By Bakampa Brian Baryaguma
[Dip. Law (First Class)–LDC; Cert. Oil & Gas–Mak; LLB
(Hons)–Mak]
bakampasenior@gmail.com;
www.huntedthinker.blogspot.ug
July 2022
1.
Introduction
Law is a very important tool in human affairs. Among others, it is
used to protect the environment and promote development, at both the national
and international levels. This essay studies international laws relevant to the
environment and analyzes their role in protecting the environment while at the
same time ensuring that development is achieved.
1.1.
What is Environmental Law?
International environmental law is the body of international law
that concerns the protection of the global environment.[1] It is the
set of agreements and principles that reflect the world's collective effort to
manage the effects of human activities on our environment by resolving the most
serious environmental problems, including climate change, ozone depletion, air and
water pollution,
forests and wildlife, hazardous waste, agricultural practices, wetlands
and land-use planning, among others. They are the standards that
governments establish to manage natural resources and environmental quality.
The body of environmental law includes not only the text of these laws but also
the regulations that implement and the judicial decisions that interpret this
legislation. This body of laws is pieced together by principles agreed upon
among nations to inform and streamline the cause for environmental protection.
1.2.
What is Sustainable Development?
On 4 December 1986, the United Nations General Assembly recognized
development as a fundamental human right. The General Assembly confirmed, “…
that the right to development is an inalienable human right …”[2] and
proclaimed that by virtue of this right, “… every human person and all peoples
are entitled to participate in, contribute to, and enjoy economic, social,
cultural and political development, in which all human rights and fundamental
freedoms can be fully realized.”[3] This recognition was entrenched in
the 1994 report of the Secretary-General of the United Nations (hereinafter
“the U.N.”) entitled, An Agenda for
Development, stating frankly that, “Development is a fundamental human
right.”[4]
But for development to be truly meaningful and beneficial, it must
be long-lasting and sustained. Indeed, the 1987 Report of the World Commission on Environment and Development: Our
Common Future (hereinafter “The 1987 Brundtland Commission Report”) observed
that, “Humanity has the ability to make development sustainable …,”[5]
thereby giving rise to the concept of sustainable
development. In this report, the Brundtland Commission stated that,
“Sustainable development is development that meets the needs of the present
without compromising the ability of future generations to meet their own needs.”[6]
The Commission observed that the concept of sustainable development,
… contains within it two key concepts:
·
the concept of 'needs', in
particular the essential needs of the world's poor, to which overriding
priority should be given; and
·
the idea of limitations imposed
by the state of technology and social organization on the environment's ability
to meet present and future needs.[7]
It should be noted that this Commission perceived human development
as being wholesome in the sense that it is both economic and social, “…
involve[ing] a progressive transformation of economy and society,” with, “…
development policies pay[ing] attention to such considerations as changes in
access to resources and in the distribution of costs and benefits.”[8]
Further, the Commission observed that, “The satisfaction of human needs and
aspirations[9] is the major objective of development. … A world in
which poverty and inequity are endemic will always be prone to ecological and other
crises. Sustainable development requires meeting the basic needs of all and
extending to all the opportunity to satisfy their aspirations for a better
life.”[10]
The global policy direction for sustainable development today lies
in the 17 Sustainable Development Goals of the United Nations. Set up and
adopted in 2015 by the United Nations General Assembly, the Goals’ mission
statement is, “A blueprint to achieve a better and more sustainable future for
all people and the world by 2030.”[11] These Goals are:–
Goal 1 – End poverty in all its forms everywhere.
Goal 2 – End hunger, achieve food security and improved nutrition
and promote sustainable agriculture.
Goal 3 – Ensure healthy lives and promote wellbeing for all at all
ages.
Goal 4 – Ensure inclusive and equitable quality education and promote
lifelong learning opportunities for all.
Goal 5 – Achieve gender equality and empower all women and girls.
