It is about Ethiopian Environmental Law

1. Environmental Law Notes
Chapter One: Introduction to Environmental Law 1.1
Meaning of Environment
Q. Why definition?
> To delineate the scope of the subject
> To identify application of legal rules,
> Io establish the extent of liability when harm occurs Q . What is meant by
Environment?
❖ The word environment is derived from an ancient French word environner, meaning to
encircle
❖ dictionaries define ‘environment’ as ‘the objects or the region surrounding anything’
❖ By broadly applying to surroundings, environment can include the aggregate of natural,
social and cultural conditions that influence the life of an individual or community.
❖ Accordingly, the term encompasses both the features and the products of the natural
world and those of human civilisation. On this definition, the environment is broader than,
but includes, ‘nature’, which is concerned only with features of the world itself.
❖ Caldwell remarks ‘it is a term that everyone understands and no one is able to
define’.1 Why do you think?
❖ Many treaties, declarations, code of conduct, and guide lines do not specifically
define what is meant by environment. If it is defined, it is mostly related with the subject
matter the treaties... want to address.
❖ Stockholm declaration— ‘both aspects of man’s environment, the natural and manmade,
are essential for his well-being and enjoyment of basic human rights
❖ World Commission on Environment and development(WCED)- the environment is
where we live ’
❖ Environmental protection organ establishment proclamation No. 9/1995 defines:
'Caldwell, International environmental Policy and Law (1st edn. Durham, NC, 1980), 170.

2. 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.
The same is enshrined under environmental pollution control proc. No. 300/2002
What is International Environmental Law?
^ Is Environmental Law a self contained discipline with its own source and
methods of law making from principles peculiar to environmental law? Or
^ Is it part and parcel of IL?
^ No consensus among scholars. Some argue that there is no distinct environmental
law. Rather it originates from the application of general principles of international
law.
❖ Thus international environmental law is nothing more, or less, than the
application of international law to environmental problems.
> Some on the other hand do not agree on this argument that gives over emphasis
on the international law.
> For them though international environmental law borrows some aspects of
public, private int. law and national law, it has also its own unique features.
❖ In sum, most legal scholars don’t attempt to define IEL as a body of law that
exclusively deals with environmental matters.
❖ Rather most agree that IEL shares some aspect of public, private IL and domestic
law and has also its own unique features.
Factors that Gave Rise to Environmental Law: National and International
Perspective
L_The existence of extra territorial environmental problems.
Eg. Pollution (atmospheric, maritime), global warming and ozone depletion, the
danger of
nuclear and other hazardous substance. The effect of such problems is most of the
time extra territorial. Eg. Acidic rain. Such problems necessitated cooperation among
states.

3. > The fact is that these environmental problems cannot be resolved by states acting
individually. Accordingly, co-operation between the polluting and polluted state is
necessitated.
II . The question of the relationship between the protection of the environment and the need
for economic development is another factor underpinning the evolution of environmental law
Historical Development of IEL
Though historically one can see early domestic environmental legislation, IEL is relatively a
young field
• the current form and structure of the subject has become recognisable only since the
mid-1980s
• International environmental law has evolved over at least four distinct periods From
Early Fisheries Conventions to the creation Of the United Nations
> Is marked by bilateral fisheries treaties in the nineteenth century, and concluded
with
the creation of the new international organisations in 1945
> Was dominated by conservation of wild life (fisheries, birds and seals) and, to a
limited extent, on the protection of rivers and seas
> Industrialization and over utilization of mineral resources was a major deriving
force for the coming in to picture of early environmental legislation at the national
level
> The adoption of treaties was ad hoc (done for a particular purpose) ,
sporadic(irregular) and limited in scope
> For eg. Convention for the Protection of Birds Useful to Agriculture (1902), signed
by
12 European governments.
> the Convention for the Preservation and Protection of Fur Seals (1911), concluded
by
the United States, Japan, Russia, and the United Kingdom;
> The Convention for the Protection of Migratory Birds (1916), adopted by the
United
States and the United Kingdom (on behalf of Canada) and later extended to Mexico
in 1936.
> The 1909 Water Boundaries Treaty between the United States and Canada was the

4. > Developments relating to the creation of international environmental organisations
were limited
> Arbitral awards - Pacific Fur Seal Arbitration, the dispute between the United
States and Great Britain over-exploitation of fur seals in areas beyond national
jurisdiction was entertained in this period.
> The Trail Smelter case arose out of a dispute between the United States and Canada
over the emission of sulphur fumes from a smelter situated in Canada which
caused damage in the state of Washington.
II. From the creation of the United Nations to Stockholm:1945-1972
> Begin with the coming of UN in 1945
> UN charter did not include any provisions on the protection or the conservation of
natural resource.
> No environmental or nature conservation body was established among the
specialised
agencies
> However purpose of UN:- international cooperation for international social and
economic problem.
> FAO, UNESCO, GATT envisage environmental provisions.
> 1948 International Union for the Protection of Nature (IUPN) was established by
governments and non-governmental actors. It played an important role in developing
treaties to protect wildlife and conserve natural resource.
> the 1949 United Nations Conference on the Conservation and Utilisation of
Resources
(UNCCUR was organized by the UN ECOSOC
> The resolution reflected an awareness of the need for international action to establish
a balanced approach to the management and conservation of natural resources.
> In 1954, the General Assembly convened a major Conference on the Conservation of
the Living Resources of the Sea. The major new development was the attention
given by the General Assembly to the effects of atmospheric nuclear tests and oil
pollution
> 1957 Lac Lanoux arbitration on shared rivers;- right to use and limitation eg
cooperation.This case was arised between France & Spain on the utilization of rives
Carole on which French build Hydra electric dam'

5. In early 1972, shortly before the Stockholm Conference, the Oslo Dumping Convention
became the first treaty to prohibit the dumping of a wide range of hazardous substances at
sea
> This period was characterized by Development of environmental legislations at
piecemeal fashion, lack coordination, no particular international organization
was given responsibility.
The 1972 United Nations Conference on the Human Environment
> Held in Sweden, Stockholm, from 5-16 June 1972 under the chairmanship of
Maurice Strong (the first Executive Director of UNEP,)
> Attended by 114 states and a large number of international institutions and
nongovernmental ob-servers.
> The conference was mainly for rational use and conservation of natural resources
> It also considered the impact of human activities on the environment air and water
pollution, deforestation, drainage of wetland
> The conference produced the Stockholm Declaration on the Human Environment
with 26 principles
> Stockholm enlarged and facilitated means toward international action previously
limited by inadequate perception of environmental issues and by restrictive concepts
of national sovereignty.
> the most relevant provisions are Principles 24 ( which called for international
cooperation ‘to effectively control, prevent, reduce and eliminate adverse
environmental effects,)
> principle 21 (right to use natural resources) responsibility of states to ensure that
activities within their jurisdiction or control do not cause damage in another state or
beyond national jurisdiction, such as in outer space or on the high seas
> Principle 22 ( required states to co-operate in developing international
environmental law )
> Principles 8-15 addressed issues which reflected the relationship between
development and the environment: they recognised the relationship between
economic and social development and environmental quality.

6. > The Stockholm Principles are weak on techniques for implementing
environmental standards, such as environmental impact assessment, access to
environmental information and the availability of administrative and judicial
remedies
III. From Stockholm to Rio: 1972-1992 This period was marked by;
> The period was marked by: a proliferation of international and regional
Environmental organisations
> Greater efforts by existing institutions to address environmental issues;
> The development of new sources of international environmental obligations from acts
of such organisations;
> New environmental norms established by treaty;
> The development of new techniques for implementing environmental standards,
including environmental impact assessment and access to information; and
> The formal integration of environment and development, particularly in relation to
international trade and development assistance.
A decade after the adoption of the Stockholm Declaration, the World Charter for
Nature was adopted by the General Assembly
> The General Principles provide that nature must be respected and that the habitat
and life forms must be safeguarded to ensure their survival
> The Charter recommends controls on economic development and consideration for
the long-term capacity of ecosystems to support human use
Another important development that paved the way to the Rio Summit was the
publication of “Our Common Future”( Brundtland Report) in 1987 by the World
Commission ( created by un general assembly in 1983
> provides a comprehensive overview of various global issues. Such issues include
> sustainable development, the international economy, the debt crisis, food
security, species, ecosystems, industry, the urban challenge, peace and the arms
race, climate change, and ozone depletion.

