INTERNATIONAL ENVIRONMENTAL PRINCIPLES

1. SUSTAINABLE DEVELOPMENT BY KELSEY ELLAMS NALUENDE

2. STRICT VS ABSOLUTE LIABILITY BY LYDIA MALALA ABUTI
3. POLLUTER PAYS PRINCIPLE BY MITO JOHN OSOO
4. PRECAUTIONARY PRINCIPLE BY EMMANUEL M. KIMEU
5. SUSTAINABLE DEVELOPMENT BY MELISSA KORIR

1.SUSTAINABLE DEVELOPMENT BY KELSEY ELLAMS NALUENDE

The Environmental Management and Coordination Act defines Sustainable
Development as development that meets the needs of the present without
compromising ability of future generations to meet their own needs.
Since the Rio Declaration, Sustainable Development has been adopted by numerous
governments both at national and regional level and international institutions (Principle
27 of Rio and Chapter 39 of Agenda 21). The impact of Sustainable Development law
can be observed in the case concerning the Gabakovo-Nagymaros Dam in which the
international Court referred for the first time to the need to reconcile economic
development protection which is aptly expressed in the concept of Sustainable
Development. In 1977 Czechoslovakia and Hungary agreed to build a barrage complex
on the Danube River with large dams at Gabcikovo (Czechoslovakia) and Nagymaros
(Hungary). According to the treaty, the jointly-owned and -operated system would
"strengthen the fraternal relations of the two states and significantly contribute to the
bringing about of their socialist integration." In reality, however, it sparked a controversy
between these two neighbors that has plagued Hungarian-Slovak relations for more
than two decades. The ICJ faced three questions:
1. was Hungary entitled to abandon work on the dams in 1989;
2. was Czechoslovakia entitled to proceed with Alternate C in 1991 and put this
system into operation in October 1992; and
3. What were the legal effects of Hungary's termination of the agreement in May
1992?
In the1997 ruling, the Court took as its starting point the characterization of the project
in the 1977 agreement as "single and indivisible." Furthermore, since there were no
provisions in the treaty for one side to terminate, it was still in force. Therefore, Hungary
had no right to act as it did. On the other hand, Slovakia still could not put Gabcikovo
into operation due to the ecological effects of the project.
The Most potentially far reaching aspect of sustainable development is that it makes a
state’s management of its own domestic environment a matter of international concern
as clearly evident in the Stockholm Declaration, The Rio Declaration and Agenda 21.
1. NEED FOR SUSTAINABLE DEVELOPMENT:
There are several challenges that need attention in the arena of economic development
and environmental depletion. Hence the idea of Sustainable development is essential to
address the following issues:
a. To curb or prevent the environmental degradation
b. To ensure a safe human life
c. To check the exploitative technology and find alternative sources
d. To check the over exploitation and wastage of natural resources
e. To regenerate renewable energy resources
The concept of Sustainable development is based on following principles
a. Integration of environment and economic decision
b. Stewardship or humans as the caretaker of the environment
c. Shared responsibility, accountability and decision making
d. Prevention and mitigation
e. Conservation
f. Waste minimization
g. Enhancement of productivity, capability, quality of nature and human life
Rehabilitation and reclamation
2. COMPONENTS OF SUSTAINABLE DEVELOPMENT:
The components are broadly divided into three elements namely social, economic and
environmental.
a) Social components-
• Workers health and safety
• Impact on local communities, quality of life
• Benefits to disadvantaged groups
b) Economic components:
• Creation for new markets and opportunities for sale growth
• Cost reduction through efficiency and improvements and reduced energy and raw
material inputs
• Creation of additional value
c) Environmental components:
• Reduce waste, effluent generation, emission into environment
• Reduce impact on human health
• Use of renewable raw material
• Elimination of toxic substances
3. ELEMENTS OF SUSTAINABLE DEVELOPMENT
The elements of Sustainable Development have both the substantive and procedural
aspects.
