CHAPTER 1 INTRODUCTION TO ENVIRONMENTAL LAW

1.1 Meaning of “Environment”

A legal definition of the environment helps delineate the scope of the subject, determine the
application of legal rules, and establish the extent of liability when harm occurs. The word
environment is derived from an ancient French word environner, meaning to encircle. By
broadly applying to surroundings, environment can include the aggregate of natural, social
and cultural conditions that influence the life of an individual or community. Thus,
environmental problems can be deemed to include such problems as traffic congestion, crime,
and noise. Geographically, environment can refer to a limited area or encompass the entire
planet, including the atmosphere and stratosphere.1

Of course, defining an Environment is not an easy task. Most treaties, declarations, codes of
conduct, guidelines, etc. don’t attempt to define it directly. No doubt this is because it is
difficult both to identify and to restrict the scope of such an ambiguous term, which could be
used to encompass anything.

Many conventions (like The 1992 Rio Declaration on Environment and Development) avoid
the problem, however, no doubt because, as Caldwell remarks ‘it is a term that everyone
understands and no one is able to define’.2

Some other treaties and other instruments define the environment in different ways
considering the subject matter they want to address. For example, the Declaration of the
1972 Stockholm Conference on the Human Environment (UNCHE) merely referred
obliquely to man’s environment adding that ‘both aspects of man’s environment, the natural
and man-made, are essential for his well-being and enjoyment of basic human rights.
The world commission on environment and development (WCED) relied on an even
more succinct approach; it remarks that ‘the environment is where we live’.

The 1992 Rio Declaration on Environment and Development refers at many points to
environmental needs, environmental protection, and environmental degradation and so on,
but nowhere identifies what these include. Interestingly it eschews the term entirely in
1
Judicial Handbook on Environmental Law (UNEP, 2005).
2
Caldwell, International environmental Policy and Law (1st edn. Durham, NC, 1980), 170.
principle 1, declaring instead that human beings ‘are entitled to a healthy and productive life
in harmony with nature.’

The Council of Europe Convention on Civil Liability for Damage Resulting from Activities
Dangerous to the Environment defines the environment as including3;
Natural resources both abiotic and biotic, such as air, water, soil, fauna and
flora and the interaction between the same factors; property which forms part
of the cultural heritage; and the characteristic aspects of the landscape

When we come back to our legal system, the Environmental Protection Organs Establishment
Proclamation defines the environment as4:
The totality of all materials whether in their natural state or modified or
changed by human, their external spaces and interactions which affected 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, sound, odor, taste, social factors, and aesthetics.

Finally, it should be kept in mind that any definition of the environment will have the Alice-
in-Wonderland-quality of meaning that we want it to mean.

Discussion Questions
What does an environment mean? Discuss your answer in line with different international
environmental treaties, Federal and Regional laws? Discuss the phrase “any definition of the
environment will have the Alice-in-Wonderland quality of meaning”

1.2 Introduction to Environmental Law: From International and National Law

Perspectives
1.2.1 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?

3
The Council of Europe Convention on Civil Liability for Damage Resulting from Activities Dangerous to the
Environment which was done at Lugano, 21 June 1998, Art.2.10
4
Environmental Protection Organs Establishment Proclamation, Proclamation No. 295/2002, Neg. Gaz., 9 th
Year, No. 7, 2(3).
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.5

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. 6 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

5
DUPUY, RGDIP (1997), 873, at 899.
6
Schneider, World Public Order of the Environment: Towards an Ecological Law and Organization (Toronto,
1979), 30.
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.
Discussion Questions
Discuss the phrase ‘the traditional legal order of the environment is essentially a laissez-
faire’. Is there a body of law more specifically aimed at protecting the environment? What is
the effect of the traditional legal order of the environment on the environment itself?

1.2.2 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).

Discussion Questions
Identify all the constitutional provisions, treaties ratified by Ethiopia, Federal and regional
laws concerned with the protection of the environment?
1.2.3 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:7

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.

1.2.4 Historical Development of International Environment Law

7
Malcolm N.Shaw, International Law :( Cambridge University Press, 2003) at 753-55.
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
14th 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 19th 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 20th 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 20th 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.

Discussion Question
Discuss the historical development of environmental law from the international law
perspective?

1.2.5 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 as8:
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 that9:

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.

Discussion Questions
But here the issue is: can citizens oblige the government to carry out its obligations? Are the
constitutional provisions operational? If a factory pollutes a drinking water, could the
community ask the government and the factory to stop? Who would have a standi (can make
a claim)?
Is there any consultation with the public in planning and implementation of environmental
policies in your area? Compare the question (Question of participation) with the following
quotation,
“Indigenous peoples are the base of what I guess could be called the environmental security
system. We are the gatekeepers, of success or failure to husband our resources. For many of
us, however, the last few centuries have meant a major loss of control over our lands and

8
The Constitution of the Federal Democratic Republic of Ethiopia of 1995, Neg. Gaz., 1 st Year No. 1, Art. 44.
9
Id., Art. 92
waters. We are still the first to know about changes in the environment, but we are now the
last to be asked or consulted.
We are the first to detect when the forests are being threatened, as they are under the slash
and grab economics of this country. And we are the last to be asked about the future of our
forests. We are the first to feel the pollution of our waters, as the Ojibway peoples of my own
homelands in northern Ontario will attest. And, of course, we are the last to be consulted
about how, when, and where developments should take place in order to assure continuing
harmony for the seventh generation.
The most we have learned to expect is to be compensated, always too late and too little. We
are seldom asked to help avoid the need for compensation by lending our expertise and our
consent to development.”
Louis Bruyere
President, Native Council of Canada
WCED Public Hearing, Ottawa, 26-27 May 1986.
What are the responsibilities of Federal and State Governments in protecting the
environment? How does the Federal Government supervise the regional Government
concerning the environment? Discuss by giving examples.

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. 10

EPE also has specific policy objectives 11 and key guiding principles12. 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.13

Discussion Questions
Discuss how EPE has come into the picture and its current application?
Do you think the policy (EPE) only could solve environmental problems in Ethiopia? If not,
what do you think should be done? What are the underlying Policy Principles, Objectives
(general& specific) and Goal of the EPE?

1.2.6 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
10
FDRE Environmental Policy, at 3.
11
Ibid, at 3.
12
Ibid, at 4.
13
Ibid, at 4.
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.”

Discussion Questions
Discuss the constitutions of at least three countries concerning the right to live in a clean and
healthy environment? Compare them with our constitution concerning their applications?
Discuss the levels of environmental law?

1.2.7 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. 14

14
Hans Chr. Bugge, International environmental Law Teaching Material, (University of Oslo, Faculty of Law,
Department of Public International Law, 2002) at 143.
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.

1.2.8 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.

Discussion Questions
Discuss whether the existing environmental law at any level (international, regional, national
(Federal &Regional) protects the environment effectively? How do you measure whether the
law at any level protects the environment effectively or not? What factors determine the
effectiveness of environmental law at any level?

1.3 Foundations of Environmental Law

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.

1.3.1 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.” 15 Subsequently, the King
15
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
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 protection16. 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 17. 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.

1.3.2 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
16
Islamic Principles for the Conservation of the Natural Environment (IUCN Environmental Policy and Law
Paper 20, 1983).
17
M.D. Tahir v. Provincial Government & Others, 1995 CLC 1730
Inca, the forest gardens of the hill country of Sri Lanka and the practices 18. 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

18
Abdikadir Sheikh Hassan and others v. Kenya Wildlife Service (High Ct. Kenya, Civil Case No.
2059/1996)
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. 19

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 wisdom20.

1.4 The Sources and the Law Making Process of Environmental Law
1.4.1 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
19
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)
20
The separate opinion of Judge Weeramantry, in the Gabcikovo-Nagymaros Case, and Bulankulama v. The
Secretary, Min. of Industrial Development (the Eppawela case).
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.

