River, some questions surfaced that needed to be
attended to:
(1) What types of activities are or should be forbidden within the
shared Mekong River Basin?;
(2) Is it possible to harmonize national laws of the riparian countries to
regulate the use of the shared basin?;
(3) What does it really mean to manage the Mekong River Basin in an
integrated manner?;
(4) What rights and obligations do upstream and downstream states
have?;
(5) How can environmental flows be effectively regulated within the
shared Mekong River basin?
Above all, what approach should be taken if and when the water flow from
the Mekong River’s source markedly lessened or diminished because of the
gigantic dam projects of China to divert the flow for its own use to open up
agricultural areas to attain food security for its overgrown population?
2009 Agreement on Disaster Management and Emergency
Response
 (ADMER)
The ASEAN Agreement on Disaster Management and Emergency
Response (AADMER) is a regional framework for cooperation, coordination,
technical assistance, and resource mobilization in all aspects of disaster
Environmental Law | Summer 2017 63
management. AADMER provides the guidelines for effective mechanisms to
achieve substantial reduction of disaster losses in lives and in the social,
economic, and environmental assets, and to jointly respond to disaster
emergencies through concerted national efforts and intensified regional and
international cooperation.
AADMER affirms ASEAN’s commitment to the Hyogo Framework of Action
(HFA) and is the first legally-binding HFA related instrument in the world. It
serves as the foundation for disaster management initiatives in the region,
including for the establishment of AHA Centre.
Signed by the Foreign Ministers of ASEAN in Vientiane, Lao PDR in July
2005, the Agreement has been ratified by all ten Member States and entered
into force on 24 December 2009. A work programme for the period of 2010 -
2015 has been developed and its progress has been monitored.
Article 2 Objective - The objective of this Agreement is to provide effective
mechanisms to achieve substantial reduction of disaster losses in lives and
in the social, economic and environmental assets of the Parties, and to
jointly respond to disaster emergencies through concerted national efforts
and intensified regional and international co-operation. This should be
pursued in the overall context of sustainable development and in accordance
with the provisions of this Agreement.
Article 3 Principles - The Parties shall be guided by the following principles in
the implementation of this Agreement:
 States, respond promptly to a request for relevant information sought by
1 The sovereignty, territorial integrity and national unity of the Parties shall
be respected, in accordance with the Charter of the United Nations and
the Treaty of Amity and Cooperation in Southeast Asia, in the
implementation of this Agreement. In this context, each affected Party
shall have the primary responsibility to respond to disasters occurring
within its territory and external assistance or offers of assistance shall
only be provided upon the request or with the consent of the affected
Party.
2 The Requesting or Receiving Party shall exercise the overall direction,
control, co-ordination and supervision of the assistance within its
territory.
 storm surge in the Philippines is another.
3 The Parties shall, in the spirit of solidarity and partnership and in
Arcilla | Mendoza - Updated Notes
accordance with their respective needs, capabilities and situations,
strengthen co-operation and co- ordination to achieve the objectives of
this Agreement.

4 The Parties shall give priority to prevention and mitigation, and thus
shall take precautionary measures to prevent, monitor and mitigate
disasters.

5 The Parties shall, to the extent possible, mainstream disaster risk
reduction efforts into sustainable development policies, planning and
programming at all levels.
6 The Parties, in addressing disaster risks, shall involve, as appropriate,
all stakeholders including local communities, nongovernmental
organisations and private enterprises, utilising, among others,
community-based disaster preparedness and early response
approaches.
Article 4 General Obligations: In pursuing the objective of this Agreement,
the Parties shall:

a) co-operate in developing and implementing measures to reduce
disaster losses including identification of disaster risk, development of
monitoring, assessment and early warning systems, standby
arrangements for disaster relief and emergency response, exchange of
information and technology, and the provision of mutual assistance;
b) immediately respond to a disaster occurring within their territory. When
the said disaster is likely to cause possible impacts on other Member
a Member State or States that are or may be affected by such disasters,
with a view to minimising the consequences;
c) promptly respond to a request for assistance from an affected Party;
and
 d. take legislative, administrative and other measures as
necessary to implement their obligations under this Agreement.
Strategy for Disaster Risk Reduction
Climate change –induced weather disasters have quadrupled during the last
few years. The 2011 horrifying earthquake and tsunami in Japan is one such
weather disaster. The 2013 typhoon Yolanda accompanied by the terrifying
Tropical storms, extended drought, harder monsoon rains, devastating
Environmental Law | Summer 2017 64
floods, unexpected landslides and earthquakes are more common now in
densely populated Asia where people are the most endangered when
natural calamities strike. The annual cyclones in Bangladesh, the uncommon
cyclone occurrence in Myanmar in 2008 as well as the destruction brought
by typhoons Ondoy, Sendong, and Pablo in the Philippines drew attention to
these countries’ efforts at reducing disaster risks in managed ways.
Disaster risk reduction (DRR) systems are now in place in Bangladesh,
Myanmar and the Philippines with the support of international organizations
like the Red Cross and the Save the Children and their respective
governments. DRR refers to all activities by local communities, families,
governments and NGOs that help reduce in advance the effects of natural
disasters. The objective is to cover all risks including the effects of climate
change.
Disaster risk reduction system
The main feature of a disaster risk reduction system is a disaster plan and
prevention program in endangered towns and villages. It incorporates
standardized warning signals, different flags for use before and during
disasters, identification of emergency shelters, evacuation procedures,
emergency food stocks (and replenishment), utensils for immediate use like
cooking stoves, water supply, provision of sanitary facilities and others.
Experience with disaster emergency management gave way to the principle
of “build back better” which means that damaged structures are not simply
replaced but improved to make them more resilient and intact for the
onslaught of another natural calamity.
Like in other areas of environmental management, the institutional
arrangement to cope with natural disasters involve not just one government
agency like the Department of Social Welfare and Development but many
other environment-related agencies such as those on local governments,
health, education, agriculture, police, public works, etc. The Philippines’
National Disaster Risk Reduction and Management Council (NDRRMC)
follows that direction through effective inter-agency linkages and
coordination with regional and local governments for disaster remediation
operations.
Arcilla | Mendoza - Updated Notes
Global level
At the international level, the UN has an International Strategy for Disaster
Reduction which aims to guide and coordinate the efforts of a wide range of
partners to achieve substantive reduction in disaster losses and build
resilient nations and communities as an essential condition for sustainable
development. The United Nations International Strategy for Disaster
Reduction (UNISDR) is the secretariat of the ISDR system and comprises
numerous organizations, states, NGOs, financial institutions, technical
bodies and civil society which work together and share information to reduce
disaster risks.
It also serves as the focal point for the implementation of the Hyogo
Framework for Action, a ten-year plan of action adopted in 2005 by 168
governments to protect lives and livelihoods against disasters.
With the prominence of the field of environmental law during the last four
decades, the enactment of a legislation on disaster risk reduction and
management is encouraged. One such is the 2010 Philippine Disaster Risk
Reduction and Management Act (R.A. 10121). An action plan and guidelines
to define the respective roles and responsibilities of government agencies,
schools, NGOs and other groups is in place. The challenge is to translate
into effective local community action to save lives and reduce disaster risks
and economic losses. Above all, a safety culture in times of disasters and
emergencies should be established so that people in danger areas will be
well informed and motivated to consciously integrate the risks in their day-to-
day living.
Indeed, the success of any disaster plan and prevention program depends
on the cooperation of the local people exposed to danger. Nobody is more
familiar with the immediate environment than the local inhabitants
themselves who are also best situated to overcome the risks that
accompany weather disasters aided by disaster emergency awareness and
preparedness strategies and techniques.
Environmental Law | Summer 2017 65
ASEAN: Better, faster disaster reliefs?
DURING the past three decades, the frequency of natural disasters has
increased globally but the worst increase has been in the Asia-Pacific
region. Be that as it may, advances in the science of disaster risk
management point out that there are no true natural disasters. Many natural
hazards are accelerated by human activity and no matter how “natural” the
hazard, it is human exposure, vulnerability, resilience and preparedness that
define whether a given event results merely in a rainy day or natural
catastrophe. In short, human behavior can be regulated unlike the weather.
Studies of experiences about regulatory frameworks for reducing disaster
risks, responding to disasters and recovering from them are still in their
infancy. Yet states are increasingly turning to legal instruments at the
national, regional and international levels to fight disasters. Are those legal
instruments in place meeting their potential to increase cooperation on
disaster risk management and humanitarian response ?
The Asean Agreement on Disaster Management and Emergency Response
(ADMER) signed and ratified by all ten member states is one such legal
instrument. Agreed on as an aftermath of the 2004 Great Tsunami which hit,
among others, the coastal zones of Indonesia and Thailand resulting in
much loss of life and property, ADMER was already in effect (29 December
2009) when one of the strongest typhoons ever recorded, Typhoon Yolanda
(Haiyan), hit the Visayas in the Philippines.
Some of the militaries of the Southeast Asian countries were forced to
respond to the calamity but their voluntary efforts highlighted military
operational shortcomings in the region. In many ways, the response was
mainly on a national basis. Some transport aircraft and ships were sent but
there was not enough multinational cooperation. Analysts trace the situation
to the lack of trust and confidence between many governments for which
reason bilateral and trilateral arrangements may be more effective.
Aware of the need for greater cooperation in humanitarian assistance and
disaster relief, Thailand and Korea sponsored a Southeast Asian Regional
Forum Disaster Relief Exercise in Thailand while Brunei Darussalam and
Singapore co-hosted in 2013 a combined military medicine/humanitarian
assistance and disaster relief exercise with all ten Asean members involved.
Arcilla | Mendoza - Updated Notes
Additional region-wide exercises were held in Thailand in 2014. Singapore,
on the other hand, offered to the Armed Forces of the Philippines its newly
launched Changi Regional Humanitarian Assistance and Disaster Relief Co-
ordination Center to organize multi-national military intervention in response
to Typhoon Ruby (Hagupit) which made landfall in Eastern Samar on 6
December 2014 but was downgraded into a tropical storm soon after its
landfall.
Take note that while defense of sovereignty is the primary responsibility of
the military, the requirement to respond to floods, earthquakes, tsunamis,
volcanic eruptions, etc. is likely to remain a secondary priority but one,
nonetheless, which is likely to increasingly influence the modernization drive
of the Asean countries’ military over the next decades.
In that connection, Singapore procured large multipurpose amphibious ships
in 2014. Similar efforts at modernization are being exerted by Indonesia, the
Philippines, Myanmar and Vietnam even if, admittedly, security in the
increasing territorial disputes is the prime mover for the heightened
emphasis on the militaries’ capacity and capability in the region.
To fulfill the military requirements related to humanitarian search/rescue and
relief operations, procurement targets of Asean countries like multi-role
helicopters and transport aircrafts would not require new designs to fulfill the
militaries’ secondary role. What is necessary is inter-operability of joint and
multi-national missions with greater command-and-control capabilities
among Asean’s military considering the vastness of the region.
In the light of scientific information that natural disasters are projected to
intensify in the Asia-Pacific region in the future, the Asean Agreement on
Disaster Management and Emergency Response mentioned above could
serve the Asean countries well if utilized effectively and cohesively. As an
agreement on disaster preparedness, emergency response and
rehabilitation, it is about expedited customs and immigration clearance;
faster movement of relief goods, tools and personnel (included are provision
of food, water sanitation facilities and temporary shelters); setting up of an
Asean disaster relief fund; better utilization of civilian and military personnel
as well as stronger simulation exercises to test emergency response.
Actually, an Asean Co-ordinating Centre for Humanitarian Assistance on
Environmental Law | Summer 2017 66
Disaster Management (AHA) is functioning in Jakarta to facilitate cross
border movement of relief efforts and coordination among member countries
in joint emergency response.
An ADMER evaluation report in 2013 noted that many civil society
organizations are increasingly involved in advocacy work around disaster
management laws in countries such as Cambodia, Laos, Indonesia,
Thailand and the Philippines.
However, there is a need to complement legal instruments with strong
research which could help boost our understanding of the complexities
underlying risk and disaster relief at all levels.
Environmental Refugees: Quickly spreading
Refugees are people who seek asylum for fear of political, racial or religious
persecution or people who leave their homes because of war or civil strife.
This traditional notion of refugees, however, leave out the new, growing and
quickly spreading phenomenon of environmental refugees triggered by
natural calamities like earthquakes, tsunamis, volcanic eruptions, landslides
resulting to forced displacement of people. (When people seek refuge within
their own countries as environmental refugees, they are commonly referred
to as internally displaced persons).
Recent scientific studies show that rising seas will supplant encroaching
desserts and other forms of land degradation as the major threat to
habitability of many places this century. The evacuation of 1,400 residents of
Papua New Guinea’s Carteret Islands (the world’s first climate change
refugees according to the UN) due to rising sea levels offers a sobering
vision of the future for coastal populations.
Global warming brought about by excessive fossil fuel use is reported to
result to thermal expansion of the oceans and melting of the icecaps. A one
meter increase in sea level will displace millions of people in the delta
regions of the Nile and Ganges rivers, further compounding land scarcity in
Egypt and Bangladesh. To think that world population is projected to
increase by 90 million annually all of them in need of food, water and shelter.
In fact, as the root causes of the on-going Southeast Asian migrant crisis
unravel, it would not be surprising if it turns out in the UNHCR backed
Arcilla | Mendoza - Updated Notes
Bangkok Special Meeting on Irregular Migration in the Indian Ocean of
concerned countries and other probes being carried out that some of those
‘boat people’ are in reality environmental refugees from Bangladesh and
Myanmar aiming for Thailand, Malaysia and Indonesia.
The combined effects of warmer climates and higher seas will make
typhoons more frequent and more destructive further damaging the
habitability of coastal areas. Extensive river diversions will markedly lessen
the amount of freshwater discharged into coastal areas while higher sea
levels will increase saltwater intrusion thus reducing mangrove forest cover
and disrupting major fisheries within fragile ecosystems. Endangered places
that may cease to exist include, among others, Tuvalu, Kiribati and the
Marshall Islands in the Pacific, Maldives in the Indian Ocean as well as the
touristic string of emerald islands and islets in the Caribbean prompting the
formation of an association of small island states working towards solutions
to their plight to counter sea level rise before the United Nations.
Poverty and inadequate development policies along with rapid population
growth are the roots of environmental degradation in the developing world.
Present environmental refugees may already be the biggest single group of
displaced persons. By the middle of this century, people forced to leave their
homes and places of livelihood because of flooding, desertification, toxic
pollution, sea level rise or other environmental disruptions may even
constitute the largest in number among those displaced by all other means.
Improvement in general environmental practices particularly agricultural
methods, including soil conservation, which maintains the capability of
ecosystems to support life known in environmental science as ‘carrying
capacity’ will help prevent migration of people. Above all, rapid population
growth must be managed particularly in places most vulnerable to ecological
disasters.
ASEAN environment: Wetlands for disaster resilience
THE 2004 Indian Ocean tsunami originating in an earthquake in the sea off
Sumatra in Indonesia devastated 12 countries, including Indonesia, Thailand
and Sri Lanka. As an immediate response, the periodic Asian Wetlands
Symposium held in 2005 (in India) recommended, among others, to
“prioritize the natural coastal defenses through greenbelt/coastal ‘bioshield’
Environmental Law | Summer 2017 67
development…… In connection therewith, the Sendai Framework for
Disaster Risk Reduction (2015) identified as one of four priorities the matter
of ‘investing in disaster risk reduction for resilience’.”
Not to be missed is the Asean Agreement on Disaster Management and
Emergency Response (ADMER), which came into force in 2009 with the
intention of providing “effective regional mechanisms to mitigate impacts of
natural disasters….through concerted national efforts and intensified
regional cooperation.”
Early this year, the Asean Institute of International and Strategic Studies, a
consortium of Asean think tanks, concluded that one of the key challenges to
Asean is “adapting to climate change:……Asean needs to be prepared for
the real possibility that global mitigation efforts are not sufficient. Efforts to
adapt to the effects of climate change and disasters will increasingly demand
greater coordination and the pooling of resources.”
In the light of scientific information that natural disasters are projected to
intensify in Asia, the ADMER could be utilized for disaster prevention and
mitigation purposes even if the agreement leans heavily towards disaster
preparedness and emergency response, i.e. faster movement of relief
goods, better utilization of civilian and military response, etc. ADMER could
serve as the basis for Asean’s active role at disaster risk reduction by
incorporating effective wetlands management strategies for climate change
resilience.
Disaster risk reduction, according to ADMER, means “a framework of
elements considered with possibilities to minimize vulnerabilities and
disaster risks to avoid, through prevention or, to limit through mitigation and
preparedness the adverse impacts of hazards within the broad context of
sustainable development.”
Wetlands, on the other hand are among the world’s most valuable
ecosystems, providing so may benefits to people. As defense fortifications,
wetlands, particularly mangroves, proved excellent defenses against the
onslaught of typhoons and tsunamis as proven by the earthquake
occurrence mentioned above. Scientists explained that the roots of
vegetation in Asian mangroves and other forest wetlands helped to hold the
sediments in place against the impact of strong winds, waves and currents.
Arcilla | Mendoza - Updated Notes
Additionally, wetlands are the “kidneys of the earth,” purifying water and
waste from both natural and human sources. As “biological supermarkets,”
wetlands provide a wide variety of flora and fauna. Wetlands act as natural
dams, absorbing heavy rainfalls, preventing flood downstream; helps
shoreline stabilization and erosion reduction. Wetlands help recharge
groundwater aquifers too. Most important of all, wetlands provide livelihood
to many people.
Aside from mangroves, wetlands include swamps, marshes, mudflats,
floodplains, peatlands, estuaries, rivers, lakes and many more generally
described as “where water meets land.”
ADMER is replete with provisions which could be used by Asean countries in
refuting the claim that while emergency response is almost well attended to
from the local to the national government level, much remains to be done in
regard to
a. cooperation in developing and putting into effect solutions to reduce
disaster impacts;
b. development of strategies to identify, prevent or reduce disaster
risks and losses;
c. prevention and mitigation legislation, regulations, policies, plans,
programs and strategies; and
d. raising public awareness about disaster prevention and mitigation.
In pursuit of this, Asean countries could very well incorporate wetlands for
disaster risk reduction and build resilience in their legal agenda. For
instance, the strategy of planting mangrove saplings should be a continuing
year-round activity in the long and extensive coastlines of countries
comprising Asean. Likewise, massive planting of high-quality and
commercially productive variety of bamboo could be introduced in
riverbanks/river basins and lakeshores as a technique not only to withstand
environmental disturbances but also to preserve and rehabilitate freshwater
sources and lakes and provide added source of income to people.
Take note that Asean is not only about economic partnership, trade
liberalization and economic integration. It is also about environmental
security. In that regard, Asean’s environment program, conceived in the
early 1980s, has metamorphosed to include an Asean Working Group on
Coastal and Marine Environment.
Environmental Law | Summer 2017 68
Hosting Asean@50 gives President Duterte a historic opportunity to COVERAGE
influence the future direction of Asean vis-à-vis disaster risk reduction, an
area where Asean lags behind in terms of prevention and mitigation projects
1. Sovereignty vis-à-vis Environmental Security
to better achieve climate change resiliency. 2. ASEAN Environmental Security Concerns
3. ASEAN: Changed Security Environment
It should be borne in mind, however, that building a disaster-resilient Asean 4. ASEAN: Defense evolves in Uncertainties
needs partnerships among governments, private sector, NGOs, LGUs, and 5. Maritime “convulsions” in the ASEAN seas
other institutions with clearly defined roles not only in disaster response but 6. ASEAN: Waves of naval expectations
also in disaster prevention and mitigation. To begin with, a program on the 7. ASEAN Sea Region: Sea of Constraint or Sea of
values and functions of wetlands for disaster risk reduction and onwards to Environmental Cooperation
consolidating resilience endeavors among Asean countries on the same 8. Trail Smelter Arbitration (UK v Canada)
track could be embarked on and, in the process, highlight also the need to 9. Corfu Channel Case (UK v Albania)
scale up adaptation to climate change. Indeed, Asean-wide advocacy 10. Environmental Law Principles
initiatives about wetlands for disaster risk reduction would do well to 11. Draft Covenant on Environment and Development
invigorate efforts in the region to give climate change resilience the priority 12. UN Convention on the Law of the Seas (UNCLOS)
that the issue deserves.  Part XII : Protection and Preservation of the Maritime
Environment
Hopefully, the recommendation is realized soon because Asean remains  Annex VII : Arbitration
vulnerable to natural disasters. But through multi-stakeholder engagement, 13. International Environmental Organizations
improvements can be made at a much faster pace so the region can have a  UN, UNESCO, WHO, FAO, ILO, ICJ, UNEP, UNDP,
much needed disaster-resilient system. WMO, IMO, UNESCAP, IAEA, IUCN
14. Aarhus Convention on access to Information, Public
Participation and Access to Justice on Environmental
Matters (1998)
15. UN Framework Convention on Climate Change (UNFCC)
16. World Heritage Convention (WHC)
17. Ramsar Convention on Wetlands
18. Convention on Biological Diversity (CBD)
19. Convention on International Trade in Endangered Species of
Fauna and Flora (CITES)

