CHAPTER 1:

INTRODUCTION TO
ENVIRONMENTAL
Meaning of “Environment”
LAW
why we need to define?
Starting from definition helps to limit the
scope of the subject that we are dealing with
Determine the application of laws, rules,
principles, standards
It also help to establish extent of liability in
case of harms
Environment= environers to mean encircle
It includes natural social and cultural
conditions that influences life of individual;
community
 Continued…
Geographically it can refer to limited
areas or includes the whole planet
 it is difficult to find simple definition for
the purpose of studying environmental law
Many of the international treaties escape
to define it b/c of its difficulty.
As Caldwell remarks ‘it is a term that everyone
understands and no one is able to define’ (so
any definition that may be given through this
course will not be taken as a conclusive one)
 Continued…
• Some int. instruments define environment according to the subject
matter they want to address
• Eg. The declaration of 1972 Stockholm on UNCHE indirectly referred as
`man’s environment ‘both the natural and man-made environment, that
are essential for his well-being and enjoyment of basic human rights.
• the WCED applies a more laconic approach: accordingly environment is
`where we live`
• The Council of Europe Convention on Civil Liability for Damage Resulting
from Activities Dangerous to the Environment (Lugano, 21 June 1998,
Art.2.10) defines the environment as including;
`Natural resources both biotic and non 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`
 Continued…
 Proclamation 295/94 article 2// provides a very long and
descriptive definition
 It defines environment as: 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`
 Conclusion : we couldn’t have single definition of
environment and any definition of environment which we
can find in various national and international instruments
give a suitable meaning to the reality it wants to remark.
 Introduction to Environmental law:

• Environmental law can be categorized as international

and national
• Do we have such international environmental law? What
does it mean? Is it different from general international
law?
• International environmental law is part of general
international law
• International environmental laws include both the
general international law and international instruments
which specifically deal with environmental
problems
• It usually was/ and is difficult to reach international
agreements on environmental law as it has been
gravely affected by state freedom.
 Continued…
• International environmental law includes
both the binding laws and soft laws
• What is soft law?
- is not law in strict sense
- is called also lex ferenda, de lege
ferenda
- describes norms we may aspire to
but which have not yet become binding
on states as customs or treaties do.
 Continued…
 Incorporated in instruments like; declarations,
recommendations, GA resolutions, guide lines…
 what are the deference b/n soft laws and soft
obligations?
 Soft obligations may exist with in hard laws
instruments i.e. `shall seek… to the best of their
ability`
 Therefore international environmental law refers
all public and private international laws which
can be applied to environmental problems.
 Continued…
• National environmental laws include,
constitutional provisions, ratified treaties,
and domestic laws in general,
• In our context 1995 FDRE constitution:
article 44, 92, proclamation 295/94 ,
water, land use, protection of bio
diversity laws and other sectoral laws….
• Regional state environmental laws in a
federal states are also national laws
• Why environmental laws?

1. Environmental problems
• Atmospheric pollution
• Ozone depletion
• marine pollution
• Global warming: emission of cfc (chloro floro carbons) or
(green house gases) gases which in turn cause acidic
rains.
• Threatened bio diversity, threatened wild specious,
• Hazardous weapons like nuclear and other chemicals
• Should these problems solved by individual state action
be effective? If no why? What should be done so?
 Continued…
2. The problem arising from Competing interests b/n
environmental pollution and economic
development
 there are also competing interests b/n the need for
development based on the needs of the current
generation and the interests of the future generation.
 We need international cooperation b/n those
developed already regardless of pollution they cause
to the environment and those developing who want
to develop in either way.
 Some moderate intervention in balance is necessary
 Historical development of IEL

Ancient environmental laws were more of unitary

measures e.g. about 80 AD the senate of Rome
passed legislation to protect the city`s clean
water supply for drinking and bathing. In the 14th
century England prohibited the burning of coal in
London and disposal of waste in to river.
In the medieval age: 1681 Quaker Leader of
English colony of Pennsylvania william penn,
ordered preservation of one acre of forest for
every five acre forest cleared for settlement.
 Continued…
 Concern for the environment is ancient
and embedded in the major Religious
traditions.
 e.g. in the judo- Christian tradition it is
believed that ``God gave the earth to his
people and their offspring as an
everlasting possession to be passed down
each generations and exhorted people not
to cut down fruit bearing trees during
warfare``.
 Continued…
 Prior to the 20th century international
environmental laws were regional and
many of them were bilateral agreements.
 The main focus were on the border
marking waters, navigation and fishing
along shared water parts.
 In the early 20th there were about four
environmental conventions which were
focusing on protection of birds.
 These includes:-
 Continued…

