What is International Environmental Law?
Is Environmental Law a self-contained discipline? Or does it have its own sources and methods of law-making deriving from principles peculiar or exclusive to environmental concerns?
A number of preliminary problems arise in any attempt to identify “international environmental law”. Some scholars have avoided the use of the term, arguing that there is no distinct body of international environmental law with its own sources and methods of law-making deriving from principles peculiar or exclusive to environmental concerns. Rather, they stress that such relevant law as does exist originates from the application of general rules and principles of classical or general international law and its sources.
Thus international environmental law is nothing more, or less, than the application of international law to environmental problems.
Whatever the case may be, at this juncture, it should be noted that this over-emphasis on the role of general International law will not have the worsening effect on the environmental problems since the traditional legal order of the environment is essentially a laissez-faire system oriented toward the unfettered freedom of states.
The next issue is verifying whether currently there is a body of law more specifically aimed at protecting the environment or not?
While it is unquestionably correct that international environmental law is merely part of international law as a whole, rather than some separate, self-contained discipline, and no serious lawyer would suggest otherwise, the problem with over-emphasizing the role of general international law, as one writer points out, has been that the traditional legal order of the environment is essentially a laissez-faire system oriented toward the unfettered freedom of states. Such limitations on freedom of action as do exist have emerged in an ad hoc fashion and have been formulated from perspectives other than environmental.[ii] To try to overcome these inadequacies, as environmental problems have worsened, it has become necessary to develop a body of law more specifically aimed at the protection of the environment.
A study of contemporary international environmental law thus requires us to consider both this new body of specifically environmental law and the application of general international law to environmental problems. Moreover, international environmental law also includes not only public international law, but also relevant aspects of private international law, and in some instances has borrowed heavily from national law.
Now, taking the above facts for granted, let us proceed to address issues in regard to how to define International Environmental Law.
International Environmental law is thus used simply as a convenient way to encompass the entire corpus of international law, public and private, relevant to environmental issues or problems, in the same way as the use of the terms law of the sea, Human Right law, and International Economic Law is widely accepted.
It is not intended thereby to indicate the existence of some new discipline based exclusively on environmental perspectives and strategies, though these have played an important role in stimulating legal developments in this field, as we shall observe. It has become common practice to refer to international environmental law in this way.
What is National Environmental Law?
In the context of the Ethiopian legal system, National environmental law includes the provisions concerning the environment in the 1995 FDRE constitution; different environmental treaties ratified by the House of Representatives according to Art. 9 (4) of our constitution and all laws (federal and regional) concerned with the environment (Forestry, Land, Water use and other sectoral laws).
Factors that Gave Rise to Environmental Law: National and International Perspective
At this point before we try to see the evolution of environmental law both at international and national levels; it would be appropriate to see the factors that gave raise to their emergence. Accordingly, many environmentalists agree that the following factors gave rise to the emergence of environmental law:[iii]
First is the existence of an extensive range of environmental problems.
These include atmospheric pollution, marine pollution, global warming and ozone depletion, the danger of nuclear and other extra-hazardous substances and threatened wildlife species. Such problems have an international dimension in two obvious respects.
(1). Pollution generated from within a particular state often has a serious impact upon other countries. The prime example would be acid rain, whereby chemicals emitted from factories rise in the atmosphere and react with water and sunlight to form acids. These are carried in the wind and fall eventually to earth in the rain, often thousands of miles away from the initial polluting event.
(2). The fact that these environmental problems cannot be resolved by states acting individually. Accordingly, co-operation between the polluting and polluted state is necessitated.
However, the issue becomes more complicated in those cases where it is quite impossible to determine from which country a particular form of environmental pollution has emanated. This would be the case, for example, with ozone depletion.
Second, the question of the relationship between the protection of the environment and the need for economic development is another factor underpinning the evolution of environmental law.
The correct balance between development and environmental protection is now one of the main challenges facing the international community and reflects the competing interests posed by the principle of state sovereignty on the one hand and the need for international co-operation on the other. It also raises the issue as to how far one takes into account the legacy for future generations of activities conducted at the present time or currently planned.
Historical Development of International Environment Law
Throughout history national governments have passed occasional laws to protect human health from environmental contamination. For example, in about 80 AD the Senate of Rome passed legislation to protect the city’s supply of clean water for drinking and bathing. In the 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 20th 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 20th 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 20th century, the party had joined a coalition government and was responsible for developing and implementing Germany’s extensive environmental policies. As a group Germany, The Netherlands, and Denmark—the so-called “green troika”—established themselves as leading innovators in environmental law.