1.4.1.1 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 21:
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. 8

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 22. 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.”23

21
Available at www.eldial.com, Irazu Margarita v. Copetro S.A., Camara Civily Comercial de la Plata, Ruling
of 10 May 1993
22
Bandhua Mukti Morcha v. Union of India, 3 SCC 161 (1984) and Charan Lal Sahu v. Union of India, AIR
1990 SC 1480 (1991).
23
Subhash Kumar v. State of Bihar, AIR 1991 SC 420, 1991 (1) SCC 598.
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 protection24:
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.

1.4.1.2 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
24
The UN Sub-Commission on Human Rights, E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 12, 2003)
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 case25.

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 law26.

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
25
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).
26
Vellore Citizens Welfare Forum v. Union of India, [1996] AIR SC 2715
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.

1.4.2 The Law Making Process: National and International Perspective

1.4.2.1 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 that27:
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?

1.4.2.2 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
27
Supra note 5, Art. 51(5).
made or existing law changed28. 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 law29. Three features have helped to make this law making process
both inclusive and relatively rapid30.

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

28
P.W. Birnie & A.E. Boyle, International Law and The Environment (2nd Edition Oxford University Press, at
10).
29
Ibid.
30
Ibid.
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.31

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?

1.5 Nature of Environmental Problems, and Damages

1.5.1 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.32

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 33. Human beings should therefore

31
Ibid.
32
H.M. Dix, Environmental Pollution, (Published in Chricheter New York Bribana Toronto,
1981), P.8.
33
Id.
maintain this balance with nature and act according to the law of nature. Otherwise, man will
suffer from the results of his interference34.

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 nutrients35. 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 36. 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 37. 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 38 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 environment39.

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

34
Environment and Heritage, Professional and Topical Issues I and II, Module 1, Distance
Education Division, St. Mary's College, 2005, P.81.
35
The World Charter for Nature, Adopted and Solemnly Proclaimed by the United Nations
General Assembly, On 28 Oct. 1982.
36
J. Weiss, Environmental Change and International Law: New Challenges and
Dimensions, (United Nations University Press, 1988), P.15.
37
The Environmental Policy of Ethiopia, April 1997, 2.3 (f).
38
Weiss, Supra note 5, P. 17.
39
Conway W. Henderson, International Relations Conflict and Cooperation at the Turn of
the 21st Century, (Published by the MC Graw-Hill Companies, Inc., 1998), P. 431.
not only to improve but also to destroy and destruct nature 40. For this reason, if we fail to
safeguard the environment from being affected by our activities, there is a fear that 41:
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 manner42:
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 43. 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 future44.

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 45.
Since the dawn of the Industrial Revolution, however, human demands placed upon the
earth’s resource have increased dramatically. Although the technological advancements have
40
Ethiopian Wildlife and Natural History Society, Addis Ababa Environmental Education
Project Training Manual, March 2002, P. 124.
41
Lawrence John, The Global Environment, (Published in Mangrove Law Institution,
1971), P.33.
42
Tokyo Declaration on Financing Global Environment and Development, Held in Tokyo
from 15 to 17 April 1992.
43
Mekete Tekle, The Right to a Healthy Environment: International and National
Perspectives, Nairobi, April 1995, P.68.
44
Module, Supra note 3, P77.
45
Henderson, supra note 8, P. 430.
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 earth46.

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 47. For this very fact, time has reached
when we are facing challenges to our intellect and wisdom for saving the humanity from
extinction48.

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
plan49. This approach unifies protection of the environment and development programs by
formulating the concept of sustainable development in the following manner50.
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 51. If not, any social and economic
development endeavors cannot continue into the future, at least, for two reasons 52. 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
46
Peter S. Menell and Richard B. Stewart, Environmental Law and Policy, (Published by
Little, Brown and Company, 1994). P.11.
47
P.D. Sharma, Ecology and Environment, (Published by Rakesh Kumar Rastogi, 1998).
P.415.
48
Id., P. 389.
49
Id.
50
The Rio Declaration on Environment and Development, Held at Rio de Janeiro from 3 to
14 June 1992, Principle 4.
51
Sharma, Supra note 16, P. 331.
52
Manual, supra note 9, P. 124.
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
warfare53. 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
area54. 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 acts55. That is, if we cannot take immediate action, the facts will continue
as56:
[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 levels57. 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 58.

53
Arthur Westing, Environmental Warfare in Environmental Law, (Bol.15, 1985), P. 645,
Cited in Mekete Tekle's Paper, Supra note 12.
54
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.
55
Raymond F. Dashman, Environmental Conservation, (Third Edition, Printed in the United
States of America, 1998), P.3.
56
B. Hydervali, Environmental Law: Some Trends, Vol. 1, P. 73.
57
Weiss, Supra note 5, P. 22.
58
P.S. Jaswal and Nishtha Jaswal, Environmental Law: Environmental Protection,
Sustainable Development and the Law, (Published by Allahabad law agency, 1999) P.1.
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 all59.

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 60.

Today, environmental problems are serious and imminent threats, which suggest a need for
drastic or emergency action61. 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 programmes62. 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
planet63.

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 tomorrow64.

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
59
Id., P. 101.
60
Manual, Supra note 9, P. 124.
61
Mekete, supra note 12, P. 68
62
Id.
63
Henderson, Supra note 8, P. 430
64
Menell and Stewart, Supra note 15, P. 14.
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.

Discussion Questions
Differentiate what local, regional and global environmental problems are?
What do we mean by dynamic natural cycle of the environment?
What is the crux of understanding the nature of environmental problems?

1.5.2 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’

1.5.3 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:65

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 proclaimed66:
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…

65
Antonio Cassese, International Law (Oxford: Oxford University Press, 2001), at 375.
66
The Preamble of the United Nations Declaration on Human Environment, Adopted in Stockholm in June 1972
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,67 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.

1.5.4 Nature of Environmental Damages

1.5.4.1 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
question68. 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 mean69:

67
E.g. Pathak, in Brown Weiss (ed.), Environmental Change and International Law, (Tokyo, 1993), Ch.8.
68
Edward H.P. Brans, Liability for Damage to Public Natural Resources: Standing, Damage
and Damage Assessment, (Published by Kluwer Law Int., 2001) P.9.
69
Environmental Pollution Control Proclamation, Neg. Gaz., Proclamation No. 300/2002,
9th Year No.12, Art. 2 (6).
 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 mean70:

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 public71.

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 72. In other
words, a private individual can have standing only when he has suffered damage over and
70
Id., Art. 2 (12).
71
Paul Denham, Law a Modern Introduction, (4th ed., Printed in Great Britain for Hodder
and Stoughton Education, 1999), P. 391.
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 reasons73:

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 law74. 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.

1.5.4.2 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

72
J. Gordon Arbuckle and Nancy S. Bryson, Environmental Law Hand Book, (9th ed,
Published by Government Institutes, Inc, 1987), P.10
73
Brans, Supra note 34, P.13.
74
Arbuckled and Bryson, Supra note 38, P. 10.
environment per se, that is, it would extend its scope to encompass natural resources that
have direct or indirect interest to the public at large75.

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 nature76.

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 undertaking77. 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 object78. 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

75
Brans, Supra note 34, P. 14.
76
Id., P. 12.
77
Christopher Stone, "Should Trees Have Standing? Towards Legal Rights for Natural
Objects", (Southern California Press, 1972) P. 460
78
Brans, Supra note 34, P. 13.
indirectly depend for their survival and productivity on that resource which sustained
damage79.

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 80.

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 81. 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 resources82. 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

79
Id., P. 14.
80
Stone, Supra note 43, P. 46.
81
Id., P. 462.
82
Brans, Supra note 34, P. 14.
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.

Discussion questions
Verify whether we have a universal definition of the environment or not.
Discuss the rationale behind defining what environment is.
Analyze what environmental related type of damages and damage to the
environment per se are.
Why do we need to form new and additional category of damage to the
environment?

1.6 Summary
A legal definition of the environment helps delineate the scope of the subject, determine the
application of legal rules, and establish the extent of liability when harm occurs. The word
environment is derived from an ancient French word environner, meaning to encircle.
Whatever the case may be, at this juncture, it should be kept in mind that any definition of the
environment will have the Alice-in-Wonderland-quality of meaning that we want it to mean.
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. 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 protection of the environment.

