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Environmental Law: Post-Rio Discussions on Environmental Protection—A Reflection

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Abstract

Between 5 and 14 June 1992, the United Nations Conference on Environment and Development (UNCED) or first Earth Summit was held in Rio de Janeiro, Brazil.

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Notes

  1. 1.

    Note that environmental law has been defined as: ‘the field of law dealing with the maintenance and protection of the environment, including preventive measures such as the requirements of environmental impact statements as well as measures to assign liability and provide clean up for incidents that harm the environment’. B.A. Garnered, Black’s Law Dictionary (St Paul MN, Thomson Reuters, 2009) 614; There are two broad categories of environmental law, namely, national environmental law and international environmental law. The former is aimed at protecting the environment within a country. Whilst the latter is aimed at protecting global environment.

  2. 2.

    The Act in its section 36 repealed the Federal Environmental Protection Agency (FEPA) Act, Cap F 10 Laws of the Federation of Nigeria (LFN) 2004. It created a new Agency, that is NESREA to replace FEPA, with responsibility for the protection and development of the environment in Nigeria.

  3. 3.

    3 RIAA 1905; See also Lake Lanoux, “Arbitration”, XII RIAA, 1963, at 281.

  4. 4.

    M.A. Akatugba “International Environmental Law: Influence of International Conventions on Nigerian Environmental Law”, 1(1) Delsu Journal of Jurisprudence and International Law, 2006, at 104.

  5. 5.

    E. Deutsch, available at: http://www.unrep.org/documents_multilingual [accessed on January 3, 2013].

  6. 6.

    Available at: http://publications.gc.ca [accessed on January 4, 2013].

  7. 7.

    Ibid.

  8. 8.

    Ibid.

  9. 9.

    General Assembly Resolution 37/7.

  10. 10.

    Supra note 6.

  11. 11.

    Available at: http://enwikipedia.org/wiki/UnitedNationsConferenceonSustainableDevelopment [accessed on January 3, 2013].

  12. 12.

    Ibid.

  13. 13.

    Ibid.

  14. 14.

    Available at: http://www.guardian.co.UK/environment/2012/jun/19/rio–20–earth–summit–1992–2012 [accessed on January 3, 2013].

  15. 15.

    For example, President Goodluck Jonathan of Nigeria re-affirmed his administration’s commitment to achieving sustainable development in Nigeria by creating Jobs in the country. The Guardian (Lagos) June 22, 2012 at 4. Scandinavian leaders, for their part, pledged support for systems that would place an economic value on clean water ways, intact forests and other important ecosystems. Mohamed Waheed, President of Maldives announced that his nation would ban damaging fishing practice; and Grenada announced that its transport and electricity sectors would only use clean energy sources by 2030, available at: http://articles.washingtonpost.com [accessed 3 January 2013].

  16. 16.

    The Guardian (Lagos) June 25, 2012 at 48.

  17. 17.

    Supra note 11.

  18. 18.

    Supra note 16, It is noted that the document actually observed that three years from the 2015 target date of the MDGs, progress has been uneven and the number of people living in poverty in some countries continue to increase.

  19. 19.

    Available at: http://artical.Washintonpost.com [accessed on January 3, 2013].

  20. 20.

    Deutsch, supra note 5.

  21. 21.

    Ibid.

  22. 22.

    Ibid.

  23. 23.

    Ibid.

  24. 24.

    It gives the reasons which can justify a state’s exploitation of resources. The Rio Declaration provides for the sovereign right of states to exploit their own resources pursuant to their own environmental and developmental policies. Of course, the wording of Principle 2 of the Rio Declaration ‘… pursuant to their own environmental and developmental policies…’, may imply that ‘development’ can be a justification for the depletion of resources. J. Thornton and S. Beckwith, Environmental Law (Sweet and Maxwell, London, 1997) at 36.

  25. 25.

