Nature of Environmental Problems

The protection and improvement of the human environment is a major issue which affects the well-being of people and their economic development throughout the world. Thus, a point has been reached in history when we must shape our actions throughout the world to maintain the natural cycle of the environment.[1]

This is because within the environment there is dynamic interrelationship between the living form and physical environment. These relationships can be expressed as a natural cycle which provides a continuous circulation of the essential constituents necessary for life. This cycle mainly operates in a balanced state in an undisturbed natural environment; and as a matter of fact the balanced operation of this natural cycle is a fundamental condition to the continued existence and development of life on earth[2]. Human beings should therefore maintain this balance with nature and act according to the law of nature. Otherwise, man will suffer from the results of his interference[3].

It is this very condition that the World Charter for Nature reiterated. It states that mankind is a part of nature and life depends on the Uninterrupted functioning of natural system which ensures the supply of energy and nutrients[4]. That is, lasting benefits from nature depend upon the maintenance of essential ecological processes and life support systems, and upon the diversity of life forms, which have been placed at jeopardy through excessive exploitation and habitat destruction by man.

At this juncture, it is important to take notice of the fact that the environment, including the human competent, is complex and is not yet completely understood. We are part of that system: our actions affect the system and we are in turn affected by it. In spite of this, we do not have a full understanding either of the system or our interactions with it[5]. This calls for putting in place an early warning system and a system of prioritizing risks, since resources to address risks are always limited; and often the damage to the environment are irreversible or even if reversible can be done only at excessive costs[6]. In other words, many of the damages done to the environment may have long term effects or they may involve important synergism in the environment or may not be effectively reversible[7] such that, the greatest danger is that human kind may set off unchecked degradation that will pass a point of no return, making it impossible to restore a healthy environment[8].

The basis of the emphasis on human acts in environmental protection is, the fact that, we are part of the environment and simultaneously we human beings have a capacity and capability not only to improve but also to destroy and destruct nature[9]. For this reason, if we fail to safeguard the environment from being affected by our activities, there is a fear that[10]:

Large scale changes resulting from burgeoning human activity will, in relatively near future, alter fundamentally the terms of human existence and may even affect the possibility for human survival.

From this stipulation, one can easily infer the fact that environmental danger could possibly jeopardize the very existence of the present generation as well as the future.

The preamble of Tokyo Declaration on Financing Global Environment has succinctly put the inter-relationship and the danger posited in the following manner[11]:

Human future is at risk due to wasteful pattern of production and consumption in industrialized countries and pervasive poverty and population growth in developing countries which are primarily leading to the destruction of the earth’s ecological base.

By implication, the Tokyo Declaration reveals that the current environmental problems are caused by factors related to unsustainable use of natural resources, and unprecedented growth of population, and the cumulative effect of these environmental injuries would undoubtedly all living creatures on earth in jeopardy[12]. So that, environmentalists are warning the world community that we have reached an alarming stage, thus we need to take serious measures of rescuing the quality of our environment to make it last long. In short, protecting and conserving the environment becomes a must case for the purpose of sustaining life on earth successfully now and in the future[13].

Having the above facts, the interaction can be a healthy one, with human kind balancing what he takes from the natural environment with what the environment can afford to provide[14]. Since the dawn of the Industrial Revolution, however, human demands placed upon the earth’s resource have increased dramatically. Although the technological advancements have improved the sustenance capacity of the earth, many of these technologies have also placed added demands on the  earth’s limited resources, thereby bringing us closer to the threshold of the capacity of the earth[15].

Now-a-days, it is clear that the mad rat race among nations over the use of natural sources for development is increasingly jeopardizing the quality of the environment. The craze of these states resulted in over extraction of every bit of natural resources, and this unchecked exploitation of natural resource by man disturbed the delicate ecological balance between living and non-living components of the environment[16]. For this very fact, time has reached when we are facing challenges to our intellect and wisdom for saving the humanity from extinction[17].

To save humanity, therefore, everyone should notice that we human beings are at the heart of the search for sustainable development as our very survival depends on a very narrow range of environmental condition. And to this effect resource withdrawal, processing and re-use of the products have all to be synchronized with the ecological cycles in any development plan[18]. This approach unifies protection of the environment and development programs by formulating the concept of sustainable development in the following manner[19].

In order to achieve sustainable development environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.

This concept underlies the need to develop a holistic understanding of the relationship between the environment and the development process[20]. If not, any social and economic development endeavors cannot continue into the future, at least, for two reasons[21]. First, the malfunctioning of such unregulated actions will result in destroying the environmental conditions necessary for the continuation of the activity. And second, the adverse environmental effects resulting from such malfunctioning will cause massive or unacceptable damage to human health and life, and thereby disrupts the normal way of social interaction, peace and regularity of human life.

To have a full picture of environmental problems, it is also noteworthy to take notice of environmental problems arising apart from development activities, which are deliberate actions aimed at destroying the human being and the environment. One of such deliberate acts is the indiscriminate bombardment of cities, towns and countryside areas in effect which renders the civilian population to a military target of a new form of warfare-environmental warfare[22]. In such a situation the irreparable alteration to the environment may threaten the entire population, and it is tantamount to a crime against humanity, perhaps to a greater extent than genocide which may be limited only to a given ethnic minority in a specified area[23]. To avert this situation, we should not postpone our decision to resolve catastrophic disputes peacefully. If we wait too long, it would become impossible to have any opportunity to reconsider our acts[24]. That is, if we cannot take immediate action, the facts will continue as[25]:

[W]e are experiencing diseases today for hazards we did not control yesterday. What we do not take care of today will be there for our children to handle tomorrow.

When we look at the scope of environmental damage, in the past, pollution and environmental degradation have obtained largely on the local level and hence their effects have been isolated in impact. Given the increasing global scale of environmental degradation and ever increasing volume of pollutants entering the environment, however, their effects are now being felt on regional and global levels[26]. For this very fact, the problems of environmental degradation do concern all countries irrespective of their size, level of development or ideology. This is true because the oceanic world is an interconnected whole[27]. So, no government or society can take the environment for granted and since it is a global problem it can be tackled only with the assistance and cooperation of all[28].

When we bring it under one umbrella, the whole purpose of environmental protection boils down to mean suppressing the unwanted behavior and action of man, and fostering those that would contribute to the maintenance and enhancement of ecological balance to the benefit of the general public, and the continuity and profitability of development activities[29].

Today, environmental problems are serious and imminent threats, which suggest a need for drastic or emergency action[30]. This emanates from the magnitude of man’s impact on his environment which necessitated a full scale reconsideration of the relationship between the environment and development programmes[31]. In other words, the fact that human kind is now at a crossroads, that is, either to overwhelm the planet’s support capabilities or to return matters around and preserve its life giving qualities for future generations, calls for the reorientation of man’s activities with a view not to make the earth a desolate rooming planet[32].

To this effect, therefore, human beings are now being called upon to save the future. The future, it is presumed, lies entirely in their hands; tomorrow can not take thought of itself; it is they, now who have to save tomorrow[33].

The above factual situation of environmental problems which reveal the diffused right of human beings to live in a clean and healthy environment, and the pressing need of public participation to save the environment before it reaches no turning point, calls for the reorientation of the law to accommodate public interest litigation. The need for the reorientation of the law emanates from the fact that traditional litigation is designed in a way to enforce the rights of an individual against another, and not to enforce the diffused basic human rights of the public. In other words, the narrow ambit of locus standi permitted entry only to an aggrieved person and not to any member of public at large acting bonafidely. To have a full fledged justice, therefore, the procedural law should be designed with a leeway to accommodate public interest litigation to enable alert citizens and public interest groups redress public wrongs which remained unremedial under the traditional rules of locus standi.

Pollution to Environment as International, Regional and National Concern

The issue we will be discussing under this subtitle would be whether environmental issues are national or international in their concern. Some environmental problems, for example climate change or depletion of the stratospheric ozone layer, are inherently global in character, and affect all states, not necessarily equally, but at least to the extent that impacts are global and global solutions are required. There are also regional environmental problems like air or water pollution and conservation of migratory animals.

Equally there could be also domestic or national problems as well.

There is thus no single sense in which an environmental issue can be described as international, regional or national; rather it could be global, regional, trans-boundary, domestic, or a combination of all or any of these. What must be appreciated, however, is that the law governing these rather different contexts is likely itself to differ, both in the content of any applicable rules, and in the form they take.

