Definition

Employment relation is established through a contract of employment and it shall be deemed formed where a person (the employee) agrees, directly or indirectly, to perform work for and under the authority of another (the employer) for a definite or indefinite period or piece work in return for wages. Let us try to examine the elements of this definition.

Agreement

The definitional elements of an employment contract indicate that agreement is the basis for employment relation and this automatically excludes forced labour from the ambit of employment relations. Hence a person cannot be compelled to enter into an employment relation. Thus in this sense it is a voluntary engagement.

Nevertheless, it is important to note that agreement to employment relation may be expressed directly or indirectly. For instance, a person may directly or personally negotiate with his/her employer and conclude a contract of employment thereafter. The other possibility is public/private employment agencies may serve as intermediaries between the employer and the employee with a view to facilitating their relations. Thus the agreement may be expressed personally or indirectly through employment agencies.

Performance of work

The other element under the definition is the agreement from the side of the employer is “to perform work for of the employer”. The employee will be required to render personal service. In this sense, the employee is committing him/her/self to render personal service for the benefit of the employer. Unlike a contract of sale where the seller delivers something tangible to the buyer, in the present case, the employee is making his service available (i.e. something intangible) to the benefit of the employer. Through this arrangement the employee is putting his skill and working capacity at the disposal of the employer. Although the employee may express his/her agreement indirectly, his/her service is to be provided personally. S/he cannot, as of right, delegate another person to render service in his/her behalf.

Under the authority of the employer

The employee will be required to render the said service within the frame work of the instruction of the employer. This in effect means the employer will possess the prerogative to direct, supervise and control the manner and performance of the employee. Consequently, the employer will have the power to determine what work to be done; when to be done; where to be done; how to be done and with whom to be done.

It is important to note, however, that the authority granted to the employer over the employee is not meant and intended to establish a master and servant relationship. On the contrary, it is within the framework of the terms of the contract that the scope of the authority of the employer over the employee will be determined.

Working under the authority of the employer differentiates an employee from an independent contractor. An independent contractor performs work for the benefit of his/her client but in performing such work s/he is not under the strict direction of the client. The client in such cases is interested on the result and not on the manner how the result was achieved. For example, if a client seeks the service of a tailor to make him a three pieces suit, he will not have an interest where and how it is made so long as the agreed date and quality of the product is maintained. But in case of an employer, he is not only interested on the result but also on the manner of arriving at such result. Therefore it is safe to conclude that where the “employer” has no or minimal authority over his “employee” the relationship between them is client-independent contractor relationship not employer-employee.

Length of employment

As regards to duration, a contract of employment could be entered into either for definite period (for six months, for one year etc), or for indefinite period (i.e. for the life of the company), or for a specific assignment (to unload sacks of grain from a truck). As we all know marriage, in principle, is a life long engagement. This is not the case for employment relation. There is no as such life long contract of employment.

Wage

Last but by no means is least; among the definitional elements is wage. As the employee is committing himself/herself to render personal service for the benefit and under the authority of the employer, the employer will have a corresponding duty to perform. It will be expected and required to pay wage to the employee. Hence employment relation is not a pro bono service. On the contrary, it is a service in return for wages.

The mode of payment for wage could be in cash or in kind though ordinarily payment is effected through cash. As regards to the interval of payment, it could be in daily, weekly, bi-monthly, monthly etc. basis or it could be assessed on piece rate. The manner or the mode of payment will not have any effect on the relationship of the parties.

From the above discussions, we tried to highlight the elements of a contract of employment. If and when these elements are cumulatively satisfied, the status of the parties will be held as employer and employee relationship.

(Extracts from an ILO document on “Employment relationship”)

The employment relationship: Overview of challenges and opportunities

The employment relationship is a legal notion widely used in countries around the world to refer to the relationship between a person called an “employee” (frequently referred to as a worker”) and an “employer” for whom the “employee” performs work under certain condition in return for remuneration. It is through the employment relationship, however defined, that reciprocal rights and obligation created between the employee and the employer. The employment relationship has been, and continuous to be, the main vehicle through which workers gains access to the right and benefit associated with employment in the area of labour law and social security. It is the key point of reference for determining the nature and extent of the employers’ rights and obligations towards their workers.

The profound changes occurring in the world of work, and particularly in the labour market, have given rise to new forms of relationship which do not always fit within the parameters of the employment relationship. While this has increased flexibility in the labour market, it has also led to a growing number of workers whose employment status is unclear and who are consequently outside the scope of the protection normally associated with an employment relationship. In 2004, the Director-General of the International Labour Office described  the challenge as follows:

The state has a key role to play in creating an enabling institutional framework to balance the need for flexibility for enterprise and security for the workers in meeting the changing demands of a global economy … At the heart of  national policies to meet the social challenges of globalization is a dynamic strategy for managing labour market change.

The legal framework governing the employment relationship is an important component of national policy for managing labour market change taking account of the need for flexibility and security.

The question of the employment relationship has, in one form or another, been on the agenda of the International Conference for over a decade. The following is an overview of the evolution of these discussions culminating in general on discussions in 2003. This chapter also summarize the most  pertinent issues in the national studies conducted in 1999-2001, which formed the basis of report prepared by the Office for the 2003 general discussion and which are comprehensively analyzed and referenced in that report.

Evolution of the discussion at the ILO on the employment relationship

The ILO has taken the employment relationship as the reference point for examining various types of work relationship. In recent years, the Conference has held discussion on self- employed workers, migrant workers, home workers, private employment agency workers, child workers, workers in cooperative and workers in the informal economy and in the fishing sector. It has also addressed work relationships in the course of discussion on social security and maternity protection.

In 1997 and 1998, the Conference examined an item on “contract labour”. The original intention of the Conference discussion on “contract labour” was to protect certain categories of unprotected workers through the adoption of a Convention and a Recommendation, but the proposal to adopt a Convention and a Recommendation failed.

However, at the end of the second discussion in 1998, the Conference adopted a resolution in which it invited the Governing Body of the ILO to place the issue on the agenda of a future session of the Conference with a view to the possible adoption of a Convention supplemented by a Recommendation if such adoption was, according to the normal procedures, considered necessary by that Conference. The Governing Body was also invited to instruct the Director-General:

To hold meetings of experts to examine at least the following issues arising out of the deliberation of the Committee on Contract Labour:

which workers, in the situation that have began to be identified in the Committee, are in need of protection;

appropriate ways in which such workers can be protected, and the possibility of dealing separately with the various situations;

how such workers would be defined, bearing in mind the different legal systems that exist and language  differences.

It is noteworthy that in the various debates mentioned above, delegates from all regions repeatedly alluded to the employment relationship, in its various forms and with different meaning, as a concept familiar to all.

In accordance with the 1998 resolution, a tripartite Meeting of Experts on Workers in situations needing protection was held in Geneva in May 2000. The common statement adopted by the Meeting noted that the global phenomenon of transformation in the nature of work had resulted in situations in which the legal scope of the employment relationship (which determines whether or not workers entitled to be protected by labour legislation) did not accord with the realities of working relationships. This had resulted in a tendency whereby workers who should be protected by labour and employment law were not receiving that protection in fact or law. The scope of regulation of the employment relationship did not accord with reality, which varied from country to country, and within countries, from sector to sector. It was also evident that while some countries had responded by adjusting the scope of the legal regulation of the employment relationship, this had not occurred in all countries.

The common statement also noted that various country studies had greatly increased the pool of available information concerning the employment relationship and the extent to which dependent workers had ceased to be protected by labour and employment legislation. The meeting agreed that all countries should adopt or continue national policy in terms of which they would, at appropriate intervals review and, if appropriate, clarify or adapt the scope of the regulation in line with current employment realities. The review should be conducted in a transparent manner with participation by social partners. The experts further agreed that ILO could play a major role in assisting countries to develop policies to ensure that laws regulating the employment relationship cover workers needing protection.

