International Service for the Acquisition of Agri-Biotech Applications, Inc. v.

Greenpeace Southeast Asia

(Philippines)
International Service for the Acquisition of Agri-Biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines),
G.R. Nos. 209271, 209276, 209301 & 209430 (December 8, 2015)
Supreme Court of the Philippines

The Supreme Court of the Philippines upheld a lower court decision invalidating an administrative order governing
import and release of genetically-modified organisms (GMOs) in the Philippines. The Court addressed a range of
issues, from standing and mootness to application of the precautionary p rinciple. On the procedural claims by the
petitioners that the case was moot and “academic” because all field trials had been suspended, the Supreme Court
found the paramount public interest in the case and the fact that the legal issues were capable of r epetition yet
evading review justified the Court’s review of the case. Page 38. The Court also noted the petitioners were
warranted in seeking judicial review because the biotechnology administrative framework does not provide “a speedy,
or adequate remedy.” Page 40.

The decision explains the current controversy over GMOs and, in particular, genetically-modified food crops for
human consumption. Drawing on research and case studies from around the world, and the testimony of e xpert
witnesses, the Supreme Court found there to be no consensus on the safety of Bt talong to humans and the
environment, stating “[t]hese divergent views of local scientists reflect the continuing international debate on GMOs
and the varying degrees of acceptance of GM technology by states . . . .” Page 69. The Court also cautioned that the
“uncertainties generated by conflicting scientific findings or limited research [are] not diminished by extensive use at
present of GM technology in agriculture.” Page 70.

Turning to the existing biosafety regulation in the Philippines, the Supreme Court found Administrative Order (DAO)
08-2002 deficient because it lacks provisions for meaningful, participatory, and transparent public consultation prior to
field trials and contains no mechanisms requiring applicants seeking to import or release GMOs to comply with
international biosafety standards. Pages 89-91. The Court also found that officials should have complied with
environmental impact assessment (EIA) procedures prior to approving release of Bt talong. Pages 91-92.

Invoking the precautionary principle, the Supreme Court blocked further field trials of Bt talong until regulatory
systems governing the import and release of GMOs are strengthened. “When these features - uncertainty, the
possibility of irreversible harm, and the possibility of serious harm - coincide, the case for the precautionary principle
is strongest. When in doubt, cases must be resolved in favor of the constitutional right to a balanced and healthful
ecology.” Page 100. The Court proceeded to nullify DAO 08-2002 and enjoined applications for contained use, field
testing, propagation and commercialization, and importation of any GMOs until a new administrative order is
adopted. Page 102.

In this case, plaintiffs, a collective of environmental NGO, member of the civil society and scientist, challenged the
decision of granting a Biosafety permits and allowing field test of a new pest resistant biotechnologically engineered
aubergine.

The plaintiffs alleged that the field trials of the bioengineered aubergine were a violation of their constitutional right to
health and balanced ecology because the environmental compliance certificate No.1151 was not secured prior to the
project implementation and because there is no scientific peer reviewed studies that shows that the Bt gene used in
the genetically modified organism is safe for human consumption and for the environment. Consequently, the
plaintiffs called for the application of the precautionary principle to this case. In addition to that, the plaintiffs claimed
that the field test project did not comply with the required public consultation under Section 26 & 27 of the Local
Government code.
Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be the duty of
every national agency or government-owned or controlled corporation authorizing or involved in the planning and
implementation of any project or program that may cause pollution, climatic change, depletion of non -renewable
resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species, to consult with t he
local government units, nongovernmental organizations, and other sectors concerned and explain the goals and
objectives of the project or program, its impact upon the people and the community in terms of environmental or
ecological balance, and the meas ures that will be undertaken to prevent or minimize the adverse effects thereof.

Section 27. Prior Consultations Required. - No project or program shall be implemented by government authorities
unless the consultations mentioned in Sections 2 (c) and 26 he reof are complied with, and prior approval of the
sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented
shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the
Constitution.