    Deutsch, supra note 5; See also P. Birnie and A. Boyle, International Law and the Environment (Clarendon Press, Oxford, 1993) pp. 92–93; it is noted that in this way, the Principle as applied in later international law requires states to do more than merely make reparation for damage, placing an obligation on them to take preventive measures to protect the environment- the precautionary approach. See S. Elworthy and J. Holder, Environmental Protection: Text and Materials (Butterworth, London, 1997) at 134.

  26. 26.

    See P.D. Okonma, “Rights to a clean Environment: The case of the People of Oil Producing Communities in the Nigerian Delta”, Journal of African Law, 1977, at 64 quoted in L. Atsegbua and M. Ezekiel, “A Critical Appraisal of Environmental Rights under the Nigerian Constitution”, 2(1) Benin Journal of Public Law, 2004, at 61.

  27. 27.

    Ibid. it is noted that Principle 3 of Rio Declaration actually envisages this mean. Its reference to meeting environmental as well as development needs, may be taken to imply that development must sometimes be compromised to achieve environmental goals.

  28. 28.

    See Johannesburg Plan of Action, Para 5, quoted in Deutsch, supra note 5.

  29. 29.

    Treaty on European Union Title XVI, Article 130 r(2), quoted in Elworthy and Holder, supra note 25.

  30. 30.

    Thornton and Backwith, supra note 24, at 37.

  31. 31.

    Elworthy and Holder, supra note 25 at, 159.

  32. 32.

    Note that originally, it is a party who complaints to the court or alleges any wrongdoing that has the burden of proof. But where a party complains to the court of possible environmental damage of an irreversible nature which another party is committing or threatening to commit, the proof or disproof of the matter alleged may present difficulty to the claimant as the necessary information may largely be in the hands of the party causing or threatening the damage.

  33. 33.

    World Trade Organization , European Communities – Measures Affecting the Approval and Marketing of Biotech Products, paras 7.80–7.83, quoted in Deutsch, supra note 5.

  34. 34.

    Available at: http://www.uncsd2012.org/mgzrodrafthtml [accessed 4 February 2013].

  35. 35.

    Deutsch, supra note 5.

  36. 36.

    S. Wehmeier, AS Hornby’s Oxford Advanced Learner’s Dictionary-International Students Edition (Oxford University Press, Oxford, 7th ed., 2005) at 290.

  37. 37.

    Ibid., at 405.

  38. 38.

    Ibid.

  39. 39.

    Ibid., at 1245.

  40. 40.

    Thornton and Beckwith, supra note 24, at 39.

  41. 41.

    Deutsch, supra note 5.

  42. 42.

    In Nigeria, the Environmental Impact Assessment Decree 86 of 1992 (now Environmental Impact Assessment Act, Cap E 12 LFN, 2004) requires mandatory environmental impact assessment for certain projects and activities, including Airport, Railways and Water supply and in some other projects and activities where the authority in charge of environment considers same necessary. For details on environmental impact assessment in Nigeria, see B.B. Orubebe, “Environmental Impact Assessment Law and Land use: A Comparative Analysis of Recent Trends in the Nigerian and United States of America Oil and Gas Industry”, 2(2) Delsu Law Review-Environmental Law Edition, 2006, pp. 359–388; S.M. Adam, “Application of Environmental Impact Assessment Law and Policy in Nigeria”, 2(2) Delsu Law Review-Environmental Law Edition, 2006, pp. 345–358; and D.F. Tom, “A Review of Corporate Liability under the Environmental Impact Assessment Act in Nigeria”, 2(2) Delsu Law Review–Environmental Law Edition, 2006, pp. 449–462.

  43. 43.

    Deutsch, supra note 5.

  44. 44.

    Ibid.

  45. 45.

    Ibid.

  46. 46.

    Ibid.

  47. 47.

    Available at: http://www.wrl.org/project/earth-summit-rio–2012 [accessed on January 3, 2013].

  48. 48.

    Deutsch, supra note 5; It has been postulated that the right to a healthy and decent environment also implies a right to the due process of law, to public participation in environmental decision—making and to access to effective national remedies. Thornton and Beckwith, supra note 24 at 46.

