OPOSA VS.

FACTORAN

FACTS:

The plaintiffs in this case are all minors duly represented and joined by their parents. The first
complaint was filed as a taxpayer's class suit at the Branch 66 (Makati, Metro Manila), of the
Regional Trial Court, National capital Judicial Region against defendant (respondent) Secretary
of the Department of Environment and Natural Reasources (DENR). Plaintiffs alleged that they
are entitled to the full benefit, use and enjoyment of the natural resource treasure that is the
country's virgin tropical forests. They further asseverate that they represent their generation as
well as generations yet unborn and asserted that continued deforestation have caused a distortion
and disturbance of the ecological balance and have resulted in a host of environmental tragedies.

Plaintiffs prayed that judgement be rendered ordering the respondent, his agents, representatives
and other persons acting in his behalf to cancel all existing Timber License Agreement (TLA) in
the country and to cease and desist from receiving, accepting, processing, renewing or approving
new TLAs.

Defendant, on the other hand, filed a motion to dismiss on the ground that the complaint had no
cause of action against him and that it raises a political question.

The RTC Judge sustained the motion to dismiss, further ruling that granting of the relief prayed
for would result in the impairment of contracts which is prohibited by the Constitution.

Plaintiffs (petitioners) thus filed the instant special civil action for certiorari and asked the court
to rescind and set aside the dismissal order on the ground that the respondent RTC Judge gravely
abused his discretion in dismissing the action.

ISSUES:

(1) Whether or not the plaintiffs have a cause of action.

(2) Whether or not the complaint raises a political issue.
(3) Whether or not the original prayer of the plaintiffs result in the impairment of contracts.

RULING:

First Issue: Cause of Action.

Respondents aver that the petitioners failed to allege in their complaint a specific legal right
violated by the respondent Secretary for which any relief is provided by law. The Court did not
agree with this. The complaint focuses on one fundamental legal right -- the right to a balanced
and healthful ecology which is incorporated in Section 16 Article II of the Constitution. The said
right carries with it the duty to refrain from impairing the environment and implies, among many
other things, the judicious management and conservation of the country's forests. Section 4 of
E.O. 192 expressly mandates the DENR to be the primary government agency responsible for the
governing and supervising the exploration, utilization, development and conservation of the
country's natural resources. The policy declaration of E.O. 192 is also substantially re-stated in
Title XIV Book IV of the Administrative Code of 1987. Both E.O. 192 and Administrative Code
of 1987 have set the objectives which will serve as the bases for policy formation, and have
defined the powers and functions of the DENR. Thus, right of the petitioners (and all those they
represent) to a balanced and healthful ecology is as clear as DENR's duty to protect and advance
the said right.

A denial or violation of that right by the other who has the correlative duty or obligation to
respect or protect or respect the same gives rise to a cause of action. Petitioners maintain that the
granting of the TLA, which they claim was done with grave abuse of discretion, violated their
right to a balance and healthful ecology. Hence, the full protection thereof requires that no
further TLAs should be renewed or granted.

After careful examination of the petitioners' complaint, the Court finds it to be adequate enough
to show, prima facie, the claimed violation of their rights.

Second Issue: Political Issue.

Second paragraph, Section 1 of Article VIII of the constitution provides for the expanded
jurisdiction vested upon the Supreme Court. It allows the Court to rule upon even on the wisdom
of the decision of the Executive and Legislature and to declare their acts as invalid for lack or
excess of jurisdiction because it is tainted with grave abuse of discretion.

Third Issue: Violation of the non-impairment clause.

The Court held that the Timber License Agreement is an instrument by which the state regulates
the utilization and disposition of forest resources to the end that public welfare is promoted. It is
not a contract within the purview of the due process clause thus, the non-impairment clause
cannot be invoked. It can be validly withdraw whenever dictated by public interest or public
welfare as in this case. The granting of license does not create irrevocable rights, neither is it
property or property rights.

Moreover, the constitutional guaranty of non-impairment of obligations of contract is limit by the

exercise by the police power of the State, in the interest of public health, safety, moral and
general welfare. In short, the non-impairment clause must yield to the police power of the State.

The instant petition, being impressed with merit, is hereby GRANTED and the RTC decision is
SET ASIDE.
MMDA VS. CONCERNED RESIDENTS OF MANILA BAY

FACTS:

The complaint by the residents alleged that the water quality of the Manila Bay had fallen
way below the allowable standards set by law, specifically Presidential Decree No. (PD)
1152 or the Philippine Environment Code and that ALL defendants (public officials) must be
jointly and/or solidarily liable and collectively ordered to clean up Manila Bay and to restore its
water quality to class B, waters fit for swimming, diving, and other forms of contact recreation.

ISSUES:

(1) WON Sections 17 and 20 of PD 1152 under the headings, Upgrading of Water Quality
and Clean-up Operations, envisage a cleanup in general or are they limited only to the
cleanup of specific pollution incidents;
(2) WON petitioners be compel led by mandamus to clean up and rehabilitate the Manila Bay.

APPLICABLE LAWS:

PD 1152 Philippine Environmental Code Section 17. Upgrading of Water Quality.–– Where
the quality of water has deteriorated t o a degree where it s state will adversely affect
its best u sage, the government agencies concerned shall take such measures as may be
necessary to upgrade the quality of such water to meet the prescribed water quality
standards. Section 20. Clean-up Operations.––It shall be the responsibility of the polluter
to contain , remove and clean - up water pollution incidents at his own expense. In case
of his failure to do so, the government agencies concerned shall undertake containment,
removal and clean-up operations and expenses incurred in said operation shall be charged
against the persons and/ or entities responsible for such pollution.

HELD:

(1) Sec. 17 does not in any way state that the government agencies concerned ought to
confine themselves to the containment, removal, and cleaning operations when a specific
pollution incident occurs. On the contrary, Sec. 17 requires them to act even in the
absence of a specific pollution incident, as long as water quality “has deteriorated to a
degree where its state will adversely affect its best usage.” Section 17 & 20 are of general
application and are not for specific pollution incidents only. The fact that the pollution of the
Manila Bay is of such magnitude and scope that it is well -nigh impossible to draw the
line between a specific and a general pollution incident.

(2) The Cleaning or Rehabilitation of Manila Bay Can be Compelled by Mandamus. While the
implementation of the MMDA's mandated tasks may entail a decision-making process, the
enforcement of the law or the very act of doing what the law exacts to be done is
ministerial in nature and may be compelled by mandamus. Under what other judicial
discipline describes as “continuing mandamus ,” the Court may, under extraordinary
circumstances, issue directives with the end in view of ensuring that its decision would not
be set to naught by administrative inaction or indifference.

NOTE: This continuing mandamus is no longer applicable, since this is institutionalized in the
rules of procedure for environmental cases.

