SACEP UNEP NORAD SACEP / UNEP / NORAD Publication Series on Environmental Law and Policy No.4 SACEP /UNEP / NORAD REPORT OF THE REGIONAL SYMPOSIUM ON THE ROLE OF THE JUDICIARY IN PROMOTING THE RULE OF LAW IN THE AREA OF SUSTAINABLE DEVELOPMENT Colombo, Sri Lanka 4-6 July, 1997 Published by: South Asia Co-operative Environment Programme (SACEP) and United Nations Environment Programme (UNEP) with fmancial supporl. from The Norwegian Agency for Development Co-operation (NORAD) SACEP UNEP NORAD SACEP / UNEP / NORAD Publication Series on Environmental Law and Policy No.4 SACEP IUNEP I NORAD REPORT OF THE REGIONAL SYMPOSIUM ON THE ROLE OF THE JUDICIARY IN PROMOTING THE RULE OF LAW IN THE AREA OF SUSTAINABLE DEVELOPMENT Colombo, Sri Lanka 4-6 July, 1997 Editors Donald Kaniaru Director, Environmental Law and Institutions Centre, UNEP Lal Kurukulasuriya Chief, Regional Environmental Law Programme, UNEPIROAP Prasantha Dias Abeyegunawardene Deputy Director, Programmes, SACEP Chad Martino Legal Officer, UNEPIROAP Table of Contents Introduction........................................................ ............... ............... .......... III List of Participants............. .............. ..... .... .............................. ...... ................ vii Agenda.................................... ............................. ...................................... xiii I. INAUGURATION Address by Mr. Hussain Shihab, Director, SACEP................................... 1 Address by Hon. Nandimitra Ekanayake - Minister ofForestry & Environment, Sri Lanka................................................... ............... 5 Address by H. E. Ove Christian Danbolt - Head of Mission ofThe Royal Norwegian Embassy............................................................................ 9 Address by Mr. Donald Kaniaru Director, Environmental Law CentrelUNEP, on Behalfof Ms. Elizabeth Dowdeswell, Under Secretary General ofthe United Nations and Executive Director ofUNEP.................. 11 Address by Hon. G. L. Peiris, Minister ofJustice, Constitutional Affairs, Ethnic Affairs & National Integration, Sri Lanka............................................ 13 Inaugural Address by Chief Guest, Hon. K. B. Ratnayake Speaker of The House ofParliament, Sri Lanka.................................................. 21 Keynote Address by H. E. Judge Christopher G. Weeramantry Vice-President ofThe International Court of Justice.............................................. ..... 25 Vote of Thanks by Mr. Prasantha Dias Abeyegunawardene, Deputy DirectorlProgrammes, SACEP........................................................ 39 II. OPENING SESSION "The Role of Law in Making Development More Sustainable" ­ Professor Mohan Munasinghe.................................................... 47 Country Presentations Bangladesh -Hon. Mr. Justice A. T. M Afzal................................................ 61 India - Hon. Mr. Justice B. N Kirpal............................................................ 73 Maldives - Hon. Mr. Abdul/aM Majid............................................................. 79 Nepal - Holl. Mr. Justice Trilok Pratap Rana................................................. 87 Pakistan - Hon. Mr. Justice Raja Afrasiab ................................................... 99 Sri Lanka - Hon. Mr. Justice Mark Fernando ................................................ 105 III. NEW DIRECTIONS IN THE PREVENTION AND RESOLUTION OF ENVIRONMENTAL DISPUTES "The Experience ofa Specialist Environmental Court" - Hon. Mr. Justice Paul Stein ............................... ......................... 143 "New Directions: The Prevention and Resolution ofEnvironmental Disputes" - Hon. Mr. Justice B. N Kirpal........................................................ 161 "The Environmental Appeal Tribunal ofMauritius" - Hon. Mme. D. Beesoondoya/.. ........................ ........................... 171 "Principles ofEnvironmental Justice: A Foundation for Dispute Prevention and Resolution" . Professor Nicholas A. Robinson......................... ..................... 181 IV. CONTEMPORARY DEVELOPMENTS IN INTERNATIONAL AND NATIONAL LAW IN THE FIELD OF SUSTAINABLE DEVELOPMENT "The Challenge for the Judiciary in the Application ofGeneral Principles of Environmental Law" - Mr. Donald Kaniaru........... ...................................................... 197 "Contemporary Developments in National Laws in the Area ofSustainable Development with Special Reference to Asia" - Hon. Sarath Silva..... .................................................... 215 V. CLOSING SESSION Closing Remarks - Hon Mr. Justice A. R B. Amerasinghe............................. 223 Closing Address - H.E. Judge Christopher G. Weeramantry......................... 