In front of the court of first instance and the court of appeal, the plaintiffs pr evailed and the judges applied the
principle of precaution and issued a writ of kalikasan against the defendants, namely the authorities in charge of
delivering the different permits such as the Environmental Management Bureau, the Fertilizer and Pesticide Authority,
and the promoter of the bioengineered aubergines : the University of the Philippines Los Baños, the International
Service for the Acquisition of Agri-Biotech Applications.

The defendants appealed the decision arguing that they had respected all measures of environmental law and that
there was no evidence that the Bt gene of the aubergine could cause any environmental damage or prejudice the life,
health and property of the neighbouring inhabitants.

The Supreme Court upheld the decisions of the previous court and held that the risk of releasing biotechnological
plants in a biodiversity rich country like the Philippines was too high because the natural and unforeseen
consequences of contamination and genetic pollution would be disastrous and irreve rsible. At the same time, the
Supreme Court considered that there was a preponderance of evidence that GMO could be a threat to both
ecosystems and health. As a result, the Supreme Court supported the application of the precautionary principle and
upheld the previous court decisions and dismissed the appeal.

Summary
Garrett Hardin's 1968 essay "The Tragedy of the Commons" argues overpopulation is depleting the e arth's
resources. He warns without countermeasures, humans are doomed to misery. This echoes the writings of Thomas
Robert Malthus, who observed in 1798 the population growth rate inevitably outpaces food production, leading to
widespread starvation. Since then, many arguments have challenged Malthus's theory. Although some areas of the
world have experienced periods of famine, Malthus's debunkers argue technology has prevented and can continue to
prevent famine through advances in agricultural techniques. They point out technology has improved the quality of life
across the globe, even as the population has doubled.
In "The Tragedy of the Commons" Hardin counters such faith in technology. His paper opens with an image of two
superpowers building more and more missiles to extend their power as well as protect their own citizens. According
to Hardin, this stalemate is an example of a situation that cannot be resolved by new technology. In fact, technology
helped escalate the situation to deadly proportions. No matter what technological solutions we create, Hardin argues,
they are only short-term. New technology will support an increased population that will deplete the additional
resources.

What Shall We Maximize?

Hardin argues we must assume the world's resources are finite so we can work toward a solution, and he rejects
colonization of other planets as an option. He next challenges the belief the earth's resources have the capacity to
support still more people. Hardin argues there is a difference between maximum and optimum population. Maximum
population simply means having as many people on Earth as possible. Optimum population implies a level of quality
of life. The more people there are, the fewer nutritional a nd natural resources there are per person. Supporting the
maximum population means surrendering the possibility of pleasure, leisure, or any other activity beyond basic
survival.
Hardin also challenges 18th-century economist Adam Smith's 1776 treatise The Wealth of Nations. Smith posited
when individuals make decisions for their own gain, their selfish acts will be guided by the mechanism of the "invisible
hand," which ultimately leads people to create stable societies. Hardin says if Smith's theory is corr ect, people will
intuitively choose to limit their number of children. If not, social controls are required.

Tragedy of Freedom in a Commons

Hardin fears dire consequences when a population shares a limited resource. Without limits on individual use, the
resource will inevitably be depleted.

Hardin illustrates this by citing an 1833 essay by economist William Forster Lloyd. Lloyd presents a fertile community
pasture on which a number of herders graze their cattle. At the start each herder keeps a small numb er of cattle on
the land. However, over time, each man realizes it would be to his benefit to graze a few more, and then many more.
Before long the pasture is overrun with cattle trampling grass and competing for fodder. The tipping point has been
reached. Eventually the grass is gone, the soil erodes, and the pasture becomes worthless for grazing. This is the
tragedy of the commons: when there are no limits on use, members of a group take advantage of a shared resource
until it is exhausted.

Pollution
Hardin names several modern tragedies of the commons. Maritime countries overfish the oceans until species
become extinct. Music blares from car radios and intrusive billboards infringe on shared vistas. Without concern for
the commons, industries pour sewage, chemicals, heat, and fumes into the air and water, leading to the degradation
of the environment and the potential destruction of life. According to Hardin, these tragedies of the commons directly
result from overpopulation.

How to Legislate Temperance?