20 days – Temporary restraining order

RESIDENT MARINE MAMMALS VS REYES

Two sets of petitioners filed separate cases challenging the legality of Service Contract No. 46
(SC-46) awarded to Japan Petroleum Exploration Co. (JAPEX). The service contract allowed
JAPEX to conduct oil exploration in the Tañon Strait during which it performed seismic surveys
and drilled one exploration well. The first petition was brought on behalf of resident marine
mammals in the Tañon Strait by two individuals acting as legal guardians and stewards of the
marine mammals. The second petition was filed by a non-governmental organization
representing the interests of fisherfolk, along with individual representatives from fishing
communities impacted by the oil exploration activities. The petitioners filed their cases in 2007,
shortly after JAPEX began drilling in the strait. In 2008, JAPEX and the government of the
Philippines mutually terminated the service contract and oil exploration activities ceased. The
Supreme Court consolidated the cases for the purpose of review.
In its decision, the Supreme Court first addressed the important procedural point of whether the
case was moot because the service contract had been terminated. The Court declared that
mootness is “not a magical formula that can automatically dissuade the courts in resolving a
case.” Id., p. 12. Due to the alleged grave constitutional violations and paramount public
interest in the case, not to mention the fact that the actions complained of could be repeated, the
Court found it necessary to reach the merits of the case even though the particular service
contract had been terminated. Id.
Reviewing the numerous claims filed by the petitioners, the Supreme Court narrowed them down
to two: 1) whether marine mammals, through their stewards, have legal standing to pursue the
case; and 2) whether the service contract violated the Philippine Constitution or other domestic
laws. Id., p. 11.
As to standing, the Court declined to extend the principle of standing beyond natural and
juridical persons, even though it recognized that the current trend in Philippine jurisprudence
“moves towards simplification of procedures and facilitating court access in environmental
cases.” Id., p. 15. Instead, the Court explained, “the need to give the Resident Marine Mammals
legal standing has been eliminated by our Rules, which allow any Filipino citizen, as a steward
of nature, to bring a suit to enforce our environmental laws.” Id., p. 16-17.
The Court then held that while SC-46 was authorized Presidential Decree No. 87 on oil
extraction, the contract did not fulfill two additional constitutional requirements. Section 2
Article XII of the 1987 Constitution requires a service contract for oil exploration and extraction
to be signed by the president and reported to congress. Because the JAPEX contract was
executed solely by the Energy Secretary, and not reported to the Philippine congress, the Court
held that it was unconstitutional. Id., pp. 24-25.
In addition, the Court also ruled that the contract violated the National Integrated Protected
Areas System Act of 1992 (NIPAS Act), which generally prohibits exploitation of natural
resources in protected areas. In order to explore for resources in a protected area, the exploration
must be performed in accordance with an environmental impact assessment (EIA). The Court
noted that JAPEX started the seismic surveys before any EIA was performed; therefore its
activity was unlawful. Id., pp. 33-34. Furthermore, the Tanon Strait is a NIPAS area, and
exploration and utilization of energy resources can only be authorized through a law passed by
the Philippine Congress. Because Congress had not specifically authorized the activity in Tañon
Strait, the Court declared that no energy exploration should be permitted in that area. Id., p. 34.
CHAVEZ VS PCGG

Petitioner Francisco I Chavez (in his capacity as taxpayer, citizen and a former
governmentofficial) initiated this original action seeking(1) to prohibit and “enjoin respondents
[PCGG and its chairman] from privately enteringinto, perfecting and/or executing any agreement
with the heirs of the late President Ferdinand E.Marcos . . . relating to and concerning the
properties and assets of Ferdinand Marcos located inthe Philippines and/or abroad — including
the so-called Marcos gold hoard"; and(2) to “compel respondent[s] to make public all
negotiations and agreement, be theyongoing or perfected, and all documents related to or relating
to such negotiations andagreement between the PCGG and the Marcos heirs."-Chavez is the
same person initiated the prosecution of the Marcoses and their cronies whocommitted
unmitigated plunder of the public treasury and the systematic subjugation of thecountry's
economy; he says that what impelled him to bring this action were several newsreports 2
bannered in a number of broadsheets sometime in September 1997. These news itemsreferred to
(1) the alleged discovery of billions of dollars of Marcos assets deposited in variouscoded
accounts in Swiss banks; and (2) the reported execution of a compromise, between
thegovernment (through PCGG) and the Marcos heirs, on how to split or share these assets.-
PETITIONER DEMANDS that respondents make public any and all negotiations
and agreementspertaining to PCGG's task of recovering the Marcoses' ill-gotten wealth. He
claims that anycompromise on the alleged billions of ill-gotten wealth involves an issue of
"paramount publicinterest," since it has a "debilitating effect on the country's economy" that
would be greatlyprejudicial to the national interest of the Filipino people. Hence, the people in
general have aright to know the transactions or deals being contrived and effected by the
government.-RESPONDENT ANSWERS that they do not deny forging a compromise
agreement with theMarcos heirs. They claim, though, that petitioner's action is premature,
because there is noshowing that he has asked the PCGG to disclose the negotiations and the
Agreements. And evenif he has, PCGG may not yet be compelled to make any disclosure, since
the proposed terms andconditions of the Agreements have not become effective and binding.-
PETITIONER INVOKES
Sec. 7 [Article III]. The right of the people to information on matters of public concern shall
berecognized. Access to official records, and to documents, and papers pertaining to official
acts,transactions, or decisions, as well as to government research data used as basis for policy
development,shall be afforded the citizen, subject to such limitations as may be provided
by law.Sec. 28 [Article II]. Subject to reasonable conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all its transactions involving public interest.
h a n n a m a p a n d iPage 2

[CHAVEZ VS PCGG – CASE DIGEST (CONSTI 2: RIGHT TOINFORMATION)]

March 8, 2010-RESPONDENT ANSWERS that the above constitutional provisions refer
to completed andoperative official acts, not to those still being considered.
Issue:
Whether or not the Court could require the PCGG to disclose to the public the details of any
agreement, perfected or not, with the Marcoses.
Ruling: “
WHEREFORE, the petition is GRANTED. The General and Supplemental Agreementdated
December 28, 1993, which PCGG and the Marcos heirs entered into are hereby declaredNULL
AND VOID for being contrary to law and the Constitution. Respondent PCGG, its officers and
all government functionaries and officials who are or may be directly ot indirectly involved in
there covery of the alleged ill-gotten wealth of the Marcoses and their associates are DIRECTED
to disclose to the public the terms of any proposed compromise settlment, as well as the final
agreement, relating to such alleged ill-gotten wealth, in accordance with
the discussionsembodied in this Decision. No pronouncement as to cost.”
RD:-
The "information" and the "transactions" referred to in the subject provisions of
the Constitutionhave as yet no defined scope and extent. There are no specific laws prescribing
the exactlimitations within which the right may be exercised or the correlative state duty may be
obliged.However, the following are some of the recognized restrictions:(1) national security
matters and intelligence information- there is a governmental privilege against public disclosure
with respect to state secretsregarding military, diplomatic and other national security matters. 24
But where there isno need to protect such state secrets, the privilege may not be invoked to
withholddocuments and other information, 25 provided that they are examined "in
strictconfidence" and given "scrupulous protection."(2) trade secrets and banking transactions-
trade or industrial secrets (pursuant to the Intellectual Property Code 27 and other relatedlaws) as
well as banking transactions (pursuant to the Secrecy of Bank Deposits Act 28)are also exempted
from compulsory disclosure(3) criminal matters- Also excluded are classified law enforcement
matters, such as those relating to theapprehension, the prosecution and the detention of criminals,
which courts neither maynor inquire into prior to such arrest, detention and prosecution. Efforts
at effective lawenforcement would be seriously jeopardized by free public access to, for
example, policeinformation regarding rescue operations, the whereabouts of fugitives, or
leads on covertcriminal activities.(4) other confidential information.

