Note on Ethiopian environmental law

The right to a clean environment is not a purely individual right. Rather, it has a collective facet,
belonging equally to such groups as future generations and indigenous peoples whose cultures
depend on the environment for their existence and perpetuation.

Do people have a right to clean air, safe drinking water, and a healthy environment? Fifty years ago, the concept of a
human right to a healthy environment was viewed as a novel, even radical, idea. Today it is widely recognized in
international law and endorsed by an overwhelming proportion of countries. Even more importantly, despite their
recent vintage, environmental rights are included in more than 90 national constitutions. These provisions are having
a remarkable impact, ranging from stronger environmental laws and landmark court decisions to the cleanup of
pollution hot spots and the provision of safe drinking water.

The term‘environmental rights’, as used herein, refers to any proclamation of a human right to environmental
conditions of a specified quality. As discussed, such proclamations utilize a variety of descriptive terms: safe, healthy,
ecologically sound, adequate for development, sound, etc.

Environmental rights and responsibilities have been a cornerstone of indigenous legal systems for millennia. Yet the
right to a healthy environment is not found in pioneering human rights documents such as the  Universal Declaration
of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), or the International
Covenant on Economic, Social, and Cultural Rights (1966). Society's awareness of the magnitude, pace, and adverse
consequences of environmental degradation was not sufficiently advanced during the era when these agreements
were drafted to warrant the inclusion of ecological concerns.

The first formal recognition of the right to a healthy environment came in the Stockholm Declaration, which emerged
from the pioneering global eco-summit in 1972:
Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality
that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the
environment for present and future generations.

In the four decades since the Stockholm Declaration, the right to a healthy environment rapidly migrated around the
globe. As of 2012, 177 of the world's 193 UN member nations recognize this right through their constitution,
environmental legislation, court decisions, or ratification of an international agreement (see Figure 1). The only
remaining holdouts are the United States, Canada, Japan, Australia, New Zealand, China, Oman, Afghanistan,
Kuwait, Brunei Darussalam, Lebanon, Laos, Myanmar, North Korea, Malaysia, and Cambodia. Even among these
laggards, some subnational governments recognize the right to a healthy environment, including six American states,
five Canadian provinces or territories, and a growing number of cities.

Regional human rights agreements recognizing the right to a healthy environment have been ratified by more than
130 nations spanning Europe, Asia, the Americas, the Caribbean, Africa, and the Middle East. The Inter-American
Commission on Human Rights, the Inter-American Court of Human Rights, the African Commission on Human and
Peoples Rights, the European Court of Human Rights, and the European Committee on Social Rights have issued
decisions in cases involving violations of this right.
The African Charter of Human and Peoples’ Rights provides that‘[a]ll peoples shall
have the right to a general satisfactory environment favourable to their development’: African
Charter of Human and Peoples’Rights (27 June 1981) (1982) 21 ILM 58 (African Charter) Art
24. The Additional Protocol to the American Convention on Human Rights provides that
‘everyone shall have the right to live in a healthy environment and to have access to basic public services’:
Organization of American States, Additional Protocol to the American Convention
on Human Rights in the Area of Economic, Social and Cultural Rights (17 November 1988)
OAS Treaty Series No 69 28 ILM 161 [ESC Protocol] Art 11.

While international law plays a vital role in establishing norms and offering a court of last resort for human rights
violations, the reality is that most of the action to protect and fulfill rights occurs at the national level. Within
countries, a constitution is the highest and strongest law, as all laws, regulations, and policies must be consistent with
it. A constitution protects human rights, sets forth the obligations of the state, and restricts government powers. On a
deeper level, constitutions reflect the most deeply held and cherished values of a society. As a judge once stated, “A
constitution is a mirror of a nation's soul.”

