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Home , Environmental justice, Polluter pays principle

A Handbook for Afghan Judges

United Nations Environment Programme This publication was funded with the generous support of the and the Global Environment Facility.

First published in Kabul in 2009 by the United Nations Environment Programme. Copyright © 2009, United Nations Environment Programme.

UNEP is committed to facilitating sound management and utilization, and to practical peace- making processes where these resources are threatened by conflict.

This publication may be reproduced in whole or in part and in any form for educational or non-profit purposes without special permission from the copyright holder, provided acknowledgement of the source is made. UNEP would appreciate receiving a copy of any publication that uses this publication as a source. No use of this publication may be made for resale or for any other commercial purpose whatsoever without prior permission in writing from the United Nations Environment Programme.

DISCLAIMER The contents of this report do not necessarily reflect the views of UNEP, or contributory organizations. The designations employed and the presentations do not imply the expressions of any opinion whatsoever on the part of UNEP or contributory organizations concerning the legal status of any country, territory, city or area or its authority, or concerning the delimitation of its frontiers or boundaries. Table of contents

Part A: General Framework for Environmental Law 4

1 What is Environmental Law? 4 1.1 The meaning of the term “environment”...... 5 1.2 Afghanistan’s environmental context...... 5 1.3 The foundations of in Islam...... 5 1.4 The sources of environmental law...... 7

2 Basic principles of environmental protection 12 2.1 Prevention principle...... 13 2.2 ...... 14 2.3 ...... 14 2.4 Environmental and equity...... 15

3 Environmental rights 16 3.1 Right of access to information...... 16 3.2 ...... 17 3.3 Access to justice...... 17 3.4 Right to environmental quality...... 18

4 Common legal mechanisms of environmental protection 18 4.1 Prohibiting and restricting activities and substances...... 19 4.2 Product and process standards...... 19 4.3 Licenses and permits...... 21 4.4 Prior informed consent...... 22 4.5 Environmental impact assessment...... 22 4.6 regulation...... 23

5 Litigation 23 5.1 Jurisdiction...... 24 5.2 Pre-trial issues...... 25 5.3 Trials...... 27

6 Remedies and enforcement 29 6.1 Injunctions...... 30 6.2 Damages...... 31 6.3 Restitution and remediation...... 32 6.4 Sanctions and penalties...... 32 6.5 Attorney’s fees and costs...... 35 6.6 Enforcement of judicial decisions...... 35 Part B: Principle Areas of Environmental Law 37

7 Water 37 7.1 National law...... 37 7.2 : transboundary water resources...... 39 7.3 Water regulations and courts...... 40

8 Air 40 8.1 Air ...... 40 8.2 depletion...... 43 8.3 ...... 44

9 Soil 46 9.1 National law...... 46 9.2 International law...... 47

10 Biological diversity and nature conservation 47 10.1 Protecting biodiversity...... 48 10.2 Migratory species...... 49 10.3 Trade in endangered species...... 50 10.4 Habitat protection (including wetlands)...... 51 10.5 Bio- and Living Modified Organisms...... 53

11 Agriculture and 55 11.1 National law...... 56 11.2 International law...... 56

12 Protection of cultural and natural heritage 57 12.1 Introduction...... 57 12.2 National law...... 58 12.3 International law...... 58

13 Noise 58 13.1 National law...... 59 13.2 Noise and the courts...... 59

14 Toxic and hazardous substances and 59 14.1 Chemicals...... 60 14.2 Solid and ...... 61 14.3 National, waste and the courts...... 61 14.4 International law on hazardous waste...... 62

Annex: Paper on the Islamic Principles for the Conservation of the ...... 63

2 Author’s Note

Much of the content of this handbook is drawn from an existing UNEP publication, namely the Judicial Handbook on Environmental Law (Shelton, D. and Kiss, A; UNEP, 2005), and adapted to the Afghan context.

The document, which has been produced in both Dari and English, is an output of UNEP’s Programme for Institutional and Capacity Building for Environmental Management in Afghanistan, which was initially implemented in 2003, and is funded by the European Commission, the Government of Finland and the Global Environment Facility.

The panorama of considerations presenting themselves in environmental litigation ranges as far afield as justice between generations, the relationship between humans and other living occupants of the planet and the duty of preservation of the life-sustaining capacity of the earth – considerations far different in quality and reach from those ordinarily surfacing in day-to-day litigation. This handbook aims at lending a hand to the judges in their journey through this unexplored and unfamiliar terrain.

This handbook is intended to enable Afghanistan’s judges and judicial officers to identify environmental issues coming before them and to be aware of the range of options available to them in interpreting and applying the law. It seeks to provide judges with a practical guide to basic environmental issues that are likely to arise in litigation. It includes information on international and comparative environmental law and references to relevant cases.

Belinda Bowling UNEP Afghanistan Programme Manager

3 Part A: General Framework for Environmental Law

1 What is Environmental Law? • Increase in skin cancers and eye diseases in certain areas due to ;

Over the past several decades, growing public • New diseases and more widespread disease awareness of threats to the environment, informed vectors; by warnings of scientists, has led to demands that law • Decreased livelihoods and increased poverty; protect the natural surroundings on which human and well-being depends. Under growing pressure from national and international public opinion, • Damage to the ability of future generations to governments began to demonstrate concern survive and prosper. over the general state of the environment during the 1960s and introduced legislation to combat The laws of nature are inescapable and must be pollution of inland waters, ocean, and air, and to acknowledged. One such law is that all human safeguard certain cities or areas. Simultaneously, activities have an impact on the environment. they established special administrative organs, Indeed, each individual has an “ecological ministries or environmental agencies, to preserve footprint” that represents the sum of that person’s more effectively the of their citizens. resource use and contributions to pollution. Developments in international environmental law The ecological footprints of individuals vary paralleled this evolution within states, reflecting a considerably both within states and from one growing consensus to accord priority to resolving region of the world to another. environmental problems. Today, national and A second natural law is that all environmental international environmental law is complex and mediums (air, water, soil) and all species are vast, comprising thousands of rules that aim to interdependent and harm to one aspect of the protect the earth’s living and non-living elements environment is thus likely to have broad and and its ecological processes. unforeseen consequences. A chemical spill at a gold mine, for example, not only will pollute the Environmental problems stem from two main nearby soil, but it can enter streams and rivers, categories of human activities: be transported to the sea, and enter the food 1. Use of environmental resources, such as water, chain through absorption by plants and animals. rangeland and forests, at unsustainable levels; A related natural law is that the environment knows and no boundaries; harm in one territory can and often will have effects in another. This makes international 2. Contamination of the environment through collaboration a necessity. It also means judges pollution and waste at levels beyond the may have to decide cases concerning transfrontier capacity of the environment to absorb them pollution or other transboundary harm. Finally, the or render them harmless. scope of environmental harm depends on the natural characteristics of a given . Thus, harm from Resulting ecological damage seen around the radioactivity, for example, will continue until the world includes: radioactive substances naturally deteriorates, which can be hundreds, if not thousands of years. • Biodiversity loss; Achieving requires • Pollution of water and consequent reducing hazards from pollution and interferences problems; with life support systems like the global climate. It • and resulting increase in respiratory also requires measures to conserve landscapes, natural and cultural heritage and biological diseases; diversity through prudent consumption of natural • Loss of soil fertility, desertification and famine; resources, especially non-renewable ones.

4 1.1 The meaning of the term for their ecological and environmental values. “environment” Rangelands are being converted to rain-fed wheat production, exposing vast areas to wind For many people the term “environment” refers only and water erosion. Thus processes of deforestation to flora and fauna, such as trees, animals, birds and combined with overgrazing, conversion and insects. It is in fact a much broader concept than drought are increased soil erosion, watershed this. The environment refers to almost everything degradation, reduced ecosystem services and around us, as well as the interactions and processes biodiversity loss, threatening livelihood sources that link these different elements. It includes tangible and leading to increased impoverishment of the environmental resources (such as water, land, Afghan people. minerals, forests, rangeland, crops, wildlife and air), as well as the problems and issues resulting from the The reality is that, in its current condition, inadequate management of these resources (such Afghanistan’s environment is negatively impacting as disease from polluted water, respiratory problems on the generation of livelihoods; is adversely from air pollution, displaced populations as a result of affecting the health of the Afghan people; drought, and loss of livelihoods and income as a result is entrenching the poverty cycle in which of degradation of land and the resources on it). many Afghans are caught; and is constraining Afghanistan’s post-conflict reconstruction and The interdependence of the various components development. of the notion of “environment” is reflected in Afghanistan’s Environment Law,1 in which the term If the current environmental problems in Afghanistan is defined as follows: are not addressed, the following impacts could be expected: “environment” means natural resources, interactions between the components of natural • Unequal distribution of water resources may lead resources and between those components and to severe water scarcity in some regions – which humans or animals, and physical, aesthetic could threaten livelihoods, create environmental and cultural qualities that may affect the health refugees, compound adverse humanitarian and well-being of humans. conditions and increase regional tensions;

• Continued deforestation combined with 1.2 Afghanistan’s environmental livestock grazing and water scarcity could context lead to increased soil erosion, desertification and reduced fertility and ecosystem services. It Afghanistan is essentially an agrarian country, could also lead to floods, mudslides and rapid with up to 80% of the population involved in water drainage during the wet season; farming or herding, or both. Characterized by a semi-arid and arid climate, the balance between • and resource scarcity could precipitation and primary production is precarious lead to the creation of environmental refugees; throughout much of the country. With one of the highest population growth rates in Asia, together • Existing chemical contamination of some air, soil with returning refugees, extreme levels of poverty, and water resources would continue to threaten ongoing conflict and low human and institutional human health and undermine workforce resource capacities, Afghanistan represents one stability and economic productivity. of the largest development challenges in the world today. The multiple pressures on the environment are 1.3 The foundations of environmental resulting in unsustainable natural resource use and protection in Islam severe degradation of the natural resource base. Law emerges from the cultural traditions and Forest and woodlands, throughout Afghanistan are moral and religious values of each society. being cut down for construction, fuel wood and sale These traditions and values continue to impact to neighbouring countries, without consideration the development of legal norms. In the context 1 Official Gazette No. 912, 25 January 2007. of environmental protection, , religions

5 and legal systems throughout the world contain and social levels – can motivate people to elements that respect and seek to conserve the forego some of the short-range profits of this natural bases of life, maintaining concepts that life, and to make personal sacrifices for the can enhance and enrich the development of common good. It is only when our ethical modern environmental law. horizons extend to embrace not only mankind but all generations and all created beings, that Beliefs supportive of environmental protection can we can perform the noble role of be found in religious traditions from around the on earth for which God created us. World, including Islam. 3. Ethical teachings should be backed with In 1983, Muslim experts undertook a study of the legislation and effective enforcement of relationship between Islam and environmental injunctions and prohibitions. While some people protection. Their report, entitled Islamic Principles respond to their nobler ethical instincts, others for the Conservation of the Natural Environment fail to rise above their most petty and selfish (IUCN and Law Paper 20, desires. Appeals to conscience without positive 1983), is attached to this handbook as Annex 1. inducement and enforcement put those who The results underscored that humans are mere respond with self-restraint at a disadvantage managers of the earth and not proprietors; with respect to those who exceed the bounds beneficiaries and not disposers. The approach of fairness and infringe the rights of others as of Islam toward the use and development of the they please. Moreover, people know their earth’s resources was put thus by’ Ali ibn Abi-Talib, own needs and interests and their associates’ the fourth Caliph, to a man who had developed needs and interests far better than they can and reclaimed abandoned land: “Partake of it know the competing needs and interests of gladly, so long as you are a benefactor, not a other peoples and social groups; thus even despoiler; a cultivator, not a destroyer.” their moral impulses can work against the common good. The force of law and political Humankind has been granted inheritance to authority are therefore indispensable to bring manage and utilize the earth for the benefit of about justice and equity in the allocation humans, and for the fulfilment of human interests. and distribution of natural resources and in Humans therefore have to maintain and preserve implementing the measures required for the environmental resources honestly, and act within protection and conservation of the earth and the limits dictated by honesty. Each generation is what it contains. entitled to use nature to the extent that it does not disrupt or upset the interests of future generations. 4. Through the institutional arrangements of Islamic principles thus envisage the protection and society, conservation should be integrated the conservation of basic natural elements, making with ecologically sustainable development. protection, conservation and development of the Conservation divorced from sustainable environment and natural resources a mandatory development is neither socially acceptable religious duty of every Muslim. nor economically viable. People’s rights to harvest and extract the natural resources on The report finds that the basic principles of Islam which society depends should be allocated in regard to environment are the following. according to the effort they invest in the 1. The conservation of the natural environment is beneficial use and conservation of these a moral and ethical imperative. resources, and linked to accountability for the way they use these common assets of society 2. Environmental problems cannot be solved .The right to use a resource sustainably for through knowledge and technology alone. profit provides an incentive to reinvest in its Enlightened self-interest does not motivate conservation and enhancement. Similarly, people to do more than is convenient and the economic benefits of the conservation of profitable for themselves. Only moral conviction a resource should return to those people who and ethical consciousness – on both individual have borne the cost of its conservation.

6 5. Scientific and technical knowledge of the Islamic law prohibiting unnecessary hunting and natural environment and the means of its killing of birds and animals when a constitutional conservation should continually be improved petition sought an order to ban various hunts under and developed through ongoing scientific articles 18 and 199 of the Constitution. The court research and monitoring. Accurate information agreed that unnecessary hunting and killing is is indispensable to make enlightened decisions against the injunctions of Islam and the Constitution, for the conservation of the natural environment, but found that a blanket prohibition for hunting or to avoid acts that lead to its degradation, and to killing all animals and birds could not be granted. rectify damage that already has occurred. Such information should be disseminated as widely as 1.4 The sources of environmental law possible and incorporated into extension services and basic education in the schools and universities Environmental law, being a relatively new field, is so as to enable the public to participate fully in largely contained in written texts, although some the conservation of the environment. common law principles are relevant and customary international law is emerging. Governments protect 6. The development of the earth, in order to be the environment on the basis of their various ecologically sustainable, should be planned constitutional and statutory powers to promote the and carried out in accordance with the natural general , regulate commerce and manage constraints, ecological values and sensitivities, public lands, air and water. National authorities may and inherent suitability of its various localities. accept additional duties to protect the environment Planning for development should in every case by entering into bilateral and multilateral treaties include analysis of environmental impacts, containing specific obligations. and be designed to minimize damage to the natural environment and depletion of natural Development of regulations and permitting systems by resources. Due consideration of all aspects of administrative authorities is another important source the environment, including science, health, of environmental law. Reporting, monitoring and civil and natural beauty, should be emphasized and/or criminal actions to enforce environmental throughout every development project. law are critical components of environmental law systems. Some constitutions, including Afghanistan’s, 7. Developmental actions and projects undertaken also contain reference to environmental rights in one country should not lead to any kind of or duties, making these constitutional provisions damage, harm, or degradation in the natural and their interpretation and application another environment of another country. Private or local potentially important source of environmental law. should not be achieved through the injury of others, or by any means that leads to Litigation enforces the laws and regulations by civil or their injury. criminal actions. If a constitution contains a right to a specified environmental standard, the provision must 8. The natural environment and natural resources be interpreted and applied. Issues may also arise should not be subjected to any irreparable as to the appropriate remedy, which constitutions damage for the purpose of military or hostile usually do not specify. Besides defining obligations actions. for regulated entities, statutory provisions may allow individuals to bring suit against an administrative body This positive attitude involves taking measures to that abuses its discretion or fails to comply with its improve all aspects of life: health, nutrition, and the mandate, and in some circumstances allow for direct psychological and spiritual dimensions, for human citizen action against the polluters themselves. benefit and the maintenance of human welfare, as well as for the betterment of life for all future Sources include those listed below. generations. The aim of both the conservation and development of the environment in Islam is the a) Islamic Law or Shari’a universal good of all created beings. Islamic law or Shari’a is at the apex of Afghanistan’s In the case of M.D. Tahir v. Provincial Government & hierarchy of laws, as indicated by Article 3 of the Others, 1995 CLC 1730, the Pakistani court analysed Constitution, which states that, in Afghanistan, “no

7 law can be contrary to the sacred religion of Islam statutory or or as an appeal and the values of this Constitution”. from administrative decisions, such as denial of a permit or an order to halt emissions. Legislative Islamic law is not limited to regulating the texts often establish general environmental policy, interrelationships between individuals in society. supplemented by specific laws and administrative It, first and foremost, regulates the relationship regulations. Broad or framework environmental between the individual and the Creator. Moreover, statutes have been adopted in many different it defines the rights and obligations each individual countries, including Afghanistan (Environment has with respect to others, so that the potential harm Law, 2007). In most countries environmental any individual might cause for others is effectively legislation is supplemented and given greater negated. In this regard, Allah’s Messenger (peace specificity in administrative regulations, such as the be upon him) said: “There should be no harm and Environmental Impact Assessment (EIA) Regulations no harming of others.” In short, Islamic Law aims at issued under the Environment Law. a great objective: that of realizing the benefits and best interests of both the individual and society In addition to general framework laws, national and warding off what is to their detriment, giving laws often regulate a single environmental milieu, preference neither to the needs of the individual or “medium”, e.g. water, air, soil, or biological nor to those of society as a whole. diversity, due to the particular environmental problems facing a given area, political or The relationship between Islamic law and economic priorities, or the ease of achieving environmental protection is described more fully consensus on a specific environmental issue. in Section 4 of Annex 1 to this Handbook. Promulgation of standards for various is often a critical component of the legal framework b) Constitutional law for environmental protection. Standards may be expressed in terms of ambient standards, which On the national level, many constitutions now contain are often health-based and normally embody provisions establishing environmental rights, or set broad objectives, and performance standards forth governmental duties to protect the environment or technology-based standards to achieve and the state’s natural resources. More than 100 those goals. Countries may use permit systems to constitutions refer to a right to a clean and healthy elaborate the application of broad standards to environment, impose a duty on the state to prevent specific facilities. environmental harm, or mention the protection of the environment or natural resources. d) Administrative regulations

The preamble of Afghanistan’s Constitution states Legislation on environmental matters often that: delegates to administrative agencies regulatory powers, including rule-making, standard-setting We the people of Afghanistan… for ensuring and enforcement, to achieve the legislative a prosperous life and sound environment for mandate. In order to achieve environmental all those residing in this law… have adopted protection, many administrative agencies and this Constitution… officers have new powers to obtain information and a wide range of civil enforcement options Article 15 of the Constitution then states that: from orders to injunctions. In permit or licensing The State is obliged to adopt necessary measures proceedings, the court is typically asked to for safeguarding archaeological artefacts, determine whether an administrative agency proper exploitation of natural resources, and or governing body’s licensing decision was improvement of ecological conditions. consistent with the legal requirements. Frequently, in assessing the consistency of agency action with c) Environmental laws legal requirements, courts will confine their review to the administrative record of decision – that Most environmental cases probably appear body of information and facts that was before the before judges as part of an effort to enforce agency at the time the decision was made.

8 Many environmental statutes impose strict, joint, Box 1. Judicial Review of Administrative and several liability on persons or entities who Decisions are the “owners or operators” of enterprises or In the cases of Ramiah and Autard v. activities on land where hazardous substances Minister of the Environment and Quality of are released. Responsible persons may be Life (4/95 and 5/95, Environment Appeal liable for costs of removal or cleanup and any Tribunal, judgment March 7, 1997), the other necessary costs incurred in response to court in Mauritius heard challenges from the pollution. Since environmental law has partly the denial of a license to subdivide developed from , claims will frequently and construct housing. The licensing board rejected the applications because of the risk involve actions by one property owner that impact of flooding and the character of the site as another person’s property or require balancing a sensitive wetland. The tribunal found that laws and rights when private land use touches the board had not acted in a uniform manner upon the protection of endangered or threatened in granting or denying licenses. The tribunal species. heard experts, made a site visit, assessed all evidence and overturned the denial, imposing But modern environmental law has moved well its own conditions to ensure protection of the beyond property concepts. Individuals may seek wetland. redress for non-property injury or even to enforce public rights or interests in clean air, water and soil. Environmental issues may even arise in bankruptcy e) Criminalising environmental misconduct cases, where responsible parties may seek to file bankruptcy to avoid cleaning up the pollution they Increasingly, environmental misconduct is treated have caused. Such cases are likely to require the as a crime. This has led to an expansion of some judge to determine the interplay of bankruptcy basic concepts of criminal liability, sometimes laws and relevant environmental statutes. lowering the threshold at which liability is imposed (e.g. from wilful and/or knowing to grossly negligent A good amount of civil litigation to prevent or or negligent violation of the law) or extending remedy environmental harm takes the form of responsibility to corporate entities and their private actions. Such cases commonly include officers. claims for compensation for damage. Causes of action may include private nuisance, negligence, f) Civil liability strict liability, fraud, battery or trespass. Traditional common law doctrines such as nuisance and Environmental litigation frequently arises in public trust may be particularly important in litigation between parties contesting their rights jurisdictions that are based on the common law. derived from, for example property or contract In these jurisdictions, legal precedent will be an law. Even where environmental issues are not important source of law and decisions from other directly the basis of a complaint between parties common law jurisdictions may be viewed as involved in litigation, they may hover behind and persuasive authority. affect the outcome of the case, especially when new economic activities are proposed or natural • Negligence. A negligence theory would allow resources are at issue. Allocation of water rights, recovery for conduct causing harm that falls for example, cannot ignore the qualitative impacts below the standard expected of a reasonably of quantitative determinations. prudent person under similar circumstances. Negligence typically requires proof of the Plaintiffs who bring civil cases may frame their particular standard of conduct; breach of complaints according to a number of different the standard; a causal connection between theories of liability. When a statute is enacted to the conduct and the resulting injury; and protect certain interests from a particular kind of actual loss or damage. It has been applied harm and such harm has resulted from the breach, to handling of toxic or hazardous products or the injured party may seek to impose liability on waste or dangerous activities such as mining the party who violated the statute. or waste water treatment.

9 • Strict liability. Statutes and common law typically and Use of , and the Responsible Care impose strict liability or liability without fault on Initiative of the Chemical Manufacturers Association. one who carries on an abnormally dangerous Such private regulation may constrain behavior activity, i.e. one which has a high degree of risk by exercising a moral or practical (sanctioning) of substantial harm to persons, property or the influence. Litigants may argue that breach of such environment and the risks cannot be eliminated codes or industry standards may be evidence of through reasonable measures. Where the malpractice or negligence. benefits to the community of the activity outweigh the risk of harm, the activity may h) International law not be enjoined, but liability will be imposed International law is considered the supreme for any resulting injury. Among that activities body of law by international tribunals and in found actionable by courts under this theory international relations among states. Thus, a state of liability are: disposal, operation may not invoke a provision of its national law to of hazardous waste , industrial activities excuse its violation of international law. The law involving toxic chemicals or other hazardous of state responsibility provides that each breach substances. See Indian Council for Enviro- of an international obligation attributable to a Legal Action v. Union of India, 3 SC 212 (1996) state automatically gives rise to a duty to cease (holding that an enterprise that is engaged in the breach and make reparation for any injury a hazardous or inherently dangerous activity caused, irrespective of national law. which results in harm to anyone is strictly and absolutely liable to compensate all those The extent to which norms arising from international who are affected by the accident, expressly law are justiciable in national courts thus necessarily invoking the polluter pays principle). depends on the manner in which these norms are incorporated in the constitutions as well as on the g) Industry standards and codes of conduct legal system and jurisprudence of each country.

A growing number of guidelines or codes of conduct Where international law is not binding as part of have been developed within industry, including the domestic law, it may still be considered persuasive World Industry Council for the Environment, the FAO in interpreting constitutional or statutory provisions, International Code of Conduct on the Distribution as may the law of other countries or even the views

Box 2. Toxic Tort Litigation Recent developments in toxic tort litigation involve allegations of harm to a person, property or the environment as a result of exposure to contamination from a product, substance or process that can cause physical injury or disease. Manufacturers of hazardous products are subject to laws and regulations governing the use, transport, storage, and disposal of their products. Cases can involve violations of these local or national environmental statutes and regulations or can be based on traditional theories of recovery such as negligence or nuisance. One difference between toxic tort cases and traditional product liability cases is that the hazardous substances involved in the new cases do not always produce an immediate acute injury. Instead, they may produce the risk of disease during a long latency period or cause damage to property that may show up only years after the exposure. Such lengthy periods produce problems for statutes of limitations and proof of causality. Imperfect scientific knowledge about the origin of particular diseases in the fields of epidemiology or toxicology complicates matters further. While the latter disciplines can generally indicate whether exposure is capable of causing the type of harm, they do not answer the specific inquiry as to which members of an exposed population in fact contracted their disease from the exposure. Several other possible sources of exposure may also be present. Toxic torts often affect large numbers of persons. Such mass torts may lead plaintiffs to file a class action suit, where such actions are permitted. A class action was filed after the Bhopal disaster and similar suits have been filed over asbestos and tobacco. See In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December 1984, 809 F.2d 185 (2d Cir. 1987); In re A.H. Robbins (Dalkon Shield Litigation), 880 F. 2d 700 ) 4th Cir. 1989)

10 of commentators. The jurisprudence of international international conventions, and interpret them, tribunals also can be considered in this context. in accordance with the law. Judges may also find persuasive the law of other nations, especially those whose legal systems The sources of international law include the are similar to theirs. In Andhra Pradesh Pollution following: Control Board-II v. Prof. M.V. Nayudu & Others • International conventions or treaties. International [2001] 4 LRI 657, Sup. Ct. India, the Court referred environmental law has developed a vast array to the Declaration of the United Nations Water of treaties – some say more than 1000 – to Conference, the International Covenants on Civil address nearly all aspects of environmental and Political and Economic, Social and Cultural protection. A treaty may be concluded between Rights, and the Rio Declaration on Environment and two states (bilateral) or be widely adopted and Development as persuasive authority in implying accepted (multilateral). Environmental treaties a right of access to drinking water as part of the differ from other kinds of treaties, having right to life in the Indian Constitution. The Court also characteristics that respond to the specific made reference to jurisprudence of the European needs of environmental protection. Court of Justice, the European Court of Human Rights and the Inter-American Commission on • International custom. Custom exists when there Human Rights, as well as decisions of national courts is “evidence of a general practice, accepted of the Philippines, Colombia and South Africa. as law.” Custom is not time-dependent; it is not required, for example, that a custom has been On occasion, courts have looked to treaties for in place for a very long time While there is a fair the meaning of undefined terms in national law. In amount of disagreement as to how and whether Ramiah and Autard v. Minister of the Environment non-binding resolutions and declarations and Quality of Life (Mar. 7, 1997), the Mauritius become customary international law, it may Environment Appeal Tribunal looked to the Ramsar be mentioned that formulation of non-binding Convention for a definition of wetlands, although principles and their universal acceptance the convention had not yet been ratified by could play an important role in the process Mauritius. The Ministry of Environment agreed that of developing customary law. The Stockholm the Convention provided guidance on the issue. Declaration on the Human Environment and A court may also take judicial notice of studies the Rio Declaration on Environment and done by international organizations as evidence Development, for example, contains several of environmental damage. In Pedro Flores y Otros provisions which some international and v Corporation del Cobre (CODELCO), a Chilean national courts have declared to be part of court of appeals referred to a UNEP study in finding customary international law. that the coastline in question was one of the most • General principles of law. General principles seriously polluted around the Pacific Ocean. of law are not the same as customary Afghanistan’s Constitution is not entirely clear on international law. Custom consists of rules the role of international law. Article 7 states that: arising out of inter-state practice over time, while general principles of law are those The state shall abide by the UN charter, principles that are common to the major legal international treaties, international conventions systems of the world, if not to all of them. They that Afghanistan has signed, and the Universal thus are a matter of comparative law, not Declaration of Human Rights. international law, in origin.