[CHAVEZ VS PCGG – CASE DIGEST (CONSTI 2: RIGHT TOINFORMATION)]

March 8, 2010- The Ethical Standards Act 31 further prohibits public officials and employees
from usingor divulging "confidential or classified information officially known to them by
reason of their office and not made available to the public." Other acknowledged limitations
toinformation access include diplomatic correspondence, closed door Cabinet meetings
andexecutive sessions of either house of Congress, as well as the internal deliberations of
theSupreme Court.
-
In Valmonte v. Belmonte Jr., the Court emphasized that the information sought must be"matters
of public concern," access to which may be limited by law. Similarly, the state policy of full
public disclosure extends only to "transactions involving public interest" and may also be"subject
to reasonable conditions prescribed by law."- As to the meanings of the terms "public interest"
and "public concern," the Court, in Legaspi v.Civil Service Commission, elucidated: “In
determining whether or not a particular information isof public concern there is no rigid
test which can be applied. “ “Public concern" like "publicinterest" is a term that eludes exact
definition. Both terms embrace a broad spectrum of subjectswhich the public may want to know,
either because these directly affect their lives, or simplybecause such matters naturally arouse the
interest of an ordinary citizen. In the final analysis, itis for the courts to determine on a case
by case basis whether the matter at issue is of interestor importance, as it relates to or affects the
public.”-As to whether or not the above cited constitutional provisions guarantee access to
informationregarding ongoing negotiations or proposals prior to the final agreement, this same
clarificationwas sought and clearly addressed by the constitutional commissioners during their deliberations,
MR. SUAREZ. And when we say "transactions" which should be distinguished
from contracts,agreements, or treaties or whatever, does the Gentleman refer to the steps leading
to theconsummation of the contract, or does he refer to the contract itself?MR. OPLE. The
"transactions" used here, I suppose, is generic and, therefore, it can cover bothsteps leading to
a contract, and already a consummated contract, Mr. Presiding Officer.MR. SUAREZ. This
contemplates inclusion of negotiations leading to the consummation of thetransaction?MR. OPLE.
Yes, subject to reasonable safeguards on the national interest.
- Considering the intent of the Constitution, the Court believes that it is incumbent upon
thePCGG and its officers, as well as other government representatives, to disclose sufficient
publicinformation on any proposed settlement they have decided to take up with the ostensible
ownersand holders of ill-gotten wealth. Such information, though, must pertain to
definite propositionsof the government, not necessarily to intra-agency or inter-agency
recommendations orcommunications during the stage when common assertions are still in the process of
beingformulated or are in the "exploratory" stage. There is a need, of course, to observe the
samerestrictions on disclosure of information in general, as discussed above— such as
on mattersinvolving national security, diplomatic or foreign relations, intelligence and
other classifiedinformation.
CHAVEZ VS PUBLIC ESTATES AUTHORITY

From the time of Marcos until Estrada, portions of Manila Bay were being reclaimed. A law was passed creating
the Public Estate Authority which was granted with the power to transfer reclaimed lands. Now in this case, PEA
entered into a Joint Venture Agreement with AMARI, a private corporation. Under the Joint Venture Agreement
between AMARI and PEA, several hectares of reclaimed lands comprising the Freedom Islands and several
portions of submerged areas of Manila Bay were going to be transferred to AMARI .
ISSUE:
Whether or not the stipulations in the Amended JVA for the transfer to AMARI of lands, reclaimed or to be
reclaimed, violate the Constitution

RULING: YES!

Under the Public Land Act (CA 141, as amended), reclaimed lands are classified as alienable and disposable lands
of the public domain Section 3 of the Constitution: Alienable lands of the public domain shall be limited to
agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain
except by lease The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by
certificates of title in the name of PEA, are alienable lands of the public domain. PEA may lease these lands to
private corporations but may not sell or transfer ownership of these lands to private corporations. PEA may only
sell these lands to Philippine
citizens, subject to the ownership limitations in the 1987 Constitution and existing laws. Clearly, the Amended
JVA violates glaringly Sections 2 and 3, Article XII of the 1987 Constitution. Under Article 1409 of the Civil
Code, contracts whose “object or purpose is contrary to law,” or whose “object is outside the commerce of men,”
are “inexistent and void from the beginning.” The Court must perform its duty to defend and uphold the
Constitution, and therefore declares the Amended JVA null and void ab initio.
INGERSOLL VS. PNB
US VS REYNOLDS

Brief Fact Summary. Defending against a wrongful death claim arising out of a test flight, the Air Force refused to
turn over documents from the flight citing national security privilege. The Supreme Court of the United States
(“Supreme Court”) upheld the Air Force’s right to claim privilege.
Synopsis of Rule of Law. The government can assert privileges against discovery on the basis of national security
if the privilege claim is appropriate under the circumstances.

Facts. A test flight carrying both civilians and military took place, the purpose of which was to test secret
equipment. The plane caught fire and crashed, killing all but three of the occupants. Survivors of the dead brought
a wrongful death claim against the Air Force. During the discovery process, the plaintiffs sought all the flight
records, as well as testimony from the surviving crew members. The Air Force, citing national security privileges,
refused the trial court’s and appellate court’s orders to turn over that information. The Supreme Court upheld the
government’s right to claim national security privileges where appropriate.
Issue. Does the government have absolute privilege to deny discovery
Held. No. Mere government assertion of privilege is not enough to bar discovery, but the government can assert
such privileges if it can show its assertion is appropriate under the circumstances.
Dissent. The minority cited the Third Circuit opinion of the case, which argued that a sweeping government
privilege was contrary to public policy. That appellate court added that the executive branch cannot decide to
which cases such privilege applies and that the Tort Claims Act (the “Act”) had stripped the military of its ability to
claim privileges in tort cases.

Discussion. This case created what is now known as the state security privilege. This privilege, however, must be
balanced against the circumstances on which it is based and the effect on the opposing party’s ability to receive a
fair trial. The Supreme Court sided with the government in part because of the times.
NERI VS . SENATE COMMITTEE

