De La Salle University- Manila

Protection of Endangered Species in Disputed Waters: Justifying the Protective Measures of the Philippines under International Law

A Thesis Proposal

In partial fulfillment Of the course requirements

In DOCULMG

Submitted to: Atty. Hilario S. Caraan

Atty. Christopher E. Cruz Atty. Ronald L. Carreon

Submitted by:

Penafiel, Wendy Angeline A. Torres, Korina D.

K31

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TABLE of CONTENTS

I. INTRODUCTION

A. Research Background …………………………………………………………...…… 3

B. Statement of the Problem ………………………………………………………....….. 9

C. Significance of the Study ……………………………………..………….........….….10

D. Scope of the Study ………………………………………………..….……….……...12

REVIEW of RELATED LITERATURE II. BACKGROUND on the ENDANGERED SPECIES AFFECTED by the POACHING

ACTIVITY of CHINESE FISHERMEN in the HASA-HASA SHOAL

A. Historical and Scientific Information on the Hawksbill Turtles ………………....…..13

B. Historical and Scientific Information on the Green Marine Turtles …........................17

III. COMPREHENSIVE REVIEW OF THE RELEVANT PUBLIC INTERNATIONAL

LAWS

A. Treaties in International Laws that Promote the Protection of Endangered Species ………...19

B. Rights and Obligations of States in Relation to its Exclusive Economic Zone (EEZ) under

UNCLOS ………………………………………………………………………………...…..25

C. Precautionary Principle and its Applicability in Environmental Issues …………...…….…..35

D. Erga Omnes Obligations and its Applicability in Environmental Issues ………………........39

E. Prevention of Harm Principle and its Applicability in Environmental Issues …………….....43

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

IV. STATE RESPONSIBILITY………………………………………………………………………..46

V. INTERNATIONAL COURTS …………………………………………………………………….48

VI. PROVISIONAL MEASURES …………………………………………………………………….55

VII. CONCEPTUAL LITERATURE ………………………………………………………………… ..57

VIII. RESEARCH DESIGN

A. Research Framework ……………………………………………………………………..……59

B. Research Methodology ………………………………………………………………………...61

IX. BIBLIOGRAPHY ……………………………………...…………………………..……63

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I. INTRODUCTION

A. Research Background

Hasa-Hasa Shoal Incident

On March 1995, sixty-two Chinese fishermen were arrested by the Philippine Navy

for fishing without permission in the Hasa-Hasa Shoal.1 The Hasa-Hasa Shoal is situated

within the Philippine’s Exclusive Economic Zone (EEZ), sixty nautical miles off the Palawan

coast.2 In their fishing vessels were hundreds of endangered marine species protected under

the Philippine laws. China contested that it had undisputable sovereignty over the Hasa-Hasa

Shoal as it is part of its nine-dash line claim, and demands the release of its nationals.3 The

1995 event is not the only case, which involves China and the Philippines arguing over

natural resources found in the disputed territory. Last May 2014, one Chinese fishing vessel

was caught by the Philippine National Police for crossing the Hasa-Hasa Shoal and poaching

endangered species of approximately five-hundred (500) turtles in number, with three-

hundred seventy-eight (378) of which were found dead.4 The Chinese fishermen were

apprehended on the Banyue Reef, around ninety-five (95) kilometers (60 miles) off the coast

of Palawan.5 They, together with their fishing boat, were seized by the Philippine Police.6

1 Fidel V. Ramos, Chinese mischief repeated at Hasa-Hasa (First of two parts), May 17, 2014, http://www.mb.com.ph/chinese-mischief-repeated-at-hasa-hasa-first-of-two-parts/ (last assessed Nov. 30, 2014). 2 Id.; Carmela Fonbuena, PH arrests 11 Chinese fishermen off Palawan, May 07, 2014, http://www.rappler.com/nation/57456-missing-chinese-fishermen-half-moon-shoal. (last assessed Oct. 20, 2014). 3 John Kemp, COLUMN-China’s Nina Dash Line and the Law of the Sea: Kemp, Jun 6, 2014, http://uk.reuters.com/article/2014/06/06/china-sea-kemp-idUKL6N0ON2SV20140606. (last assessed Nov. 15, 2014). 4 Ramos, supra note 1; Jeremy Hance, Chinese poachers caught with 555 marine turtles, most dead (PHOTOS), May 15, 2014 http://news.mongabay.com/2014/0515-hance-sea-turtles-poaching-philippines.html#sthash.CXME8O0o.dpbs. (last assessed Oct. 30, 2014). 5 Id.

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The arrested fishermen were charged before Branch 5 of the Puerto Princesa City Regional

Trial court for violation of Republic Act (RA) 9147 or the Wildlife Resources Conservation

Act and Section 97 and 87 – fishing or taking of rare, threatened or endangered species, and

poaching in territorial waters, respectively – of the Republic Act (RA) 8550 or the Philippine

Fisheries Code.7 China maintained its contention that it has undisputable sovereignty over the

Spratly Islands, including the Hasa-Hasa Shoal, and demanded the release of the fishermen.

The Foreign Ministry spokeswoman of China said,

“We believed that the Philippines government illegally seized the Chinese fishing boat and fishermen in waters near the Nansha (Spratly) islands and made a so-called judicial judgment that violated China’s sovereignty and rights of administration”8 China, moreover, urged the Philippines to cease taking further provocative actions.9

Despite China’s warnings, the Philippines pursued conviction over the fishermen.10 Two of

the eleven Chinese fishermen who were caught in May 2014 were minors; hence, they were

repatriated without charge.11 The Department of Foreign Affairs (DFA) of the Philippines

published a statement on May 12, 2014 stating that despite their violation of the Philippine

fisheries law, the United Nations Convention on the Law of the Sea (UNCLOS), and the

Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),

the minors who were apprehended in the Hasa-Hasa Shoal were released as they cannot be

6 Sui-Lee Wee, China says PH violated its sovereignty with fines on fishermen, 11/25/2014, http://www.abs-cbnnews.com/nation/11/25/14/china-says-ph-violated-its-sovereignty-fines-fishermen. (last assessed Nov.10, 2014). 7 Benjamin B. Pulta, Leila Contradicts Noy on Chinese Poachers Imprisionment¸ 29 May 2014, http://www.tribune.net.ph/nation/leila-contradicts-noy-on-chinese-poachers-imprisonment. (last assessed Jun. 30, 2014). 8 Wee, supra note 6. 9 Ramos, supra note 1. 10 Agence France-Presse, PH convicts Chinese ‘poachers’ despite Beijing’s warnings, 11/24/2014, http://www.abs-cbnnews.com/nation/11/24/14/ph-convicts-chinese-poachers-despite-beijings-warnings. (last assessed Oct.27, 2014). 11 Id.

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prosecuted under Republic Act 7610 of the Philippines or An Act Providing for Stronger

Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination,

and for other Purposes.12 The nine remaining fishermen were fined one-hundred thousand

dollars ($100,000.00) each and an additional one-hundred twenty thousand pesos (Php

120,000.00) fine for catching endangered species.13 These endangered species were found to

be Hawksbill Turtle and Green Sea Turtles, with the former being critically endangered.14

The fishermen shall face six months in jail if they fail to pay the fines.15

South China Sea Territorial Dispute

The conflict between and among States is not an unfamiliar matter in the realm of

international relations. Before contemporary international law came into conceptualization in

the 17th century, there were already recurrent conflicts between States such as Roman-Persian

wars in 53 BC.16 In the 21st century, territorial conflicts among States are still very much

prevalent to which international law continues to minister. Contemporarily, it is the conflict

over the islands in South China Sea that has maintained a leading position in the list of cases

that the United Nations attempts to arbitrate.

The territorial conflict in the South China Sea has long been in play involving

different States with different claims over territories in the region. The Spratly Islands is the

12 See DFA Statement on the Release of Two Minors Apprehended in Hasa-Hasa Shoal, http://www.dfa.gov.ph/index.php/2013-06-27-21-50-36/dfa-releases/2838-dfa-statement-on-the-release-of-two-minors-apprehended-in-hasa-hasa-shoal. (last assessed Oct. 25, 2014). 13 France-Presse, supra note 10. 14 Cris Larano, Philippines Charges Fishermen for Alleged Turtle Poaching China Has Called for Fiserhmen’s Immediate Release, May 12, 2014, http://online.wsj.com/articles/SB10001424052702303851804579557493969255138. (last assessed Oct. 16, 2014). 15 Wee, supra note 6. 16 Bryan Dent, Roman-Persian Wars: Battle of Carrhae, June 12, 2006, http://www.historynet.com/roman-persian-wars-battle-of-carrhae.htm. (last assessed Nov. 15, 2014)

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most disputed territory of all as the issue dates back to early the 1900’s and it remains

unsolved up to the present.17 It has been in the center of conflicting claims as it involved

multi-lateral relations among States namely Vietnam, Taiwan, Malaysia, Brunei, China, and

the Philippines.18 However, the conflict between China and the Philippines could be the most

crucial of all disputes as it has evolved from occupation of territories to armed

confrontations.19 In March 2014, the Philippines filed a formal plea to the United Nations

seeking arbitration over the long-standing dispute and challenging the claims of China,

particularly the nine-dash line claim.20 However, upon ratification of the United Nations

Convention on the Law of the Sea, China submitted a declaration under Article 298:

“The Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.”21

Spratly Islands is composed of 100-230 islands, islets, reefs, shoals, banks, atolls,

cays, and sand banks that greatly cover the South China Sea.22 Its islands are scattered over

the region and cover an area of 800,000 square kilometers.23 Its island group is seated in the

middle of the South China Sea, between Vietnam and the Philippines.24 It is the largest

17 CLAUDE HABERER, BETWEEN TIGER AND DRAGON: A HISTORY OF PHILIPPINE RELATIONS WITH CHINA AND TAIWAN 144 (2009). 18 Id., at 146; AILEEN S.P. BAVIERA & TERESITA ANG SEE, CHINA ACROSS THE SEAS 29 (1991). 19 Id., at 143. 20 France-Presse, supra note 10. 21 United Nations Convention on the Law of the Sea, Dec. 10 1982, 1833 UNTS 3 .[hereinafter UNCLOS]. 22  About  The  Issue  of  South  China  Sea,  http://www.spratlys.org/collection/spratlys_more.htm;  CHRISTOPHER  C.  JOYNER,  The  Spratly  Islands  Dispute  in  the  South  China  Sea:  Problems,  Policies,  and  Prospects  for  Diplomatic  Accommodation  56  citing  “ICE  Cases:  Spratly  Islands  Dispute,”  Case  No.  21  (May  1997):  http://gurukul.ucc.american.edu/ted/ice/Spratly.htm(last assessed Nov.15, 2014);  Dieter  Heinzig,  Disputed  Islands  in  the  South  China  Sea  (Hamburg:  Institute  of  Asian  Affairs,  1976). 23 JOYNER, supra note 22, at 55. 24 Reef Madness, 20/05/2014, http://www.abc.net.au/foreign/content/2014/s4008035.htm.  (last assessed Oct. 30, 2014).

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archipelago and is geologically separated from China and the Philippines by a marine trench

3,000 meters deep and 2,000 meters deep respectively.25

France held the Spratly Islands group between 1933 and 1939. Then, Japan occupied

the archipelago during World War II with the island of Itu-Aba as its base for invasion in the

Philippines.26 Thereafter, the territorial dispute among Asian countries began when the

separation of Spratly Islands from Japan was proclaimed in 1951 in the San Francisco

Conference.27

In 1947, a Filipino named Thomas Cloma claimed seven of the islands in Spratlys. In

1956, Cloma declared the creation of “Kalayaan” or “Freedomland” island state in Spratlys,

with himself as "Chief" under the sovereignty of the Philippines.28 His claims were based on

the right of discovery and occupation.29 The lawfulness of his claims was not recognized by

the government until 1978 when the Marcos government formally annexed the archipelago to

the Philippines and placed it under the administration of Palawan province.30 The rest of the

islands were initially terra nullius, until States began to gradually occupy islands to assert

their claims.31

Starting in 1974, China and the Philippines conducted strategic moves such as the

occupation of new islands. The Philippines built a lighthouse in Thitu and planned on

constructing lighthouses on the Philippine-controlled houses; whereas, China built structures

on Mischief (Panganiban) Reef.32 Later on, the Chinese began the incursions of their

25 HABERER, supra note 17, at 144. 26 Id.; Spratly Islands, http://www.britannica.com/EBchecked/topic/561209/Spratly-Islands.  (last assessed Oct. 30, 2014). 27 Id. 28 JOYNER, supra note 22, at 62. 29 Id., at 60. 30 Id., at 62. 31 HABERER, supra note 17, at 145. 32 JOYNER, supra note 22, at 53.