Goal 6 – Ensure availability and sustainable management of water and
sanitation for all.
Goal 7 – Ensure access to affordable, reliable, sustainable and modern
energy for all.
Goal 8 – Promote sustained, inclusive and sustainable economic growth,
full and productive employment and decent work for all.
Goal 9 – Build resilient infrastructure, promote inclusive and sustainable
industrialization and foster innovation.
Goal 10 – Reduce inequality within and among countries.
Goal 11 – Make cities and human settlements inclusive, safe, resilient
and sustainable.
Goal 12 – Ensure sustainable consumption and production patterns.
Goal 13 – Take urgent action to combat climate change and its impacts.
Goal 14 – Conserve and sustainably use the oceans, seas and marine
resources for sustainable development.
Goal 15 – Protect, restore and promote sustainable use of terrestrial
ecosystems, sustainably manage forests, combat desertification, and halt and reverse
land degradation and halt biodiversity loss.
Goal 16 – Promote peaceful and inclusive societies for sustainable
development, provide access to justice for all and build effective, accountable
and inclusive institutions at all levels.
Goal 17 – Strengthen the means of implementation and revitalize the
Global Partnership for Sustainable Development.
1.3.
Nexus Between International Environmental Law and Sustainable
Development
Development and the environment are co-relative and therefore the one
cannot be separated from the other. They are literally sides of the same coin.
This is clear from the U.N. General Assembly’s proclamation that, “The human
right to development also implies the full realization of the right of peoples
to self-determination, which includes … the exercise of their inalienable right
to full sovereignty over all their natural wealth and resources.”[12]
Further, the Rio Declaration on
Environment and Development[13] (hereinafter “the Rio Declaration”) links
sustainable development with environment, stating, under Principle 1, that, “Human beings are at the centre of concerns for sustainable
development. They are entitled to a healthy and productive
life in harmony with nature.”
Furthermore, the connection between environmental protection and
sustainable development can also be inferred from the caution of the 1987 Brundtland
Commission Report that, “The concept of sustainable development does imply
limits - not absolute limits but limitations imposed by the present state of technology
and social organization on environmental resources and by the ability of the
biosphere to absorb the effects of human activities.”[14] Therefore,
environmental protection and sustainable development are mutually reinforcing
and must go hand-in-hand. In light of this reality, Nima Norouzi and Muhammad
Sheikhi say that, “… sustainable development is one of the most fundamental
issues of international environmental law today, and without a doubt, it can be
named the main goal of the development of international environmental law.
Attention to sustainable development has been addressed in several
international instruments and treaties on the environment.”[15]
2.
Environmental Protection vis-à-vis Sustainable Development: an
Equation Needing Balancing and the Role of International Environmental Law
Protecting the environment and ensuring sustainable development
are twin imperatives of the modern international order. The two pose an
equation-like challenge, with such serious issues like how the two are to be
harmonized and attained at the same time. Arosh Martin gives the answer to this,
suggesting as follows:
… the transition of environmental law to a law to achieve
sustainable development can best be made by infusing the main body of
development with ecological principles. … By tailoring environmental law more
closely to the patterns of human behaviour, law administration and enforcement
will be more efficient and environmental law will blend with other areas of
law, thus strengthening respect for and effectiveness of the law to fulfill the
SDG 2030 Agenda.[16]
Accordingly, as the ensuing discussion shows, the basic principles
of international environmental law that streamline the cause for environmental
protection can also be used for championing the agenda for sustainable
development.
A.