• Conventions to protect commercially valuable

specious including the march 19, 1902
convention for the protection of birds useful to
agriculture which was reached by 12 countries;
• Canada – US August 16, 1916 convention for the
protection migratory birds b/n US and Canada,
• Treaty for the preservation and protection of Fur
seal June 7, 1911;
• London convention for the protection of Wild
animals, birds and fish in Africa may 19, 1900
 Continued…
 The modern age international environmental
law evolution can be classified in three stages
of development; these are
1. 1900-1972 early glimmers
2. 1972- 1992 development of Basic frame works
a. The 1972 the NU Stockholm Conference on the
human environment
b. After the Stockholm to Rio principles
3. From 1992- recent (Paris summit)
1992 Rio conference on environment and
development
 1. 1900-1972 early glimmers
 During 1930s and 1940s countries
conclude several agreements aimed at
the protection of fauna and flora in
the western hemisphere and Africa.
 Including:- Washington convention on
Nature protection and wild life
preservation in the western hemisphere,
October 12, 1940
 London Convention relative to the
preservation of Fauna and flora in their
natural state, November 8, 1933
 Continued…
 Washington International Convention for
the regulation of whaling, December 2,
1946 (currently there is another
convention called international whaling
convention (IWC) in 1986 which ban
commercial whaling)
 Washington international convention for
the North- west Atlantic Fisheries February
8, 1949
 Tokyo International convention for the high
see Fisheries of the North Pacific Ocean
may 9, 1953
 Continued…
 In the period b/n 1950s and 1970s states focused on
two environmental problems: those related to marine
pollution from oil and damage from civilian use
of nuclear energy and negotiated several
agreements including
 International convention for the prevention of pollution
of the see by oil May 12, 1954
 Tanker owners voluntary Agreement concerning
liability for oil pollution January 7, 1969
 Bonn agreement for co-operation in dealing with
pollution of the North sea by oil June 9, 1969
 Vienna convention on civil Liability for Nuclear
Damage may 21, 1963 which was also amended by
the protocol of September 12, 1997
 Continued…
 In the 1960s environmental issues were
popular and raise hot political and
intellectual discussions specially in the west.
 The leading causes for this development
were, Rachel Carson’s Silent Spring (1962), a
passionate and persuasive examination of
chlorinated hydrocarbon pesticides and
the environmental damage caused by
their use,
 This research has opened the eye to a
reconsideration of a much broader range of
actual and potential environmental hazards
 Continued…
 Consequently in the following decades the US
government has reacted massively and enacted
several laws like, including acts addressing solid-
waste disposal, air and water pollution, and the
protection of endangered species
 And established environmental protection
agency to ensure compliance with law.
 The Japan /city of Mina Mata/ mercury poisoning;
many people has suffered mercury poisoning
and infected with mina-mata disease, after
eating fish contaminated because of industrial
wastes.
Continued…
 Continued…
 This pollution has been caused by the rush
reindustrialization in the post world war 2 nd .
 In the process of the re- industrialization no
concern has been offered to protection of the
environment; it was like growth at any cost
scenario. Then danger to the food chain was
visible following ``the mercury poison``.
 Consequently the government of Japan 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.
 1972 Stockholm conference on
human environment
• The year 1972 was a historic, with
regard to environmental law b/c for
the first time countries across the
world came together to identifies and
address environmental problems.
• The United Nations Conference on the Human
Environment, held in Stockholm in 1972 was the
first international intergovernmental conference
to focus on environmental problems.
 Continued…
• In this conference UN established UNEP as the
world’s principal international environmental organization.
• The preparations for the conference, the conference and the
period immediately following the conference had lasting
consequences for the course of international environmental
law.
• In the preparation for the conference The
central issue that arose specially from the
perspective of developing states was the
potential conflict b/n economic development
and environmental protection.
 Continued…
• Developing states were concerned that
international effort to the environment would
come at the expense of their own development.
• Just before the conference a group of experts
from gov`t, academia, and NGOs met in Founex,
Switzerland and discuss and develop a
conceptual framework for reconciling
environmental protection and economic
development and recognized that environmental
protection and economic development can and
should proceed in tandem.
 Continued…
• It laid down the foundation for the
acceptance of the concept of `sustainable
development` which later agreed by states
as overarching principle
• The conference has resulted in a
declaration called the UN Stockholm
Declaration on the human environment
• This declaration set the stage for further
development of principles of international
environmental law.
 Continued…
• In particular principle 21, which provides that `` states
have the sovereign right to exploit their own resources
pursuant to their own environmental policies, and the
responsibility to ensure that activities with in their
jurisdiction or control do not cause damage to the
environment of other states or of areas beyond the limits
of national jurisdiction; sets forth a basic obligation, which
ICJ subsequently recognized as part of international law.
( Hungary vs Slovakia) in the suspension of treaty
obligation concerning Gabčíkovo–Nagymaros Dams
project on the river of Danuebe and the court found
that one states action on environment affecting the other
is illegal under international law.
 Continued…
• As a result of the conference gov`ts
established the first international
intergovernmental organization focused on
environmental protection: UNEP in Kenya,
however it was not established as other UN
agencies thus lack the status of UN agencies.
• The location of UNEP also reflects that the
environmental problems are global as many
of the UN agencies are located in the
developed countries.
 Continued…
• The conference served as initial point for other
international environmental agreements in the next
periods
• December 29, 1972 London Convention on the Prevention of
Pollution by Dumping of Wastes or Other Matter was one of the
results of the conference
•The March 3, 1973 Washington Convention on International Trade in
Endangered Species of wild fauna and flora (CITES) was the other
immediate development
• Therefore we can refer the Stockholm conference as a catalytic
event for international environmental law.
 Continued…
• After the conference other regional
and unitary actions had been
followed in favor of environment.
• In October 1972, the leaders of the European
Community (EC) declared for economic
development to balance with environmental
protection.
 After the Stockholm
conference
• In two decades following the Stockholm
conference international environmental
agreements proliferated and by the end of the
period more than 1100 international legal
instruments that were either fully concerned with the
environment or had important provisions relating to the
environment including both binding and non binding
agreements.
• In this period countries were typically reaching agreement
in a short period of time though not for coming to effect.
Short period of time was taking to negotiating.
 Continued…
• Also some of the treaties concerning
environment were, caused by “trans-boundary
effects” of environmental pollution in individual countries
• The effects of the 1986 accident at the nuclear power plant
at Chernobyl in Ukraine (part of Russia at the time) has
forced other European countries in the down stream to
restrict their populations’ consumption of water, milk,
meat, and vegetables.
• Traces of Radiations were found in cow’s milk as
well as in human breast milk, in Austria
 Continued…
• In response to Chernobyl disaster, two
international agreements were agreed in a short
period of time in 1986.
• The Convention on Early Notification of a
Nuclear Accident and the Convention on
Assistance in the Case of Nuclear Accident or
Radiological Emergency,
• Both were rapidly drafted to ensure notification
and assistance in the event of a nuclear accident.
 Continued…
• The concept of a framework agreement setting
forth general provisions, emerged in this
period where by one, supplemented by one or
more protocols to address specific problems,
with its own system of monitoring and
reporting, own secretariat, and often its own,
separate, financing facility to assist countries
in implementing the agreement.
 Continued…
• Parties to the general frame work
had a duty to join one of the
protocols in the beginning though it
was not survive Latter for the sake of
giving teeth to the agreements.
• This procedure create a kind of
``treaty congestion``
 Continued…
• In this period the focus of international environmental
agreements expanded from agreements controlling
transboundary pollution to ones addressed to global pollution
problems, such as depletion of the ozone
layer;
• from a focus on protecting certain kinds of wildlife to
conserving ecosystems;
• from controlling trade across borders to controlling activities
within national borders that threatened the environment, as
by protecting natural world heritage
sites, wetlands, and biologically diverse areas.
 Continued…
• In this period environmental law was
also developed in other areas of
international law,
• Foremost is the 1982 Law of the Sea
Convention, which provides unequivocally
in Article 192 that states are to protect and
preserve the marine environment and in
subsequent articles sets forth detailed measures to
be taken in order to do so.
 Continued…
• Protection of the environment during warfare also
emerged as an important subject of international
law, as exemplified by the Convention on the
Prohibition of Military or any Other Hostile Use
of Environmental Modification Techniques, which
prohibits the use of those techniques "having
widespread, long-lasting or severe effects as the
means of destruction, damage or injury to any
other State Party."
 Continued…
• In this period environmental laws were drafted so as
to be adjusted inline with our knowledge of scientific
developments and understanding of the environment.
• Due to scientific uncertainty regarding the natural system, our
interactions with it, and the effect of our products on it
international environmental laws and regulations usually are
designed to be flexible enough to accommodate changes in
scientific understanding and technological capacity; whereby
agreements were designed to include annexes and to extend the
annexes where necessary.
• Agreements made before 1970 did not provide for such adjustment.
 Continued…
• On the other hand the scientific
uncertainty left the governments
with a challenge of identifying,
assessing and managing risks to the
environment and to human health
• Some international agreements thus have
provided for monitoring, early warning
systems of dangers, and prioritization of risks.
 1992: The United Nations Rio Conference on
Environment and Development
• The Rio Conference became an important milestone in the
development of international environmental law and policy.
• WCDE prepared a report for the Rio Conference, Our
Common Future, which made the concept of sustainable
development the leitmotif of international environmental
policy.
• Commission defined sustainable development as
"development that meets the needs of the present without
compromising the ability of future generations to meet their
own needs.
 Continued…
• The Rio Conference produced four important
documents for international environmental law:
• 1. The Rio Declaration on Environment and
Development; which laid the basis for the rapid
development of new principles and rules of
international environmental law;
• 2. The U.N. Framework Convention on Climate
Change, or Global warming convention
 Continued…
• 3. The Convention on Biodiversity ;
• 4. Agenda 21st, which set forth a comprehensive
list of actions that States were to take.
• The Conference also adopted a "Non-legally
Binding Authoritative Statement of Principles
for a Global Consensus on the Management,
Conservation and Sustainable Development of
all types of Forests,``
 Continued…
• This conference also led to the subsequent negotiation of a
Convention to combat Desertification in Those Countries
Experiencing Serious Drought and/or Desertification,
Particularly in Africa (UNCCD)
• The Rio conference had also pave the way for public and private
actors to work together.
• NGOs held parallel meting and publish daily news letters in the
conference. And held meetings with gov`t delegates.
• During the meeting one NGO represent small island states in the
negotiations for the United Nations Framework Convention on
Climate Change which was adopted by 178 countries out of 192
participated.
 Continued…
• The reo earth summit has not
established any binding green house
emission targets on countries.
• 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.”
 Continued…
• In 1997 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
• In this system developed countries have two
options, they must reduce their emisions or get
credit by energy- efficient projects in developing
countries, clean development mechanisms, and
emissions trading.
 After the Rio Conference

• International environmental law has developed close links

to trade, human rights, and national security.
• Also the field of international environmental
law become the concern of every society and
give rise of actors other than States in shaping
international environmental law, namely the multilateral
development banks through their policies and procedures,
the private sector through voluntary codes of conduct and
green standards, public-private partnerships, and
stockholder efforts, and nongovernmental organizations
and civil society generally through diverse means;
 Continued…

• The increase in non legally binding instruments;

• When the WTO was negotiated in 1994, it
contained in its preamble reference to the aim of
"sustainable development.“
• Since then, major disputes have come before the
WTO Dispute Settlement Panels and Appellate
Body that raise the potential conflict of national
legislation allegedly directed to protecting the
environment with the rules of the WTO. 4
 Continued…

• The WTO has a Committee on Trade and

Environment, which is studying, among other topics,
the relationship between multilateral environmental
agreements and the WTO.
• Under the Organization for Economic Cooperation
and Development (OECD), States approached the
linkage between environment and trade by
developing formats for a trade review of
environmental agreements and for an environmental
review of trade agreements."
 Continued…

• Human Rights and Environment

• During the last two decades, environmental law
has become increasingly linked with human
rights.
• Principle 1 of the 1992 Rio Declaration on
Environment and Development provides that
human beings "are entitled to a healthy and
productive life in harmony with nature," though
it does not mention ``right``
 Continued…

• At the regional level, the 1981 African Charter of

Human and
• People's Rights, which became effective in 1986
under article 24, provides that "[a]ll peoples shall
have the right to a general satisfactory environment
favorable to their development,
• Recently, the United Nations Human Rights Council
adopted two resolutions relating to climate change
and human rights 2009 (human right and climate
change
 Continued…

• The United Nations Human Rights Council

adopted in 2010, a resolution on a right to
water and sanitation
• National Security and Environment
• Actors other than states: world bank other
regional banks, private business associations
like the Responsible Care Program of the
Chemical Manufacturers Association and NGOs
 Historical Development of Environmental Law
in Ethiopia
• The 1974 and 1984 draught in Ethiopia were thought as
catalytic event to bring environmental issues in to the
forefront of social discussions as the drought was the
result of environmental mismanagement
• Establishment of Semen National park, Awash National
park and other wild life protections, though these were
individual cases they can be taken as environmental
management actions taken by the gov`t even before the
occurrence of the droughts.
• There were also several cultural environment
preservations used by the society like soil conservation
mechanisms of Konso, and forest preservation in the
south west part of Ethiopia especially Kefa.
 Continued…

• Ethiopia was also participated in the reo earth summit and

the principles of the reo-have also influenced the drafting of
the 1995 FDRE constitutions.
•the FDRE Constitution article 44 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 programs have the right to

• commensurate monetary or alternative means of compensation,
• including relocation with adequate state assistance.
 Continued…

•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.
 Continued…

• The environmentalpolicy of Ethiopia was formed as part of

Ethiopian conservation strategy (ECS) which was ratified in
1997 by the council of ministers.
•ECS has fife volume and volume two is the environment policy.
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.