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reconnaissance ships, which were denounced by the Philippines.33 This marked the start of

tension escalation in the region.

Since 1988, incursions of Chinese vessels on the disputed islands have become a clear

manifestation of their unyielding claim on the Spratly Islands. It is notable why various

States persevere to attain sovereignty over the Spratly Islands as these hold a rich amount of

natural resources.34 It contains approximately ten billion tons of oil and one trillion cubic

meters of natural gas.35 The sea, moreover, serves as a major shipping route and as fishing

grounds to people across the region.36 It is believed to be one of Asia’s biggest potential

flashpoints.37 As the question of territorial sovereignty remains unanswered, States become

more insistent with their claims and continue to conduct actions as if the Spratly Island group

is already subject to their jurisdiction. The recurring case of poaching of endangered species

in the Hasa-Hasa Shoal as earlier discussed illustrates the foregoing.38

This particular recurring case in the Hasa-Hasa Shoal has further escalated the

ongoing tension between the two the States regarding the territorial dispute.39 This territorial

conflict may take time to reach resolution as jurisdiction over parties and the situation under

the United Nations Convention on the Law of the Sea (UNCLOS) have yet to be determined.

Nevertheless, the protection of the environment and its natural resources, including the

endangered species, cannot be disregarded amidst the dispute. The environment is an

international concern; hence, it is the objective of this research to determine how to approach

33 HABERER, supra note 17, at 145. 34 Q&A: South China Sea dispute, 8 May 2014, http://www.bbc.com/news/world-asia-pacific-13748349(last assessed Nov. 30, 2014). 35 JOYNER, supra note 21, at 67. 36 See note 33, supra; The Spratly Islands Dispute: Order-Building on China’s terms?, August 18, 2011, http://hir.harvard.edu/archives/2841(last assessed Nov. 30, 2014). 37 Wee, supra note 6. 38 Ramos, supra note 1. 39 France-Presse, supra note 10.

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this type of circumstance in relation to international and domestic laws. Cases such as

poaching of endangered species cannot be further endured, as aside from China and the

Philippines being parties to the Convention on the International Trade in Endangered Species

(CITES) and Convention on Biological Diversity (CBD), protection and preservation of

natural resources are also a communal duty. 40

B. Statement of the Problem

This research aims to address the question of law on the theories and principles under

Public international law that may determine whether the Philippines can unquestionably

invoke environmental obligations against China and conduct measures for protection of

endangered species amidst the issue of territorial dispute in the South China Sea with the

Republic of China. This research will use Public International Law to identify and justify if

China cannot, by any means, denounce responsibility of preventing exploitation of the

endangered species located in the said territory, while the dispute remains unresolved and the

jurisdiction of involved states remains a question. In order to address the aforementioned

question of law, the researchers shall discuss the following issues:

Main Issue:

What are the theories and principles under Public international law that would justify the

measures that the Philippines could take in preventing the exploitation of endangered species

40 List of Contracting Parties, Convention on International Trade in Endangered Species of Wild Fauna and Flora, http://www.cites.org/eng/disc/parties/chronolo.php(last assessed Nov. 30, 2014).

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in the disputed Exclusive Economic Zone (EEZ), as in the case of Hasa-Hasa Shoal poaching

incident?

Corollary Issues:

1. Whether or not the protection and conservation of endangered species are obligatio

erga omnes that the Philippines could invoke against China?

2. Whether or not the Philippines can use the Precautionary Principle under international

law as a justification of its preventive measures against China, without violating the

latter’s sovereign rights?

3. Whether or not the No Harm principle under international law could justify the

measures that the Philippines could take in preventing the exploitation of endangered

species?

C. Significance of the Study

This research is important in the domestic and international realm of law as it would

justify the measures that the Philippines can use in order to prevent the exploitation of the

endangered species situated within its exclusive economic zone (EEZ) in a disputed territory.

As the dispute is yet to be resolved by the United Nations Arbitration Tribunal and the

jurisdiction of States over the Hasa-Hasa Shoal is not clear, there ought to be a determination

of measures that the Philippines may exercise over the aforementioned territory to prevent

abuse and over-exploitation of natural resources, despite the reservation of China in the

United Nations Convention on the Law of the Sea. This research shall also determine the

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international legal principles and theories that the Philippines may use against China to

support its act of denouncing poaching in the exclusive economic zone and future acts

detrimental to nature. The research shall address the urgent case of environmental protection

as endangered species, particularly those in critical status, may fully deteriorate in the

process of international arbitration.

This paper shall present the correlation between international law, domestic law, and

environmental law in the case that imminent risk may take place amidst the escalating

tension on territory claims. Therefore, this research paper may be of aid to future researchers

who would like to study the same question of law or cases analogous to it.

D. Scope of the Study This research primarily focuses on identifying the legal principles and theories that

may justify the measures that the Philippines can undertake with regard to the protection and

preservation of natural resources, particularly endangered species, located in the Hasa-Hasa

Shoal which is in its Exclusive Economic Zone that is currently subject of a territorial dispute

with China.

This research stems from the territorial dispute between China and the Philippines;

however, it shall not delve into the aspect of determining which claims are legal and

resolving which State has territorial sovereignty over the said shoal. Instead, it shall discuss

what are actions applicable given the current circumstances while it awaits the arbitration of

the United Nations over the dispute, or the final determination of the territorial dispute for

that matter. This paper contains a brief background on the long-standing territorial dispute

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among Asian countries in order for the readers to fully understand where the question of law

of this research comes from.

Furthermore, this research shall focus on the endangered species involved in the

Hasa-Hasa Shoal poaching incident, particularly the Hawksbill turtles, and the Green Marine

turtles. The researchers acknowledge the presence of other natural resources situated within

the disputed territory that need protection and conservation; however, they will not be

addressed in this research as the nature of the endangered species form an integral part of this

study.

Also, this research shall discuss the rights and obligations that the Philippines has

under international law to establish the need of action on the part the Philippines in deference

to the poaching incidents. It will not delve into the rights and obligations of China if there are

any.

Lastly, the research will only consider the facts from the Hasa-Hasa Shoal incident. It

will not use the facts from other similar incidents regarding turtle poaching in the

Philippines.

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REVIEW of RELATED LITERATURE

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

SHOAL

A. Historical and Scientific Information on the Hawksbills Turtles

Hawksbill turtles, also called tortoiseshell turtles, acquired their name because of

their hooked upper jaw that resembles a hawk’s beak.41 They have two pairs of large shields

on the top of the head and between the eyes.42 Hawksbill turtles’ length and weight may

reach 30 inches, and 100 pounds respectively.43 They belong to the genus and species,

Eretmochelys imbricata.44 Their nesting period is from late spring to early autumn on sandy

beaches, and lay around 130 eggs per clutch.45 They are carnivorous sea turtles, which feed

on fish, mollusks, crustaceans, and various sea plants.46 Hawksbills in the Atlantic mainly eat

sponges, coral-limorpharians, and zoanthids.47 While, those in the Pacific and Indian oceans

41 FUNK & WAGNALLS NEW WORLD ENCYCLOPEDIA, Hawksbill Turtle, 1 (2014). 42 Id. 43 6 COLUMBIA ELECTRONIC ENCYCLOPEDIA, Sea Turtle, 1 (2013). 44 Hawksbill, supra note 41.

45 Isao Kawazu et al., Ovulation Induction with Follicle-Stimulating Hormone Administration in Hawksbill Turtles Eretmochelys imbricata, 33 CURRENT HERPETOLOGY 88 (2014)., citing Kamel, S. J. & Delcroix, E., Nesting Ecology of the Hawksbill Turtle, Eretmochelys imbricata, in Guadeloupe, French West Indies from 2000–07. 43 JOURNAL of HERPETOLOGY 367–376 (2009)., citing Miller, J. D, Reproduction in Sea Turtles, in THE BIOLOGY of SEA TURTLES 51 (P. L. Lutz & J. A. Musick, 1997). 46 Hawksbill, supra note 41. 47 Karen Bjorndal, & Alan Bolten, Hawksbill sea turtles in seagrass pastures: success in a peripheral habitat, 157 MAR. BIOL. 135 (2010), citing Meylan A, Spongivory in hawksbill turtles: a diet of glass, 239 SCIENCE 393–395 (1988)., citing Leon YM, & Bjorndal KA, Selective feeding in the hawksbill turtle, an important predator in coral reef ecosystems, 245 MAR. ECOL. PROG. SER. 249–258(2002), citing Blumenthal JM et al., Ecology of hawksbill turtles, Eretmochelys imbricata, on a western Caribbean foraging ground, 8 CHELONIAN CONSERV. BIOL 1–10(2009).

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have a diet that consists of algae, sponges, and other invertebrates.48 They are typically found

in all warm seas49, and in tropical and sub-tropical coral reefs around the world.50 They have a

highly migratory behavior.51 Hawksbill turtles spend first years of their life in deep-sea

habitats.52 They then transfer to habitats in shallow parts of the ocean once they have reached

a size of 20– 35cm carapace length.53

In 1968, Hawksbill turtles were listed as endangered by the International Union for

Conservation of Nature (IUCN) in its IUCN Red List of Threatened Animals.54 Despite being

considered as endangered, their population continued to decline. In effect, they got

reclassified as critically endangered by the IUCN in 1996.55 The current Red list assessment

retains that status.56 The exploitation of Hawksbill turtles is prevalent worldwide,57 as they are

the most economically valuable of all turtles.58 The main threats to their population would be

the trade of their derivatives, egg poaching, and coastal developments that affect nesting

48 Bjorndal, & Bolten, supra note 47, citing Bjorndal KA, Foraging ecology and nutrition of sea turtles, in THE BIOLOGY of SEA TURTLES 199, (P. L. Lutz & J. A. Musick, 1997)., citing Whiting SD, & Guinea ML, A large population of slow growing hawksbills: preliminary results from a wild foraging population in Fog Bay, Northern Territory, in NOAA TECHNICAL MEMORANDUM NMFS-SEFSC- 415, (Epperly SP, & Braun J, 1998). 49 Hawksbill, supra note 41. 50 Kawazu et al., supra note 5., citing Mortimer, J. & A. Donnelly, Marine Turtle Specialist Group 2008 IUCN Red List Status Assessment, Hawksbill Turtle (Eretmochelys imbricata), available at http://www.iucnredlist. org/attachments/639.pdf (2008). 51 Hawksbill Turtle (Eretmochelys imbricata), National Oceanic and Atmospheric Administration, available at http://www.nmfs.noaa.gov/pr/species/turtles/hawksbill.htm (last accessed Nov.30, 2014). 52 Bjorndal & Bolten, supra note 47., citing Reich KJ et al., The ‘lost years’ of green turtles: using stable isotopes to study cryptic lifestages, 3 BIOL. LETT. 712–714(2007). 53 Id. 54 Julia A. Horrocks et al., International Movements of Adult Female Hawksbill Turtles (Eretmochelys imbricata): First Results from the Caribbean's Marine Turtle Tagging Centre, 10 CHELONIAN CONSERV. BIOL.18 (2011).

55 Id. 56 Id., citing Mortimer, J.A et al.,Whose turtles are they, anyway?, 16 Molecular Ecology 117–18 (2007). 57 Kawazu et.al, supra note 5., citing Lutcavage, M. E. et al., Impacts on sea turtle survival, in THE BIOLOGY of SEA TURTLES 387 (P. L. Lutz & J. A. Musick, 1997). 58 Hawksbill, supra note 41.

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habits.59 The loss of their nesting grounds are caused primarily by human activities.60 Their

nesting numbers have drastically declined to more than 80%.61 Despite being considered as

critically endangered, hawksbill products continue to be commercially appreciated and

demanded in some regions.62 The horny plates of their shell, which are translucent and have

a variegated color pattern, have long been valued for making ornamental objects.63 Heat is

used to remove the shields from the back of the turtle, and often done while the turtle is still

alive.64 It is because of practices like these that the population of Hawksbill has dramatically

declined worldwide.65 In the Caribbean, it reduced to as much as 95%.66

Due to its critically endangered status, efforts have been made to ensure its survival.

Hawksbill turtles were placed under the Appendix I of the Convention on International Trade

in Endangered Species of Wild Fauna and Flora (CITES).67 Species listed in Appendix I are

“all those threatened with extinction that are or may be affected by trade.”68 The international

trade of these species is prohibited unless in exceptional cases.69 Due to its migratory

59 Javier Carrion-Cortez et al., Habitat Use and Diet of Juvenile Eastern Pacific Hawksbill Turtles (Eretmochelys imhricata) in the North Pacific Coast of Costa Rica, 12 CHELONIAN CONSERV. BIOL.235 (2013), citing Meylan, A.B., & Donnelly, M., Status justification for listing the hawksbill turtle {Eretmochelys imbricata) as critically endangered on the 1996 IUCN Red List of Threatened Animals, 3 CHELONIAN CONSERV. BIOL. 200-224 (1999), citing Mortimer, J. & A. Donnelly, supra note 50.