Duty to Cooperate
The duty to cooperate denotes
good neighborliness and stems from
Article 1 of the Charter of the United
Nations, 1945 (hereinafter “the U.N. Charter”), which concerns the purposes
of the U.N., including the purpose “To achieve international cooperation in
solving international problems of an economic, social, cultural, or
humanitarian character ….”[17] This duty was candidly recognized in
the 1970 Declaration of Principles of
International Law concerning Friendly Relations and Cooperation among States in
accordance with the Charter of the United Nations stating that, “States
have the duty to co-operate with one another, irrespective of the differences
in their political, economic and social systems, in the various spheres of
international relations, in order to maintain international peace and security
and to promote international economic stability and progress, the general
welfare of nations and international co-operation free from discrimination
based on such differences.[18]
Much of international
environmental law relates to a general obligation of states to cooperate in
investigating, identifying and avoiding environmental harms. The 1972 U.N. Declaration on the Human Environment[19]
(hereinafter “the Stockholm Declaration”) seized on the duty to cooperate as a
principle of international environmental law, under Principle 24, as follows,
International matters
concerning the protection and improvement of the environment should be handled
in a co-operative spirit by all countries, big or small, on an equal footing.
Co-operation through multilateral or bilateral arrangements or other
appropriate means is essential to effectively control, prevent, reduce and
eliminate adverse environmental effects resulting from activities conducted in
all spheres in such a way that due account is taken of the sovereignty and
interests of all States.
The duty to cooperate or
good neighborliness is equally pertinent for sustainable development as much as
it is for achieving sustainable development. Hence, Goal 17 of the Sustainable Development Goals addresses partnership
for the Goals, by advocating strengthening the means of implementation and
revitalizing the Global Partnership for Sustainable Development, as supported,
complemented and contextualized by the Addis
Ababa Action Agenda of the Third International Conference on Financing for
Development[20] that outlines concrete policies and actions relating
to domestic public resources, domestic and international private business and
finance, international development cooperation, international trade as an
engine for development, debt and debt sustainability, addressing systemic
issues and science, technology, innovation and capacity-building, and data, monitoring
and follow-up.[21]
B.
Duty to Avoid Environmental Harm
International
environmental law is originally associated with the principle that states must
not permit the use of their territory in such a way as to injure the territory
of other states.[22] Today, it is a widely accepted principle of
international environmental law that states are required to ensure that
activities within their jurisdiction or control do not damage the environment
of other states or the global commons. Principle 21 of the Stockholm
Declaration captures this obligation, providing that,
States have, in
accordance with the Charter of the United Nations and the principles of
international law ... the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits
of national jurisdiction.
Principle 2 of the Rio
Declaration[23] is to the same effect.
The rule against causing
environmental harm is often associated with the Trail Smelter Case (United States and Canada)[24] of
1935. This was an international arbitration matter between Canada and the
United States of America, in which fumes from a Canadian smelter were damaging
the property and health of U.S. citizens. After the two countries agreed to
arbitration, the U.S.-Canada International Joint Commission concluded that, “…
under the principles of international law, … 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, when the
case is of serious consequence and the injury is established by clear and
convincing evidence.”[25] Although the Trail Smelter case involved a closely circumscribed arbitration
proceeding, it is nevertheless cited frequently as the basis for the duty to avoid
environmental harm in another state or the global commons.
Part of the duty to
avoid harm is the requirement to take all practicable steps to avoid harm. This
is captured, for instance, in Article 194 of the 1982 United Nations Convention on the Law of the Sea which requires states
to, “… take, individually or jointly as appropriate, all measures consistent
with this Convention that are necessary to prevent, reduce and control
pollution of the marine environment from any source, using for this purpose the
best practicable means at their disposal and in accordance with their
capabilities, and they shall endeavor to harmonize their policies in this
connection.” Similarly, in an effort to reduce damage from environmental
pollution, Article 2 (8) of the 1989 Basel
Convention Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and their Disposal (hereinafter “the 1989 Basel Convention”)
requires the, “environmentally sound management of hazardous wastes and other
wastes,” which it defines as, “taking all practicable steps to ensure that
hazardous wastes or other wastes are managed in a manner which will protect
human health and the environment against the adverse effects which may result
from such wastes.” This reliance on a standard of “practicable” steps suggests
that the duty to prevent harm may not be absolute, but requires at least that states
diligently and in good faith make all reasonable efforts to avoid environmental
damage.