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 69

ASEAN Environmental Security
Sovereignty vis-à-vis Environmental Security
The benefit of a changing approach to the concept of sovereignty over
natural resources extends to environmental or ecological security as it
relates to facilitating conflict resolution to prevent or resolve armed conflict or
hostilities or threats therefrom between and among States.
In this, the due regard principle in customary law comes to the fore. Nature
is civilian in character but it is easy to transform civilian to military objective.
An example is the reported pollution of the Danube River during the Kosovo
war resulting from alleged bombing of industrial facilities.
From time to time, military conflicts over water rights was a national security
issue between India and Pakistan over the Indus; Ethiopia and Egypt over
the Nile; Turkey and Syria over the Euphrates; Botswana and Namibia over
Okavango; Israel and Palestine over the Jordan River.
Water in those areas cross political boundaries with the concomitant
boundary issue. The situation, however, creates a natural interdependence
between the States in sharing the water resource drawing people to work
together on the water resource availability aspect even when countries were
officially at war.
In reality, environmental security problems are solved not only within the
confines of national boundaries. Often, they involve transborder areas, e.g.
transboundary deep or shallow underground aquifers, international rivers,
other shared watercourses. Actually, governance of groundwater remains
weak, perhaps partly because of reliance on the old concept of sovereignty.
There are no standards for developing boundaries for groundwater systems
rendering effective governance problematic. Governance models are moving
towards public-private partnership for environmental management and
utilization and groundwater as part of the global commons. And, when the
environmental harm or interference occurs within national boundaries, they
give rise to internally displaced persons as what happened to victims of
water conflicts or of natural disasters like earthquakes, tsunamis and floods.
Arcilla | Mendoza - Updated Notes
Ultimately, their displacement bring them across national boundaries as
environmental refugees.
Ecological security must be recognized as an inseparable component of the
concept of sovereignty to attain international security. States must recognize
their joint responsibility for the protection of the transnational environment.
Opportunities for the shift of political attention and natural resources from the
military domain to the environmental domain should be pursued, i.e.
strengthening confidence through cooperation in environmental and other
non-military areas.
The issue of environmental security occurs whenever sovereignty issue
pose a threat like potential disputes over exploitation of natural resources.
Case in point is the rich in marine and mineral resources but object of
overlapping ownership claims of the Spratly islands in the West Philippine
Sea among the Philippines, Vietnam, China, Malaysia, Brunei Darussalam
and Taiwan where more arguments favor cooperation to preserve/conserve
the ecological wealth of the area than tackling head-on the territorial
sovereignty issue. Apart from the long-standing suggestion for an Asean
Area of Cooperation in the Spratlys, there are possibilities for the provision
of internationally protected area status in the area through multilateral
cooperative options available.
Indeed, the notion of ecogeographical regimes is a useful one in
demarcating areas within which natural resources can be taken to be
relatively homogenous and, consequently, the concept of sovereignty duly
re-adjusted. The International Commission for the Protection of the Rhine,
the two international commissions for the environmental protection and
sustainable utilization of the Baltic Sea, and the comparable mechanism for
cooperation among most of the littoral states are examples of this. In short,
there is a continuing need for international and inter-regional cooperation
that must be able to transcend the rights of sovereignty now vested in
States. The principle of shared responsibility for the protection of the
environment must be fully accepted.
It is also a fact that politico-military and environmental security are linked in
terms of opportunity costs. Political attention and material resources spent in
the military sector could be used to strengthen environmental security. A
revised concept of sovereignty is an opportunity to shift attention and
Environmental Law | Summer 2017 70
resources from the military sector to the environment sector. It could further
elaboration of confidence and security building measures in both the military
and civilian sectors by the adoption of less offensive military postures in
defense of the environment. Hopefully, after the most recent posturings, the
demilitarized zone (DMZ) between North and South Korea would still be
headed towards this direction via the proposal to make the area an
international peace and nature park for, among others, the preservation of
biodiversity found therein.
Environmental security should be equitable for all States, cultures and
generations. Environmental conscience, search for common gains, and
multilateral cooperation should replace attitudes and policies of confrontation
with the insurance of recognition of the concept of sovereignty over natural
resources. The removal of confrontation between States is an important
precondition for the removal of confrontation between humankind and the
natural environment considering the fundamental necessity of securing the
long-term availability of natural resources.
The pursuit of environmental security could become a major agent of change
in international affairs, promoting an international order more compatible with
human needs. Common sovereignty over natural resources should be
recognized and given priority in the resolution of conflicts and hostilities
among States.
ASEAN Environmental Security Concerns
The effects of extreme weather events caused by climate change are now
felt all over the world – warmer temperature causing desertification and
inadequate food supply; low lying areas inundated by rising seas; drought
sparked conflicts over water supply as downriver inhabitants safeguard their
share. As a further consequence, food producing areas become
uninhabitable leading to disease, mass migration and conflict. Worst of all,
the scarcity of oil and mineral resources raises tensions between powers
that import those commodities. All these could undermine a country’s
capacity to carry out its key function of providing security to its people.
The security implications of the earth’s environmental degradation are
forcing governments and militaries to review their long-term defense
strategies. Defense planning is increasingly being shaped by climate and
resource considerations.
Arcilla | Mendoza - Updated Notes
Asean countries have experienced super typhoons and super droughts;
storm surges and tsunamis which destroyed coastal infrastructures and
properties including flooding of roads, airports, military camps and destroyed
hospitals and health centers which brought about displaced people and
population migration. (Earthquakes and volcanic eruptions are not influenced
by the weather). The latest occurrence was the horrendous floods brought
about by a heavy monsoon season in Myanmar which deluged 12 out of the
country’s 14 regions. Rice growing areas were very much affected as flood
water drains through the vast Irrawaddy river delta. The army helped the
residents cope with the situation as the government embraced foreign
assistance.
Security implications of severe climate change in the Asean countries
include, but is not limited to, (a) huge movements of people from
uninhabitable areas; (b) conflicts over basic resources like water and food
exacerbating water scarcity and increase in food costs and food shortage;
(c) greater incidence of malnutrition, risks of infectious disease outbreaks,
and even death from rising temperatures; (d) energy production and
transportation disruptions of varying lengths and magnitudes; (e) increased
demand for disaster and humanitarian reliefs and limited environment for
military operations, e.g. military installations near coastlines threatened by
heavy rains in stormy situations and coastal erosion; (f) intensified heat
waves presenting challenges to outdoor training and personnel efficiency.
Environmental disasters could even be taken advantage of for terrorism.
Indeed, the impacts of global warming are becoming ever more evident and
humankind must rise to the challenge.
In the light of security concerns brought about by global warming, what is the
role of Asean militaries in a resource-stressed environment due to climate
disruption? Take note that energy supply and other imported resources by
Asean countries are overly dependent on sealanes, the Strait of Malacca in
particular, between Malaysia, Indonesia and Singapore. That alone is
enough to have Asean countries re-examine and re-think their maritime
priorities to have resource protection a core function of its navies.
The greater need, however, is for strengthening the Asean military
capabilities in anticipation of impending climate wars. This means more
soldiers with different training and weapons defense and security systems
designed to operate effectively across the full range of foreseeable future
Environmental Law | Summer 2017 71
environments altered by a warmer climate – resource war (oil and minerals),
water wars (diminished water for agriculture and water supply shortage for
domestic use) and migratory wars.
With climate change, the demand for rapid military deployments in response
and recovery efforts in disastrous environmental circumstances is likely to
increase too and this is a good time for Asean to plan out to protect its future
security, i.e. improving infrastructures including military installations located
in or near coastlines taking into account advances in engineering design,
techniques and technologies. After all, it is better to work with nature rather
than against it.
Definitely, strategies like Asean military to military cooperation and enhanced
collaboration that boost capability and effectiveness will play an increasingly
significant role in helping its most vulnerable members prepare as best they
can for a changed warmer world. Whatever the result will be, humankind
must adapt to global warming.
ASEAN: Changed Security Environment
NEW thinking about defense and security environment during the last few
years pervades countries around the world. This was brought about by, to
mention a few, the emergence of a terrorist quasi-state in the Middle
East; home-grown terrorist attacks prompting governments to be on
extreme alert; mass immigration to Europe; the proliferation of advanced
defense technologies; internal displacement of people due to armed
conflicts; the phenomenon of environmental refugees including climate
migrants as a consequence of natural disasters; popularity of cyber warfare,
which gave way to various levels of internal uncertainty and a
new perception about security concerns.
In the Asean region, tension prevails as rivals jostle over territories in the
West Philippine Sea which has enormous geo-strategic and economic
significance. This climate of conflict has security implications which forced
governments to re-think their long-term defense strategies. In fact, some
analysts opined that defense planning is increasingly being shaped by
climate and resource considerations too. Take note that majority of the
Asean countries are vulnerable to extreme climate disturbances due to
Arcilla | Mendoza - Updated Notes
global warming and disaster relief had come to be accepted as the military’s
secondary role.
The changed defense and security environment in the Asean countries has
led to ‘procurement drives’to ensure stability. Singapore highlights its island
defense capabilities centered on automation and mobility enhancements.
The Singapore Armed Forces recently acquired protected mobility vehicles
which enhances ballistic protection for troops and incorporates a host of
safety measures. Earlier, the country significantly boosted its sea power by
commissioning six new frigates.
The Philippines, as part of its long awaited military modernization program,
recently received new aircrafts including jet fighters and helicopters from
South Korea. Medium lift transport and surveillance aircrafts were also
acquired from Spain while heavy landing craft vessels will be acquired from
Australia. Meanwhile, as Vietnam’s economy improves tremendously,
reforms to further professionalize the Vietnam People’s Army are under way.
Its procurements include, among others, fighter aircrafts, submarines,
coastal radar system, maritime patrol helicopters and fast patrol vessels for
the Vietnam Coast Guard.
Brunei Darrusalam’s off-shore patrol vessels from Germany considerably
enhanced its naval operational capabilities. To improve training, its Navy is
building a center of excellence for seamanship warfare, weapons handling,
firefighting and damage control, communications and engineering training.
Indonesia, on the other hand, identified its need for a complementary
submarine fleet that can fill in the gaps of their new ocean-going
submarines. Note that Indonesia maintains a submarine base in Sulawesi
Island.
Malaysia, which established its own Malaysian Maritime
Enforcement Agency in 2005, took delivery of its first Scorpene submarines
in 2009 while Thailand, the first to possess Southeast Asia’s aircraft carrier
has been exploring submarine procurement.
Environmental Law | Summer 2017 72
The rapid expansion of Myanmar’s Navy backed up by an ambitious
program of indigenous shipbuilding is well noted in the region. Myanmar’s
military or Tatmadaw, however, was drawn into its largest and costliest
military campaign against insurgents in the Kokang region of northeaster
Shan State. The Kokang campaign marked the first time the
Tatmadaw undertook combined arms operations involving mechanized
infantry, artillery, armor and air power under combat conditions.
Those acquisitions of military hardware were made prior to Washington’s
announcement of a US $250 million plan to bolster naval capabilities of the
Philippines, Indonesia, Malaysia, Vietnam and Japan and before Singapore
agreed to the first deployment in the city state of a US P8Poseidon spy
plane, the most advance surveillance aircraft of the US, and long before the
arrival in Subic Bay of USS Tucson, a high endurance submarine with
advanced stealth capabilities.
A rising China turning closer to Russia with US as Pacific hegemon are
obviously contributory to the changed defense and security environment in
the countries of Southeast Asia.
Be that as it may, the most pressing priority for Asean countries in the
changed security environment is to improve their intelligence-gathering
capabilities. Procurement of munitions alone would not suffice to meet the
countries’ security needs. There ought to have improvement in the region’s
intelligence sharing and coordinating capabilities. More than any other time,
the new era of “intel-centric” warfare using innovative information,
communications and computer technologies demands the ability to assess,
analyze and decisively act in an emerging situation of critical importance. In
short, military equipment and weapons advantage should be backed by an
effective intelligence capability.
ASEAN: Defense evolves in Uncertainties
MEDIA campaigns by the global defense industry accelerated during the last
few years. Military defense technology exhibition/exposition with seminars,
conferences and free demonstrations of the latest in arms capability
increased in number and frequency. Among Asean countries, Singapore and
Indonesia are known to have hosted such events.
Arcilla | Mendoza - Updated Notes
Defense procurement drives
Easily noticeable are the Asean countries’ almost simultaneous procurement
drives to ensure maritime security. Under the military upgrade and
modernization program of former President Aquino, the Philippines acquired
patrol frigates, fast transport and support vessels, helicopters and fighter
jets. BRP Tarlac, launched in early 2016, is the first of two landing platform
dock style vessels for the Philippine Navy. Indonesia is constructing a
submarine base on Sulawesi Island and plans to buy Russian-made diesel
electric submarines as well as an amphibious jet-powered aircraft with
particular ability in firefighting and coastal search and rescue.
Singapore, which has the region’s only submarine rescue capacity, boosted
its sea power with the delivery of Independence, the lead ship of its Navy’s
Littoral Mission Vessel program, an effort aimed at developing the country’s
latest and most advanced surface warfare platforms. Malaysia received its
first Scorpene submarines while Thailand, the first to possess Southeast
Asia’s aircraft carrier, purchased a Saab Grippen fighter aircraft capable of
tactical data links.
The arrival in Brunei Darussalam of German-made offshore patrol vessels
considerably enhanced its Navy’s operational capabilities. Vietnam’s
procurements include fighter aircrafts, submarines, coastal radar system,
maritime patrol helicopters, and fast patrol vessels for the Vietnam Coast
Guard.
Sea drills
With the acquisition of modern military weapons and equipment, naval
exercises between and among Asean countries significantly increased, too.
These are exercises designed to improve professionalism, develop
exchange experiences and draw lessons from fellow navies. The activities
evolved out of the Indonesia-Singapore, Malaysia-Singapore, and Malaysia-
Thailand bilateral naval exercise agreements. In addition, some Asean
countries maintain defense engagement activities with the US (US-
Philippines “Balikatan”), Australia and New Zealand. Of late, “Balikatan”
(Shoulder-to-Shoulder) was not only about maritime security but
humanitarian assistance and disaster response as well.
Environmental Law | Summer 2017 73
To those military exercises should be mentioned the fact that China, with
claims to most of the South China Sea, does routine sea drills in the area
with the most recent one described as featuring air control operations with
live missiles. China and Malaysia had a joined military exercise in the same
way that the US also had its naval engagement activity in Vietnam. Japan is
into joint military exercises with the US and the Philippines.
China vis-à-vis Asean
As tension mounts in the region, reports say China uses fishing fleets with
armed escorts to bolster its maritime claims and even trains Chinese
fishermen militarily for readiness in case of checks and intercepts by coast
guards and navies of claimant countries in the disputed South China Sea
To deter China and to reassure its allies, the US undertook last month drills
in the Philippine waters “close to the disputed waters,” making use of its
awesome USS John Stennis and USS Ronald Reagan. While at sea, the
strike gap conducted maritime surveillance, defensive or combat training,
long-range strikes, coordinated maneuvers, and other exercises. The US
Navy explained, “As a Pacific nation and Pacific leader, the US has a
national interest in maintaining security … peaceful resolution of disputes …
adherence to freedom of navigation and over-flight throughout the shared
domains.”
Interestingly, the China Shipbuilding Corp. proposed the construction of an
“Underwater Great Wall” consisting of a network of ship and sub-surface
sensors that could significantly erode the undersea warfare advantage held
by the US. Specific components of the surveillance system will include
underwater security equipment as well as marine oil and gas exploration
devices.
Asean’s united front toward China?
So far, as a regional bloc, Asean has not presented a united front toward
China on the South China Sea issue. While the Philippines and Vietnam
have come into direct confrontation with China, the Mekong River riparian
countries Laos and Cambodia prefer to side with China. Indonesia and
Singapore have been a bit outspoken compared to Malaysia, Thailand and
Arcilla | Mendoza - Updated Notes
Brunei Darussalam, which chose cautiously to take the middle stand. This
situation enabled China to expand its sway over much of the South China
Sea despite overlapping claims. Add to that the “Asean way” of non-
interference into their respective internal affairs.
The expectation was Asean would make a clear joint statement after the
promulgation of the Permanent Court of Arbitration’s decision in the case
brought by the Philippines against China. None is in the offing. Perhaps, it
will not make a joint statement at all as it seems the arbitration decision even
further raised regional tensions undermining the Asean objective of regional
integration.
Asean’s changed security environment
There is now a new perception about security concerns in the Asean due to
the proliferation of advanced defense technologies, recent terrorist attacks
around the world, the phenomenon of environmental refugees as a
consequence of natural disasters, to mention a few. In connection therewith,
the security implications of overlapping claims over parts of the South China
Sea have forced Asean governments to rethink their long-term defense
strategies.
Be that as it may, defense planning these days is increasingly being shaped
by climate and resource considerations. Take note that majority of Asean
countries are vulnerable to extreme climate disturbances due to global
warming and disaster relief, which had come to be accepted as the military’s
secondary role.
The most pressing priority for Asean countries in the changed security
environment is to improve their intelligence-gathering capabilities.
Procurement of munitions alone would not suffice. There ought to have
improvement in the region’s intelligence sharing and coordinating
capabilities. The era of computer technologies demands the ability to
assess, analyze and decisively act in an emerging situation of critical
importance. In short, military equipment and weapons should be backed up
by an effective intelligence capability.
Environmental Law | Summer 2017 74
Asean environmental security concerns
Apart from security concerns as mentioned above, the effects of extreme
weather events caused by climate change are more evident in Asean
countries. Security implications of severe climate change in the region
include but not limited to: (1) huge movements of people from areas of
natural disasters and internal armed fights; (2) conflicts over basic resources
like water and food, exacerbating water scarcity and increasing food costs
and food shortage; (3) greater incidence of malnutrition, risks of infectious
diseases outbreaks; (4) increased demand for disaster and humanitarian
relief; and (5) intensified heat waves presenting challenges to the military’s
outdoor training and personnel efficiency.
In the light of security concerns brought about by global warming, what is the
role of Asean militaries in a resource stressed environment due to climate
disruption? For one, energy supply and other imported resources by Asean
countries are overly dependent on sea lanes, specifically the Strait of
Malacca straddling Malaysia, Singapore and Indonesia. That alone is
enough to have Asean countries reexamine their maritime priorities to have
resource protection a core function of their navies.
With climate change, the demand for rapid and coordinated military
deployment in response and recovery efforts in disastrous environmental
circumstances is likely to increase, and this is a good time for Asean to plan
out and protect its future security, i.e., improving infrastructures, including
military installations located in or near coastlines—taking into account
advances in engineering design techniques and technologies. Indeed, it is
better to work with nature rather than against it.
‘Asean Agreement on Disaster Management and Emergency Response’
Despite procurement drives and sea drills, Asean countries are hopeful the
increased tensions resulting from the arbitral decision could be successfully
managed to avoid actual armed conflict. Emerging lately from Asean
leaderships are possibilities for dialogue push, reduction of threats and even
the practicality of joint management for equitable utilization of the resources
found in the disputed parts of South China Sea, i.e., minerals, fisheries, etc.
Arcilla | Mendoza - Updated Notes
Supreme Court Justice Antonio Carpio suggests declaration of the disputed
waters as an international marine park and protected area.
The year 2009 saw the enactment of the Asean Agreement on Disaster
Management and Emergency Response (AADMER), with the objective to
“… provide effective mechanisms to achieve substantial reduction of disaster
losses in lives and in the social, economic and environmental assets … and
to respond to disaster emergencies through concerted national efforts and
intensified regional and international cooperation.” Pursuant thereto, an
Asean Coordinating Center for Humanitarian Assistance (AHA) on disaster
management was set up in Jakarta to assist Asean member states in
preparing for and responding to disasters.
The vulnerability of Asean countries to natural disasters has been
extensively discussed in various forums and documented scientifically. In
fact, Asean countries already experienced horrendous floods brought about
by heavy monsoon season, super typhoons, storm surges and tsunamis,
which resulted in loss of lives and damaged infrastructures and properties;
and, although not influenced by climate change, earthquakes and volcanic
eruptions, which gave way to internally displaced people.
Defense preparations by Asean countries on account of the South China
Sea issue will not be put to naught, considering the worldwide acceptance of
the military’s secondary role—humanitarian assistance and disaster relief.
There is much room in AADMER’s identified priorities like environmental
emergencies, early warning and monitoring and climate change adaptation.
Specifically, the Asean military would be most useful in enhancing disaster
preparedness for effective response and to “Build Back Better” in recovery,
rehabilitation and reconstruction.
Asean’s defense should shape or reshape itself to meet the challenges in
and opportunities for humanitarian assistance vis-à-vis the region’s new
security and environmental concerns. After all, Asean is also about
convergence in cooperation and conflict as well as disastrous weather
events.
Environmental Law | Summer 2017 75
Maritime “convulsions” in the ASEAN Seas
“The sea belongs to nobody -but interests clash over its uses.”
AT no other time in history do some Asean countries face several maritime
challenges than during this second decade of the 21st century. All because
of the uses of the South China (West Philippine) Sea and its resources –
major shipping routes, important fishing grounds and abundant oil and gas
reserves. But over and above those maritime pursuits is the question of
territorial (land, water and air space) ownership as developed in law.
“The South China Sea is a marginal sea that is part of the Pacific Ocean,
encompassing an area from Singapore and Malacca Straits to the Strait of
Taiwan of around 3,500,000 square kilometers.” Center of dispute is the
Spratly Islands area. China’s unilaterally declared “nine-dash line” ownership
of 90% of the South China (West Philippine) Sea overlaps with the
competing claims of some Asean countries – Brunei Darussalam, Malaysia,
the Philippines and Vietnam. Non-Asean claimant is Taiwan. Similarly
claimed by China is Natuna Islands at the southern tip of the South China
(West Philippine) Sea which is within Indonesia’s exclusive economic zone
(EEZ) and sits on Indonesia’s maritime borders with Brunei Darussalam,
Malaysia and Vietnam. Likewise, China’s recent announcement of a fishing
ban to all fishing activities in Hoang Sa (Paracel) archipelago was strongly
objected to by Vietnam. Vietnam says it has sufficient legal and historical
foundations testifying to its sovereignty over Hoang Sa and the sovereign
rights and jurisdiction over its waters, EEZ and continental shelf in line with
the UN Law of the Sea.
Scarborough Shoal which is well within the Philippine EEZ is contested too.
(Japan is into a bitter territorial dispute with China over the Senkaku/Diaoyu
islands in the East China Sea).
At the recently concluded Summit of Heads of States held in Malaysia,
Asean leaders expressed their concern at China’s massive reclamation in
the Spratlys which “has eroded trust and confidence and may undermine,
peace, security and stability in the South China Sea.” Asean foreign
ministers were instructed to urgently address the matter constructively via
frameworks “such as Asean-China relations.”
Arcilla | Mendoza - Updated Notes
The Asean Chairman’s statement also (ii) reasserted “the importance of
freedom of navigation in and over-flight in the South China (West Philippine)
Sea; (ii) called for the full implementation of the Declaration of the Conduct
of Parties in the South China Sea;” and (iii) demanded that the parties
concerned should resolve their differences in accordance with international
law including the Law of the Sea treaty.
The rising tension in the disputed waters prompted the US to warn against
militarization of the territorial disputes. Lately, satellite imagery showed the
extensive reclamation activities for a land mass that could support an
airstrip, apron, harbor, etc. which China defined as being within its
“sovereign” territory. The US navy sent a littoral combat ship on its first patrol
and used a P8-A Poseidon, the most advanced surveillance aircraft in the
US arsenal, over the contested area.
Prior to this development, the US had its 6th Naval Engagement Activity in
Vietnam. Likewise, the Philippines and US militaries recently held its largest
“Balikatan” exercises in years with nearly 12,000 troops participating (double
the number that participated in 2014).
Coincidentally, IHS Jane’s Defence Weekly,a leading provider of defense
and security insight and information, noted that the rest of the Asean
countries are modernizing their respective navies as part of a wider
Southeast Asian trend towards greater maritime capabilities. Singapore has
the most potent military in Southeast Asia. Myanmar, on the other hand,
embarked on an ambitious program of indigenous shipbuilding backed up by
naval exercises on its own.
The territorial sovereignty issue in the South China (West Philippine) Sea
had become an external sovereignty or regional security issue with
environmental security threats revolving around exploitation of natural
resources alongside strategic ones, i.e. potential military uses of the islands.
In all these maritime rivalries, ecological security ought to be recognized as
an inseparable component of the concept of sovereignty to attain regional
security. Contending states must recognize their joint responsibility for the
protection of the transnational environment.
Environmental Law | Summer 2017 76
For the rich in marine and mineral resources but object of overlapping
ownership claims Spratly islands group, some arguments favor cooperation
to preserve/conserve the ecological wealth of the area rather than tackling
head-on the sovereignty issue. In this regard, serious thought should be
given to the long-standing suggestion for an ASEAN Area of Cooperation in
the Spratlys as well as the possibilities for the designation of an
internationally protected area status, i.e. Marine Peace Park, through
multilateral cooperative options available. These could further elaboration of
confidence and security building measures in both the military and civilian
sectors by the adoption of less offensive military postures in defense of the
environment.
The removal of confrontation between states is an important precondition for
the removal of confrontation between humankind and the natural
environment considering the fundamental necessity of securing the long-
term availability of natural resources.
The pursuit of environmental security could become a major agent of change
in international affairs, promoting an international order more compatible with
human needs. Common sovereignty over natural resources should be
recognized and given priority in the resolution of conflicts and hostilities
among States.
ASEAN: Waves of Naval Expectations
The geography of Asean as a regional grouping of nations is noticeably
maritime. For archipelagos i.e., Indonesia and the Philippines, the sea is an
integral component of their respective national profile. Brunei Darussalam,
Malaysia, Thailand, Singapore and Vietnam depend to a great extent on the
sea for their trade interests. Even the less maritime-based Myanmar and
Cambodia and landlocked Lao PDR rely on the sea for national income.
Naturally, many issues confronting the Asean have a maritime dimension.
Among these are piracy, smuggling, human trafficking, illegal fishing and
territorial security. These issues brought to fore the unequal levels of naval
capabilities in the region. Singapore has the most sophisticated navy
especially at maritime surveillance and modern war-fighting capability. The
other countries are only capable of operating within their own coastlines.
Arcilla | Mendoza - Updated Notes
Naval cooperation, however, is present under bilateral and sub-regional
arrangements. It consists of coordinated patrols and combined exercises like
the Malacca Strait Patrols among Indonesia, Malaysia and Singapore to
counter piracy and armed robbery at sea. There are also combined multi-
national exercises to improve professionalism, develop exchange
experiences and draw lessons from fellow navies. Examples are the
Indonesia-Singapore, Malaysia-Singapore and Malaysia-Thailand bilateral
naval exercises. In addition, some Asean countries maintain defence
engagement activities/exercises with the US, UK, Australia and New
Zealand. The on-going annual joint Philippines-US military maneuvers called
Balikatan 2014 is not only about maritime security but humanitarian
assistance and disaster response as well possibly on account of the
experience last year of Asean member countries coming to the rescue and
relief of Typhoon Yolanda victims in the Philippines later than expected.
Be that as it may, IHS Jane’s Defence International, a leading provider of
defence and security insight and information, mentioned in one of its reports
the Asean resolve to take greater responsibility for their own maritime
security. This is evidenced by, among others, the Philippine Navy’s
modernization plan which includes acquisition of two new anti-submarine
helicopters, two frigates and four patrol frigates along with a number of patrol
craft and fast transport and support vessels. Also included are multi-purpose
attack crafts with missile launch capabilities to patrol its territorial waters.
Myanmar has acquired eight Chinese frigates under its development of
naval industrial capabilities program in conjunction with China . Vietnam is
acquiring submarines from Russia. The first boat Hanoi was already handed
to the People’s Army of Vietnam Navy and a second one Ho Chi Minh City is
on track for delivery.
Singapore has much significantly improved capabilities through deliveries of
Swedish and German-made submarines and patrol vessels. It also
announced a 2014 defense budget of $9.93 billion, a 3.2 percent increase
over spending in 2013. (It should also be mentioned that Singapore has the
region’s only submarine rescue capacity).
In Brunei Darussalam, the arrival of German-made off-shore patrol vessels
considerably enhanced the navy’s operational capabilities. To improve
training, the navy is building a centre of excellence, due to become
operational in 2015, for seamanship warfare, weapons handling, firefighting
Environmental Law | Summer 2017 77
and damage control, communications and engineering training. Indonesia,
on the other hand, is constructing a submarine base in Sulawesi Island and
plans to procure up to 12 boats to augment its submarine force. It also
announced it would purchase submarines from South Korea. Submarines,
after all, are the most cost effective way of denying maritime territory to a
hostile armada. In fact, not every navy requires an ocean-going submarine.
Asean waters are mostly archipelagic and shallow. Littoral patrol submarines
will do to conduct intelligence gathering, act as a deterrent against maritime
incursions and bolster confidence.
However, a lot still has to be done. Among these are a review of each state’s
responsiveness to defend itself against any and all threats to national
security; effective capability pooling; development of an Asean defence
industrial complex; and collaborative defence research and development. In
all this, there is a strong imperative for more efficiency, more coordination
and more cooperation among the Asean navies to create the assurance
about the region’s self-defence readiness.
FROM THE PHILIPPINE AMBASSADORS’ FOUNDATION INC. (PAFI)
ASEAN Sea Region: Sea of Constraint or Sea of
Environment
IN 1974, the United Nations Environment Program (UNEP) spearheaded a
Regional Seas Program. It is an effort to involve countries bordering the
seas to meet the challenges of environmental degradation in the sea,
coastal area and inland, and to link sustainable marine resource
management with development. To that end, an action plan and legal
framework are expected to be built up.
For Southeast Asia, the regional seas identified for the purpose of the
program was the “East Asian Seas,” referring to the Asean seas in the South
China Sea. |
UNEP’s role is not only as a funding agency but to coordinate activities,
ensuring an integrated approach and taking care that the interdisciplinary
character of environmental problems is not neglected. At the same time,
environmental law (national legislation and bilateral, regional and global
agreements) was thought of to provide a firm commitment from States to
Arcilla | Mendoza - Updated Notes
maintain the environmental quality of the shared seas. Efforts to achieve this
may include the promotion of harmonization of national legislations, the
encouragement of the adoption of regional agreements to foster cooperation
as well as in the implementation of existing international agreements.
Sadly, while numerous inter-governmental meetings resulted in the adoption
by the Asean member countries at the time (Indonesia, Malaysia, the
Philippines, Singapore, Thailand) of an Action Plan for the Protection and
Development of the Marine Environment and Coastal Areas of the East
Asian Seas Region, it became evident by 1990 that the adoption of a legal
framework (draft Convention for the Protection and Development of the
Marine and Coastal Areas of the East Asian Seas Region) would not
materialize due to, among others, overlaps of competing claims of some
Asian countries in the Spratly islands area of the South China Sea.
After 25 years, the situation has worsened, brought about by China’s
assertion of ownership of almost all of the resource-rich waters of the South
China Sea despite rival claims from Asian countries. Time and again, China
has reiterated its “indisputable sovereignty” claim over the Spratly islands
and its adjacent waters. It is even of the view that freedom of navigation and
overflight for military aircraft does not apply to the South China Sea because
of its claimed ownership of the area.
The US does not recognize China’s claim. Its military aircraft have
repeatedly flown over, and its ships repeatedly sailed in, the South China
Sea, passing through islets where China has built runways and set up
military outposts. Clearly, the US is out to assert its right to navigation in the
South China Sea through which thousands of commercial vessels pass
carrying some $5 trillion worth of goods a year. The US aircraft carrier USS
Carl Vinson, with its supporting ships and planes, has moved into the area.
Sovereignty and freedom of navigation are about to clash in the South China
Sea.
Actually, the South China Sea serves as a constraint on naval and maritime
cooperation in Southeast Asia. Differences over threat perceptions relative
to China have been at the root of increasing Asean disunity on security
issues. Enmity between Cambodia and the Philippines at the 2012 Asean
Ministerial Meeting in Phnom Penh was emblematic of a deeper emerging
Environmental Law | Summer 2017 78
divide between continental and maritime states comprising Asean.
In this regard, Cambodia is generally oriented towards China, with Vietnam
being the major exception. The situation limits Asean solidarity with respect
to territorial claimants in the South China Sea.
Clearly, the four Asean claimants to the disputed island territory in the South
China Sea (Brunei Darussalam, Malaysia, the Philippines, Vietnam, which
are all claimants with China and Taiwan) are also divided among themselves
such that none has recognized the sovereignty claims of the others in the
region. Add to that the aggravating territorial dispute over Sabah between
Malaysia and the Philippines which spilled into a violent incursion in 2013.
The situation described above further limits the opportunity for Asean
claimants to agree on common positions vis-à-vis the South China Sea.
Be that as it may, the South China Sea also has some unifying potential
within Asean. For one, the UN Convention on the Law of the Sea stipulates
that littoral states around semi-enclosed seas should cooperate on natural
resource conservation and environmental protection. In this, the Gulf of
Thailand littoral states have been successful in setting aside boundary
disputes to pursue joint development. Cambodia and Thailand manifested
sincere cooperation despite tensions over their disputed land territory near
the Preah Vihar temple complex (ultimately decided by the International
Court of Justice in favor of Cambodia). Likewise, Vietnam and Malaysia’s
joint submission of their extended continental shelf claim to the relevant UN
committee in 2009, demonstrate oneness between Asean claimants.
of the area. In this connection, it is time that serious thought be given to the
longstanding recommendation for an Asean Area of Cooperation in the
Spratlys as well as the possibilities for the designation of an internationally
protected area status, i.e. International Marine Peace Park, through
multilateral options available. These could further the elaboration of
confidence- and security-building measures in both the military and civilian
sectors by the adoption of less offensive military postures in defense of the
environment.
CASE: Trail Smelter Arbitration vs Canada (33 and 35
American Journal of Environmental Law
Finally, the effect of these harmful amounts of sulfur being released were
noticed in the State of Washington. The effects were noticeable because for
every ton of sulfur released into the air there are two tons of sulfur dioxide
created. It was this increase in sulfur dioxide that was detected through the
rains.
In the period between 1928 and 1935, the Government of the
 United States
filed complaints with the Government of Canada that
 sulfur dioxide
emissions from the Trail smelter had damaged the
 Columbia River Valley.
On August 7, 1928, the issue was referred
 to the International Joint
Commission by the United States and
 Canada (IJC-UC) for settlement. The
IJC-UC decided on February 28, 1931 that the Trail smelter should limit its
sulfur dioxide emissions and that Canada should pay the United States
US$350,000 as compensation for damages.

