PRINCIPLES ON THE RIGHT TO THE ENVIRONMENT AND i.

Basic Principles on the Right to the Environment

THE DEVELOPMENT OF ENVIRONMENTAL JUSTICE 1. Sovereignty Over Natural Resources and the Obligation Not to Cause
Harm
The Right to the Environment is a fundamental right of each person
and need not even be written in the Constitution, for this right has existed Since the 1970s, state sovereignty over natural resources is always
since the inception of humankind. It is only now explicitly incorporated in the read with the obligation not to cause harm. Principle 21 of the Stockholm
Constitution in order to highlight its continuing importance. Environmental Declaration, which is the cornerstone of International Environmental Law,
Justice, meanwhile, is an evolving idea as there is no single universal definition reflects these principles:
for this simple yet powerful concept.
States have, in accordance with the Charter of the United Nations and
To better understand the concepts of the Right to the Environment and the principles of international law, the sovereign right to exploit their
Environmental Justice, this chapter provides a general discussion on the basic own resources pursuant to their own environmental policies, and the
principles on the Right to the Environment that underline the Rules of responsibility to ensure that activities within their jurisdiction or control do
Procedure for Environmental Cases. These principles include: (1) Sovereignty not cause damage to the environment of other States or of areas beyond
over Natural Resources and the Obligation Not to Cause Harm; (2) Principle of the limits of national jurisdiction.
Prevention; (3) Precautionary Principle; (4) Sustainable Development; and (5)
The sovereign right over natural resources includes the right of the
Inter-generational Equity. A discussion of these principles is important for a
states to be free from external interference. The exercise of state sovereignty,
better understanding of what Environmental Law and Environmental Justice
however, has its limits. Principle 21 provides that the state has the
are. It also provides an insight as to the very foundation of some of the
responsibility not to cause harm beyond the limits of its national jurisdiction.
concepts found in the Rules of Procedure for Environmental Cases. In addition
The No- Harm Principle recognizes that a state’s activities may be
to the discussion of these principles, this chapter also explores the concept of
transboundary in nature and is also meant to balance the sovereign principle
a Rights-based Approach and the development of Environmental Justice in the
of states and require them to take responsibility for their actions which cause
Philippines.
harm outside their own territory.
 2. Principle of Prevention 3. Precautionary Principle
The Principle of Prevention aims to stop environmental damage even Principle 15 of the Rio Declaration, commonly known as the Precautionary
before it occurs or when it is critical and potential damage may already be Principle states:
irreversible.
In order to protect the environment, the precautionary approach shall be
The Principle of Prevention should be differentiated from the widely applied by States according to their capabilities. Where there are
Obligation Not to Cause Harm. The Obligation Not to Cause Harm deals with threats of serious or irreversible damage, lack of full scientific certainty shall
the effects of a state’s activities outside its own territory without regard to not be used as a reason for postponing cost-effective measures to prevent
activities that cause environmental harm within the state. The Principle of environmental degradation.
Prevention encompasses environmental harm within a state’s own territory.
This principle advocates that the potential harm should be addressed even
In applying this principle, action should be taken at an early stage to with minimal predictability at hand. The Precautionary Principle requires a
reduce pollution rather than wait for the irreversible effects to occur. For high degree of prudence on the part of the stakeholders. Decision makers are
instance, the discharge of toxic substances in amount which exceed the not only mandated to account for scientific uncertainty but can also take
capacity that the environment can handle must be halted in order to ensure positive action, e.g., restrict a product or activity even when there is scientific
that no irreversible damage is inflicted. This is done to prevent irreversible uncertainty.
harm for it is better to stop the pollution rather than commence efforts to
Under Rule 20 of the Rules of Procedure for Environmental Cases, the
clean the contaminated areas later in the day.