Article 121 states that: • Judicial decisions and doctrine. Judgments and advisory opinions of the World Court and The Supreme Court upon request of the arbitral or other international tribunals are Government or the Courts can review quite important and often are considered as compliance with the Constitution of laws, the affirmation or the revelation of customary legislative decrees, international treaties, and international rules.

11 2 Basic principles of organizations and various governments also environmental protection engaged in considerable preparatory work. The Conference concluded by adopting a Declaration on the Human Environment and an “Action Plan” There are a number of principles that are at the containing 109 recommendations. International core of most environmental protection systems, and national environmental law substantially whether at the international or national level. increased in the two decades after Stockholm. Familiarity with these principles can offer insight into the purpose and thrust of the various legal The United Nations reaffirmed and developed the mechanisms that have been built upon them. general principles of the Stockholm Declaration The principles are best understood in the context of in 1982 when the General Assembly adopted the modern ecological era. The present ecological the World Charter for Nature. A few principles era began at the end of the 1960s, after post-World of customary law concerning environmental War II reconstruction led to unprecedented global relations among states also emerged during . This development was this period. Some of them were embraced by unequal, accentuating differences in wealth the United Nations Environment Program as between countries of the Northern and Southern part of the “Principles of conduct in the field of hemispheres as well as within countries. It also the environment for the guidance of States in required unprecedented use of exhaustible the conservation and harmonious utilization of natural resources such as clean water, air, flora natural resources shared by two or more states.” and fauna, and minerals. As it became clear Approved by UNEP’s Governing Council May that limited resources would ultimately become 19, 1978, the Principles on Shared Resources incapable of satisfying the various needs of reiterated Stockholm Principle 21 in recognizing industrial and developing countries, public opinion the sovereign right of states to exploit their own increasingly demanded action to protect the resources coupled with an obligation to ensure quantity and quality of the components of the that the activities undertaken within the limits environment. Ecological catastrophes such as of their jurisdiction or under their control do not the 1967 “black tides” off the coasts of , damage the environment in other states. England and Belgium, caused by the grounding The UNEP Principles also expressed the obligation of the oil tanker Torrey Canyon, and realization of states to notify the latter of plans that can be that the environment increasingly was threatened, incited governments to take action. expected to affect significantly their environment, to enter into consultations with them, and to In some circumstances, action was taken inform and cooperate in the case of unforeseen by individual states to address state-specific situations that could cause harmful effects to the problems. In other circumstances, efforts focused environment. The measures also guaranteed on international cooperation, as a means of equality of access for nonresidents to administrative addressed shared concerns. These international and legal procedures in the state originating the collaborations bear particular attention because harmful conduct, and nondiscrimination in the they both illustrate and articulate some of the application of national legislation to polluters, key principles that undergird both national and whatever the place of the harmful effects. international environmental law. In 1992, the United Nations convened a second A pivotal moment in the development of global meeting, known as the United Nations environmental law came in 1972 when the United Conference on Environment and Development Nations General Assembly convoked a world (UNCED), which met in Rio de Janeiro from 3 to conference on the human environment in Stockholm. 14 June 1992. Two texts adopted at UNCED have This development gave rise to intense and diverse a general scope: the Declaration on Environment activity, particularly within inter-governmental and Development and an action program organizations whose mandate could extend to called Agenda 21. The Declaration reaffirms the environmental problems. Numerous national and Stockholm Declaration of 1972 on which it seeks international non-governmental environmental to build, but its approach and are

12 very different. The central concept is sustainable Principles can be foundational (e.g. equality and development, which integrates development legal certainty) or technical (e.g. proportionality). and environmental protection. Principle 4 is The key environmental principles developed over important in this regard: it affirms that in order to the past several decades are discussed below. achieve sustainable development, environmental They have been reproduced in domestic laws protection shall constitute an integral part of and thus have provided a foundation for many environmental decisions. They are influential in the development process and cannot be most legal systems, although they sometimes may considered in isolation from it. Agenda 21 is be applied differently. the program of action to achieve sustainable development. In the sections that follow the key principles of environmental protection, some of which have In the aftermath of Rio, virtually every major been incorporated into Afghanistan’s Environment international convention concerning multilateral Law, will be described. cooperation includes environmental protection as one of the goals of the states parties. Areas of 2.1 Prevention principle international law that developed during earlier periods evolved in new directions because of Experience and scientific expertise demonstrate insistence that they take into account environmental that prevention must be the Golden Rule for the considerations. The result has been an infusion of environment, for both ecological and economic environmental principles and norms into nearly reasons. In some instances it can be impossible to every branch of international law. At the same remedy environmental injury once it has occurred: time, in the decade after the Rio Conference, the extinction of a species of fauna or flora, environmental concerns encountered increasing erosion, and the dumping of persistent pollutants competition on the international agenda from into the sea create intractable, even irreversible economic globalization, an emphasis on free situations. Even when harm is remediable, the trade, and the development crises of poor cost of rehabilitation is often very high. In many countries. In addition, mounting evidence instances it is impossible to prevent all risk of could be seen of the disastrous environmental harm. In such instances, it may be judged that consequences of armed conflict. measures should be taken to make the risk “as small as practically possible” in order to allow Between August 26 and September 4, 2002 necessary activities to proceed while protecting the representatives of more than 190 countries the environment and the rights of others. met in Johannesburg, South Africa, in order to “reaffirm commitment to the Rio Principles, The issue of prevention is complex, owing to the the full implementation of Agenda 21 and the number and diversity of the legal instruments Programme for the Further Implementation of in which it occurs. It can perhaps better be Agenda 21.” At the end of the conference the considered an overarching aim that gives rise to participating governments adopted a Declaration a multitude of legal mechanisms, including prior on Sustainable Development affirming their will to assessment of environmental harm, and licensing “assume a collective responsibility to advance or authorizations that set out the conditions for and strengthen the interdependent and mutually operation and the remedial consequences for reinforcing pillars of sustainable development violation of the conditions. Emission limits and - economic development, social development other product or process standards, the use of best and environmental protection - at local, national, available techniques, and other similar techniques regional and global levels.” These decades of can all be seen as applications of prevention. legal developments have led to the emergence of basic principles of environmental protection that Prevention is also linked to the notion of deterrence are recognized in international and national law, and the idea that disincentives such as penalties which have in turn informed the development of and civil liability will cause actors to take greater environmental law by giving meaning to concepts care in their behaviour to avoid the increased not yet contained in formal legal instruments. costs, thus preventing pollution from occurring.

13 2.2 Precautionary principle 2.3 Polluter pays principle

The precautionary principle has variously been The “polluter pays” principle was originally associated with the ideas that: 1) scientific enunciated by the Organization for Economic uncertainty should not be used as a reason Cooperation and Development (OECD) to restrain not to take action with respect to a particular national public authorities from subsidizing the environmental concern; 2) action should pollution control costs of private firms. Instead, affirmatively be taken with respect to a particular enterprises should internalise the environmental environmental concern; 3) those engaging in by bearing the costs of controlling a potentially damaging activity should have their pollution to the extent required by law. the burden of establishing the absence of environmental harm; and 4) a State may restrict Historically, pollution control costs have been borne imports based on a standard involving less than by the community at large, rather than by those full scientific certainty of environmental harm. who pollute. Community assumption of the costs can be demonstrated using the example of an Properly viewed, the concept of precaution industry that discharges pollutants into a river. There operates as part of a science-based approach to are at least three possible ways for the community regulation, not a substitute for such an approach, to assume the economic costs of the pollution: and, in practice, the concept is multi-faceted. 1) The river can remain polluted and rendered unsuitable for certain downstream activities, The so-called “precautionary approach” is relatively causing the downstream community to suffer recent, dating from the late 1980s. The 1992 Rio an economic loss; Declaration, Principle 15, formulates it thus: 2) The downstream community can build an In order to protect the environment, the adequate water treatment plant at its own cost; precautionary approach shall be widely 3) The polluter may receive public subsidies for applied by States according to their controlling the pollution. capabilities. Where there are threats of serious or irreversible damage, lack of full scientific In each case, the affected community bears the certainty shall not be used as a reason for cost of the pollution and of the measures designed to postponing cost effective measures to prevent eliminate it or to mitigate its effects. The polluter pays environmental degradation. principle avoids this result by obliging the polluter to bear the costs of pollution control, to “internalize” Because of its many permutations and facets, them. In most cases the enterprise will in fact precaution is at once both useful as a flexible incorporate the costs in the price of the products to tool or “approach,” and difficult to capture in some degree and pass them on to the consumer. the context of a generally applicable legal “principle” or standard. This being said, it has Generally, polluters should pay for the cost of found reference in a number of judicial cases. pollution control measures, such as the construction An Argentinean court, for example, required and operation of anti-pollution installations, immediate suspension of efforts to establish an investment in anti-pollution equipment and new electricity grid until the defendant prepared processes, so that a necessary environmental a report with the participation of concerned quality objective is achieved. Other means of persons, addressing the impacts and preventive or ensuring the polluter pays principle are through mitigation measures to avoid the potential negative and charges. Application of the principle effects of the electromagnetic field to be created may be difficult in practice where identifying the by the project. The court explicitly stated that it was polluter proves impracticable because the pollution applying the precautionary principle embodied arises from several simultaneous causes or from in the law and several international environmental several consecutive causes, or where the polluter instruments (Asociacion Coordinadora de Usuarios, has become financially insolvent. In such instances, Consumidores y Contribuyentes v. ENRE-EDESUR, there may be no alternative to community Federal Appellate Tribunal of La Plata (2003)). assumption of the costs of remediation.

14 National courts may define and elaborate on the In Ratlam Municipality v. Vardihichand, AIR 1980 SC implications of the polluter pays principle. In Marlene 1622, the Supreme Court of India indicated some Beatriz Duran Camacho v. the Republic of Colombia of the elements of the concept of environmental (Sept. 26, 1996), the Constitutional Court, in reviewing justice: the constitutionality of some environmental legislation, approved provisions that impose a special economic “Public nuisance because of pollutants being burden on those who contribute to the deterioration discharged by big to the detriment of of the environment and impose on those who take the poorer sections, is a challenge to the social advantage of natural resources the costs of remedying justice component of the rule of law. Likewise, the the negative effects that their actions have on the grievous failure of local authorities to provide the environment. The Indian Supreme Court has said that basic amenity of public conveniences, drives the once an activity carried on is hazardous or inherently miserable slum-dwellers to ease in the streets, dangerous, the person carrying on that activity is liable on the sly for a time, and openly thereafter, to make good the loss caused to any other person by because under nature’s pressure, bashfulness that activity. Indian Council for Environmental Legal becomes a luxury and dignity a difficult art. A Action v. Union of India, AIR 1996 SC 1446 (1996), 2 responsible Municipal Council constituted for the SCR 503, 3 SCC 212 (1996). precise purpose of preserving public health and providing better facilities cannot run away from 2.4 and equity its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets In general, environmental justice seeks to ensure of human rights and are a first charge on local that authorities fairly allocate and regulate scarce self-governing bodies.” resources to ensure that the benefits of environmental resources, the costs associated with protecting them, The concept of public trust expresses the idea and any degradation that occurs (i.e. all the benefits that the present generation holds the natural and burdens) are equitably shared by all members of resources of the earth in trust for future generations. society. Environmental justice goes beyond traditional When applicable as a legal principle, public trust environmental protection objectives to consider the contemplates that certain things, such as natural equitable distribution of pollution, and, more broadly, the resources and the exercise of public power, are often disproportionate burden borne by the poor and held by governments in trust for the citizenry and minority groups in respect to environmental harm. must be used for the public benefit.

Box 3. Public Trust and the Environment In M. C. Mehta v. Kamal Nath and Others, 1 SC 388 (1997), the Supreme Court of India applied the to combat . The Court considered the government the trustee of all natural resources that are by nature meant for public use and enjoyment. While the doctrine traditionally protects uses such as navigation, commerce and fishing, the Court concluded that it now extends to ecologically important values, such as preserving freshwater, wetlands and riparian forests. Using this doctrine, the Court quashed a lease granted for a private motel and ordered the government to take over the area and restore it to its original condition. The Court called the lease of ecologically fragile land “a patent breach of the public trust.” Also applying the polluter pays principle, the Court ordered the motel to pay compensation for the restitution of the environment and ecology of the riverbed and banks of the River Beas it had polluted. The local pollution control board was ordered to enforce the law by inspecting the motel’s pollution control devices and treatment plants and take action if the devices and plants did not conform to the prescribed standards. The board also was ordered not to permit the discharge of untreated effluent into the river and to inspect all the hotels, institutions and factories in the area to ensure that none of them was acting in violation of the law. The Supreme Court subsequently imposed exemplary damages on the motel. The court stated: “Pollution is a civil wrong. By its very nature, it is a tort committed against the community as a whole. A person, therefore, who is guilty of causing pollution has to pay damages (compensation) for restoration of the environment and ecology... In addition to damages aforesaid, the person guilty of causing pollution can also be held liable to pay exemplary damages so that it may act as a deterrent for others not to cause pollution in any matter.” The Court ordered the motel to pay the exemplary damages to the state government for use for flood protection works in the area affected by the motel’s actions.

15 3 Environmental rights technology. The nature of environmental deterioration, which often arises only long after a project is Increasingly, environmental protection generally, completed and can be difficult, if not impossible, and the particular role of the courts in implementing to reverse, compels early and complete data to such protection, is being given shape by the creation make informed choices. Transboundary impacts also or recognition of various enforceable rights. A produce significant demands for information across growing number of international, constitutional and borders. Where national law includes a Freedom of statutory provisions set forth rights that are relevant to Information Act, issues of access to environmental and invoked for environmental protection. In some information can arise in court. Furthermore, during instances, the provisions guarantee procedures litigation a judge may demand production of that are designed to provide transparency and information by parties or from state authorities. democratic governance by allowing interested The right to information is recognized as a right in persons to have information about and input into most domestic jurisdictions either by constitutional decisions that affect their environment or redress provision or by freedom of information legislation that when that environment is harmed. Such rights are covers most information held by public authorities, also viewed as instrumental in achieving sound environmental decision-making. Principle 10 of the including environmental information. Laws requiring Rio Declaration on Environment and Development Environmental Impact Assessment (EIA) have this reflects this notion: feature by implication, since EIAs generally must be made available to the public for comment. Environmental issues are best handled with Laws recognizing citizens’ suits also have provisions the participation of all concerned citizens, at enabling citizens to obtain necessary information. the relevant level. At the national level, each individual shall have appropriate access to Afghanistan has an access to information right in its information concerning the environment that is Bill of Rights, although it does not include the right held by public authorities, including information of access to information held by the private sector. on hazardous materials and activities in their Article 50 of the Constitution states that: communities, and the opportunity to participate The citizens of Afghanistan have the right of in decision-making processes. States shall access to the information from the Government facilitate and encourage public awareness offices in accordance with the provisions of law. and participation by making information widely available. Effective access to judicial and The constitutional right is adapted to the administrative proceedings, including redress environment context in the Environment Law, and remedy, shall be provided. Article 7(3) of which provides that: Constitutional provisions may also guarantee a Every person… shall... have access to right to an environment of a specified quality, such information held by the State, provided that: as safe, healthy, ecologically sound, or clean. The proliferation of such provisions has resulted in – the request is not unreasonable or an increasing number of cases where judges are formulated in too general a manner; asked to enforce the stated rights. This chapter – the information sought is not commercially reviews some of the national and international confidential; laws concerning environmental rights and includes some illustrative judicial decisions. – the granting of the information sought would not further endanger the protection of the environment; 3.1 Right of access to information – the granting of the information would not Access to environmental information is a prerequisite endanger a person’s right to personal to effective public participation in decision-making privacy. and to monitoring governmental and private sector activities. It also can assist enterprises in planning In due course, dedicated access to information for and utilizing the best available techniques and legislation will also be developed in Afghanistan.

16 3.2 Public participation declarations and proposals concerning sustainable use of natural resources and Public participation is emphasized throughout conservation and rehabilitation of the international and national environmental law. environment; Public participation is based on the right of those who may be affected to have a say 6) participate in environmental impact in the determination of their environmental assessment processes. future. Depending on the jurisdiction, this may include foreign citizens and residents. In the EIA The right to participate in environmental impact context, the public typically incorporates all assessment (EIA) processes is given more substance stakeholders including communities, women, in the EIA chapter of the Law (Chapter 3), and the children, indigenous people, non-governmental EIA Regulations (Official Gazette No. 939, dated organizations, other State and non-State institutions. 10 March 2008). The EIA report is made available to the public for comment for a specified period and the public 3.3 Access to justice is usually allowed to submit written comments. Public hearings may also be held in certain The right to an effective remedy, meaning access circumstances. to justice and redress, can be found in both human rights law and in environmental law. The United Non-governmental organizations (NGOs) and Nations Covenant on Civil and Political Rights calls groups such as trade unions or manufacturers’ for states to provide a remedy whenever rights associations are an organized means of protected under national or international law public participation in environmental decision- have been violated. In the European Convention making. Like individual members of the public, on Human Rights, Article 13 guarantees a remedy NGOs may compile data, seek to influence whenever there is a violation of the rights and legislation, intervene in decisions on licensing freedoms contained in the Convention, thus or permitting projects, and monitor compliance encompassing violations of the right to information. with environmental laws. With these roles and The Inter-American and African regional human because of their greater means, expertise, rights systems contain a similar guarantee. and organized efforts, NGOs often can more Environmental instruments frequently proclaim the effectively assert public rights of information and need for effective remedies. Principle 10 of the participation. The importance of NGOs is reflected Rio Declaration provides that “effective access to in the emphasis on their role in recent treaties judicial and administrative proceedings, including such as the Desertification Convention, which redress and remedy, shall be provided.” speaks in its preamble of “the special role of non-governmental organizations and other major Agenda 21 calls on governments and legislators groups in programmes to combat desertification to establish judicial and administrative procedures and mitigate the effects of drought.” for legal redress and remedy of actions affecting the environment that may be unlawful or infringe Article 7(4) to (6) of the Environment Law grants on rights under the law, and to provide access all persons in Afghanistan (which by definition to individuals, groups and organizations with a includes non-governmental organizations) the recognized legal interest. right to: The right to a remedy is not necessarily limited to 4) participate in meetings, demonstrations, nationals of a state. Some international agreements protests, marches and referenda relating contain obligations to grant any injured person a to sustainable use of natural resources right of access to any administrative or judicial and conservation and rehabilitation of the procedures equal to that of nationals or residents. environment pursuant to this Act; Equal access to national remedies has been considered one way of implementing the polluter 5) address for consideration to the Government pays principle because it tends to expand the and public bodies letters, complaints, scope of polluter accountability.

17 In addition to the right to seek redress through the 4 Common legal mechanisms courts, Afghanistan’s Environment Law provides of environmental protection persons with the right to appeal administrative decisions made under the Law (Articles 19 The role of the courts in upholding the rule of law and 77). in the environmental arena is very much informed by the regulatory mechanisms that deliver 3.4 Right to environmental quality environmental protection. Two primary, common regulatory systems aim to prevent environmental National provisions proclaiming a right to harm by anticipatory action. The first is a system environmental quality are fairly prevalent at this that attempts to establish individualized pollution juncture. Almost every constitution adopted or controls and mitigation measures through revised since 1970, either states the principle that environmental impact assessment based on an environment of a specified quality constitutes the character of the activity and environment a human right or imposes environmental duties surrounding the facility. The second system upon the state. The Afghanistan Constitution, for relies on a permit or licensing regime that example, provides in Article 15 that “the state requires adherence to pre-established norms is obliged to adopt necessary measures for (quotas, bans on the use of certain substances). safeguarding forests and the environment”. Sometimes a facility or activity must comply with both types of regulatory regime and will have to Other constitutions refer to a decent, healthy apply technology-based controls (which tend to (Hungary, South Africa, Nicaragua, Korea, Turkey), require the optimal level of control achieved at pleasant (Korea), natural, clean, ecologically- comparable facilities) and/or performance-based balanced (Peru, Philippines, Portugal), or safe measures (which tend to focus on ensuring that environment or one free from contamination pollution emissions will not surpass established (Chile). Within federal systems, including those limits or result in pollution in excess of an ambient whose federal constitution lacks mention of the environmental standard). environment, state or provincial constitutions often contain environmental rights. The variety, complexity and acceptance of these legal mechanisms have increased in recent years State practice is divided over the issue of the through the mutual influence of national and justiciability of the right to a safe and healthy international environmental law. International environment. Some courts have allowed lawsuits environmental agreements today usually to enforce the right, while others have not. Courts require states parties to adopt environmental are also divided over whether environmental rights impact or risk assessment procedures, licensing may be implied in constitutional protections when requirements and monitoring protocols. there is no explicit mention of the environment. Environmental auditing, product labeling, use Some states, such as India, have liberally found of best available techniques and practices and and enforced environmental rights as part of the prior informed consent also commonly appear rights to life and health. Others have rejected in global and regional instruments. States often the notion that a right to environment can be enact and implement several techniques and implied. procedures simultaneously in response to treaty mandates as well as to particular threats to the At present, no global human rights treaty proclaims environment, national and local conditions, a right to environmental quality, although the traditions and cultural norms, and the economic Universal Declaration of Human Rights and other situation specific to each country. human rights instruments contain a right to an adequate quality of life and a right to health. Whether the law establishes an environmental It is unclear the extent to which these generally impact assessment procedure or licensing system or stated rights will ultimately be viewed as including relies on economic mechanisms to affect conduct, an enforceable right to clean and healthy courts are frequently asked to enforce the law and environment. sanction violations. Many cases may be brought in

18 the first instance in administrative tribunals, where such animals--the sum of influences on their long- licenses revocations may be sought or penalties term distribution and abundance--is unfavorable. imposed for non-compliance with the terms of Afghanistan will soon become a member of the the license. Courts may be asked to review the Bonn Convention (or CMS, as it is also commonly determinations of administrative bodies to grant known). or deny a permit and in the process may have to review the adequacy of an environmental impact Finally, temporary suspensions and permanent or risk assessment done by the proponent of an bans on imports and exports are commonly activity. Judges often adjudicate prosecutions utilized for the protection of wild flora and fauna. or appeals from administrative enforcement The 1973 Convention on International Trade in of prohibitions and restrictions such as the ban Endangered Species of Wild Fauna and Flora on trade in endangered species or in ozone- (CITES), for example, uses trade restrictions and depleting substances. This section examines trade bans as means of protecting threatened the common legal techniques and some court and endangered species. The Convention, which decisions that have involved them. Afghanistan has been a Party to since 1985, lists in a first appendix all species threatened with 4.1 Prohibiting and restricting extinction that are or may be affected by trade. activities and substances Trade in these species is virtually prohibited, requiring prior grant and presentation of export If an activity, product or process presents a and import permits issued under stringent substantial risk of environmental harm, strict conditions. Two additional appendices list those measures can be imposed in an effort to reduce species that may become threatened with or eliminate the harm. When the likelihood of extinction unless trade is regulated. States have risk is too great, a complete prohibition can widely implemented these bans and restrictions be enacted. Environmental laws often call in practice. Trade regulations also are used to for restricting or banning hazardous products, prohibit or regulate transport and dumping of processes or activities. See for example the toxic and dangerous . Convention and on the Ozone Layer (March 22, 1985, Sept. 16, 1987), to which 4.2 Product and process standards Afghanistan is a Party. Criteria such as toxicity, persistence, and bioaccumulation may serve to National and international laws sometimes determine which substances should be banned establish standards for products and processes or severely restricted. that impact the environment. Standards are prescriptive norms that govern products or Hunting and collecting restrictions are used to processes or set limits on the amount of pollutants prohibit non-selective means of killing or capturing or emissions produced. Standards may be set for specimens of wildlife. More generally, protective production processes, emission levels, product measures may restrict injury to and destruction characteristics and ambient quality standards for or taking of some or all wild plants and animals. a given environmental milieu. Annexes specify measures to be taken regarding threatened or endangered species, which Afghanistan does not yet have well-developed benefit from the most stringent protective legal environmental standards, however the National measures. Environmental Protection Agency is working with its international partners such as UNEP to address Migratory species are also subject to special this. protection by treaties such as the Bonn Convention on the Conservation of Migratory Species of Wild a) Process standards Animals, which is aimed at all states through which such species transit and in which they spend part Process standards specify design requirements of their lives. States parties to the Bonn Convention or operating procedures applicable to fixed are obliged to ban or regulate the taking of these installations such as factories or may designate animals in cases where the conservation status of permissible means and methods of activities

