Barack Obama changed the political landscape in the US and globally by harnessing the power of the Internet and maximizing its use to his advantage. His triumph may be attributed to a confluence of other factors such as his personal charisma, intelligence, determination, seeming sincerity and academic and family background. But without the Internet at his disposal, Obama could not have gone on to win the election. Thus, what seemed like an impossibility, given his demographics, was made possible by the great equalizer of our time---the Internet.
The biggest push that the Internet gave Obama was how he was able to use the Internet to raise money. Ironically though, it was the Republicans who blazed the trail decades ago in campaign fundraising by using computers to manage mailing lists of donors. But Obama used the Internet to raise over $600 million in contributions from over 3 million donors thereby destroying the concept of public financing of major political contests.
Another big factor in the Obama campaign is how they were able to use the Internet to attract and organize volunteers. With his personal experience in campaigning for the State Legislature of Illinois, he came in with a solid experience and background in grassroots organizing and Obama used the power of the Internet to effectively rally and organize his supporters. It was also crucial that he was able to use the Internet to manage his rapidly growing numbers of supporters and volunteers, a strategy not matched by McCain. Wired.com reports that myBarackObama.com chalked up some 1.5 million volunteer accounts during the campaign.
Such organizational ability coupled with Internet fundraising dramatically altered how campaigns will be waged in the future. Obama's campaign efficiently utilized web 2.0 platforms marking a dramatic turn in electoral politics in America and across the globe, shifting from old-style political machines towards online social networks. This translated to a solid mass base and record-breaking grassroots fundraising totalling more than $160m (£80m) from people who gave comparatively tiny amounts of $200 or less. More importantly, Obama's online advertising of $7.97m (£4m) was tiny and therefore cost-efficient compared to his costly TV exposure. $3.5m of the online expenses was on adwords by Google searches. The figures for Facebook was even smaller at $467,000 total, almost all ($370,000) in September.
The Internet was Obama’s lucky charm if ever he had one---outrageously cheap but with maximum impact. He succeeded because surveys indicate that around 46% of Americans used the web, email or text messaging for news about the presidential campaign, to contribute to the debate, or to mobilise others. Some 35% of Americans said they watched online political videos three times more than during the 2004 presidential election because YouTube wasn’t around yet then. Roughly 10% said they logged on to social networking sites to engage in the election.
Obama, who is inseparable from his BlackBerry, clearly understood the power of the Internet. His campaign used Facebook and YouTube, but also MySpace, Twitter, Flickr, Digg, BlackPlanet, LinkedIn, AsianAve, MiGente, Glee, among others. He knew the value of YouTube, Facebook and links to various websites and even blogging. A clip of Barack Obamba discussing on a radio show his desire to "spread the wealth" around was viewed on YouTube 2,393,392 times and this changed political marketing forever. Political news watched via Internet video clips has now gone mainstream illustrated by the huge viewing numbers for election day on CNN.com: CNN.com Live: 4.9 million live streams and an additional 6.7 million on-demand video streams.
The 2008 election also solidified the political blogger as an authoritative voice in politics. Non-partisan political sites like RealClearPolitics.com and Politico.com have also become mainstream. The RealClearPolitics.com poll average map in particular has been routinely source-referenced by the major television networks and news websites. This in turn changed news organization report on poll data and made people more understanding of variations in polls whereas outlying poll results were not given as much credence in the past.
Obama’s use of the vast powers of the Internet has transformed such strategy and will continue to evolve to become one of the most powerful weapons a candidate has in their quest to organize, rally, raise funds, and ultimately win the election.
Now, may Obama’s feat be replicated in the Philippines? Yes, but only to a certain extent. When even the United Kingdom is hard pressed to follow Obama’s act because of the lack of awareness of the public in terms of how the Internet can transform electoral politics, how much more in our Third World setting?
How can the Internet be instrumental in our political panorama when not even quarter of our entire population is able to use the Internet?
As Dr. Llana put it in his discussion on Open Service/Open Access, internet usage in the Philippines is only pegged at 20% and this is only concentrated in the urban areas. Yes, Obama’s strategies will work here in the Philippines but only to the extent that the Internet has reached the public.
In farflung rural areas where there is hardly even any Internet access, traditional grassroots organizing will still do the trick. And this lack of access to information is sadly being used by our traditional politicians to their advantage.
How can an Internet Campaign be done on the cheap in the Philippines? No, it cannot be done on the cheap given the lack of infrastructure in the country. One must invest, in the long-term, in equipment and infrastructure to wire a nationwide campaign. In the short-term, one may provide one’s political contact points with a laptop with wifi-access such as Globe Visibility, PLDT WeRoam, SmartBro and also Sun service. But again the success and effectivity of such campaign tool will depend on the reliability of the network provider.
Monday, August 31, 2009
Thursday, August 27, 2009
Human Rights, the Law and the World We Live In
“Justice is the first virtue of social institutions,
as truth is of systems of thought.
A theory however elegant and economical
must be rejected or revised if it is untrue;
likewise laws and institutions
no matter how efficient and well-arranged
must be reformed or abolished if they are unjust.
Each person possesses an inviolability
founded on justice
that even the welfare of society as a whole
cannot override.”
- John Rawls, A Theory of Justice
It is now well-recognized that there are important linkages between human rights, the environment and the law. Such interrelationship stems from the recognition of the increasingly negative impact of environmental degradation on human life, which directly affects the full enjoyment of human rights and the achievement of sustainable development that is respectful of the whole spectrum of human rights---including the right to life, to health, to habitation, to equality before the law, and the right to enjoy one’s property.
These linkages between the protection of human rights and the protection of the environment have long been recognized as early as 1972 during the United Nations Conference on the Human Environment wherein it was declared that "man's environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights--even the right to life itself."
There has been so much written on the multifarious issues and problems plaguing our environment because scholars, scientists, lawyers and human rights advocates alike, at some point, agree that environmental change is now no longer a technical problem but a political and economic one as well. These fields of study now widely acknowledge the important role of the ideas, policies and actions of state elites and the impact of capitalist development on the environment and how these environmental transformations, in turn, affect human relationships, and have potentially serious social and economic consequences for the poor and disadvantaged.
King, highlighting the importance and focus of the contributions of the late Prof. James Jackson to the discourse on human-environment interactions, points out that it is crucial to emphasize how the environment has been shaped by human agency and the importance of cross-disciplinary perspectives, historical context and the interplay between Western-derived and South-East Asian perceptions of the environment.
The landscape of the debates in international human rights and more particularly in international environmental has been witnessing rapid changes or developments, one of which is a shift in the concern from what are the limits on what the earth can supply to the limits on what the earth can safely absorb such as toxic wastes. Apart from toxic nuclear waste, tons of “regular” garbage, waste that is generated daily on an unprecedented and unmanageable scale, poses a greater challenge. A typical response has been the usual dumping of these wastes from the rich developed countries of the North to the poor underdeveloped countries of the South. Some developed countries like Germany and Japan have even gone so far as to masquerade their toxic wastes as aid to poorer countries in order to facilitate the ease of disposing of such waste materials.
In our jurisdiction, the presence of two major garbage sites, namely the Payatas dumpsite and the San Mateo Landfill, in the vicinity of two densely populated residential areas shows how the negative effects of development on the environment is gravely detrimental to human health.
But first let us define what these human rights are in the context of environmental change and public international and environmental law as well as the pertinent municipal laws involved.
When we refer to human rights we mean those fundamental entitlements and liberties which individuals possess simply because they are human beings: these bundle of rights in its entirety are enjoyed by every individual---regardless of social status, economic wealth, religion, gender, nationality, age or racial or ethnic origin--- and which are inherent in our nature and without which we cannot live as human beings. According to the great Pepe Diokno, one cannot enjoy one set of rights without enjoying the other rights, in order to give way to the infinity of human worth.
One definition of human rights is that these are “those liberties or immunities, and benefits which, by accepted contemporary values, all human beings should be able to claim ‘as of right’ of the society in which they live”. Another common notion of human rights refers to these rights of an individual as a human being, which are recognized by the international community as a whole through their protection and promotion under contemporary international law.
Human rights are also simply regarded as those fundamental and inalienable rights which are essential for life as a human being.”
What then is international human rights? One definition is that it is the “law which deals with the protection of individuals and groups against violations by governments of their internationally guaranteed rights as well as with the promotion of these internationally guaranteed rights”.
The preamble of the UN Charter declares that the peoples of the UN through their governments have agreed to the UN Charter and establish an international organization to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations.
Human rights are enumerated and classified under various internationally recognized instruments such as the UN Charter, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR and the ICESCR further classifies human rights into what are termed “first generation rights” which are civil and political rights and those referred to as “second generation rights” or economic, social and cultural rights.
Dean Magallona explains how the human rights has been “internationalized” under the UN Charter: “The acceptance by the international community of the human rights “regulation” as provided in the UN Charter has shifted matters or questions pertaining to human rights from exclusive domestic jurisdiction of states to international legal regulation. Further developments in the UN System, marked by the conclusion of more than 20 multilateral conventions on human rights, have firmed up the trend in human rights in terms of binding obligations in international law. In addition, there are three regional human rights treaties. Decisions and actions of various UN organs and subsidiaries have deepened human rights observance in a broad field of state practice not only in internal state mechanisms but as well as in diplomatic conferences and international bodies.”
The deleterious effects of the presence of the Payatas dumpsite and the San Mateo Landfill to the quality of water available to residents of the affected areas and to general public health illustrates the negative impact of environmental degradation on quality of life and the full enjoyment of human rights of the affected communities, specifically the right to life , to clean water, to clean air, to a healthy environment, and to enjoy their property, and the right to live. But the same inherent rights---the right to life, to a healthy environment, to clean air and water and the right to property---are limited under the same instruments that they are drawn and protected.
In their book entitled “Defending the Environment: Civil Society Strategies to Enforce International Environmental Law”, Linda Malone and Scott Pasternack say that Whenever environmental degradation results in a human harm that violates accepted human rights norms, an international, regional or domestic human rights committee, commission, an/or court may provide a remedy that can contribute effectively to rectifying the underlying environmental degradation as well as human rights violation.
Malone and Pasternack state that environmental human rights refer to the link between human rights and the environment: (1) involves the deprivation of human rights as a result of environmental degradation; (2) that an act or omission of the nation-state has proximately caused environmental degradation that deprives individuals or groups within the jurisdiction of that nation-state of certain rights that the nation-state is obliged to safeguard for those individuals or groups. Essentially, there are three conditions that must be fulfilled for an environmental human rights claim to prosper and these are: (1) the existence of environmental degradation ; (2) a nation-state action or omission that results in or contributes to that environmental degradation, referred to as “State action”; (3) a deprivation of human rights that results from the environmental degradation.
Despite the claims of the local government units concerned that they comply with all the pertinent laws, the operations of the two dumpsites do not comply with the standards drawn by municipal laws such as the Ecological Solid Waste Management Act (Republic Act 9003) , Philippine Environmental Policy (Presidential Decree 1151), Philippine Clean Water Act (Republic Act 9275) , Philippine Clean Air Act (Republic Act 8479) and the Code of Sanitation of the Philippines (Presidential Decree 856).
Therefore the violation of the right of the public to clean water, to clean air and to a healthy environment is equivalent to a violation of their inalienable right to life and the violations of their property rights. These violations are punishable under relevant municipal laws as well as relevant international treaties to which the Philippines is a signatory in the light of the fact that Art. II (2) of the 1987 Constitution recognizes the generally accepted principles of international law.
At this point, so many questions come to mind. If these violations are punishable under these laws and treaties, may the Philippine Government be thus held accountable for such violations? Apart from the state, who else may be held liable for these violations? What are the reliefs and remedies of the aggrieved parties under municipal law as well as under specific international covenants?
Since international law and municipal law have both been violated which court of justice, what law must be ascertained and administered by the appropriate court of justice? Given that in human rights discourse, government has the obligation or duty not only to protect, but also to fulfill, the rights of its citizens, how and to what extent may our government be held liable for their violations of their citizen’s rights? What court would acquire jurisdiction? Would the doctrine of exhaustion of domestic remedies still apply?
And what are the advantages to using a human rights approach in international environmental law? Using a human rights approach, how then must their liability be determined and to what extent may they be held liable?