Portugal (in 1976) and Spain (1978) were the first countries to include the right to a healthy environment in their
constitutions. Article 66 of Portugal's Constitution states, “Everyone has the
right to a healthy and ecologically balanced environment and the duty to
defend it.”8 Since the mid-1970s, 92 countries have granted constitutional
status to this right (see Figure 2). Constitutional law experts observe that
recognition of environmental rights has grown more rapidly over the past
50 years than any other human right.
Despite this progress, there is an ongoing debate about the scope and potential utility of the right to a healthy
environment. Supporters argue that the potential benefits of constitutional environmental rights include:
 Stronger environmental laws and policies
 Improved implementation and enforcement
 Greater citizen participation in environmental decision making
 Increased accountability
 Reduction in environmental injustices
 A level playing field with social and economic rights
 Better environmental performance
Critics, on the other hand, argue that constitutional environmental rights are:
 Too vague to be useful
 Redundant because of existing human rights and environmental laws
 A threat to democracy because they shift power from elected legislators to judges
 Not enforceable
 Likely to cause a flood of litigation
 Likely to be ineffective

PROCEDURE AND SUBSTANCE

In general, procedural human rights linked to environmental protection receive more attention than
do substantive environmental rights in legal instruments, jurisprudence and in doctrine. The focus on
procedural rights has been based in part on political caution, at least at the international level, arising
from concern that efforts to guarantee and enforce substantive environmental rights may be
unsuccessful.

Indeed, the claim of a human right to environmental quality has met resistance from those who argue
that the concept cannot be given content and that no justiciable standards can be developed to
enforce the right, because of the inherent variability of environmental conditions.
Some proponents of procedural rights also may have held an overly optimistic view that a fully
informed public with rights of participation in environmental decision-making, and access to remedies
for environmental harm, would ensure a high level of environmental protection.

The scope of state obligations

Enforcement of environmental rights involves courts in not only determining the mandated
environmental quality, but also in assessing whether or not the government has taken the requisite
actions to achieve that quality. This is not a strict liability standard, but the courts have not been entirely
clear about what exactly is the standard of care for governmental acts and omissions. Human rights
tribunals have made clear that the state may be responsible whether pollution or other environmental
harm is directly caused by the State or whether the State’s responsibility arises from its failure to
regulate properly private-sector activities.

Human rights instruments require States not only to respect the observance of rights and freedoms but
also to guarantee their existence and the free exercise of all of them against private as well as State
actors. Thus any act or omission by a public authority which impairs guaranteed rights may violate a
state’s obligations.This is particularly important in respect to the environment, where most activities
causing harm are undertaken by the private sector.

Other cases and country studies have helped to clarify some issues in this respect, specifying that
governments must enact appropriate laws and regulations, and then fully enforce them.

1, There are at least three ways in which the human right to environment is today officially
recognized juridically:

 as an entitlement derived from other recognized rights, centering primarily on the substantive
rights to life, to health, and to respect for private and family life, but embracing
occasionally other perceived surrogate rights as well—e.g., habitat, property, livelihood,
culture, dignity, equality or nondiscrimination, and sleep;

 as an entitlement autonomous unto itself, dependent on no more than its own recognition
and increasingly favored over the derivative approach insofar as national constitutional
and regional treaty prescriptions proclaiming such a right are evidence;

And
  as a cluster of procedural entitlements generated from a “reformulation and expansion
of existing human rights and duties” (akin to the derivative substantive rights noted first
above) and commonly referred to as “procedural environmental rights.”

. 2. All three of these official juridical manifestations of the human right to environment, however
robust in their particularized applications, are essentially limited in their legal recognition and
jurisdictional reach.

On the global plane, no treaty provides for a human right to environment explicitly in either its
autonomous or derivative form; one recognizes its autonomous existence, though only implicitly and in
passing; (See Convention on the Rights of the Child, art. 1, Nov. 20, 1989, 1577 U.N.T.S. 44, reprinted in
28 I.L.M. 1448 (1989) and 3 BASIC DOCUMENTS, )and so far but one global-level court decision affirms
the right explicitly though in its derivative form (via the rights to life and to health as surrogates for it),
( Gabcíkovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7)as do also a few treaty-body rulings, but
only implicitly. Otherwise, the recognition and reach of the human right to environment globally is
left largely to a series of progressive resolutions, declarations, charters, and other assorted
instruments affirming the right in its autonomous form, but all or most of them technically non-
binding or at best disputed in their juridical quality or significance. Included among them is the
historically prominent and influential 1972 Stockholm Declaration on the Human Environment
which, first in modern times, affirmed the right to environment not only in the autonomous
sense but, as well, in the derivative sense via the rights to life and health. Contemporary legal
scholarship, however, influenced by frightening environmental trends, actual and anticipated,
evinces an increased willingness to reassess the juridical vitality of this “soft law” (as often is
inadequately called).