19 like hunting or fishing. Sometimes, a particular To ensure fair economic competition, product production process or technique is imposed on standards usually are adopted for an entire operations, such as the installation of purification industry. As with process standards, standards for or filtration systems in production facilities. new products are frequently drafted to reflect the Process standards often are used to regulate the best available technology, operations of hazardous activities posing a risk in some cases requiring new products to achieve of accidents or other dangers. Process standards a percentage reduction in pollution potential in frequently establish norms for an entire industry comparison with older sources. or class of operation, driving similar types of operations to achieve comparable levels of c) Emissions standards pollution control. In some systems, for example, Emission standards specify the quantity or all types of operations are required to install best concentration of pollutants that can be emitted in available pollution control technology (BACT) discharges from a specific source. As a general rule, as part of their processes. Some governments emission standards apply to fixed installations, such maintain inventories or clearinghouses of as factories or homes; mobile sources of pollution are information regarding what constitutes BACT for more often regulated by product standards. Emission a given industrial category, which serves as an standards establish obligations of result, typically important reference for industry and licensing leaving the polluter the free choice of means to officials alike. conform to the norm. Often the environmental sector of the discharge, e.g. groundwater, air, soil, is a variant b) Product standards factor. Emission standards may also vary according to Product standards are used for items that are the number of polluters and the capacity of the sector created or manufactured for sale or distribution. to absorb pollutants. Different standards may be Such standards may regulate: imposed in response to particular climatic conditions, for example persistent or inversion layers. Emission • The physical or chemical composition of standards are the type of standard most commonly items such as pharmaceuticals or detergents. required by international agreements. Examples include regulations that control the sulphur content of fuels or list substances whose Emission standards are based on assumptions presence is forbidden in certain products, for that: instance, mercury in pesticides. • Certain levels of some contaminants will not • The technical performance of products, produce any undesirable effect; such as maximum levels of pollutant or noise • There is a finite capacity of each environment emissions from motor vehicles or specifications to accommodate substances without of required product components such as unacceptable consequences (the assimilative catalytic converters. capacity) and; • The handling, presentation and packaging • The assimilative capacity can be quantified, of products, particularly those that are toxic. apportioned to each actor and utilized. Packaging regulations may focus on waste minimization and safety. Pollution occurs whenever the effects of the contamination on biological systems can be • Labeling requirements are used to ensure that measured. Emission standards thus most often consumers are aware of the contents and reflect a political decision about the amount of the permissible uses of products. Labeling pollution that is deemed acceptable. requirements often aim to avoid accidental environmental harm through misuse, spills or d) Ambient quality standards improper disposal of the product. The “green” or “” is a recent, increasingly popular Ambient quality standards fix the maximum incentive to environmental protection. allowable level of pollution in an environmental

20 sector during normal periods. A quality standard assessment permits (Article 13), pollution control may set the level of mercury permissible in rivers, licenses (Article 28), waste and hazardous waste the level of sulfur dioxide in the air, or noise management licenses (Articles 31 and 32) and level of airplanes in the proximity of residential species harvesting permits (Article 48). areas. Quality standards often vary according to the particular use made of the environmental Judges often face appeals from grants or denials resource. For example, different of licenses. In such instances, an initial question is standards may be set for drinking water and the scope of review to be conducted. Some courts waters used for bathing and fishing. Quality conduct a full review hearing, while others afford standards also can vary in geographic scope, considerable deference to administrative agency covering national or regional zones, or a particular decisions. Afghanistan’s Environment Law has an resource, such as a river or lake, but each quality administrative appeal provision (Article 74), which standard establishes base norms against which grants the Director-General broad powers to hear compliance or deviance are measured. such appeals; however parties still have recourse to the courts if this route is unsuccessful. 4.3 Licenses and permits Most licensing systems operate on the basis of a Environmental laws frequently mandate list, or an inventory of activities necessitating a government officials to authorize, certify or issue license because of their foreseeable potential permits or licenses to activities or establishments harm to the environment. For example, see the that pose threats to the environment or that use list of activities that trigger the application of the natural resources. “Taking permits,” for example, environmental impact assessment provisions of regulate the numbers of wild plants or animals the Environmental Impact Assessment Regulations, that may be appropriated for private use. Norms 2008 (Annex 1 of the Regulations). that regulate environmental milieu, such as air pollution, drinking water, noise, chemicals, and The decision-making process for granting a taking of wildlife often call for licensing as part of license may be exercised by central authorities, their regulatory framework. As a result, hazardous regional or local bodies. The decision is typically installations such as nuclear plants, mines, based on information supplied by the applicant, natural gas or petroleum works are likely to have including a description of the planned activities, more stringent licensing requirements than other sometimes accompanied by maps and plans operations. Where environmentally hazardous of the installation and its surroundings, a study products are present, such as industrial chemicals, of accident risks, and a description of possible pesticides or pharmaceuticals, authorizations anti-pollution or anti-nuisance measures. In many may be required for the manufacture, marketing, cases, an environmental impact assessment will importation, exportation or use of the product. form part of the application procedure. Public information is normally required, including the Most licensing controls are not designed to display of notices and/or publication in the press, eliminate all pollution or risk of resource depletion, followed by public hearings and expert testimony. but rather to control serious pollution and to In general, the costs of the procedure are born conserve resources as much as possible. Pollution- by the public authorities, but in some jurisdictions, control licenses represent a middle ground costs are payable by the applicant. between unregulated industrial practices and absolute prohibition. They provide an addition or An essential condition for initial and continuing alternative to zoning as a means to site installations authorization in most licensing regimes is and to allow experimentation through the granting compliance with certain environmental standards, of temporary licenses. which are typically written into or incorporated by reference in licenses. These conditions are reviewed In terms of Afghanistan’s Environment Law, periodically and may require, for example, use of persons must obtain a permit or a license the best available techniques; compliance with in order to undertake a range of regulated obligations under national or international law activities. Examples include environmental impact relating to environmental protection; compliance

21 with limits or requirements and achievement of and provisions. At present, environmental impact quality standards or objectives prescribed by assessment is singularly important in both domestic legislation; imposition of emission limits; and and international environmental law. International a requirement of advance notification of any instruments today commonly provide that states proposed change in the operations of the activity should not undertake or authorize activities without or process. As mentioned above, Afghanistan is prior consideration, at an early stage, of their still in the process of developing environmental environmental effects. standards. Once this process is complete, however, the standards will be incorporated into Environmental impact assessment (EIA) seeks to the licensing processes. ensure that adequate and early information is obtained on likely environmental consequences Once a license is granted, it creates legal rights of development projects, on possible alternatives, and obligations and typically can only be and on measures to mitigate harm. It is generally cancelled after an investigation, a fair hearing a prerequisite to decisions to undertake or to and a decision based on relevant data, evidence authorize designated construction, processes or and facts. activities. EIA procedures generally require that a developer or business owner submit a written 4.4 Prior informed consent document to a designated agency or decision- making body, describing the probable or possible Prior informed consent (PIC) is a procedural future environmental impact of the intended mechanism utilized in advance of activities in action. An adequate and rigorous consideration order to avoid potential conflict and reduce of alternatives is at the heart of the EIA decision- the risks of environmental or social harm. making process. The study must produce Internationally, prior informed consent requires sufficient information to permit a reasonable obtaining and disseminating the decisions choice of alternatives as far as environmental of importing countries on whether they wish consequences are concerned. Where decisions to receive shipments of restricted or banned are made purely on economic and technical products after they have been fully informed grounds without regard to environmental costs about the hazards posed by the products. In most and benefits, the EIA may be rejected as seriously instances, the products to which the procedure flawed. applies are those that pose serious risks to health or the environment. In national law, judicially Not every proposed activity is subject to assessment, enforceable PIC procedures may apply to foreign only those that may be or are likely to cause products seeking entry into the country or mediate a stated level of harm to the environment. The access to a state’s biological resources, in order threshold differs in the many treaty references to to obtain disclosure of potential benefits arising EIA, with some referring to “measurable” effects, from the entry or access. Some national laws others “appreciable” or “significant” harm. The require the prior informed consent of indigenous most frequently stated formulation requires a and local communities before their resources can comprehensive EIA where the extent, nature, or be accessed. The Convention on Transboundary location of a proposed activity is such that it is likely Movements of Hazardous Wastes (Basel, March to significantly affect the environment. 22, 1989), which Afghanistan has signed but not ratified, applies this procedure. The requirement to conduct EIAs may be based upon: 4.5 Environmental impact assessment 1) Lists of categories of activities that by their nature are likely to have significant effects. Environmental impact procedures were first adopted in the 1960s; shortly thereafter, national 2) Lists of areas that are of special importance or laws and international treaties began imposing sensitivity (such as national parks) where the EIA requirements that were increasingly broad impact of any activity within or affecting such in their scope and detailed in their requirements areas must be assessed.

22 3) Lists of categories of resources or environmental 4.6 Land use regulation problems which are of special concern. Land use controls play a major role in environmental 4) An initial environmental evaluation of all activities, law for both urban and rural areas, through zoning, with a quick and informal assessment to determine physical planning, and the creation of protected whether the effects are likely to be significant. areas. Zoning helps distribute activities harmful to the environment in order to limit potential damage 5) Defined and listed criteria, which make an and allows application of different legal rules impact “significant.” from zone to zone for more effective protection. Zoning can also help implement the concept of In 2008, Afghanistan enacted Environmental Impact environmental justice by ensuring that the benefits Assessment Regulations under the Environment Law. and burdens of resource use are shared throughout society. The broader approach of physical planning Many questions arise and must be considered in merges provisions for infrastructure and town and establishing or judicially reviewing an environmental country planning in order to integrate conservation impact assessment procedure: of the environment into social and economic • What range of impacts must be discussed? development. Generally, once a planning scheme Threats to the health of living organisms and to for the relevant land and water areas is approved by environmental media (air, water, soil) are usually the state or local government, special procedures included. The EIA procedure may also require must be used to obtain exceptions. assessment of social and cultural impacts, Planning procedures may classify a city, a region or broadly defining the “environment” that must the entire territory of a country into broad land use be assessed. categories such as residential, industrial, agricultural, • What severity of impacts must be discussed? forest, or nature conservation. Designated The law can demand assessment of everything geographical areas may be given special legal from the “worst case scenario” or “all possible protection for nature conservation, including environmental consequences” to “reasonably national parks, reserves, and sanctuaries. foreseeable” impacts or “probable adverse effects”. On a national level, land use planning and zoning regulations are normally expressed in negative terms, • What degree of certainty is required? as prohibitions or restrictions on any undesirable Environmental impacts may be predicted by utilization or change in utilization of the area. “credible scientific evidence”, may be “known” Modern planning also may encourage and promote or may be “not unreasonably speculative”. economic land uses that are considered beneficial or compatible with environmental objectives and • How should magnitude and probability of harm special land use management plans. Because of the (risk) be evaluated? Consider, for example, evolution of environmental protection schemes and whether in normal circumstances a the numerous levels of government involved, land known to cause 10 extra cancers a year is safer use regulations can become extremely complex. than a pesticide that has a five percent chance of causing one hundred extra cancers annually and a 95 percent chance of causing none. 5 Litigation

Although earlier law did not specify with whom the It is through litigation that courts enjoy their unique assessment information had to be shared, and role in upholding the environmental rule of law. required no consultation with affected parties, today Environmental litigation can take many forms, consultation and dispersal of information to the public including civil actions based on contract or are important objectives of EIAs. Often cases are property law, criminal prosecutions, public interest brought because various parts of the public feel they litigation, or enforcement of constitutional rights. have been inadequately consulted or informed about Particularly complex issues may arise when cases the proposed project through the EIA process. involve transboundary environmental harm. This

23 chapter looks at some of the common problems jurisdictions allow class actions to be filed by one or that arise in the different types of environmental more members of the group or class of persons who litigation, including issues of jurisdiction, case have suffered a similar injury or have a similar cause management, and evidence and causation. of action. The class action is essentially a procedural device to quickly and efficiently dispose of cases 5.1 Jurisdiction where there are a large number of aggrieved persons. It helps ensure consistency in judgments Questions of locus standi (i.e. standing to sue), and awards of compensation, as well as prevents subject matter jurisdiction and exhaustion of proliferation of separate and individual actions. administrative remedies may arise in environmental Petitioners file on behalf of themselves and others of litigation. The lengthy period that can occur their class, representing the others and subsequently before harm appears after pollutants enter the others are asked to join in. Often public notices are environment also make it likely that some cases put out asking interested persons to join the case. will present issues of statutes of limitations or To be maintainable, class actions usually must be prescription of the claim. permitted under the procedural rules of the country, as in the U.S. and in India. Class actions may also a) Locus standi be permitted, even recommended by courts, as a means to enforce the Constitutional right to a healthy Traditional locus standi rules require a party environment when the specific facts threaten to bringing suit to have a sufficient interest or personal violate the rights of an undermined number of stake in the outcome of a case to distinguish the people. See Jose Cuesta Novoa and Miciades individual from other persons or the public at large. Ramirez Melo v. the Secretary of Public Health of The plaintiff must have experienced a distinct Bogota (May 17, 1995), Const. Ct., Colombia. injury traceable to the alleged conduct of the defendant. Individuals and groups have generally Public interest litigation differs from conventional been able to meet the requirement if they show litigation where the parties seek to resolve a dispute an injury to their aesthetic, conservational or that is peculiar to them and there is no impact on the recreational interests. general public except in so far as it clarifies the law on that point. Public interest litigation, on the contrary, Where injury is shown, it does not matter that the generally involves disputes over the rights of the public plaintiffs are only a few among many similarly or a segment of it and the grievance is often against affected. See Kajing Tubfk & Others v. Ekran Biid the state in respect of administrative or executive & Others, High Court, Kuala Lumpur (1996) (three action. Redress may be limited to a declaration individuals among a community of 10,000 are of the law on the point or an injunction, because not deprived of standing or relief because of their compensation is not usually the main objective. limited number). Public interest litigation is initiated usually by public interest groups and individuals. Some laws support In some jurisdictions, traditional property doctrines public interest litigation by broadly allowing actions to have served to expand standing. In Abdikadir Sheika abate any “imminent or substantial endangerment to Hassan and Others v. Wildlife Service (High health or environment.” These laws most often apply Court of Kenya, Case 2059/1996), for example, the to issues involving hazardous wastes. court permitted the plaintiff on his own behalf and on behalf of his community to bring suit to bar the agency Judicial powers in some states, e.g., India and from removing or dislocating a rare and endangered Pakistan, extend to allowing letters and petitions species from its natural habitat. The Court observed to the court to be converted into public interest that according to customary law, those entitled to use litigation. A letter from the Karachi Administration the land are also entitled to the fruits thereof, including Women’s Welfare Society, for example, complaining the fauna and flora; thus the applicants had standing of water for household use being polluted by to challenge the agency action. , was converted by the Supreme Court into Human Rights Case No. 9-K/1992. Where a Where numerous individuals are harmed, as is constitution includes a right to a clean and healthy often the case with environmental damage, many environment, courts have often allowed public

24 Box 4. Public Interest Standing In Ms. Shela Zia and Others v. WAPDA, PLD 1994 SC 693, the Supreme Court of Pakistan held that the right to a clean environment is a fundamental right of all citizens of Pakistan covered by the right to life and the right to dignity in arts. 6 and 14 of the Constitution of 1973.

The judgment clarified that public interest litigation could be brought without the necessary of standing to sue or of being directly affected as an “aggrieved person.” Following this decision, the Pakistan Chest Foundation and others brought an action against the Government asserting that tobacco advertising should be banned as a violation of the right to heath and an endangerment of human rights.

Addressing the issue of locus standi, the Lahore High Court held that public interest litigation can be initiated by any public spirited person who may feel the wrong done to him and others or it may be initiated on or behalf of a voluntary organization or association which has dedicated itself to work for and protect the rights of the people in particular fields. Such persons, bodies or associations cannot be termed as unconnected persons with causes involved in the cases they bring. The court ordered a ban on tobacco advertisements within three years of the date of judgment. See Pakistan Chest Foundation and Others v. Government of Pakistan, 1997 CLC 1379.

interest litigation. In Antonio Horvath Kiss y Otros v. are of great importance. In general, courts apply National Commission for the Environment (March “discovery” rules where the contamination is 19, 1997) the Supreme Court of Chile granted present in soils or groundwater and may not standing to citizens not directly affected because be apparent without scientific investigation or it found that the constitutional right to a healthy actual sampling. A statute of limitations thus environment does not impose a requirement that the ordinarily begins to run on the date plaintiff knew affected people themselves present the action. or reasonably should have known that personal injury or property damage was caused by a An important question in public interest litigation hazardous substance, pollutant or contaminant. is whether standing pertains only to individuals or Plaintiffs may also allege that contamination is also to nongovernmental organizations (NGOs). a continuing nuisance, or an ongoing harm or Many jurisdictions have recognized the capacity violation, and that thus the action is current rather of NGOs to sue on behalf of their members. For than only historical. Where contamination may not example, in India locus standi has been made be readily abated it may more easily be found to sufficiently flexible to permit the initiation of public be a continuing or permanent nuisance. interest litigation by interested organizations or individuals. The Indian Supreme Court has 5.2 Pre-trial issues essentially declared that there are two categories of standing: representative standing and citizen a) Dispute resolution standing (see Judges Transfer Case AIR 1982 SC 149). Representative standing permits public Many legal systems are based on a preference interest groups and others to represent injured for negotiation, compromise and settlement of persons or communities, usually in fundamental disputes. Even where settlement is not the formally rights cases. Citizen standing permits interested encouraged, settlements can be seen to further groups or persons to claim that as citizens they have justice, expedite the flow of cases and promote an interest in a matter of national importance; it is efficiency. Judges can promote settlement either used usually in the area of administrative law. by urging negotiations between the parties or by actively participating in them. In some instances b) Timelines judicial staff members conduct the negotiations and present any settlement reached to the judge Lawsuits for environmental harm are often brought for approval. Not only civil, but criminal cases may long after some or all of the contaminants initially be resolved without a trial. Even after litigation in entered the environment. Thus, statutes of limitations court has commenced, a judge may still be able

25 to work with the parties to negotiate a settlement Mediation is facilitated negotiation in which a acceptable to all sides. This may be especially skilled, impartial third party seeks to enhance important in complex litigation where proof of negotiations between parties to a conflict or their damages can be difficult. representatives by improving communication, identifying interests, and exploring possibilities for The case In re Sause Brothers Ocean Towing a mutually agreeable resolution. The disputants Concerning an from the Barge The remain responsible for negotiating a settlement, “Nestucca” off the Coast of British Columbia, and the mediator lacks power to impose any 769 F. Supp. 1147 (D. Oregon, 1991), provides an solution; the mediator’s role is to assist the process example. Due to negligence involving an oil tanker in ways acceptable to the parties. Typically this being towed by another vessel owned by the same involves supervising the bargaining, helping company, the tanker spilled some 850,000 litres the disputants to find areas of common ground of oil off the north Pacific coast, causing damage and to understand their alternatives, offering to the coastline of Canada by killing half a million possible solutions, and helping parties draft a final migratory birds, as well as otters, seals and sea settlement agreement. Mediation most often is a lions. Shellfish and crab fisheries were closed and voluntary process, but in some jurisdictions may various sea grasses destroyed. Claims were filed by be mandated by court order or statute. the Federal government of Canada, the provincial government of British Columbia, and two Native Arbitrators play a quasi-judicial role, in that they American tribal groups living in Canada. One of the typically render a decision or outcome with tribal groups claimed Can$23,656.344 for cleanup respect to the disputed matter, there are some and lost opportunity costs, collective food loss and crucial differences. Arbitration is usually the result environmental damage to members of the group. of an express, binding agreement between the The governmental claims were Can$4,382,000 parties to submit their dispute to a neutral third for cleanup costs and Can$ 3,349,500 for party whom they select, often from a roster of environmental damage. Three of the four claims specialists. The parties determine the scope of settled through negotiations supervised by the the arbitrators’ authority and the rules by which District Court; the company agreed to pay the full they shall proceed. In some legal systems, courts clean up costs and environmental damage claim may assign selected civil cases to arbitration as to the governments, to be used for purposes of a precondition to or substitute for trial. In general, restoration of the environment. The 23 million dollar arbitration is seen as less formal and more rapid indigenous claim was settled for Can$1,205,000, than judicial proceedings. covering environmental claims, commercial fishing claims and cleanup claims. The fourth claim The benefits of ADR can nonetheless be significant. remained to be decided in litigation because the ADR is generally viewed as increasing efficiency in company claimed it was filed too late. terms of the time and resources needed to resolve disputes. It also frequently reduces the time to b) Alternative Dispute Resolution (ADR) reach a final outcome, which in environmental cases can serve to help minimize or contain There exist a number of alternative dispute environmental damage. Finally, ADR encourages resolution (ADR) options that can provide parties constructive approaches to problem-solving with an efficient way to address problems and and reconciliation around mutually beneficial at the same time alleviate over-burdened court solutions. It also places the solution process in the dockets. The two most common types of ADR hands of the parties themselves, giving them a are mediation (sometimes also referred to as sense of vested ownership in the outcome. “conciliation”) and arbitration. References to arbitration and mediation appear in the national Additional advantages in using ADR exist for laws or court rules of many countries. Examples environmental cases. Certain ADR methods such of countries having laws endorsing or requiring as consensus building, facilitation, or conflict the use of ADR include: Colombia, Mexico, Chile, management dialogues have proven particularly Indonesia, , The United Kingdom, and the effective in the kind of multiparty litigation that United States. typifies environmental disputes. ADR is also

26 especially effective in environmental disputes application of the law but offer differing versions where parties have an ongoing relationship, such of the facts. A pollution case, for example, may as neighbors, where parties significantly benefit turn entirely on whether or not the defendant from improving their interrelationships in the released the harmful emissions or whether or not long run. ADR has been effective, for example, the pollutants caused the plaintiff’s injury. In other in addressing land-use and riparian disputes cases, both parties may agree on the relevant between neighbors. Moreover, because of the facts, but disagree on the application of the law procedural flexibility it affords, ADR allows for to those facts. It may be contested, for example, retention of subject matter experts as mediators whether an environmental statute or regulation and arbitrators, which in complex environmental applies to the particular conduct in question. Some cases can assist the process in moving forward. cases will involve questions of law and of fact.