1. SUBSTANTIVE ASPECTS
These are as follows:
a. Sustainable utilization of natural resources
b. Integration of environmental protection and economic development
c. The right to development
d. Pursuit of equitable allocation of resources both within the present, past and
future generations.
e. Internationalization of environmental costs through application of the polluter
pays principle
Substantive Aspects of Sustainable Development under the Stockholm
Declaration
a. Principle 22 emphasizes on cooperation of states to develop further the
international law regarding liability and compensation for their victims of pollution and
other environmental damage caused by activities within the jurisdiction or control of
such states to areas beyond their jurisdiction.
b. Principles 2, 3 and 5 set forth general guidelines for the natural resources of the
Earth to be safeguarded for the benefit of present and future generations, and for the
maintenance, restoration and improvement of vital renewable resources and upon
exhaustion of non-renewable resources.
c. Principle 4, 6 and 7 identify specific environmental threats recalling the special
responsibility of man to the special responsibility of man to safeguard and wisely
manage the heritage of wildlife and habitat, halt the discharge of toxic and other
substances and heat which cause serious or irreversible damage to the ecosystem and
prevent pollution of the seas or harm to living resources and marine life.
d. Principles 8-15 address issues which reflected between development and
environmental quality they called for accelerated development through the transfer of
financial and technological assistance and stable and adequate prices for commodities
and raw materials, and they supported an integrated and coordinated approach to
rational development planning which is compatible with protecting improving the human
environment.
Substantive Aspects of Sustainable Development under the Rio Declaration
a. The Preamble provides that the declaration not only seeks to reaffirm the
principles under the Stockholm Declaration but also works towards international
agreements which respect the interests of all, protect the integrity of the global
environmental and developmental systems.
b. Principle 3 reaffirms the right to development and provides that it must be fulfilled
so as to equitably meet developmental and environmental needs of present and future
generations.
c. Principle 4 provides that in order to achieve Sustainable Development,
environmental protection shall constitute an integral part of the developmental process
and cannot be considered in isolation from it.
d. The Rio Declaration develops general principles of international law of
sustainable development. These include the precautionary principle under Principle 15
and the polluter pays principle under principle 16.
e. Principle 8 emphasizes on the reduction and elimination of unsustainable
patterns of production and consumption.
f. The relationship between environmental protection and free trade obligations
under Principle 12.
2. PROCEDURAL ELEMENTS
These include:
a. Public participation in decision making.
b. Environmental impact assessment.
Public Participation in the Stockholm Declaration
a. Principles 16-20 recognized the need for appropriate demographic policies;
supported the development of national institutions to manage environmental resources;
called for the application of science and technology and encouraged education and
scientific research and development.
b. Principle 20 provides that relevant information must be supplied by states on
activities or development within their jurisdiction under their control whenever they
believe or have reason to believe, that such information is needed to avoid the risk of
significant adverse effects on the environment in areas beyond their national
jurisdiction. This was however objected by developing states for the reason that the
obligation to consult might be abused by developed states.
Public Participation in the Rio Declaration
a. This goes beyond the Stockholm Declaration by providing for public participation
under Principle 10, use of environmental impact assessment under Principle 17 and
enhanced notification, information exchange and consultation under principles 18 and
19.
b. Participation of women under Principle 20, youth under principle 21 and
indigenous people under the communities under Principle 22.

Sustainable development in the constitution of Kenya, 2010

Article 10(d) recognizes Sustainable Development as a national value and principle of
governance.
The new Kenyan Constitution makes environmental protection an obligation of
government and citizens. Article 69 provides as follows:
Obligations in respect of the environment
1. The State shall—
a. ensure sustainable exploitation, utilization, management and conservation
of the environment and natural resources, and ensure the equitable
sharing of the accruing benefits;
b. work to achieve and maintain a tree cover of at least ten per cent of the
land area of Kenya;
c. protect and enhance intellectual property in, and indigenous knowledge of,
biodiversity and the genetic resources of the communities;
d. encourage public participation in the management, protection and
conservation of the environment;
e. protect genetic resources and biological diversity;
f. establish systems of environmental impact assessment, environmental
audit and monitoring of the environment;
g. eliminate processes and activities that are likely to endanger the
environment; and
h. Utilize the environment and natural resources for the benefit of the people
of Kenya.
 2. Every person has a duty to cooperate with State organs and other persons to
protect and conserve the environment and ensure ecologically sustainable
development and use of natural resources.
The Constitution thus takes perspective geared towards the protection of the
environment as well as for protection of human needs thus advancing Agenda 21 and
Brundtald Commission Report.