When we come to 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; all laws (federal and regional) concerned with the environment (Forestry, Land,
Water use and other sectoral laws).
Inspite of different treatment in different instruments, the role of law in protecting the
environment is not fundamentally different in both international and national law. But, we
have to keep in mind that the effectiveness of different regulatory and enforcement
techniques are largely determined by the nature of the problem. That is, what works in one
case may not work in others.

When we embark on the foundations of Environmental Law, as it is for any law, it emerges
from the cultural traditions, 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.

As a natural flow of the above points, Environmental Law, being a relatively new field, is
largely contained in written texts, although some common law principles are 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.

As to the law making process of Environmental Law, 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. 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. 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.

To understand the nature of environmental problems, and damages, it is important to

understand the natural cycle of the environment. Accordingly, we need to grasp that within
the environment there exists dynamic cyclic interrelationship between the living form and
physical environment. This dynamic cyclic relationship properly operates in a balanced state
in an unpolluted natural environment; so that, to maintain the balance it is important to
suppress the unwanted behavior of man, and foster those that would contribute to the
maintenance and enhancement of ecological balance to the benefit of the general public
before we reach no turning point.

In respect to the scope of tort law in relation to the environment, there exists a fundamental
difference between the environment-related type of damages and damage to the environment
per se. This distinction emanates from the fact that, tort law covers only environmental
related type of damages. In order to have a full-fledged tort law, therefore, a new category of
damage should be introduced in addition to and separate from environmental-related type of
damages, that is, damage to the environment per se which covers the public owned and
publicly possessed natural resources, and public owned but privately possessed natural
resources that have a particular value to the public.

Finally, taking into consideration the interconnected oceanic nature of the environment, at
present, it is a pressing need to 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.

1.7 Review Questions

1. Define what environment is, and the importance of defining it.
2. Pin point the factors that gave rise to environmental law.
3. Discuss the role of national and international environmental laws in the protection of
environment.
4. Indicate whether the existing environmental laws adequately protect the environment
or not.
5. Verify the foundations of environmental law.
6. Provide a blue print in relation to the law making process and sources of
environmental law.
7. Discuss the nature and scope of environmental problems.
8. Indicate the rationale behind the protection of environment.
9. Discuss briefly what damage to environment per se and environmental related type of
damage is.
10. Pin point whether the traditional tort law is in a position to accommodate both
damage to the environment per se, and environmental related type of damages.
CHAPTER 2 BASIC PRINCIPLES OF ENVIRONMENTAL LAW

2.1. Introduction to the Basic Principles of Environmental Law

No legal order can regulate with specific rules any possible conduct of legal subjects. Gaps
are bound to exist in the normative network of any community. Hence, the need to resort to
general principles, that is, sweeping and rather loose standards of conduct that can be
deduced from the various rules by extracting and generalizing some of the most significant
common points. 83

General principles constitute both the backbone of the body of law governing international
dealings and the potent cement that binds together the various and often disparate cogs and
wheels of the normative framework of the community.84

Normally principles are spelled out by courts, when adjudicating cases that are not entirely
regulated by treaty or customary rules. 85 It cannot be denied that by so acting courts fulfill a
meritorious function very close to, and almost verging on, the creation of law.

At present, in the world community, two distinct classes of general principles may be relied
upon.86 First, there are general principles of international law, namely those principles which
can be inferred or extracted by way of induction and generalization from conventional and
customary rule of international law. Second, there are principles that are peculiar to particular
branch of international law (the law of the sea, humanitarian law, the law of state
responsibility, etc.).

There are a number of principles that are at the core of most environmental protection
systems, whether at the international or national level. Familiarity with these principles can

83
Antonio Cassese, International Law, (Oxford University Press, 2001) at 151.
84
Ibid.
85
Ibid.
86
Ibid.
offer insight into the purpose and thrust of the various legal mechanisms that have been built
upon them. The principles are best understood in the context of the modern ecological era. 87
The present ecological era began at the end of the 1960s, after post-World War II
reconstruction led to unprecedented global economic development. This development was
unequal, accentuating differences in wealth between the countries of the Northern and
Southern hemispheres as well as within countries.

It also required unprecedented use of exhaustible natural resources such as clean water, air,
flora and fauna, and minerals. As it became clear that limited resources would ultimately
become incapable of satisfying the various needs of industrial and developing countries,
public opinion increasingly demanded action to protect the quantity and quality of the
components of the environment.88

Ecological catastrophes such as the 1967 “black tides” off the coasts of France, England and
Belgium, caused by the grounding of the oil tanker Torrey Canyon, and realization that the
environment increasingly was threatened, incited governments to take action. In some
circumstances, action was taken by individual states to address state-specific problems. In
other circumstances, efforts focused on international cooperation, as a means of addressing
shared concerns. These international collaborations bear particular attention because they
both illustrate and articulate some of the key principles that undergird both national and
international environmental law.89

A pivotal moment in the development of environmental law came in 1972 when the United
Nations General Assembly convoked a world conference on the human environment in
Stockholm. This development gave rise to intense and diverse activity, particularly within
inter-governmental organizations whose mandate could extend to environmental problems.
Numerous national and international non-governmental environmental organizations and
various governments also engaged in considerable preparatory work.
The Conference concluded by adopting a Declaration on the Human Environment and an
“Action Plan” containing 109 recommendations.90

87
Judicial Handbook on Environmental Law (UNEP Publication, 2005) at 19.
88
Judicial Handbook on Environmental Law (UNEP Publication, 2005) at 19.
89
Ibid.
90
Judicial Handbook on Environmental Law (UNEP Publication, 2005) at 19.
International and national environmental law substantially increased in the two decades after
Stockholm. The United Nations reaffirmed and developed the general principles of the
Stockholm Declaration in 1982 when the General Assembly adopted the World Charter for
Nature. A few principles of customary law concerning environmental relations among states
also emerged during this period. Some of them were embraced by the United Nations
Environment Program as part of the “Principles of conduct in the field of the environment for
the guidance of States in the conservation and harmonious utilization of natural resources
shared by two or more states.” Approved by UNEP’s Governing Council on May 19, 1978,
the Principles on Shared Resources reiterated Stockholm Principle 21 in recognizing the
sovereign right of states to exploit their own resources coupled with an obligation to ensure
that the activities undertaken within the limits of their jurisdiction or under their control do
not damage the environment in other states. The UNEP Principles also expressed the
obligation of states to notify the latter of plans that can be expected to affect significantly
their environment, to enter into consultations with them, and to inform and cooperate in the
case of unforeseen situations that could cause harmful effects to the environment. The
measures also guaranteed equality of access for nonresidents to administrative and legal
procedures in the state originating the harmful conduct, and nondiscrimination in the
application of national legislation to polluters, whatever the place of the harmful effects. 91

In 1992, the United Nations convened a second global meeting, known as the United Nations
Conference on Environment and Development (UNCED), which met in Rio de Janeiro from
3 to 14 June 1992. Two texts adopted at UNCED have a general scope: the Declaration on
Environment and Development and an action program called Agenda 21. The Declaration
reaffirms the Stockholm Declaration of 1972 on which it seeks to build, but its approach and
philosophy are very different. The central concept is sustainable development, which
integrates development and environmental protection. Principle 4 is important in this regard:
it affirms that 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. Agenda 21 is the program of action to achieve sustainable development.92
In the aftermath of Rio, virtually every major international convention concerning
multilateral cooperation includes environmental protection as one of the goals of the states
parties. Areas of international law that developed during earlier periods evolved in new

91
Ibid.
92
Judicial Handbook on Environmental Law (UNEP Publication, 2005) at 20.
directions because of insistence that they take into account environmental considerations. The
result has been an infusion of environmental principles and norms into nearly every branch of
international law. At the same time, in the decade after the Rio Conference, environmental
concerns encountered increasing competition on the international agenda from economic
globalization, an emphasis on free trade, and the development crises of poor countries. In
addition, mounting evidence could be seen of the disastrous environmental consequences of
armed conflict.93