Discussion Questions

Discuss why the protection of the environment is the concern of global, regional, trans-boundary, domestic, or a combination of all or any of these concerns by giving relevant examples? Discuss the following Quotation in line with the above subtitle?

“A communications gap has kept environmental, population, and development assistance groups apart for too long, preventing us from being aware of our common interest and realizing our combined power. Fortunately, the gap is closing. We now know that what unites us is vastly more important than what divides us.

We recognize that poverty, environmental degradation and population growth are inextricably related and that none of these fundamental problems can be successfully addressed in isolation. We will succeed or fail together.

Arriving at a commonly accepted definition of sustainable development remains a challenge for all the actors in the development process.”

‘Making common cause’

The Rationale for the Protection of the Environment

The Question of the need to protect the environment exploded in the late 1960’s. Since then it has increasingly become of crucial importance. At present states, international organizations, and individuals feel that it is imperative to take action to preserve the natural and human environment or at least avert its worsening. Before, the problem was not felt for three main reasons:[34]

First, industrial developments had not spawned pollution and damage to the environment on a very large scale. Second, States still took a traditional approach to their international dealings: they looked upon them as relations between sovereign entities, each pursuing its self-interest, each eager to take care of its economic, political, and ideological concerns, each reluctant to interfere with other states’ management of their space and resources, and unmindful of general or community amenities. Third, public opinion was not yet sensitive to the potential dangers of industrial and military developments to a healthy environment.

Of course, the question of why we protect the environment is very difficult to answer. Its answer depends on the context. Accordingly, there could be ethical, aesthetic, or symbolic reasons for protecting the environment as opposed to economic and health reasons. However, almost all justifications for environmental protection are predominantly and in some sense anthropocentric.

This is true especially of the 1972 Stockholm Conference, which focused explicitly on protecting ‘the human environment’ and proclaimed[35]:

Man is both creature and molder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, Spiritual, moral and social growth…

Likewise, the 1992 Rio Declaration on Environment and Development asserts that ‘Human beings are at the center of concerns for sustainable development’.

The preamble to the 1992 Convention on Biological Diversity evinces the complex mixture of objectives for the protection of the environment, which characterizes much of contemporary international environmental law: Conscious of the intrinsic value of biodiversity and of the ecological, social, economic, scientific, educational, cultural, recreational and aesthetic value of biological diversity and its components, conscious also of the importance of biological diversity for evolution and for maintaining life-sustaining systems of the biosphere (holistic approach to environment protection).

The emergence of individual environmental rights has the strongest anthropocentric motivation, most notable in attempts to develop a new human right to a decent environment. Some advocates assert that such a right is indispensable for the enjoyment of human rights freedoms,[36] but they usually fail to explain how competing environmental, economic, and social priorities can be accommodated in what necessarily becomes a value judgment about what we value most.

A more explicit relativism characterizes most environmental protection measures aimed at protecting human health or safety, including those in which the acceptance of some responsibility for the welfare of future generations is a prominent feature, such as the conventions on nuclear radiation risks or climate change.

Nature of Environmental Damages

Problems in Defining Environmental Damages

Defining terms such as environment and environmental damages is important because it is one of the methods used by the legislatures to determine the regime and range of liability in question[37]. In this respect, it means, the broader the definition of damage to the environment is the wider the scope of the compensable damage.

In the case of the Ethiopian legal system, environment is defined to mean[38]:

the totality of all materials whether in their natural state or modified or changed by humans, their external spaces and the interactions which affect their quality or quantity and the welfare of human or other living beings, including but not restricted to, land, atmosphere, weather and climate, water, living things, and aesthetics.

Furthermore, damage to the environment is understood to mean[39]:

any condition which is hazardous or potentially hazardous to human health, safety or welfare or to living things created by altering any physical, radioactive, thermal, chemical, biological or other property of any part of the environment in contravention of any condition, limitation or restriction under any relevant law.

From the above legal provision, we can infer the fact that damage to the environment does not only cover damage to the environment per se, but it also covers damage to private property and consequential losses that arise there from or in connection with. In other words, damage to the environment has two facets, that is, private nuisance and public nuisance.

Private nuisance is defined as unlawful and continuing interference with a person’s use or enjoyment of land and possibly, physical damage to that property. whereas, public nuisance is a crime as well as a tort, and for any action to lie it must interfere with the use and enjoyment of property by the public in general or by a sufficiently large number of public[40].

Accordingly, a proper classification of damage to the environment is imperative because there is a fundamental difference between the environment-related type of damages [private nuisance], on the one hand, and damage to the environment per se [public nuisance] on the other hand in relation to the scope of the traditional tort law.

In the traditional tort law, it is generally held that, an individual acting privately can not initiate a legal action for a purely public nuisance, unless the damage he incurred is in some way distinguished from that sustained by other members of the general public[41]. In other words, a private individual can have standing only when he has suffered damage over and above that suffered by the public at large, so much so that the scope of the traditional tort law covers only the environment related type of damages which could result in personal injury or pure economic loss.

For the above reason, when damage is done to the environment per se, it does not fit properly in the traditional legal concept of tort law. To have better understanding, this inference could be further consolidated by the following reasons[42]:

First, by the fact that damage to the environment per se affects collective interests rather than individual interests, and incidents that affect such collective interests do not generally speaking, give rise to legal right of standing. That is, the traditional liability rules mainly concern in the protection of individual interests and, in cases of damage to the environment per se, these interests are often only indirectly affected [if at all].

The second reason is the very nature of damage to the environment per se. That is, since damage to the environment per se is a separate category of damage, it is not entirely clear if damage to the environment per se should be classified as material or non-material damage [pecuniary or non-pecuniary loss]. And, because under the traditional tort law only certain types of damages are compensable, it becomes questionable whether all aspects of damage to the environment per se fit in the tort law system.

To supplement the gap in the law, which emanate from the limited scope of application of the traditional tort law, it is, therefore, a pressing need to incorporate a liberalized standing and a modern concept of tort law[43]. Corollary, to have a liberalized standing with a legal penetration, forming a new and additional category of damage to the environment per se in the tort law is a prerequisite as it is provided in the following section.

Damages Forming New and Additional Category of Damage to the Environment

To achieve a more comprehensives environmental protection a new category of damage should be introduced in addition to and separate from property damage, personal injury and pure economic loss. This category extends traditional tort law to cover damages to the environment per se, that is, it would extend its scope to encompass natural resources that have direct or indirect interest to the public at large[44].

Extending the scope of the liability regime to include both the publicly owned and publicly possessed natural resources, and the publicly owned but privately possessed natural resources that have a particular value to the public has the advantage that the environment is valued as a unity party that is independent from property interests.

In the case of publicly owned but privately possessed natural resources that have a particular value to the public, standing is proposed to be liberalized for the fact that they may support threatened and endangered species, and provide other services to man and nature[45].

Other specific reasons for the liberalization of standing to include certain publicly owned but privately possessed natural resources are the following:

The first reason is the plaintiffs’ reluctance to take care about the pollution. In some instances they themselves may also be polluting, and not wish to initiate legal action. They may be economically dependent on their polluting neighbor. And, of course, when they discount the value of winning by the costs of bringing suit and the chances of success, the action may not seem worth undertaking[46]. Consider, for example, that while the polluter might be injuring hundred downstream riparian of ten thousand dollar a year in the aggregate, each riparian separately might be suffering injury only to the extent of a hundred dollars-possibly not enough for any one of them to want to press suit by himself, or even to go to the trouble and cost of securing co-plaintiffs to make it worth everyone’s will. This hesitance will be especially likely when the potential plaintiffs consider the burdens the law puts in their way. Furthermore, it becomes troublesome, in that, as a general principle, the traditional tort law does not allow someone who suffered a loss to take into consideration the interest of the general public which might be in the damaged object[47]. The same problem emerges when the private possessor of the public owned natural resource caused damage to it. In this respect, if the damage is not repaired duly, it may have consequence on natural resources that directly or indirectly depend for their survival and productivity on that resource which sustained damage[48].

Second, the merit of the case is decided only to the interest of some one who is competent and willing to establish legal standing. In this case, the system protects only the rights of the property owning human without giving due consideration to public interest, and intrinsic natural values. So, strict adherence to the traditional tort law and traditional standing denies cognizance to the intrinsic value of the environment, and the public interest aspiration[49].