Further to the resolution adopted by the Conference in 1998, the Office undertook a series of national studies. The objective of the national studies  was to help identify and describe the principal situations in which workers lacked adequate protection, as well as the problems caused by the absence or inadequacy  of protection, and to suggest measures to remedy such situations.

The research undertaken confirmed the universal importance of the idea of the employment relationship, on which labour protection systems are largely based, while highlighting the deficiencies affecting the scope, in terms of persons covered, of the regulations governing this relationship. It also confirmed the extent and repercussions of the problems of lack of workers’ protection.

At the 91^st Session of the Conference in June 2003, a general discussion was held on the scope of employment relationship. During the discussion, many delegates emphasized that the concept of the employment relationship is common to all legal systems and traditions. There are rights and entitlements which exist under labour laws, regulations and collective agreements and which are specific to or linked to workers who work within the framework of an employment relationship. One of the consequences associated with changes in the structure of the labour market, the organization of work and the deficient application of the law is the growing phenomenon of workers who in fact employees but find themselves without the protection of an employment relationship. There was a shared concern among governments, employers and workers to ensure that labour laws and regulations are applied to those who are  in employment relationships and that the wide variety of arrangements under which work is performed by a worker can be put within an appropriate legal framework.

The Conference also recognized that the protection of workers is at the heart of the ILO’s mandate. Within the framework of the ILO’s Decent Work Agenda, all workers, regardless of employment status, should work in conditions of decency and dignity.

The Conference noted that the ILO should envisage the adoption of an international response on this topic. A Recommendation was considered as an appropriate response. The Recommendation should focus on disguised employment relationships and on the need for mechanisms to ensure that persons with an employment relationship have access to the protection they are due at the national level. Such a Recommendation should provide guidance to member states without defining universally the substance of the employment relationship. The Recommendation should be flexible enough to take account of different economic, social, legal and industrial relations traditions and address the gender dimension. Such a Recommendation should not interfere with genuine commercial and independent contracting arrangements. It should promote collective bargaining and social dialogue as a means of finding solutions to the problem at national level and should take into account recent developments in employment relationships.

As definition is a basis for understanding a certain concept, it will begin by defining what a “contract of employment” is. For this purpose and in order to possess a comparative insight on the issue, different kinds of definitions could be brought to the class discussion. Definitions to be found in dictionary and in the different legal instruments such as the Civil Code, Proc. No.64/1975, LP.No.377/2003 and the relevant provisions of the FCSP (Proc. No.515/2007) could be considered. Particularly definitional elements such as; rendering of service, for the benefit and under the direction of the employer, in return for remuneration must be highlighted.

Furthermore, since it is believed that better understanding of a concept will be attained through examining its historical development, historical development of employment law will be briefly discussed. For the purpose of this discussion, development of employment relation under the labour law and the Civil Service will be examined separately as they have their distinct route of development not only in Ethiopia but also internationally.

At this level of the discussion, history of labour movement in the industrial world of the 19^th century will be of significant help. Traditionally labour relation was considered as economic relation and was left to private regulation through contract. The role of the government in such relations was intended to be nothing more or less than enforcement of promises of the parties. Nevertheless, the principle of freedom of contract failed to bring about equitable outcome in employment relations due to the bargaining position of the parties. It should also be underlined that freedom of contract between economic unequals(i.e. capital & labour) will have the effect of perpetuating inequality. As an expression of the failure of the arrangement, organized and disorganized social unrest begun to crop up here and there. Thus the situation called for state intervention and internationally concerted action. The main areas of state intervention in this respect may be gathered from the preamble of the ILO Constitution which is reproduced herein below.

Whereas universal and lasting peace can be established only if it is based upon social justice;

And whereas conditions of labour exist involving such injustice hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled; and an improvement of those conditions is urgently required; as, for example, by the regulation of the hours of work including the establishment of a maximum working day and week, the regulation of the labour supply, the prevention of unemployment, the provision of an adequate living wage, the protection of the worker against sickness, disease and injury arising out of his employment the protection of children, young persons and women, provision for old age and injury, protection of the interests of workers when employed in countries other than their own, recognition of the principle of equal remuneration for work of equal value, recognition of the principle of freedom of association, the organization of vocational and technical education and other measures;

Whereas also the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries;

The High Contracting Parties, moved by sentiments of justice and humanity as well as by the desire to secure the permanent peace of the world, and with a view to attaining the objectives set forth in this Preamble, agree to the following Constitution of the International Labour Organization:

The establishment of the ILO in 1919 and the objectives set out in the Constitution of its establishment will help in understanding the historical development. It will also be important to pin point to the reader that Ethiopia has been a member of the ILO since 1923.

It is also important to highlight the fact that employment law as a branch of law is of relatively recent origin in Ethiopian legal history. For employment law to exist, a free labour capable of freely contracting to render service is necessary. Thus employment law is a phenomenon of industrial era where freedom of contract and free movement of persons are being respected. Such freedom has been obtained with the abolishment of slavery and tenancy. Slavery as a status was legally abolished in Ethiopia, in 1942. Land lord- tenant relationship remained effective until mid-seventies of the 20^th century in Ethiopia.

For the civil service aspect of the historical development, consulting legal documents such as “An Order to provide for the creation and functions of the Imperial Ethiopian Central Personnel Agency” (Order No.23 of 1961) together with the “Regulations issued pursuant to the Central Personnel Agency and Public service order, 1961” (Regulations No.1/62) and Federal Civil Servants’ Proclamation No.262/2002 appears to be very important.

NOTES(Extract from Historical Development of Labour Law in Ethiopia); by Mehari Redae

Labour relations in Ethiopia have been very low and slow in development. The cultural, religious and legal settings have had their respective shares for such an outcome.

Culturally, the Ethiopian society’s attitude towards labour and labourers has been very discouraging. The traditional Ethiopian society despised both trade and manual work. All the remaining occupations excluding priesthood were relegated to members of the population who were thought of as a lower class. Metal work, for instance was left to one group of the population with such a low reputation that nobody dared to mingle with segment of the population.

It was by realizing this cultural attitude and its negative impact to labour development that the then emperor (King Menelik) issued a proclamation in 1908 with the following content:

Let those who insult the worker on account of his labour cease to do so. You, by your insults and insinuations, are about to leave my country without artisans who can even make the plough. Hereafter anyone of you who insults these people is insulting me personally.

This provision might serve as a testimony as to the then prevailing official Imperial position towards labour and labourers was positive. Nevertheless, in a situation where such an attitude is deeply entrenched in society, legal provisions will have little or no impact unless and until they are accompanied by cultural revolution. The latter was the missing item then.

The religious rules as well were unfavourable to industrial activity and industrial development. Although there have been many religions in Ethiopia, the Ethiopian Orthodox Church, which had been a state religion for many years was by far the most influential one in Ethiopian history. Accordingly, orthodox religious holidays which have been strictly observed by the population are non working days and there may be as many as fifteen or more per month.

Legally, though Ethiopia has been a member of the ILO since 1923, slavery had legal protection and was entrenched as a system for long time in Ethiopian history. It is well understood that for labour relations to exist and flourish, there should exist a free labour that is capable and ready to render service in return for wages on the basis of a contractual arrangement. However, in a system where slavery as mode of production is legally recognized, there is no such a free labour that is capable of freely contracting.

It was in 1931 that an attempt to abolish Slavery, through law, was undertaken in Ethiopian history. During this period, emperor Haileselassie issued a proclamation with this purpose in view. The relevant part of the proclamation contained the following: “All slaves who wished to be free could become free by asserting their freedom before a judge”.

