SCHOOL OF LAW

L320- ENVIRONMENTAL LAW LECTURE NOTES

UNIT 3

FUNDAMENTAL PRINCIPLES OF ENVIRONMENTAL LAW

The development of environmental law during the past 3 decades has led to the
emergence of an increasing number of concept, principles and norms. Environmental
law has developed principles which underpin its rules.

The reason why principles and concept play such an important role is linked to the
origin and development of environmental law. At the international level environmental
has developed mainly in piecemeal fashion, not in a structured orderly way but as an
ad hoc response to environmental threats and challenges.

Without a doubt, most of these principles have been included or referred to in different
treaties or non binding instruments. A number of principles and concepts run through
many international environmental instruments including soft law instruments like the
Stockholm and Rio Declarations, United Nations General Assembly Resolutions,
Arbitral decisions, decisions of the International Court of Justice, Environmental treaties
and expert commentaries. The frequent inclusion of their principles and concepts in
international legal instruments reinforces them and together with state practice will
contribute to the creation of a global framework.
It is worth noting that the legal status of these principles varies in that some of them
have attained the status of customary international environmental law while others
have been incorporated in legally binding instruments including global environmental
treaties. Some of these principles have recently begun to be implemented at national
level. For instance, Section 6 of the Environmental Management Act No.12 of 2011 has
enshrined the principles governing environmental management in Zambia and the said
principles shall be applied in achieving the purpose of the Act.

What is the importance of these fundamental principles?

 They embody a common ground in environmental law as they reflect its past and
future growth.
 They indicate the essential characteristics of internal laws and its institutions.
 They provide guidance in interpreting legal norms
 They fill in the gap where the law presents lacunae
 They influence international and national Jurisprudence

The following are some of the fundamental principles of Environmental Law:

i) Sustainable Development
This concept originated from the realisation that the world’s environment, its
economies and the way it treats its human and animal inhabitants are all interlinked.
The international community recognised sustainable development as the overarching
paradigm for improving quality of life in 1992.

The most commonly accepted and cited definition is that of Brundtland Commission on
Environment and Development which states in the 1987 Report, our common future,
that sustainable development is “development that meets the needs of the present
without compromising the ability of the future generations to meet their own needs.”
Therefore, 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. Economic development, social development and environmental
protection are interdependent and mutually reinforcing components of sustainable
development.

APPLICATION BY THE COURTS

 In the Case concerning The Garcikovo – Nagymaros Project1 the I.C.J in its
opinion observed and comented thus:

“..throughout the ages, mankind has for economic and other reasons, constantly
interfered with nature. In the past this was often done without consideration of
the effects upon the environment. Owing to new scientific insights and to a
growing awareness of the risk for mankind- for present and future generations-
of pursuit of such interventions at an unconsidered and unabated pace, new
norms have been developed, set forth in a great number of instruments during
the last two decades this need to reconcile economic development with the
protection of the environment as aptly expressed in the concept of sustainable
development….the court must hold the balance even between the environmental
considerations and developmental considerations raised by the respective
parties. The principle that enables the court to do so is the principle of
sustainable development.

ii) Precautionary Principle

1
25th September 1997, General list No. 92.
The precautionary principle is one of the most important principles for anticipating and
avoiding environmental damage before it occurs and thus it can lower the overall costs
of mitigating or adapting to environmental damage. This is one of the most frequently
encountered principles in environmental law as it is essential to protecting the
environment (including human health). The precautionary principle in slightly different
formulations has been included in many international environmental instruments.

Article 15 of the Rio Declaration elaborates the principle thus:

“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.”

In 1990, the principle was set out as part of the conservative government’s white paper
on environmental policy, entitled This Common inheritance:

“Where there are significant risks of damage to the environment, the government
will be prepared to take precautionary action to limit the use of potentially
dangerous materials or the spread of potentially dangerous pollutants even
where scientific evidence is not conclusive, if the balance of likely cost and
benefits justifies it”.

APPLICATION BY THE COURTS

 In the case of R v. Secretary of State for Trade and Industry, Ex p. Duddridge.

[1995] Env. L.R.151. This was an action for judicial review by the parents of 3
children concerned that their exposure to power cables would increase the risk of
Leukaemia. The applicants submitted that the government had misinterpreted
the precautionary principle by setting a threshold of preventative action where a
 significant risk of damage arose. They argued that the principle required action
to be taken as soon as any possible risk was demonstrated. In rejecting this
argument, Smith J. observed that the principle: “is primarily intended to avoid
long tern harm to the environment itself rather than damage to human health
from transitory environmental conditions.”

