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Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 100
right to be guaranteed by the State. This is the
interpretation used by the Philippine Supreme Court in As proposed, the following parties may appear before the
Oposa v Factoran where due recognition was given to the International Court of the environment:
standing of minor citizens for the environmental right as an a) Individuals;
inter-generational right. The Supreme Court said that while b) Non-governmental organizations and environmental
right to a balanced and healthful ecology is guaranteed by associations;
the Philippine Constitution, it need not be actually written c) States;
in the fundamental law of the land as it is assumed from the d) Supranational organizations such as the European
inception of humankind. If it is so written, it is because of Union; and
the: e) International organizations under the UN and the
individual organs of the UN.
well founded fear of the framers that unless the right to a
balanced and healthful ecology and to health are mandated Of relevance is the fact that, to date, the International Court
as state policies by the Constitution itself the day would of Justice has declined to submit decisions by UN organs to
not be too far when all else would be lost not only for the judicial review. International organizations are not
present generation but also for those to come generations accountable in law and do not exercise powered
which stand to inherit nothing but parched earth incapable independently of their member states. How can the World
of sustaining life. Bank, for example, be held legally accountable for it
participation in an oil and pipeline project were to result in
It must further be recognized that the environment now environmental harm? In connection, take note than in
receives a complex legal treatment throughout the world at recent times, international financing institutions such as the
various levels. Environmental law attracts great attention International Monetary Fund and regional development
because it can be found in all organs that have the banks have become the object of ire of nongovernmental
responsibility for the environmental protection, as can be organizations (NGOs), and even some government arms,
shown by one established fact: the rights-duties of due to development projects perceived as destructive of the
environmental protection are exercised by existing environment.
institutions, in particular, by lawmaking bodies, executives
and the judiciary in individual states, although with varying At present, international organizations, environmental
zeal and effectiveness. associations, NGOs and potentially affected individuals are
not granted direct access to the ICJ. Only States have direct
Individuals are not considered the mere beneficiaries but access and not the individuals who are the direct victims of
rather active proponents of environmental protection. This environmental destruction. While it is commonly known
explains the existence of procedural rules which confer that States themselves may commit or tolerate
upon individuals the right-duty to information, participation environmental crimes, it is advisable and realistic to work
and standing in legal proceedings. Environmental law and towards strengthening international judicial guarantees for
the right to the environment are intimately connected effectively protecting the rights of the individual to a
because, as world-renowned French environmental law healthy and undisturbed environment.
Professor Alexander Kiss observed, The first is the
guarantee for the exercise of the latter. The international community must be aware that a proper
international court exists where they can make their claims
The environment as a human right also finds an indirect apart from a higher authority responsible for its
legal basis in conventions, instruments, written accords, and management, supervision and control. That proposed
in the written record of meetings on the environment higher authority can exist in the form of the proposed
between states and other international subjects. This International Environment Agency. Further, the evolution of
written normative framework embraces well over 199 the concept of environmental crime, the widening of liability
international instruments on the environment. law for environmental damages, and the application of the
Polluter Pays Principle could make a new court necessary.
Lastly, the classic customary rule announced in the Trail Supplementary arguments are the jurisdictional deficiencies
Smelter case and Corfu Channel found its place in in different state systems, the social and ethical need for
international law at the 1972 UN Stockholm Conference on environmental justice and the educational role of such an
the Environment. In particular 21 says: institution. Last but not the least, an international court for
the environment ould be able to focus special attention on
States have the sovereign right to exploit their own areas outside the jurisdiction of individual states. For
resources pursuant to their own environmental policies, example, such a body could concentrate on the urgent
and the responsibility to ensure that activities within their problems of protecting the global commons.
jurisdiction and control do not cause damage to the
environment of other States or of areas beyond their Critics may point out that the ICJ established a Chamber for
national jurisdiction. environmental matters in 1993. Nevertheless, it is
unrealistic to expect that tribunal to extend legal access to
III. ACCESS TO ENVIRONMENTAL JUSTICE private parties or political action groups because States
Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 101
are inherently reluctant to relinquish sovereignty and international conservation obligations did not apply to the
expose themselves to legal proceeding. fishing activities complained of and that Canada had acted
illegally in arresting the vessel.
Another institution, the Permanent Court of Arbitration
(PCA), is also mentioned as a possibility in resolving The question here is whether the dispute involves
environmental disputes. But as the jurisdiction of the PCA is international resources law, international fisheries law,
not compulsory, its competence can be derived only from an international environmental law, or international law
agreement to arbitrate, or an agreement submitting an related to the conservation of biological diversity. Spain
existing dispute to arbitration. presented the case to ICJ for infringement of its rights as a
flag state, an aspect that was also part of the overall dispute.