Third, under traditional tort law, even if a plaintiff wins a pollution suit for damages, no money goes to the benefit of the environment itself to repair its damages. This omission has the effect that, at most, the law confronts a polluter with what it takes to make the plaintiff riparian whole; this may be far less than the damage to the environment, so that it may not have enough reparcation to force the polluter to desist[50]. For example, it is easy to imagine a polluter whose activities damage a stream to the extent of ten thousand dollars annually, although the aggregate damage to all the riparian plaintiffs who come in to the suit is only three thousand dollars. If three thousand dollars is less than the cost to the polluter of shutting down, or making the requisite technological changes, he might prefer to pay off the damages [that is, the legally cognizable damages] and continue to pollute the stream. Similarly, even if the jurisdiction issues an injunction at the plaintiff’s behest, there is nothing to stop the plaintiffs from selling out the natural resource, which is, agreeing to dissolve or not enforce the injunction at some price- somewhere between the plaintiffs’ damage and defendant’s next best economic alternative. In this case the defendant makes its peace with the plaintiff as best it can. What is meant is a peace between them, and not amongst them and the natural resource.

Forth, the measure of damage is another reason for including certain publicly owned but privately possessed natural resources that have ecological value, and publicly owned natural resources. Application of the traditional measure of damages rule may prevent full restoration of the damaged natural resources[51]. As a general rule, under the traditional tort law the costs of such measures are not to exceed the lost market value of the property. This may have the effect that the natural resources which lack a direct market value are not fully restored. For the above reasons, the benefit of the modern approach of tort law and liberalized standing is that the environment is valued as a unity and that the protection and conservation of natural resources does not stop at the border of private property.

In general, damage to the publicly owned and publicly possessed natural resources, and to publicly owned but privately possessed natural resources that have a particular value to the public, is damage of a collective nature and because no concrete individual interests are harmed, damages for this type of injury are in principle not recoverable under the traditional tort law. For this reason, to address the gap, the introduction of public interest litigation which can be initiated by public spirited persons or social service minded members of the public acting bonafidely, not for personal gain or out of political motivation or other oblique consideration, is a pressing need. Furthermore, the law becomes full-fledged where special laws not only specifically provide standing to alert citizens and public interest groups, but also when they bestow them a cause of action to claim compensation for such damage. That is, forming a new and additional category of damage to the environment per se in the tort law is a corollary to the liberalization of standing.

---

[1] H.M. Dix, Environmental Pollution, (Published in Chricheter New York Bribana Toronto, 1981), P.8.

[2] Id.

[3] Environment and Heritage, Professional and Topical Issues I and II, Module 1, Distance Education Division, St. Mary's College, 2005, P.81.

[4] The World Charter for Nature, Adopted and Solemnly Proclaimed by the United Nations General Assembly, On 28 Oct. 1982.

[5] J. Weiss, Environmental Change and International Law: New Challenges and Dimensions, (United Nations University Press, 1988), P.15.

[6] The Environmental Policy of Ethiopia, April 1997, 2.3 (f).

[7] Weiss, Supra note 5, P. 17.

[8] Conway W. Henderson, International Relations Conflict and Cooperation at the Turn of the 21^st Century, (Published by the MC Graw-Hill Companies, Inc., 1998), P. 431.

[9] Ethiopian Wildlife and Natural History Society, Addis Ababa Environmental Education Project Training Manual, March 2002, P. 124.

[10] Lawrence John, The Global Environment, (Published in Mangrove       Law Institution, 1971), P.33.

[11] Tokyo Declaration on Financing Global Environment and Development, Held in Tokyo from 15 to 17 April 1992.

[12] Mekete Tekle, The Right to a Healthy Environment: International and National Perspectives, Nairobi, April 1995, P.68.

[13] Module, Supra note 3, P77.

[14] Henderson, supra note 8, P. 430.

[15] Peter S. Menell and Richard B. Stewart, Environmental Law and Policy, (Published by Little, Brown and Company, 1994). P.11.

[16] P.D. Sharma, Ecology and Environment, (Published by Rakesh Kumar Rastogi, 1998). P.415.

[17] Id., P. 389.

[18] Id.

[19] The Rio Declaration on Environment and Development, Held at Rio de Janeiro from 3 to 14 June 1992, Principle 4.

[20] Sharma, Supra note 16, P. 331.

[21] Manual, supra note 9, P. 124.

[22] Arthur Westing, Environmental Warfare in Environmental Law, (Bol.15, 1985), P. 645, Cited in Mekete Tekle's Paper, Supra note 12.

[23] Brown Weiss, The Contribution of Human Rights Law to Environmental Protection with special Reference to Global Environmental Change, (Published in Cancado Tridade, 1988), P. 261.

[24] Raymond F. Dashman, Environmental Conservation, (Third Edition, Printed in the United States of America, 1998), P.3.

[25] B. Hydervali, Environmental Law: Some Trends, Vol. 1, P. 73.

[26] Weiss, Supra note 5, P. 22.

[27] P.S. Jaswal and Nishtha Jaswal, Environmental Law: Environmental Protection, Sustainable Development and the Law, (Published by Allahabad law agency, 1999) P.1.

[28] Id., P.  101.

[29] Manual, Supra note 9, P. 124.

[30] Mekete, supra note 12, P. 68

[31] Id.

[32] Henderson, Supra note 8, P. 430

[33] Menell and Stewart, Supra note 15, P. 14.

[34] Antonio Cassese, International Law (Oxford: Oxford University Press, 2001), at 375.

[35] The Preamble of the United Nations Declaration on Human Environment, Adopted in Stockholm in June 1972

[36]E.g. Pathak, in Brown Weiss (ed.), Environmental Change and International Law, (Tokyo, 1993), Ch.8.

[37] Edward H.P. Brans, Liability for Damage to Public Natural Resources: Standing, Damage and Damage Assessment, (Published by Kluwer Law Int., 2001) P.9.

[38] Environmental Pollution Control Proclamation, Neg. Gaz., Proclamation No. 300/2002, 9^th Year No.12, Art. 2 (6).

[39] Id., Art. 2 (12).

[40] Paul Denham, Law a Modern Introduction, (4^th ed., Printed in Great Britain for Hodder and Stoughton Education, 1999), P. 391.

[41] J. Gordon Arbuckle and Nancy S. Bryson, Environmental Law Hand Book, (9^th ed, Published by Government Institutes, Inc, 1987), P.10

[42] Brans, Supra note 34, P.13.

[43] Arbuckled and Bryson, Supra note 38, P. 10.

[44] Brans, Supra note 34, P. 14.

[45] Id., P. 12.

[46] Christopher Stone, "Should Trees Have Standing? Towards Legal Rights for Natural Objects", (Southern California Press, 1972) P. 460

[47] Brans, Supra note 34, P. 13.

[48] Id., P. 14.

[49] Stone, Supra note 43, P. 46.

[50] Id., P. 462.

[51] Brans, Supra note 34, P. 14.

The Sources of Environmental Law

Environmental law, being a relatively new field, is largely contained in written texts, although some common law principles and relevant and customary international law is emerging. Governments protect the environment on the basis of their various constitutional and statutory powers to promote the general welfare, regulate commerce and manage public lands, air and water. National authorities may accept additional duties to protect the environment by entering into bilateral and multilateral treaties containing specific obligations. Promulgation of regulations and permits by administrative authorities is another important source of environmental law. Reporting, monitoring and civil and/or criminal actions to enforce environmental law are critical components of environmental law systems. Some constitutions also contain reference to environmental rights or duties, making these constitutional provisions and their interpretation and application another potentially important source of environmental law. Litigation enforces the laws and regulations by civil or criminal actions. If a constitution contains a right to a specified environmental standard, the provision must be interpreted and applied. Issues may also arise as to the appropriate remedy, which constitutions usually do not specify. Besides defining obligations for regulated entities, statutory provisions may allow individuals to bring suit against an administrative body that abuses its discretion or fails to comply with its mandate, and in some circumstances allow for direct citizen action against the polluters themselves.

Sources of National Law

The range of subjects that potentially involve environmental issues has a breadth that extends across virtually the entire field of legal regulation. For example:

• Antiquities laws may prohibit looting or unauthorized excavation of protected archaeological or natural sites.