On the regional plane, the right to environment is recognized and supported by several treaties: one
each in Africa and Latin America that affirm it explicitly in its autonomous form ;( African Charter on
Human and People’s Rights (“Banjul Charter”), art. 24, June 27, 1981, OAU Doc. CAB/LEG/67/3/Rev.
5, reprinted in 21 I.L.M. 58 (1982) and 3 BASIC DOCUMENTS, supra note 13, at III.B.1; Additional
Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural
Rights, art. 10) two others in Europe that, with the help of regionally authoritative regulatory and
judicial decisions, embrace it implicitly in its derivative guise; and still another, the widely adopted
European Aarhus Convention, acclaimed by the United Nations and others beyond Europe’s frontiers,
that honors the human right to environment in terms of detailed procedural rights.

On the national/local plane, as on the regional plane, legal support for the right to environment exists
in both its derivative and autonomous forms, although in this setting more in constitutional and
statutory mandates backed by judicial decisions from the lowest to highest of national tribunals than
pursuant to international law. Especially noteworthy are the growing numbers of new or
amended national and subnational (provincial, state) constitutions that, explicitly and implicitly,
provide for a right to environment in the autonomous sense. Where these provisions appear to be
taken as presumably intended—i.e., without judicially fabricated constraints upon subject-matter
jurisdiction or proof of personal economic loss, as in the United States, for example 49—they
contribute to the building of a general principle of law recognized under international law as an
authoritative “source of law” for the rendering of international legal judgments, judicial and
otherwise,

The majority of these law-making and law-enforcing exercises, however, are restricted largely to the
world’s developing countries in Latin America, Sub-Saharan Africa, and South Asia (especially India), and
to the Eastern European countries formerly of the Soviet Union and Soviet bloc. In each case, however,
it seems that they have been pursued largely for idiosyncratic reasons: in the first instance, to
erect a protective shield against ecologically derelict business enterprise as experienced in the past,
not least at the hands of foreign corporations (e.g., Ecuador’s Oriente, India’s Bhopal, Nigeria’s
Ogoniland); and in the second instance, as a demonstrative embrace of “environmental
democracy” meant to enhance a nation’s prospective membership in the European Union. In other
words, the generality of the incipient general principle appears to be limited.

In sum, a juridically recognized right to environment may be said to exist officially in Africa, Asia,
Europe, and Latin America based on regional treaty or national constitutional authority or both as
follows:

 in Africa (i.e., sub-Saharan Africa), in its autonomous form courtesy of a regional treaty backed
by a treaty commission decision (invoking also, sua sponte, the derivative rights to life and
health),and in its derivative form (mainly the right to life) as pronounced in a few national
judicial decisions interpreting constitutional mandates;

 in Asia (i.e., South Asia, mainly India), in both its autonomous and derivative forms, via the
enforcement by national courts largely of express constitutional authority—though to a degree
of growing extraterritorial influence sufficient to suggest the emergence of at least a
regional “general principle” voicing the right to environment;

 in Europe, in three ways: (1) in its derivative form, mainly via the European Court of
Human Rights’s interpretative application of the 1950 European Convention on Human Rights
and Fundamental Freedoms,(2) in its autonomous form, principally in Eastern Europe according
to national constitutional mandates, and (3) in procedural terms throughout Europe and
extending into Central Asia by virtue of the Aarhus Convention and national constitutional and
statutory law;

And
 in Latin America, as in Africa, in its autonomous form courtesy of a regional treaty
backed by treaty commission decisions so far limited to the rights of indigenous peoples save
for one recent such decision that implicitly recognizes an autonomous right to
environment for all.