Precautionary Principle is adopted as a rule of evidence. The Supreme Court’s
One of the methods by which this principle is carried out is through the adoption of the Precautionary Principle in the newly promulgated Rules of
issuance of permits or authorizations that set out the conditions of Procedure for Environmental Cases affords plaintiffs a better chance of
administrative controls and criminal penalties. Another application of this proving their cases where the risks of environmental harm are not easy to
principle is the conduct of an Environmental Impact Assessment (EIA). In the prove.
Philippines, the governing law in the conduct of an EIA is PD No. 1586 entitled
“Establishing An Environmental Impact Statement System, Including Other
Environmental Management Related Measures and for Other Purposes.”
The Principle of Prevention is based on the idea that it is better to
prevent than employ measures, after harm has occurred, in order to restore
the environment. This principle has been expanded by a relatively new
principle – the Precautionary Principle.
• Leatch v. Natural Parks and Wildlife Service, 81 4. Sustainable Development
LGERA 270 (1993) Sustainable Development is the process of developing land, cities,
businesses, communities, and so forth that “meets the needs of the present
• Facts: Section 92 of the National Parks and Wildlife Act 1974 (NSW) without compromising the ability of future generations to meet their own
appoints a scientific committee to review and continuously examine the needs.”The concept of Sustainable Development carries two key concepts.
list of endangered fauna. The endangered fauna may be categorized First, is the existence of needs with particular focus to the needs of the poor.
under “threatened” or “vulnerable and rare.” Since the Director- Second, is that the environment has limitations in meeting the needs of
General of the National Parks and Wildlife Service was appointed as the present and future generations.
authority for the care and protection of fauna, the Director-General is
the only person authorized to issue licenses to take or kill endangered The Principle of Sustainable Development addresses the need to
fauna. The Director-General’s decision will take into consideration the reconcile issues of development and environmental protection. It recognizes
fauna impact statement, submissions received, factors under Section that development requires economic exploitation to satisfy the needs of the
92(A)(5) and (6), and the reasons under Section 92(A)(3)(d). The growing population while at the same time protecting the environment for
Shoalhaven City Council applied for a license to take or kill endangered future generations. The concept of sustainable development seeks to achieve
fauna, but this was not granted by the Director-General. exploitation of resources while leaving the environment intact for the use of
future generations. Non-renewable resources must be used as efficiently as
• Issue: Whether the Shoalhaven City Council should be granted the possible. According to this principle, there must be optimal management of
license to take or kill endangered fauna. natural resources.
• Ruling: In applying the Precautionary Principle, the Court said that the The Principle of Sustainable Development is embodied in the Philippine
Precautionary Principle is not an extraneous matter. “While there is no Agenda 21 which was formulated as a response to the country’s commitments
express provision requiring consideration of the ‘Precautionary in the 1992 Earth Summit in Rio de Janeiro, Brazil.
Principle,’ consideration of the state of knowledge or uncertainty
regarding a species, the potential for serious or irreversible harm to an
endangered fauna and the adoption of a cautious approach in
protection of endangered fauna is clearly consistent with the subject
matter, scope and purpose of the Act.”
 5. Intergenerational Equity Such rhythm and harmony indispensably include, inter alia, the
judicious disposition, utilization, management, renewal and conservation of
• The concept of Intergenerational Equity supports the Principle of
the country’s forest, mineral, land, waters, fisheries, wildlife, off-shore areas
Sustainable Development with respect to holding the natural resources
and other natural resources to the end that their exploration, development
in trust for future generations. Nevertheless, this principle does not
and utilization be equitably accessible to the present as well as future
stop there. Inter-generational Equity is defined as “each generation’s
generations. Needless to say, every generation has a responsibility to the next
responsibility to leave an inheritance of wealth no less than what they
to preserve that rhythm and harmony for the full enjoyment of a balanced and
themselves have inherited.”
healthful ecology. Put a little differently, the minors’ assertion of their right to
In the landmark case of Oposa v. Factoran, the Supreme Court had the a sound environment constitutes, at the same time, the performance of their
occasion to discuss the concept of Intergenerational Responsibility. The case obligation to ensure the protection of that right for the generations to come.
was instituted by minors along with their parents alleging that then Secretary
of Natural Resources Fulgencio Factoran acted with grave abuse of discretion
in issuing Timber License Agreements (TLAs) to cover more areas.