The Constitution clearly incorporates the principles of conserving options, quality and
access under Article 60 (1). Article 60 provides as follows:
Principles of land policy
1. Land in Kenya shall be held, used and managed in a manner that is equitable,
efficient, productive and sustainable, and in accordance with the following principles
—
a. equitable access to land;
b. security of land rights;
c. sustainable and productive management of land resources;
d. transparent and cost effective administration of land;
e. sound conservation and protection of ecologically sensitive areas;
f. elimination of gender discrimination in law, customs and practices related to land
and property in land; and
g. Encouragement of communities to settle land disputes through recognized local
community initiatives consistent with this Constitution.
2. These principles shall be implemented through a national land policy developed and
reviewed regularly by the national government and through legislation.
It also requires the State to strive towards achieving and maintaining a tree cover of at
least 10%, encourage public participation in environmental protection efforts and the
elimination of activities and process likely to endanger the environment.

2.PRINCIPLES OF ENVIRONMENTAL PROTECTION BY LYDIA MALALA ABUTI

(vii). Strict verses absolute Liability
a.) Strict Liability
The principle of strict liability evolved in the case of Rylands v Fletcher In the year
1868, the principle of strict liability states that any person who keeps hazardous
substances on his premises will be held responsible if such substances escape the
premises and causes any damage.
Going into the facts of the case, F had a mill on his land, and to power the mill, F built a
reservoir on his land. Due to some accident, the water from the reservoir flooded the
coal mines owned by R. Subsequently, R filed a suit against F. The Court held that the
defendant built the reservoir at his risk, and in course of it, if any accident happens then
the defendant will be liable for the accident and escape of the material.
Going by the principle laid in this case, it can be said that if a person brings on his land
and keeps some dangerous thing, and such a thing is likely to cause some damage if it
escapes then such person will be answerable for the damaged caused. The person
from whose property such substance escaped will be held accountable even when he
hasn’t been negligent in keeping the substance in his premises. The liability is imposed
on him not because there is any negligence on his part, but the substance kept on his
premises is hazardous and dangerous. Based on this judicial pronouncement, the
concept of strict liability came into being. There are some essential conditions which
should be fulfilled to categorize a liability under the head of strict liability.
Essentials of Strict Liability
I. Dangerous Substances: The defendant will be held strictly liable only if a
“dangerous” substances escapes from his premises.
For the purpose of imposing strict liability, a dangerous substance can be defined as
any substance which will cause some mischief or harm if it escapes. Things like
explosives, toxic gasses, electricity, etc. can be termed as dangerous things.
II. Escape: One more essential condition to make the defendant strictly liable is that
the material should escape from the premises and shouldn’t be within the reach
of the defendant after its escape.
For instance, the defendant has some poisonous plant on his property. Leaves from the
plant enter the property of the plaintiff and is eaten by his cattle, who as a result die.
The defendant will be liable for the loss. But on the other hand, if the cattle belonging to
the plaintiff enter the premises of the defendant and eats the poisonous leaves and die,
the defendant would not be liable. In the judicial pronouncement of Reads v. Lyons &
Co. it was held that if there is no escape, the defendant cannot be held liable.
III. Non-natural Use: To constitute a strict liability, there should be a non-natural
use of the land. In the case of Rylands v. Fletcher, the water collected in the
reservoir was considered to be a non-natural use of the land. Storage of water for
domestic use is considered to be natural use. But storing water for the purpose of
energizing a mill was considered non-natural by the Court. When the term “non-
natural” is to be considered, it should be kept in mind that there must be some
special use which increases the danger to others. Supply of cooking gas through
the pipeline, electric wiring in a house, etc. is considered to be the natural use of
land. For instance, if the defendant lights up a fire in his fireplace and a spark
escapes and causes a fire, the defendant will not be held liable as it was a
natural use of the land.
These three conditions need to be satisfied simultaneously to constitute a strict liability.
 
Exception to the Rule of Strict Liability
There are certain exceptions to the rule of strict liability, which are-
i. Plaintiff’s Fault: If the plaintiff is at fault and any damage is caused, the
defendant wouldn’t be held liable, as the plaintiff himself came in contact with the
dangerous thing.