• The development of CES took about 10 years and supported by

differente research and consultations with concerned organs.
 continued…
• The goal of the environmental policy 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
 Levels of Environmental Law
• Environmental laws exist in treaties,
declarations, national laws and court
decisions.
• The vast majority of environmental laws are
found in domestic laws, enactments.
• Some of the egxamples of Constitutions
which provide articles concerning the
environment are Germany, China, South
Africa, Bulgaria, Chile and Ethiopia.
 Continued…
• For instance the German constitution
states that the government must protect for
“future generations the natural foundations of
life.”
• 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 Role of International and National Laws in the
Protection of the Environment

• There are several roles that environmental

laws play in the management of environment.
•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 harms and providing a felexible
 Continued…

Rule making process that allows for easy and regular

amendment in the light of technological
development and advances in scientific and other
knowledge.
• Third, provides for reinstatement of or
compensation for environmental damages. The
role of environmental law for redressing damage is
limited for some environmental damages can not
be valued economically to seek for reparation.
• Finally, the law benefits individuals and keep
individuals accountable.
 The foundation of environmental
laws
• The environmental law has several foundations.
• Religious traditions support the protection of
environment.
• Ancient Budhist chronicles, dating to the third
century B.C. record a sermon on Budhism in
which the son of the Emperor Asoka of India
stated that ``the birds of the air and the beasts
have as equal right to live and move about in
any part of the land as you``. The land belongs
to the people and all living beings, you are only
the guardian of it.
 Continued…
• 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.
• For instance, the irrigation practices of
the Inca, the forest gardens of the hill
country of Sri Lanka
 Continued…
• African traditional wisdom, Melanesian, native
Australian, Polynesian, Asian, Amerindian and
early European traditions all contain principles
relevant to environmental justice and
sustainable development.
 The source and law making process
of environmental laws.
• The source of environmental laws.
• As the concept of environmental law being
relatively new, environmental laws are
contained mainly in written laws.
• But some common law principles and relevant
customary international law is emerging.
• Governments protect the environment on the
basis of constitutional and statutory powers and
by entering multilateral treaties and bilateral
treaties obtaining specific obligations.
 Continued…
• Promulgations of regulations and permits
and guidelines by environment
administrative authorities are also
important sources of environmental laws.
• Reporting, monitoring and civil and/or criminal actions to
enforce environmental law are critical components of
environmental law systems.
• Constitutions may also provide environmental rights or
duties then these provisions need to be interpreted and
applied and can serve as important sources of law.
 Sources of national environmental
law
• The domain of environmental law
evolves wide range of all fields of
laws
• Antiquities laws
• Regulation of agricultural activities
• Public health laws
• Land use regulation and public trust doctrines
• Coastal zone management, fisheries and
forestry law
 Continued…
• Mining and energy laws
• Regulation of industrial activities
 Constitution as a source of
environmental law
• Currently there are more than 100 constitutions
which provide for environmental rights, and
duties on the government to protect the
environment or natural resource.
• One important question concerning constitutional
environmental rights is the issue of justice-ability.
• What is justice-ability?
• Argentina recognize the right to environment as
a subjective right entitling any person to initiate
a legal action to seek for the protection of
environment.
 Continued…
• Indian supreme court extend the right to
healthy environment by interpretation even if
the constitution does not have an express
provision concerning this right.
• The Indian supreme court considered the right
to healthy environment as part of the right to
life which is clearly protected by the
constitution.
• In other case the right to life includes the right
to enjoyment of pollution-free water and air for
full enjoyment of the right to life.
 Environmental legislations
• Most of environmental law rules are established
in statutory legislations
• Environmental legislations use common
techniques and procedures of environmental
protections including environmental impact
assessment, risk assessment, prior licensing
and emission standards.
• And in most cases environmental legislations
are supported by administrative regulations
which provide the most specific rules and
guidelines.
 Continued…
• In addition to framework
environmental legislations there could
also exist particular legislations which
govern specific areas like protection
of water pollution laws.
• Standards also create part of
environmental law. Standards include
health standards, performance
standards, emission standards etc.
Administrative regulations…
• To achieve the legislative objective of
environmental law legislations often
delegate power of law making, standard
setting and reporting and quasi-judicial
power to administrative authorities.
• Administrative agencies and officers
commonly enjoy investigate power
starting from demanding information and
taking measures such as issuing
injunction.
 Industry standards and code of
conduct
• A growing number of guide lines and code of
conduct have been developed with in the
industry and by international organizations,
which tries to create international norms.
• Such guide lines may constrain behaviors of
the industry actors by imposing moral and
practical influences.
• Such guide lines can help to prove the
minimum responsibility of businesses to
adopt measures to protect the environment.
 International law as a source of law to
determine local dispute on the environment.