FACTS: On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a
contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for
the National Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion
Pesos). The Project was to be financed by the People’s Republic of China.
The Senate passed various resolutions relative to the NBN deal. In the September 18, 2007 hearing Jose de
Venecia III testified that several high executive officials and power brokers were using their influence to push the
approval of the NBN Project by the NEDA.
Neri, the head of NEDA, was then invited to testify before the Senate Blue Ribbon. He appeared in one hearing
wherein he was interrogated for 11 hrs and during which he admitted that Abalos of COMELEC tried to bribe him
with P200M in exchange for his approval of the NBN project. He further narrated that he informed President
Arroyo about the bribery attempt and that she instructed him not to accept the bribe.
However, when probed further on what they discussed about the NBN Project, petitioner refused to answer,
invoking “executive privilege”. In particular, he refused to answer the questions on:
(a) whether or not President Arroyo followed up the NBN Project,
(b) whether or not she directed him to prioritize it, and
(c) whether or not she directed him to approve.
He later refused to attend the other hearings and Ermita sent a letter to the senate averring that the communications
between GMA and Neri are privileged and that the jurisprudence laid down in Senate vs Ermita be applied. He
was cited in contempt of respondent committees and an order for his arrest and detention until such time that he
would appear and give his testimony.
ISSUE:
Are the communications elicited by the subject three (3) questions covered by executive privilege?
HELD:
The communications are covered by executive privilege
The revocation of EO 464 (advised executive officials and employees to follow and abide by the Constitution,
existing laws and jurisprudence, including, among others, the case of Senate v. Ermita when they are invited to
legislative inquiries in aid of legislation.), does not in any way diminish the concept of executive privilege. This is
because this concept has Constitutional underpinnings.
The claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power
textually committed by the Constitution to the President, such as the area of military and foreign relations. Under
our Constitution, the President is the repository of the commander-in-chief, appointing, pardoning, and diplomatic
powers. Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy
greater confidentiality than others.
Several jurisprudence cited provide the elements of presidential communications privilege:
1) The protected communication must relate to a “quintessential and non-delegable presidential power.”
2) The communication must be authored or “solicited and received” by a close advisor of the President or the
President himself. The judicial test is that an advisor must be in “operational proximity” with the President.
3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing of
adequate need, such that the information sought “likely contains important evidence” and by the unavailability of
the information elsewhere by an appropriate investigating authority.
In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the
communications elicited by the three (3) questions “fall under conversation and correspondence between the
President and public officials” necessary in “her executive and policy decision-making process” and, that “the
information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s
Republic of China.” Simply put, the bases are presidential communications privilege and executive privilege on
matters relating to diplomacy or foreign relations.
Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions
are covered by the presidential communications privilege. First, the communications relate to a “quintessential and
non-delegable power” of the President, i.e. the power to enter into an executive agreement with other countries.
This authority of the President to enter into executive agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence. Second, the communications are “received” by a close
advisor of the President. Under the “operational proximity” test, petitioner can be considered a close advisor, being
a member of President Arroyo’s cabinet. And third, there is no adequate showing of a compelling need that would
justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate
investigating authority.
Respondent Committees further contend that the grant of petitioner’s claim of executive privilege violates the
constitutional provisions on the right of the people to information on matters of public concern.50 We might have
agreed with such contention if petitioner did not appear before them at all. But petitioner made himself available to
them during the September 26 hearing, where he was questioned for eleven (11) hours. Not only that, he expressly
manifested his willingness to answer more questions from the Senators, with the exception only of those covered
by his claim of executive privilege.
The right to public information, like any other right, is subject to limitation. Section 7 of Article III provides:
The right of the people to information on matters of public concern shall be recognized. Access to official records,
and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may
be provided by law.
AKBAYAN VS. AQUINO

Facts: The signing of the Japan-Philippines Economic Partnership Agreement (JPEPA) at the sidelines of the
Asia-Europe Summit in Helsinki in September 2006 was hailed by both Japanese Prime Minister Junichiro
Koizumi and Philippine President Gloria Macapagal Arroyo as a “milestone in the continuing cooperation and
collaboration, setting a new chapter of strategic partnership for mutual opportunity and growth (for both
countries).”
JPEPA which has been referred to as a ‘mega treaty’ is a comprehensive plan for opening up of markets in goods
and services as well as removing barriers and restrictions on investments. It is a deal that encompasses even our
commitments to the WTO.
The complexity of JPEPA became all the more evident at the Senate hearing conducted by the Committee on
Trade and Commerce last November 2006. The committee, chaired by Senator Mar Roxas, heard differing views
and perspectives on JPEPA. On one hand the committee heard Government’s rosy projections on the economic
benefits of JPEPA and on the other hand the views of environmental and trade activists who raised there very
serious concerns about the country being turned into Japan’s toxic waste basket. The discussion in the Senate
showed that JPEPA is not just an issue concerning trade and economic relations with Japan but one that touches on
broader national development concerns.

Issues:

1. Do the therein petitioners have standing to bring this action for mandamus in their capacity as citizens of the
Republic, as taxpayers, and as members of the Congress

2. Can this Honorable Court exercise primary jurisdiction of this case and take cognizance of the instant petition.

3. Are the documents and information being requested in relation to the JPEPA exempted from the general rules
on transparency and full public disclosure such that the Philippine government is justified in denying access
thereto.

Rulings:

The Supreme Court en banc promulgated last July 16, 2008 its ruling on the case of “Akbayan Citizens Action
Party et al vs. Thomas G. Aquino et al” (G.R. No. 170516). The Highest Tribunal dismissed the Petition for
mandamus and prohibition, which sought to compel respondents Department of Trade Industry (DTI)
Undersecretary Thomas Aquino et al to furnish petitioners the full text of the Japan-Philippines Economic
Partnership Agreement (JPEPA) and the lists of the Philippine and Japanese offers submitted during the
negotiation process and all pertinent attachments and annexes thereto.

In its Decision, the Court noted that the full text of the JPEPA has been made accessible to the public since 11
September 2006, and thus the demand to be furnished with copy of the said document has become moot and
academic. Notwithstanding this, however, the Court lengthily discussed the substatives issues, insofar as they
impinge on petitioners' demand for access to the Philippine and Japanese offers in the course of the negotiations.

The Court held: “Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the
JPEPA may not be kept perpetually confidential – since there should be 'ample opportunity for discussion before
[a treaty] is approved' – the offers exchanged by the parties during the negotiations continue to be privileged even
after the JPEPA is published. It is reasonable to conclude that the Japenese representatives submitted their offers
with the understanding that 'historic confidentiality' would govern the same. Disclosing these offers could impair
the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations.”

It also reasoned out that opening for public scrutiny the Philippine offers in treaty negotiations would discourage
future Philippine representatives from frankly expressing their views during negotiations. The Highest Tribunal
recognized that treaty negotiations normally involve a process of quid pro quo, where negotiators would willingly
grant concessions in an area of lesser importance in order to obtain more favorable terms in an area of greater
national interest.

In the same Decision, the Court took time to address the dissent of Chief Justice Reynato S. Puno. It said: “We are
aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our people's right to information
against any abuse of executive privilege. It is a zeal that We fully share. The Court, however, in its endeavour to
guard against the abuse of executive privilege, should be careful not to veer towards the opposite extreme, to the
point that it would strike down as invalid even a legitimate exercise thereof.”
GARCIA VS. BOI

FACTS:
The Bataan Petrochemical Corporation (BPC), a Taiwanese private corporation, applied for registration with the
Board of Investments (BOI) in February 1988 as a new domestic producer of petrochemicals in the Philippines. It
originally specified the province of Bataan as the site for the proposed investment but later submitted an amended
application to change the site to Batangas. Unhappy with the change of the site, Congressman Enrique Garcia of
the Second District of Bataan requested a copy of BPC’s original and amended application documents. The BoI
denied the request on the basis that the investors in BPC had declined to give their consent to the release of the
documents requested, and that Article 81 of the Omnibus Investments Code protects the confidentiality of these
documents absent consent to disclose. The BoI subsequently approved the amended application without holding a
second hearing or publishing notice of the amended application. Garcia filed a petition before the Supreme Court.