In the judicial pronouncement of Ponting v Noakes, the plaintiff’s horse died after it
entered the property of the defendant and ate some poisonous leaves. The Court held
that it was a wrongful intrusion, and the defendant was not to be held strictly liable for
such loss. 
ii. Act of God: The phrase “act of God” can be defined as an event which is
beyond the control of any human agency. Such acts happen exclusively due to
natural reasons and cannot be prevented even while exercising caution and
foresight. The defendant wouldn’t be liable for the loss if the dangerous
substance escaped because of some unforeseen and natural event which
couldn’t have been controlled in any manner.
iii. Act of the Third Party: The rule also doesn’t apply when the damage is caused
due to the act of a third party. The third party means that the person is neither the
servant of the defendant, nor the defendant has any contract with them or control
over their work. But where the acts of the third party can be foreseen, the
defendant must take due care. Otherwise, he will be held responsible.
For instance, in the case of Box v Jubb, where the reservoir of the defendant
overflowed because a third party emptied his drain through the defendant’s reservoir,
the Court held that the defendant wouldn’t be liable.
iv. Consent of the Plaintiff: This exception follows the principle of violenti non
fit injuria.
b) Absolute Liability
Absolute Liability is a term used to explain a case where Liability attaches to someone
on a given condition, despite any care that that person might have taken despite any
facts that suggest that the incident was outside human foresight.
The principle of absolute Liability came in as there was criticism in Rylands vs Fletcher's
case on the ground that an accidental escape caused by the forces of nature is within
the risk that must be accepted by the defendant when he accumulates the substance on
his land. In India, absolute Liability is a standard of both tortious and criminal Liability
which stipulates that where an enterprise is engaged in a hazardous or inherently
dangerous activity. Harm results to anyone on account of an accident in the operation of
such hazardous or inherently dangerous activity resulting, for example, in the escape of
toxic gas the enterprise is strictly and liable to compensate all those affected by
accident. Such Liability is not subject to any exceptions that operate vis-Ã-vis the
tortious principle of Strict Liability.
Absolute Liability was initially used only in cases involving public hazard. Still, with the
transition of the concept of Liability, courts started applying this concept whenever and
wherever wellbeing of any individual is concerned. The courts can also uphold absolute
Liability in case of a single death without any mass destruction of property or pollution of
the environment.
In Hoy v. Miller, Justice Golden expounded the term Absolute Liability as ‘‘ a liability
without fault – a liability for which there is no excuse’’. The Principle of Absolute Liability
was formulated and verbalized primarily in M. C. Mehta v. Union of India in 1986, and
later in Bhopal Gas Tragedy case. Absolute Liability is a tortuous component. This
principle enforces the duty of care owed to the public by companies that deal with
hazardous elements. Any institution engaged in the production and use of harmful
substances must make sure that no harm is done to that area's residents. If a person is
harmed, the enterprise shall be liable, and no defense or exceptional circumstances
may relieve them of such liability. Those liable cannot use defense such as negligence,
fault, act of God, error to seek an exempt status from reimbursement and liability.
Hazardous components are the prerequisites for the implementation of Absolute
Liability.
3.POLLUTER PAYS PRINCIPLE BY MITO JOHN OSOO
The polluter pays principle was developed in the 1970s as an economic principle within
the frameworks of the Organization for Economic Co-operation and Development
(OECD) and the then European Economic Community (EEC). Its aim was to internalize
external costs in order to avoid distortions of trade and competition. It was initially
recognized in regional soft law instrument of these two organizations.
In 1972, the OECD Guiding Principles Concerning the International Economic Aspects
of Environmental Policies 1 first articulated PPP as a principle 'to be used for allocating
costs of pollution prevention and control measures to encourage rational use of scarce
environmental resources and to avoid distortions in international trade and investment'.
The principle implies that 'the polluter should bear the expenses of carrying out the
measures decided by public authorities to ensure that the environment is in an
acceptable state and that 'the cost of these measures ,should be reflected in the cost of
goods and services which cause pollution in production and consumption.