Asean’s effectiveness as a vehicle for cooperation will eventually be tested

Despite the IJC-UC decision, the conditions at the Trail smelter did not
by the progress in concluding a legally binding Code of Conduct with China
improve. Consequently, by February 1933 the U.S. Government was refiled
over the South China Sea. The 2002 Asean Declaration on a Code of
complaints to the Canadian Government about the situation at the smelter.
Conduct with China was non-binding and ultimately failed to reduce tensions
These set of complaints led to an emissions convention which was signed by
over the disputed sea. At this point, it is not clear if the Code of Conduct’s
the two parties on April 15, 1935. The Convention called for the creation of a
terms will improve on those of the Declaration or if it will restrain the rival
Tribunal to determine whether damage has been done to Washington State
claimants’ activities in the region. Nor is it clear how the desired legally
since 1932. If found to have done damage, should it be made to refrain from
binding Code will be enforced.
doing so? Should any compensation be paid? [ISSUES].
Be that as it may, for the Spratly island group, rich in marine and mineral
resources but the object of overlapping ownership claims, there is the
argument in favor of cooperation to preserve/conserve the ecological wealth

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 79

HELD:
Tribunal found that damaged has been caused to the US and that it should
be indemnified for damages. It held that under the principles of International
Law, as well as the law of the US, no state has the right to use or permit the
use of its territory in such a manner as to cause injury by fumes in or to the
territory of another when the case is of serious consequences and injury is
established by clear and convincing evidence. Hence, Canada was
responsible for the conduct of the Trail Smelter.
Principles:
 Principle of Good Neighborliness
 Polluter-Pays Principle
 Common but Differentiated Responsibilities
 Precautionary Principle – If there is no scientific certainty, one
should approach the matter with caution (e.g. GMOs)
 Principle of Sustainable Development
 Principle of Cooperation (e.g. w/ respect the use of transboundary
natural
In 1896, a smelter located in Trail, British Columbia, began operating under
American ownership. However, in 1906, the Consolidated Mining and
Smelting Company of Canada, Ltd. bought the smelter plant in Trail. This
company expanded the plant in size and in turn in its capacity to smelt zinc
and lead ores. However,
 in 1925 and in 1927, two large, 400-foot smoke
stacks were built.
There was a resulting increase in the amount of sulfur emitted
 into the air.
Within that same time period the amount of sulfur
 released from the plant
on a monthly basis almost doubled from
 what it had been in 1924. The
amount of sulfur released in 1924 was about 4,700 tons per month. But in
1927, the amount had risen to 9,000 tons per month. These increases
continued because this smelting operation of zinc and lead had become one
of the largest in North America. resources)
Arcilla | Mendoza - Updated Notes
CASE: CORFU VS UK VS ALBANIA 1949 ICJ 4
Facts/ background:
On May 15th. 1946 the British warships passed through the Channel without
the approval of the Albanian government and were shot at. Later, on
October 22nd, 1946, a squadron of British warships (two cruisers and two
destroyers), left the port of Corfu and proceeded northward through a
channel previously swept for mines in the North Corfu Strait.
Both destroyers were struck by mine and were heavily damaged. This
incident resulted also in many deaths. The two ships were mined in Albanian
territorial waters in a previously swept and check-swept channel.
After the explosions of October 22nd, the United Kingdom Government sent
a note to the Albanian Government, in which it announced its intention to
sweep the Corfu Channel shortly. The Albanian reply, which was received in
London on October 31st, stated that the Albanian Government would not
give its consent to this unless the operation in question took place outside
Albanian territorial waters. Meanwhile, at the United Kingdom Government's
request, the International Central Mine Clearance Board decided, in a
resolution of November 1st, 1946, that there should be a further sweep of
the Channel, subject to Albania's consent. The United Kingdom Government
having informed the Albanian Government, in a communication of November
10th, that the proposed sweep would take place on November 12th, the
Albanian Government replied on the 11th, protesting against this 'unilateral
decision of His Majesty's Government'. It said it did not consider it
inconvenient that the British fleet should undertake the sweeping of the
channel of navigation, but added that, before sweeping was carried out, it
considered it indispensable to decide what area of the sea should be
deemed to constitute this channel, and proposed the establishment of a
Mixed Commission for the purpose.
It ended by saying that any sweeping undertaken without the consent of the
Albanian Government outside the channel thus constituted, i.e., inside
Albanian territorial waters where foreign warships have no reason to sail,
could only be considered as a deliberate violation of Albanian territory and
Environmental Law | Summer 2017 80
sovereignty. After this exchange of notes, 'Operation Retail' took place on
November 12th and 13th.
One fact of particular importance is that the North Corfu Channel constitutes
a frontier between Albania and Greece, that a part of it is wholly within the
territorial waters of these States, and that the Strait is of special importance
to Greece by reason of the traffic to and from the port of Corfu.
Issues:
The British government claimed the minefield which caused the explosions
was laid between May 15th, 1946, and October 22nd, 1946, by or with the
approval or knowledge of the Albanian Government. Thus Albania was
responsible for the explosions and loss of life and had to compensate the UK
government.
In addition to the passage of the United Kingdom warships on October 22nd,
1946, the second question in the Special Agreement relates to the acts of
the Royal Navy in Albanian waters on November 12th and 13th, 1946 when
the British government carried out a minesweeping operation called
'Operation Retail' without the consent of Albania.
UK held the opinion the passage on October 22nd, 1946 was innocent and
that according to rules of international law it had the right to innocent
passage through the North Corfu Channel as it is considered part of
international highways and does not need a previous approval of the
territorial state.
The Albanian Government does not dispute that the North Corfu Channel is
a strait in the geographical sense; but it denies that this Channel belongs to
the class of international highways through which a right of passage exists,
on the grounds that it is only of secondary importance and not even a
necessary route between two parts of the high seas, and that it is used
almost exclusively for local traffic to and from the ports of Corfu. Thus a
previous approval of the territorial state is necessary.
1 Should the North Corfu Channel as it is considered part of
international highways? 
 compensation to the United Kingdom.
Arcilla | Mendoza - Updated Notes
2 Is Albania responsible under international law for the explosions
which occurred on the 22nd October 1946 in Albanian waters and
for the damage and loss of human life which resulted from them
and is there any duty to pay compensation?' 