The duty to avoid
environmental harm is buttressed by principles of pollution prevention and
waste minimization, taking precaution and conducting environmental impact
assessment.
1.
Pollution Prevention and
Waste Minimization
This principle is premised on the realization that avoiding or
reducing pollution is almost always less expensive than attempting to restore a
contaminated area. It is adopted in many conventions notably the Stockholm
Declaration,[26] which sets it out in Principle 6 in these terms: “The
discharge of toxic substances or of other substances and the release of heat,
in such quantities or concentrations as to exceed the capacity of the
environment to render them harmless, must be halted in order to ensure that
serious or irreversible damage is not inflicted upon ecosystems.”
Pollution prevention entails minimizing waste through design
changes, input substitutions and other clean production methods, in recognition
of the fact that designing a product or process to minimize waste production by
reducing material inputs and waste discharges is often more cost effective than
relying on end-of-pipe technologies
or disposal options. In Germany, for example, automobile manufacturers are
designing their automobiles to reduce the amount of waste when the car is
scrapped, by designing each component of the automobile to separate easily from
the whole and codifying the components to facilitate recycling and re use.[27]
2.
Precautionary Principle
The precautionary
principle is one of the most important general environmental principles for avoiding
environmental damage and achieving sustainable development. It is applicable in
a variety of contexts from protecting endangered species to preventing
pollution and underlies a number of international legal instruments.
Principle 15 of the Rio
Declaration,[28] enunciates the precautionary principle providing
that, “In order to protect the environment, the precautionary approach shall be
widely applied by States according to their capabilities. Where there are
threats of serious or irreversible damage, lack of full scientific certainty
shall not be used as a reason for postponing cost effective measures to prevent
environmental degradation.”
The precautionary
principle evolved from the growing recognition that scientific certainty often
comes too late to design effective legal and policy responses to potential
environmental threats. In essence, it switches the burden of proof necessary
for triggering policy responses. The precautionary principle can have
far-reaching implications. For example, implementing the precautionary
principle in the context of pollution prevention led the UNEP Governing Council
to urge countries to adopt alternative Clean Production methods including raw
material selection, product substitution, and clean production technologies and
processes as a means of implementing a precautionary principle in order to
promote production systems which minimize or eliminate the generation of
hazardous wastes.
This preference for
clean production methods now appears in international environmental treaties as
well. For example, Article 4 (3) (f) of the 1991 Bamako Convention on the Ban of the Import to Africa and the Control of
Transboundary Movement and Management of Hazardous Wastes within Africa requires
that,
Each Party shall strive
to adopt and implement the preventive, precautionary approach to pollution
problems which entails, inter alia, preventing the release into the
environment of substances which may cause harm to humans or the environment
without waiting for scientific proof regarding such harm. The Parties shall
co-operate with each other in taking the appropriate measures to implement the
precautionary principle to pollution prevention through application of Clean
Production methods, rather than the pursuit of a permissible emissions approach
based on assimilative capacity assumptions.
3.
Environmental Impact
Assessment
Environmental impact
assessment (EIA) is a process for examining, analyzing and assessing proposed
activities in order to maximize the potential for environmentally sound and
sustainable development. Article 1 (vi) of the 1991 Convention on Environmental Impact Assessment in a Transboundary
Context (hereinafter “the EIA Convention”) defines EIA as meaning, “… a
national procedure for evaluating the likely impact of a proposed activity on
the environment.” The EIA process is designed to ensure that–
(i)
the appropriate government authorities have fully identified and
considered the environmental effects of proposed activities, as well as
alternatives that avoid or mitigate the environmental effects, and
(ii)
affected citizens have an opportunity to understand the proposed
project or policy and to express their views to decision-makers in advance.