  49. 49.

    Ibid.

  50. 50.

    Ibid., See, for example, the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) and the 2010 UNEP Guidelines for the Development of National Legislation on Access to information, Public Participation and Access to Justice in Environmental Matters, quoted in Ibid.

  51. 51.

    The Guardian (Lagos) July 8, 2012 at 16; In a similar vein, Justice Mohammed Liman of the FHC, Benin-city ordered in mid July 2013, the clerk of the NAN to furnish Patrick Osagie Eholor, the plaintiff in a suit filed in the court pursuant to the FOI Act, with details of the salaries, emoluments and constituency allowances of Senator Ehigie Uzamere and Hon. Nosakhare Osahon, representing Edo South Senatorial District and Ovia Federal Constituency, respectively in the NAN. Available at: http://allafrica.com/./201307180/38.htmc [accessed on August 16, 2013].

  52. 52.

    Deutsch, supra note 5.

  53. 53.

    See, for example, the Preambles of the UNCBD and the Desertification Convention. A United Nations Development Programme (UNDP) website actually puts it that gender equality and women’s empowerment represent not only fundamental human rights issues, but ‘a pathway to achieving the MDGs and Sustainable Development, Ibid.

  54. 54.

    Note that women such as Angela Markel, Sirleaf Johnson, Dilma Rousseff and Joyce Banda are leaders of government in Germany, Liberia, Brazil and Malawi, respectively.

  55. 55.

    General Assembly resolution 61/295.

  56. 56.

    For this and details on the challenges confronting the indigenous peoples, see The Guardian (Lagos) June 4, 2012 at 48.

  57. 57.

    The Principle is well entrenched in many environmental legislation in Nigeria. For example, under sections 12 and 21 of the Nigerian Harmful Waste (Special Criminal Provisions, etc.) Act Cap 165 LFN 1990 (now Cap H1 LFN 2004) and Nigerian FEPA Act, 2004, respectively a victim of environmental harm is entitled to compensation from the violators. Quoted in AE Abuza, “Protection of Endangered Species in Nigeria under the Endangered Species (Control of International Trade and Traffic) Act, 1990”, 1(2) Delsu Law Review, 2005, at 319; For details on the Polluter Pays’ Principle, see AOO Ekpu, “The Polluter Pays Principle: A Review of Law and Policy”, 1(1) Commercial and Property Law Journal, 2006, pp. 249–263; See also generally, RO Ugbe, “The ‘Polluter Pays’ Principle: An Analysis”, VI–VII, Calabar Law Journal, 2002/2003, at 127.

  58. 58.

    The Principle has found expression in some Treaties on liability for environmental damage, including Convention on Civil Liability for Oil Pollution Damage, 1969, the Convention on the Establishment of an International Fund for Compensation of Oil Pollution Damage 1971 as amended by the 1992 Protocols and European Community Treaty establishing the European Economic Community, Rome of 25 March 1957, 298 UNITS 267.

  59. 59.

    See Ekpu, supra note 57, at 250.

  60. 60.

    Ibid., at 251.

  61. 61.

    Ibid., at 260.

  62. 62.

    Ibid.

  63. 63.

    For details on criticisms of the Principle, see generally Ekpu, supra note 57 and Thornton and Beckwith, supra note 24.

  64. 64.

    At the former level, we can give as examples the Draft Principles on Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities and the 2010 UNEP Guidelines for the Development of Domestic Legislation in liability, Response Action and Compensation for Damage Caused by Activities Dangerous to the Environment. At the national level, many states have enacted their own domestic legislation on the matter like, as already disclosed, the Nigerian Harmful Waste Special Criminal Provisions Act 2004 which provides for both civil and criminal liability for oil pollution damage. Under this piece of legislation, victims of oil pollution damage or environmental harm can obtain compensation from the violators.

  65. 65.

