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ON CANADIAN GARBAGE DUMPED IN TARLAC

I. RELEVANT CONSTITUTIONAL PROVISIONS:

> The 1987 Constitution mandates the right to a healthy environment via

> Sec. 16, Art. II of the Philippine Constitution which provides that: “The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.”

> Section 15 of the same Article provides that: “The State shall protect and promote the right to health of the people and instill health consciousness among them.”

> Case Law: Oposa vs Factoran (G.R. No. 101083 July 30, 1993):

“While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and fittingly stressed by the petitioners — the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come — generations which stand to inherit nothing but parched earth incapable of sustaining life.

“The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against all forms of pollution — air, water and noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correlative duty of not impairing the same and, therefore, sanctions may be provided for impairment of environmental balance. “

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II. INTERNATIONAL TREATIES / DECLARATIONS / CONVENTIONS:

• Declaration of the United Nations Conference on the Human Environment

Principle 1: Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations

Principle 6: The discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious or irreversible damage is not inflicted upon ecosystems. The just struggle of the peoples of ill countries against pollution should be supported.

Principle 11: The environmental policies of all States should enhance and not adversely affect the present or future development potential of developing countries, nor should they hamper the attainment

of better living conditions for all, and appropriate steps should be taken by States and international organizations with a view to reaching agreement on meeting the possible national and international economic consequences resulting from the application of environmental measures.

Principle 22: States shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.

Principle 24: International matters concerning the protection and improvement of the environment should be handled in a cooperative spirit by all countries, big and small, on an equal footing.

Cooperation through multilateral or bilateral arrangements or other appropriate means is essential to effectively control, prevent, reduce and eliminate adverse environmental effects resulting from activities conducted in all spheres, in such a way that due account is taken of the sovereignty and interests of all States.

Proclamation No. 2: The protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world; it is the urgent desire of the peoples of the whole world and the duty of all Governments.

Proclamation No. 6: A point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. Through ignorance or indifference we can do massive and irreversible harm to the earthly environment on which our life and well being depend. Conversely, through fuller knowledge and wiser action, we can achieve for ourselves and our posterity a better life in an environment more in keeping with human needs and hopes. There are broad vistas for the enhancement of environmental

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quality and the creation of a good life. What is needed is an enthusiastic but calm state of mind and intense but orderly work. For the purpose of attaining freedom in the world of nature, man must use knowledge to build, in collaboration with nature, a better environment. To defend and improve the human environment for present and future generations has become an imperative goal for mankind-a goal to be pursued together with, and in harmony with, the established and fundamental goals of peace and of worldwide economic and social development.

Proclamation No. 7, Par 2: Local and national governments will bear the greatest burden for large-scale environmental policy and action within their jurisdictions. International cooperation is also needed in order to raise resources to support the developing countries in carrying out their responsibilities in this field. A growing class of environmental problems, because they are regional or global in extent or because they affect the common international realm, will require extensive cooperation among nations and action by international organizations in the common interest.

• BASEL CONVENTION on the control of transboundary movementsof hazardous wastes and their disposal

* Notes: The convention allows the transport of waste so long as the developing country gives its written consent. We are a signatory to this.

* We have yet to ratify the Basel Ban Amendment, a proposed provision to the convention that completely prohibits developed countries from transporting garbage to poorer countries.

Article 4 of the Basel Convention provides for the general obligations of countries involve in a transboundary movements of wastes. These obligations deals with, among other thing, notices, consent and management.

Article 8 provides for the duty to re-import in case the waste exporter failed to comply with the contract.

Article 9 defines the Illegal traffic of wastes.

1. For the purpose of this Convention, any transboundary movement of hazardous wastes or other wastes: (a) without notification pursuant to the provisions of this Convention to all States concerned; or (b) without the consent pursuant to the provisions of this Convention of a State concerned; or (c) with consent obtained from States concerned through falsification, misrepresentation or fraud; or (d) that does not conform in a material way with the documents; or (e) that results in deliberate disposal (e.g. dumping) of hazardous wastes or other wastes in contravention of this Convention and of general principles of international law, shall be deemed to be illegal traffic.

2. In case of a transboundary movement of hazardous wastes or other wastes deemed to be illegal traffic as the result of conduct on the part of the exporter or generator, the State of export shall ensure that the wastes in question are: (a) taken back by the exporter or the generator or, if necessary, by itself into the State of export, or, if impracticable, (b) are otherwise disposed of in accordance with the provisions of this

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Convention, 17 within 30 days from the time the State of export has been informed about the illegal traffic or such other period of time as States concerned may agree. To this end the Parties concerned shall not oppose, hinder or prevent the return of those wastes to the State of export.

