WHAT IS THE MUCH ADO ABOUT ENVIRONMENTAL LAW: …

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WHAT IS THE MUCH ADO ABOUT ENVIRONMENTAL LAW: ANOTHER ADDITION TO THE RHETORICS?

by

I. A. Aniyie*

Introduction The question of what necessitated the formulation of the principles on which environmental law is structured is of antiquity. However, this question is more an issue today as it was in the 1970s when the world first collectively woke up to the importance of the environment and its relevance vis-a-vis the continued survival of humanity. Academic discourse about the environment and environmental laws today typically associates the latter with an ever increasing and dynamic array of principles.

Environmental law was developed in response to the public perception that human health and the environment were inadequately protected. This dissertation posits that which it is believed amounts to a discourse of the theoretical basis and relevance of environmental law. To achieve this, the chapter is divided into six parts: this being the first; Part II is dedicated to an exposé on the nature – and not a definition - of environment law. It puts across the thesis that environmental law is an admixture of thoughts sourced from different and divergent fields of endeavour. Part III has as its scope the need for environmental law. Part IV attempts a chronicle of the emergency of environmental law and also makes it known that environmental law is a modern day construct and Part V focuses on the theoretical basis of environmental law with specific attention to the principles of

* LL.B, BL., ACIArb (UK), Legal Practitioner, Benin City, Edo State. Email:

[email protected].

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sustainable development and intergenerational equity. Part VI is the climax of the discourse and it captures the closing thoughts as it relates to the theme of this paper. Nature of Environmental Law Environmental law is dedicated to the protection of the environment and by extension, humanity as the former is the foundation on which humanity’s existence is premised. It transcends national boundaries;1 making environmental law an international as well as regional response to environmental problems.2 It is a constantly evolving amalgam of statutes,3 common law and the principles of equity,4 treaties,5 customary

1. M. A. Ajomo: ‘An Examination of Federal Environmental Laws in Nigeria’ in M.

A. Ajomo & O Adewale (eds.): Environmental Law and Sustainable Development in Nigeria (Lagos: NIALS/ British Council, 1994) page 11.

2. J. Thornton & S. Beckwith: Environmental Law (2nd ed.) (London: Sweet & Maxwell, 2004) page 7.

3. There has been adoption of an estimated 200 items of European Union environmental legislation since 1972, see M Prost: ‘Is European Law Becoming More Sustainable?’ in Gehring & Segger (eds.): Sustainable Development in World Trade Law (The Hague: Kluwer Law International, 2005) page 12 , note 49.

4. The predominant common law rules that have found a niche for themselves amidst environmental law are nuisance – which in the United Kingdom has subsumed the rule in Rylands v. Fletcher (1886) LR Ex 265 following the decisions of the House of Lords in Cambridge Water Co. v. Eastern Countries Leather Plc [1994] 1 All ER 53 and Transco Plc v. Stockport [2003] 3 WLR 1467; but still remains separate in Nigeria - trespass, negligence, strict liability and riparian doctrine. See J. Thornton & S. Beckwith: op. cit, pages 330 - 341 and L. A. Atsegbua: et al, Environmental Law in Nigeria: Theory and Practice (Lagos: Ababa Press, 2004) pages 32 – 34, 180 - 189 for discourse on common as a source of environmental law. To further show that environmental law is evolving, it is worthy of mention here that the Indian judiciary has expounded the law by discarding the rule laid down in Rylands v. Fletcher for a principle of strict and absolute liability in the case where someone meets with harm as a result of contact with hazardous or inherently dangerous activity. See C. M. Jariwala: ‘Direction of Environmental Justice in India: Critical Appraisal of 1987 Case Law’ (1993) Vol. 35: 1 & 2 Journal of the Indian Law Institute 92, 101.

5. There are 16 treaties on the United Nations Treaty Collections website which has the environment or issue(s) pertaining to the environment as its scope. See

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law,6 regulations, policies and even religious dogmas and teachings7 which, operates to regulate the interaction of humanity and the rest of the biophysical or natural environment so as to reduce or minimise the impact of human activity, both on the natural environment for the sake of the latter as well as that of the

http://treaties.un.org/Pages/Treaties.aspx?id=27&subid=A&lang=en (Accessed on Tuesday, 12 May, 2009 11:35:52 pm).

6. This is a body of law which reflects the settled practices of states and forms part of their municipal law; see Trendtex Trading Coy v. Central Bank of Nigeria [1977] 1 QB 529. In contradistinction to treaties and conventions, it is binding on all states. However, States escape the burden of customary law by persistent and original opposition to the particular customary law at its ‘infancy stage’ when it is but an emerging principle. See the ICJ decision in Anglo – Norwegian Fisheries Case (1951) ICJ Rep. 166, 131. See also M.N. Shaw: International Law (4th ed.) (Cambridge: CUP, 1998) page 71 where the author noted that a state which opposes the existence of a custom from its inception would not be bound by it; see also, D. Wilkinson: Environment and Law (US/ Canada: Routledge, 2002) page 68.

7. Indeed, many religions have explicitly or tacitly taken a position in relation to the issue of environmental protection, either by accommodating it within their liturgy, see, e.g. The Book of Common Prayer and Administration of the Sacraments and Other Rights and Ceremonies of the Episcopal Church (1979), 827 available at http://justus.anglican.org/resources/bcp/bcp79.pdf where it is stated ‘give us wisdom and reverence so to use the resources of nature, that no one may suffer from our abuse of them, and that generations yet to come may continue to praise you for your bounty’, or by taking a stance that could be termed policy position; for example see, Evangelical Lutheran Church in America, a Social Statement on Caring for Creation: Vision, Hope, and Justice (1993), available online at http://www.elca.org/~/media/Files/What%20 We%20Believe/Social%20Issues/environment/Environment%20social%20statement.pdf where it was stated that ‘even as we join the political, economic, and scientific discussion, we know care for the earth to be a profoundly spiritual matter’. See, E.M. Zimmerman: ‘Valuing Traditional Ecological Knowledge: Incorporating the Experiences of Indigenous People into Global Climate Change Policies’, (2005) 13 NYU Envtl. LJ, 803, 807 where the writer asserted that ‘a close relationship with the environment is central to indigenous people’s way of life, as it is tied to their religious beliefs, social traditions, and language’. See also, G.U. Ojo & J. Gaskiya (eds.): Environmental Laws of Nigeria: A Critical Review (Benin: ERA/FoEN, 2003) page 27 where it was stated that ‘there are different rules of customary law relevant to environmental protection. For example there is the Yoruba customary law on the sanctity of Igbo aro (forest of shrines)and numerous sacred groves in the south south’ of Nigeria.


