CHAPTER 1

I. GENERAL PRINCIPLES AND POLICIES

1.​ ​Sovereignty over Natural Resources and the Obligation not to cause
harm
* deals with the effects of states activities outside of its own
territory without regard to the activities that cause environmental
harm within the state/territory.

Principle 21 Stockholm Declaration:

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.

Principle 2 Rio Declaration:

“States have, in accordance with the Charter of the United Nations and the principles of
international law, the sovereign right to exploit their own resources pursuant to their own
environmental and developmental policies, and the responsibility to ensure that activities
within their jurisdiction or control do not cause damage to the environment of other
States or of areas beyond the limits of national jurisdiction.”

Permanent Sovereignty over Natural Resources

- Each state has exclusive jurisdiction within its territory and people to
- adopt laws (legislative sovereignty) - enforce them
- administer the territory
- judge disputes that arise therein
- exclude other states from exercising
- sovereign rights (unless agreed on by contract)
- Natural Resources/economic principle
- Conflict of interest between capital exporting and capital importing nations
- Focus on natural resource management, UN Resolution 1803 (1962): “the right
of peoples and nations to permanent sovereignty must be exercised in the interest
of their national development and of the well-being of the people of the State
concerned”, “The exploration, development and disposition of such resources as
well as the import of the foreign capital required for these purposes, should be in
conformity with the rules and conditions which the peoples and nations freely
 consider to be necessary or desirable”; “inherent and overriding right of a state to
control the exploitation and the use of its natural resources”

Rights under the Principle

to dispose freely of the natural resource
to freely explore and exploit natural resources
to regain effective control and to compensation for damage
to use natural resources for national development
to manage natural resources pursuant to national environmental policy
to an equitable share in benefits of transboundary natural resources
to regulate foreign investment
to expropriate or nationalize foreign investment (right to determine the
conditions of nationalization and the amount of compensation)

Duties under the Principle:

· Exercise permanent sovereignty over natural resources for national
development and the well-being of the people (UN Res. 1803/XVII, 1962,
Vide Art. XII, Sec. 2 of the Constitution)
· Respect the rights and interests of indigenous people (RA 8371)
· Co-operate for international development
· Equitable sharing of transboundary natural resources
· Fair treatment of foreign investors
· Conservation and Sustainable Use of natural resources (Art. I, Sec. 15 &
16 and Art XII of the constitution)

Transboundary Harm: ​the no harm principle recognizes that states’

activities may be trans-boundary in nature and is meant to balance the
sovereign principle of states and require them to take responsibility for their
actions which cause harm to their territory.
- There should be a balance between the sovereignty to exploit
and its duty to ensure that the State do not cause damage to
the other states.

3 conditions :
- The harm must result from human activity
- Must cross national boundaries
- Must be significant or substantial (Trail Smelter Case)
 Due diligence: obligation of states
● Much environmental degradation is caused by non-state actors
State have to act with due diligence in implementing measures of prevention
of harm - “every State’s obligation not to allow knowingly its territory to
be used for acts contrary to the rights of other States”
● the concept of due diligence is evoked as a test to evaluate the conduct
required by states, and the no-harm rule is thus breached if the required
standard of care is not complied with
● Flexible, dynamic, context specific: a state needs to exert its best possible
efforts to minimize the risk
● A State is thus obliged to use all the means at its disposal in order to avoid
activities which take place in its territory, or in any area under its
jurisdiction, causing significant damage to the environment of another State.
This Court has established that this obligation ‘is now part of the corpus of
inter-national law relating to the environment’. (Pulp Mills)

Relationship between the two principles?

● No absolute sovereignty (Sovereignty pervaded
with environmental concerns)
● No absolute prohibition of transboundary harm (threshold: serious harm)
● Balance between rights and responsibilities of states
● Evolution into a commitment to co-operate for the good of the international
community
● Protection of the State’s own environment.

Example:

1. ICJ: 8 July 1996, LEGALITY OF THE THREAT OR USE OF NUCLEAR

​

WEAPONS, Advisory Opinion

The Court recognizes that the environment is under daily threat and that the use of nuclear
weapons could constitute a catastrophe for the environment. The Court also recognizes that
the environment is not an abstraction but represents the living space, the quality of life and
the very health of human beings, including generations unborn. The existence of the general
obligation of States to ensure that activities within their jurisdiction and control respect the
environment of other States or of areas beyond national control is now part of the corpus of
international law relating to the environment.
2.​ ​Trail Smelter Arbitration (US v. Canada) (1939) 33 AJIL 182 and (1941) 684
“[u]nder the principles of international law as well as of the law of the United States, 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 state or the persons or properties therein, when the case
is of serious consequence and the injury is established by clear and convincing evidence.”