60 Kawazu et.al, supra note 45., citing Lutcavage, M.E. et al., supra note 57. 61 Carrion-Cortez et.al., supra note 59., citing Mortimer, J. & A. Donnelly, supra note 50.

62 Proietti, M et al., Genetic Structure and Natal Origins of Immature Hawksbill Turtles (Eretmochelys imbricata) in Brazilian Waters, 9 PLOS ONE 9(2014)., citing Bowen BW et al., Mixed-stock analysis reveals the migrations of juvenile hawksbill turtles (Eretmochelys imbricata) in the Caribbean Sea, 16 MOL. ECOL.49–60 (2007). 63 Sea turtle, supra note 43. 64 Hawksbill turtle, supra note 41. 65 Berube, M, Dunbar et al., Home Range and Foraging Ecology of Juvenile Hawksbill Sea Turtles (Eretmochelys imbricata) on Inshore Reefs of Honduras, 11 CHELONIAN CONSERV. BIOL. 33 (2012), citing Meylan, A.B., & Donnelly, M., supra note 59. 66 Id. 67 Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 993 U.N.T.S. 243. [hereinafter CITES]. 68 Id. 69 Id.

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behavior, Hawksbill turtles can also be found in the Convention on Migratory Species

(CMS). It can be found under Appendix I and II of the said convention.70

Being large spongivores, Hawksbills play a vital role in preserving reef biodiversity.71

The absence of the Hawksbills’ consumption of sponges would lead to the decrease in

diversity and health of reef ecosystems because it opens an opportunity for sponges and

corals to compete for space. 72 The worsening condition of coral reefs and hawksbill

populations bring the need to protect them and their habitats.73 Hawksbill turtles are primarily

associated with coral reefs, sponge reefs, reef walls, and other hard-bottom habitats.74 Being

closely associated with coral reefs, the decline in the quality and quantity of reef habitats

could affect the survival of Hawksbill turtles.75 The degradation of reef-associated fauna

could also have the same effect.76 Hence, in order to properly implement conservation efforts,

considerations should be given to habitat use, migration corridors, foraging ecology, and the

ecological role of Hawksbills.77

70 Hawksbill turtle, supra note 51. 71  Berube   et   al.,   supra   note   65,   citing   Hill,   M.S.,   Spongivory   on   Caribbean   reefs   releases   corals   from  competition   with   sponges,   117   OECOLOGICA   143-­‐150   (1998),   citing   Leon   &   Bjorndal,   supra   note   47,  Blumenthal, J.M. et al., supra 47. 72 Id. 73 Berube et al., supra note 65, citing Meylan, A.B., & Donnelly, M., supra note 58, citing Gardner, T.A. et al., Longterm region-wide decline in Caribbean corals, 301 SCI. 958-960 (2003), citing Blumenthal, J.M. et al., supra 47. 74 Bjorndal & Bolten, supra note 52, citing Meylan, A.B., & Donnelly, M., supra note 58. 75 Bjorndal & Bolten, supra note 52, citing Pandolfi JM et al., Global trajectories of the long- term decline of coral reef ecosystems. 301 SCI. 955–958 (2003), citing Mora C., A clear human footprint in the coral reefs of the Caribbean, 275 PROC. R. SOC. B. 767–773(2008)., citing Jones GP et al., Coral decline threatens fish biodiversity in marine reserves, 101 PROC. NATL. ACAD. SCI. 8251–8253 (2004)., citing Wulff JL, Rapid diversity and abundance decline in a Caribbean coral reef sponge community, 127 BIOL. CONSERV.167–176(2006). 76 Id. 77 Berube et al., supra note 65, citing BAILEY, J.A., PRINCIPLES of WILDLIFE MANAGEMENT, 384 (1984), citing Seminoff, J.A., Jones, T.T. et al, Stable isotope discrimination (S13C and 515N) between soft tissues of the green sea turtle Chelonia mydas and its diet, 308 MARINE ECOLOGICAL SERIES 271-278 (2006)., citing Cuevas, E. et al., Spatial characterization of a foraging area for immature hawksbill turtles {Eretmochelys imbricata) in Yucatan, Mexico, 28 AMPHIBIA-REPTILIA, 337-346 (2007)., citing Blumenthal, J.M. et al., supra 47.

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B. Historical and Scientific Information on the Green Marine Turtles

Green Marine Turtles are named after the color of their fat. 78 They belong to the

genus and species, Chelonia mydas. Once they reached maturity, their shell length could be

more than 1 m., and have a body weight of more than 180 kg.79 They have a greenish to

brownish skin and shell.80 Their head and flippers are dark brown and covered with rough

and horny plates.81 These plates are bordered with white or brilliant yellow.82 Green Marine

turtles can be commonly found in all warm seas.83 There are also times during the summer

that they can be seen along the North Atlantic coasts of the U.S. and Europe.84

Unlike other sea turtles, Green Marine turtles are predominately herbivorous.85

However, they are omnivorous during their oceanic phrase.86 In this time, they consume a

range of planktonic material including crustaceans, jellyfish and ctenophores.87 It is when

78 FUNK & WAGNALLS NEW WORLD ENCYCLOPEDIA, Green Turtle, 1 (2014). 79 Id. 80 Sea turtle, supra note 43. 81 Id. 82 Id. 83Id. 84 Id. 85 Christopher D. Marshall et al., Scaling of bite performance with head and carapace morphometrics in green turtles (Chelonia mydas), 451 JOURNAL of EXPERIMENTAL MARINE BIOLOGY and ECOLOGY 91 (2014). 86 Id., citing Bjorndal, K.A., Nutritional ecology of sea turtles, COPEIA 736–751(1985), citing Bolten, A.B., Variation in sea turtle life history patterns: neritic versus oceanic developmental stages, in 2 THE BIOLOGY of SEA TURTLES 243-257, (P. L. Lutz & J. A. Musick, 2003), citing Musick, J.A. et al, Habitat utilization and migration in juvenile sea turtles, in THE BIOLOGY of SEA TURTLES 137-163, (P. L. Lutz & J. A. Musick, 1997), citing Reich et al., supra note 52. 87 Marshall et al., supra note 85.

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they recruit to neritic habitat that marine algae and sea grass will be on their diet.88 Aside

from it, they also consume mangrove leaves and shoots in some populations.89

All sea turtles are migratory and swim greatly during their lives.90 Green Marine

turtles are the fastest swimming turtles and could reach up to 32 km.91 Both male and female

sea turtles frequently migrate for over hundreds of kilometers every few years.92 After

hatching, they would go to offshore nursery areas.93 They would then continue with their

seasonal migrations between feeding and breeding grounds.94

Exploitation of sea turtles has been happening for a long period of time.95 Their

meat, like veal, is a table delicacy that is used for turtle soups and turtle steaks. 96 Also,

88 Id., citing Bjorndal, supra note 86, citing Mortimer J.A, The feeding ecology of the west Caribbean green turtle (Chelonia mydas) in Nicaragua, 13 BIOTROPICA 49–58 (1981), citing Seminoff, J.A. et al, Home range of green turtles (Chelonia mydas) in a coastal foraging area in the Gulf of California, Mexico, 242 Mar. Ecol. Prog. Ser. 253–265 (2001). 89 Marshall, supra note 85, citing Limpus, C.J., Mangroves in the diet of Chelonia mydas in Queensland, Australia, 89 MAR. TURT. NEWSL. 13–15 (2000), citing Pendoley, K. et al, Browsing on mangroves by green turtles in Western Australia. 84 MAR. TURTL. NEWSL. 80 (1999). 90 Erin Dougherty et al., Hydrodynamic stability in posthatchling loggerhead (Caretta caretta) and green (Chelonia mydas) sea turtles, 113 ZOOLOGY 158 (2010), citing Musick, J.A. et al, Habitat utilization and migration in juvenile sea turtles, in THE BIOLOGY of SEA TURTLES 137-159, (P. L. Lutz & J. A. Musick, 1997), citing Bolten, A.B. et al., Transatlantic developmental migrations of loggerhead sea turtles demonstrated by mtDNA sequence analysis., 8 ECOL. APP. 1–7 (1998), citing Plotkin, P., Adult migrations and habitat use, in 2 THE BIOLOGY of SEA TURTLES 243–257, (P. L. Lutz & J. A. Musick, 2003), citing Bowen, B.W., et al., Conservation implications of complex population structure: lessons from the loggerhead turtle (Caretta caretta), 14 MOLEC. ECOL. 2389–2402 (2005). 91 See note 78, supra. 92 Tyffen C. Read et al., Migrations of Green Turtles (Chelonia mydas) between Nesting and Foraging Grounds across the Coral Sea, 9 PLOS ONE, 1 (2014), citing Benson SR, et al. Beach use, internesting movement, and migration of leatherback turtles, Dermochelys coriacea, nesting on the north coast of Papua New Guinea, 6 CHELON CONSERV BIOL. 7–14 (2007) , citing Carr A, Rips, FADS, and little loggerheads, 36 BIOSCIENCe, 92–100 (1986), citing Mortimer JA & Portier KM, Reproductive homing and internesting behavior of the green turtle (Chelonia mydas) at Ascension island; south Atlantic ocean, COPEIA, 962–977(1989).

93 Dougherty et al., supra note 90. 94 Id. 95 Milani Chaloupka, Historical trends, seasonality and spatial synchrony in green sea turtle egg production, 101 Biological Conservation, 263 (2001), citing Frazier, J., Exploitation of marine turtles in the Indian Ocean, 8 HUMAN ECOLOGY 8, 329-370 (1980), citing Witzell, W.N., The origin, evolution and demise of the US sea turtle, 56 MARINE FISHERIES REVIEW, 8-23 (1994). 96 Green tutle, supra note 78.

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overexploitation of eggs and female turtles at nesting beaches has been prevalent.97 The

degradation of their marine and nesting habitats has also caused the decline in their

population.98 The practices above led to the enlistment of Green Marine turtles as endangered

on the International Union for Conservation of Nature (IUCN) Red List.99 As an effort for its

conservation, Green Marine Sea turtles are found in the Appendix I of the Convention on

International Trade in Endangered Species of Wild Fauna and Flora (CITES)100 and in the

Appendices I and II of the Convention on Migratory Species (CMS).101

III. COMPREHENSIVE REVIEW OF THE RELEVANT PUBLIC INTERNATIONAL LAWS

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

The protection of endangered species can be considered as under the umbrella of a

broader environmental concern, which is the conservation of biological biodiversity.

Biological diversity is defined as “the variability of life in all its forms, levels, and

combination.”102 It is believed that the existing biological diversity now is at its maximum,

thus it is deemed to be non-renewable. 103 Degradation or destruction of it would be

irreplaceable.104 The perception that species require conservation under international law has

97 Read et al., supra 92, citing International Union for Conservation of Nature (IUCN) (2010) IUCN Red List of Threatened Species, available at http://www.iucnredlist.org/search. (last accessed Nov.15,2014)

98 Id. 99 Id. 100 CITES, app.I. 101 IUCN, supra note 97. 102 PATRICIA BIRNIE & ALAN BOYLE, INTERNATIONAL LAW and the ENVIRONMENT, 550 (2nd ed. 2002). 103 Id. at 545. 104 Id.

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been relatively new.105 It was only when particular species has been on the brink of extinction

due to over-exploitation that serious interest on the need to have legal obligations and

principles that would protect and conserve them was taken.106

There are six core biodiversity related conventions. 107 Conversely, only three

particularly relates to the protection and conservation of endangered species. This comprises

of the 1973 Convention on International Trade in Endangered Species of Wild Fauna and

Flora (CITES), 1979 Convention on the Conservation of Migratory Species of Wild Animals

(CMS), and the 1992 Convention on Biological Diversity (CBD). Each will be discussed in

the succeeding paragraphs.

Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

The Convention on International Trade in Endangered Species of Wild Fauna and

Flora (CITES) is undoubtedly considered as the most known international wildlife-related

convention worldwide.108 It has 178 parties when it was concluded in 1973.109 CITES does

not provide a universal framework that addresses the threats faced by vulnerable species, but

rather it maintains a focus on international trade.110 The prohibition and control of the

international trade of the species listed on its appendices has been its mode of ensuring their

survival.