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totality of humanity, present and future. From an economic perspective it can be understood as concerned with the prevention of present and future externalities.8

The study of environmental law is multi – disciplinary, encompassing a wide spectrum of thought. According to Malcolm:

The range of topics under the general heading of environmental law is extensive. It could include planning law, the law relating to the quality of air and water, the disposal and the transport of waste, the control of the nuclear industry and statutory nuisances. It presents a new classification which absorbs many areas previously considered to fall under different headings.9

This is as a result of the fact that the information needed to fully understand the effect of humanity’s interaction with the biophysical10 environment is situate in other fields of knowledge. Consequently, to fully understand and appreciate the myriad issues as it pertains to environmental law, one may need to conduct interdisciplinary research in biology, physical science, social science, economics, history, and other areas. Environmental law draws from and is influenced by the principle of environmentalism,11 the knowledge of ecology and conservation. The focus of environmental law includes but is not 8. Externalities are the difference between the private and social cost of the

exploitation of the resources of the biophysical environment. It encompasses the contemplated and uncontemplated corollaries, spillovers or third – party effect of the of the exploitation process.

9. R. Malcolm: A Guidebook to Environmental Law (London: Sweet & Maxwell, 1994) page 15 – 16.

10. The biophysical environment includes the abiotic and biotic spheres of the earth’s ecosystem. In this dissertation reference to the biophysical environment amounts to both components of ecosystem.

11. This has been defined as the concern for the environment or the movement, especially in politics and consumer affairs, that works toward protecting the natural world from harmful human activities.


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limited to the quality of environmental media, their protection, biodiversity and its protection, sustainable development, impact assessment and/ or review, conservation qua conservation cum management of natural resources. The current trend of environmental law is anthropocentric,12 a thought that has humanity at its epicentre and is usually contrasted with ecocentrism.13 This births the challenge of having to bring about a regime of ‘mutual coercion mutually agreed upon’,14 as 12. Anthropocentric thought as it relates to the environment is that which puts

humanity at the epicentre of events and issues that pertains to the environment. 13. Ecocentrism thought adopts a holistic approach to the environment and its

protection. It holds that human, animals and plants play a prominent role in the ecological system but are not superior to the ecosystem. See J. Thornton & S. Beckwith, op. cit. In recent times ecocentrism has evolved. It has now taken the form known as Earth Jurisprudence. Earth Jurisprudence – initiated by Thomas Berry in 1996 - is premised on the understanding that law and governance should protect the wellbeing and integral functioning of the planet so that all components of the Earth Community live in healthy ecosystems that sustain the diversity of the natural world. The mission must be to re-envision law and governance and work to open spaces that allow us to support the wellbeing of the Earth as a whole. This involves fostering mutually enhancing relationships among humans and nature based on reciprocity, restraining potentially damaging human activities and recognising the rights of nature. The last school of thought vis – a – vis the environment is biocentrism. This focuses on the biotic sphere of the ecosystem as the most important entity and at the epicentre of events and issues that pertains to the environment. This thought totally unseats anthropocentrism. It has found a niche in the new Ecuadorian Constitution which grants nature rights! The people of Ecuador voted, in September 2008 for a new constitution that is the first in the world to recognise as legally enforceable, rights of nature or ecosystem right. The new Ecuadorian Constitution gives Mother Nature – Pachamama as it referred to - the right to own conservation (Article 71), the right to restoration (Article 72), and to conserve her environmental services (Article 74) and obliges the State to protect her. See http://www.earthjurisprudence.org/; http://www.schumachercollege.org.uk/courses/Earth-Jurisprudence (last accessed on 23 May, 2009); Thomas Berry and an Earth Jurisprudence, available online at http://www.rainforestinfo.org.au/deep-eco/earth%20 jurisprudence/Earth%20Justice.htm (last accessed on 23 May, 2009) and Earth Jurisprudence: Aligning Law and Society with Nature, available online at http://www.schumachercollege.org.uk/courses/earth-jurisprudence-aligning-law-and-society-with-nature (last accessed on 23 May, 2009).

14. G. Hardin: ‘The Tragedy of the Commons’, (1968) 162 Science 1243, 1247


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this is the consequence of having laws and regulations for the regimentation of the exploitation of the environment. The foregoing is obviously unattractive to the short – sighted set of instincts that are encoded into humanity’s genetic makeup. Nor is it easy to accomplish. This is a task which history has proven not an easy one. This is because the further the laws of nature spread cause and effect over time and space, the more scientific uncertainty there will be regarding whether the adverse environmental effects projected in the future will in fact ever happen and whether the adverse environmental effects perceived today were in fact caused by specific activities in distant locations and times.15 It is not easy for any lawmaking system to agree upon laws that are mutually coercive under such circumstances. The Need for Environmental Law According to the creation story as recorded in the Holy Bible, man was directed by God to fill the earth and to dominate it.16 Consequently, this means that humanity had the duty of filling the ‘deliberate’ blank spaces which the creator had left in the course of the creation, further as well as partner in the course of creation.17 Furthermore, it is without doubt that within the divine construct the relationship between man and the earth was designed to be symbiotic. Has it remained so? The relationship can truly and only be symbiotic when man aids the replenishment of the environment. Alas the denigration of the divine construct known as earth has today taken the matter beyond symbiosis and into the realm of parasitism. Many human activities combine to inflict irreversible harm on nature and the ecosystem: climate change and global warming are today touted as the obvious results of the corruption

15. R.J. Lazarus: ‘Human Nature, the Laws of Nature, and the Nature of

Environmental Law’ (2006) No. 3 Virginia Envt’l LJ, 24. 16. See The Holy Bible, Genesis chapter 1 verses 28 – 31. 17. Ibid, chapter 2 verses 19 – 20. The bible records that God brought to Adam all the

animals in the garden of Eden to name and that whatever he named the animal was the animal thereof.


