Protecting Endangered Species in Disputed Waters

De La Salle University- Manila
Protection of Endangered Species in Disputed Waters: Justifying the Protective

Measures of the Philippines under International Law
A Thesis Proposal
In partial fulfillment
Of the course requirements
In DOCULMG
Submitted to:
Atty. Hilario S. Caraan
Atty. Christopher E. Cruz
Atty. Ronald L. Carreon
Submitted by:
Penafiel, Wendy Angeline A.
Torres, Korina D.
K31
TABLE of CONTENTS
I.
INTRODUCTION
A. Research Background ... 3
B. Statement of the Problem ...... 9
C. Significance of the Study .............10
D. Scope of the Study .......12
REVIEW of RELATED LITERATURE

II.
BACKGROUND on the ENDANGERED SPECIES AFFECTED by the POACHING

ACTIVITY of CHINESE FISHERMEN in the HASA-HASA SHOAL
A. Historical and Scientific Information on the Hawksbill Turtles ......13
B. Historical and Scientific Information on the Green Marine Turtles ........................17
III.
COMPREHENSIVE REVIEW OF THE RELEVANT PUBLIC INTERNATIONAL

LAWS
A. Treaties in International Laws that Promote the Protection of Endangered Species ...19
B. Rights and Obligations of States in Relation to its Exclusive Economic Zone (EEZ) under
UNCLOS .....25
C. Precautionary Principle and its Applicability in Environmental Issues ......35
D. Erga Omnes Obligations and its Applicability in Environmental Issues ........39
E. Prevention of Harm Principle and its Applicability in Environmental Issues .....43
F.
Intergenerational Equity Principle and its Applicability in Environmental Issues ..44
IV.
STATE RESPONSIBILITY..46
V.
INTERNATIONAL COURTS .48
VI.
PROVISIONAL MEASURES .55
VII.
CONCEPTUAL LITERATURE ..57
VIII.
RESEARCH DESIGN
A. Research Framework ..59
B. Research Methodology ...61
IX.
BIBLIOGRAPHY .....63
I.
INTRODUCTION
A. Research Background
Hasa-Hasa Shoal Incident

On March 1995, sixty-two Chinese fishermen were arrested by the Philippine Navy
for fishing without permission in the Hasa-Hasa Shoal.1 The Hasa-Hasa Shoal is situated
within the Philippines Exclusive Economic Zone (EEZ), sixty nautical miles off the Palawan
coast.2 In their fishing vessels were hundreds of endangered marine species protected under
the Philippine laws. China contested that it had undisputable sovereignty over the Hasa-Hasa
Shoal as it is part of its nine-dash line claim, and demands the release of its nationals.3 The
1995 event is not the only case, which involves China and the Philippines arguing over
natural resources found in the disputed territory. Last May 2014, one Chinese fishing vessel
was caught by the Philippine National Police for crossing the Hasa-Hasa Shoal and poaching
endangered species of approximately five-hundred (500) turtles in number, with threehundred seventy-eight (378) of which were found dead. 4 The Chinese fishermen were
apprehended on the Banyue Reef, around ninety-five (95) kilometers (60 miles) off the coast
of Palawan.5 They, together with their fishing boat, were seized by the Philippine Police.6
Fidel V. Ramos, Chinese mischief repeated at Hasa-Hasa (First of two parts), May 17, 2014,
http://www.mb.com.ph/chinese-mischief-repeated-at-hasa-hasa-first-of-two-parts/ (last assessed Nov. 30,
2014).
2
Id.; Carmela Fonbuena, PH arrests 11 Chinese fishermen off Palawan, May 07, 2014,
http://www.rappler.com/nation/57456-missing-chinese-fishermen-half-moon-shoal. (last assessed Oct. 20,
2014).
3
John Kemp, COLUMN-Chinas Nina Dash Line and the Law of the Sea: Kemp, Jun 6, 2014,
http://uk.reuters.com/article/2014/06/06/china-sea-kemp-idUKL6N0ON2SV20140606. (last assessed Nov. 15,
2014).
4
Ramos, supra note 1; Jeremy Hance, Chinese poachers caught with 555 marine turtles, most dead (PHOTOS),
May 15, 2014 http://news.mongabay.com/2014/0515-hance-sea-turtles-poachingphilippines.html#sthash.CXME8O0o.dpbs. (last assessed Oct. 30, 2014).
5
Id.
The arrested fishermen were charged before Branch 5 of the Puerto Princesa City Regional
Trial court for violation of Republic Act (RA) 9147 or the Wildlife Resources Conservation
Act and Section 97 and 87 fishing or taking of rare, threatened or endangered species, and
poaching in territorial waters, respectively of the Republic Act (RA) 8550 or the Philippine
Fisheries Code.7 China maintained its contention that it has undisputable sovereignty over the
Spratly Islands, including the Hasa-Hasa Shoal, and demanded the release of the fishermen.
The Foreign Ministry spokeswoman of China said,
We believed that the Philippines government illegally seized the Chinese
fishing boat and fishermen in waters near the Nansha (Spratly) islands and
made a so-called judicial judgment that violated Chinas sovereignty and
rights of administration8
China, moreover, urged the Philippines to cease taking further provocative actions.9
Despite Chinas warnings, the Philippines pursued conviction over the fishermen.10 Two of
the eleven Chinese fishermen who were caught in May 2014 were minors; hence, they were
repatriated without charge.11 The Department of Foreign Affairs (DFA) of the Philippines
published a statement on May 12, 2014 stating that despite their violation of the Philippine
fisheries law, the United Nations Convention on the Law of the Sea (UNCLOS), and the
Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),
the minors who were apprehended in the Hasa-Hasa Shoal were released as they cannot be
Sui-Lee Wee, China says PH violated its sovereignty with fines on fishermen, 11/25/2014, http://www.abscbnnews.com/nation/11/25/14/china-says-ph-violated-its-sovereignty-fines-fishermen. (last assessed Nov.10,
2014).
7
Benjamin B. Pulta, Leila Contradicts Noy on Chinese Poachers Imprisionment 29 May 2014,
http://www.tribune.net.ph/nation/leila-contradicts-noy-on-chinese-poachers-imprisonment. (last assessed Jun.
30, 2014).
8
Wee, supra note 6.
9
Ramos, supra note 1.
10
Agence France-Presse, PH convicts Chinese poachers despite Beijings warnings, 11/24/2014,
http://www.abs-cbnnews.com/nation/11/24/14/ph-convicts-chinese-poachers-despite-beijings-warnings. (last
assessed Oct.27, 2014).
11
Id.
prosecuted under Republic Act 7610 of the Philippines or An Act Providing for Stronger
Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination,
and for other Purposes.12 The nine remaining fishermen were fined one-hundred thousand
dollars ($100,000.00) each and an additional one-hundred twenty thousand pesos (Php
120,000.00) fine for catching endangered species.13 These endangered species were found to
be Hawksbill Turtle and Green Sea Turtles, with the former being critically endangered.14
The fishermen shall face six months in jail if they fail to pay the fines.15
South China Sea Territorial Dispute

The conflict between and among States is not an unfamiliar matter in the realm of
international relations. Before contemporary international law came into conceptualization in
the 17th century, there were already recurrent conflicts between States such as Roman-Persian
wars in 53 BC.16 In the 21st century, territorial conflicts among States are still very much
prevalent to which international law continues to minister. Contemporarily, it is the conflict
over the islands in South China Sea that has maintained a leading position in the list of cases
that the United Nations attempts to arbitrate.
The territorial conflict in the South China Sea has long been in play involving
different States with different claims over territories in the region. The Spratly Islands is the
12
See DFA Statement on the Release of Two Minors Apprehended in Hasa-Hasa Shoal,
http://www.dfa.gov.ph/index.php/2013-06-27-21-50-36/dfa-releases/2838-dfa-statement-on-the-release-of-twominors-apprehended-in-hasa-hasa-shoal. (last assessed Oct. 25, 2014).
13
France-Presse, supra note 10.
14
Cris Larano, Philippines Charges Fishermen for Alleged Turtle Poaching China Has Called for Fiserhmens
Immediate Release, May 12, 2014,
http://online.wsj.com/articles/SB10001424052702303851804579557493969255138. (last assessed Oct. 16,
2014).
15
Wee, supra note 6.
16
Bryan Dent, Roman-Persian Wars: Battle of Carrhae, June 12, 2006, http://www.historynet.com/romanpersian-wars-battle-of-carrhae.htm. (last assessed Nov. 15, 2014)
most disputed territory of all as the issue dates back to early the 1900s and it remains
unsolved up to the present.17 It has been in the center of conflicting claims as it involved
multi-lateral relations among States namely Vietnam, Taiwan, Malaysia, Brunei, China, and
the Philippines.18 However, the conflict between China and the Philippines could be the most
crucial of all disputes as it has evolved from occupation of territories to armed
confrontations.19 In March 2014, the Philippines filed a formal plea to the United Nations
seeking arbitration over the long-standing dispute and challenging the claims of China,
particularly the nine-dash line claim.20 However, upon ratification of the United Nations
Convention on the Law of the Sea, China submitted a declaration under Article 298:
The Government of the Peoples Republic of China does not accept
any of the procedures provided for in Section 2 of Part XV of the Convention
with respect to all the categories of disputes referred to in paragraph 1 (a) (b)
and (c) of Article 298 of the Convention.21
Spratly Islands is composed of 100-230 islands, islets, reefs, shoals, banks, atolls,
cays, and sand banks that greatly cover the South China Sea.22 Its islands are scattered over
the region and cover an area of 800,000 square kilometers.23 Its island group is seated in the
middle of the South China Sea, between Vietnam and the Philippines.24 It is the largest
17
CLAUDE HABERER, BETWEEN TIGER AND DRAGON: A HISTORY OF PHILIPPINE RELATIONS WITH CHINA AND
TAIWAN 144 (2009).
18
Id., at 146; AILEEN S.P. BAVIERA & TERESITA ANG SEE, CHINA ACROSS THE SEAS 29 (1991).
19
Id., at 143.
20
21
United Nations Convention on the Law of the Sea, Dec. 10 1982, 1833 UNTS 3 .[hereinafter UNCLOS].
22
About The Issue of South China Sea, http://www.spratlys.org/collection/spratlys_more.htm;
CHRISTOPHER C. JOYNER, The Spratly Islands Dispute in the South China Sea: Problems, Policies, and Prospects
for Diplomatic Accommodation 56 citing ICE Cases: Spratly Islands Dispute, Case No. 21 (May 1997):
http://gurukul.ucc.american.edu/ted/ice/Spratly.htm(last assessed Nov.15, 2014); Dieter Heinzig,
Disputed Islands in the South China Sea (Hamburg: Institute of Asian Affairs, 1976).
23
JOYNER, supra note 22, at 55.
24
Reef Madness, 20/05/2014, http://www.abc.net.au/foreign/content/2014/s4008035.htm. (last assessed Oct. 30,
2014).
archipelago and is geologically separated from China and the Philippines by a marine trench
3,000 meters deep and 2,000 meters deep respectively.25
France held the Spratly Islands group between 1933 and 1939. Then, Japan occupied
the archipelago during World War II with the island of Itu-Aba as its base for invasion in the
Philippines. 26 Thereafter, the territorial dispute among Asian countries began when the
separation of Spratly Islands from Japan was proclaimed in 1951 in the San Francisco
Conference.27
In 1947, a Filipino named Thomas Cloma claimed seven of the islands in Spratlys. In
1956, Cloma declared the creation of Kalayaan or Freedomland island state in Spratlys,
with himself as "Chief" under the sovereignty of the Philippines.28 His claims were based on
the right of discovery and occupation.29 The lawfulness of his claims was not recognized by
the government until 1978 when the Marcos government formally annexed the archipelago to
the Philippines and placed it under the administration of Palawan province.30 The rest of the
islands were initially terra nullius, until States began to gradually occupy islands to assert
their claims.31
Starting in 1974, China and the Philippines conducted strategic moves such as the
occupation of new islands. The Philippines built a lighthouse in Thitu and planned on
constructing lighthouses on the Philippine-controlled houses; whereas, China built structures
on Mischief (Panganiban) Reef. 32 Later on, the Chinese began the incursions of their
25
HABERER, supra note 17, at 144.

Id.; Spratly Islands, http://www.britannica.com/EBchecked/topic/561209/Spratly-Islands. (last assessed Oct.
30, 2014).
27
Id.
28
29
Id., at 60.
30
Id., at 62.
31
32
26
reconnaissance ships, which were denounced by the Philippines.33 This marked the start of
tension escalation in the region.
Since 1988, incursions of Chinese vessels on the disputed islands have become a clear
manifestation of their unyielding claim on the Spratly Islands. It is notable why various
States persevere to attain sovereignty over the Spratly Islands as these hold a rich amount of
natural resources.34 It contains approximately ten billion tons of oil and one trillion cubic
meters of natural gas.35 The sea, moreover, serves as a major shipping route and as fishing
grounds to people across the region.36 It is believed to be one of Asias biggest potential
flashpoints.37 As the question of territorial sovereignty remains unanswered, States become
more insistent with their claims and continue to conduct actions as if the Spratly Island group
is already subject to their jurisdiction. The recurring case of poaching of endangered species
in the Hasa-Hasa Shoal as earlier discussed illustrates the foregoing.38
This particular recurring case in the Hasa-Hasa Shoal has further escalated the
ongoing tension between the two the States regarding the territorial dispute.39 This territorial
conflict may take time to reach resolution as jurisdiction over parties and the situation under
the United Nations Convention on the Law of the Sea (UNCLOS) have yet to be determined.
Nevertheless, the protection of the environment and its natural resources, including the
endangered species, cannot be disregarded amidst the dispute. The environment is an
international concern; hence, it is the objective of this research to determine how to approach
33

Q&A: South China Sea dispute, 8 May 2014, http://www.bbc.com/news/world-asia-pacific-13748349(last
assessed Nov. 30, 2014).
35
36
See note 33, supra; The Spratly Islands Dispute: Order-Building on Chinas terms?, August 18, 2011,
http://hir.harvard.edu/archives/2841(last assessed Nov. 30, 2014).
37
Wee, supra note 6.
38
Ramos, supra note 1.
39
34
this type of circumstance in relation to international and domestic laws. Cases such as
poaching of endangered species cannot be further endured, as aside from China and the
Philippines being parties to the Convention on the International Trade in Endangered Species
(CITES) and Convention on Biological Diversity (CBD), protection and preservation of
natural resources are also a communal duty. 40
B. Statement of the Problem

This research aims to address the question of law on the theories and principles under
Public international law that may determine whether the Philippines can unquestionably
invoke environmental obligations against China and conduct measures for protection of
endangered species amidst the issue of territorial dispute in the South China Sea with the
Republic of China. This research will use Public International Law to identify and justify if
China cannot, by any means, denounce responsibility of preventing exploitation of the
endangered species located in the said territory, while the dispute remains unresolved and the
jurisdiction of involved states remains a question. In order to address the aforementioned
question of law, the researchers shall discuss the following issues:
Main Issue:
What are the theories and principles under Public international law that would justify the
measures that the Philippines could take in preventing the exploitation of endangered species
40
List of Contracting Parties, Convention on International Trade in Endangered Species of Wild Fauna and
Flora, http://www.cites.org/eng/disc/parties/chronolo.php(last assessed Nov. 30, 2014).
in the disputed Exclusive Economic Zone (EEZ), as in the case of Hasa-Hasa Shoal poaching
incident?
Corollary Issues:
1. Whether or not the protection and conservation of endangered species are obligatio
erga omnes that the Philippines could invoke against China?
2. Whether or not the Philippines can use the Precautionary Principle under international
law as a justification of its preventive measures against China, without violating the
latters sovereign rights?
3. Whether or not the No Harm principle under international law could justify the
measures that the Philippines could take in preventing the exploitation of endangered
species?
C. Significance of the Study