It seems fairly obvious that the above cited stipulation cannot claim to have abolished slavery because it did not officially do away with the system. For one thing, it addressed itself only to slaves ‘who wished to be free’ and not to all slaves. Secondly, even for those who wished to be free, the freedom was not automatic and as of right; it rather required appearance before judge to assert freedom. Accessibility of the judges to slaves may also be an issue at the time.

It was only in 1942 that clear governmental commitment to abolish slavery was manifested. At this period, a proclamation which stipulated the abolishment of the status of slavery and which criminalizes possession, sale and transfer of slaves was issued. It is therefore with the doing away with the legal status of slavery that one can speak of labour development in Ethiopia as a freeperson capable of freely contracting has been an essential precondition.

Within the introductory section, it may be appropriate to discuss the sources of employment law. The phrase “sources of law” may mean different under different contexts. Material and formal sources of laws are the most usual ones. Be that as it may, sources of law in this context should be understood to mean “legal instruments which will have impact in regulating employment relations or in resolving employment disputes if and when they arise.” (i.e. formal sources of law). These sources could be categorized into national and international or into public and private instruments. The international ones are mainly Conventions and Recommendations.

International Labour Conventions and Recommendations differ from the point view of their legal character: Conventions are instruments designed to create international obligation for the states which ratify them, while Recommendations are not designed to create obligations but provide guidelines for government action.  At this juncture, mention should be made as to “any international agreement ratified by Ethiopia in an integral part of the law of the land”. (Art.9 (4) FDRE Constitution). As of 2006, Ethiopia ratified 21 ILO Conventions.

The sources of employment law of national origin may be classified into public and private ones.

The public acts include; the FDRE Constitution, the Labour Proclamation together with its amendments, the Federal Civil Service Proclamation and the Regional Civil Service Proclamations of the respective Regions; Pensions’ Proclamation etc. Furthermore, subsidiary instruments such as Regulations of Council of Ministers and Directives of the Ministry of Labour and Social Affairs; Directives of Civil Service Agency and the Regional actors need to be consulted. Due emphasis should be given to the constitutional principles such as the right to association; the right to freedom of movement; the rights of labour; equality and non discrimination and other relevant items of the same document.

Last but by no means least, decisions of the Federal Supreme Court Cassation Bench should be noted as sources of employment as these decisions are binding by virtue of Proclamation No.454/2005.

In this connection, it would be important to note that Labour law is within federal jurisdiction while Civil Service law is within the concurrent jurisdiction in the sense that the federal civil service is within the federal competence while the regional civil service is left to the respective Regions.

The private acts are instruments of private nature but binding as though they are law (Art.1731 (1) Civil Code). Thus, strictly speaking they are not law; all the same they are assimilated to law. These are: Contracts of employment, Collective agreements and Work rules. The first two instruments are bilateral ones while the third one is a unilateral instrument.

Private act as a source of law for the Civil Service does not seem to be applicable. For one thing, the contract of employment between the Civil Servant and his/her employer (i.e. the government office) will be an administrative in nature and public law in branch. Letter of appointment accompanied by job description, rather than a contract of employment, is to be issued to the civil servant by the head or any other authorized official of the government institution. Secondly, as the law now stands, unionization is not yet allowed for employees of the civil service, collective agreement will be an unthinkable instrument as a source of law in this area.

Finally, under this part, the scope of application of employment law will be considered. Within this context, how and why an employee is different from an agent or an independent contractor has to be analyzed. Arts.2512, 2179, 2199 & 2610 of the Civil Code may be of some help towards such comparison. We all may agree that all these three are commitments to render service. It must be admitted, however, that they have significant differences and employment law applies only on employee-employer relationship. Client- Contractor and Principal-Agent relationships are outside of the ambit of employment law. Issues of exclusions should also be considered under this topic.

NOTES(Extracted from “ Simplified Guide to the Ethiopian labour law”, By Mehari Redae)

Determining the scope of application of a legal instrument would enable us to apply it in its appropriate context. It will also help us identify the addressees of the instrument together with their rights and corresponding duties. Therefore, in any analysis of a legal instrument, it is appropriate to determine its scope from the outset. With this purpose in view, the analysis proceeds.

Nature of Environmental Problems

The protection and improvement of the human environment is a major issue which affects the well-being of people and their economic development throughout the world. Thus, a point has been reached in history when we must shape our actions throughout the world to maintain the natural cycle of the environment.[1]

This is because within the environment there is dynamic interrelationship between the living form and physical environment. These relationships can be expressed as a natural cycle which provides a continuous circulation of the essential constituents necessary for life. This cycle mainly operates in a balanced state in an undisturbed natural environment; and as a matter of fact the balanced operation of this natural cycle is a fundamental condition to the continued existence and development of life on earth[2]. Human beings should therefore maintain this balance with nature and act according to the law of nature. Otherwise, man will suffer from the results of his interference[3].

It is this very condition that the World Charter for Nature reiterated. It states that mankind is a part of nature and life depends on the Uninterrupted functioning of natural system which ensures the supply of energy and nutrients[4]. That is, lasting benefits from nature depend upon the maintenance of essential ecological processes and life support systems, and upon the diversity of life forms, which have been placed at jeopardy through excessive exploitation and habitat destruction by man.

At this juncture, it is important to take notice of the fact that the environment, including the human competent, is complex and is not yet completely understood. We are part of that system: our actions affect the system and we are in turn affected by it. In spite of this, we do not have a full understanding either of the system or our interactions with it[5]. This calls for putting in place an early warning system and a system of prioritizing risks, since resources to address risks are always limited; and often the damage to the environment are irreversible or even if reversible can be done only at excessive costs[6]. In other words, many of the damages done to the environment may have long term effects or they may involve important synergism in the environment or may not be effectively reversible[7] such that, the greatest danger is that human kind may set off unchecked degradation that will pass a point of no return, making it impossible to restore a healthy environment[8].

The basis of the emphasis on human acts in environmental protection is, the fact that, we are part of the environment and simultaneously we human beings have a capacity and capability not only to improve but also to destroy and destruct nature[9]. For this reason, if we fail to safeguard the environment from being affected by our activities, there is a fear that[10]:

Large scale changes resulting from burgeoning human activity will, in relatively near future, alter fundamentally the terms of human existence and may even affect the possibility for human survival.

From this stipulation, one can easily infer the fact that environmental danger could possibly jeopardize the very existence of the present generation as well as the future.

The preamble of Tokyo Declaration on Financing Global Environment has succinctly put the inter-relationship and the danger posited in the following manner[11]:

Human future is at risk due to wasteful pattern of production and consumption in industrialized countries and pervasive poverty and population growth in developing countries which are primarily leading to the destruction of the earth’s ecological base.

By implication, the Tokyo Declaration reveals that the current environmental problems are caused by factors related to unsustainable use of natural resources, and unprecedented growth of population, and the cumulative effect of these environmental injuries would undoubtedly all living creatures on earth in jeopardy[12]. So that, environmentalists are warning the world community that we have reached an alarming stage, thus we need to take serious measures of rescuing the quality of our environment to make it last long. In short, protecting and conserving the environment becomes a must case for the purpose of sustaining life on earth successfully now and in the future[13].

Having the above facts, the interaction can be a healthy one, with human kind balancing what he takes from the natural environment with what the environment can afford to provide[14]. Since the dawn of the Industrial Revolution, however, human demands placed upon the earth’s resource have increased dramatically. Although the technological advancements have improved the sustenance capacity of the earth, many of these technologies have also placed added demands on the  earth’s limited resources, thereby bringing us closer to the threshold of the capacity of the earth[15].

Now-a-days, it is clear that the mad rat race among nations over the use of natural sources for development is increasingly jeopardizing the quality of the environment. The craze of these states resulted in over extraction of every bit of natural resources, and this unchecked exploitation of natural resource by man disturbed the delicate ecological balance between living and non-living components of the environment[16]. For this very fact, time has reached when we are facing challenges to our intellect and wisdom for saving the humanity from extinction[17].