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that the prevailing parasitic relationship has given birth to. A beautiful description of the fate that awaits the earth – and by extension, man - in the face of a continued parasitic exploitation of the resources of the earth is contained in the Founex Report.18 According to the Report, the earth’s resources will be exhausted if the standard of living of the entire population of the earth - as at the late 1960s - is raised to the standard of living of those in the United States at that time.19

In the course of the utilisation and consumption of the resources of the biophysical environment, pollution arises. Infact, it is now obvious that pollution is unavoidable as it is a consequential of the utilisation and consumption of the earth’s resources over which the Divine One had placed man.20 This pollution is a reflection of the entropy21 that has come to be within the biophysical environment as a result of the activities of man. 18. The Founex Report was prepared by a panel of experts at Founex, Switzerland in

June 1971. It called for the integration of environment and development strategies. The report notes that while concerns about the environment spring from the production and consumption patterns of the industrialised world, many of the environmental problems in the world are a result of underdevelopment and poverty. This acknowledgement was a factor in persuading many developing countries to attend the 1972 United Nations Conference on the Human Environment (UNCHE) at Stockholm. See Sustainable Development Timeline, available online at http://www.iisd.org/rio+5/timeline/sdtimeline.htm (Last accessed on 18 February, 2010).

19. Environment and Development, The Founex Report, Intl. Con. No. 586 (1972 4) cited in W. P. Gormley, Human Rights and Environment: The Need for International Co – operation (Leyden: AW Sijthoff, 1979) page 6.

20. This is because in the course of the exploitation of earth’s resources, there are usually cast offs which have no place in the scheme of exploitation. These cast offs become waste and when their quantity exceed the threshold of the earth’s waste management capacity, they become pollutants.

21. ‘Entropy’ refers to the quantity expressing how much of a system’s thermal energy is not available for conversion into mechanical work. See Oxford Paperback Dictionary & Thesaurus (2nd ed.) (2007); see also D. Wilkinson: op. cit, page 176. With reference to the exploitation and utilisation of the earth’s resources, some energy or resources are lost in the course of the transformation from one form to another. This is the entropy or degree of disorder in the system of exploitation or utilisation and this leads to pollution. See R. J. Lazarus, op. cit.


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Natural resource destruction and environmental contamination is a form of entropy. Disorder in the ecosystem is increased when common resources such as air and water are polluted. Disorder is likewise increased whenever complex natural resources are broken down into smaller parts.

The exploitation of natural resources for the provision of the basic necessities of life: energy, food, shelter, and clothing, precipitates in entropy in parts of the ecosystem. Human activities or processes compel it as it is without conjecture that man seeks to survive and that a spinoff of this is the propensity to undertake activities that cause such natural resource destruction and environmental pollution. This proposition is incontrovertible. The question now is whether it is human nature to exploit and consume the natural environment in a non - sustainable fashion.22 To this we respond in the affirmative. This is because humanity by nature is well adapted to perceive its present short - term needs as well as lacks the ability to look beyond the here and now and this makes humanity into a naturally self - oriented being. Premised on this, we align ourselves with the proposition that ‘nature created within us a short - sighted set of moral instincts’.23 Recent research into human behavioural and cognitive psychology offers contemporary confirmation of this thesis.24

The need for environmental law can be seen as arising from the persistent gap between the parochial horizons of human nature and the much wider spectrum of the consequences of human activities. This realisation gives birth to the need to ‘legislate temperance’.25 Environmental law seeks to regulate activities that occur in the here and now to temper their potentially tragic

22. R. J. Lazarus, Ibid. 23. P. W. Edwards: ‘A Darwinian Approach to Meta-Ethics’, available at

http://www.freethoughtdebater.com/FEvolutionaryEthics.html (Accessed on 18 May, 2009).

24. D. M. Dana: ‘A Behavorial Economic Defense of the Precautionary Principle’, (2003) 97 New. U.L. Rev. 1315, 1324 – 1326.

25. G. Hardin, op. cit.


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consequences for the there and then.26 A probable question is: ‘Is law really an effective tool for the control or the prevention of a parochial and unsustainable exploitation of the biophysical environment and prevent environmental pollution and degradation which the entropy from the exploitation and utilisation is bound to birth?’ To this, the answer is yes. This is because the law provides standards and framework that must be compiled with in relation to the use of the biophysical environment. And, in the event of non – compliance, the same law prescribes sanctions and punishment, which again is a state of affairs which the majority of humanity abhors. Environmental laws characteristically imposes a statutory duty on individuals, organisations and even government, a breach of becomes actionable at the instance of the aggrieved or affected person, who ‘may’ thereafter be awarded damages in compensation for injury suffered.27 Furthermore, environmental law is a tool that is capable of achieving social reform. According to Okorodudu – Fubara, environmental law:

Presents itself as a salient tool of social ordering. It is expected to reverse specific human attitudes, activities or beliefs which are environmentally unfriendly in order to secure a safe and healthy environment for present generations and generations yet unborn.28

Emergence of Environmental Law

26. Ibid. 27. In Nigeria, the Supreme Court in Godspower Nweke & Anor v. Nigerian Agip Oil

Company Ltd. (1996) 9 & 10 SC 101 applied the provision of section 67 of the Minerals and Mining Act, Cap M 12 LFN, 2004, which provides for payment of compensation to persons who suffer damages due to pollution arising from minerals and mining operations. Section 11 of the Oil Pipelines Act, Cap. O 7, LFN, 2004, provides for condition in which and persons that are entitled to receive compensation from the holder of an oil pipeline licence under the law.

