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C. PRINCIPLES OF ENVIRONMENTAL LAW
Summary of Class Notes This summary will provide an overview of the main principles in international environmental law. It identifies emerging important principles and concepts, describes the roles that they play, and provides some examples to illustrate ways in which they have been applied. Comprehension of modern and evolving international environmental law and its different facts needs not only knowledge of treaty law, but also the translation of principles and concepts into legally binding rules and instruments. The greatest strides in articulating and giving force to these principles were the Stockholm Conference^1 and the 1992 Earth Summit in Rio de Janeiro, Brazil. The basic principles of international environmental law include the following: 1.0. The Principle of Sustainable Development Although sustainable development is susceptible to some what different definitions, the most commonly accepted and cited definition is that of the Brundtland Commission on Environment and Development, which stated in its 1987 report, Our Common Future , that “Sustainable development is development that meets the needs of the present without compromising the ability of the future generations to meet their own needs.” The parameters of sustainable development are clarified in Agenda 21 and the Rio Declaration. Principle 4 of the Rio Declaration provides 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.” The National objectives and Directive principles of state policy set out in the 1995 Constitution in regard to the environment state that: “The state shall promote sustainable development and public awareness of the need to manage land, air, water resources in a balanced manner for the present and future generations.”^2 “The utilisation of natural resources of Uganda shall be managed in such a way to meet the development and environmental needs of the present and future generations of Ugandans and in particular the state shall take all the possible measures to prevent or minimise damage and destruction to land, air and water resources resulting from population pressures and other causes.”^3 The above principles are not contained in the Constitution and are therefore not enforceable as such leaving it to government or whoever is in authority to take a subjective decision as to how they are to be applied. The same principles are repeated even in more detail in sections 2 and 5(2)(b) of the National Environment Act (NEA) 2019. It is submitted that whereas the constitution and the NEA recognise the fundamental importance for sustainable development, both fail to set the necessary legal mechanism to ensure it. The people themselves should have been given express authority to ensure the observance of the principle of sustainable development both under the constitution and the NEA. In this way, they would have been provided with a peaceful avenue, for instance the courts of law, with in which to have conflicts relating to natural resources resolved. Leaving the resolution in the hands of the executive escalates conflict because (^1) Adopted at Stockholm on June 16 1972 (^2) XXVII(i) (^3) XXVII(ii)
decision making by the executive is more influenced by politics than reason. An example is the public outrage and demonstration over the Mabira forest give away in 2007. Lastly, under the principle of sustainable development, are the approaches that take into account long term strategies and those that include the use of environmental and social impact assessment, risk analysis, cost-benefit analysis and natural resource accounting. 2.0. Inter-Generational Equity Under inter-generational equity, the present generation has the right to use and enjoy resources of the earth but is under an obligation to take into account the long-term impact of its activities and to sustain the resource base and the global environment for the benefit of future generations of human kind. Intergenerational equity is also central to the attainment of sustainable development as resources must be used sparingly if they are exhaustible or must be replenished if possible. The Preamble of the 1995 Constitution of Uganda, Intergenerational equity requires that the present generations exploit or use natural resources in a way that will enable the next/future generations to use the same resources. Some national courts have referred to the rights of future generations in cases before them. For example, the supreme court of the Republic of the Philippines decided, in the Minors Oposa Case (Philippines- Oposa et. Al. v Fulgencio S. Factoran, Jr. et. Al. G.R. 101083) that, the petitioners could file a class suit, for others of their generation and for the succeeding generations. The court considering the concept of intergenerational responsibility, further stated that every generation has a responsibility to the next to preserve that rhythm and harmony necessary for the full enjoyment of a balanced and healthful ecology. 3.0. The Precautionary Approach/ Principle The 1982 World Charter for Nature in its principle 11(b) states that: “ Activities which are likely to pose significant risk to nature shall be preceded by an exhaustive examination; their proponents shall demonstrate that expected benefits out weigh potential damage to nature, and where potential adverse effects are not fully understood, the activities should not proceed.”^4 Although the World Charter for Nature did not make any explicit mention of the precautionary principle, it contained the essential ingredients of what eventually evolved into this contentious legal doctrine. Probably the most accepted articulation of the precautionary approach is principle 15 of the Rio Declaration which states that: “In order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation.” The precautionary principle is provided for under sections 4(3), 5(2)(g), 5(2)(i), 5(2)(j) and Pat X (i.e. sections 110-116 on EIA) of the National Environment Act (NEA) 2019. The precautionary principle has also been consistently referred to in various international instruments such as: the 1992 Convention on Biological Diversity (CBD);^5 1992 United Nations Framework Convention on Climate Change (UNFCCC);^6 (^4) This signified a deviation from the traditional tort law liability principles that required proof of causation as the basis for awarding damages. Even in international law, the link between cause and defect had been articulated in the trial smelter Arbitration between the United States and Canada. That case became a leading precedent on international responsibility, the Tribunal required proof of “substantial injury” demonstrated by clear and convincing evidence. (^5) Preamble (^6) Article 3(3)