To save humanity, therefore, everyone should notice that we human beings are at the heart of the search for sustainable development as our very survival depends on a very narrow range of environmental condition. And to this effect resource withdrawal, processing and re-use of the products have all to be synchronized with the ecological cycles in any development plan[18]. This approach unifies protection of the environment and development programs by formulating the concept of sustainable development in the following manner[19].

In order to achieve sustainable development environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.

This concept underlies the need to develop a holistic understanding of the relationship between the environment and the development process[20]. If not, any social and economic development endeavors cannot continue into the future, at least, for two reasons[21]. First, the malfunctioning of such unregulated actions will result in destroying the environmental conditions necessary for the continuation of the activity. And second, the adverse environmental effects resulting from such malfunctioning will cause massive or unacceptable damage to human health and life, and thereby disrupts the normal way of social interaction, peace and regularity of human life.

To have a full picture of environmental problems, it is also noteworthy to take notice of environmental problems arising apart from development activities, which are deliberate actions aimed at destroying the human being and the environment. One of such deliberate acts is the indiscriminate bombardment of cities, towns and countryside areas in effect which renders the civilian population to a military target of a new form of warfare-environmental warfare[22]. In such a situation the irreparable alteration to the environment may threaten the entire population, and it is tantamount to a crime against humanity, perhaps to a greater extent than genocide which may be limited only to a given ethnic minority in a specified area[23]. To avert this situation, we should not postpone our decision to resolve catastrophic disputes peacefully. If we wait too long, it would become impossible to have any opportunity to reconsider our acts[24]. That is, if we cannot take immediate action, the facts will continue as[25]:

[W]e are experiencing diseases today for hazards we did not control yesterday. What we do not take care of today will be there for our children to handle tomorrow.

When we look at the scope of environmental damage, in the past, pollution and environmental degradation have obtained largely on the local level and hence their effects have been isolated in impact. Given the increasing global scale of environmental degradation and ever increasing volume of pollutants entering the environment, however, their effects are now being felt on regional and global levels[26]. For this very fact, the problems of environmental degradation do concern all countries irrespective of their size, level of development or ideology. This is true because the oceanic world is an interconnected whole[27]. So, no government or society can take the environment for granted and since it is a global problem it can be tackled only with the assistance and cooperation of all[28].

When we bring it under one umbrella, the whole purpose of environmental protection boils down to mean suppressing the unwanted behavior and action of man, and fostering those that would contribute to the maintenance and enhancement of ecological balance to the benefit of the general public, and the continuity and profitability of development activities[29].

Today, environmental problems are serious and imminent threats, which suggest a need for drastic or emergency action[30]. This emanates from the magnitude of man’s impact on his environment which necessitated a full scale reconsideration of the relationship between the environment and development programmes[31]. In other words, the fact that human kind is now at a crossroads, that is, either to overwhelm the planet’s support capabilities or to return matters around and preserve its life giving qualities for future generations, calls for the reorientation of man’s activities with a view not to make the earth a desolate rooming planet[32].

To this effect, therefore, human beings are now being called upon to save the future. The future, it is presumed, lies entirely in their hands; tomorrow can not take thought of itself; it is they, now who have to save tomorrow[33].

The above factual situation of environmental problems which reveal the diffused right of human beings to live in a clean and healthy environment, and the pressing need of public participation to save the environment before it reaches no turning point, calls for the reorientation of the law to accommodate public interest litigation. The need for the reorientation of the law emanates from the fact that traditional litigation is designed in a way to enforce the rights of an individual against another, and not to enforce the diffused basic human rights of the public. In other words, the narrow ambit of locus standi permitted entry only to an aggrieved person and not to any member of public at large acting bonafidely. To have a full fledged justice, therefore, the procedural law should be designed with a leeway to accommodate public interest litigation to enable alert citizens and public interest groups redress public wrongs which remained unremedial under the traditional rules of locus standi.

Pollution to Environment as International, Regional and National Concern

The issue we will be discussing under this subtitle would be whether environmental issues are national or international in their concern. Some environmental problems, for example climate change or depletion of the stratospheric ozone layer, are inherently global in character, and affect all states, not necessarily equally, but at least to the extent that impacts are global and global solutions are required. There are also regional environmental problems like air or water pollution and conservation of migratory animals.

Equally there could be also domestic or national problems as well.

There is thus no single sense in which an environmental issue can be described as international, regional or national; rather it could be global, regional, trans-boundary, domestic, or a combination of all or any of these. What must be appreciated, however, is that the law governing these rather different contexts is likely itself to differ, both in the content of any applicable rules, and in the form they take.

Discussion Questions

Discuss why the protection of the environment is the concern of global, regional, trans-boundary, domestic, or a combination of all or any of these concerns by giving relevant examples? Discuss the following Quotation in line with the above subtitle?

“A communications gap has kept environmental, population, and development assistance groups apart for too long, preventing us from being aware of our common interest and realizing our combined power. Fortunately, the gap is closing. We now know that what unites us is vastly more important than what divides us.

We recognize that poverty, environmental degradation and population growth are inextricably related and that none of these fundamental problems can be successfully addressed in isolation. We will succeed or fail together.

Arriving at a commonly accepted definition of sustainable development remains a challenge for all the actors in the development process.”

‘Making common cause’

The Rationale for the Protection of the Environment

The Question of the need to protect the environment exploded in the late 1960’s. Since then it has increasingly become of crucial importance. At present states, international organizations, and individuals feel that it is imperative to take action to preserve the natural and human environment or at least avert its worsening. Before, the problem was not felt for three main reasons:[34]

First, industrial developments had not spawned pollution and damage to the environment on a very large scale. Second, States still took a traditional approach to their international dealings: they looked upon them as relations between sovereign entities, each pursuing its self-interest, each eager to take care of its economic, political, and ideological concerns, each reluctant to interfere with other states’ management of their space and resources, and unmindful of general or community amenities. Third, public opinion was not yet sensitive to the potential dangers of industrial and military developments to a healthy environment.

Of course, the question of why we protect the environment is very difficult to answer. Its answer depends on the context. Accordingly, there could be ethical, aesthetic, or symbolic reasons for protecting the environment as opposed to economic and health reasons. However, almost all justifications for environmental protection are predominantly and in some sense anthropocentric.

This is true especially of the 1972 Stockholm Conference, which focused explicitly on protecting ‘the human environment’ and proclaimed[35]:

Man is both creature and molder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, Spiritual, moral and social growth…

Likewise, the 1992 Rio Declaration on Environment and Development asserts that ‘Human beings are at the center of concerns for sustainable development’.

The preamble to the 1992 Convention on Biological Diversity evinces the complex mixture of objectives for the protection of the environment, which characterizes much of contemporary international environmental law: Conscious of the intrinsic value of biodiversity and of the ecological, social, economic, scientific, educational, cultural, recreational and aesthetic value of biological diversity and its components, conscious also of the importance of biological diversity for evolution and for maintaining life-sustaining systems of the biosphere (holistic approach to environment protection).

The emergence of individual environmental rights has the strongest anthropocentric motivation, most notable in attempts to develop a new human right to a decent environment. Some advocates assert that such a right is indispensable for the enjoyment of human rights freedoms,[36] but they usually fail to explain how competing environmental, economic, and social priorities can be accommodated in what necessarily becomes a value judgment about what we value most.

A more explicit relativism characterizes most environmental protection measures aimed at protecting human health or safety, including those in which the acceptance of some responsibility for the welfare of future generations is a prominent feature, such as the conventions on nuclear radiation risks or climate change.