This research is important in the domestic and international realm of law as it would
justify the measures that the Philippines can use in order to prevent the exploitation of the
endangered species situated within its exclusive economic zone (EEZ) in a disputed territory.
As the dispute is yet to be resolved by the United Nations Arbitration Tribunal and the
jurisdiction of States over the Hasa-Hasa Shoal is not clear, there ought to be a determination
of measures that the Philippines may exercise over the aforementioned territory to prevent
abuse and over-exploitation of natural resources, despite the reservation of China in the
United Nations Convention on the Law of the Sea. This research shall also determine the
10
international legal principles and theories that the Philippines may use against China to
support its act of denouncing poaching in the exclusive economic zone and future acts
detrimental to nature. The research shall address the urgent case of environmental protection
as endangered species, particularly those in critical status, may fully deteriorate in the
process of international arbitration.
This paper shall present the correlation between international law, domestic law, and
environmental law in the case that imminent risk may take place amidst the escalating
tension on territory claims. Therefore, this research paper may be of aid to future researchers
who would like to study the same question of law or cases analogous to it.
D. Scope of the Study

This research primarily focuses on identifying the legal principles and theories that
may justify the measures that the Philippines can undertake with regard to the protection and
preservation of natural resources, particularly endangered species, located in the Hasa-Hasa
Shoal which is in its Exclusive Economic Zone that is currently subject of a territorial dispute
with China.
This research stems from the territorial dispute between China and the Philippines;
however, it shall not delve into the aspect of determining which claims are legal and
resolving which State has territorial sovereignty over the said shoal. Instead, it shall discuss
what are actions applicable given the current circumstances while it awaits the arbitration of
the United Nations over the dispute, or the final determination of the territorial dispute for
that matter. This paper contains a brief background on the long-standing territorial dispute
11
among Asian countries in order for the readers to fully understand where the question of law
of this research comes from.
Furthermore, this research shall focus on the endangered species involved in the
Hasa-Hasa Shoal poaching incident, particularly the Hawksbill turtles, and the Green Marine
turtles. The researchers acknowledge the presence of other natural resources situated within
the disputed territory that need protection and conservation; however, they will not be
addressed in this research as the nature of the endangered species form an integral part of this
study.
Also, this research shall discuss the rights and obligations that the Philippines has
under international law to establish the need of action on the part the Philippines in deference
to the poaching incidents. It will not delve into the rights and obligations of China if there are
any.
Lastly, the research will only consider the facts from the Hasa-Hasa Shoal incident. It
will not use the facts from other similar incidents regarding turtle poaching in the
Philippines.
12
REVIEW of RELATED LITERATURE

II.
HiSTORICAL, POLITICAL and GEOGRAPHICAL BACKGROUND on the HASA-HASA

SHOAL
A. Historical and Scientific Information on the Hawksbills Turtles
Hawksbill turtles, also called tortoiseshell turtles, acquired their name because of
their hooked upper jaw that resembles a hawks beak.41 They have two pairs of large shields
on the top of the head and between the eyes.42 Hawksbill turtles length and weight may
reach 30 inches, and 100 pounds respectively.43 They belong to the genus and species,
Eretmochelys imbricata.44 Their nesting period is from late spring to early autumn on sandy
beaches, and lay around 130 eggs per clutch.45 They are carnivorous sea turtles, which feed
on fish, mollusks, crustaceans, and various sea plants.46 Hawksbills in the Atlantic mainly eat
sponges, coral-limorpharians, and zoanthids.47 While, those in the Pacific and Indian oceans
41
FUNK & WAGNALLS NEW WORLD ENCYCLOPEDIA, Hawksbill Turtle, 1 (2014).

Id.
43
6 COLUMBIA ELECTRONIC ENCYCLOPEDIA, Sea Turtle, 1 (2013).
44
Hawksbill, supra note 41.
45
Isao Kawazu et al., Ovulation Induction with Follicle-Stimulating Hormone Administration in Hawksbill
Turtles Eretmochelys imbricata, 33 CURRENT HERPETOLOGY 88 (2014)., citing Kamel, S. J. & Delcroix, E.,
Nesting Ecology of the Hawksbill Turtle, Eretmochelys imbricata, in Guadeloupe, French West Indies from
200007. 43 JOURNAL of HERPETOLOGY 367376 (2009)., citing Miller, J. D, Reproduction in Sea Turtles, in
THE BIOLOGY of SEA TURTLES 51 (P. L. Lutz & J. A. Musick, 1997).
46
47
Karen Bjorndal, & Alan Bolten, Hawksbill sea turtles in seagrass pastures: success in a peripheral habitat,
157 MAR. BIOL. 135 (2010), citing Meylan A, Spongivory in hawksbill turtles: a diet of glass, 239 SCIENCE
393395 (1988)., citing Leon YM, & Bjorndal KA, Selective feeding in the hawksbill turtle, an important
predator in coral reef ecosystems, 245 MAR. ECOL. PROG. SER. 249258(2002), citing Blumenthal JM et al.,
Ecology of hawksbill turtles, Eretmochelys imbricata, on a western Caribbean foraging ground, 8 CHELONIAN
CONSERV. BIOL 110(2009).
42
13
have a diet that consists of algae, sponges, and other invertebrates.48 They are typically found
in all warm seas49, and in tropical and sub-tropical coral reefs around the world.50 They have a
highly migratory behavior.51 Hawksbill turtles spend first years of their life in deep-sea
habitats.52 They then transfer to habitats in shallow parts of the ocean once they have reached
a size of 20 35cm carapace length.53
In 1968, Hawksbill turtles were listed as endangered by the International Union for
Conservation of Nature (IUCN) in its IUCN Red List of Threatened Animals.54 Despite being
considered as endangered, their population continued to decline. In effect, they got
reclassified as critically endangered by the IUCN in 1996.55 The current Red list assessment
retains that status.56 The exploitation of Hawksbill turtles is prevalent worldwide,57 as they are
the most economically valuable of all turtles.58 The main threats to their population would be
the trade of their derivatives, egg poaching, and coastal developments that affect nesting
48
Bjorndal, & Bolten, supra note 47, citing Bjorndal KA, Foraging ecology and nutrition of sea turtles, in THE
BIOLOGY of SEA TURTLES 199, (P. L. Lutz & J. A. Musick, 1997)., citing Whiting SD, & Guinea ML, A large
population of slow growing hawksbills: preliminary results from a wild foraging population in Fog Bay,
Northern Territory, in NOAA TECHNICAL MEMORANDUM NMFS-SEFSC- 415, (Epperly SP, & Braun J, 1998).
49
50
Kawazu et al., supra note 5., citing Mortimer, J. & A. Donnelly, Marine Turtle Specialist Group 2008 IUCN
Red List Status Assessment, Hawksbill Turtle (Eretmochelys imbricata), available at http://www.iucnredlist.
org/attachments/639.pdf (2008).
51
Hawksbill Turtle (Eretmochelys imbricata), National Oceanic and Atmospheric Administration, available at
http://www.nmfs.noaa.gov/pr/species/turtles/hawksbill.htm (last accessed Nov.30, 2014).
52
Bjorndal & Bolten, supra note 47., citing Reich KJ et al., The lost years of green turtles: using stable
isotopes to study cryptic lifestages, 3 BIOL. LETT. 712714(2007).
53
Id.
54
Julia A. Horrocks et al., International Movements of Adult Female Hawksbill Turtles (Eretmochelys
imbricata): First Results from the Caribbean's Marine Turtle Tagging Centre, 10 CHELONIAN CONSERV.
BIOL.18 (2011).
55
Id.
Id., citing Mortimer, J.A et al.,Whose turtles are they, anyway?, 16 Molecular Ecology 11718 (2007).
57
Kawazu et.al, supra note 5., citing Lutcavage, M. E. et al., Impacts on sea turtle survival, in THE BIOLOGY of
SEA TURTLES 387 (P. L. Lutz & J. A. Musick, 1997).
58
56
14
habits.59 The loss of their nesting grounds are caused primarily by human activities.60 Their
nesting numbers have drastically declined to more than 80%.61 Despite being considered as
critically endangered, hawksbill products continue to be commercially appreciated and
demanded in some regions.62 The horny plates of their shell, which are translucent and have
a variegated color pattern, have long been valued for making ornamental objects.63 Heat is
used to remove the shields from the back of the turtle, and often done while the turtle is still
alive.64 It is because of practices like these that the population of Hawksbill has dramatically
declined worldwide.65 In the Caribbean, it reduced to as much as 95%.66
Due to its critically endangered status, efforts have been made to ensure its survival.
Hawksbill turtles were placed under the Appendix I of the Convention on International Trade
in Endangered Species of Wild Fauna and Flora (CITES).67 Species listed in Appendix I are
all those threatened with extinction that are or may be affected by trade.68 The international
trade of these species is prohibited unless in exceptional cases. 69 Due to its migratory
59
Javier Carrion-Cortez et al., Habitat Use and Diet of Juvenile Eastern Pacific Hawksbill Turtles
(Eretmochelys imhricata) in the North Pacific Coast of Costa Rica, 12 CHELONIAN CONSERV. BIOL.235 (2013),
citing Meylan, A.B., & Donnelly, M., Status justification for listing the hawksbill turtle {Eretmochelys
imbricata) as critically endangered on the 1996 IUCN Red List of Threatened Animals, 3 CHELONIAN
CONSERV. BIOL. 200-224 (1999), citing Mortimer, J. & A. Donnelly, supra note 50.
60
61
Kawazu et.al, supra note 45., citing Lutcavage, M.E. et al., supra note 57.
Carrion-Cortez et.al., supra note 59., citing Mortimer, J. & A. Donnelly, supra note 50.
62
Proietti, M et al., Genetic Structure and Natal Origins of Immature Hawksbill Turtles (Eretmochelys
imbricata) in Brazilian Waters, 9 PLOS ONE 9(2014)., citing Bowen BW et al., Mixed-stock analysis reveals the
migrations of juvenile hawksbill turtles (Eretmochelys imbricata) in the Caribbean Sea, 16 MOL. ECOL.4960
(2007).
63
Sea turtle, supra note 43.
64
Hawksbill turtle, supra note 41.
65
Berube, M, Dunbar et al., Home Range and Foraging Ecology of Juvenile Hawksbill Sea Turtles
(Eretmochelys imbricata) on Inshore Reefs of Honduras, 11 CHELONIAN CONSERV. BIOL. 33 (2012), citing
Meylan, A.B., & Donnelly, M., supra note 59.
66
Id.
67
Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 993
U.N.T.S. 243. [hereinafter CITES].
68
Id.
69
Id.
15
behavior, Hawksbill turtles can also be found in the Convention on Migratory Species
(CMS). It can be found under Appendix I and II of the said convention.70
Being large spongivores, Hawksbills play a vital role in preserving reef biodiversity.71
The absence of the Hawksbills consumption of sponges would lead to the decrease in
diversity and health of reef ecosystems because it opens an opportunity for sponges and
corals to compete for space. 72 The worsening condition of coral reefs and hawksbill
populations bring the need to protect them and their habitats.73 Hawksbill turtles are primarily
associated with coral reefs, sponge reefs, reef walls, and other hard-bottom habitats.74 Being
closely associated with coral reefs, the decline in the quality and quantity of reef habitats
could affect the survival of Hawksbill turtles.75 The degradation of reef-associated fauna
could also have the same effect.76 Hence, in order to properly implement conservation efforts,
considerations should be given to habitat use, migration corridors, foraging ecology, and the
ecological role of Hawksbills.77
70
Hawksbill turtle, supra note 51.

Berube et al., supra note 65, citing Hill, M.S., Spongivory on Caribbean reefs releases corals from
competition with sponges, 117 OECOLOGICA 143-150 (1998), citing Leon & Bjorndal, supra note 47,
Blumenthal, J.M. et al., supra 47.
72
Id.
73
Berube et al., supra note 65, citing Meylan, A.B., & Donnelly, M., supra note 58, citing Gardner, T.A. et al.,
Longterm region-wide decline in Caribbean corals, 301 SCI. 958-960 (2003), citing Blumenthal, J.M. et al.,
supra 47.
74
Bjorndal & Bolten, supra note 52, citing Meylan, A.B., & Donnelly, M., supra note 58.
75
Bjorndal & Bolten, supra note 52, citing Pandolfi JM et al., Global trajectories of the longterm decline of
coral reef ecosystems. 301 SCI. 955958 (2003), citing Mora C., A clear human footprint in the coral reefs of
the Caribbean, 275 PROC. R. SOC. B. 767773(2008)., citing Jones GP et al., Coral decline threatens fish
biodiversity in marine reserves, 101 PROC. NATL. ACAD. SCI. 82518253 (2004)., citing Wulff JL, Rapid
diversity and abundance decline in a Caribbean coral reef sponge community, 127 BIOL. CONSERV.167
176(2006).
76
Id.
77
Berube et al., supra note 65, citing BAILEY, J.A., PRINCIPLES of WILDLIFE MANAGEMENT, 384 (1984), citing
Seminoff, J.A., Jones, T.T. et al, Stable isotope discrimination (S13C and 515N) between soft tissues of the
green sea turtle Chelonia mydas and its diet, 308 MARINE ECOLOGICAL SERIES 271-278 (2006)., citing Cuevas,
E. et al., Spatial characterization of a foraging area for immature hawksbill turtles {Eretmochelys imbricata) in
Yucatan, Mexico, 28 AMPHIBIA-REPTILIA, 337-346 (2007)., citing Blumenthal, J.M. et al., supra 47.
71
16
B. Historical and Scientific Information on the Green Marine Turtles

Green Marine Turtles are named after the color of their fat. 78 They belong to the
genus and species, Chelonia mydas. Once they reached maturity, their shell length could be
more than 1 m., and have a body weight of more than 180 kg.79 They have a greenish to
brownish skin and shell.80 Their head and flippers are dark brown and covered with rough
and horny plates.81 These plates are bordered with white or brilliant yellow.82 Green Marine
turtles can be commonly found in all warm seas.83 There are also times during the summer
that they can be seen along the North Atlantic coasts of the U.S. and Europe.84
Unlike other sea turtles, Green Marine turtles are predominately herbivorous. 85
However, they are omnivorous during their oceanic phrase.86 In this time, they consume a
range of planktonic material including crustaceans, jellyfish and ctenophores.87 It is when
78
FUNK & WAGNALLS NEW WORLD ENCYCLOPEDIA, Green Turtle, 1 (2014).