In the case of Ms Sheila Zia and Others v WAPDA [Supreme Court of Pakistan], this case concerned a petition by the citizens of a street located in Islamabad City expressing apprehension against the construction of a grid station in a green belt of a residential locality. They pointed out that the electromagnetic field (EMF) created by the presence of high voltage transmission lines at the grid station would pose a serious hazard to the residents of the area especially the children and the families that live in the immediate vicinity. A number of scientific studies had been conducted of the effect of EMF but uncertainty remained an issue. As a result the court was confronted with an issue of scientific uncertainty on the subject and consequently the application of the precautionary principle. The court noted that the subject of EMF was a highly technical subject and the experts and evidence put before it in the course of proceedings was inconclusive. It could not therefore make a definite finding on the matter. With respect to the precautionary principle the court made the following observation: “...There is a state of uncertainty and in such a situation the authorities should observe the rules of prudence and precaution. The rule of prudence is to adopt such measures which may avert the so called danger, if it occurs. The rule of precautionary policy is to first consider the welfare and safety of the human beings and the environment and then pick up a policy and execute the plan which is more suited to obviate the possible danger or make such alternative precautionary measures which may ensure safety.” The court concluded that: “To stick to a particular plan on the basis of old studies or inconclusive research cannot be said to be a policy of prudence and precaution.” It appears from some of the judicial decisions that the courts have not yet determined how to deal with the postulate that it is harmless. What seems clear is that there is judicial acknowledgement of the inability of science to provide sufficient knowledge. Courts also seem to recognise that political decisions have to be made in margins of error from determinism’s ideal of all encompassing knowledge, to uncertainty and unpredictability. In, that situation, the conclusion from the decision is that the courts are very likely to be
unwilling to push the interpretive margins of the precautionary principle.
4.0. The Public Trust Doctrine The Public Trust doctrine requires the government to preserve and protect certain resources that the government holds in trust for the public. Part XIII of the 1995 Constitution of the Republic of Uganda under the National objective principle of state policy provides that: “The state shall protect important natural resources, including the land, water, wetlands, oil, fauna, and flora on behalf of the people of Uganda.” And while the binding nature of these principles remains unclear, at the very least it suggests that there is a constitutional basis for the public trust doctrine in Uganda. Furthermore, Article 237(b) of the Constitution provides that: “The government or Local government as determined by Parliament by law shall hold in trust for the people and protect natural lakes, rivers, wetlands, forest reserves, game reserves, national parks and any land to be reserved for ecological and tourist purposes of the common good of all citizens.”^14 (^14) This provision is further re-echoed by section 45 of the Land Act.
The Courts have applied the public trust doctrine to invalidate conflicting legislation, to limit the alteration of public resources, to require express legislative action, and to identify public rights over resource access and use. As early as 1865, the English House of Lords defined the concept of public trust more explicitly as is now known in the common law. In the case of Gann v Free Fishers of Whitestable ,^15 it was held that: “The bed of all navigable rivers where the tide flows, and all estuaries or arms of the sea is by law vested in the crown. By this ownership of the crown is for the benefit of the subject, and cannot be used in any manner so as to derogate from, or interfere with the right of navigation, which belongs by law to the subject of the realm.” Under common law, the public trust doctrine imposed a high fiduciary duty of care and responsibility upon the state. This duty rested on the nature of the state and the beneficiary communities. In the case of M.C. Metha v Kamal Nath and Others^16 the public trust doctrine was also emphasised in the following terms: “The public trust doctrine primarily rests on the principle that certain resources like the air, sea, waters, and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon government the duty to protect the resources subject to the trust for the enjoyment of the general public rather than to permit their use for the private or commercial purposes.” In the National Adubon Society v Superior Court of Alpine County (the Mono Lake Case)^17 the California Supreme Court summed up the powers of the state as trustee in the following terms: “Thus the public trust doctrine is more than an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and the tide lands, surrendering he right only in rare cases when he abandonment of that right is consistent with the purposes of the trust...” In all the above cases, therefore, the public trust doctrine represents a viable legal tool for establishing a system of governance that provides a dynamic and interconnected framework for intergenerational responsibility for the management of natural resources. However, the state still looks at natural resources as a source of income and wealth and has therefore been unable to fulfil its role as a trustee. This has increase conflict between the people and the state. It is suggested that this trusteeship should be vested in other representatives of the people such as traditional/cultural leaders. 5 .0. Common but Differentiated Responsibilities This principle is explicitly elaborated by Principle 7 of the Rio Declaration which states that: “States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the earth’s ecosystem. In view to the different contributions to global environmental degradation, states have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable (^15) 11 English Reports (ER) 1305 (1865) HL (^16) Writ petition[c] No. 182 of 1996 supreme court of India (^17) 33 Cal 3d 419