Analysis:
The court analyses the geographical situation of the channel connects two
parts of the high seas and is in fact frequently being used for international
navigation. Taking into account these various considerations, the Court
concludes that the North Corfu Channel should be considered as belonging
to the class of international highways through which an innocent passage
does not need special approval and cannot be prohibited by a coastal State
in time of peace.
The UK government claims that on October 22nd, 1946, Albania neither
notified the existence of the minefield, nor warned the British warships of the
danger they were approaching. According to the principle of state
responsibility, they should have done all necessary steps immediately to
warn ships near the danger zone, more especially those that were
approaching that zone. In fact, nothing was attempted by the Albanian
authorities to prevent the disaster. These grave omissions involve the
international responsibility of Albania.
But Albania's obligation to notify shipping of the existence of mines in her
waters depends on her having obtained knowledge of that fact in sufficient
time before October 22nd; and the duty of the Albanian coastal authorities to
warn the British ships depends on the time that elapsed between the
moment that these ships were reported and the moment of the first
explosion.
Conclusion of the court:
The Court therefore reaches the conclusion that Albania is responsible
under international law for the explosions which occurred on October 22nd,
1946, in Albanian waters, and for the damage and loss of human life which
resulted from them, and that there is a duty upon Albania to pay
Environmental Law | Summer 2017 81
In the second part of the Special Agreement, the following question is
submitted to the Court:
(2) Has the United Kingdom under international law violated the sovereignty
of the Albanian People's Republic by reason of the acts of the Royal Navy in
Albanian waters on the 22nd October and on the 12th and 13th November
1946 and is there any duty to give satisfaction?
Albania was in fact in war with Greece which means that the coastal state
was not in time of peace. UK had not an innocent passage due to the way it
was carried out. The court assessed the manner of UK warships after they
had been shot at May 15th. Having thus examined the various contentions of
the Albanian Government in so far as they appear to be relevant, the Court
has arrived at the conclusion that the United Kingdom did not violate the
sovereignty of Albania by reason of the acts of the British Navy in Albanian
waters on October 22nd, 1946.
The United Kingdom Government does not dispute that 'Operation Retail'
was carried out against the clearly expressed wish of the Albanian
Government. It recognizes that the operation had not the consent of the
international mine clearance organizations, that it could not be justified as
the exercise of a right of innocent passage, and lastly that, in principle,
international law does not allow a State to assemble a large number of
warships in the territorial waters of another State and to carry out
minesweeping in those waters. The United Kingdom Government states
that the operation was one of extreme urgency, and that it considered itself
entitled to carry it out without anybody's consent.
The Court can only regard the alleged right of intervention as the
manifestation of a policy of force, such as has, in the past, given rise to most
serious abuses and such as cannot, whatever be the present defects in
international organization, The United Kingdom Agent, in his speech in reply,
has further classified 'Operation Retail' among methods of self-protection or
self-help. The Court cannot accept this defense either find a place in
international law .
Arcilla | Mendoza - Updated Notes
Final conclusion of the court:
1) On the first question put by the Special Agreement of March 25th,
1948,
The court gives judgment that the People's Republic of Albania is
responsible under international law for the explosions which occurred on
October 22nd, 1946, in Albanian waters, and for the damage and loss of
human life that resulted there from; and
Reserves for further consideration the assessment of the amount of
compensation and regulates the procedure on this subject.
2) On the second question put by the Special Agreement on the
violation of state sovereignty,
The court gives judgment that the United Kingdom did not violate the
sovereignty of the People's Republic of Albania by reason of the acts of the
British Navy in Albanian waters on October 22nd, 1946; and unanimously,
gives judgment that by reason of the acts of the British Navy in Albanian
waters in the course of the Operation of November 12th and 13th, 1946, the
United Kingdom violated the sovereignty of the People's Republic of Albania,
and that this declaration by the Court constitutes in itself appropriate
satisfaction.
Environmental Law Principles
Draft Covenant on Environment and Development (2004)
FUNDAMENTAL PRINCIPLES - In their actions to achieve the objective of
this Covenant and to implement its provisions, the Parties shall be guided,
inter alia, by the following fundamental principles:
ARTICLE 2; RESPECT FOR ALL LIFE FORMS - Nature as a whole
warrants respect; every form of life is unique and is to be safeguarded
independent of its value to humanity.
Environmental Law | Summer 2017 82
ARTICLE 3; COMMON CONCERN OF HUMANITY - The global
environment is a common concern of humanity.
ARTICLE 4; INTERDEPENDENT VALUES - Peace, development,
environmental protection and respect for human rights and fundamental
freedoms are interdependent.
ARTICLE 5; INTER–GENERATIONAL EQUITY - The freedom of action of
each generation in regard to the environment is qualified by the needs of
future generations.
ARTICLE 6 ; PREVENTION - Protection of the environment is best achieved
by preventing environmental harm rather than by attempting to remedy or
compensate for such harm.
ARTICLE 7; PRECAUTION - Lack of scientific certainty is no reason to
postpone action to avoid potentially significant or irreversible harm to the
environment.
ARTICLE 8; RIGHT TO DEVELOPMENT - The exercise of the right to
development entails the obligation to meet the
developmental and environmental needs of humanity in a sustainable and
equitable manner.
ARTICLE 9; ERADICATION OF POVERTY - The eradication of poverty, an
indispensable requirement for sustainable development, necessitates a
global partnership.
ARTICLE 10; CONSUMPTION PATTERNS AND DEMOGRAPHIC
POLICIES - The elimination of unsustainable patterns of production and
consumption and the promotion of appropriate demographic policies are
necessary to enhance the quality of life for all humanity and reduce
disparities in standards of living.
Arcilla | Mendoza - Updated Notes
Basic Rights in Relation to Environmental Justice
1. Sovereignty Over Natural Resources and the Obligation
Not to Cause Harm
State sovereignty over natural resources, as embodied in our own
Constitution, gives the State the right to the utilization and benefits over the
resources within its territory. However, since the 1970s, state sovereignty
over natural resources has been read with the obligation not to cause
harm. Principle 21 of the 1972 Stockholm Declaration, which is the
cornerstone of International Environmental Law, reflects these principles:
States have, in accordance with the Charter of the United Nations and the
principles of international law, the sovereign right to exploit their own
resources pursuant to their own environmental policies, and the
responsibility to ensure that activities within their jurisdiction or control do
not cause damage to the environment of other States or of areas beyond
the limits of national jurisdiction.
The sovereign right over natural resources includes the right of the states to
be free from external interference. The exercise of state sovereignty,
however, has its limits. Principle 21 provides that the state has the
responsibility not to cause harm beyond the limits of its national jurisdiction.
The No Harm Principle recognizes that a state’s activities may be
transboundary in nature which can affect or harm the environment of another
State. This is meant to be balanced with the sovereign principle of states
and requires them to take responsibility for their actions which cause harm
outside their own territory.
2. Principle of Prevention
The Principle of Prevention aims to stop environmental damage even before
it occurs or when it is critical and potential damage may already be
irreversible. This principle should be differentiated from the Obligation Not to
Cause Harm. The Obligation Not to Cause Harm deals with the effects of a
state’s activities outside its own territory without regard to activities that
cause environmental harm within the state. The Principle of Prevention
encompasses environmental harm within a state’s own territory.
Environmental Law | Summer 2017 83
The Principle of Prevention is based on the idea that it is better to prevent
than employ measures, after harm has occurred, in order to restore the
environment. This principle has been expanded by a relatively new principle
– the Precautionary Principle.
3. Precautionary Principle
Principle 15 of the Rio Declaration, commonly known as the Precautionary
Principle states:
‘In order to protect the environment, the precautionary approach
shall be widely applied by States according to their capabilities.
Where there are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as a reason for postponing
cost- effective measures to prevent environmental degradation.’
This principle advocates that the potential harm should be addressed even
with minimal predictability at hand. It is designed to provide the basis for
early international legal action to address serious environmental threats in
cases where there is ongoing scientific uncertainty with regard to the causes
of these threats. The Principle requires a high degree of prudence on the
part of the stakeholders. Decision makers are not only mandated to account
for scientific uncertainty but can also take positive action, e.g., restrict a
product or activity even when there is scientific uncertainty. Under Rule 20 of
the Rules of Procedure for Environmental Cases, the Precautionary Principle
is adopted as a rule of evidence. The Supreme Court’s adoption of the
Precautionary Principle in the newly promulgated Rules of Procedure for
Environmental Cases affords plaintiffs a better chance of proving their cases
where the risks of environmental harm are not easy to prove.
4. Sustainable Development
Sustainable Development is the process of developing land, cities,
businesses, communities, and so forth that “meets the needs of the present
without compromising the ability of future generations to meet their own
needs.” The concept of Sustainable Development carries two key concepts.
First, is the existence of needs with particular focus to the needs of the poor.
Arcilla | Mendoza - Updated Notes
Second, is that the environment has limitations in meeting the needs of
present and future generations.
The Principle of Sustainable Development addresses the need to reconcile
issues of development andenvironmentalprotection.16 It recognizes that
development requires economic exploitation to satisfy the needs of the
growing population at the same time protecting the environment for future
generations. The concept of sustainable development seeks to achieve
exploitation of resources while leaving the environment intact for the use of
future generations. Non-renewable resources must be used as efficiently as
possible. According to this principle, there must be optimal management of
natural resources.
The Principle of Sustainable Development is embodied in the Philippine
Agenda which was formulated as a response to the country’s commitments
in the 1992 Earth Summit in Rio de Janeiro, Brazil.
5. Intergenerational Equity
The concept of Intergenerational Equity supports the Principle of Sustainable
Development with respect to holding the natural resources in trust for future
generations.20 Nevertheless, this principle does not stop there.
Intergenerational Equity is defined as “each generation’s responsibility to
leave an inheritance of wealth no less than what they themselves have
inherited.”
In the landmark case of Oposa v. Factoran, the Supreme Court had the
occasion to discuss the concept of Intergenerational Responsibility. The
case was instituted by minors along with their parents alleging that the then
Secretary of Natural Resources acted with grave abuse of discretion in
issuing Timber License Agreements (TLAs) to cover more areas.
Respondents alleged that the minors, who invoked the right to a balanced
and healthful ecology, had no valid cause of action. On the issue of
petitioner’s standing, the Court held that the minors were entitled to sue on
the basis of Intergenerational Responsibility.
The Supreme Court, through former Chief Justice Davide explained:
 - This
case, however, has a special and novel element.
Environmental Law | Summer 2017 84
Petitioners minors assert that they represent their generation as well as
generations yet unborn. We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned. Such a right, as hereinafter expounded,
considers the “rhythm and harmony of nature.” Nature means the created
world in its entirety. Such rhythm and harmony indispensably include, inter
alia, the judicious disposition, utilization, management, renewal and
conservation of the country’s forest, mineral, land, waters, fisheries, wildlife,
off-shore areas and other natural resources to the end that their exploration,
development and utilization be equitably accessible to the present as well as
future generations. Needless to say, every generation has a responsibility to
the next to preserve that rhythm and harmony for the full enjoyment of a
balanced and healthful ecology. Put a little differently, the minors’ assertion
of their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the
generations to come.”
6. Rights-based Approach
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 Approach in Environmental Justice is reflected in various
international instruments. The Universal Declaration of Human Rights
provides for the “right to a standard of living adequate for health and well-
being.” The right carries with it the Right to the Environment. Later on, the
1972 Stockholm Declaration, which is the primary document in International
Environmental Law, would state in clear and express terms the Right to the
Environment. Principle 1 of the Stockholm Declaration states:
Man has the fundamental right to freedom, equality and adequate conditions
of life, in an environment of a quality that permits a life of dignity and well-
being, and he bears a solemn responsibility to protect and improve the
environment for present and future generations. In this respect, policies
promoting or perpetuating apartheid, racial segregation, discrimination,
Arcilla | Mendoza - Updated Notes
colonial and other forms of oppression and foreign domination stand
condemned and must be eliminated.
Subsequently, the Rio Declaration contained 27 principles with a goal of
ensuring the protection of the environment and promoting Sustainable
Development. Principle 1 recognizes that human beings are “the center of
concerns for sustainable development.” The Rio Declaration underlines the
obligations of states not to cause harm beyond their jurisdiction, to meet the
environmental needs of present and future generations, and to consider
environmental protection as an integral part of development. The Rio
Declaration also mandates states to eradicate poverty and to give special
attention to the least developed and environmentally vulnerable countries
emphasizing that in the cooperative process, states have common but
differentiated responsibilities. The Rio Declaration recognizes the
importance of enjoining the citizens in addressing environmental issues with
particular emphasis on the role of women, youth and Indigenous Peoples in
achieving sustainable development.
Under the Rights-based Approach, the right of persons to environmental
protection has the same level as basic human rights. The adoption of this
approach plays a crucial role in litigation because persons would be allowed
to litigate on the basis of their right to a healthy environment in the same way
that they can litigate for violations of their civil and socioeconomic rights.
In line with the Rights-based Approach, there is a growing trend towards
achieving Environmental Justice. Presently, the concept of Environmental
Justice varies among groups. Some define Environmental Justice as “the
goal of achieving adequate protection from the harmful effects of
environmental agents for everyone, regardless of age, culture, ethnicity,
gender, race, or socioeconomic status.” Others view Environmental Justice
as “the equitable distribution of burdens of the environmental harms among
various groups.” One author suggests that there are two fundamental
principles of Environmental Justice namely: distributive and procedural
justice. In Environmental Justice, distributive justice refers to the equitable
distribution of environmental risks and harms. Procedural justice, on the
other hand, focuses on the right of the stakeholders to participate in decision
making processes concerning the environment and enabling them to access
relevant information.
Environmental Law | Summer 2017 85
While the concept of Environmental Justice differs depending on the
perspective of the individual or entity, the ultimate goal is to enhance the
involvement of the people and to ensure access to justice. As a means of
addressing these concerns, there is heavy emphasis on the policies, laws,
and legal procedures.30 In the context of the judicial system, Environmental
Justice is tested in the light of the existence of adequate laws and policies,
the quality of its enforcement, and the existence of available remedies for
those affected by violations of environmental laws and regulations.
The environmental law principles discussed above will hopefully help you in
better understanding the laws, rules, and regulations related to
environmental law enforcement in the Philippines. These principles serve as
the foundation for the development of measures and provisions for the
protection of the environment. With these principles in mind, the next section
will provide a discussion of the most common and typical environmental
violations which take place in the Philippines, knowledge of which is the first
step in ensuring the proper enforcement of environmental protection laws in
our country.
United Nations Convention on the Law of the Sea
(UNCLOS), also called the Law of the Sea Convention or
the Law of the Sea treaty
PART XII: PROTECTION AND PRESERVATION OF THE MARINE
ENVIRONMENT
SECTION 1. GENERAL PROVISIONS
Article 192: General obligation - States have the obligation to protect and
preserve the marine environment.
Article 193: Sovereign right of States to exploit their natural resources -
States have the sovereign right to exploit their natural resources pursuant to
their environmental policies and in accordance with their duty to protect and
preserve the marine environment.
Article 194: Measures to prevent, reduce and control pollution of the marine
environment
 provisions of section 4 of this Annex. Its jurisdiction, powers and functions
Arcilla | Mendoza - Updated Notes
1. States shall take, individually or jointly as appropriate, all measures
consistent with this Convention that are necessary to prevent,
reduce and control pollution of the marine environment from any
source, using for this purpose the best practicable means at their
disposal and in accordance with their capabilities, and they shall
endeavour to harmonize their policies in this connection.
2. States shall take all measures necessary to ensure that activities
under their jurisdiction or control are so conducted as not to cause
damage by pollution to other States and their environment, and that
pollution arising from incidents or activities under their jurisdiction or
control does not spread beyond the areas where they exercise
sovereign rights in accordance with this Convention.
3. The measures taken pursuant to this Part shall deal with all sources
of pollution of the marine environment. These measures shall
include, inter alia, those designed to minimize to the fullest possible
extent:
a. the release of toxic, harmful or noxious substances, especially
those which are persistent, from land-based sources, from or
through the atmosphere or by dumping;
b. pollution from vessels, in particular measures for preventing
accidents and dealing with emergencies, ensuring the safety of
operations at sea, preventing intentional and unintentional
discharges, and regulating the design, construction,
equipment, operation and manning of vessels;
c. pollution from installations and devices used in exploration or
exploitation of the natural resources of the seabed and subsoil,
in particular measures for preventing accidents and dealing
with emergencies, ensuring the safety of operations at sea,
and regulating the design, construction, equipment, operation
and manning of such installations or devices;
d. pollution from other installations and devices operating in the
marine environment, in particular measures for preventing
accidents and dealing with emergencies, ensuring the safety of
operations at sea,
Article 14: Seabed Disputes Chamber
A Seabed Disputes Chamber shall be established in accordance with the
Environmental Law | Summer 2017 86
shall be as provided for in Part XI, section 5.
Article 15: Special chambers
1. The Tribunal may form such chambers, composed of three or
more of its elected members, as it considers necessary for
dealing with particular categories of disputes.
2. The Tribunal shall form a chamber for dealing with a particular
dispute submitted to it if the parties so request. The
composition of such a chamber shall be determined by the
Tribunal with the approval of the parties.
3. With a view to the speedy dispatch of business, the Tribunal
shall form annually a chamber composed of five of its elected
members which may hear and determine disputes by summary
procedure. Two alternative members shall be selected for the
purpose of replacing members who are unable to participate in
a particular proceeding.
4. Disputes shall be heard and determined by the chambers
provided for in this article if the parties so request.
 3
5. A judgment given by any of the chambers provided for in this
article and in article14 of this Annex shall be considered as
rendered by the Tribunal.
Article 16: Rules of the Tribunal :
The Tribunal shall frame rules for carrying out its functions. In particular it
shall lay down rules of procedure.
SECTION 3. PROCEDURE
Article 24: Institution of proceedings
1 Disputes are submitted to the Tribunal, as the case may be, either
by notification of a special agreement or by written application,
addressed to the Registrar. In either case, the subject of the
dispute and the parties shall be indicated.
2 The Registrar shall forthwith notify the special agreement or the
application to all concerned.
 3. The Registrar shall also notify all
States Parties.
Arcilla | Mendoza - Updated Notes
Article 30: Judgment
1 The judgment shall state the reasons on which it is based.
2 It shall contain the names of the members of the Tribunal who have
taken part in the decision.

3 If the judgment does not represent in whole or in part the
unanimous opinion of the members of the Tribunal, any member
shall be entitled to deliver a separate opinion.
4 The judgment shall be signed by the President and by the
Registrar. It shall be read in open court, due notice having been
given to the parties to the dispute.
Article 3l: Request to intervene
1 Should a State Party consider that it has an interest of a legal
nature which may be affected by the decision in any dispute, it may
submit a request to the Tribunal to be permitted to intervene.
2 It shall be for the Tribunal to decide upon this request.

If a request to intervene is granted, the decision of the Tribunal in
respect of the dispute shall be binding upon the intervening State
Party in so far as it relates to matters in respect of which that State
Party intervened.
Article 32: Right to intervene in cases of interpretation or application 

1 Whenever the interpretation or application of this Convention is in
question, the Registrar shall notify all States Parties forthwith.
2 Whenever pursuant to article 21 or 22 of this Annex the
interpretation or application of an international agreement is in
question, the Registrar shall notify all the parties to the agreement.
3 Every party referred to in paragraphs 1 and 2 has the right to
intervene in the proceedings; if it uses this right, the interpretation
given by the judgment will be equally binding upon it.
Article 33:Finality and binding force of decisions
1 The decision of the Tribunal is final and shall be complied with by
all the parties to the dispute.

2 The decision shall have no binding force except between the
Environmental Law | Summer 2017 87
 parties in respect of that particular dispute.
3 In the event of dispute as to the meaning or scope of the decision,
the Tribunal shall construe it upon the request of any party.
 of the Seabed Disputes Chamber shall promptly make the
SECTION 4. SEABED DISPUTES CHAMBER
Article 35 : Composition
1 The Seabed Disputes Chamber referred to in article 14 of this
Annex shall be composed of 11 members, selected by a majority of
the elected members of the Tribunal from among them.
2 In the selection of the members of the Chamber, the representation
of the principal legal systems of the world and equitable
geographical distribution shall be assured. The Assembly of the
Authority may adopt recommendations of a general nature relating
to such representation and distribution.
3 The members of the Chamber shall be selected every three years
and may be selected for a second term.

4 The Chamber shall elect its President from among its members,
who shall serve for the term for which the Chamber has been
selected.
5 If any proceedings are still pending at the end of any three-year
period for which the Chamber has been selected, the Chamber
shall complete the proceedings in its original composition.
6 If a vacancy occurs in the Chamber, the Tribunal shall select a
successor from among its elected members, who shall hold office
for the remainder of his predecessor's term.
7 A quorum of seven of the members selected by the Tribunal shall
be required to constitute the Chamber.
Article 36: Ad hoc chambers
1 The Seabed Disputes Chamber shall form an adhoc chamber,
composed of three of its members, for dealing with a particular
dispute submitted to it in accordance with article 188, paragraph
1(b). The composition of such a chamber shall be determined by
the Seabed Disputes Chamber with the approval of the parties.
2 If the parties do not agree on the composition of an ad hoc
chamber, each party to the dispute shall appoint one member, and
Arcilla | Mendoza - Updated Notes
the third member shall be appointed by them in agreement. If they
disagree, or if any party fails to make an appointment, the President
appointment or appointments from among its members, after
consultation with the parties.
3 Members of the adhoc chamber must not be in the service of, or
nationals of, any of the parties to the dispute.
ANNEX VII. ARBITRATION
Article 1: Institution of proceedings
Subject to the provisions of Part XV, any party to a dispute may submit the
dispute to the arbitral procedure provided for in this Annex by written
notification addressed to the other party or parties to the dispute. The
notification shall be accompanied by a statement of the claim and the
grounds on which it is based.
Article 2: List of arbitrators
1 A list of arbitrators shall be drawn up and maintained by the
Secretary-General of the United Nations. Every State Party shall be
entitled to nominate four arbitrators, each of whom shall be a
person experienced in maritime affairs and enjoying the highest
reputation for fairness, competence and integrity. The names of the
persons so nominated shall constitute the list.
2 If at any time the arbitrators nominated by a State Party in the list
so constituted shall be fewer than four, that State Party shall be
entitled to make further nominations as necessary.
3 The name of an arbitrator shall remain on the list until withdrawn by
the State Party which made the nomination, provided that such
arbitrator shall continue to serve on any arbitral tribunal to which
that arbitrator has been appointed until the completion of the
proceedings before that arbitral tribunal.
Article 3: Constitution of arbitral tribunal
For the purpose of proceedings under this Annex, the arbitral tribunal shall,
unless the parties otherwise agree, be constituted as follows:

Environmental Law | Summer 2017 88
 a. Subject to subparagraph (g), the arbitral tribunal shall consist of five
members.
 f.
b. The party instituting the proceedings shall appoint one member to
be chosen preferably from the list referred to in article 2 of this
Annex, who may be its national. The appointment shall be included
in the notification referred to in article l of this Annex.
c. The other party to the dispute shall, within 30 days of receipt of the
notification referred to in article l of this Annex, appoint one member
to be chosen preferably from the list, who may be its national. If the
appointment is not made within that period, the party instituting the
proceedings may, within two weeks of the expiration of that period,
request that the appointment be made in accordance with
subparagraph (e).
d. The other three members shall be appointed by agreement
between the parties. They shall be chosen preferably from the list
and shall be nationals of third States unless the parties otherwise
agree. The parties to the dispute shall appoint the President of the
arbitral tribunal from among those three members. If, within 60days
of receipt of the notification referred to in article l of this Annex, the
parties are unable to reach agreement on the appointment of one
or more of the members of the tribunal to be appointed by
agreement, or on the appointment of the President, the remaining
appointment or appointments shall be made in accordance with
subparagraph (e), at the request of a party to the dispute. Such
request shall be made within two weeks of the expiration of the
aforementioned 60- day period.
e. Unless the parties agree that any appointment under
subparagraphs (c) and (d) be made by a person or a third State
chosen by the parties, the President of the International Tribunal for
the Law of the Sea shall make the necessary appointments. If the
President is unable to act under this subparagraph or is a national
of one of the parties to the dispute, the appointment shall be made
by the next senior member of the International Tribunal for the Law
of the Sea who is available and is not a national of one of the
parties. The appointments referred to in this subparagraph shall be
made from the list referred to in article 2 of this Annex within a
period of 30 days of the receipt of the request and in consultation
with the parties. The members so appointed shall be of different
nationalities and may not be in the service of, ordinarily resident in
Arcilla | Mendoza - Updated Notes
the territory of, or nationals of, any of the parties to the dispute.
Any vacancy shall be filled in the manner prescribed for the initial
appointment.
g. Parties in the same interest shall appoint one member of the
tribunal jointly by agreement. Where there are several parties
having separate interests or where there is disagreement as to
whether they are of the same interest, each of them shall appoint
one member of the tribunal. The number of members of the tribunal
appointed separately by the parties shall always be smaller by one
than the number of members of the tribunal to be appointed jointly
by the parties.
h. In disputes involving more than two parties, the provisions of
subparagraphs (a) to (f) shall apply to the maximum extent
possible.
Article 4: Functions of arbitral tribunal –
An arbitral tribunal constituted under article 3 of this Annex shall function in
accordance with this Annex and the other provisions of this Convention.
Article 5: Procedure –
Unless the parties to the dispute otherwise agree, the arbitral tribunal shall
determine its own procedure, assuring to each party a full opportunity to be
heard and to present its case.
Article 6: Duties of parties to a dispute
The parties to the dispute shall facilitate the work of the arbitral tribunal and,
in particular, in accordance with their law and using all means at their
disposal, shall:

a. provide it with all relevant documents, facilities and information;
and

b. enable it when necessary to call witnesses or experts and receive
their evidence and to visit the localities to which the case relates.
Environmental Law | Summer 2017 89
Article 7: Expenses
Unless the arbitral tribunal decides otherwise because of the particular
circumstances of the case, the expenses of the tribunal, including the
remuneration of its members, shall be borne by the parties to the dispute in
equal shares.
Article 8: Required majority for decisions
Decisions of the arbitral tribunal shall be taken by a majority vote of its
members. The absence or abstention of less than half of the members shall
not constitute a bar to the tribunal reaching a decision. In the event of an
equality of votes, the President shall have a casting vote.
Article 9: Default of appearance
If one of the parties to the dispute does not appear before the arbitral
tribunal or fails to defend its case, the other party may request the tribunal to
continue the proceedings and to make its award. Absence of a party or
failure of a party to defend its case shall not constitute a bar to the
proceedings. Before making its award, the arbitral tribunal must satisfy itself
not only that it has jurisdiction over the dispute but also that the claim is well
founded in fact and law.
Article 10: Award
The award of the arbitral tribunal shall be confined to the subject-matter of
the dispute and state the reasons on which it is based. It shall contain the
names of the members who have participated and the date of the award.
Any member of the tribunal may attach a separate or dissenting opinion to
the award.
Article 11: Finality of award
The award shall be final and without appeal, unless the parties to the dispute
have agreed in advance to an appellate procedure. It shall be complied with
by the parties to the dispute.
Arcilla | Mendoza - Updated Notes
Article 12: Interpretation or implementation of award
1 Any controversy which may arise between the parties to the dispute
as regards the interpretation or manner of implementation of the
award may be submitted by either party for decision to the arbitral
tribunal which made the award. For this purpose, any vacancy in
the tribunal shall be filled in the manner provided for in the original
appointments of the members of the tribunal.
2 Any such controversy may be submitted to another court or tribunal
under article 287 by agreement of all the parties to the dispute.
Article 13: Application to entities other than States Parties
The provisions of this Annex shall apply mutatis mutandis to any dispute
involving entities other than States Parties.
International Environmental Organizations
United Nations
The United Nations (UN) is an organization of sovereign nations. It provides
the machinery for its Member States to help solve disputes or problems, and
deal with matters of concern to all humanity. It does not legislate.
The International Court of Justice (ICJ) is the principal judicial organ of the
UN.
The General Assembly is the UN's main deliberative body. All Member
States are represented in it and each has one vote.
The Economic and Social Council (ECOSOC) coordinates the economic
and social work of the UN.
The Security Council has primary responsibility for maintenance of
international peace and security. It has five permanent members each with
the right to veto, and ten others elected for two-year terms. Member States
are obligated to carry out its decisions.
Environmental Law | Summer 2017 90
The Secretariat services all organs of the UN except the ICJ, doing the day-
to-day work of the UN, ranging from administering peace-keeping
operations to organizing conferences.
The Secretary-General controls and directs the Secretariat, and is chief
administrative officer at all meetings of the General Assembly, Security
Council ECOSOC and the Trusteeship Council.
The Trusteeship Council was established to ensure that governments
responsible for administering Trust Territories took adequate steps to
prepare them for self- government or independence. This task having been
completed in 1994, the Council will now meet as and when required.
The specialized agencies and programmes have wide international
responsibilities for development, health and economic, social, cultural,
educational, scientific and technical, and other fields.
The United Nations Educational, Scientific and Cultural Organization
(UNESCO) is a specialized agency of the United Nations established in
1946 with its headquarters in Paris, France. Its stated purpose is to
contribute to peace and security by promoting international collaboration
through education, science, and culture in order to further universal respect
for justice, the rule of law, and the human rights and fundamental freedoms
proclaimed in the UN Charter.
The World Health Organization (WHO) acts as a coordinating authority on
international public health and deals with health and sanitation and diseases
and sends medical teams to help combat epidemics. Established on 7 April
1948, and headquartered in Geneva, Switzerland, the agency inherited the
mandate and resources of its predecessor, the Health Organization, which
had been an agency of the League of Nations.
The Food and Agriculture Organization of the United Nations leads
international efforts to defeat hunger. Serving both developed and
developing countries, FAO acts as a neutral forum where all nations meet as
equals to negotiate agreements and debate policy. FAO's mandate is to
raise levels of nutrition, improve agricultural productivity, better the lives of
rural populations and contribute to the growth of the world economy. FAO is
the largest of UN agencies and its headquarters is in Rome, Italy.
 Protocol, and it is also a member of the United Nations Development
Arcilla | Mendoza - Updated Notes
The International Labour Organization (ILO) deals with labour issues. Its
headquarters are in Geneva, Switzerland. Founded in 1919, it was formed
through the negotiations of the Treaty of Versailles, and was initially an
agency of the League of Nations. It became a member of the UN system
after the demise of the League and the formation of the UN at the end of
World War II. Its Constitution, as amended to date, includes the Declaration
of Philadelphia on the aims and purposes of the Organization. Its secretariat
is known as theInternational Labour Office.
The United Nations Environment Programme (UNEP) is an agency that
coordinates its environmental activities, assisting developing countries in
implementing environmentally sound policies and practices. It was founded
by Maurice Strong, its first director, as a result of the United Nations
Conference on the Human Environment in June 1972 and has its
headquarters in the Gigiri neighborhood of Nairobi, Kenya. UNEP also has
six regional offices and various country offices.
Its activities cover a wide range of issues regarding the atmosphere, marine
and terrestrial ecosystems, environmental governance and green economy.
It has played a significant role in developing international environmental
conventions, promoting environmental science and information and
illustrating the way those can be implemented in conjunction with policy,
working on the development and implementation of policy with national
governments, regional institutions in conjunction with environmental non-
governmental organizations (NGOs). UNEP has also been active in funding
and implementing environment related development projects.
The winner of the Miss Earth beauty pageant serves as the spokesperson of
UNEP.
UNEP has aided in the formulation of guidelines and treaties on issues such
as the international trade in potentially harmful chemicals, transboundary air
pollution, and contamination of international waterways.
The World Meteorological Organization and UNEP established the
Intergovernmental Panel on Climate Change (IPCC) in 1988. UNEP is also
one of several Implementing Agencies for the Global Environment Facility
(GEF) and the Multilateral Fund for the Implementation of the Montreal
Environmental Law | Summer 2017 91
Group.[1] The International Cyanide Management Code, a program of best
practice for the chemical’s use at gold mining operations, was developed
under UNEP’s aegis.
UN Specialized agencies: ILO, IMO, WMO, UNESCO, FAO
Specialized agencies are autonomous organizations working with the
United Nations and each other through the coordinating machinery of the
United Nations Economic and Social Council at the intergovernmental level,
and through the Chief Executives Board for coordination (CEB) at the inter-
secretariat level.[1] Specialized agencies may or may not have been
originally created by the United Nations, but they are incorporated into the
United Nations System by the United Nations Economic and Social Council
acting under Articles 57 and 63 of the United Nations Charter. At present the
UN has in total 15. specialized agencies that carry out various functions on
behalf of the UN.
The International Maritime Organization (IMO), formerly known as the
Inter-Governmental Maritime Consultative Organization (IMCO), was
established in 1948 through the United Nations to coordinate international
maritime safety and related practices. However the IMO did not enter into full
force until 1958.
Headquartered in London, United Kingdom, the IMO promotes cooperation
among governments and the shipping industry to improve maritime safety
and to prevent marine pollution.
The International Maritime Organization (IMO), formerly known as the
Inter-Governmental Maritime Consultative Organization (IMCO), was
established in 1948 through the United Nations to coordinate international
maritime safety and related practices. However the IMO did not enter into full
force until 1958.
Headquartered in London, United Kingdom, the IMO promotes cooperation
among governments and the shipping industry to improve maritime safety
and to prevent marine pollution.
The International Civil Aviation Organization (ICAO) was founded in
1947. It codifies the principles and techniques of international air navigation
Arcilla | Mendoza - Updated Notes
and fosters the planning and development of international air transport to
ensure safe and orderly growth. Its headquarters are located in the Quartier
international de Montréal of Montreal, Canada.
The ICAO Council adopts standards and recommended practices
concerning air navigation, prevention of unlawful interference, and facilitation
of border-crossing procedures for international civil aviation. In addition,
ICAO defines the protocols for air accident investigation followed by
transport safety authorities in countries signatory to the Convention on
International Civil Aviation, commonly known as the Chicago Convention.
International Monetary Fund (IMF) is sometimes considered to be a
specialized agency. It is part of the United Nations system and has a formal
relationship agreement with the UN, but retains its independence The IMF
provides monetary cooperation and financial stability and acts as a forum for
advice, negotiation and assistance on financial issues. It is headquartered in
Washington, D.C., United States of America.
The United Nations Industrial Development Organization (UNIDO) is a
specialized agency of the United Nations system, headquartered in Vienna,
Austria. The Organization's primary objective is the promotion and
acceleration of industrial development in developing countries and countries
with economics in transition and the promotion of international industrial
cooperation.
The World Meteorological Organization (WMO) originated from the
International Meteorological Organization (IMO), which was founded in 1873.
Established in 1950, WMO became the specialized agency of the United
Nations for modern meteorology (weather and climate), operational
hydrology and related geophysical sciences. It has its headquarters in
Geneva, Switzerland.
Intergovernmental institution: IUCN
The International Union for Conservation of Nature and Natural
Resources (IUCN) is an international organization working in the field of
nature conservation and sustainable use of natural resources. It is involved
in data gathering and analysis, research, field projects, advocacy, lobbying
and education. IUCN's mission is to "influence, encourage and assist
Environmental Law | Summer 2017 92
societies throughout the world to conserve nature and to ensure that any use
of natural resources is equitable and ecologically sustainable."
Over the past decades, IUCN has widened its focus beyond conservation
ecology and now incorporates issues related to gender equality, poverty
alleviation and sustainable business in its projects. Unlike other international
NGOs, IUCN does not itself aim to mobilize the public in support of nature
conservation. It tries to influence the actions of governments, business and
other stakeholders by providing information and advice, and through
lobbying and partnerships. The organization is best known to the wider
public for compiling and publishing the IUCN Red List of Threatened
Species, which assesses the conservation status of species worldwide.
IUCN has a membership of over 1200 governmental and non-governmental
organizations. Some 11,000 scientists and experts participate in the work of
IUCN commissions on a voluntary basis. It employs approximately 1000 full-
time staff in more than 60 countries. Its headquarters are in Gland,
Switzerland.
IUCN has observer and consultative status at the United Nations, and plays
a role in the implementation of several international conventions on nature
conservation and biodiversity. It was involved in establishing the World Wide
Fund for Nature and the World Conservation Monitoring Centre. In the past,
IUCN has been criticized for placing the interests of nature over those of
indigenous peoples. In recent years, its closer relations with the business
sector have caused controversy.
IUCN was established in 1948. It was previously called the International
Union for Protection of Nature (1948–1956) and the World Conservation
Union (1990–2008). Its full legal name is International Union for
Conservation of Nature and Natural Resources.
Continental groupings: OAS, OAU, EU- counterparts of
ASEAN
 Basically, regionalism from below means that countries in a
geographical area cooperate either for specific purposes or general mutual
benefit, especially involving economic cooperation and peacekeeping. The
most important general such institutions are the European Union (EU),
Organization of American States (OAS), Organization of African Unity
(OAU), Association of Southeast Asian Nations (ASEAN), and the Arab
Arcilla | Mendoza - Updated Notes
League.
The Organization of American States or the OAS or OEA, is an inter-
continental organization founded on 30 April 1948, for the purposes of
regional solidarity and cooperation among its member states. Headquartered
in Washington, D.C., United States, the OAS's members are the 35
independent states of the Americas.
As of 26 May 2015, the Secretary General of OAS is Luis Almagro
The OAS constitutes the main political, juridical, and social governmental
forum in the Hemisphere. In addition, it has granted permanent observer
status to 69 states, as well as to the European Union (EU).
The OAS uses a four-pronged approach to effectively implement its
essential purposes. The Organization’s four main pillars––democracy,
human rights, security, and development––support each other and are
intertwined through political dialogue, inclusiveness, cooperation, and legal
and follow-up instruments that provide the OAS with the tools to maximize its
work in the Hemisphere.
COBSEA (coordinating bodies of East Asia)
COBSEA, UNEP Regional Seas Programme for the East Asian Seas Region
9 countries; Formed in 1981 as an INTERGOVERNMENTAL PLATFORM
but – no legally binding convention;
Mandate - to coordinate activities on the conservation and management of
the marine and coastal environment;
(COBSEA Secretariat) is based in Bangkok.
ABOUT COBSEA: East Asia's astonishing variety of political, economic and
social systems is matched by its environment: ship-crowded straits, island
groups, wide gulfs, shallow estuaries - and some of the most heavily
populated countries in the world where millions rely on seafood for much of
their protein. The threats to the coastal and marine environment in the region
seem just as varied, and include erosion and siltation from land
development, logging and mining, blast fishing in coral reefs, cutting and
Environmental Law | Summer 2017 93
conversion of mangroves, overfishing, unimpeded development and disposal
of untreated wastes.
The Action Plan for the Protection and Development of the Marine
Environment and Coastal Areas of the East Asian Seas Region (the East
Asian Seas Action Plan) was approved in 1981 stimulated by concerns on
the effects and sources of marine pollution. Initially, the action plan involved
five countries (Indonesia, Malaysia, Philippines, Singapore and Thailand). In
1994, it was revised to involve another five countries (Australia, Cambodia,
People's Republic of China, Republic of Korea and Vietnam) and up to this
date the action plan has nine participating countries (Australia is no longer a
participating country). The main components of East Asian Seas Action Plan
are assessment of the effects of human activities on the marine
environment, control of coastal pollution, protection of mangroves,
seagrasses and coral reefs, and waste management.
Among the Regional Seas Programmes, East Asia has steered a unique
course. There is no regional convention; instead the programme promotes
compliance with existing environmental treaties and is based on
member country goodwill.
East Asian Seas Action Plan is steered by the Coordinating Body on the
Seas of East Asia (COBSEA) that is consisting of the ten member
countries (Cambodia, China, Indonesia, Rep of Korea, Malaysia,
Philippines, Singapore, Thailand, Vietnam). The COBSEA Secretariat is in
fact the lead agency of the United Nations for marine environmental
matters in East Asia, responsible for coordinating the activities of
governments, NGOs, UN and donor agencies, and individuals in caring
for the region's marine environment.
AARHUS Convention
The Aarhus Convention was adopted on 25th June 1998 in the Danish city
of Aarhus at the Fourth Ministerial Conference in the 'Environment for
Europe' process. It lays down a set of basic rules to promote the involvement
of citizens in environmental matters and improve enforcement of
environmental law. The Convention is legally binding on States that have
become Parties to it. As the European Union is a Party, the Convention also
applies to the EU institutions.
Arcilla | Mendoza - Updated Notes
The Three Pillars of the Convention: The provisions of the Aarhus
Convention are broken down into three pillars: access to information, public
participation in decision- making and access to justice.
1. Access to Information
Articles 4 and 5 of the Convention concern environmental information.
Members of the public are entitled to request environmental information from
public bodies and these bodies are obliged to maintain this information. This
includes information on the state of the environment, policies and measures
taken, or on the state of human health and safety, where this can be affected
by the state of the environment. Some information is exempt from release,
for example where the disclosure would adversely affect international
relations, national defence, public security, the course of justice, commercial
confidentiality or the confidentiality of personal data. Information may also be
withheld if its release could harm the environment, such as the breeding
sites of rare species.
2. Public Participation in Decision-Making
Under the Convention, the public has a right to participate in decision-
making in environmental matters. Arrangements should be made by public
authorities to enable the public to comment on, for example, proposals for
projects affecting the environment, or plans and programmes relating to the
environment. Any subsequent comments are to be taken into consideration
in the decision-making process. Information must be provided on the final
decisions and the reasons for it. In the European Union, this part of the
Aarhus Convention has been implemented by Directive 2003/35/EC on
public participation (‘the Public Participation Directive’).
3. Access to Justice
Article 9 of the Aarhus Convention allows the public to access to justice, i.e.
the right to seek redress when environmental law is infringed and the right to
access review procedures to challenge public decisions that have been
made without regard to the two other pillars of the Convention.
Article 9(1) deals with access to justice in respect of requests for
environmental information. It has been implemented in Ireland by the
Environmental Law | Summer 2017 94
European Communities (Access to Information on the Environment)
Regulations 2007-2011. These regulations provide for an internal review
mechanism in respect of information requests and assign the role of
Commissioner for Environmental Information to the Information
Commissioner.
All members of the public are required to have access to review procedures
to challenge decisions relating to the environment, made by public bodies or
private persons. These procedures must be 'fair, equitable, timely and not
prohibitively expensive'.
World Heritage Convention
The Convention concerning the Protection of the World Cultural and Natural
Heritage entered into force on 17 December 1975, three months after the
date of the deposit of the twentieth instrument of ratification, acceptance or
accession, pursuant to its article 33.
Efforts aimed at the preservation of artistic and historic heritage of mankind
date back to the time of the League of Nations. The establishment of the
United Nations Educational, Scientific and Cultural Organization (UNESCO),
on 16 November 1945, gave new impetus to such efforts. In 1966,
UNESCO’s General Conference adopted resolution 3.342, by which it
instructed the Director-General to coordinate and secure the international
adoption of appropriate principles and scientific, technical and legal criteria
for the protection of cultural property, monuments and sites. Meetings of
experts were held and their final reports suggested that the Director-General
should prepare an international recommendation, which could serve as a
basis for creating or perfecting national systems of protection, and prepare
an international convention or other appropriate means to favour the
establishment of an international system for the protection of monuments,
groups of buildings and sites of universal value. In 1970, the General
Conference, by resolution 3.412, entrusted the Acting Director-General with
drafting an international convention and invited him to convene a Special
Committee tasked with examining and finalizing the drafts. The Committee
completed its work with the adoption of the draft “Convention for the
Protection of the Cultural and Natural World Heritage” and the draft
“Recommendation Concerning the Protection, at National Level, of the
Cultural and Natural Heritage” in April 1972. The two texts were submitted to
Arcilla | Mendoza - Updated Notes
the seventeenth session of the General Conference on 15 November 1972
and adopted the following day.
The Convention contains 38 articles which are divided into eight parts: I.
Definition of the Cultural and Natural Heritage; II. National Protection and
International Protection of the Cultural and Natural Heritage; III.
Intergovernmental Committee for the Protection of the World Cultural and
Natural Heritage; IV. Fund for the Protection of the World Cultural and
Natural Heritage; V. Conditions and Arrangements for International
Assistance; VI. Educational Programmes; VII. Reports; and VIII. Final
Clauses.
The World Heritage Convention - The most significant feature of the 1972
World Heritage Convention is that it links together in a single document the
concepts of nature conservation and the preservation of cultural properties.
The Convention recognizes the way in which people interact with nature,
and the fundamental need to preserve the balance between the two.
Strategic Objectives: the "Five Cs"
1 Credibility
2 Conservation
3 Capacity-building
4 Communication
5 Communities
What the Convention contains - The Convention defines the kind of
natural or cultural sites which can be considered for inscription on the World
Heritage List.
The Convention sets out the duties of States Parties in identifying potential
sites and their role in protecting and preserving them. By signing the
Convention, each country pledges to conserve not only the World Heritage
sites situated on its territory, but also to protect its national heritage. The
States Parties are encouraged to integrate the protection of the cultural and
natural heritage into regional planning programmes, set up staff and services
at their sites, undertake scientific and technical conservation
Environmental Law | Summer 2017 95
Ramsar Convention on Wetlands
The Ramsar Convention (formally, the Convention on Wetlands of
International Importance, especially as Waterfowl Habitat) is an international
treaty for the conservation and sustainable utilization of wetlands,
recognizing the fundamental ecological functions of wetlands and their
economic, cultural, scientific, and recreational value. It is named after the
city of Ramsar in Iran, where the Convention was signed in 1971.
The Convention on Wetlands, called the Ramsar Convention, is an
intergovernmental treaty that provides the framework for national action and
international cooperation for the conservation and wise use of wetlands and
their resources. Number of Contracting Parties: 169
Number of Ramsar Sites: 2,231
 Total surface of designated sites:
214,936,005 ha
The Convention’s mission is “the conservation and wise use of all wetlands
through local and national actions and international cooperation, as a
contribution towards achieving sustainable development throughout the
world”.
Wetlands are among the most diverse and productive ecosystems. They
provide essential services and supply all our fresh water. However they
continue to be degraded and converted to other uses.
The Convention uses a broad definition of wetlands. It includes all lakes and
rivers, underground aquifers, swamps and marshes, wet grasslands,
peatlands, oases, estuaries, deltas and tidal flats, mangroves and other
coastal areas, coral reefs, and all human-made sites such as fish ponds, rice
paddies, reservoirs and salt pans.
Under the “three pillars” of the Convention, the Contracting Parties commit
to:
 of wetlands;
a. work towards the wise use of all their wetlands;
 List of Wetlands of International Importance, hence increased
b. designate suitable wetlands for the list of Wetlands of International
Importance (the “Ramsar List”) and ensure their effective
management;
Arcilla | Mendoza - Updated Notes
c. cooperate internationally on transboundary wetlands, shared
wetland systems and shared species.
The Ramsar Convention works closely with five other organisations known
as International Organization Partners (IOPs). These are Birdlife
International, the International Union for Conservation of Nature (IUCN), the
International Water Management Institute (IWMI), Wetlands International
and WWF International. These support the work of the Convention by
providing expert technical advice, helping implement field studies and
providing financial support.
 SUPPLEMENT NOTES: Wetlands [Ramsar Convention] Wetlands
(Amb. Tolentino)
 all marshes, peatlands, mudflats, deltas, floodplains, 
 lagoons,
estuary, rivers and lakes (seasonal or permanent), wet grassland,
subtidal aquatic beds, sand beaches, moss bogs, swamps,
oxbows, wet meadows, cypress swamps, reed marshes 