105 Id. at 554. 106 Id. 107 Richard Caddell, Inter-Treaty Cooperation, Biodiversity Conservation and the Trade in Endangered Species, 22 RECIEL 266 (2013). 108 Ed Couzens, CITES at Forty: Never Too Late to Make Lifestyle Changes, 22 RECIEL 311 (2013). 109 Id. 110 Caddell, supra note 106.

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CITES utilizes a listing approach using appendices, which classifies species based on

their conservation status and stipulates corresponding commitments.111 Parties are restricted

to trade species found in the said appendices unless it is in accordance with the said

provisions of the convention.112 CITES has three appendices. Species in Appendix I are “all

those threatened with extinction that are or may be affected by trade.”113 In addition, the trade

“must be subject to particularly strict regulation in order not to endanger further their survival

and must only be authorized in exceptional circumstances.”114 Then, Appendix II includes

species that “although not necessarily threatened with extinction may become so unless trade

in specimens of such species is subject to strict regulation in order to avoid utilization

incompatible with their survival.”115 Also, it addresses “other species which must be subject

to regulation in order that trade in specimens of certain species may be brought under

effective control.”116 Lastly, Appendix III provides for “all species which any Party identifies

as being subject to regulation within its jurisdiction for the purpose of preventing or

restricting exploitation, and as needing the cooperation of other Parties in the control of

trade.”

When the treaty took effect, sea turtles were among the first species to be listed on the

CITES Appendices.117 This list has since been critical in ensuring their survival.118 Hawksbill,

and Green Sea turtles have both been listed in Appendix I.119 This prohibits the international

111 Id. 112 Couzens, supra note 107 at 317. 113 Id. 114 Id.; CITES 115 Id. 116 Id. 117 Marydele Donnelly, Sea Turtles and CITES, available at http://seaturtlestatus.org/sites/swot/files/report/033111_SWOT6_p42-43_CITES.pdf (last accessed Nov.20, 2014). 118 Id. 119 CITES, app. I.

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trade of the said turtles unless there is an exceptional case. All sea turtles are included in

Appendix I since 1981.120

Due to the increase in demand of trade of sea turtle and their products, proposals to

list them from Appendix I to Appendix II has been going on throughout the years.121 If

approved, this will allow the international trade of sea turtles and their products. During the

Fifth Conference of the Parties to CITES back in 1985, Suriname, France, the United

Kingdom, the Seychelles, and Indonesia were unsuccessful with their proposal to allow

hawksbill and green turtle trade.122 Cuba has been consistent with its efforts to reopen its sea

turtle trade with Japan.123 It proposed back in years 1997, 2000, and 2002.124 Although efforts

to reopen international trade of sea turtles have been strong, CITES Parties have consistently

rejected all proposals regarding the matter.125

CITES parties refer to States who bind themselves to the provisions of the

convention.126 At present, the treaty consists of 180 parties.127 A State can join the convention

by making a formal declaration of its intent to be bound by the provisions of CITES.128 The

formal declaration would be in writing addressed to the Depositary Government, which is the

Government of Switzerland.129 The convention enters into force for the State 90 days after the

Depositary received the document containing the State’s declaration. 130 Ratification,

acceptance, approval or accession refers to the process of making a declaration to be bound

120 Donnelly, supra note 117. 121 Id. 122 Id. 123 Id. 124 Id. 125 Id. 126 Member countries, Convention on International Trade in Endangered Species of Wild Faura and Flora, available at http://www.cites.org/eng/disc/parties/index.php (last accessed Nov. 25, 2014). 127 Id. 128 Id. 129 Id. 130 Id.

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by the provisions of CITES.131 Ratification, acceptance and approval are only applicable to

the States that signed the convention when it was open for signature.132 On the other hand,

accession is used to refer to States that did not sign the convention but bound themselves to

the convention.133

Both China and the Philippines are parties to the convention.134 China became a party

through accession on January 8, 1981.135 It then took force after the lapse of four months.136 In

the case of the Philippines, it became a party through ratification on August 8, 1981.137

Likewise with China, it took effect four months after.138 As mentioned earlier, being a party

to CITES means that the provisions of the said treaty bind both.

In case of dispute between two or more parties, Article XVIII of the convention

provides for resolution of disputes. It states that the Parties must negotiate first in case of

dispute regarding the interpretation or application of the provisions.139 In the incident that the

dispute cannot be resolved through negotiation, the Parties by mutual consent may submit the

dispute to arbitration to the Permanent Court of Arbitration at The Hague.140 The Parties shall

be then bound by the arbitral decision.141

Convention on Biological Diversity (CBD)

Under negotiation since 1998, the Convention on Biological Diversity has finally

been concluded on the eve of the UN Conference on Environment and Development in

131 Id. 132 Id. 133 Id. 134 List of Contracting Parties, supra note 40. 135 Id. 136 Id. 137 Id. 138 Id. 139 CITES, art.18. 140 Id. 141 Id.

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1992.142 It can be considered as the first endeavor to deal with biodiversity protection in a

global scale.143 Hence, it improved the scope of the current international standards for

conserving the earth’s biological diversity and ensuring its sustainable use.144 The convention

entered into force on December 29, 1993.145 Just after 8 years, it had 177 parties.146 Thus,

making it one of the most widely ratified environmental conventions.147

CBD is considered as a framework convention.148 Unlike in the CITES and CMS, it

has no appendices that classify species and designate priority activities based on it.149 Rather,

it endeavors to craft the framework of a regime for biodiversity protection.150 It sets guiding

principles that state parties are obligated to take it into account when developing national law

and policy.151 Furthermore, it does not only cover conservation of biological diversity per se,

but it also comprehends other diverse issues like sustainable use of biological resource and

access to genetic materials.152

The convention has three core objectives. It could be found under Article 1 of the said

convention, which provides: “the conservation of biodiversity, sustainable use of its

components, and fair and equitable sharing of benefits arising out of the utilization of genetic

resources” as objectives of the convention.153 These objectives are converted into binding

commitments in the fundamental provisions of the convention.154

142 BIRNIE & BOYLE, supra note 102, at 568. 143 ELLI LOUKA, INTERNATIONAL ENVIRONMENTAL LAW FAIRNESS, EFFECTIVENESS and WORLD ORDER 299 (2006). 144 BIRNIE & BOYLE, supra note 102. 145 Id. 146 Id. 147 Id. 148 LOUKA, supra note 143. 149 Caddell, supra note 107, at 270. 150 LOUKA, supra note 143. 151 BIRNIE & BOYLE, supra note 102, at 571. 152 Id. at 568. 153 Convention on Biological Diversity, Jun. 6, 1992, art.1,1760 U.N.T.S. 79. [hereinafter CBD]. 154 BIRNIE & BOYLE, supra note 142.

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The preamble of the CBD serves as a guide to the parties’ intentions of adopting

particular measures.155 It can be said that “the interpretational conclusions to be drawn from

the Preamble are as binding upon as those from any other part of the treaty”. 156 The

controversial issue that has been undertaken by the preamble would be that “the conversation

of biodiversity is a common concern of humankind.”157 The affirmation of this in the

preamble provides in a way a basis for international action if the approach would be

adopted.158 Being a common concern of all, all states including those non-party states can

discern and remark upon the actions of other states concerning the conservation of

biodiversity both within and beyond their jurisdiction.159

In addition, the convention stresses that states must preserve biodiversity “as far as

possible and as appropriate” through having measures that would protect it.160 In this context,

the convention puts biodiversity resources under national sovereignty.161 This is because of

the premise that biodiversity can be protected more efficiently at the national level.162

At present, the convention has 193 parties.163 Both the Philippines and China are

parties to the said convention.164 China signed the convention on May 11, 1992, but only

became a party on January 5, 1993.165 On the other hand, Philippines signed the convention

on June 12, 1992, but only became a party on August 10, 1993.166 Both became a party

155 Id. at 572. 156 Id., citing BROWNLIE, PRINCIPLES of PUBLIC INTERNATIONAL LAW (5th ed., Oxford, 1998). 157 BIRNIE & BOYLE, supra note 102, at 573. 158 Id. 159 Id. 160 LOUKA, supra note 143 at 300. 161 Id. 162 Id. 163 Convention on Biological Diversity, available at http://www.cbd.int/undb/media/factsheets/undb-factsheet-cbd-en.pdf (last accessed Nov. 16, 2014). 164 List of Parties, Convention on Biological Diversity, available at http://www.cbd.int/information/parties.shtml (last accessed Nov. 19, 2014). 165 Id. 166 Id.

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through the process of ratification.167 The fact that both are parties meant that the provisions

of the convention bind both.

In case of dispute, Article 27 of the convention provides the dispute settlement

mechanism. When there are concerns with the interpretation or application of the convention,

the parties shall try to negotiate between themselves.168 However, if the parties cannot reach

an agreement, their next step is to seek mediation by a third party169. In the event that the

parties have still not yet come into an agreement, arbitration can be used as a resort.170 It will

have to be submitted to the International Court of Justice.171 In addition, Annex II of the

convention provides the detailed arbitration procedures.

Convention on the Conservation of Migratory Species of Wild Animals (CMS)

In 1979, the Bonn Convention on the Conservation of Migratory Species of Wild

Animals (CMS) was adopted.172 The objective of the convention is the “conservation of

migratory species including birds, mammals, reptiles, and fish.”173 The convention provides a

framework wherein states can co-operate in doing scientific research, restoring habitats, and

safeguarding the migration of species that are endangered.174 Endangered migratory species

are listed under Appendix I of the convention, which provides for their immediate protection.

175

167 Id. 168 CBD, art.27. 169 Id. 170 Id. 171 Id. 172 LOUKA, supra note 143. 173 Id. at 300. 174 BIRNIE & BOYLE, supra note 151. 175 LOUKA, supra note 173.

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The convention obligates the States to guarantee that those listed in Appendix I are

provided with appropriate habitats.176 In addition, the parties are required to minimize the

circumstances that would prevent the migration of the species.177 Also, they should control

the factors that may endanger them.178

The convention also provides “AGREEMENTS”, which is the conclusion of formal

conservation.179 They are concluded among range states of species having an unfavorable

conservation status listed under Appendix II.180 Range states are “any state that exercises

jurisdiction over any part of the range of that migratory species.”181 Range states are listed in

the Convention.182 It is the parties who provide which migratory species they consider

themselves in relation of Range state. The AGREEMENTS must provide for the

conservation, restoration of habitats, and protection from disturbance.

There are various types of migratory species. There are those that migrate back in the

sea after stocking their breeds on the state.183 Examples for this would be seals, sea turtles,

and anadromous fish.184 Another kind would be those who travel between EEZs, and between

EEZSs and high seas.185 Tuna and whales belong to this type.186 Lastly, there are those that

live in border areas that usually are cross-jurisdictional boundaries like gorillas and

elephants.187

176 Id. 177 Id. 178 Id. 179 BIRNIE & BOYLE, supra note 102, at 624. 180 Id. 181 Convention  of  Migratory  Species  of  Wild  Animals,  Nov.11,  1983,  1651  UNTS  333.  [hereinafter  CMS].    182 BIRNIE & BOYLE, supra note 179. 183 LOUKA, supra note 143, at 335. 184 Id. 185 Id. 186 Id. 187 Id.

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The Bonn Convention has now 122 parties, which half of it comprises of developing

countries.188 Philippines have been a party since 1994.189 On the other hand, China is only a

range party to the convention.190

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

(EEZ) under UNCLOS

Specific Legal Regime

The Exclusive Economic Zone is a maritime territory of combined features of the

high seas and the territorial sea with a peculiar character as compared to other maritime

territories.191 Its legal regime is governed by the United Nations Convention on the Law of

the Sea (UNCLOS), particularly Part V Articles 55-75.192 As defined in Article 55 of the

aforementioned Convention,

“The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.”193

188 Catherine Redgwell, International Environmental Law, in INTERNATIONAL LAW 714 (3rd ed., 2010). 189 Parties and Range States, Convention on Migratory Species, available at http://www.cms.int/en/parties-range-states (last accessed Nov. 30, 2014). 190 Id. 191 Adascalitei Oana, Exclusive Economic Zone – the Concept of Suis Generis Area and its Implications for the Legal Order of the Seas, 14 CONSTANTA MARITIME UNIVERSITY ACADEMIC JOURNAL 187, 187 (2013). 192 Id. 193 UNCLOS, art. 55.

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It is an area not extending more than 200 nautical miles beyond the baseline.194 It is

suis generis area that is not under the sovereignty of the coastal State nor part of the high

seas. 195 Exclusive economic zone is a multi-purpose area where coastal States enjoy

sovereign rights with regard to economic resources and environmental protection. 196

However, the sovereign rights of the coastal State over the economic resources of the zone

are not in totality exclusive.197 The coastal States enjoy sovereign rights but not sovereignty

in plenary sense.198 This shall be further discussed later in the study.