ADR is also often used in international cases, many of Trial courts must have the necessary evidence them dealing with environmental or social concerns. to decide questions of fact in order to resolve In addition to privation mediation and arbitration disputes. If a trial court misinterprets or misapplies firms, the International Chamber of Commerce, the the law, its error can be corrected on appeal, International Center for the Settlement of Investment but if it lacks the necessary or relevant facts, the Disputes, the American Arbitration Association, and result is harder to correct. In an adversary system, the London Court of International Arbitration are the the obligation to present evidence rests on the best know bodies that provide arbitration services advocates for each side and it is assumed that and procedures for international disputes. they will bring forward all the evidence and legal arguments to support their positions. Nonetheless, c) Interim remedial measures judges generally have the authority to appoint experts or to make site visits to obtain the best Some cases present urgent issues whose resolution evidence about the environmental conditions in may be frustrated if the judiciary does not issue question. See e.g. Ramiah and Autard v. Minister preliminary orders preserving the status quo during of the Environment and Quality of Life (Mauritius the pendency of a case. One example can be seen Environment Appeal Tribunal, March 7, 1997) in the case of Sibaji Waiswa v. Kakira Sugar Work Ltd. (making a site visit to an area whose character as (High Court of Uganda at Jinja, Misc. App. 230/2001). a sensitive wetland was challenged). The applicant sought a temporary injunction to restrain the defendant from uprooting a protected a) Rules of procedure forest reserve and evicting residents to establish a sugar cane plantation. A prior case was pending The central objective of rules of procedure is to but the defendant had begun to take out trees and secure a just, speedy and inexpensive determination seed nurseries. The High Court issued a temporary of every action. Rules can lend transparency injunction on the basis that the alleged harm could and predictability to the judicial process and can not be remedied by an award of damages alone facilitate disposition on the merits. Some advocates and on balance the conduct should be restrained may attempt to abuse the rules by delay and add to until the case could be decided on its merits. the cost of proceedings. In appropriate cases court rules may specify the imposition of sanctions. The urgency of some issues means proceedings on provisional measures may be ex parte and judges b) Evidentiary proof may have to decide the matter very quickly. In some instances an undertaking or security may be In civil liability, as in international state responsibility, required to insure against possible losses. plaintiffs ordinarily have the burden of proof, which typically includes the requirement to establish 5.3 Trials causation, identify the polluter, and prove damage. The link of causality between a culpable act and Trials are usually the most time-consuming of the damage suffered must be established, and the judicial activities. In some cases, the disputing damage must not be too remote or too speculative. parties agree about the interpretation and Pollution cases pose specific problems in this regard

27 for several reasons. First, the distance separating of the discharge or a fine or penalty, without the the source from the place of damage may be need for a showing that that discharge caused any dozens or even hundreds of miles, creating doubts particular harm. This being said, causation generally about the causal link even where polluting activities needs to be shown to justify an environmental can be identified. Second, the noxious effects of damages award, and causes of action not based on a pollutant may not be experienced until years or prescriptive environmental statutes likewise generally decades after the act. Any increase in the rate of continue to require a showing of causation. cancer as a consequence of radioactive fallout, for example, can be substantially removed in c) Scientific uncertainty time from the polluting incident. This problem was Scientific uncertainty raises the question of how to highlighted by the 1986 Chernobyl accident, which protect public health and the environment when immediately caused twenty-nine deaths, but which conclusive evidence is not available. Evidence directly or indirectly may have produced thousands may, for example, fall short of demonstrating an of cases of cancer over the long term. Intervening irrefutable cause and effect connection between influences and contributory causes may play a role activities and injuries. Sometimes the law permits as well. Third, some types of damage occur only activities to take place before there has been time if the pollution continues over time. This is true of or opportunity to test the substances or activities to the deterioration of buildings and monuments, for guarantee that the discharges will not be injurious example, or, in certain circumstances, destruction in some way. of vegetation. The very term “scientific” implies foundations Even at a short distance, proving the identity of in the methods and procedures of science. the polluter can pose problems. For example, Knowledge connotes more than speculative belief gas emissions from motor vehicles are harmful, or unsupported conjecture. The term applies to including the fumes of each individual automobile. any body of known facts or to any body of ideas Yet it is difficult to apply rules of responsibility and inferred from such facts or accepted as truthful demand reparations from each driver because the on solid grounds. Scientific testimony need not be numbers are too great and the effects produced known to a certainty, but inferences and assertions by each unit are relatively limited. Nonetheless should be derived by the . the cumulative effects are significant due to the Judges are asked to apply rules of evidence part played by nitrous oxide (NO2) and burned where ambiguities exist and experts differ. hydrocarbons (HC) in the formation of ozone at medium altitudes during sunny periods. Proof of causation is also sometimes made difficult by the fact that some substances cause little harm in Box 5. Assessing Scientific Evidence isolation but are toxic in combination. Imputing Some factors have been identified as responsibility to one source rather than another assisting in a determination about the value can also be difficult. of scientific evidence: 1) Can the scientific theory or technique be In some circumstances, modern environmental tested? law has decreased the imperative traditionally associated with establishing causation. For example, 2) Has the theory or technique been subject in a circumstance in which legislation or sub- to peer review and publication? legislation has prescribed in some detail both 3) Is there a known or potential rate of what constitutes an environmental violation and error? the remedies that flow from that violation, proof of 4) Has the theory or technique widespread causation in the traditional sense may not need to acceptance or only minimum support be shown. To illustrate, if a regulatory regime prohibits within the scientific community? surface water discharges except when permitted by a license, then the mere fact that there has been an 5) Is the theory or technique both reliable and unpermitted discharge may give rise to liability, and credible? such remedies as an injunction requiring cessation

28 Evidence should generally assist the trier of fact to remedies that judges reinforce the rule of law in the understand the issue and should rest upon reliable, environmental setting by ensuring that violators do scientifically valid principles. The judge may be not gain advantage by virtue of their misdeeds. required to make findings of fact on the reliability of complicated scientific methodologies. The remedial challenge presented by a given case will depend on the nature of the case. Because The judge will often need to weigh conflicting constitutional mandates are typically expressed testimony by scientific experts. As a practical generally and without remedial guidance, remedies matter, the issue of expert opinion testimony is in cases involving constitutional violations may, in most problematic when the experts have been particular, require judicial discretion and creativity. hired and paid by one side or the other. It can give the appearance, and may be the reality, that the Judges may, for example: expert view is more in the nature of advocacy for • order a halt to unconstitutional conduct, the employer than unbiased expert analysis. • direct that specific remedial actions be In Anderson v. American Smelting & Refining Co., undertaken, 265 Fed. Rep. 928 (1919), a typical case, the • compensate for past wrong, and/or court indicated some of the problems: “It must not be overlooked that witnesses who give opinion • provide for a complex, prolonged regime of evidence are sometimes unconsciously influenced performance. by their environment, and their evidence colored, if Far more frequent than constitutional cases are not determined, by their point of view. The weight to matters that involve the enforcement of statutes be given to such evidence must be determined in or administrative regulations. In this setting, judges the light of the knowledge, the training, the power of are frequently called upon to resolve different observation and analysis, and in general the mental interpretations of the law, and the resulting decision equipment, of each witness, assuming. . . that the can have implications beyond the case at hand. The witnesses of the respective parties were honest and technical complexity of many environmental laws intended to testify to the truth as they perceived it.” can lead to statutory ambiguity or a decision by the In some jurisdictions courts have the authority to framers of such laws to settle on broad and general appoint their own scientific experts, or undertake terms that mask disagreement over the detailed an independent inquiry or undertake their own fact- substance of the law. Moreover, technological finding to establish disputed facts. Other courts may changes may require judges to face unanticipated appoint independent commissions or committees applications of the law. For example, most intellectual to do so. For example, see Khelum v. The Director, property laws were written without anticipating the Industries and Mineral Development, Punjab Lahore, emergence of biotechnology and the question of 1996 SC MR 2061 (Supreme Court of Pakistan). whether or not living organisms can be patented. Judges have been asked to determine whether the broad language of the patent law, intended to 6 Remedies and enforcement reward creativity and invention, should be applied to living organisms. A decision to so extend the law Courts approach the issue of remedies by applying has broad policy consequences. specified remedies where mandated and invoking inherent powers where not. In either case, In addition, the question may arise about whether actions that are brought based upon harm to the a judge should imply a remedy when a statute environment require the creation of appropriate has been violated. Some courts will strictly remedies. In a sense, it is in the fashioning of construe statutes and deny a remedy if one is not remedies that judges work most directly with expressly provided. Other courts imply remedies for the principles of sustainable development. It is private injuries caused by violations of statutes or in this setting, for example, that judges practice regulations. In this setting, the statutes or regulations prevention and give substance to the polluter may establish a standard of care against which pays principle. It is also through the fashioning of wrongdoing is measured and that can lead to

29 liability when the violation causes injury to another 1. Injunctive relief to halt the harmful activity; party. Administrative procedures may exist for 2. Damages to compensate for harm suffered; enforcing the standard, but may not provide relief 3. Orders of restitution or remediation; to the injured. In such instances, the court must consider, among other things, whether implying a 4. Sanctions to punish the wrongdoer and to private remedy furthers the statutory or regulatory deter future violations; and purpose or could complicate or interfere with 5. Awards of costs and fees. governmental enforcement. Each element of this remedial hierarchy will be In many circumstances, judicial remedies in discussed in turn. environmental cases combine different elements of relief. For example, in Vellore Citizens Welfare Forum 6.1 Injunctions v. Union of India, the Supreme Court found that tanneries in the State of Tamil Nadu were causing Wherever possible, prevention of harm should be serious pollution. The Court subjected each tannery the court’s primary objective, especially where to a fine. The sums generated by the fines were to there is a constitutional or legislative obligation be placed an environmental protection fund to be to protect the environment. The principle of used to restore the environment and compensate prevention will most likely necessitate injunctive affected persons. The tanneries were also required relief where the threat of harm is imminent or to set up common effluent treatment plants or harmful activity is on-going. Injunctive relief is a individual pollution control devices. Failure to long-standing remedy that can abate pollution comply would result in closure. No new plants were or other environmental harm. permitted to open. The Supreme Court delegated authority to monitor compliance to a Special Bench Injunctions can be preliminary (immediate), of the Madras High Court, called the “Green Bench.” temporary, or permanent, and typically issue See also M.C. Mehta v. Union of India and Others, according to an evaluation of several factors: AIR 1988 SC 1115; M.C. Mehta v. Union of India and irreparable harm, the absence of other remedies, Others, SC Writ Petition (Civil) No. 860 of 1991. practicability of compliance, threats to public health, financial effect on the defendant. Preliminary While remedies are very much case-specific, and or emergency injunctions, which are frequently turn on the nature of the violation and the prayer for issued according to expedited procedures, can relief in the case, courts tend to give priority to the be particularly appropriate in environmental cases following kinds of remedies in environmental cases: where urgent action is needed.

Box 6. Mandamus The Supreme Court of Nepal issued a series of mandatory orders to protect the environment and religious and cultural sites of importance. Prakash Mani Sharma & Others Pro Public v. HMG, Cabinet Secretariat & Others, Writ No. 3017 (1995) (SC, Nepal). These orders included mandamus writs issued to: • the Ministry of Youth, Sport, and Archaeological Department, to make proper arrangements for the protection of temples and other archaeologically and historically important places under the Ancient Monument Protection Act 1956; • the Trust Corporation to keep accounts of ancient cultural assets under the Trust Corporation Act 1977; • the city of Katmandu to fulfil its obligation to protect the environment and cultural assets under the Municipality Act 1991; • regional water authorities to establish a treatment plant to purify drainage water; and • the national authorities to protect religious, cultural and archaeologically important assets and to promote a healthy environment through making the Bagmati River free of pollution.

30 The decision to issue an injunction and the form of the plants, shelter) and services (life support, recreation, injunction are left to the trial judge as an exercise of assimilation of contaminants) provided during the equitable discretion. In some instances, injunctions time a given activity is taking place. Any diminution can be important to securing compliance with the in the quality or quantity of the flow of goods law and requiring affirmative remediation of harmful and services associated with an alteration of the environmental conditions. Administrative agencies environment due to the activity can be considered frequently participate in setting out a detailed as environmental harm. schedule of required actions designed to cure the violation and remediate the harm. The total economic value of environmental harm incorporates both values of use, direct and indirect, Injunctive relief is commonly authorized by and values not based on use or exploitation. Uses can environmental statutes. It also is typically available involve consumption (trees, fish) or non-consumptive at common law. The common law of nuisance, for actions (bird-watching). Indirect uses include, example, allows an equitable remedy of injunction for example, prevention of erosion and flooding when harm is threatened and before irreparable by preserving ground-cover and maintenance harm ensues. It can also abate a continuing of plankton as part of the marine food chain. nuisance, as necessary. Preservation of options for future services is also a use that is impaired by environmental harm. Non-use Mandamus orders are sometimes deployed by values include preserving nature for its intrinsic value common law courts as a means of enjoining or and conservation on behalf of future generations. directing government officials to comply with statutory obligations. Various valuation methods can be used. For products derived from environmental components, such as fish 6.2 Damages or timber, market value can usually be determined for losses sustained. For non-market goods and services, Where the harm has already occurred, indemnities indirect methods must be used. One is the cost of or compensatory damages may be awarded the rehabilitation or restoration where this is possible. injured party. The basic function of an award of There may be associated economic costs such damages is to compensate for the full losses suffered as lost earnings or hedonic damages associated to the environment and the services it provides with the pleasure derived from recreational or as well as the expenses that have been incurred landscape benefits from the harmed environment. due to the environmental harm. The exact type of All damage awards require determining the base award depends upon the nature of the harm, the line of evaluation, the pre-harm value. characteristics of the environment in question, and the technical capacity to repair the damage. In the famous Trail Smelter Arbitration between the US and Canada over damage caused in the US by Any award of damages or indemnity requires giving air pollution coming from the Canadian smelter, an economic value to the losses suffered. There the tribunal considered the problem of assessing are many difficulties that arise in this respect when damages for environmental harm and the relevant environmental damage occurs. Not all parts of the principles of law. The tribunal quoted with approval environment are easily valued. There are many a national decision that said: environmental components that have no market value, because they are not openly traded or they “Where the tort itself is of such a nature as to are considered public goods (e.g. clean air), public preclude the ascertainment of the amount trusts (beaches) or national patrimony (national parks). of damages with certainty, it would be a Abstract but crucial environmental services such as perversion of fundamental principles of justice life-support systems or pollination by bees have not to deny all relief to the injured person, and been generally considered in economic terms. thereby relieve the wrongdoer from making any amend for his acts. In such case, while In general, however, the economic value of the the damages may not be determined by mere environment as a whole can be considered as speculation or guess, it will be enough if the the sum of all the goods (food, lumber, medicinal evidence shows the extent of the damages

31 as a matter of just and reasonable inference, often produce a better result for the environment. although the result be only approximate.” For example, where the defendant was found to have dumped wastes on a neighbour’s property, In general, property damages have been the High Court of Kenya ordered the wrongdoer to recovered for: clean up the waste. See Paul K. Nzangu v. Mbiti Ndili • loss of value, (High Court of Kenya at Machakos, Case 8/1991). • lost profits, In deciding on restoration or remediation as the • other economic loss such as rental value, appropriate remedy courts generally take into costs of cleanup, repair or remediation to the consideration not only the possibility, but also property. the cost of remediation. Some jurisdictions limit remediation costs to the fair market value of the Personal injury damages have been assessed for: property. Other jurisdictions simply order restoration • injury, without regard to cost. • disease, • increased risk of disease, 6.4 Sanctions and penalties • emotional distress, In addition to enjoining harmful environmental • fear of contracting disease, and conditions and granting compensation for • medical monitoring for early detection. the damages caused by such conditions, the other critical function performed by judges in Perhaps the most difficult area, and one on which fashioning remedies in environmental cases is courts differ, concerns whether or not a present penalizing environmental wrongdoing. As is the claim can be presented for suffering based upon case with all law enforcement, the objective in exposure to a carcinogenic substance or ingestion punishing violators is not so much punishment of a toxic substance prior to the onset of physical for punishment’s sake. Rather, it is to express symptoms. One court has imposed a requirement community rejection of the conduct and send a that the plaintiff show exposure to a toxin and message of “deterrence” that discourages similar more than a 50 percent probability of developing misconduct in the future. cancer in order to prevail on an anticipatory claim of this kind. Other courts have said that plaintiffs While in some jurisdictions punitive damages may must show more than a generalized fear, or that serve a role in punishing non-compliance, the two the fear must be rationally based. Where the risk principal means of penalizing environmental misdeeds is particularly high, a plaintiff may be able to are civil penalties and criminal sanctions, such as presently recover the full value of a future disease criminal fines and incarceration. Other sanctions by showing a probability of contracting it because may include community service and other innovative of exposure to the defendant’s toxic product or measures that have a nexus with the wrong. other wrongful conduct. This may be the only way to recover where there is a long latency period a) Financial sanctions and short statute of limitations. The considerations that guide assessment of financial 6.3 Restitution and remediation sanctions are similar whether the penalty is civil or criminal in nature. Thus, whether a judge is assessing In many legal systems, including the international a criminal fine or a civil penalty (in a system which one, restitution is the preferred remedy if it is possible allows for civil penalties), it is valuable for the judge for the injury to be wiped out and the situation to consider the deterrence value, and measure of restored to its pre-injury state. In environmental consistency in approach, offered by assessing fines cases courts often order environmental harm to be and penalties that, at a very minimum, disgorge the cleaned up or the damaged ecosystem returned economic benefit that a polluter realized by virtue to a healthy state. Such orders, which are closely of its non-compliance. There are methodologies related to injunctions in the sense that they compel for determining the economic benefit of non- action, may substitute for compensation and will compliance that can also be discussed.

32 This is important in part because technology (Quebec Court, 1993) indicates how motive, and processes designed to curb environmental damage, and intent play a role in penalties. degradation can impose significant short-term The company deliberately chose to violate costs on polluters. Many polluters opt to violate the authorizations and continue operating despite law, assuming that they will not be apprehended having no authorization. Criminal charges were or if they are caught that the penalties assessed will brought against the company and its directors. The be less costly than taking the measures required directors entered into a plea bargain. The company to comply with the law. In order to preserve profits, was assessed the highest Canadian penalty for individuals or companies may be tempted to ignore pollution to that date. It had to pay Can$1 million regulations and legislation mandating anti-pollution as a fine and Can$3 million into a special account measures. Similarly, when products are banned, administered by the Ministry of the Environment such as ozone-depleting substances or trade for fish and fish habitat protection. The court in endangered species, incentives to continue also ordered the section of the company’s plant trading increase as the ban becomes effective responsible for the pollution to remain closed. and scarcity produces rising prices. It is notable that some courts have imposed In most cases, administrative and judicial penalties financial sanctions on governments for breaching may be imposed within a statutory range. Where it environmental law. In R. (Environment Canada) v R. is allowed, per diem penalties focus the violator’s (Northwest Territories Canada) (1993) 12 C.E.L.R. 55, attention on the need for immediate cessation of a judge in the Northwest Territories Territorial Court the illegal act and the need for remedial action. imposed a fine of Can$49,000 and payment of Violations of the US Clean Air Act, for example, may $40,000 on the Northwest Territorial Government be up to $25,000 per day of violation. Violations for illegally discharging raw, untreated sewage into that occur over several days may be considered a lagoon on Baffin Island. The parties argued that separate daily violations. Again, at a minimum a government should be excused from financial all economic benefits realized by a violator from penalty since a fine would do no more than transfer non-compliance should be recovered. Penalties taxpayers’ money from one government fund to should also be large enough to deter further non-compliance, ensure fair and equitable another. The judge disagreed, finding it compelling treatment throughout the regulated community, that governments accused of offences should and promote swift resolution of environmental receive no special consideration and, indeed, problems and enforcement actions. While it found that the very fact of governmental action may be tempting to excuse violations of record- could be taken as an aggravating factor. In the keeping or similar requirements absent some court’s view, unlawful government conduct is not to clear environmental consequence, statutory or be taken lightly because it is the antithesis of good regulatory demands that enterprises maintain government and arguably constitutes a breach records of their operations, their emissions, and their of the government’s trust responsibility to protect compliance with applicable statutes are essential to species and the environment. the effectiveness of environmental law. Information is powerful knowledge and directly facilitates b) Community service for the environment the government’s ability to combat polluters and It may be appropriate to require clean up of a despoilers of the environment, the very targets of site, or the drafting and implementation of an the law. The penalties for non-compliance should environmental compliance plan, or performance be appropriate to ensure that those involved recognize the importance of cooperating with of community service as alternatives or additions environmental officials to obtain the necessary to to fines or imprisonment. In United States v. John data to monitor activities that may harm health and T. Frederick (D. Mich. July 7, 2003), the person the environment. convicted of selling a banned pesticide was sentenced to nine months in prison but was also Increasingly, courts are imposing serious criminal ordered to place advertisements in trade journals fines for environmental wrongdoing. For example, and notify customers that he violated the law and the Canadian case R.V. Tioxide Canada Inc. that he will no longer sell the banned product.

33 c) Imprisonment sentenced to serve nine years in prison and pay a $20,000 fine; the other was sentenced to six and As a reflection of growing awareness among one-half years in prison. Both defendants were the judiciary of the seriousness of environmental convicted on one count of conspiring to operate the wrongdoing, laws and courts are increasingly plant in violation of environmental laws, one count punishing wrongdoers by imprisonment. In South of knowing endangerment under the U.S. hazardous Australia, the Environmental Protection Act of 1993 waste laws, and a variety of other environmental establishes a sanction of up to 4 years imprisonment offenses. Workers at the Brunswick plant were and/or a $250,000 fine for causing serious repeatedly exposed to imminent danger of death environmental harm. The Environmental Protection and serious bodily injury by working conditions (Water Quality) Policy of 2003 Obligation prohibits which exposed them to possible chemical burns, discharge or deposit of listed pollutants into water’s electrocution, and poisoning from inhalation of or onto certain land and has a mandatory sanction mercury vapors and from other contacts with for intentional or reckless contravention of $30,000 mercury-contaminated and corrosive wastes. and/or 7 years imprisonment. d) Some guidelines for assessing sanctions in Canada’s Environmental Protection Act (CEPA) environmental cases includes penalties of fines or imprisonment or both, court orders to accompany a fine or imprisonment, The criteria considered by courts in assessing and court orders governing conditional discharge sanctions in environmental cases typically include of the offender. Upon conviction of an offender the following: for a violation of CEPA 1999, enforcement officers recommend that Crown prosecutors request penalties • Seriousness of the offence. The potential for that are proportionate to the nature and gravity of harm to the environment and the regulatory the offence. When making recommendations to scheme, the extent of the damage caused, prosecutors, enforcement officers apply the criteria and the blameworthiness of the defendant found in CEPA 1999. Those criteria include the harm should all be considered in assessing penalties. or risk of harm, corrective actions already taken, Specific factors for evaluating the seriousness negligence, and deterring effect of the proposed of the offence include the amount by which sentencing. With respect to toxic substances, any emissions exceeded the applicable persons who contravene the act and intentionally standard, the toxicity of the pollutant, the or recklessly cause a disaster or show wanton or sensitivity of the surrounding environment, and reckless disregard for the safety of other persons, the length of time of the violation. In general, may be liable to an unlimited fine and up to five how much did the conduct diverge from the years imprisonment under the Criminal Code. If required behaviour? Whether the defendant death results from such criminal negligence, the has a history of violations or has made a good maximum penalty is life imprisonment. Some U.S. faith effort to comply is also relevant. laws on environmental crimes are indicated in the box below. • Ability to pay. The penalty should reflect the means available to the defendant. For example, In Australia, a private party found to be wilfully a fine appropriate for an individual or a small pumping sewage into an adjacent river in violation company will have little impact on a large of environmental laws was convicted and sentenced enterprise. The latter should suffer a penalty to 12 months imprisonment. He also had to pay appropriate and substantial enough to have a $250,000 fine and the prosecutor’s costs of $170,000. real economic impact and be greater than the Environment Protection Authority v. Charles Gardner, cost of complying with the legal requirements. Land and Environment Court of New South Wales, At the same time, a fine that is too large can Matter No. 50072/96 and 50074/96. In United take away the financial resources necessary States v. Hansen, 262 F.3d 1217 (11th Cir. 2001), the to ensure future compliance or remediate court sentenced two officers and managers of LCP existing contamination. Nonetheless, closure of a Chemicals of Brunswick, Georgia, to lengthy prison company is generally considered an appropriate sentences for their environmental crimes. One was penalty for repeated, serious offences.

34 • Economic gain. The profits obtained or costs or other powerful interests unless their costs can deferred or avoided through non-complying be recovered. Where awards are made, the fee actions should be reflected in the penalty. No is often computed by multiplying the number of offender should profit from its misdeeds. Thus, hours reasonably expended by a reasonable for example, one who has carried on an activity hourly rate. This may be adjusted up or down to without a required permit or license should have reflect case-specific considerations. a fine high enough to disgorge such economic benefits as avoided licensing fees, the value A growing issue is whether or not public interest of having postponed capital expenditures on litigation should be subject to the same rules as needed pollution control equipment (i.e., the private litigation or whether the public is better investment value to the polluter of money which served by having such cases brought. The concern would have been spent on pollution control that fear of costs may be a disincentive to public equipment had the violator timely complied), interest litigation and establishing a principle that and any avoided costs, such as the cost of bone fide public interest cases will not bear the maintaining pollution control equipment that costs of litigation will avoid discouraging applicants should have been in place earlier. has led some courts to announce through an early order that no costs will be awarded. • Polluter pays. The sanction should reflect the value of the overall damage caused by the 6.6 Enforcement of judicial decisions offender, and the social, environmental and economic impacts. In other words, the sanction Courts have had recourse to innovative oversight should force internalization of environmental mechanisms to ensure compliance with judgments and other costs. in environmental cases. Those held responsible for violations of environmental laws or causing • Abatement costs. Ensuring payment of the environmental harm may be directed to return to costs of clean up, restoration or remediation court with plans for compliance or remediation should be paramount. Generally, sanctions and targets and timetables for completing the tasks should be in addition to rather than in lieu set forth. Courts in India and Pakistan, amongst of compensatory remedies to ensure the others, have appointed oversight commissions deterrence effect of the overall remedy. to monitor compliance and report back to the court on measures needed or adjustments that 6.5 Attorney’s fees and costs may be required. Often considerable judicial oversight is needed to ensure fulfilment of structural Some legal systems, like those based on English injunctions. In extreme cases the court may place common law, normally award attorneys fees and an environmental resource in receivership. costs to prevailing parties; in other legal systems, various environmental laws have changed the Judicial authorities on occasion face non- traditional practice of each side bearing its own compliance with judgments. When this happens costs, and allow the recovery of attorney’s fees by most courts have power to punish acts committed any “prevailing or substantially prevailing party.” in contempt of court; indeed, just as judicial Judges must therefore decide how successful a enforcement of environmental requirements is party must be in order for an award of attorney’s essential to the integrity of those requirements, fees and costs to be appropriate. Most courts judicial enforcement of judgments is fundamental require success on at least one substantive claim to the integrity of those judgments and to societal or central issue, but do not demand that all or respect for the rule of law. The High Court of Jammu even the majority of arguments be won. and Kashmir at Srinagar issued a show cause order regarding contempt of court proceedings when Awards are generally not granted for trivial the state was found to have permitted logging success or purely procedural victories. Reasonable in violation of a Supreme Court injunction. M/S awards of fees tend to enable citizen lawsuits Aziz Timber Corp. and Others v. State of Jammu to enforce environmental law, as many citizen & Kashmir through Chief Secretary and Others, litigants cannot afford to sue large companies Continuing Petition No. 51/96.

35 Box 7. Monitoring judgments In General Secretary, West Pakistan Salt Mines Labour Union (CBA) Hkewra, Jhelum v. The Director, Industries and Mineral Development, Punjab, Lahore, 1994 SCMR 2061, the petitioners sought enforcement of the right to clean and unpolluted water. The mine’s operations threatened contamination of the water catchment area, the water course, reservoir and pipelines. The Supreme Court directed the mining company to shift their operations within four months to avoid water pollution and appointed a commission of four persons to oversee compliance. The Commission was given the power of inspection, recording evidence, and examining witnesses and was directed to report back to the court. If compliance was not forthcoming or possible, the Court retained jurisdiction to determine whether the operation of the mine should be completely halted. The court directed the company and all miners operating adjacent to the water catchment area to take such measures to the satisfaction of the commission to prevent pollution of the water source reservoir, stream beds and water catchment area. The Court further ordered administrative authorities to refrain from any issuing any new or renewed licenses for mining in the region without the Court’s prior approval.