    For an incisive discussion on the drawbacks of the Liability and Compensation Strategy highlighted here, see A.A. Idowu, “Examining the Issue of Compensation for Environmental Degradation and Pollution in Nigeria”, 21–22 Ahmadu Bello University Law Journal, 2003–2004, at 148.

  66. 66.

    This proposition is now subsumed in the principle established by the celebrated United States’ Supreme Court decision in Aloeboetoe Reparation case, (1993) USSC, 10 September 8 called ‘causa causae est causa causati’ meaning ‘to compel the perpetrator of an illicit act to erase all the consequences produced by his actions is completely impossible since that act causes effects that multiplied to a degree that cannot be measured’. See also Albrecht Randelzhofer and Christian Tomuschat, State Responsibility and the Individual (Kluwer Law International, Netherlands, 1999) pp. 85–86.

  67. 67.

    Shell Petroleum Development Company Nigeria Ltd. vs. Farah (1995) 3 Nigeria Weekly Law Reports (NWLR) (part 382) 148, 192.

  68. 68.

    Ibid.

  69. 69.

    Ekpu, supra note 57 at 261.

  70. 70.

    See Mon vs. Shell BP Development Company of Nigeria Ltd. (1970–72) 1 Rivers State Law Reports (RSLR) 71 and Nweke vs. NAOC Ltd. (1976) 10 Supreme Court (SC) 101.

  71. 71.

    See In Re Exxon Valdez, De Alaska No. A 89-0095 – CV. Judgment was delivered on 16 September 1994 wherein the trial Court awarded 5 billion dollars as punitive damages in favour of the plaintiffs which included Alaskan fishermen and property owners in one of the several cases against Exxon Corporation arising from the 1989 Exxon Valdez spill.

  72. 72.

    Idowu, supra note 65.

  73. 73.

    Ibid.

  74. 74.

    See, for example, the Nigerian Oil Pipelines Act, Cap 338 LFN 1990 (now Cap 07 LFN 2004) section 11(5).

  75. 75.

    Ekpu, supra note 57, at 26.

  76. 76.

    Available at: http://enwikipedia.org/wiki/environmentalprotection [accessed on January 3, 2013].

  77. 77.

    Ibid.

  78. 78.

    Ecology, 7 August 1992, quoted in Ibid.

  79. 79.

    Ibid.

  80. 80.

    The Guardian (Lagos) June 22, 2012, at 4.

  81. 81.

    Note that the continuing and accelerating loss of habitat and species Worldwide despite the existence of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973 (CITES) and other relevant treaties led to a discussion of the need for a comprehensive global treaty to conserve biological diversity. This paved way for the signing of the Convention at Rio 1992. See S. Fletcher, “International Environmental Issues: Overview”, Congressional Research Service (CRS) Brief, updated February 4, 1993, at 9.

  82. 82.

    The Convention on Biological Diversity , United Nations Environment Programme, Na–92–7807, June 5, 1992.

  83. 83.

    Ibid.

  84. 84.

    Ibid.

  85. 85.

    Fleteher, supra note 81.

  86. 86.

    Ibid. The focus on conservation of biodiversity by the Convention is not misplaced. For today, conservation of biodiversity is more than an aesthetic or moral issue. It is integral.

  87. 87.

    The Guardian (Lagos) June 20, 1997 at 7 and The Guardian (Lagos) June 23, 1997 at 21.

  88. 88.

    Supra note 82.

  89. 89.

    Available at: http://www.un.org/wcm/content/site/climatechange/pages/gateway/thenegotiations/Durban [accessed on January 3, 2013].

  90. 90.