Hunter tells us that international environmental law can learn much from employing a rights-based in human rights law, that in the last fifteen years or so, international environmental law scholars and activists looked upon on the law of human rights both as a model for the progressive development of international environmental law and an independent legal strategy for protecting the environment. In concrete terms, human rights law challenges traditional state-centric models of justice thus allowing individuals access in the international legal system.
Bodansky points out some differences in reporting and enforcement requirements between international environmental and human rights law: (1) most international environmental problems cannot be addressed by individual states acting alone but require collective effort, while human rights obligations do not depend on reciprocity in the same way; (2) international environmental law is directed at the control of the private rather than governmental conduct while human rights are perceived as rights viz. governments which can be primarily violated by government actions; (3) human rights treaty regimes tend to be more legalistic than international environmental regimes whose primary task is political and take a political rather than a legal approach to compliance questions.
In our jurisdiction, there have been precedents where the claimants may hinge arguments on such as the recent SC decision ordering the clean up of Manila Bay upon the petition of Metro Manila residents . Also, the San Mateo Landfill has been ordered by the SC permanently closed in a recent decision. But recent developments and the reopening of a new landfill in San Mateo in almost the same area as the subject of the SC decision necessitate another look at the matter.
Using Malone and Pasternack’s framework and armed with local and international laws and jurisprudence, those directly affected by the presence of the Payatas Dump Site and the San Mateo landfill may pursue their claims against the local government units, the corresponding government agencies such as the DENR in Philippine jurisdiction as well as in international venue invoking the ICCPR and the ICESCR to which the Philippines is a signatory.
We must address the issue of protecting our resource of clean water and that of a healthy environment because it is directly related to our inherent right to life. Studying the deleterious effects of the operations of several dumpsites in the Philippines may prove to be a useful exercise of the Principle of Common but Differentiated Responsibility, which takes into account the differing circumstances of different states in the discharge of such responsibilities.
In our case as a developing country with limited resources and technological knowledge in addressing these concerns, we are still bound to protect environmental resources such as clean water, clean air and a healthy environment, while taking into consideration our limitations in addressing these particular environmental concerns.
A mere cursory look at our existing laws would yield that there is no lack of legislation nor precedents in jurisprudence to address pressing environmental problems in our jurisdiction. What we need is political will to enforce what laws we already have in a more proactive stance, always bearing in mind that prevention is key.
For instance, RA 8749 or the Clean Air Act explicitly states a recognition of rights which provides an injured party with a specific law when pursuing a cause of action and a claim for damages . The Polluter-Pays Principle which is a concept recognized only in developed countries must be incorporated and legally enforced in our jurisdiction in order to add or reinforce safeguards to our natural resources and environment.
Our Constitution specifically provides that we all have the right to a balanced and healthful ecology, a provision that recognizes our increasingly deteriorating environment. All through out our Constitution there are specific provisions, such as the Bill of Rights, that guarantee the protection of human rights---whether civil or political such as the right to life or social, economic or cultural as the right to a healthy environment---and as signatory to the ICCPR and the ICESCR, our government and its corresponding agencies and agents are also under obligation to respect these human rights.
As state party to the ICCPR, the Philippines is under obligation to: (1) respect and ensure to all individuals within its territory the rights recognized in the ICCPR such as the right to life in Art. 3 without distinction of any kind such as race, color, language, religion, political or other opinion, national or social origin, property, birth or other status; (2) undertake necessary steps to adopt necessary legislative measures to give effect to the rights recognized in the ICCPR; (3) ensure that any person whose rights or freedoms are violated shall have an effective remedy notwithstanding that the violation has been committed by persons acting in an official capacity; (4) ensure that any person claiming such a remedy shall have his right be determined by competent judicial, administrative or legislative authorities or by other competent authority and that they shall enforce such remedies when granted.
The clamor to respect the most basic of human rights, the right to life, inextricably linked to other inalienable rights such as right to clean air, clean water and a healthy environment in the face of the challenge of achieving a genuinely sustainable development, is one of the most pressing issues of our time. Sustainable development is brought to the fore here because of the principles of intergenerational equity, of sustainable use, of intragenerational equity and integration in the application of municipal law and in the operations of local waste management are also brought to task.
Thus, if by act or omission, the Philippine government and the different government agencies such as the DENR and the concerned local government units violate the most basic human right to life of injured citizens by the deprivation or violation of the right to a healthy environment and to full enjoyment of one’s property, the government and these agents must be held liable for such violations. Our Constitution takes cognizance of the continuing deterioration of the enviroment which has become a matter of national concern caused by rapid urbanization, industrial growth, population expansion, natural resources utilization, the use of modern technology and other socioeconomic factors; it recognizes the need for an environmental protection program to prevent further injury or damage to plant and animal life and more importantly, to protect human health and safety.
But how may the violations and liabilities of the culpable parties be ascertained both under international environmental law and a human rights regime? What takes precedence in determining the liability: liability of the duty to protect under international environmental law or the duty to respect in international human rights law? May the offender be held liable under Article 32 of our Civil Code as well as held criminally and administratively liable if found guilty by the competent court? What is the extent of the civil liability of the offender for the violation of the rights of claimants? What forms of damages may the claimant be entitled to?
There is no opportunity here to answer the more specific questions as to how the injured parties may seek redress and what the relief and their remedies will be. But suffice it to say that the vast inroads made in international human rights discourse as well as in international environmental law have made it increasingly possible to address the problems that arise in their respective fields.
Though so many questions still need answers---which in turn lead to so many more questions---and so much more has to be done, the one important thing is that we seem to be heading in the right direction.
----------------------------------------------------------------------------
An Epilogue of Sorts
Four years ago, I sat in the Faculty Lounge facing the members of the College of Law Admissions Committee, trying but failing to satisfactorily answer their questions.
At the exact point when my resolve was about to fail, Prof. Jimenez threw me a lifeline: “What kind of lawyer do you want to be when you finish law school?”
I recall saying I wanted to be a human rights lawyer, after which I proceeded to give the lamest and most insubstantial reason why so.
If asked the same question now, I’d still be as stymied as ever.
But one thing is for sure, I do not have plans of falling off the cliff, as at least two of my friends have, after getting their degrees from this college.
And hey, I’m still here, aren’t I?
as truth is of systems of thought.
A theory however elegant and economical
must be rejected or revised if it is untrue;
likewise laws and institutions
no matter how efficient and well-arranged
must be reformed or abolished if they are unjust.
Each person possesses an inviolability
founded on justice
that even the welfare of society as a whole
cannot override.”
- John Rawls, A Theory of Justice
It is now well-recognized that there are important linkages between human rights, the environment and the law. Such interrelationship stems from the recognition of the increasingly negative impact of environmental degradation on human life, which directly affects the full enjoyment of human rights and the achievement of sustainable development that is respectful of the whole spectrum of human rights---including the right to life, to health, to habitation, to equality before the law, and the right to enjoy one’s property.
These linkages between the protection of human rights and the protection of the environment have long been recognized as early as 1972 during the United Nations Conference on the Human Environment wherein it was declared that "man's environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights--even the right to life itself."
There has been so much written on the multifarious issues and problems plaguing our environment because scholars, scientists, lawyers and human rights advocates alike, at some point, agree that environmental change is now no longer a technical problem but a political and economic one as well. These fields of study now widely acknowledge the important role of the ideas, policies and actions of state elites and the impact of capitalist development on the environment and how these environmental transformations, in turn, affect human relationships, and have potentially serious social and economic consequences for the poor and disadvantaged.
King, highlighting the importance and focus of the contributions of the late Prof. James Jackson to the discourse on human-environment interactions, points out that it is crucial to emphasize how the environment has been shaped by human agency and the importance of cross-disciplinary perspectives, historical context and the interplay between Western-derived and South-East Asian perceptions of the environment.
The landscape of the debates in international human rights and more particularly in international environmental has been witnessing rapid changes or developments, one of which is a shift in the concern from what are the limits on what the earth can supply to the limits on what the earth can safely absorb such as toxic wastes. Apart from toxic nuclear waste, tons of “regular” garbage, waste that is generated daily on an unprecedented and unmanageable scale, poses a greater challenge. A typical response has been the usual dumping of these wastes from the rich developed countries of the North to the poor underdeveloped countries of the South. Some developed countries like Germany and Japan have even gone so far as to masquerade their toxic wastes as aid to poorer countries in order to facilitate the ease of disposing of such waste materials.
In our jurisdiction, the presence of two major garbage sites, namely the Payatas dumpsite and the San Mateo Landfill, in the vicinity of two densely populated residential areas shows how the negative effects of development on the environment is gravely detrimental to human health.
But first let us define what these human rights are in the context of environmental change and public international and environmental law as well as the pertinent municipal laws involved.
When we refer to human rights we mean those fundamental entitlements and liberties which individuals possess simply because they are human beings: these bundle of rights in its entirety are enjoyed by every individual---regardless of social status, economic wealth, religion, gender, nationality, age or racial or ethnic origin--- and which are inherent in our nature and without which we cannot live as human beings. According to the great Pepe Diokno, one cannot enjoy one set of rights without enjoying the other rights, in order to give way to the infinity of human worth.
One definition of human rights is that these are “those liberties or immunities, and benefits which, by accepted contemporary values, all human beings should be able to claim ‘as of right’ of the society in which they live”. Another common notion of human rights refers to these rights of an individual as a human being, which are recognized by the international community as a whole through their protection and promotion under contemporary international law.
Human rights are also simply regarded as those fundamental and inalienable rights which are essential for life as a human being.”
What then is international human rights? One definition is that it is the “law which deals with the protection of individuals and groups against violations by governments of their internationally guaranteed rights as well as with the promotion of these internationally guaranteed rights”.
The preamble of the UN Charter declares that the peoples of the UN through their governments have agreed to the UN Charter and establish an international organization to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations.
Human rights are enumerated and classified under various internationally recognized instruments such as the UN Charter, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR and the ICESCR further classifies human rights into what are termed “first generation rights” which are civil and political rights and those referred to as “second generation rights” or economic, social and cultural rights.
Dean Magallona explains how the human rights has been “internationalized” under the UN Charter: “The acceptance by the international community of the human rights “regulation” as provided in the UN Charter has shifted matters or questions pertaining to human rights from exclusive domestic jurisdiction of states to international legal regulation. Further developments in the UN System, marked by the conclusion of more than 20 multilateral conventions on human rights, have firmed up the trend in human rights in terms of binding obligations in international law. In addition, there are three regional human rights treaties. Decisions and actions of various UN organs and subsidiaries have deepened human rights observance in a broad field of state practice not only in internal state mechanisms but as well as in diplomatic conferences and international bodies.”
The deleterious effects of the presence of the Payatas dumpsite and the San Mateo Landfill to the quality of water available to residents of the affected areas and to general public health illustrates the negative impact of environmental degradation on quality of life and the full enjoyment of human rights of the affected communities, specifically the right to life , to clean water, to clean air, to a healthy environment, and to enjoy their property, and the right to live. But the same inherent rights---the right to life, to a healthy environment, to clean air and water and the right to property---are limited under the same instruments that they are drawn and protected.
In their book entitled “Defending the Environment: Civil Society Strategies to Enforce International Environmental Law”, Linda Malone and Scott Pasternack say that Whenever environmental degradation results in a human harm that violates accepted human rights norms, an international, regional or domestic human rights committee, commission, an/or court may provide a remedy that can contribute effectively to rectifying the underlying environmental degradation as well as human rights violation.
Malone and Pasternack state that environmental human rights refer to the link between human rights and the environment: (1) involves the deprivation of human rights as a result of environmental degradation; (2) that an act or omission of the nation-state has proximately caused environmental degradation that deprives individuals or groups within the jurisdiction of that nation-state of certain rights that the nation-state is obliged to safeguard for those individuals or groups. Essentially, there are three conditions that must be fulfilled for an environmental human rights claim to prosper and these are: (1) the existence of environmental degradation ; (2) a nation-state action or omission that results in or contributes to that environmental degradation, referred to as “State action”; (3) a deprivation of human rights that results from the environmental degradation.
Despite the claims of the local government units concerned that they comply with all the pertinent laws, the operations of the two dumpsites do not comply with the standards drawn by municipal laws such as the Ecological Solid Waste Management Act (Republic Act 9003) , Philippine Environmental Policy (Presidential Decree 1151), Philippine Clean Water Act (Republic Act 9275) , Philippine Clean Air Act (Republic Act 8479) and the Code of Sanitation of the Philippines (Presidential Decree 856).