Between August 26 and September 4, 2002 the representatives of more than 190 countries
met in Johannesburg, South Africa, in order to “reaffirm commitment to the Rio Principles,
the full implementation of Agenda 21 and the Programme for the Further Implementation of
Agenda 21.” At the end of the conference the participating governments adopted a
Declaration on Sustainable Development affirming their will to “assume a collective
responsibility to advance and strengthen the interdependent and mutually reinforcing pillars
of sustainable development – economic development, social development and environmental
protection – at local, national, regional and global levels.”94

These decades of legal developments have led to the emergence of the basic principles of
environmental protection that are recognized in international and national laws, which have
in turn informed the development of environmental law by giving meaning to concepts not
yet contained in formal legal instruments. Principles can be foundational (e.g., equality and
legal certainty) or technical (e.g., proportionality). The key environmental principles
developed over the past several decades are discussed below. They have been reproduced in
domestic laws and thus have provided a foundation for many environmental decisions. They
are influential in most legal systems, although they sometimes may be applied differently. 95

2.2. Prevention
Experience and scientific expertise demonstrate that prevention must be the Golden Rule for
the environment, for both ecological and economic reasons. In some instances, it can be
impossible to remedy environmental injury once it has occurred: the extinction of a species of
fauna or flora, erosion, and the dumping of persistent pollutants into the sea create
93
Ibid.
94
Judicial Handbook on Environmental Law (UNEP Publication, 2005) at 20.
95
Ibid.
intractable, even irreversible situations. Even when harm is remediable, the cost of
rehabilitation is often very high. In many instances it is impossible to prevent all risk of harm.
In such instances, it may be judged that measures should be taken to make the risk “as small
as practically possible” in order to allow the necessary activities to proceed while protecting
the environment and the rights of others96.

The issue of prevention is complex, owing to the number and diversity of the legal
instruments in which it occurs. It can perhaps better be considered an overarching aim that
gives rise to a multitude of legal mechanisms, including prior assessment of environmental
harm, and licensing or authorizations that set out the conditions for operation and the
remedial consequences for violation of the conditions. Emission limits and other product or
process standards, the use of best available techniques (BAT), and other similar techniques
can all be seen as applications of prevention.

Prevention is also linked to the notion of deterrence and the idea that disincentives such as
penalties and civil liability will cause actors to take greater care in their behavior to avoid the
increased costs, thus preventing pollution from occurring.

In addition to prevention as a generalized goal of domestic environmental laws, the notion of

“pollution prevention” includes the concept that pollution may be reduced, or prevented, at
its source, by changing raw materials or production techniques or technologies. Often
“pollution prevention” and “source reduction” are conceived as a goal of voluntary efforts
that complement “command and control” or “end-of-pipe” environmental regulations that
limit the amount of pollution that may be emitted. Pollution prevention sometimes produces
economic benefits for industry in terms of increasing efficiency, reducing waste, and reducing
liability. Governments may engage in strategies or programs to educate the regulated
community and encourage it to implement pollution prevention techniques, in addition to
their efforts to promote and enforce compliance with mandatory regulations.

2.3. Precaution
While there is no single agreed formulation of principle of precaution that is used in all
contexts, and precaution has not acquired generally accepted status as a legal principle in its
own right or as customary international law, there is a basic concept of precaution that
96
Solothurn v. Aargau, Switzerland Bundesgericht (Federal Tribunal), 1 Nov. 2000.
animates much of modern environmental protection regimes – the notion that environmental
regulators often have to act on the frontiers of knowledge and in the absence of full scientific
certainty. Precaution has variously been associated with the ideas that: 1) scientific
uncertainty should not be used as a reason not to take action with respect to a particular
environmental concern; 2) action should affirmatively be taken with respect to a particular
environmental concern; 3) those engaging in a potentially damaging activity should have the
burden of establishing the absence of environmental harm; and 4) a State may restrict imports
based on a standard involving less than full scientific certainty of environmental harm.

Properly viewed, the concept of precaution operates as part of a science-based approach to

regulation, not a substitute for such an approach, and, in practice, the concept is multi-
faceted.

The so-called “precautionary approach” is relatively recent, dating from the late 1980s. The
Rio Declaration stipulates that 97:
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.
Because of its many permutations and facets, precaution is at once both useful as a flexible
tool or “approach,” and difficult to capture in the context of a generally applicable legal
“principle” or standard. This being said, it has found reference in a number of judicial cases.
An Argentinean court, for example, required immediate suspension of efforts to establish an
electricity grid until defendant prepared a report with the participation of concerned persons,
addressing the impacts and preventive or mitigation measures to avoid the potential negative
effects of the electromagnetic field to be created by the project. The court explicitly stated
that it was applying the precautionary principle embodied in the law and several international
environmental instruments98.

97
The 1992 Rio Declaration, Principle 15
98
Asociacion Coordinadora de Usuarios, Consumidores y Contribuyentes v. ENRE-EDESUR, Federal
Appellate Tribunal of La Plata (2003).
The European Court of Justice has likewise been influenced by the concept, particularly in
respect to environmental risks that pose dangers to human health. The Court held that the
European Commission had not committed manifest error when banning the export of beef
during the so-called “mad cow” crisis99. The ECJ said in the NFU case100:
At the time when the contested decision was adopted, there was great
uncertainty as to the risks posed by live animals, bovine meat and derived
products. Where there is uncertainty as to the existence or extent of risks to
human health, the institutions may take protective measures without having to
await the reality and seriousness of those risks to become fully apparent

In a European Free Trade Association case, the Court held that it was appropriately
precautionary to presuppose identification of potentially negative consequences and a
comprehensive evaluation of the risk based upon the most recent scientific information.
According to the Court, where the insufficient, inconclusive or imprecise nature of relevant
scientific conclusions makes it impossible to determine risk or hazard with any certainty, but
the likelihood of significant harm persists, the decision to take restrictive measures is
justified. The criteria cited by the Court are as follows101:
Such restrictive measures must be non-discriminatory and objective, and must
be applied within the framework of a policy based on the best available
scientific knowledge at any given time. The precautionary principle can never
justify the adoption of arbitrary decisions, and the pursuit of the objective of
‘zero risk’ only in the most exceptional circumstances.

2.4. Polluter Pays

The “polluter pays” principle was originally enunciated by the Organization for Economic
Cooperation and Development (OECD) to restrain national public authorities from
subsidizing the pollution control costs of private firms. Instead, enterprises should internalize
the environmental externalities by bearing the costs of controlling their pollution to the extent
required by law.

99
Case C 180/96, United Kingdom v. Commission, [1996] ECR I-3903, para. 83; Case T-76/96 R, National
Farmers’ Union (NFU) [1996] ECR II-815, para. 88.
100
. Id. at para. 63.
101
Case E-3/00, EFTA Surveillance Authority v. Norway, paras.16, 21.
Historically, pollution control costs have been borne by the community at large, rather than
by those who pollute. Community assumption of the costs can be demonstrated using the
example of an industry that discharges pollutants into a river. There are at least three possible
ways for the community to assume the economic costs of the pollution:
1) The river can remain polluted and rendered unsuitable for certain downstream activities,
causing the downstream community to suffer an economic loss;
2) The downstream community can build an adequate water treatment plant at its own cost;
3) The polluter may receive public subsidies for controlling the pollution.

In each case, the affected community bears the cost of the pollution and of the measures
designed to eliminate it or to mitigate its effects. The polluter pays principle avoids this result
by obliging the polluter to bear the costs of pollution control, to “internalize” them. In most
cases the enterprise will in fact incorporate the costs in the price of the products to some
degree and pass them on to the consumer.

The polluter pays principle is therefore a method for internalizing externalities. Those who
benefit from air made cleaner have a positive externality if they do not pay for the cleanup.
Where air is fouled by a producer who bears no cost, it is a negative externality; those who
buy the product also are free riders if the fouling is not reflected in the price of the goods.
Internalization requires that all the environmental costs be borne by the producer/consumer
instead of the community as a whole. Prices will reflect the full cost if regulatory standards or
taxes on the production or product correspond to the true cost of environmental protection
and damage. The principle can be applied most easily in a geographic region subject to
uniform environmental law, such as a state or a regional economic integration organization.
The polluter can be defined as one who directly or indirectly damages the environment or
who creates conditions leading to such damage.