Principle 16 of the Rio Declaration on the internalisation of costs contains aspects of the PPP. Accordingly environmental costs of economic activities, including the costs of preventing potential harm, should be internalised rather than imposed upon the society at large. Other international instruments that provide for the PPP include: the 1992 Convention on the protection of the Marine Environment of the Baltic Sea Area;^22 the 1992 Helsinki Convention on the Protection and Use of Transboundary Water Courses and International Lakes;^23 the 2003 Protocol on Civil Liability and Compensation for Damage caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters to the 1992 Convention on the Transboundary Effects of Industrial Accidents;^24 and the 1996 Protocol to the London Convention.^25 7.0. The Participatory Principle The participatory principle involves the participation of the public in environmental affairs. This enables the public to know what the decision making processes are, what decisions are being contemplated, the alleged factual bases for proposed and accomplished governmental actions, and other aspects of governmental processes. Public participation is essential to sustainable development and good governance in that it is a condition for responsive, transparent and accountable governments. It is also a condition for the active engagement of equally responsive, transparent and accountable Civil Society Organisations (CSOs) and Non Governmental Organisations (NGOs). Public participation in the context of sustainable development requires effective protection of the human right to hold and express opinions and to seek, receive and impart ideas. It also requires a right of access to appropriate, comprehensible and timely information held by the governments and industrial concerns on economic and social policies regarding the sustainable use of natural resources and the protection of the environment, with out imposing undue financial burdens upon the applicants and with adequate protection of privacy and business confidentiality. Public participation also requires access to effective judicial and administrative process. The participatory principle is provided for under sections 5(2)(a), 5(2)(i), 50 and 51(2)(a-b) of the National Environment Act (NEA) 2019. In many countries, public participation rights are granted through Environmental and Social Impact Assessment procedures with broad public participation or various sectoral laws adapted to the special circumstances of each sector.^26 Several International instruments provide for public participation in environmental affairs, these include: The Rio Declaration under principle 7;^27 the 1992 United National Framework Convention on Climate Change (UNFCC);^28 and the 1994 Desertification Convention.^29 8.0. The Prevention Principle Experience and scientific expertise demonstrate that prevention of environmental harm should be the “ Golden Rule ” for the environment, for both ecological and economic reasons. It is frequently impossible to remedy environmental injury: the extinction of species of fauna and flora, erosion, loss of human life and the dumping of persistent pollutants into the sea, for example, create irreversible situations. Even when harm is (^22) Article 3(4) (^23) Article 2(5) (b) (^24) Preamble, paragraphs two and three (^25) Article 3(2) (^26) For example, the Memorandum of Understanding (MOU) of October 22, 1998, between Uganda, Kenya and Tanzania. This MOU contains an agreement of the three states to develop technical guidelines and regulations on EIA procedures, including enabling public participation at all stages of the process and to enact corresponding legislation (Article 14). (^27) Which provides that: “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making process. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.” (^28) Article 4 (1) (i) (^29) Article 3 (a) (c)
remediable, the costs of rehabilitation are of ten prohibitive. An obligation of prevention also emerges from the international responsibility not to cause significant damage to the environment extra-territorially. The prevention principle is provided for under sections 3(1), 3(2), 3(5)(a), 3(5)(f), 5(2)(j), 5(2)(p)(i), 70, and 78 of the National Environment Act (NEA) 2019. One obligation that flows from the concept of prevention is prior assessment of potentially harmful activities, i.e. the EIA process. Other preventive mechanisms include: monitoring, notification, and exchange of information, all of which are obligations in almost all recent environmental agreements. International Agreements that provide for the prevention principle include: the United Nations Convention on the Law of Non-Navigational Uses of International Watercourses;^30 Convention on the Conservation of Nature in the South Pacific;^31 and the Convention on Biological Diversity.^32 In fact, the objective of most international environmental instruments is to prevent environmental harm, whether they concern the pollution of the sea, inland waters, the atmosphere, soil or the protection of human life or living resources. Only a relatively few international instruments use other approaches, such as the traditional principle of state responsibility or direct compensation of the activities. 9.0. The Principle of Good Governance The concept of good governance is relatively recent and reflects a growing awareness of the importance to sustainable development of transparent and accountable, honest governance, as well as a growing awareness of the corrosive effect of corruption on public morale, economic efficiency, political stability and sustainable development in general. The concept implies, among others, that states and international organisations should: (a) adopt democratic and transparent decision-making procedures and financial accountability; (b) take effective measures to combat official or other corruption; (c) respect due process in their procedures and observe the rule of law more generally; (d) protect human rights; and (e) conduct public procurement in a transparent, non corrupt manner. Good governance implies not only that Civil Society has a right to good governance by states and international organisations, but also that non state actors, including business enterprises and NGOs, should be subject to internal democratic governance and effective accountability. In addition, good governance calls for corporate responsibility and socially responsible investments as conditions for the existence of a sustainable global market that will achieve an equitable distribution of wealth among and within communities. Good governance also requires full respect for the principles of the 1992 Rio Declaration on the Environment and Development, including the full participation of women at all levels of decision making. Achieving good governance is essential to the progressive development, codification and implementation of international and domestic laws relating to sustainable development. Also Goal 8 of the Millennium Development Goals on developing a global partnership for development has as one of its targets (target 12) to “Develop further an open, rule-based, predictable, non-discriminatory trading and financial system. Includes a commitment to good governance, development, and poverty reduction- both nationally and international.” (^30) Article 22 (^31) Article V(4) (^32) Article 14 (1) (a) and (b)