229 ii Introduction INTRODUCTION The Regional Symposium on the Role of the Judiciary in Promoting the Rule of Law in the Area of Sustainable Development was convened jointly by the South Asia Co-operative Environment Programme (SACEP) and the United Nations Environment Programme (UNEP) with funding from the Royal Norwegian Government through NORAD, and was held in Colombo, Sri Lanka from 4-6 July, 1997. This important initiative was undertaken by the two organisations under the on-going Joint SACEPIUNEPINORAD Project on Environmental Law in South Asia. The Symposium brought together superior court judges from countries in South Asia to examine contemporary developments in the field of environmental law ­ both international and national - exchange views on experiences in their respective jurisdictions relating to the progressive development of this new and rapidly growing branch of law, and to fmd ways and means of strengthening judicial co-operation in the region. The Vice-President of the International Court of Justice, H.E. Judge Christopher G. Weeramantry served as the Moderator of the Symposium while Hon. Mr. Justice Ranjith Amerasinghe, Judge ofthe Supreme Court of Sri Lanka served as its Secretary General. Hon. Mr. Justice P.N. Bhagwati, the former Chief Justice of India, who served as the Advisor to UNEP and SACEP in the organisation of the Symposium, was unfortunately unable to attend as he was taken ill on the eve ofthe Symposium. Among those who presented papers at the Symposium were: the Chief Justice of Bangladesh, Hon. Mr. Justice A.T.M.Afzal; the Chief Justice of Nepal Hon. Mr. Justice Trilok Pratap Rana; Hon. Justice B. N. Kirpal, Judge of the Supreme Court of India; Hon. Mr. Justice Raja Afrasiab Judge of the Supreme Court of Pakistan; Hon. Mr. Justice Mark Fernando, Judge of the Supreme Court of Sri Lanka; Hon. Sarath N. Silva, Attorney General of Sri Lanka; Hon. Abdullahi Majeed, Deputy Minister ofPlanning, Human Resources and Environment ofthe Maldives; Hon. Mr. Justice Paul Stein, Judge of the Court of Appeal, New South Wales, Australia and former Judge of the Land and Environmental Court of NSW; Hon. Mme. D. Beesoondoyal, Chair, Environmental Appeal Tribunal of Mauritius; Mr. Donald Kaniaru, Director ofUNEP's Environmental Law Centre with his colleague Professor Charles· Okidi; Professor Nicholas A. Robinson, Chair, mCN Commission on Environmental Law; and Prof. Mohan Munasinghe, Senior Adviser on Sustainable Development at the World Bank. The Symposium recommended a series of actions referred to below, designed to facilitate and encourage :the judiciaries in the region to take cognisance of the growing body of judicial decisions and formulations - both within and outside Introduction the region- on environment related issues, especially in regard to balancing environmental and developmental considerations in judicial decision making. UNEP and SACEP with financial assistance from NORAD are currently implementing these recommendations under the Joint SACEPIUNEPINORAD Project on Environmental Law in South Asia. Following the ceremonial inauguration, the heads of country delegations presented country papers which outlined the current status of legal and institutional arrangements for environmental management and for integrating environmental considerations in executive decision making, and also discussed the reasoning behind important judicial decisions in the area of environment and development in their respective jurisdictions. This was followed by a detailed consideration of two themes: New directions in the prevention and resolution of environmental disputes, and, Contemporary developments in international and national environmental law. The following are among the important legal issues that were discussed at the Symposium against the backdrop ofjudgements of superior courts of the region in recent environment related cases: Incorporation of the principle of sustainable development, the polluter pays principle, the precautionary principle, and the principle of continuous mandamus in the corpus of international and national law; invocation of the extraordinary jurisdiction of the Supreme Court in environmental matters; public participation, including substantive and procedural matters relating to public interest litigation; the erga omnes character of environmental matters and the problem of applying inter partes procedures in environmental dispute resolution; limits of the concepts of "aggrieved person" and "locus standi" in regard to environmental damage; inter-generational and intra-generational equity; court commissions to ascertain facts and an authoritative assessment of the scientific and technical aspects of environment and development issues; interpretation of constitutional rights including right to