• In the case of international tribunals or court

international law is undisputedly the supreme
governing law and states can not invoke their
domestic law to avoid responsibility.
• Concerning the hierarchy of international law
there are two theories known as monism and
dualism approach.
• In the monist approach international law directly
applies in the domestic courts with out the need
for incorporation legislations. And it is superior
to other domestic legislations hierarchically.
 Continued...
• In the dualist approach international
law does not automatically create
part of the law but they need
secondary legislations to incorporate
those law in to the national legal
system.
 Nature of environmental problems
and damages
• Life is dependent on the environment and the natural
balance through its natural cycle makes the eco system
safe.
•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 briefly put the inter-relationship and the
danger posited; in the following manner
 Continued…
• 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.
 Continued…
• This implies that the current environmental
problems are caused by factors related to
unsustainable use of natural resource and
unprecedented growth of population, and
the cumulative effect of these
environmental injuries would undoubtedly
put all living creatures on earth in jeopardy.
• Thus protecting and conserving the environment becomes
a must do case for the purpose of sustaining life on earth
successfully now and in the future
 Continued…
• 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.
 Continued…
• There are also deliberate destructive
human actions to the environment that is
environmental war fare, which deliberately
bombards cities, historical sites, natural
resource sites and industries aiming to
destroy human life and conditions.
• These problem shows that the human right
to clean and healthy environment is in
danger and needs intervention before the
problem reaches the point of no return.
 Continued…
• The situation calls for the re orientation of the
law to accommodate public interest litigations.
• We need re-orientation of the law because
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.
• The narrow scope of locus standi which permits
action only by the aggrieved person and it does
not allow a person acting bonafidelly.
 Continued…
• Thus procedural rules should be designed to
accommodate public interest litigation to enable alert
citizens and public interest groups redress public
wrongs which could not be redressed by the
traditional procedural rules.
 Nature of environmental
damage
• Defining environmental damage is
important to decide the nature and scope
of compensable damage.
• The broader the definition of the
environmental damage the wider the
compensable damage
• According to article 2/12 of the
environmental pollution control
proclamation no. 300/2002, In Ethiopia
environmental damage is defined as:
 Continued…
• 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.
• Then the damage covers both individual rights and public
in general.
 Continued…
• According to this definition environmental
damage covers also potential hazards in
addition to actual damages.
• The responsibility should be established by
reference to limiting or restricting legislations.
• In the traditional tort rules, 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
sustained by other members of the general
public.
 Continued…
• Environmental damages may not be
properly addressed by the traditional tort
law at least for two reasons.
• 1. tort laws address only individual
damages and environmental damages in
most case sustained collectively and,
• 2. the nature of environmental damage
where particularly the damage is to the
environment it self, may not be calculated
in monetary terms.
 Continued…
• Environmental damage is especial
category of damage that the damage is
unclear to be pecuniary or non-pecuniary.
• Thus a new form of liberalized standi and
additional category of damage which is
different from economic loss, property
damage and bodily injury should be
introduced in the legal system to address
environmental problems effectively.
 Continued…
• The reasons for liberalizing standi basically arises
from the interest of the environment that legal
action could be taken by any interested body
regardless of the natural resource or the
environment attribute is held as private property
or public.
• It can avoids damage because of the private
owners reluctance to take action.
• Some times the polluting body may be the owner
him self or dependent on the polluting body and
will not be willing to initiate legal action.
 Continued…
• Some times when the victims assessment of their
damage may not be worthy to press litigation but
worth if taken collectively, then collective action may
be necessary.
• On the other hand the compensation should not only
be assessed based on proof of the damage sustained
by the individual plaintiff and go to the individual who
claims damage rather the damage sustained by the
environment at least to the extent of restoring to
normal condition should be considered, which the
general tort rule fails to achieve. Thus special
category of damage should be introduced.
 Continued…
• Also measuring environmental damage with
the general tort law rule of assessment may
prevent the full restoration of the damaged
natural resources.
• Generally tort law measures the lost
economic or market value of the damaged
property, and accordingly damaged
environment or natural resource lacking
equivalent market valuation will not be
restored at least by the cost of the polluter.
 Basic principles of environmental
law
• Principles are generally considered as the
backbone of international law and can be
used where there is no clear rule in the
customary law or treaty concerned.
• At present two distinct classes of general
principles may be relied upon.
• The first one is that applies to general
international law and identified by
deduction or generalization from
international customary law rule.
 Continued…
• The second, particular to specific
branch of international law.
• There are foundational and technical
principles particularly relevant to the
protection of environment which are
relevant under international and
national environmental laws which
are developed through international
environmental discourses.
 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
• Even where the harm is remediable, the cost is often
high.
• In many cases it is impossible to avoid all the risks of
environmental harm, unless we quit development.
 Continued…
• In such cases the option is to take measures 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 other.
• The principle of prevention is 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.
 Continued…
• Emission limits and other product or process
standards, the use of best available techniques (BAT),
and other similar techniques.
• The notion of deterrence through civil and criminal
liability is also aimed at prevention, by dis-
incentivizing harmful acts to the environment.
• 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.
 Precaution
• Precaution- the notion that environmental
regulators often have to act on the frontiers of
knowledge and in the absence of full scientific
certainty.
• It is associated with the idea that:
• 1. scientific uncertainty should not be used as a
reason not to take action.
• 2. actions should be taken affirmatively and in in
a pre-emtive manner.
 Continued…
• 3. Burdon of proof as to the absence of harm
to the environment should be on those
engaging in a potentially damaging activities.
•4. A State may restrict imports based on a standard
involving less than full scientific certainty of environmental
harm.
•This principle is a recent development specially starting
from 1980s
 Continued…
• The Rio declaration under principle 15
stipulates 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.
 Continued…
• Though the principle of precaution is difficult to
capture in the context of a generally applicable legal
principle or standard, it is a flexible tool.
• It is also used as a reference in judicial decisions of
some local courts by accepting it as environmental
law principle.
 Continued…
• An Argentinian court explicitly stated that it was
applying the principle of precaution in bodied in the
law and several international instruments in its ruling
requiring suspension of electricity grid project until
report as to addressing the impacts and preventive or
mitigation measures to avoid the potential negative
effects of the electromagnetic field to be created by
the project.
 Polluter Pays

• The “polluter pays” principle was originally

enunciated by the OECD to restrain national public
authorities from subsidizing the pollution control costs
of private firms.
• They demand businesses to internalize the
externalities of their activities to the price and beer the
costs of pollution by them selves.
• Originally the costs were to be beer by the community
either through subsidizing the polluter to take control
measures or pay for treatment of polluted resources.
 continued…

• The polluter pays principle is therefore a

method for internalizing externalities.
Environmental Justice and Equity

• In general environmental justice seeks to

ensure that authorities fairly allocate and
regulate scarce resources to ensure that
benefits and burdens are equitably
shared by all members of the society.
• Environmental justice require local
governments to ease the burden born by
the poor group of the society of the cost
of pollution
 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.
• It also expresses that certain natural
resources held commonly by the general
public bestowed on the government on
behalf of the general public and can not
be transferred to private ownership.
 Continued…
• Historically under the roman law
certain res such as rivers were
classified as res nullius or res
communes and were available for the
free use of everyone and rights them
could not be given to individuals.
• In international law, as early as 1893, the United
States government argued in the Behring Sea
Fur Seals Case that:
 Continued…
• No possessor of property has an absolute title
to it – his title is coupled with a trust for the
benefit of mankind. . . .over 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.
The principle of integration
•Integration of environmental consequences in
economic and social decisions.
•Environmental Policy of 1997 under article 4.1.(a)
clearly states 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.
 Continued…
• 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.
 The Public-Participation Principle

• Decision about environmental

protections should be made after
public discussions made and written
comments or hearings received from
the public.
 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.
•Article 194 of the 1982 UN Convention on the Law of the Sea:
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.
 Continued…
• The sate is supposed to control its activities
and the activities of any subject with in the
territorial jurisdiction of the state concerned.
• According to this principle the state is
responsible to take positive actions to
prevent harm to the environment of other
states and refrain from harming other
states.
• What is the threshold to determine the
harmful activity against international law?
 Continued…
• should any harm to the environment or
territory of the other state constitute violation?
• The harm must be significant or substantial
• The action of the state needs to be combinable
in order to constitute violation.
• Though there is substantial harm to the other
state, the state may not be responsible for the
harm if it has exercised due diligence by acting
in good faith and taking every measures to
prevent the damage.
 Continued…
• The obligation to exercise due diligence means
to act responsibly by giving due regard to the
interests of the other state.
• Intentional harm or unnecessary harm will
always constitute violation
• Abuse of rights also constitute violation to
international law.
• To determine weather the acting state exercised
due diligence or not the probable risks and the
cost of applying alternative way outs can be
considered.
 Continued…
• The ability of the state and the
technicalities of the available
solutions are also important.
 States’ Obligations to Cooperate, to Inform and to
Consult With Other States

• This principle is procedural obligation on

state aiming to promote good
neighborliness and diligence.
• This principle is part of customary
international law and manifested through
treaties and soft laws.
• If states have conflicting interest on
environmental problem they have to
cooperate and negotiate in good faith to
solve the problem peacefully.
 Continued…
• The duty to cooperate is clearly stated under
principle 7 of Rio-declaration and under article
197 of the convention on the law of the sea.
• The duty to inform and consult with the other
state when its activity have significant effect on
the environment of the other state, particularly
in cases of transboundary resources.
• The duty to information principle goes to soft
laws in relation to environmental impact
assessment rule.
 Continued…
• In 1987 UNEP goals and principles of EIA under principle 12 states
that:-
• 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.
 Continued…
• The duty to information and consultation
more importantly include the principle of
non discrimination as it was developed
under the 1991 Convention on Environmental
Impact Assessment in a Trans-boundary Context.
• Citizens who are affected by the activities of the state
should have equal right to standi and compensation
regardless of their citizenship.
• The 1974 Nordic Environmental convention has
established this equal right practically.
 Continued…
• In case of accident, states have obligation
to take necessary and adequate
emergency actions to control the accident
and warn the other state.
• In the event of Chernobyl nuclear accident
in the 1986 Soviet Union did not notify the
accident to its neighboring states and
such non informing action was considered
as breach of international customary
obligation.
 Shared Natural Resources, Common Property and Common Heritage
of Man Kind