Respondents alleged that the minors, who invoked the right to a balanced and
healthful ecology, had no valid cause of action. On the issue of petitioner’s
standing, the Honorable Court held that the minors were entitled to sue on
the basis of Inter-generational Responsibility. The Supreme Court through
Justice Davide explained:
This case, however, has a special and novel element. Petitioners minors
assert that they represent their generation as well as generations yet unborn.
We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based
on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as hereinafter
expounded, considers the “rhythm and harmony of nature.” Nature means the
created world in its entirety.
 ii. Rights-based Approach “the equitable distribution of burdens of the environmental harms among
various groups.”185 One author suggests that there are two fundamental
Environmental Justice stems from a growing recognition that
principles of Environmental Justice namely: distributive and procedural justice.
the Right to the Environment is a fundamental human right which ought to be
In Environmental Justice, distributive justice refers to the equitable
protected. The Rights-based Approach in Environmental Justice is reflected in
distribution of environmental risks and harms. Procedural justice, on the other
various international instruments. The Universal Declaration of Human Rights
hand, focuses on the right of the stakeholders to participate in decision-
provides for the “right to a standard of living adequate for health and well-
making processes concerning the environment and enabling them to access
being.” The right carries with it the Right to the Environment. Later on, the
relevant information.
Stockholm Declaration, which is the primary document in International
Environmental Law, would state in clear and express terms the Right to the While the concept of Environmental Justice differs depending on the
Environment. Principle 1 of the Stockholm Declaration states: perspective of the individual or entity, the ultimate goal is to enhance the
involvement of the people and to ensure access to justice. As a means of
Man has the fundamental right to freedom, equality and adequate
addressing these concerns, there is heavy emphasis on the policies, laws, and
conditions of life, in an environment of a quality that permits a life of dignity
legal procedures. In the context of the judicial system, Environmental Justice
and well-being, and he bears a solemn responsibility to protect and improve
is tested in the light of the existence of adequate laws and policies, the quality
the environment for present and future generations. In this respect, policies
of its enforcement, and the existence of available remedies for those affected
promoting or perpetuating apartheid, racial segregation, discrimination,
by violations of the environmental laws and regulations.
colonial and other forms of oppression and foreign domination stand
condemned and must be eliminated. C. Development of Environmental Justice in the Philippines
Under the Rights-based Approach, the right of persons to The Right to a Balanced and Healthful Ecology is oftentimes seen as a
environmental protection has the same level as basic human rights. The state policy having been placed under Article II of the 1987 Constitution or the
adoption of this approach plays a crucial role in litigation because persons Declaration of State Policies and Principles. The Right to the Environment,
would be allowed to litigate on the basis of their right to a healthy however, re-emerges under other constitutional provisions on social justice
environment in the same way that they can litigate for violations of their civil and human rights both of which are treasured concepts as early as the 1935
and socio-economic rights. Constitution.
In line with the Rights-based Approach, there is a growing trend The Right to the Environment also falls under the complete concept of
towards achieving Environmental Justice. Presently, the concept of human rights which is sought to be protected by Section 1, Article III of the
Environmental Justice varies among groups. Some define Environmental Constitution. Section 1, Article III of the Constitution states that “No person
Justice as “the goal of achieving adequate protection from the harmful effects shall be deprived of life, liberty and property without due process of law x x x.
of environmental agents for everyone, regardless of age, culture, ethnicity, The right to life means the right to a good life, which in turn requires a sound
gender, race, or socioeconomic status.” Others view Environmental Justice as environment.