The initiative to promote the polluter pays principle, taken by the OECD during the
1970s, has subsequently been widely endorsed in relation to the protection of the global
environment. In essence, it could be said to be based on three elements: the need for
preventive action; the need for environmental damage to be rectified at the source; and
that the polluter should pay. However, the precise scope of the principle, and its
implications for those involved in potentially polluting activities, has never been
satisfactorily agreed. Furthermore, it is not yet unquestionably accepted as a principle of
international law
Article 2(5) and (6) of the Constitution of Kenya which recognizes the general rules of
international law and any treaty or convention ratified as Kenyan law, these principles
are integrated within the Kenyan legal framework. The Environmental Management and
Coordination Act (EMCA) (2015) defines polluter pays principle as the cost of cleaning
up any element of the environment damaged by pollution, compensating victims
of pollution, cost of beneficial uses lost as a result of an act of pollution and
other costs that are connected with or incidental to the foregoing, is to be paid or
borne by the person convicted of pollution
It is evident that the polluter of the environment must pay the cost of pollution
abatement, the costs of environmental restoration and costs of compensating victims of
pollution, if any. The polluter pays principle promotes the right to a clean and healthy
environment and gives appropriate remedies to victims of pollution. In this way, the
polluter pays principle is key in enhancing access to environmental justice. It also acts
as an economic policy tool by internalizing the costs of pollution as required by Principle
16 of the Rio Declaration. Principle 16 states that national authorities should endeavor
to promote the internalization of environmental costs and the use of economic
instruments, taking into account the application that the polluter should in principle bear
the cost of pollution with due regard to the public interest and without distorting
international trade and investment.
One seeking redress for a violation of environmental rights may seek redress from the
High Court under Section 3(5) of the EMCA. The High Court is required to consider the
polluter pays principle as one of the guiding principles when enforcing the right to a
clean and healthy environment. The EMCA provides 13 regulations that define various
environmental management standards as well as accompanying offenses for non-
compliance, including the offences and prescribed penalties for non-adherence of set
standards. The Regulations penalties range from KShs.350, 000.00 to KShs.500,
000.00. The financial penalties fail to act as a sufficient deterrence for firms or
individuals to refrain from polluting as it is considered a minimal amount to cost to pay
for pollution
However, the application of the polluter pays principle in natural resource management
is limited by the fact that not all forms of environmental damage can be remedied by
means of the liability mechanism. For a liability mechanism to be effective, the polluter
must be identified, damage must have occurred, and must be quantifiable and a causal
link must be established between the damage and the polluter. The issue of causation
and the difficulty of identifying the polluter to establish liability for environmental damage
was noted in Natal Fresh Produce Growers Association v. Agro serve (Pty) Ltd,
where a South African court held that the manufacturer of herbicides was not liable
since the use of hormonal herbicides anywhere in South Africa could not result in
damage to fresh produce in Tala Valley.
The effectiveness of the polluter pays principle is also reliant on the ability of the polluter
to pay the costs of pollution. This may limit its efficacy in natural resources
management. In Kenya, there are efforts aimed at preventing environmental pollution
and environmental damage through the internalization of externalities. Section 108 of
EMCA provides for environmental restoration orders which can be issued by NEMA to
deal with pollution. Such an order may require the person to whom it is issued to restore
the environment, prevent any action that would or is reasonably likely to cause harm to
the environment, require payment of compensation and levy a charge for abatement
costs. Likewise, a court can issue an environmental restoration order to address
pollution with similar effects.46 Section 25 (1) establishes the National Environment
Restoration Fund consisting of fees or deposit bonds as determined by NEMA, and
donations or levies from industries and other project proponents as contributions to the
fund. This fund acts as a supplementary insurance for the mitigation of environmental
degradation, where the polluter is not identifiable or where exceptional circumstances
require NEMA to intervene towards the control or mitigation of environmental
degradation. It was one of the principles applied by the court in Peter K. Waweru v
Republic. In this case, the Applicants and the interested parties had been charged with
the offences of discharging raw sewage into a public water source and the environment
and failing to comply with the statutory notice from the public health authority. The Court
observed that sustainable development has a cost element which must be met by the
developers. The Court also held that the right to a clean and healthy environment was
equivalent to the right to life which ought to be protected at whatever cost.
Further, section 25(1) of the Act establishes the National Environment Restoration Fund
which consists of fees or deposit bonds, donations or levies from industries and other
projects proponents. This fund provides further protection and mitigation of
environmental damage in cases where the polluter is unidentifiable or where NEMA
intervention if required.
