John Henry Valencia, RN, RM, CCCN, MAN

19-21035

BORDER ANXIETIES: THE POETICS AND PREDICAMENTS OF A

TRANSNATIONAL POLLUTION

To every action there is always opposed equal reaction: or, the mutual actions of

two bodies upon each other are always equal, and directed to contrary parts.

1
- Sir Isaac Newton (1642-1727)

I. INTRODUCTION

Newton's third law of motion addresses the quid pro quo attributes of the physical
2
universe. Newton observed that action was inversely related such that

advancement by one body obstructed the advancement of an opposing body to a

3
similar degree. Although Newton's law focused on motion, there is an even more

fundamental principle embedded in the law: a change of any type, exerted upon

a mass, will necessarily alter the state of other bodies juxtaposed to that mass.

Sadly, proponents of science were not able to discover the full impact of

Newton's axiom and its relevance to the earth's ecosystem for many years. Our

race were slow to recognize the link between technological advancements and

1
​Sir Isaac Newton, ​Mathematical Principles of Natural Philosophy, in ​THE AGE OF REASON 108 (Louise L. Snyder ed., 1955).
2
​See Id.
3
​Id.
 changes in the physical environment. Humankind is still in continuous process of

dominating the earth, creating changes in the environment. As the population

increases and the natural resources available for each and every individual

rapidly depletes, it has become evident that environmental problems has

completely taken on an international complexion requiring international resolution

and remedies. Failing to recognize the quid pro quo attributes of nature,

humankind did not anticipate that one of the ecosystem's reactions to

industrialization and on its dominance on earth would be pollution.

A specific approach to environmental problems must take cognizance of the

paradox inherent in the dual nature of human life - biological uniformity versus

social diversity and competition. Though a global approach is essential for

dealing with international ecological problems, each human settlement has

4
problems requiring local solutions. Diversity and uniformity is indeed a complex

idea which compliments each other. On this inherent issue on global phase of

social evolution, the individual has acquired two countries, his own and the planet

earth. Neither can be ignored.

Legal systems around the world have developed rules to control the use of one’s

property and human behaviour so as to permit habitable environment and to

maximize adverse ecological effects. In the Philippines, our Supreme Court has

landmark decisions affecting the environment, acknowledging the right of not just

4
Dubos, ​Unity Through Diversity, i​ n Only One Earth ​3B (​ 2013).
 the current generation of living human beings but even the intergenerational
5 6
rights of the unborn as well as bringing actions for residential marine mammals

which are all anchored to the right to a balanced and healthful ecology.

Consequently, environmental laws developed from early times at the municipal

level. For example, biblical tradition and the Talmud espoused the stewardship of

man over his resources and set rules to avoid pollution. The Common Law

countries has developed nuisance rules with regard to maximum land use.

Environmental law has has facilitated anticipatory control of the environment.

Only recently has international environment control emerged.

The Pollution Problem

Pollution means such alteration of the physical, chemical and/ or biological

properties of any water and/or atmospheric air of the Philippines, or any

discharge of any liquid, gaseous or solid substance into any of the waters and/ or

atmospheric air of the country as will or is likely to create or render such waters

and/ or atmospheric air harmful or detrimental or injurious to public health, safety

or welfare, or to domestic, commercial, industrial, agricultural, recreational or

7
other legitimate uses, or to livestock, wild animals, birds, or any aquatic life.

In an International level, pollution involves the introduction into the environment

of material or energy that endangers or is likely to endanger men's health,

5
Oposa vs. Factoran, ​G.R. No. 101083, July 30, 1993, 224 SCRA 792.
6
​Resident Marine Mammals vs. Reyes, G.R. No. 180771, April 21, 2015
7
​R.A. 3931, sec. 2 (a)
 8 9
well-being or resources. It may affect man directly through his contact with air,
10
water or food, or indirectly through food supply reduction , habitat, deterioration
11
or climate alteration.

In this sense, it can be gleaned that pollution consideration may be approached

in two perspectives. One is to assume that a substance is not harmful until

evidence indicates the contrary; the other is to assume that any substance, or at

least any new chemical substance is harmful until found otherwise. It is also

necessary to consider the particular properties of substances that are likely to

12
make them significant pollutants.