7. > The Stockholm Conference set the scene for international activities at the regional and
global level, and influenced legal and institutional developments up to and beyond
UNCED.
UNCED ( RIO DECLARATION)
♦♦♦ The UN Conference on Environment and Development (or Earth Summit) was
held in Rio de Janeiro between June 3-14 June 1992, with the participation of an
unprecedented number of NGOs and 176 states
♦ It produced a number of instruments that have shaped the development of
international environmental law until today - the Rio Declaration on Environment
and Development, Agenda 21, the Non-Binding Principles on the Sustainable
Development of all Types of Forest, the Treaty on Biological Diversity, and the
Treaty on Climate Change
♦♦♦ The negotiation history of Rio demonstrate diverging views between developed
and developing countries about the purpose of environmental lawmaking
♦♦♦ Developed states--wanted the Rio Summit to conclude with an “Earth Charter” that
would concentrate strictly on environmental issues.
♦♦♦ Developing state (G-77 and China) rejected earth charter as it propagates
environmental protection at the expense of development
♦♦♦ Developing countries were succeeded in including - the right to development,
sustainable development, eradication of poverty, special needs of developing countries
in the document.
♦♦♦ Developed countries,—insisted and succeeded in the inclusion of;- participation of
citizens in the handling of environmental issues and the right to access to
information specially with regard to hazardous activities.
♦ Generally, Rio declaration has 27 principles.
♦♦♦ It is a non binding declaration. But some principles attained customary int. law
status, others emerging and others provide guidance as to future legal
developments
♦♦♦ Principle 1. Human beings are at the centre of concerns for sustainable development
(anthropocentric approach)

8. ❖ Principle 2 is a re articulation of Principle 21 of the Stockholm Declaration that
reaffirms the sovereignty of states over their natural resources. Development and
environment.
❖ Principle 3 and 4 development and environment
❖ Principle of common but differentiated responsibility princi.,. 7
❖ Polluter pays principle- princ. 16
❖ Some argue that Rio is a step back from Stockholm. The disappointment had to do
with the fact that the declaration failed to deal with environmental concerns in a
clear fashion and became infused, instead, with disparate provisions hard to hold
together in a cohesive text. Others have appraised the declaration more positively
IV. Beyond UNCED
^ Since UNCED, a number of important new instruments have been adopted and the
negotiation of others continues. There is no sign that the rate of legislative activity is
dropping off. Eg. Biosafty protocol, Kyoto protocol, Aarhus Convention( on right to
participation)
❖ The Johannesburg summit or World Summit on Sustainable Development
(WSSD) was held in 2002, ten years after the Earth Summit in Johannesburg
❖ It did not adopt any conventions or a statement of principles, and was generally
focused on the eradication of poverty
❖ The Johannesburg Declaration on Sustainable Development notes that the global
environment continues to suffer, but proposes no specific actions beyond a general
commitment to sustainable development
❖ Triggered disappointment for environmentalists who would have liked the
adoption of new more stringent standards and timetables for the accomplishment of
environmental objectives.
❖ The WSSD Plan of Implementation is long on general commitments and aspiration,
but short on specific actions to be taken eg.
❖ halve, by 2015, the proportion of the world’s people whose income is less than US$1
a day and the proportion of people who suffer from hunger;
❖ halve,by2015,the proportion of people without access to safe drinking water;
❖ halve, by 2015, the proportion of people who do not have access to basic sanitation;

9. • International environmental law is no longer exclusively concerned with the
adoption of normative standards to guide behaviour, but increasingly addresses
techniques of implementation which are practical, effective, equitable and
acceptable to most members of the international community
1.2.5. Brief Historical Development of Environmental Law Legislation in
Ethiopia
A. Environmental Legislation Before emperor menelik
❖ The first legislation to be mentioned in this regard is Fetha Negest
❖ It envisages provisions somehow related with pollution of smoke and
water among neighbors
❖ For example, those who dwell upstairs may not drop water or throw dirt
which may harm those who dwell downstairs...” (Fetha Negest, Paulos
Tzadwa, 1970)
B. Emperor Menelik’s Regime
• Emperor Menelik promulgated a number of decrees on the wildlife and protection of
forests
One of the decrees of Menelik II stated that:
• “... Coniferous trees should be utilized only for building houses, not for other
purposes.
• Those trees with flowers and medical trees such as Hagenia Abyssinica (Koso) should
be handled with the utmost care... Anyone who violates these rules shall be
apprehended and presented before the Emperor...”
• Emperor Menelik also ordered the people not to kill any animal, except hyenas,
unless otherwise permission was given by a concerned government official.
> Ethiopia also acceded to the Wildlife, Birds and Fish Protection Agreement of Europe
by Menelik’s Imperial letter of 08 December 1902.

10. > After this the Emperor promulgated a decree/ proclamation with 9 articles on 15 Oct.
1908 that regulates hunting of Elephants
> For example, Article 2 of this Proclamation ordered any hunter to obtain license.
Moreover, a hunter must deposit fifty Birr to ensure that he would not kill an elephant
whose tusks are less than the weight of about 17 kg.
C. Emperor Haile Selassie Regime
> During the era of Emperor Haile Selassie, there were a number of laws around natural
resources and the environment. Among these, the prominent ones were wildlife and
forest laws.
Wildlife laws
> The first Proclamation was entitled: “A Proclamation for Preservation of Game and
Fishes.” Proclaimed around 1930’s
> It totally prohibited hunting of some species such as elephants, giraffes, wild ass,
Walya Ibex, Nyala, ostrich, and pelican for five years from the date of issuance of
the Proclamation.
> The proclamation also specified the areas where hunting was prohibited. These
include: From Nechsar up to the Ethio-Kenya boarder;
> The Proclamation allowed those people who hunt animals for food. Such people, if
they had food problems, were not required to hold license. They could hunt by just
informing the situation to the concerned public officials.
> The proclamation also allowed individuals to kill an animal as a means of
selfdefense.
> The Proclamation imposed penalties (fine), which ranged from 10 Birr up to 500 Birr,
depending on the offence committed.
> Another proclamation was promulgated in 1944 as Proclamation 61 of 1944.
> It also regulate hunting activities

11. Forest Laws
> Three consequent proclamations were enacted in 1965. These were:
> State Forest Proclamation (Proclamation N° 225 of 1965); All forests which were
not owned or possessed by any person were designated by the Proclamation as the
State forest. (Article 4).
> Private Forests Conservation Proclamation (Proclamation N° 226 of 1965); and
> Protective Forests Proclamation (Proclamation N° 227 of 1965)
> The Proclamation stated economic as well as ecological uses of forests as its purpose
to develop forest resources. It also recognized the rights of the succeeding generations
to utilize forest products ^Intergenerational equity.
> Penalty clauses were also envisaged.
D. The Socialist Regime Laws
> Proclamation 192 of 1980 - This was a forest and wildlife law.
> The Proclamation established Forest and Wildlife Conservation and Development
Authority.
> The Proclamation changed the previously existed types of forest ownership and
introduced a new system of ownership.
> According to Article 5 of the Proclamation, there were two types of forest ownership -
--State Forests and Peasant Association Forests.
> Each peasant association was obliged, by the Proclamation, to develop and conserve
its own forest by planting trees within its locality in areas to be designated by the
Authority.
> The Authority had great powers on the forests of peasant association (or Kebele
forests).
The PDRE Constitution (1987 to 1991)