    Note that the 37 industrialised countries and the European Community (Annex I Parties) commitment to reduce their collective emissions of greenhouse gases by 5.2% when compared to the emission levels that would be expected by 2010 without the Protocol, represents a 29% cut. The goal is to lower overall emissions from six greenhouse gases, namely, carbondioxide (CO2), Methane (CH4), Nitrous oxide (N2O), hydrofluoro carbons (HFCs) Perfluoro carbons (PFCs) and sulphur hexafluoride (SF6) calculated as an average over the 5-year period of 2008–2012 along with some activities in the land use change and forestry sector that remove carbon dioxide from the atmosphere (carbon ‘sinks’), available at: http://www.Kyotoprotocol.com/ and http://www.un.org/millennium/law/xxvi–23–htm [accessed on January 3, 2013].

  91. 91.

    Formerly known at the time as the European Community. The EU was made up of 15 states at the time of the Protocol.

  92. 92.

    Available at: http://unfccc.int/Kyotoprotocol/background/items/2881.php [accessed on January 3, 2013].

  93. 93.

    Ibid.

  94. 94.

    Available at: http://enwikipedia.org/wiki/Kyotoprotocol [accessed on January 3, 2013].

  95. 95.

    Note that three flexible innovative mechanisms have been set up for this purpose. First, ‘clean development mechanism’. In simplified form, it works this way: Industrialised countries pay for projects that cut or avoid emissions in poorer countries and are awarded Greenhouse gas emission reductions credits that can be applied to meeting their own emission targets.

    The recipient countries benefit from free infusions of advanced technology that allow their factories or electrical generating plants to operate more efficiently and hence of lower costs and higher profits. And the atmosphere benefits because future emissions are lower than they would have been otherwise. http://unfccc.int/Kyoto.Protocolbackground/items/288/.php [accessed on January 3, 2013]; Countries earning the credits this way may apply them to meeting their emission limits, may bank them for use later or may sell them to other industrialised countries under the Protocol’s emission – trading system. Second, ‘emission trading’. It must be pointed out that the Kyoto Protocol sets limits on total emissions by the World’s major economies, a prescribed number of ‘emission units’. Individual industrialised counties will have mandatory emission targets they must meet but it is understood that some will do better than expected, coming under their units, while others will exceed them. The Protocol allows countries that have emission units to spare-emissions permitted them but not ‘used’ – to sell this excess capacity to countries that are over their targets. The rules governing trading were among the workday specifics included in the ‘Marakesh Accords’ of 2001 reached in Marakesh, Morocco. And thirdly, ‘joint implementation mechanism’. Here, industrialised countries will get credit for carrying out joint implementation projects with other developed countries, usually countries with ‘transition economies’.

  96. 96.

    Available at: http://www.britannica.com//Kyotoprotocol [accessed on February 2, 2013].

  97. 97.

    Supra note 86.

  98. 98.

    Available at: http://unfccc.int.home/Kyotoprotocol [accessed on February 3, 2013].

  99. 99.

    Ibid.

  100. 100.

    Available at: http://unfccc.int/Kyotoprotocolbackground/items/288/.php [accessed on January 3, 2013].

  101. 101.

    Ibid.

  102. 102.

    Kana, pp. 84–85.

  103. 103.

    Ibid.

  104. 104.

    Note that by this action Canada appeared to have given up on reaching its target of reducing its emissions by 6% on 1990 levels in 2006, available at: http://www.tt.com/ft.com/World/use&Canada and http://www.guardian.co.uk/environment/cif [accessed on February 8, 2013].

  105. 105.

    Kana, supra note 102.

  106. 106.

    Available at: http://www.britannica.com//Kyotoprotocol [accessed on February 2, 2013].

  107. 107.

    Ibid.

  108. 108.

    Available at: http://www.un.org/wcm/content/site/climatechange/pages/gateway/thenegotiations/durban [accessed on January 3, 2013].

  109. 109.

    Available at: http://enwikipedia.org/wiki/Kyotoprotocol [accessed on February 8, 2013].

  110. 110.

    A.E. Abuza, “The Problem of Vandalization of Oil Pipelines and Installations in Nigeria: A Sociological Approach”, 2(2) Delsu Law Review, Environmental Law Edition, 2006, at 277.

  111. 111.

