UNIVERSITY OF NAIROBI

SCHOOL OF LAW

ENVIRONMENTAL LAW

ASSGNMENT:
SUSTAINABLE DEVELOPMENT AND OTHER PRINCIPLES OF ENVIRONMENTAL
LAW

SUSTAINABLE DEVELOPMENT
Definition
In the Bruntland Report,1 sustainable development was defined as development that meets the
needs of the present without compromising the ability of future generations to meet their own
needs. It contains two key concepts which are:

The concept of needs, in particular the essential needs of the world's poor, to which

overriding priority should be given; and

The idea of limitations imposed by the state of technology and social organization on the
environment's ability to meet present and future needs.

Sustainable development looks at the world as one and enables one to think if they are exploiting
the resources of one place they are affecting that of another place. An example if the huge
factories in Germany pollute the air in Europe, it does not end there. They pollute the air of other
continents and oceans. Sustainable development looks at the world as a system that works in
sync. If pesticides are sprayed in Argentina, they could harm fish stocks off the coast of
Australia.
Through sustainable development we realize the decisions our grandparents made about how to
farm the land continue to affect agricultural practice today or the economic policies we endorse
today will have an impact on urban poverty when our children are adults.
We also understand that quality of life is a system, too. It's good to be physically healthy, but
what if you are poor and don't have access to education? It's good to have a secure income, but
what if the air in your part of the world is unclean? And it's good to have freedom of religious
expression, but what if you can't feed your family?
To meet sustainable development it is proposed we meet the needs of the future and that depends
on how well we balance social, economic, and environmental objectives--or needs--when
making decisions today.2

1World Commission on Environment and Development (WCED). Our common future. Oxford: Oxford
University Press, 1987 p. 43.
2

The UN Framework Climate Convention (New York, 1992) encourages state parties to take
precautionary measures to prevent climate change and the Rio declaration is used.
The dilemma of pursuing sustainable development is that it conflicts many times on the short
term. An example is, industrial growth may conflict with preserving natural resources. However,
in the long term, responsible use of natural resources now will help ensure that there are
resources available for sustained industrial growth far into the future.
History
Sustainable development has its roots in forest management during the 12th-16th century.3 The
term was first used in 1972 by a group of scientists from Massachusetts Institute of Technology
MIT in its report on the Limits of Growth.
In 1980, a world conservation strategy was published by the International Union for the
Conservation of Nature. This was one of the first references to sustainable development as a
global priority.
In 1982, the raise five principles of conservation by which human conduct affecting nature is to
be guided and judged were raised in the United Nations Charter for Nature.
In 1987, the United Nations World Commission on Environment and Development released the
report Our Common Future, now commonly named the 'Brundtland Report'. This was named
after the commission's chairperson, the then Prime Minister of Norway Gro Harlem Brundtland.
It defined sustainable development as development that meets the needs of the present without
compromising the ability of future generations to meet their own needs." The Brundtland Report
goes on to say that sustainable development also contains within it two key concepts:
1. The concept of "needs," in particular, the essential needs of the world's poor, to which
overriding priority should be given; and
2 "What Is Sustainable Development." DEPweb. N.p., n.d. Web. 02 Oct. 2014. http://www.worldbank.org
3Ina Ehnert: Sustainable Human Resource Management: A Conceptual and Exploratory Analysis from a
Paradox Perspective; Springer, 2009; pp. 3536
3

2. The idea of limitations imposed by the state of technology and social organization on the
environment's ability to meet present and future needs.
This is one of the most widely used definitions today.4
In 1992, the UN Conference on Environment and Development gave principles towards a
peaceful global society.5 It identified information, integration, and participation as key in helping
countries achieve development that recognizes these interdependent pillars.6It proposed a new
approach that involved the integration of environmental and social concerns in all development
processes. Public participation was also added as a requisite in achieving sustainable
development.
The cultural aspect has been added to sustainable development. "... cultural diversity is as
necessary for humankind as biodiversity is for nature; it becomes one of the roots of
development understood not simply in terms of economic growth, but also as a means to achieve
a more satisfactory intellectual, emotional, moral and spiritual existence".7 The other categories
of sustainable development are ecology, economics, and politics.
Institutional Creation
Sessional paper No. 1 of 1965 marked the stepping-stone for Kenyas attempts at sustainable
development through addressing the economic aspect in relation to equal distribution of
resources. The Poverty Reduction Strategy Paper (PRSP)in 1999; The Economic Recovery
Strategy for Wealth and Employment Creation (ERS); and Kenyas development blueprint Vision
2030 do the same in addressing sustainable development.