36 Part B: Principle Areas of Environmental Law

7 Water and generally is closely connected with surface waters, but their legal regimes are often distinct. The law and science relating to water is vast. This Moreover, even the same type of water source is perhaps unsurprising given that water is critical may be regulated differently, according to the to life and waters cover over 70% of the earth’s use to which the waters are put (e.g., domestic, surface. Fresh water accounts for only 2.7% of the agricultural and industrial purposes). Judges in earth’s water and a large proportion of this limited many countries encounter cases concerning water quantity is frozen in glacial ice caps at the two pollution, allocation of water, and the regulation poles and on high mountains. At the same time the of fishing and other uses of water resources. This demand for water has risen with increasing human chapter looks first at the problems of fresh water population and economic activity. only – although marine water is of relevance to this chapter, it is not covered due to the fact that Many water-stressed areas have been forced to Afghanistan is a landlocked country. turn to their groundwater reserves, which frequently Freshwater resources raise not only quantitative but are pumped faster than they can be replenished. also qualitative problems. In 2004, more than a In addition to pressure on water resources from billion people lack safe drinking water and nearly economic development and changes in social three times that number lack access to sanitation consumption patterns, water supply increasingly services. Sewage disposal is a classic use of is constrained by land use changes (for example flowing water and has been linked to epidemics forest clearance, which tends to increase of plague and cholera. The disposal of chemicals run-off and reduce water availability) and and hazardous wastes and the use of pesticides contamination from human settlements, industry and fertilizers can affect the quality of water. The and agriculture. World Health Organization (WHO) estimates that Water law usually has the objective of restoring almost half of the world’s population is suffering and maintaining the chemical, physical and from debilitating water-borne or water-related biological integrity of inland and marine waters. It diseases, which account for an estimated five may regulate the discharge of pollutants, activities million deaths each year, although good progress affecting wetlands, accidental spills, and the has been made in reducing the incidence of some diseases. use and disposal of wastes. Most enforcement agencies are given powers to assess administrative penalties, issue orders and initiate civil judicial 7.1 National law actions. The legal treatment of pollution also is National water law in some jurisdictions includes complicated by differences between identifiable a right to water; in others, it contemplates “point” sources and “diffuse” sources of pollution. a sophisticated regulatory system for water The latter category includes emissions that management. individually or separately are responsible for possibly insignificant amounts of pollution, such a) Water rights as small, often continuous discharges of wastes and utilization of pesticides and fertilizers in The right to water is recognized explicitly by agriculture. certain national Constitutions (Columbia, Article 366; Ecuador, Articles 20 and 42) or is protected Laws and regulations typically require that any indirectly by including it in the right to food and discharges into water require a permit and impose health (India, Pakistan, Bangladesh). strict liability on those who make discharges without or in violation of the conditions of a permit. The Pakistani judgment in the case of Mst. Ameer Knowledge or intent is frequently irrelevant. One- Bano v. S.E. Highways, PLD 1996 Lahore 592, quarter of all freshwater is found under the soil demonstrates the way in which some courts have

37 inferred a right to water and provide remedies when avoid unsustainable utilisation. At each state the right is violated. The case dealt with overflowing level -- central, regional and local -- authorities sewerage systems in the city of Bahawalpur. The adopt and implement water management plans petitioner alleged that the sewerage system had often based on the catchment basin. Decisions become totally unserviceable with the result that on water also take into account the particular sewage water had collected in the form of ponds, conditions at regional or local level. Specific in some cases entering into houses and onto the watercourses or lakes can be protected by roads. Increasing road construction was diverting prohibiting construction or works in their proximity even more water into residences. The Court found or submitting such activities to prior authorization. that residents could contract many diseases Rivers and lakes situated in zones of ecological and their lives would be endangered due to the protection benefit from the general protection pollution. Thus, protection to life guaranteed under accorded these zones. art. 9 of the Constitution would be denied to large number of citizens. The Court treated the petition National water law frequently uses the techniques as public interest litigation for the enforcement of environmental impact assessment, licensing, of fundamental rights and due to the urgency and prohibitions. involved decided the petition immediately. The court issued directions to protect the citizens from c) Water as a public resource or a commodity polluted water. The legal status of water as a commodity privately b) Water regulation owned by individuals varies between jurisdictions. Some states are increasingly experimenting with In most jurisdictions, water regulatory regimes are privatization of water management functions based on prevention, precaution and remediation previously held in the public domain, with some at source as well as the “polluter pays” principle. success in attracting investment to improve water To this end, states use regulatory instruments infrastructure; etc. such as water quality objectives, discharge standards, the best available and In other states (e.g. Spain, Greece) waters above economic instruments compatible with meeting and under the ground are placed in the public the population’s basic needs. Water concessions domain. This means that the government retains may be granted for a limited duration and made authority to grant water–use rights subject to subject to periodic review. terms and conditions, including modification or revocation of the rights by the government under Underground water resources are typically the given circumstances, subject in some jurisdictions subject of special protection, and their use for to compensation if the modification is not due human consumption is given priority. Pollution of to the fault of the right-holder. When there are groundwater can be caused by direct discharge, existing or vested water rights, both actual and or by indirect percolation of pollutants through the potential, the government may seek to assert its ground or subsoil. Agricultural activities, including role as owner or guardian of the resource and the use of fertilizers or pesticides, and dumping regulate its uses on behalf of the public. While of or other wastes containing polluting any legislature may change the rules of water substances play an important role in this regard. use, it is widely held that any changes should not Groundwater can also be polluted by accident, cause undue hardship to “existing” users. As is the through breakage of pipes, leaking reservoirs or case with all environmental regulation, retroactive cisterns, or traffic accidents involving vehicles application of the rules may give rise to a claim of carrying polluting substances. Laws to protect compensation for expropriation. Afghanistan has groundwater, whose deterioration is difficult to adopted a similar position to this, although its new reverse, often take into account these factors. Water Law incorporates elements of the market mechanisms referred to below. Laws and policies may require careful assessment and monitoring of large-scale consumption of The transfer of water rights, i.e., their exchanging water in agricultural or industrial processes to hands and use through government agency

38 of market mechanisms, is practiced subject to effects of water to forestry, fisheries and mining considerable restrictions. The general trend is to development, from coastal zone management allow some flexibility in this domain, subject to to the control of . River basin prior government approval of a transfer. Far less plans must be coordinated with other general flexibility exists in the domain of irrigation-water development plans and with land-use plans, rights, which tend to attach to the land they serve. and have a binding effect. Water pollution The issue of water-rights mobility is particularly control legislation includes mandates for specific relevant in arid countries. plans. d) Water resource management e) Access to water resources

The management of water resources is more For distribution of water, some countries adopt and more generally recognized as a necessity. private rights models. For example, the U.S. leaves Generally, effective water management requires water allocation to state law, which largely uses legislative action and the use of legal mechanisms private water rights doctrines to allocate water as well the existence of adequate administrative quantity among competing users. Private rights and judicial structures for sound short-term and models may vary depending on the jurisdiction; long-term decision-making and for ensuring for example, one scheme may give precedence compliance with such decisions. In Spain, water- to the party that first exploits the water resource resources planning has a central role in the (first-in-time, first-in-right); others allocate water overall legal framework for the management rights based on geographic location, seeking to of the country’s water resources. The legislation balance between the interests of upstream and provides a river-basin plan and national downstream riparians. Disputes between interests hydrological plan, the contents of the plans, the with competing claims to a water resource process of forming, approving and revising the frequently lead to litigation. plans and the effects of the approved plans. Water resources planning is to be coordinated 7.2 International law: transboundary with other sectoral planning exercises, most water resources notably in the fields of agriculture, energy and land-use, and such coordination is to be effected The complexity of regulating water resources is at the level of the national hydrological plan. The accentuated when inland waters are divided by participation of the general public is expressly international boundaries. Rivers may constitute provided. the border between two countries, traverse the frontier, or even combine the two characteristics, In Germany two different kinds of planning as with the Danube, the Rhine and the Rio Grande. instruments, at the river basin or regional Water regulation thus must adapt itself to multiple level is to guide and orient all governmental situations, resulting in a variety of regulatory decision-making with regard to water-resources schemes, both at the national and international management. Co-ordination of water planning levels, often influenced by economic and political with land-use planning and regional-development factors. See France, Tribunal administratif de objectives is mandatory. In the Netherlands, Strasbourg, July 27, 1983, La province de la comprehensive legislation for water-resources Hollande septentrionale v. Etat français, R.J.E., management provides for the formation of 1983/4, 343. different interrelated water-planning instruments at state, provincial and local levels, covering Early international cooperation concerning surfacewater-resources management in regard to rivers and lakes mainly concerned utilization of quantity and quality. Groundwater management the watercourses for specific purposes, such as plans are provided for by separate legislation. navigation or irrigation, or management of certain In Italy a river-basin approach provides for risks such as flood. At first, particular water pollution river-basin plans, spanning conservation to problems were addressed when harmful activities development, from water allocation to water originated in neighbouring countries, applying pollution control, from the control of harmful general precedents and norms of transfrontier

39 pollution. Later, the development of international 8 Air environmental law led to the adoption of rules and principles to govern the conduct of states The introduction of pollutants into the atmosphere in respect to the conservation and harmonious creates multiple effects, because the air is utilization of natural resources shared by two or essentially a place of transit: gases or particles more states. remain there temporarily and manifest many of their impacts only after returning to the soil, The 1997 UN Convention on the Law of the Non- plants, marine waters, lakes or rivers. Poisonous Navigational Uses of International Watercourses air also directly damages living creatures and – which has not entered into force -- made an objects. The two most serious known ecological important contribution in this regard by defining catastrophes – Bhopal, India, and Chernobyl, a watercourse as a system of surface waters Ukraine – produced most of their victims as a and groundwaters constituting by virtue of result of direct contact with polluting elements their physical relationship a unitary whole and in the atmosphere. Pollutants often undergo normally flowing into a common terminus. modifications in their composition once they enter the atmosphere. Finally and significantly, 7.3 Water regulations and courts air pollutants move quickly and cover greater distances than do pollutants in watercourses or As noted, in jurisdictions with water regulatory the marine environment. systems, cases can typically be brought to enforce regulatory norms and penalize non-compliance. There are three major issues concerning air and In addition to government prosecutions, some the atmosphere that have been subject to legal systems allow for citizen suits. regulation and may arise before judges: air pollution, depletion of the stratospheric ozone In common law systems, nuisance, negligence or layer, and climate change. strict liability actions may frequently be brought at common law for water pollution causing 8.1 Air pollution injury. Ryan v. Great Lakes Council, [1999] Fed. Ct. of Australia 177, provides an example. The Air pollution has been defined as the introduction plaintiff sued the Great Lakes Council and others by man, directly or indirectly, of substances or for damages after he contracted hepatitis A energy into the air, resulting in deleterious effects of from eating contaminated oysters from Wallis such a nature as to endanger human health, harm Lake. He alleged negligence, arguing that the living resources and ecosystems and material property, and impair or interfere with amenities Council knew of the pollution of the lake and and other legitimate uses of the environment. This had a duty to warn those using the lake and its definition adapts the general concept of pollution, resources. The court found that at all material focusing on risk or harm resulting from changes in times the Council knew that the waters were the environment. used for growing oysters for human consumption and that numerous sewage facilities within the Atmospheric pollution appears in multiple forms, lake catchment area were potential sources some only recently understood. Domestic and of contamination which could adversely affect international regulation has evolved as the human health. The Court held that the Council impacts of each form of pollution have become had failed to take reasonable steps to minimize known. contamination of the lake and entered judgment for the plaintiff for $30,000. • Sulphuric gas of industrial origin, in part converted into sulphate in the troposphere While judicial consideration of water issues will and stratospheric base, becomes sulphuric primarily derive from national laws, regulations acid (known commonly as “”). In and common law decisions, a range of addition to its impact on fresh-waters, the acid international treaties and declarations address is returned to the soil in rain, where it attacks water issues. the roots of trees.

40 • Other pollutants, principally nitrous dioxide pollution. Licensing regulations typically list types (NO2) and emissions from hydrocarbons (HC) of activities requiring a license, although variation combine with sulphuric gases. They are the exists in the criteria of classification, such as the source of ground-level ozone (O3) during size of the installation, the nature and the quality of sunny periods. Ozone harms the needles of the emissions and their effect on the environment, conifers, particularly the membrane which the feasibility of preventing pollution by using an supports photosynthesis. This is the source alternative production process, and the likely risk of serious damage to trees on western and of a major accident. Challenges to the grant southern hills and mountains at an altitude or denial of an authorization can constitute a near 800 meters. Automobile gas emissions significant portion of environmental cases coming are another major source of pollution, which before national judges. This system has been must be added to pollution caused by power incorporated into Afghanistan’s Environment stations and industries utilizing fossil fuels. Law.

• , such as ash and heavy metals, Framework laws, like Afghanistan’s Environment corrode buildings, monuments and other Law, are frequently used for this subject. They objects. involve a law of general scope, defining the concepts and the fundamental principles of • Most recently, the impact of persistent organic action to be undertaken, as well as designating pollutants (POPs) in the atmosphere has the areas in which more detailed regulation should become a major concern. be adopted. Framework laws are completed and implemented by laws or decrees of application a) National law that detail their specific scope in various fields. Most often, the detailed regulation that completes Numerous sources emit pollution into the these texts is elaborated by the executive or by atmosphere, including heating plants, both local authorities. Such is the case, generally, with industrial and domestic, industrial processes, waste emission standards and air-quality objectives and incinerators, automobiles and other transport for establishing special regulations applicable vehicles, and even animal farms. The amount to special zones. This method of legislating of pollutants varies from one area to another, streamlines the process of adapting norms in the depending on the type and concentration of light of needs that vary according to the place human activities and on the measures taken to and pollution levels. reduce emissions. Many states have elaborated detailed regulations The legal norms applied by different states to to limit polluting emissions. They may concern combat air pollution vary considerably from one a large series of pollutants, such as sulphur country to another, based on local conditions of gases, particulates and dust, nitrogen oxide, geography, climate, industrialization, vinyl chloride, heavy metals (zinc, arsenic, lead, and other potential sources of harm. Emphasis mercury and its compounds, cadmium, beryllium, can be placed on emission controls or on setting and fluoride and its compounds). Obligations air quality standards, on improving particularly flowing from international instruments, such as polluted zones or those that demand special those listed above, have a growing influence in this protection, on priority accorded local pollution, field. Afghanistan is in the process of developing or on medium- and long-distance impacts. The integrated pollution control regulations under the execution of international treaties can have a Environment Law, as well as developing air quality major influence on national legislation. standards.

One of the most widely adopted legal techniques Air quality standards establish the maximum for combating pollution and nuisances consists allowable limit for substances in the atmosphere, in submitting all pollution-causing activities to rather than controlling emissions directly. Various prior authorization. Existing licensing regimes techniques are used in conjunction with air quality have played a great role in the prevention of air standards: dispersion of pollutants using high

41 smokestacks – which may contribute to long- Often, differences in local conditions require that range air pollution – or a licensing process by regulatory measures to combat air pollution be which administrations can impose restrictions on taken locally or regionally. These rules can differ individual industrial installations. The persistence of considerably from one area to another. Legislative pollutants in the atmosphere is generally taken into instruments may establish air quality regions account. In all cases, air-quality standards require or zones. Most often, special zoning laws are the existence of measurement techniques and passed at the local level that affect the amount monitoring procedures to determine air quality. and location of polluting activity. The objective is always to adapt standards, as much as possible, There are fundamental differences in regulations to geographic realities. Two common factors are directed at fixed sources such as industrial plants usual: and those aimed at movable pollution sources, such as trucks and automobiles. Most frequently, 1) The most polluting activities are prohibited or fixed sources above a specified size are submitted limited in specified zones, such as protected to authorization or licensing according to precise nature sites and densely populated areas. criteria. They are then regularly monitored. Regulations also often fix emission standards, 2) In particularly polluted zones, stricter emission which can be general or specific; they often may standards or air-quality standards may be set. vary for different installations or different types of During periods of particularly severe pollution, installations. Such regulations may concern, in local authorities have restricted automobile particular, gas and particulate emissions, the kind use and taken measures to protect those and amount of fuels to be used and the height vulnerable to respiratory ailments. of chimneys. Legal regulation of other environmental issues can A distinction can be made between heating have an impact on air quality Efforts to clean up installations on one hand and industrial installations water or soil, for example, including the tendency on the other. Other distinctions can be made to incinerate wastes, instead of depositing them between pollution coming from domestic heating on the ground or dumping them into the sea or and other sources, between large and small into inland waters, can aggravate air pollution. installations, and between already-existing Similarly, the siting of industrial facilities is important, enterprises and new ones, it being understood that because as soon as pollutants are emitted into the former should have a specific time period to the atmosphere, the amount and direction of their comply with new pollution controls. dispersion plays a significant role in determining the extent of damage they cause. Many states will enact specific legislation to overcome local pollution problems. Efforts to reduce atmospheric pollution must not only set emission and air quality standards, but Motor vehicles using hydrocarbons are the should address the use of fuels that are rich in primary movable source of air pollution. Their sulphur, lead or other pollutants, and control exhaust fumes contain chemicals that are major combustion processes. With sixty to seventy percent contributors to urban and rural air pollution. of all acid rain estimated to be due to sulphur Specific rules are necessary that differ from those oxide emissions, with nitrous oxide responsible applicable to fixed installations, rules that are for the rest, reducing acid rains means reducing easy to identify and monitor. Two methods are the sulphur content of combustion gases, either in widespread use: the first establishes technical by using low-sulphur fuels or by removing sulphur requirements for motor vehicles themselves; the before or during the combustion process. other establishes standards for fuel. Less direct methods are also used, such as reducing speed b) International Law limits because pollution levels rise with increased speed. The utilization of local forms of mass transit Although air pollution was traditionally considered as well as access to and use of long-distance as a local problem, the leading early case trains, are also important measures. in international environmental law concerns

42 transfrontier air pollution. See Trail Smelter catalyzing chain reactions that destroy ozone, Arbitration, 3 U.N.R.I.A.A. 1911, at 1965. To combat primarily above the Polar Regions. Thus, even deterioration in air quality, initial measures sought after phasing out the production and use of to disperse industrial pollutants through increasing ozone depleting substances, the destruction will the height of smokestacks. The “solution” remain for some time, because of the substances created new environmental problems: emissions already released. taken to higher atmospheric levels travelled considerable distances on air currents, causing a) Ozone measures long-range pollution damage. As a result, air pollution was no longer solely a local phenomenon UNEP made protection of stratospheric ozone concerning large cities and industrial zones, a priority item on its legal action plan. After but was a matter that affected non-industrial several years of negotiations, a Convention countries and agricultural areas often far from for the Protection of the Ozone Layer was the source of the emissions. There are few global adopted in Vienna, March 22, 1985. The treaty rules establishing air quality or pollution emissions is a framework convention, providing the basis standards. for systematic cooperation among the states parties respecting protection of ozone above the 8.2 Ozone depletion planetary boundary layer. The general obligation of states parties is to take appropriate measures In addition to causing ground-level pollution, to protect human health and the environment the emission of certain substances into the against adverse effects resulting or likely to result atmosphere leads to the depletion of the from human activities that modify or are likely to stratospheric ozone layer. Ozone is a form of modify the ozone layer (Article 2). According to oxygen, containing one more atom than the Convention, the Conference of the parties may oxygen breathed in the atmosphere. While adopt protocols to the Convention. Two months ground-level ozone in the form of “” after the conclusion of the Vienna Convention, produces harmful consequences, stratospheric a British Antarctic Survey team published their ozone, whose strongest concentrations are found findings indicating a forty percent loss of between twenty and twenty-five kilometres above stratospheric ozone over Antarctica. A subsequent earth, filters a part of the sun’s ultraviolet radiation meeting of the parties to the Vienna Convention which otherwise would injure life forms on earth. adopted the Montreal Protocol on Substances The absorption of ultraviolet rays by stratospheric that Deplete the OzoneLayer on September ozone is also a source of climatic energy. 16, 1987. The Protocol controls production According to an international study, reduction in and consumption of various ozonedepleting stratospheric ozone risks not only an increase in substances (ODS), such as the number of human skin cancers and harm to (CFCs) and halons. The parties have increased the eyes but also unforeseen biological effects, reductions of these controlled substances, as because all living beings have evolved under the well as added new substances, over the years protection of the ozone layer. that followed. The Protocol also restricts trade of controlled substances between states parties By the late 1970s it was clear that chemical and non-parties. emissions into the air were depleting the ozone layer. The main cause has been the utilization of Afghanistan acceded to both the Vienna chlorofluorocarbons (CFCs) and similar substances Convention and the Montreal Protocol in 2004. in sprays, solvents and refrigeration. CFCs were popular because they are non-toxic, b) National law non-flammable, non-corrosive and stable, but their very stability is the source of the problem The discovery that widely-used chemical because they migrate over long distances and substances were destroying stratospheric ozone survive for many years. When they reach the induced a number of countries in the early stratosphere intact, solar radiation breaks the 1980s to ban the use of CFCs for aerosol sprays. molecules apart to free reactive chlorine atoms, National regulatory approaches to implement

43 Montreal Protocol restrictions and protect the or indirectly, human activity may be altering ozone layer may include a) outright bans on the composition of the global atmosphere in manufacture and trade in restricted chemicals; a manner that affects climate beyond natural b) taxes imposed on chemicals subject to phase- climate variation over time. The potential adverse out; c) management requirements, e.g., on air effects from this change have been characterized conditioner servicing for automobiles or homes as changes in the physical environment or biota for recapture and recycling of ozone destroying which have significant deleterious effects on the substances (ODSs). composition, resilience or productivity of natural and managed ecosystems or on the operation As the phase-out and ultimate ban in CFCs and or socio-economic systems or on human health other ozone-depleting substances has spread and welfare. See U.N. Framework Convention throughout the world, the problem of black- on Climate Change (New York, May 9, 1992), market trafficking has emerged. Judges are thus Art. 1. increasingly sitting on prosecutions based on violation of national bans or other restrictions on The global average temperature between 1866 trade in such substances. In the mid to late 1990’s, and 1996 increased by more than one degree, as developed countries limited manufacture and and the years 1998, 2002 and 2003 had the approached phase-out of CFCs, CFCs could often highest average temperatures on record. The be purchased cheaply in developing countries not accumulation of gases such as carbon dioxide, yet subject to phase-out requirements, and sold at nitrous oxide, methane, chlorofluorocarbons and many times the cost in developed countries. The resulting profit margin helped to drive a large black tropospheric ozone is viewed as at least partly market with involvement of organized crime. While responsible for the warming. There is evidence enforcement efforts have begun to put a crimp in that the carbon dioxide concentration in the this illegal trade, as developing countries proceed atmosphere today is twenty-five to thirty percent with the phase-out of ODSs, there are already higher than what it was in the pre-industrial times. signs of black market trading of illegal CFCs in In 1995, the Intergovernmental Panel on Climate developing countries. Moreover, it is thought that Change, a network of more than 2,000 scientists a similar black market could emerge as the next and policy experts advising governments on generation of ozone-depleting chemicals, the climate policy, assessed that human activity is HCFCs, become subject to phase-out schedules contributing to the warming of the earth. under the Montreal Protocol.