• The general principle not to cause

harm out side your territory applies
explicitly to areas beyond national
jurisdiction.
• And it also applies to natural
resources shared by several states.
• Under international law the concept of
shared natural resources and common
heritages are distinct.
 Continued…
• The concept of ``Shared resource`` is used when
the resource concerned comes under the
jurisdiction of two or more states.
• The concept is however controversial as to which
natural resources to include under this concept,
many states insist to use their share based on
sovereignty as long as they do not cause harm to
the other state with out consultation with the other
state involved.
• Commonly transboundary rivers and boarder
shading lakes are considered as shared resources.
 Continued…
• The right to utilizes the shared
natural resource should respect the
principle of ``equitable utilization``
•This principle is expressed in the 1978
UNEP Principles on Conservation and
Harmonious Utilization of natural Resources
Shared by two or more states.
•What it means by equitable utilization?
 Continued…
• The concept of common property:-
• It refers to the living resources beyond national
jurisdictions, including fish stock in the high
sea.
• Every state have the right to exploit the natural
resources with in the limit of sustainable
development and conservation measures.
• When the resource is limited and there are
competing interests the principle of equitable
exploitation applies.
 Continued…
• Equitable exploitation depends on factors
related to historic use and traditional rights by
different states in the area and the
importance of the exploitation for the
participating state, which refers to the
availability of alternatives.
• In case of fishing this principle means
preferential right to the costal state as
developed in the Icelandic Fisheries case
between Iceland and The United Kingdom (ICJ
1974)
 Continued…
• Common heritage of man kind
• It is often used as a term for global
environmental resources, such as the Earth`s Bio
diversity, the tropical forests or the atmosphere.
• Under international law the common heritage of
man kind refers to the sea bed in the high sea
and the moon.
• As opposed to shared resources the common
heritage principle concerns every state
regardless of active participation in the
exploitation of the resources.
 Continued…
• The law of the sea convention provides
concerning the natural resources of the
sea bed under article 136 and states
that ``the area and its resources are
the common heritage of man kind``.
• The area belongs to every human
being and the international sea bed
authority administer it to the benefit of
human being as a whole.
 The principle of sustainable
development.
• The concept of sustainable development
become to influence policy and laws of states
and international and regional organizations
following the Rio- conference.
• Sustainable development does not denote the
policy of zero growth or no growth.
• It recognizes the sovereign right of states to
exploit natural resources under their jurisdiction
and their environment subject to the protection
of trans-boundary environment, and the interest
of future generation.
 Continued…
• The principle of sustainable development calls
for an ‘open international economic system that would lead
to economic growth and sustainable development in all
countries.’
• Sustainable development aims to strike
balance between populations of developed
and developing countries by giving special
concern to the poor.
• It aims to share the cost and benefits of
economic development among the current and
the future generation.
 Continued…
• Sustainable development entails both financial
and non financial elements to achieve common
goal of the global community.
• The financial cooperation to protect the
environment deals with access to funding and
capacity building to developing countries.
• The non financial component of sustainable
development is global concern to economic
welfare that recognizes, entitlements of human
being to healthy and productive life in harmony
with nature.
 Continued…
• The preservation of culture and
community and special preserve areas
and species is also one important non-
financial component of sustainable
development.
• Sustainable development concerns about
the process of economic development not
about the out put that development
should be achieved only on the process
integrating environment.
 Continued…
• Sustainable development contains both
substantive and procedural elements.
• The substantive elements are mainly set out
in principle 3-8 and 16 of the Rio-
declaration.
• They include :-
• The sustainable utilization of natural resources;
• The integration of environmental protection and
economic development;
 Continued…
• 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.
 Continued…
• The procedural elements of sustainable
development are found principle 10 and
17 of dealing with public participation in
decision- making and environmental impact
assessment.
• Both the substantive and the procedural elements
were not new concepts but the Rio-declaration bring
them together in a systematic and organized manner
and secured more acceptance by the international
community after the Rio.
Chapter three: Environmental rights

• The right to information:-

• Access to environmental information is a prerequisite
to effective public participation in decision-making
and to monitoring governmental and private sector
activities.
• Information is also important to make informed
decision in planning projects and utilizing best
available scientific techniques.
• The right to information also extends to states in trans
boundary environmental problems.
 Continued…
• The right to information recognized under
international and national laws.
• Under domestic laws the right to
information may be recognized in
constitutions, EIA laws and freedom of
information and press legislations.
• Such laws commonly provide for access to
information held by government offices,
requiring publication of some information.
 Continued…
• Under international law the right to
information is provided under:-
• Article 19 of UDHR
• Article 19/2 of ICCPR
• Article 10 of the Inter-American
Declaration of the Rights and Duties of Man.
• Article 9 of the African Charter on the Rights
and Duties of Peoples.
 Continued…
• There are also some regional treaties that
provide the competent authorities of states to
make available relevant information to any
natural or legal person in response to any
reasonable request, without the person having
to prove an interest, without un-reasonable
charge in a specified period of time, two
months.
• For instance article 16 the 1992 Helsinki
Convention on the Protection and Use of Trans-boundary
Watercourses and International Lakes
 Public participation
• Public participation is based on the right of those who may
be affected to have a say in the determination of their
environmental future.
• In the context of EIA the Public may include all
stakeholders such as communities, women,
indigenous people, NGOs and other non-state
groups.
• It may require for public availability of EIA
reports to the public for certain period of time
and the government to receive written
comments and arranging for public hearing.
 Continued…
• NGOs and other interest groups like industry
associations can be considered as organized
means of public participation who may
compile data seek to influence legislation,
intervene in decision on licensing or
permitting projects and monitor compliance
with environmental laws and regulations.
• Under domestic laws the right to public
participation can be provided in constitutions
or statutory legislations.
 Continued…
• Article 92/3 of the FDRE constitution
states that `` People have the right to full
consultation and the expression of views
in the planning and implementation of
environmental policies and projects that
affect them directly``
• Article 15 of the EIA proclamation no
299/95 also provides for public
participation.
 Continued…
• In Save the Vaal v. the Director of Mineral
Development Gauteng Region, the High Court of
South Africa in Witwatersrand Local Division set
aside a mining authorization on the basis that the
applicant had a right to be heard before the
agency took a decision to grant the license.
• In such a case if the project disregard the public
comment it can create valid cause of action.
 Continued…
• The right to public participation is also
recognized under international law.
• Principle 10 of the Rio-declaration on
environment and development recognizes
the need for public participation.
• Agenda 21 also calls for public participation
as a fundamental prerequisite to achieve
the goal of sustainable development.
• It also identify the major group of the
society whose participation is needed.
 Continued…
• These are women, youth, indigenous and
local populations, non-governmental
organizations, local authorities, workers,
business and industry, scientists, and farmers.
• It also encourages governments to exchange
information between governments and public
in environmental issues, suggesting the EIA
process as a potential mechanism
 Continued…
• The Climate Change Convention, Article 41(i)
obliges Parties to promote public awareness
and to “encourage the widest participation in
this process including that of non-governmental
organizations”.
• The Desertification Convention recognizes in
Art. 3(a) and (c) that there is a need to associate
civil society with the action of the State.
 Continued…
• The Biodiversity Convention provides for
public participation in environmental impact
assessment procedures in Article 14(1) (a).
 The right to public participation
under human right instruments.
• Article 21 of the Universal Declaration of Human
Rights affirms the right of everyone to take part in
governance of his or her country.
• the American Declaration of the Rights and Duties of
Man (Art. 20)
• the African Charter (Art. 13)
• Article 25 of the ICCPR provides that citizens have
the right, without unreasonable restrictions “to take
part in the conduct of public affairs, directly or
through freely chosen representatives.”
 The right to access to justice
• The right to an effective remedy, meaning access to
justice and redress, can be found in both human rights law
and in environmental law.
• ICCPR calls for states to provide a remedy whenever
rights protected under national or international law have
been violated.
•Principle 10 of the Rio Declaration provides that “effective
access to judicial and administrative proceedings, including
redress and remedy, shall be provided.”
 The right to access to justice

• UNCLOS also provides that states shall ensure

that recourse is available for prompt and
adequate compensation or other relief for
damage caused by pollution of the marine
environment by natural or juridical persons
under their jurisdiction (Art. 235(2).
The right to environmental quality