 The Supreme Court affirmed the right to a healthy
environment as an enforceable right in In the justice system, the promotion of Environmental Justice is
couched in more specific terms. The five pillars of the justice system, namely:
Oposa v. Factoran. the community, enforcement, prosecution, judiciary and penology have their
respective roles in promoting Environmental Justice. The community is tasked
Addressing the issue on whether the right to the environment constitutes a
to take an active participation in the promotion and enforcement of
valid cause of action, the Supreme Court stated that the right to a balanced and
environmental laws and in the prevention of environmental damage.
healthful ecology carries with it the correlative duty to refrain from impairing
the environment. The Honorable Court cited the plenary session of the 1986 The enforcement pillar ensures the prompt and proper enforcement of
Constitutional Commission in order to show the intent of the framers of the environmental laws by the arrest of offenders and the seizure and disposition
Constitution. Commissioner Azcuna, the proponent of Section 16, Article II of the prohibited goods or paraphernalia, among other things. The
answered Commissioner Villacorta’s query in this wise: “[t]he right to healthful prosecution is tasked with the determination of probable cause for the filing
(sic) environment necessarily carries with it the correlative duty of not of an information for Environmental Law violations which are criminal in
impairing the same and, therefore, sanctions may be provided for impairment nature and the exercise of other prosecutorial functions. The judiciary is
of environmental balance.” tasked to promulgate rules concerning the judicial remedies available for
violations of environmental laws as well as resolve environmental cases filed
On the basis of the Right to the Environment, the Supreme Court
before the courts. Finally, penology is tasked with the commitment of violators
proceeded to explain the state’s correlative duty of protecting the same.
of environmental laws and the adoption of alternative means of sentencing
Under Section 4 of EO No. 192, the Department of Environment and Natural
offenders.
Resources (DENR) was tasked as the “primary government agency responsible
for the conservation, management, development and proper use of the The Supreme Court plays a crucial role in Environmental Justice.
country’s environment and natural resources, specifically forest and grazing Pursuant to Section 5, Article VIII of the Constitution, the Supreme Court is
lands of the public domain, as well as the licensing and regulation of all natural vested with the power to:
resources as may be provided for by law in order to ensure equitable sharing
Promulgate rules concerning the protection and enforcement of
of the benefits derived therefrom for the welfare of the present and future
constitutional rights, pleading, practice, and procedure in all courts, the
generations of Filipinos.”
admission to the practice of law, the Integrated Bar, and legal assistance to
While the DENR is designated the lead agency responsible for the the under-privileged. Such rule shall provide a simplified and inexpensive
conservation, management, development and proper use of the country’s procedure for the speedy disposition of cases, shall be uniform for all courts
natural resources, this does not mean that the other agencies of the of the same grade, and shall not diminish, increase, or modify substantive
government do not have their corresponding obligations as regards rights. Rules of procedure of special courts and quasi-judicial bodies shall
environmental management and protection. remain effective unless disapproved by the Supreme Court.
 The authority to promulgate rules gives the Supreme Court the totality In line with these objectives, the Rules of Procedure for
of administration of justice. In 2009, the Supreme Court focused on the Right Environmental Cases incorporate the following strategies:
to a Healthy Environment by conducting a Forum on Environmental Justice in
Baguio City, Iloilo City and Davao City. The forum aimed to address issues on a. Liberalized legal standing and citizen’s suit;
the high cost of litigation, adopting innovative rules and ensuring compliance
with the decisions of courts. The Supreme Court has also taken steps to hasten b. Speedy Disposition of Cases;
the process of resolving environmental cases by designating 117 green
c. Special Remedies in the form of the Writ of Kalikasan, Writ of
benches. Through the Philippine Judicial Academy, the Supreme Court has
established a long term capacity building program for the judges of the Continuing Mandamus, Environmental Protection Orders;
designated green benches. d. Consent decree;
On April 13, 2010, the Supreme Court promulgated the e. Adoption of Strategic Lawsuit Against Public Participation
Rules of Procedure for Environmental Cases. The Rules of (SLAPP).