Many of these procedures
are becoming recognized in international conventions. For example, Article 14
(1) (a) of the 1992 Convention on
Biological Diversity states that,
Each Contracting Party,
as far as possible and as appropriate, shall introduce appropriate procedures
requiring environmental impact assessment of its proposed projects that are
likely to have significant adverse effects on biological diversity with a view
to avoiding or minimizing such effects and, where appropriate. allow for public
participation in such procedures.
To achieve the
objectives of greater citizen participation and better development decisions,
EIAs begin early in the planning stage. Relevant impacts, mitigation measures,
and alternatives that avoid or minimize impacts are analyzed fully. A draft EIA
detailing the proposed project, the resulting environmental impacts,
alternatives to the project, and potential mitigation options is often be made
available to the public for study and comment. The final EIA then considers
relevant comments and recommends appropriate actions to minimize environmental
damage.
EIAs have also become
increasingly important in the transboundary context. For instance, the EIA
Convention specifies a state’s obligations related to transboundary
environmental impact assessment for the members of the United Nations Economic
Commission for Europe. EIA is also extensively used for investigating and
communicating potential transboundary and global impacts in many contexts. For
example, Article 206 of the United Nations
Convention on the Law of the Sea states this obligation as follows: “When
States have reasonable grounds for believing that planned activities under
their jurisdiction or control may cause substantial pollution of or significant
and harmful changes to the marine environment, they shall, as far as practicable,
assess the potential effects of such activities on the marine environment and
shall communicate reports of the results of such assessments ….”
From the foregoing, it
is very clear that the duty to avoid environmental harm is consistent with the
Sustainable Development Goals, particularly Goal 6 on ensuring availability and
sustainable management of water and sanitation for all); Goal 13 on taking urgent action to combat climate change and its impacts; Goal
14 on conserving and sustainably use the oceans, seas and marine resources for sustainable
development; and Goal 15 on protecting, restoring and promoting sustainable use
of terrestrial ecosystems, sustainably managing forests, combating
desertification, and halting and reversing land degradation and halting biodiversity
loss.
C.
The Duty to Compensate for Harm
The basic rule of State
responsibility in the context of environmental protection can be summarized in
the following way: States are responsible for injuries caused to the environment
of another State or the global commons resulting from violations of a generally
accepted international rule or standard. State responsibility is confirmed in
Principle 21 of the Stockholm Declaration in these terms:
States have, in
accordance with the Charter of the United Nations and the principles of
international law ... the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits
of national jurisdiction.
In order to prove a
state responsibility claim, the following must be proved:
(i)
The environmental damage must result from a violation of
international law. This presents a problem in a relatively new field like
environmental law. Customary international environmental law is only emerging, and
most environmental treaties depend heavily on general obligations of cooperation.
Those with more specific prohibitions often present difficult questions of
proof.
(ii)
A state is responsible both for its own activities and for activities
of private corporations or individuals under its jurisdiction or control. Thus,
even if a state is not directly polluting, it can still be responsible for
failure to stop or control the polluting activities of others. Under this rule,
states may be responsible for not enacting or enforcing necessary environmental
laws, for not terminating dangerous activities, or for letting violations go
unpunished.
(iii)
There must be no justifying circumstances, such as consent by the
affected State or an intervening cause, such as an act of God.
(iv)
The damage must be “significant,” which can present serious
problems of proof and quantification.
State responsibility for
environmental harm is addressed in many treaties. Notably, the 1989 Basel Convention contains, under
Article 12 thereof, makes provision for consultations on liability, stipulating
that, “The Parties shall co-operate with a view to adopting, as soon as
practicable, a protocol setting out appropriate rules and procedures in the
field of liability and compensation for damage resulting from the transboundary
movement and disposal of hazardous wastes and other wastes.”