Therefore the violation of the right of the public to clean water, to clean air and to a healthy environment is equivalent to a violation of their inalienable right to life and the violations of their property rights. These violations are punishable under relevant municipal laws as well as relevant international treaties to which the Philippines is a signatory in the light of the fact that Art. II (2) of the 1987 Constitution recognizes the generally accepted principles of international law.
At this point, so many questions come to mind. If these violations are punishable under these laws and treaties, may the Philippine Government be thus held accountable for such violations? Apart from the state, who else may be held liable for these violations? What are the reliefs and remedies of the aggrieved parties under municipal law as well as under specific international covenants?
Since international law and municipal law have both been violated which court of justice, what law must be ascertained and administered by the appropriate court of justice? Given that in human rights discourse, government has the obligation or duty not only to protect, but also to fulfill, the rights of its citizens, how and to what extent may our government be held liable for their violations of their citizen’s rights? What court would acquire jurisdiction? Would the doctrine of exhaustion of domestic remedies still apply?
And what are the advantages to using a human rights approach in international environmental law? Using a human rights approach, how then must their liability be determined and to what extent may they be held liable?
Hunter tells us that international environmental law can learn much from employing a rights-based in human rights law, that in the last fifteen years or so, international environmental law scholars and activists looked upon on the law of human rights both as a model for the progressive development of international environmental law and an independent legal strategy for protecting the environment. In concrete terms, human rights law challenges traditional state-centric models of justice thus allowing individuals access in the international legal system.
Bodansky points out some differences in reporting and enforcement requirements between international environmental and human rights law: (1) most international environmental problems cannot be addressed by individual states acting alone but require collective effort, while human rights obligations do not depend on reciprocity in the same way; (2) international environmental law is directed at the control of the private rather than governmental conduct while human rights are perceived as rights viz. governments which can be primarily violated by government actions; (3) human rights treaty regimes tend to be more legalistic than international environmental regimes whose primary task is political and take a political rather than a legal approach to compliance questions.
In our jurisdiction, there have been precedents where the claimants may hinge arguments on such as the recent SC decision ordering the clean up of Manila Bay upon the petition of Metro Manila residents . Also, the San Mateo Landfill has been ordered by the SC permanently closed in a recent decision. But recent developments and the reopening of a new landfill in San Mateo in almost the same area as the subject of the SC decision necessitate another look at the matter.
Using Malone and Pasternack’s framework and armed with local and international laws and jurisprudence, those directly affected by the presence of the Payatas Dump Site and the San Mateo landfill may pursue their claims against the local government units, the corresponding government agencies such as the DENR in Philippine jurisdiction as well as in international venue invoking the ICCPR and the ICESCR to which the Philippines is a signatory.
We must address the issue of protecting our resource of clean water and that of a healthy environment because it is directly related to our inherent right to life. Studying the deleterious effects of the operations of several dumpsites in the Philippines may prove to be a useful exercise of the Principle of Common but Differentiated Responsibility, which takes into account the differing circumstances of different states in the discharge of such responsibilities.
In our case as a developing country with limited resources and technological knowledge in addressing these concerns, we are still bound to protect environmental resources such as clean water, clean air and a healthy environment, while taking into consideration our limitations in addressing these particular environmental concerns.
A mere cursory look at our existing laws would yield that there is no lack of legislation nor precedents in jurisprudence to address pressing environmental problems in our jurisdiction. What we need is political will to enforce what laws we already have in a more proactive stance, always bearing in mind that prevention is key.
For instance, RA 8749 or the Clean Air Act explicitly states a recognition of rights which provides an injured party with a specific law when pursuing a cause of action and a claim for damages . The Polluter-Pays Principle which is a concept recognized only in developed countries must be incorporated and legally enforced in our jurisdiction in order to add or reinforce safeguards to our natural resources and environment.
Our Constitution specifically provides that we all have the right to a balanced and healthful ecology, a provision that recognizes our increasingly deteriorating environment. All through out our Constitution there are specific provisions, such as the Bill of Rights, that guarantee the protection of human rights---whether civil or political such as the right to life or social, economic or cultural as the right to a healthy environment---and as signatory to the ICCPR and the ICESCR, our government and its corresponding agencies and agents are also under obligation to respect these human rights.
As state party to the ICCPR, the Philippines is under obligation to: (1) respect and ensure to all individuals within its territory the rights recognized in the ICCPR such as the right to life in Art. 3 without distinction of any kind such as race, color, language, religion, political or other opinion, national or social origin, property, birth or other status; (2) undertake necessary steps to adopt necessary legislative measures to give effect to the rights recognized in the ICCPR; (3) ensure that any person whose rights or freedoms are violated shall have an effective remedy notwithstanding that the violation has been committed by persons acting in an official capacity; (4) ensure that any person claiming such a remedy shall have his right be determined by competent judicial, administrative or legislative authorities or by other competent authority and that they shall enforce such remedies when granted.
The clamor to respect the most basic of human rights, the right to life, inextricably linked to other inalienable rights such as right to clean air, clean water and a healthy environment in the face of the challenge of achieving a genuinely sustainable development, is one of the most pressing issues of our time. Sustainable development is brought to the fore here because of the principles of intergenerational equity, of sustainable use, of intragenerational equity and integration in the application of municipal law and in the operations of local waste management are also brought to task.
Thus, if by act or omission, the Philippine government and the different government agencies such as the DENR and the concerned local government units violate the most basic human right to life of injured citizens by the deprivation or violation of the right to a healthy environment and to full enjoyment of one’s property, the government and these agents must be held liable for such violations. Our Constitution takes cognizance of the continuing deterioration of the enviroment which has become a matter of national concern caused by rapid urbanization, industrial growth, population expansion, natural resources utilization, the use of modern technology and other socioeconomic factors; it recognizes the need for an environmental protection program to prevent further injury or damage to plant and animal life and more importantly, to protect human health and safety.
But how may the violations and liabilities of the culpable parties be ascertained both under international environmental law and a human rights regime? What takes precedence in determining the liability: liability of the duty to protect under international environmental law or the duty to respect in international human rights law? May the offender be held liable under Article 32 of our Civil Code as well as held criminally and administratively liable if found guilty by the competent court? What is the extent of the civil liability of the offender for the violation of the rights of claimants? What forms of damages may the claimant be entitled to?
There is no opportunity here to answer the more specific questions as to how the injured parties may seek redress and what the relief and their remedies will be. But suffice it to say that the vast inroads made in international human rights discourse as well as in international environmental law have made it increasingly possible to address the problems that arise in their respective fields.
Though so many questions still need answers---which in turn lead to so many more questions---and so much more has to be done, the one important thing is that we seem to be heading in the right direction.
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An Epilogue of Sorts
Four years ago, I sat in the Faculty Lounge facing the members of the College of Law Admissions Committee, trying but failing to satisfactorily answer their questions.
At the exact point when my resolve was about to fail, Prof. Jimenez threw me a lifeline: “What kind of lawyer do you want to be when you finish law school?”
I recall saying I wanted to be a human rights lawyer, after which I proceeded to give the lamest and most insubstantial reason why so.
If asked the same question now, I’d still be as stymied as ever.
But one thing is for sure, I do not have plans of falling off the cliff, as at least two of my friends have, after getting their degrees from this college.
And hey, I’m still here, aren’t I?
Tuesday, August 25, 2009
The Right to a Healthy Environment is a Basic Human Right
It is now well-recognized that there are important linkages between human rights discourse, environmental protection and international law. Linkages between the protection of human rights and the protection of the environment have been recognized more than three decades ago when in 1972, the United Nations Conference on the Human Environment declared that "man's environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights--even the right to life itself."
In 1986, the United Nations General Assembly recognized the relationship between the quality of human environment and the enjoyment of basic human rights. The 1992 Rio Declaration emphasized sustainable development and environmental protection while the Agenda 21 called for the fulfillment of basic needs, improved living standards for all, better protected and managed eco-systems and a safer, more prosperous future.
Such interrelationship stems from the recognition of the increasingly negative impact of environmental degradation on human life, which directly affects the full enjoyment of human rights and the achievement of sustainable development that is respectful of the whole spectrum of human rights---including the right to life, to health, to habitation, to equality before the law, and the right to enjoy one’s property. Even Brownlie attributes the conscious collective efforts exerted by governments and non-governmental organizations to invoke legal protection of the environment to “the increased sophistication in appreciating the risks to the earth’s environment” and the recognition or acceptance that irreversible damage which is caused by human activity.
Much has been written on the multifarious issues and problems plaguing our environment. Scholars, scientists, lawyers and human rights advocates alike, at some point agree, that environmental change is now no longer a technical problem, but a political and economic one as well. Interrelated fields of study involved in human rights discourse and the environment now widely acknowledge the important role of the ideas, policies and actions of state elites and the impact of capitalist development on the environment and how these environmental transformations, in turn, affect human relationships, and have potentially serious social and economic consequences for the poor and disadvantaged. The late Prof. James Jackson contributed greatly to the discourse on human-environment interaction especially when he pointed out that it is crucial to emphasize how the environment has been shaped by human agency and the importance of cross-disciplinary perspectives, historical context and the interplay between Western-derived and South-East Asian perceptions of the environment.
The landscape of international environmental law has witnessed rapid changes in such a short time. One change is a shift in the concern from what limits on natural resources to the limits on what the earth can safely absorb such as the unmitigated production of toxic and hazardous wastes. Though still relatively a young field in the context of public international law, international environmental law has evolved so quickly because of pressing concerns in the environment that need to be addressed, whether the need be addressed by substantive, procedural or institutional rules.
Brownlie says that the legal protection of the environment rests on the institutions of general international law, particularly of state responsibility, indicates that the result of the coming together of state and non-state actors in resolving environmental concerns is an extensive agenda that includes, among other pressing concerns, “the problem of transboundary air pollution, the risks created by reliance upon nuclear power, the protection of Antarctica, the protection of endangered species of flora and fauna, and the control and disposal of industrial waste”.
Because human rights and environmental protection are interrelated, fundamental goals of the global community, it would be useful to employ a rights-based approach in arriving at the awareness that environmental protection is integral to the enjoyment of internationally and domestically guaranteed legal rights. Two advantages to using a rights based approach in working for legal protection for the environment stems from the fact that a human rights approach is a “strong claim to an absolute entitlement immune to lobbying and trade-offs in bureaucratic decision-making and its power and ability to trump individual greed and short-term thinking” and the procedural dimensions of an individual right can provide access to justice in a way that bureaucratic regulation or tort law cannot . Further, a human rights approach may stimulate political activism on environmental issues; that concerned citizens and NGOs are more likely to rally around a general statement of right than a technical bureaucratic regulation expressed in legalese. More importantly for the purpose of this paper, a human rights approach can provide the conceptual link to bring local, national, and international issues within the same frame of legal judgment.
It is also important to note that employing a rights-based approach to address environmental issues implies that all state and non-state actors involved in policy-making, projects, programs and activities with potential impact on nature conservation have to ensure respect and protection of all rights guaranteed by national and international law. Using a rights-based approach to a properly implemented environmental policy should facilitate the achievement of an ecologically-sustainable environment, inter- and intra-generational equity and respect for the intrinsic value of our environment.
The advantage pointed out by Hunter on using a human rights approach to environmental issue would be useful in putting a cohesive link from local to national issues up to international issues “because environmental damage is unequally distributed at both the national and international level and a non-discriminatory human rights standard could facilitate comparison and foster political mobilization linking local concerns with more global issues.”
When we refer to human rights, we mean those fundamental entitlements and liberties which individuals possess simply because they are human beings: these bundle of rights in its entirety are enjoyed by every individual---regardless of social status, economic wealth, religion, gender, nationality, age or racial or ethnic origin--- and which are inherent in our nature and without which we cannot live as human beings. One definition of human rights is that these are “those liberties or immunities, and benefits which, by accepted contemporary values, all human beings should be able to claim ‘as of right’ of the society in which they live”. Another common notion of human rights refers to these rights of an individual as a human being, which are recognized by the international community as a whole through their protection and promotion under contemporary international law.