 coastal areas such as saltmarshes, mangroves and seagrass beds


 coral reefs and other marine areas no deeper than 6 metres at low
tide 

 human made wetlands such as wastewater treatment ponds and
reservoirs 

 karst subterranean hydrological systems 

Benefits from Ramsar Convention 

 facilitates the development at national level of policies 
 and
actions, including legislation, that help nations to make the best
possible use of their wetland resources in their quest for
sustainable development; 

 presents an opportunity for a country to make its voice heard in the
principal intergovernmental forum on the conservation and wise use


 increased publicity and prestige for the wetlands designated for the
possibilities of support for conservation and wise use measures; 

 access to the latest information and advice on adoption of the
Environmental Law | Summer 2017 96
 Convention’s internationally-accepted standards, such as criteria Administrative Authority Scientific and Technical Review Panel (STRP)
for identifying wetlands of international importance, advice on
application of the wise use concept, and guidelines on Implementation of the Policy
management planning in wetlands; 

 brings access to expert advice on national and site-related  Action plan
problems of wetland conservation and management through  Work plan
contacts with Ramsar Secretariat personnel and collaborators and  Guidelines to implement the policy
through application of the Ramsar Advisory Mission when
appropriate; and 
 Review of Legislation Designation of Lead Agency
 encourages international cooperation on wetland issues and brings
the possibility of support for wetland projects, either through the Monitoring
Convention’s own small grants assistance programmes or through
the Convention’s contacts with multilateral and bilateral external  Wetland health and land use monitoring
support agencies 
  Program success monitoring
 Ramsal Small Grants Fund
Local Indigenous People Participation
RAMSAR vis-á-vis other MEA
1 Collaboration with the management of inhabited or privately owned
1 Convention on Biological Diversity (CBD) wetland
2 CMS 2 Access to natural resources within wetland essential for livelihood,
3 Convention on International Trade in Endangered Species of Fauna security, cultural heritage
and Flora (CITES) 3 Foster cooperation among CP
4 Use network to promote cooperation in relation to complementary
2 Priority Issues treaties

1 Defining wetlands of global importance (RAMSAR list) National Wetland Policy Opportunities
2 Promoting “wise-use” of wetlands
 Establish wetland conservation and objectives in government
Party Commitments policies
 Enhance coordination of agencies
1 designation of at least 1 site  Incentives to create wetlands
2 inclusion of wetlands conservation in national land use planning  Foster better wetland management
3 establishing nature reserves on wetlands and training on wetland
 Better knowledge about wetland conservation and application
research, management and wardening
4 consulting with other parties regarding implementation
Wetland Policy Objectives Focus on:

 Maintenance of wetland functions

 Advance land use planning affecting wetlands

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 97

  Enhancement and rehabilitation of wetlands Convention on Biological Diversity (CBD)
 Proclamation of sites
 Mitigation of impact of activities  Entered into force on 29 December 1993.
 Wise use of wetland resources  3 Main objectives:
1. The conservation of biological diversity

Goal Statement Principles 2. The sustainable use of the components of biological diversity
3. The fair and equitable sharing of the benefits arising out of the
Wetland Functions: utilization of genetic resources

 water supply The convention recognized for the first time in international law that the
 flood control conservation of biological diversity is "a common concern of humankind" and
 tourism is an integral part of the development process. The agreement covers all
 saline intrusion ecosystems, species, and genetic resources. It links traditional conservation
 shoreline protection efforts to the economic goal of using biological resources sustainably. It sets
 sediment trap principles for the fair and equitable sharing of the benefits arising from the
 natural products use of genetic resources, notably those destined for commercial use. It also
 water transport covers the rapidly expanding field of biotechnology through its Cartagena
 cultural significance Protocol on Biosafety, addressing technology development and transfer,
benefit- sharing and biosafety issues. Importantly, the Convention is legally
 carbon sink
binding; countries that join it ('Parties') are obliged to implement its
provisions.
Principal Threats to Wetland Functions:

The convention reminds decision-makers that natural resources are not

 agriculture
infinite and sets out a philosophy of sustainable use. While past
 logging
conservation efforts were aimed at protecting particular species and
 mining
habitats, the Convention recognizes that ecosystems, species and genes
 urban expansion
must be used for the benefit of humans. However, this should be done in a
 infrastructure development way and at a rate that does not lead to the long-term decline of biological
diversity.
Primarily on Birds’ ecological dependence on wetlands
The convention also offers decision-makers guidance based on the
Recognizes the importance of wetlands as resources of great economic, precautionary principle that where there is a threat of significant reduction or
cultural, scientific and recreational value loss of biological diversity, lack of full scientific certainty should not be used
as a reason for postponing measures to avoid or minimize such a threat.
Convention broadened to cover all aspects of wetland conservation and wise The Convention acknowledges that substantial investments are required to
use conserve biological diversity. It argues, however, that conservation will bring
us significant environmental, economic and social benefits in return.
Note for Finals  Provide laws where the PH provides for implementation of
RAMSAR Convention The Convention on Biological Diversity of 2010 would ban some forms of

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 98

geo-engineering.
The Cartagena Protocol on Biosafety of the Convention, also known as the
Biosafety Protocol, was adopted in January 2000. The Biosafety Protocol
seeks to protect biological diversity from the potential risks posed by living
modified organisms resulting from modern biotechnology.
The Nagoya Protocol on Access to Genetic Resources and the Fair and
Equitable Sharing of Benefits Arising from their Utilization to the Convention
on Biological Diversity is a supplementary agreement to the Convention on
Biological Diversity. It provides a transparent legal framework for the
effective implementation of one of the three objectives of the CBD: the fair
and equitable sharing of benefits arising out of the utilization of genetic
resources. The Protocol was adopted on 29 October 2010 in Nagoya, Aichi
Province, Japan, and entered into force on 12 October 2014. Its objective is
the fair and equitable sharing of benefits arising from the utilization of
genetic resources, thereby contributing to the conservation and sustainable
use of biodiversity.
The Convention on International Trade in Endangered
Species of Wild Fauna and Flora, also known as the
Washington Convention (CITES)
What is CITES?
CITES (the Convention on International Trade in Endangered Species of
Wild Fauna and Flora) is an international agreement between governments.
Its aim is to ensure that international trade in specimens of wild animals and
plants does not threaten their survival.
Widespread information nowadays about the endangered status of many
prominent species, such as the tiger and elephants, might make the need for
such a convention seem obvious. But at the time when the ideas for CITES
were first formed, in the 1960s, international discussion of the regulation of
wildlife trade for conservation purposes was something relatively new. With
hindsight, the need for CITES is clear. Annually, international wildlife trade is
estimated to be worth billions of dollars and to include hundreds of millions
of plant and animal specimens. The trade is diverse, ranging from live
Arcilla | Mendoza - Updated Notes
animals and plants to a vast array of wildlife products derived from them,
including food products, exotic leather goods, wooden musical instruments,
timber, tourist curios and medicines. Levels of exploitation of some animal
and plant species are high and the trade in them, together with other factors,
such as habitat loss, is capable of heavily depleting their populations and
even bringing some species close to extinction. Many wildlife species in
trade are not endangered, but the existence of an agreement to ensure the
sustainability of the trade is important in order to safeguard these resources
for the future.
Because the trade in wild animals and plants crosses borders between
countries, the effort to regulate it requires international cooperation to
safeguard certain species from over-exploitation. CITES was conceived in
the spirit of such cooperation. Today, it accords varying degrees of
protection to more than 35,000 species of animals and plants, whether they
are traded as live specimens, fur coats or dried herbs.
CITES was drafted as a result of a resolution adopted in 1963 at a meeting
of members of IUCN (The World Conservation Union). The text of the
Convention was finally agreed at a meeting of representatives of 80
countries in Washington, D.C., the United States of America, on 3 March
1973, and on 1 July 1975 CITES entered in force. The original of the
Convention was deposited with the Depositary Government in the Chinese,
English, French, Russian and Spanish languages, each version being
equally authentic.
CITES is an international agreement to which States (countries) adhere
voluntarily. States that have agreed to be bound by the Convention ('joined'
CITES) are known as Parties. Although CITES is legally binding on the
Parties – in other words they have to implement the Convention – it does not
take the place of national laws. Rather it provides a framework to be
respected by each Party, which has to adopt its own domestic legislation to
ensure that CITES is implemented at the national level.
For many years CITES has been among the conservation agreements with
the largest membership, with now 181 Parties.
Environmental Law | Summer 2017 99
How CITES works
CITES works by subjecting international trade in specimens of selected
species to certain controls. All import, export, re- export and introduction
from the sea of species covered by the Convention has to be authorized
through a licensing system. Each Party to the Convention must designate
one or more Management Authorities in charge of administering that
licensing system and one or more Scientific Authorities to advise them on
the effects of trade on the status of the species.
The species covered by CITES are listed in three Appendices, according to
the degree of protection they need.
The Fundamental Principles of CITES are described in Article 2: arguably
the most important part of the Convention. This defines the criteria for listing
under the three appendices. Appendix I is reserved for those species that
are threatened with extinction that are now, or may become, further
endangered by international trade. As such, trade in those species is
prohibited for all Parties, although there are some exceptions. These
include, for example, specimens that are raised in captivity or parts that were
derived from specimens before the treaty came into force. Species listed on
Appendix II fall into two categories. This includes those that are not
necessarily threatened with extinction by trade, but may become so unless
conservation measures are taken, and those that may look like other species
affected by trade and listed on an Appendix. The second category includes,
for example, all crocodilians. In this case, some species are common and
can be commercially traded under the CITES permit system (such as
American alligators and common caiman from many Latin American
countries), while other are rare and are listed under Appendix I (Orinoco
crocodile). This is meant to assure that rare species are not traded under
labels of more common species. Appendix II listings have increased greatly
over the years; all wild cats and wild orchids, for example, not listed in
Appendix I are now listed in Appendix II. Appendix III includes species that
are protected by individual States within their respective jurisdictions.
Ghana, for example, protects all songbirds, and trade in any species,
including those that are common, from that country is prohibited.
Arcilla | Mendoza - Updated Notes
The Provisions of CITES
CITES has 25 Articles and each is described briefly here. Article 1 provides
broad legal and scientific definitions used in subsequent articles. A “species"
under the Convention can refer to a biological species, subspecies or
a
 separate population and a “specimen” can refer to any animal or plant,
whether dead or alive, and/or any recognizable part or derivative thereof,
that is listed on any one of the three Appendices (see below). Definitions are
also provided for what constitutes trade, export, re-export, and the scientific
and management authorities that the Parties are required to designate under
the treaty.
Articles 3 through 5 provide broad legal guidelines under which CITES
operates to regulate trade in specimens or parts/ derivatives there from, and
defines the role of the Scientific and Management Authorities that all Parties
are required to have. In general terms, the Management Authority of each
respective party is responsible for issuing import and export permits for listed
species in each Party, and the Scientific Authority has the responsibility for
properly identifying specimens to assure compliance. In most Parties, the
Management Authority is the national- level wildlife agency and the Scientific
Authority may include government-funded research institutions such as a
national Natural History Museum. Articles 6 and 7 describe in more detail the
permit system, the role of both import and export permits, and exemptions
under CITES for, for example, specimens propagated in captivity.
Articles 8 through 10 obligate Parties to take enforcement measures,
including confiscation of and penalties for listed specimens illegally obtained,
and it elaborates on the legal roles of the Scientific and Management
Authorities. Article 10 seeks to ensure that trade with non-Parties to CITES
does not undermine its objectives by requiring “comparable documentation”
from non-parties in any transaction involving wildlife trade between Parties to
non-Parties.
The CITES Secretariat is obliged under Article 11 to convene a Conference
of Parties (COPs) at least biennially, and its role is further elaborated in
Article 12 to arrange conferences, undertake research, and publish periodic
editions of the Appendices. The Secretariat also performs the role of
preparing annual research reports and implementing recommendations
made at the COPs. The Secretariat is further responsible to inform Parties
Environmental Law | Summer 2017 100
when they are not in compliance with CITES and instruct Parties to respond
to such information. Inquiries are subject to review at the next COP and any
Party has the power to make recommendations regarding non-compliance of
any other Party. For example, the United States reprimanded Taiwan in
1994 regarding trade in tiger parts for traditional Chinese medicine, and
threatened trade sanctions. Taiwan responded with further enforcement. Any
Party is free to adopt domestic protective measures that are more strict that
those required by CITES under Article 14, and Articles 15 and 16 provide
procedures for amending the Appendices, while procedures for amending
the Convention itself are set forth in Article 17 and procedures for dispute
resolution are given in Article 18.
The remaining 7 articles of CITES deal with its administrative aspects.
These include signature of the agreement (which closed in December of
1974), ratification (Article 20), and accession to the Convention (Article 21).
COVERAGE
1. Basel Convention on Transboundary Movement of
Hazardous Wastes
2. Rotterdam Convention on prior informed consent
3. Procedure for certain hazardous chemicals and pesticides in
International trade
4. Stockholm Convention on Persistent Organic Chemicals
(POPs)
5. Minimata Convention on Mercury
6. UNEP Guidelines on Compliance with an Enforcement of
Multilateral Environmental Agreements (MEA’s) (2006)
7. Armed Conflict and the Environment
8. Armed Conflict and the Environment: “Legal Perspectives”
Philippine Law Journal
9. Proposed International Court for the Environment

Basel Convention

Overview: The Basel Convention on the Control of Transboundary

Movements of Hazardous Wastes and their Disposal was adopted on 22
March 1989 by the Conference of Plenipotentiaries in Basel, Switzerland, in
response to a public outcry following the discovery, in the 1980s, in Africa
and other parts of the developing world of deposits of toxic wastes imported
from abroad.
Awakening environmental awareness and corresponding tightening of
environmental regulations in the industrialized world in the 1970s and 1980s
had led to increasing public resistance to the disposal of hazardous wastes –
in accordance with what became known as the NIMBY (Not In My Back
Yard) syndrome – and to an escalation of disposal costs. This in turn led
some operators to seek cheap disposal options for hazardous wastes in
Eastern Europe and the developing world, where environmental awareness
was much less developed and regulations and enforcement mechanisms
were lacking. It was against this background that the Basel Convention was