Id.
80
Sea turtle, supra note 43.
81
Id.
82
Id.
83
Id.
84
Id.
85
Christopher D. Marshall et al., Scaling of bite performance with head and carapace morphometrics in green
turtles (Chelonia mydas), 451 JOURNAL of EXPERIMENTAL MARINE BIOLOGY and ECOLOGY 91 (2014).
86
Id., citing Bjorndal, K.A., Nutritional ecology of sea turtles, COPEIA 736751(1985), citing Bolten, A.B.,
Variation in sea turtle life history patterns: neritic versus oceanic developmental stages, in 2 THE BIOLOGY of
SEA TURTLES 243-257, (P. L. Lutz & J. A. Musick, 2003),
citing Musick, J.A. et al, Habitat utilization and migration in juvenile sea turtles, in THE BIOLOGY of SEA
TURTLES 137-163, (P. L. Lutz & J. A. Musick, 1997), citing Reich et al., supra note 52.
87
Marshall et al., supra note 85.
79
17
they recruit to neritic habitat that marine algae and sea grass will be on their diet.88 Aside
from it, they also consume mangrove leaves and shoots in some populations.89
All sea turtles are migratory and swim greatly during their lives.90 Green Marine
turtles are the fastest swimming turtles and could reach up to 32 km.91 Both male and female
sea turtles frequently migrate for over hundreds of kilometers every few years.92 After
hatching, they would go to offshore nursery areas.93 They would then continue with their
seasonal migrations between feeding and breeding grounds.94
Exploitation of sea turtles has been happening for a long period of time.95 Their
meat, like veal, is a table delicacy that is used for turtle soups and turtle steaks. 96 Also,
88
Id., citing Bjorndal, supra note 86, citing Mortimer J.A, The feeding ecology of the west Caribbean green
turtle (Chelonia mydas) in Nicaragua, 13 BIOTROPICA 4958 (1981), citing Seminoff, J.A. et al, Home range of
green turtles (Chelonia mydas) in a coastal foraging area in the Gulf of California, Mexico, 242 Mar. Ecol.
Prog. Ser. 253265 (2001).
89
Marshall, supra note 85, citing Limpus, C.J., Mangroves in the diet of Chelonia mydas in Queensland,
Australia, 89 MAR. TURT. NEWSL. 1315 (2000), citing Pendoley, K. et al, Browsing on mangroves by green
turtles in Western Australia. 84 MAR. TURTL. NEWSL. 80 (1999).
90
Erin Dougherty et al., Hydrodynamic stability in posthatchling loggerhead (Caretta caretta) and green
(Chelonia mydas) sea turtles, 113 ZOOLOGY 158 (2010), citing Musick, J.A. et al, Habitat utilization and
migration in juvenile sea turtles, in THE BIOLOGY of SEA TURTLES 137-159, (P. L. Lutz & J. A. Musick, 1997),
citing Bolten, A.B. et al., Transatlantic developmental migrations of loggerhead sea turtles demonstrated by
mtDNA sequence analysis., 8 ECOL. APP. 17 (1998), citing Plotkin, P., Adult migrations and habitat use, in 2
THE BIOLOGY of SEA TURTLES 243257, (P. L. Lutz & J. A. Musick, 2003), citing Bowen, B.W., et al.,
Conservation implications of complex population structure: lessons from the loggerhead turtle (Caretta
caretta), 14 MOLEC. ECOL. 23892402 (2005).
91
See note 78, supra.
92
Tyffen C. Read et al., Migrations of Green Turtles (Chelonia mydas) between Nesting and Foraging Grounds
across the Coral Sea, 9 PLOS ONE, 1 (2014), citing Benson SR, et al. Beach use, internesting movement, and
migration of leatherback turtles, Dermochelys coriacea, nesting on the north coast of Papua New Guinea, 6
CHELON CONSERV BIOL. 714 (2007) , citing Carr A, Rips, FADS, and little loggerheads, 36 BIOSCIENCe, 92
100 (1986), citing Mortimer JA & Portier KM, Reproductive homing and internesting behavior of the green
turtle (Chelonia mydas) at Ascension island; south Atlantic ocean, COPEIA, 962977(1989).
93
Dougherty et al., supra note 90.

Id.
95
Milani Chaloupka, Historical trends, seasonality and spatial synchrony in green sea turtle egg production,
101 Biological Conservation, 263 (2001), citing Frazier, J., Exploitation of marine turtles in the Indian Ocean, 8
HUMAN ECOLOGY 8, 329-370 (1980), citing Witzell, W.N., The origin, evolution and demise of the US sea
turtle, 56 MARINE FISHERIES REVIEW, 8-23 (1994).
96
Green tutle, supra note 78.
94
18
overexploitation of eggs and female turtles at nesting beaches has been prevalent.97 The
degradation of their marine and nesting habitats has also caused the decline in their
population.98 The practices above led to the enlistment of Green Marine turtles as endangered
on the International Union for Conservation of Nature (IUCN) Red List.99 As an effort for its
conservation, Green Marine Sea turtles are found in the Appendix I of the Convention on
International Trade in Endangered Species of Wild Fauna and Flora (CITES)100 and in the
Appendices I and II of the Convention on Migratory Species (CMS).101
III.
COMPREHENSIVE REVIEW OF THE RELEVANT PUBLIC INTERNATIONAL LAWS
A. Treaties in International Laws that Promote the Protection of Endangered

Species
The protection of endangered species can be considered as under the umbrella of a
broader environmental concern, which is the conservation of biological biodiversity.
Biological diversity is defined as the variability of life in all its forms, levels, and
combination.102 It is believed that the existing biological diversity now is at its maximum,
thus it is deemed to be non-renewable. 103 Degradation or destruction of it would be
irreplaceable.104 The perception that species require conservation under international law has
97
Read et al., supra 92, citing International Union for Conservation of Nature (IUCN) (2010) IUCN Red List of
Threatened Species, available at http://www.iucnredlist.org/search. (last accessed Nov.15,2014)
98
Id.
Id.
100
CITES, app.I.
101
IUCN, supra note 97.
102
PATRICIA BIRNIE & ALAN BOYLE, INTERNATIONAL LAW and the ENVIRONMENT, 550 (2nd ed. 2002).
103
Id. at 545.
104
Id.
99
19
been relatively new.105 It was only when particular species has been on the brink of extinction
due to over-exploitation that serious interest on the need to have legal obligations and
principles that would protect and conserve them was taken.106
There are six core biodiversity related conventions. 107 Conversely, only three
particularly relates to the protection and conservation of endangered species. This comprises
of the 1973 Convention on International Trade in Endangered Species of Wild Fauna and
Flora (CITES), 1979 Convention on the Conservation of Migratory Species of Wild Animals
(CMS), and the 1992 Convention on Biological Diversity (CBD). Each will be discussed in
the succeeding paragraphs.
Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES)
The Convention on International Trade in Endangered Species of Wild Fauna and
Flora (CITES) is undoubtedly considered as the most known international wildlife-related
convention worldwide.108 It has 178 parties when it was concluded in 1973.109 CITES does
not provide a universal framework that addresses the threats faced by vulnerable species, but
rather it maintains a focus on international trade.110 The prohibition and control of the
international trade of the species listed on its appendices has been its mode of ensuring their
survival.
105
Id. at 554.
Id.
107
Richard Caddell, Inter-Treaty Cooperation, Biodiversity Conservation and the Trade in Endangered Species,
22 RECIEL 266 (2013).
108
Ed Couzens, CITES at Forty: Never Too Late to Make Lifestyle Changes, 22 RECIEL 311 (2013).
109
Id.
110
Caddell, supra note 106.
106
20
CITES utilizes a listing approach using appendices, which classifies species based on
their conservation status and stipulates corresponding commitments.111 Parties are restricted
to trade species found in the said appendices unless it is in accordance with the said
provisions of the convention.112 CITES has three appendices. Species in Appendix I are all
those threatened with extinction that are or may be affected by trade.113 In addition, the trade
must be subject to particularly strict regulation in order not to endanger further their survival
and must only be authorized in exceptional circumstances.114 Then, Appendix II includes
species that although not necessarily threatened with extinction may become so unless trade
in specimens of such species is subject to strict regulation in order to avoid utilization
incompatible with their survival.115 Also, it addresses other species which must be subject
to regulation in order that trade in specimens of certain species may be brought under
effective control.116 Lastly, Appendix III provides for all species which any Party identifies
as being subject to regulation within its jurisdiction for the purpose of preventing or
restricting exploitation, and as needing the cooperation of other Parties in the control of
trade.
When the treaty took effect, sea turtles were among the first species to be listed on the
CITES Appendices.117 This list has since been critical in ensuring their survival.118 Hawksbill,
and Green Sea turtles have both been listed in Appendix I.119 This prohibits the international
111
Id.
Couzens, supra note 107 at 317.
113
Id.
114
Id.; CITES
115
Id.
116
Id.
117
Marydele
Donnelly,
Sea
Turtles
and
CITES,
available
at
http://seaturtlestatus.org/sites/swot/files/report/033111_SWOT6_p42-43_CITES.pdf (last accessed Nov.20,
2014).
118
Id.
119
CITES, app. I.
112
21
trade of the said turtles unless there is an exceptional case. All sea turtles are included in
Appendix I since 1981.120
Due to the increase in demand of trade of sea turtle and their products, proposals to
list them from Appendix I to Appendix II has been going on throughout the years.121 If
approved, this will allow the international trade of sea turtles and their products. During the
Fifth Conference of the Parties to CITES back in 1985, Suriname, France, the United
Kingdom, the Seychelles, and Indonesia were unsuccessful with their proposal to allow
hawksbill and green turtle trade.122 Cuba has been consistent with its efforts to reopen its sea
turtle trade with Japan.123 It proposed back in years 1997, 2000, and 2002.124 Although efforts
to reopen international trade of sea turtles have been strong, CITES Parties have consistently
rejected all proposals regarding the matter.125
CITES parties refer to States who bind themselves to the provisions of the
convention.126 At present, the treaty consists of 180 parties.127 A State can join the convention
by making a formal declaration of its intent to be bound by the provisions of CITES.128 The
formal declaration would be in writing addressed to the Depositary Government, which is the
Government of Switzerland.129 The convention enters into force for the State 90 days after the
Depositary received the document containing the States declaration. 130 Ratification,
acceptance, approval or accession refers to the process of making a declaration to be bound
120
Donnelly, supra note 117.

Id.
122
Id.
123
Id.
124
Id.
125
Id.
126
Member countries, Convention on International Trade in Endangered Species of Wild Faura and Flora,
available at http://www.cites.org/eng/disc/parties/index.php (last accessed Nov. 25, 2014).
127
Id.
128
Id.
129
Id.
130
Id.
121
22
by the provisions of CITES.131 Ratification, acceptance and approval are only applicable to
the States that signed the convention when it was open for signature.132 On the other hand,
accession is used to refer to States that did not sign the convention but bound themselves to
the convention.133
Both China and the Philippines are parties to the convention.134 China became a party
through accession on January 8, 1981.135 It then took force after the lapse of four months.136 In
the case of the Philippines, it became a party through ratification on August 8, 1981.137
Likewise with China, it took effect four months after.138 As mentioned earlier, being a party
to CITES means that the provisions of the said treaty bind both.
In case of dispute between two or more parties, Article XVIII of the convention
provides for resolution of disputes. It states that the Parties must negotiate first in case of
dispute regarding the interpretation or application of the provisions.139 In the incident that the
dispute cannot be resolved through negotiation, the Parties by mutual consent may submit the
dispute to arbitration to the Permanent Court of Arbitration at The Hague.140 The Parties shall
be then bound by the arbitral decision.141
Convention on Biological Diversity (CBD)
Under negotiation since 1998, the Convention on Biological Diversity has finally
been concluded on the eve of the UN Conference on Environment and Development in
131
Id.
Id.
133
Id.
134
List of Contracting Parties, supra note 40.
135
Id.
136
Id.
137
Id.
138
Id.
139
CITES, art.18.
140
Id.
141
Id.
132
23
1992.142 It can be considered as the first endeavor to deal with biodiversity protection in a
global scale. 143 Hence, it improved the scope of the current international standards for
conserving the earths biological diversity and ensuring its sustainable use.144 The convention
entered into force on December 29, 1993.145 Just after 8 years, it had 177 parties.146 Thus,
making it one of the most widely ratified environmental conventions.147
CBD is considered as a framework convention.148 Unlike in the CITES and CMS, it
has no appendices that classify species and designate priority activities based on it.149 Rather,
it endeavors to craft the framework of a regime for biodiversity protection.150 It sets guiding
principles that state parties are obligated to take it into account when developing national law
and policy.151 Furthermore, it does not only cover conservation of biological diversity per se,
but it also comprehends other diverse issues like sustainable use of biological resource and
access to genetic materials.152
The convention has three core objectives. It could be found under Article 1 of the said
convention, which provides: the conservation of biodiversity, sustainable use of its
components, and fair and equitable sharing of benefits arising out of the utilization of genetic
resources as objectives of the convention.153 These objectives are converted into binding
commitments in the fundamental provisions of the convention.154
142
BIRNIE & BOYLE, supra note 102, at 568.

ELLI LOUKA, INTERNATIONAL ENVIRONMENTAL LAW FAIRNESS, EFFECTIVENESS and WORLD ORDER 299
(2006).
144
BIRNIE & BOYLE, supra note 102.
145
Id.
146
Id.
147
Id.
148
LOUKA, supra note 143.
149
Caddell, supra note 107, at 270.
150
151
152
Id. at 568.
153
Convention on Biological Diversity, Jun. 6, 1992, art.1,1760 U.N.T.S. 79. [hereinafter CBD].
154
143
24
The preamble of the CBD serves as a guide to the parties intentions of adopting
particular measures.155 It can be said that the interpretational conclusions to be drawn from
the Preamble are as binding upon as those from any other part of the treaty. 156 The
controversial issue that has been undertaken by the preamble would be that the conversation
of biodiversity is a common concern of humankind. 157 The affirmation of this in the
preamble provides in a way a basis for international action if the approach would be
adopted.158 Being a common concern of all, all states including those non-party states can
discern and remark upon the actions of other states concerning the conservation of
biodiversity both within and beyond their jurisdiction.159
In addition, the convention stresses that states must preserve biodiversity as far as
possible and as appropriate through having measures that would protect it.160 In this context,
the convention puts biodiversity resources under national sovereignty.161 This is because of
the premise that biodiversity can be protected more efficiently at the national level.162
At present, the convention has 193 parties.163 Both the Philippines and China are
parties to the said convention.164 China signed the convention on May 11, 1992, but only
became a party on January 5, 1993.165 On the other hand, Philippines signed the convention
on June 12, 1992, but only became a party on August 10, 1993.166 Both became a party
155
Id. at 572.
Id., citing BROWNLIE, PRINCIPLES of PUBLIC INTERNATIONAL LAW (5th ed., Oxford, 1998).
157
158
Id.
159
Id.
160
LOUKA, supra note 143 at 300.
161
Id.
162
Id.
163
Convention on Biological Diversity, available at http://www.cbd.int/undb/media/factsheets/undb-factsheetcbd-en.pdf (last accessed Nov. 16, 2014).
164
List
of
Parties,
Convention
on
Biological
Diversity,
available
at
http://www.cbd.int/information/parties.shtml (last accessed Nov. 19, 2014).
165
Id.
166
Id.
156
25
through the process of ratification.167 The fact that both are parties meant that the provisions
of the convention bind both.
In case of dispute, Article 27 of the convention provides the dispute settlement
mechanism. When there are concerns with the interpretation or application of the convention,
the parties shall try to negotiate between themselves.168 However, if the parties cannot reach
an agreement, their next step is to seek mediation by a third party169. In the event that the
parties have still not yet come into an agreement, arbitration can be used as a resort.170 It will
have to be submitted to the International Court of Justice.171 In addition, Annex II of the
convention provides the detailed arbitration procedures.
Convention on the Conservation of Migratory Species of Wild Animals (CMS)
In 1979, the Bonn Convention on the Conservation of Migratory Species of Wild
Animals (CMS) was adopted.172 The objective of the convention is the conservation of
migratory species including birds, mammals, reptiles, and fish.173 The convention provides a
framework wherein states can co-operate in doing scientific research, restoring habitats, and
safeguarding the migration of species that are endangered.174 Endangered migratory species
are listed under Appendix I of the convention, which provides for their immediate protection.
175
167
Id.
CBD, art.27.
169
Id.
170
Id.
171
Id.
172
173
Id. at 300.
174
175
168
26
The convention obligates the States to guarantee that those listed in Appendix I are
provided with appropriate habitats.176 In addition, the parties are required to minimize the
circumstances that would prevent the migration of the species.177 Also, they should control
the factors that may endanger them.178
The convention also provides AGREEMENTS, which is the conclusion of formal
conservation.179 They are concluded among range states of species having an unfavorable
conservation status listed under Appendix II.180 Range states are any state that exercises
jurisdiction over any part of the range of that migratory species.181 Range states are listed in
the Convention. 182 It is the parties who provide which migratory species they consider
themselves in relation of Range state.
The AGREEMENTS must provide for the
conservation, restoration of habitats, and protection from disturbance.