12. > This Constitution provided for duties of citizens and the state toward the
environment.
Article 55 (3) stated that:
“Ethiopians have the duty to protect and conserve nature and natural resources,
especially to develop forests and to protect and care for soil and water resources.”
E. The Current Regime
+ In the context of the present Ethiopian legal system, National environmental
law includes the provisions concerning the environment in the 1995 FDRE
constitution; different environmental treaties ratified by the House of
Representatives according to Art. 9 (4) of our constitution and all laws (federal
and regional) concerned with the environment (Forestry, Land, Water use and
other sectoral laws).
The FDRE Constitution
> This Constitution provides for principles which are relevant for environmental
concerns. Some principles are directly related with environment and other principles
are related with environmental protection indirectly.
A) The right to live in a clean & healthy environment (Article 44(1))
> All persons have the right to live in a clean and healthy environment. .
Article 92 of the Constitution
> Envisages Government and citizens obligation to wards the environment
> It also envisages EIA and the need to participate the public with regard to
environmental issues that affect them directly? What about indirectly?
The 1997 Environmental Policy of Ethiopia (EPE)
> The Environmental Policy of Ethiopia (EPE) is taken from Vol.II of the Conservation
Strategy of Ethiopia (CSE) and is sought to guide all environmental related activities
that are undertaken or must be undertaken by the Environmental Protection Authority
and other sectors.

13. > EPE took 10 years to develop. It was approved by the Council of Ministers of the
Federal Democratic Republic of Ethiopia on April 2, 1997.
> It was externally driven by the World Bank
> It has policy goal, objective and guiding principles
> +The overall policy goal 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.( FDRE National Policy on natural resources and the
Environment, at 23).
Some Current Ethiopian environmental legislations
• Proclamation on the establishment of environmental protection organ no. 295/2000
• Environmental impact assessment proclamation no. 299/2002
• Environmental pollution control proclamation No. 300/2002
• Access to genetic resource and community knowledge, and community rights
proclamation no. 482/2006
• Development conservation and utilization of wild life proclamation no. 541/2007
• Forest conservation, development and utilization of wildlife proclamation no.
541/2007
• Ethiopian wildlife development and conservation authority establishment proclamation
no.575/2008
• Bio safety proclamation no. 655/2009
There are also other laws which have been ratified by Ethiopia
• Eg. The convention on biological diversity
• The Basel convention on the control of Transboundary Movment of Hazardous Waste
and their disposal
• The convention on international trade in endangered species of wild funa and flora
• The United Nations framework convention on climate change and its Kyoto protocol...

14. The Sources of International Environmental Laws
Q) What are the sources of international law?
❖ Article 38 of the Statute of the International Court of Justice: the Court, whose
function is to decide in accordance with international law shall apply:
1. International conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
2. International custom, as evidence of general practice accepted as law;
3. The general principles of law recognized by civilized nations;
4. Judicial decisions and the teachings of the most highly qualified publicists of the
various nations as subsidiary for the determination of the rules of law.
A. Treaties
❖ Are often described as conventions, agreements, protocols, covenants, pacts... and
could be bilateral or multilateral. Q) What do we mean by the two?
❖ Are written agreements between two or more states, governed by international law,
creating or restating legal rights and duties.
❖ There are over 200 multilateral treaties and agreements and countless bilateral
instruments
❖ Are the principal sources of IEL. Mainly because,
i) This is mainly due to the nature of environmental problems. The problems
demand - continuous observation and monitoring as well as quick legal
action and implementation in response to outgoing and rapid change in
scientific knowledge and conclusion. Treaties thus are relatively suitable
to tackle such kinds of problems
ii) Treaties allow flexibility of law making, machinery for inducing compliance
and non-compliance and dispute resolution mechanisms
iii) Treaties are also reduced in to writing and are more accessible and applicable
❖ The Vienna Convention on the Law of the Treaties is the document used
frequently to interpret the text of many international treaties
❖ States are free to make reservations to specific articles of a convention. What do
we
mean by reservation? Why do you think is reservation allowed?

15. ❖ After a convention is signed, it enters into a process of ratification by parliament. if
not the convention does not have binding effects on that state (provided that the rules
included in the convention have not become a rule of customary law).
❖ A convention specifies in one of its articles the number of states that are required for
ratification.
❖ The Law of the Sea Convention (UNCLOS), which is considered the constitutive
instrument of the law of the seas, required sixty ratifications
❖ Many international environmental treaties are umbrella framework treaties -
setting the parameters of international environmental action - followed by protocols
defining the specific standards of state behaviour. For example such model Has been
adopted under ozone depletion, acid rain, and Climate change agreements
B. Custom
Q) What do we mean by international customary law? When does it is said to
exist?
^ Customary international law is created by the fusion of an objective element, practice,
and a subjective element, opinion juris
^ Refers largely to unwritten law inferred from the conduct of the states,(which is
consistent and uniform) undertaken in the belief that they were bound to do so by
law (opinion juris)
^ Customary law rules have played a secondary role in international environmental
law, although they can establish binding obligations for states and other members of
the international community and may be relied upon in the codification of obligations
in treaties and other binding acts Q) How does practice of states known?
^ In IEL, Practice of states may be inferred from -national legislation, diplomatic
notes and correspondence, statements and votes of the government under int.
forums, ratification of treaties, opinion of legal advisors...
There are a number of principles that aspire to the status of customary international
law, but have not attained that designation Eg. The prohibition against trans boundary
harm......

16. C. General Principle of Law
> General principle of law recognized by the civilized nations is related with municipal
laws
> The ICJ rarely recognizes and applies it.
> Eg. The principle of good faith
> the obligation to make reparation for the breach of an engagement
> the principle that a person may not plead his or her own wrong; the principle that no
one may be a judge in his or her own suit
> The abuse of rights doctrine is also considered to provide the basis for the rule that a
state must not interfere with the flow of a river to the detriment of other riparian states
D. Other Sources
i. Judicial decisions
o It is subsidiary means for the determination of rules of law
Q) Is the decision of ICJ binding on other states with the same dispute?
It is binding only for that particular case and parties under dispute o But,
judicial decision plays an important role in any system of customary law by
restating, codifying and clarifying laws o Judicial decision in fact influences
many decision that involves environmental matters
ii) Teaching of scholars
• The work of scholars is influential in further shaping the development of
international law. This is especially the case with new evolving concepts of
international environmental law, such as the polluter pays principle or the
precautionary principle, which require further clarification for their successful
application
iii) Soft law instruments
Q) What do we mean by soft laws?
Do soft laws bind states?
If not, what is thus the importance of soft laws?
■ include decisions, recommendations, declarations, and resolutions of various
institutions that have been established under international law.
This is what has been called in some circles “soft law,” which, in contrast to

17. “hard law” (e.g., treaties, custom), does not have a binding character on state
behaviour.
■ Despite its nonbinding character, soft law has the capability of creating
expectations that shape the future direction of international law.
■ Solidify expectations and generate impetus for consistent future behaviour of
states and other international actors.
■ It is not rare for a norm, articulated in a soft law instrument, to be
incorporated into a treaty later and, thus, to become a state obligation.
■ The transformation of soft law instruments into binding requirements is part of
the norm creation in international law. Soft law instruments in conjunction
with a set of international norms (such as treaties)
Sources of environmental law at national level
Constitution; more than 100 countries refers to the right to live in a clean and health
environment, adequate standard of living and the like
Environmental policy
Environmental legislation
Why we protect the environment?
^ is very difficult to answer
anthropocentric v. ecocentric approach
Q) Is the responsibility of humanity to protect the environment for the purpose of
promoting the human interest or for the sake of the environment?
> Principle 1 of the Rio Declaration states that:
“Human beings are at the centre of concerns for sustainable development.”
> The very basis for the right to a clean and healthy environment depends on the notion
that the environment is a mere good or value to be added to the list of individual
demands.
> Unless the reason for the protection of the environment is, at least, balanced between
anthropocentric and ecocentric rationale people may not have sufficient moral ground
for protecting the environment

