PUBLIC INTERNATIONAL LAW [November 23, 2019]
It is the conduct of the state
*Recording is cut from the start*
INTERNATIONAL ENVIRONMENTAL LAW
How do we define the environment?
In Nuclear Weapons Advisory Opinion, yada yada yada
the physical components, the biological components,
and even the cultural components.
Therefore, important kaayo ang “glow-up” sa
environment. Before it used to be merely an economic
resource, an object susceptible to exploitation, we
never considered it as a part of our lives.
The second wave, we started realizing that without a
decent environment we could not have meaningful
enjoyment of our fundamental rights. So the second
“glow up” is we considered the environment as a pre-
requisite for the enjoyment of fundamental human
rights.
In the third wave, our treatment with respect to the
environment. We give rights to the environment as a
separate being, autonomy. It is a legal subject already, it
will be given legal standing. That’s the right of nature
movement.
Two principles: [1] prevent environmental damage; [2]
ensuring balancing approach.
Which is stricter? Prevent…because they decree that
whenever there is a potential harm to the environment
you will not continue with it.
The second set says that it is okay to exploit the
environment so long as the measure will be taken either
to minimize the harm, or to pay the damage that may
be caused.
NO HARM PRINCIPLE
To contextualize the discussion, States have the
sovereign right to exploit their resources under their
jurisdiction. But CIL imposes a limit, that States cannot
exploit its own resources “in a manner” that is harmful
to other States.
Is it an absolute principle? Is there a defense? Yes. The
risk will have to be unforeseeable. For example in
transboundary harm, the duty to prevent
transboundary harm as we know is an obligation of
conduct, and not of resort.
that is observed to determine whether there is a
violation of the no harm principle, and not the effects.
So, it is okay that it will cause harm to neighboring
states, otherwise it would be unreasonable for you
because mo-travel man gyud ang smoke di ba?
There is a defense to no harm principle, which is? Due
diligence of obligation
What do you mean by that? The diligence is reasonable
when—they are supposed the conduct all their activities
that is within their own capacity to observe diligence
and mitigate the harm that will result to these activities.
Trail Smelter Case
Canadian firm which emitted hazardous fumes. It is in
British Columbia in Canada and the other affected state
is the US, specifically, Washington an agricultural state.
US brought a case against Canada for the transboundary
damage it caused to the agricultural fields. Us argued
that it is okay for you to do whatever in your territory so
long as you do not affect other states.
The no harm principle admits of a defense. So long as
you can show that you have taken appropriate
reasonbale measures to mitigate the harm, you have
discharged your obligation. Because the no harm
principle is an obligation of conduct.
But in the Trail Smelter case, wala na siya na finding
because Canada did not do anything to mitigate the
possible harm brought about by the fumes.
In no harm principle, a State may not use its territory or
permit a third party to use its territory to conduct
activities harmful to other States. This was the case in
Corfu Channel. The ICJ said you [Albania] have failed its
duty to prevent third State to do activities harmful to
other States.
ENVIRONMENTAL IMPACT ASSESSMENT
EIA is a requirement before States can do a project to
ascertain the impact, the cause, the benefit of the
project to mitigate the adverse effects to the
environment.
What projects require EIA? Drilling operations,
building factories, mining? How will you know it
affects other States?
Under international law, you are only required to Was it proven by Argentina? No, unfortunately, because
conduct EIA if the project is within the border because it there was a lack of nexus to the discharge and the
will significantly increase the risk of transboundary pollution. The court made a conclusion that it could
harm. It is a question of fact. Lahi ni ang domestic EIA have been caused by other factors.
and international EIA.
An important pronouncement here: An environmental
Prosperity Case impact assessment must obviously conducted prior and
it must be continuing. Why continuing? Because there
Costa Rica argues that the dredging causes adverse
could be supervening effects along the way that should
effect to the environment. However, Nicaragua states
allow the State to respond to it.
that it complied with the EIA. But Costa Rica states it is
not sufficient enough. Remember, it is just an assessment to the possible
environmental hazard. It may not be the most accurate.
With regards to the dredging the Court says, there is no
So, when you start operationalizing the project you
adverse effect because we have to take into account
could have not foreseen other risks. That is why
different factors such as geography, weather,
continuing dapat siya.
sedimentary. Second,
*Gio asked a question about coverage I couldn’t hear it
Why was there dredging to begin with? It really was to
clearly. Rapper si kuya boy*
maximize navigational rights to the river because if
mabaw na kaayo ang river dili na sila maka-agi. In international law, it is enough that domestic level
lang imoha EIA, if you presume there is no
With regards to the Convention, reports stated that
transboundary effects. Thus, the best practice of State is
there was no substantial ecological change to the
even if there is no transboundary effect, mo conduct jud
character of the wetlands, because Costa Rica argued
siya og EIA.
that the sedimentation process had adverse effect to
the wetlands of San Juan. In San Juan River case, with respect to consultation—
wala man consultation ana na case—Nicaragua said
Why is this a case of EIA? First, because it had
wala man requirement to notify the other State
something to do with the compliance of EIA which is
especially when there is no significant transboundary
manifested in their treaty. And second, if we
harm. Nindot ra jud gihapon mag notify ka guys, para at
contemplate EIA we have to conduct when there is a
least the States can come up with preventive measures.
shared resource, Costa Rica interposed the claim of
Kung naa man gane eventual case, naa kay defense of
transboundary harm.
good faith.