Human rights are enumerated and classified under various internationally recognized instruments such as the UN Charter, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR and the ICESCR further classifies human rights into what are termed “first generation rights” which are civil and political rights and those referred to as “second generation rights” or economic, social and cultural rights. Human rights are also simply regarded as those fundamental and inalienable rights which are essential for life as a human being.”
International Human Rights is the “law which deals with the protection of individuals and groups against violations by governments of their internationally guaranteed rights as well as with the promotion of these internationally guaranteed rights”. The preamble of the UN Charter declares that the peoples of the UN through their governments have agreed to the UN Charter and establish an international organization to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations.
However, Brownlie warns against what he calls enthusiastic literature in human rights discourse and against compartmentalizing the public international law into pockets, and in the process creating the confusion that these are novel ways of dealing with international law. In a study sponsored by the UNESCO, Brownlie discusses human rights in reference to the rights of groups: (1) human rights is a relatively new term in international law, having been used more widely in the United Nations era as going beyond the concept of Rule of Law, but can be traced back to the secular notion of the Rights of Man and from religious thought on natural rights; (2) human rights necessitates the “checking of performance of national legal systems against external standards and the consequent erosion of the reserved domain of the domestic jurisdiction of States; (3) while the Rule of Law in its classical form involved a static model of equality before the law, with the accent on procedural justice and civil rights, the concept of human rights has been at least equally and perhaps more concerned with equal access to resources and education, with a more dynamic concept of economic justice and substantial equality. Such change of content according to Brownlie was signaled by the appearance of the ICCPR and the ICESCR in1966.
Hunter elaborates on the linkages between human rights and the environment: “Today, more than ever, it is clear that environmental degradation has an adverse impact on the quality of human life, and more specifically on the full enjoyment of human rights, as well as the achievement of sustainable levels of development respectful of economic, social and cultural rights. Environmental degradation too often leads to violations of human rights, including the right to life, health, habitation, culture, equality before the law, and the right to property. Many of the human rights enshrined in existing agreements are extremely sensitive to environmental threats.”
The objective of this paper is to determine the nature and extent of the liability of the State for the non-respect or non-fulfillment of the rights of affected citizens to clean air, clean water and a healthy environment, among other human rights, under its organic law and relevant municipal laws as well as international instruments protecting these rights. It is also the objective of this paper to ascertain the reliefs and remedies under these municipal laws and international instruments which the affected citizens can resort to.
Human Rights and Environmental Protection in Asia
Regional mechanisms for the protection of human rights, such as the Convention for the Protection of Human Rights and Fundamental Freedoms, have been in place since the 1950s. The first European Convention drawn up within the Council of Europe which entered into force in 1953 and is now binding on all the member States of the Council of Europe and six protocols have supplemented or amended the Convention to date.
In Asia, research in the field human rights and environmental law shows that the nature of environmental and human rights problems is similar in all South Asian countries. Common concerns identified include water pollution such as lack of control on the pollution of rivers, irresponsible construction of dams and barrages, lack of access to drinking water free from toxin or other contaminants, increased use of agro-chemicals/pesticides, storage and transportation of dangerous goods in package forms and pollution due to noxious liquid substances.
This trend in Southeast Asia and all throughout Asia is a global one, based on a 1989 UN Report on hazardous wastes, as it quotes an estimate from UNEP that world production of chemicals has multiplied in the past decades, particularly in industrialized nations, and the total volume of organic chemicals produced globally increased from around 7 million metric tons in 1950 to over 250 million metric tons in 1985.
One consequence of development and its globalization is the unmitigated production of waste material, whether household, industrial, or toxic waste. Apart from toxic nuclear waste, tons of “regular” garbage, waste that is generated daily on an unprecedented and unmanageable scale, poses a greater challenge. A typical response has been the usual dumping of these wastes from the rich developed countries of the North to the poor underdeveloped countries of the South. Some countries like Japan have even gone so far as to masquerade their toxic wastes as aid to poorer countries in order to facilitate the ease of disposing of such waste materials .
A 2007 report by Basel Action Network indicates that exports of hazardous wastes are being exported at an alarming rate from Japan despite claims by the Japanese government that they do not currently export hazardous wastes to developing countries. The deleterious effects of the presence of the Payatas dumpsite and the San Mateo Landfill to the quality of water available to residents of the affected areas and to general public health illustrates the negative impact of environmental degradation on quality of life and the full enjoyment of human rights of the affected communities, specifically the right to life , to clean water, to clean air, to a healthy environment, and to enjoy their property, and the right to live. But the same inherent rights---the right to life, to a healthy environment, to clean air and water and the right to property---are limited under the same instruments that they are drawn and protected.
In Korea, the 1960s have witnessed both unprecedented economic growth as well as environmental destruction caused by various pollutants emitted as by-products of industrialization. The Korean environmental legal system has developed in the last 30 years through four steps: (1) prevention of pollution; (2) environmental preservation through single legislation; (3) constitutional guarantee of the right to a clean environment; and lastly (4) environmental preservation through plural legislation.
In India, the fundamental and constitutional right to life is extended to include the right to a healthy environment the state has a duty to protect and preserve the ecosystem as part of the directive principles.
Under the 1987 Philippine Constitution, the Bill of Rights enumerates the individual’s rights and privileges which the Constitution guarantees--- it is essentially a list of restrictions upon the power of the state in order that actions of government may not violate the fundamental liberties of its citizens.
The Philippine Bill of Rights is based on the belief that every human being has an inherent dignity and worth which must be respected and protected, particularly against abuses that may be committed by the State; it is a guarantee that there are certain areas of a person’s life, liberty and property that government power may not touch, subject only to the valid exercise of the inherent powers of the State---that of police power, eminent domain and taxation. The rights guaranteed under the Bill of Rights are self-implementing, i.e., can be immediately enforced even in the absence of implementing legislation but the social and economic rights guaranteed in Article XIII of the 1987 Constitution require implementing legislation for their realization.
In the Philippines, the presence of two major garbage sites, namely the Payatas dumpsite and the San Mateo Landfill, in the vicinity of two densely populated residential areas shows how the negative effects of development on the environment is gravely detrimental to human health and thus constitutes a violation of the basic human rights of affected Philippine nationals---their right to life, to clean air, to clean water and to a healthy environment, to full enjoyment of their property.
In India, Pakistan and Bangladesh, the fundamental right to life has been expanded to include the right to liberty and to a healthy or clean environment. In these jurisdictions, most litigations are brought against public authorities, which include various ministries of Central government, federal bodies in Pakistan and India, local authorities and public owned companies.
In our case as a developing country with limited resources and technological knowledge in addressing these concerns, we are still bound to protect environmental resources such as clean water, clean air and a healthy environment, while taking into consideration our limitations in addressing these particular environmental concerns. A cursory look at our existing laws would yield that there is no lack of legislation nor precedents in jurisprudence to address pressing environmental problems in our jurisdiction. What we need is political will to enforce what laws we already have in a more proactive stance, always bearing in mind that prevention is key.
For instance, RA 8749 or the Clean Air Act explicitly states a recognition of rights which provides an injured party with a specific law when pursuing a cause of action and a claim for damages . The Polluter-Pays Principle which is a concept recognized only in developed countries must be incorporated and legally enforced in our jurisdiction in order to add or reinforce safeguards to our natural resources and environment.
Our Constitution specifically provides that we all have the right to a balanced and healthful ecology, a provision that recognizes our increasingly deteriorating environment. All through out our Constitution there are specific provisions, such as the Bill of Rights, that guarantee the protection of human rights---whether civil or political such as the right to life or social, economic or cultural as the right to a healthy environment---and as signatory to the ICCPR and the ICESCR, our government and its corresponding agencies and agents are also under obligation to respect these human rights.
As state party to the ICCPR, the Philippines is under obligation to: (1) respect and ensure to all individuals within its territory the rights recognized in the ICCPR such as the right to life in Art. 3 without distinction of any kind such as race, color, language, religion, political or other opinion, national or social origin, property, birth or other status; (2) undertake necessary steps to adopt necessary legislative measures to give effect to the rights recognized in the ICCPR; (3) ensure that any person whose rights or freedoms are violated shall have an effective remedy notwithstanding that the violation has been committed by persons acting in an official capacity; (4) ensure that any person claiming such a remedy shall have his right be determined by competent judicial, administrative or legislative authorities or by other competent authority and that they shall enforce such remedies when granted.
The civil and political rights of the individual, those enshrined in the UN Charter, the Universal Declaration of Rights and the ICCPR, seek to protect him from an arbitrary exercise of power by the State and to enable him to participate in shaping policies. Civil rights, referring to a person’s right to live his own private life, includes ones right to own property, among others; political rights pertain to the individual’s right vis-à-vis the State. Political rights seek to enable the individual to participate in the decision making process of the government. The State performs a negative duty to protect or guarantee civil and political rights, by refraining or discontinuing to do an act that unduly interferes with a person’s exercise of his civil and political rights.
The clamor to respect the most basic of human rights, the right to life , inextricably linked to other inalienable rights such as right to clean air, clean water and a healthy environment in the face of the challenge of achieving a genuinely sustainable development, is one of the most pressing issues of our time. The constitutional protection of the right to life does not only refer to the right to be alive but also to the protection of one’s faculties to be able to enjoy a decent quality of life.
Sustainable development is brought to the fore here because of the principles of intergenerational equity, of sustainable use, of intragenerational equity and integration in the application of municipal law and in the operations of local waste management are also brought to task.
Two important principle in international environmental law---waste minimization and proximity of waste disposal----advocate the reduction of the generation of hazardous wastes to a minimum and the disposal of such wastes as close as possible to the source of generation and are indicative of the cleaner production approach. These principles are supported by both the Basel Convention and the Bamako Convention. Thus, if by act or omission, the Philippine government and the different government agencies such as the DENR and the concerned local government units violate the most basic human right to life of injured citizens by the deprivation or violation of the right to a healthy environment and to full enjoyment of one’s property, the government and these agents must be held liable for such violations.
The Philippine Constitution takes cognizance of the continuing deterioration of the environment which has become a matter of national concern caused by rapid urbanization, industrial growth, population expansion, natural resources utilization, the use of modern technology and other socioeconomic factors; it recognizes the need for an environmental protection program to prevent further injury or damage to plant and animal life and more importantly, to protect human health and safety. But how may the violations and liabilities of the culpable parties be ascertained both under international environmental law and a human rights regime?
What takes precedence in determining the liability: liability of the duty to protect under international environmental law or the duty to respect in international human rights law? May the offender be held liable under Article 32 of our Civil Code as well as held criminally and administratively liable if found guilty by the competent court? What is the extent of the civil liability of the offender for the violation of the rights of claimants? What forms of damages may the claimant be entitled to?
In India, the principle of absolute liability has been applied in pollution cases to determine environmental liability and has been applied against the public bodies, such liability arising from the tort concept of ‘strict liability’ and does not allow any exception. Jurisprudence in India are actions against the government as well as against private corporations or companies. Indian Courts apply the polluter pays principle in cases related to accidental pollution and environmental damage caused by industrial waste. Compensation is awarded for the harm caused as well as the obligation to pay for the preventive control.
Seeking Reliefs and Remedies Under Environmental Law
In their book entitled “Defending the Environment: Civil Society Strategies to Enforce International Environmental Law”, Linda Malone and Scott Pasternack say that Whenever environmental degradation results in a human harm that violates accepted human rights norms, an international, regional or domestic human rights committee, commission, an/or court may provide a remedy that can contribute effectively to rectifying the underlying environmental degradation as well as human rights violation.
Malone and Pasternack state that environmental human rights refer to the link between human rights and the environment: (1) involves the deprivation of human rights as a result of environmental degradation; (2) that an act or omission of the nation-state has proximately caused environmental degradation that deprives individuals or groups within the jurisdiction of that nation-state of certain rights that the nation-state is obliged to safeguard for those individuals or groups.
Essentially, there are three conditions that must be fulfilled for an environmental human rights claim to prosper and these are: (1) the existence of environmental degradation ; (2) a nation-state action or omission that results in or contributes to that environmental degradation, referred to as “State action”; (3) a deprivation of human rights that results from the environmental degradation.
Despite the claims of the local government units concerned, one of which is the Quezon City government, that they comply with all the pertinent laws, the operations of the two dumpsites do not comply with the standards drawn by municipal laws such as the Ecological Solid Waste Management Act (Republic Act 9003) , Philippine Environmental Policy (Presidential Decree 1151), Philippine Clean Water Act (Republic Act 9275) , Philippine Clean Air Act (Republic Act 8479) and the Code of Sanitation of the Philippines (Presidential Decree 856).