Transnational pollution on the other hand is "pollution whose physical origin is

situated wholly or in part within the area under the jurisdiction of one state and

which has adverse effects, other than the effects of a global nature, in the area
13
under the jurisdiction of another state. ​Just recently, news has been ravaging

over Canada’s multiple containers sent to the Philippines containing hazardous

14
municipal waste, including household and street rubbish. ​This waste trafficking

has been an ongoing issue since 2016 when Canada sent the container in

8
​Identification and Control of Pollutants of International Significance, ​U.N. Doc. A/CONF. 48/8
9
​Id. ​Direct effects include genetic aberrations which manifest themselves several generations after human contact with certain
pollution forms.
10
​Id. ​Food supply reduction can occur indirectly, for example, by the proliferation of (a previously) harmless species, resulting from
the pesticidal extermination of that species' natural enemies.
11
Id.
12
Id.
13
​Pe Benito, Conflict of Laws, pp. 387-388 citing ​Noah D. Hall, Transboundary Pollution: Harmonizing International and Domestic
Law, 40 U. MICH. J.L. REFORM 681, 681 (2007).
14
“​ Canada to take back Rubbish sent to the Philippines” (22 May, 2019). BBC News. Retrieved 18 October, 2019
from https://www.bbc.com/news/world-us-canada-48360553
 dispute. Waste trafficking is one of the most common types of transnational

pollution when it comes to countries with a unique geography as the Philippines.

In relation to these recent issues relating to transnational pollution, ​the aim of the

author is to provide an analysis of the contribution of the International body to the

development of the law concerning transboundary environmental harm. A

cornerstone rule of international environmental law is that States are under an

obligation not to cause harm to the environment of other States, or to the areas

beyond national jurisdiction. The essence of this obligation, often referred to as

the no-harm rule or the prohibition of transboundary environmental harm, is that

States may not conduct or permit activities within their territories, or in common

spaces, without regard to other States or for the protection of the global

environment. The origins of the obligation lie in the old principle of international

law that States are obliged not to inflict damage on, or violate the rights of other

States, which is often expressed by reference to the sic utere tuo ut alienum non

laedas principle ​(use your own property in such a way that you do not injure other
15
people).

This study explores how international jurisprudence has played a role in the

process of translating this principle into a fundamental rule of international

environmental law. Furthermore, it explores how international jurisprudence has,

in interaction with state practice, multilateral environmental treaties and the work

15
​The sic utere principle is based on ancient Roman law, and is also a familiar concept in modern legal systems, see e.g. Article 431
of the Philippine Civil Code; Andamo vs. Intermediate Appellate Court, G.R. No. 74761, November 6, 1990
of the International Law Commission (ILC), contributed to the crystallization and

clarification of the content of this rule. Variations of the no-harm rule have been

adopted in numerous environmental treaties and declarations and the rule is

widely regarded to have reached status as customary international law. However,

many questions arise with regard to the application of the rule in real cases, and

it's more precise implications in current international law. For example, what is

meant by transboundary environmental damage? Does the rule apply to all types

of damage, or only to damage that exceeds a certain threshold? Furthermore,

does the rule require that all harm exceeding the current threshold is prevented,

or is there a standard of care which, if the source State meets it, may free the

same State from responsibility for harm? If so, what is required by States in

terms of conduct under the standard of care? Is the standard differentiated, i.e.

lower for developing States?

Through an analysis of relevant jurisprudence, the author will attempt to identify

the legal content of the rule and possible remedies available for an injured party.

The analysis will show that in current international law, it has taken form as an

obligation to prevent and control transboundary harm and pollution from activities

within their jurisdiction and control, accompanied by an obligation to cooperate to

reduce risk of such harm through notification, consultation and negotiation, and

by conducting environmental impact assessments.

 This study will further look into the possible cross-border remedies available and

might be available for an injured party as a result of a transnational pollution. If

remedies are currently available, what are the barriers that contributes or limits

the usage of the available cross-border remedies?