28. M. Okorodudu – Fubara, referenced in L. A. Atsegbua, et al, op. cit, page 64.


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As a construct of humanity, environmental law has come of age. In the first half of the last century there was little or nothing as it concerns environmental law. At that time, there was nothing that could be referred to as environmental law. The prevailing situation was the application of customary international norms in a rather unsystematic manner to issues pertaining to the environment. The classic Trail Smelter Arbitration29 is an example of such a scenario. The arbitration was between Canada and the United States and it affirmed Canada's responsibility for the damage from copper smelter fumes that transgressed the former’s border and found its way into the territory of the latter. However, in the 1960s, environmental issues began to take the centre stage in discourse and policy formulation within30 and between States. In the United States, this new environmental awareness led to the adoption of the first major piece of federal environmental legislation, the National Environmental Policy Act of 196931 which initiated the

29. (1931 - 1941) 3 RIAA 1905. The language of the Arbitral Tribunal has been cited

widely as confirming the principle that a state is responsible for environmental damage to foreign countries caused by activities within its borders. And because the Trail Smelter Arbitration is a rare example of international environmental adjudication in this early period, it has acquired an unusually important place in the jurisprudence of international environmental law.

30. This era can be referred to as an era of paradigm shift and it pervade diverse facets of the global society. An example of this change was the famous publication by Rachel Carson. See R. Carson, Silent Spring R. Carson, Silent Spring (US: Houghton Miffin, 1962). The book generated widespread public concerns toward the effect of pesticides and pollution of the environment. It also brought together research on toxicology, ecology and epidemiology which suggested that agricultural pesticides were building to catastrophic levels. This was linked to damage to animal species and to human health. It shattered the assumption that the environment had an infinite capacity to absorb pollutants. It drew attention to the deleterious effect of DDT to the environment and this led to the ban of the pesticide in the United States. The book documented detrimental effects of pesticides on the environment, particularly on birds. See Sustainable Development Timeline, op. cit.

31. (Pub. L. 91-190, 42 USC 4321-4347, January 1, 1970, as amended by Pub. L. 94-52, July 3, 1975, Pub. L. 94-83, August 9, 1975, and Pub. L. 97-258, § 4(b), Sept. 13, 1982). This is an Act to establish a national policy for the environment, to


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environmental impact statement regime and in 1971 the United States Council on Environmental Quality32 and the United States Environmental Protection Agency33 were established.

On the supranational level, the United Nations Conference on the Human Environment (UNCHE) was held in Stockholm in 1972, and it became the start point for the development of environmental law on the international plane.34 The development of environmental law took another turn in 1987 with the making public, Report of the World Commission on Environment and Development. The Report, titled ‘Our Common Future’ emphasised the need for a global co – operation geared towards the formulation of common survival modalities by all of humanity and to reduce the exhaustion of the resources as well as pollution of the environment.35 The Conference also stressed the relationship between the environment and the concept of sustainable development. Sequel to this was the United Nations Conference on

provide for the establishment of a Council on Environmental Quality, and for other purposes.

32. The Council on Environmental Quality (CEQ) is a division of the Office of the United States President and it co - ordinates federal environmental efforts in the United States and works closely with agencies and other White House offices in the development of environmental and energy policies and initiatives. See http://en.wikipedia.org/wiki/Council_on_Environmental_Quality (Last accessed on 18 February, 2010).

33. The US Environmental Protection Agency (EPA or sometimes USEPA) is an agency of the federal government of the United States charged to regulate chemicals and protect human health by safeguarding the natural environment: air, water, and land. The EPA was proposed by President Richard Nixon and began operation on December 2, 1970, when its establishment was passed by Congress, and signed into law by President Nixon, and has since been chiefly responsible for the environmental policy of the United States. See http://en.wikipedia.org/wiki/United_States_Environmental_Protection_Agency; www.epa.gov (Last accessed on 18 February, 2010).

34. See Report of the United Nations Conference on the Human Environment, UN Doc. A/Conf. 48/14/ Rev. 1 (1972); ILM 11 (1972) 1416.

35. P. Malanczuk: Akehurst’s Modern Introduction to International Law (7th ed.) (London: Routledge, 1997) page 241.


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Environment and Development (UNCED) which took place in Rio de Janeiro twenty years after the Stockholm Conference.36

In the third world nations, the prevailing trend of environmentalism of the 1970s was met with suspicion. They viewed it as a ruse which advanced nations intended to use to hide an attempt to divert resource which when put to use will aid their economic and technical advancement.37 Africa’s first major acknowledgement of the prominence of environmental issues was with the drafting of the African Charter on Human and Peoples’ Rights.38 The Charter is the first international instrument to proclaim that the right to a clean environment is a human right to which everyone is entitled to as a result of his/her humanity. Article 24 provides that:

All peoples shall have the right to a general satisfactory environment favourable to their development.

In relation to Nigeria, it was sixteen years after the UNCHE

that environmental issues became prominent at public and private fora.39 This was sequel to the Koko toxic dump saga in the present day Delta State in 1987. The Nigerian government in a reactionary move promulgated three decrees - now Acts of the National Assembly by virtue of section 315, Constitution of the Federal Republic of Nigeria, 1999 – to wit:

a. Harmful Waste (Special Criminal Provisions) Act40 which

make it an offence for any person to carry, deposit, dump or be

36. Ibid. 37. M. Okorodudu – Fubara: Law of Environmental Protection: Materials and Text

(Nigeria: Caltop Pub. (Nig.) Ltd, 1998) page 3. 38. Adopted on 27 June, 1981 at Banjul, in the Gambia, entered into force 21

October, 1986; OAU Doc. CAB/LEG/67/3 rev. 5, 21 ILM 58 (1982). 39. M. Okorodudu – Fubara, op. cit. 40. Cap H 1 Laws of the Federation of Nigeria (LFN) 2004.


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in possession of any harmful waste on Nigerian soil, inland water or seas.41

b. Federal Environmental Protection Agency (FEPA) Act42 which established the Federal Environmental Protection Agency (FEPA), the flagship agency of the Nigerian government responsible for the protection of the Nigerian environment.

c. Environmental Impact Assessment (EIA) Act43 whose primary aim is to ensure that as far as possible the negative impact(s) of developmental projects are predicted and addressed before the project is commenced44 anywhere in Nigeria.