The violation of the right of the public to clean water, to clean air and to a healthy environment is equivalent to a violation of their inalienable right to life and the violations of their property rights. These violations are punishable under relevant municipal laws as well as relevant international treaties to which the Philippines is a signatory in the light of the fact that the incorporation clause, Art. II (2) of the 1987 Constitution, recognizes the generally accepted principles of international law.
At this point, so many questions come to mind. If these violations are punishable under these laws and treaties, may the Philippine Government be thus held accountable for such violations? Apart from the state, who else may be held liable for these violations? What are the reliefs and remedies of the aggrieved parties under municipal law as well as under specific international covenants?
Since international law and municipal law have both been violated which court of justice, what law must be ascertained and administered by the appropriate court of justice? Given that in human rights discourse, government has the obligation or duty not only to protect, but also to fulfill, the rights of its citizens, how and to what extent may our government be held liable for their violations of their citizen’s rights? What court would acquire jurisdiction? Would the doctrine of exhaustion of domestic remedies still apply?
And what are the advantages to using a human rights approach in international environmental law? Using a human rights approach, how then must their liability be determined and to what extent may they be held liable?
Hunter tells us that international environmental law can learn much from employing a rights-based in human rights law, that in the last fifteen years or so, international environmental law scholars and activists looked upon on the law of human rights both as a model for the progressive development of international environmental law and an independent legal strategy for protecting the environment. In concrete terms, human rights law challenges traditional state-centric models of justice thus allowing individuals access in the international legal system.
Bodansky points out some differences in reporting and enforcement requirements between international environmental and human rights law: (1) most international environmental problems cannot be addressed by individual states acting alone but require collective effort, while human rights obligations do not depend on reciprocity in the same way; (2) international environmental law is directed at the control of the private rather than governmental conduct while human rights are perceived as rights viz. governments which can be primarily violated by government actions; (3) human rights treaty regimes tend to be more legalistic than international environmental regimes whose primary task is political and take a political rather than a legal approach to compliance questions.
In the Philippines, there have been precedents where the claimants may hinge arguments on such as the recent SC decision ordering the clean up of Manila Bay upon the petition of Metro Manila residents . Also, the San Mateo Landfill has been ordered by the SC permanently closed in a recent decision. But recent developments and the reopening of a new landfill in San Mateo in almost the same area as the subject of the SC decision necessitate another look at the matter.
Using Malone and Pasternack’s framework and armed with local and international laws and jurisprudence, those directly affected by the presence of the Payatas Dump Site and the San Mateo landfill may pursue their claims against the local government units, the corresponding government agencies such as the DENR in Philippine jurisdiction as well as in international venue invoking the ICCPR and the ICESCR to which the Philippines is a signatory.
Pertinent provisions of the Philippine Civil Code may also find applicability in a suit against government’s violations and in determining civil liability. Art. 19 of the New Civil Code provides for the principle of non-abuse of right, such as when the right is exercised for the purpose of prejudicing or injuring another. Requisites are: (1) when there is a legal duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another. Art. 21 of the New Civil Code provides for the acts contra bonus mores, which presupposes loss or injury, material or otherwise, which one may differ as a result of such violation, the elements of which are: (1) there is an act which is legal; (2) but which is contrary to morals, good customs, public order, or public policy; (3) and it is done with intent to injure.
Art. 26 provides for the protection of human dignity, that every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. Art. 27 provides for relief against public officials, that when a public officer who commits a tort or other wrongful act, done in excess or beyond the scope of his duty, is not protected by his office and is personally liable therefore like any private individuals.
Environmental degradation endangers the human rights not only of present but also of future generations. In India, the right to life has been used in a diversified manner the right to survive as a species, quality of life, the right to live with dignity and the right to livelihood and has been expressly recognised as a constitutional right. However, the nature and extent of this right is not similar to the self-executory and actionable right to a sound and healthy ecology prescribed in the Constitution of the Philippines. Article 21 of the Indian Constitution states: ‘No person shall be deprived of his life or personal liberty except according to procedures established by law.’ The Supreme Court expanded this negative right in two ways: (1) any law affecting personal liberty should be reasonable, fair and just; (2) the Court recognizes several unarticulated liberties that were implied by article 21. It is by this second method that the Supreme Court interpreted the right to life and personal liberty to include the right to a clean environment.
In the experience of India, there is a very fine line between between human rights cases and environmental cases and their jurisprudence twenty or so years ago show the various categories of public interest litigation involved air, water, mining or forest conservation in a broad manner. Categories became more sophisticated in the 1990s and dealt with more complex areas of waste management, protection of biodiversity, access to environmental information, ground water management. In 2000, there are a few public interest environmental litigations where the Supreme Court dealt with water pollution, noise pollution and coastal zone development. All these decisions, in some way or other, established a human right to healthy environment.
In 1994, the Supreme Court of India directly mentioned the principle of sustainable development and tried to balance the social, economic and ecological aspects. The 1990’s definition of sustainable development emphasised the relationship between development and environment, and a balance between the two. More sophisticated challenges were made where the Indian courts were asked to deal with polluting industries such as the leather factories, to prevent encroachment of wetlands and to preserve forests and vegetation. It gave priority to sustainable use of the natural resources and to a right to a healthy environment for the present, and to a certain extent, to future generations. The national environmental policy and legislation reflect the concern for a balance between development, planning and environment. [82]
In Pakistan, the Environment Protection Act 1997 defines and mentions ‘sustainable development’ and the Supreme Court of Pakistan indirectly applied the concept of sustainable development while dealing with the construction of high voltage grid station which was likely to cause serious health hazard to the local people. The Pakistan Constitution also provides that the dignity of man and subject to law, the privacy of home shall be inviolable and he fundamental right to preserve and protect the dignity of man and right to ‘life’ are guaranteed. If both are read together, question will arise whether a person can be said to have dignity of man if his right to life is below bare necessity line without proper food, clothing, shelter, education, health care, clean atmosphere and unpolluted environment.”
In another human rights case against cigarette companies, the petitioner sought a ban on cigarette commercials on television because the western companies were unable to sell cigarettes in their own countries and they were aiming at the developing countries. He added that they were using the advertising to that end and this has resulted in catastrophic calamities in the form of cancer and heart disease. The Supreme Court stated that the citizen could get protection under article 9 because right to life includes quality of life as well.
The principle of absolute liability as applied by Indian courts in pollution cases to determine environmental liability and has been applied against the public bodies, in actions against the Government as well as against private corporations or companies. d Indian Courts applied the polluter pays principle in cases related to accidental pollution and environmental damage caused by industrial waste and ordered compensation for the harm caused as well as the obligation to pay for the preventive control.
The issue of protecting our resource of clean water and that of a healthy environment because it is directly related to the inherent right to life. Studying the deleterious effects of the operations of several dumpsites in the Philippines may prove to be a useful exercise of the Principle of Common but Differentiated Responsibility, which takes into account the differing circumstances of different states in the discharge of such responsibilities.
The presence of two major garbage sites in the vicinity of two densely populated residential areas in the Philippines is gravely detrimental to human health. The deleterious effects are of the presence of these dumpsites to the quality of water available to residents of the affected areas and to general public health. The violation of the right to a healthy environment constitutes a civil wrong, a breach of duty for which municipal law grants a remedy in damages and other forms of relief. Based on domestic laws and the ICESCR and the ICCPR as well as the UN Charter, the residents of communities near the Payatas dumpsite and the San Mateo Landfill have a vested legal right to a healthy environment, to clean air, to clean water and to the full enjoyment of the use of their property.
Jurisprudence in Philippine jurisdiction and special laws also support their claim to these rights based on the corresponding obligation of the State and its agents. Civil and political rights are a bundle of fundamental human rights referring to guarantees of freedom, justice, equality that a State grants to individuals, which are particularly recognized,protected and enforced by the Bill of Rights of the 1987 Constitution and by the International Covenant on Civil and Political Rights.
The civil and political rights of the individual protect him from the arbitrary exercise of governmental power and enable him to participate in shaping government’s policies and programs. Civil and political rights are also referred to as the “first generation rights” because, historically, they were the first to be given recognition as belonging to every individual. The State performs a negative duty to guarantee the protection of the civil and political rights of its citizen which means that the State simply has to refrain from or discontinue doing an act that unduly interferes with a person’s civil and political rights.
Civil rights refer to those rights enjoyed by a person who live in community with other private individuals and include his right to own property, among others. These rights are those that the law will enforce at the instance of private individuals for the purpose of securing to them the enjoyment of their means of happiness. The state has a positive role in ensuring all citizens equal protection under the law and equal opportunity to exercise the privileges of citizenship and otherwise to participate fully in national life regardless of race, religion, sex, or other characteristics unrelated to the worth of the individual. There are powers and privileges not connected with the organization or administration of government, to which an individual is lawfully entitled by virtue of his citizenship. Political rights pertain to the individual’s rights in his relation vis-à-vis the State.
Essentially political rights enable the individual to participate in the decision-making process of the government, which includes the right to vote or to run for public office or the right to information on matters of public concern. These rights are those which entitle the citizens to directly or indirectly participate in the establishment or administration of their government. The term is used to refer to the guarantees of freedoms of belief, speech and association such as the provisions on the practice of freedom of religion ad the right to hold assembly, due process of law or procedural fairness when government deprives an individual of liberty, and other limitations on the power of the state to restrain or dictate the actions of individuals.
Civil liability for human rights violation refers to the obligation created on the part of the offender for the reparation of any loss or damage incurred by the offended party by reason of the violation of his human rights. This obligation is a necessary consequence of the offended party’s right to seek remedy for redress of grievances. The obligation created on the part of the offender is to provide compensation in an amount to be determined by the court. If the offended party sustained pecuniary loss, he has to sufficiently prove that he has indeed suffered such loss as well as its amount.
In the Philippines, civil liability may result from the breach of obligations arising from law, contracts, quasi-contracts, crimes and quasi-delicts. For pecuniary loss sustained, the offended party shall be rewarded actual or compensatory damages. Other forms of damages allowed under the Civil Code are moral damages; temperate damages, nominal damages, liquidated damages and exemplary damages. Art. 32 of the Philippine Civil Code includes moral damages and exemplary damages. In our jurisdiction, public officers may be held accountable to the people for they are deemed vested with the obligation to protect the public trust.
Art XI, Sec. 1 of the 1987 Constitution of the Philippines provides for the duty of public officers and employees to be at all times accountable to the people, serve them with utmost responsibility, integrity, loyalty, efficiency and to act with partriotism and justice. The basic idea of government in the Philippines is that of a representative government, the officers being mere agents and not rulers of the people…but where every officer accepts office pursuant to the provisions of law and holds the office as a trust for the people to whom he represents. Thus, any misfeasance or malfeasance or dereliction of a public officer’s duty would constitute a breach not only of the public trust but also of the state obligation under municipal laws and international obligations.
The international responsibility of a state is generated when conduct attributable to the state under international law constitutes a breach of the international obligations of the state. As a signatory and state party to various treaties recognizing the inalienable human right to life, right to water and to a healthy environment, the Philippines must therefore be accountable for the direct violation of these rights under its municipal laws as well as under relevant international instruments such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, among others.
Thus, when a State violates its treaty obligations to its own nationals, does the requirement of exhaustion of local remedies apply? Theodor Meron articulates this problem: “A question arises…regarding whether the requirement of exhaustion of local remedies extends to those relations between the state and its own nationals which are governed by international human rights…[M]ust local remedies be exhausted before the victim of the violation may present a complaint to an international authority? Is exhaustion required before a state which is not directly affected may submit a claim of a victim who is not its national either to an international authority or to the state which committed the violation?”
Meron reiterates that the requirement that local remedies be exhausted before a claim against a state may be submitted to an international forum is stated in all of the principal human rights treaties, both with respect to complaints submitted against states by the individual victims of violations and with respect to complaints brought by states and such treaties routinely describe the requirement of exhaustion of local remedies as a general or customary principle of law.