There are various types of migratory species. There are those that migrate back in the
sea after stocking their breeds on the state.183 Examples for this would be seals, sea turtles,
and anadromous fish.184 Another kind would be those who travel between EEZs, and between
EEZSs and high seas.185 Tuna and whales belong to this type.186 Lastly, there are those that
live in border areas that usually are cross-jurisdictional boundaries like gorillas and
elephants.187
176
Id.
Id.
178
Id.
179
180
Id.
181
Convention of Migratory Species of Wild Animals, Nov.11, 1983, 1651 UNTS 333. [hereinafter CMS].
182
183
LOUKA, supra note 143, at 335.
184
Id.
185
Id.
186
Id.
187
Id.
177
27
The Bonn Convention has now 122 parties, which half of it comprises of developing
countries.188 Philippines have been a party since 1994.189 On the other hand, China is only a
range party to the convention.190
B. Rights and Obligations of States in Relation to its Exclusive Economic Zone

(EEZ) under UNCLOS
Specific Legal Regime
The Exclusive Economic Zone is a maritime territory of combined features of the
high seas and the territorial sea with a peculiar character as compared to other maritime
territories.191 Its legal regime is governed by the United Nations Convention on the Law of
the Sea (UNCLOS), particularly Part V Articles 55-75.192 As defined in Article 55 of the
aforementioned Convention,
The exclusive economic zone is an area beyond and adjacent to the
territorial sea, subject to the specific legal regime established in this Part,
under which the rights and jurisdiction of the coastal State and the rights and
freedoms of other States are governed by the relevant provisions of this
Convention.193
188
Catherine Redgwell, International Environmental Law, in INTERNATIONAL LAW 714 (3rd ed., 2010).
Parties and Range States, Convention on Migratory Species, available at http://www.cms.int/en/partiesrange-states (last accessed Nov. 30, 2014).
190
Id.
191
Adascalitei Oana, Exclusive Economic Zone the Concept of Suis Generis Area and its Implications for the
Legal Order of the Seas, 14 CONSTANTA MARITIME UNIVERSITY ACADEMIC JOURNAL 187, 187 (2013).
192
Id.
193
UNCLOS, art. 55.
189
28
It is an area not extending more than 200 nautical miles beyond the baseline.194 It is
suis generis area that is not under the sovereignty of the coastal State nor part of the high
seas. 195 Exclusive economic zone is a multi-purpose area where coastal States enjoy
sovereign rights with regard to economic resources and environmental protection. 196
However, the sovereign rights of the coastal State over the economic resources of the zone
are not in totality exclusive.197 The coastal States enjoy sovereign rights but not sovereignty
in plenary sense.198 This shall be further discussed later in the study.
The exclusive economic zone has three main legal elements: (1) the rights and
obligations which are recognized by the UNCLOS to the coastal States; (2) the rights and
obligations the Convention recognizes to other States; and (3) the formula provided by the
Convention for activities which do not fall within any of the preceding categories.199
Rights, Jurisdiction and Duties of Coastal States and other States within Exclusive
Economic Zone
According to Article 56 of the United Nations Convention on the Law of the Sea:
1. In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting,
conserving and managing the natural resources, whether living or nonliving, of the waters superjacent to the seabed and of the seabed and its
subsoil, and with regard to other activities for the economic
exploitation and exploration of the zone, such as the production of
energy from the water, currents and winds;
(b) jurisdiction as provided for in the relevant provisions of this
Convention with regard to:
(i) the establishment and use of artificial islands, installations
and structures;
194
Id. art. 57.

Oana, supra note 191, at 187; See The EEZ Regime: Reflections after 30 Years by Robert Beckman and Tara
Davenport, 6.
196
Id. citing DONALD R. ROTHWELL & TIM STEPHENS, INTERNATIONAL LAW of the SEA (2010).
197
1 E.D. BROWN BL LLM PHD, THE INTERNATIONAL LAW OF THE SEA VOLUME I INTRODUCTORY MANUAL,
220 (1994).
198
Oana, supra note 191, at 190.
199
Id. at 187.
195
29
(ii) marine scientific research;

(iii) the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this
Convention in the exclusive economic zone, the coastal State shall
have due regard to the rights and duties of other States and shall act in
a manner compatible with the provisions of this Convention.
3. The rights set out in this article with respect to the seabed and
subsoil shall be exercised in accordance with Part VI.200
The foregoing provisions grant rights and impose obligations on coastal States in
terms of exploration, exploitation, management and preservation of resources situated in the
zone.201 It provides that the sovereign rights of a coastal State are exclusive, not preferential
in the sense that the State does not have sovereignty over the EEZ but had all other rights
necessary for and related to exploration and exploitation of natural resources.202 The coastal
State has sovereign rights over three main resources, particularly the (1) non-living resources
on the seabed, subsoil and superjacent waters, (2) living resources of the seabed, subsoil and
superjacent waters; and (3) other economic activities related to economic exploitation and
exploration of the zone.203
It recognizes the sovereign rights of the coastal State which implies that it may take
legal actions to enforce the laws and regulations it has adopted with regard to the exploration,
exploitation, management and preservation of living resources.204 It further indicates that
States may adopt own management measures to prevent over-exploitation of those resources
situated in the EEZ.205 However, as opposed to what the term exclusive suggests, these
200
UNCLOS, art. 56.

JOAQUIN G. BERNAS, S.J., INTRODUCTION TO PUBLIC INTERNATIONAL LAW, 128 (2009).
202
Beckman & Davenport, supra note 195, at 7 citing 1956 ILC Draft Articles concerning the Law of the Sea
with Commentaries, Yearbook of the International Law Commission, Volume II, UN Doc. A/3159 (1956) at 297
203
UNCLOS, art. 56.
204
205
Id.; LORI FISLER DAMROSCH & SEAN D. MURPHY, INTERNATIONAL LAW CASES AND MATERIALS, 1401 (6th ed.,
2014)
201
30
rights are not exclusive in the sense that such rights are ought to be exercised in consideration
of the limitations posed by the rights and obligations to share with other States and
environmental duties.206
According to Article 61 of the United Nations Convention on the Law of the Sea, the
coastal State shall ensure proper conservation and management measures to maintain the
living resources in the exclusive economic zone and that they are not endangered by overexploitation. 207 Coastal States are obliged to promote optimum utilization of the living
resources in the EEZ, as well as to determine the allowable catch of living resources.208 They
must maintain these resources at maximum sustainable yield.209 Maximum sustainable yield
pertains to the point at which rate of harvest is matched by the rate of growth in the
population of living resources reaching harvestable stage.210 In terms of interaction with other
States, coastal State shall allow maximum foreign States to access whatever surplus the
coastal State cannot harvest from the allowable catch.211 The nationals of such foreign States
must also comply with the conservation measures and other regulations established by the
coastal State that are consistent with the other provisions of the Convention.212 Such measures
and regulations must be duly provided by the coastal State.213
In the case that the exclusive economic zone of a coastal State overlaps with the
exclusive economic zone of another, same stock or stocks of associated species shall be
206
Brown, supra note 197, at 220, 234.

UNCLOS, art. 61.2.
208
Id. art. 61.1.
209
Id. art 61.3; Bailey III, infra note 210.
210
James E. Bailey III, The Exclusive Economic Zone: Its Development and Future in International and
Domestic Law, 45LA. L. REV. 1277 (1985), citing 59. H. Knight, Managing the Sea's Living Resources, 8
(1977).
211
UNCLOS, art. 62.2.
212
Id. art 62.4.
213
Id. art. 62.5.
207
31
subject to stipulation of involved States on utilization duties and conservation and

development measures of such stocks. 214 With regard to highly migratory species, the
UNCLOS provides that involved States shall stipulate on conserving and promoting the
optimum utilization of such species throughout the region, may it be either within or beyond
the exclusive economic zone. 215 States throughout the region may coordinate with
international organizations in ensuring the actualization of this work.216
For geographically disadvantaged States of the same region or subregion, they hold
the right to take part on the exploitation of an appropriate part of the surplus of living
resources on equitable basis, as long as it is exercised in compliance with the provisions of
the Covenant. 217 As in the case of developed geographically disadvantaged States, the
foregoing rights must be exercised in accordance to the stipulation of developed coastal
States only for the benefit of communities with habitual fishing activities.218
Moving forward to the provisions of the UNCLOS on protection and preservation of
the marine environment, it states that the conduction of which is a general obligation, in the
sense that exploitation is allowed up to the extent allowed by environmental policies.219 The
focus of this Part of the UNCLOS is on the pollution activities prohibited. For the protection
of marine biological diversity, it is merely provided that necessary measures ought to be
taken to protect and preserve rare or fragile ecosystems, the habitat of depleted, threatened or
endangered species, and other forms of marine life.220
214
Id. art. 63.1.

Id. art. 64.1.
216
Id. art. 64.1.
217
Id. art. 70.1.
218
Id. art. 70.5.
219
Id. art. 192; 193.
220
Id. art. 194.5.
215
32
In reference to the rights of the coastal States to enforce rules and measures for
exploration, exploitation, conservation and management of living resources over foreign
States, coastal States may employ means of boarding, inspection, arrest and judicial
proceedings.221 However, the Convention states that in the case of arrest of vessels and crews,
they shall be promptly released once a reasonable bond or other security has been posted.222 If
the detaining State does not comply with the prompt release rule of the Convention, the flag
State may submit a question of release from detention to a tribunal or court accepted by both
States; otherwise, it may be submitted to the International Tribunal for the Law of the Sea.223
The penalties of coastal States for violations of fisheries laws and regulations shall not
include imprisonment, in the absence of a stipulation to the contrary by involved States.224
As the exclusive economic zone is deemed to be a controversial area under the realm
of international law, 225 the UNCLOS provides for compulsory binding dispute settlements
under Part XV in terms of disputes regarding the interpretation and application of the Article
58 on rights and duties of other States in the EEZ. Moreover, States are obliged to settle it
through peaceful means, as in compliance with the provisions of the Charter of the United
Nations.226 The UNCLOS provides for the resolution of conflicts between States regarding
their attributed rights and jurisdictions in the exclusive economic zone, as well as for cases
where the Convention does not attribute such rights or jurisdiction. The UNCLOS provides
for the consistent stipulation that in the exercise of rights and jurisdiction, States must have
due regard to the rights and obligations of other States and its acts shall be compatible with
221
Id. art. 73.1.

Id. art 73.2.
223
Id. art. 292.1; DAMROSCH & MURPHY, supra note 205, at 1406-1407.
224
Id. art. 73.3.
225
226
See UN CHARTER art. 2.3.
222
33
the provisions of the UNCLOS. For instance, a coastal States fishery interests may be in
conflict with another States interest in laying submarine cables along the EEZ.227 Other
States must also abide by the laws and regulations of the coastal State in accordance with the
provisions of the UNCLOS and rules of international law. In terms of laws and regulations
where the coastal State has no jurisdiction under the UNCLOS, other States are not mandated
to comply, as the jurisdiction of coastal States is noted in the aforementioned Article 56 of
the UNCLOS.228 In the case of conflict regarding rights and jurisdiction not attributed to
States, such must be resolved on the basis of equity and with consideration of the respective
importance of the interests to involved parties and international community.229 This particular
provision of the Convention on the resolution of conflicts over non-attributed or residual
rights acknowledges the sui generis nature of the exclusive economic zone and signifies that
such may have other uses that are not within the scope of rights and jurisdictions attributed to
States.230 Moreover, there is no presumption in favour of either the coastal State or other
States.231 These interests to be considered and other possible uses, however, are not explicitly
defined by the Convention. The suggested uses would be the conduct of military exercises,
construction of military structure, and recovery of archaeological and historical objects.232
Another important measure of resolving disputes regarding the EEZ is to seek advisory
opinion from the International Tribunal for the Law of the Sea (ITLOS).233
Consequently, coastal States and other States hold mutual obligations of due regard in
exercising their rights, jurisdiction, and duties in the EEZ. It is a way of preventing
227
BROWN, supra note, at 198.

Beckman & Davenport, supra note 196, at 11.
229
UNCLOS, art. 59.
230
BROWN, supra note 197, at 239.
231
232
BROWN, supra note 197, at 239-244.
233
228
34
infringements of freedoms in the EEZ. This is in recognition of the general need for
accommodation of uses.234 The balancing of the given provisions on rights, jurisdiction, and
duties of States is an encompassing manifestation of the suis generis character the exclusive
economic zone has.
C. Discussion on the Precautionary Principle and its Applicability in

Environmental Issues
Principles serve as considerations that aid decision-makers on selecting a particular
course of action.235 The Precautionary Principle is considered as a rule of conduct in the field
of environmental protection that takes into account the uncertain likelihood and gravity of an
environmental damage before adopting any decision.236 Under the said principle, failing to
take preventive action cannot be justified by the absence of certainty in times where the best
information available reveals that there are reasonable grounds to believe that deplorable
environmental harm may be caused by an action.237 Due to the limitations of science in
assessing complex and uncertain environmental risks, Precautionary Principle came into the
234

Llus Paradell-Trius, Principles of International Environmental Law: an Overview, 9 RECEIL, 96 (2000).
236
Diana Anca et al., The Insertion of the Precautionary Principle in the Environment Protection as a Legal
Norm in the European Union Countries, 4 CONTEMPORARY READINGS IN LAW & SOCIAL JUSTICE, 489(2012).
237
Arie Trouwborst, The Precautionary Principle and the Ecosystem Approach in International Law:
Differences, Similarities and Linkages,18 RECIEL, 18(1), 34 (2009).
235
35
field of environment policy.238 It has now become an essential legal principle in international
environmental law.239
The purpose of the Precautionary Principle is the adequate protection of the
environment for the good of both humankind and the environment itself.240 It involves taking
preventive action at an early stage when there are threats to the environment. The benefit of
the doubt is given to the environment.241 The presence of reasonable grounds from the best
information available that an action would cause irreversible environmental harm is
sufficient reason to take preventive action.242
In June of 1992, the Precautionary Principle gained international recognition
through three adopted documents during the Summit of the Earth in Rio de Janeiro also
referred to as the United Nations Conference on Environment and Development. 243 These
documents are Rio Declaration on Environment and Development, Convention on Biological
Biodiversity, and the United Nations Framework Convention on Climate Change. 244
It was in the Rio Declaration on Environment and Development that the
Precautionary Principle was first mentioned in international environmental law.245 Article 15
of the said convention provides: In order to protect the environment, the precautionary
approach shall be widely applied by States according to their capabilities. Where there are
238
Nicolas de Sadeleer, The Precautionary Principle as a Device for Greater Environmental Protection:
Lessons from EC Courts, 18 RECIEL 4 (2009).
239
Monika Ambrus, The Precautionary Principle and a Fair Allocation of the Burden of Proof in International
Environmental Law, 21 RECIEL 261(2012).
240
Trouwborst, supra note 237, at 27.
241
Id.
242
Id.
243
Artene et al., supra note 235, at 490.
244
Id.
245
Ambrus, supra note 239, at 259.
36
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.246
Subsequently, it was cited on the Preamble of the Convention of Biological Diversity,
which states that: Where there is a threat of significant reduction or loss of biological
diversity, lack of full scientific certainty should not be used as a reason for postponing
measures to avoid or minimize such a threat. 247
Then, it was also coined in The United Nations Framework Convention on Climate
Change under Article 3 paragraph 3, which states that: The Parties should take
precautionary measures to anticipate, prevent or minimize the causes of climate change and
mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of
full scientific certainty should not be used as a reason for postponing such measures, taking
into account that policies and measures to deal with climate change should be cost-effective
so as to ensure global benefits at the lowest possible cost. To achieve this, such policies and
measures should take into account different socio-economic contexts, be comprehensive,
cover all relevant sources, sinks and reservoirs of greenhouse gases and adaptation, and
comprise all economic sectors. Efforts to address climate change may be carried out
cooperatively by interested Parties. 248
Precautionary Principle has become an influential concept in contemporary
international law on environmental protection. 249 The application of the precautionary
principle is believed to be vital in effectively conserving natural resources and biological
246
Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I).