The exclusive economic zone has three main legal elements: (1) the rights and

obligations which are recognized by the UNCLOS to the coastal States; (2) the rights and

obligations the Convention recognizes to other States; and (3) the formula provided by the

Convention for activities which do not fall within any of the preceding categories.199

Rights, Jurisdiction and Duties of Coastal States and other States within Exclusive

Economic Zone

According to Article 56 of the United Nations Convention on the Law of the Sea:

1. In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:

(i) the establishment and use of artificial islands, installations and structures;

194 Id. art. 57.  195 Oana, supra note 191, at 187; See The EEZ Regime: Reflections after 30 Years by Robert Beckman and Tara Davenport, 6. 196 Id. citing DONALD R. ROTHWELL & TIM STEPHENS, INTERNATIONAL LAW of the SEA (2010). 197 1 E.D. BROWN BL LLM PHD, THE INTERNATIONAL LAW OF THE SEA VOLUME I INTRODUCTORY MANUAL, 220 (1994). 198 Oana, supra note 191, at 190. 199 Id. at 187.

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(ii) marine scientific research; (iii) the protection and preservation of the marine environment; (c) other rights and duties provided for in this Convention.

2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention. 3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI.200

The foregoing provisions grant rights and impose obligations on coastal States in

terms of exploration, exploitation, management and preservation of resources situated in the

zone.201 It provides that the “sovereign rights” of a coastal State are exclusive, not preferential

in the sense that the State does not have sovereignty over the EEZ but had all other rights

necessary for and related to exploration and exploitation of natural resources.202 The coastal

State has sovereign rights over three main resources, particularly the (1) non-living resources

on the seabed, subsoil and superjacent waters, (2) living resources of the seabed, subsoil and

superjacent waters; and (3) other economic activities related to economic exploitation and

exploration of the zone.203

It recognizes the sovereign rights of the coastal State which implies that it may take

legal actions to enforce the laws and regulations it has adopted with regard to the exploration,

exploitation, management and preservation of living resources.204 It further indicates that

States may adopt own management measures to prevent over-exploitation of those resources

situated in the EEZ.205 However, as opposed to what the term “exclusive” suggests, these

200 UNCLOS, art. 56. 201 JOAQUIN G. BERNAS,  S.J., INTRODUCTION TO PUBLIC INTERNATIONAL LAW, 128 (2009). 202 Beckman & Davenport, supra note 195, at 7 citing 1956 ILC Draft Articles concerning the Law of the Sea with Commentaries, Yearbook of the International Law Commission, Volume II, UN Doc. A/3159 (1956) at 297 203 UNCLOS, art. 56. 204 Oana, supra note 191, at 187.  205  Id.;   LORI   FISLER   DAMROSCH   &   SEAN   D.   MURPHY,   INTERNATIONAL   LAW   CASES   AND   MATERIALS,   1401   (6th   ed.,  2014)  

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rights are not exclusive in the sense that such rights are ought to be exercised in consideration

of the limitations posed by the rights and obligations to share with other States and

environmental duties.206

According to Article 61 of the United Nations Convention on the Law of the Sea, the

coastal State shall ensure proper conservation and management measures to maintain the

living resources in the exclusive economic zone and that they are not endangered by over-

exploitation.207 Coastal States are obliged to promote optimum utilization of the living

resources in the EEZ, as well as to determine the allowable catch of living resources.208 They

must maintain these resources at maximum sustainable yield.209 Maximum sustainable yield

pertains to the point at which rate of harvest is matched by the rate of growth in the

population of living resources reaching harvestable stage.210 In terms of interaction with other

States, coastal State shall allow maximum foreign States to access whatever surplus the

coastal State cannot harvest from the allowable catch.211 The nationals of such foreign States

must also comply with the conservation measures and other regulations established by the

coastal State that are consistent with the other provisions of the Convention.212 Such measures

and regulations must be duly provided by the coastal State.213

In the case that the exclusive economic zone of a coastal State overlaps with the

exclusive economic zone of another, same stock or stocks of associated species shall be

206  Brown,  supra  note  197,  at  220,  234.  207  UNCLOS,  art.  61.2.  208  Id.  art.  61.1.  209  Id.  art  61.3;  Bailey  III,  infra  note  210.  210  James   E.   Bailey   III,   The   Exclusive   Economic   Zone:   Its   Development   and   Future   in   International   and  Domestic   Law,   45LA.   L.   REV.   1277   (1985),   citing   59.   H.   Knight,   Managing   the   Sea's   Living   Resources,   8  (1977).    211  UNCLOS,  art.  62.2.  212  Id.  art  62.4.  213  Id.  art.  62.5.  

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

development measures of such stocks.214 With regard to highly migratory species, the

UNCLOS provides that involved States shall stipulate on conserving and promoting the

optimum utilization of such species throughout the region, may it be either within or beyond

the exclusive economic zone. 215 States throughout the region may coordinate with

international organizations in ensuring the actualization of this work.216

For geographically disadvantaged States of the same region or subregion, they hold

the right to take part on the exploitation of an appropriate part of the surplus of living

resources on equitable basis, as long as it is exercised in compliance with the provisions of

the Covenant.217 As in the case of developed geographically disadvantaged States, the

foregoing rights must be exercised in accordance to the stipulation of developed coastal

States only for the benefit of communities with habitual fishing activities.218

Moving forward to the provisions of the UNCLOS on protection and preservation of

the marine environment, it states that the conduction of which is a general obligation, in the

sense that exploitation is allowed up to the extent allowed by environmental policies.219 The

focus of this Part of the UNCLOS is on the pollution activities prohibited. For the protection

of marine biological diversity, it is merely provided that necessary measures ought to be

taken to protect and preserve rare or fragile ecosystems, the habitat of depleted, threatened or

endangered species, and other forms of marine life.220

214  Id.  art.  63.1.  215  Id.  art.  64.1.  216  Id.  art.  64.1.  217  Id.  art.  70.1.  218  Id.  art.  70.5.  219  Id.    art.  192;  193.  220  Id.  art.  194.5.  

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In reference to the rights of the coastal States to enforce rules and measures for

exploration, exploitation, conservation and management of living resources over foreign

States, coastal States may employ means of boarding, inspection, arrest and judicial

proceedings.221 However, the Convention states that in the case of arrest of vessels and crews,

they shall be promptly released once a reasonable bond or other security has been posted.222 If

the detaining State does not comply with the prompt release rule of the Convention, the flag

State may submit a question of release from detention to a tribunal or court accepted by both

States; otherwise, it may be submitted to the International Tribunal for the Law of the Sea.223

The penalties of coastal States for violations of fisheries laws and regulations shall not

include imprisonment, in the absence of a stipulation to the contrary by involved States.224

As the exclusive economic zone is deemed to be a controversial area under the realm

of international law, 225 the UNCLOS provides for compulsory binding dispute settlements

under Part XV in terms of disputes regarding the interpretation and application of the Article

58 on rights and duties of other States in the EEZ. Moreover, States are obliged to settle it

through peaceful means, as in compliance with the provisions of the Charter of the United

Nations.226 The UNCLOS provides for the resolution of conflicts between States regarding

their attributed rights and jurisdictions in the exclusive economic zone, as well as for cases

where the Convention does not attribute such rights or jurisdiction. The UNCLOS provides

for the consistent stipulation that in the exercise of rights and jurisdiction, States must have

due regard to the rights and obligations of other States and its acts shall be compatible with

221  Id.  art.  73.1.  222  Id.  art  73.2.  223  Id.  art.  292.1;  DAMROSCH  &  MURPHY,  supra  note  205,  at  1406-­‐1407.  224  Id.  art.  73.3.  225  Oana, supra note 191, at 190.  226  See  UN  CHARTER  art.  2.3.  

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the provisions of the UNCLOS. For instance, a coastal State’s fishery interests may be in

conflict with another State’s interest in laying submarine cables along the EEZ.227 Other

States must also abide by the laws and regulations of the coastal State in accordance with the

provisions of the UNCLOS and rules of international law. In terms of laws and regulations

where the coastal State has no jurisdiction under the UNCLOS, other States are not mandated

to comply, as the jurisdiction of coastal States is noted in the aforementioned Article 56 of

the UNCLOS.228 In the case of conflict regarding rights and jurisdiction not attributed to

States, such must be resolved on the basis of equity and with consideration of the respective

importance of the interests to involved parties and international community.229 This particular

provision of the Convention on the resolution of conflicts over non-attributed or residual

rights acknowledges the sui generis nature of the exclusive economic zone and signifies that

such may have other uses that are not within the scope of rights and jurisdictions attributed to

States.230 Moreover, there is no presumption in favour of either the coastal State or other

States.231 These interests to be considered and other possible uses, however, are not explicitly

defined by the Convention. The suggested uses would be the conduct of military exercises,

construction of military structure, and recovery of archaeological and historical objects.232

Another important measure of resolving disputes regarding the EEZ is to seek advisory

opinion from the International Tribunal for the Law of the Sea (ITLOS).233

Consequently, coastal States and other States hold mutual obligations of due regard in

exercising their rights, jurisdiction, and duties in the EEZ. It is a way of preventing

227  BROWN,  supra  note,  at  198.  228  Beckman & Davenport, supra note 196, at 11.  229  UNCLOS,  art.  59.  230  BROWN,  supra  note  197,  at  239.  231  Beckman  &  Davenport,  supra  note  195,  at  12.  232  BROWN,  supra  note  197,  at  239-­‐244.  233  Beckman  &  Davenport,  supra  note  195,  at  40.  

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infringements of freedoms in the EEZ. This is in recognition of the general need for

accommodation of uses.234 The balancing of the given provisions on rights, jurisdiction, and

duties of States is an encompassing manifestation of the suis generis character the exclusive

economic zone has.

C. Discussion on the Precautionary Principle and its Applicability in Environmental Issues

Principles serve as considerations that aid decision-makers on selecting a particular

course of action.235 The Precautionary Principle is considered as a rule of conduct in the field

of environmental protection that takes into account the uncertain likelihood and gravity of an

environmental damage before adopting any decision.236 Under the said principle, failing to

take preventive action cannot be justified by the absence of certainty in times where the best

information available reveals that there are reasonable grounds to believe that deplorable

environmental harm may be caused by an action.237 Due to the limitations of science in

assessing complex and uncertain environmental risks, Precautionary Principle came into the

234  Beckman  &  Davenport,  supra  note  195,  at  13.  235 Lluıs Paradell-Trius, Principles of International Environmental Law: an Overview, 9 RECEIL, 96 (2000). 236 Diana Anca et al., The Insertion of the Precautionary Principle in the Environment Protection as a Legal Norm in the European Union Countries, 4 CONTEMPORARY READINGS IN LAW & SOCIAL JUSTICE, 489(2012). 237 Arie Trouwborst, The Precautionary Principle and the Ecosystem Approach in International Law: Differences, Similarities and Linkages,18 RECIEL, 18(1), 34 (2009).

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field of environment policy.238 It has now become an essential legal principle in international

environmental law.239

The purpose of the Precautionary Principle is the adequate protection of the

environment for the good of both humankind and the environment itself.240 It involves taking

preventive action at an early stage when there are threats to the environment. The benefit of

the doubt is given to the environment.241 The presence of reasonable grounds from the best

information available that an action would cause irreversible environmental harm is

sufficient reason to take preventive action.242

In June of 1992, the Precautionary Principle gained international recognition

through three adopted documents during the Summit of the Earth in Rio de Janeiro also

referred to as the United Nations Conference on Environment and Development. 243 These

documents are Rio Declaration on Environment and Development, Convention on Biological

Biodiversity, and the United Nations Framework Convention on Climate Change. 244

It was in the Rio Declaration on Environment and Development that the

Precautionary Principle was first mentioned in international environmental law.245 Article 15

of the said convention provides: “In order to protect the environment, the precautionary

approach shall be widely applied by States according to their capabilities. Where there are

238 Nicolas de Sadeleer, The Precautionary Principle as a Device for Greater Environmental Protection: Lessons from EC Courts, 18 RECIEL 4 (2009). 239 Monika Ambrus, The Precautionary Principle and a Fair Allocation of the Burden of Proof in International Environmental Law, 21 RECIEL 261(2012). 240 Trouwborst, supra note 237, at 27. 241 Id. 242 Id. 243 Artene et al., supra note 235, at 490. 244 Id. 245 Ambrus, supra note 239, at 259.