III. ARGUMENTS AGAINST THE CREATION OF AN ICJ ruled it had no jurisdiction to consider the merits of the
INTERNATIONAL COURT OF THE ENVIRONMENT case. Nevertheless, it cannot be denied that the above areas
of law would have influenced a decision had the ICJ
The proliferation of international adjudicatory bodies leads assumed jurisdiction. Assuming that such a case is
to the enumeration of arguments against the creation of a submitted before an international environmental court,
world court on the environment. At the global level, the ICJ, what is the assurance that is has sufficient expertise to
the Appellate Body of the World Trade Organization, and cover all these other aspects of international law? Would it
the Tribunal of the Law of the Sea have handed down thus not be better if existing tribunals instead be provided
decisions in disputes related to protection of the with sufficient expertise in international environmental
environment. Other forums include the ICJ Environment law?
Chamber and the Permanent Court of Arbitrations
Environment Facility. Arbitral procedures are also available There is the argument that the proliferation of international
to settle disputes like the arbitral tribunal which may be set courts and tribunals risks fragmentation in the international
up under article 27(3)(a) of the Conventions on Biological legal system. For instance, the ICJ, tin Reservations to the
Diversity and special bodies such as the United Nations Convention on Genocide, held that a State that makes a
Compensation Commission which may rule on cases declaration containing a reservation to which another State
involving international environmental law. Likewise, party to the Genocide Convention objects can be considered
regional forums such as RCHR, the Inter-American Court of a non party to that Convention vis--vis the objecting state,
Human Rights, and the Court of Justice of the European thereby preventing the declaration from having a legal
Community have decided on cases relating to international effect. The ECHR, however, ruled in the celebrated case of
environmental law. Loizidou v. Turkey that the declaration by Turkey on the
Courts jurisdiction, which contained a reservation
It can thus be said that existing courts and tribunals are, or regarding the non-application of the Convention to the
may be made well-equipped, to consider cases on northern part of Cyprus, was valid with respect to the
environmental issues. Moreover, disputes concerning jurisdiction of the court but void with regard to the
international environmental law also involve other aspects reservation. The ECHR awarded Greek-Cypriot refugee
of international law. For instance, multilateral Titana Loizidou USD 1.3M, which the Turks agreed to pay,
environmental agreements often provide for trade-related for obstructing Loizidous access to her home by its
instruments to be implemented with special consideration occupation in the north. Turkey may have to pay millions
for the interests or rights of particular groups such as more in similar cases.
indigenous people. A dispute that may arise under an
environmental treaty may also be defined in terms of a Some practitioners and academicians propose frequent
dispute under other treaties, such as the UN Convention on consultations among the members of the different tribunals
the Law of the Sea. So what kind of international to allay fears about fragmentation of international law. The
environmental dispute would be handled by an ICJ should likewise develop an active judicial body not only
international court for the environment when several other of the UN, but of the entire international legal system as
areas of international law such as international water law, well. Moreover, multiplicity of international forums permits
human rights law, fisheries law, trade law, and international a degree of experimentation and exploration which can lead
law related to the use of force are involved? to improvements through integration of positive resuls in
the body of international law.
Such a situation is illustrated by the Fisheries Jurisdiction
case (Spain v. Canada), a suit brought by Spain against Examples of experimentation and exploration that could
Canada before the ICJ. Canada arrested a Spanish fishing introduce changes in the international legal system include,
vessel on the high seas based on the argument that the first, the non-compliance or compliance procedure
vessel was illegally fishing in that area contrary to Canadian established or in the process of being established within
law and international fisheries conservation obligations multilateral environmental agreements. The Kyoto Protocol
applicable to the European Community. Canada further on Climate Change goes a step further by proposing to
alleged that marine biological diversity was being establish an enforcement branch that could take decisions
threatened by Spains fishing activities. The European with legally binding consequences as part of the non-
Community and Spain, on the other hand, argued that the compliance procedure for the Protocol.
Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 102
stigma of enforcement
Second, the Permanent Court of Arbitrations Environment and adverse publicity
Facility could result in increased confidence in the PCA as a Management
venue for settling disputes involving international - jobs and training - lack of internal
environmental issues. One notes the PCAs rules on dedicated to compliance accountability for
international arbitration where only one party is a State, - bonuses or salary compliance
and similar rules for disputes involving intergovernmental increase based on - lack of management
organizations and States and international organizations environmental systems for compliance
and private parties. compliance - lack of compliance training
for personnel
Finally, the establishment of the Inspection Panel by the Technological
World Bank and similar units by other development banks - availability of affordable - inability to meet
such as the Asian Development Bank and the Inter- technology requirements due to lack
American Development Bank could translate factual of appropriate technology
relationships that exist between individuals and groups and - technologies that are
an international body into a legal relationship and enable unreliable or difficult to
them to hold the organization accountable. The operate
International Monetary Fund will likewise be establishing
an Independent Evaluation Office. b. MEA Negotiation
--------------------------------------------------------------------------- - Bilateral treaties are negotiated at ministerial or
government-to-government level
SUPPLEMENTING SOURCES BY AMB. TOLENTINO
- Multilateral Treaties are often negotiated at diplomatic
a. PROBLEM AREAS, ISSUES AND CONCERNS IN THE
conferences convened by:
IMPLEMENTATION OF ENVIRONMENTAL LAWS
*** CONSIDER FOR FINALS: THINK OF MEANS OF HOW TO
1. an international organization (UN) or one of its
SOLVE SUCH ENVIRONMENTAL CONCERNS
agencies (UNEP)
2. at invitation by a state
Barriers to Compliance
Factors Motivating
and Factors Encouraging
Compliance
Non-compliance
Depositary Secretariat
Economic
- desire to avoid a penalty - lack of funds - notes signatures - day-to-day administration
- desire to avoid future - greed/desire to achieve - receives instruments of of the treaty regime
liability competitive advantage ratification, acceptance - receive reports from CP on
- desire to save money by - compelling demands for or accession implementation and
doing more cost-efficient resources - maintains list of all the infringement
and environmentally status of CP and - convening annual
sound practices signatories meetings or special
Social / Moral - amendments made to the meetings on specific issues
- moral and social values -lack of social respect for the treaty or review meetings
for environmental law
equality - lack of public support for
- social respect for the law environmental concerns c. MAJOR GLOBAL ENVIRONMENTAL INSTRUMENTS
- clear Governmental will - lack of governmental [EXCLUDING MARINE ENVIRONMENT]
to enforce environmental willingness to enforce
laws 1971 - RAMSAR Convention on Wetlands of International
Importance [Ramsar Convention]
1972 - Convention Concernin the Protection of the World
Personal Cultural and Natural Heritage [World Heritage
- positive personal - fear of change Convention]
relationships between - inertia 1972 - Declaration of the United Nations Conference on the
program personnel and - ignorance about Human Environment
facility managers requirement 1973 - Convention on International Trade in Endangered
- desire on the part of the - ignorance about how to Species of Wild Flora and Fauna [CITES]
facility manager to avoid meet the requirement 1979 - Convention on the Conservation of Migratory
legal process Species of Wild Animals [Bonn Convention]
- desire to avoid jail, the
Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 103
1985 - Convention for the Protection of the Ozone Layer ~conciliatory in style and not penal in style ( in envi law,
and 1987 Montreal Protocol [Ozone Convention and there is harm to the environment as there is harm to people,
Montreal Protection] contrary to penal principle of an eye for an eye)
1989 - Basel Convention on the Control of Transboundary ~use tripartite team for mediation (one representative from
Movements of Hazardous Wastes and their Disposal the gov't, the factory, and the community)
[Basel Convention] ~severe warnings, temporary suspension, revocation
1992 - Rio Declaration on the Environment and
Development MALAYSIA
1992 - Agenda 21 [UNCED, 1992] ~provision on environmental audit (they audit themselves
1992 - Convention on Biological Diversity [Biodiversity like what environmental procedure is taken and etc.)
Convention] ~multiple increase; fines (more discretion is given to the
1992 - United Nations Framework Convention on Climate court)
Change [Climate Change Convention]
2001 - Stockholm Convention on Persistent Organic -----------------------------------------------------------------------------
Pollutants [POPs] CONSIDER THE FF QUESTIONS FOR FINALS:
1. Provide Laws where PH provides for implementation
d. Biosphere Reserves Linkages with Select Multilateral of RAMSAR Convention
Environmental Agreements 2. PRINCIPLE OF PRIOR INFORMED CONSENT
3. What is a protocol?
4. What is the role of Arbitration in peaceful way of
settling disputes;
Wetlands 1971 5. What is EEZ?;
Ramsar
Convention 6. Principle of common heritage of mankind
7. Management of High Seas re UNCLOS [areas beyond
Desertiication
national jurisdiction/areas]
1994 World Heritage 8. Relate IPRA with CBD;
Convention to 1972
combat Convention 9. Distinguish between National Cultural Treasure and
desertiication Important Cultural Properties
10. PRECAUTIONARY PRINCIPLE
Biosphere
Reserves & 11. Convention on Biodiversity vs. Intellectual Property
Multilateral Rights
Environmental
Agreements 12. Exhaustion of Administrative Remedies in
Environmental Law suits
Migratory
Climate Change Species of Wild 13. What are national legislations passed to implement
1972 Rio Animals 1979 Environmental MEA/Treaties
Convention Bonn
Convention 14. ASEAN ENVI LAW re: Transboundary Haze, Disaster
Mgt, Cooperation in Mekong River
1992 Biological
Diversity
Convention`` ---------------End----------------
UIOGD
e. Legislations in Compliance by ASEAN Countries in
Environmental Laws
SINGAPORE considered most rule conscious among
ASEAN
Regulates system permits; license mandatory rec
~system of inspection warnings (e.g factories required to
have anti-pollution equipment)
~consultation prior prosecution
~creativeness in littering (w/ vest to clean; seminar; media)
INDONESIA
Compliance strategy is:
Environmental Laws [Amb. Tolentino] AKD&ITG NOTES | 2ND SEM SY 15-16 P. 104