In Michael Kibui & 2 others (suing on their own behalf as well as on behalf of the
inhabitants of Mwamba Village of Uasin Gishu County) v Impressa Construzioni
Giuseppe Maltauro SPA & 2 others the Court held the 1strespondent liable as the
polluter and ordered it to pay KShs. 30,000 to each and every petitioner for breach of
their right to a clean and healthy environment. In the case, 1 st respondent extracted
some construction materials such as rocks from Mwamba Quarry using methods such
as blasting and drilling which denied the petitioners and the entire Mwamba Community
their constitutional right to a clean and healthy environment.
In Jane Wagathuitu Githinji case, similarly, the Court applied the polluter-pays
approach. The plaintiffs in the lawsuit held numerous parcels of farm land used for
diverse purposes, and the first defendant maintained a flower farm with two dams, one
of which broke its banks and its waters raced downward, causing environmental harm
to the agricultural area below. The plaintiffs claimed compensation for the costs of
rehabilitation and reinstatement of the plaintiffs' land, among other things. The Court
determined that the first defendant was liable, and the plaintiffs were thus entitled to
have their land repaired at the expense of the first defendant, in accordance with the
polluter pays principle and the Rylands vs Fletcher principle. In the alternative, if
rehabilitation was not possible, the plaintiffs were to be compensated the value of their
affected parcels of land.  However, the Court failed to issue a disturbance allowance for
inconvenience caused to the petitioners due to the contamination.
In Benson Ambuti Adega v Kibos Sugar and Allied Industries Limited, The Court
evaluated the effects on the owners, employees, and agencies against the public
interest. The court ruled that the first through third respondents emitted raw effluent in
excess of acceptable limits and without implementing adequate mitigating measures,
significantly impacting the environment. The Court granted the Petitioners' request for
an order of environmental restoration against the 1st – 3rd Respondents, and in default,
the Petitioner was free to select an auctioneer to destroy the structures and repair the
environment, with the cost recovered from the 1st – 3rd Respondents. The Petitioners
sought for damages and submitted an award of Kshs. 100,000,000/=, however the
Court considered an award of damages to the Petitioners as individuals not appropriate
in the circumstances.
Application of the Polluter-Pays Principle. In matters of accidental pollution risks, the
Polluter-Pays Principle implies that the operator of a hazardous installation should bear
the cost of reasonable measures to prevent and control accidental pollution from that
installation which are introduced by public authorities in Member countries in conformity
with domestic law prior to the occurrence of an accident in order to protect human
health or the environment. Domestic law which provides that the cost of reasonable
measures to control accidental pollution after an accident should be collected as
expeditiously as possible from the legal or natural person who is at the origin of the
accident, is consistent with the Polluter-Pays Principle. In most instances and
notwithstanding issues concerning the origin of the accident, the cost of such
reasonable measures taken by the authorities is initially borne by the operator for
administrative convenience or for other reasons. When a third party is liable for the
accident, that party reimburses to the operator the cost of reasonable measures to
control accidental pollution taken after an accident. If the accidental pollution is caused
solely by an event for which the operator clearly cam1ot be considered liable under
national law, such as a serious natural disaster that the operator commit reasonably
have foreseen, it is consistent with the Polluter-Pays Principle that public authorities do
not charge the cost of control measures to the operator.
All in all the Government made attempts to implement several measures in order to
conserve the environment, despite legislations and policies in place, the environmental
pollution is at its climax today. The introduction of statutory fees and criminal sanction
are of no consequences, as it does not restore the environment to its original position.
Although, the "polluter pays" principles are evidenced in a number of legislations, its
application in terms of conserving the environment is not as expected. The public have
concerns over pollution emitting factories and industries being sited in close proximity to
residential areas because of the possible risks to human health. There are also health
fears regarding radiation from power lines and transmission station. Also NEMA as the
lead agency has no capacity to detect the level of pollution and therefore ending up
granting permits on a wrong assumption.
4.PRECAUTIONARY PRINCIPLE BY EMMANUEL M. KIMEU
This is an environmental principle that stems from the uncertainty of the level of harm
that a given activity could cause on the environment. Where a strong suspicion arises
then this principle ought to be applied in that there should be measures that aim at
controlling of the specific activity that may have environmentally harmful consequences
now rather than waiting for scientific evidence on the effect of the said activity.