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threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a

reason for postponing cost-effective measures to prevent environmental degradation.”246

Subsequently, it was cited on the Preamble of the Convention of Biological Diversity,

which states that: “Where there is a threat of significant reduction or loss of biological

diversity, lack of full scientific certainty should not be used as a reason for postponing

measures to avoid or minimize such a threat.” 247

Then, it was also coined in The United Nations Framework Convention on Climate

Change under Article 3 paragraph 3, which states that: “The Parties should take

precautionary measures to anticipate, prevent or minimize the causes of climate change and

mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of

full scientific certainty should not be used as a reason for postponing such measures, taking

into account that policies and measures to deal with climate change should be cost-effective

so as to ensure global benefits at the lowest possible cost. To achieve this, such policies and

measures should take into account different socio-economic contexts, be comprehensive,

cover all relevant sources, sinks and reservoirs of greenhouse gases and adaptation, and

comprise all economic sectors. Efforts to address climate change may be carried out

cooperatively by interested Parties.” 248

Precautionary Principle has become an influential concept in contemporary

international law on environmental protection. 249 The application of the precautionary

principle is believed to be vital in effectively conserving natural resources and biological

246 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I). 247 Convention on Biological Diversity, Jun.6, 1992, 1760 U.N.T.S.79 [CBD]. 248 United Nations Framework Convention on Climate Change, June 12, 1992 (1994), S. Treaty Doc No. 102-38, 1771 U.N.T.S. 107. 249 Trouwborst, supra note 237, at 26.

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diversity.250 Aside from its original context of environmental regulation, the application and

consideration of the precautionary principle has also now been adapted in various range of

issues like food supply and child safety.251 It can be found in at most 60 multilateral

environmental treaties, various political declarations, resolutions and action programs to date.

252

Based on case law, the Precautionary Principle can be either invoked as an obligation

or as a justification.253 In the Pulp Millis case, the Precautionary Principle took the form of an

obligation when it was invoked by Argentina against Uruguay.254 The former alleged that the

latter had acted against the Precautionary Principle by operating on the mills on the Uruguay

River.255 The Court held that Uruguay was under the obligation to stop the operation of the

mills for it could cause significant damage to the river. 256 On the other hand, the

Precautionary Principle took the form of justification in the Gabcikovo-Nagymaros case.257 In

the case, Hungary used the Precautionary Principle to justify its non-compliance with its

treaty obligations with Czechoslovak Republic.258 However, the Court did not accept its

justification.259 For Hungary’s violations of treaty obligations be justified, the Court said it

had to prove that the compliance with these treaty obligations would have caused harm to the

environment.260

250 Id. 251 Mike Feintuck, Precautionary Maybe, but What's the Principle? The Precautionary Principle, 32 JOURNAL of LAW and SOCIETY, 375 (2005). 252 Trouwborst, supra note 237, at 27. 253 Ambrus, supra note 239, at 262. 254 Id.; Pulp Mills on the River Uruguay (Argentina v. Uruguay), [2010] ICJ Rep. 14 (Pulp Mills). 255 Id. 256 Id. 257 Id.; Gabcíkovo-Nagymaros Project (Hungary v. Slovakia), [1997] ICJ Rep. 7 (Gabcíkovo-Nagymaros). 258 Id. 259 Id. 260 Id.

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As illustrated by the cases, principles like the Precautionary Principle guide the courts

and tribunals in interpreting international rules and obligations. Despite the guidance that

principles provide, it would be better if they acquire legal status for them to have a bigger

bearing in decisions. The reality is that it is difficult to give the general definition of the legal

status of environmental principles.261 The primary reason for this is the fact that principles

may be derived from soft law documents, which is “the most traditional source of

principles.”262 The Stockholm Declaration and the Rio Declaration are prime examples of the

reliance of the international environmental law-making process on soft law.263 Soft law is

often referred to as having lack of precision, open-endedness, and lack of enforceability.264 It

can be defined as a “convenient description for a variety of non-legally binding instruments

used in contemporary international relations by States and international organizations.” 265

This view of soft law can be distinguished with hard law, which is always binding.266

Some writers and governments contended that the precautionary principle has become

part of customary international law.267 However, some courts and governments are still

tentative to accept this notion.268 It was observed that some applications of precautionary

principle are already embodied within the concepts of state responsibility.269 The ILC special

rapporteur on transboundary harm concluded that, “Precautionary Principle is already a part

261 Paradell-Trius, supra note 235, at 94. 262 Id. 263 Paradell-Trius, supra note 235, at 95. 264 Jean D’Aspremont & Tanja Aalberts, Which Future for the Scholarly Concept of Soft International Law? Editors’ Introductory Remarks, 25 LEIDEN JOURNAL of INTERNATIONAL LAW 311(2012). 265 Alan Boyle, Soft Law in International Law-Making, in INTERNATIONAL LAW 124 (3rd ed. 2010). 266  Id.  267  Boyle, supra note 265, at 133.  268  Id.  269  Id.,  citing  BROWNLIE,  PRINCIPLES  of  PUBLIC  INTERNATIONAL  LAW,  278  (7th  ed.,  2008).  

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of customs.” The European Court shares the same view on Precautionary Principle when it

held that it evolved from a soft law to a legal norm.270

D. Discussion on Obligations Erga Omnes and its Applicability in Environmental Issues

The idea of obligatio erga omnes was first expressed in the international community

by the International Court of Justice (ICJ) when rendering its decision on the 1970 Barcelona

Traction Case.271 Obligatio erga omnes was defined as “obligations of a State towards the

international community as a whole.”272 Furthermore, this type of obligations was referred to

as a “concern of all States.”273 Hence, all States can have a legal interest in the protection of

the rights involved because of its importance.274 In the said case, the ICJ also recognized five

obligatio erga omnes, which comprise of the prohibitions of aggression, genocide, slavery,

racial discrimination, and the right to self-determination.275

In environmental context, obligatio erga omnes has been rarely used.276 It was

invoked by New Zealand and Australia against France in the 1974 Nuclear Tests cases when

they alleged that France’ nuclear testings interfered with the high seas freedom of all states.277

However, it was the unilateral declaration made by France that resolved the case.278 Hence,

the Court had not given a decision on whether obligatio erga omnes is applicable in the case.

Furthermore, obligatio erga omnes was also mentioned in the dissecting judgment of Judge

270  DONALD  ANTON  &  DINA  SHELTON,  ENVIRONMENTAL  PROTECTION  and  Human  Right,  85  (2001).    271 Brian D. Lepard, CUSTOMARY INTERNATIONAL LAW A NEW THEORY with PRACTICAL APPLICATIONS, 261 (2000). 272 Id. 273 Id. 274 Id. 275 Bingyu Liu, Pros and Cons of the Obligation to Conserve Biodiversity as Obligation Erga Omnes, 6 INTERNATIONAL REVIEW of SOCIAL SCIENCES and HUMANITIES 265 (2014). 276 BIRNIE & BOYLE, supra note 102 at 99. 277 Id.; Nuclear Tests (New Zealand v. France),Judgment, I.C.J. Reports 1974, p. 457. 278 Id.

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

obligatio erga omnes.280

One of the challenges regarding the concept of obligatio erga omnes is its vagueness

when mentioned in the Barcelona Traction Case.281 A theory was developed by Brian Lepard

to help with this dilemma.282 According to his theory, three requisites must be cleared to

consider a norm as obligatio erga omnes. First, “States must believe that the norm creates an

obligation actually owed to all other states based on the content of the norm.”283 Then,

“States must believe that every state has the right to bring legal action for the violation of the

norm.” 284 Lastly, “States must reasonably believe that the norm is consistent with

fundamental ethical principles.”285

As implied in its very own definition, obligatio erga omnes are closely associated

with issues of common concern.286 One of the consequences of identifying a subject as

common concern of humanity is that it would most likely gives rise to obligatio erga

omnes.287 Issues of common concern can be described as those that deal beyond the borders

of a single state and involve a cooperative action in response.288 These issues could not be

resolved just by one state nor the benefits from it could also be received exclusively.289 This

suggests that common concerns can occur within or outside one’s sovereign territory.290

However, there is a view that only grave crimes listed by the International Law 279 BIRNIE & BOYLE, supra 276. 280 Id. 281 LEPARD, supra note 271, at 28. 282 Id. 283 Id. 284 Id. 285 Id. 286 Dinah Shelton, Common Concern of Humanity, 1 IUSTUM AEQUUM SALUTARE, 34(2009). 287 Id. at 39. 288 Id. at 34. 289 Id. 290 Id. at 35.

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Committee that have serious damage to the human beings like the prohibition of genocide,

slavery, and aggression fit the common concern that is addressed by obligatio erga omnes.291

Furthermore, the same view says that the obligations that has already protected in the UN

Charter like right to self-determination are also considered as common concern with regards

to obligatio erga omnes.292

On the other hand, many believed that the characteristics of common concern suit the

very essence of environmental concerns. Issues regarding the environment cannot be

managed properly by lone efforts of a single state. 293 It was in international treaties

concerning the exploitation of shared natural resources that the term common interest was

first coined.294 In its preamble, the International Convention for the Regulation of Whaling

states that, “interest of the world in safeguarding for future generations the great natural

resources represented by the whale stocks.”295 From then on, the recognition of environment

as a common concern has further been used in other treaties. The 1959 Antarctic Treaty’s

preamble upholds that, “it is in the interest of all mankind that Antarctica shall continue

forever to be used exclusively for peaceful purposes.”296 Moreover, the concept of common

concern was also used in some of the most known environmental treaties. The 1979 Bonn

Convention on the Conservation of Migratory Species of Wild Animals (CMS)

acknowledges it in its preamble as it states, “wild animals in their innumerable forms are an

irreplaceable part of the earth’s natural system which must be conserved for the good of

mankind ...[E]ach generation of man holds the resources of the earth for future generations

291  Liu, supra note 206, at 267.  292  Id.  293 Shelton, supra note 286, at 35. 294 Id. 295 Id. 296 Id. at 36.

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and has an obligation to ensure that this legacy is conserved and, where utilized, is used

wisely.”297 In addition, the 1992 Convention on Biological Diversity (CBD) also affirms the

principle of common concern when it states, “the conservation of biodiversity is a common

concern of humankind.”298 In that context, the common concern would be the conservation of

biodiversity and its adverse effects.299

The universal character and the need for common action by all states to protect it are

the two main features that classify biological diversity as common concern. 300 The

classification of biological diversity as common concern makes issues related to it as

legitimate object of international regulation and supervision301. In effect, the reserved domain

of domestic jurisdiction regarding the matter can be disregarded. Nonetheless, for the

obligation to have a real erga omnes character, the international community should be able to

make an individual state comply with their obligations through institutions, treaties or

General Assembly resolution with supervisory powers.

E. Prevention of Harm Principle and its Applicability in Environmental Issues

Although the prevention of harm principle originated from the Trail Smelter

arbitration, it was in the 1972 Stockholm Declaration that the duty to prevent extraterritorial

environmental harm was most famously stated. 302 It provides that the state has the

“responsibility to ensure that activities within its jurisdiction or control do not cause damage

297 Id. 298 Id. at 37. 299 Id. 300 BIRNIE & BOYLE, supra 102 at 97. 301 BIRNIE & BOYLE, supra 102 at 100. 302  ANTON  &  SHELTON,  supra  270,  at  80.  

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to the environment of other States or areas beyond the limits of national jurisdiction.”303 The

principle requires the state to prohibit activities that would cause a great harm to the

environment. 304 The principle seeks to avoid harm whether or not it would cause

transboundary harm.305 It is because environmental damage, like extinction of species, is

irreversible.306

In the Trail Smelter arbitration, only transboundary harm to other states was dealt.307

It was in the latter conventions that included the global common areas.308 It was used in

several treaties like on the Convention on Biological Diversity (CBD), and UN Climate

Change Convention.309 In addition, it was also applied in the UN Convention on Law of the

Sea (UNCLOS) when it called for states to prevent pollution spreading beyond their

territory.310 Furthermore, the UN General Assembly also said that “states must not produce

significant harmful effects in zones situated outside their national jurisdiction.” 311Thus, this

shift in perspective makes the obligation benefit the international community as a whole.312

Moreover, the prevention of harm principle has also been used in the law making process.313

It recognized that the duty of the states to take suitable preventive measures to protect the

environment. The prevention of harm principle has then been declared as part of customary

international law by the International Court of Justice.314

303  LOUKA, supra note 143, at 31.  304  ANTON  &  SHELTON,  supra  note  270,  at  81.  305  Id.  306  Id.  307  BIRNIE & BOYLE, supra 102 at 111. 308  LOUKA, supra note 143, at 212.  309  Id.  310  BIRNIE & BOYLE, supra note 307.  311  Id.  312  Id.  313  Id.  314  ANTON  &  SHELTON,  supra  note  270.  