• Regulation of agricultural activities may involve issues of the quality and quantity of water use, as well as limiting recourse to pesticides and fertilizers.

• Public health laws can regulate spraying toxics to eliminate disease vectors such as mosquitoes or raise questions about the safety of vaccines.

• Land use regulation and public trust doctrines may be used for environmental protection.

• Coastal zone management, fisheries and forestry law seek to conserve the resources they regulate.

• Mining and energy laws may regulate the emissions of greenhouse gases and other air pollutants.

• Regulation of industrial activities may establish restrictions on emissions and effluent from industrial operations.

Some environmental cases appear at first glance as consumer protection suits against the manufacturers or sellers of hazardous products. Other cases involve efforts to obtain information about environmental conditions or present actions against government officials and agencies that allegedly have failed to enforce the law. These many topics related to environmental law are regulated by various sources of national law.

A. Constitutional Law

On the national level, many constitutions now contain provisions establishing environmental rights, or set forth governmental duties to protect the environment and the state’s natural resources. More than 100 constitutions refer to a right to a clean and healthy environment, impose a duty on the state to prevent environmental harm, or mention the protection of the environment or natural resources. At the same time, references to constitutional environmental rights raise difficult questions of justiciability, remedies, and the scope and content of such rights. It remains to be seen what role constitutional environmental rights might play alongside common law, statutory, and regulatory means for protection of the environment.

Among states of Latin America, Argentina deems the right to environment a subjective right entitling any person to initiate an action for environmental protection. In a case a court reiterated that [i]:

The right to live in a healthy and balanced environment is a fundamental attribute of people. Any aggression to the environment ends up becoming a threat to life itself and to the psychological and physical integrity of the person.

Even where the right to a healthy environment is not expressly provided, other constitutional rights are being interpreted and enforced by courts in an environmental context. The Supreme Court of India was one of the first courts to develop the concept of the right to a healthy environment as part of the right to life guaranteed by the constitution[ii]. In a subsequent case, the Court observed that the “right to life guaranteed by article 21 includes the right of enjoyment of pollution-free water and air for full enjoyment of life.”[iii]

 

B. Environmental Legislation

Most environmental cases probably appear before judges as part of an effort to enforce statutory or administrative law or as an appeal from administrative decisions, such as denial of a permit or an order to halt emissions.

Legislative texts often establish general environmental policy, supplemented by specific laws and administrative regulations. Broad frameworks of environmental statutes have been adopted in many different countries.

These statutes use common techniques and procedures of environmental protection, including environmental impact and risk assessment, prior licensing, and emission standards. At the same time, they often respond to specific environmental concerns in the particular country, such as the safety and environmental consequences of nuclear power plants, large dams, or extractive industries like oil or coal. In most countries environmental legislation is supplemented and given greater specificity in administrative regulations.

In addition to general framework laws, national laws often regulate a single environmental milieu, or “medium”, e.g. water, air, soil, or biological diversity, due to the particular environmental problems facing a given area, political or economic priorities, or the ease of achieving consensus on a specific environmental issue. While such media-specific legislation can often deal more thoroughly with a particular sector than framework legislation, one difficulty with such medium-by-medium regulation is that it can sometimes overlook the interrelated and interdependent nature of the environment. For judges, such laws may present problems of reconciling divergent requirements or establishing priorities among the competing laws. One means to address this is sectoral legislation, which simultaneously addresses all environmental impacts from a particular economic sector, e.g. chemicals or agriculture.

Promulgation of standards for various pollutants is often a critical component of the legal framework for environmental protection. Standards may be expressed in terms of ambient standards, which are often health based and normally embody broad objectives, and performance standards or technology-based standards to achieve those goals. Countries may use permit systems to elaborate the application of broad standards to specific facilities.

Increasingly, as governments are elaborating their legislative and regulatory treatment of key sectors and pollution sources, they are also moving towards a more comprehensive approach to environmental protection that seeks to integrate pollution prevention and control, i.e. protection against pollution of all natural systems necessary to support the biosphere. The focus of “integrated pollution prevention and control” is on eliminating or at least reducing the input of each polluting substance, noting its origin and geographic target. Integrated pollution prevention and control aspires to a “cradle to grave” approach that considers the whole life cycle of substances and products, anticipates the effects of substances and activities on all environmental media, minimizes the quantity and harmfulness of waste, uses a single method such as risk assessment for estimating and comparing environmental problems, and involves complementary use of objectives and limits.

 

C. Administrative Regulations

Legislation on environmental matters often delegates to administrative agencies regulatory powers, including rule-making, standard-setting and enforcement, to achieve the legislative mandate. In order to achieve environmental protection, many administrative agencies and officers have new powers to obtain information and a wide range of civil enforcement options from orders to injunctions. In many instances citizens have been granted the right to initiate lawsuits to obtain information about the environment or participate in decision making, as well as enforce environmental laws and regulations, including suits against government officials who fail to perform their duties properly. As a consequence, courts and judges increasingly exercise oversight of administrative agencies.

In permit or licensing proceedings, the court is typically asked to determine whether an administrative agency or governing body’s licensing decision was consistent with the legal requirements. Frequently, in assessing the consistency of agency action with legal requirements, courts will confine their review to the administrative record of decision – that body of information and facts that was before the agency at the time the decision was made. A court may need to reject an administrative decision by an administrative agency or governing body if it determines that the law has been applied in an arbitrary manner or one that infringes basic rights.

D. Industry Standards and Codes of Conduct

A growing number of guidelines or codes of conduct have been developed within industry, including the World Industry Council for the Environment, the FAO International Code of Conduct on the Distribution and Use of Pesticides, the Responsible Care Initiative of the Chemical Manufacturers Association, the CERES/Valdez Principles, the ICC Business Charter on Sustainable Development, and the Royal Dutch/Shell Group Statement of General Business Principles. Such private regulation may constrain behavior by exercising a moral or practical (sanctioning) influence. Litigants may argue that breach of such codes or industry standards may be evidence of malpractice or negligence, in an effort to deploy a relatively inexpensive means of evaluating conduct in case of a dispute. The 1990 Valdez Principles were adopted by the Coalition for Environmentally Responsible Economies, a group of investors and environmental organizations. The intent was to create corporate self-governance “that will maintain business practices consistent with the goals of sustaining our fragile environment for future generations, within a culture that respects all life and honors its independence.”

With the advent of globalization, international organizations have devoted attention to drafting codes that apply to multinational enterprises. The UN Sub-Commission on Human Rights approved Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, urging that every effort be made so that they become generally known and respected. Although primarily concerned with human rights, the Norms contain a paragraph on corporate responsibilities in the area of environmental protection[iv]:

Transnational corporations and other business enterprises shall carry out their activities in accordance with national laws, regulations, administrative practices and policies relating to the preservation of the environment of the countries in which they operate, as well as in accordance with relevant international agreements, principles, objectives, responsibilities and standards with regard to the environment as well as human rights, public health and safety, bioethics and the precautionary principle, and shall generally conduct their activities in a manner contributing to the wider goal of sustainable development.

 

International Law

The relationship between national law and international law varies considerably from one legal system to another. International law is considered the supreme body of law by international tribunals and in international relations among states. Thus, a state may not invoke a provision of its national law to excuse its violation of international law. The law of state responsibility provides that each breach of an international obligation attributable to a state automatically gives rise to a duty to cease the breach and make reparation for any injury caused, irrespective of national law. Within states, international law may be legally binding and applied by courts as a result of one or more means that are usually specified in the constitution. Legal doctrine has developed two theories known as monism and dualism in an attempt to explain and classify national practice, but the reality is more complex than the theory. Monism posits a unified body of rules, and since international law is the most complete expression of unified law, it automatically forms part of this body of rules and is hierarchically superior to other law. Dualism sees separate legal orders and looks to each jurisdiction to determine the sources of law and their hierarchy.

In general, the theory of monism and dualism is most relevant to customary (or law not created through written international agreement) international law and even then in limited fashion. Some legal systems require that customary international law be transposed into national law through legislation or executive order before it becomes the law of the land. Other legal systems view international law as automatically part of the legal order and enforceable by judges without legislative action.