3. In the case of a transboundary movement of hazardous wastes or other wastes deemed to be illegal traffic as the result of conduct on the part of the importer or disposer, the State of import shall ensure that the wastes in question are disposed of in an environmentally sound manner by the importer or disposer or, if necessary, by itself within 30 days from the time the illegal traffic has come to the attention of the State of import or such other period of time as the States concerned may agree. To this end, the Parties concerned shall co-operate, as necessary, in the disposal of the wastes in an environmentally sound manner.

4. In cases where the responsibility for the illegal traffic cannot be assigned either to the exporter or generator or to the importer or disposer, the Parties concerned or other Parties, as appropriate, shall ensure, through co-operation, that the wastes in question are disposed of as soon as possible in an environmentally sound manner either in the State of export or the State of import or elsewhere as appropriate.

5. Each Party shall introduce appropriate national/domestic legislation to prevent and punish illegal traffic. The Parties shall cooperate with a view to achieving the objects of this Article.

Article 12 provides for consultations on liability of parties involved in the traffic of wastes.

* NOTE PO ULIT: The Canadian garbage controversy is currently being treated as a violation of customs law where the parties are the Government and the importers (Canadian government is out of the picture). It is not being approached as a violation of the Basel Conventions, despite of the fact that the Canadian embassy has made known its position on the issue. It doesn’t want back the trafficked wastes as, according to them, it has no “authority and mechanism to compel the return of illegal shipments.”

* World Trade Organization commitments hold the Canadian government responsible for ensuring its shipments to other countries are safe and comply with international agreements.

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III. RELEVANT STATUTES

> RA 9003 (An act providing for an ecological solid waste management program)

Question: Are the landfills compliant with the prescribed standard under RA 9003?

> The Environment Code (PD 1152);

> The Illegal Disposal of Wastes Decree (PD 825);

> The Toxic and Hazardous Wastes Law (Republic Act No. 6969);

Ecological Solid Waste Management Act of 2000 (R.A. No. 9003)

SEC. 2. Declaration of Policies. – It is hereby declared the policy of the State to adopt a systematic, comprehensive and ecological solid waste management program which shall:

a. Ensure the protection of the public health and environment;

b. Utilize environmentally-sound methods that maximize the utilization of valuable resources and encourage resource conservation and recovery;

c. Set guidelines and targets for solid waste avoidance and volume reduction through source reduction and waste minimization measures, including composting, recycling, re-use, recovery, green charcoal process, and others, before collection, treatment and disposal in appropriate and environmentally sound solid waste management facilities in accordance with ecologically sustainable development principles;

d. Ensure the proper segregation, collection, transport, storage, treatment and disposal of solid waste through the formulation and adoption of the best environmental practice in ecological waste management excluding incineration;

SEC. 30. Prohibition on the Use of Non-Environmentally Acceptable Packaging. – No person owning, operating or conducting a commercial establishment in the country shall sell or convey at retail or possess with the intent to sell or convey at retail any products that are placed, wrapped or packaged in or on packaging which is not environmentally acceptable packaging: Provided, That the Commission shall determine a phaseout period after proper consultation and hearing with the stakeholders or with the sectors concerned. The presence in the commercial establishment of non-environmentally acceptable packaging shall constitute a rebuttable presumption of intent to sell or convey the same at retail to customers.

Any person who is a manufacturer, broker or warehouse operator engaging in the distribution or transportation of commercial products within the country shall file a report with the concerned local government within one year from the effectivity of this Act, and annually thereafter, a listing of any

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products in packaging which is not environmentally acceptable. The Commission shall prescribe the form of such report in its regulations.

A violation of this Section shall be sufficient grounds for the revocation, suspension, denial or nonrenewal of any license for the establishment in which the violation occurs.