• Many constitutions provide the right to clean

and healthy environment as human right either
explicitly or impliedly.
• FDRE constitution under article 44 provides for
clean and healthy environment.
• Under international law we may not find
instruments stating the right to environment as
human right but it can be identified as creating
the component of other recognized rights like
the right to life and the right to health.
 Continued…
• However it is provided in several soft
laws that the right to quality
environment is human right.
• The United Nations, Sub-Commission on
Prevention of Discrimination and Protection of
Minorities appointed a Special Reporter on
Human Rights and the Environment in 1989.
• Some regional human right instruments also
clearly state the right to quality environment.
 Continued…
• The 1981 African Charter on Human and
Peoples Rights was the first international
human rights instrument to contain an explicit
guarantee of environmental quality.
• The Protocol on Economic, Social and
Cultural Rights to the American Convention on
Human Rights included the right of everyone
to live in a healthy environment (Art. 11).
chapter 4. Common legal mechanisms
of environmental protection
• There are mechanisms which are
employed commonly to protect the
environment.
 Prohibiting and Restricting Activities and
Substances
• Due to potential environmental risk restrictions or
limitations could be enacted to prohibit or reduce
the production, process of production of certain
polluting substances.
• The criteria for banning or restricting the
production of the substance commonly are toxicity,
persistence, and bioaccumulation.
• Providing such a long lists of restricted substances
may be difficult to enforcement specially where
the polluting substance is discharged to the
environment in a mixture with other substances.
 Continued…
• For instance elements of mercury and
cadmium are discharged to the
environment with other substances and
identifying the origin of the pollution could
be difficult to establish liability.
• In some cases total ban of production or
use of polluting substances could be
preferred depending on the risk to the
environment and the available alternative.
 Restriction on use of biological
substance
• Restriction on use and trade on biological
materials collected or produced using parts of
endangered speciose is one mechanism of
conservation.
• Restriction on hunting or forms of hunting or killing
and taking of wild animals from the natural habitat
may be adopted to preserve the bio diversity.
• African convention on conservation of nature and
natural resources requires adoption of adequate
legislation to regulate hunting, capturing and
fishing.
 Setting Product and process
standards
• National and international laws sometimes
establish standards for products and processes
that impact the environment.
• Standards are prescriptive norms that govern
products or processes or set limits on the
amount of pollutants or emissions produced.
• It may be setting the maximum or minimum
level of compositions, emissions, quality etc…
 Process standards
• Process standards specify design requirements or
operating procedures applicable to fixed installations
such as factories or may designate permissible means
and methods of activities like hunting or fishing.
• Process standards often are used to regulate the
operations of hazardous activities posing a risk of
accidents or other dangers.
• In some systems all types of operations are required to
install best available control technology (BACT) as
part of their process.
 Continued…
• Process standards that apply to imported
products sometimes may pose potential
barriers to trade under international
trade rules set by WTO or GATT.
• Specially restriction of imports based on
precaution principle may be challenged
by the international community
particularly the WTO, considering them
as non-tariff trade barriers.
 Product standard
• Product standards are used for items that are
manufactured for sale or distribution.
•Such standards may regulate:
• The physical or chemical composition of items
such as pharmaceuticals or detergents.
• For instance regulations that control the Sulphur
content of fuel. Prevention of use of mercury to
produce pesticides is also another example.
 Continued…
• Technical performance standards, for
e.g. maximum limit on the emission
of noise from motorcycle
• Labeling requirements to aware
consumers of the contents and the
permissible uses of products is also
production standard.
 Emission standards
• Emission standards specify the quantity or
concentration of pollutants that can be emitted in
discharges from a specific source.
• Commonly emission standards are applied to control
pollution from fixed plants such as factory.
• The controlling mechanism from mobile sources such
as automobiles is product standard.
• The standard may vary based on the capacity of the
sector to bear the Burdon of the cost of pollution and
the risk to the environment.
 Continued…
•Emission standards are based on the assumption that:
1. Certain levels of some contaminants will not produce any
undesirable effect:
2. There is a finite capacity of each environment to
accommodate substances without unacceptable consequences (
the assimilative capacity) and ;
3. The assimilative capacity can be quantified, apportioned to
each actor and utilized.
 Continued…
• To determine the existence of pollution in the
environment the contaminating substances
must be measured biologically
• Emission standards thus most often reflect a
political decision about the amount of
pollution that is deemed acceptable.
 Ambient quality standards
• Ambient quality standards fix the maximum
allowable level of pollution in an environmental
sector during normal periods
• Quality standard may set the level of mercury
permissible in river, sulfuric oxide in the air.
• Quality standards may vary based on the
particular use of the natural resource or the
environment.
• For instance higher quality standard is expected
for drinking water than water used for hygiene.
 Prior licensing and permit
• Intervention in advance to protect the environment
is expected to be the most effective strategy.
• Environmental law commonly mandate
environmental agencies to authorize, license or
permit any project which have potential
environmental impact before its implementation.
• Permits may also be required to limit use of natural
resources.
• Prior licensing, or permit by environmental
agencies should be a prerequisite in such cases for
investment and trade licenses.
 Continued…
• putting licensing or permit by
environmental agencies as
requirement is used in several
environment protection frame works
both in international law and national
laws.
• The criteria to fulfil before getting the
permit may vary depending on the
potential risk posed by the project.
 Continued…
•Article 3 of the Environmental Assessment
Proclamation No 299/2002 clearly stipulates that:
• Without authorization from the Authority or from
the relevant regional environmental agency, no
person shall commence implementation of any
project that requires environmental impact
assessment.
 Continued…
• The license or the authorization may be
granted by the environmental authority
based on the information available at
the time of the authorization.
• But continuous checkup is necessary to
control any unforeseen causes even
after the project is progressing.
• The EIA proclamation no. 299/2002
under article 11 :
 Continued…
• If an unforeseen fact of serious implication is
realized after the submission of an environmental
impact study report, the Authority or the relevant
regional environmental agency may, as may be
appropriate, order the environmental impact
assessment to be revised or to be redone in order
to address the implication.
 Continued…
• If the project owner is not adhering
to the recommendations or orders
given by the agency following the EIA
report, the authority can take
measures to protect the environment
to the maximum level of canceling
the permit.
 Environmental impact
assessment
According to the Environmental Impact Assessment
Proclamation; No. 299/2002, Art. 2(3)
Environmental Impact Assessment means the
methodology of identifying and evaluating in
advance any effect, be it positive or negative, which
results from the implementation of a proposed
project or public instrument
• Is ‘a procedure for evaluating the likely impact of
a proposed activity on the environment.’
 Continued…
• The purpose of EIA is to provide decision
makers information on the basis of
scientific evidences concerning the
potential impact of activities.
• It is fundamental to prevent or minimize
environmental harm and promote
sustainable development.
• Since EIA was first adopted in USA in 1967
it becomes important tool to protect the
environment, participate the public and
mutual assistance between neighboring
states.
 Continued…
• EIA is one of the principle adopted under the
Rio declaration/ principle 17.
• Under this principle EIA is formulated in
broadest sense stating: Environmental impact
assessment, as a national instrument, shall be
undertaken for proposed activities that are likely to
have a significant impact on the environment and are
subject to a decision of a competent national authority.
 Continued…
• Currently international funding
agencies promote for EIA in projects
funded by them.
• The world bank issued EIA directive
in 1989 .
 Criteria for selecting project must
under take EIA
•The requirement to conduct EIA may be based upon different
tests as EIA is not to be applied in every projects for
convenience and cost reasons.
1. Lists of categories of activities that by their nature are likely
to have significant effects
2. Lists of areas that are of special importance or sensitivity
(such as national parks) where the impact of any activity
within or affecting such areas must be assessed.
 Continued…
3. Lists of categories of resources or environmental
problems which are of special concern
4. An initial environmental evaluation of all activities,
with a quick and informal assessment to determine
whether the effects are likely to be significant
5. Defined and listed criteria, which make an impact
“significant”.
 Continued…
• In Ethiopia projects subject to EIA
shall be determined by directives to
be issued by the Environment
authority.
• According to article 5 of EIA
proclamation the authority is in
charge of listing projects subject to
EIA by directives.
 Monitoring
• Monitoring is a process whereby states ‘observe,
measure, evaluate and analyze, by recognized
scientific methods, the risks or effects’ of pollution or
environmental harm.
• Unlike prior EIA, monitoring is generally undertaken
after the project has begun
• It checks the whether the initial prediction
is perfectly implemented and rendering the
expected result or further improvement is
needed to abate potential dangers.
 Continued…
• Currently international funding
agencies promote for EIA in projects
funded by them.
• The world bank issued EIA directive
in 1989 .
 Chapter 5. the legal frame work of
Environmental proceeding
• Should environment be treated as legal person
by it self?
• The treatment of environment as a legal person
depends on the center of the legal system as its
object.
• For states which focus on human beings,
anthropocentrism, environment could not be
regarded as legal entity
• And for states which focus on other entities,
eco-centerism, environment can be considered
as legal entity by it self.
 Continued…
• The issue legal personality to the
environment per se is also important point in
the protection of environment on the basis of
interests of future generation.
• Some jurisdictions accept legal actions in
court of law based on the interest of future
generation.
• For instance the Philippine supreme court in
the case ``Minors Oposa V. Secretary of the
Department of Environmental and Natural Resources``
 Continued…
• In which case the case has been
brought by forty minors and
Philippine ecological network
representing the current generation
and the generation to come calling on
the defendant to cancel all logging
permits in the country.
• The court in upholding the petition
states as follows:
 Continued…
• ``We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the
succeeding generations, file a class suit. Their
personality to sue on behalf of the succeeding
generations can only be based on the concept of
intergenerational responsibility in so far as the right to
a balanced and healthy ecosystem is concerned.``
 Continued…
• In Ethiopian legal system granting locus- standi on the
basis of recognition of environment as a separate legal
entity by it self so that direct representation of environment
by non- aggrieved party may be controversial.
• Ethiopia has ratified the 1992 Biodiversity convention that
recognize the intrinsic value of the environment, including
ecosystem and speciose in effect awarding legal rights to
subjects other than human.
 Continued…
• This can suggest that there is a possibility to consider
Ethiopian legal system concerning awarding legal
personality to the environment is eco-ceteric.
• Also the provisions of environmental policies
recognizing that the species and their variants having
the right to continue existing, and are, or may be,
useful now/ or for generations to come.
 Continued…
• Such provisions recognizing environment as having legal
rights should be treated as legal person so as to enable
the environment exercise its right as subjects of law.
• On the other hand recognition of the right to clean and
healthy environment as a right of human beings under
the constitution does not exclude the right of the
environment.
 Continued…
• Concerning the issue of legal personality and
standi for future generations under Ethiopian
legal system is also controversial.
• Inter-generational equity, is implicitly
recognized under the FDRE constitution as it
recognizes the principle of sustainable
development.
 Continued…
• Under the Environmental policy, it is explicitly provided
by recognizing the right of species and their variants to
continue existing/and are / or may be useful now and/or
for generations to come.
• Further more, the policy calls for the existence of a
system which ensure un interrupted continuing access to
the same species of land and resource which creates a
conducive condition for sustainable natural resources
management.
 Continued…
•Environment protection establishing
proclamation no. 295/2002 define
environment protection as: ``sustaining
of the essential characteristic of nature and
enhancing the capacity of natural resources base
with a view to safeguarding the interest of the
present generation without compromising the
opportunity of the future generations.``
 Continued…
• Based on such legal provisions it can be argued that
the interest of future generation can be represented
before court by conferring them the right to locus
standi.
• If the interest of environment and future generation
is recognized as to be represented in court it can be
done by different forms of associations as provided
under article 37/2 of the constitution.
• Accordingly public interest litigations should be
allowed to individuals or groups to bring legal action
where ever the environment is endanger on the
interest of the current and future generation.
 Citizen Standing in Cases of Environmental
Authorities’ Inaction or Abuse: Judicial Review