2.​ ​Principle of Prevention

* aims to stop the environmental damage even before it occurs or
when it is critical or potential damage may be irreversible.
* it is based on the idea that it is better to prevent than to employ
measures after the harm has occurred in order to restore the
environment.
* unlike the obligation not to cause harm principle, the
prevention principle deals with environmental harm within its
own territory.

Functions of the principle:

1.​ ​Prevent pollution at the source
2.​ ​Minimize environmental damage
3.​ ​Reduce risk of harm
* The main point is, that the preventive approach tries to anticipate
possible (probable) negative effects and uses instruments to avoid that
damage will occur. It differentiate measures to prevent pollution/harm
and to reduce/minimize the consequences if damage has nevertheless
occurred.

How applied:
- Action should be taken at the earliest stage, rather than wait for
the irreversible effects to occur.
1.​ ​In the Philippines, this method is applied by the issuance of
permits or authorization, e.g. ECC
 2.​ ​Conduct of the Environmantal Impact Assessment (EIA)
under PD 1586 and other environmental management
related measures.
3.​ ​Emission Standard (clean Air act)
4.​ ​Environmental Quality Standard (Clean Water Act)
5.​ ​Authorization in the movement of hazardous materials
(Toxic Substance and Hazardous and Nuclear Wastes
Control Act)
6.​ ​Liability and Criminal laws/acts. – curative measures: it has
preventive dimension, because the potential polluter will
consider the economic loss when held liable and the
sanctions imposed.

3.​ ​Precautionary Principle

* This is an expansion of the principle of prevention and has been
embodied in our jurisprudence under Rule 120 of the Rules of
Environmental cases.
* Rule 120 of the Rules of Procedure for Environmental case:
SEC. 1. Applicability – When there is a lack of full scientific certainty in
establishing a causal link between human activity and environmental effect,
the court shall apply the precautionary principle in resolving the case before
it.
The constitutional right of the people to a balanced and healthful ecology
shall be given the benefit of the doubt.

(1) ​Definition​. Precautionary principle states that when human

activities may lead to threats of serious and irreversible damage to
the environment that is scientifically plausible but uncertain,
actions shall be taken to avoid or diminish that threat.
- in cases of threats of irreversible damage (potential), lack of
full scientific uncertainty 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.
- ​environmental law regularly operates in areas complicated by
high levels of scientific uncertainty. In the case of many activities
that entail some change to the ​environment​, it is impossible to
determine precisely what effects the activity will have on the
quality of the environment or on human health. It is generally
impossible to know, for example, whether a certain level of ​air
pollution will result in an increase in mortality from ​respiratory
disease​, whether a certain level of ​water pollution will reduce a
healthy ​fish ​population​, or whether oil development in an
environmentally sensitive area will significantly disturb the native
wildlife. The precautionary principle requires that, if there is a
strong suspicion that a certain activity may have environmentally
harmful consequences, it is better to control that activity now rather
than to wait for incontrovertible scientific evidence.
- by adopting the principle under Rule 120, it affords
environmental cases complainants’ to prove their cases when the
risks of environmental harm are not that easy to prove. (Rules of
evidence)
[1]
- In ​Resident Marine Mammals v Reyes​,​ the supreme Court in
applying this principle ruled: “we are not certain scientifically that
it will cause the death of these mammals. But it is better to err in
favor of protecting the environment than later regret the harm
done.”

(2) The adoption of the precautionary principle as part of

these Rules, specifically relating to evidence, recognizes that
exceptional cases may require its application. the inclusion of a
definition of this principle is an integral part of Part V, Rule on
Evidence in environmental cases in order to ease the burden of the
part of ordinary plaintiffs to prove their cause of action. In its
essence, precautionary principle calls for the exercise of caution in
the face of risk and uncertainty. While the principle can be applied
in any setting in which risk and uncertainty are found, it has
evolved predominantly in and today remains most closely
associated with the environmental arena.

(3) The precautionary principle bridges the gap in cases where

scientific certainty in factual findings cannot be achieved. By
applying this principle, the court may construe a set of facts as
warranting either judicial action or inaction, with the goal of
preserving and protecting the environment. This may be further
evinced from the second paragraph of Sec. 1, Rule 20, where bias is
created in favor of constitutional right of the people to a balanced
and healthful ecology. In effect, this principle shifts the burden of
evidence of harm away from those likely to suffer harm and onto
those desiring to change the status quo. This principle should be
treated as a principle of last resort, where application of the regular
Rules of Evidence would cause in an inequitable result for the
environmental plaintiff:

(a) Settings in which the risks of harm are uncertain;

(b) Settings in which harm might be irreversible and what is

lost is irreplaceable; and
 (c) Settings in which the harm that might result would be
serious.