 Leatch Vs National Parks and Wildlife Service and Shaolhaven City Council 2 :
This was an appeal sought to challenge a licence issued by the Director General
of National Wildlife Services to the Shaolhaven City council to take or kill
protected fauna in the course of carrying out the road development project. In its
judgement, the court observed that where there is a threat of significant
reduction or loss of biological diversity, lack of full scientific certainty should
not be used as a reason for postponing measures to avoid or minimise such a
threat. The court noted that the precautionary principle is directed towards the
prevention of serious or irreversible harm to the environment in situations of
scientific uncertainty. It is premise is that where uncertainty or ignorance
exists concerning the nature of scope of environmental harm, decision makers
should be cautious.

iii) Prevention
The precautionary principle is closely related to the principle of prevention because
both are concerned with taking ancillary actions to avoid environmental harm before it
occurs.3 An obligation of prevention emerges from the international responsibility not
to cause significant damage to the environment. Therefore, this approach seeks to avoid
harm irrespective of whether or not there is trans-boundary impact or international
responsibility.

2
8IL GERA 270(1993)

3
Danah Shelton and Alexander Kiss, Judicial Handbook on Environmental Law. UNEP 2005 p.364
One obligation that flows from this concept is the need for prior assessment of
potentially harmful activities. Therefore, a properly conducted Environmental Impact
Assessment (EIA) might serve as a standard for determining whether or not due
diligence was exercised.

The principle of prevention is most developed at international level with respect to

pollution. Principle 6 of the Stockholm Declaration sets out the principle in sweeping
terms:

“the discharge of toxic substances or of other substances and the release of heat,
in such quantities or concentrations as to exceed the capacity of the environment
to render them harmless, must be halted in order to ensure that serious or
irreversible damage is not inflicted upon ecosystems.”

Preventive mechanisms also include monitoring, notification, and exchange of

information concerning environmental risk.

The objective of most international environmental instruments is to prevent

environmental harm, whether they concern pollution of the sea, inland waters, the
atmosphere, soil or the protection of human life or living resources.

iv) Polluter Pays Principle (PPP)

The PPP was originally enunciated or developed by the Organisation for Economic Co-
operation and Development (as an economic principle) to restrain national public
authorities from subsidizing the pollution control costs of private firms. 4 This principle
has been a declared policy of the European Community since its first Environmental
Action programme in 1972. This principle entails that the pollute, rather than society at
large, must pay the cost of environmental clean-up required as a result of his polluting
activities.

4
Danah Shelton and Alexander Kiss, Judicial Handbook on Environmental Law. UNEP 2005 p.22
On the international stage, this treaty appears in various forms in a number of treaties
and declarations. For example, principle 16 of the Rio Declaration provides:

“National authorities should endeavour to promote the internalisation of

environmental cost and the use of economic instruments, taking into account the
approach that the polluter should, in principle, bear the cost of pollution, with
due regard to the public interest and without distorting international trade and
investment.”

Therefore, all of the costs of pollution prevention, control and reduction measures are to
be borne by the polluter.

APPLICATION BY THE COURTS

The application of the PPP by the Courts is illustrated in the following cases

(a) Environmental Council of Zambia Vs. Crushex (Z) Limited 5 : in this matter
there was a consent judgement which included the following terms

 That the defendant shall upon cessation of quarry activities clean up the
quarry area and remedy any damage caused to the environment and
immediate areas to the full satisfaction of the ECZ.

 That the Defendant shall have in place a compensation plan for any
bonafide claims that may arise from the Sihoto village area in respect of
the effect of the dust pollution occasioned by the defendant as a result of
the activities of the quarry.

(b) Indian Council for Enviro – Legal Action Vs Union of India 6 : This was an
action to prohibit and remedy the pollution caused by several chemical industrial
plants operated by the respondents and producing chemicals whose
manufacture was banned in Western Countries. The Indian Supreme Court

5
2005/HL/06 [unreported]

6
1996 3 SCC 212
 Held that an enterprise that engaged in hazardous or inherently dangerous
activity which resulted in harm to anyone, is strictly and absolutely liable to
compensate all those who are affected. The court endorsed the PPP under which
the financial cost of preventing or remedying damage lie with those who cause
the pollution. The court also directed the central government to determine the
amount of money to carry out remedial measures for the pollution and ordered
the factories to be closed.

v) The “No Harm” Rule

This rule regulates state behaviour in respect of transboundary pollution. This is the
most fundamental rule of international Environmental law and it is contained in
Principle 21 of the Stockholm declaration and Principle 2 of the Rio Declaration
which provides as follows:

“States have…the responsibility to ensure that activities within their jurisdiction

or control do not cause damage to the environment or other states or of areas
beyond the limits of national Jurisdiction.”

The above principle as a whole therefore represents a careful balance between:

a) On one hand, the territorial sovereignty of a state and;

b) A wider responsibility to the international community, on the other hand.

APPLICATION BY THE COURTS

 The case of Corfu Channel (UK v. Albania) 1949, ICJ Reports 4, although not an
Environmental case, contributed to the development of this principle. The ICJ
Held that Albania was responsible in international law for failing to inform the
UK about the presence of mines laid in its territorial waters. It was Held further
 that every state has a duty not to knowingly allow its territory to be used for
activities that are contrary to the rights of other states.