Under the ICESCR, each state party has the duty to work for the realization of the rights contained in the Covenant. Take for instance the right to housing, state parties are not all obligated to provide for housing immediately as such necessitates time, planning and high costs for government. Bearing in mind that such right must be fulfilled with progressive realization and given the means possible or available to the state, States are not obligated to eliminate homelessness immediately. But access to housing does put premium on several critical factors like habitability and location, which in turn, requires protection from threats to health, structural hazards and disease vectors and must not be built on polluted sites nor in immediate proximity to pollution sources that threaten the health of the inhabitants.
In Philippine jurisdiction as in other municipal jurisdictions, customs, being rules of conduct formed by repetition of acts, uniformly observed as a social rule, legally binding and obligatory. The requisites for making custom an obligatory rule are: (1) plurality of acts by the great mass of the social group; (2) generally practiced by the great mass of the social group; (3) the community accepts it as a proper way of acting, such that it is considered obligatory upon all; (4) the practice has been going on for a long period of time.
In Philippine jurisprudence, the principle of stare decisis requires courts to follow the rule established in earlier Supreme Court decisions; the doctrine, however, is not inflexible, so that when in the light of changing conditions, a rule has ceased to be beneficial to society, courts may depart from it. Thus, cases such as the landmark Oposa v Factoran, where a number of minors represented by their parents sued the Secretary of the DENR in order to prevent the impairment of Philippine rainforests “and arrest the unabated hemorrhage of the country’s vital life-support systems and continued rape of Mother Earth”, now serve as precedent in both public interest litigation and environmental law.
In Korea, the constitutional guarantee of the right to a clean environment had been secured in the early 1980s. Their constitution clearly guarantees the environmental right as one of the fundamental human rights and made it the responsibility of the government to preserve the environment while demonstrating clearly that maintaining a healthy and comfortable environment has practical legal value.
Globally, the future of a truly efficient and sustainable waste management regime must be “primarily global, holistic and integated, and should focus on the preventive approach.” However, allowance should be made for regional rules, “provided they conform to specially defined global standards and for the application of existing sectoral rules that are in line with its objectives and provisions” and it should take into account sovereign rights of states.
On the municipal or local level, the same principles should apply but with a view to fulfilling and respected the constitutionally guaranteed rights of nationals like in the case of India and the Philippines. Proper care should be taken particularly with developing nations who are at a disadvantage in controlling waste streams and remedial measures should be promptly taken when preventive ones fail to address problems.
On the matter of determining compensation, it is important to refer to the specific provisions on civil liability to determine the correct amount of damages to be awarded, bearing in mind two things: (1) that the primary function of corrective justice is to rectify the harm done a victim of wrongdoing, whether intentional or by omission; (2) that wrongdoing harms not only the victim, but it also undermines the rule of law and societal norms. Hence, though the assessment or valuation of damages is nearly always imperfect, inadequate and complex, the award of damages and other forms of compensation serves the purpose of reparation for the injustice done.
Emphasis must be placed on the fact that “one of the most important legal developments of the modern era---both nationally and internationally---has been the opening of avenues of complaint for private citizens against oppressive action by government agents and agencies and the affording of remedies when violations are found”.
In human rights law and in the context of the rapidly evolving dynamics environmental law, individuals seek directly to ensure respect for the rights they are guaranteed---in this case the fundamental human right to life and the consequent right to a clean and healthy environment--- and the actions that they bring are retrospective; the focus of individual victims is on addressing the breach of the state’s obligations and what has been done to them. Possibly, individual victims are also interested in ensuring that in the future the same breach is not repeated.
In 1986, the United Nations General Assembly recognized the relationship between the quality of human environment and the enjoyment of basic human rights. The 1992 Rio Declaration emphasized sustainable development and environmental protection while the Agenda 21 called for the fulfillment of basic needs, improved living standards for all, better protected and managed eco-systems and a safer, more prosperous future.
Such interrelationship stems from the recognition of the increasingly negative impact of environmental degradation on human life, which directly affects the full enjoyment of human rights and the achievement of sustainable development that is respectful of the whole spectrum of human rights---including the right to life, to health, to habitation, to equality before the law, and the right to enjoy one’s property. Even Brownlie attributes the conscious collective efforts exerted by governments and non-governmental organizations to invoke legal protection of the environment to “the increased sophistication in appreciating the risks to the earth’s environment” and the recognition or acceptance that irreversible damage which is caused by human activity.
Much has been written on the multifarious issues and problems plaguing our environment. Scholars, scientists, lawyers and human rights advocates alike, at some point agree, that environmental change is now no longer a technical problem, but a political and economic one as well. Interrelated fields of study involved in human rights discourse and the environment now widely acknowledge the important role of the ideas, policies and actions of state elites and the impact of capitalist development on the environment and how these environmental transformations, in turn, affect human relationships, and have potentially serious social and economic consequences for the poor and disadvantaged. The late Prof. James Jackson contributed greatly to the discourse on human-environment interaction especially when he pointed out that it is crucial to emphasize how the environment has been shaped by human agency and the importance of cross-disciplinary perspectives, historical context and the interplay between Western-derived and South-East Asian perceptions of the environment.
The landscape of international environmental law has witnessed rapid changes in such a short time. One change is a shift in the concern from what limits on natural resources to the limits on what the earth can safely absorb such as the unmitigated production of toxic and hazardous wastes. Though still relatively a young field in the context of public international law, international environmental law has evolved so quickly because of pressing concerns in the environment that need to be addressed, whether the need be addressed by substantive, procedural or institutional rules.
Brownlie says that the legal protection of the environment rests on the institutions of general international law, particularly of state responsibility, indicates that the result of the coming together of state and non-state actors in resolving environmental concerns is an extensive agenda that includes, among other pressing concerns, “the problem of transboundary air pollution, the risks created by reliance upon nuclear power, the protection of Antarctica, the protection of endangered species of flora and fauna, and the control and disposal of industrial waste”.
Because human rights and environmental protection are interrelated, fundamental goals of the global community, it would be useful to employ a rights-based approach in arriving at the awareness that environmental protection is integral to the enjoyment of internationally and domestically guaranteed legal rights. Two advantages to using a rights based approach in working for legal protection for the environment stems from the fact that a human rights approach is a “strong claim to an absolute entitlement immune to lobbying and trade-offs in bureaucratic decision-making and its power and ability to trump individual greed and short-term thinking” and the procedural dimensions of an individual right can provide access to justice in a way that bureaucratic regulation or tort law cannot . Further, a human rights approach may stimulate political activism on environmental issues; that concerned citizens and NGOs are more likely to rally around a general statement of right than a technical bureaucratic regulation expressed in legalese. More importantly for the purpose of this paper, a human rights approach can provide the conceptual link to bring local, national, and international issues within the same frame of legal judgment.
It is also important to note that employing a rights-based approach to address environmental issues implies that all state and non-state actors involved in policy-making, projects, programs and activities with potential impact on nature conservation have to ensure respect and protection of all rights guaranteed by national and international law. Using a rights-based approach to a properly implemented environmental policy should facilitate the achievement of an ecologically-sustainable environment, inter- and intra-generational equity and respect for the intrinsic value of our environment.
The advantage pointed out by Hunter on using a human rights approach to environmental issue would be useful in putting a cohesive link from local to national issues up to international issues “because environmental damage is unequally distributed at both the national and international level and a non-discriminatory human rights standard could facilitate comparison and foster political mobilization linking local concerns with more global issues.”
When we refer to human rights, we mean those fundamental entitlements and liberties which individuals possess simply because they are human beings: these bundle of rights in its entirety are enjoyed by every individual---regardless of social status, economic wealth, religion, gender, nationality, age or racial or ethnic origin--- and which are inherent in our nature and without which we cannot live as human beings. One definition of human rights is that these are “those liberties or immunities, and benefits which, by accepted contemporary values, all human beings should be able to claim ‘as of right’ of the society in which they live”. Another common notion of human rights refers to these rights of an individual as a human being, which are recognized by the international community as a whole through their protection and promotion under contemporary international law.
Human rights are enumerated and classified under various internationally recognized instruments such as the UN Charter, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR and the ICESCR further classifies human rights into what are termed “first generation rights” which are civil and political rights and those referred to as “second generation rights” or economic, social and cultural rights. Human rights are also simply regarded as those fundamental and inalienable rights which are essential for life as a human being.”
International Human Rights is the “law which deals with the protection of individuals and groups against violations by governments of their internationally guaranteed rights as well as with the promotion of these internationally guaranteed rights”. The preamble of the UN Charter declares that the peoples of the UN through their governments have agreed to the UN Charter and establish an international organization to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations.
However, Brownlie warns against what he calls enthusiastic literature in human rights discourse and against compartmentalizing the public international law into pockets, and in the process creating the confusion that these are novel ways of dealing with international law. In a study sponsored by the UNESCO, Brownlie discusses human rights in reference to the rights of groups: (1) human rights is a relatively new term in international law, having been used more widely in the United Nations era as going beyond the concept of Rule of Law, but can be traced back to the secular notion of the Rights of Man and from religious thought on natural rights; (2) human rights necessitates the “checking of performance of national legal systems against external standards and the consequent erosion of the reserved domain of the domestic jurisdiction of States; (3) while the Rule of Law in its classical form involved a static model of equality before the law, with the accent on procedural justice and civil rights, the concept of human rights has been at least equally and perhaps more concerned with equal access to resources and education, with a more dynamic concept of economic justice and substantial equality. Such change of content according to Brownlie was signaled by the appearance of the ICCPR and the ICESCR in1966.
Hunter elaborates on the linkages between human rights and the environment: “Today, more than ever, it is clear that environmental degradation has an adverse impact on the quality of human life, and more specifically on the full enjoyment of human rights, as well as the achievement of sustainable levels of development respectful of economic, social and cultural rights. Environmental degradation too often leads to violations of human rights, including the right to life, health, habitation, culture, equality before the law, and the right to property. Many of the human rights enshrined in existing agreements are extremely sensitive to environmental threats.”
The objective of this paper is to determine the nature and extent of the liability of the State for the non-respect or non-fulfillment of the rights of affected citizens to clean air, clean water and a healthy environment, among other human rights, under its organic law and relevant municipal laws as well as international instruments protecting these rights. It is also the objective of this paper to ascertain the reliefs and remedies under these municipal laws and international instruments which the affected citizens can resort to.
Human Rights and Environmental Protection in Asia
Regional mechanisms for the protection of human rights, such as the Convention for the Protection of Human Rights and Fundamental Freedoms, have been in place since the 1950s. The first European Convention drawn up within the Council of Europe which entered into force in 1953 and is now binding on all the member States of the Council of Europe and six protocols have supplemented or amended the Convention to date.
In Asia, research in the field human rights and environmental law shows that the nature of environmental and human rights problems is similar in all South Asian countries. Common concerns identified include water pollution such as lack of control on the pollution of rivers, irresponsible construction of dams and barrages, lack of access to drinking water free from toxin or other contaminants, increased use of agro-chemicals/pesticides, storage and transportation of dangerous goods in package forms and pollution due to noxious liquid substances.
This trend in Southeast Asia and all throughout Asia is a global one, based on a 1989 UN Report on hazardous wastes, as it quotes an estimate from UNEP that world production of chemicals has multiplied in the past decades, particularly in industrialized nations, and the total volume of organic chemicals produced globally increased from around 7 million metric tons in 1950 to over 250 million metric tons in 1985.
One consequence of development and its globalization is the unmitigated production of waste material, whether household, industrial, or toxic waste. Apart from toxic nuclear waste, tons of “regular” garbage, waste that is generated daily on an unprecedented and unmanageable scale, poses a greater challenge. A typical response has been the usual dumping of these wastes from the rich developed countries of the North to the poor underdeveloped countries of the South. Some countries like Japan have even gone so far as to masquerade their toxic wastes as aid to poorer countries in order to facilitate the ease of disposing of such waste materials .
A 2007 report by Basel Action Network indicates that exports of hazardous wastes are being exported at an alarming rate from Japan despite claims by the Japanese government that they do not currently export hazardous wastes to developing countries. The deleterious effects of the presence of the Payatas dumpsite and the San Mateo Landfill to the quality of water available to residents of the affected areas and to general public health illustrates the negative impact of environmental degradation on quality of life and the full enjoyment of human rights of the affected communities, specifically the right to life , to clean water, to clean air, to a healthy environment, and to enjoy their property, and the right to live. But the same inherent rights---the right to life, to a healthy environment, to clean air and water and the right to property---are limited under the same instruments that they are drawn and protected.