18. > E.g., if there is a machine that produces meat and milk after feeding on fodder, is there
any reason for humanity to keep cattle?
Chapter Two
BASIC PRINCIPLES OF ENVIRONMENTAL LAW
❖ This chapter describes the general principles and rules of international
environmental law as reflected in: treaties, binding acts of international
organisations, state practice, and soft law commitments.
Q) What distinguish principle from rules?
❖ These principles are general in the sense that they are potentially applicable to all
members of the international community across the range of activities which they
carry out or authorise and in respect of the protection of all aspects of the
environment.
❖ From the large body of international agreements and other acts, it is possible to
discern general rules and principles which have broad, if not necessarily universal,
support and are frequently endorsed in practice.
❖ N.B --It has to be also noted that it in the absence of judicial authority and in view of
conflicting interpretation under state practice it is frequently difficult to establish the
parameters or the precise international legal status of each general principle or rule.
❖ The application of each principle in relation to a particular activity or incident, and
its consequences, must be considered on the facts and circumstances of each case,
having regard to several factors including: the source of the principle; its textual
content and language; the particular activity at issue; the environmental and
other consequences of the activity; and the circumstances in which it occurs
❖ For example, while some principles reflect customary law, others may reflect
emerging legal obligation with less developed status.
These Principles are;
A) Sovereignty over Natural Resources and the responsibility not to cause damage to
the environment of other states
Sovereignty over Natural Resources

19. o Before 1970’s this principle was called a principle of permanent Soverenity
over natural resources. This has been envisaged under the 1933 London
convention which sates, all animal trophies were ‘the property of the Government
of the territory concerned
o The 1971 Ramsar Convention Article 2(3) emphasised that the inclusion of
national wetland sites in its List of Wetlands did ‘not prejudice the exclusive
sovereign rights of . . . the party in whose territory the wetland is situated o
The 1983 International Tropical Timber Agreement Art. 1 recalled ‘the
sovereignty of producing members over their natural resources o states have
o Article 15(1) of biodiversity convention recognizes sovereign rights...over their
natural resources’, and that ‘the authority to determine access to genetic
resources rests with the national governments and is subject to national
legislation
o Eg. of cases the 1893 Fur Seals Arbitration Responsibility not to cause
environmental damage
> reflects the view of states that they are subject to environmental limits in the
exercise of their rights under the principle of permanent sovereignty over
natural resources
> Under Article 193 of UNCLOS, states have the sovereign right to exploit their
natural resources pursuant to their environmental policies and in accordance
with their duty to protect and preserve the marine environment.
> Article 194(2) of the same convention state that state 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
> The 1963 Nuclear Test Ban Treaty prohibits nuclear tests if the explosion would
cause radioactive debris ‘to be present outside the territorial limits of the state
under whose jurisdiction or control such explosion is conducted
> It can be said that the responsibility not to cause damage to the environment of
other states or of areas beyond national jurisdiction has been accepted as an
obligation by all states
> Some scholars argue that it has attained international customary law status.
Cases

20. Trial smelter case
Under the principles of international law...no state has the right to use or
permit the use of territory in such a manner as to cause injury by fumes in or
to the territory of another of the properties or persons therein, when the case
is of serious consequence and the injury is established by clear and convincing
evidence.
Lac Lanoux Arbitration
France [the upstream state] is entitled to exercise her rights; she cannot
ignore the Spanish interests. Spain [the downstream state] is entitled to
demand that her rights be respected and that her interests be taken into
consideration
> ICJ in its advisory opinion on the legality of the threat or use of nuclear weapon
stated that The existence of the general obligation of States to ensure that
activities within their jurisdiction and control respect the environment of
other States or of areas beyond national control is now part of the corpus of
international law relating to the environment.
Q. what do you think about the legal status of this
principle? Has it attained customary international law
principle?
B) Principle of Preventive Action
❖ It mainly require the prevention of damage to the environment, and otherwise
to reduce, limit or control activities which might cause or risk such damage
❖ Experience and scientific expertise demonstrate that it must be the golden rule for
environmental protection for ecological and economic reasons.
❖ It is also called prevention principle
❖ The preventive principle requires action to be taken at an early stage and, if
possible, before damage has actually occurred.
❖ It is no longer primarily a question of repairing damage after it has occurred

21. ❖ it prohibits activity which causes or may cause damage to the environment in
violation of the standards established under the rules of international law
❖ is supported by an extensive body of domestic environmental protection
legislation such as; access to environmental information, and the need to carry
out EIA in relation to the conduct of certain proposed activities
❖ it is also directly or indirectly endorsed by many international instruments
including, Stockholm Declaration, the 1982 World Charter, the 1992 Rio
Declaration (principle 11) , under many conventions so as to prevent,
❖ the extinction of species of flora and fauna;
❖ the introduction and spread of pests and diseases;
❖ pollution of the seas by oil, radioactive waste,
❖ hazardous waste and substances,
air pollution, river pollution; radioactive pollution of the atmosphere cases......
❖ The preventive principle is implicitly supported in relation to transboundary
resources by the awards in the Trail Smelter case and the Lac Lanoux
Arbitration.
❖ In the Gabcikovo-Nagymaros case, the ICJ noted that it was ‘mindful that, in the
field of environmental protection, vigilance and prevention are required on
account of the often irreversible character of damage to the environment and of
the limitations inherent in the very mechanism of reparation of this type of damage
C) The Principle of Co-operation
• the principle is reflected in many treaties and other international acts, and is
supported also by state practice, particularly in relation to hazardous
activities and emergencies
• See Principle 24 of Stockholm Declaration and Principle 27 of Rio declaration
• Eg. ‘States and people shall co-operate in good faith and in a spirit of
partnership in the fulfilment of the principles embodied in this Declaration
• The obligation to co-operate is affirmed in virtually all international
environmental agreements of bilateral and regional application, and global
instruments

22. D) The Principle of Sustainable Development
❖ State practice suggest that it has been in practice since 1893 when the United
States asserted a right to ensure the legitimate and proper use of seals and to
protect them, for the benefit of mankind, from wanton destruction
❖ The original articulation of the principle is found in the Brundtland Report,
which stated that sustainable development means development that satisfies
the needs of present generations without jeopardizing the ability of future
generations to meet their own needs
❖ In the WSSD, sustainable development was further articulated as having three
pillars, namely: economic development, social development, and
environmental protection.
❖ Controversial principle --developed countries and their NGOs have used the
principle to underline the importance of environmental values, whereas
developing countries have used the principle to buttress their right to
development.
❖ However, the principle has assisted in reconciling in one phrase what before
seemed irreconcilable - namely, environmental protection and development
Four recurring elements appear to comprise the legal elements of the concept of ‘sustainable
development’, as reflected in international agreements:
> The principle of intergenerational equity - the need to preserve natural resources for
the benefit of future generations
the responsibility of the current generation towards the future generation is well sated
in many conventions, declarations, resolutions. Eg;
-Principle 1 of Stockholm Declaration
- Principle 4 of Rio
- UN General Assembly Resolution 35/8 of 1980
ICJ decisions
'in its Advisory Opinion on The Legality of the Threat or Use of Nuclear Weapons, the
ICJ recognized that ‘the environment is not an abstraction but represents the
living space, the quality of life and the very health of human beings, including
generations unborn’