Nature of Environmental Damages

Problems in Defining Environmental Damages

Defining terms such as environment and environmental damages is important because it is one of the methods used by the legislatures to determine the regime and range of liability in question[37]. In this respect, it means, the broader the definition of damage to the environment is the wider the scope of the compensable damage.

In the case of the Ethiopian legal system, environment is defined to mean[38]:

the totality of all materials whether in their natural state or modified or changed by humans, their external spaces and the interactions which affect 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, and aesthetics.

Furthermore, damage to the environment is understood to mean[39]:

any condition which is hazardous or potentially hazardous to human health, safety or welfare or to living things created by altering any physical, radioactive, thermal, chemical, biological or other property of any part of the environment in contravention of any condition, limitation or restriction under any relevant law.

From the above legal provision, we can infer the fact that damage to the environment does not only cover damage to the environment per se, but it also covers damage to private property and consequential losses that arise there from or in connection with. In other words, damage to the environment has two facets, that is, private nuisance and public nuisance.

Private nuisance is defined as unlawful and continuing interference with a person’s use or enjoyment of land and possibly, physical damage to that property. whereas, public nuisance is a crime as well as a tort, and for any action to lie it must interfere with the use and enjoyment of property by the public in general or by a sufficiently large number of public[40].

Accordingly, a proper classification of damage to the environment is imperative because there is a fundamental difference between the environment-related type of damages [private nuisance], on the one hand, and damage to the environment per se [public nuisance] on the other hand in relation to the scope of the traditional tort law.

In the traditional tort law, it is generally held that, an individual acting privately can not initiate a legal action for a purely public nuisance, unless the damage he incurred is in some way distinguished from that sustained by other members of the general public[41]. In other words, a private individual can have standing only when he has suffered damage over and above that suffered by the public at large, so much so that the scope of the traditional tort law covers only the environment related type of damages which could result in personal injury or pure economic loss.

For the above reason, when damage is done to the environment per se, it does not fit properly in the traditional legal concept of tort law. To have better understanding, this inference could be further consolidated by the following reasons[42]:

First, by the fact that damage to the environment per se affects collective interests rather than individual interests, and incidents that affect such collective interests do not generally speaking, give rise to legal right of standing. That is, the traditional liability rules mainly concern in the protection of individual interests and, in cases of damage to the environment per se, these interests are often only indirectly affected [if at all].

The second reason is the very nature of damage to the environment per se. That is, since damage to the environment per se is a separate category of damage, it is not entirely clear if damage to the environment per se should be classified as material or non-material damage [pecuniary or non-pecuniary loss]. And, because under the traditional tort law only certain types of damages are compensable, it becomes questionable whether all aspects of damage to the environment per se fit in the tort law system.

To supplement the gap in the law, which emanate from the limited scope of application of the traditional tort law, it is, therefore, a pressing need to incorporate a liberalized standing and a modern concept of tort law[43]. Corollary, to have a liberalized standing with a legal penetration, forming a new and additional category of damage to the environment per se in the tort law is a prerequisite as it is provided in the following section.

Damages Forming New and Additional Category of Damage to the Environment

To achieve a more comprehensives environmental protection a new category of damage should be introduced in addition to and separate from property damage, personal injury and pure economic loss. This category extends traditional tort law to cover damages to the environment per se, that is, it would extend its scope to encompass natural resources that have direct or indirect interest to the public at large[44].

Extending the scope of the liability regime to include both the publicly owned and publicly possessed natural resources, and the publicly owned but privately possessed natural resources that have a particular value to the public has the advantage that the environment is valued as a unity party that is independent from property interests.

In the case of publicly owned but privately possessed natural resources that have a particular value to the public, standing is proposed to be liberalized for the fact that they may support threatened and endangered species, and provide other services to man and nature[45].

Other specific reasons for the liberalization of standing to include certain publicly owned but privately possessed natural resources are the following:

The first reason is the plaintiffs’ reluctance to take care about the pollution. In some instances they themselves may also be polluting, and not wish to initiate legal action. They may be economically dependent on their polluting neighbor. And, of course, when they discount the value of winning by the costs of bringing suit and the chances of success, the action may not seem worth undertaking[46]. Consider, for example, that while the polluter might be injuring hundred downstream riparian of ten thousand dollar a year in the aggregate, each riparian separately might be suffering injury only to the extent of a hundred dollars-possibly not enough for any one of them to want to press suit by himself, or even to go to the trouble and cost of securing co-plaintiffs to make it worth everyone’s will. This hesitance will be especially likely when the potential plaintiffs consider the burdens the law puts in their way. Furthermore, it becomes troublesome, in that, as a general principle, the traditional tort law does not allow someone who suffered a loss to take into consideration the interest of the general public which might be in the damaged object[47]. The same problem emerges when the private possessor of the public owned natural resource caused damage to it. In this respect, if the damage is not repaired duly, it may have consequence on natural resources that directly or indirectly depend for their survival and productivity on that resource which sustained damage[48].

Second, the merit of the case is decided only to the interest of some one who is competent and willing to establish legal standing. In this case, the system protects only the rights of the property owning human without giving due consideration to public interest, and intrinsic natural values. So, strict adherence to the traditional tort law and traditional standing denies cognizance to the intrinsic value of the environment, and the public interest aspiration[49].

Third, under traditional tort law, even if a plaintiff wins a pollution suit for damages, no money goes to the benefit of the environment itself to repair its damages. This omission has the effect that, at most, the law confronts a polluter with what it takes to make the plaintiff riparian whole; this may be far less than the damage to the environment, so that it may not have enough reparcation to force the polluter to desist[50]. For example, it is easy to imagine a polluter whose activities damage a stream to the extent of ten thousand dollars annually, although the aggregate damage to all the riparian plaintiffs who come in to the suit is only three thousand dollars. If three thousand dollars is less than the cost to the polluter of shutting down, or making the requisite technological changes, he might prefer to pay off the damages [that is, the legally cognizable damages] and continue to pollute the stream. Similarly, even if the jurisdiction issues an injunction at the plaintiff’s behest, there is nothing to stop the plaintiffs from selling out the natural resource, which is, agreeing to dissolve or not enforce the injunction at some price- somewhere between the plaintiffs’ damage and defendant’s next best economic alternative. In this case the defendant makes its peace with the plaintiff as best it can. What is meant is a peace between them, and not amongst them and the natural resource.

Forth, the measure of damage is another reason for including certain publicly owned but privately possessed natural resources that have ecological value, and publicly owned natural resources. Application of the traditional measure of damages rule may prevent full restoration of the damaged natural resources[51]. As a general rule, under the traditional tort law the costs of such measures are not to exceed the lost market value of the property. This may have the effect that the natural resources which lack a direct market value are not fully restored. For the above reasons, the benefit of the modern approach of tort law and liberalized standing is that the environment is valued as a unity and that the protection and conservation of natural resources does not stop at the border of private property.

In general, damage to the publicly owned and publicly possessed natural resources, and to publicly owned but privately possessed natural resources that have a particular value to the public, is damage of a collective nature and because no concrete individual interests are harmed, damages for this type of injury are in principle not recoverable under the traditional tort law. For this reason, to address the gap, the introduction of public interest litigation which can be initiated by public spirited persons or social service minded members of the public acting bonafidely, not for personal gain or out of political motivation or other oblique consideration, is a pressing need. Furthermore, the law becomes full-fledged where special laws not only specifically provide standing to alert citizens and public interest groups, but also when they bestow them a cause of action to claim compensation for such damage. That is, forming a new and additional category of damage to the environment per se in the tort law is a corollary to the liberalization of standing.

---

[1] H.M. Dix, Environmental Pollution, (Published in Chricheter New York Bribana Toronto, 1981), P.8.

[2] Id.

[3] Environment and Heritage, Professional and Topical Issues I and II, Module 1, Distance Education Division, St. Mary's College, 2005, P.81.