Generally, polluters should pay for the cost of pollution control measures, such as the
construction and operation of anti-pollution installations, investment in anti-pollution
equipment and new processes, so that a necessary environmental quality objective is
achieved. Other means of ensuring the polluter pays principle are through taxes and charges.
Application of the principle may be difficult in practice where identifying the polluter proves
impracticable because the pollution arises from several simultaneous causes or from several
consecutive causes, or where the polluter has become financially insolvent. In such instances,
there may be no alternative to community assumption of the costs of remediation.

National courts may define and elaborate on the implications of the polluter pays principle. In
Marlene Beatriz Duran Camacho v. the Republic of Colombia (Sept. 26, 1996), the
Constitutional Court, in reviewing the constitutionality of some environmental legislation,
approved provisions that impose a special economic burden on those who contribute to the
deterioration of the environment and impose on those who take advantage of natural
resources the costs of remedying the negative effects that their actions have on the
environment. The Indian Supreme Court has said that once an activity carried on is hazardous
or inherently dangerous, the person carrying on that activity is liable to make good the loss
caused to any other person by that activity102.

2.5. Environmental Justice and Equity103

2.5.1. Environmental Justice Generally
In general, environmental justice seeks to ensure that authorities fairly allocate and regulate
scarce resources to ensure that the benefits of environmental resources, the costs associated
with protecting them, and any degradation that occurs (i.e., all the benefits and burdens) are
equitably shared by all members of society. Environmental justice goes beyond traditional
environmental protection objectives to consider the equitable distribution of pollution, and,
more broadly, the often-disproportionate burden borne by the poor and minority groups in
respect to environmental harm.

The Supreme Court of India indicated some of the elements of the concept of environmental
justice104:
Public nuisance because of pollutants being discharged by big factories to the
detriment of the poorer sections is a challenge to the social justice component
of the rule of law. Likewise, the grievous failure of local authorities to provide

102
Indian Council for Environmental Legal Action v. Union of India, AIR 1996 SC 1446 (1996), 2 SCR 503, 3
SCC 212 (1996).
103
Judicial Handbook on Environmental Law (UNEP Publication, 2005) at 23.
104
Supreme Court of India, Ratlam Municipality v. Vardihichand, AIR 1980 SC 1622.
 the basic amenity of public conveniences drives the miserable slum-dwellers to
ease in the streets, on the sly for a time, and openly thereafter, because under
nature’s pressure, bashfulness becomes a luxury and dignity a difficult art. A
responsible Municipal Council constituted for the precise purpose of
preserving public health and providing better facilities cannot run away from
its principal duty by pleading financial inability. Decency and dignity are non-
negotiable facets of human rights and are a first charge on local self-
governing bodies.

2.5.2. Public Trust

The concept of public trust expresses the idea that the present generation holds the natural
resources of the earth in trust for future generations. When applicable as a legal principle,
public trust contemplates that certain thing, such as natural resources and the exercise of
public power, are held by governments in trust for the citizenry and must be used for the
public benefit105.
In Roman law, certain res such as rivers, waterways, the seashore, were classified as res
nullius or res communes and were available for the free use of everyone and rights over them
could not be given to individuals. In the common law, the Sovereign could own certain
natural resources such as rivers and waterways but it was a restricted ownership and could
not be granted to private entities because the Sovereign held the resources in trust for the use
of the general public.

In international law, as early as 1893, the United States government argued in the Behring
Sea Fur Seals Case that106:
No possessor of property has an absolute title to it – his title is coupled with a
trust for the benefit of mankind. . . . Things themselves are not given him, but
only the usufruct or increase – he holds the thing in trust for the present and
future generations of man.

105
Gunaratne v. Ceylon Petroleum Corporation, (1996) 1Sri L R 315 (Sri Lanka) and Premachandra and
Dodangoda v. Jayawickreme and Bakeer Markar, (1993) 2 Sri L R 294 (Sri Lanka).
106
J.B. Moore, History and Digest of the International Arbitrations to which the United States has been
a Party (1989), Vol I, p. 833
In commercial activities in part of a national park, Stein J. said107
National parks are held by the State in trust for the enjoyment and benefit of
its citizens, including future generations. In this instance the public trust is
reposed in the Minister, the director and the service. These public officers
have a duty to protect and preserve national parks and exercise their functions
and powers within the law in order to achieve the objects of the National
Parks and Wildlife Act.

2.6. The Integration Principle

Environmental protection requires that due consideration be given to the potential
consequences of environmentally fateful decisions. Various jurisdictions (e.g., the United
States and the EU) and business organizations (e.g., the U.S. Chamber of Commerce) have
integrated environmental considerations into their decision-making processes, through both
environmental-impact-assessment mandates and other provisions.

When we come to our legal system the Environmental Policy of 1997 under 4.1.(a) clearly
depicts that one of the basic objectives of the policy is to integrate population planning,
resources management, and the rehabilitation of and care for the environment to achieve a
sustainability of life style.

Furthermore, the preamble of Environment Impact Assessment Proclamation explicitly

stipulates that the integration of environmental, economic, cultural, and social considerations
into a decision-making process in a manner that promotes sustainable development is a
pressing need.

2.7. The Public-Participation Principle

Decisions about environmental protection often formally integrate the views of the public.
Generally, government decisions to set environmental standards for specific types of
pollution, to permit significant environmentally damaging activities, or to preserve significant
resources are made only after the impending decision has been formally and publicly
announced and the public has been given the opportunity to influence the decision through
written comments or hearings. In many countries citizens may challenge government
decisions affecting the environment in court or before administrative bodies. These citizen
107
Willoughby City Council v. the Minister, (1992) 78 LGERA 19, at 27
lawsuits have become an important component of environmental decision making at both the
national and the international level.

Public participation in environmental decision-making has been facilitated in Europe and

North America by laws that mandate extensive public access to government information on
the environment. Similar measures at the international level include the Rio Declaration and
the 1998 Arhus Convention, which committed the 40 European signatory states to increase
the environmental information available to the public and to enhance the public’s ability to
participate in government decisions that affect the environment. During the 1990s the Internet
became a primary vehicle for disseminating environmental information to the public.

2.8. The Obligation of States Not to Cause Damage to the Environment beyond Their
Jurisdiction.
The general substantive obligation inherent in this principle is a duty to prevent, reduce and
control trans-frontier environmental harm. However, this obligation is neither absolute nor
very precise.

Expressions of this principle are found in binding international instruments. One example- in
addition to the ones already mentioned- is the 1982 UN Convention on the Law of the Sea108:
States shall take all measures necessary to ensure that activities under their
jurisdiction or control are so conducted as not to cause damage by pollution
to other States and their environment, and that pollution arising from
incidents or activities under their jurisdiction or control does not spread
beyond the areas where they exercise sovereign rights in accordance with this
Convention.

As stated in this article, the obligation of the State does not only comprise activities carried
out by or on behalf of the State itself. It also includes actions by any subject under the state’s
jurisdiction (citizens, companies, municipalities etc). This was stated clearly already in the
Trail Smelter case. It means that the State has the obligation to exercise its authority and to
108
The 1982 UN Convention on the Law of the Sea (UNCLOS), Article 194, para. 2.
take necessary actions, in order to prevent any activity under its jurisdiction from doing harm
to other States. To this effect, the State must take adequate measures, issue necessary
regulations, carry out control, sanction violations of the law etc.

The principle raises several difficult questions of interpretation.

First, is any damage to the territory or the environment of a neighboring State against
international law? Or rather: where does the limit go between legal and illegal State conduct?
It is a commonly held view that there is a ‘’lower threshold’’ here, that only ‘’substantial ‘’ or
‘’significant ‘’ harm to other States is a violation of international customary law. The Trail
Smelter arbitration used the expression ‘’ serious consequences ‘’.
Secondly, is a significant harm always a violation of international law, regardless of its
causes and other circumstances? The general view is that a State has not violated
international law if it has exercised ‘’due diligence’’ – that is, if it has acted in good faith and
has taken reasonable measures to prevent the damage. ‘’Abuse’’ of rights, intentional or
unnecessary harm will always be regarded as violating the ‘’due diligence’’ standard and thus
be against international law. Beyond these clear situations, the ‘’due diligence’’ standard
implies an appraisal of various relevant factors.