23. > the principle of sustainable use
^ the aim of exploiting natural resources in a manner which is ‘sustainable’, or
‘prudent’, or ‘rational’, or ‘wise’ or ‘appropriate’
^ is very significance in that it recognises limits placed by international law on the
rate of use or manner of exploitation of natural resources, including those
which are shared or are in areas beyond national jurisdiction.
^ focuses on the adoption of standards governing the rate of use or exploitation of
specific natural resources rather than on their preservation for future
generations
^ Mainly invoked (but not limited) in marine living resources such as; tuna, fur
seal, salmon high sea fish, all natural resources
^ It is envisaged in
■ The 1968 African Nature Convention stated that the the
utilisation of all natural resources ‘must aim at satisfying the
needs of man according to the carrying capacity of the
environment
■ Sstocholm Declaration Principle 13 and 14
■ Climate Change Convention Art. 3(4)
■ The 1992 Biodiversity Convention preamble, article 1, 8,
12,16..
■ Bio safety protocol art. 1
> The principle of equitable use, or intragenerational equity
S It implies that use by one state must take account of the needs of other states
S How to allocate future responsibilities for environmental protection between
states which are at different levels of economic development, which have
contributed in different degrees to particular problems, and which have
different environmental and developmental needs and priorities.
It is stated under;
S RIO declaration principle 3
S Climate Change Convention

24. S Biodiversity convention include the ‘fair and equitable’ sharing of the
benefits arising out of the use of genetic resource
> The Principle of integration
^ The need to ensure that environmental considerations are integrated into
economic and other development plans, programmes and projects, and that
development needs are taken into account in applying environmental
objectives
^ This element is the most important and the most legalistic
^ its formal application requires the collection and dissemination of
environmental information, and the conduct of EIA
^ it is only since UNCED that the relationship between environmental protection
and economic development has been more fully recognised by the
international community
^ Read principle of 3 Rio Declaration, with which Principle 4 must be read to be
fully understood, is part of the bargain struck between developed and
developing countries, which is also evident in the convoluted language of
Article 3(4) of the Climate Change Convention.
^ but, see also principle 13 of Stockholm declaration
❖ These four elements are closely related and often used in combination (and
frequently interchangeably), which suggests that they do not yet have a well-
established, or agreed, legal definition or status.
Some remarks about the status of sustainable development
❖ the Preamble to the WTO Agreement explicitly acknowledges ‘the objective of
sustainable development’, and characterises it as a concept which ‘has been
generally accepted as integrating economic and social development and
environmen-tal protection’
❖ In the Gabcikovo-Nagymaros case,( Slovakia and Hungary the ICJ invoked
'The risk of mankind for present and future generation and specifically
addressed the concept and stated that; This need to reconcile economic
development with protection of the environment is aptly expressed in the
concept of sustainable development.’

25. E) Precautionary Principle
• Began to reappear in international legal instruments in the mid-1980s
although prior to then it had featured as a principle in domestic legal
systems, most notably that of West Germany
• Mainly provide guidance where there is scientific uncertainty
• is based on the premise that action on environmental matters should be taken
even if there is a lack of total scientific certainty, often reversing the
burden of proof and placing it on those who claim that an activity is not
damaging
• Some action is better than inaction. When there is doubt about scientific
certainty JUST ERR ON THE SIDE OF THE ENVIRONMENT’
• Earlier traditional environmental agreements oblige parties to take action
only where there is scientific evidence that significant environmental
damage is occurring, and that in the absence of such evidence no action
would be required eg the 1974 Paris Convention of Maritime
Environment
• The principle is controversial because it advocates action despite the lack of
scientific certainty. Taking action under such conditions could be costly or,
even worse, could be proven wrong
• Principle 15 of the Rio Declaration, which provides that:
'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’
Some remarks about its status
• Some commentators view the principle as a guiding principle of
international environmental law, but others adopt a more cautionary
attitude
• The United States has taken a skeptical approach toward the precautionary
principle viewing it almost as a protectionist principle - a new nontariff
barrier to trade
• The European Union, at the other extreme, has transformed the principle
into a constitutional principle, favouring a strong version of the principle
as attaining customary international law.

26. • International courts and tribunals have been reluctant to accept explicitly
that the principle has a customary international law status,
notwithstanding the preponderance of support in favour of that view, and
diminishing opposition to it.
F) Polluter-pays principle
O The “polluter pays” principle was originally enunciated by the
Organization for Economic Cooperation and Development
(OECD) to restrain national public authorities from subsidizing
the pollution control costs of private firms
O It establishes the requirement that the costs of pollution should be
borne by the person responsible for causing the pollution.
O The principle basically demands for the person who is in charge of
polluting activities to be financially responsible for the damage
s/he causes
O The meaning and application of the principle to particular case
and situation remains open to interpretation.
O It was enunciated clearly in the international arena in the Rio
Declaration
O Some commentators have underlined that the principle has merely
a rhetoric value because
O most polluters will be able to pass the costs of pollution onto
consumers. Also, in most cases, it is difficult to identify the
polluter
O It is doubtful whether it has achieved the status of a generally applicable
rule of customary international law.
O Some countries object the further application of the principle due to the
fact that it is more applicable under domestic law
O The conventions on civil liability for nuclear damage,
O the1960 Paris Convention and the1963 IAEA Liability Convention
were influenced by the desire to channel

27. compensation from those responsible for the activity causing
damage to the victims
G) Principle of common but differentiated responsibility
Arises out of ; --the application of equity in international law
--Special need of developing countries to develop O Read
Principle 7 of Rio
O Article 3(1) the1992 Climate Change Convention O Is made of
two element; Common responsibility of states to protect the
environment and Different responsibility due to the degree of
contribution and the ability to prevent, reduce and control threat
O Natural resources could be of a single state, shared or no
states. In which respect do you think common responsibility is
likely to apply?
O Eg. Outer space and moon -common province of mankind O
The resources of the seabed, ocean floor and subsoil are ‘the
common heritage of mankind Different responsibility
S Is widely accepted under many declaration, treaty and practice
of states
S Is based on special needs(eradicating poverty and
circumstances, future economic development of developing
countries, and historic contributions to causing an environmental
problem
See -Principle 23 of stocholm Principle 11 of Rio
Article 11 of The 1972 London
convention

28. S The principle of differentiated responsibility has also
been applied to treaties and other legal instruments
applying to developed countries S The different
techniques available to apply it include ‘grace’ periods
delaying implementation, and less stringent
commitments eg. Climate change convention and the
1997 Kyoto Protocol

29. ♦>
«*►«*►
Chapter Three
ENVIRONMENTAL RIGHTS
At international level the term "environmental rights" is frequently used
to denote those procedural rights that are found in international human rights
instruments (which have found their way into international environmental
instruments as well) and are being applied to seek redress for environmental
issues. Eg. The right to information, public participation, access to justice.
Such application in fact does not recognize separate substantive
right to clean/decent/ environment
This may be the case, what is then the place of these rights
(procedural) under international IHR, IEL and national laws?
1) The Right to Information
V Is a prerequisite to effective national and international
environmental management, protection and cooperation
V The availability of, and access to, information allows
preventative and mitigation measures to be taken
V the need for information arises at all levels, from senior
decision makers at international levels to the grass roots and
individual level
V It Is also a prerequisite to effective public participation in
decision making
V This right is recognized in most domestic jurisdiction
V Some countries even oblige companies to release and
transfer information that specify toxic emission and
discharge

30. S It is also recognized by international human right instruments
such as, UDHR (art.19), ICCPR ( art.19(2), African Charter on
the Rights and Duties of Peoples (Art. 9)...
S Environmental legislation, Rio (art.10),Aarhus convention(convention
on the right to access to information, public participation in decision
making and access to justice), ETC
2) Right to Public participation
❖ Is well recognized under both IHR and IEL instruments
and
domestic laws of the country
❖ It allows the public to have a say in any development plan
that may affect them
❖ EIA , for example opens an avenue for all stakeholders
including the public, indigenous people, NGO’s, other
states..
❖ Under IEL , Read Principle 10 of Rio, agenda 21, CCC
(Art. 41(i), BDC (Art.14(1) (a), Aarhus convention of 1998
❖ Under IHR instruments, UDHR (Art.21), the African
charter(Art.13), ICCPR (Art.25)
❖ Ethiopia, see FDRE constitution article 8,43(2), 92, EIA,
Article 6
3) Access to Justice
S Gives avenue to the public to seek redress from judicial and
administrative remedies when rights are infringed S For example
under the Aarhus convention when the request
for information has been refused, ignored or when not adequately
answered the public is given a right to have access to a court or an
independent and impartial body