This principle is now accepted as a rule of customary internationals law.

vi) The Principle of State Co-operation

This principle is affirmed by the fact that sate co-operation in protecting their
environments and this position is fortified in most international agreements. The Rio
Declaration provides the following:

“States and people should co-operate in good faith and in a spirit of partnership
in the fulfilment of the principles embodied in the declaration and in the further
development of international law in the field of sustainable development.”

vii) The Principle of Common but differentiated responsibilities

This principle appreciates the fact that different states have different environmental
concerns, needs and responsibilities from others. Rio Declaration Principle 7 states
that:

“In view of their different contributions to global environmental degradation

states have common but different responsibilities. The developed countries
acknowledge the responsibility that they have in the international pursuit of
sustainable development in view of the pressures their societies place on the
global environment and of the technologies and financial resources they
command

The principle is based on the recognition that developing nations and developed
nations often have very different priorities in terms of environmental problems. The
environmental problems of developing nations are often directly related to poverty,
whilst environmental problems in developed nations are related to excessive
industrialisation and high consumption lifestyles.

viii) Intergenerational equity ( Meeting the needs of Future Generations)

This principle asserts that states have a duty to protect the environment not only for the
current inhabitants of the planet, but for the future generations. The idea of holding the
world in trust for future generations is frequently found in international environmental
instruments

For example:

Principle 1 of the Stockholm Declaration states:

“[A man] bears a solemn responsibility to protect and improve the environment
for present and future generations.”

Principle 3 of the Rio Declaration states:

“The right to develop must be fulfilled so as to equitably meet developmental

and environmental needs of present and future generations.”

It is noteworthy that despite the principles apparent popularity, these international

instruments contain little or no clarification of its practical implication and
implementation.

INCORPORATION OF THE PRINCIPLE UNDER ZAMBIAN LAW

 Art 255 to 257 constituion Act number 2 of 2016

 APPLICATION BY THE COURTS

 Juan Antonio Opasa and Others Vs The Honourable Fulgencio S. Factoran 7the
petitioners in this case were philipino minors who brought an action on their
own behalf and on behalf of generations yet unborn through their representative
parents together with the Ecological Network. They contended that the country’s
natural forest cover was being destroyed at such a rate that the country would be
left with no forest resources by the end of the decade, if not sooner. They
contended that the acts of the respondent constituted a misappropriation of
natural resource property held in trust for the benefit of the minors and
succeeding generations. The Philippines Supreme Court Held inter alia that the
petitioners had a right to sue on behalf of the succeeding generations because
every generation has a responsibility to the next to preserve the rhythm and
harmony of nature for the full enjoyment of a balanced and healthy ecology.

ix) Participatory Principle (Transparency, Public Participation and Access to

information and Remedies)
This principle is essential to public participation and sustainable development, for
example, in order to allow the public to know what the decision making processes are,
what decisions are being contemplated and other aspects of governmental processes.

Principle 10 of the Rio Declaration states:

“Environmental issues are best handled with the participation of all concerned citizens,
at the relevant level. At the national level, each individual shall have appropriate access to
information concerning the environment that is held by public authorities, including
information on hazardous materials and activities in their communities, and the
opportunity to participate in decision-making processes. States shall facilitate and
encourage public awareness and participation by making information widely available.
7
G.R. No. 101083
 Effective access to judicial and administrative proceedings, including redress and remedy,
shall be provided.”

Therefore, this principle requires parties to publish their environmental laws,

regulations, procedures and administrative rulings to ensure that interested persons
have access to judicial, quasi-judicial and administrative proceedings to force the
government to enforce environmental law.

In many countries, public participation rights are granted through Environmental

Impact Assessment procedures with broad public participation or in various laws
adapted to the special circumstances of each sector.

APPLICATION BY THE COURTS

 Integrity Foundation Vs. Zambia Wildlife Authority, Environmental Council

of Zambia, Attorney General and Kafue District Council 8 The plaintiff in this
case sought, inter alia, the orders that the 1 st and 2nd Defendants should carry out
or facilitate a mandatory E.I.A study in the lower Zambezi National Park and
also that the defendants should not approve or authorise any further
developments to be carried out without an E.I.A. The importance of the
participatory principle is shown by the need for an E.I.A

 Florite Limited and Robert Kunda Chimambo, Lusaka City Council and
Environmental Council of Zambia9 the 1st respondent was praying for a
prerogatory writ of mandamus directed at the 2 nd and 3rd respondents to perform
their statutory duty. In the course of proceedings, the appellant asked to be
joined in the action as the property likely to be affected by the mandamus order
was owned by it. This case demonstrates the relevance of participatory order
and access to justice in particular.

8
2003/HP/0321

9
Appeal No. 85 of 2003