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F. Intergenerational Equity Principle and its Applicability in Environmental

Issues

There are three fundamental facts that the Intergenerational Equity Principle

acknowledges, which are:

(a) [H]uman life emerged from, and is dependent on, Earth’s natural resource based, including its ecological processes, and is thus inseparable from environmental conditions; (b) [H[uman beings have a unique capacity to alter the environment on which life depends; and (c) [N]o generation has a superior claim to Earth’s resources, because human did not create them but inherited them.315

These facts give rise to the obligation of the current generation to take care of the

planet for the future generations to come.316 The principle gives the current generation the

responsibility to use and develop the current heritage from one’s ancestors in a manner that it

can be passed on the future generations.317 Thus, the present generation must minimize and

prevent causing irreversible damage to the environment. 318

Their implications transpired from the intergenerational equity principle.319 The first

would be that conservation of the biodiversity of the natural and cultural resource should be

done by each generation to satisfy the needs of the future generation.320 Second, the quality of

ecological processes to be passed on should be the comparable to the present ones.321 Lastly,

315  Id.  at  91.  316  Id.  317  BIRNIE & BOYLE, supra 102 at 89. 318  ANTON  &  SHELTON,  supra  note  270,  at  92.  319  Id.  320  Id.  321  Id.  

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the past and present cultural and natural heritage should be safeguarded for the future

generations.322

The intergenerational equity principle was reflected in the International Convention

for the Regulation of Whaling when it acknowledged the need to save preserve whale stock

for future generations. 323 Moreover, the principle was again used in the 1992 Rio

Declaration, which provides that the development and environmental needs of present and

future generations must be equally met.324 The 1992 Convention on Climate Change also

calls for the parties in the convention to use the intergenerational equity principle as a factor

when making decisions. 325 The integration of the intergenerational equity with these

declarations shows that the protection of the environment for future generations has now

been an importance aspect in international policy.326

IV. STATE RESPONSIBILITY

States are answerable for breaches of international law under the principles of state

responsibility. 327 State responsibility arises from the commission of an internationally

wrongful act.328 An internationally wrong is an action or omission that is “attributable to a

State under international law, and a “breach of the international obligations of the State.”329

The breach of international law would depend on the obligations of the State arising from

322  Id.  323  BIRNIE & BOYLE, supra 102, at 89.  324  Id.  325  Id.  326  Id.  327  MALCOLM SHAW, INTERNATIONAL LAW, 853(6th ed., 2008).    328  James   Crawford   &   Simon   Olleson,   The   Nature   and   Forms   of   International   Responsibility,   in  INTERNATIONAL  LAW  451(6th  ed,  ,2010).  329  Report   of   the   International   Law   Commission   on   the   work   of   its   53rd   Session,   art.   2   UN   Doc  A/56/10(2001).  [hereinafter  ARSIWA]  

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treaties, customary laws, and other sources.330 Claims can be made by the injured state against

the violating state for such breaches either by diplomatic action or by recourse to

international mechanisms.331 Once the needed jurisdictional basis has been proven, resorting

to go to an international arbitration or to the International Court of Justice is an option.332

The rules on attribution give specific actors whose actions would be attributable to the

State.333 Generally, only the conduct of its organs or officials would be attributable to the

State.334 However, the acts or omissions of any State organ or of persons or entities exercising

governmental authority would only be attributable to the State if they are acting within their

authority even if the action is ultra vires.335 On the other hand, purely private acts would not

entail State responsibility.336 However, there are certain instances when the State can be liable

for its failure to prevent those acts, and punish the individuals involved.337 In this context, the

responsibility arises from the State’s failure to prevent the acts rather than from the acts of

the private individuals themselves.338 In the Tehran Hostages case, it was held that Iran

breached its international obligation to protect the embassy and consular premises together

with its personnel when the militants attacked and took the Americans as hostages.339 It was

also held in the case that the responsibility of Iran was due to the inaction and failure to take

appropriate steps by their authorities.

330  Crawford  &  Olleson,  supra  note  328,  at  446.  331  SHAW, supra note 327.  332  Id.  333  Crawford  &  Olleson,  supra  note  328  at  452.  334  Crawford  &  Olleson,   supra  note   328,   at   453,   citing   CRAWFORD   J,   THE   INTERNATIONAL  LAW  COMMISSION’S  ARTICLES  on  STATE  RESPONSIBILITY;  INTRODUCTION,  TEXT  and  COMMENTARIES  94-­‐99(2002).  335  ARSIWA, art.7.  336  Crawford  &  Olleson,  supra  note  328.    337  Id.  338  Crawford  &  Olleson,  supra  note  207,  at  454.  339  Id.,  citing  United  States  Diplomatic  and  Consular  Staff  Tehran,  Judgment,  ICJ  Reports  1980,p3,para  63.  

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

customary obligations or treaties.340 In its advisory opinion to the UN General Assembly

regarding the Legality or Threat of Use of Nuclear Weapons, the Court asserted that

environmental international law now involves the general obligations of states to guarantee

that the activities within their jurisdiction and control respect the environment of other states

or areas beyond the national control.341 This has been affirmed in the UN Law of the Sea

(UNCLOS), wherein it provides that, “states have the obligation to protect and preserve the

marine environment” and that “states shall take all measures necessary to ensure that

activities under their jurisdiction and control are so conducted as not to cause damage by

pollution to other states and their environment.”342 In general, States must guarantee that their

international obligations are being followed in their territory. The State may be held liable for

the actions of private individuals who acted against the State’s international obligations.343

For instance, the State entered into a treaty that limits the emissions of a certain substance.344

In the event that any activity exceeded that limit, the State would be held liable for it even if

private individuals caused it.345

V. INTERNATIONAL COURTS

International Court of Justice

340  BIRNIE & BOYLE, supra note 102, at 181. 341  SHAW, supra note 327.  342  Id. at 853.  343  Id. at 899.  344  Id.  345  Id.  

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The International Court of Justice (ICJ) is the principal judicial organ of the United

Nations (UN).346 It was established in June of 1945 by the Charter of the United Nations as a

successor to the Permanent Court of International Justice.347 It came into being through the

Statute of the Court and assumed its function in April of 1946.348 Its seat is at the Peace

Palace in The Hague (Netherlands).349

The role of the International Court of Justice is to settle, in abidance with

international law, legal disputes submitted to it by States. It is also the role of the Court to

provide advisory opinions on legal queries referred to it by authorized United Nations organs

and specialized agencies.350 The Court may have jurisdiction over States that are members of

the United Nations when such is accepted by States.351 This is due to the fact that all members

of the United Nations are ipso facto parties to the Statute of the International Court of

Justice. 352 The acceptance of jurisdiction by States is necessary before corresponding

international courts may handle the cases they submitted. Moreover, States hold the power to

set restrictions, conditions, and reservations with regard to the types of disputes they would

like to be subjected to international courts.353

The Court has two types of jurisdiction, namely compulsory or contentious

jurisdiction and advisory jurisdiction.354 The first type of jurisdiction, called the compulsory

jurisdiction, means that international legal disputes may be submitted to the Court for as long

346  See,   Statute   of   the   International   Court   of   Justice,   available   at   http://www.icj-­‐cij.org/court/index.php?p1=1  /,   June  26,  1945,  59  Stat.  1055,  3  Bevans  1179   [hereinafter   ICJ   Statute]),  available  at  http://www.icj-­‐cij.org/court/index.php?p1=1  (Nov.  30,  2014).    347  BERNAS,  S.J., supra note 201, at 271.  348  Id.  349  Statute  of  the  International  Court  of  Justice,  supra  note  at  346.  350  Id.  351  Id.;  BERNAS,  S.J., supra note 201, 271.  352  Id.    353  Id.  354  See  Dispute  Settlement,  United  Nations  Conference  on  Trade  and  Development,  available  at  http://unctad.org/en/docs/edmmisc232add19_en.pdf  (last  accessed  Nov.24,  2014).  

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as the involved States gave consent to the Court for a binding decision.355 The second type of

jurisdiction, called advisory jurisdiction, pertains to questions referred to the Court by the

General Assembly, the Security Council or other organs and specialized agencies of the

United Nations.356 In addition, the International Court of Justice has mainline jurisdiction and

incidental jurisdiction. The former refers to miscellaneous and interlocutory matters;

whereas, the latter pertains to the power of the Court to provide a binding decision on the

substance and merits of a case placed before it.357

China did not accept the compulsory jurisdiction of the International Court of Justice

despite it being a member of the United Nations. The compulsory jurisdiction pertains to the

right of States to bring any one or more States, which similarly accepted the compulsory

jurisdiction of the Court, by filing an application instituting proceedings with the Court.358

This is supplementary to the cardinal principle in international courts which means States

cannot be compelled to submit disputes to international adjudication without its consent

before or after the dispute emerged.359 If they have consented to the compulsory jurisdiction,

States shall subject itself to the jurisdiction of the Court if the dispute submitted falls within

its scope as stated in Article 36, paragraph 1 of the Statue of the Court (ICJ),

“1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.360

355  Id.  356  Id.  357  Id.  358  See  Jurisdiction,  International  Court  of  Justice,  available  at  http://www.icj-­‐cij.org/jurisdiction/?p1=5&p2=1&p3=3  (last  accessed  Nov.  25,  2014).  359  Stanimir   A.   Alexandrov,   The   Compulsory   Jurisdiction   of   he   International   Court   of   Justice:   How  Compulsory  Is  It?  5  CHINESE  J.  INT’L  L.  29  (2006).  360  Statute  of  the  International  Court  of  Justice,  art.  36.1.  

51

China initially deposited its recognition of the compulsory jurisdiction of the

International Court of Justice on October 26, 1946 through the Secretary-General of the

aforementioned State. However, in December 5, 1972, the incumbent government of China

through its Secretary-General made a statement indicating that it does not acknowledge the

former statement made by the defunct Chinese government in relation to Article 36,

paragraph 2 of the Statute of the International Court of Justice. This particular provision is as

follows:

“2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation.”361

The Philippines, on the other hand, is a member of the United Nations and

expressed its acceptance of the compulsory jurisdiction of the International Court of Justice

on December 23, 1971 under the administration of former President Carlos P. Romulo. The

said declaration of the Philippines provides that it shall remain in force until notice of

termination is given to the Secretary-General of the United Nations.362 The declaration is as

follows:

“18 January 1972 "I, Carlos P. Romulo, Secretary of Foreign Affairs of the Republic of the

361  Id.  362  See  Charter  of  the  United  Nations  and  Statute  of  the  International  Court  of  Justice,  available  at  https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=I-­‐4&chapter=1&lang=en#EndDec  

52

Philippines, hereby declare, under Article 36, paragraph 2, of the Statute of the International Court of Justice, that the Republic of the Philippines recognizes as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes arising hereafter concerning: "(a) The interpretation of a treaty; "(b) Any question of international law; "(c) The existence of any fact which, if established, would constitute a breach of an international obligation; "(d) The nature or extent of the reparation to be made for the breach of an international obligation; Provided, that this declaration shall not apply to any dispute: "(a) In regard to which the parties thereto have agreed or shall agree to have recourse to some other method of peaceful settlement; or "(b) Which the Republic of the Philippines considers to be essentially within its domestic jurisdiction; or "(c) In respect of which the other party has accepted the compulsory jurisdiction of the International Court of Justice only in relation to or for the purposes of such dispute; or where the acceptance of the compulsory jurisdiction was deposited or ratified less than 12 months prior to the filing of the application bringing the dispute before the Court; or "(d) Arising under a multilateral treaty, unless (l) all parties to the treaty are also parties to the case before the Court, or (2) the Republic of the Philippines specially agrees to jurisdiction; or "(e) Arising out of or concerning jurisdiction or rights claimed or exercised by the Philippines: "(i) In respect of the natural resources, including living organisms belonging to sedentary species, of the sea-bed and subsoil of the continental shelf of the Philippines, or its analogue in anarchipelago, as described in Proclamation No. 370 dated 20 March 1968 of the President of the Republic of the Philippines; or "(ii) In respect of the territory of the Republic of the Philippines, including its territorial seas and inland waters; and "Provided further, that this declaration shall remain in force until notice is given to the Secretary-General of the United Nations of its termination. Done at Manila this 23rd day of December 1971. (Signed) Carlos Pi Romulo Secretary of Foreign Affairs”363

In the case that a State that has not recognized the jurisdiction of the International

Court of Justice at the time an application enacting proceedings is filed against it, the Court

may infer the consent of State by virtue of the Doctrine of Forum Prorogatum. According to

this doctrine, States may accept jurisdiction consequently in order for the Court to entertain

363  Id.  

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the corresponding case.364 Consent may be inferred in an informal and implied manner, and

after the case has been advanced to the International Court of Justice.365

The compulsory jurisdiction of the International Court of Justice is an important

factor for the resolution of legal disputes as indicated in Article 36, paragraph 2 of the Statute

of the International Court of Justice.