4Brutland Report, 1987, United Nations World Commission on Environment and Development.
5 1992 Earth Charter
6Agenda 21
7The Universal Declaration on Cultural Diversity, 2001
4

The Constitution reinforces the policy and legal basis of sustainable development in Kenya. The
three pillars of sustainable development are embodied in the fundamental rights and freedoms
guaranteed in the Constitution. They lay down the basis for social justice in Kenya.
The Environmental Management and Coordination Act of 1999 (EMCA) was enacted to provide
legal and institutional framework for management of the environment. Environmental
considerations are contained in the social and economic pillars. Kenya is a member of the
Convention of Biological Diversity (CBD). This is as a result of the outcomes of the United
Nations Conference on Environment and Development held in Rio in 1992. It has also ratified
Agenda 21 which provides for the categories of sustainable development and how they are to be
implemented. Kenya is also party to Millennium Development Goals MDGs.
Additionally the National Environment Management Authority (NEMA), a regulatory body of
the ministry of environment and mineral resources (MEMR), handles environmental
coordination in Kenya.
Several other government agencies play a role in managing and contributing to management of
the environment. The Ministry of Health advocates for environmental health including the
working environment radiation control and management of hazardous wastes. The Ministry of
Environment, Water and Natural Resource supports sustainable development through
management of water and natural resources utilization. Additionally it does anti-poaching and
deforestation prevention. The Ministry of Devolution and Planning manages urban
environments. Lastly the Ministry of Agriculture, Livestock and Fisheries controls farming
practices to prevent soil erosion.8 All of this contributes positively to sustainable development.
Institutional framework of sustainable development
The idea of sustainable development may have first emerged from the environmental field part of
international efforts to find a compromise term for more environmentally sound natural
resource exploitation, or to describe conservation policies in developing countries.9 The original
8Sustainable Development in Kenya: Stocktaking in the Run up to Rio+20, 2012, 23.
9Marie-claireCordonierSegger and AshfaqKhalfan,Sustainable Development Law
5

articulation of the principle is found in the Brundtland report, which stated that sustainable
development means development that satisfies the needs of present generations without
jeopardizing the ability of future generations to meet their own need.
In the late 1960s, as the environmental movement was emerging, the Swedish delegation asked
the United Nations to convene a conference on the environment. This was The Stockholm
Conference which produced the Stockholm Declaration on the Human Environment.
The declaration adopted an anthropocentric approach to the protection of the environment, as the
full title of the declaration denotes: Declaration of the United Nations Conference on the
Human Environment.
The declaration contains the seeds of provisions that were espoused by subsequent legislative
instruments. For instance, Principle 2, which refers to the rights of future generations, could be
considered a distant predecessor of the intergenerational equity principle.
The publication of Our Common Future in 1987 by the World Commission otherwise referred
to as the Brundtland report was not only significant in the articulation of sustainable
development but also it paved the way to the Rio Summit,
The World Commission was created by in 1983 UN General Assembly Resolution and was
assigned the task of looking at environmental and development issues and proposing better ways
to address them, it provided a comprehensive overview of various global issues. Such issues
include sustainable development, the international economy, the debt crisis, food security,
species, ecosystems, industry, the urban challenge, peace and the arms race, climate change, and
ozone depletion.
A concept that continued to echo long after the Brundtland report was completed is the concept
of sustainable development,
RIO10

10 Elli Louka, Environmental Law, cambridge university press, 2006

6

The Earth Summit was held in Rio de Janeiro between June 3 and June 14, 1992, with the
participation of an unprecedented number of NGOs. It produced a number of instruments that
have shaped the development of international environmental law until today .
In relation to sustainable development agenda 21 was adopted by states at the Rio Conference.
The agenda proposes the adoption of a number of national, regional, and global measures to
address environmental problems and to promote sustainable development.
The agenda also recommended the establishment of the Commission on Sustainable
Development (CSD).
The Commission on Sustainable Development was established as a functional commission of the
ECOSOC. According to the General Assembly resolution, that established CSD, the role of the
CSD is to monitor the progress of Agenda 21 by gathering information from various sources;
reviewing the access to financial, technological, and other resources; and serving as a forum for
the discussion of environmental and developmental issues.
Johannesburg11
The Johannesburg summit or World Summit on Sustainable Development was held in 2002, ten
years after the Earth Summit, which adopted two documents:

The Declaration on Sustainable Development

The Plan of Implementation.