ISSUE: Whether or not the BoI committed grave abuse of discretion in yielding to the wishes of the investor,
national interest notwithstanding.

RULING:
The Court ruled that the BoI violated Garcia’s Constitutional right to have access to information on matters of
public concern under Article III, Section 7 of the Constitution. The Court found that the inhabitants of Bataan had
an “interest in the establishment of the petrochemical plant in their midst [that] is actual, real, and vital because it
will affect not only their economic life, but even the air they breathe” The Court also ruled that BPC’s amended
application was in fact a second application that required a new public notice to be filed and a new hearing to be
held.

Although Article 81 of the Omnibus Investments Code provides that “all applications and their supporting
documents filed under this code shall be confidential and shall not be disclosed to any person, except with the
consent of the applicant,” the Court emphasized that Article 81 provides for disclosure “on the orders of a court of
competent jurisdiction”. The Court ruled that it had jurisdiction to order disclosure of the application, amended
application, and supporting documents filed with the BOI under Article 81, with certain exceptions.

The Court went on to note that despite the right to access information, “the Constitution does not open every door
to any and all information” because “the law may exempt certain types of information from public scrutiny”. Thus
it excluded “the trade secrets and confidential, commercial, and financial information of the applicant BPC, and
matters affecting national security” from its order. The Court did not provide a test for what information is
excluded from the Constitutional privilege to access public information, nor did it specify the kinds of information
that BPC could withhold under its ruling.
VALMONTE VS. BELMONTE

Facts:
Ricardo Valmonte wrote Feliciano Belmonte Jr. on 4 June 1986, requesting to be "furnished with
the list of names of theopposition members of (the) BatasangPambansa who were able to secure
a clean loan of P2 million each on guaranty (sic)of Mrs.Imelda Marcos" and also to "be furnished
with the certified true copies of the documents evidencing their loan. Expenses inconnection
herewith shall be borne by" Valmonte, et. al. Due to serious legal implications, President &
General Manager FelicianoBelmonte, Jr. referred the letter to the Deputy General Counsel of the
GSIS, Meynardo A. Tiro. Tiro replied that it is his opinion"that a confidential relationship exists
between the GSIS and all those who borrow from it, whoever they may be; that the GSIShas
a duty to its customers to preserve this confidentiality; and that it would not be proper for
the GSIS to breach thisconfidentiality unless so ordered by the courts." On 20 June 1986,
apparently not having yet received the reply of the GovernmentService and Insurance System
(GSIS) Deputy General Counsel, Valmonte wrote Belmonte another letter, saying that for failure
toreceive a reply "(W)e are now considering ourselves free to do whatever action necessary
within the premises to pursue our
desiredobjective in pursuance of public interest." On 26 June 1986, Ricardo Valmonte,Oswaldo
Carbonell, Doy Del Castillo, Rolando Bartolome, LeoObligar, Jun Gutierrez, Reynaldo Bagatsin
g, Jun "Ninoy" Alba,Percy Lapid, Rommel Corro, and Rolando Fadul filed a special civil action
for mandamus with preliminary injunction invoke theirright to information and pray that
Belmonte be directed: (a) to furnish Valmonte, et. al. the list of the names of the
BatasangPambansa membersbelonging to the UNIDO and PDP Laban who were able to secure
clean loans immediately before the February7 election thru the intercession/marginal note of the
then First Lady Imelda Marcos; and/or (b) to furnish petitioners with certifiedtrue copies of the
documents evidencing their respective loans; and/or (c) to allow petitioners access to the public
records for thesubject information.Issue:Whether Valmonte, et. al. are entitled as citizens and
taxpayers to inquire upon GSIS records on behest loans given by the formerFirst Lady Imelda
Marcos toBatasang Pambansa members belonging to the UNIDO and PDP-Laban
politicalparties.Held:The GSIS is a trustee of contributions from the government and its
employees and the administrator of various insurance programsfor the benefit of the latter.
Undeniably, its funds assume a public character. More particularly, Secs. 5(b) and 46of PD 1146,
asamended (the Revised Government Service Insurance Act of 1977),provide for annual
appropriations to pay the contributions,premiums, interest and other amounts payable to GSIS by
the government, as employer, as well as the obligations which theRepublic of the Philippines
assumes or guarantees to pay. Considering the nature of its funds, the GSIS is expected to
manage itsresources with utmost prudence and in strict compliance with the pertinent laws or
rules and regulations. Thus, one of the
reasonsthat prompted the revision of the old GSIS law(CA 186, as amended) was the necessity "t
o preserve at all times the actuarialsolvency of the funds administered by the Systems [Second
Whereas Clause, PD1146.] Consequently, as Feliciano Belmontehimself admits, the GSIS "is not
supposed to grant 'clean loans.'" It is therefore the legitimate concern of the public to ensure
thatthese funds are managed properly with the end in view of maximizing the benefits
that accrue to the insured governmentemployees. Moreover, the supposed borrowers were
Members of the defunct Batasang Pambansa who themselves appropriatedfunds for the GSIS
and were therefore expected to be the first to see to it that the GSIS performed its tasks with the
greatest degreeof fidelity and that all its transactions were above board. In sum, the public nature
of the loanable funds of the GSIS and the publicoffice held by the alleged borrowers make the
information sought clearly a matter of public interest and concern. Still, Belmontemaintains that
a confidential relationship exists between the GSIS and its borrowers. It is argued that a policy of
confidentialityrestricts the indiscriminate dissemination of information. Yet, Belmonte has failed
to cite any law granting the GSIS the privilegeof confidentiality as regards the documents subject
of the present petition. His position is apparently based merely onconsiderations of policy. The
judiciary does not settle policy issues. The Court can only declare what the law is, and not what
thelaw should be. Under our system of government, policy issues are within the domain of the
political branches of the government,and of the people themselves as the repository of all State
power.
LEGASPI VS. CSC
FACTS : The fundamental right of the people to information on matters of public concern is
invoked in this special civil action for mandamus instituted by petitioner Valentin L. Legaspi
against the Civil Service Commission. The respondent had earlier denied Legaspi's request for
information on the civil service eligibilities of certain persons employed as sanitarians in the
Health Department of Cebu City. These government employees, Julian Sibonghanoy and
Mariano Agas, had allegedly represented themselves as civil service eligibles who passed the
civil service examinations for sanitarians.