International Tribunal for the Law of the Sea

The International Tribunal for the Law of the Sea (ITLOS) became functional in year

1996 when the UNCLOS came into force.366 The International Tribunal for the Law of the

Sea (ITLOS) is an independent judicial body established by the United Nations Convention

on the Law of the Sea to adjudicate legal disputes on the interpretation and application of the

said Convention.367 It is open to State Parties to the Convention, including international

organizations, and those that are not parties to the Convention but confers jurisdiction on the

ITLOS.368 These two cases pertain to the exercise of compulsory or contentious jurisdiction

of the Tribunal. The ITLOS may also exercise advisory jurisdiction over legal questions

within the scope of activities of the Assembly or Council of the International Seabed

Authority.369

364  See  Basis  of  the  Court’s  Decision,  International  Court  of  Justice,  available  at  http://www.icj-­‐cij.org/jurisdiction/index.php?p1=5&p2=1&p3=2;  Dispute  settlement,  supra    note  355.    365  Dispute  settlement,  supra    note  354.  366  See  International  Tribunal  for  the  Law  of  the  Sea,  available  at  http://www.pict-­‐pcti.org/courts/ITLOS.html  (last  accessed  Nov.  27,2014).  367  See   The   Tribunal,   available   at   https://www.itlos.org/index.php?id=15&L=0   (last   accessed   Nov.   27,  2014).  368  ITLOS  Statute,  art.  20  369  UNCLOS,  art.  191.  

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The ITLOS has chambers of tribunal particularly the Seabed Disputes Chamber

(SBDC) and special chambers: Chamber of Summary Procedure, standing chambers on

particular categories of disputes, and chamber on disputes at the request of parties. The

Seabed Disputes Chamber handles disputes regarding activities in the seabed, ocean floor

and subsoil beyond national jurisdiction.370 States Parties, International Seabed Authority, the

Enterprise, state enterprise, and natural or juridical persons have standing or locus standi

before the SBDC.371

Moving forward to the special chambers, the ITLOS has three of which with the task

of dealing with distinct categories of disputes. Firstly, the Chamber of Summary Procedure

administers cases through summary procedure for a speedy dispatch of business.372 Secondly,

the standing chambers, which deal with particular categories of disputes, may be dissolved

by the Tribunal any time after a pending case has been administered.373 An illustration would

be the Chamber for Marine Environment Disputes which deals with the interpretation or

application of: (1) any provision of the Convention (UNCLOS) concerning the protection and

preservation of the marine environment; (2) any provision of special conservations and

agreements relating to the protection and preservation of the marine environment referred to

in Article 237 of the Convention; and (3) any provision of any agreement relating to the

protection and preservation of the marine environment which confers jurisdiction on the

Tribunal.374 Lastly, the Chamber for dealing with particular disputes at the request of the

370  See  note  367,  supra.  371  Id.  372  UNCLOS,  annex  VI,  sec  1,  art  15.3.  373  Id.  374  See  ITLOS  and  Dispute  Settlement  Mechanisms  of  the  UNCLOS,  available  at  http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/mom_0506_cambodia_itlos.pdf  (last  accessed  Nov.  25,  2014).  

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parties is provided in Article 15 (2) of the Statute of the International Tribunal for the Law of

the Sea.375

As the International Tribunal for the Law of the Sea emanated from the United

Nations Convention on the Law of the Sea, it has the power to order provisional measures or

interim measures of protection under Article 290 of the UNCLOS with regard to serious

harm to marine environment.376

VI. PROVISIONAL MEASURES

Article 41 of the Statute of the International Court of Justice provides that it has the

power to indicate, if it considers that circumstances so require, any provisional measures

which ought to be taken to preserve the respective rights of either party.377 There are no

guidelines provided by the International Court of Justice to determine what circumstances

Article 41 pertains to. However, these may be identifiable through the manner in which the

said Court makes decisions. 378

It is usually cases on the infringement of human rights that invoke application of

provisional measures.379 Cases on natural resources and environment protection are also

vulnerable subjects of interim protection measures. 380 These measures are intended to

375  UNCLOS  annex  VI,  sec.  1,  art.  15.2  376 Thomas A. Mensah, Provisional Measures in the International Tribunal for the Law of the Sea (ITLOS), ZAÖRV 45 (2002).    377 ICJ, art. 41. 378 Bernhard Kempen & Zan He, The Practice of the International Court of Justice on Provisional Measures: The Recent Development, 69 ZAÖRV 920 (2009).    379 Id., at 921. 380 Id.

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preserve the situation under dispute with a view to giving full effect to the final decision of

the Court.381

In the Fisheries Jurisdiction case, the Court reasoned out that Article 41 presupposes

“…irreparable prejudice should not be caused to rights which are subject of dispute in

judicial proceedings, and that the Court’s judgment should not be anticipated by reason of

any initiative regarding the measures which are at issue.”382 It is applicable in cases so

extreme where the harm to the right is so great, that in the absence of provisional measures,

such right would disappear or lose genuine value when judgment rendered favors the

applicant.383 These circumstances may be those with “irreparable prejudice” and “urgency”.384

As Article 74 of the Rules of Court provides, a request for the indication of provisional

measures by a party shall have priority over all other cases as a matter of urgency.385 In the

Anglo-Iranian Oil Company case, Fisheries Jurisdiction cases and Nuclear Test cases in

1951, 1972, and 1973, the Court stated that both parties involved in dispute shall “ensure that

action of any kind is taken which might aggravate or extend the dispute submitted to the

Court.”386 Possible aggravation of the rights of the parties that are deemed to be at risk or

irreparable prejudice may serve as basis of indication of provisional measure.387

381 See  note  354,  supra. 382  Kempen  &  He,  supra  note  378,  at  920,  citing  Fisheries  Jurisdiction  case  (Federal  Republic  of  Germany  v.  Iceland),  Order  of  17  August  1972,  ICJ  Rep.  1972,  34,  para.  22;  Fisheries  Jurisdiction  case  (United  Kingdom  of  Great  Britain  and  Northern  Ireland  v.  Iceland),  Order  of  17  August  1972,  ICJ  Rep.  1972,  16,  para.  21.  383  Id.,  at  921.  384  Id.  385Jochen   Abr.   Frowein,   Provisional   Measures   by   the   International   court   of   Justice   –   The   LaGrand   Case,  ZAÖRV 55 (2002).      386 Id. citing Anglo-Iranian Oil Co. (United Kingdom v. Iran), Interim Measures, Order of 5 July 1951, IQJ Reports 1951, 89, 93. Fisheries jurisdiction (United Kingdom v. Iceland) (Federal Republic of Germany v. Iceland), Interim Protection, Orders of 17 August 1972, 12, 17; 30, 31. Nuclear Tests (Australia v. France) (New Zealand v. France), Interim Protection, Order of 22 June 1973, IQJ Reports 1973, 99, 106; 135, 142. 387  Kempen  &  He,  supra  note  378,  at  925.  

57

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

circumstances require provisional measures. There must first be a case filed before the Court.

There must be a link established between the alleged rights the protection of which is the

subject of the measure being sought, and the subject of the main claim. Also, the existence of

prima facie jurisdiction over the merits should be established. 388 There were cases,

nevertheless, where the Court first ordered interim measures of protection and eventually

found itself without jurisdiction.389 In cases where the Court did not find any relation between

the rights to be protected and the measures sought, the Court rejects the request for interim

measures, as it has the discretion to reject the application in its totality or order other

measures.390 Additionally, The Court may indicate measures out of its own initiative.391

Interim protection serves a fundamental role in dispute settlement by alleviating

tension and providing avenues for negotiation, as it is of the Court’s great interest and duty to

maintain international peace and security to prevent aggravation of dispute, irreparable

prejudice and to protect rights of parties.392

VII. CONCEPTUAL LITERATURE

The poaching incident in the Hasa-Hasa Shoal has brought forth concerns with regard

to environmental protection as the subjects of this incident, particularly the endangered

species, are situated within the exclusive economic zone of the Philippines that is currently

subject to territorial dispute with China. As the Philippines awaits the grant of arbitration by 388Kempen  &  He,  supra  note  378,  at  922.  389  See  note  354,  supra.  390  Id.  391  Id.  392  Kempen  &  He,  supra  note  378,  at    929.      

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the United Nations, the jurisdiction over the Spratly Islands, inclusive of the Hasa-Hasa

Shoal, it is deemed important to determine lawful measures that the Philippines can take in

preventing the exploitation of involved endangered species.

One school of thought is that environmental protection is an obligatio erga omnes;

hence, the Philippines, despite China’s disregard of certain provisions of the UNCLOS, has

the permission to conduct measures covered by international law. Whereas, the other school

of thought is that it may not be necessary for the Philippines to undertake protection and

conservation measures, such as provisional measures, for grounds that the situation may not

qualify for a provisional measure and that the resolution of territorial dispute is deemed as

principally indispensable.

The researchers utilized law and principles under international law to address the

research issues. There are different school of thoughts also regarding the principles that will

be utilized in the study. With regards to the Precautionary Princple, some courts and

governments has still yet to accept it as a customary law. While, many has already accepted it

as part of customary law. Another concept that will be used in the study is the obligatio erga

omnes. There is a view that only grave crimes and those protected in the UN charter fit the

common concern addressed by obligatio erga omnes.393 This view is in conflict with the

views that consider environmental concerns like conservation of biodiversity as common

concern.

Consequently, this research holds a number of questions regarding proper measures to

be undertaken, the urgency of the case, and the proper laws and principles to be utilized for

analysis.

393 Liu, supra note 222.

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VIII. RESEARCH DESIGN

A. Research Framework

60

As illustrated above, the research framework of this paper resembles the shape of a

turtle. This is because they are the primary subjects affected by the incident that brought

about this study. Hence, the shape of the turtle captures the main purpose behind the study,

Theories and Principles that Justify the Protective Measures of the Philippines

61

which is to justify the measures that the Philippines could take to prevent the exploitation of

its endangered species found in its EEZ in disputed waters.

In the framework, it can be observed that the main issue is found on top of the

hierarchal diagram. This is done to have a clear illustration on how the researchers will

answer it in their research.

After identifying the main issue, the two main categories of legal theories used in this

study is depicted under it, which are the measures of protection and prevention.

Under each category, principles in Public international law can be found beneath it.

These principles will be what the researchers will use in order to answer the main issue.

As observed in the diagram, Public international law and its five sources can be found

at its heart. This is because these sources are the prime tools that the researchers will use in

the study. They will not be only used to answer the issues, but also to aid the researchers in

understanding the concepts under Public international law that will be used in their study. It

is also shown in the diagram that the principles that will be used are linked to one to two

sources of international law. It shows their classification under the five sources. Moreover,

the treaties are linked to both categories because these treaties give rise to both the right and

obligations of the Philippines in the matter. The treaties that will be used in the study are also

specified below it.

Lastly, the scope of the study can be found on the border of the diagram. This is to set

the parameters of the research.

B. Research Methodology

62

This paper is a legal research on the communal duty of environment protection in

respect to the long-standing territorial dispute between China and the Philippines. As this

research concerns two profound international issues, the researchers solely utilized the

different sources of Public International Law in discussing the research problem and the

practicable resolutions that States and International organs may resort to.

The researchers utilized the International conventions that are related to the territorial

dispute and environment protection where both China and the Philippines are parties to.

These conventions provided the specific rights, obligations, and regulations to which both

States admitted their consent to be bound. The researchers, moreover, utilized international

customary law to identify which practices and obligations with regard to environment

protection are generally accepted by States. General principles of law, judicial decisions, and

teachings of highly qualified publicists were also used in this research to further aid in the

determination of the rules of law.

The researchers used scholarly journals, jurisprudence from international courts, and

official documents of organs of the United Nations. In addition, electronic materials such as

news articles and official documents of the organs of the United Nations were used in the

discussion of the paper. Lastly, the researchers utilized diverse materials from the De La

Salle University – Manila library and Ateneo Law School library.

The method of analysis used by the researchers is objective analysis as the research

issues circulated around the questions of law and applicability of international laws to China

and the Philippines. The provisions of the United Nations Convention on the Law of the Sea

and the laws and principles covering environment protection were primarily discussed and

63

supplemented by aforementioned sources of international law to arrive at a probable

resolution.

The flow of discussion of the paper begins with the historical background on the

Hasa-Hasa Shoal incident and a brief historical background on the territorial dispute in the

South China Sea. The researchers then discuss the different laws and principles on territorial

sovereignty and environmental protection.

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