Hardin states what a society considers moral is "system -sensitive," by which he means the context is important to
understanding the society's values. He gives the example of a pioneer killing a bison and wasting most of the animal.
In the context in which the pioneer lived, the action would not be considered harmful to the abundant population of
bison. However, now there are far fewer bison and such an act would be unconscionable. Because our laws tend to
be based on "ancient ethics," they tend not to take context into account as much as they should, which can make
them "poorly suited" to modern society.

Hardin describes two kinds of laws: statutory law and administrative law. Statutory laws have been passed by a
legislature, while administrative laws are regulations to enforce the statutory laws. Hardin proposes administrative
law, while flawed, is the better suited of the two to regulating temperance, or the restraint of an activity.

Freedom to Breed Is Intolerable

The activity Hardin believes needs to be restrained is human breeding. The obstacle to limiting population growth, he
states, is the general belief breeding is a human right. Merging "freedom to breed with the belief that everyone born
has an equal right to the commons" will lead to disaster. He criticizes the United Nations' Universal Declaration of
Human Rights for affirming the rights of each family to decide how many children to have.

Conscience Is Self-Eliminating
Hardin next addresses the question of how to change this belief and reduce the ra te of human breeding. He argues
appeals to conscience or guilt are self-defeating. Humans with a social conscience who voluntarily abstain from
breeding will be taken advantage of by those without such a conscience. Those without a social conscience will h ave
more children, and over successive generations, altruism could disappear as a human trait.

Pathogenic Effects of Conscience

Hardin explores the idea of a "double bind," a term attributed to the anthropologist Gregory Bateson. If people are
asked to stop an activity that is harmful to the commons with an "appeal to conscience," Hardin argues, they are
being given two conflicting messages. The first is they will be reprimanded for not being "responsible" if they do not
take the recommended action. The second is if they do what is asked, they are easily coerced "simpletons" who will
be giving up access to the commons while others continue to exploit them and benefit.
Hardin believes the overused tactic of making people feel guilty is not effective. It merel y causes "anxiety" in those
who are asked to act against their own interests. Real sanctions are preferable.

Mutual Coercion Mutually Agreed Upon

Hardin believes the way to change people's attitudes and behaviors is not through guilt or force but through "mutual
coercion." He admits the term coercion has negative connotations but prefers it to "persuasion." Since appeals to
social conscience do not work, people must be coerced by mutual agreement to limit family size. Hardin recommends
instituting "not prohibition, but carefully biased options." An individual is free to choose between adhering to social
agreements and facing sanctions. He uses taxes as an example of mutual coercion. Without penalties, he says,
those without consciences would not voluntarily contribute to the communal good.

Recognition of Necessity
Hardin challenges the argument restrictions limit freedom. He argues restrictions protect us from each other's
exploitation. Just as parking meters and parking tickets limit our options, they also m ake it more likely we can find a
space for our car. As he stated earlier in the essay, "We need to reexamine our individual freedoms to see which
ones are defensible." Constraints that apply to all protect us from each other's selfishness and allow us to live in
groups.
According to Hardin, social change is possible. He briefly traces how humans have relinquished certain liberties in the
past and used coercion to avoid the tragedy of the commons. Throughout history people have found ways to protect
resources, such as designating private property and legislating hunting, fishing, and farming. As cities became
densely populated, coercive agreements prohibited throwing domestic waste into the streets. Once agreements are in
place, Hardin states, people adapt to new norms as if they had always been present. He insists the way to "preserve
and nurture other and more precious freedoms is by relinquishing the freedom to breed."

Analysis
"The Tragedy of the Commons" is an argumentative essay. Building on Thomas Malthus's 1798 theories, Garrett
Hardin stresses the urgency of curbing population growth and suggests how it might be done.

Socratic Method
Hardin develops his thesis through a series of questions and answers that ultimately lead to his intended conclusion.
He poses a question, states the common wisdom, and then systematically challenges the components and definitions
supporting that belief. This resembles the Socratic method, which was used by Greek philosophers in the fourth
century BCE. To use the Socratic method, the sage would ask a series of probing questions that guided the pupil to
see the discrepancies and inconsistencies in his belief, and this would then lead the pupil to a solid, logical
conclusion.