In Korea, the 1960s have witnessed both unprecedented economic growth as well as environmental destruction caused by various pollutants emitted as by-products of industrialization. The Korean environmental legal system has developed in the last 30 years through four steps: (1) prevention of pollution; (2) environmental preservation through single legislation; (3) constitutional guarantee of the right to a clean environment; and lastly (4) environmental preservation through plural legislation.
In India, the fundamental and constitutional right to life is extended to include the right to a healthy environment the state has a duty to protect and preserve the ecosystem as part of the directive principles.
Under the 1987 Philippine Constitution, the Bill of Rights enumerates the individual’s rights and privileges which the Constitution guarantees--- it is essentially a list of restrictions upon the power of the state in order that actions of government may not violate the fundamental liberties of its citizens.
The Philippine Bill of Rights is based on the belief that every human being has an inherent dignity and worth which must be respected and protected, particularly against abuses that may be committed by the State; it is a guarantee that there are certain areas of a person’s life, liberty and property that government power may not touch, subject only to the valid exercise of the inherent powers of the State---that of police power, eminent domain and taxation. The rights guaranteed under the Bill of Rights are self-implementing, i.e., can be immediately enforced even in the absence of implementing legislation but the social and economic rights guaranteed in Article XIII of the 1987 Constitution require implementing legislation for their realization.
In the Philippines, the presence of two major garbage sites, namely the Payatas dumpsite and the San Mateo Landfill, in the vicinity of two densely populated residential areas shows how the negative effects of development on the environment is gravely detrimental to human health and thus constitutes a violation of the basic human rights of affected Philippine nationals---their right to life, to clean air, to clean water and to a healthy environment, to full enjoyment of their property.
In India, Pakistan and Bangladesh, the fundamental right to life has been expanded to include the right to liberty and to a healthy or clean environment. In these jurisdictions, most litigations are brought against public authorities, which include various ministries of Central government, federal bodies in Pakistan and India, local authorities and public owned companies.
In our case as a developing country with limited resources and technological knowledge in addressing these concerns, we are still bound to protect environmental resources such as clean water, clean air and a healthy environment, while taking into consideration our limitations in addressing these particular environmental concerns. A cursory look at our existing laws would yield that there is no lack of legislation nor precedents in jurisprudence to address pressing environmental problems in our jurisdiction. What we need is political will to enforce what laws we already have in a more proactive stance, always bearing in mind that prevention is key.
For instance, RA 8749 or the Clean Air Act explicitly states a recognition of rights which provides an injured party with a specific law when pursuing a cause of action and a claim for damages . The Polluter-Pays Principle which is a concept recognized only in developed countries must be incorporated and legally enforced in our jurisdiction in order to add or reinforce safeguards to our natural resources and environment.
Our Constitution specifically provides that we all have the right to a balanced and healthful ecology, a provision that recognizes our increasingly deteriorating environment. All through out our Constitution there are specific provisions, such as the Bill of Rights, that guarantee the protection of human rights---whether civil or political such as the right to life or social, economic or cultural as the right to a healthy environment---and as signatory to the ICCPR and the ICESCR, our government and its corresponding agencies and agents are also under obligation to respect these human rights.
As state party to the ICCPR, the Philippines is under obligation to: (1) respect and ensure to all individuals within its territory the rights recognized in the ICCPR such as the right to life in Art. 3 without distinction of any kind such as race, color, language, religion, political or other opinion, national or social origin, property, birth or other status; (2) undertake necessary steps to adopt necessary legislative measures to give effect to the rights recognized in the ICCPR; (3) ensure that any person whose rights or freedoms are violated shall have an effective remedy notwithstanding that the violation has been committed by persons acting in an official capacity; (4) ensure that any person claiming such a remedy shall have his right be determined by competent judicial, administrative or legislative authorities or by other competent authority and that they shall enforce such remedies when granted.
The civil and political rights of the individual, those enshrined in the UN Charter, the Universal Declaration of Rights and the ICCPR, seek to protect him from an arbitrary exercise of power by the State and to enable him to participate in shaping policies. Civil rights, referring to a person’s right to live his own private life, includes ones right to own property, among others; political rights pertain to the individual’s right vis-à-vis the State. Political rights seek to enable the individual to participate in the decision making process of the government. The State performs a negative duty to protect or guarantee civil and political rights, by refraining or discontinuing to do an act that unduly interferes with a person’s exercise of his civil and political rights.
The clamor to respect the most basic of human rights, the right to life , inextricably linked to other inalienable rights such as right to clean air, clean water and a healthy environment in the face of the challenge of achieving a genuinely sustainable development, is one of the most pressing issues of our time. The constitutional protection of the right to life does not only refer to the right to be alive but also to the protection of one’s faculties to be able to enjoy a decent quality of life.
Sustainable development is brought to the fore here because of the principles of intergenerational equity, of sustainable use, of intragenerational equity and integration in the application of municipal law and in the operations of local waste management are also brought to task.
Two important principle in international environmental law---waste minimization and proximity of waste disposal----advocate the reduction of the generation of hazardous wastes to a minimum and the disposal of such wastes as close as possible to the source of generation and are indicative of the cleaner production approach. These principles are supported by both the Basel Convention and the Bamako Convention. Thus, if by act or omission, the Philippine government and the different government agencies such as the DENR and the concerned local government units violate the most basic human right to life of injured citizens by the deprivation or violation of the right to a healthy environment and to full enjoyment of one’s property, the government and these agents must be held liable for such violations.
The Philippine Constitution takes cognizance of the continuing deterioration of the environment which has become a matter of national concern caused by rapid urbanization, industrial growth, population expansion, natural resources utilization, the use of modern technology and other socioeconomic factors; it recognizes the need for an environmental protection program to prevent further injury or damage to plant and animal life and more importantly, to protect human health and safety. But how may the violations and liabilities of the culpable parties be ascertained both under international environmental law and a human rights regime?
What takes precedence in determining the liability: liability of the duty to protect under international environmental law or the duty to respect in international human rights law? May the offender be held liable under Article 32 of our Civil Code as well as held criminally and administratively liable if found guilty by the competent court? What is the extent of the civil liability of the offender for the violation of the rights of claimants? What forms of damages may the claimant be entitled to?
In India, the principle of absolute liability has been applied in pollution cases to determine environmental liability and has been applied against the public bodies, such liability arising from the tort concept of ‘strict liability’ and does not allow any exception. Jurisprudence in India are actions against the government as well as against private corporations or companies. Indian Courts apply the polluter pays principle in cases related to accidental pollution and environmental damage caused by industrial waste. Compensation is awarded for the harm caused as well as the obligation to pay for the preventive control.
Seeking Reliefs and Remedies Under Environmental Law
In their book entitled “Defending the Environment: Civil Society Strategies to Enforce International Environmental Law”, Linda Malone and Scott Pasternack say that Whenever environmental degradation results in a human harm that violates accepted human rights norms, an international, regional or domestic human rights committee, commission, an/or court may provide a remedy that can contribute effectively to rectifying the underlying environmental degradation as well as human rights violation.
Malone and Pasternack state that environmental human rights refer to the link between human rights and the environment: (1) involves the deprivation of human rights as a result of environmental degradation; (2) that an act or omission of the nation-state has proximately caused environmental degradation that deprives individuals or groups within the jurisdiction of that nation-state of certain rights that the nation-state is obliged to safeguard for those individuals or groups.
Essentially, there are three conditions that must be fulfilled for an environmental human rights claim to prosper and these are: (1) the existence of environmental degradation ; (2) a nation-state action or omission that results in or contributes to that environmental degradation, referred to as “State action”; (3) a deprivation of human rights that results from the environmental degradation.
Despite the claims of the local government units concerned, one of which is the Quezon City government, that they comply with all the pertinent laws, the operations of the two dumpsites do not comply with the standards drawn by municipal laws such as the Ecological Solid Waste Management Act (Republic Act 9003) , Philippine Environmental Policy (Presidential Decree 1151), Philippine Clean Water Act (Republic Act 9275) , Philippine Clean Air Act (Republic Act 8479) and the Code of Sanitation of the Philippines (Presidential Decree 856).
The violation of the right of the public to clean water, to clean air and to a healthy environment is equivalent to a violation of their inalienable right to life and the violations of their property rights. These violations are punishable under relevant municipal laws as well as relevant international treaties to which the Philippines is a signatory in the light of the fact that the incorporation clause, Art. II (2) of the 1987 Constitution, recognizes the generally accepted principles of international law.
At this point, so many questions come to mind. If these violations are punishable under these laws and treaties, may the Philippine Government be thus held accountable for such violations? Apart from the state, who else may be held liable for these violations? What are the reliefs and remedies of the aggrieved parties under municipal law as well as under specific international covenants?
Since international law and municipal law have both been violated which court of justice, what law must be ascertained and administered by the appropriate court of justice? Given that in human rights discourse, government has the obligation or duty not only to protect, but also to fulfill, the rights of its citizens, how and to what extent may our government be held liable for their violations of their citizen’s rights? What court would acquire jurisdiction? Would the doctrine of exhaustion of domestic remedies still apply?
And what are the advantages to using a human rights approach in international environmental law? Using a human rights approach, how then must their liability be determined and to what extent may they be held liable?
Hunter tells us that international environmental law can learn much from employing a rights-based in human rights law, that in the last fifteen years or so, international environmental law scholars and activists looked upon on the law of human rights both as a model for the progressive development of international environmental law and an independent legal strategy for protecting the environment. In concrete terms, human rights law challenges traditional state-centric models of justice thus allowing individuals access in the international legal system.
Bodansky points out some differences in reporting and enforcement requirements between international environmental and human rights law: (1) most international environmental problems cannot be addressed by individual states acting alone but require collective effort, while human rights obligations do not depend on reciprocity in the same way; (2) international environmental law is directed at the control of the private rather than governmental conduct while human rights are perceived as rights viz. governments which can be primarily violated by government actions; (3) human rights treaty regimes tend to be more legalistic than international environmental regimes whose primary task is political and take a political rather than a legal approach to compliance questions.
In the Philippines, there have been precedents where the claimants may hinge arguments on such as the recent SC decision ordering the clean up of Manila Bay upon the petition of Metro Manila residents . Also, the San Mateo Landfill has been ordered by the SC permanently closed in a recent decision. But recent developments and the reopening of a new landfill in San Mateo in almost the same area as the subject of the SC decision necessitate another look at the matter.
Using Malone and Pasternack’s framework and armed with local and international laws and jurisprudence, those directly affected by the presence of the Payatas Dump Site and the San Mateo landfill may pursue their claims against the local government units, the corresponding government agencies such as the DENR in Philippine jurisdiction as well as in international venue invoking the ICCPR and the ICESCR to which the Philippines is a signatory.
Pertinent provisions of the Philippine Civil Code may also find applicability in a suit against government’s violations and in determining civil liability. Art. 19 of the New Civil Code provides for the principle of non-abuse of right, such as when the right is exercised for the purpose of prejudicing or injuring another. Requisites are: (1) when there is a legal duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another. Art. 21 of the New Civil Code provides for the acts contra bonus mores, which presupposes loss or injury, material or otherwise, which one may differ as a result of such violation, the elements of which are: (1) there is an act which is legal; (2) but which is contrary to morals, good customs, public order, or public policy; (3) and it is done with intent to injure.
Art. 26 provides for the protection of human dignity, that every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. Art. 27 provides for relief against public officials, that when a public officer who commits a tort or other wrongful act, done in excess or beyond the scope of his duty, is not protected by his office and is personally liable therefore like any private individuals.
Environmental degradation endangers the human rights not only of present but also of future generations. In India, the right to life has been used in a diversified manner the right to survive as a species, quality of life, the right to live with dignity and the right to livelihood and has been expressly recognised as a constitutional right. However, the nature and extent of this right is not similar to the self-executory and actionable right to a sound and healthy ecology prescribed in the Constitution of the Philippines. Article 21 of the Indian Constitution states: ‘No person shall be deprived of his life or personal liberty except according to procedures established by law.’ The Supreme Court expanded this negative right in two ways: (1) any law affecting personal liberty should be reasonable, fair and just; (2) the Court recognizes several unarticulated liberties that were implied by article 21. It is by this second method that the Supreme Court interpreted the right to life and personal liberty to include the right to a clean environment.