The Crux of the Matter The determination of the theoretical basis of environmental law is achievable by an analysis of some of the principles on which it is founded. The task is not an easy one given the plethora of principles that form the foundation of the principles of environmental law. At this juncture, it should be noted that this study is non-exhaustive and as such an arbitrary choice has had to be made as per which of the principles will be examined and it is to it that this dissertation is tied. Consequently, hereafter, specific attention will be paid to two fundamental principles: the principles of sustainable development and intergenerational equity.

41. Ibid, section 1. 42. Cap F 10 LFN, 2004. However, this Act was repealed by the National

Environment Standards and Regulations Enforcement Agency (Establishment) Act 2007 (NESREA) on 30 July 2007. NESREA Act also created a new agency which took over the activities of FEPA. See sections 1(2)(a) and 36, NESREA Act; see also S. G. Ogbodo: ‘National Environment Standards and Regulations Enforcement Agency (NESREA) Act – A Review’ (2008) 11 (1 & 2) UBLJ 144 for a review of this legislation.

43. Cap E 12 LFN 2004. 44. L.A. Atsegbua, et al., op. cit, page 170.


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Sustainable Development45 Sustainable development first began to get significant international attention when it was endorsed in 1987 by the World Commission on Environment and Development (WCED).46 According to the Commission’s report, sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. This definition has been widely quoted and is now of the status of a cliché. The Brundtland Commission’s work led to the well attended UNCED in 1992.47

Though the UNCED is widely recognised for its emphasis on environment, it also gave birth to a document48 which according to Thornton and Beckwith:

Marked a conceptual breakthrough in that the natural world was added to the social and economic dimensions of ‘development’ to produce the ‘concept of sustainable development.49

This document - the Rio Declaration - is a statement of 27

principles for sustainable development. The other product of the conference was a global action plan for all states on development and the environment (Agenda 21) which was unanimously accepted by all participating states.50 Both texts though not binding

45. Also referred to as ‘sustainability’. 46. Otherwise referred to as the Brundtland Commission, after its chair, Norwegian

Prime Minister Gro Harlem Brundtland. 47. Approximately 10,000 delegates from 176 states attended the conference. See J.

Thornton & S. Beckwith, op. cit, page 35. 48. This document is referred to as the Declaration on Environment and

Development, June 16, 1992, UN Doc. A. CONF. 151/15 (the Rio Declaration) 49. J. Thornton & S. Beckwith, op. cit, page 36. 50. Ibid.


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do occupy an enviable position in sustainable development discourse.

Sustainability is an admixture of policies for environmental protection, economic development,51 and poverty eradication.52 Its scope includes the integration of countries and regions as it recognises that the environment is as interconnected as the human body. Thus, consumption pattern in the United States is as bad for global sustainability as meteoric population growth in Nigeria53 and these are capable of leading to an unsustainable situation. An ‘unsustainable situation’ occurs when natural capital (the sum total of nature's resources) is used up faster than it can be replenished. That human activity should use nature's resources at a rate at which they can be replenished naturally is the linchpin of the concept of sustainability. Consequently, sustainability is intertwined with the concept of carrying capacity: when man’s exploitation of the environment exceeds her carrying capacity and results in environmental degradation, the corollary is the inability of the earth to sustain life and further down the road, extinction of life on earth. Sustainable development has been given a place of honour as it has become the leading concept in environmental policies globally and finds support in an eclectic collection of thoughts.54 51. The concept recognises that there cannot be a consideration of the protection of

the environment in isolation from economic and development decisions. Ibid, page 46.

52. The Brundtland Report found that there exist a nexus between poverty and environmental problems. Ibid.

53. See Ali Ahmad’s comment quoted in J. C. Dernbach: ‘Why Lawyers Should Care about Sustainable Development’, op. cit, 34.

54. The sacred texts, beliefs and teachings of the world’s religions are also supportive of sustainable development. Buddha taught respect for all life. Native American religious beliefs recognise the connectedness of all life. The Jewish and Christian traditions teach that God made the world, that God declared creation to be good, that the earth belongs to God, and that humans are to exercise stewardship or dominion (not domination) over creation. See J. C. Dernbach: ‘Why Lawyers Should Care about Sustainable Development’, Environmental Forum, Vol. 19, July/August 2002, 37; W. Ajai: ‘Achieving Environmental Protection Through


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Its principles have found their way into not a few international environmental treaties55 and municipal legislation.56 In the Gabcikovo –Nagymaros project case, the International Court of Justice commented on the concept of sustainable development as follows:

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 effect upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind…. for present and future generations … of the pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly

the Vehicle of Human Rights: Some Conceptual, Legal and Third World Problems’ (1995) Vol. 2 No. 1 UBLJ 41, 44; see also note 7 ante.

55. See for example the Convention on Environmental Impact Assessment in Transboundary Context (1991) 30 ILM 802; Article 2, Kyoto Protocol to the United Nations Framework Convention on Climate Change, FCCC/CP/1997/7/Add. 1, reprinted in 1998 ILM 22; No. 9 of the Preamble to the EC Directive concerning Integrated Pollution Prevention and Control (IPPC) 1996 Council Directive 96/61/EC of 24 September 1996, Official Journal L 257/26.

56. See for example Environmental Impact Assessment (EIA) Act, op. cit; the US National Environmental Policy Act of 1969, op. cit; Article 4 of the Japanese Basic Environmental Law, 1993, Law No. 91 of 1993.


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expressed in the concept of sustainable development.57

Environmental sustainability – as we have chosen to refer to sustainable development as it concerns the environment - is the process of making sure current processes of interaction with the environment are pursued with the intention of keeping the environment as pristine as naturally possible.