Convention on Biological Diversity, Jun.6, 1992, 1760 U.N.T.S.79 [CBD].
248
United Nations Framework Convention on Climate Change, June 12, 1992 (1994), S. Treaty Doc No. 10238, 1771 U.N.T.S. 107.
249
247
37
diversity.250 Aside from its original context of environmental regulation, the application and
consideration of the precautionary principle has also now been adapted in various range of
issues like food supply and child safety. 251 It can be found in at most 60 multilateral
environmental treaties, various political declarations, resolutions and action programs to date.
252
Based on case law, the Precautionary Principle can be either invoked as an obligation
or as a justification.253 In the Pulp Millis case, the Precautionary Principle took the form of an
obligation when it was invoked by Argentina against Uruguay.254 The former alleged that the
latter had acted against the Precautionary Principle by operating on the mills on the Uruguay
River.255 The Court held that Uruguay was under the obligation to stop the operation of the
mills for it could cause significant damage to the river. 256 On the other hand, the
Precautionary Principle took the form of justification in the Gabcikovo-Nagymaros case.257 In
the case, Hungary used the Precautionary Principle to justify its non-compliance with its
treaty obligations with Czechoslovak Republic.258 However, the Court did not accept its
justification.259 For Hungarys violations of treaty obligations be justified, the Court said it
had to prove that the compliance with these treaty obligations would have caused harm to the
environment.260
250
Id.
Mike Feintuck, Precautionary Maybe, but What's the Principle? The Precautionary Principle, 32 JOURNAL
of LAW and SOCIETY, 375 (2005).
252
253
Ambrus, supra note 239, at 262.
254
Id.; Pulp Mills on the River Uruguay (Argentina v. Uruguay), [2010] ICJ Rep. 14 (Pulp Mills).
255
Id.
256
Id.
257
Id.; Gabckovo-Nagymaros Project (Hungary v. Slovakia), [1997] ICJ Rep. 7 (Gabckovo-Nagymaros).
258
Id.
259
Id.
260
Id.
251
38
As illustrated by the cases, principles like the Precautionary Principle guide the courts
and tribunals in interpreting international rules and obligations. Despite the guidance that
principles provide, it would be better if they acquire legal status for them to have a bigger
bearing in decisions. The reality is that it is difficult to give the general definition of the legal
status of environmental principles.261 The primary reason for this is the fact that principles
may be derived from soft law documents, which is the most traditional source of
principles.262 The Stockholm Declaration and the Rio Declaration are prime examples of the
reliance of the international environmental law-making process on soft law.263 Soft law is
often referred to as having lack of precision, open-endedness, and lack of enforceability.264 It
can be defined as a convenient description for a variety of non-legally binding instruments
used in contemporary international relations by States and international organizations. 265
This view of soft law can be distinguished with hard law, which is always binding.266
Some writers and governments contended that the precautionary principle has become
part of customary international law.267 However, some courts and governments are still
tentative to accept this notion.268 It was observed that some applications of precautionary
principle are already embodied within the concepts of state responsibility.269 The ILC special
rapporteur on transboundary harm concluded that, Precautionary Principle is already a part
261
Paradell-Trius, supra note 235, at 94.

Id.
263
Paradell-Trius, supra note 235, at 95.
264
Jean DAspremont & Tanja Aalberts, Which Future for the Scholarly Concept of Soft International Law?
Editors Introductory Remarks, 25 LEIDEN JOURNAL of INTERNATIONAL LAW 311(2012).
265
Alan Boyle, Soft Law in International Law-Making, in INTERNATIONAL LAW 124 (3rd ed. 2010).
266
Id.
267
Boyle, supra note 265, at 133.
268
Id.
269
Id., citing BROWNLIE, PRINCIPLES of PUBLIC INTERNATIONAL LAW, 278 (7th ed., 2008).
262
39
of customs. The European Court shares the same view on Precautionary Principle when it
held that it evolved from a soft law to a legal norm.270
D. Discussion on Obligations Erga Omnes and its Applicability in

Environmental Issues
The idea of obligatio erga omnes was first expressed in the international community
by the International Court of Justice (ICJ) when rendering its decision on the 1970 Barcelona
Traction Case.271 Obligatio erga omnes was defined as obligations of a State towards the
international community as a whole.272 Furthermore, this type of obligations was referred to
as a concern of all States.273 Hence, all States can have a legal interest in the protection of
the rights involved because of its importance.274 In the said case, the ICJ also recognized five
obligatio erga omnes, which comprise of the prohibitions of aggression, genocide, slavery,
racial discrimination, and the right to self-determination.275
In environmental context, obligatio erga omnes has been rarely used. 276 It was
invoked by New Zealand and Australia against France in the 1974 Nuclear Tests cases when
they alleged that France nuclear testings interfered with the high seas freedom of all states.277
However, it was the unilateral declaration made by France that resolved the case.278 Hence,
the Court had not given a decision on whether obligatio erga omnes is applicable in the case.
Furthermore, obligatio erga omnes was also mentioned in the dissecting judgment of Judge
270
DONALD ANTON & DINA SHELTON, ENVIRONMENTAL PROTECTION and Human Right, 85 (2001).
Brian D. Lepard, CUSTOMARY INTERNATIONAL LAW A NEW THEORY with PRACTICAL APPLICATIONS, 261
(2000).
272
Id.
273
Id.
274
Id.
275
Bingyu Liu, Pros and Cons of the Obligation to Conserve Biodiversity as Obligation Erga Omnes, 6
INTERNATIONAL REVIEW of SOCIAL SCIENCES and HUMANITIES 265 (2014).
276
BIRNIE & BOYLE, supra note 102 at 99.
277
Id.; Nuclear Tests (New Zealand v. France),Judgment, I.C.J. Reports 1974, p. 457.
278
Id.
271
40
Weeramantry in the Gabcikovo-Nagymaros case.279 He held that sustainable development as

obligatio erga omnes.280
One of the challenges regarding the concept of obligatio erga omnes is its vagueness
when mentioned in the Barcelona Traction Case.281 A theory was developed by Brian Lepard
to help with this dilemma.282 According to his theory, three requisites must be cleared to
consider a norm as obligatio erga omnes. First, States must believe that the norm creates an
obligation actually owed to all other states based on the content of the norm.283 Then,
States must believe that every state has the right to bring legal action for the violation of the
norm. 284 Lastly, States must reasonably believe that the norm is consistent with
fundamental ethical principles.285
As implied in its very own definition, obligatio erga omnes are closely associated
with issues of common concern.286 One of the consequences of identifying a subject as
common concern of humanity is that it would most likely gives rise to obligatio erga
omnes.287 Issues of common concern can be described as those that deal beyond the borders
of a single state and involve a cooperative action in response.288 These issues could not be
resolved just by one state nor the benefits from it could also be received exclusively.289 This
suggests that common concerns can occur within or outside ones sovereign territory.290
However, there is a view that only grave crimes listed by the International Law
279
BIRNIE & BOYLE, supra 276.

Id.
281
LEPARD, supra note 271, at 28.
282
Id.
283
Id.
284
Id.
285
Id.
286
Dinah Shelton, Common Concern of Humanity, 1 IUSTUM AEQUUM SALUTARE, 34(2009).
287
Id. at 39.
288
Id. at 34.
289
Id.
290
Id. at 35.
280
41
Committee that have serious damage to the human beings like the prohibition of genocide,
slavery, and aggression fit the common concern that is addressed by obligatio erga omnes.291
Furthermore, the same view says that the obligations that has already protected in the UN
Charter like right to self-determination are also considered as common concern with regards
to obligatio erga omnes.292
On the other hand, many believed that the characteristics of common concern suit the
very essence of environmental concerns. Issues regarding the environment cannot be
managed properly by lone efforts of a single state. 293 It was in international treaties
concerning the exploitation of shared natural resources that the term common interest was
first coined.294 In its preamble, the International Convention for the Regulation of Whaling
states that, interest of the world in safeguarding for future generations the great natural
resources represented by the whale stocks.295 From then on, the recognition of environment
as a common concern has further been used in other treaties. The 1959 Antarctic Treatys
preamble upholds that, it is in the interest of all mankind that Antarctica shall continue
forever to be used exclusively for peaceful purposes.296 Moreover, the concept of common
concern was also used in some of the most known environmental treaties. The 1979 Bonn
Convention on the Conservation of Migratory Species of Wild Animals (CMS)
acknowledges it in its preamble as it states, wild animals in their innumerable forms are an
irreplaceable part of the earths natural system which must be conserved for the good of
mankind ...[E]ach generation of man holds the resources of the earth for future generations
291
Liu, supra note 206, at 267.

Id.
293
Shelton, supra note 286, at 35.
294
Id.
295
Id.
296
Id. at 36.
292
42
and has an obligation to ensure that this legacy is conserved and, where utilized, is used
wisely.297 In addition, the 1992 Convention on Biological Diversity (CBD) also affirms the
principle of common concern when it states, the conservation of biodiversity is a common
concern of humankind.298 In that context, the common concern would be the conservation of
biodiversity and its adverse effects.299
The universal character and the need for common action by all states to protect it are
the two main features that classify biological diversity as common concern. 300 The
classification of biological diversity as common concern makes issues related to it as
legitimate object of international regulation and supervision301. In effect, the reserved domain
of domestic jurisdiction regarding the matter can be disregarded. Nonetheless, for the
obligation to have a real erga omnes character, the international community should be able to
make an individual state comply with their obligations through institutions, treaties or
General Assembly resolution with supervisory powers.
E. Prevention of Harm Principle and its Applicability in Environmental Issues
Although the prevention of harm principle originated from the Trail Smelter
arbitration, it was in the 1972 Stockholm Declaration that the duty to prevent extraterritorial
environmental harm was most famously stated. 302 It provides that the state has the
responsibility to ensure that activities within its jurisdiction or control do not cause damage
297
Id.
Id. at 37.
299
Id.
300
BIRNIE & BOYLE, supra 102 at 97.
301
302
ANTON & SHELTON, supra 270, at 80.
298
43
to the environment of other States or areas beyond the limits of national jurisdiction.303 The
principle requires the state to prohibit activities that would cause a great harm to the
environment. 304 The principle seeks to avoid harm whether or not it would cause
transboundary harm.305 It is because environmental damage, like extinction of species, is
irreversible.306
In the Trail Smelter arbitration, only transboundary harm to other states was dealt.307
It was in the latter conventions that included the global common areas.308 It was used in
several treaties like on the Convention on Biological Diversity (CBD), and UN Climate
Change Convention.309 In addition, it was also applied in the UN Convention on Law of the
Sea (UNCLOS) when it called for states to prevent pollution spreading beyond their
territory.310 Furthermore, the UN General Assembly also said that states must not produce
significant harmful effects in zones situated outside their national jurisdiction. 311Thus, this
shift in perspective makes the obligation benefit the international community as a whole.312
Moreover, the prevention of harm principle has also been used in the law making process.313
It recognized that the duty of the states to take suitable preventive measures to protect the
environment. The prevention of harm principle has then been declared as part of customary
international law by the International Court of Justice.314
303

ANTON & SHELTON, supra note 270, at 81.
305
Id.
306
Id.
307
308
309
Id.
310
311
Id.
312
Id.
313
Id.
314
ANTON & SHELTON, supra note 270.
304
44
F. Intergenerational Equity Principle and its Applicability in Environmental

Issues
There are three fundamental facts that the Intergenerational Equity Principle
acknowledges, which are:
(a)
[H]uman life emerged from, and is dependent on, Earths natural
resource based, including its ecological processes, and is thus inseparable
from environmental conditions;
(b)
[H[uman beings have a unique capacity to alter the environment on
which life depends; and
(c)
[N]o generation has a superior claim to Earths resources, because
human did not create them but inherited them.315
These facts give rise to the obligation of the current generation to take care of the
planet for the future generations to come.316 The principle gives the current generation the
responsibility to use and develop the current heritage from ones ancestors in a manner that it
can be passed on the future generations.317 Thus, the present generation must minimize and
prevent causing irreversible damage to the environment. 318
Their implications transpired from the intergenerational equity principle.319 The first
would be that conservation of the biodiversity of the natural and cultural resource should be
done by each generation to satisfy the needs of the future generation.320 Second, the quality of
ecological processes to be passed on should be the comparable to the present ones.321 Lastly,
315
Id. at 91.
Id.
317
318
ANTON & SHELTON, supra note 270, at 92.
319
Id.
320
Id.
321
Id.
316
45
the past and present cultural and natural heritage should be safeguarded for the future
generations.322
The intergenerational equity principle was reflected in the International Convention
for the Regulation of Whaling when it acknowledged the need to save preserve whale stock
for future generations.
323
Moreover, the principle was again used in the 1992 Rio
Declaration, which provides that the development and environmental needs of present and
future generations must be equally met.324 The 1992 Convention on Climate Change also
calls for the parties in the convention to use the intergenerational equity principle as a factor
when making decisions. 325 The integration of the intergenerational equity with these
declarations shows that the protection of the environment for future generations has now
been an importance aspect in international policy.326
IV. STATE RESPONSIBILITY

States are answerable for breaches of international law under the principles of state
responsibility. 327 State responsibility arises from the commission of an internationally
wrongful act.328 An internationally wrong is an action or omission that is attributable to a
State under international law, and a breach of the international obligations of the State.329
The breach of international law would depend on the obligations of the State arising from
322
Id.
BIRNIE & BOYLE, supra 102, at 89.
324
Id.
325
Id.
326
Id.
327
MALCOLM SHAW, INTERNATIONAL LAW, 853(6th ed., 2008).

328
James Crawford & Simon Olleson, The Nature and Forms of International Responsibility, in
INTERNATIONAL LAW 451(6th ed, ,2010).
329
Report of the International Law Commission on the work of its 53rd Session, art. 2 UN Doc
A/56/10(2001). [hereinafter ARSIWA]
323
46
treaties, customary laws, and other sources.330 Claims can be made by the injured state against
the violating state for such breaches either by diplomatic action or by recourse to
international mechanisms.331 Once the needed jurisdictional basis has been proven, resorting
to go to an international arbitration or to the International Court of Justice is an option.332
The rules on attribution give specific actors whose actions would be attributable to the
State.333 Generally, only the conduct of its organs or officials would be attributable to the
State.334 However, the acts or omissions of any State organ or of persons or entities exercising
governmental authority would only be attributable to the State if they are acting within their
authority even if the action is ultra vires.335 On the other hand, purely private acts would not
entail State responsibility.336 However, there are certain instances when the State can be liable
for its failure to prevent those acts, and punish the individuals involved.337 In this context, the
responsibility arises from the States failure to prevent the acts rather than from the acts of
the private individuals themselves.338 In the Tehran Hostages case, it was held that Iran
breached its international obligation to protect the embassy and consular premises together
with its personnel when the militants attacked and took the Americans as hostages.339 It was
also held in the case that the responsibility of Iran was due to the inaction and failure to take
appropriate steps by their authorities.
330
Crawford & Olleson, supra note 328, at 446.