Similarly, Hardin uses a series of questions that lead the reader to conclude there is no alternative to limiting
breeding. Hardin asks: Is ours a finite world? Can we meet the goal of "the greatest good for the greatest number "?
What is "good"? One by one, he deflates beliefs technology, infinite resources, space colonization, or market forces
can support a growing population. After providing an explanation of the tragedy of the commons and establishing the
need to reduce breeding, he returns to the question-answer format. He asks: If we must limit family size, how do we
achieve this? He again sequentially dismisses the use of laws, guilt, and social conscience before reaching his goal,
which is convincing us of the need for coercion in limiting offspring.

Argumentation
Hardin's paper was published in Science magazine, a well-established academic journal established in 1880. Unlike
popular science magazines for the general public or specialized scientific journals, Science's audience tends to be
intellectuals interested in new concepts and research directions across a range of scientific disciplines.
Throughout the article Hardin demonstrates a broad range of knowledge and draws from a variety of fields, including
economics, mathematics, politics, psychology, and philosophy. He cites Thomas Malthus, Adam Smith, Charles
Darwin, and Georg Hegel, as well as contemporary authorities to bolster each point with credible sources.

That he is writing for an intellectual audience is reflected in his casual references to scholarly works in varied fields of
study. He assumes his readers have his own depth and breadth of knowledge. For example, Harding refers to a
"theory of partial differential equations" with no further explanation of the theo ry. Hardin assumes his readers are
familiar with these concepts or they will take time to access the original sources. Most of these documents are cited in
his list of references, but not all.

In contrast to how he gives cursory mention of those whose ideas support him, he takes pains to explain ideas he
hopes to dismiss. For example, he explains Adam Smith's theory self-motivated "decisions reached individually will ...
be the best decisions for an entire society." This directly challenges Hardin's theory of the commons, and Hardin
provides detail to point out an inconsistency in Smith's argument. Similarly, Hardin provides details about the United
Nations' Declaration of Human Rights before dismissing its validity.

Although this essay was published in Science, it is highly subjective. His position on overpopulation is strongly
worded. He uses the word b reeding, a term mainly used for animals like dogs and cattle, to refer to human
procreation and childbearing. He asserts people who try to find technical solutions are trying to avoid the "evils" of
overpopulation. He wants to "exorcize the spirit of Adam Smith." Evil and exorcism are strong words that evoke a
sense of ultimate wrongdoing. Throughout the essay, overpopulation is tagged with other words with ne gative
connotations, such as tragedy, misery, and ruin.

Definition of " Commons"

Hardin draws on the image of a communal pasture shared by several herdsmen who individually decide it is in their
own best interest to graze more and more cattle. With all the additional cattle, the pasture becomes overgrazed and
loses its value to the community. The pasture in this case is the "commons" and a metaphor for any shared resource
destroyed by o veruse and individual greed.

Hardin leaves it to readers, however, to define what constitutes a commons in the world today. He gives examples of
leased land, parking spaces on a city street, oceans and sea life, national parks, air and water, and even the shared
airwaves and sight lines, with uninvited radios blaring and road s igns disturbing our landscapes. If all of these are
commons, what is not? He implies mutual coercions should be set for almost every aspect of community life.

His examples suggest the commons can be exploited by individuals, industries, regions, and nations competing for
resources and power, which returns us to the essay's opening image of two countries facing off with nuclear
weapons. The commons may be the field of influence on the world stage or a river flowing between countries.
However, ownership of private property blurs the lines. One can claim the right to foul the bank of the river that abuts
the person's property without thinking of the river as a commons.

Morality
Hardin makes a point of saying the morality of an action should be judged in light o f the circumstances. He cites the
situation in which a pioneer in the American West could shoot a bison without significant damage to the herd.
However, as the human population reached a critical mass, bison nearly became extinct. Some commons, like the
bison, can be revived. On the other hand, some cannot. We may be nearing a point of no return with climate change
and biodiversity. When a species has been extinguished, the ecological system is altered and often cannot be
restored. At what point does the use of a commons become a tragedy? What is the optimal time to intervene?