The obligation to exercise ‘’due diligence’’ means that the State must act in a responsible
way, with due regard to the interests of other States. It must consider the risks and the
possibilities involved, and take reasonable measures to avoid trans-boundary harm. The costs
and benefits on the two sides are relevant. The question may be what resources are available
on the one side, and what interests are harmed on the other. The economic situation and the
capabilities of the polluting country, and the technical solutions available, are also relevant.

This principle is reflected in various ways in international instruments, both ‘’soft law’’ and
treaty law. For example, the duties of the state parties according to some of the
environmental conventions may be qualified by expressions like ‘’according to their
capabilities’’ or ‘’as far as possible’’.

The principle of state liability for trans-frontier environmental damage is generally accepted,
as the Trail Smelter arbitration illustrates. But here again, many questions remain open. It is
uncertain, for example, exactly what a State may be liable for. May a State claim
compensation for the loss of natural beauty, cultural heritage and other similar values which
may be important, but difficult to value in monetary terms? It is also unclear to what extent,
States may be held liable for acts by private citizens.
The problems of causality are present in international relations, as they are in national
compensation law. In the Trail Smelter case the injury was established ‘’by clear and
convincing evidence’’. Given the often complex cause-effects relationships of pollution
damage in general, and of trans-boundary and global pollution in particular, clear and
convincing evidence may be hard to establish. The rules on the burden of proof in such cases
are not clear in international law.
Should liability be based on strict liability or on a negligence rule? A common view is that
the ‘’due diligence’’ standard applies. This may mean that a State is not liable if it has taken
reasonable measures to prevent damage. But for so called ‘’ultra hazardous’’ activities, such
as nuclear activities, there is general agreement that a principle of strict liability operates.

The need to develop clearer liability and compensation rules in international environmental
law was recognized already at the 1972 Stockholm Conference. Since then, the many
complex issues of State responsibility have been discussed generally, i.e. by the International
Law Commission.

It should be underlined that there are two distinct problem areas in this field. The first is the
question of a State’s responsibility, when it has violated international law. The second is the
question of State liability in cases where the pollution for various reasons is not a violation of
international law (for example because the State has showed due diligence), but where a
certain compensation to the victim State nevertheless seems reasonable. Since 1978 the
subject of ‘’liability for acts not prohibited by international law ‘’ has been discussed by the
International Law Commission. But this is a very controversial issue, and conclusions are
still pending.

2.9. States’ Obligations to Cooperate, to Inform and to Consult With Other States
International customary law includes several principles of procedural obligations for States in
environmental matters. Generally speaking, these principles are reflections of the principles
of good neighborliness, and diligence. They have found their way into soft law as well as
treaties.
If States have conflicting interests related to an environmental problem such as trans-
boundary pollution, States have a general obligation to cooperate in order to find solutions,
and if necessary to negotiate in good faith in order to solve conflicts through peaceful means.
The principle of cooperation is implicit in the numerous international treaties that have been
established over the last decades. It is also expressed through the extensive work done by
intergovernmental organizations in the field of environment. Finally, the duty to cooperate is
clearly stated in several important declarations and treaties, such as the Rio Declaration
(principle 7) and the Law of the Sea Convention (article 197).

States also have a duty to inform and consult with other States, if activities within their
territory may have effects across the borders. More recently, this duty of information has
developed into rules on environmental impact assessment, in a trans-boundary context. This
was first expressed as ‘’soft law ‘’ in UNEP’s 1987 Goals and Principles of Environmental
Impact Assessment, which provides109:
When information provided as part of an EIA indicates that the environment
within another State is likely to be significantly affected by a proposed
activity, the State in which the activity is being planned should, to the extent
possible:
a. Notify the potentially affected State of the proposed activity,
b. Transmit to the potentially affected State any relevant information from the
EIA, the transmission of which is not prohibited by national laws or
regulations; and
c) When it is agreed between the States concerned, enter into timely
consultations.

More recently, the principle has got a detailed and comprehensive expression in the 1991
ECE Convention on Environmental Impact Assessment in a Trans-boundary Context (known
as the Espoo Convention). An important principle in this context is the principle of
nondiscrimination. This means that environmental effects in another State – or beyond
national jurisdiction – should be given the same weight as effects in a State’s own territory.
This principle may not yet be universally recognized, but it is reflected for example, in the
Nordic Environmental Convention from 1974. The non-discriminatory principle may also
imply that citizens who are or may be touched by pollution from another State have the same
109
UNEP’s 1987 Goals and Principles of Environmental Impact Assessment, Principle 12.
legal rights as the citizens of the polluting State as to, for example, legal standing and right to
compensation for damage. Such equal rights for citizens are established between the Nordic
countries in the 1974 Nordic Environmental Convention.

In case of an imminent or actual accident, States have a special duty to take emergency
actions, and to adequately warn other States. This principle was highlighted in the Chernobyl
case in 1986. The Soviet Union failed to inform neighboring countries about the nuclear
accident. This was widely regarded as a breach of international customary law (although,
apparently, no State forwarded a formal protest). A special treaty on information in case of a
nuclear accident was rapidly negotiated after the accident. The fact that States already had
such an obligation according to customary international law made it possible to reach
agreement on a convention in a very short time.

2.10 Shared Natural Resources, Common Property and Common Heritage of Man
Kind
Another group of problems are linked to the management of resources which are either
shared between several states, or common in the sense that they are outside the area of
national jurisdiction.
The general principle not to cause significant harm outside your territory-principle 21- also
applies explicitly to areas beyond national jurisdiction. International law distinguishes
between the concepts “common Property” and “Common heritage of mankind”.

A. Shared Natural Resources

The concept of “Shared Natural resources” is used when one natural resource comes under
the jurisdiction of several states. A lake bordered by two or more states, or a river running
through the territory of several states are typical examples. It follows from article 63 of the
Law of the Sea Convention, that fish stocks occurring within the exclusive economic zones of
two or more coastal states are also regarded as shared natural resources.
The concept is, however, unclear and controversial in several ways. It is unclear what
resources should be treated as shared. In particular, there is at present not international
consensus to include resources such as boarder forests, mountain chains, the atmosphere or
biodiversity within natural geographic area. Not every state accepts the concept. Some prefer
to see their share of the resources as an ordinary part of their territory and insist on their
sovereignty right to exploit this resource, subject only to the obligation not to cause injury to
other states.

Regardless of the legal status of the concept, however, it is recognized that the above-
mentioned principles of cooperation and information apply particularly, in cases where a
natural resource is under the jurisdiction of two or more states. In the Lac Lanoux case
(arbitration 1957) France diverted water under its jurisdiction from a water course shared
with Spain. The court stated that Spain had legitimate interest in the matter, and had the right
to be consulted. When it comes to a state’s right to exploit such resources, relative to other
states’ rights, the general principle of “equitable utilization” is broadly recognized. This
principle is expressed in the 1978 UNEP Principles which state110.
What is meant by “equitable utilization”? It indicates the need to evaluate and
to balance the various interests of the states concerned. An appraisal must
take place in each individual case. Relevant issues are –probably-
geographical and historical conditions, social and economic needs for the
states involved, effects of different activities, and potential and alternative
uses.

B. Common Property
Common property refers mainly to the living resources outside national jurisdiction, such as
fish stocks and other living resources on the high seas. These resources are in principle free
for the legitimate and reasonable use by all states. There is an implicit obligation to take
necessary conservation measures, if limitations are needed to keep the catch within the limits
of sustainability. The Law of the Sea Convention clearly expresses the general obligation of
states to take necessary measures in order to conserve the living resources of the high seas111.
If the resource becomes scarce, and several states compete to exploit it, the general principle
of equitable exploitation applies. What is equitable depends on an evaluation of the different
interests concerned in each individual case. One factor of importance is the historic use and
traditional rights by different states in the area. Another is the importance of the exploitation
for the participating states. In the question of allocation of fish stocks, this criterion often
means preferential rights to coastal states. These principles and considerations are reflected,

110
The 1978 UNEP Principles on Conservation and Harmonious Utilization of natural Resources Shared by two
or more states
111
The Law of the Sea Convention, Articles 117-119
for example, in the Icelandic Fisheries case between Iceland and The United Kingdom (ICJ
1974).