Underlying the duty to
compensate for harm is the polluter pays principle which holds that the
polluter should bear the expenses of carrying out pollution prevention measures
or paying for damage caused by pollution. Instituting the polluter pays principle
ensures that the prices of goods reflect the costs of producing that good,
including costs associated with pollution, resource degradation, and environmental
harm. Environmental costs are reflected (or “internalized”) in the price of
every good. The result is that goods that pollute less will cost less, and
consumers may switch to less polluting substitutes. This will result in a more efficient
use of resources and less pollution.
The polluter pays
principle has been increasingly accepted as an international environmental
principle and has been explicitly adopted in Principle 16 of the Rio
Declaration which provides that, “National authorities should endeavour to
promote the internalization of environmental costs and the use of economic
instruments, taking into account the approach that the polluter should, in
principle, bear the cost of pollution, with due regard to the public interest
and without distorting international trade and investment.”
3.
Conclusion
That the environment and
development are inextricably linked cannot be overemphasized. Without
sufficient protection being afforded to the environment, development cannot be
sustainable. Equally needing little emphasis is the role of international
environmental law in ensuring environmental protection while achieving
sustainable development. As the law protects the environment, it conversely
promotes sustainable development.
REFERENCES
1.
Prof. Emmanuel Kasimbazi, “Introduction
to International Environmental Law” (2022), at 4. (On file with the author).
According to Prof. Kasimbazi, ibid.,
at 7, “There are about 1000 environmental law treaties in existence today; no
other area of law has generated such a large body of conventions on a specific
topic.”
2.
Preamble to the Declaration on the Right to Development.
3.
Article 1 (1) of the Declaration on the Right to Development.
4.
General Assembly, A/48/935, 6 May 1994,
at 4.
5.
World Commission on Environment and
Development, Report of the World
Commission on Environment and Development: Our Common Future (1987), at 16.
This report is popularly known as the 1987
Brundtland Report, codenamed so after the chairman of the Commission, Dr.
Gro Harlem Brundtland (Mrs.).
6.
Ibid.,
at 41.
7.
Ibid.
8.
Ibid.
9.
The Brundtland Commission ibid., at 41-42, pointed out some of
these as being food, clothing, shelter, jobs and an
improved quality of life generally.
10.
Ibid.,
at 41.
11.
General Assembly Resolution 70/1, 25 to
27 September 2015.
12.
Article 1 (2) of the Declaration on the Right to Development.
13.
General Assembly, Conference 151/26
(Vol. I), 12 August 1992.
14.
World Commission on Environment and
Development, supra note 4, at 16.
15.
Nima Norouzi and Muhammad Sheikhi, “Achieving
Sustainable Development From The Perspective Of International Environmental Law”
EJERE 5 (2021) 1, at 2.
16.
Arosh Martin, “The role of international
environmental law in achieving Sustainable development Goals” ResearchGate (2022), at 2.
17.
Art. 1 (3) of the U.N. Charter.
18.
General Assembly Resolution 2625 (XXV),
24 October 1970.
19.
General Assembly Resolutions 2994/XXVII,
2995/XXVII and 2996/XXII, 15 December 1972.
20.
General Assembly Resolution 69/313, 27
July 2015.
21.
General Assembly, SDGs Resolution, supra
note 10.
22.
Prof. Emmanuel Kasimbazi, supra note 1.
23.
General Assembly, Rio Conference, supra
note 12.
24.
Trail Smelter Arbitration (1941).
Accessed online at https://legal.un.org/riaa/cases/vol_III/1905-1982.pdf,
on 20 June 2022, at 17:37 Hrs.
25.
Ibid.,
at 62.
26.
Declaration
of the United Nations Conference on the Human Environment.
This was a Declaration of the United Nations Conference on the Human
Environment, having met at Stockholm, Sweden, from 5 to 16 June 1972, “… having
considered the need for a common outlook and for common principles to inspire
and guide the peoples of the world in the preservation and enhancement of the
human environment.”
27.
See Hans Wiesmeth, Implementing the Circular Economy for Sustainable Development
(2020).
28.
General Assembly, Rio Conference, supra
note 12.
No comments:
Post a Comment