[4] The World Charter for Nature, Adopted and Solemnly Proclaimed by the United Nations General Assembly, On 28 Oct. 1982.

[5] J. Weiss, Environmental Change and International Law: New Challenges and Dimensions, (United Nations University Press, 1988), P.15.

[6] The Environmental Policy of Ethiopia, April 1997, 2.3 (f).

[7] Weiss, Supra note 5, P. 17.

[8] Conway W. Henderson, International Relations Conflict and Cooperation at the Turn of the 21^st Century, (Published by the MC Graw-Hill Companies, Inc., 1998), P. 431.

[9] Ethiopian Wildlife and Natural History Society, Addis Ababa Environmental Education Project Training Manual, March 2002, P. 124.

[10] Lawrence John, The Global Environment, (Published in Mangrove       Law Institution, 1971), P.33.

[11] Tokyo Declaration on Financing Global Environment and Development, Held in Tokyo from 15 to 17 April 1992.

[12] Mekete Tekle, The Right to a Healthy Environment: International and National Perspectives, Nairobi, April 1995, P.68.

[13] Module, Supra note 3, P77.

[14] Henderson, supra note 8, P. 430.

[15] Peter S. Menell and Richard B. Stewart, Environmental Law and Policy, (Published by Little, Brown and Company, 1994). P.11.

[16] P.D. Sharma, Ecology and Environment, (Published by Rakesh Kumar Rastogi, 1998). P.415.

[17] Id., P. 389.

[18] Id.

[19] The Rio Declaration on Environment and Development, Held at Rio de Janeiro from 3 to 14 June 1992, Principle 4.

[20] Sharma, Supra note 16, P. 331.

[21] Manual, supra note 9, P. 124.

[22] Arthur Westing, Environmental Warfare in Environmental Law, (Bol.15, 1985), P. 645, Cited in Mekete Tekle's Paper, Supra note 12.

[23] Brown Weiss, The Contribution of Human Rights Law to Environmental Protection with special Reference to Global Environmental Change, (Published in Cancado Tridade, 1988), P. 261.

[24] Raymond F. Dashman, Environmental Conservation, (Third Edition, Printed in the United States of America, 1998), P.3.

[25] B. Hydervali, Environmental Law: Some Trends, Vol. 1, P. 73.

[26] Weiss, Supra note 5, P. 22.

[27] P.S. Jaswal and Nishtha Jaswal, Environmental Law: Environmental Protection, Sustainable Development and the Law, (Published by Allahabad law agency, 1999) P.1.

[28] Id., P.  101.

[29] Manual, Supra note 9, P. 124.

[30] Mekete, supra note 12, P. 68

[31] Id.

[32] Henderson, Supra note 8, P. 430

[33] Menell and Stewart, Supra note 15, P. 14.

[34] Antonio Cassese, International Law (Oxford: Oxford University Press, 2001), at 375.

[35] The Preamble of the United Nations Declaration on Human Environment, Adopted in Stockholm in June 1972

[36]E.g. Pathak, in Brown Weiss (ed.), Environmental Change and International Law, (Tokyo, 1993), Ch.8.

[37] Edward H.P. Brans, Liability for Damage to Public Natural Resources: Standing, Damage and Damage Assessment, (Published by Kluwer Law Int., 2001) P.9.

[38] Environmental Pollution Control Proclamation, Neg. Gaz., Proclamation No. 300/2002, 9^th Year No.12, Art. 2 (6).

[39] Id., Art. 2 (12).

[40] Paul Denham, Law a Modern Introduction, (4^th ed., Printed in Great Britain for Hodder and Stoughton Education, 1999), P. 391.

[41] J. Gordon Arbuckle and Nancy S. Bryson, Environmental Law Hand Book, (9^th ed, Published by Government Institutes, Inc, 1987), P.10

[42] Brans, Supra note 34, P.13.

[43] Arbuckled and Bryson, Supra note 38, P. 10.

[44] Brans, Supra note 34, P. 14.

[45] Id., P. 12.

[46] Christopher Stone, "Should Trees Have Standing? Towards Legal Rights for Natural Objects", (Southern California Press, 1972) P. 460

[47] Brans, Supra note 34, P. 13.

[48] Id., P. 14.

[49] Stone, Supra note 43, P. 46.

[50] Id., P. 462.

[51] Brans, Supra note 34, P. 14.

The Sources of Environmental Law

Environmental law, being a relatively new field, is largely contained in written texts, although some common law principles and relevant and customary international law is emerging. Governments protect the environment on the basis of their various constitutional and statutory powers to promote the general welfare, regulate commerce and manage public lands, air and water. National authorities may accept additional duties to protect the environment by entering into bilateral and multilateral treaties containing specific obligations. Promulgation of regulations and permits by administrative authorities is another important source of environmental law. Reporting, monitoring and civil and/or criminal actions to enforce environmental law are critical components of environmental law systems. Some constitutions also contain reference to environmental rights or duties, making these constitutional provisions and their interpretation and application another potentially important source of environmental law. Litigation enforces the laws and regulations by civil or criminal actions. If a constitution contains a right to a specified environmental standard, the provision must be interpreted and applied. Issues may also arise as to the appropriate remedy, which constitutions usually do not specify. Besides defining obligations for regulated entities, statutory provisions may allow individuals to bring suit against an administrative body that abuses its discretion or fails to comply with its mandate, and in some circumstances allow for direct citizen action against the polluters themselves.

Sources of National Law

The range of subjects that potentially involve environmental issues has a breadth that extends across virtually the entire field of legal regulation. For example:

• Antiquities laws may prohibit looting or unauthorized excavation of protected archaeological or natural sites.

• Regulation of agricultural activities may involve issues of the quality and quantity of water use, as well as limiting recourse to pesticides and fertilizers.

• Public health laws can regulate spraying toxics to eliminate disease vectors such as mosquitoes or raise questions about the safety of vaccines.

• Land use regulation and public trust doctrines may be used for environmental protection.

• Coastal zone management, fisheries and forestry law seek to conserve the resources they regulate.

• Mining and energy laws may regulate the emissions of greenhouse gases and other air pollutants.

• Regulation of industrial activities may establish restrictions on emissions and effluent from industrial operations.

Some environmental cases appear at first glance as consumer protection suits against the manufacturers or sellers of hazardous products. Other cases involve efforts to obtain information about environmental conditions or present actions against government officials and agencies that allegedly have failed to enforce the law. These many topics related to environmental law are regulated by various sources of national law.

A. Constitutional Law

On the national level, many constitutions now contain provisions establishing environmental rights, or set forth governmental duties to protect the environment and the state’s natural resources. More than 100 constitutions refer to a right to a clean and healthy environment, impose a duty on the state to prevent environmental harm, or mention the protection of the environment or natural resources. At the same time, references to constitutional environmental rights raise difficult questions of justiciability, remedies, and the scope and content of such rights. It remains to be seen what role constitutional environmental rights might play alongside common law, statutory, and regulatory means for protection of the environment.

Among states of Latin America, Argentina deems the right to environment a subjective right entitling any person to initiate an action for environmental protection. In a case a court reiterated that [i]:

The right to live in a healthy and balanced environment is a fundamental attribute of people. Any aggression to the environment ends up becoming a threat to life itself and to the psychological and physical integrity of the person.

Even where the right to a healthy environment is not expressly provided, other constitutional rights are being interpreted and enforced by courts in an environmental context. The Supreme Court of India was one of the first courts to develop the concept of the right to a healthy environment as part of the right to life guaranteed by the constitution[ii]. In a subsequent case, the Court observed that the “right to life guaranteed by article 21 includes the right of enjoyment of pollution-free water and air for full enjoyment of life.”[iii]

 

B. Environmental Legislation

Most environmental cases probably appear before judges as part of an effort to enforce statutory or administrative law or as an appeal from administrative decisions, such as denial of a permit or an order to halt emissions.