II. The Global Problem on Pollution

Environmental problems are widely perceived as one of the greatest challenges

of our time. Human-caused environmental change is widespread and severe

both within individual states, and at a regional and global level. Regional

environmental problems, i.e. problems involving multiple nations, include

border-crossing air and water pollution, resource extraction impacts, diminished

freshwater quality and quantity, nuclear accidents and international trade with

hazardous waste and toxic chemicals. At a global level, we are faced with

environmental problems such as ozone depletion, extinction of species, ocean

pollution, loss of biodiversity, declining food production and depleted fish stocks,

deforestation and anthropogenic climate change.

Pollution and environmental threats frequently take a transboundary dimension,

causing problems for and inflicting damage on other states than the source state,

and to global common areas. A classic example is an upstream state emitting

pollution to a river which causes damage to a downstream state. A current

example is the burning of forests and land in Indonesia, which creates haze

pollution consisting of smoke and dust which spreads across national borders
 16
and causes human health problems in Singapore and Malaysia. Another

current example is the dispute concerning Colombia’s aerial spraying of toxic

herbicides to coca leaf plantations on locations near its border with Ecuador as

part of Colombia’s “war on drugs”, causing damage to people and the natural
17
environment in Ecuador.

Issues of border-crossing harm and pollution may only be addressed effectively

through cooperation and collaboration between states, and in this regard

international law and institutions play an essential role in providing a framework

within which the members of the international community may cooperate. The

traditional response of international law with regard to transboundary problems

has been to impose responsibility on the state guilty of causing harm and

accordingly to require the state to refrain from the conduct causing damage, and

to grant adequate reparation to the injured state. As instances of transboundary

environmental damage have vastly increased due to industrial development, new

technology and population growth, states have increasingly recognized the need

for finding global solutions to environmental concerns, and that global

environmental issues require rules for protection of natural resources and the

environment as a common resource for all states. It is from this realization

international environmental law has emerged. International environmental law is

the branch of international law concerning the rights and obligations in the

16
Palanissamy (2018) p. 1. Information about the 2018 Southeast Asia “haze crisis” is available here:
http://blog.cifor.org/fire/#.Uzm0IHY4Xcs (​ last visited 16 December, 2019).
17
​Aerial Herbicide Spraying (Ecuador v​ . ​Colombia), Order of 13 September 2013, I.C.J. Reports 2013​, p. 278
 management of natural resources and the environment, and includes both an

evolving body of specifically environmental norms, and general international law

norms applied to environmental problems.

2.1 Redefining Transboundary Harm

Surely, not all disadvantageous effects caused by environmental factors should

fall within the scope of the obligation not to cause transboundary harm. The

author believed that four conditions must necessarily be satisfied for harm to

qualify as transboundary harm, and thus to be covered by the obligation.

Firstly, the harm must result from human activity. Obviously, not all harm

caused by environmental factors that may affect more than one country is

caused by human activities; natural disasters like floods, earthquakes and

hurricanes, for example, may also cause great damage across wide
18
areas. ​It is held that damaging effects caused by environmental factors

do not fall within the scope of the obligation unless they have some
19
“reasonably proximate causal relation to human conduct.''

Secondly, the harm must be a physical consequence of human activity.

Harm caused to natural resources by industrial and agricultural activities

are thus typically encompassed by the obligation, while for example

18
A significant issue in this regard is that some human activities increase, directly or indirectly, the risk of such
catastrophes. While there may often be uncertainty with regard to causal factors in this regard, there is a tendency
towards requiring states to take precautionary measures also where human causation of harm is not yet scientifically
proven, see Transboundary Damage in International Law by Hanqin Xue (2009) p. 6 and section 3.6.3.
19
Ibid. p​ . 6.
 economic consequences caused by an increase in commodity prices due

to environmental interferences are excluded.

Thirdly, there must be a physical effect crossing national boundaries. It is

this boundary-crossing element which initiates application of international

20 ​
law. The condition is not limited to neighboring states, but may also

include transboundary effects crossing several national boundaries,

thereby causing damage to multiple states. Transboundary effects usually

cross boundaries through a media, such as water, soil or air, such as

when pollutants from industrial activities conducted in one state forms acid

rain, which damages forests and lakes in other states. Under current

international law, the no-harm rule is expanded to also include harm to

21 ​
areas beyond national control. The rule thus protects not only the

territories under state control, but also the “global commons”, i.e. the high

seas, outer space, the atmosphere and the Polar Regions.

