Memorandum
To: Atty. Liza Rose V. Eisma-Osorio
From: Chad C. Mascariñas
Date: November 19, 2023
Re: Can Philippine Environmental Laws be Used to Enforce the Arbitral Award in Order to
Protect the Marine Environment in the Philippine EEZ? Can the Writ of Kalikasan be
Issued to Stop the Environmentally Harmful Fishing, Reclamation, and Construction
Activities Described in the Arbitral Award?
Introduction
This memorandum examines the potential for Philippine environmental laws and the writ
of kalikasan to be employed in enforcing the arbitral award in the South China Sea
arbitration and safeguarding the marine environment within the Philippine EEZ.
Background
In 2016, the Permanent Court of Arbitration (PCA) issued an arbitral award in favor of the
Philippines, ruling on the Philippines' claims against China's extensive claims in the South
China Sea. The award invalidated China's nine-dash line, a demarcation line used to claim
a vast area of the South China Sea, and affirmed that certain features in the South China
Sea are not "islands" under the United Nations Convention on the Law of the Sea
(UNCLOS) and therefore cannot generate an exclusive economic zone (EEZ) or
continental shelf.
Despite the award, China has continued to assert its claims and engage in activities that
have caused significant environmental damage to the marine environment in the Philippine
EEZ. These activities include:
Illegal fishing
Artificial island construction
Reef destruction
Marine pollution
Philippine Environmental Laws and the Arbitral Award
Philippine environmental laws can be utilized to enforce the arbitral award and protect the
marine environment in the Philippine EEZ. These laws include:
Republic Act No. 8550, or the Philippine Fisheries Code of 1998, as amended
Republic Act No. 9147, or the Wildlife Resources Conservation and Protection Act
Republic Act No. 9003, or the Ecological Solid Waste Management Act of 2000
These laws prohibit activities that harm the marine environment, such as destructive fishing
methods, artificial reef construction without prior approval, and marine pollution.
The Writ of Kalikasan
The writ of kalikasan is a special legal remedy in the Philippines that can be issued to
compel government agencies to protect the environment. It can be used to halt activities
that are causing or are likely to cause environmental damage.
The writ of kalikasan has been successfully used in several cases to protect the
environment from harmful activities. In 2018, the Supreme Court issued a writ of kalikasan
to stop the construction of a cement plant in San Miguel, Bulacan, which was found to be
causing environmental damage.
Application to the South China Sea
Philippine environmental laws and the writ of kalikasan can be applied to stop the
environmentally harmful fishing, reclamation, and construction activities described in the
arbitral award. For instance:
The Philippine Fisheries Code of 1998, as amended, can be used to stop Chinese fishing
vessels from using destructive fishing methods in the Philippine EEZ.
The writ of kalikasan can be issued to compel Philippine government agencies to take
action against Chinese vessels engaging in illegal fishing, reclamation, and construction
activities.
Challenges
While Philippine environmental laws and the writ of kalikasan offer legal avenues to
protect the marine environment in the Philippine EEZ, there are some challenges that need
to be addressed:
China's non-compliance with the arbitral award: China has refused to comply with the
arbitral award, which could hinder enforcement efforts.
Resource constraints: The Philippine government may not have the resources to
effectively enforce its environmental laws in the vast and disputed South China Sea.
Political considerations: The Philippines may be hesitant to take strong action against
China due to political and economic considerations.
Conclusion
Philippine environmental laws and the writ of kalikasan can be valuable tools for protecting
the marine environment in the Philippine EEZ from the environmentally harmful fishing,
reclamation, and construction activities described in the arbitral award. However,
addressing these challenges is crucial to ensure the effectiveness of these legal remedies.