Legislative texts often establish general environmental policy, supplemented by specific laws and administrative regulations. Broad frameworks of environmental statutes have been adopted in many different countries.

These statutes use common techniques and procedures of environmental protection, including environmental impact and risk assessment, prior licensing, and emission standards. At the same time, they often respond to specific environmental concerns in the particular country, such as the safety and environmental consequences of nuclear power plants, large dams, or extractive industries like oil or coal. In most countries environmental legislation is supplemented and given greater specificity in administrative regulations.

In addition to general framework laws, national laws often regulate a single environmental milieu, or “medium”, e.g. water, air, soil, or biological diversity, due to the particular environmental problems facing a given area, political or economic priorities, or the ease of achieving consensus on a specific environmental issue. While such media-specific legislation can often deal more thoroughly with a particular sector than framework legislation, one difficulty with such medium-by-medium regulation is that it can sometimes overlook the interrelated and interdependent nature of the environment. For judges, such laws may present problems of reconciling divergent requirements or establishing priorities among the competing laws. One means to address this is sectoral legislation, which simultaneously addresses all environmental impacts from a particular economic sector, e.g. chemicals or agriculture.

Promulgation of standards for various pollutants is often a critical component of the legal framework for environmental protection. Standards may be expressed in terms of ambient standards, which are often health based and normally embody broad objectives, and performance standards or technology-based standards to achieve those goals. Countries may use permit systems to elaborate the application of broad standards to specific facilities.

Increasingly, as governments are elaborating their legislative and regulatory treatment of key sectors and pollution sources, they are also moving towards a more comprehensive approach to environmental protection that seeks to integrate pollution prevention and control, i.e. protection against pollution of all natural systems necessary to support the biosphere. The focus of “integrated pollution prevention and control” is on eliminating or at least reducing the input of each polluting substance, noting its origin and geographic target. Integrated pollution prevention and control aspires to a “cradle to grave” approach that considers the whole life cycle of substances and products, anticipates the effects of substances and activities on all environmental media, minimizes the quantity and harmfulness of waste, uses a single method such as risk assessment for estimating and comparing environmental problems, and involves complementary use of objectives and limits.

 

C. Administrative Regulations

Legislation on environmental matters often delegates to administrative agencies regulatory powers, including rule-making, standard-setting and enforcement, to achieve the legislative mandate. In order to achieve environmental protection, many administrative agencies and officers have new powers to obtain information and a wide range of civil enforcement options from orders to injunctions. In many instances citizens have been granted the right to initiate lawsuits to obtain information about the environment or participate in decision making, as well as enforce environmental laws and regulations, including suits against government officials who fail to perform their duties properly. As a consequence, courts and judges increasingly exercise oversight of administrative agencies.

In permit or licensing proceedings, the court is typically asked to determine whether an administrative agency or governing body’s licensing decision was consistent with the legal requirements. Frequently, in assessing the consistency of agency action with legal requirements, courts will confine their review to the administrative record of decision – that body of information and facts that was before the agency at the time the decision was made. A court may need to reject an administrative decision by an administrative agency or governing body if it determines that the law has been applied in an arbitrary manner or one that infringes basic rights.

D. Industry Standards and Codes of Conduct

A growing number of guidelines or codes of conduct have been developed within industry, including the World Industry Council for the Environment, the FAO International Code of Conduct on the Distribution and Use of Pesticides, the Responsible Care Initiative of the Chemical Manufacturers Association, the CERES/Valdez Principles, the ICC Business Charter on Sustainable Development, and the Royal Dutch/Shell Group Statement of General Business Principles. Such private regulation may constrain behavior by exercising a moral or practical (sanctioning) influence. Litigants may argue that breach of such codes or industry standards may be evidence of malpractice or negligence, in an effort to deploy a relatively inexpensive means of evaluating conduct in case of a dispute. The 1990 Valdez Principles were adopted by the Coalition for Environmentally Responsible Economies, a group of investors and environmental organizations. The intent was to create corporate self-governance “that will maintain business practices consistent with the goals of sustaining our fragile environment for future generations, within a culture that respects all life and honors its independence.”

With the advent of globalization, international organizations have devoted attention to drafting codes that apply to multinational enterprises. The UN Sub-Commission on Human Rights approved Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, urging that every effort be made so that they become generally known and respected. Although primarily concerned with human rights, the Norms contain a paragraph on corporate responsibilities in the area of environmental protection[iv]:

Transnational corporations and other business enterprises shall carry out their activities in accordance with national laws, regulations, administrative practices and policies relating to the preservation of the environment of the countries in which they operate, as well as in accordance with relevant international agreements, principles, objectives, responsibilities and standards with regard to the environment as well as human rights, public health and safety, bioethics and the precautionary principle, and shall generally conduct their activities in a manner contributing to the wider goal of sustainable development.

 

International Law

The relationship between national law and international law varies considerably from one legal system to another. International law is considered the supreme body of law by international tribunals and in international relations among states. Thus, a state may not invoke a provision of its national law to excuse its violation of international law. The law of state responsibility provides that each breach of an international obligation attributable to a state automatically gives rise to a duty to cease the breach and make reparation for any injury caused, irrespective of national law. Within states, international law may be legally binding and applied by courts as a result of one or more means that are usually specified in the constitution. Legal doctrine has developed two theories known as monism and dualism in an attempt to explain and classify national practice, but the reality is more complex than the theory. Monism posits a unified body of rules, and since international law is the most complete expression of unified law, it automatically forms part of this body of rules and is hierarchically superior to other law. Dualism sees separate legal orders and looks to each jurisdiction to determine the sources of law and their hierarchy.

In general, the theory of monism and dualism is most relevant to customary (or law not created through written international agreement) international law and even then in limited fashion. Some legal systems require that customary international law be transposed into national law through legislation or executive order before it becomes the law of the land. Other legal systems view international law as automatically part of the legal order and enforceable by judges without legislative action.

The constitutions of Italy, Germany and the Netherlands all have constitutional provisions expressly stipulating that rules of general (or customary) international law are part of the municipal law of the state and enjoys precedence over domestic legislation. Most common law countries consider customary international law to be part of the common law and automatically binding as national law, following Blackstone (“the law of nations, wherever any problem arises which is properly the object of its jurisdiction, is here adopted in its full extent by the common law and is held to be part of the law of the land”).

The position of treaties in national law varies even more; some constitutions specify that ratified treaties are automatically the law of the land and must be applied by judges in cases where an issue concerning them arises. Other states, like the United Kingdom, require that a treaty be incorporated by legislation before the judiciary may apply the agreement. English courts have consistently held that a treaty concluded by the UK does not become part of the municipal law except and insofar as it is made so by parliament. Yet a third group of states, like the United States, distinguishes self-executing treaties which judges may apply from non-self executing treaties that require legislative action before judges may enforce them.

When international law has been incorporated and made binding, it may rank at the level of constitutional law or be superior, equal or inferior to legislation, according to the hierarchy of legal sources, generally stipulated in the constitution.

The extent to which norms arising from international law are justiceable in national courts thus necessarily depends on the manner in which these norms are incorporated in the constitutions as well as on the legal system and jurisprudence of each country. Where international law has been incorporated into the national legal system, judges apply the norms and standards when presented with them in an appropriate case[v].

In some instances, the parties may disagree about whether or not a given international norm in fact constitutes law. This may be particularly true with respect to questions of customary law, which requires evidence of consistent state practice, followed in the belief that it is legally required. In such circumstances, the judge will need to make a decision regarding the existence of the purported norm. Precedent exists in several jurisdictions finding particular norms to constitute customary international law[vi].