It is obvious, however, that the general expressions like “equitable exploitation” or

“reasonable use” are too vague to solve by themselves because of the complex problems of
rights to living resources, such as rich fish stocks on the high seas and the protection of the
marine environment beyond the national jurisdiction in general. Instead it has been necessary
to establish special treaties for the proper management of these resources. The Law of the Sea
convention, Fisheries Convention for the North East and the Northern West Atlantic, and
several global conventions on pollution from ships, are some of the many important
instruments of binding international law in this area.

It should also be underlined that the development of states’ jurisdiction in relation to the
marine environment is of greater importance. For example, the establishment of coastal
states’ exclusive economic zone of up to 200miles strengthens the possibility for a proper
protection of the marine environment and sustainable management of the living resources of
the sea.

C. Common Heritage of Mankind

The concept of “common heritage of mankind” often appears in discussions on
environmental problems. It should be underlined that this concept is used in at least two
different ways; partly as a general, popular and somewhat vague vision, partly as a precise
term of international law.

In a popular meaning, the common heritage of mankind is often used as a term for global
environmental resources, such as the Earth’s biodiversity, the tropical forests or the
atmosphere. The term itself indicates an obligation to manage these resources for the benefit
of mankind as a whole, and a need for international control of their exploitation.

In international law, however, the concept has a stricter meaning. It refers to two specific
non-living resources outside national jurisdiction: the sea-bed mineral resources and the
moon. In principle, all states should share the benefits of these resources, even if they don’t
take directly part in their exploitation. On this point it is different from the rules pertaining to
common property regimes, where only the states that take active part, may benefit from the
exploitation of the resources.

The Law of the Sea Convention regulates the utilization of the sea-bed resources outside
national jurisdiction. In the Convention this is called “the Area”. It simply states: “The Area
and its resources are the common heritage of mankind”112

The Area’s resources belong to mankind as a whole. No state may claim or exercise
sovereignty or sovereign rights over any part of the Area or its resources. An International
Sea-Bed Authority shall administer these Resources on behalf of mankind.

2.11 The Principle of Sustainable Development.

The concept of “sustainable development “had already begun to emerge prior to the UN
Conference on Environment and Development in 1992, but it defining role in the evolution of
international law and policy on protection of the environment secured near universal
endorsement at Rio. Sustainable development informs much of the Rio Declaration, as well
as the conventions on climate change and Biological Diversity, and it is central to the
elaboration of global environmental responsibility by these and other instruments. Since Rio,
sustainable development has been adopted as policy by numerous governments, both at
national and regional levels. It has influenced the application and the development of law and
policy by international organizations, including FAO, IMO, the World Bank, the WTO; and
UNDP; as well as treaty bodies such as the International Tropical Timber Organization and
the European Energy Charter.
A. The Concept of Sustainable Development
Agenda 21, the programme of action adopted by the UNCED Conference, refers in its
preamble to the need for a’ global partnership for sustainable development’, and most of its
provisions, together with the principles and down in the Rio Declaration on Environment and
Development, are intended to promote implementation of the concept. But, as one author has
pertinently asked,’ can a term which commands such support actually mean anything?’ Does
this crucial concept have a solid core of meaning or does the content of sustainable
development lie mainly in the eye of the beholder? Certain interpretations can be discarded
immediately. Firstly; sustainable development is not to be confused with zero growth.
Economists readily accept that in some cases even zero growth may be unsustainable; zero
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The Sea Convention, art 136.
growth in the output of CFCs will not save the ozone layer, for example. Conversely, growth,
if defined in terms of GNP, is not inevitably unsustainable, since GNP is not per se a measure
of natural resource consumption or of pollution. One environmental economist has put this
point succinctly as it is a mere monetary aggregate, GNP does not distinguish between
different types of economic activity: it simply records the overall total. It is quite possible for
GNP to go up with fewer resources being used and less pollution being generated, if the
content of growth tends away from environmentally-degrading activities.

The switch from coal or oil to gas-fired or nuclear power stations is one example of
environmentally friendly growth of this kind, and in general more environmentally efficient
use of natural resources or energy is more likely to promote economic growth rather than
retard it.

Whatever else it means therefore, sustainable development need not imply a policy of no
growth. Nor does the Rio Declaration envisage such an outcome. It firmly reiterates the
sovereign right of states to exploit their own resources in accordance with their own
environmental and development policies, although subject, as at Stockholm, to a
responsibility for trans-boundary environmental protection; it asserts a right to development,
albeit so as to meet equitably the needs of present and future generations, and it calls for an
‘open international economic system that would lead to economic growth and sustainable
development in all countries.’

Much of Agenda 21, and of international environmental law, has been concerned with
attaining this integration; clearly, a policy of economic growth which disregards
environmental considerations, or vice versa, will not meet the criterion of sustainable
development. But to view sustainable development as amounting to a compromise between
equally desirable ends fails to explain either the nature of sustainability or of development,
and gives us no criteria for determining the parameters and the ultimate objective of this
integration of development and environment. Nor does it tell us what the needs of future
generations will be.

On one view, sustainable development implies not merely limits on economic activity in the
interests of preserving or protecting the environment, but an approach to development which
emphasizes the fundamental importance of equity within the economic system. This equity is
both intra-generational, in that it seeks to redress the imbalance in wealth and economic
development between the developed and developing worlds by giving priority to the needs of
the poor, and inter-generational, in seeking a fair allocation of costs and benefits across
succeeding generations. Put simply, development will only be ‘sustainable’ if it benefits the
disadvantaged, without disadvantaging the needs of the future113.

What is characteristic of all these instruments is their commitment to protecting the interests
of future generations (an inherently problematic notion), and of developing countries. The
latter benefit more immediately from access to funding and capacity- building through the
Global Environmental Facility and other sources, from access to the benefits derived from
exploitation of their own genetic resources and transfer of technology, and from a recognition
that in a system of ‘ common but differentiated responsibilities’ developed countries bear a
larger responsibility for ensuring sustainable development ‘in view of the pressures their
societies place on the global environment and of the technologies and financial resources they
command’.

Thus ‘sustainable development’ is intended to serve not simply the needs of the environment,
but entails a reorientation of the world’s economic system in which the burdens of
environmental protection will fall more heavily on the developed Northern States and the
economic benefits will accrue more significantly to the underdeveloped south for the
common benefit of all.

A further element of sustainable development, however, is ‘a notion of economic welfare

which acknowledges non-financial components’, in particular the quality of the environment,
health, and the preservation of culture and community. We can see some of these concerns in
principle 1 of the Rio Declaration, which places human beings’ at the centre of concerns for
sustainable development’, and proclaims their entitlement to ‘ a healthy and productive life in
harmony with nature,’ but more especially in such international agreements as the 1972
Convention for the protection of World Cultural and National Heritage, which protects areas
like Stonehenge and the Great Barrier Reef .Similarly, the 1991 protocol to the Antarctic
Treaty on Environmental protection designates Antarctica a Special Conservation Area, and
acknowledges its ‘ intrinsic value’, including its ‘wilderness and aesthetic values’. However,
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Rio Declaration, Conventions on Climate Change, and Biodiversity Convention.
the Rio Declaration is somewhat less ‘ecocentric’ than its 1972 predecessor, and it lacks any
express reference to such values, or to conservation of wildlife and habitat.
Sustainable development is thus not exclusively concerned with narrow economic needs, but
encompasses a broader environmental perspective. Defined in these terms, sustainable
development has not been an objective of industrialized or developing countries until now,
and its implementation requires a considerable departure from earlier global economic
policy .This is most obviously true of the USA, where less than 5 per cent of the world’s
population consumes annually over 30 per cent of global energy output. Developing countries
not only have problems securing a more equitable balance of resource consumption, but their
control over their own natural resources and environmental policies may be significantly
limited by external indebtedness and resulting dependence on short-term resource
exploitation, influenced by patterns of international trade within the WTO system. It is in
this context that the failure of the present WTO system to take greater account of
environmental concerns or of the development interests of developing states may become a
structural inhibition on implementation of the policies adopted at Rio in 1992.