    Available at: http://www.guardian.co.UK/environment/2012/jun/11/david–Camero–rio-earth–summit, quoted in http://enwikipedia.org/wiki/UnitedNationsConferenceonSustainableDevelopment [accessed on January 3, 2013].

  112. 112.

    The Guardian (Lagos) July 2, 2012 at 9 and The Guardian (Lagos) July 3, 2012 at 20.

  113. 113.

    Ibid.

  114. 114.

    See The Guardian (Lagos) July 23, 2012 at 7.

  115. 115.

    See Generally, K. Marx and F. Engels, Manifesto of the Communist Party, (Progress Publishers, Moscow, 1975).

  116. 116.

    Note that the major social contract theorists are: Thomas Hobbes, John Locke and Jean Jacque Rousseau. For details on their views, see WT Jones, Masters of Political Thought: Machiavelli to Bentham (G. George Harrap and Co. Ltd., London, Vol. 2, 1947); L. Strauss and J. Cropsey (ed.) History of Political Philosophy (Rand McNally and Co., Chicago, 1963); and R. Nisbert, The Social Philosophers: Community and Conflict in Western Thought (Heinemann Education Books Ltd., London, 1974).

  117. 117.

    See, for example CFRN 1999 as amended, section 1(2).

  118. 118.

    Available at: http://www.peoplesdailyonline.com/columni [accessed on November 11, 2011] and The Guardian (Lagos) October 22, 2011 at 2.

  119. 119.

    Available at: http://www.guardian.co.uk/Environmental/Rio+20EarthSummit [accessed on February 4, 2013].

  120. 120.

    Available at: http://www.uncsd2012.Orgmgzerodraft.html [(accessed on February 4, 2013].

  121. 121.

    The document was actually described as a failure on the ground that it was too weak to tackle the challenges facing the Planet. The Guar dian (Lagos) June 21, 2012 at 5.

  122. 122.

    The Guardian (Lagos) July 2 and 3, 2012.

  123. 123.

    The Guardian (Lagos) July 23, 2012.

  124. 124.

    Ibid., at 7.

  125. 125.

    See Generally, K. Marx and F. Engels, Manifesto of the Communist Party, (Progress Publishers, Moscow, 1975).

  126. 126.

    Note that the major social contract theorists are: Thomas Hobbes, John Locke and Jean Jacque Rousseau. For details on their views, see W.T. Jones, Masters of Political Thought: Machiavelli to Bentham (G. George Harrap and Co. Ltd., London, Vol. 2, 1947); L. Strauss and J. Cropsey (ed.), History of Political Philosophy (Rand McNally and Co., Chicago, 1963); and R. Nisbert, The Social Philosophers: Community and Conflict in Western Thought (Heinemann Education Books Ltd., London, 1974).

  127. 127.

    Available at: http://www.guardian.co.uk/Environmental/Rio+20EarthSummit [accessed on February 4, 2013].

  128. 128.

    Available at: http://www.uncsd2012.Orgmgzerodraft.html [accessed on February 4, 2013].

  129. 129.

    The document was actually described as a failure on the ground that it was too weak to tackle the challenges facing the Planet. The Guardian (Lagos) June 21, 2012 at 5.

  130. 130.

    The Guardian (Lagos) July 2 and 3, 2012.

  131. 131.

    The Guardian (Lagos) July 23, 2012.

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  1. Delta State University (Oleh Campus), Abraka, Nigeria

    Andrew Ejovwo Abuza

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  1. National University of Study and Research in Law, Ranchi, Jharkhand, India

    B.C. Nirmal

  2. Faculty of Law, Banaras Hindu University, Varanasi, Uttar Pradesh, India

    Rajnish Kumar Singh

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Abuza, A.E. (2018). Environmental Law: Post-Rio Discussions on Environmental Protection—A Reflection . In: Nirmal, B., Singh, R. (eds) Contemporary Issues in International Law. Springer, Singapore. https://doi.org/10.1007/978-981-10-6277-3_6

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