The declaration moves the environmental agenda closer to the concerns of developing countries.
Some of the provisions of the declaration include:
the focus on human dignity
the allusion to sustainable development as based on three pillars economicdevelopment,
social development, and environmental protection;
11Elli Louka,EnvironmentalLaw,cambridge university press, 2006
7

 the focus on the reduction of poverty and on reducing the gap between the richand the poor;
the challenge of globalization;
the focus on Least-Developed Countries and Small Island States;
the need to develop more effective, democratic, and accountable institutions
ENVIRONMENTAL IMPACT ASSESSMENT
This is a systematic examination conducted to determine whether or not a programme, activity or
project will have any adverse impacts on the environment.12
Environmental impact assessment (EIA) seeks to ensure that adequate and early information is
obtained on likely environmental consequences of development projects, on possible
alternatives, and on measures to mitigate harm.13
It is generally a prerequisite to decisions to undertake or to authorize designated construction,
processes or activities. EIA procedures generally require that a developer or business owner
submit a written document to a designated agency or decision-making body, describing the
probable or possible future environmental impact of the intended action.14
An adequate and rigorous consideration of alternatives is at the heart of the EIA decision-making
process. The study must produce sufficient information to permit a reasonable choice of
alternatives as far as environmental consequences are concerned. Where decisions are made
purely on economic and technical grounds without regard to environmental costs and benefits,
the EIA may be rejected as seriously flawed.15
12 Republic of Kenya, Environmental management and coordination act cap 387, Government printers,
section 2
13 United nations environment program, Judicial handbook on environmental law (Web:
www.unep.org/dpdl/law) at 38.
14 Ibid
15 ibid
8

Environmental impact procedures were first adopted in the 1960s; shortly thereafter, national
laws and international treaties began imposing EIA requirements that were increasingly broad in
their scope and detailed in their requirements and provisions. At present, environmental impact
assessment is singularly important in both domestic and international environmental law.16

International recognition of the principle

The principle of environmental impact assessment has been incorporated in several treaties and
protocols. These Key Multilateral Environmental Agreements (MEAs) have seen review and
improvements in EIA legal, policy and institutional arrangements. They include:
1. Convention on Environmental Impact Assessment in a Trans-boundary Context
(Espoo, 1991).
This is the first multi-lateral EIA treaty. It looks at EIA in a trans-boundary context and entered
into force in 1997. The Espoo Convention sets out the obligations of Parties to assess the
environmental impact of certain activities at an early stage of planning. It also lays down the
general obligation of states to notify and consult each other on all major projects under
consideration that are likely to have a significant adverse environmental impact across borders.
Apart from stipulating responsibility of signatory countries with regards to proposals that have
trans-boundary impacts, it describes the principles, provisions, procedures to be followed and list
of activities, contents of documentation and criteria of significance that apply.
2. Rio Declaration (1992).
Principle 17 of Rio Declaration on Environment and Development calls for use of EIA as a
national decision making instrument to be used in assessing whether proposed activities are
likely to have significant adverse impact on the environment.
Environmental impact assessment, as a national instrument, shall be undertaken for proposed
activities that are likely to have a significant adverse impact on the environment and are subject
to a decision of a competent national authority
16 ibid
9

National legislations and Institutional framework

EIA institutional systems vary from country-to-country and reflecting different types of
governance. In some countries, either the Ministry of Environment or a designated authority or
Planning Agency administers EIA.
In Kenya environmental impact assessment is carried out by the national environmental
management authority. This authority is created by section 7 of the national environmental and
coordination act cap 387 and empowered to inter-alia conduct environmental assessments.
Notwithstanding any approval, permit or license granted under this Act or any other law in
force in Kenya, any person, being a proponent of a project, shall before for an financing,
commencing, proceeding with, carrying out, executing or conducting or causing to be financed,
commenced, proceeded with, carried out, executed or conducted by another person any
undertaking specified in the Second Schedule to this Act, submit a project report to the Authority,
in the prescribed form, giving the prescribed information and which shall be accompanied by the
prescribed fee 17
The act further establishes national environmental tribunal which is an appeal channel from
persons aggrieved by decisions of NEMA
Any person who is aggrieved by the imposition against him of an environmental restoration
order or environmental improvement order by the Authority under this Act orregulations made
thereunder, may within sixty days after the occurrence of the event against which he is
dissatisfied, appeal to the Tribunal in such manner as may be prescribed by the Tribunal
(NET).18
In The Southern Bypass Case,19East Africa Wild Life Society (EAWLS), Africa Network for
Animal Network (ANAW) and Friends of Nairobi National Park (FONNAP) took NEMA and
the Kenya National Highways Authority (KeNHA) to court over the intention to construct a 5 km
17 Supra note 1 at section 58
18 Ibid at section 129
19Decided on May 30th 2013 by the NET
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section of the Southern Bypass through the Nairobi National Park which is in breach of the
NEMA license for the highway which had certain conditions. The appellants argued that if the
respondents built the road according to their plans, they would violate condition 2.2 of the
Environment Impact Assessment (EIA) licence; that the road must not encroach on gazetted
National Parks. According to the appellants, NEMA had faulted because it issued a conditional
license but did nothing to ensure that the condition was being adhered to.
TRANSPARENCY, PUBLIC PARTICIPATION AND ACCESS TO INFORMATION AND
REMEDIES
Public participation in environmental matters refers to the right of members of the public to get
involved in decisions that affect the environment. Access to information is considered to be a
prerequisite for meaningful public participation in environmental decision making. Finally,
access to justice is a means to having decisions reviewed.20
Public participation and access to information are recognized in Principle 10 of the Rio
Declaration of 1992, also known as the Access Principle. Participation of citizens at national
and individual levels through access to information is the best way to handle environmental
issues. The concerned citizens must be provided with an opportunity to access relevant
information pertaining to environmental matters. The state and the authorities are required to
avail such information at appropriate time and manner.21
Transparency and access to information are essential to public participation and
sustainable development, for example, in order to allow the public to know what the
decision making processes are, what decisions are being contemplated, the alleged factual
bases for proposed and accomplished governmental actions, and other aspects of
governmental processes. Public participation is essential to sustainable development and
good governance in that it is a condition for responsive, transparent and accountable
governments. It is also a condition for the active engagement of equally responsive,