The fourth condition is that the harm in question must exceed a certain

level of severity that calls for legal action. Surely, states cannot engage in

or permit activities on their territory without regard to the impact this may

have on areas outside their jurisdiction. At the same time, a state cannot

demand that other states abstain from all activities that may have

transboundary impacts on the environment. Accordingly, not all boundary

20
​Transboundary Damage in International Law by Hanqin Xue (2009) p. 9
21
Nuclear Tests case, Australia v. France, ICJ Rep. (1974) p. 253 and New Zealand v. France, ICJ Rep. (1974) p. 457.
 crossing harm is prohibited under the no-harm rule; the harm must exceed
22
a certain degree of severity.

III. Conceptual Origins: State Sovereignty

The obligation not to cause harm to the environment of other states, or to the

areas beyond national jurisdiction cannot be understood separately from the

notion of state sovereignty. In the present section I will explain how the no-harm

rule sets limitations on one side of the principle, territorial sovereignty, and how

the rule is at the same time initially based on another side of the principle, the

concept of national territorial integrity.

State sovereignty is a founding principle and a prerequisite for the system of

23
international law. ​The core of the principle is that all states are sovereign and

not subject to any other determination but their own, and that all states have

equal rights and duties, regardless of differences in social, economic, political or

24
other forms of status. ​The principle is unique in the way that it has the support

of all states, regardless of ideology and political opinions, and since almost every

international relation is connected to the self- determination and independency of

states in some way, it is a starting point in almost every question concerning

international relations.

22
​The same considerations are valid with regard to domestic law relating to the rights of neighbors; only unreasonable interference
with a neighbor’s property is prohibited.
23
​Codifications of the principle in the UN Charter, Article 2 (1) where it is proclaimed that “sovereign equality of all its Members” is a
principle of the UN, and in the 1970 UN Declaration on Principles of International Law concerning UN Friendly Relations which
states that “[a]ll States enjoy sovereign equality”.
24
​Ibid
 3.1 Territorial Sovereignty and the PSNR Principle

One principal corollary of sovereignty is that states have jurisdiction, prima facie
25 ​
exclusive, over a territory and a permanent population living there. The

exclusive jurisdiction that states have over their territory is sometimes referred to

as territorial sovereignty, and is connected to a defined geographical area, which

26 27
consists of land territory with subsoil, internal waters and the territorial waters,
28
including the air space over it as well as to its bed and subsoil, and the air space
29
above its territory, up to outer space. States also have limited sovereign rights
30 31
and jurisdiction over the contiguous zone, in the exclusive economic zone ​and
32
over the resources on the continental shelf. A traditional view in international law

is that states are by virtue of their sovereignty, initially free to wield authority over

and exploit the natural resources within this geographical area that constitutes its

territory, and to pass laws and make decisions regarding its environment and

management of natural resources. This right of states to manage the

environment within their territory is reflected in the principle of Permanent

Sovereignty over Natural Resources (PSNR principle).

25
​Brownlie, Ian, Principles of Public International Law, 4th ed., p. 287 Oxford 1990.
26
​UNCLOS, Article 2. Internal waters are the waters between the land territories and out to baseline of the territorial sea including
rivers, lakes etc. cf. UNCLOS, Article 8.
27
​UNCLOS, Article 2. The territorial waters are limited up to 12 nautical miles from the baseline cf. UN- CLOS, Article 3.
28
​UNCLOS, Article 2.
29
​ uter space is the area beyond the air space subject to the jurisdiction of a state, UNCLOS, Article 2. See also Ruud and Ulfstein
O
(2011) p. 164.
30
UNCLOS, Article 33.
31
​UNCLOS, Article 55, 56.
32
​UNCLOS, Article 76, 77.
 The concept of PSNR traces its beginnings from the Declaration adopted by the
33
United Nations General Assembly (UNGA) on 14 December 1962. From a

historical standpoint, the Declaration was brought about largely due to the

decolonization of developing countries and their resulting clamor against the

one-sided concession agreements which their respective governments had

entered into with foreign investors — both during the colonial period and
34
afterwards — that explored and exploited the said countries’ natural resources.