Procedure for Environmental Cases is established with the
following objectives: Clearly recognizing the need to adopt a multi-sectoral
framework in addressing environmental issues, the Supreme
a. To protect and advance the constitutional right of the Court’s next step is the greening of the other pillars of the judicial
people to a balanced and healthful ecology; system namely: the community, enforcement, prosecution, and
b. To provide a simplified, speedy and inexpensive penology. The participation of these pillars within the framework
procedure for the enforcement of environmental rights of Environmental Justice shall be discussed in the succeeding
and duties recognized under the Constitution, existing chapters.
laws, rules and regulations, and international
agreements;
c. To introduce and adopt innovations and best practices
ensuring effective enforcement of remedies and
redress for violation of environmental laws; and
d. To enable the courts to monitor and exact compliance
with orders and judgments in environmental cases.
MULTILATERAL ENVIRONEMENT AGREEMENTS AND THEIR PROTOCOL 4. 1992 Convention on Biological Diversity
1. United Nations Convention on the Law of the Sea25 (UNCLOS) The 1992 Convention on Biological Diversity33 was ratified by the
Philippines on October 8, 199334 while the 1979 Bonn Convention on the
The UNCLOS was ratified by the Philippines on May 8, 1984.26 Of
Conservation of Migratory Species of Wild Animals was ratified by the
particular importance is Article 194 which obliges parties to take measures to
Philippines only on January 2, 1994.35 The Bonn Convention is a framework
prevent pollution of the marine environment from any source, including “land-
convention under which parties may enter into agreements and memoranda
based sources” and “installations and devices used in exploration or
of understanding for the conservation of certain species. It is significant that
exploitation of the natural resources of the seabed and subsoil.”
the Philippines is a signatory to the Memoranda of Understanding (MOU) on
2. 1985 Vienna Convention for the Protection of the Ozone Layer the conservation of marine turtles, dugongs and sharks. However, it is not a
signatory to the MOU on Pacific Island cetaceans.36
The 1985 Vienna Convention for the Protection of the Ozone Layer and
its 1987 Montreal Protocol on Substances that Deplete the Ozone Layer28 5. 1998 Rotterdam Convention on the Prior Informed Consent Procedure for
were both ratified by the Philippines on July 17, 1991.29 These international Certain Hazardous Chemicals and Pesticides in International Trade
instruments oblige parties to phase out substances that deplete the ozone
The 1998 Rotterdam Convention on the Prior Informed Consent
layer such as chlorofluorocarbons (CFCs) and hydro-chlorofluorocarbons
Procedure for Certain Hazardous Chemicals and Pesticides in International
(HCFCs) which are used in the air-conditioning systems of many of our older
Trade37 was ratified by the Philippines on July 31, 2006.38 The convention
cars, offices and houses.
requires exporters trading in specific harmful chemicals such as asbestos39
3. 1989 Basel Convention on the Control of Transboundary Movements of and endosulfan40 to provide information on their potential health and
Hazardous Wastes and their Disposal environmental effects so that the importing country can decide on trade
measures affecting such chemicals.
The 1989 Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal 30 was ratified by the 6. 2001 Stockholm Convention on Persistent Organic Pollutants
Philippines on October 21, 1993.31 It declares illegal the transboundary
The 2001 Stockholm Convention on Persistent Organic Pollutants41
shipment and disposal of hazardous wastes, such as your spent cellphone
was ratified by the Philippines on February 27, 2004.42 It binds parties to
batteries and old computer units, except for recycling. However, in 1994, an
immediately ban the production and use of certain pesticides such as aldrin
amendment to the Basel Convention proposed a total ban on the
and to eventually phase out other pesticides such as DDT as these can
transboundary movement of hazardous waste from developed countries to
adversely affect human health and the environment around the world. These
developing countries. It is to be noted that the Philippines has not ratified this
dangerous substances are transportable by wind and water.
amendment. Neither has Japan nor Australia.
Philippians 4:13 “I can do all things through Christ which strength me”