31. S The procedure provided for must be free of charge or
inexpensive
S Access to justice should provide adequate and effective
remedies - including injunctive relief - that must be equitable and
timely.
S Is also recognized under both IEL and IHR instruments S Eg, ICCPR
(Art.14), European Convention on HR(Art.13)
S See Principle 10 of Rio, Agenda 21, UNCLOS (Art. 235(2) Who has
standing to bring access to information complaints?
Eg Aarhus convention stated those with vested interest and those whose
right is infringed. Including NGO’s
Right based approach to the environment/Substantive
environmental right
O As has been discussed above, Both IHR and IEL law
instruments properly address procedural right.
O Despite the link between environmental deprivations and human
right violations, no global human rights treaty proclaims a right to
environmental quality
O On the regional level, the 1981 African Charter on Human and Peoples
Rights was the first international human rights instrument to contain an explicit
guarantee of environmental quality. Article 24 recognized that “all people shall
have the right to general satisfactory environment favourable for their
development.”
O The next is 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).
O Currently, after the 1970’s many countries have begun envisaging this right in their
constitution. Developing countries
O IEL declaration and resolution has also begun envisaging such right,

32. ^ See principle 1 of Stockholm declaration that state “man has the fundamental right
to freedom, equality, and adequate conditions of life in an environment of quality
that permits life of dignity and well-being.
^ This principle was also intensified by the UN Resolution No. 45/94 that
state all individuals are entitled to live in an environment adequate for their
health and well being
^ This has also lead to the coming of the notion of right based approach
to environmental protections
^ Nevertheless, this new paradigm, that is, right based approach to
environmental protection, is not uniform across the world ^ Generally, in line with
this, the practice followed in different countries can be grouped under three main
versions.
i) Enforcing environmental deprivations through existing human
rights
S Environmental deprivation can be enforced through internationally
guaranteed fundamental human rights such as the right to life, health,
housing, food ....
S It is a western approach
S It consider environmental protection as a means to an end for
realization of human right
A Procedural Human Right Approach such procedural
human rights are recognized under both international human
and environmental conventions, declarations
it propagates that environmental protection can be pursued through
procedural human rights such as the right to information, the right to access to
justice and the right to participation
Thus in case of environmental deprivations or pollutions citizens can
claim their right through such procedural rights
Pure or Substantive Environmental Right Approach > Considers
environmental deprivations as deprivations of fundamental human right
ii)
S
S
S
iii)

33. > it calls for the recognition of right to adequate/clean environment for
health and well-being as fundamental human right
> it differs from the above two in that it takes environmental right as a
substantive human right
Here the vital question is, is having a separate substantive human
right to clean, adequate, decent environment necessary? What will you say?
There is no consensus Argument against
i) Right to clean environment can be enforced through other classical human rights and
therefore there is no need for additional right to environment
ii) Courts can interpret the existing human right instruments for such claims
• there are practical linkage between the cause for environmental protection and human
right protections
• environmental harms are the causes of human right violations, such as violations of the
right to health, life etc
Argument for
i) From the very beginning classical human rights are not aimed for environmental
violation. Thus, interpretive extensions of classical human right instruments
could not always serve the every environmental violations and even doing so
may be difficult
ii) such extensive interpretations needs judicial activism which in fact is hard to
implement in civil law countries
iii) If we think that classical human right can be interpreted for environmental ends so
what is problem if we recognize separate individual human right to environment
for his health and wellbeing.
iv) Taking human right approach for environmental protection is nothing but giving
environmental protection its right place. Because, humanity cannot

34. survive in polluted environment and as such environmental protection should be
taken as fundamental human right issue.
Is a Constitutional Environmental Right Necessary?
There is a debate particularly under the EU perspective(do not adopt a separate
substantive environmental human right)
The rational for constitutional approach for environmental protection
i) Constitution is a supreme law with relative permanence. so it is a
better place to insulate environmental issues from political manipulation
ii) it gives environmental protection better place in the minds of the general public
iii) it fosters cooperation among different states as the constitution in one country
inspires the constitutions of other country
Is a mere recognition of environmental rights suffices for its protection?
❖ NB. No. Because many countries put environmental provisions at the
general policy part than on the part that specifically obliged states and that to be
claimed by individual and to be adjudicated by courts.
From the discussion we made so far what kind of environmental rights envisaged
under Ethiopian constitution?
Is environmental right a human right that all human beings entitled by
virtue of being a human ? Does article 10 include article 44?
S Growing trends. Eg. African charter on propels right, inter American
protocol on human right, Stockholm principle 1

35. S environmental deprivations violate many of the existing human rights.
Eg think of the chernovil incident,
Do u think the right is enforceable? Why?
S You need to see where it is envisaged. For example Human
right/democratic right?
S Is there any difference between article 44 and 92? With what respect?
See their title, chapter three, article 44(2)
S Article 37
What challenges do you see in the implementation of the right based Approach in
Ethiopia?
i) How far clean, and how far healthy the environment ought to be is the
issue difficult to determine
S Most IE laws do not directly use such terminologies, eg African charter
on human right reads as general satisfactory environment favorable
for their development. See also priniciple 1 of Stockholm
S Is Ethiopia economically in a position to implement this constitutional
provision?

36. Chapter four
Common Legal Mechanisms of Environmental Protection Can you list some
basic legal mechanisms of environmental protection?
EIA, Permit or licensing regimes eg (quotas, bans on the use of certain substances).
i) Prohibiting and Restricting Activities and Substances
> Restriction or banning on hazardeous product, process or activities
> regulate hunting, capture and fishing, and to prohibit certain means of hunting and
fishing. African convention on the conservation of nature
> Eg. The 1973 Convention on International Trade in Endangered Species of Wild Fauna
and Flora (CITES), for example, uses trade restriction and trade bans as a means of
protecting threatened and endangered species
Product and Process Standards
> Standards may be set for production processes, emission levels, product characteristics
and ambient quality standards for a given environmental milieu.
Process Standard
> Specify design requirements or operating procedures to fixed installations such as
factories or may designate permissible means and methods of activities like hunting or fishing

37. > Are used to regulate the operations of hazardous activities posing a risk of
accidents or other dangers.
> In some systems, for example, all types of operations are required to install best
available pollution control technology (BACT) as part of their processes
Product Standards
S Are used for items that are created or manufactured for sale or
distribution. Such standards may regulate:
S The physical or chemical composition of items such as
pharmaceuticals or detergents eg sulphur content in fuels, mercury in
pesticides
S The handling, presentation and packaging of products
S Labelling requirements used to ensure that consumers are aware of the
contents and the permissible uses of products. Labelling requirement green” or
“eco label
Emission Standards
• Specify the quantity or concentration of pollutants that can be emitted in
discharges from a specific source to fixed installations, such as factories or
homes; mobile sources of pollution
• capacity of the environment to accommodate substance- Certain levels of some
contaminants will not produce any undesirable effect
Prior Licensing and Permits
o Mandate government officials to authorize certify or issue permits or
licenses to activities or establishments or that poses threats to the environment or that
use natural resources.
Prior Informed Consent
S Is a procedural mechanism utilized in advance of activities in order to avoid
potential conflict and reduce the risks of environmental or social harm.
S Internationally, prior informed consent requires obtaining and disseminating the
decisions of importing countries on whether they wish to

38. receive shipments of restricted or banned products after they have been fully
informed about the hazards posed by the products.
S Some national laws require the prior informed consent of indigenous and
local communities before their resources can be accessed S Ethiopia Proc. No.
513/2007 see article 6(between regions)
Environmental Impact Assessment and Monitoring
S ) is ‘a procedure for evaluating the likely impact of a proposed activity on the
environment.
S Its main objective is to provide decision makers with the information about the
possible effect of a certain project on the env.t
S Was adopted in national law in the US in 1969
S It provides an opportunity to public participation, informed decision at an
international level
S It alerts governments and international organizations to the likelihood of
transboundary harm.
S Important for the implementation of SD, Precautionary P.
S EIA is used across this range of jurisdiction
S N.B. It is not used in any proposed activity but only for those that may be or
are likely to cause a stated level of harm to the environment
S The threshold differs in the many treaty references to EIA, with some referring to
“measurable” effects, others “appreciable” or “significant” harm
S Is well established in national practices and may be regarded as General principle
of law or even Customary int. law
S See principle 17 of Rio
S Is required also by World Bank since 1989
S See Ethiopian EIA proc. Art. 2(3)