These protests are clearly addressed in the Declaration’s provisions. It states,

among other things, that:

(1) The right of peoples and nations to permanent sovereignty over their

natural wealth and resources must be exercised in the interest of their

national development and of the well-being of the people of the State

concerned[; and,]

(2) The exploration, development[,] and disposition of such resources, as

well as the import of the foreign capital required for these purposes,

should be in conformity with the rules and conditions which the peoples

and nations freely consider to be necessary or desirable with regard to the

35
authorization, restriction[,] or prohibition of such activities.

33
​Permanent sovereignty over natural resources, G.A. Res. 1803 (XVII), U.N. GAOR, 17th Sess., Supp. No. 17, U.N. Doc. A/5217,
at 15-16 (Dec. 14, 1962).
34
​ icardo Pereira & Orla Gough, ​Permanent Sovereignty over Natural Resources in the 21st Century: Natural
​S​ee generally R
Resource Governance and the Right to Self- Determination of Indigenous Peoples under International Law​, 14 MELB. J. INT’L L.
451, 455-56 (2013).
35
​ ote 27, part I, p. 1 & 2.
Permanent sovereignty over natural resources, ​supra n
From the foregoing, it is readily seen that the Declaration does not only cover the

right of nations over its natural resources, but the right of the nations’ people as

well. This results in a two-pronged approach to how the UNGA perceived the

right, such that both public and private interests must be considered vis-à-vis

national development and wellbeing.

The other facet of PSNR is that of State sovereignty, such that it grants States,

through their governments, sovereignty over natural resources found within the

respective State’s borders. Simply put, a government may make use of its natural

resources to whatever extent, so long as it is in the interest of national

development and for the wellbeing of its people. It also seeks to limit foreign

capital through “rules and conditions” that, in the Philippine context, take the form

of laws enacted by the legislative branch of government. Thus, what the doctrine

of PSNR grants can truly be made tangible through the promulgation of laws on

the environment.

3.2 Territorial Integrity and the responsibility not to cause transboundary harm

Despite the absolute formulation of the PSNR principle, it is beyond doubt that

there are limitations to how states can dispose of their own natural resources.

The increase in pollution from industrial activities and the need to share natural

resources such as rivers, but also the atmosphere over the past century, has

entailed large cutbacks on state sovereignty and the right to dispose freely of

natural resources. For example, an expanding body of treaty regimes establishes

 limitations on the territorial sovereignty of states that have acceded to them, by

imposing obligations to act in accordance with certain standards of conduct,

requiring cooperation and consultation between states in environmental matters.

The territorial sovereignty of states is also limited by another principal corollary of

state sovereignty; the duty not to intervene in an area of exclusive jurisdiction of

other states. This obligation of states to respect the territory of others is often

referred to as the concept of “territorial integrity”. The link between territorial

sovereignty and territorial integrity is expressed in the Island of Palmas

arbitration, where the Permanent Court of Arbitration stated that

Territorial sovereignty ... involves the exclusive right to display the

activities of a State. This right has as corollary a duty: the obligation to

protect within the territory the rights of other States, in particular their right

to integrity and inviolability in peace and in war, to- gether with the rights
36
which each State may claim for its nationals in foreign territory.

Accordingly, state sovereignty itself comprises an inherent limitation on the right

of states to dispose of their territory and exploit their natural resources. Territorial

sovereignty and integrity are thus really two sides of the same coin, and neither

of the concepts is absolute or unrestricted.

36
Island of Palmas arbitration, Netherlands v. the United Kingdom, 1928, RIAA vol. 2, at p. 839.
While the obligation not to cause transboundary harm was in early case law

based solely on the concept of territorial integrity, and only applicable to harm to

the territory of other states, it is, as the subsequent discussion of this chapter will

demonstrate, in more recent case law recognized that the scope of the obligation

is expanded to also include harm to areas beyond national control. This implies

that the rule’s link to territorial integrity is weakened today. As a modern rule of

environmental law, the no-harm rule comprises two partly opposing objectives:

that states have sovereign rights over their natural resources, and that states

must refrain from causing environmental harm. International texts that include the

no-harm rule, therefore also often include a confirmation of the sovereign right of

states to exploit their own resources.