SHAW, supra note 327.
332
Id.
333
Crawford & Olleson, supra note 328 at 452.
334
Crawford & Olleson, supra note 328, at 453, citing CRAWFORD J, THE INTERNATIONAL LAW COMMISSIONS
ARTICLES on STATE RESPONSIBILITY; INTRODUCTION, TEXT and COMMENTARIES 94-99(2002).
335
ARSIWA, art.7.
336
Crawford & Olleson, supra note 328.
337
Id.
338
Crawford & Olleson, supra note 207, at 454.
339
Id., citing United States Diplomatic and Consular Staff Tehran, Judgment, ICJ Reports 1980,p3,para 63.
331
47
In environmental cases, responsibility normally stems from either the breach of

customary obligations or treaties.340 In its advisory opinion to the UN General Assembly
regarding the Legality or Threat of Use of Nuclear Weapons, the Court asserted that
environmental international law now involves the general obligations of states to guarantee
that the activities within their jurisdiction and control respect the environment of other states
or areas beyond the national control.341 This has been affirmed in the UN Law of the Sea
(UNCLOS), wherein it provides that, states have the obligation to protect and preserve the
marine environment and that states shall take all measures necessary to ensure that
activities under their jurisdiction and control are so conducted as not to cause damage by
pollution to other states and their environment.342 In general, States must guarantee that their
international obligations are being followed in their territory. The State may be held liable for
the actions of private individuals who acted against the States international obligations.343
For instance, the State entered into a treaty that limits the emissions of a certain substance.344
In the event that any activity exceeded that limit, the State would be held liable for it even if
private individuals caused it.345
V.
INTERNATIONAL COURTS
International Court of Justice
340

SHAW, supra note 327.
342
Id. at 853.
343
Id. at 899.
344
Id.
345
Id.
341
48
The International Court of Justice (ICJ) is the principal judicial organ of the United
Nations (UN).346 It was established in June of 1945 by the Charter of the United Nations as a
successor to the Permanent Court of International Justice.347 It came into being through the
Statute of the Court and assumed its function in April of 1946.348 Its seat is at the Peace
Palace in The Hague (Netherlands).349
The role of the International Court of Justice is to settle, in abidance with
international law, legal disputes submitted to it by States. It is also the role of the Court to
provide advisory opinions on legal queries referred to it by authorized United Nations organs
and specialized agencies.350 The Court may have jurisdiction over States that are members of
the United Nations when such is accepted by States.351 This is due to the fact that all members
of the United Nations are ipso facto parties to the Statute of the International Court of
Justice. 352 The acceptance of jurisdiction by States is necessary before corresponding
international courts may handle the cases they submitted. Moreover, States hold the power to
set restrictions, conditions, and reservations with regard to the types of disputes they would
like to be subjected to international courts.353
The Court has two types of jurisdiction, namely compulsory or contentious
jurisdiction and advisory jurisdiction.354 The first type of jurisdiction, called the compulsory
jurisdiction, means that international legal disputes may be submitted to the Court for as long
346
See, Statute of the International Court of Justice, available at http://www.icj-

cij.org/court/index.php?p1=1 /, June 26, 1945, 59 Stat. 1055, 3 Bevans 1179 [hereinafter ICJ Statute]),
available at http://www.icj-cij.org/court/index.php?p1=1 (Nov. 30, 2014).
347
BERNAS, S.J., supra note 201, at 271.
348
Id.
349
Statute of the International Court of Justice, supra note at 346.
350
Id.
351
Id.; BERNAS, S.J., supra note 201, 271.
352
Id.
353
Id.
354
See Dispute Settlement, United Nations Conference on Trade and Development, available at
http://unctad.org/en/docs/edmmisc232add19_en.pdf (last accessed Nov.24, 2014).
49
as the involved States gave consent to the Court for a binding decision.355 The second type of
jurisdiction, called advisory jurisdiction, pertains to questions referred to the Court by the
General Assembly, the Security Council or other organs and specialized agencies of the
United Nations.356 In addition, the International Court of Justice has mainline jurisdiction and
incidental jurisdiction. The former refers to miscellaneous and interlocutory matters;
whereas, the latter pertains to the power of the Court to provide a binding decision on the
substance and merits of a case placed before it.357
China did not accept the compulsory jurisdiction of the International Court of Justice
despite it being a member of the United Nations. The compulsory jurisdiction pertains to the
right of States to bring any one or more States, which similarly accepted the compulsory
jurisdiction of the Court, by filing an application instituting proceedings with the Court.358
This is supplementary to the cardinal principle in international courts which means States
cannot be compelled to submit disputes to international adjudication without its consent
before or after the dispute emerged.359 If they have consented to the compulsory jurisdiction,
States shall subject itself to the jurisdiction of the Court if the dispute submitted falls within
its scope as stated in Article 36, paragraph 1 of the Statue of the Court (ICJ),
1. The jurisdiction of the Court comprises all cases which the parties refer to
it and all matters specially provided for in the Charter of the United Nations or
in treaties and conventions in force.360
355
Id.
Id.
357
Id.
358
See Jurisdiction, International Court of Justice, available at http://www.icj-
cij.org/jurisdiction/?p1=5&p2=1&p3=3 (last accessed Nov. 25, 2014).
359
Stanimir A. Alexandrov, The Compulsory Jurisdiction of he International Court of Justice: How
Compulsory Is It? 5 CHINESE J. INTL L. 29 (2006).
360
Statute of the International Court of Justice, art. 36.1.
356
50
China initially deposited its recognition of the compulsory jurisdiction of the

International Court of Justice on October 26, 1946 through the Secretary-General of the
aforementioned State. However, in December 5, 1972, the incumbent government of China
through its Secretary-General made a statement indicating that it does not acknowledge the
former statement made by the defunct Chinese government in relation to Article 36,
paragraph 2 of the Statute of the International Court of Justice. This particular provision is as
follows:
2. The states parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in relation
to any other state accepting the same obligation, the jurisdiction of the Court
in all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a
breach of an international obligation;
d. the nature or extent of the reparation to be made for the breach of an
international obligation.361
The Philippines, on the other hand, is a member of the United Nations and
expressed its acceptance of the compulsory jurisdiction of the International Court of Justice
on December 23, 1971 under the administration of former President Carlos P. Romulo. The
said declaration of the Philippines provides that it shall remain in force until notice of
termination is given to the Secretary-General of the United Nations.362 The declaration is as
follows:
18 January 1972
"I, Carlos P. Romulo, Secretary of Foreign Affairs of the Republic of the
361
Id.
See Charter of the United Nations and Statute of the International Court of Justice, available at
https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=I-4&chapter=1&lang=en#EndDec
362
51
Philippines, hereby declare, under Article 36, paragraph 2, of the Statute of the
International Court of Justice, that the Republic of the Philippines recognizes
as compulsory ipso facto and without special agreement, in relation to any
other State accepting the same obligation, the jurisdiction of the International
Court of Justice in all legal disputes arising hereafter concerning: "(a) The
interpretation of a treaty; "(b) Any question of international law; "(c) The
existence of any fact which, if established, would constitute a breach of an
international obligation; "(d) The nature or extent of the reparation to be
made
for
the
breach
of
an
international
obligation;
Provided, that this declaration shall not apply to any dispute: "(a) In
regard to which the parties thereto have agreed or shall agree to have recourse
to some other method of peaceful settlement; or "(b) Which the Republic of
the Philippines considers to be essentially within its domestic jurisdiction;
or "(c) In respect of which the other party has accepted the compulsory
jurisdiction of the International Court of Justice only in relation to or for the
purposes of such dispute; or where the acceptance of the compulsory
jurisdiction was deposited or ratified less than 12 months prior to the filing of
the application bringing the dispute before the Court; or "(d) Arising under a
multilateral treaty, unless (l) all parties to the treaty are also parties to the case
before the Court, or (2) the Republic of the Philippines specially agrees to
jurisdiction; or "(e) Arising out of or concerning jurisdiction or rights
claimed or exercised by the Philippines: "(i) In respect of the natural
resources, including living organisms belonging to sedentary species, of the
sea-bed and subsoil of the continental shelf of the Philippines, or its analogue
in anarchipelago, as described in Proclamation No. 370 dated 20 March 1968
of the President of the Republic of the Philippines; or "(ii) In respect of the
territory of the Republic of the Philippines, including its territorial seas and
inland
waters;
and
"Provided further, that this declaration shall remain in force until notice is
given to the Secretary-General of the United Nations of its termination.
Done
at
Manila
this
23rd
day
of
December
1971.
(Signed) Carlos Pi Romulo Secretary of Foreign Affairs363
In the case that a State that has not recognized the jurisdiction of the International
Court of Justice at the time an application enacting proceedings is filed against it, the Court
may infer the consent of State by virtue of the Doctrine of Forum Prorogatum. According to
this doctrine, States may accept jurisdiction consequently in order for the Court to entertain
363
Id.
52
the corresponding case.364 Consent may be inferred in an informal and implied manner, and
after the case has been advanced to the International Court of Justice.365
The compulsory jurisdiction of the International Court of Justice is an important
factor for the resolution of legal disputes as indicated in Article 36, paragraph 2 of the Statute
of the International Court of Justice.
International Tribunal for the Law of the Sea
The International Tribunal for the Law of the Sea (ITLOS) became functional in year
1996 when the UNCLOS came into force.366 The International Tribunal for the Law of the
Sea (ITLOS) is an independent judicial body established by the United Nations Convention
on the Law of the Sea to adjudicate legal disputes on the interpretation and application of the
said Convention.367 It is open to State Parties to the Convention, including international
organizations, and those that are not parties to the Convention but confers jurisdiction on the
ITLOS.368 These two cases pertain to the exercise of compulsory or contentious jurisdiction
of the Tribunal. The ITLOS may also exercise advisory jurisdiction over legal questions
within the scope of activities of the Assembly or Council of the International Seabed
Authority.369
364
See Basis of the Courts Decision, International Court of Justice, available at http://www.icj-
cij.org/jurisdiction/index.php?p1=5&p2=1&p3=2; Dispute settlement, supra note 355.
365
Dispute settlement, supra note 354.
366
See International Tribunal for the Law of the Sea, available at http://www.pict-
pcti.org/courts/ITLOS.html (last accessed Nov. 27,2014).
367
See The Tribunal, available at https://www.itlos.org/index.php?id=15&L=0 (last accessed Nov. 27,
2014).
368
ITLOS Statute, art. 20
369
UNCLOS, art. 191.
53
The ITLOS has chambers of tribunal particularly the Seabed Disputes Chamber
(SBDC) and special chambers: Chamber of Summary Procedure, standing chambers on
particular categories of disputes, and chamber on disputes at the request of parties. The
Seabed Disputes Chamber handles disputes regarding activities in the seabed, ocean floor
and subsoil beyond national jurisdiction.370 States Parties, International Seabed Authority, the
Enterprise, state enterprise, and natural or juridical persons have standing or locus standi
before the SBDC.371
Moving forward to the special chambers, the ITLOS has three of which with the task
of dealing with distinct categories of disputes. Firstly, the Chamber of Summary Procedure
administers cases through summary procedure for a speedy dispatch of business.372 Secondly,
the standing chambers, which deal with particular categories of disputes, may be dissolved
by the Tribunal any time after a pending case has been administered.373 An illustration would
be the Chamber for Marine Environment Disputes which deals with the interpretation or
application of: (1) any provision of the Convention (UNCLOS) concerning the protection and
preservation of the marine environment; (2) any provision of special conservations and
agreements relating to the protection and preservation of the marine environment referred to
in Article 237 of the Convention; and (3) any provision of any agreement relating to the
protection and preservation of the marine environment which confers jurisdiction on the
Tribunal.374 Lastly, the Chamber for dealing with particular disputes at the request of the
370
See note 367, supra.

Id.
372
UNCLOS, annex VI, sec 1, art 15.3.
373
Id.
374
See ITLOS and Dispute Settlement Mechanisms of the UNCLOS, available at
http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/mom_0506_c
ambodia_itlos.pdf (last accessed Nov. 25, 2014).
371
54
parties is provided in Article 15 (2) of the Statute of the International Tribunal for the Law of
the Sea.375
As the International Tribunal for the Law of the Sea emanated from the United
Nations Convention on the Law of the Sea, it has the power to order provisional measures or
interim measures of protection under Article 290 of the UNCLOS with regard to serious
harm to marine environment.376
VI. PROVISIONAL MEASURES
Article 41 of the Statute of the International Court of Justice provides that it has the
power to indicate, if it considers that circumstances so require, any provisional measures
which ought to be taken to preserve the respective rights of either party.377 There are no
guidelines provided by the International Court of Justice to determine what circumstances
Article 41 pertains to. However, these may be identifiable through the manner in which the
said Court makes decisions. 378
It is usually cases on the infringement of human rights that invoke application of
provisional measures.379 Cases on natural resources and environment protection are also
vulnerable subjects of interim protection measures. 380 These measures are intended to
375
UNCLOS annex VI, sec. 1, art. 15.2

Thomas A. Mensah, Provisional Measures in the International Tribunal for the Law of the Sea (ITLOS),
ZARV 45 (2002).
377
ICJ, art. 41.
378
Bernhard Kempen & Zan He, The Practice of the International Court of Justice on Provisional Measures:
The Recent Development, 69 ZARV 920 (2009).
379
Id., at 921.
380
Id.
376
55
preserve the situation under dispute with a view to giving full effect to the final decision of
the Court.381
In the Fisheries Jurisdiction case, the Court reasoned out that Article 41 presupposes
irreparable prejudice should not be caused to rights which are subject of dispute in
judicial proceedings, and that the Courts judgment should not be anticipated by reason of
any initiative regarding the measures which are at issue.382 It is applicable in cases so
extreme where the harm to the right is so great, that in the absence of provisional measures,
such right would disappear or lose genuine value when judgment rendered favors the
applicant.383 These circumstances may be those with irreparable prejudice and urgency.384
As Article 74 of the Rules of Court provides, a request for the indication of provisional
measures by a party shall have priority over all other cases as a matter of urgency.385 In the
Anglo-Iranian Oil Company case, Fisheries Jurisdiction cases and Nuclear Test cases in
1951, 1972, and 1973, the Court stated that both parties involved in dispute shall ensure that
action of any kind is taken which might aggravate or extend the dispute submitted to the
Court.386 Possible aggravation of the rights of the parties that are deemed to be at risk or
irreparable prejudice may serve as basis of indication of provisional measure.387
381

Kempen & He, supra note 378, at 920, citing Fisheries Jurisdiction case (Federal Republic of Germany v.
Iceland), Order of 17 August 1972, ICJ Rep. 1972, 34, para. 22; Fisheries Jurisdiction case (United Kingdom
of Great Britain and Northern Ireland v. Iceland), Order of 17 August 1972, ICJ Rep. 1972, 16, para. 21.
383
Id., at 921.
384
Id.
385
Jochen Abr. Frowein, Provisional Measures by the International court of Justice The LaGrand Case,
ZARV 55 (2002).