Sustainable development is based on, and requires, economic growth, social development, and security, but it also requires environmental protection and restoration.58 Dembach has asserted correctly that protecting the environment is part of what progress means; it is not the price of progress.59 He again correctly stated that:

The idea that we need to seek environmental protection at the same time as we seek to advance other goals is a guiding principle of sustainable development. Sustainable development provides a powerful and realistic basis to be hopeful about the future. This is particularly true because we have a very good idea of the legal and policy tools that we need to put in place to navigate a transition to sustainability.60

As earlier stated, sustainable development is an admixture: it encompasses other principles which analysis of will bring about a better understanding of the ramification of sustainability. However, this study is not exhaustive. Again another arbitrary choice has had to be made. Specific attention will be paid to two fundamental 57. Gabcikovo – Nagaymaros Project (Hungary v. Slovakia), 37 ILM 162 (1998)

(Sept. 25, 1997) Para.140. 58. J.C. Dernbach, ‘Sustainable Versus Unsustainable Propositions’ Vol. 53, No. 2,

2002 Case Western Reserve Law Review, 449, 450. 59. Ibid. 60. Ibid.


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principles, one substantive and one procedural in nature: precaution and environmental democracy.

a. Precaution Machiavelli declared that all wise princes should:

not only have to watch out for troubles at hand, but also for those ahead, and endeavour diligently to avoid them; for once trouble is foreseen, it can be easily remedied; however, if you wait for it to become evident, the medicine will be too late, for the disease will have become incurable.61

The foregoing, intended as a general rule of good governance, summarises what, nearly four centuries later, has become one of the cardinal standards of international environmental law; that is, prevention. It can be said that the principle implies that ‘prevention is better than cure’. Given the sensitive nature of the environment, prevention is often the only responsible and logical approach because damage is oftentimes is irreparable. This assertion finds support in the International Court of Justice opinion in Gabcikovo Nagymaros Project case (Hungary v. Slovakia)62 where it held that:

[I]n the field of environmental protection, vigilance and prevention are required to take 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.

61. N. Machiavelli, The Prince (1513). 62. (1998) ILM 37, 162.


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One of the most widely accepted forms of the general imperative of prevention is the precautionary principle. The Rio Declaration provides a widely recognised definition of precaution:

In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.63

In other words, the precautionary principle makes clear that:

[I]n the face of a peril to the environment, conclusive scientific proof is not a prerequisite, nor uncertainty an obstacle, for taking measures to counter it.64

This dissociation between scientific certainty and political

decision-making characterises the precautionary approach.65 By stating that lack of scientific certainty is not a sufficient reason to postpone decisions on environmental matters, the precautionary principle is creating a link between the acceptance of science and its simultaneous negation as a decision-making factor.66 Moreover, precaution is generally appreciated as a direct corollary of

63. Principle 15, op. cit. 64. A. Trouwborst: Evolution and Status of the Precautionary Principle in

International Law (The Hague: Kluwer Law Intl., 2002) page 11-12. 65. M. Prost: ‘Is European Law Becoming More Sustainable?’ in Gehring & Segger

(eds), Sustainable Development in World Trade Law (The Hague: Kluwer Law International, 2005) page 23.

66. A. Philippopoulos-Mihalopoulos: ‘The Silence of the Sirens: Environmental Risk and The Precautionary Principle’, (1999) Vol. 10 No. 2 Law and Critique, 175-197.


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sustainable development since both principles emphasise foresight and the need to be pro – active rather than reactionary.67

Today this principle has found its way into the gamut of environmental legislation. A provision similar to Principle 15, Rio Declaration exists in the Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes.68 Article 2 (5) states:

The parties shall be guided by the precautionary principle, by virtue of which action to avoid the potential transboundary impact of the release of hazardous substances shall not be postponed on the ground that scientific research has not fully proved a causal link between those substances, on the one hand, and the potential transboundary impact, on the other hand.

The Vienna Convention for the Protection of the Ozone Layer69 and the Montreal Protocol on Substances that Deplete the Ozone Layer70 also embody this principle. Elsewhere, it has been asserted that:

The duo stands out as an attempt at giving life to the ‘precautionary principle’ which embodies the idea that action should be taken by states without full scientific certainty so as to prevent an emerging problem from becoming a crisis.71

b. Environmental Democracy 67. Ibid. 68. 1992 ILM 1312. 69. Adopted March 22, 1985, 1513 UNTS 323. 70. Adopted September 16, 1987, 26 ILM 1541. 71. See I. A. Aniyie: ‘Influx of Used Electronics into Africa: A Perilous Trend’ 5/1

Law, Environment and Development Journal (2009), page 90, 104, available at http://www.lead-journal.org/content/09090.pdf (Last accessed on 17 February, 2010).


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This is a rather quaint phrase for public participation in environmental matters. Public participation in decision-making has emerged as a fundamental principle of sustainable development. The Brundtland Report found that sustainable development requires a political system that secures effective citizen participation in decision making. The Rio Declaration has also proven to be of particular importance in enabling concerned persons and groups to take action for environmental protection. It states:

Environmental issues are best handled with 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... and the opportunity to participate in decision – making processes.72

Agenda 21 provides that:

One of the fundamental prerequisites for the achievement of sustainable development is broad participation in decision making.73

Thus, it can be summarised that the idea of environmental

democracy portends that public participation is based on the right of those who may be affected to have a say in the determination of 72. Principle 10, op. cit. 73. Paragraph 23.2, United Nations Conference on Environment and Development,

Agenda 21. UN Doc. A/CONF. 151/26/Rev.1, 31 ILM 874 (1992).


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the future of their environment. Environmental democracy dovetails into a bottom – up approach to the formulation of environmental policies and legislation. Premised on the forgoing it is, firstly, a necessity that people should be able to participate in decision making processes which affect and impact on their lives and well-being. Secondly, in order to participate fully, the public must have access to adequate information. Thirdly, in different ways, citizens should have access to independent appeal if their concerns are not addressed.