The constitutions of Italy, Germany and the Netherlands all have constitutional provisions expressly stipulating that rules of general (or customary) international law are part of the municipal law of the state and enjoys precedence over domestic legislation. Most common law countries consider customary international law to be part of the common law and automatically binding as national law, following Blackstone (“the law of nations, wherever any problem arises which is properly the object of its jurisdiction, is here adopted in its full extent by the common law and is held to be part of the law of the land”).

The position of treaties in national law varies even more; some constitutions specify that ratified treaties are automatically the law of the land and must be applied by judges in cases where an issue concerning them arises. Other states, like the United Kingdom, require that a treaty be incorporated by legislation before the judiciary may apply the agreement. English courts have consistently held that a treaty concluded by the UK does not become part of the municipal law except and insofar as it is made so by parliament. Yet a third group of states, like the United States, distinguishes self-executing treaties which judges may apply from non-self executing treaties that require legislative action before judges may enforce them.

When international law has been incorporated and made binding, it may rank at the level of constitutional law or be superior, equal or inferior to legislation, according to the hierarchy of legal sources, generally stipulated in the constitution.

The extent to which norms arising from international law are justiceable in national courts thus necessarily depends on the manner in which these norms are incorporated in the constitutions as well as on the legal system and jurisprudence of each country. Where international law has been incorporated into the national legal system, judges apply the norms and standards when presented with them in an appropriate case[v].

In some instances, the parties may disagree about whether or not a given international norm in fact constitutes law. This may be particularly true with respect to questions of customary law, which requires evidence of consistent state practice, followed in the belief that it is legally required. In such circumstances, the judge will need to make a decision regarding the existence of the purported norm. Precedent exists in several jurisdictions finding particular norms to constitute customary international law[vi].

Where international law is not binding as part of domestic law, it may still be considered persuasive in interpreting constitutional or statutory provisions, as may the law of other countries or even the views of commentators. The jurisprudence of international tribunals also can be considered in this context. Judges may also find persuasive the law of other nations, especially those whose legal systems are similar to theirs. In Andhra Pradesh Pollution Control Board-II v. Prof. M.V. Nayudu & Others [2001] 4 LRI 657, Sup. Ct. India, the Court referred to the Declaration of the United Nations Water Conference, the International Covenants on Civil and Political and Economic, Social and Cultural Rights, and the Rio Declaration on Environment and Development as persuasive authority in implying a right of access to drinking water as part of the right to life in the Indian Constitution. The Court also made reference to jurisprudence of the European Court of Justice, the European Court of Human Rights and the Inter-American Commission on Human Rights, as well as decisions of national courts of the Philippines, Colombia and South Africa. On occasion, courts have looked to treaties for the meaning of undefined terms in national law. In Ramiah and Autard v. Minister of the Environment and Quality of Life (Mar. 7, 1997), the Mauritius Environment Appeal Tribunal looked to the Ramsar Convention for a definition of wetlands, although the convention had not yet been ratified by Mauritius. The Ministry of Environment agreed that the Convention provided guidance on the issue.

A court may also take judicial notice of studies done by international organizations as evidence of environmental damage. In Pedro Flores y Otros v Corporation del Cobre (CODELCO), a Chilean court of appeals referred to a UNEP study in finding that the coastline in question was one of the most seriously polluted around the Pacific Ocean. Pedro Flores y Otros v. Corporation del Cobre (CODELCO), Corte de Appelaciones (June 23, 1988), Rol 12.753.FS641, aff’d Sup. Ct. Chile (ordering disclosure of information, an expert report on the coastline, and an injunction to prevent further pollution).

Some courts have adopted a rule of interpretation that avoids placing the state in breach of a treaty or rule of customary international law, holding that national law should be interpreted and applied in conformity with the state’s international obligations. Thus, for example, United States courts adhere to the “Charming Betsy” rule, named after the case in which the Supreme Court announced that courts must interpret and apply statutes consistent with international law, unless it unmistakably appears on the face of a statute that Congress intends to modify or reject an international obligation. Murray v. Charming Betsy, 6 U.S. (2 Cranch) 64 (1804). The French Conseil d’Etat also interprets and applies national law in the light of international law. In a case concerning the International Convention on Trade in Endangered Species, the Conseil upheld national law when it found that the Convention clearly permitted the state to adopt stricter measures than those in the Convention. Conseil d’Etat francais, 8 juin 1990, Societe DACO, RJE, 1991/2, p. 236.

 

The Law Making Process: National and International Perspective

The Law Making Process of Environmental Law in Ethiopia

A very important point for assessing environmental law (both at regional and International level) is a clear understanding of the law making process from which it derives. Accordingly, for the national environmental law, there is national parliament which is endowed by the constitution of the country with the power to legislate laws which could be relevant to the environment. Considering the structure of the government of the country at hand there could also be Regional State Councils which are endowed with the same power. Depending on the case there could also be a possibility for courts to make laws. To this effect, this time, as a base for judicial activism, we do have indicative article under Proclamation No 454/2005 which stipulates:

Interpretation of low by the Federal Supreme Court rendered by the cassation division with no less than five judges shall be binding on federal as well as regional courts at all levels. The cassation division may, however, render a different legal interpretation some other time.

To exemplify the above mentioned fact let us cite a provision for discussion from the Constitution of the Federal Democratic Republic of Ethiopia. The constitution under Art. 51(5) stipulates that[vii]:

It shall enact laws for the utilization and conservation of land and other natural resources, historical sites and objects.

Art. 52 of the same constitution that talks about the Powers and Functions of States in Sub-Article 2(d) also prescribes as follows:

To administer Land and other natural resources in accordance with Federal laws

Discussion Questions

At this point, in line with Art. 52 Sub-Art.2 (d) you are invited to discuss the meaning of the word “to administer.” What does the word exactly mean?

Does it also include legislating laws? Are there any domestic institutions established by law for the protection of the environment?  Evaluate their contribution in the protection of the environment?

The Law Making Process of International Environmental Law

Concerning International Environmental Law there is no international legislature, comparable to the national parliament, but there are generally accepted sources from which international law derives, and a variety of international processes through which new international law is made or existing law changed[viii]. Much of international environmental law is the product of an essentially legislative process involving the interplay of international organizations, conferences, diplomacy, codification and progressive development, and international courts, and a relatively subtle interplay of treaties, non-binding declarations or resolutions, and customary international law[ix]. Three features have helped to make this law making process both inclusive and relatively rapid[x].

First, international institutions, including the UN and its specialized and regional agencies and programmes, have played a leading role in setting law-making agendas and providing negotiating forums and expertise.

Secondly, following the model of the 3^rd UN conference on the law of the sea, the use of consensus negotiating procedures and package deal diplomacy has created a real potential for securing universality and general acceptance of negotiated texts. In a world of nearly two hundred states with disparate interests, and particularly sharp differences on environmental issues between developed and developing states, such techniques have been essential when dealing with global environmental problems. The 1992 Rio Conference on Environment and Development and the negotiation of the conventions on Climate Change and Ozone depletion illustrate particularly well the importance of a process which is capable of securing universal, or near universal, participation and support.

Thirdly, the use of frame work treaties, with regular meetings of the parties, has given the process, at least in its treaty form, a dynamic character, allowing successive protocols, annexes, and related agreements to be negotiated, adding to or revising the initial treaty. These treaties, together with the institutions they create, have become in effect regulatory regimes. They provide a basis for further, progressive action to be taken as scientific knowledge expands and as regulatory priorities evolve or change. As a result, what may begin as a very bare framework treaty, such as the Ozone Convention, could become a complex system of detailed law with its own machinery for ensuring compliance and implementation of the law.

Above, all these processes are political, involving law-making primarily diplomatic means rather than codification and progressive development by legal experts, although codification and judicial decisions do play a part in affirming the status of customary rules and general principles, leading in some cases to modest evolution in international law. But it is the political process referred to above which represent a real vehicle for law making, which evidently had wide appeal to international community. Moreover, even where, as in the Stockholm and Rio Declarations, the instruments adopted are not formally binding on states, they have in many cases contributed to the development of consistent state practice, or provided evidence of existing law, or of the law-making intention which is necessary for the evolution of new customary international law, or have led to the negotiation of binding treaty commitments.[xi]

Discussion Questions

Are there any international institutions in charge of the protection of the environment? How do you evaluate their effectiveness in protecting the environment? How do you compare them with that of domestic institutions in their effectiveness?