• Where a concerned citizen [or voluntary organization]

sues, not as a representative of others but in his or her
own right as a member of the citizenry to whom a
public duty is owned, it is termed as citizen standing.
• Environmental authorities are vested with broader
authorities to regulate and monitor the implementation
of the environment policy and the right and duty of
citizens provided in the laws in the manner of ensuring
the welfare of human citizens and the environment.
 Continued…

• Such vast power can be abused by the

government agencies or the agencies may
not use their power properly in order to
protect the environment for different
reasons, negligence or capacity as the
case may be.
• In such cases, if environmental authority acting
illegally causes a specific legal injury to a person or a
specific group of persons, a private action for redress
would lie under the traditional doctrine of standing.
 Continued…

• But the damage may not be established if

limited under the rule of locus standi as
the damage could be diffused creating
difficulty to individuals whose right is
threatened by the action of the authorities.
• So the environmental protection no.
300/2002 under article 11 provides for
right to standi with out the need to show
vested interest to lodge compliant at the
concerned environmental agency.
 Continued…
• According to 11/1 ``any person shall have,
without the need to show any vested
interest, the right to lodge a compliant at
the authority or the relevant regional
environmental agency against any person
allegedly causing actual or potential
damage to the environment.
• Article 11/2 states ``where the authority or
regional environmental agency fail to give a
decision within thirty days or when the person
who has lodged the complaint is dissatisfied with
 Continued…
• Should project owners be party to
the case?
• What if any local remedy could not
be found?
 Public interest litigation:
APAP case
• APAP vs Environmental protection Authority.
• Action Professionals` Association for the
People (APAP) is a non profitable local NGO
established in 1993 with the objectives of
providing legal and professional service to
the low income societies and promote
access to information and human right to
bring about attitudinal change in the
process of development.
 Continued…
• APAP had lodged a court case at the
Federal first instance court, against
Environment authority for failing its
responsibility to protect Akaki and
Mojo river due to pollutions from
government and private industries
and wastes from homes in 1998.
Recommendations for the realization
of public interest litigations
• 1. mushrooming Co-operative effort
• Collaboration is essential both on the side
of the petitioners, government and the
court to enforce the rights conferred on the
constitutions and other legal frame works.
• The attitude of the government should be
co-operative.
• Public interest litigation is important to
secure individual freedoms and strengthen
democracy.
 2. creating conducive
environment to public interest
litigation groups