Evidentiary issues for cases involving violation of Box 8. Greenhouse Gases national bans or restrictions in the commerce of ODS include proving whether a restricted chemical Carbon dioxide is a basic by-product of the combustion of fossil and other natural is involved. Often, restricted or banned chemicals fuels such as wood, coal, oil and gasoline. are identifiable based on the labelling of their Other significant greenhouse gases are container or canister. In other cases, laboratory chlorofluorocarbons, which also contribute analysis may be needed to prove that a restricted to the depletion of the ozone layer, methane chemical is involved. and nitrous oxide. Methane is a metabolic by- product of animals (including humans) and is Ozone Regulations were issued under the produced in significant quantities by domestic Environment Law by the National Environmental cattle. Nitrous oxide has various industrial applications as an aerosol propellant, and is Protection Agency in 2006, which agency is used as an anaesthetic gas. The accumulation successfully implementing a ODS phase-out of these gases acts as an insulating blanket programme. that traps the energy of sunlight and prevents it from radiating back into outer space. The 8.3 Climate change accumulation of solar energy causes a gradual increase in the average temperature The third major problem of the atmosphere is of the earth’s surface. climate change and concern that, directly

44 The trend towards increasing temperatures is or no . Other states are projected to result in rising sea levels from the partial promoting or mandating reforestation or limiting melting of polar ice caps and from the thermal deforestation in an effort to increase carbon sinks. expansion of sea water. The IPCC’s 2001 assessment projected global average sea level rise from 1990 to b) International law 2100 in the range of 9 centimetres to 88 centimetres. A rise in the world’s sea levels of approximately The first signs of international concern over climate fifty centimetres could wreak havoc with the low- change emerged in a series of international lying coastal areas that are home to a substantial conferences between 1985 and 1987. Several proportion of the world’s population. Under some resolutions adopted by the UN General Assembly projections, many small islands would be submerged led to calls for a general and effective convention or become unsafe, and huge areas of some on climate change. The Convention was adopted countries could become partly uninhabitable. on May 8, 1992 in New York and opened for signature during the Rio de Janeiro Conference. Climate change also could modify the world’s The United Nations Framework Convention on agriculture: some areas might become arid, Climate Change is concerned with greenhouse while other regions that are presently too cold warming. It defines climate change as a could become able to grow cereals, corn or fruit modification of the climate which is attributed and other products needing a warmer climate. directly or indirectly to human activity that alters Increased water temperatures could disrupt aquatic the composition of the global atmosphere, and ecosystems and further burden already distressed which is in addition to natural climate variability fisheries. The IPCC’s 2001 assessment indicated that observed over comparable time periods. The while there are uncertainties regarding changes in stated objective is to stabilize the concentrations climate extremes, extreme events such as droughts, of all greenhouse gases – not only carbon dioxide floods, and heat waves are projected to increase – in the atmosphere at a level that would prevent in frequency and/or severity in some regions during dangerous anthropogenic interference with the the 21st century. In addition, a slight rise in average climate system. In this regard, precautionary annual air temperature could greatly increase the measures should be taken to anticipate, prevent, risk of insect outbreaks. or minimize the causes of climate change and mitigate its adverse effects (Article 3(3)). Insects represent more than half of the nearly two million species known on earth. Warmer weather The obligations of all parties are mainly contained speeds up insect metabolism, making them grow in Articles 4 and 12: developing, periodically more quickly, breed more frequently and migrate updating, publishing, and making available sooner and farther. Tropical diseases carried by national inventories of anthropogenic emissions pests and micro-organisms, including malaria and and sinks; formulating and implementing national dengue fever, could become endemic in new and regional programs containing measures areas of the world. to mitigate climate change; promoting the application of processes that control emissions a) National law including transfer of technologies; promoting sustainable management of sinks and reservoirs A range of national measures to reduce greenhouse of all greenhouse gases; elaborating integrated gas emissions is emerging. Some countries have plans for coastal zone management; and implemented voluntary and incentive-based cooperation in research. efforts to mitigate emissions. Some countries are adopting mandatory limits on emissions from certain The treaty contemplates that its developed country sectors. Efforts to mitigate greenhouse gas emissions parties should take the lead in combating climate sometimes includes the same type of approaches change and its adverse effects. Annex I to the used to reduce air pollution, such as product Convention lists thirty-six countries and the European and process standards, and required use of best Community as developed parties; they commit available technology. Some states are promoting themselves to adopt national and regional policies or requiring the use of energy sources with little and take corresponding measures to mitigate

45 climate change by limiting their emissions of The principal cause of erosion, in most cases an greenhouse gases and protecting and enhancing irreversible process, is incorrect management of their greenhouse sinks and reservoirs. However, the forests and agricultural lands, principally through Convention establishes no obligations concerning intensive and environmentally unsound cutting specific timetables and targets for limiting such and farming methods. Erosion can also diminish emissions. The Protocol to the UN Framework the ability of soil to prevent and to absorb flooding. Convention adopted in Kyoto on December 11, Contamination by heavy metals and organic toxic 1997 specifies different goals and commitments for substances, including fertilizers and pesticides, participating developed and developing countries is a particularly serious problem in many parts concerning future emission of greenhouse gases. of the world. Waste, particularly industrial waste, The main features of the Protocol are the reduction has likewise become a major source of soil targets accepted by the industrialized countries, contamination. Finally, the surface space of soil is without corresponding obligations for developing diminishing as it becomes covered by buildings, countries; acknowledgment of the role of sinks of industrial facilities, and impermeable roads, airport greenhouse gases (seas, forests) and their inclusion runways, and other artificial surfaces. in the targets; the possible creation of “bubbles” and trading emissions to allow countries to satisfy together 9.1 National law their obligation to reduce their aggregate emissions and to jointly implement the agreement with On soil pollution many states now have legislation countries that only emit small amounts of greenhouse requiring clean-up and remediation of polluted gases, in principle developing countries. soil. The U.S. enacted its Resource Conservation and Recovery Act to regulate, among other things, Afghanistan ratified the Climate Change the land disposal of solid and hazardous waste in Convention in 2001. It is not however a Party to 1976, and its so-called “” legislation to the . Afghanistan has taken some clean up polluted soils in 1980. The Netherlands was important steps towards implementation of the the first state in Europe to have specific legislation Convention, including development of a National on soil protection, with clean up regulations dating Adaptation Plan of Action for Climate Change from 1983, after the public became aware of (NAPA) and an Initial National Communication toxic sites in the country. In 1987 the Soil Protection (INC) to the other member states. Act was adopted to protect the functions of the soil through conservation and restoration and to regulate pollution sources. Both laws require the 9 Soil establishment of soil quality standards. In 1991 the state adopted a voluntary system to clean up Soil is the part of the Earth between its surface and polluted soils on operating industrial sites. Other its bedrock. It contains the nutrients necessary for laws concerning waste disposal, chemical wastes, maintenance of plant life and it acts to filter out nuisance, pesticides and nature conservation help pollutants before they reach subterranean water protect the soil as well. sources or enter the food chain. Soil also helps to avoid flooding by absorbing considerable National legislation may include provisions on amounts of water. Nearly all soil constitutes the soil in the general law on the environment a habitat for flora and fauna and in this way or regulate soil functions in separate legislation. contributes to biological diversity. In addition Some legislation addressed the solid surface and is to its natural roles, soil is a primary resource for concerned primarily with erosion and landslides. construction, physical support for structures and of historical evidence on the origins of plants, Soil contamination actions may arise in courts humans, animals and the Earth. in connection with sales of property. Few sales of large industrial sites are made today without Soil naturally erodes and degrades, but it is prior soil investigation, risk analysis, and related increasingly threatened by excess demands on conditions being considered or included in the all the roles it plays. Overuse of soil depletes its sale contract. Issues of liability for uncorrected nutrients and leads to erosion and desertification. conditions frequently arise.

46 9.2 International law ivory or other products derived from endangered species have taken place in many countries. Legal protection for the soil is rather recent, although some forestry laws protected trees at Public interest litigation may seek to enjoin least in part to avoid erosion and consequent commercial activities in protected areas or ensure flooding. Part of the neglect was due to a general enforcement of laws protecting biological diversity. perception of soil as an inexhaustible resource. A series of cases in Pakistan, for example, sought judicial orders to stop organized hunts of the The U.N. adopted the first international treaty protected and endangered great Asian bustard. concerning one aspect of soil protection, the Intellectual property disputes may arise over problem of desertification, on June 17, 1994. medicines derived from and The Convention defines desertification as land genetic material of a particular area. degradation in arid, semiarid and dry sub-humid areas resulting from various factors, including Biological diversity or biodiversity has replaced climatic variations and human activities. To combat phrases formerly used, such as nature conservation desertification and mitigate the effects of drought in or wildlife protection. The new term encompasses the affected countries, the Convention advocates all genes, species, habitats and ecosystems on effective action programs, i.e., long-term integrated earth and is defined in Article 2 of the Convention strategies that focus on improved productivity of land on Biological Diversity (Jun 5, 1992) as: and the rehabilitation, conservation and sustainable management of land and water resources. the variability among living organisms from all sources including, inter alia, terrestrial, The participation of populations and local communities marine and other aquatic ecosystems and the in decisions on the design and implementation of ecological complexes of which they are part; programs to combat desertification is also one of the this includes diversity within species, between main elements of the Convention. National action species and of ecosystems. programs should be prepared and updated through a continuing participatory process. The instrument Article 2 of the Convention on overall advocates a new way to confront problems Biological Diversity (1992) of harmful patterns of land use. It also provides for The Convention distinguishes three levels of cooperation at global, national, sub-regional and biological diversity: regional levels and creates mechanisms, both administrative and financial, in order to monitor 1) diversity within species and ensure compliance. The Convention includes 2) diversity between species; and five annexes, each of which concerns a specific 3) diversity of ecosystems. geographic region: Africa, Asia, Latin America and the Caribbean, the Northern Mediterranean Diversity within species -- refers to the variability and Eastern Europe, setting out guidelines for the of genetic contents within a single species, which preparation of action programs and their focus. means that apart from certain multiple births no two organisms are genetically identical. The Afghanistan ratified the Convention in 2001. smaller the number of individuals within a species, the less internal the species retains. Inbreeding may result in reduced fertility and increased 10 Biological diversity and susceptibility to disease. This may constitute a nature conservation threat for , which rests on a few grain species; some twenty species account for more Issues concerning biological diversity may come than ninety percent of the world’s food. before judges in very different contexts. Criminal prosecutions for illegally killing or capturing Species diversity -- means the diversity between protected species are increasingly common, as are species of living organisms within a specific habitat or cases to stop timber harvesting on protected lands. ecosystem. The number of species of living organisms Forfeiture actions against those illegally trading in is estimated to be at least five to ten million. Vertebrae

47 are the less numerous: about 4,200 mammal species 10.3 Protecting biodiversity and 9,000 bird species, 6,300 reptile, 23,000 fish, and 4,000 amphibian species have been identified, while a) National law the number of identified higher plants is higher than National and international law have approached 250,000. Lichens, bacteria and fungi are much more the problems raised by the loss of biological diversity numerous, but they are less well known. Living organisms in similar ways. Historically, the starting point was are unevenly distributed throughout the word, with the legal restrictions enacted to protect forests and highest concentration of terrestrial species in humid certain species of wild fauna and flora. Special tropical zones like Amazonia and the greatest marine authorizations could be delivered to allow cutting diversity in coastal areas and coral reefs. trees in a forest, or for hunting or fishing during Ecosystem diversity -- denotes the range of natural specific seasons. Later, norms developed to protect habitats, biotic communities and ecological the habitat of wild plants and animals. Finally, processes within which species variety has evolved conservation of species and of their habitat merged and to which they are uniquely adapted. Each into the broader conceptual framework that calls species depends upon the surrounding environment for safeguarding the genetic heritage of the planet, (temperature, humidity, water, soil and nutrition) a new, immense problem extending beyond the for its survival and reproduction. Ecosystems dimensions of conservation in its usual sense. Progress contain a complex interrelationship of species and towards identification, regulation, and management functions, governed by natural rules leading towards of processes that adversely affect biological diversity equilibrium. The diversity of ecosystems is itself an represents one aspect of a shift away from sectoral essential part of biological diversity. The available administration towards an integrated approach to evidence indicates that human activities are eroding protecting ecosystems. Thus, legislation in many biological resources and greatly reducing the countries today (e.g. Austria and Denmark) prohibits planet’s biological diversity. The loss of biodiversity is the release or introduction of non-native species, or requires special permission to introduce them. due above all to economic factors: a UNEP expert panel estimated that food, fibre, ornamental plants The oldest rules were drafted for regulating hunting and and raw materials of biological origin account for fishing. The laws of many countries distinguish game roughly half of the world’s economy. The direct causes and non-game animal species and commercially of the extinction of species are the destruction of exploited and non-exploited plants. Hunting legislation habitats, overexploitation, overconsumption, pollution attempts to maintain or conserve species by setting and the wide range of activities that directly impact conditions under which certain species of plants or the environment. Other unintended factors can be animals may be taken. The Norwegian Wildlife Act of added, such as incidental taking of species and the 1981 seeks to promote the management of wildlife in introduction of foreign species into habitats. such a way as to preserve the productivity of nature and diversity of species. Wildlife may be harvested Given the projected growth in human population for the benefit of agriculture and outdoor recreation, and economic activity, the rate of loss of biodiversity but the Act’s focus is on wildlife protection. -- which accelerated during the last two centuries -- is likely to continue to increase. Part of the problem is In most countries today national legislation is largely that biodiversity and essential ecological functions modelled after international commitments. Parties such as watershed protection, pollution control, soil to international conventions on biological diversity conservation, photosynthesis and evolution tend to be have adopted laws and regulations in order to undervalued. Still, these resources, and the diversity of implement the agreements and create adequate systems that support them, are the essential foundation institutions in order to ensure compliance with their of sustainable development. Biological resources commitments. are renewable and with proper management can support human needs. No single nation acting b) International Law alone, however, can ensure that biological resources are managed to provide sustainable supplies of The use and protection of wildlife traditionally has products; rather, a commitment is required on the been considered part of state sovereignty over part of all states and actors. natural resources. International regulation first

48 became necessary for fisheries because of conflicts among states whose nationals were engaged between fishermen of different nationalities. The in hunting seals led to a series of hunting rules growing exhaustion of marine living resources has helping to preserve seals from extinction. Several made such regulation critical today, and international multilateral instruments followed, including a treaty conventions on the problem are multiplying. signed in 1911 between Japan, the United States, the United Kingdom and Russia concerning seal The Convention on Biological Diversity, which conservation. Effective measures were taken, in Afghanistan ratified in 2001, acknowledges the particular a prohibition of pelagic (open sea) rights of states over genetic resources in animals hunting during migration and a limitation on the and plants under their jurisdiction, but creates a taking of reproducing females. Today numerous complex relationship of rights and duties. On the treaties protect seals by establishing closed one hand, authority to determine access to genetic hunting seasons and other restrictions for different resources rests with the national governments areas of the world. and is subject to national legislation. On the other hand, each party must endeavour to create A convention of global scope, the Convention conditions to facilitate access to genetic resources on Migratory Species (also known as the “Bonn for environmentally sound uses by other parties Convention”) was adopted in Bonn on June 23, and not impose restrictions that run counter to the 1979. It recognizes that the conservation and Convention’s objectives. When access is granted, efficient management of migratory species it should be on mutually agreed terms and be require concerted action by all states within subject to prior informed consent by the party whose national jurisdiction the species spend providing the genetic resource, unless that party part of their lives and through which they transit. determines otherwise. Permits may be required; The term “migratory species” is defined as contractual access agreements are an important the entire population or any geographically method by which public and private entities gain separate part of the population of a species of access and negotiate a share of the benefits upon wild animal that habitually and predictably cross a payment of collection fees, royalties or other form one or more national jurisdictional boundaries. of benefit-sharing. This obviously includes not only birds, but land and sea mammals, reptiles and fish. The term The use of genetic resources raises the problem “endangered” means that the migratory species of intellectual property rights. Institutions in several is in danger of extinction throughout all or a countries have collected germplasm, mostly significant portion of its “range” (all the areas of of crops, since the 1970s. Gene banks have land or water that a migratory species inhabits, become a means of protecting the diversity of stays in temporarily, crosses or flies over at any genetic resources, particularly of plants, but they time on its normal migration route). have provoked issues over safety of the material, ownership, development of national law restricting Under this framework, parties are to undertake availability of the germplasm and intellectual legal measures that broadly address threats property rights over development of new strains. to habitats, excessive hunting along migration routes and degradation of feeding sites. Each 10.2 Migratory species range state is to adopt strict protection measures for endangered migratory species listed in Many national laws concerned with wildlife Appendix I to the Convention. It is also to conclude generally help protect migratory species. Specific agreements with other range states for the laws may be enacted to protect endangered conservation and management of migratory species or species protected by international species listed in Appendix II that have an agreements. Examples include the U.S. Bald and unfavorable conservation status or would benefit Golden Eagle Protection Act. significantly from international cooperation.

Migratory species, including marine mammals Guidelines provided in the Convention address and birds, need measures of conservation at the agreements protecting listed migratory species: international level. Nineteenth century conflicts they should cover the whole of the migratory range

49 and should be open to accession to all range sanctions are critical to the effectiveness of this states of that species, whether or not they are system. Because trade in endangered species is parties to the Bonn Convention. The agreement’s lucrative for poachers and sanctions are needed contents should identify the concerned species, that are sufficiently strong to deter violations. In describe the range and migration route, allow for many states substantial fines are accompanied designation of a national authority to implement the by prison sentences. agreement and establish institutional machinery to assist in achieving its objectives and monitor its Moreover, while CITES regulates trade in effectiveness. endangered species, its effective implementation depends on national systems to not only restrict Afghanistan is now in the process of acceding to international trade, but also to restrict the taking of the Convention. endangered species in the first place. This is often accomplished through permitting systems and the States parties are also encouraged to enter enforcement thereof. into other agreements concerning one or more migratory species that are not listed in the Parties to CITES may take measures stricter than agreement. Any population that periodically those in CITES through domestic legislation or crosses one or more national jurisdiction boundaries international regulation. In India, the primary may be subject to such agreement. In some cases mechanisms used to protect endangered species such agreements have been treaties, while others are the Wildlife (Protection) Act of 1972, the have been adopted in the form of Memoranda Customs Act of 1962, and the Import-Export Policy of Understanding (MOU). These are not legally (1993) under the Foreign Trade (Development binding but are intended to coordinate short term and Regulation) Act of 1992, which prohibits administrative and scientific measures between exports of all forms of wildlife, i.e. plants and range states in collaboration with international animals including parts and products. Exports of non-governmental organizations having expertise cultivated species are allowed, but a “cultivated” on the subject. Afghanistan is already a signatory certification is required. The Director of Wildlife to the MoU on the Siberian Crane. Conservation is the Management Authority. Import of both animals and plants is allowed on 10.3 Trade in endangered species recommendation of the Chief Wildlife Warden of a state government, subject to the provisions of One of the most powerful motives for the exploitation CITES. Permission is essentially limited to zoological of plant and animal species is income production and other scientific purposes. Verification of the through trade, especially in poor countries lacking presence of protected plants and animals can other major resources. be difficult, and distinguishing species and origins of plants is even more demanding than it is for The Convention on International Trade in animals. A community censure often attaches to Endangered Species of Wild Fauna and Flora the killing of animals and some trees and makes (CITES) was adopted in Washington on March 3, the enforcement of the prohibition easier, but it is 1973. Afghanistan became a Party to it in 1985. not activated for plants in general. Though illegal It aims to ban trade in endangered species and consignments are regularly seized, successful to regulate trade in other commercially-exploited prosecution and punishment of ringleaders are species to ensure sustainable trade and economic extremely rare, and seized stocks may remain benefits for exporting countries. The species to the subject of long battles. Coordination among be protected are listed in three appendixes. police, customs, wildlife wardens and at least Most national laws reflect efforts to implement nine other agencies involved in enforcement is, CITES (see Afghanistan’s Environment Law in this however, improving. regard). To this end, states have, for example, taken measures penalizing prohibited trade and CITIES is the principal international expression on providing for confiscation or return to the state of this topic. Appendix I of CITIES contains species export of any specimens illegally imported, with threatened with extinction that are or may be specified protection for living specimens. Judicial affected by trade, including such well-known

50 animals as the snow leopard, tiger, whale and While for species appearing on Appendix II strict many types of parrots. The present number of such limitations on import do not exist and specimens species is higher than 1000. These species benefit can be brought in for commercial purposes, the from particularly strict regulation, and states aim of the Convention is to control the latter. Over parties can authorize trade only in exceptional time, due to modifications of the list, the number circumstances. The ban extends to any readily of species contained in Appendix II has become recognizable part or derivative of a specimen extremely high. of a listed plant or animal. The export of any species included in this appendix requires prior Appendix III lists those species that one state grant and presentation of an export permit issued party identifies as being subject to regulation upon satisfaction of strictly defined conditions: within its jurisdiction in order to prevent or restrict a Scientific Authority of the exporting state has exploitation and for which it needs the cooperation advised that the export will not be detrimental of other parties to control trade. The export of a to the survival of the species; a Management specimen of any species from a state that listed Authority is satisfied that the specimen was not the species in Appendix III requires the prior grant obtained in contravention of the laws of the state and presentation of an export permit. Import of for the protection of fauna and flora and that any a specimen of an Appendix III species requires living specimen will be prepared and shipped in prior presentation of a certificate of origin and ways minimizing the risk of injury, damage to health an export permit, if the specimen comes from or cruel treatment and that an import permit has a state that listed the species. Appendix III thus been granted for the specimen by the country allows each state to obtain the aid of other states of destination. The issuance of an import permit that are potential importers of the specimens may be granted by the state of destination only that the exporting state seeks to protect and after a Scientific Authority of that state attests that conserve. Canada listed the moose, signalling to the importation is not detrimental to the survival of other states that it is illegal to import a moose or the species. That authority must also be satisfied products made from it without a permit issued by that the proposed recipient is suitably equipped Canadian authorities. to house and care for any living specimen. The Management Authority of the importing state must CITES also contains a series of flexible provisions be satisfied that the specimen is not to be used and authorizes exemptions for specimens of for primarily commercial purposes. certain species that were raised in captivity as household pets or plants artificially propagated The conditions of trade in Appendix II species are for commercial purposes. Exemptions are also less strict. Their list includes species which are not granted for non-commercial loans, donations or currently threatened with extinction but which may exchanges of certain plants between scientists or become so and species upon which they are scientific institutions, as well as for the movement dependent. Trade also requires a permit based of specimens which form part of a zoo, circus, upon an opinion of the Scientific Authority that menagerie or exhibition. However, conditions the export will not be detrimental to the survival are imposed, principally relating to the humane of the species, proof the Management Authority‘s treatment of the specimens. satisfaction that the specimen was not obtained in violation of the state’s law for the protection of 10.4 Habitat protection fauna and flora, and evidence that the specimen (including wetlands) will be properly transported. The Scientific Authority monitors both the granting of permits and the National law actual exports. It can determine that the export should be limited to maintain the species at a The protection of habitats and ecosystems is certain level and it advises the Management a necessary complement to the protection of Authority of suitable measures to take to limit the species. Legal measures to protect biological grant of export permits. The import of an Appendix diversity cannot succeed unless coupled with II specimen requires only prior presentation of measures to provide appropriate conditions for the either an export permit or a re-export certificate. survival of the species in the wild. Such measures

51 may include regulating the introduction of noxious b) National parks substances or structural changes in the habitats of the protected species, or through the creation National parks are the oldest form of protected of protected areas. Land-use regulations can area. They are areas set aside for the propagation, play an important role in this regard. Wetlands protection, conservation and management of are particularly important; they play a vital role in vegetation and wild animals, as well as for the the water cycle, helping to refill water tables and protection of sites and landscape. National parks maintain water quality. They are highly productive can include walking and recreation areas, such ecosystems inhabited by large numbers of plant as those established under the Recreation Act of and animal species. Many marine species Finland. Fishing and hunting can be permitted in depend on coastal wetlands for their reproduction, some cases. They are placed under state control growth, or nutrition during part or all of their life and in most cases can have their boundaries cycle. During recent decades state-sanctioned or changed. even mandated drainage operations, as well as c) Game sanctuaries drought and , have considerably reduced the extent of global wetlands. Game sanctuaries are established for the conservation, management and propagation All areas typically protected under national of wild animal life and the protection and legislation share some of the same characteristics: management of its habitat. Hunting and capturing prohibiting or limiting human activities, or even animals is regulated by the reserve authorities. denying human access to remain uninhabited Other human activities, including settlement, are and, as much as possible, undisturbed. In addition, controlled or prohibited. certain activities may be regulated, regardless of the designation of the area where the activity is d) Natural monuments planned: for example, in some states construction of all ski lifts, buildings, parking lots and depots Natural monuments are zones of particular scenic must have prior permits; garbage may be beauty of historical or cultural value. They may be deposited only in designated places; and tents, trees, waterfalls, rock formations, or fossils, designated trailers, or camping cars may only be placed in on both public and private land. Damaging a camping sites. There are five common types of natural monument is generally prohibited but in protected areas: the Netherlands private landowners may apply for 1) Nature reserves a permit to conduct prohibited activities.

2) National parks e) reserves 3) Game reserves Wilderness reserves are a relatively new designation 4) Natural monuments for certain protected areas. A wilderness may be 5) Wilderness reserves defined as a large roadless area of undisturbed vegetation where most human activities are a) Nature reserves prohibited, but which generally remains open for walking and camping, without having developed Nature reserves are generally subject to the campsites. Hunting and fishing is permitted in strictest regulation. They are placed under state some areas. Permits are usually required for control and their boundaries may not be altered entry or for overnight camping. In Finland, a law except by legislation. Within such reserves it is of 1991 designated land corresponding to 4.4 strictly forbidden to hunt, fish or exploit any of the percent of the country as wilderness areas, most resources or perform any act likely to harm or of it in Lapland. Mining and permanent roads are disturb the fauna and flora. It is likewise prohibited prohibited, as is the construction of buildings other to alter the configuration of the soil or pollute the than for traditional uses by indigenous persons. In water. All human presence, including overflight, Italy, mountains above the 1600-meter line are requires prior permission of the competent national protected areas from quarrying, building and authority. road construction.