The foregoing conditions as adumbrated are met by the Aarhus Convention74 which came into force in 2001 as it makes provision for public participation and access to justice and information in environmental matters. According to Annan:

Although regional in scope, the significance of the Aarhus Convention is global. It is by far the most impressive elaboration of the principle 10 of the Rio Declaration, which stresses the need of citizens’ participation in the environmental issues and for access to information on the environment held by public authorities. As such it is the most ambitious venture in the area of environmental democracy so far undertaken under the auspices of the United Nations.75

The principle of environmental democracy is also entrenched in the Nigerian EIA Act. Section 7 provides that before a decision on the environmental viability of a project is taken, the deciding authority should give opportunity to governmental agencies, 74. UN Convention on Access to Information, Public Participation in Decision-

Making and Access to Justice in Environmental Matters, signed in Aarhus, Denmark in June 1998. This convention is regional as it applies to the Economic Commission of Europe (ECE) to which not all countries in the continent of Europe belong to.

75. K. Annan, quoted in J. Thornton & S. Beckwith, op. cit, page 407. Emphasis being mine.


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members of the public, interested groups as well as experts in relevant disciplines to comment on the Environmental Impact Assessment (EIA) carried out by the project proponent. Also, the EIA processes and procedures are replete with provisions which call for public participation.76 Intergenerational Equity The principle of intergenerational equity precipitates the conclusion that environmental resources and assets - such as the quality and diversity of environment - do not 'belong' to any generation but are to be administered and preserved in trust for all future generations.77. On the surface, it resembles the principle of sustainable development. However, this is not true. The difference between the two principles is that intergenerational equity is founded on the principle of distributive justice,78 a principle rooted in egalitarianism, equality, equity and utilitarianism; while the principle of sustainable development brings to the fore the issues of needs and limitations, which in turn give birth to a situation different from that where egalitarianism, equality and equity hold sway.79

76. See L. A. Atsegbua et al: op. cit, page 173 – 177 where the authors captured

instances where public participation is enjoined under the EIA Act in Nigeria. 77. http://www.businessdictionary.com/definition/intergenerational-equity.html. 78. Distributive justice is a normative principle which posits that the benefits and

burdens of the wealth of a community should be shared on the basis of equality. The principle underscores the fact that everyone should have the same level of material goods and services. In relation to the environment, it portends that it is only fair that every generation is exposed to the same quality of wealth/ resources of the environment notwithstanding its place in the continuum of time.

79. The Brundtland Commission definition of sustainable development incorporates the concepts of needs and limitations. Both concepts is capable of leading to inequality between generations in relation to the utilisation of the wealth of the environment; as the needs of one generation as well as the limitations which same face in relation to the utilisation of the wealth of environment precipitates in varied levels of exploitation and pollution. For example, compare the needs of an agrarian society as well as its limitations with that of an industrialised society.


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The thinking that humanity – past, present and future generations – have an equal right to the wealth of the environment has influenced the drafting of legislation. For example, the preamble to the Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion of July 8, 1996)80 states that the environment ‘represents the living space, the quality of life and the very health of human beings, including generations unborn’. Also, the Charter of Economic Rights and Duties of States81 asserts that ‘the protection, preservation and enhancement of the environment for the present and future generations are the responsibility of all States’.

Principle 1 of the Stockholm Declaration states that man bears a solemn responsibility to protect and improve the environment for present and future generations. The Rio Declaration formulates the principle more broadly:

The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.82

Intergenerational equity is based on a moral obligation which is rooted in the traditional conception of equity and every generation owe this to each other thus making them beneficiaries and trustees inter se. In the opinion of D’ Amato it is the duty of the present generation to future generations to pass on the natural and cultural resources of the planet in no worse condition than received and to provide reasonable access to the legacy for the present generation.83

There is definitely no equality and equity in their utilisation of the wealth of the environment as these concepts propel them differently.

80. 1996 ICJ 95, 35 ILM 809, 821. 81. UN GAOR, 29th Sess., Supp. No. 31, at 50, 55, UN Doc. A/9631 (1975);

reprinted in 14 ILM 251, 260, (1975). 82. Principle 3, op. cit. 83. See A. D’Amato: ‘Do We Owe a Duty to Future Generations to Preserve the

Global Environment?’, (1990) 84 Am. J. Int’l L, 190, 198; EB Weiss: ‘Our Rights


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Intergenerational equity is not just something we desire for our children and grandchildren; it is part of our moral obligation to them. Each generation has the right to inherit the same diversity in natural and cultural resources enjoyed by previous generations and to equitable access to the use and benefits of these resources. At the same time, the present generation is a custodian of the planet for future generations, obligated to conserve this legacy so that future generations may also enjoy these same wealth.

Subsumed in this principle is the ‘no – harm’ or ‘due diligence’ rule. The rule which has coloured environmental policies, legislation - both municipal84 and international85 has its foundations in the Trail Smelter Arbitration and the ICJ decision in the Corfu Channel86 case. They both set the tune as it regards transfrontier/ transaboundary environmental pollution. The principle espoused by these authorities is to the effect that no state has the right to use its territory in a manner that that is capable of causing injury to the territory of another. The Stockholm Declaration further expatiated on the principle. It provides that:

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental (and developmental) policies and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the

and Obligations to Future Generations for the Environment’, (1990) 84 Am. J. Int’l L, 198 where the writer analysed the justifications for, and implications of, intergenerational equity.

84. See generally Environmental Impact Assessment (EIA) Act. 85. UN Convention on the Law of the Sea, 21 ILM 1261 (1982); the Preamble of the

1985 Vienna Convention for the Protection of the Ozone Layer, 26 ILM 1529 (1988); UN Framework Convention on Climate Change Convention, 31 ILM 849 (1992).

86. ICJ Reports (1949) 22.


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environment of other States or of areas beyond national jurisdiction.87

Concluding Remarks Environmental law is today what it is as a result of knowledge acquired over time. The protection and preservation of the environment is now perceived as being of crucial importance to the future of mankind.88 This is as a result of the present realisation of humanity’s dependence on the environment. In the course of the last half of the past millennium, this relationship has improved.89 The reason for this cannot be far from the fact that humanity has put together the construct known as environmental law to regulate and superintend its activities in and relationship with the biophysical environment.