SEC. 2. Standards for application – In applying the precautionary principle,

the following factors, among others, may be considered: (1) threats to human
life or health; (2) inequity to present or future generations; or (3) prejudice to
the environment without legal consideration of the environmental rights of
those affected.
- While its phraseology is couched in general terms, thus
permitting ample judicial discretion in its application, the
application of the precautionary principle is limited in cases
where ​there is truly a doubt in the evidence available​.
- When these features—uncertainty, the possibility of
irreversible harm, and the possibility of serious
harm—coincide, the case for the precautionary principle
is strongest. When in doubt, cases must be resolved in
favor of the constitutional right to a balanced and
healthful ecology. Parenthetically, judicial adjudication is
one of the strongest for which the precautionary principle
may find applicability.

Key words:
a. Uncertainty
b. Possibility of irreversible harm - Threat of
serious damage
c. possibility of serious harm - reasonable grounds
for concern
 How is the precautionary principle differentiated from preventive
principle:

Preventive Precautionary

Knowledge based – risk Uncertainty or the

can be calculated possibility of harm – risk is
doubtful or cannot be
calculated

Danger Risk

Occurrence of damage is Occurrence is uncertain and

probable if no measures are cannot be predicted
undertaken

Regulations is through Regulation is through

substantive criteria (level of procedural requirement (as
emission, compliance, etc.) part of the evidentiary rule)

Definition of acceptable Social acceptance of the risk

risk is science base is considered

ISAAA v. Greenpeace Southeast Asia (Philippines), G ​ .R. No. 20927, 8 December 2015; see ​also
Resolution, 26 July 2016
- Under this ​Rule​, the precautionary principle finds direct application in the
evaluation of evidence in cases before the courts. The precautionary
principle bridges the gap in cases where scientific certainty in factual
findings cannot be achieved. By applying the precautionary principle, the
court may construe a set of facts as warranting either judicial action or
 inaction, with the goal of preserving and protecting the environment. This
may be further evinced from the second paragraph where bias is created
in favor of the constitutional right of the people to a balanced and
healthful ecology. In effect, the precautionary principle shifts the burden
of evidence of harm away from those likely to suffer harm and onto those
desiring to change the status quo. An application of the precautionary
principle to the rules on evidence will enable courts to tackle future
environmental problems before ironclad scientific consensus emerges.​146

For purposes of evidence, the precautionary principle should be treated as a

principle of last resort, where application of the regular Rules of Evidence
would cause in an inequitable result for the environmental plaintiff

— (a) settings in which the risks of harm are uncertain; (b) settings in which
harm might be irreversible and what is lost is irreplaceable; and (c)
settings in which the harm that might result would be serious. When these
features

— ​uncertainty​, the ​possibility of irreversible harm​, and the ​possibility of

serious harm​ — coincide, the case for the precautionary principle is
strongest. When in doubt, cases must be resolved in favor of the
constitutional right to a balanced and healthful ecology. Parenthetically,
judicial adjudication is one of the strongest fora in which the
precautionary principle may find applicability.​147

Assessing the evidence on record, as well as the current state of GMO

research worldwide, the Court finds all the three conditions present in this
case - uncertainty, the possibility of irreversible harm and the possibility
of serious harm.

[2]​
Resident Marine Mammals v Reyes​,​ the supreme Court in applying
this principle ruled: “we are not certain scientifically that it will cause
the death of these mammals. But it is better to err in favor of
protecting the environment than later regret the harm done.”
4.​ ​Sustainable Development
Sustainable development is an approach to ​economic planning that
attempts to foster ​economic growth while preserving the quality of the
environment​ for future generations.

The sustainable development implies two main objectives, which are

environmental protection and economic development. The economic
development can also be referred as a mean of the poverty alleviation.
Poverty alleviation is understood that alleviation could be achieved through
the economic development but should be reconciled with the environmental
protection. While the objectives are regarded as non-hierarchical, they are
interdependent and mutually reinforcing.