39. Chapter Five
THE LEGAL FRAMEWORK OF ENVIRONMENTAL PROCEEDING
5.1 Different Facets of Legal Personality and Standing in Relation to Environmental
Proceeding
S Should the environment be vested a legal personality?
S There are different environmental theories
Anthropocentric theory
^ View environment as an instrument/contingent or accessory to
human need/ a means to an end
^ environment is valuable only to the extent to which they can be used
and exploited by human beings
^ Considers humans and nature as separate, and places human beings at
the centre/core
^ the environment being instrumental to the interest of man, legal
personality can be bestowed only to human beings where their interest is at stake
^ The environment has no legal personality
Ecocentric theory

40. S Is justified by deontological argument ( morality cannot be a matter of
self interest)
S The well-being and flourishing of all life forms on earth have value in
themselves.
S Man has no right to reduce the diversity and richness of nature
which has an intrinsic value
S It rejects human beings are at the center of nature- man is part of
natural environment
S Acknowledges the conferring of legal personality to each distinct part of the
environment to exercise their own right at their own behest.
Ethiopian perspective
• Read Article 44 is it anthropocentric or ecocentric?
• Environmental policy of Ethiopia species and their variants have the right to
continue existing, and are, or may be, useful now and/or for generations to come
(what about this provision?)
• BDC in which Ethiopia is a signatory recognizes the intrinsic value of the
environment, including ecosystem and species or its components which in turn led
to the issue of awarding rights to subjects other than man, shifts the position of
the law once more to the ecocentric approach
• the Draft Bio-safety proclamation may also show the trend of the law in that it
entitles any person, group of persons, or any private or state organization to
bring a claim in the name or on behalf of the environment article 10
5.2
■
■
no clear approach- should the environment be given a legal
personality?
Legal Personality and Standing vis-a-vis the Future Generations
Sustainable Development (intergenerational vs. interagenerational) SD=
the development that meets the needs of the present generation without
compromising the ability of the future generations to meet their own needs
Intergenerational i) preserving natural resource for future g.
ii) preserving areas of national significance due to their aesthetic
appeal, historic attributes, or ecological significance for the use of FG.

41. ■ The problems raise the question of how we should balance present costs against
future benefits. See RIO principle 3, Stockholm
Who and How is then future generation to be represented?
> Minors Oposa V. Secretary of the Department of Environmental and
Natural Resources (July, 1993)
• In this case, forty four minors and the Philippine Ecological Network
brought an action
• The case was against deforestation and the lodging permits in the country
(survey showed that only 85,000 hectar vergion forest were left in the country)
• The novel aspect of the case relates to the fact that the petitioners asserted that
they represented their generation as well as generations vet unborne
• The court ruled that 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 concent of intergenerational
responsibility in so far as the right to a balanced and healthy ecosystem is
concerned
• What lesson can we derive from this ruling of the court?
• What about under Ethiopia? See the FDRE Constitution, Environmental
Policy 2.3 the right of species and their variants to continue existing/and are
/ or may be useful now and/or for generations to come,
- See Art. 37(2), see art. 10 of the draft bio safety
proclamation in respect of the breach of environmental
laws in the interest of, or on behalf of, a person who is,
for practical reasons, unable to institute such
proceedings’

42. ❖ As a conclusion, it is possible to argue that there is a lee-way to
entertain the interest of future generations by bestowing them legal personality
to have standing before a court of law
Liberalization of Standing in Environmental Proceeding that Led to Public interest
Litigation
^ In order to further protect the environment granting individuals a
personal or subjective right to a clean and healthy environment is of a paramount
importance.
^ Traditional Tort law-- individual citizens have a right to sue only if their
own personal interest is infringed
^ Hence alert citizens and public interest groups cannot initiate legal action
when damage is done to the environment per se ^ Thus so as to further protect the
environment there is a move to allow
alert citizens and public interest groups to file a suit without having to show the
specific personal damage that such an individual has sustained
Who has the standing to protect the environment? Why?
^ Ethiopia.
^ See Article 33 of the civil procedure code
^ Art.33.- Qualification
(1) Any person capable under the law may be a party to any suit.
(2) No person may be a plaintiff unless he has a vested interest in the subject-
matter of the suit.
(3) No person may be a defendant unless the plaintiff alleges some claim against
him. ^ Article 38 requires membership of a class to bring class action
^ Under the tort law of Ethiopia, before a plaintiff can recover compensation in tort, he
must show that he/she has suffered damage art. 2102(2)
^ The proclamation that defines the powers and responsibilities of the Constitutional
Inquiry states that only the person who alleges that his /her constitutional rights
have been violated may initiate a case to the Constitutional Inquiry Art. 84(2)

43. Therefore, on the basis of the above legal provisions, one can initiate a suit in the
Constitutional Inquiry or in the regular courts only if he/she has vested interest
in the case.
> But also try to see FDRE Constitution article, 44, 92(2) and (4) Article 37 (2) (d),
and pollution control proc. See preamble (everybody has an obligation to protect the
environment)—all thus provide access to justice in cases of environmental damage
> Read Article 11 of environmental pollution proclamation -Any person shall
have, without the need to show any vested interest, the right to lodge a complaint
at the authority or the relevant regional environmental agency against any person
allegedly causing actual or potential damage to the environment. /Read also sub
two of the same article
What can you say now?
Environmental law of Ethiopia---no need of showing vested interest—future
generation could also be represented
N.B. Accordingly, we can infer the fact that restrictive view of locus standi and
person aggrieved has been supplemented by representative standing and citizen
standing
Citizen Standing in Cases of Environmental Authorities’ Inaction or
Abuse: Judicial Review
> What is meant by Citizens Standing? 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
> What is important is the infliction of actual or potential damage
> See article 11(1) and (2) of pollution proc.— grant public interest groups a
secondary right of standing
> there is a legal ground to grant such public spirited individuals the right to directly
ask a court for an injunction in order to prevent significant damage or avoid further
damage to the environment
> Period of limitation look Art. 11(2)! What do u think is the justification?

44. > Some argue that judicial decision is aimed at stopping decision before they are put
in to effect rather that when it is too late and the harm has already occurred.
> Is it reasonable? Do not u think that discretionary power should be given to the
court?
> Under the FDRE legal system, a number of persons have legal standing, so that it is
pertinent to scrutinize whether they could become joinder plaintiffs or not in the
legal action.
> See. Art. 35 of civil pro. Two conditions—(1) the right to relief must arise from the
same transaction or series of transactions, whether jointly, severally or in the
alternative (2) if such persons brought separate actions, a common question of law
or fact would arise.
> Joinder of defendants-- pollutants and environmental authority - see art. 36(1) of
civil pro. Requirement— a common question of law or fact
> the next issue that should be addressed is the question of material jurisdiction in
environmental proceeding
> See art. 18 of civil. Pro. Code. a suit the subject matter of which cannot be
expressed in terms of money shall be entertained by the Federal First Instance
Court having local jurisdiction. The same is true for environmental proceeding
Citizen Standing to Challenge the Constitutionality of Environmental Laws
S See art. 61, 62 and 83 of the FDRE constitution.
S Where substantial constitutional issue is raised over an action of administrative
authorities
S Since administrative officials and regular courts are not empowered to decide
upon constitutional disputes, there is no remedy available before administrative
officials and regular courts.
S No need of exhaustion of legal remedies
S Who has vested interest? everyone is presumed to have vested interest when damage
is done to the environment due to unconstitutional acts of administrative organs
Citizen Standing Before International Courts and Tribunals
> Exhaustion of domestic remedies is a must at international level