ISSUE : WON the petitioner has legal to access government records to validate the civil service
eligibilities of the Health Department employees

HELD : The constitutional guarantee to information on matters of public concern is not

absolute. It does not open every door to any and all information. Under the Constitution, access
to official records, papers, etc., are "subject to limitations as may be provided by law" The law
may therefore exempt certain types of information from public scrutiny, such as those affecting
national security It follows that, in every case, the availability of access to a particular public
record must be circumscribed by the nature of the information sought, i.e., (a) being of public
concern or one that involves public interest, and, (b) not being exempted by law from the
operation of the constitutional guarantee. The threshold question is, therefore, whether or not the
information sought is of public interest or public concern. This question is first addressed to the
government agency having custody of the desired information. However, as already discussed,
this does not give the agency concerned any discretion to grant or deny access. In case of denial
of access, the government agency has the burden of showing that the information requested is not
of public concern, or, if it is of public concern, that the same has been exempted by law from the
operation of the guarantee. To hold otherwise will serve to dilute the constitutional right. As
aptly observed, ". . . the government is in an advantageous position to marshall and interpret
arguments against release . . ." (87 Harvard Law Review 1511 [1974]). To safeguard the
constitutional right, every denial of access by the government agency concerned is subject to
review by the courts, and in the proper case, access may be compelled by a writ of Mandamus
Public office being a public trust it is the legitimate concern of citizens to ensure that government
positions requiring civil service eligibility are occupied only by persons who are eligibles. Public
officers are at all times accountable to the people even as to their eligibilities for their respective
positions. In the instant, case while refusing to confirm or deny the claims of eligibility, the
respondent has failed to cite any provision in the Civil Service Law which would limit the
petitioner's right to know who are, and who are not, civil service eligibles. We take judicial
notice of the fact that the names of those who pass the civil service examinations, as in bar
examinations and licensure examinations for various professions, are released to the public.
Hence, there is nothing secret about one's civil service eligibility, if actually possessed.
Petitioner's request is, therefore, neither unusual nor unreasonable. And when, as in this case, the
government employees concerned claim to be civil service eligibles, the public, through any
citizen, has a right to verify their professed eligibilities from the Civil Service Commission. The
civil service eligibility of a sanitarian being of public concern, and in the absence of express
limitations under the law upon access to the register of civil service eligibles for said position,
the duty of the respondent Commission to confirm or deny the civil service eligibility of any
person occupying the position becomes imperative. Mandamus, therefore lies
GONZALES VS NARVASA

Petitioner Ramon Gonzales, in his capacity as a citizen and taxpayer, assails the constitutionality
of the creation of the Preparatory Commission on Constitutional Reform (PCCR) and of the
positions of presidential consultants, advisers and assistants.

The PCCR was created by Pres. Estrada by virtue of EO 43 in order to study and recommend
proposed amendments and/or revisions to the Constitution, and the manner of implementing
them.

Issue: Whether or not the petitioner has legal standing to file the case

Held: In assailing the constitutionality of EO 43, petitioner asserts his interest as a citizen and
taxpayer.

A citizen acquires standing only if he can establish that he has suffered some actual or threatened
injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable
to the challenged action; and the injury is likely to be addressed by a favorable action. Petitioner
has not shown that he has sustained or in danger of sustaining any personal injury attributable to
the creation of the PCCR and of the positions of presidential consultants, advisers and assistants.
Neither does he claim that his rights or privileges have been or are in danger of being violated,
nor that he shall be subjected to any penalties or burdens as a result of the issues raised.

In his capacity as a taxpayer, a taxpayer is deemed to have the standing to raise a constitutional
issue when it is established that public funds have disbursed in alleged contravention of the law
or the Constitution. Thus, payer’s action is properly brought only when there is an exercise by
Congress of its taxing or spending power. In the creation of PCCR, it is apparent that there is no
exercise by Congress of its taxing or spending power. The PCCR was created by the President by
virtue of EO 43 as amended by EO 70. The appropriations for the PCCR were authorized by the
President, not by Congress. The funds used for the PCCR were taken from funds intended for the
Office of the President, in the exercise of the Chief Executive’s power to transfer funds pursuant
to Sec. 25(5) of Art. VI of the Constitution. As to the creation of the positions of presidential
consultants, advisers and assistants, the petitioner has not alleged the necessary facts so as to
enable the Court to determine if he possesses a taxpayer’s interest in this particular issue.
BALDOZA VS DIMAANO
AIRPHIL VS. PENNSWELL

Trade secrets should receive greater protection from discovery, because they derive economic
value from being generally unknown and not readily ascertainable by the public.
Facts:
Petitioner Air Philippines Corporation is a domestic corporation engaged in the business of air
transportation services. On the other hand, respondent Pennswell, Inc. was organized to engage
in the business of manufacturing and selling industrial chemicals, solvents, and special
lubricants.
Respondent delivered and sold to petitioner sundry goods in trade. Under the contracts,
petitioner’s total outstanding obligation amounted to P449,864.98 with interest at 14% per
annum until the amount would be fully paid. For failure of the petitioner to comply with its
obligation under said contracts, respondent filed a Complaint for a Sum of Money on 28 April
2000 with the RTC.
In its Answer, petitioner alleged that it was defrauded in the amount of P592,000.00 by
respondent for its previous sale of four items. Petitioner asserted that it was deceived by
respondent which merely altered the names and labels of such goods. Petitioner asseverated that
had respondent been forthright about the identical character of the products, it would not have
purchased the items complained of.
Moreover, petitioner alleged that when the purported fraud was discovered, a conference was
held between petitioner and respondent on 13 January 2000, whereby the parties agreed that
respondent would return to petitioner the amount it previously paid. However, petitioner was
surprised when it received a letter from the respondent, demanding payment of the amount of
P449,864.94, which later became the subject of respondent’s Complaint for Collection of a Sum
of Money against petitioner.
During the pendency of the trial, petitioner filed a Motion to Compel respondent to give a
detailed list of the ingredients and chemical components of the following products. The RTC
rendered an Order granting the petitioner’s motion.
Respondent sought reconsideration of the foregoing Order, contending that it cannot be
compelled to disclose the chemical components sought because the matter is confidential. It
argued that what petitioner endeavored to inquire upon constituted a trade secret which
respondent cannot be forced to divulge.
The RTC gave credence to respondent’s reasoning, and reversed itself. Alleging grave abuse of
discretion on the part of the RTC, petitioner filed a Petition for Certiorari under Rule 65 of the
Rules of Court with the Court of Appeals, which denied the Petition and affirmed the Order
dated 30 June 2004 of the RTC. Petitioner’s Motion for Reconsideration was denied. Unyielding,
petitioner brought the instant Petition before SC.
Issue:
W/N CA erred in upholding RTC decision denying petitioner’s motion to subject respondent’s
products to compulsory disclosure.
Held:
No. The products are covered by the exception of trade secrets being divulged in compulsory
disclosure. The Court affirms the ruling of the Court of Appeals which upheld the finding of the
RTC that there is substantial basis for respondent to seek protection of the law for its proprietary
rights over the detailed chemical composition of its products.
The Supreme Court has declared that trade secrets and banking transactions are among the
recognized restrictions to the right of the people to information as embodied in the
Constitution. SC said that the drafters of the Constitution also unequivocally affirmed that, aside
from national security matters and intelligence information, trade or industrial secrets (pursuant
to the Intellectual Property Code and other related laws) as well as banking transactions
(pursuant to the Secrecy of Bank Deposits Act), are also exempted from compulsory disclosure.
A trade secret is defined as a plan or process, tool, mechanism or compound known only to its
owner and those of his employees to whom it is necessary to confide it. The definition also
extends to a secret formula or process not patented, but known only to certain individuals using it
in compounding some article of trade having a commercial value. American jurisprudence has
utilized the following factors to determine if an information is a trade secret, to wit:
(1) the extent to which the information is known outside of the employer’s business;
(2) the extent to which the information is known by employees and others involved in the
business;
(3) the extent of measures taken by the employer to guard the secrecy of the information;
(4) the value of the information to the employer and to competitors;
(5) the amount of effort or money expended by the company in developing the information; and
(6) the extent to which the information could be easily or readily obtained through an
independent source.
Rule 27 sets an unequivocal proviso that the documents, papers, books, accounts, letters,
photographs, objects or tangible things that may be produced and inspected should not be
privileged. The documents must not be privileged against disclosure. On the ground of public
policy, the rules providing for production and inspection of books and papers do not authorize
the production or inspection of privileged matter; that is, books and papers which, because of
their confidential and privileged character, could not be received in evidence. Such a condition is
in addition to the requisite that the items be specifically described, and must constitute or contain
evidence material to any matter involved in the action and which are in the party’s possession,
custody or control.
In the case at bar, petitioner cannot rely on Section 77of Republic Act 7394, or the Consumer
Act of the Philippines, in order to compel respondent to reveal the chemical components of its
products. While it is true that all consumer products domestically sold, whether manufactured
locally or imported, shall indicate their general make or active ingredients in their respective
labels of packaging, the law does not apply to respondent. Respondent’s specialized lubricants
— namely, Contact Grease, Connector Grease, Thixohtropic Grease, Di-Electric Strength
Protective Coating, Dry Lubricant and Anti-Seize Compound — are not consumer products.
What is clear from the factual findings of the RTC and the Court of Appeals is that the chemical
formulation of respondent’s products is not known to the general public and is unique only to it.
Both courts uniformly ruled that these ingredients are not within the knowledge of the public.
Since such factual findings are generally not reviewable by this Court, it is not duty-bound to
analyze and weigh all over again the evidence already considered in the proceedings below.
The revelation of respondent’s trade secrets serves no better purpose to the disposition of the
main case pending with the RTC, which is on the collection of a sum of money. As can be
gleaned from the facts, petitioner received respondent’s goods in trade in the normal course of
business. To be sure, there are defenses under the laws of contracts and sales available to
petitioner. On the other hand, the greater interest of justice ought to favor respondent as the
holder of trade secrets. Weighing the conflicting interests between the parties, SC rules in favor
of the greater interest of respondent. Trade secrets should receive greater protection from
discovery, because they derive economic value from being generally unknown and not readily
ascertainable by the public.
TRAIL SMELTER ARBITRATION (US VS CANADA)