What is the nature of EIA? When should you conduct
it? It should be prior and if it affects the State—affect na
because we identified naman that there is a significant PRECAUTIONARY PRINCIPLE
risk. w
Even though there is no scientific basis, the States must
Pulp Mills take steps to prevent environmental harm from
happening.
Was Uruguay made liable to this case? No.
Tatar v. Romania case
Did it violate some provisions? Yes, on the procedural
requirements. Because there has to be prior Transgold here had the license to exploit … In exploiting
consultation. Because this pertains to a shared resource this area they were using sodium cyanide. The
—the Uruguay river, so there should be EIA. petitioners in this case were residing within the same
vicinity. The UN released that there was a breach with
Uruguay established pulp mills. There was an allegation
some of the dams. So the petitioner filed administrative
that the discharges in the river has significantly
cases questioning the license granted to Transgold. But
contributed to the pollution. It was Argentina’s
the Minister of Environment did not grant it because
argument that it was Uruguay who caused it.
there was no harm
The petitioner filed another criminal case, according to
the father, the activities of Transgold did not also harm
the environment but also the medical condition of his
son who was suffering from asthma.
Petitioners relied to Article 2: Right to Life. But
according to EctHR, it was Article 8: Right to Respect
Private Life. Pollution could affect anyone—it’s well-
being etc. The State had the duty to ensure the
monitoring activities that there is no health hazard that
can affect the people.
How did the precautionary principle enter into the
picture? Although there was no direct link between
asthma and the sodium cyanide, there are already
reports that it causes environmental risks, and to the
people as well. Even if there is no direct link or scientific
explanation, the State should have taken precautionary
steps to prevent it.
When there is doubt resolve the doubt in favor of the
environmental protection.
Agrobiotech Case
The case involves the petitioners who are the private
agencies and government agencies … a particular
eggplant. *lami kaayo makadalag katawa uy di na
madunggan*
In this case the government has been doing trials,
selecting the areas. They were trying to create a healthy
talongs which is immune to all pests. The side of the
Government were saying that they conducted EIAs
which was disputed by Greenpeace.
This is a case of precautionary principle because the law
that is involved here is the DA administrative order
which sets out the rules on how this created vegetable
will be released. But the SC said, whether these talong
would be harmful to the environment, they chose to
take the side of protecting the environment, because
the AO lacked the certain framework.
What are the elements of precautionary principle?
[1] uncertainty
[2] irreversibility of the damage
[3] seriousness of the damage
Mosqueda case
Aerial spray. The concern of Davao City was that the
aerial spray harms the environment and the local
communities. It is a valid police power. However, the
ordinance is overexclusive and underexclusive at the
same time. It overly censors activities. But that is not
our concern.
The final argument of the City of Davao was to view this
case under the lens of precautionary principle.
But wala gi-apply because it is not enough that you
assert that there be a harm to the environment, it must
be supported by scientific studies. Nag conduct ka og
studies but despite everything it won’t yield definite
results.
BALANCE BETWEEN ECONOMIC AND ENVIRONMENT
Nuclear Weapons Case
Several states argued that because of several existing
conventions on the environment. Dapat i-prohibit ang
use of nuclear weapons. ICJ said, none of these
conventions actually deal with the inherent right of the
state to exercise self-defense. In the extreme
circumstance you can use nuclear weapons but in doing
so think of the environment hazard. It is unreasonable.
Gabchikovo case
Principle of sustainable development: sustainable
exploitation of natural resources.
Intergenerational Equity
POLLUTER BASED PRINCIPLE
It allows for the damage to be done and allow
reparations.
When is this best applied? This does not usually apply to
developing countries. Because what is stopping
connivance between MNC and the government.
COMMON BUT DIFFERENTIATED PRINCIPLE
We recognize our limitations. You cannot require to a
developing state what you require to a developed state.
PRINCIPLE OF PARTICIPATION
Where does this apply? To indigenous communities. Ato
i-involved are the ICs and not the State where they are
situated. Consultation and Participation must be
meaningful. You must be able to apprise them of the
consequences of the project for them to give valid
consent.

Starfish Story ☹

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