Other structural impediments are technological and scientific. We should not assume the
capability of scientists to identify all the adverse environmental consequences of economic
and industrial activity, whether now or in the future, or to provide technical solutions. Rather,
a concept of sustainability must take full account of the limitations of scientific knowledge
and prediction in the evaluation of environmental risks.

Sustainable development requires political action if it is to be implemented, and it may be

easier to deliver in certain systems than in others. While on the one hand a measure of
authoritarian dirigisme may appear superficially attractive if strong environmental controls
are required, in reality totalitarian societies such as the Soviet Union, China, or the former
communist regimes in Eastern Europe, have proved far less successful in managing their
environment and in avoiding environmental disasters than participatory democracies. It is no
coincidence that both the Soviet and Hungarian democratic revolutions of the period 1989-91
can be related directly to the environmental consequences of the Chernobyl accident and the
Gabcikovo-Nagymaros dam controversy, nor is it surprising that the Bhopal disaster has
greatly strengthened the emphasis which Indian courts now place on human rights and public
interest litigation in environmental matters. Environmental impact assessment, access to
information, and public participation in national policy formation and domestic
environmental governance are for this reason among the more important elements of the Rio
Declaration. Thus, sustainable development is as much about processes as about outcomes,
and for lawyers this may be the key point to grasp.

The notion of sustainable development is thus inherently complex and its implementation
obliges governments to think in somewhat different terms from those to which they have
become accustomed. Social, political and economic choices abound: what weight should be
given to natural resource exploitation over nature protection to industrial development over
the air and water quality, to land-use development over conservation of forests and wetlands,
to energy consumption over the risks of climate change, and so on. This may result in wide
diversities of policy and interpretation, as different governments and international
organizations pursue their own priorities and make their own value judgments, moderated
only to some extent by international agreement on such matters as climate change and
conservation of biological diversity. Only a few governments, such as New Zealand’s, have
legislated specifically for sustainable development. But, despite the demands of the Rio
Declaration for integration, many other governments approach the matter piecemeal, with
inevitable incoherence.

While it is one of the roles of international environmental law to give the concept of
sustainable development more concrete content, chiefly through multilateral environmental
treaties, this process is still very far from complete. In any event the nature of ‘sustainable
development’ is such that it cannot usefully be defined, at best, international law can only
facilitate its implementation in specific situations, such as conservation of high seas fisheries,
or trade in elephant ivory, or allocation of shared watercourses and so forth. Sustainable
development offers us a unifying concept for the exploitation of natural resources and the
integration of environment and development. However, it does not encompass the totality of
international environmental law.

B. The Elements of Sustainable Development

Sustainable development contains both substantive and procedural elements. The substantive
elements are mainly set out in principles 3-8 and 16 of the Rio Declaration. They include the
sustainable utilization of natural resources; the integration of environmental protection and
economic development; the right to development; the pursuit of equitable allocation of
resources both within the present generation and between present and future generations
( intra-and inter- generational equity), and the internalization of environmental costs through
application of the ‘polluter pays’ principle. None of these concepts is new, but the Rio
Declaration brings them together in a more systematic form than hitherto. The principal
procedural elements are found in principles 10 and 17 dealing with public participation in
decision- making and environmental impact assessment. Again, none of these is new, but
never before have had they secured such widespread support across the international
community.

2.12 Summary
No legal order can regulate with specific rules any possible conduct of legal subjects. Gaps
are bound to exist in the normative network of any community. Hence, the need to resort to
general principles, that is, sweeping and rather loose standards of conduct that can be
deduced from the various rules by extracting and generalizing some of the most significant
common points, so much so that we can safely say that, general principles constitute both the
backbone of the body of law governing international dealings and the potent cement that
binds together the various and often disparate cogs and wheels of the normative framework of
the community.

At present, in the world community, two distinct classes of general principles may be relied
upon. First, there are general principles of international law, namely those principles which
can be inferred or extracted by way of induction and generalization from conventional and
customary rule of international law. Second, there are principles that are peculiar to particular
branches of international law (the law of the sea, humanitarian law, the law of state
responsibility, etc.).

As a means of realization of friendly environment, experience and scientific expertise

demonstrate that prevention must be the Golden Rule for the environment, for both
ecological and economic reasons. This is a burning issue because in some instances it can be
impossible to remedy environmental injury once it has occurred. To further consolidate the
proactive measures, it is also important to relay on the precautionary approach that 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.
As a matter of fact, some times the proactive measure may fail to realize their objective and
in such a case it is a must case to take reactive measures. Accordingly, the affected
community bears the cost of the pollution and of the measures designed to eliminate it or to
mitigate its effects. The polluter-pays-principle avoids this result by obliging the polluter to
bear the costs of pollution control, to internalize them. In most cases the enterprise will in fact
incorporate the costs in the price of the products to some degree and pass them on to the
consumer.
The polluter pays principle is, therefore, a method for internalizing externalities. Those who
benefit from air made cleaner have a positive externality if they do not pay for the cleanup. In
general, environmental justice seeks to ensure that authorities fairly allocate and regulate
scarce resources to ensure that the benefits of environmental resources, the costs associated
with protecting them, and any degradation that occurs (i.e. all the benefits and burdens) are
equitably shared by all members of society. Environmental justice goes beyond traditional
environmental protection objectives to consider the equitable distribution of pollution, and,
more broadly, the often disproportionate burden borne by the poor and minority groups in
respect to environmental harm.

Once any legal system accommodates both proactive and reactive measures, environmental
justice seeks to ensure that authorities fairly allocate and regulate scarce resources to ensure
that the benefits of environmental resources, the costs associated with protecting them, and
any degradation that occurs (i.e. all the benefits and burdens) are equitably shared by all
members of society. Environmental justice goes beyond traditional environmental protection
objectives to consider the equitable distribution of pollution, and more broadly, the often
disproportionate burden borne by the poor and minority groups in respect to environmental
harm.

To maintain the flow of natural cycle, measures are expected to be taken at the international
plane in addition to the measures that could possibly be taken by individual states.
Accordingly, each and every state has the obligation to exercise due diligence. That is, a state
must act in a responsible way, with due regard to the interests of other states. It must
consider the risks and the possibilities involved, and take reasonable measures to avoid trans-
boundary harm. The costs and benefits on the two sides are relevant. The question may be
what resources are available on the one hand, and what interests are harmed on the other. The
economic situation and the capabilities of the polluting country, and the technical solutions
available, are also relevant.

To realize the responsibility of states at national and international level, states also have a
duty to inform and consult with other states, if activities within their territory may have
effects across the borders. More recently, this duty of information has developed into rules
on environmental impact assessment, in a trans-boundary context.
Finally, it is a must case to notice that sustainable development is a means to an end for the
realization of friendly environment. And, to have a clear picture of the subject matter,
sustainable development implies not merely limits on economic activity in the interests of
preserving or protecting the environment, but an approach to development which emphasizes
the fundamental importance of equity within the economic system. This equity is both intra-
generational, in that it seeks to redress the imbalance in wealth and economic development
between the developed and developing worlds by giving priority to the needs of the poor, and
inter-generational, in seeking a fair allocation of costs and benefits across succeeding
generations. Put simply, development will only be ‘sustainable’ if it benefits the
disadvantaged, without disadvantaging the needs of the future.

2.13 Review Questions

1. Indicate how the basic principles of environmental law are reflected under the
Ethiopian legal system.
2. Discuss what the polluter pays principle is.
3. Discuss the importance of states’ obligation to cooperate, to inform and to consult
with other states.
4. Define what sustainable development is.
5. Pinpoint the elements of sustainable development.
6. Discuss what integration principle is.
7. Discuss the role of the precautionary principle in the realization of proactive
measures.
8. Discuss shared natural resources, common property, and common heritages of
mankind.
9. Discuss the role of public interest litigation in the realization of environmental
democracy.
10. Discuss what environmental justice and equity are.