• There are several problems that could

discourage such groups not to pursue
litigations, including funding for investigation,
production of evidence and witnesses and
court fees; therefore the government should
ease conditions for simple fund raising.
• The government may incentivize donation for
such groups by allowing deduction from
income tax calculation.
 3. Cooperation as between public
interest groups to reduce overlaps
• Different public interest groups may be engaged in
similar areas of focuses while disregarding other areas.
• In such concentrations; conflicts of interest could arise
among the groups and they may pule limited
resources in a non-cost effective manner.
• At the same time some environmental problems may
not be addressed unless there is co-operation and co-
ordination between the interest groups.
• Sharing data and information as well as professional
specialization could be taken as important strategies
of co-ordination of the services.
 4. Reform on court fee
• Court fees may discourage public
interest groups not to proceed on the
services.
• The government should allow legal
action brought by public interest
group representing either themselves
or other individuals or the
environment itself not to pay court
fee.
 5. Freedom of information
• The right to be informed of public acts helps
to check the abuse of executive power.
• If the people is armed with information on
government programs, citizens may
influence decision making through
representation, lobbying and public debate.
• Public interest groups should be entitled the
right to information concerning government
activities and plans.
 Continued….
• The government and public interest
groups and any other interested
groups should undertake public
advocacy to create awareness on the
grass root level concerning
environmental rights provided under
the laws.
•
 6. Enhancing the role of
lawyers
•The role of public interest lawyers is not the same with
other traditional lawyers.
•A public interest lawyer should be able to mobilize and
sensitize the target group and must possess a missionary
zeal, lawyers should not only be concerned with legal
quibbling for men with long purses and gaining of high fees.
•Mechanisms to raise attitudes of lawyers towards delivering
service without consideration representing public interest
should be applied.
 Continued…
•Mechanisms to raise attitudes of lawyers
towards delivering service without
consideration representing public interest
should be applied.
•Certifying and awarding lawyers involving
on public interest litigations could be taken
as one mechanism.
 Continued…
•Enforcing the pro-bono service provided
under the advocate`s registration and
licensing legislations may help to promote
public interest litigations.
• Participating law students and non-
licensed lawyers in the investigation and
legal aid services can be helping to
promote public litigation.
 7. The role of courts
•Courts should issue only enforceable
decrees and rulings.
•This is important to enhance credibility of
the court and may encourage future cases.
•Courts must also ensure their decisions
are implemented.
 8. Filtering pseudo public interest
individuals.
• The benefits provided for public
interest litigation should not be miss
used by people running for private
grievance or interests.
• There should be objective measures
for the courts to accept cases on the
name of public interest.
 9. The need for mass public
participation
• Public interest groups can highlight
injustice in some areas in the society.
• But it can not be a substitute for a
mass-movement outside courts.
• To have a full fledged success, public
interest litigation should be
supplemented by mass public
participation.
 10. Enactment of enabling
legislations
• To promote public interest litigations
enabling laws must be enacted by
delegated agencies.
• Legislations including proclamations,
regulations and directives to enhance the
implementation of constitutional provisions.
• legal auditing must be conducted to check
whether government agencies delegated to
issue directives for the implementation of
proclamations perform their duty.
 11. Conducting press
release
• Disclosing the process of environmental
public interest litigation and findings of
investigations to the general public
through press release can create
accountability.
•It can pressurize the Environmental
Authority to fulfill its duty to protect the
environment.
 12. Capacity building
• The capacity of environmental protection
agencies should be enhanced so that they
can fulfil their duties.
• Currently the Environment protection
authority is upgraded to ministerial level
in its structure merging the mandate of
Forest development, so this can help.
• Universities should train professionals with
specialization on environmental issues.
 13. Entrenching full-fledged legal
actions
• Legal actions and judicial reviews should
be brought both against the regulating
authority and polluters.
• Focus on the regulators could be
generalized and mitigate liabilities of
polluters.
• The legal action could be in the form of
joinder or only on one of the parties as the
case may be, as long as the ordinary rule
of civil procedure permits.
 Judicial activism in Ethiopian legal
system
• Judicial activism is a legal process by which
relief is provided to the disadvantaged and
aggrieved party and thus where there is a
gap in the legislation or the law is silent on
a specific point and prompt redress is
needed, the judiciary exercises its inherent
power by virtue of being a custodian and
watchdogs of the constitution.
• The judge exercise broad discretion to
address the interests of the aggrieved party.
 Continued…
• Activist judges put their personal
views about public policy, among
other factors, to guide their decisions.
• Judicial activists commonly tend to
appeal on highest legal principles and
constitutional provisions and may
ignore the implementation of
legislations and precedents on the
basis of violation to constitution.
 Continued…
• Judicial activism is well known in common
law countries specially India.
• The courts claim constitutional
responsibility to limit the government not
to act arbitrarily and to ensure explicit and
implicit constitutional rights protected.
• The supreme court of India created a new
regime of normative rights by stating that
‘the state cannot act arbitrarily but instead
must act reasonably and in the public
interest on the pain of its action being
invalidated by judicial intervention.
 Continued…
• Do our legal system allow judges to
exercise such kinds of judicial
activism?
• Can a judge in Ethiopia interpreted
rule of law beyond the provision of
the law?
• Can judges ban/ sanction the acts of
the executive or legislative by reason
of violation to the constitution?
 Chapter 6: remedies in
environmental proceedings
• Courts handle the issue remedies by applying
specified remedies where mandated and
invoking inherent powers of adjudicating by
general principle of equity where not.
• Legal remedies generally can be categorized
as civil remedies like tort, and criminal
remedies
• The criminal remedies can be found under the
criminal code and other environmental
legislations.
 Continued…
• Once the court accept the case can
not reject remedy.
• The remedy that may be appropriate
to the particular case commonly can
be inferred from the claim of the
plaintiff and defense.
 Continued…
• The type of the remedy may depend
on the type of law based on which
the claim was demanded.
• Constitutional provisions may not
provide for specific remedies for
violations thus, remedies in cases
involving constitutional violation
may, in particular, require judicial
discretion and creativity.
 Continued…
• In such a case judges may for example:
Order a halt to unconstitutional conduct,
Direct that specific remedial actions be
undertaken,
Compensate for past wrong, and/or
Provide for complex, prolonged regime of
performance.
 Continued….
• However more frequent cases in
courts brought on the basis of
statutory legislations and
administrative decisions.
• While remedies can be different case
by case the most common remedies
in this regard which can be inferred
from the plaintiffs prayer for relief
and judgements of courts in
environmental cases are:
 Continued…
•1, injunctive relief to halt the harmful
activity;
•2, damage to compensate for harm
suffered;
•3, orders of restitution or remediation;
•4, sanctions to punish the wrongdoer
and to deter future violations; and
Guidelines in assessing sanctions in
environmental cases.
• 1. seriousness of the offence;
• the potential for harm to the environment
and the regulatory scheme, the extent of the
damage caused, and the blameworthiness of
the defendant should all be considered in
assessing penalties and damages.
• To evaluate seriousness toxicity of the
pollutant, sensitivity of the environment, the
level of emission beyond the standard and
the persistence.
 Continued…
• 2. Ability to pay
• The penalty should reflect the availability
of means on the side of the defendant.
• The capacity of the defendant should be
considered in the calculation of the
penalties and damages.
• The damages and penalties should be
greater than cost of complying with legal
requirements, had he complied with the
law.
 Continued…
• 3. Economic gains:
• The defendant should not gain profit from
his wrongful acts, then the damage should
avoid the gains from non compliance and
costs avoided by non compliance.
• 4. polluter pays:
• The polluter should pay the overall damage
sustained by particular victims and the
impact to social, economic and cultural
dangers.
 Continued…
4. Abetment costs:
Ensuring payment of costs of clean up,
restoration or remediation should be
paramount.
 Administrative remedies
•Proclamation 295/2002 established environment
protection authority with the objective to
formulate policies, strategies, laws, and
standards, which foster social and economic
development in a manner that enhances the
welfare of humans and the safety of the
environment sustainable, and to spearhead in
ensuring the effectiveness of the process of their
implementation.
 Continued…
• According to article 6 of proclamation 295/2002
the authority was empowered with the power of
coordinating measures to ensure that the
environmental objectives provided under the
constitution and the basic principles set out in
the environmental policy of Ethiopia.
• According to proclamation 300/2002 the federal
environment authority and regional counter
parts are empowered to take administrative and
legal measures against persons who in violation
of law, release any pollutant to the environment.
 Continued…
• The authority can decide any person engaged
in any field which is likely to cause pollution or
other environmental hazard, to install a sound
technology that avoids or reduce the
generation of wastes to the required
minimum, and when feasible apply methods
for recycling wastes.
• The authority can determine the any person
who pollutes the environment to clean up the
pollution and to pay cost of cleaning the
pollution.
 Continued…
• When the authorities hold view that
activities of any enterprise or person poses
risk to the environment or human health
can take necessary measures to prevent
harm to the extent of closing the enterprise.
• The environment authorities are also
empowered to authenticate imports of
equipment's for the purpose of controlling
pollutions, so that such equipment to be
imported free of custom duties.
 Civil liabilities
• Generally tort law is an instrument for making
people adhere to standards of reasonable
behavior and respect the rights and interests
of one another.
• It protects the interests of people by
providing legal duty to compensation.
• To constitute a civil injury there must be
wrongful act, damage and the damage must
be of such a nature as to give rise to a legal
remedy in the form of an action for damages.
 Continued…
• But what is unique in environmental tort
cases that a liability for a tort arises where
a wrongful act complained of amounts to a
violation of a legal duty in addition to
infringement to private legal rights.
• It may not be necessary to justify actual
damage to particular individual rights.
• The Nuisance in the environmental cases
can be either public or private or both at
once.
 Public nuisance
• Public or common or general nuisance is an
act affecting the public at large or
considerable portion of it; and it must
interfere with the rights which members of
the community might otherwise enjoy.
• Acts which tend to degrade public interest
is commonly considered as public nuisance.
• Acts violating the health and safety of the
general public can be considered as public
nuisance.
 Continued…
• In acts consisting public nuisance private
individuals may have limited room to have a
private right of action if:
• A, show he/she suffered particular injury to
himself beyond that which is suffered by the rest
of the public;
• B, the injury must be direct;
• C, the injury must be of substantial character,
not fleeting.
• So in this case the person bringing legal action
must show as having vested interest.
 Private nuisance
• Is unlawful interference with a
person’s use or enjoyment of land or
some right over or in connection with
it.
•Private Nuisance includes acts
leading to:
• 1, Wrongful disturbances of
easements or servitude, e.g.
 Continued…
• 2, Wrongful release of deleterious
substances into another’s property,
such as smoke, smell, fumes, gas,
noise, water, filth, heat, electricity,
disease causing germs, trees,
vegetation, animals etc.
 Persons liable for nuisance
• Action for nuisance must be brought against
the hand committing the injury or the owner
for whom the act was done.
• Then nuisance against a person may arise
A, if he/she causes it,
B, if by neglect of some duty he allowed it to
arise; and
C, when it arise without his act or default fails to
remedy it with in reasonable time after he
became or ought to have become aware of it.
 Remedies for environmental
proceeding
•The remedies for nuisance are:
•1, abatement,
•2, damages and
•3, injunction
 Injunction
• Injunction is a long standing remedy the
court may give to prevent pollution
• It can be temporary, conditional, permanent
or immediate as the case may be.
• Injunction can be ordered by the evaluation
of several factors such as probability of
irreparable harm, the absence of other
remedies, practicability of compliance treat
to public health and safety etc.
 Injunction
• Where urgent action is needed to
prevent harm to the environment
emergency injunction can be issued
according to expedient procedure.
 Damages
• Where the harm has already occurred, indemnities
or compensatory damages may be awarded to the
injured party.
• The purpose of damages is to indemnify the loses
to the environment its services and expenses
incurred due to the environmental harm.
• The exact type of award depends upon the nature
of the harm, the characteristics of the environment
in question, and the technical capacity to repair the
damage.
 Criminal liability
•In regard to Ethiopian Environmental Law
criminal liability is encompassed in the Criminal
Code, and other enabling environmental statutes.
•Civil liabilities may not be sufficient to protect the
environment specially where the offenders hold
view that violation is cost effective than
complying with the laws and administrative
regulations.
 Continued…
• Article 3 of the criminal code provides:
• Nothing in this Code shall affect regulations and
special laws of criminal nature: Provided that
the general principles embodied in this Code are
applicable to those regulations and laws except
as otherwise expressly provided therein.
 Continued…
• Article 12/3 of the pollution controlling
proclamation reiterating the provision
of the criminal code provides that:
Unless the provisions of the Criminal Code
provide more severe penalties, the penalties laid
down under this Proclamation shall be
applicable.
 Continued…
• The cumulative reading of these criminal
laws provide for judges to select the
severe criminal penalty.
• To assist the investigation and
administration of environment protection
environmental inspectors can enter any
premises at any time which it seems
appropriate to them with out prior notice
or without court authorization.(art. 8 of
proclamation 300/2002
 Continued…
• Further more failure to cooperate
with inspectors or acting to create
any obstacle hindering the inspectors
not to conduct their duty is also
punishable according to article 13 of
proclamation 300/2002
 Confiscation…
•According to Article 17 of proclamation No
300/2002:
• The court, before which a person is
prosecuted for an offence under this
Proclamation or regulations issued
hereunder, may, in addition to any
penalty it imposes upon the convicted
person, order:
a.the confiscation of anything used in the
 Continued…
a.that the cost of cleaning up and the disposing
of the substance, chemical or equipment
seized be born by the convicted person; and
b.the convicted person to restore to the state
in which the environment was prior to the
infliction of the damage, and when such
restoration is not possible to pay appropriate
compensation.