In the experience of India, there is a very fine line between between human rights cases and environmental cases and their jurisprudence twenty or so years ago show the various categories of public interest litigation involved air, water, mining or forest conservation in a broad manner. Categories became more sophisticated in the 1990s and dealt with more complex areas of waste management, protection of biodiversity, access to environmental information, ground water management. In 2000, there are a few public interest environmental litigations where the Supreme Court dealt with water pollution, noise pollution and coastal zone development. All these decisions, in some way or other, established a human right to healthy environment.
In 1994, the Supreme Court of India directly mentioned the principle of sustainable development and tried to balance the social, economic and ecological aspects. The 1990’s definition of sustainable development emphasised the relationship between development and environment, and a balance between the two. More sophisticated challenges were made where the Indian courts were asked to deal with polluting industries such as the leather factories, to prevent encroachment of wetlands and to preserve forests and vegetation. It gave priority to sustainable use of the natural resources and to a right to a healthy environment for the present, and to a certain extent, to future generations. The national environmental policy and legislation reflect the concern for a balance between development, planning and environment. [82]
In Pakistan, the Environment Protection Act 1997 defines and mentions ‘sustainable development’ and the Supreme Court of Pakistan indirectly applied the concept of sustainable development while dealing with the construction of high voltage grid station which was likely to cause serious health hazard to the local people. The Pakistan Constitution also provides that the dignity of man and subject to law, the privacy of home shall be inviolable and he fundamental right to preserve and protect the dignity of man and right to ‘life’ are guaranteed. If both are read together, question will arise whether a person can be said to have dignity of man if his right to life is below bare necessity line without proper food, clothing, shelter, education, health care, clean atmosphere and unpolluted environment.”
In another human rights case against cigarette companies, the petitioner sought a ban on cigarette commercials on television because the western companies were unable to sell cigarettes in their own countries and they were aiming at the developing countries. He added that they were using the advertising to that end and this has resulted in catastrophic calamities in the form of cancer and heart disease. The Supreme Court stated that the citizen could get protection under article 9 because right to life includes quality of life as well.
The principle of absolute liability as applied by Indian courts in pollution cases to determine environmental liability and has been applied against the public bodies, in actions against the Government as well as against private corporations or companies. d Indian Courts applied the polluter pays principle in cases related to accidental pollution and environmental damage caused by industrial waste and ordered compensation for the harm caused as well as the obligation to pay for the preventive control.
The issue of protecting our resource of clean water and that of a healthy environment because it is directly related to the inherent right to life. Studying the deleterious effects of the operations of several dumpsites in the Philippines may prove to be a useful exercise of the Principle of Common but Differentiated Responsibility, which takes into account the differing circumstances of different states in the discharge of such responsibilities.
The presence of two major garbage sites in the vicinity of two densely populated residential areas in the Philippines is gravely detrimental to human health. The deleterious effects are of the presence of these dumpsites to the quality of water available to residents of the affected areas and to general public health. The violation of the right to a healthy environment constitutes a civil wrong, a breach of duty for which municipal law grants a remedy in damages and other forms of relief. Based on domestic laws and the ICESCR and the ICCPR as well as the UN Charter, the residents of communities near the Payatas dumpsite and the San Mateo Landfill have a vested legal right to a healthy environment, to clean air, to clean water and to the full enjoyment of the use of their property.
Jurisprudence in Philippine jurisdiction and special laws also support their claim to these rights based on the corresponding obligation of the State and its agents. Civil and political rights are a bundle of fundamental human rights referring to guarantees of freedom, justice, equality that a State grants to individuals, which are particularly recognized,protected and enforced by the Bill of Rights of the 1987 Constitution and by the International Covenant on Civil and Political Rights.
The civil and political rights of the individual protect him from the arbitrary exercise of governmental power and enable him to participate in shaping government’s policies and programs. Civil and political rights are also referred to as the “first generation rights” because, historically, they were the first to be given recognition as belonging to every individual. The State performs a negative duty to guarantee the protection of the civil and political rights of its citizen which means that the State simply has to refrain from or discontinue doing an act that unduly interferes with a person’s civil and political rights.
Civil rights refer to those rights enjoyed by a person who live in community with other private individuals and include his right to own property, among others. These rights are those that the law will enforce at the instance of private individuals for the purpose of securing to them the enjoyment of their means of happiness. The state has a positive role in ensuring all citizens equal protection under the law and equal opportunity to exercise the privileges of citizenship and otherwise to participate fully in national life regardless of race, religion, sex, or other characteristics unrelated to the worth of the individual. There are powers and privileges not connected with the organization or administration of government, to which an individual is lawfully entitled by virtue of his citizenship. Political rights pertain to the individual’s rights in his relation vis-à-vis the State.
Essentially political rights enable the individual to participate in the decision-making process of the government, which includes the right to vote or to run for public office or the right to information on matters of public concern. These rights are those which entitle the citizens to directly or indirectly participate in the establishment or administration of their government. The term is used to refer to the guarantees of freedoms of belief, speech and association such as the provisions on the practice of freedom of religion ad the right to hold assembly, due process of law or procedural fairness when government deprives an individual of liberty, and other limitations on the power of the state to restrain or dictate the actions of individuals.
Civil liability for human rights violation refers to the obligation created on the part of the offender for the reparation of any loss or damage incurred by the offended party by reason of the violation of his human rights. This obligation is a necessary consequence of the offended party’s right to seek remedy for redress of grievances. The obligation created on the part of the offender is to provide compensation in an amount to be determined by the court. If the offended party sustained pecuniary loss, he has to sufficiently prove that he has indeed suffered such loss as well as its amount.
In the Philippines, civil liability may result from the breach of obligations arising from law, contracts, quasi-contracts, crimes and quasi-delicts. For pecuniary loss sustained, the offended party shall be rewarded actual or compensatory damages. Other forms of damages allowed under the Civil Code are moral damages; temperate damages, nominal damages, liquidated damages and exemplary damages. Art. 32 of the Philippine Civil Code includes moral damages and exemplary damages. In our jurisdiction, public officers may be held accountable to the people for they are deemed vested with the obligation to protect the public trust.
Art XI, Sec. 1 of the 1987 Constitution of the Philippines provides for the duty of public officers and employees to be at all times accountable to the people, serve them with utmost responsibility, integrity, loyalty, efficiency and to act with partriotism and justice. The basic idea of government in the Philippines is that of a representative government, the officers being mere agents and not rulers of the people…but where every officer accepts office pursuant to the provisions of law and holds the office as a trust for the people to whom he represents. Thus, any misfeasance or malfeasance or dereliction of a public officer’s duty would constitute a breach not only of the public trust but also of the state obligation under municipal laws and international obligations.
The international responsibility of a state is generated when conduct attributable to the state under international law constitutes a breach of the international obligations of the state. As a signatory and state party to various treaties recognizing the inalienable human right to life, right to water and to a healthy environment, the Philippines must therefore be accountable for the direct violation of these rights under its municipal laws as well as under relevant international instruments such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, among others.
Thus, when a State violates its treaty obligations to its own nationals, does the requirement of exhaustion of local remedies apply? Theodor Meron articulates this problem: “A question arises…regarding whether the requirement of exhaustion of local remedies extends to those relations between the state and its own nationals which are governed by international human rights…[M]ust local remedies be exhausted before the victim of the violation may present a complaint to an international authority? Is exhaustion required before a state which is not directly affected may submit a claim of a victim who is not its national either to an international authority or to the state which committed the violation?”
Meron reiterates that the requirement that local remedies be exhausted before a claim against a state may be submitted to an international forum is stated in all of the principal human rights treaties, both with respect to complaints submitted against states by the individual victims of violations and with respect to complaints brought by states and such treaties routinely describe the requirement of exhaustion of local remedies as a general or customary principle of law.
Under the ICESCR, each state party has the duty to work for the realization of the rights contained in the Covenant. Take for instance the right to housing, state parties are not all obligated to provide for housing immediately as such necessitates time, planning and high costs for government. Bearing in mind that such right must be fulfilled with progressive realization and given the means possible or available to the state, States are not obligated to eliminate homelessness immediately. But access to housing does put premium on several critical factors like habitability and location, which in turn, requires protection from threats to health, structural hazards and disease vectors and must not be built on polluted sites nor in immediate proximity to pollution sources that threaten the health of the inhabitants.
In Philippine jurisdiction as in other municipal jurisdictions, customs, being rules of conduct formed by repetition of acts, uniformly observed as a social rule, legally binding and obligatory. The requisites for making custom an obligatory rule are: (1) plurality of acts by the great mass of the social group; (2) generally practiced by the great mass of the social group; (3) the community accepts it as a proper way of acting, such that it is considered obligatory upon all; (4) the practice has been going on for a long period of time.
In Philippine jurisprudence, the principle of stare decisis requires courts to follow the rule established in earlier Supreme Court decisions; the doctrine, however, is not inflexible, so that when in the light of changing conditions, a rule has ceased to be beneficial to society, courts may depart from it. Thus, cases such as the landmark Oposa v Factoran, where a number of minors represented by their parents sued the Secretary of the DENR in order to prevent the impairment of Philippine rainforests “and arrest the unabated hemorrhage of the country’s vital life-support systems and continued rape of Mother Earth”, now serve as precedent in both public interest litigation and environmental law.
In Korea, the constitutional guarantee of the right to a clean environment had been secured in the early 1980s. Their constitution clearly guarantees the environmental right as one of the fundamental human rights and made it the responsibility of the government to preserve the environment while demonstrating clearly that maintaining a healthy and comfortable environment has practical legal value.
Globally, the future of a truly efficient and sustainable waste management regime must be “primarily global, holistic and integated, and should focus on the preventive approach.” However, allowance should be made for regional rules, “provided they conform to specially defined global standards and for the application of existing sectoral rules that are in line with its objectives and provisions” and it should take into account sovereign rights of states.
On the municipal or local level, the same principles should apply but with a view to fulfilling and respected the constitutionally guaranteed rights of nationals like in the case of India and the Philippines. Proper care should be taken particularly with developing nations who are at a disadvantage in controlling waste streams and remedial measures should be promptly taken when preventive ones fail to address problems.
On the matter of determining compensation, it is important to refer to the specific provisions on civil liability to determine the correct amount of damages to be awarded, bearing in mind two things: (1) that the primary function of corrective justice is to rectify the harm done a victim of wrongdoing, whether intentional or by omission; (2) that wrongdoing harms not only the victim, but it also undermines the rule of law and societal norms. Hence, though the assessment or valuation of damages is nearly always imperfect, inadequate and complex, the award of damages and other forms of compensation serves the purpose of reparation for the injustice done.
Emphasis must be placed on the fact that “one of the most important legal developments of the modern era---both nationally and internationally---has been the opening of avenues of complaint for private citizens against oppressive action by government agents and agencies and the affording of remedies when violations are found”.
In human rights law and in the context of the rapidly evolving dynamics environmental law, individuals seek directly to ensure respect for the rights they are guaranteed---in this case the fundamental human right to life and the consequent right to a clean and healthy environment--- and the actions that they bring are retrospective; the focus of individual victims is on addressing the breach of the state’s obligations and what has been done to them. Possibly, individual victims are also interested in ensuring that in the future the same breach is not repeated.
Tuesday, August 18, 2009
DO NOT QUIT
When things go wrong as they sometimes will,
when the road you are trudging on seems all uphill,
when funds are low and the debts are high,
and you want to smile but you have to sigh,
when care is pressing you down a bit,
rest if you must, but don't quit.
Success is failure turned inside out.
It is the silver line of the clouds of doubt.
If you quit, you can never tell how close you are or were from succeeding.
Success may be near when it seems afar.
So forge on even when you are hardest hit.
It's when things go wrong when you mustn't quit.
-adapted from a post-it in my notebook, author unknown
when the road you are trudging on seems all uphill,
when funds are low and the debts are high,
and you want to smile but you have to sigh,
when care is pressing you down a bit,
rest if you must, but don't quit.
Success is failure turned inside out.
It is the silver line of the clouds of doubt.
If you quit, you can never tell how close you are or were from succeeding.
Success may be near when it seems afar.
So forge on even when you are hardest hit.
It's when things go wrong when you mustn't quit.
-adapted from a post-it in my notebook, author unknown
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