45. > Sovereignty of state and corollary obligation is the basic reason
> the role of NGO’s and individuals is extremely limited
> But, regional instruments, like Art. 25(1) of European convention on human
rights allow individuals, NGO’s can petition to the commission
> African Charter on Human and Peoples’ right Art. 50 opens an avenue for
individuals to petition to the commission when allowed
> The African Commission on Human and Peoples’ Rights follow the
jurisprudence of liberal standing
> Eg, CERAC (NGO) (by representing the Ogani community) vs. the Nigerian
Government and the Oil Giant Shell.
> Accordingly, after due consideration was made by the Commission, CERAC and
the people of Ogoni were awarded the judgment that they have the right to live in
a safe environment which is habitable
❖ What lesson can we derive— taking cases to regional or international bodies after
exhaustion of local remedies
Public Interest Litigation Case: APAP VS. Environmental Protection
Authority
> APAP (Action Professionals’’Association for the People(NGO)
> Was established in 1993
> for making justice accessible to the poor, women and children
> in 1998, Has initiated public interest litigation against pollution of Akaki and
Mojjo Rivers by Governmental and Non-Governmental Industries and Factories
for the first time in the history of the country
> Against solid and liquid affulents released by factories and residents of AA
> It first lodged a complaint to the environmental authority based on Art. 11(1) of
pollution proc.
> Then being not satisfied by the reply of the authority APAP file a suit to the
federal first instance court. in Lideta First Instance court seventh Division.
> Then the court also ordered the authority to present its defence in default of
which the case would be heard exparty

46. Judicial activism
S Refers to the role judges are to play in making the law responsive to the felt necessities
of the changing time
S Relief is provided to the disadvantages and aggrieved party when there is a gap or when
the law is silent
S In such instances the judiciary would be a custodian and watchdogs of the constitution
S the concept is defined as the practice in the judiciary of protecting or expanding
individual rights through decisions that depart from established precedent or are
independent of or in opposition to supposed constitutional or legislative intent
Chapter six
REMEDIES IN ENVIRONMENTAL PROCEEDING
S Damage to the environment needs appropriate remedies S Ensures that violators do not
gain advantage by virtue of their misdeeds..
❖ Courts tend to give priority to the following kinds of remedies in environmental
cases:
1. Injunctive relief to halt the harmful activity;
2. Damages to compensate for harm suffered;
3. Orders of restitution or remediation;
4. Sanctions to punish the wrongdoer and to deter future violations; and
5. Awards of costs and fees
^ In Environmental Law, the legal remedies are broadly categorized as civil and criminal
liability.
^ The remedies are provided under the criminal law, tort law and other environmental
legislations

47. ^ the legal remedies are devised in away to tackle any actual or potential damage to the
environment
^ while assessing environmental cases the criteria’s to be considered mostly include;
• Seriousness of the offence- the extent of the damage, how much did the conduct
diverge from the required behavior? Whether the defendant has a history of violations
• Ability to pay- the means available to the defendant, For example, a fine appropriate
for an individual or a small company will have little impact on a large enterprise, a
fine that is too large can take away the financial resources necessary to ensure future
compliance or remediate existing contamination. a fine that is too large can take away
the financial resources necessary to ensure future compliance or remediate existing
contamination.
• Economic gain- No offender should profit from its misdeeds. Costs avoided as a
result of bob compliance of a required permit or licence should be borne by the
polluter
• Polluter pays- the sanction should force internalization of
environmental and other costs. the sanction should reflect the value of the over all
damage caused by the offender, and the social, environmental and economic impacts
• Abatement costs- sanction should be in addition to payment of costs of clean up,
restoration or remediation
Constitutional law remedies
^ See article, 44(1) and (2), 91, 92, 37(2)(b)
Administrative Remedies
See proclamation No. 295/2000
^ Proc. 300/2002- see for example article 3 Any person who causes any
pollution shall be required to clean up or pay cost of cleaning up the
polluted environment in such a manner and within such period as shall
be determined by the Authority or by the relevant regional
environmental agency.

48. S The measures could be installation of sound technology, recycling of waste,
cleaning up or payment of the cost of cleaning up the polluted
environment, and any measure up to the closure or relocation of any
enterprise in order to prevent harm.
Civil Liability
❖ In Environmental Law, liability for a tort arises when a wrongful act
complained of amounts either to an infringement of a legal private right
or a breach or violation of a legal duty. That is, when there is public or
private nuisance.
❖ Nuisance- means to hurt or to annoy
❖ It could either be public or private
Public or common nuisance
• an act affecting the public at large or considerable portion of it
• it must interfere with the right the public at large
• Acts, which seriously interfere with the health, safety, comfort or
convenience of the public
• ‘a man must not make such use of his property as unreasonably
and
unnecessarily to cause inconvenience to his neighbors’
• the damage must be particular, direct and substantial
• This is true in case when the plaintiff manages to get redress only
to
his personal injury via the traditional litigation
• However, 37(2) (b) of the FDRE, article 11 of proc. No. 300/2002
the
private parties would enforce their rights to the extent that they
are especially and differently aggrieved, and the public interest
groups could enforce the remedy as to the diffused interests that
could affect the interest of the public at large, the interest of the
future generation, and the intrinsic value of the environment.
Private Nuisance
S Private nuisance is using or authorizing the use of one’s property or of anything
under one’s control so as to injuriously affect others by physically injuring his
property or by interfering materially with his health, comfort or convenience.

49. S Others define it as unlawful interference with a person’s use or enjoyment of land
or some right over or in connection with it S I
t includes, Wrongful disturbances of easements or servitude, Wrongful escape of
deleterious substances into another’s property, such as smoke, smell, fumes, gas,
noise, water
S An action for nuisance will lie against the person;
1, if he causes it;
2, if by neglect of some duty he allowed it to arise; and
3, when it has arisen, without his own act or default, he omits to remedy it within a
reasonable time after he became or ought to have become aware of it.
❖ The remedies for nuisance are:
Injunction
S I
s to prevent environment from imminent or harmful activity the
environment (pollution or other)
S c
an be preliminary (immediate), temporary, or permanent S c
an be important to securing compliance with the law and requiring
affirmative remediation of harmful environmental conditions
Damages
^ W
here the harm has already occurred, indemnities or compensatory damages may be
awarded to the injured party
■=> i
s to compensate for the full losses suffered to the environment and the services it
provides as well as the expenses that have been incurred due to the environmental
harm.

50. ■=> T
he 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.
^ A
ny award of damages or indemnity requires giving an economic value to the loss
suffered
^ P
roblems;
✓ N
ot all parts of the environment are easily valued. Eg air, forest ✓ t
he economic value of the environment as a whole can be considered as the
sum of all the good(food, lumber, medicinal plants, shelter) and services (life
support, recreation, assimilation of contaminants)
✓ T
ort law- art. 2069 (actual damage) art. 2091(the damage due by the person
shall be equal the damage caused)-
• i s based on vested interest of the plaintiff
• e nable us only to take reactive measures in case when there is actual
damage
• d
oes not encompass damage to the environment per se which could affect the
public interest
• the intrinsic value of the environment, and the interest of the future
generation.
Criminal liability
^ not only injunction, compensation but penalizing environmental
wrongdoing ^ Criminal liability is encompassed in the Criminal Code, and
other enabling environmental statutes.

51. ^ w
hen someone pollutes the environment, the court which entertains the case would take
judicial notice of the severe penalty on either of these legal instruments. (See article 3
of cri. Code and art. 12(3) of pollution C.P)
^ I
f no sever penalties are envisaged under the cri. C then pollution c. p. shall apply
^ S
ee from Art. 12—17 of pollution proclamation ^ S
ee Art. 18 of EIA proclamation
^ S
ee from Article 514-524 of the Criminal code.