During the 1980s the “trans-boundary effects” of environmental pollution in individual countries spurred negotiations on several international environmental conventions. The effects of the 1986 accident at the nuclear power plant at Chernobyl in Ukraine (then part of the Soviet Union) were especially significant. European countries in the pollution’s downwind path were forced to adopt measures to restrict their populations’ consumption of water, milk, meat, and vegetables. In Austria traces of radiation were found in cow’s milk as well as in human breast milk. As a direct result of the Chernobyl disaster, two international agreements—the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of Nuclear Accident or Radiological Emergency, both adopted in 1986 were rapidly drafted to ensure notification and assistance in the event of a nuclear accident. In the following decade a Convention on Nuclear Safety (1994) established incentives for countries to adopt basic standards for the safe operation of land-based nuclear power plants.
There are often conflicting data about the environmental impact of human activities, and scientific uncertainty often has complicated the drafting and implementation of environmental laws and regulations, particularly for international conferences attempting to develop universal standards. Consequently, such laws and regulations usually are designed to be flexible enough to accommodate changes in scientific understanding and technological capacity. The Vienna Convention for the Protection of the Ozone Layer (1985), for example, did not specify the measures that signatory states were required to adopt to protect human health and the environment from the effects of ozone depletion, nor did it mention any of the substances that were thought to damage the ozone layer.
Similarly, the Framework Convention on Climate Change, or Global Warming Convention, adopted by 178 countries meeting in Rio de Janeiro at the 1992 United Nations Conference on Environment and Development (popularly known as the “Earth Summit”), did not set binding targets for reducing the emission of the “greenhouse” gasses thought to cause global warming.
In 1995 the Intergovernmental Panel on Climate Change, which was established by the World Meteorological Organization and UNEP to study changes in the Earth’s temperature, concluded, “The balance of evidence suggests a discernible human influence on global climate.” Although cited by environmentalists as final proof of the reality of global warming, the report was faulted by some critics for relying on insufficient data, for overstating the environmental impact of global warming, and for using unrealistic models of climate change. Two years later in Kyoto, Japan, a conference of signatories to the Framework Convention on Climate Change adopted the Kyoto Protocol, which featured binding emission targets for developed countries, a system whereby developed countries could obtain credit toward their emission targets by financing energy-efficient projects in less-developed countries (known as “joint implementation”), clean-development mechanisms, and emissions trading.
Historical Development of Environmental Law in Ethiopia
One could say environmental issues came to the forefront in Ethiopia at the wake of 1974 and 1984 draught because it was believed that the draught was the result of agricultural degradation or environmental mismanagement.
But, here, it is good to keep in mind that this doesn’t mean that there was no environmental management before the above mentioned draught. Rather, there were fragmented environmental management activities in Ethiopia like the establishment of Semen National Park, Awash National Park and other wildlife protections though these were individual cases and nota holistic approach to the problem.
Environmental management was also practiced before the above-mentioned draughts at the community level though it was not reflected in the drafting of the law. It is just like soil preservation methods and others. Usually the practice was Top down Approach rather than bottom up approach.
The other reason for the coming to the forefront of environmental issues (other than the draught )was international pressure from the international community, like the Rio Conference in 1992 (since Ethiopia was one of the participants of the conference). Currently, we find a legal basis for national environmental law in our FDRE Constitution.
For example, the FDRE Constitution reads as:
1). All persons have the right to clean and healthy environment.
2). All persons who have been displaced or whose livelihoods have been adversely affected as a result of state programmes have the right to commensurate monetary or alternative means of compensation, including relocation with adequate state assistance.
Equally Art.92 of the same constitution further provides that:
1). The government shall endeavor to ensure that all Ethiopians live in a clean and healthy environment.
2). The design and implementation of programmes and projects of development shall not damage or destroy the environment.
3). People have the right to full consultation and to the expression of views in planning and implementation of environmental policies and projects that affect them directly.
4). The government and citizens have the duty to protect the environment.
The Environmental Policy of Ethiopia (EPE) is taken from Vol.II of the Conservation Strategy of Ethiopia (CSE) and is sought to guide all environmental related activities that are undertaken or must be undertaken by the Environmental Protection Authority and other sectors.