This principle is provided for in Principle 15 of the Rio Declaration that states as follows
“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.” This is the
same definition that is found in the Environmental Management and Co-ordination Act
CAP 387 Laws of Kenya Preliminary and it is the principle that is applied in the whole
process of waste management that entails proper handling, proper storage, proper
transport, proper treatment and disposal as seen in Section 92 of the Environmental
Management and Co-ordination Act.
This principle aims at actions to avert any risk of serious or irreversible harm to the
environment and is based on anticipation of harm, attempt to avoid and mitigate threats
to the environment. For it to be applied in the conservation of the environment it must
fully satisfy the following criteria:
1. There should be uncertainty of harm from the activity. This means that there is a
chance of harm but its harm is not out rightly calculated.
2. There should be a threat to the environment.
3. The threat ought to be one that is in a manner that can be termed irreversible or
rather serious as related to its damage.
This principle is mainly used in the area of maintenance of bio-diversity. This is done in
areas where a specific species is facing the danger of extinction if precautions are not
put in place. This is as was seen in 1999 where Australia and New Zealand invoked this
precautionary principle in their suit against Japan for its alleged overfishing of the
southern Bluefin tuna. This ensures that there is maintenance of the ecosystem and
sustainability of bio-diversity.
The implementation of this principle involves creation of awareness and involvement of
the different stakeholders in the whole process. The process entails:
a. Acknowledging the tendency of humans to over reach in the quest for human
security and well being
b. Ensuring precaution in decision making as relates to activities taking place in and
around the environment
c. Ensuring preservation at all costs of sufficient bio-diversity to assure indefinite
evolutionary flourishing of life on the planet
d. Making any necessary changes where possible so as to realize a more
sustainable future for all
All the above simply show that this principle is proactive and calls on decision makers to
place powers of scientific inquiry, technological innovation, political decision making,
legislative enactment, economic production and personal vocation in the service of new
and creative ways of living that risk less harm to the health of humans and nature and
sustain the viability of the environment.
This principle in Kenya law can be seen in the establishment of wildlife conservation
centers to ensure that the endangered species are protected and well taken care of to
ensure no risk of extinction. It can also be closely related to the ban on the use of plastic
and polythene bags.
5.ENVIRONMENTAL PRINCIPLES OF SUSTAINABLE DEVELOPMENT BY
MELISSA KORIR
Environmental principles are guidelines that are set out to offer protection to the
environment, constant and consistent improvement on our environment as well as the
management of the environment. These guidelines are to be followed by governments,
law and decision makers as well as its citizens and the general public. These
environmental principles are as follows; precautionary principle, prevention principle,
polluter pays principle, integration and public participation.
What is Sustainable development? It is the meeting of the needs of the present without
compromising the ability of future generations to meet their own needs. We see that
sustainable development aims to maintain economic advancement and progress while
still protecting the long term value of the environment and this interdependence and
balance between the two is only achievable through integration of the economic,
environmental and social aspects which is a key principle of sustainable development.
Integration
Integration is when two or more separate things are brought together and in this case
study of principles of sustainable development, it is the pillars of social equality,
environmental protection and economic growth that are being integrated to ensure
sustainable development. The principle of Integration is enshrined in Principle 4 of the
Rio Declaration where it states 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’’ and the importance of integrating the
environment and economic sectors was first underlined in the 1971 Founex Report on
Development and environment that played a critical role in laying the groundwork for the
Stockholm Declaration of 1972.
This principle aimed at helping developing countries plan development programs that
environmental deterioration arose from. It insisted that in order to avoid past mistakes,
industrialized nations should take a more integrated approach to ensure sustainable
development and this approach would be the unification of environmental policies with
economic and social planning. The European Union had a proposal in reference to the
integration and it stated that, ‘In order to achieve sustainable development in all
countries, environmental considerations shall be integrated into the formulation of social
and economic policies and decision making processes at both local and international
levels.
There are three conceptions of the Integration principle and they play the following
distinct roles;
a) It serves as an objective that underlies and inspires more specific environmental
law
b) It serves as a rule of reference whereby both local and international institutions
are to comply with relevant norms of international law concerning the
environment in carrying out their activities.
c) It serves as an autonomous normative principle, it is dependent on input and
activities of the actors to make the principle effective and practicable.
In the case of Greece v Council, it was held that it is a binding obligation that
environmental related requirements must be integrated into other policies. Therefore, in
order to achieve sustainable development, the integration principle must be complied
with.