Brief Fact Summary. The United States (P) sought damages from Canada by suing them to court
and also prayed for an injunction for air pollution in the state of Washington, by the Trail
Smelter, a Canadian corporation which is domiciled in Canada (D).

Synopsis of Rule of Law. The duty to protect other states against harmful acts by individuals
from within its jurisdiction at all times is the responsibility of a state.
Facts. The Tail Smelter located in British Columbia since 1906, was owned and operated by a
Canadian corporation. The resultant effect of from the sulfur dioxide from Trail Smelter resulted
in the damage of the state of Washington between 1925 and 1937. This led to the United States
(P) suit against the Canada (D) with an injunction against further air pollution by Trail Smelter.

Issue. Is it the responsibility of the State to protect to protect other states against harmful acts by
individuals from within its jurisdiction at all times?
Held. Yes. It is the responsibility of the State to protect other states against harmful act by
individuals from within its jurisdiction at all times. No state has the right to use or permit the use
of the territory in a manner as to cause injury by fumes in or to the territory of another or the
properties or persons therein as stipulated under the United States (P) laws and the principles of
international law.
By looking at the facts contained in this case, the arbitration held that Canada (D) is responsible
in international law for the conduct of the Trail Smelter Company. Hence, the onus lies on the
Canadian government (D) to see to it that Trail Smelter’s conduct should be in line with the
obligations of Canada (D) as it has been confirmed by International law. The Trail Smelter
Company will therefore be required from causing any damage through fumes as long as the
present conditions of air pollution exist in Washington.
So, in pursuant of the Article III of the convention existing between the two nations, the
indemnity for damages should be determined by both governments. Finally, a regime or measure
of control shall be applied to the operations of the smelter since it is probable in the opinion of
the tribunal that damage may occur in the future from the operations of the smelter unless they
are curtailed.

Discussion. Responsibility for pollution of the sea or the existence of a duty to desist from
polluting the sea has never been laid at the feet of any country by any international tribunal.
Although regulation of pollution is just commencing, it must ensure that there is equilibrium
against freedom of the seas guaranteed under general and long established rules of international
law.
GABCIKOVO-NAYGMAROS PROJECT (HUNGARY VS. SLOVAKIA)

Brief Fact Summary. Hungary (P) claimed that Czechoslovakia (D) violated the provisions of a
treaty when it appropriated the waters of the Danube River to construct a dam.

Synopsis of Rule of Law. Watercourse states shall participate in the use, development and
protection of an international watercourse in an equitable and reasonable manner.

Facts. In 1977, Hungary (P) and Czechoslovakia (D) signed a Treaty for the construction of
dams and other projects along the Danube River that bordered both nations. Czechoslovakia (D)
began work on damming the river in its territory when Hungary (P) stopped working on the
project and negotiation could not resolve the matter which led Hungary (P) to terminate the
Treaty. Hungary (P) based its action on the fact that the damming of the river had been agreed to
only on the ground of a joint operation and sharing of benefits associated with the project, to
which Czechoslovakia (D) had unlawfully unilaterally assumed control of a shared resource.

Issue. Shall watercourse states participate in the use, development and protection of an
international watercourse in an equitable and reasonable manner?

Held. Yes. Watercourse states shall participate in the use, development and protection of an
international watercourse in an equitable and reasonable manner. Hungary (P) was deprived of
its rights to an equitable and reasonable share of the natural resources of the Danube by
Czechoslovakia (D) and also failed to respect the proportionality that is required by international
law. Cooperative administration must be reestablished by the parties of what remains of the
project.

Discussion. The Court’s decision was that the joint regime must be restored. In order to achieve
most of the Treaty’s objectives, common utilization of shared water resources was necessary.
Hence, the defendant was not authorized to proceed without the plaintiff’s consent.
SOUTHERN BLUE FIN TUNA (UN VS JAPAN, AUSSIE VS JAPAN)

Facts a. This case was held at the World Bank headquarters in Washington as an Arbitral
Tribunal b. The Southern Bluefin Tuna is a severely depleted species. The main areas to engage
in fishing for SBT are Australia, Japan and New Zealand. The three States realized the dramatic
reduction of SBT and in May 1993 they signed the Convention for the Conservation of Southern
Bluefin Tuna. The main purpose of the CCSBT is to decide measures of management for the
SBT and the total allowable catch that may be made. There was a total allowable catch of 11,750
tonnes. In 1998, Japan decided to start an Experimental Fishing Program because of their
uncertainty in the SBT stock assessment. New Zealand and Australia rejected the EFP because it
is outside the framework of the Commission. The two States submitted the dispute to arbitration
and filed a request for provisional measures with ITLOS against Japan. There was a challenge of
jurisdiction by Japan to the ITLOS. c. Japan claimed that even if the ITLOS claimed jurisdiction,
provisional measures were not warranted. Under the CCBST, Japan felt that their actions
presented no risk of irreparable injury to the SBT stock and that the two States would be fully
compensated by future reductions in Japan’s catch. Japan’s final claim was that the two States
resume negotiations with a new view on the total allowable catch, annual quotas and
continuation of EFP. d. The defendants claim that the Japanese EFP is a violation of its duty to
cooperate in the conservation in the SBT treaty and UNCLOS. Unilateralism is not in the SBT
Treaty and would thoroughly hurt the framework of the defined regional fishery organization.
Questions
a. Does the ITLOS under UNCLOS have jurisdiction to hear and decide this case?
b. Does New Zealand and Australia have a right to stop Japan’s EFP under the CCBST?