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 101

negotiated in the late 1980s, and its thrust at the time of its adoption was to
combat the “toxic trade”, as it was termed. The Convention entered into force
in 1992.
Objective - The overarching objective of the Basel Convention is to protect
human health and the environment against the adverse effects of hazardous
wastes. Its scope of application covers a wide range of wastes defined as
“hazardous wastes” based on their origin and/or composition and their
characteristics, as well as two types of wastes defined as “other wastes” -
household waste and incinerator ash.
Aims and provisions: The provisions of the Convention center around the
following principal aims:
 the reduction of hazardous waste generation and the promotion of
environmentally sound management of hazardous wastes,
wherever the place of disposal;
 - the restriction of transboundary movements of hazardous wastes
except where it is perceived to be in accordance with the principles
of environmentally sound management;
 a regulatory system applying to cases where transboundary
movements are permissible.
The first aim is addressed through a number of general provisions requiring
States to observe the fundamental principles of environmentally sound
waste management (article 4). A number of prohibitions are designed to
attain the second aim: hazardous wastes may not be exported to Antarctica,
to a State not party to the Basel Convention, or to a party having banned the
import of hazardous wastes (article 4). Parties may, however, enter into
bilateral or multilateral agreements on hazardous waste management with
other parties or with non-parties, provided that such agreements are “no less
environmentally sound” than the Basel Convention (article 11). In all cases
where transboundary movement is not, in principle, prohibited, it may take
place only if it represents an environmentally sound solution, if the principles
of environmentally sound management and non-discrimination are observed
and if it is carried out in accordance with the Convention’s regulatory system.
The regulatory system is the cornerstone of the Basel Convention as
originally adopted. Based on the concept of prior informed consent, it
requires that, before an export may take place, the authorities of the State of
Arcilla | Mendoza - Updated Notes
export notify the authorities of the prospective States of import and transit,
providing them with detailed information on the intended movement. The
movement may only proceed if and when all States concerned have given
their written consent (articles 6 and 7). The Basel Convention also provides
for cooperation between parties, ranging from exchange of information on
issues relevant to the implementation of the Convention to technical
assistance, particularly to developing countries (articles 10 and 13). The
Secretariat is required to facilitate and support this cooperation, acting as a
clearing-house (article 16). In the event of a transboundary movement of
hazardous wastes having been carried out illegally, i.e. in contravention of
the provisions of articles 6 and 7, or cannot be completed as foreseen, the
Convention attributes responsibility to one or more of the States involved,
and imposes the duty to ensure safe disposal, either by re-import into the
State of generation or otherwise (articles 8 and 9).
The Convention also provides for the establishment of regional or sub-
regional centres for training and technology transfers regarding the
management of hazardous wastes and other wastes and the minimization of
their generation to cater to the specific needs of different regions and
subregions (article 14). Fourteen such centres have been established. They
carry out training and capacity building activities in the regions.
Rotterdam Convention
 adopted on 10 September 1998 by a Conference of
Plenipotentiaries in Rotterdam, the Netherlands. The Convention
entered into force on 24 February 2004.
 The objectives of the Convention are:
a. to promote shared responsibility and cooperative efforts among
Parties in the international trade of certain hazardous
chemicals in order to protect human health and the
environment from potential harm;
b. to contribute to the environmentally sound use of those
hazardous chemicals, by facilitating information exchange
about their characteristics, by providing for a national decision-
making process on their import and export and by
disseminating these decisions to Parties.
Environmental Law | Summer 2017 102
The Convention creates legally binding obligations for the implementation of
the Prior Informed Consent (PIC) procedure. It built on the voluntary PIC
procedure, initiated by UNEP and FAO in 1989 and ceased on 24 February
2006.
Major Provisions:
The Convention covers pesticides and industrial chemicals that have been
banned or severely restricted for health or environmental reasons by Parties
and which have been notified by Parties for inclusion in the PIC
procedure. One notification from each of two specified regions triggers
consideration of addition of a chemical to Annex III of the Convention.
Severely hazardous pesticide formulations that present a risk under
conditions of use in developing countries or countries with economies in
transition may also be proposed for inclusion in Annex III.
Once a chemical is included in Annex III, a "decision guidance document"
(DGD) containing information concerning the chemical and the regulatory
decisions to ban or severely restrict the chemical for health or environmental
reasons, is circulated to all Parties.
Parties have nine months to prepare a response concerning the future
import of the chemical. The response can consist of either a final decision (to
allow import of the chemical, not to allow import, or to allow import subject to
specified conditions) or an interim response. Decisions by an importing
country must be trade neutral (that is, decisions must apply equally to
domestic production for domestic use as well as to imports from any source).
The import decisions are circulated and exporting country Parties are
obligated under the Convention to take appropriate measure to ensure that
exporters within its jurisdiction comply with the decisions.
The Convention promotes the exchange of information on a very broad
range of chemicals. It does so through:
a. the requirement for a Party to inform other Parties of each national
ban or severe restriction of a chemical;
b. the possibility for Party which is a developing country or a country
in transition to inform other Parties that it is experiencing problems
Arcilla | Mendoza - Updated Notes
caused by a severely hazardous pesticide formulation under
conditions of use in its territory;
c. the requirement for a Party that plans to export a chemical that is
banned or severely restricted for use within its territory, to inform
the importing Party that such export will take place, before the first
shipment and annually thereafter;
d. the requirement for an exporting Party, when exporting chemicals
that are to be used for occupational purposes, to ensure that an up-
to-date safety data sheet is sent to the importer; and
e. labeling requirements for exports of chemicals included in the PIC
procedure, as well as for other chemicals that are banned or
severely restricted in the exporting country.
The Mechanisms
To achieve its objectives the Convention includes two key provisions, namely
the Prior Informed Consent (PIC) Procedure and Information Exchange.
The Prior Informed Consent (PIC) Procedure
The PIC procedure is a mechanism for formally obtaining and disseminating
the decisions of importing Parties as to whether they wish to receive future
shipments of those chemicals listed in Annex III of the Convention and for
ensuring compliance with these decisions by exporting Parties.
All Parties are required to take a decision as to whether or not they will allow
future import of each of the chemicals in Annex III of the Convention. These
decisions are known as import responses. A listing of the import responses
given for each chemical subject to the PIC procedure is circulated by the
Secretariat to all DNAs every six months via the PIC Circular and all import
responses are available on the Convention’s website.
All exporting Parties are required to ensure that exports of chemicals subject
to the PIC procedure do not occur contrary to the decision of each importing
Party. They should ensure that import responses published in the PIC
Circular are immediately communicated to their exporters, industry and any
other relevant authorities, such as the Department of Customs.
Environmental Law | Summer 2017 103
The Players
Parties and their Designated National Authorities (DNAs) – Parties are
countries or regional economic integration organizations that have ratified,
accepted, approved or acceded to the Convention. Each Party must
designate one or more national authorities, which are the primary contact
points for matters related to the operation of the Convention and are
authorized to perform the administrative functions required by the
Convention. DNAs are also the key contact point for matters related to the
Convention for other Parties and the Secretariat.
Conference of the Parties (COP) - The Conference of the Parties oversees
the operation of the Convention and makes decisions regarding
amendments to the Convention, including the addition of chemicals to Annex
III.
Chemical Review Committee (CRC) - The Chemical Review Committee is
a subsidiary body of the COP. Its members are government designated
experts in chemicals management. Its responsibilities include reviewing
notifications and proposals from Parties, and making recommendations to
the COP on the addition of chemicals to Annex III.
Secretariat - The functions of the Secretariat include making administrative
arrangements for meetings of the COP and its subsidiary bodies, verifying
information accompanying notifications and proposals, disseminating import
responses provided by the Parties, facilitating assistance to developing
country Parties, facilitating information exchange between Parties and
fostering collaboration and cooperation with other international
organizations.
Stockholm Convention on Persistent Organic Pollutants
The Stockholm Convention on Persistent Organic Pollutants is a global
treaty to protect human health and the environment from chemicals that
remain intact in the environment for long periods, become widely distributed
geographically, accumulate in the fatty tissue of humans and wildlife, and
have harmful impacts on human health or on the environment.
Exposure to Persistent Organic Pollutants (POPs) can lead to serious health
effects including certain cancers, birth defects, dysfunctional immune and
Arcilla | Mendoza - Updated Notes
reproductive systems, greater susceptibility to disease and damages to the
central and peripheral nervous systems.
What are POPs?
Persistent Organic Pollutants (POPs) are organic chemical substances, that
is, they are carbon-based. They possess a particular combination of physical
and chemical properties such that, once released into the environment, they:
 remain intact for exceptionally long periods of time (many years);
 become widely distributed throughout the environment as a result
of natural processes involving soil, water and, most notably, air;
 accumulate in the fatty tissue of living organisms including humans,
and are found at higher concentrations at higher levels in the food
chain; and
 are toxic to both humans and wildlife.
As a result of releases to the environment over the past several decades
due especially to human activities, POPs are now widely distributed over
large regions (including those where POPs have never been used) and, in
some cases, they are found around the globe. This extensive contamination
of environmental media and living organisms includes many foodstuffs and
has resulted in the sustained exposure of many species, including humans,
for periods of time that span generations, resulting in both acute and chronic
toxic effects.
In addition, POPs concentrate in living organisms through another process
called bioaccumulation. Though not soluble in water, POPs are readily
absorbed in fatty tissue, where concentrations can become magnified by up
to 70,000 times the background levels. Fish, predatory birds, mammals, and
humans are high up the food chain and so absorb the greatest
concentrations. When they travel, the POPs travel with them. As a result of
these two processes, POPs can be found in people and animals living in
regions such as the Arctic, thousands of kilometers from any major POPs
source.
Specific effects of POPs can include cancer, allergies and hypersensitivity,
damage to the central and peripheral nervous systems, reproductive
disorders, and disruption of the immune system. Some POPs are also
considered to be endocrine disrupters, which, by altering the hormonal
system, can damage the reproductive and immune systems of exposed
Environmental Law | Summer 2017 104
individuals as well as their offspring; they can also have developmental and
carcinogenic effects.
Objective
As set out in Article 1, the objective of the Stockholm Convention is to
protect human health and the environment from persistent organic
pollutants.
Main provisions
Among others, the provisions of the Convention require each party to:
 Prohibit and/or eliminate the production and use, as well as the
import and export, of the intentionally produced POPs that are
listed in Annex A to the Convention (Article 3)
 Reduce or eliminate releases from unintentionally produced POPs
that are listed in Annex C to the Convention (Article 5)
The Convention promotes the use of best available techniques and
best environmental practices for preventing releases of POPs into the
environment.
 Ensure that stockpiles and wastes consisting of, containing or
contaminated with POPs are managed safely and in an
environmentally sound manner (Article 6)
The Convention requires that such stockpiles and wastes be identified and
managed to reduce or eliminate POPs releases from these sources. The
Convention also requires that wastes containing POPs are transported
across international boundaries taking into account relevant international
rules, standards and guidelines.
 To target additional POPs (Article 8)
The Convention provides for detailed procedures for the listing of new POPs
in Annexes A, B and/or C. A Committee composed of experts in chemical
assessment or management - the Persistent Organic Pollutants review
Committee, is established to examine proposals for the listing of chemicals,
in accordance with the process set out in Article 8 and the information
requirements specified in Annexes D, E and F of the Convention.
Arcilla | Mendoza - Updated Notes
 Other provisions of the Convention relate to the development of
implementation plans (Article 7), information exchange (Article 9),
public information, awareness and education (Article 10), research,
development and monitoring (Article 11), technical assistance
(Article 12), financial resources and mechanisms (Article 13),
reporting (Article 15), effectiveness evaluation (Article 16) and non-
compliance (Article 17).
The Minamata Convention on Mercury – A response to
Global Concern
The Minimata Convention on Mercury is a multilateral environmental
agreement that addresses the adverse effects of mercury through practical
actions to protect human health and the environment from anthropogenic
emissions and releases of mercury and mercury compounds. It requires
Parties to address mercury throughout its lifecycle, including its production,
its intentional use in products and processes, its unintentional release from
industrial activity, though to end-of-life aspects including waste,
contaminated sites, and long-term storage.
Australia signed the Minamata Convention on 10 October 2013 and is now
considering ratifying the Convention to become a full Party to it. This will
allow Australia to participate and influence decisions on issues addressed
under the Convention. The treaty will enter into force 90 days after 50
countries have ratified, with the first conference of the Parties to be held
within 12 months of the treaty coming into force.
As ratification of the Convention would legally bind Australia to
the conventions obligatuions , a detailed assessment process will be
conducted, with the preparation of a National Interest Analysis and a
Regulatory Impact Statement. Ratification will then be considered by the
Joint Standing Committee on Treaties before a final decision as to whether
Australia will ratify the Convention is made by the Australian Government.
Background
Mercury is a heavy metal that is widespread and persistent in the
environment. It is a naturally occurring element and can be released into the
Environmental Law | Summer 2017 105
air and water. Exposure to Mercury can affect foetal neurological
development, and high levels of mercury in blood have been linked to
lowered fertility, brain and nerve damage, and heart disease in adults. In
liquid form, mercury readily vaporises and is released into the air, where it is
transported and deposited globally. It can bioaccumulate in, and biomagnify
up the food chain, especially in the aquatic food chain where it constitutes a
major threat to global food security. Even at low concentrations, mercury
poses a risk of causing adverse effects to human health and the
environment.
In 2001, the United Nations Environment Programme (UNEP) undertook a
global assessment of mercury and its compounds. This included the
gathering of information on the chemistry and health effects, sources, long-
range transport and prevention and control technologies relating to mercury.
Through this assessment it was determined that there was sufficient
evidence of significant adverse global environmental impacts from mercury
and its compounds to warrant further action.
In 2009, the UNEP Governing Council agreed that a global treaty that
addressed mercury impacts would be a necessary step to reduce the
amount of harmful mercury in the environment. International negotiations
commenced in 2010 and Australia was actively engaged in the process until
the negotiations were finalised in January 2013. The treaty was adopted and
opened for countries to become signatories in October 2013. The treaty was
named the Minamata Convention on Mercury after the town of Minamata,
Japan, famous for the widespread poisoning of thousands of people by
mercury in the mid-20th century.
Multilateral Environmental Agreements [MEAs]:
Convention on the Conservation of Migratory Species of Wild Animals
(also known as CMS or the Bonn Convention)
The purpose of the Bonn Convention is to develop international cooperation
with a view to the conservation of migratory species of wild animals.
ACT- Council Decision 82/461/EEC of 24 June 1982 on the conclusion of
the Convention on the conservation of migratory species of wild animals
(Bonn Convention).
Arcilla | Mendoza - Updated Notes
SUMMARY - The objective of the Bonn Convention is the conservation of
migratory species worldwide. Wild animals require special attention because
of their importance from the environmental, ecological, genetic, scientific,
recreational, cultural, educational, social and economic points of view.
The Convention defines the following terms:
• "migratory species" means the entire population or any
geographically separate part of the population of any species or
lower taxon of wild animals a significant proportion of whose
members cyclically and predictably cross one or more national
jurisdictional boundaries;
• "conservation status of a migratory species" means the sum of the
influences acting on the migratory species that may affect its long-
term distribution and abundance;
• "endangered" means that the migratory species is in danger of
extinction throughout all or part of the territory of a State.
The parties to the Convention acknowledge the importance of conserving
migratory species, and the need to pay special attention to species the
conservation status of which is unfavorable.
To avoid any migratory species becoming endangered, the parties must
endeavour:
 to promote, cooperate in or support research relating to migratory
species;
 to provide immediate protection for migratory species included in
Appendix I; and
 to conclude Agreements covering the conservation and
management of migratory species listed in Appendix II.
 To protect endangered migratory species, the parties to the
Convention will endeavor:
 to conserve or restore the habitats of endangered species;
 to prevent, remove, compensate for or minimise the adverse effects
of activities or obstacles that impede the migration of the species;
and 

 to the extent feasible and appropriate, to prevent, reduce or control
factors that are endangering or are likely to further endanger the
species.
Environmental Law | Summer 2017 106
Range States of migratory species ("range" means areas of land or water
that a migratory species inhabits, crosses or overflies on its migration route)
must prohibit the taking of animals belonging to species listed in Appendix I,
subject to certain exceptions (taking for scientific purposes, or to enhance
the propagation or survival of the species). Such exceptions must be precise
as to content and limited in space and time, and should not operate to the
disadvantage of the species.
Any dispute between parties to the Convention must be settled by
negotiation between the parties involved. If the dispute cannot be resolved
by negotiation, it may be submitted to arbitration, in particular that of the
Permanent Court of Arbitration at The Hague, whose decision will be binding
on the parties.
The Bonn Convention was signed in 1979 and entered into force on 1
November 1983.

The conservation and management of the species listed in Appendix II may NOTES
require international agreements.
MEA Negotiation ( Amb. Tolentino)
Guidelines for agreements: a. Bilateral treaties are negotiated at ministerial or government-to-
1. restore or maintain the migratory species concerned; government level
2. cover the whole of the range of the migratory species concerned; b. Multilateral Treaties are often negotiated at diplomatic conferences
3. be open to accession by all Range States, whether or not they are convened by:
parties to the Convention; 1. an international organization (UN) or one of its agencies
4. where feasible, concern several species. Each agreement must (UNEP)
contain the following information: 2. at invitation by a state
5. the name of the migratory species concerned;
6. its range and migration route; Depositary Secretariat
7. measures for implementing the agreement;
8. procedures for the settlement of disputes;  notes signatures  day-to-day administration
9. designation of the authority concerned with the implementation of  receives instruments of of the treaty regime
the Agreement. ratification, acceptance or  receive reports from CP
accession on implementation and
Agreements may also provide for:  maintains list of all the status infringement
 research into the species; of CP and signatories  convening annual
 the exchange of information on the migratory species;  amendments made to the meetings or special
 the restoration or maintenance of a network of suitable habitats for treaty meetings on specific
the conservation of the species; issues or review meetings
 periodic review of the conservation status of the species;
 emergency procedures whereby conservation action would be
rapidly strengthened.

The Conference of the Parties is the decision-making organ of the

Convention. It reviews the implementation of the Convention and can adopt
recommendations. The Convention, and Appendices I and II thereto, can be
amended.

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 107

Armed Conflict and the Environment: Legal Perspective ENVIRONMENTAL PRINCIPLES
[PLJ Vol. 81 Feb 2007, p. 377-389] by Amado S. Tolentino Jr.
1. DUE DILIGENCE: “Good
Armed conflict or wars endanger or damage the environment in ways or Neighborliness”-
forms such as the long-lasting chemical pollution on land, maritime, and
atmospheric pollution, despoliation of land by mines and other dangerous  where the sovereign right to
objects, and threats to water supplies and other necessities of life. exploit own resources entails
responsibility to ensure that the
Scorched earth policy – a method used in war where fields are burned and activities do not cause damage to
wells are poisoned other states or areas beyond
jurisdiction.
Since the inception of modern warfare, multilateral treaties and international
organizations have attempted to create and implement legal provisions 2. PRECAUTIONARY
addressing the growing problem of environmental damage resulting from PRINCIPLE
armed conflict. Unfortunately, international acceptance and enforcement of
such provisions has arrived only in incremental responses to the horrors of  that in order to protect the
previous wars. environment, the precautionary
approach shall be applied: where
This is an attempt at summarizing the international law of war vis-à-vis the there are threats of serious or
environment, at the same time exposing the many deficiencies of the legal irreversible damage, the lack of full
framework addressing the environmental consequences of war. Emerging scientific certainty shall not be
approaches culled from international consultations are likewise covered to used as a reason of postponing
invite attention to possibilities at preventing or minimizing damage to the cost-effective measures to prevent
environment in times of armed conflict. environmental degradation
PRINCIPLES OF WAR
1. NECESSITY
 w/n the act of war to be done is
necessary in order to achieve a
legitimate military advantage
2. PROPORTIONALITY
 w/n the advantage sought by
the necessary action outweighs
the anticipated collateral damage
3. DISCRIMINATION
 w/n the chosen weapon or
tactic sufficiently discriminates
between military and civilian
objects; or between combatants
and non combatants
4. HUMANITY
 w/n the act causes
unnecessary suffering to the victim
 w/n minimal force is used to
achieve enemy submission

THE EXISTING LAW

From the standpoint of customary law:
 environmental protection during wartime may be inferred from the
general protection of the civilian population and property based on the
fundamental rule expressed in the 1868 Declaration of St. Petersburg
that military actions by states should be limited to the objective of
weakening military force of the enemy.
In theory:
 general principles of due diligence and the precautionary principle in
field of environmental protection are tempered with principles applied in
the law of war [principles of necessity, proportionality, discrimination,
and humanity
Objective of ENVIRONMENTAL PRINCIPLES: to prevent invention of new
and more destructive weapons of war thereby anticipating and preventing
damage to the environment.
Principle 24 of the UN Declaration on Environment and Development
states: Warfare is inherently destructive of sustainable development. States
shall therefore respect international law providing protection for the
environment in times of armed conflict and cooperate in its further
development as necessary.
Martens Clause – in cases not covered by specific provisions, civilians and
combatants remain under the protection and authority of:

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 108

 • principles of war [necessity/proportionality /discrimination/humanity]
• principles of international law derived from established customs 
 Stockpiling of bacteriological (Biological) and Toxin Weapons
• principles of humanity 
 and their Destruction [1972]
• dictates of public conscience 
 4
2 Major international Conventions which protect the Environment during
Wartime:
a. Geneva Conventions [Switzerland] – a body of treaties governing
the behavior of belligerents and provides varying degrees of
protection of combatants, prisoners of war, civilians and their
property, and cultural property
Composed of:
1 1976 Convention on the Prohibition of 
Military and Any other
Hostile Use of Environmental Modification Techniques
[ENMOD] – where the natural environment is deliberately
manipulated to cause destruction - example: altering weather
patterns, earthquake modification, ocean current modification
to create tidal waves, river diversion, destruction of a dam
2 1977 Additional Protocol [Protocol I] – with ENMOD, applies to
international wars- placed great emphasis on objects
necessary to the survival of civilian population including civilian
infrastructures such as power plants and water treatment
facilities
3 1977 Additional Protocol to the Protection of Victims in Non
International Armed Conflicts – applied to internal conflicts
b. Hague Convention [Netherlands] – governed weapons which
sought to ban weapons that cause unnecessary suffering pursuant
to the right of Parties in armed conflict to choose methods or means
of warfare is NOT unlimited.
Conventions:
1 Convention IV Respectng the Laws and Customs of War on
Land with Annex of Regulations [1907]
2 Protocol for the Prohibition of the Use in War of Asphyxiating,
Poisonous, or other Gases, and Bacteriological Methods of
Warfare [1925]
Arcilla | Mendoza - Updated Notes
3 Convention on the Prohibition on the Development, Production,
Convention on the Prohibitions and Restrictions on the Use of
Certain Conventional Weapons which may be Deemed to be
Excessively Injurious or to have Indiscriminate Effects (1980) 