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[i] Available at www.eldial.com, Irazu Margarita v. Copetro S.A., Camara Civily Comercial de la Plata, Ruling

of 10 May 1993

[ii] Bandhua Mukti Morcha v. Union of India, 3 SCC 161 (1984) and Charan Lal Sahu v. Union of India, AIR

1990 SC 1480 (1991).

[iii] Subhash Kumar v. State of Bihar, AIR 1991 SC 420, 1991 (1) SCC 598.

[iv] The UN Sub-Commission on Human Rights,  E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 12, 2003)

[v] Raul Arturo Rincon Ardila v. Republic of Colombia, Constitutional Court, Apr. 9, 1996 (applying the

Biodiversity Convention, ILO Convention 169 on Indigenous Peoples and GATT’s TRIPs Agreement).

[vi] Vellore Citizens Welfare Forum v. Union of India, [1996] AIR SC 2715

[vii] Supra note 5, Art. 51(5).

[viii] P.W. Birnie & A.E. Boyle, International Law and The Environment (2^nd Edition Oxford University Press, at 10).

[ix] Ibid.

[x] Ibid.

[xi] Ibid.

Law emerges from the cultural traditions and moral and religious values of each society. These traditions and values continue to impact the development of legal norms. In the context of environmental protection, cultures, religions and legal systems throughout the world contain elements that respect and seek to conserve the natural bases of life, maintaining concepts that can enhance and enrich the development of modern environmental law.

Religious Traditions

Beliefs supportive of environmental protection can be found in religious traditions from around the World representatives of Baha’ism, Buddhism, Christianity, Daoism, Hinduism, Islam, Jainism, Judaism, Shintoism, Sikhism, and Zoroastrianism who belong to the Alliance of Religions and Conservation, a non-governmental organization, and have found common ground in religious traditions for stewardship of the earth.

Ancient Buddhist chronicles, dating to the third century B.C. record a sermon on Buddhism in which the son of the Emperor Asoka of India stated that, “the birds of the air and the beasts have as equal a right to live and move about in any part of the land as thou. The land belongs to the people and all living beings; thou art only the guardian of it.”[i] Subsequently, the King initiated a legal system that continued to exist into the eighteenth century providing sanctuaries for wild animals.

Certain passages in the Judeo-Christian texts specify that humans do not own the earth and its resources. The Jewish law provided for conservation of birds (Deut. 22:6-7) protection of trees during wartime (Deut. 20:19), and regulated the disposal of human waste (Deut. 23:13). The Christian tradition allows that man’s dominion over nature includes a competence to use and manage the world’s resources in the interests of all, being ready to help others in case of necessity. Individual title thus imposes a responsibility and a trust.

In 1983, Muslim experts undertook a study of the relationship between Islam and environmental protection[ii]. The results underscored that man is a mere manager of the earth and not a proprietor; a beneficiary and not a disposer. Man has been granted inheritance to manage and utilize the earth for his benefit, and for the fulfillment of his interests. He therefore has to keep, maintain and preserve it honestly, and has to act within the limits dictated by honesty. Each generation is entitled to use nature to the extent that it does not disrupt or upset the interests of future generations. Islamic principles thus envisage the protection and the conservation of basic natural elements, making protection, conservation and development of the environment and natural resources a mandatory religious duty of every Muslim. In a case, the Pakistani Court analyzed the fact that Islamic Law prohibiting unnecessary hunting and killing of birds and animals when a constitutional petition sought an order to ban various hunts under Articles 18 and 199 of the Constitution[iii]. The court agreed that unnecessary hunting and killing is against the injunctions of Islam and the Constitution, but found that a blanket prohibition for hunting or killing all animals and birds could not be granted.

Traditional Communities

Many traditional communities, forest dwellers, and subsistence hunting and farming communities have long engaged in sustainable practices and developed unique knowledge about their environments and their resources. Examples include the irrigation practices of the Inca, the forest gardens of the hill country of Sri Lanka and the practices[iv]. African traditional wisdom, Melanesian, native Australian, Polynesian, Asian, Amerindian and early European traditions all contain principles relevant to environmental justice and sustainable development. In addition, many traditional societies have a unique relationship with the land, which they view as capable of use only, not ownership. Some view the earth in its entirety as a living organism capable of injury and hurt. Areas or resources may be protected by being designated as sacred or taboo.

Many indigenous people have a special relationship with the land and the environment in which they live. As noted by the UN Special Rapporteur Ms. Fatma Zohra Ksentini: in nearly all indigenous cultures, the land is revered; “Mother Earth” is the core of their culture. The land is the home of the ancestors, the provider of everyday material needs, and the future held in trust for coming generations.

According to the indigenous view, land should not be torn open and exploited–this is a violation of the Earth–nor can it be bought, sold or bartered. Furthermore, indigenous peoples have, over a long period of time, developed successful systems of land use and resource management. These systems, including nomadic pastoralism, shifting cultivation, various forms of agro-forestry, terrace agriculture, hunting, herding and fishing, were for a long time considered inefficient, unproductive and primitive.

However, as world opinion grows more conscious of the environment and particularly of the damage being done to fragile habitats, there has been a corresponding interest in indigenous land-use practices. The notion of sustainability is the essence of both indigenous economies and their cultures.

At the international level, ILO Convention No.169 on Indigenous Peoples and Article 8 of the Convention on Biological Diversity contain provisions protecting the traditional lifestyles and knowledge of indigenous peoples and local communities National or local laws and policies may protect or may adversely affect marginalized and disadvantaged communities, especially indigenous or tribal communities following traditional life styles. In some instances, indigenous people have been forced from their traditional lands to make way for development projects, or have found that resources have been exploited, including deforestation of their traditional lands. Some indigenous people have seen their traditional lands declared protected areas where they are no longer permitted to live.

Enforcing traditional laws and norms that guarantee or protect the land and resource rights of such communities has been an important means of ensuring environmental protection in some jurisdictions. There are examples of cases where indigenous lands have been protected as public goods with a special protection regime; any alteration of the native territories and of the nearby water resources violates the spirit and the letter of the constitutional laws.[v]

At the same time, the practices of indigenous communities may conflict with modern laws to protect particular areas or species. Indigenous populations often retain the right to continue subsistence hunting of endangered species such as polar bears, seals, and whales captured by traditional means, but quotas on takings and restrictions on commercial use may be imposed. When the use of animals, plants or sites is based upon religious beliefs as well as traditional culture, courts will often be asked to apply constitutional or other legal protections of religious liberty pursuant to which indigenous people may under some circumstances be exempted from the application of environmental laws.

The judiciary in various countries has at times drawn upon its national or cultural heritage to develop and apply principles that enhance environmental justice and sustainable development. The extent to which such considerations can be taken into account is necessarily a function of the law and jurisprudence of each jurisdiction, but recent national and international case law provides examples where current environmental norms have been interpreted in the light of traditional wisdom[vi].

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[i] The Mahavamsa, or the Great Chronicle of Ceylon, Chap. 14, quoted in I.C.J., Case Concerning the

Gabçikovo-Nagymaros Project on the Danube, Sept. 25, 1997, Sep. Op. of Judge C. Weeramantry, n. 44

[ii] Islamic Principles for the Conservation of the Natural Environment (IUCN Environmental Policy and Law

Paper 20, 1983).

[iii] M.D. Tahir v. Provincial Government & Others, 1995 CLC 1730

[iv] Abdikadir Sheikh Hassan and others v. Kenya Wildlife Service (High Ct. Kenya, Civil Case No.

2059/1996)

[v] Raul Arturo Rincon Ardila v. the Republic of Colombia (Constitutional Court, April 9, 1996) and Ministerio

Publico v Federal Union of Brazil (Fed. Court, State of Mato Grosso, 1998)

[vi] The separate opinion of Judge Weeramantry, in the Gabcikovo-Nagymaros Case, and Bulankulama v. The

Secretary, Min. of Industrial Development (the Eppawela case).

What is International Environmental Law?

Is Environmental Law a self-contained discipline? Or does it have its own sources and methods of law-making deriving from principles peculiar or exclusive to environmental concerns?

 

A number of preliminary problems arise in any attempt to identify “international environmental law”. Some scholars have avoided the use of the term, arguing that there is no distinct body of international environmental law with its own sources and methods of law-making deriving from principles peculiar or exclusive to environmental concerns. Rather, they stress that such relevant law as does exist originates from the application of general rules and principles of classical or general international law and its sources.