SEC. 42. Operating Criteria for Sanitary Landfills. – In the operation of a sanitary land fill, each site operator shall maintain the following minimum operating requirements:

a. Disposal site records of, but not limited to:

1) Records of weights or volumes accepted in a form and manner approved by the Department.Such records shall be submitted to the Department upon request, accurate to within 10 percent and adequate for overall planning purposes and forecasting the rate of site filling;

2) Records of excavations which may affect the safe and proper operation of the site or cause damage to adjoining properties;

3) Daily logbook or file of the following information: fires, landslides, earthquake damage, unusual and sudden settlement, injury and property damage, accidents, explosions, receipt or rejection of unpermitted wastes, flooding and other unusual occurrences;4) Record of personnel training; and

5) Copy of written notification to the Department, local health agency, and fire authority of names, addresses and telephone numbers of the operator or responsible party of the site;

SECTION 48. Prohibited Acts. – The following acts are prohibited:

10. The manufacture, distribution or use of non-environmentally acceptable packaging materials;

11. Importation of consumer products packaged in non-environmentally acceptable materials;

12. Importation of toxic wastes misrepresented as “recyclable” or “with recyclable content;”

SEC. 63. Report to Congress. – The Commission shall report to Congress, not later than March 30 of every year following the approval of this Act, giving a detailed account of its accomplishments and progress on solid waste management during the year and make the necessary recommendations in areas where there is need for legislative action.

PHILIPPINE ENVIRONMENT CODE (P.D. 1152)

Section 43. Waste Management Programs. - Preparation and implementation of waste management programs shall be required of all provinces, cities and municipalities. The Department of Local Government and Community Development shall promulgate guidelines for the formulation and establishment of waste management program.

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Every waste management program shall include the following:a) an orderly system of operation consistent with the needs of the area concerned;b) a provision that the operation will not create pollution of any kind or will constitute public

nuisance; c) a system for a safe and sanitary disposal of waste;d) a provision that existing plans affecting the development, use and protection of air, water or

natural resources shall be considered;e) schedules and methods of implementing the development, construction and operation of the

plan together with the estimated costs; andf) a provision for the periodic revision of the program to ensure its effective implementation.Section 44. Responsibility of Local Government. - Each province, city or municipality shall provide

measures to facilitate collection, transportation, processing and disposal of waste within its jurisdiction in coordination with other government agencies concerned. For this purpose, the national government shall provide the necessary subsidy to local governments upon request made through the National Environmental Protection Council and subject to such terms and conditions as the latter may provide.

THE TOXIC AND HAZARDOUS WASTES LAW (REPUBLIC ACT NO. 6969);

SEC. 2. Declaration of Policy. – It is the policy of the State to regulate, restrict or prohibit the importation, manufacture, processing, sale, distribution, use and disposal of chemical substances and mixtures that present unreasonable risk and/or injury to health or the environment; to prohibit the entry, even in transit, of hazardous and nuclear wastes and their disposal into the Philippine territorial limits for whatever purpose; and to provide advancement and facilitate research and studies on toxic chemicals.

SEC. 13. Prohibited Acts. – The following acts and omissions shall be considered unlawful:

a. Knowingly use a chemical substance or mixture which is imported, manufactured, processed or distributed in violation of this Act or implementing rules and regulations or orders;

b. Failure or refusal to submit reports, notices or other information, access to records as required by this Act, or permit inspection of establishment where chemicals are manufactured, processed, stored or otherwise held;

c. Failure or refusal to comply with the pre-manufacture and pre-importation requirements; and

d. Cause, aid or facilitate, directly or indirectly, in the storage, importation, or bringing into Philippine territory, including its maritime economic zones, even in transit, either by means of land, air or sea transportation or otherwise keeping in storage any amount of hazardous and nuclear wastes in any part of the Philippines.

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PHILIPPINE CLEAN AIR ACT OF 1999 (REPUBLIC ACT NO. 8749)

SEC. 2. Declaration of Principles. – The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

The State shall promote and protect the global environment to attain sustainable development while recognizing the primary responsibility of local government units to deal with environmental problems.The State recognizes that the responsibility of cleaning the habitat and environment is primarily area-based.

The State also recognizes the principle that polluters must pay. Finally, the State recognizes that a clean and healthy environment is for the good of all and should, therefore, be the concern of all.

SEC. 4. Recognition of Rights. – Pursuant to the above-declared principles, the following rights of citizens are hereby sought to be recognized and the State shall seek to guarantee their enjoyment:

a) The right to breathe clean air;

b) The right to utilize and enjoy all natural resources according to the principles of sustainable development;

c) The right to participate in the formulation, planning, implementation and monitoring of environmental policies and programs and in the decision-making process;

d) The right to participate in the decision-making process concerning development policies, plans and programs projects or activities that may have adverse impact on the environment and public health;

e) The right to be informed of the nature and extent of the potential hazard of any activity, undertaking or project and to be served timely notice of any significant rise in the level of pollution and the accidental or deliberate release into the atmosphere of harmful or hazardous substances;