As the result, it is important to understand the two practical implications

embracing these objectives of sustainable development:
1. ​Firstly, in the economic development, there should be a
priority to the needs of the people, especially those who are
in poverty.
2. ​Secondly, the implication is based on the principle of
inter-generational equity. It is said that while the present
generation is pursuing the economic development and
poverty alleviation, this should not cause harm to the
environment which the future generations will depend upon
in order to meet their needs.
In other word, although the sustainable development recognizes the
economic development as a mean of achieving poverty alleviation, it limits
such development on the ground of environmental protection for the needs
of the present and future generations. However, the implications do not
mean that the economic development must be unreasonably restricted as this
may cause poverty, especially in the developing countries. While there is an
interest in preserving the environment because of importance of natural
resources for economic development and life on the earth, there is also an
interest in alleviating the poverty through the economic development. As the
 result, the sustainable development provides a new way of development,
which assists to achieve both interests.
Despite its enormous popularity in the last two decades of the 20th
century, the concept of sustainable development proved difficult to
apply in many cases, primarily because the results of long-term
sustainability analyses depend on the particular resources focused
upon. For example, a forest that will provide a sustained yield of
timber in perpetuity may not support native bird populations, and a
mineral deposit that will eventually be exhausted may nevertheless
support more or less sustainable ​communities​.

Basic objectives of Sustainable Development

The principle of sustainable development seeks to achieve the following three basic objectives​:
(1) to maintain production of goods and services for development and efficiency;
(2) conversation and management of neutral resources including preservation of bio-diversity and
maintenance of biological integrity;
(3) maintenance and enhancement of the quality of life adopting the principle of equitable distribution
of wealth and material resources.

These objective may respectively be called as economic, environmental and social objectives of the
principle of sustainable development.
From the environmental point of view, the objective of the principle of sustainable development
centres round three issues, namely, (i) to maintain essential ecological processes, (ii) to preserve
genetic diversity; and (iii) to secure sustainable utilization of species and ecosystems.

5.​ ​Intergenerational Equity

- Each generation’s responsibility to leave an inheritance of
wealth no less than what they themselves inherited.
- This concept supports the principle of sustainable
development – the present generation holds the natural
resources in trust for future generations.
- The principle of inter-generational equity pre-supposes the
right of each generation of human beings to benefit from
cultural and natural resources of the past generation as well as
the ‘obligation’ to preserve such heritage for future
generations. The principle emphasises on conservation of
 biodiversity resources and of the renewable sources like
forests, water, soil etc.
- The principle of inter-generational equity has its genesis in
Principles 1 and 2 of the Stockholm Declaration, 1972 wherein
environment has been taken to be resource basis for the
survival of the present generation and right to be beneficially
used by the future generations.

A.​ ​Principle 1​.- Man has the fundamental right to freedom,

equality and adequate conditions of life, in an environment
of quality that permits a life of dignity and well-being, and
he bears a solemn responsibility to protect and improve the
environment for the present and future generations.

B.​ ​Principle 2​.- The natural resources of the earth, including

the air, water, lands, flora and fauna, and especially
representative samples of natural ecosystems, must be
safeguarded for the benefit of the present and future
generations through careful planning and management, as
appropriate.

- Philippine made: ​When Oposa vs Factoran came out in

1993, the Philippine Supreme Court bravely and
courageously gave standing to generations yet unborn - an
argument from the creative legal mind of Atty. Antonio
Oposa, Jr. Since then the Oposa case has been cited and
replicated all over the world.

Oposa vs. Factoran (G.R. No. 101083 /30 July 1993, 224 SCRA 792)

Resident Marine Mammals v. Reyes, ​G.R. No. 180771 April 21, 2015
II. Constitutional Policy and Framework
a. National Territory:

1) Territorial sea

2) Seabed


3) The subsoil

4) Insular


5) Other submarine areas

b.​ D
​ uties imposed on the State for the protection of Natural

resources and the Environment:

1.​ S
​ ection 15. The State shall protect and promote the right to health

of the people and instill health consciousness among them.

2.​ S
​ ection 16. 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.

3. Section 2, Art XII:

​ All lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the
 exception of agricultural lands, all other natural resources shall not
be alienated. The exploration, development, and utilization of
natural resources shall be under the full control and supervision of
the State. The State may directly undertake such activities, or it
may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations
at least sixty ​per centum ​of whose capital is owned by such
citizens. Such agreements may be for a period not exceeding
twenty-five years, renewable for not more than twenty-five years,
and under such terms and conditions as may be provided by law. In
cases of water rights for irrigation, water supply fisheries, or
industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.

4. P
​ aragraph 2, Section 2 of Art. XII: ​The State shall protect the
nation’s marine wealth in its archipelagic waters, territorial sea,
and exclusive economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.

[1]​
GR NO. 180771, April 21, 2015
[2]​
GR NO. 180771, April 21, 2015