 

Thus international environmental law is nothing more, or less, than the application of international law to environmental problems.

 

Whatever the case may be, at this juncture, it should be noted that this over-emphasis on the role of general International law will not have the worsening effect on the environmental problems since the traditional legal order of the environment is essentially a laissez-faire system oriented toward the unfettered freedom of states.

 

The next issue is verifying whether currently there is a body of law more specifically aimed at protecting the environment or not?

 

While it is unquestionably correct that international environmental law is merely part of international law as a whole, rather than some separate, self-contained discipline, and no serious lawyer would suggest otherwise, the problem with over-emphasizing the role of general international law, as one writer points out, has been that the traditional legal order of the environment is essentially a laissez-faire system oriented toward the unfettered freedom of states. Such limitations on freedom of action as do exist have emerged in an ad hoc fashion and have been formulated from perspectives other than environmental.[ii] To try to overcome these inadequacies, as environmental problems have worsened, it has become necessary to develop a body of law more specifically aimed at the protection of the environment.

 

A study of contemporary international environmental law thus requires us to consider both this new body of specifically environmental law and the application of general international law to environmental problems. Moreover, international environmental law also includes not only public international law, but also relevant aspects of private international law, and in some instances has borrowed heavily from national law.

 

Now, taking the above facts for granted, let us proceed to address issues in regard to how to define International Environmental Law.

 

International Environmental law is thus used simply as a convenient way to encompass the entire corpus of international law, public and private, relevant to environmental issues or problems, in the same way as the use of the terms law of the sea, Human Right law, and International Economic Law is widely accepted.

It is not intended thereby to indicate the existence of some new discipline based exclusively on environmental perspectives and strategies, though these have played an important role in stimulating legal developments in this field, as we shall observe. It has become common practice to refer to international environmental law in this way.

 

What is National Environmental Law?

In the context of the Ethiopian legal system, National environmental law includes the provisions concerning the environment in the 1995 FDRE constitution; different environmental treaties ratified by the House of Representatives according to Art. 9 (4) of our constitution and all laws (federal and regional) concerned with the environment (Forestry, Land, Water use and other sectoral laws).

 

Factors that Gave Rise to Environmental Law: National and International Perspective

 

At this point before we try to see the evolution of environmental law both at international and national levels; it would be appropriate to see the factors that gave raise to their emergence.  Accordingly, many environmentalists agree that the following factors gave rise to the emergence of environmental law:[iii]

 

First is the existence of an extensive range of environmental problems.

These include atmospheric pollution, marine pollution, global warming and ozone depletion, the danger of nuclear and other extra-hazardous substances and threatened wildlife species. Such problems have an international dimension in two obvious respects.

(1). Pollution generated from within a particular state often has a serious impact upon other countries. The prime example would be acid rain, whereby chemicals emitted from factories rise in the atmosphere and react with water and sunlight to form acids. These are carried in the wind and fall eventually to earth in the rain, often thousands of miles away from the initial polluting event.

(2). The fact that these environmental problems cannot be resolved by states acting individually. Accordingly, co-operation between the polluting and polluted state is necessitated.

However, the issue becomes more complicated in those cases where it is quite impossible to determine from which country a particular form of environmental pollution has emanated. This would be the case, for example, with ozone depletion.

 

Second, the question of the relationship between the protection of the environment and the need for economic development is another factor underpinning the evolution of environmental law.

The correct balance between development and environmental protection is now one of the main challenges facing the international community and reflects the competing interests posed by the principle of state sovereignty on the one hand and the need for international co-operation on the other. It also raises the issue as to how far one takes into account the legacy for future generations of activities conducted at the present time or currently planned.

 

Historical Development of International Environment Law

 

Throughout history national governments have passed occasional laws to protect human health from environmental contamination. For example, in about 80 AD the Senate of Rome passed legislation to protect the city’s supply of clean water for drinking and bathing. In the 14^th century England prohibited both the burning of coal in London and the disposal of waste into waterways.

 

In 1681 the Quaker leader of the English colony of Pennsylvania, William Penn, ordered that one acre of forest be preserved for every five acres cleared for settlement, and, in the following century, Benjamin Franklin led various campaigns to curtail the dumping of waste. In the 19^th century, in the midst of the Industrial Revolution, the British government passed regulations to reduce the deleterious effects of coal burning and chemical manufacture on public health and the environment.

Yet, despite this long history of environmental legislation, the field of environmental law is remarkable for its relative youth and its rapid rise to prominence beginning in the late 20^th century.

Prior to the 20^th century, there were few multilateral or bilateral international environmental agreements. The accords that were reached focused primarily on boundary waters, navigation, and fishing rights along shared waterways and ignored pollution and other ecological issues. In the early 20^th century, conventions to protect commercially valuable species were reached, including the Convention for the Protection of Birds Useful to Agriculture (1902), signed by 12 European governments; the Convention for the Preservation and Protection of Fur Seals (1911), concluded by the United States, Japan, Russia, and the United Kingdom; and the Convention for the Protection of Migratory Birds (1916), adopted by the United States and the United Kingdom (on behalf of Canada) and later extended to Mexico in 1936.

 

Beginning in the 1960s environmentalism became an important political and intellectual movement in the West. In the United States biologist Rachel Carson’s Silent Spring (1962), a passionate and persuasive examination of chlorinated hydrocarbon pesticides and the environmental damage caused by their use, led to a reconsideration of a much broader range of actual and potential environmental hazards. In subsequent decades the U.S. government passed an extraordinary number of environmental laws—including acts addressing solid-waste disposal, air and water pollution, and the protection of endangered species—and created an Environmental Protection Agency to monitor compliance with the laws. These new environmental laws dramatically increased the national government’s role in an area previously left primarily to state and local regulation.

 

In Japan rapid post-World War II reindustrialization was accompanied by the indiscriminate release of industrial chemicals into the human food chain in certain areas. In the city of Mina Mata, for example, large numbers of people suffered mercury poisoning after eating fish that had been contaminated with industrial wastes. By the early 1960s the Japanese government had begun to consider a comprehensive pollution-control policy, and in 1967 Japan enacted the world’s first such overarching law, the Basic Law for Environmental Pollution Control. Not until the end of the 20^th century was Mina Mata declared mercury-free.

 

Following the United Nations Conference on the Human Environment, held in Stockholm in 1972, the UN established the United Nations Environment Programme (UNEP) as the world’s principal international environmental organization. Although UNEP oversees many modern-day agreements, it has little power to impose or enforce sanctions on non-complying parties.

 

Nevertheless, a series of important conventions arose directly from the conference, including the London Convention on the Prevention of Pollution by Dumping of Wastes or Other Matter (1972) and the Convention on International Trade in Endangered Species (1973).

 

Until the Stockholm conference, European countries generally had been slow to enact legal standards for environmental protection though there had been some exceptions, such as the passage of the conservationist Countryside Act in the United Kingdom in 1968. In October 1972, only a few months after the UN conference, the leaders of the European Community (EC) declared that the goal of economic expansion had to be balanced with the need to protect the environment. In the following year the European Commission, the EC’s executive branch, produced its first Environmental Action Programme, and since that time European countries have been at the forefront of environmental policy making. In Germany, for example, public attitudes toward environmental protection changed dramatically in the early 1980s when it became known that many German forests were being destroyed by acid rain.

 

The environmentalist German Green Party, founded in 1980, won representation in the Bundestag (national parliament) for the first time in 1983 and since then has campaigned for stricter environmental regulations. By the end of the 20^th century, the party had joined a coalition government and was responsible for developing and implementing Germany’s extensive environmental policies. As a group Germany, The Netherlands, and Denmark—the so-called “green troika”—established themselves as leading innovators in environmental law.

 

During the 1980s the “trans-boundary effects” of environmental pollution in individual countries spurred negotiations on several international environmental conventions. The effects of the 1986 accident at the nuclear power plant at Chernobyl in Ukraine (then part of the Soviet Union) were especially significant. European countries in the pollution’s downwind path were forced to adopt measures to restrict their populations’ consumption of water, milk, meat, and vegetables. In Austria traces of radiation were found in cow’s milk as well as in human breast milk. As a direct result of the Chernobyl disaster, two international agreements—the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of Nuclear Accident or Radiological Emergency, both adopted in 1986 were rapidly drafted to ensure notification and assistance in the event of a nuclear accident. In the following decade a Convention on Nuclear Safety (1994) established incentives for countries to adopt basic standards for the safe operation of land-based nuclear power plants.