52 International law 10.5 Bio-Technology and Living Modified Organisms Several international conventions provide for habitat conservation, either in part or in whole. The Ramsar Throughout history, farmers have used selective Convention on Wetlands of International Importance breeding to alter their livestock and crops for (Feb. 2, 1971) was the first treaty based entirely on the qualities sought by the farmers or consumers. idea that habitat should be the focus of protection. They have also applied biological fermentation to The 1972 UNESCO Convention Concerning the produce new products and increase the period of Protection of the World Cultural and Natural Heritage conserving food. These techniques rely on genetic also can include the protection of the habitat of wild variation, including mutations, already present in fauna and flora. Due to the importance of wetlands species and populations of flora and fauna. All to the global environment, the Ramsar Convention major crops and farm animals are the product of has a significance that today far transcends its some degree of human intervention. original objective of protecting waterfowl. Genetic modification or biotechnology differs from The purpose of the Convention is to stop the loss of the directed but natural processes of selective wetlands and to promote their conservation and wise breeding. Genetic engineering isolates single use. State parties agree to formulate and implement genes from an organism and transfers one or planning to promote as far as possible the wise use more to another organism, across populations and of wetlands in their territory. The Convention requires across species or phyla. Animal genes may be each state party to designate at least one suitable inserted into plants and vice versa. Once inserted, wetland within its territory for inclusion on the Ramsar the genes may be transmitted to subsequent List of Wetlands of International Importance, which generations. is maintained by the World Conservation Union (IUCN). The criteria of “international importance” Genetic engineering has reached the point where provides that a wetland should be considered as a living organisms can be adapted and created particularly good representative example of natural in the laboratory. Many of these living modified or near-natural wetland or a wetland that plays a organisms (LMOs) are not intended to stay in the substantial hydrological, biological or ecological laboratory, however. The introduction of role in the natural functioning of a major river basin resistance into virtually all major crops as a means or coastal system or supports an appreciable of making it easier to control weeds is expanding. In assemblage of rare, vulnerable or endangered addition, genetic engineering of micro-organisms plant or animal species. has developed as an alternative strategy to improve pest control. Genetically altered corn Other criteria include the habitat of plants or and soybean seeds are already in use in different animals at a critical stage of their biological cycle, countries including the United States, Argentina, or for one or more endemic plant or animal species and Brazil. The use of biotechnology to raise crop or communities. Inclusion of a site on the list does yields has received the most publicity and been not prejudice the sovereign rights of the territorial the most controversial, including efforts to broaden state, but the state must conserve, manage and the germplasm basis from which new genetic use wisely the listed wetland and migratory stock combinations can be created and improving of waterfowl and fish. This includes establishing and speeding up the propagation of plants. The nature reserves and providing adequately for their most widely used and commercially successful wardening. States parties maintain the right to add application of plant biotechnology is the rapid wetlands to the list and extend the boundaries of and large-scale multiplication of plants through those already included. In case of urgent national clones produced in tissue culture. The technique is interests a state may also delete a wetland from currently used to mass-produce ornamental, fruit, the list or restrict its boundaries, but then it should vegetable, medicinal plant and tree species. Many compensate for the loss by creating additional scientists see biotechnology as permitting them nature reserves for waterfowl either in the same area to pursue plant breeding efforts, with favorable or elsewhere. A state without a wetland ceases to impact on food supplies, the nutritional content of be a party to the Convention. food, international trade in agricultural products,

53 the environment and existing plant resources. The In terms of additional examples of efforts to ensure commercial nature of many of these potential biological safety, Peru’s Law No. 27104 on the benefits is a source of conflict, particularly between prevention of risks derived from biotechnology developed and developing countries who disagree requires anyone wanting to introduce into the over access to, control of, and benefits from primary national territory LMOs to be used for research, and modified genetic resources. production, manipulation, transfer, conservation, commercialization, contained use and release, to Aware of possible benefits, a substantial number submit a formal application to the competent authority. of scientists nonetheless urge caution in releasing The application is to include all the information genetically engineered organisms, because of necessary for carrying out a risk assessment. the possibility that such organisms might have an unfavorable impact upon the environment When the application is received, an informative and because considerable scientific uncertainty summary is published at the national level. The exists about the scope and degree of the information contained in the application is subject environmental risks. There is fear that the LMOs, to confidentiality restrictions that are actionable by as living organisms, could evolve into destructive the claimant to avoid unfair use. Information that pathogens. Moreover, genetically altered genes cannot be kept confidential includes: the name may naturally transfer to wildgrown relatives, with of the applicant, the objectives of the activities to unforeseeable consequences. Thus far, the major be realized, where these will be realized, methods negative impact that has been identified and and plans of monitoring, emergency plans and risk studied is the harm to monarch butterflies caused assessment methods. Confidentiality also cannot by the protein used in genetically altered corn to be authorized when the application concerns repel certain pests. activities that may cause damage to human health, the environment and biodiversity. Comparable Particular concerns arise over the release of LMOs provisions can be found in the legislation of Tunisia, in or close to a center of genetic diversity of that Costa Rica, Cuba, Mexico and Brazil. crop. Mass production of identical plant materials may introduce greater danger of genetic b) International law destruction because all specimens may become The 1992 UN Convention on Biological Diversity, which equally vulnerable to a single disease or pest Afghanistan ratified in 2001, defines biotechnology leaving no resistant varieties as alternative sources. to mean any technological application that utilizes The widespread use of cloned crops or artificial biological systems, living organisms, or derivations seeds to replace sexually reproducing crops may of them, to make or modify products or processes thus increase crop vulnerability. Finally, the release for specific use. Widespread controversy surrounds of genetically modified micro-organisms (bacteria the question of the potential risks associated with and fungi) could pose particular problems. Very the handling and introduction into the environment little is known about microbial communities; few of living modified organisms (LMOs) or, as they were have been named or studied. However, current first referred to, genetically-modified organisms. research indicates that natural genetic transfer The need to promote biosafety has centered on between different micro-organisms is relatively two related issues: frequent, making it conceivable that engineered species could transfer throughout the microbial 1) The handling of LMOs at the laboratory level, world in unpredictable ways. in order to protect workers and prevent the accidental liberation of such organisms into a) National law the surrounding ecosystem (“contained use”);

National and regional-level regulation of LMOs 2) The need for regulatory systems to govern the has increased in recent years. In the U.S., for deliberate release of LMOs into the environment, example, LMOs are subject to an increasing either for testing or commercial purposes. number of pre-market and labelling guidelines and requirements administered by the Food and Uncertainty surrounding the environmental impacts Drug Administration. of LMOs is recognized in the Convention, which does

54 not define the term “living modified organism” but are pharmaceuticals for human use and that are calls on the contracting parties to consider the need addressed by relevant international agreements for modalities of a protocol setting out procedures or organizations. for the safe transfer, handling and use of any living modified organism resulting from biotechnology The Protocol institutes an “advance informed that may have adverse effect on the environment. agreement” procedure, which is a kind of prior The Convention itself obligates parties to “provide informed consent procedure before certain any available information about the use and safety transboundary movements of LMOs. Thus, the state regulations required by th[e] contracting party in of export must notify or require the exporter to handling such organisms, as well as any available notify, in writing, the competent national authority information on the potential adverse impact of the of the state of import prior to the intentional specified organisms concerned” to any party into transboundary movement of a living modified which those organisms are introduced. organism. Annex I of the Protocol specifies the information that must be transmitted. The importing In respect to in situ conservation, the CBD requires state has 270 days from the date of notification the parties to establish or maintain means to to make a decision on permitting or denying the regulate, manage or control the risks associated importation and must transmit the decision to the with the use and release of living modified notifying party and to a Biosafety Clearing House organisms resulting from biotechnology which are established by the Protocol. A risk assessment likely to have adverse environmental impacts that report may be used as part of such a procedure could affect the conservation and sustainable use in place of domestic regulatory framework. of biological diversity, taking into account the risks to human health. The Convention also calls for implementing the rights of countries of origin of 11 Agriculture and forestry genetic resources or countries providing genetic resources, particularly developing countries, to Forests cover about one quarter of the world’s land benefit from the biotechnological development area outside Greenland and Antarctica, and are and the commercial utilization of products derived generally categorized into three groups: from such resources. 1) Tropical forest,

Both the CBD and Agenda 21 adopted by the 2) Temperate forests, and Conference of Rio de Janeiro on Environment and Development encourage such technology in order 3) Boreal forests to increase benefits from biological resources. The Convention encourages parties to develop Tropical forests constitute half of the world’s forest national legislation that promotes rights associated cover, while temperate and boreal forests together with intellectual property and informal innovations, comprise the other half. Not only are forests home including farmer and breeder’s rights. to up to ninety percent of all terrestrial species, but they also serve the important functions of After extensive negotiations, the parties to the producing oxygen for the planet and of acting Convention on Biological Diversity adopted a as “sinks” for greenhouse gases. Thus, forests are Protocol on Biosafety on January 29, 2000. The essential for the maintenance of all forms of life. objective of the Protocol is to contribute to ensuring However, forests also function in an economic an adequate level of protection in the field of the capacity, which can create a major threat to their safe transfer, handling and use of living modified existence. In recent years, the demand for forest organisms resulting from biotechnology that may products has grown rapidly. Production of paper have adverse effects on the conservation and products has caused one of the greatest increases sustainable use of biological diversity, taking into in the use of wood – up five times from its level in account risks to human health and specifically 1950. The majority of paper consumption takes focusing on transboundary movements. The places in the industrialized Northern countries, Protocol does not apply to the transboundary while developing countries use about half of the movement of living modified organisms which wood cut worldwide for fulfilling basic needs.

55 Deforestation occurs for many reasons, including authority from assigning any forest land or both economic gain and necessity. Tropical portion thereof to any private person or other forests are especially affected by clearing done entity not owned, managed or controlled by the for agricultural purposes, such as planting crops Government without first receiving permission from or grazing cattle. Driven by the basic human the Central Government. It further requires Central need for food, many peasant farmers chop Government permission for declaring that a forest down a small area of trees and burn the trunks area is no longer reserved and for using any in a process called “slash and burn agriculture.” forestland for non-forest purposes. Under section More intensive, modern agriculture also occurs on 2 of the Act, “non-forest purpose” means breaking a larger scale, deforesting up to several miles at up or clearing of any forest land or portion thereof a time. In addition, rain forests are replaced by for the cultivation of tea, coffee, spices, rubber, large cattle pastures to grow beef for the world palms, oil-bearing plants, horticultural crops market. Another common form of deforestation is or medicinal plants or any purpose other than commercial logging, where trees are cut for sale reforestation. as timber or pulp either by selectively cutting the economically valuable trees or by clear-cutting Civil litigation concerning the Forest Conservation all trees in an area. Commercial logging cannot Act developed in Ambica Quarry Works v. State of only damage those individual trees cut down but Gujarat and Others (India, AIR 1987 Sc1073), when also the forest overall through the use of heavy the State Government rejected an application for machinery, such as bulldozers, road graders, and renewal of a mining lease under section 2 of the log skidders, to remove cut trees and build roads. Act, which requires permission from the Central Urbanization, mining and oil exploitation, and fire Government for using forest areas for non-forest can also lead to forest depletion. purposes. The appeal centered on the issue of finding the proper balance between the need Unfortunately, deforestation has profound effects for exploiting mineral resources lying within forest on the global environment. For one thing, loss of areas, the preservation of ecological balance, forests increases the amount of carbon dioxide and curbing environmental deterioration. The (CO2) and other trace gases in the atmosphere. Supreme Court dismissed the appeal because the The plants and soil of tropical forests hold between rationale underlying the Act was the recognition 460 and 575 billion metric tons of carbon of the serious consequences of deforestation, worldwide. Hence, when a forest is cut and burned, including ecological imbalances, with an aim of the carbon that was stored in the tree trunks joins with oxygen and is released into the atmosphere preventing further deforestation. In this case, the as CO2. Deforestation also contributes to global renewal of the mining leases would not help to warming by reducing the evaporative cooling that reclaim the deforested areas and would most likely takes place from both soil and plant life. Forest lead to further deforestation. The Court deemed plants and animals can become endangered or its primary duty was to the community. Thus, its extinct due to loss of habitat as well. Moreover, obligation to society must prevail over its obligation many of the over 200 million indigenous people to individuals. in the world live in tropical and boreal forests and are particularly affected by environmental 11.2 International law harm due to their special relationship with the land, which is often the core of their culture. Thus, In order to give a higher political profile to the issue deforestation can force forest-dwelling peoples and to provide for continued policy development, from their traditional homelands and deprive them the UN Forum on Forests was subsequently of their livelihood. created in October 2000. By 2005, the UNFF will consider such issues as the parameters of 11.1 National law a mandate for developing a legal framework covering all types of forests and the appropriate An example of legislation at the national level, financial and technology transfer support to India’s Forest Conservation Act of 1980 (amended enable implementation of sustainable forest 1988) restricts state authorities or any other management.

56 12 Protection of cultural and An important starting point in understanding both natural heritage national law and international law on this topic is the UNESCO Convention for the Protection of the World Cultural and Natural Heritage (, Nov. 23, 1972), 12.1 Introduction which Afghanistan is a Party to. This Convention is based on a recognition that parts of the cultural or For centuries communities have recognized that it is natural heritage of various nations are of outstanding important to conserve our cultural heritage for future universal interest and need to be preserved as generations. Cultural heritage includes not only the part of the world heritage. It recognizes that items intellectual, artistic and historical record of humans, of cultural and natural heritage are increasingly but also physical objects, whether human-made or threatened with destruction, not only by traditional natural. During the present period of rapid change causes of decay, but also by changing social and it is increasingly recognized that the deterioration economic conditions. The Convention reflects the or disappearance of any item of the cultural or level of global interest in the world heritage and natural heritage constitutes an impoverishment for calls for the international community to participate the whole of humankind. in its protection by granting collective assistance to complement individual state action. Culture is defined as “the totality of socially transmitted behavior patterns, arts, beliefs, institutions, The Convention established an Intergovernmental and all other products of human work and Committee for the Protection of the World Cultural thought” (American Heritage Dictionary). Heritage and Natural Heritage, one of the principal tasks is something that can be inherited or passed of which is the establishment, publication and down from preceding generations. Originally, the dissemination of the “World Heritage List”. The term “cultural heritage” was used exclusively as listed natural sites include Australia’s Great a reference to monumental remains of cultures. Barrier Reef; the Grand Canyon, Yellowstone However, recently the concept of cultural heritage and the Everglades in the United States; the has expanded to not only encompass images of the Galapagos Islands (Ecuador), and the Serengeti past but to reflect living culture as well. To that end, Park (Tanzania). In certain cases, like Machu the concept of cultural heritage recognizes both Picchu in Peru, the sites qualify both as natural tangible pieces of heritage – palaces, temples, and and as cultural heritage. Afghanistan’s Band-e other historic landmarks – and intangible heritage, Amir National Park will be the first natural heritage including acts of creation, representation and site nominated for Afghanistan. processes of transmission, such as the performing arts, languages, and oral traditions. A true account of cannot discount the link between Box 9. Types of heritage human beings and their environment. • Historic cities and monuments Natural heritage encompasses the biodiversity • Festive events of both species and ecological communities, • Cultural landscapes • Rites and beliefs including animals, plants, fungi, and terrestrial • Natural sacred sites and freshwater communities. The importance of • Music and song cultural heritage has been expressed by a simple • Environmental habitats maxim written by an unknown person above the • The performing arts Kabul Museum in Afghanistan: “A nation is alive • Museums when its culture is alive.” Cultural heritage not • Traditional medicine only enables people to understand themselves • Handicrafts by recognizing the different influences that have • Literature shaped their history and identity but is a gateway • Oral traditions for understanding other cultures as well. It allows, • Culinary traditons even creates a “dialogue” of sorts between • Languages different civilizations and can thus contribute to the • Traditional sports and games building of peaceful relations between peoples.

57 The World Heritage Committee also establishes increasingly threatened with destruction, not and publishes a “List of World Heritage in Danger” only by traditional causes of decay, but also by that includes property imminently threatened by changing social and economic conditions, and proven serious and specific dangers such as the calls for the international community to participate threat of disappearance caused by accelerated in its protection by granting collective assistance deterioration, large-scale public or private to complement individual state action. projects or rapid urban or tourist development projects, destruction caused by changes in the use or ownership of the land, major alterations due to 13 Noise unknown causes, abandonment, armed conflict, calamities and cataclysms, such as serious fires, can be described as any unwanted earthquakes, landslides, volcanic eruptions, etc. or harmful sound created by human activities. Types of noise pollution range from community noise to occupational noise, with examples 12.2 National law including barking dogs, household appliances, A good deal of national legislation has been security alarms, loud music, road traffic, air traffic, developed on this topic. In Brazil most of the machinery use, and construction activities. Unlike cultural sites of the World Heritage List had been other environmental problems, noise does not regulated by preexisting federal legislation, such lead to chemical or organic pollution of natural as the Capanema Law of 1935 on historic and resources but instead affects human beings and cultural heritage and the 1961 Law 3.924 relating other animals directly. In recent years, noise has to archaeological sites. State and municipal been recognized not only as an annoyance but regulations were introduced after the listing as a serious health hazard as well. Prolonged or of Olinda, Brasilia and Salvador. Cameroon, excessive exposure to noise can result in: responding to international pressure, elevated • Aggression in 1971 the Douala-Edéa Reserve in the central coastal area and Korup Reserve on the border with • Cardiovascular problems Nigeria to national park status, and designated • Communication disruption these two areas as wildlife parks for scientific • Despondency purposes with the prohibition of wildlife exploitation and the eviction of timber exploiters. Still, none of • Disorientation the sites was put forward as sites under the World • Headaches Heritage Convention. • Hearing loss or impairment India’s Constitution provides that “it shall be the • Increased accidents duty of every citizen of India…to value and • Increased blood pressure preserve the rich heritage of our composite culture;” World Heritage sites in India receive • Nervousness the same legal and administrative protection as • Poor attentiveness or memory other national parks. In Hungary, both the legal • Sleep disruption infrastructure and the administrative machinery for implementing the World Heritage Convention were • Stress in place before the accord was actually signed, • Tension and, as a result, the treaty served as a catalyst for the formal establishment of the Hungarian World With an ever-growing world population and Heritage Commission to coordinate nominations rapidly advancing technology, the effects of and documentation. noise pollution are being felt by greater numbers of people. In fact, as of 1996 an estimated 20 12.3 International law percent of the ’s population, nearly 80 million people, suffered from noise As noted, the UNESCO Convention recognizes levels that scientists and health experts deem that items of cultural and natural heritage are unacceptable.

58 13.1 National law Typically, persons aggrieved by noise pollution can bring nuisance actions in court against the States have aimed to control noise pollution as a party responsible for the nuisance. To be effective public nuisance dating back to ancient Rome, in such cases, the court must determine not only if when citizens were so annoyed by the clatter of a nuisance exists, but also whether, if abated, the iron wheels on stone pavements that they enacted nuisance is likely to recur. The court has the power legislation to control these disruptions. In medieval to secure abatement of the nuisance, prohibit Europe, some cities prohibited horse and carriage or restrict the nuisance and order payment of traffic to protect the sleep of inhabitants. More damages, if necessary. However, the decision of recently, in 1934 Switzerland introduced nighttime what, if any, remedy to grant commonly requires and Sunday bans on heavy goods vehicles to the judge to take into consideration public health protect the population against noise. and welfare, as well as economic efficiency and distributional concerns, such as the cost to society The actual task of standard-setting is usually left of the nuisance, the possible benefits derived to government agencies which determine an from the act causing the nuisance, and available acceptable level of noise for the protection of technology and preventative measures. public health and welfare, taking into account such factors as the magnitude and condition of use, the degree of noise reduction achievable through 14 Toxic and hazardous the application of best available technology, the substances and waste cost of compliance, location, zoning and land use classification. Standards then become codified in Human activities introducing hazardous or toxic regulations, such as Section 5, Standard 1105 of substances and waste into the environment may cause the Canadian Motor Vehicle Safety Regulations, irremediable harm to natural, cyclical phenomena which sets exterior sound level noise emissions such as the life cycle, the water cycle or the carbon standards for motor vehicles – buses, passenger cycle. Since the end of the 1970s rules increasingly cars, trucks, and motorcycles. Canadian Aviation have regulated the substances that produce or can Regulations set similar standards for airplane produce harmful environmental consequences. noise. Following the “cradle to grave” approach, such regulations have concerned the production and use, 13.2 Noise and the courts the trade and transport, and the elimination of toxic and hazardous substances and waste. Courts play an important role in controlling noise pollution, e.g. by judicial review of agency “Waste” is typically taken to mean anything that decisions. Also, by demanding compliance with can be discarded, although treaties and national noise pollution standards from violators, courts have laws have particular definitions. Nearly every human served to further strengthen the authority of those activity generates some kind of waste. Households standards. Regarding the court’s role as a check create common garbage or municipal waste. on agency discretion and action, the Secretary, Municipal waste consists of everyday items such as Ministry of the Environment for Sri Lanka, clarified paper, yard trimmings, food, clothing, and product how an agency should test compliance with noise packaging. Industrial and sites level regulations in Appeal Under Section 23E of produce solid and hazardous waste. Industrial waste the National Environmental Act by E.M.S. Niyaz to comes from a broad range of activities and in many the Secretary Ministry of Environment, Sri Lanka shapes and sizes, including process waste, animal (1985) Niyaz appealed against a decision of the waste, , and medical waste. The Poojapitiya Pradeshiya Sabha (the PS) cancelling state of the economy strongly impacts consumption the Environmental Protection License (EPL) that patterns and waste generation. In other words, as covered the discharge of waste and transmission countries become wealthier, they produce more of noise from his saw mill. The Secretary set aside waste. In 2001, the United States produced 229.1 the cancellation of Niyaz’s EPL, finding that the PS million tons of municipal waste. The UK produces some did not hold a proper inquiry with the participation 400 million tons of waste each year, a quarter of which of Niyaz and any complainants. is from households, commerce and industry, with the

59 remainder made up of construction and demolition International law -- At the international level, the wastes, mining and agricultural wastes, sewage production and use of hazardous chemicals is sludge and dredged spoils. Most waste currently today covered by the Stockholm Convention on ends up in landfill sites, disposal facilities designed Persistent Organic Pollutants of May 22, 2001. Such to permanently contain the waste and prevent the pollutants possess toxic , resist decay, release of harmful pollutants to the environment. bioaccumulate and are transported through Unfortunately, while the amount of waste produced air, water and with migratory species. Using the continues to grow exponentially, there is only a finite precautionary approach and advocating the amount of land in which to dispose of it. polluter pays principle, the Convention provides that each party shall prohibit and eliminate the Judges encounter several kinds of cases production and use and regulate the import and concerning this topic: export of substances listed in an Annex, mainly insecticides and PCBs. Each party also shall take • Consumer protection actions seeking damages measures concerning unintentional production of for harm the chemicals listed in another Annex, primarily • Enforcement of bans on the sale or import of PCBs and dioxins. A convention on Safety and hazardous substances and waste Health in Agriculture adopted by the International Labor Organization (ILO) several weeks later, on • Prosecution for misbranding or mislabelling June 21, 2001, has the aim of preventing accidents products. and injury by eliminating, minimizing or controlling • Prosecution of violations of hazardous waste hazards in the agricultural working environment. management laws Each state is required to take measures to ensure that there is an appropriate system for the • Suits seeking cleanup of sites contaminated importation, classification, packaging and labelling by hazardous substances or reimbursement of chemicals used in agriculture and for their of costs incurred in cleaning up such sites banning or restriction. The measures must cover, inter alia, the preparation, handling, application, This area of law is separable into two fairly discrete storage and transportation of chemicals, the subtopics: chemicals and waste. dispersion of chemicals and the handling of tools and other objects used for chemicals. 14.1 Chemicals The on the Prior Informed National law -- At the national level, many countries Consent Procedure for Certain Hazardous have set up systems to screen industrial chemicals Chemicals and Pesticides in International Trade and pesticides before allowing them to be (entry into force Feb. 24, 2004) also bear note marketed for use. For example, many countries in this regard. This Convention requires exporting require a pesticide to be registered before it can be states that trade in a list of hazardous substances sold or distributed. Decisions on whether to register to obtain the prior informed consent (PIC) of a pesticide for particular uses often depends on importing states before proceeding with the trade. consideration of the risks the pesticide might pose By providing the tools and information needed to human health or to the environment, as well as to identify potential hazards, the Convention consideration of the benefits associated with use of allows importing countries the chance to exclude the pesticide. One tool that can be used to ensure chemicals they cannot manage safely. Moreover, that these decisions are based on solid information the Convention promotes the safe use of hazardous is legislation that specifies broad authority on the chemicals once imported through labelling part of regulatory agencies to require the applicant standards, technical assistance and other forms of for registration to submit the necessary scientific support. Notably, the Convention implicitly places data for consideration. Restrictions on the method of the primary duty to provide information on the application or other aspects of use of the pesticide manufacturer or packager of the export. might be included as conditions of the registration. A similar approach can be taken to screening of Afghanistan intends to accede to both of these industrial chemicals prior to marketing for use. conventions.

60 14.2 Solid and hazardous waste from waste, or render waste safer to transport, store, or dispose. Municipal waste is often treated While waste cannot be eliminated, local by , or burning at high temperatures, governments can reduce its environmental impact rather than being landfilled. Generally, hazardous through proper management. The four main waste must be treated in some way before it can components of are: be disposed. • Source reduction • Recycling d) Disposal

• Treatment and Waste that cannot be reused or recycled must • Disposal. be disposed. Landfilling, or placing waste into the land, is the most common method of disposal a) Source reduction for both municipal and hazardous waste. Usually landfills are required to have some type of Source reduction, or waste prevention, aims lining system to prevent the contamination of at limiting the amount of waste produced. It groundwater under the site, and corrective action can encompass any change in the design, is required if hazardous pollutants escape. When a manufacture, purchase, or use of materials or landfill is closed, typically a cover must be placed products that reduces the amount or toxicity over the landfill to prevent water from entering. of waste to be disposed. One major area of Another disposal method, commonly used for reduction has been to alter the containers or hazardous liquid waste, is injection wells, where packaging used for consumer goods. Another waste is disposed of in a confined area thousands type of source reduction is to reuse items in lieu of feet underground. of throwing them away. According to local studies in the US, between 2 and 5 percent of the waste When not disposed of properly, waste can cause stream is potentially reusable. Ways to reuse items health problems and damage to the natural involve: refilling bottles; using durable mugs, environment and animal or plant species. This is glasses, plates, and silverware; and using cloth especially true of hazardous waste, which due to its napkins or towels. Not only does source reduction toxic, explosive, corrosive, flammable or infectious help to lessen the amount of waste produced, but nature has been linked to adverse effects ranging it also avoids the costs of treatment, disposal and from cancer to birth defects to death. recycling. b) Recycling 14.3 National, waste and the courts

Recycling turns products that would otherwise The primary responsibility for addressing waste- become waste into new materials or products. related problems falls to individual states. Many First, used materials are collected, cleaned and countries have introduced complex waste separated. Then, the materials are manufactured legislative frameworks pursuant to which hazardous into new products, which can be marketed and activities are regulated. These frameworks may sold to consumers. Another form of recycling include licensing of waste management activities, is composting. Basically, composting is a way regimes to increase the cost of disposal, and to turn organic matter, such as food and yard criminal sanctions to punish those unlawfully wastes, into new soil through controlled biological disposing of waste. decomposition. National legislation regulating hazardous waste c) Treatment may include requirements pertaining to the full range of activities involved in waste management, Another way to make waste less of an environmental from the “cradle” to the “grave”. For example, threat is through treatment, which can entail any requirements may be placed on hazardous process that changes the physical, chemical, waste generators, transporters, and installations or biological character of waste. Treatment can that recycle, treat, store or dispose of hazardous neutralize waste, recover energy or material resources wastes.