Decisions
a. The arbitral tribunal found that article 16 of the CCSBT constitutes an agreed list of choices
for the pursuit of peaceful settlement. The UNCLOS and CCSBT are intertwined in that it
implements broad principles set out in UNCLOS. Therefore, this case did have jurisdiction to be
heard.
b. If there is no judicial settlement or other peaceful means of their own choice, they are then
referred to the ICJ. The Tribunal prescribed provisional measures for the three States. They were
to prevent aggravation or extension of the dispute, parties to keep catches to levels last agreed,
refrain from conducting an experimental fishing programme, resume negotiations and to seek
agreement with others engaged in fishing for SBT.

Principles
a. The main principles of this case fall under the articles in the UNCLOS and in the Convention
for the Conservation of Southern Bluefin Tuna
b. Article 290(6) of the UNCLOS was the deciding principle in this case stating that the parties
in dispute must comply with the provisional measures set forth under the article.
c. This case also illustrates the principles of Arbitral Tribunals

Conclusion
There are many current fishery disputes with disagreements over catch limits and conservation.
The Law of the Sea is very vague which means that disputes must be addressed thoroughly in the
UNCLOS. It seems to be very hard to develop workable policies in the area of fishery
management which means that the disputes can worsen and many more cases will develop. This
case was important because it shows the importance of cooperation and negotiation in a regional
organization. UNCLOS and ITLOS hope that these cases will set precedence for those trying to
cause more disputes concerning fishing.
MOX PLANT CASE (IRELAND VS UK)
PULP MILLS ON THE RIVER OF URUGUAY (ARGENTINA VS URUGUAY)

The International Court of Justice (the “ICJ“), the principal juridical organ of the United Nations,
handed down an important judgment that clarifies the relevant standards for a breach of
environmental obligations. The judgment will be of interest to states and corporate bodies alike
when reviewing compliance.
The ICJ held that Uruguay breached its procedural obligations under a bilateral treaty to co-
operate with Argentina and the Administrative Commission of the River Uruguay (“CARU“)
during its plans to build two pulp mills on the River Uruguay. However, Argentina did not win
the second and more significant limb of its case, which was the allegation that Uruguay breached
its substantive obligations to protect the environment. This case allowed the ICJ to develop its
jurisprudence on international environmental law and trans-boundary watercourses. It is also
particularly noteworthy given that it is one of the first large international cases in which the
judgment was given live internet coverage, following in the footsteps of the Abyei arbitration.
Background
In October 2003, the Uruguayan government granted permission to the Spanish Company,
ENCE, to build a pulp mill in Fray Bentos, on the River Uruguay. Botnia, a Finnish company,
then also received environmental authorisation to build a mill in February 2005. The River
Uruguay forms a border between Argentina and Uruguay and its use is regulated by the Statute
of the Uruguay River, a bilateral treaty entered into by the two countries in 1975 (the “Statute“).
Argentina brought a complaint before the ICJ on 4 May 2006, alleging that the Uruguayan
government had violated the Statute. Argentina initially sought a provisional measures order
from the ICJ, suspending construction of the pulp mills, although this was dismissed. Argentina’s
principal claims were:
that Uruguay had not complied with the notification and consultation procedure set out in the
Statute by authorising the construction of two pulp mills without the prior consent of Argentina;
and
that the mills would have an environmental impact on the river and surrounding areas, in
particular that they would breach Uruguay’s obligation under the Statute to preserve the aquatic
environment of the river, by failing to protect biodiversity and fisheries.
Argentina consequently sought compensation, an end to construction, and a guarantee of
compliance with the Statute in the future.
Uruguay argued that its only obligations had been to inform Argentina, which it had done, albeit
after its decision. Furthermore, the technology used would avoid polluting the river, as state-of-
the-art waste cleansing equipment, which had been adopted by both the US and the EU as the
best available technology, was going to be used. This position was supported by an independent
World Bank study.
Procedural obligations
The ICJ held that Uruguay breached its procedural obligations by not informing CARU of its
plans to construct the mills before it issued its environmental authorisations. Although Uruguay
did notify Argentina, this communication did not take place through CARU and this was only
after the Uruguayan government had issued its authorisations. The ICJ held that Uruguay
“disregarded the whole of the co-operation mechanisms provided for in Article 7 to 12 of
the…Statute“. In terms of remedy, it considered that the declaration by the ICJ of this breach
constituted appropriate satisfaction.
Environmental obligations
Argentina claimed that Uruguay had breached four different substantive obligations in relation to
the environmental well-being of the river. These were:
to contribute to the optimum and rational utilisation of the river;
to ensure that the management of the soil and woodland did not impair the quality of the waters;
to co-ordinate measures to avoid changes in the ecological balance; and
to prevent pollution and preserve the aquatic environment.
However, the ICJ did not uphold any of these claims. With regard to the fourth claim, it held that
Argentina had not established that the concentration of the discharges of the Botnia mill
exceeded the limits set out in the Statute. In order to assess the environmental standards by
which to assess the claim, it applied not only the wording of the Statute, but also the digest
adopted by CARU, and the domestic regulations adopted by each party in relation to the Statute.
In a significant section of the judgment, the ICJ noted that the obligation to undertake an
environmental impact assessment where there is a risk that the proposed activity may have a
significant adverse impact in a trans-boundary context, has gained so much acceptance among
States that it may now be considered “a requirement under general international law“.
Interestingly, in the circumstances of the case, it did not find that this included a legal obligation
to consult the affected populations, although it noted that the consultation had in fact taken place.
In summary, the ICJ held that:
“there is no conclusive evidence in the record to show that Uruguay has not acted with the
requisite degree of due diligence or that the discharges of effluent from the…[Botnia] mill have
had deleterious effect or caused harm to living resources or to the quality of the water or
ecological balance of the river since it started its operations in November 2007“.
Conclusion
The ICJ considered that “its finding of wrongful conduct by Uruguay in respect of its procedural
obligations per se constitutes a measure of satisfaction for Argentina“. Argentina may not
however be entirely satisfied with the judgment given that the ICJ did not feel able, in the
absence of any finding of breach of the substantive obligations of the Statute, to uphold any
claim for compensation. Furthermore, the ICJ failed to see any special circumstances requiring
guarantees from the Uruguayan government to refrain from contravening the Statute.
Although assessing obligations under a specific Statute, the judgment provides guidance to any
entity whose business potentially has a cross-boundary environmental impact, as to the
requirement for impact assessments and the way in which environmental standards are assessed
in the event of a dispute. National courts and international tribunals will no doubt look to the
jurisprudence of the ICJ in this regard.