Where international law is not binding as part of domestic law, it may still be considered persuasive in interpreting constitutional or statutory provisions, as may the law of other countries or even the views of commentators. The jurisprudence of international tribunals also can be considered in this context. Judges may also find persuasive the law of other nations, especially those whose legal systems are similar to theirs. In Andhra Pradesh Pollution Control Board-II v. Prof. M.V. Nayudu & Others [2001] 4 LRI 657, Sup. Ct. India, the Court referred to the Declaration of the United Nations Water Conference, the International Covenants on Civil and Political and Economic, Social and Cultural Rights, and the Rio Declaration on Environment and Development as persuasive authority in implying a right of access to drinking water as part of the right to life in the Indian Constitution. The Court also made reference to jurisprudence of the European Court of Justice, the European Court of Human Rights and the Inter-American Commission on Human Rights, as well as decisions of national courts of the Philippines, Colombia and South Africa. On occasion, courts have looked to treaties for the meaning of undefined terms in national law. In Ramiah and Autard v. Minister of the Environment and Quality of Life (Mar. 7, 1997), the Mauritius Environment Appeal Tribunal looked to the Ramsar Convention for a definition of wetlands, although the convention had not yet been ratified by Mauritius. The Ministry of Environment agreed that the Convention provided guidance on the issue.

A court may also take judicial notice of studies done by international organizations as evidence of environmental damage. In Pedro Flores y Otros v Corporation del Cobre (CODELCO), a Chilean court of appeals referred to a UNEP study in finding that the coastline in question was one of the most seriously polluted around the Pacific Ocean. Pedro Flores y Otros v. Corporation del Cobre (CODELCO), Corte de Appelaciones (June 23, 1988), Rol 12.753.FS641, aff’d Sup. Ct. Chile (ordering disclosure of information, an expert report on the coastline, and an injunction to prevent further pollution).

Some courts have adopted a rule of interpretation that avoids placing the state in breach of a treaty or rule of customary international law, holding that national law should be interpreted and applied in conformity with the state’s international obligations. Thus, for example, United States courts adhere to the “Charming Betsy” rule, named after the case in which the Supreme Court announced that courts must interpret and apply statutes consistent with international law, unless it unmistakably appears on the face of a statute that Congress intends to modify or reject an international obligation. Murray v. Charming Betsy, 6 U.S. (2 Cranch) 64 (1804). The French Conseil d’Etat also interprets and applies national law in the light of international law. In a case concerning the International Convention on Trade in Endangered Species, the Conseil upheld national law when it found that the Convention clearly permitted the state to adopt stricter measures than those in the Convention. Conseil d’Etat francais, 8 juin 1990, Societe DACO, RJE, 1991/2, p. 236.

 

The Law Making Process: National and International Perspective

The Law Making Process of Environmental Law in Ethiopia

A very important point for assessing environmental law (both at regional and International level) is a clear understanding of the law making process from which it derives. Accordingly, for the national environmental law, there is national parliament which is endowed by the constitution of the country with the power to legislate laws which could be relevant to the environment. Considering the structure of the government of the country at hand there could also be Regional State Councils which are endowed with the same power. Depending on the case there could also be a possibility for courts to make laws. To this effect, this time, as a base for judicial activism, we do have indicative article under Proclamation No 454/2005 which stipulates:

Interpretation of low by the Federal Supreme Court rendered by the cassation division with no less than five judges shall be binding on federal as well as regional courts at all levels. The cassation division may, however, render a different legal interpretation some other time.

To exemplify the above mentioned fact let us cite a provision for discussion from the Constitution of the Federal Democratic Republic of Ethiopia. The constitution under Art. 51(5) stipulates that[vii]:

It shall enact laws for the utilization and conservation of land and other natural resources, historical sites and objects.

Art. 52 of the same constitution that talks about the Powers and Functions of States in Sub-Article 2(d) also prescribes as follows:

To administer Land and other natural resources in accordance with Federal laws

Discussion Questions

At this point, in line with Art. 52 Sub-Art.2 (d) you are invited to discuss the meaning of the word “to administer.” What does the word exactly mean?

Does it also include legislating laws? Are there any domestic institutions established by law for the protection of the environment?  Evaluate their contribution in the protection of the environment?

The Law Making Process of International Environmental Law

Concerning International Environmental Law there is no international legislature, comparable to the national parliament, but there are generally accepted sources from which international law derives, and a variety of international processes through which new international law is made or existing law changed[viii]. Much of international environmental law is the product of an essentially legislative process involving the interplay of international organizations, conferences, diplomacy, codification and progressive development, and international courts, and a relatively subtle interplay of treaties, non-binding declarations or resolutions, and customary international law[ix]. Three features have helped to make this law making process both inclusive and relatively rapid[x].

First, international institutions, including the UN and its specialized and regional agencies and programmes, have played a leading role in setting law-making agendas and providing negotiating forums and expertise.

Secondly, following the model of the 3^rd UN conference on the law of the sea, the use of consensus negotiating procedures and package deal diplomacy has created a real potential for securing universality and general acceptance of negotiated texts. In a world of nearly two hundred states with disparate interests, and particularly sharp differences on environmental issues between developed and developing states, such techniques have been essential when dealing with global environmental problems. The 1992 Rio Conference on Environment and Development and the negotiation of the conventions on Climate Change and Ozone depletion illustrate particularly well the importance of a process which is capable of securing universal, or near universal, participation and support.

Thirdly, the use of frame work treaties, with regular meetings of the parties, has given the process, at least in its treaty form, a dynamic character, allowing successive protocols, annexes, and related agreements to be negotiated, adding to or revising the initial treaty. These treaties, together with the institutions they create, have become in effect regulatory regimes. They provide a basis for further, progressive action to be taken as scientific knowledge expands and as regulatory priorities evolve or change. As a result, what may begin as a very bare framework treaty, such as the Ozone Convention, could become a complex system of detailed law with its own machinery for ensuring compliance and implementation of the law.

Above, all these processes are political, involving law-making primarily diplomatic means rather than codification and progressive development by legal experts, although codification and judicial decisions do play a part in affirming the status of customary rules and general principles, leading in some cases to modest evolution in international law. But it is the political process referred to above which represent a real vehicle for law making, which evidently had wide appeal to international community. Moreover, even where, as in the Stockholm and Rio Declarations, the instruments adopted are not formally binding on states, they have in many cases contributed to the development of consistent state practice, or provided evidence of existing law, or of the law-making intention which is necessary for the evolution of new customary international law, or have led to the negotiation of binding treaty commitments.[xi]

Discussion Questions

Are there any international institutions in charge of the protection of the environment? How do you evaluate their effectiveness in protecting the environment? How do you compare them with that of domestic institutions in their effectiveness?

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[i] Available at www.eldial.com, Irazu Margarita v. Copetro S.A., Camara Civily Comercial de la Plata, Ruling

of 10 May 1993

[ii] Bandhua Mukti Morcha v. Union of India, 3 SCC 161 (1984) and Charan Lal Sahu v. Union of India, AIR

1990 SC 1480 (1991).

[iii] Subhash Kumar v. State of Bihar, AIR 1991 SC 420, 1991 (1) SCC 598.

[iv] The UN Sub-Commission on Human Rights,  E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 12, 2003)

[v] Raul Arturo Rincon Ardila v. Republic of Colombia, Constitutional Court, Apr. 9, 1996 (applying the

Biodiversity Convention, ILO Convention 169 on Indigenous Peoples and GATT’s TRIPs Agreement).

[vi] Vellore Citizens Welfare Forum v. Union of India, [1996] AIR SC 2715

[vii] Supra note 5, Art. 51(5).

[viii] P.W. Birnie & A.E. Boyle, International Law and The Environment (2^nd Edition Oxford University Press, at 10).

[ix] Ibid.

[x] Ibid.

[xi] Ibid.