61 The precise type of requirement may depend 14.4 International law on hazardous on the activity. Hazardous waste generators waste may be required to register their activity and report on the quantities of waste generated, UNEP estimates that countries worldwide generate stored on-site and shipped off-site. Often, over 400 million tons of hazardous waste each year, transportation of hazardous waste may trigger with OECD countries producing the largest amount tracking requirements, such as a requirement of waste at around 300 million tons. Moreover, the that a hazardous waste manifest accompany a cost of waste disposal has risen in many countries shipment at all times. Permits may be required for due to tighter regulatory controls. In some cases, entities that treat, store or dispose of hazardous depending on the proximity of treatment or disposal waste. Various performance and technology- facilities that are equipped to manage a particularly based standards may apply to the treatment and waste, exporting a waste to a nearby facility may be disposal of hazardous wastes. For example, the both more economical and environmentally sound siting of hazardous waste disposal facilities may than disposing of it in a domestic facility. However, be subject to location requirements controlling transfrontier movement of waste has also increased its proximity to populations or water supplies. due to the economic advantages of exporting it to Technology standards may include requirements poorer countries with less stringent controls and lower for certain types of liners and covers to prevent public awareness of the issues. hazardous waste from leaching into surrounding soil and groundwater. The problem of transboundary movement of waste has been the subject of attention at the international Management standards may include requirements level. Adopted in 1989, the for the to monitor incoming wastes and ensure that Control of Transboundary Movement of Hazardous incompatible wastes that may cause establishes a global framework for controlling reactions or explosions when co-mingled are not transboundary trade in hazardous waste and ensuring stored or disposed in proximity to each other, sound management of wastes that are exported and and monitoring of surrounding soil or aquifers to imported. In its focus on transboundary shipments, ensure that the waste has not infiltrated the soil the Basel Convention and national-level implement or groundwater. legislation can be complementary to national laws regulating domestic management of hazardous In addition to laws and regulations that address waste. The three main goals of the Convention are: the active “cradle to grave” management of to reduce transboundary movement of hazardous hazardous waste, many countries have begun wastes together, promote environmentally sound to adopt liability schemes that seek to assign management of waste that is moved across borders; or apportion liability among responsible parties to promote treatment and disposal of hazardous for the remediation of improperly disposed or waste as close as possible to its source of origin; and abandoned hazardous wastes or substances. to promote reduction of hazardous waste generation Additionally, some countries have established at its source. hazardous waste cleanup funds to finance cleanup of contaminated sites for which no solvent Afghanistan has signed but not ratified the Basel responsible parties can be found. Convention.

62 Annex: Paper on the Islamic Principles for the Conservation of the Natural Environment (IUCN Environmental Policy and Law Paper 20, 1983) by Abou Bakr Ahmed Ba Kader et al International Union for Conservation of Nature (IUCN), Saudi Arabia. Meteorological and Environmental Protection Administration (MEPA), 1983

Section 1: A General Introduction to Islam’s Attitude toward the Universe, Natural Resources, and the Relation between Man and Nature

1. All things that God has created in this universe are created in due proportion and measure both quantitatively and qualitatively. God has declared in the Qur’an, “Verily, all things have We created by measure”1 and “Everything to Him is measured.”2 And He says, “ And We have produced therein everything in balance.”3 In the universe there is enormous diversity and variety of form and function. In it and its various elements there is fulfilment of man’s welfare and evidence of the Creator’s greatness; He it is Who determines and ordains all things, and there is not a thing He has created but celebrates and declares His praise. “Have you not seen that God is glorified by all in the heavens and on the earth - such as the birds with wings outspread? Each knows its worship and glorification, and God is aware of what they do.”4 Each thing that God has created is a wondrous sign, full of meaning; pointing beyond itself to the glory and greatness of its Creator, His wisdom and His purposes for it. “He Who has spread out the earth for you and threaded roads for you therein and has sent down water from the sky: With it have We brought forth diverse kinds of vegetation. Eat and pasture your cattle; verily, in this are signs for men endued with understanding.”5

2. God has not created anything in this universe in vain, without wisdom, value and purpose. God says, “We have not created the heavens and the earth and all that is between them carelessly. We have not created them but for truth.”6 The vision of a universe imbued with value is thus revealed to us in the Glorious Qur’an. All things in the universe are created to serve the One Lord Who sustains them all by means ofone another, and Who controls the miraculous cycles of life and death: “God it is that splits the seed and the date stone, brings the living from the dead and the dead from the living: That is your God -how are you turned away?”7

Life and death are created by God so that He might be served by means of good works. “Blessed is He in Whose Hand is dominion, and He has power over every thing: He Who has created death and life to try you, which of you work the most good.”8 The Prophet Muhammad, upon him be blessings and peace, is reported to have declared, “Created beings are the dependents ofGod, and the creature dearest unto God is he who does most good to God’s dependents.”9 Thus all created beings are created to serve the Lord of all beings by performing their ordained roles so as to best benefit each other. This leads to a cosmic symbiosis (takaful). The universal common good is a principle that pervades the universe, and an important implication of God’s unity, for one can serve the Lord ofall beings only by working for the common good of all.

3. Man is part of this universe, the elements of which are complementary to one another in an integrated whole indeed, man is a distinct. part of the universe and i : I!’ has a special position among its other parts. The relatIon between man and the universe, as defined and clarified in the Glorious Qur’an and the Prophetic teachings, is as follows: • A relationship of meditation on, and consideration and contemplation of, the universe and what it contains. • A relationship of sustainable utilization, development and employment for man’s benefit and for the fulfilment ofhis interests.

63 • A relationship of care and nurture, for man’s good works are not limited to the benefit of the human species, but rather extend to the benefit of all created beings; and “there is a reward in doing good to every living thing.”

4. God’s wisdom has ordained to grant human beings stewardship (khilafah) on the earth. Therefore, in addition to being part of the earth and part of the universe, man is also the executor ofGod’s injunctions and commands. And as such he is only a manager of the earth and not a proprietor; a beneficiary and not a disposer or ordainer. Heaven and earth and all that they contain belong to God alone. Man has been granted stewardship to manage the earth in accordance with the purposes intended by its Creator; to utilize it for his own benefit and the benefit of other created beings, and for the fulfilment of his interests and of theirs. He is thus en- trusted with its maintenance and care, and must use it as a trustee, within the limits dictated by his trust. For the Prophet, upon him be blessings and peace, declared, “The world is beautiful and verdant, and verily God, be He exalted, has made you His stewards in it, and He sees how you acquit yourselves.”’10

5. All of the resources upon which life depends have been created by God as a trust in our hands. He has ordained sustenance for all people and for all living beings.

“And He has set within it mountains standing firm, and blessed it, and ordained in it its diverse sustenance in four days, alike for all that seek.”’1 Thus, the utilization of these resources is, in Islam, the right and privilege ofall people and all species. Hence, man should take every precaution to ensure the interests and rights of all others since they are equal partners on earth. Similarly, he should not regard such as restricted to one generation above all other generations. It is rather a joint usufruct in which each generation uses and makes the best use of nature, according to its need, without disrupting or adversely affecting the interests of future generations. Therefore, man should not abuse, misuse, or distort the natural resources as each generation is entitled to benefit from them but is not entitled to “own” them in an absolute sense.

6. The right to utilize and harness natural resources, which God has granted man, necessarily involves an obligation on man’s part to conserve them both quantita- tively and qualitatively. God has created all the sources of life for man and all resources of nature that he requires, so that he may realize objectives such as con- templation and worship, inhabitation and construction, sustainable utilization, and enjoyment and appreciation of beauty. It follows that man has no right to cause the degradation of the environment and distort its intrinsic suitability for human life and settlement. Nor has he the right to exploit or use natural resources unwisely in such a way as to spoil the food bases and other sources of subsistence for living beings, or expose them to destruction and defilement.

7. While the attitude of Islam to the environment, the sources of life, and the resour- ces of nature is based in part on prohibition of abuse, it is also based on construction and sustainable development. This integration of the development and conserva- tion of natural resources is clear in the idea of bringing life to the land and causing it to flourish through agriculture, cultivation, and construction. God says, “It is He Who has produced you from the earth and settled you therein.”’2 The Prophet, upon him be blessings and peace, declared, “If any Muslim plants a tree or sows a field, and a human, bird or animal eats from it, it shall be reckoned as charity from him.”’ “If anyone plants a tree, no human being nor any ofGod’s creatures will eat from it without its being reckoned as charity from him.”’4 “If the day of resurrection comes upon anyone of you while he has a seedling in hand, let him plant it.”’

The approach of Islam toward the use and development of the earth’s resources was put thus by’ Ali ibn Abi-Talib, the fourth Caliph, to a man who had developed and reclaimed abandoned land: “Partake of it gladly, so long as you are a benefactor, not a despoiler; a cultivator, not a destroyer.”16

This positive attitude involves taking measures to improve all aspects of life: health, nutrition, and the psychological and spiritual dimensions, for man’s benefit and the maintenance of his welfare, as well as for the betterment of life for all future generations. And as is shown in the Prophetic declarations above, the aim of both the conservation and development of the environment in Islam is the universal good of all created beings.

64 Section 2: Protection and Conservation of the Basic Natural Resources

Throughout the universe, the divine care for all things and all-pervading wisdom in the elements of creation may be perceived, attesting to the All-Wise Maker. The Glorious Qur’an has made it clear that each thing and every creature in the universe, whether known to man or not, performs two major functions: a religious function in so far as it evidences the Maker’s presence and infinite wisdom, power, and grace; and a social function in the service of man and other created beings.

God’s wisdom has ordained that His creatures shall be of service to one another. The divinely appointed measurement and distribution of all elements and creatures, each performing its ordained role and all of them valuable, makes up the dynamic balance by which the creation is maintained. Overexploitation, abuse, misuse, destruction, and pollution of natural resources are all transgressions against the divine scheme. Because narrow-sighted self-interest is always likely to tempt men to disrupt the dynamic ; equilibrium set by God, the protection ofall natural resources from abuse is a mandatory duty.

In the divine scheme by which all creatures are made to be of service to one another, God’s wisdom has made all things of service to mankind. But nowhere has God indicated that they are created only to serve human beings. On the contrary, Muslim legal scholars have maintained that the service ofman is not the only purpose for which they have been created: “With regard to God’s saying, , And He has made the ships to be of service unto you, that they may sail the sea by His command, and the rivers He has made of service unto you.

And He has made the sun and the moon, constant in their courses, to be of service unto you, and He has made of service unto you the night and day. And He gives you all you seek ofHim: If you would count the bounty of God, you could never reckon it.1 - and similar verses in which God declares that He created His creations for the children of Adam -it is well known that God in His great wisdom has exalted purposes in them other than the service ofman, and greater than the service of man. However, He makes clear to the children of Adam what benefits there are in these creatures and what bounty He has bestowed upon mankind.”2

Vitally important, as the social functions of all things are, the primary function of all created beings as signs of their Creator constitutes the most sound legal basis for conservation of the environment. It is not possible to base the protection of our environment on our need for its services alone since these services are but a supporting value and reason.3 Because we cannot be aware of all the beneficial functions of all things, to base our efforts at conservation solely on the environmental benefits to man would lead inevitably to distortion of the dynamic equilibrium set by God and misuse of His creation, thereby impairing these same environmental benefits. However, when we base the conservation and protection of the environment on its value as the signs of its Creator, we cannot omit any thing, for every element and species has its individual and unique role to play in glorifying God, and in bringing man to know and understand his Creator by showing him God’s infinite power, wisdom, and mercy. It is impossible to countenance the willful ruin and loss of any of the basic elements and species of the creation, or to think that the continued existence of the remainder is sufficient to lead us to contemplate the glory, wisdom, and might of God in all the aspects that are intended, because species differ in their special qualities, and each evidences God’s glory in ways unique to it alone.

Furthermore, all human beings, and indeed livestock and wildlife as well, enjoy the right to share in the resources of the earth. Man’s abuse of any resource is forbidden, and the best use of all resources, both living and lifeless, is prescribed.

The following is a discussion of the basic natural elements:

65 1. Water

God has made water the basis and origin oflife. God says, “We made from water every living thing.”4 Plants, animals, and man all depend on water for their existence and for the continuation of their lives. God has said, “Verily...in the rain that God sends down ! from heaven, thereby giving life to the earth after its death...”5 and He has said, “It is j He Who sends down water from the sky; and thereby We have brought forth the plants I of every kind.”6 “ And you see the earth barren and lifeless, but when We pour down rain upon it, it stirs and swells, and puts forth growth of every resplendent kind.”7 and He has also said, “ And We send down pure water from the sky, thereby to bring to life a dead land and slake the thirst ofthatwhich We have created-cattle and men in multitudes.”8 “God has called on man to appreciate the value of this so essential source of life: “Have you seen the water which you drink? Was it you who sent it down from the raincloud , or did We send it? Were it Our will, We could have made it bitter; why then do you not give thanks?”9 And He has reminded us, “Say: Have you considered, ifyourwaterwere one morning to have seeped away, who then could bring you clear-flowing water?”10

In addition to this vital function, water has another socio-religious function to perform which is purification of the body and clothing from all dirt, impurities and defilement so that man may encounter God clean and pure. God has said in the G lorious Qur’an, “ And He caused rain to descend on you from heaven to cleanse you therewith”’ God has also shown us other functions oflake, sea, and ocean water. He has made it the habitat of many created beings which play vital roles in the perpetuation oflife and the development of this world. God has said, “It is He Who has made the sea ofservice, that you may eat thereof flesh that is fresh and tender, and that you may bring forth from it ornaments to wear, and you see the ships therein that plough the waves, that you may seek of His bounty ,”12 He also says, “Lawful to you is the pursuit of water-game and its use for food a provision for you, and for those who travel.”13

There is no doubt that conservation of this vital element is fundamental to the preservation and continuation of life in its various forms, plant, animal, and human. It is therefore obligatory , for in Islamic law, whatever is indispensable to fulfil the imperative obligation of preserving life is itself obligatory .Any action that obstructs or impairs the biological and social functions of this element, whether by destroying it or by polluting it with any substance that would make it an unsuitable environment for living things or otherwise impair its function as the basis of life; any such action necessarily leads to the impairment or ruin of life itself, And the juristic principle is, “What leads to the prohibited is itself prohibited.”

Owing to the importance of water as the basis of life, God has made its use the common right of all living beings and all human beings. All are entitled to use it without monopoly, usurpation, despoilment, wastage, or abuse. God commanded with regard to the people of Thamud and their camel, “ And tell them that the water shall be shared between them,”14 and the Prophet, upon him be blessings and peace, said, “Muslims are to share in these three things: water, pasture, and fire,”15 Extravagance in using water is forbidden; this applies to private use as well as public, and whether the water is scarce or abundant. It is related that the Prophet, upon him be blessings and peace, passed by his companion Sa’d, who was washing for prayer, and said, “What is this wastage, O Sa’ d?” “Is there wastage even in washing for prayer?” asked Sa’ d; and he said, “Yes, even if you are by a flowing river!”16

The long experience of Muslim jurists in the allocation of water rights in arid lands has given rise to an outstanding example of the sustainable use of a scarce resource; an example which is of increasing relevance in a world where resources which were once abundant are becoming progressively more scarce.

2. Air

This element is no less important than water for the perpetuation and preservation oflife, Nearly all terrestrial creatures are utterly dependent on the air they breathe, The air also has other functions which

66 may be less apparent to man but which God has created for definite purposes, as we have been made aware of by the Glorious Qur’an -such as the vitally important role of the winds in pollination. God has said, “ And we send the fertilizing winds. “17 The winds are also clear evidence of God’ s omnipotence and grace, and the perfection of design in His creation. He has also said, “Verily in the creation of the heavens and the earth; in the alternation of night and day in the change of the winds, and the clouds compelled between heaven and earth surely there are signs for a people who have sense.”18

“And He it is Who sends the winds as tidings heralding His grace: until when they have raised a heavy- laden cloud, We drive it to a dead land and cause the rain to descend upon it, and thereby bring forth fruits of every kind.”19

Since the atmosphere performs all these biological and social functions, its conser- vation, pure and unpolluted, is an essential aspect of the conservation oflife itself which is one of the fundamental objectives of Islamic law. Again, whatever is indispensable to fulfil this imperative obligation is itself obligatory .Therefore any activity which pollutes it and ruins or impairs its function is an attempt to thwart and obstruct God’s ii wisdom towardHis creation. This must likewise be considered an obstruction of some aspects of the human role in the development of this world

3. Land and soil

Like air and water, the land and soil are essential for the perpetuation of our lives and the lives of other creatures. God has declared in the Qur’an, “ And the earth He has established for living creatures.”20 From the minerals of the earth are made the solid constituents of our bodies, as well as those ofall the living animals and plants. God has said in the Qur’an, “ And among His signs is that He has created you from dust; then behold, you are humans scattered widely.”21 He has also made the land our home and in the home of all terrestrial beings. “ And God has made you grow, as a plant from the earth; then to it He returns you, and He will bring you forth a new...”22 And as our home, the land has value as open space: “...and God has made the earth a wide expanse, that you may traverse its open ways.”23

God has made the land a source of sustenance and livelihood for us and other living creatures: He has made the soil fertile to grow the vegetation upon which we and all animal life depend. He has made the mountains to catch and store the rain and to perform a role in stabilizing the crust of the earth, as He has shown us in the Glorious Qur’an: “Have We not made the earth a vessel to hold the living and the dead? And We have made in it lofty mountains and provided you sweet water to drink.”24 “ And the earth, after that He has spread it out; from it He has brought forth its waters and its pastures, and He has made fast the mountains, a provision for you and for your cattle.”25 “ And the earth, We have spread it out, and made in it mountains standing firm, and grown in it every thing in balance. And We have provided in it sustenance for you, and for those whom you do not support.”26 “And a sign for them is the lifeless earth: We bring it to life and bring forth from it grain of which they eat. And we have made therein gardens of palms and vines.

If we would truly give thanks to the Creator, we are required to maintain the productivity of the soil, and not expose it to erosion by wind and flood; in building, farming, grazing, forestry, and mining, we are required to follow practices which do not bring about its degradation but preserve and enhance its fertility. For to cause the degradation of this gift of God, upon which so many forms oflife depend, is to deny His tremendous favors. And because any act that leads to its destruction or degradation leads necessarily to the destruction and degradation of life on earth, such acts are categorically forbidden.

Finally, the Prophet Muhammad, God’s blessing and peace be upon him, declared that “The whole earth has been c!eated as a place of worship for me, pure and clean.”28 Accordingly, we are charged with treating it with the respect due to a place of worship, and with keeping it pure and undefiled.

67 4. Plants and animals

There is no denying the importance of plants and animals as living resources of enormous benefit, without which neither man nor other species could survive. God - be He exalted -has not made any ofHis creatures worthless: every single form oflife is the product of a special and intricate development by God, and warrants special respect. As a 1iving genetic resource, each species and variety is un ique and irreplaceab le. Once lost, it is lost forever.

By virtue of their unique function of producing food from the energy of the sun, plants constitute the basic source of sustenance foranimal and human life on earth. God has said, “Then let man consider his nourishment: that We pour down the rain in showers, and We split the earth in fragments, and therein make the grain to grow, and vines and herbs, and olives and palms, and gardens of dense foliage, and fruits and fodder- provision for you and your cattle.”29

In addition to their importance as nourishment, plants enrich the soil and protect it from erosion by wind and water. They conserve the water by detaining its runoff; they moderate the climate and produce the oxygen which we breathe. They are also of immense value as medicines, oils, perfumes, waxes, fibers, timber, and fuel. God has said in the Glorious Qur’an, “Have you seen the fire you kindle? Was it you who grew its timber or did We grow it? We have made it a reminder, and a comfort for the desert- dwellers.”30

Animals in turn provide sustenance for plants, for one another, and for man. Their dung and their bodies enrich the soil and the seas. They contribute to the atmosphere by respiration, and by their movements and migrations contribute to the distribution of plants. They provide food for one another and provide mankind with leather, hair and wool, medicines and perfumes, and means of conveyance, as well as meat, milk, and honey. And for their highly developed senses and perceptions and their social interre- lationships, animals are accorded special regard in Islam. For God considers them living societies exactly like mankind. God has declared in the Glorious Qur’an, “There is not an animal on the earth, norany beingthatwings its flight, but is a people like unto you.”31

The Glorious Qur’an mentions the aesthetic functions of these creatures as objects of beauty in addition to their other functions. Since peace of mind is a religious requirement which needs to be fully satisfied, those things which cause it should be amply provided and conserved. God has made in plants and animals that which excites wonderandjoy in man’s soul so asto satisfy his peaceofmind, afactorwhich is essential for man’s proper functioning and full performance.

The Glorious Qur’an also mentions other functions which these creatures perform and which man may not perceive, namely the functions ofworshipping God, declaring if His praise and bowing down to Him as they are compelled by their very nature to do. God has said, “Do you not see that to God bow down in worship all things that are in ,Ii!: the heavens and on the earth -the sun, the moon, the stars, the mountains, the trees, the animals...”32 and God says, “The seven heavens and the earth and all the beings therein proclaim His glory: There is not a thing but celebrates His praise, but you understand not how they declare His glory.”33 and He says, “To God bow all beings in the heavens and the earth -with good will or in spite of themselves.”34

Islam emphasizes all measures for the survival and perpetuation of these creatures so that they can fully perform the functions assigned to them. The absolute destruction of any species of animals or plant by man can in no way be justified; nor should any be harvested at a rate in excess of its natural regeneration. This applies to hunting and fishing, forestry and wood-cutting for timber and fuel, grazing, and all other utilization of lfiving resources. It is imperative that the genetic diversity of living beings be preserved--both for their own sake and for the good of mankind and all other creatures.

The Prophet Muhammad, upon him be blessings and peace, was sent by God as “a mercy to all beings.”35 He has shown us through his commandments and teachings, how to tend and care for these creatures.

68 He said, “The merciful are shown mercy by the All-Merciful. Show mercy to those on earth, and He Who is in heaven will show mercy unto you.” 36 He commanded mankind to provide for the needs of any animals under their care, and he warned that a person who causes an animal to die of starvation or thirst is punished by God in the fire of hell. 37 Furthermore, he directed human beings to provide for needy animals in general, telling of a person whose sins God pardoned for the act of giving water to a dog in desperate thirst. Then when the people asked, O Messenger of God, is there a reward in doing good to these animals? He said, “There is a reward in doing good to every living thing.” 38.

Hunting and fishing for food is permitted in Islam; however, the Prophet, upon him be blessings and peace, cursed anyone who uses a living creature as a target, taking a life for mere sport. 39 Likewise he forbade that one prolong an animal’s slaughter.40 He declared, “God has prescribed the doing of good toward every thing: so when you kill, kill with goodness, and when you slaughter, slaughter with goodness. Let each one of yu sharpen his blade and let him give ease to the animal he is slaughtering.”41.

The Prophet Muhammad, upon him be blessings and peace, forbade that a fire be lit upon an anthill, and related that an ant once stung one of the prophets, who then ordered that the whole colony of ants be burned. God revealed to him in rebuke, “Because an ant stung you, you have destroyed a whole nation that celebrates God’s glory .””42 He once ordered a man who had taken the nestlings of a bird from their nest to return them whence he got them, to their mother which was trying to protect them.”43 He forbade that one needlessly and wrongfully cut down any tree which provides valuable shelter to humans or animals in the desert,”” and the aim of this prohibition may be understood as prevention of the destruction of valuable habitat for God’ s creatures.

On the basis of the Prophetic commands and prohibitions, Muslim legal scholars : rhave ruled that God’s creatures possess inviolability (hurmah) which pertains even in : war: The Prophet, upon him be peace and the blessing ofGod, forbade the killing of bees and any captured livestock, forkillingthem is a form ofcorruption included in what God has prohibited in His saying, “ And when he turns away, he hastens through the land to cause corruption therein and to destroy the crops and cattle: And God loves not corruption.” 45 For they are animals with the spirit oflife, so it is not lawful to kill them in order to gall the enemy idolators...And they are animals possessing inviolability just as do women and children.”46

It is a distinctive characteristic of Islamic law that all anim.als have certain legal rights, enforceable by the courts and by the office of the hlsbah. The following of the Prophetic traditions:, “The rights of livestock and animals with regard to their treatment by man: These t are that he spend on them the provision that their kinds require, even if they have aged or sickened such that no benefit comes from them; that he not burden them beyond what they can bear; that he not put them together with anything by which they would be injured, whether of their own kind or other species, and whether by breaking their bones or butting or wounding; that he slaughter them with kindness i ifhe slaughters them, and neither flay their skins nor break their bones until their f bodies have become cold and their lives have passed away; that he not slaughter their young within their sight; that he set them apart individually; that he make comfortable their resting places and watering places; that he put their males and females together during their mating seasons; that he not discard those which he takes in hunting; and neither shoot them with anything that breaks their bones nor bring about their destruction by any means that renders their meat unlawful to eat.”47

Islam looks upon these created beings, both animals and plants, in two ways: As living beings in their own right, glorifying God and attesting to His power and wisdom; As creatures subjected in the service ofman and other created beings, fulfiling vital roles in the development of this world.

Hence the binding obligation to conserve and develop them both for their own sake and for their value as unique and irreplaceable living resources for the benefit of one another and of mankind.

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