386
Id. citing Anglo-Iranian Oil Co. (United Kingdom v. Iran), Interim Measures, Order of 5 July 1951, IQJ
Reports 1951, 89, 93. Fisheries jurisdiction (United Kingdom v. Iceland) (Federal Republic of Germany v.
Iceland), Interim Protection, Orders of 17 August 1972, 12, 17; 30, 31. Nuclear Tests (Australia v.
France) (New Zealand v. France), Interim Protection, Order of 22 June 1973, IQJ Reports 1973, 99,
106; 135, 142.
387
Kempen & He, supra note 378, at 925.
382
56
Moving forward, there are certain preconditions to be satisfied in considering whether

circumstances require provisional measures. There must first be a case filed before the Court.
There must be a link established between the alleged rights the protection of which is the
subject of the measure being sought, and the subject of the main claim. Also, the existence of
prima facie jurisdiction over the merits should be established. 388 There were cases,
nevertheless, where the Court first ordered interim measures of protection and eventually
found itself without jurisdiction.389 In cases where the Court did not find any relation between
the rights to be protected and the measures sought, the Court rejects the request for interim
measures, as it has the discretion to reject the application in its totality or order other
measures.390 Additionally, The Court may indicate measures out of its own initiative.391
Interim protection serves a fundamental role in dispute settlement by alleviating
tension and providing avenues for negotiation, as it is of the Courts great interest and duty to
maintain international peace and security to prevent aggravation of dispute, irreparable
prejudice and to protect rights of parties.392
VII. CONCEPTUAL LITERATURE

The poaching incident in the Hasa-Hasa Shoal has brought forth concerns with regard
to environmental protection as the subjects of this incident, particularly the endangered
species, are situated within the exclusive economic zone of the Philippines that is currently
subject to territorial dispute with China. As the Philippines awaits the grant of arbitration by
388

390
Id.
391
Id.
392

389
57
the United Nations, the jurisdiction over the Spratly Islands, inclusive of the Hasa-Hasa
Shoal, it is deemed important to determine lawful measures that the Philippines can take in
preventing the exploitation of involved endangered species.
One school of thought is that environmental protection is an obligatio erga omnes;
hence, the Philippines, despite Chinas disregard of certain provisions of the UNCLOS, has
the permission to conduct measures covered by international law. Whereas, the other school
of thought is that it may not be necessary for the Philippines to undertake protection and
conservation measures, such as provisional measures, for grounds that the situation may not
qualify for a provisional measure and that the resolution of territorial dispute is deemed as
principally indispensable.
The researchers utilized law and principles under international law to address the
research issues. There are different school of thoughts also regarding the principles that will
be utilized in the study. With regards to the Precautionary Princple, some courts and
governments has still yet to accept it as a customary law. While, many has already accepted it
as part of customary law. Another concept that will be used in the study is the obligatio erga
omnes. There is a view that only grave crimes and those protected in the UN charter fit the
common concern addressed by obligatio erga omnes.393 This view is in conflict with the
views that consider environmental concerns like conservation of biodiversity as common
concern.
Consequently, this research holds a number of questions regarding proper measures to
be undertaken, the urgency of the case, and the proper laws and principles to be utilized for
analysis.
393
Liu, supra note 222.
58
VIII. RESEARCH DESIGN

A. Research Framework
59
Theories and Principles that Justify the

Protective Measures of the Philippines
As illustrated above, the research framework of this paper resembles the shape of a
turtle. This is because they are the primary subjects affected by the incident that brought
about this study. Hence, the shape of the turtle captures the main purpose behind the study,
60
which is to justify the measures that the Philippines could take to prevent the exploitation of
its endangered species found in its EEZ in disputed waters.
In the framework, it can be observed that the main issue is found on top of the
hierarchal diagram. This is done to have a clear illustration on how the researchers will
answer it in their research.
After identifying the main issue, the two main categories of legal theories used in this
study is depicted under it, which are the measures of protection and prevention.
Under each category, principles in Public international law can be found beneath it.
These principles will be what the researchers will use in order to answer the main issue.
As observed in the diagram, Public international law and its five sources can be found
at its heart. This is because these sources are the prime tools that the researchers will use in
the study. They will not be only used to answer the issues, but also to aid the researchers in
understanding the concepts under Public international law that will be used in their study. It
is also shown in the diagram that the principles that will be used are linked to one to two
sources of international law. It shows their classification under the five sources. Moreover,
the treaties are linked to both categories because these treaties give rise to both the right and
obligations of the Philippines in the matter. The treaties that will be used in the study are also
specified below it.
Lastly, the scope of the study can be found on the border of the diagram. This is to set
the parameters of the research.
B. Research Methodology
61
This paper is a legal research on the communal duty of environment protection in

respect to the long-standing territorial dispute between China and the Philippines. As this
research concerns two profound international issues, the researchers solely utilized the
different sources of Public International Law in discussing the research problem and the
practicable resolutions that States and International organs may resort to.
The researchers utilized the International conventions that are related to the territorial
dispute and environment protection where both China and the Philippines are parties to.
These conventions provided the specific rights, obligations, and regulations to which both
States admitted their consent to be bound. The researchers, moreover, utilized international
customary law to identify which practices and obligations with regard to environment
protection are generally accepted by States. General principles of law, judicial decisions, and
teachings of highly qualified publicists were also used in this research to further aid in the
determination of the rules of law.
The researchers used scholarly journals, jurisprudence from international courts, and
official documents of organs of the United Nations. In addition, electronic materials such as
news articles and official documents of the organs of the United Nations were used in the
discussion of the paper. Lastly, the researchers utilized diverse materials from the De La
Salle University Manila library and Ateneo Law School library.
The method of analysis used by the researchers is objective analysis as the research
issues circulated around the questions of law and applicability of international laws to China
and the Philippines. The provisions of the United Nations Convention on the Law of the Sea
and the laws and principles covering environment protection were primarily discussed and
62
supplemented by aforementioned sources of international law to arrive at a probable

resolution.
The flow of discussion of the paper begins with the historical background on the
Hasa-Hasa Shoal incident and a brief historical background on the territorial dispute in the
South China Sea. The researchers then discuss the different laws and principles on territorial
sovereignty and environmental protection.
IX. BIBLIOGRAPHY
63
TREATIES
Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3,
1973, 993 U.N.T.S. 243 [hereinafter CITES].
Convention of Migratory Species of Wild Animals, Jun.29, 1979, 1651 UNTS 333.
[hereinafter CMS].
United Nations Convention on the Law of the Sea, Dec. 10 1982, 1833 UNTS 3 .[hereinafter
UNCLOS].
Convention on Biological Diversity, May 6, 1992, 1760 U.N.T.S. 79. [hereinafter CBD].
Rio Declaration on Environment and Development, Jun. 13, 1992, art. 15, UN Doc.
A/CONF.151/26 (vol. I).
United Nations Framework Convention on Climate Change, June 12, 1992, UN Doc
FCCC/CP/1997/7/Add.1.
JUDICIAL DECISIONS
Anglo-Iranian Oil Co. (United Kingdom v. Iran), Interim Measures, Order of 5 July 1951,
IQJ Reports 1951, 89, 93.
Fisheries jurisdiction (United Kingdom v. Iceland) (Federal Republic of Germany v.
Iceland), Interim Protection, Orders of 17 August 1972, 12, 17; 30, 31.
Fisheries Jurisdiction case (Federal Republic of Germany v. Iceland), Order of 17 August
1972, ICJ Rep. 34, para. 22.
Fisheries Jurisdiction case (United Kingdom of Great Britain and Northern Ireland v.
Iceland), Order of 17 August 1972, ICJ Rep. 1972, 16, para. 21.
Gabckovo-Nagymaros Project (Hungary v. Slovakia), [1997] ICJ Rep. 7 (GabckovoNagymaros).
Nuclear Tests (Australia v.France) (New Zealand v. France), Interim Protection, Order of 22
June 1973, IQJ Reports 1973, 99, 106; 135, 142.
Nuclear Tests (New Zealand v. France),[1974] Judgment, I.C.J. Reports 1974, p. 457.
Pulp Mills on the River Uruguay (Argentina v. Uruguay), [2010] ICJ Rep. 14 (Pulp Mills).
United States Diplomatic and Consular Staff Tehran, Judgment, ICJ Reports 1980,p3,para
63.
64
UN DOCUMENTS
Report of the International Law Commission on the work of its 53rd Session, art. 2 UN Doc
A/56/10(2001). [hereinafter ARSIWA].
BOOKS
AILEEN S.P. BAVIERA & TERESITA ANG SEE, CHINA ACROSS THE SEAS (1991)
BAILEY, J.A. , PRINCIPLES of WILDLIFE MANAGEMENT (1984).
BIRNIE, PATRICIA & BOYLE, ALAN. INTERNATIONAL LAW and the ENVIRONMENT (2nd ed.
2002).
BRIAN D. LEPARD, CUSTOMARY INTERNATIONAL LAW A NEW THEORY with PRACTICAL
APPLICATIONS (2000).
BROWN, E.D. BL LLM PHD, THE INTERNATIONAL LAW
INTRODUCTORY MANUAL (1994).
OF THE
SEA VOLUME I
BROWNLIE, PRINCIPLES of PUBLIC INTERNATIONAL LAW (5th ed., Oxford, 1998).

CLAUDE HABERER, BETWEEN TIGER
WITH CHINA AND TAIWAN (2009)
AND
DRAGON: A HISTORY
OF
PHILIPPINE RELATIONS
CRAWFORD J, THE INTERNATIONAL LAW COMMISSIONS ARTICLES

RESPONSIBILITY; INTRODUCTION, TEXT and COMMENTARIES (2002).
on
STATE
DONALD ANTON & DINA SHELTON, ENVIRONMENTAL PROTECTION and HUMAN RIGHT 85
(2001).
ELLI LOUKA, INTERNATIONAL ENVIRONMENTAL LAW FAIRNESS, EFFECTIVENESS and WORLD
ORDER (2006).
FUNK & WAGNALLS NEW WORLD ENCYCLOPEDIA, Green Turtle, (2014).
FUNK & WAGNALLS NEW WORLD ENCYCLOPEDIA, Hawksbill Turtle, (2014).
JOAQUIN G. BERNAS, S.J., INTRODUCTION TO PUBLIC INTERNATIONAL LAW, (2009).
LORI FISLER DAMROSCH & SEAN D. MURPHY, INTERNATIONAL LAW CASES AND MATERIALS,
(6th ed., 2014)
65
MALCOLM SHAW, INTERNATIONAL LAW, (6th ed., 2008).

JOURNAL ARTICLES
ALEXANDROV, STANIMIR A. The Compulsory Jurisdiction of he International Court of
Justice: How Compulsory Is It? 5 CHINESE J. INTL L. 29 (2006).
AMBRUS, MONIKA. The Precautionary Principle and a Fair Allocation of the Burden of
Proof in International Environmental Law, 21 RECIEL 261(2012).
ANCA, DIANA et al., The Insertion of the Precautionary Principle in the Environment
Protection as a Legal Norm in the European Union Countries, 4 CONTEMPORARY READINGS
IN LAW & SOCIAL JUSTICE 489(2012).
BENSON, SR, et al. Beach use, internesting movement, and migration of leatherback turtles,
Dermochelys coriacea, nesting on the north coast of Papua New Guinea, 6 CHELON
CONSERV BIOL. 714 (2007).
BERUBE, M. et al., Home Range and Foraging Ecology of Juvenile Hawksbill Sea Turtles
(Eretmochelys imbricata) on Inshore Reefs of Honduras, 11 CHELONIAN CONSERV. BIOL. 33
(2012).
BJORNDAL K.A., Foraging ecology and nutrition of sea turtles, in THE BIOLOGY of SEA
TURTLES 199 (P. L. Lutz & J. A. Musick, 1997).
BJORNDAL, K.A., Nutritional ecology of sea turtles, COPEIA, 736751(1985); citing Bolten,
A.B., Variation in sea turtle life history patterns: neritic versus oceanic developmental
stages, in 2 THE BIOLOGY of SEA TURTLES 243 (P. L. Lutz &J. A. Musick, 2003).
BJORNDAL, KAREN & BOLTEN, ALAN. Hawksbill sea turtles in seagrass pastures: success in
a peripheral habitat, 157 MAR. BIOL. 135 (2010).
BLUMENTHAL JM et al., Ecology of hawksbill turtles, Eretmochelys imbricata, on a western
Caribbean foraging ground, 8 CHELONIAN CONSERV. BIOL. 1 (2009).
BOLTEN, A.B. et al., Transatlantic developmental migrations of loggerhead sea turtles
demonstrated by mtDNA sequence analysis., 8 ECOL. APP. 1 (1998).
BOWEN, B.W. et al., Conservation implications of complex population structure: lessons
from the loggerhead turtle (Caretta caretta), 14 MOLEC. ECOL. 2389 (2005).
BOWEN, BW et al., Mixed-stock analysis reveals the migrations of juvenile hawksbill turtles
(Eretmochelys imbricata) in the Caribbean Sea, 16 MOL. ECOL.49 (2007).
CADDELL, RICHARD, Inter-Treaty Cooperation, Biodiversity Conservation and the Trade in
Endangered Species, 22 RECIEL 266(2013).
66
CARR A, Rips, FADS, and little loggerheads, 36 BIOSCIENCe 92 (1986).