There is plenty about environmental law that answers the question that forms part of the title of this dissertation. Amongst them is the fact that it makes economic sense.90 This is because, firstly, it is utilitarian91 as it allows for a better distribution of the resources of the biophysical environment between generations, 87. See Principle 21. 88. Per Lord Goff: Cambridge Water Co. v Eastern Countries Leather Plc [1994] 1

All ER 53. 89. There is commendable knowledge as it regards the environment, the consequence

of unsustainable exploitation and our dependence on it. This fact is deducible from events in and decisions of courts from various jurisdictions. For example, the Indian courts have handed down decisions that places the protection of the environment over and above economic and industrial development; see MC Mehta v. Union of India SC 965, MC Mehta v. Union of India 4 SCC 463, MC Mehta v. Union of India AIR 1987 SC 1086; see Joshua Gbemre v. Shell Petroleum Development Co. & 2 Ors. (Unreported, Suit No.: FHC /B/ CS/153/05 of Dec. 10 2005, Federal High Court, Benin City) where the court held that the right to life under the 1999 Constitution includes a right to live in a clean environment.

90. See A. Altman, Arguing About Law: An Introduction to Legal Philosophy (US: Wadsworth, 1996) page 149 et seq. for an economic analysis of law.

91. The utilitarianism of environmental law is that it allows for the construction of a regime that makes possible the exploitation and utilisation of the resources of the biophysical environment in a manner that leads to the greatest pleasure. See A. Altman, op. cit, page 152 – 153.


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present and future, in a manner that will bring about the greatest of happiness/ pleasure for the greatest number of people with an efficiency that puts it beyond the realm of a necessary. Secondly, a cost – benefit analysis of the substratum of the entire gamut of environmental laws would reveal that the marginal benefit derivable from its existence will always be positive and far from zero.92 Thirdly and flowing from the foregoing, it is past conjecture that the existence of environmental law to restrain cum prevent untrammelled and/or unsustainable exploitation of the environment is a ‘Pareto superior’93 in relation to a situation where laissez faire is the norm. Also, with environmental law, pollution of the biophysical environment is reduced. These laws also have the ‘domino effect’ of reducing the risk of illness and incidence of death if implemented.

Environmental law is a normative order cum construct situate within the institution of the state. Thus, law making bodies are enjoined to enact environmental laws or better still, enact laws that are targeted at identified sources of environmental problem. For example, as a result of the exponential industrialisation and advancement in the field of information and communication technology (ICT), the quantity of electronic waste (e - waste) on the planet has reached crisis level on a global scale. According to the United Nations, about 20 to 50 million tons of it is generated

92. Ibid, page 150 – 151. 93. One of two options is a ‘Pareto superior’ if by its adoption one party is better off

and no one else is worse off. (This includes moves that benefit all parties; the essential concern is that no one is worse off after the move compared to welfare before the move) In other words, the gains in economic efficiency of adopting the option that is a ‘Pareto superior’ are large enough to provide for those who directly benefit from the adoption of this option to if they have to, compensate the losers in the new allocation of goods and still remain better off. See Law and Economics, available online at http://www.iep.utm.edu/l/law-econ.htm#SH4a; Pareto and Kaldor-Hicks Evaluations of Distribution of Social Resources, available online at http://www.calbaptist.edu/dskubik/pareto.htm (Accessed on 19 May, 2009); See A Altman, op. cit, page 153 – 155.


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annually globally,94 the bulk of it being generated by the industrialised nations of the world.95 Most States have not yet woken up to this horrendous trend and where they have, are dealing with it in ways that are both unsustainable and environmentally unfriendly.96 The authorities who have the task of enforcing the existing laws are also enjoined to be up and doing. And humanity in general is enjoined to make judicious use of the

94. See K. Brigden, et al.: Chemical Contamination at e - waste Recycling and

Disposal Sites in Accra and korforidua, Ghana (The Netherlands: Greenpeace Int., 2008) page 2.

95. In the US, it accounts for about one percent to three percent of the total municipal waste generated. In the European Union (EU), e-waste is growing three times faster than average annual municipal solid waste generated. A source estimates that the total amount of e - waste generation in EU ranges from 5 to 7 million tonnes per annum or about fourteen to fifteen kg per capita and is expected to grow at a rate of three percent to five percent per year. In developed countries, currently it equals one percent of total solid waste generated and is expected to grow to two percent by 2010. See E-waste Generation Scenario. Available online at http://envis.maharashtra.gov.in/envis_data/files/Ewastgeneration_scenario.html (Last accessed on December 7, 2008).

96. For example, some nations of the world lack legislation that relates to electronic waste, a new form of waste and cause of pollution that is in the front burner of environmental discourse in both the developed and developing world. For a robust discourse of the issue of e – waste in the continent of Africa and the developing world. See generally I. A. Aniyie: ‘Influx of Used Electronics into Africa: A Perilous Trend’ op. cit, footnote 71; the documentary, Hidden Flow: The Rising Tide of European Waste in West Africa. Available online at http://www.youtube.com/user/ConsumerIntl (Accessed on December 7, 2008); K. Brigden, et al.: Chemical Contamination at e - waste Recycling and Disposal Sites in Accra and korforidua, Ghana, op. cit; ‘Greenpeace Lashes Rising e – waste in Africa’, The Guardian, Wednesday, August 20, 2008, 43; I. Basu: ‘E-Waste: E-trash Swamps the Developing World’, Toxic Trade News, (June 2008) available online at http://www.ban.org/ban_news/2008/080619_e-trash_swamps_the_developing_world.html (Accessed on December 7, 2008); C. W. Shmidt: ‘Unfair Trade: e – Waste in Africa’, 114 Environmental Health Perspective, A233, A234 (April 2006) available online at http://www.ehponline.org/members/2006/114-4/ehp0114-a00232.pdf (Accessed on December 7, 2008) and LJ Flynn: Poor Nations are Littered with Old PCs, Report Says, The New York Times, October 24, 2005 available online at, http://learning.berkeley.edu/cipolat/PDF/ISF100E/SupportMat/E_Waste05.pdf (Accessed on December 7, 2008).


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position it occupies within the earth’s biosphere as the dominant specie by living with the carrying capacity of the environment.

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