The CSE document consists of five volumes:. These are: Vol. I, the Natural Resources Base, Vol. II, Policy and Strategy, Vol. III, Institutional Frame Work, Vol. IV the Action Plan and Vol. V, Compilation of Investment Programmes.
EPE took 10 years to develop. It was approved by the Council of Ministers of the Federal Democratic Republic of Ethiopia on April 2, 1997. It was externally driven by the World Bank. It was consultative in identification of problems with the concerned bodies like investment office and others. Currently every region in Ethiopia has its own Conservation Strategy.
The policy has a Policy Goal, Objectives and Guiding Principles.
The overall policy goal is:
To improve and enhance the health and quality of life of all Ethiopians and to promote sustainable social and economic development through the sound management and use of natural, human-made and cultural resources and the environment as a whole so as to meet the needs of the present generation without compromising the ability of future generations to meet their own needs.
EPE also has specific policy objectives and key guiding principles. Underlying these broad policy objectives is a number of key principles. Establishing and clearly defining these guiding principles is very important, as they will shape all subsequent policy, strategy and programme formulations and their implementation. Sectorial and cross-sectorial policies and environmental elements of other macro policies will be checked against these principles to ensure consistency.
Levels of Environmental Law
Environmental law exists at many levels and is only partly constituted by international declarations, conventions, and treaties. The bulk of environmental law is statutory—i.e., encompassed in the enactments of legislative bodies—and regulatory—i.e., generated by agencies charged by governments with the protection of the environment.
In addition, many countries have included some right to environmental quality in their national constitutions. Since 1994, for example, environmental protection has been enshrined in the German Grundgesetz (“Basic Law”), which now states that the government must protect for “future generations the natural foundations of life.” Similarly, the Chinese constitution guarantees to each citizen a “right to life and health” and requires the state to ensure “the rational use of natural resources and protects rare animals and plants”; the South African constitution recognizes a right to “an environment that is not harmful to health or well-being; and to have the environment protected, for the benefit of present and future generations”; the Bulgarian constitution provides for a “right to a healthy and favorable environment, consistent with stipulated standards and regulations”; and the Chilean constitution contains a “right to live in an environment free from contamination.”
Much environmental law also is embodied in the decisions of international, national, and local courts. Some of it is manifested in arbitrated decisions, such as the Trail Smelter arbitration (1941), which enjoined the operation of a smelter located in British Columbia, Canada, near the international border with the U.S. state of Washington and held that “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein.”
The Role of International and National Laws in the Protection of the Environment
A law is society’s system for weighing different interests, goals, and values, and for making decisions when conflicting interests cannot be reconciled in other ways. It is based mainly on political decisions and guidelines in the form of legislation and on society’s general values or ethical norms. So, a law is formed by the legal system itself, with its own norms and values.
By the legal system it meant, institutions or arenas dominated by lawyers and legal methodology: legal doctrine and education, and legal practice within and outside the courts.[x]
The role of the law in protecting the environment is not fundamentally different in both international and national law. Accordingly,
First, it provides mechanisms and procedures for negotiating the necessary rules and standards, settling disputes, and supervising implementation and compliance with treaties and customary rules.
Second, it is concerned with regulating environmental problems, setting common standards and objectives for prevention or mitigation of harm, and providing a flexible rule-making process that allows for easy and regular amendment in the light of technological developmenst and advances in scientific and other knowledge.
Third, reinstatement of or compensation for environmental damage is a more limited but still important function.
It is more limited because only those who suffer damage can secure such redress and also because not all-environmental damage is necessarily capable of reinstatement or has an economically assessable value.
Finally, it benefits or keeps accountable individuals.
Does the Existing Environmental Law Adequately Protect the Environment?
This is an important question to which there is no easy or single answer. Whether the protection offered to the environment by both international and national law is adequate in scope and stringency is of course a value judgment, which will depend on the weight given to the whole range of competing social, economic, and political considerations.
As far as measuring the effectiveness of the law in protecting the environment is concerned, much depends on the criteria used.
Effectiveness has multiple meanings:
First, it may mean solving the problem for which the regime was established (for example, avoiding further depletion of the ozone layer);
Second, achievement of goals set out in the constitutive instrument (for example, attaining a set percentage of sculpture emission);
Third, altering behavior pattern (for example, moving from use of fossil fuels to solar or wind energy production);
Finally, enhancing national and international compliance with rules and international agreements.
By way of conclusion we have to keep in mind that the effectiveness of different regulatory and enforcement techniques are largely determined by the nature of the problem. What works in one case may not work in others.