CARRION-CORTEZ, JAVIER et al., Habitat Use and Diet of Juvenile Eastern Pacific Hawksbill
Turtles (Eretmochelys imhricata) in the North Pacific Coast of Costa Rica, 12 CHELONIAN
CONSERV. BIOL.235 (2013).
CHALOUPKA, MILANI, Historical trends, seasonality and spatial synchrony in green sea
turtle egg production, 101 Biological Conservation 263 (2001).
COUZENS, ED. CITES at Forty: Never Too Late to Make Lifestyle Changes, 22 RECIEL 311
(2013).
CUEVAS, E. et al., Spatial characterization of a foraging area for immature hawksbill turtles
{Eretmochelys imbricata) in Yucatan, Mexico, 28 AMPHIBIA-REPTILIA 337- (2007).
DASPREMONT, JEAN & AALBERTS, TANJA, Which Future for the Scholarly Concept of Soft
International Law? Editors Introductory Remarks, 25 LEIDEN JOURNAL of INTERNATIONAL
LAW 311(2012).
DE SADELEER, NICOLAS. The Precautionary Principle as a Device for Greater
Environmental Protection: Lessons from EC Courts, 18 RECIEL, 4 (2009).
DOUGHERTY, ERIN et al., Hydrodynamic stability in posthatchling loggerhead (Caretta
caretta) and green (Chelonia mydas) sea turtles, 113 ZOOLOGY 158 (2010).
Frazier, J., Exploitation of marine turtles in the Indian Ocean, 8 HUMAN ECOLOGY 329
(1980).
FROWEINM, JOCHEN Abr. Provisional Measures by the International court of Justice The
LaGrand Case, ZARV 55 (2002).
GARDNER, T.A. et al., Longterm region-wide decline in Caribbean corals, 301 SCI. 958
(2003).
HILL, M.S., Spongivory on Caribbean reefs releases corals from competition with sponges,
117 OECOLOGICA 143 (1998).
HORROCKS, JULIA A. et al., International Movements of Adult Female Hawksbill Turtles
(Eretmochelys imbricata): First Results from the Caribbean's Marine Turtle Tagging Centre,
10 CHELONIAN CONSERV. BIOL.18 (2011).
JONES GP et al., Coral decline threatens fish biodiversity in marine reserves, 101 PROC.
NATL. ACAD. SCI. 8251 (2004).
67
KAMEL, S. J. & DELCROIX, E., Nesting Ecology of the Hawksbill Turtle, Eretmochelys
imbricata, in Guadeloupe, French West Indies from 200007. 43 JOURNAL of HERPETOLOGY
367 (2009).
KAWAZU, ISAO et al., Ovulation Induction with Follicle-Stimulating Hormone Administration
in Hawksbill Turtles Eretmochelys imbricata, 33 CURRENT HERPETOLOGY 88 (2014).
KEMPEN, BERNHARD & HE, ZAN, The Practice of the International Court of Justice on
Provisional Measures: The Recent Development, 69 ZARV 920 (2009).
LEON YM, & BJORNDAL K.A., Selective feeding in the hawksbill turtle, an important
predator in coral reef ecosystems, 245 MAR. ECOL. PROG. SER. 249 (2002).
LIMPUS, C.J., Mangroves in the diet of Chelonia mydas in Queensland, Australia, 89. MAR.
TURT. NEWSL. 13 (2000).
LIU, BiNGYU, Pros and Cons of the Obligation to Conserve Biodiversity as Obligation Erga
Omnes , 6 INTERNATIONAL REVIEW of SOCIAL SCIENCES and HUMANITIES 265 (2014).
LUTCAVAGE, M. E. et al., Impacts on sea turtle survival, in THE BIOLOGY of SEA TURTLES
387, (P. L. Lutz & J. A. Musick, 1997).
MARSHALL, CHRISTOPHER D. et al., Scaling of bite performance with head and carapace
morphometrics in green turtles (Chelonia mydas),451 JOURNAL of EXPERIMENTAL MARINE
BIOLOGY and ECOLOGY 91 (2014).
MEYLAN A, Spongivory in hawksbill turtles: a diet of glass, 239 SCIENCE 393 (1988).
MEYLAN, A.B., & DONNELLY, M., Status justification for listing the hawksbill turtle
{Eretmochelys imbricata) as critically endangered on the 1996 IUCN Red List of Threatened
Animals, 3 CHELONIAN CONSERV. BIOL. 200 (1999).
Mike Feintuck, Precautionary Maybe, but What's the Principle? The Precautionary
Principle, 32 JOURNAL of LAW and SOCIETY 375 (2005).
MILLER, J. D, Reproduction in Sea Turtles, in THE BIOLOGY of SEA TURTLES 51 (P. L. Lutz
& J. A. Musick, 1997).
MORA C., A clear human footprint in the coral reefs of the Caribbean, 275 PROC. R. SOC. B.
767 (2008).
MORTIMER J.A, The feeding ecology of the west Caribbean green turtle (Chelonia mydas) in
Nicaragua, 13 BIOTROPICA 49 (1981).
MORTIMER JA & PORTIER KM, Reproductive homing and internesting behavior of the green
turtle (Chelonia mydas) at Ascension island; south Atlantic ocean, COPEIA 962 (1989).
68
MORTIMER, J.A et al., Whose turtles are they, anyway?, 16 Molecular Ecology 117 (2007).
MUSICK, J.A. et al, Habitat utilization and migration in juvenile sea turtles, in THE BIOLOGY
of SEA TURTLES 137 (P. L. Lutz & J. A. Musick, 1997).
OANA, ADASCALITEI. Exclusive Economic Zone the Concept of Suis Generis Area and its
Implications for the Legal Order of the Seas, 14 CONSTANTA MARITIME UNIVERSITY
ACADEMIC JOURNAL 187 (2013).
PANDOLFI, JM et al., Global trajectories of the longterm decline of coral reef ecosystems.
301 SCI. 955 (2003).
PARADELL-TRIUS, LLUS. Principles of International Environmental Law: an Overview, 9
RECEIL 96 (2000).
PENDOLEY, K. et al, Browsing on mangroves by green turtles in Western Australia. 84 MAR.
TURTL. NEWSL, 80 (1999).
PLOTKIN, P., Adult migrations and habitat use, in 2 THE BIOLOGY of SEA TURTLES 243 (P. L.
Lutz & J. A. Musick, 2003).
PROIETTI, M et al., Genetic Structure and Natal Origins of Immature Hawksbill Turtles
(Eretmochelys imbricata) in Brazilian Waters, 9 PLOS ONE, 9(2014).
READ, TYFFEN C. et al., Migrations of Green Turtles (Chelonia mydas) between Nesting and
Foraging Grounds across the Coral Sea, 9 PLOS ONE 1 (2014).
REICH KJ et al., The lost years of green turtles: using stable isotopes to study cryptic
lifestages, 3 BIOL. LETT. 712 (2007).
SEMINOFF, J.A. et al, Home range of green turtles (Chelonia mydas) in a coastal foraging
area in the Gulf of California, Mexico, 242 Mar. Ecol. Prog. Ser. 253 (2001).
SEMINOFF, J.A. et al, Stable isotope discrimination (S13C and 515N) between soft tissues of
the green sea turtle Chelonia mydas and its diet, 308 MARINE ECOLOGICAL SERIES 271
(2006).
SHELTON, DINAH, Common Concern of Humanity, 1 IUSTUM AEQUUM 34(2009).
Thomas A. Mensah, Provisional Measures in the International Tribunal for the Law of the
Sea (ITLOS), ZARV 45 (2002).
TROUWBORST, ARIE. The Precautionary Principle and the Ecosystem Approach in
International Law: Differences, Similarities and Linkages, 18 RECIEL 34 (2009).
69
WHITING SD, & GUINEA ML, A large population of slow growing hawksbills: preliminary
results from a wild foraging population in Fog Bay, Northern Territory, in NOAA TECHNICAL
MEMORANDUM NMFS-SEFSC- 415, (Epperly SP, & Braun J, 1998).
WITZELL, W.N., The origin, evolution and demise of the US sea turtle, 56 MARINE FISHERIES
REVIEW 8 (1994).
WULFF JL, Rapid diversity and abundance decline in a Caribbean coral reef sponge
community, 127 BIOL. CONSERV.167 (2006).
INTERNET SOURCES
About
The
Issue
of
South
China
Sea,
availablte
http://www.spratlys.org/collection/spratlys_more.htm(last assessed Nov.15, 2014).
at
Agence France-Presse, PH convicts Chinese poachers despite Beijings warnings,

11/24/2014,
http://www.abs-cbnnews.com/nation/11/24/14/ph-convicts-chinese-poachersdespite-beijings-warnings. (last assessed Oct.27, 2014).
Basis of the Courts Decision, International Court of Justice, available at http://www.icjcij.org/jurisdiction/index.php?p1=5&p2=1&p3=2(last accessed Nov. 30, 2014).
Benjamin B. Pulta, LEILA CONTRADICTS NOY ON CHINESE POACHERS
IMPRISONMENT 29 May 2014, http://www.tribune.net.ph/nation/leila-contradicts-noy-onchinese-poachers-imprisonment
Bryan Dent, Roman-Persian Wars: Battle of Carrhae, June 12, 2006,
http://www.historynet.com/roman-persian-wars-battle-of-carrhae.htm(last assessed Nov. 15,
2014).
Carmela Fonbuena, PH arrests 11 Chinese fishermen off Palawan, May 07, 2014,
http://www.rappler.com/nation/57456-missing-chinese-fishermen-half-moon-shoal(last
assessed Oct. 20, 2014).
Charter of the United Nations and Statute of the International Court of Justice, available at
https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=I4&chapter=1&lang=en#EndDec(last accessed Nov. 24, 2014).
CHRISTOPHER C. JOYNER, The Spratly Islands Dispute in the South China Sea: Problems,
Policies, and Prospects for Diplomatic Accommodation 56 citing ICE Cases: Spratly Islands
Dispute, Case No. 21 (May 1997): http://gurukul.ucc.american.edu/ted/ice/Spratly.htm;
Dieter Heinzig, Disputed Islands in the South China Sea (Hamburg: Institute of Asian
Affairs, 1976).
70
Convention
on
Biological
Diversity,
available
at
http://www.cbd.int/undb/media/factsheets/undb-factsheet-cbd-en.pdf(last accessed Nov. 16,
2014).
Cris Larano, Philippines Charges Fishermen for Alleged Turtle Poaching China Has Called
for
Fiserhmens
Immediate
Release,
May
12,
2014,
http://online.wsj.com/articles/SB10001424052702303851804579557493969255138(last
DFA STATEMENT ON THE RELEASE OF TWO MINORS APPREHENDED IN HASA-HASA SHOAL,
http://www.dfa.gov.ph/index.php/2013-06-27-21-50-36/dfa-releases/2838-dfa-statement-onthe-release-of-two-minors-apprehended-in-hasa-hasa-shoal(last assessed Oct. 25, 2014).
Dispute Settlement, United Nations Conference on Trade and Development, available at
http://unctad.org/en/docs/edmmisc232add19_en.pdf (last accessed Nov.24, 2014).
Fidel V. Ramos, Chinese mischief repeated at Hasa-Hasa (First of two parts), May 17, 2014,
http://www.mb.com.ph/chinese-mischief-repeated-at-hasa-hasa-first-of-two-parts/(last
Hawksbill Turtle (Eretmochelys imbricata), National Oceanic and Atmospheric
Administration, available at http://www.nmfs.noaa.gov/pr/species/turtles/hawksbill.htm.
International Union for Conservation of Nature (IUCN) (2010) IUCN Red List of Threatened
Species, available at http://www.iucnredlist.org/search. (last accessed Nov.15,2014)
International Tribunal for the Law of the Sea,
pcti.org/courts/ITLOS.html (last accessed Nov. 27,2014).
available
at
http://www.pict-
ITLOS and Dispute Settlement Mechanisms of the UNCLOS, available at

http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/
mom_0506_cambodia_itlos.pdf last accessed Nov. 25, 2014).
Jeremy Hance, Chinese poachers caught with 555 marine turtles, most dead (PHOTOS),
May
15,
2014
http://news.mongabay.com/2014/0515-hance-sea-turtles-poachingphilippines.html#sthash.CXME8O0o.dpbs(last assessed Oct. 30, 2014).
John Kemp, COLUMN-Chinas Nina Dash Line and the Law of the Sea: Kemp, Jun 6, 2014,
http://uk.reuters.com/article/2014/06/06/china-sea-kemp-idUKL6N0ON2SV20140606 (last
Jurisdiction,
International
Court
of
Justice,
available
at
cij.org/jurisdiction/?p1=5&p2=1&p3=3 (last accessed Nov. 25, 2014).
http://www.icj-
List of Contracting Parties, Convention on International Trade in Endangered Species of

Wild Faura and Flora, available at http://www.cites.org/eng/disc/parties/alphabet.php
71
List
of
Parties,
Convention
on
Biological
Diversity,
http://www.cbd.int/information/parties.shtml(last accessed Nov. 19, 2014).
available
Marydele
Donnelly,
Sea
Turtles
and
CITES,
available
http://seaturtlestatus.org/sites/swot/files/report/033111_SWOT6_p42-43_CITES.pdf(last
accessed Nov.20, 2014).
at
at
Member countries, Convention on International Trade in Endangered Species of Wild Faura

and Flora, available at http://www.cites.org/eng/disc/parties/index.php(last accessed Nov.
25, 2014).
Mortimer, J. & A. Donnelly, Marine Turtle Specialist Group 2008 IUCN Red List Status
Assessment, Hawksbill Turtle (Eretmochelys imbricata), available at http://www.iucnredlist.
org/attachments/639.pdf (2008).
Parties and Range States, Convention on Migratory Species,
http://www.cms.int/en/parties-range-states (last accessed Nov. 30, 2014).
available
at
Q&A: South China Sea dispute, 8 May 2014, http://www.bbc.com/news/world-asia-pacific13748349(last assessed Nov. 30, 2014).
Reef Madness, 20/05/2014, http://www.abc.net.au/foreign/content/2014/s4008035.htm(last
Spratly Islands, http://www.britannica.com/EBchecked/topic/561209/Spratly-Islands(last
Sui-Lee Wee, China says PH violated its sovereignty with fines on fishermen, 11/25/2014,
http://www.abs-cbnnews.com/nation/11/25/14/china-says-ph-violated-its-sovereignty-finesfishermen(last assessed Nov.10, 2014).
The Spratly Islands Dispute: Order-Building on Chinas terms?, August 18, 2011,
http://hir.harvard.edu/archives/2841 (last assessed Nov. 30, 2014).
The Tribunal, available at https://www.itlos.org/index.php?id=15&L=0 (last accessed Nov.
27, 2014).
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Protecting Endangered Species in Disputed Waters

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Protecting Endangered Species in Disputed Waters

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De La Salle University- Manila

Protection of Endangered Species in Disputed Waters: Justifying the Protective

REVIEW of RELATED LITERATURE

BACKGROUND on the ENDANGERED SPECIES AFFECTED by the POACHING

COMPREHENSIVE REVIEW OF THE RELEVANT PUBLIC INTERNATIONAL

Intergenerational Equity Principle and its Applicability in Environmental Issues ..44

INTERNATIONAL COURTS .48

PROVISIONAL MEASURES .55

CONCEPTUAL LITERATURE ..57

Hasa-Hasa Shoal Incident

South China Sea Territorial Dispute

HABERER, supra note 17, at 144.

HABERER, supra note 17, at 145.

B. Statement of the Problem

C. Significance of the Study

D. Scope of the Study

REVIEW of RELATED LITERATURE

HiSTORICAL, POLITICAL and GEOGRAPHICAL BACKGROUND on the HASA-HASA

FUNK & WAGNALLS NEW WORLD ENCYCLOPEDIA, Hawksbill Turtle, 1 (2014).

Hawksbill turtle, supra note 51.

B. Historical and Scientific Information on the Green Marine Turtles

FUNK & WAGNALLS NEW WORLD ENCYCLOPEDIA, Green Turtle, 1 (2014).

Dougherty et al., supra note 90.

COMPREHENSIVE REVIEW OF THE RELEVANT PUBLIC INTERNATIONAL LAWS

A. Treaties in International Laws that Promote the Protection of Endangered

Donnelly, supra note 117.

BIRNIE & BOYLE, supra note 102, at 568.

The AGREEMENTS must provide for the

conservation, restoration of habitats, and protection from disturbance.

B. Rights and Obligations of States in Relation to its Exclusive Economic Zone

Id. art. 57.

(ii) marine scientific research;

UNCLOS, art. 56.

Brown, supra note 197, at 220, 234.

subject to stipulation of involved States on utilization duties and conservation and

Id. art. 63.1.

Id. art. 73.1.

BROWN, supra note, at 198.

C. Discussion on the Precautionary Principle and its Applicability in

Beckman & Davenport, supra note 195, at 13.

Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I).

Paradell-Trius, supra note 235, at 94.

D. Discussion on Obligations Erga Omnes and its Applicability in

Weeramantry in the Gabcikovo-Nagymaros case.279 He held that sustainable development as

BIRNIE & BOYLE, supra 276.

Liu, supra note 206, at 267.

LOUKA, supra note 143, at 31.

F. Intergenerational Equity Principle and its Applicability in Environmental

Moreover, the principle was again used in the 1992 Rio

IV. STATE RESPONSIBILITY

Crawford & Olleson, supra note 328, at 446.

In environmental cases, responsibility normally stems from either the breach of

International Court of Justice

BIRNIE & BOYLE, supra note 102, at 181.

See, Statute of the International Court of Justice, available at http://www.icj-

China initially deposited its recognition of the compulsory jurisdiction of the

See note 367, supra.

UNCLOS annex VI, sec. 1, art. 15.2

See note 354, supra.

Moving forward, there are certain preconditions to be satisfied in considering whether

VII. CONCEPTUAL LITERATURE

Kempen & He, supra note 378, at 922.