5 Convention on the Prohibition on the Development, Production,
Stockpiling, and Use of Chemical Weapons and on their
Destruction [1993]
• restricted weapons included: o exploding munitions
o poisonous gas
o chemical and biological weapons
o blinding lasers
o land mines
• while most are designed to target humans, many bring
about environmental consequences [i.e. chemical contents
can persist in the ecosystem and disrupt the food chain.]
1954 Hague Convention on the Protection of Cultural Property in the Event
of Armed Conflict – sets up a comprehensive regime including the triple use
of the distinctive blue and white emblem for marking cultural property under
special protection [not been fully utilized in contrast with Red cross marking
which affords protection to areas marked as such]
1972 Convention for the Protection of the World’s Cultural and Natural
Heritage – imposes a duty to refrain from deliberate activities harming
designated sites but does not create a regime to protect sites of biological
diversity import during armed conflict.
DEFICIENCIES AND CURRENT CHALLENGES
Like the rest of international law, international humanitarian law has been
slow in providing the environment with a set of rules of law specific to it.
Thus, the word ‘environment’ does not even appear in the Geneva
Conventions [1949] and Hague Conventions [1907]
To be able to comply, it is necessary to clarify and interpret the scope and
context of some of those rules:
• what constitutes “widespread, longterm, and severe damage” to the
environment?
Environmental Law | Summer 2017 109
 • Defining with certainty the threshold of application of the rules, the
need for a clear decision regarding the applicability in wartime of
provisions of international environmental law, and the advisability of
setting up a mechanism to sanction breaches thereof.
Cases in point:
1. Kosovo conflict – a fertilizer, oil refinery and petrochemical complex
in Pancevo was deliberately and repeatedly bombed since NATO
claimed that in addition to making products for purely civilian
consumption, the complex supplied gasoline and other essential
materials to the Serb army and was therefore a legitimate military
target - the Danube River was also poisoned as a result of the
bombing of such industrial facilities
2. Yugoslavia filed a case before the ICJ against NATO alleging
breaches of:
a. obligation NOT to cause considerable environmental
damage
b. obligation NOT to cause far-reaching health and
environmental damage
c. obligation NOT to use prohibited weapons
 however, upon objection of US and Spain, ICJ did not acquire
jurisdiction over the case.
 NATO asserted that military advantage outweighed the
incidental human and environmental loss
 ICJ opined [despite dismissing the case] – the court is
profoundly concerned with the use of force in
 Yugoslavia... under the present circumstances such use raises
very serious issues in international law.
3. Gulf Wars – US and coalition forces devastated Iraqi factories and
refineries, employing the same necessity and justification, dropped
millions of cluster bombs.
4. Vietnam War – show what could happen when defoliation was not
implemented to destroy forests per se but was a strategy used to
eliminate cover for enemy fighters in jungle areas [As per Amb. Tol:
enemy used harmful gas to lure Vietnamese out of the jungles, only
to fail because of the elaborate tunnels used since the Vietnamese
were hiding underground]
Arcilla | Mendoza - Updated Notes
The experience in many armed conflicts demonstrate the NEED FOR
SPECIAL PROTECTION OF THE CULTURAL ENVIRONMENT, such as
monuments and other immovable cultural property during hostilities. For this
reason, there is a provision in the 1954 Convention for the Protection of
Cultural Property in the Event of Armed Conflict for the marking of cultural
property with a special emblem – best example: VATICAN CITY – which
allows the military to take all necessary measures in times of peace or
during conflict to protect it.
Current deficiency – with regard to the prohibition of hostile military activities
in natural sites or protected areas referring to “natural or cultural areas of
outstanding international significance from the point of view of ecology,
history, art, science, ethnology, anthropology, or natural beauty” which
include areas designated under international agreement or inter-
governmental programme which meets the criteria.
Listings of natural and cultural areas “of outstanding international
significance” exists under
1. 1971 Ramsar Convention on Wetlands of International Significance
[Ramsar List]
2. 1972 Convention on the Protection of World Cultural and Natural
Heritage [World Heritage Sites]
Their protection in times of armed conflict entails :
a. the preparation of detailed maps
b. elaboration of materials on international heritage
protection during armed conflict for dissemination
c. formulation of guidelines for military manuals to make
protected areas free of weapons
*** In order to afford the protection, the state involved in the exercise of
territorial sovereignty SHOULD NOT maintain military installations or military
activities in the protected areas.
Environmental Law | Summer 2017 110
A WORLD TRIBUNAL TO PROTECT THE ENVIRONMENT?
PREMISES, OPPORTUNITIES, OBSTACLES
(Amado S. Tolentino, Jr.)
The development of international environmental law has been accelerated
by the emergence of disputes due to numerous physical, economic, social
and political factors. These are:
Danger of climate change, ozone layer reduction, trans- border air pollution,
waste disposal in bodies of water and on land, transport of hazardous waste,
location of dangerous industries (esp. in undeveloped countries),
desertification, deforestation, drought, destruction of plant and animal
genetic resources, genetically modified organisms, nuclear accidents,
accidents at sea, and the exploitation of the seabed and the Antarctic.
The international community was appalled by a series of environmental
disasters. Some of the notable ones are:
a. 1967 Torrey Canyon oil spill off Cornwall;
b. 1976 Seveso chemical plant accident in Italy;
c. 1984 Bhopal chemical plant accident in India;
d. 1988 Sandoz chemical plant accident in Switzerland;
e. 1978 Amoco Cadiz oil spill off Brest;
f. 1986 Chernobyl nuclear plant accident in Russia;
g. 1989 Bahia Paraiso oil spill in the Antarctic;
h. 1989 Exxon Valdez oil spill off Alaska; and
i. 1991 and 2004 burning of oil wells in the Gulf Area, among others.
Common characteristics of these environmental risks are
1 globality,
2 interdependence,
3 indivisibility,
4 the lack of transparency
5 access to information, dearth of participation
6 access to justice.
As early as 1988, a committee was formed in Rome, now known as the
international Court of the Environment Foundation (ICEF), as a private
initiative to examine the subject. The committee came out with a proposal on
the creation of an International Court of Environment (ICE) -- endowed with
an exclusive, specialized and international competence in the field of
Arcilla | Mendoza - Updated Notes
environment and empowered to implement international law to guarantee a
right of access to individuals to protect their human right to the environment -
- as a new and permanent body separate from the International Court of
Justice in Hague. The ICE could undertake advisory, investigative and
conciliatory functions.
PRINCIPLE OF UNIVERSALITY VIS-À-VIS TERRITORIAL SOVEREIGNTY
The enforcement of environmental regulations depends on the sovereignty
of States and different national regulations, and these are not subject to a
compulsory higher authority.
The current structure of international law is characterized by the principle
that States do not recognize authorities as higher than their own. The
principle does not seem to be ideally positioned to guarantee balanced
management of the environmental problems in the context of international
law. These problems are objectively international, and, in some cases, are
even outside the control of States.
IN FACT, even States themselves cannot control manmade environmental
phenomena such as greenhouse effect, the ozone hole, and transborder
pollution. These phenomena require international cooperation, common
decisions, and new rules and procedures for the application of real
sanctions. Only new organizations can confront the environment at the
global level, providing new approaches to control phenomena, to prevent
new sources of pollution, to equitably manage common resources, and to
apply sanctions, where necessary. The principle of universality should apply
since problems of a universal nature should be addressed at the same level.
Some argue that an international tribunal dealing with environmental issues
would create a threat to state sovereignty. While it is true that states are
unwilling to discuss the principle of territorial sovereignty, it is also true that
the environment is an issue that cannot be solved within the well-defined
space of an individual State’s sovereignty. In fact, in a very broad sense, a
State’s territory is the issue as the quality of its natural and human resources
are concerned. Therefore, the principle of territorial sovereignty us not
refuted, but must adapt to new demands. Otherwise, territorial sovereignty
will be left without any true meaning as environmental threats respect no
State’s borders. States would have already lost their sovereignty, as a single
State is unable to defend its ecology on its own.
Environmental Law | Summer 2017 111
Thus, we should strive towards new concept of national sovereignty, which
stresses both a State’s Constitutional independence and mutual restrictions
on political independence made necessary by the international community’s
requirements. The 1972 Stockholm Declaration on the Environment and the
1982 World Charter for Nature provide examples of recognition of an
obligation of a sovereign state towards its own people in relation to
permanent sovereignty over natural resources.
PRIORITY ISSUES
Two points vital to the creation of an International Court of the environment:
1. the individual as subject of international law;
2. the place of the human right to the environment in international law.
Currently the question of whether an individual can be a subject of
international law has been met with negative response, but its clear that this
position will change under the influence of numerous, interdependent
factors. An example of these factors is the enormous increase in world
population, which is already not manageable in the current state. Other
possible factors include the bureaucratic structure of international society
because migratory movements are explosive and spontaneous, the limited
resources available in terms of energy, and the phenomenon of planetary
pollution. Bearing these and other factors in mind, how can international law
remain oblivious to the individual this 21st century?
Society as a whole will have to strike new balances and find common basis
for the respect of human right, including the right to the environment that
would place the individual rather than States at the forefront. Right now,
supranational tribunals like the European Court of Human Rights (ECHR) is
Strasbourg provide judicial redress to individuals. Through its 1994 landmark
decision in the Lopez-Ostra case, this Court opened the door for the
protection of human rights against nearly all sources of environmental
pollution. Briefly, some members of the Gregoria Lopez- Ostra family
suffered from nausea, vomiting, allergic reactions, bronchitis and anorexia
due to emissions from a waste treatment plant built by the government in
Lorea, in Murcia, Spain, just twelve meters from the Lopez-Ostra house. She
filed with the Administrative Division of the Murcia Audencia Territorial, the
Supreme Court and the Constitutional Court, to no avail.
Arcilla | Mendoza - Updated Notes
Afterwards, she submitted a complaint to ECHR, alleging inaction by the
local authorities violated her rights under the European Convention by the
Local authorities violated her rights under the European Convention on
Human Rights, namely protection of private life and family life and claimed
compensation. The court unanimously held that the pollution from the plant
and Spain’s inaction violated the Convention’s article 8. It explained that
States have the positive duty to secure rights under this article and a
negative duty to stop official interference. The progressive decision provides
a most comprehensive individual right to environmental protection and
stimulates the discussion on the existence of a human right to a decent
environment.
Structurally, international law will recognize a more articulate group of legal
subjects: individuals, state communities, regional communities such as
European Union, and new international organizations. From the point of view
of norms, it can readily be anticipated that the number of international
conventions will grow to meet new problems such as those posed by the
environment. Above all, the contents of these conventions will impose on
states an increasing duty of service towards the international community and
will allow States less recourse to claims of sovereignty.
The questions asked is whether international law recognizes the right to the
environmental as a fundamental right of every person. To answer this
question, a careful examination is required of customary law, treaty norms
and constitutional norms. The constitutional norms in many states already
recognize the individual’s right to the environment, and provide indirect
evidence of communis opinio. What is even more significant is that in these
States, it captured attention at the grassroots level of even the smallest
communities.
The first identification of the human right to a healthy environment appeared
in the United Nations Declaration on the Human Environment, or the
Stockholm Declaration. Its Principle 1 states:
Man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits a life of
dignity and well-being, and he bears a solemn responsibility to
Environmental Law | Summer 2017 112
 protect and improve the environment of present and future
generations.
Some legal experts are in quandary regarding the content, effect and
enforcement of such a human right. There are those who regard the right to
a healthy environment as an independent right, which imposes obligations
upon individual states and the world at large. Others view the same part of
universally recognized rules which dictate that States are not allowed to
contract out of, or jus cogens norms, per the Vienna Convention on the Law
of Treaties and international customary law on the assumption that the right
has been accepted by the World community. Still others regard
environmental rights as belonging to the grey area between a political
guideline and a rule of law, simply stated: a law in the making.
From the human perspective, the human right to a healthy environment
could be viewed as a portion of the rights to life and to dignity. For
indigenous people, it means the right to a living. It could also be regarded as
the means to combat environmental deterioration as far as it threatens
human life.
Noticeably, the right to a healthy environment is not mentioned in the
Universal Declaration on Human Rights. However, it should be borne in mind
that the Stockholm Declaration is considered an authentic interpretation of
the notion of human rights embodied in the UN Charter. Thus, it provides the
minimum standard for the moral duty of States. Furthermore, the UN
Commission on Human Rights has put it on record that:
State parties to the International Covenant on Economic, Social
and Cultural Rights, reorganized the right of everyone to the
enjoyment of the highest attainable standard of physical and metal
health and agreed, for the purpose, to take steps necessary for the
improvement of all aspects of environmental and industrial health.
A very interesting interpretation is the one drawn from the preamble of the
1982 World Charter for Nature:
“Every form of life is unique, warranting respect regardless of its
worth to man...”
This statement has led to the issue of awarding
rights to subjects other than man, and has granted legal standing to
natural entities such as rivers and mountains, and the right of
species to survive.
Arcilla | Mendoza - Updated Notes
Nevertheless, the best interpretation is the one which regards the
environmental right as a traditional human right to be guaranteed by the
State. This is the interpretation used by the Philippine Supreme Court in
Oposa v Factoran where due recognition was given to the standing of minor
citizens for the environmental right as an inter-generational right. The
Supreme Court said that while right to a balanced and healthful ecology is
guaranteed by the Philippine Constitution, it need not be actually written in
the fundamental law of the land as it is assumed from the inception of
humankind. If it is so written, it is because of the:
well founded fear of the framers that unless the right to a balanced and
healthful ecology and to health are mandated as state policies by the
Constitution itself ... the day would not be too far when all else would be lost
not only for the present generation but also for those to come – generations
which stand to inherit nothing but parched earth incapable of sustaining life.
It must further be recognized that the environment now receives a complex
legal treatment throughout the world at various levels. Environmental law
attracts great attention because it can be found in all organs that have the
responsibility for the environmental protection, as can be shown by one
established fact: the rights-duties of environmental protection are exercised
by existing institutions, in particular, by lawmaking bodies, executives and
the judiciary in individual states, although with varying zeal and
effectiveness.
Individuals are not considered the mere beneficiaries but rather active
proponents of environmental protection. This explains the existence of
procedural rules which confer upon individuals the right-duty to information,
participation and standing in legal proceedings. Environmental law and the
right to the environment are intimately connected because, as world-
renowned French environmental law Professor Alexander Kiss observed,
“The first is the guarantee for the exercise of the latter.”
The environment as a human right also finds an indirect legal basis in
conventions, instruments, written accords, and in the written record of
meetings on the environment between states and other international
subjects. This written normative framework embraces well over 199
international instruments on the environment.
Environmental Law | Summer 2017 113
Lastly, the classic customary rule announced in the Trail Smelter case and
Corfu Channel found its place in international law at the 1972 UN Stockholm
Conference on the Environment. In particular 21 says:
States have... the sovereign right to exploit their own resources pursuant to
their own environmental policies, and the responsibility to ensure that
activities within their jurisdiction and control do not cause damage to the
environment of other States or of areas beyond their national jurisdiction.
II. ACCESS TO ENVIRONMENTAL JUSTICE
As proposed, the following parties may appear before the International Court
of the environment:
a. Individuals
b. Non-governmental organizations and environmental associations;
c. States;
d. Supranational organizations such as the European Union; and
e. International organizations under the UN and the individual organs
of the UN.
Of relevance is the fact that, to date, the International Court of Justice has
declined to submit decisions by UN organs to judicial review. International
organizations are not accountable in law and do not exercise powered
independently of their member states. How can the World Bank, for
example, be held legally accountable for it participation in an oil and pipeline
project were to result in environmental harm? In connection, take note than
in recent times, international financing institutions such as the International
Monetary Fund and regional development banks have become the object of
ire of nongovernmental organizations (NGOs), and even some government
arms, due to development projects perceived as destructive of the
environment.
At present, international organizations, environmental associations, NGOs
and potentially affected individuals are not granted direct access to the ICJ.
Only States have direct access and not the individuals who are the direct
victims of environmental destruction. While it is commonly known that States
themselves may commit or tolerate environmental crimes, it is advisable and
realistic to work towards strengthening international judicial guarantees for
effectively protecting the rights of the individual to a healthy and undisturbed
environment.
Arcilla | Mendoza - Updated Notes
The international community must be aware that a proper international court
exists where they can make their claims apart from a higher authority
responsible for its management, supervision and control. That proposed
higher authority can exist in the form of the proposed International
Environment Agency. Further, the evolution of the concept of environmental
crime, the widening of liability law for environmental damages, and the
application of the Polluter Pays Principle could make a new court necessary.
Supplementary arguments are the jurisdictional deficiencies in different state
systems, the social and ethical need for environmental justice and the
educational role of such an institution. Last but not the least, an international
court for the environment ould be able to focus special attention on areas
outside the jurisdiction of individual states. For example, such a body could
concentrate on the urgent problems of protecting the global commons.
Critics may point out that the ICJ established a Chamber for environmental
matters in 1993. Nevertheless, it is unrealistic to expect that tribunal to
extend legal access to private parties or political action groups because “
States are inherently reluctant to relinquish sovereignty and expose
themselves to legal proceeding.”
Another institution, the Permanent Court of Arbitration (PCA), is also
mentioned as a possibility in resolving environmental disputes. But as the
jurisdiction of the PCA is not compulsory, its competence can be derived only
from an agreement to arbitrate, or an agreement submitting an existing
dispute to arbitration.
III. ARGUMENTS AGAINST THE CREATION OF AN INTERNATIONAL
COURT OF THE ENVIRONMENT
The proliferation of international adjudicatory bodies leads to the
enumeration of arguments against the creation of a world court on the
environment. At the global level, the ICJ, the Appellate Body of the World
Trade Organization, and the Tribunal of the Law of the Sea have handed
down decisions in disputes related to protection of the environment. Other
forums include the ICJ Environment Chamber and the Permanent Court of
Arbitration’s Environment Facility. Arbitral procedures are also available to
settle disputes like the arbitral tribunal which may be set up under article
27(3)(a) of the Conventions on Biological Diversity and special bodies such
as the United Nations Compensation Commission which may rule on cases
Environmental Law | Summer 2017 114
involving international environmental law. Likewise, regional forums such as
RCHR, the Inter-American Court of Human Rights, and the Court of Justice
of the European Community have decided on cases relating to international
environmental law.
It can thus be said that existing courts and tribunals are, or may be made
well-equipped, to consider cases on environmental issues. Moreover,
disputes concerning international environmental law also involve other
aspects of international law. For instance, multilateral environmental
agreements often provide for trade-related instruments to be implemented
with special consideration for the interests or rights of particular groups such
as indigenous people. A dispute that may arise under an environmental
treaty may also be defined in terms of a dispute under other treaties, such as
the UN Convention on the Law of the Sea. So what kind of international
environmental dispute would be handled by an international court for the
environment when several other areas of international law such as
international water law, human rights law, fisheries law, trade law, and
international law related to the use of force are involved?
Such a situation is illustrated by the Fisheries Jurisdiction case (Spain v.
Canada), a suit brought by Spain against Canada before the ICJ. Canada
arrested a Spanish fishing vessel on the high seas based on the argument
that the vessel was illegally fishing in that area contrary to Canadian law and
international fisheries conservation obligations applicable to the European
Community. Canada further alleged that marine biological diversity was
being threatened by Spain’s fishing activities. The European Community and
Spain, on the other hand, argued that the international conservation
obligations did not apply to the fishing activities complained of and that
Canada had acted illegally in arresting the vessel.
The question here is whether the dispute involves international resources
law, international fisheries law, international environmental law, or
international law related to the conservation of biological diversity. Spain
presented the case to ICJ for infringement of its rights as a flag state, an
aspect that was also part of the overall dispute. ICJ ruled it had no
jurisdiction to consider the merits of the case. Nevertheless, it cannot be
denied that the above areas of law would have influenced a decision had the
ICJ assumed jurisdiction. Assuming that such a case is submitted before an
international environmental court, what is the assurance that is has sufficient
Arcilla | Mendoza - Updated Notes
expertise to cover all these other aspects of international law? Would it thus
not be better if existing tribunals instead be provided with sufficient expertise
in international environmental law?
There is the argument that the proliferation of international courts and
tribunals risks fragmentation in the international legal system. For instance,
the ICJ, tin Reservations to the Convention on Genocide, held that a State
that makes a declaration containing a reservation to which another State
party to the Genocide Convention objects can be considered a non party to
that Convention vis-à-vis the objecting state, thereby preventing the
declaration from having a legal effect. The ECHR, however, ruled in the
celebrated case of Loizidou v. Turkey that the declaration by Turkey on the
Court’s jurisdiction, which contained a reservation regarding the non-
application of the Convention to the northern part of Cyprus, was valid with
respect to the jurisdiction of the court but void with regard to the reservation.
The ECHR awarded Greek-Cypriot refugee Titana Loizidou USD 1.3M,
which the Turks agreed to pay, for obstructing Loizidou’s access to her home
by its occupation in the north. Turkey may have to pay millions more in
similar cases.
Some practitioners and academicians propose frequent consultations among
the members of the different tribunals to allay fears about fragmentation of
international law. The ICJ should likewise develop an active judicial body not
only of the UN, but of the entire international legal system as well. Moreover,
multiplicity of international forums permits a degree of experimentation and
exploration which can lead to improvements through integration of positive
resuls in the body of international law.
Examples of experimentation and exploration that could introduce changes
in the international legal system include, first, the non-compliance or
compliance procedure established or in the process of being established
within multilateral environmental agreements. The Kyoto Protocol on Climate
Change goes a step further by proposing to establish an enforcement
branch that could take decisions with legally binding consequences as part
of the non- compliance procedure for the Protocol.
Second, the Permanent Court of Arbitration’s Environment Facility could
result in increased confidence in the PCA as a venue for settling disputes
involving international environmental issues. One notes the PCA’s rules on
international arbitration where only one party is a State, and similar rules for
Environmental Law | Summer 2017 115
disputes involving intergovernmental organizations and States and 10 1992  United Nations Framework Convention on Climate Change
international organizations and private parties. [Climate Change Convention]
11 1992  
 United Nations Framework Convention on Climate
Finally, the establishment of the Inspection Panel by the World Bank and Change [Climate Change Convention]
similar units by other development banks such as the Asian Development 12 2001  Stockholm Convention on Persistent Organic Pollutants
Bank and the Inter- American Development Bank could translate factual [POP’s]
relationships that exist between individuals and groups and an international
body into a legal relationship and enable them to hold the organization Biosphere Reserves Linkages with Select Multilateral
accountable. The International Monetary Fund will likewise be establishing Environmental Agreements
an Independent Evaluation Office.

Wetlands 1971
OTHER NOTES: Ramsar
Convention

MAJOR GLOBAL ENVIRONMENTAL INSTRUMENTS

Desertiáication
[EXCLUDING MARINE ENVIRONMENT] World Heritage 1994
1972 Convention to
Convention combat
1 1971  RAMSAR Convention on Wetlands of International desertiáication
Importance [Ramsar Convention]

Biosphere
2 1972  
 Convention Concernin the Protection of the World Reserves &
Multilateral
Cultural and Natural Heritage [World Heritage Convention] Environmental
3 1972  Declaration of the United Nations Conference on the Agreements
Human Environment

Migratory
4 1973  Declaration of the United Nations Conference on the Species of
Climate
Change 1972
Wild Animals
Human Environment
 Convention on International Trade in 1979 Bonn
Rio
Convention
Endangered Species of Wild Flora and Fauna [CITES] Convention
5 1979  Convention on the Conservation of Migratory Species of
Wild Animals [Bonn Convention] 1992
Biological
6 1985  Convention for the Protection of the Ozone Layer and 1987 Diversity
Convention``
Montreal Protocol [Ozone Convention and Montreal Protection]

7 1989  Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal [Basel
Convention]
8 1992  Rio Declaration on the Environment and Legislations in Compliance by ASEAN Countries in
Development
 Agenda 21 [UNCED, 1992]
 Environmental Laws
9 1992  Convention on Biological Diversity [Biodiversity
Convention] 1 Singapore

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 116

  considered most “rule conscious” among ASEAN

 Regulates system permits license mandatory rec
o system of inspection warnings (e.g factories required to
have anti-pollution equipment)
o consultation prior prosecution
o creativeness in littering (w/ vest to clean; seminar; media)
2 Indonesia
 Compliance strategy is:
o conciliatory in style and not penal in style ( in envi law, there is
harm to the environment as there is harm to people, contrary to
penal principle of “an eye for an eye”)
o use tripartite team for mediation (one representative from the
gov't, the factory, and the community)

o severe warnings, temporary suspension, revocation
3 Malaysia
 provision on environmental audit (they audit themselves like what
environmental procedure is taken and etc.)
 multiple increase; fines (more discretion is given to the court)

Arcilla | Mendoza - Updated Notes Environmental Law | Summer 2017 117