 

There are often conflicting data about the environmental impact of human activities, and scientific uncertainty often has complicated the drafting and implementation of environmental laws and regulations, particularly for international conferences attempting to develop universal standards. Consequently, such laws and regulations usually are designed to be flexible enough to accommodate changes in scientific understanding and technological capacity. The Vienna Convention for the Protection of the Ozone Layer (1985), for example, did not specify the measures that signatory states were required to adopt to protect human health and the environment from the effects of ozone depletion, nor did it mention any of the substances that were thought to damage the ozone layer.

 

Similarly, the Framework Convention on Climate Change, or Global Warming Convention, adopted by 178 countries meeting in Rio de Janeiro at the 1992 United Nations Conference on Environment and Development (popularly known as the “Earth Summit”), did not set binding targets for reducing the emission of the “greenhouse” gasses thought to cause global warming.

 

In 1995 the Intergovernmental Panel on Climate Change, which was established by the World Meteorological Organization and UNEP to study changes in the Earth’s temperature, concluded, “The balance of evidence suggests a discernible human influence on global climate.” Although cited by environmentalists as final proof of the reality of global warming, the report was faulted by some critics for relying on insufficient data, for overstating the environmental impact of global warming, and for using unrealistic models of climate change. Two years later in Kyoto, Japan, a conference of signatories to the Framework Convention on Climate Change adopted the Kyoto Protocol, which featured binding emission targets for developed countries, a system whereby developed countries could obtain credit toward their emission targets by financing energy-efficient projects in less-developed countries (known as “joint implementation”), clean-development mechanisms, and emissions trading.

 

Historical Development of Environmental Law in Ethiopia

 

One could say environmental issues came to the forefront in Ethiopia at the wake of 1974 and 1984 draught because it was believed that the draught was the result of agricultural degradation or environmental mismanagement.

 

But, here, it is good to keep in mind that this doesn’t mean that there was no environmental management before the above mentioned draught. Rather, there were fragmented environmental management activities in Ethiopia like the establishment of Semen National Park, Awash National Park and other wildlife protections though these were individual cases and nota  holistic approach to the problem.

 

Environmental management was also practiced before the above-mentioned draughts at the community level though it was not reflected in the drafting of the law. It is just like soil preservation methods and others. Usually the practice was Top down Approach rather than bottom up approach.

 

The other reason for the coming to the forefront of environmental issues (other than the draught )was international pressure from the international community, like the Rio Conference in 1992 (since Ethiopia was one of the participants of the conference). Currently, we find a legal basis for national environmental law in our FDRE Constitution.

For example, the FDRE Constitution reads as:

1). All persons have the right to clean and healthy environment.

2). All persons who have been displaced or whose livelihoods have been adversely affected as a result of state programmes have the right to commensurate monetary or alternative means of compensation, including relocation with adequate state assistance.

 

Equally Art.92 of the same constitution further provides that:

1). The government shall endeavor to ensure that all Ethiopians live in a clean and healthy environment.

2). The design and implementation of programmes and projects of development shall not damage or destroy the environment.

3). People have the right to full consultation and to the expression of views in planning and implementation of environmental policies and projects that affect them directly.

4). The government and citizens have the duty to protect the environment.

 

The Environmental Policy of Ethiopia (EPE) is taken from Vol.II of the Conservation Strategy of Ethiopia (CSE) and is sought to guide all environmental related activities that are undertaken or must be undertaken by the Environmental Protection Authority and other sectors.

 

The CSE document consists of five volumes:. These are: Vol. I, the Natural Resources Base, Vol. II, Policy and Strategy, Vol. III, Institutional Frame Work, Vol. IV the Action Plan and Vol. V, Compilation of Investment Programmes.

 

EPE took 10 years to develop. It was approved by the Council of Ministers of the Federal Democratic Republic of Ethiopia on April 2, 1997. It was externally driven by the World Bank. It was consultative in identification of problems with the concerned bodies like investment office and others. Currently every region in Ethiopia has its own Conservation Strategy.

 

The policy has a Policy Goal, Objectives and Guiding Principles.

The overall policy goal is:

To improve and enhance the health and quality of life of all Ethiopians and to promote sustainable social and economic development through the sound management and use of natural, human-made and cultural resources and the environment as a whole so as to meet the needs of the present generation without compromising the ability of future generations to meet their own needs.

 

EPE also has specific policy objectives and key guiding principles. Underlying these broad policy objectives is a number of key principles. Establishing and clearly defining these guiding principles is very important, as they will shape all subsequent policy, strategy and programme formulations and their implementation. Sectorial and cross-sectorial policies and environmental elements of other macro policies will be checked against these principles to ensure consistency.

 

Levels of Environmental Law

 

Environmental law exists at many levels and is only partly constituted by international declarations, conventions, and treaties. The bulk of environmental law is statutory—i.e., encompassed in the enactments of legislative bodies—and regulatory—i.e., generated by agencies charged by governments with the protection of the environment.

 

In addition, many countries have included some right to environmental quality in their national constitutions. Since 1994, for example, environmental protection has been enshrined in the German Grundgesetz (“Basic Law”), which now states that the government must protect for “future generations the natural foundations of life.” Similarly, the Chinese constitution guarantees to each citizen a “right to life and health” and requires the state to ensure “the rational use of natural resources and protects rare animals and plants”; the South African constitution recognizes a right to “an environment that is not harmful to health or well-being; and to have the environment protected, for the benefit of present and future generations”; the Bulgarian constitution provides for a “right to a healthy and favorable environment, consistent with stipulated standards and regulations”; and the Chilean constitution contains a “right to live in an environment free from contamination.”

 

Much environmental law also is embodied in the decisions of international, national, and local courts. Some of it is manifested in arbitrated decisions, such as the Trail Smelter arbitration (1941), which enjoined the operation of a smelter located in British Columbia, Canada, near the international border with the U.S. state of Washington and held that “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein.”

 

The Role of International and National Laws in the Protection of the Environment

 

A law is society’s system for weighing different interests, goals, and values, and for making decisions when conflicting interests cannot be reconciled in other ways. It is based mainly on political decisions and guidelines in the form of legislation and on society’s general values or ethical norms. So, a law is formed by the legal system itself, with its own norms and values.

 

By the legal system it meant, institutions or arenas dominated by lawyers and legal methodology: legal doctrine and education, and legal practice within and outside the courts.[x]

The role of the law in protecting the environment is not fundamentally different in both international and national law. Accordingly,

 

First, it provides mechanisms and procedures for negotiating the necessary rules and standards, settling disputes, and supervising implementation and compliance with treaties and customary rules.

Second, it is concerned with regulating environmental problems, setting common standards and objectives for prevention or mitigation of harm, and providing a flexible rule-making process that allows for easy and regular amendment in the light of technological developmenst and advances in scientific and other knowledge.

Third, reinstatement of or compensation for environmental damage is a more limited but still important function.

It is more limited because only those who suffer damage can secure such redress and also because not all-environmental damage is necessarily capable of reinstatement or has an economically assessable value.

Finally, it benefits or keeps accountable individuals.

 

Does the Existing Environmental Law Adequately Protect the Environment?

 

This is an important question to which there is no easy or single answer. Whether the protection offered to the environment by both international and national law is adequate in scope and stringency is of course a value judgment, which will depend on the weight given to the whole range of competing social, economic, and political considerations.

 

As far as measuring the effectiveness of the law in protecting the environment is concerned, much depends on the criteria used.

Effectiveness has multiple meanings:

 

First, it may mean solving the problem for which the regime was established (for example, avoiding further depletion of the ozone layer);

Second, achievement of goals set out in the constitutive instrument (for example, attaining a set percentage of sculpture emission);

Third, altering behavior pattern (for example, moving from use of fossil fuels to solar or wind energy production);

Finally, enhancing national and international compliance with rules and international agreements.

By way of conclusion we have to keep in mind that the effectiveness of different regulatory and enforcement techniques are largely determined by the nature of the problem. What works in one case may not work in others.