20Bodansky, Daniel. "The legitimacy of international governance: a coming challenge for international
environmental law?" American Journal of International Law (1999): 596-624.
21 Rio Declaration of 1992Principle 10
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transparent and accountable Civil Society organizations, including industrial concerns,

trade unions, and Non Governmental Organizations (NGOs).22

Freedom of expression is one of the tenets of this principle. In the context of sustainable
development public participation makes it necessary for the state to protect those who hold
opinions and allow the expression of the opinions as well.23
Information on economic and social policies on how to use the natural resources sustainably and
the protection of the environment must be accessed in the right form, in the right depth and
whenever required by the citizens. The principle urges those who hold such information like the
governments and industrial concerns to ensure that insemination of information concerning the
environment is done expediently24. For example, states should ensure that where transboundary
harm has been or is likely to be caused, affected individuals and communities have nondiscriminatory access to effective judicial and administrative processes.25
The importance of access to environmental information is that it enables citizens to
make informed personal choices and encourages improved environmental performance
by industry and government. For example, citizens need to know whether water is safe to
drink, and public knowledge of contamination creates pressure for pollution control.26
Principle 10 combines public participation with public access to information and access to
remedial procedures. According to chapter 23 of Agenda 21, one of the fundamental
prerequisites for the achievement of sustainable development is broad public participation in
22 Robinson, Nicholas A. "Training Manual on International Environmental Law." (2006).
23 Ibid.
24 Ibid.
25 Ibid.
26 Petkova, Elena, et al. "Closing the gap: Information, participation and justice in decision-making for
the environment." (2002).
12

decision-making. Agenda 21 (chapters 23-32, and 36) emphasises the importance of the
participation of all Major Groups, and special emphasis has been given in Agenda 21, the Rio
Declaration, and in legally binding international instruments to ensuring the participation in
decision-making of those groups that are considered to be politically disadvantaged, such as
indigenous peoples and women. Furthermore, principle 10 also supports a role for individuals in
enforcing national environmental laws and obligations before national courts and tribunals.
Implementation of the Principle
International legal instruments addressing access to information and public participation are
confined to distinct contexts, such as Environmental Impact Assessment. For example, the 1992
United Nations Framework Convention on Climate Change, in article 4.(1)(i), obliges
Parties to extend public awareness and participation to

Non-Governmental Organisations,

though it does not create a public right of access to information while the 1992 CBD requires
appropriate public participation in EIA procedures in article 14.(1)(a); article 13 addresses the
need for public education and awareness. These concepts mean that international institutions,
such as international financial institutions, should also implement open and transparent decisionmaking procedures that are fully available to public participation. Examples of this include the
World.27
In many countries, public participation rights are granted through Environmental Impact
Assessment procedures with broad public participation or in various sectoral laws adapted to the
special circumstances of each sector. For example, article 16(3) of the 1986 Convention for the
Protection of the Natural Resources and Environment of the South Pacific Region requires that
the information gathered in the assessment be shared with the public and affected parties.
In Africa, the Memorandum of Understanding (MOU) of October 22, 1998, between Kenya,
Tanzania and Uganda contains the agreement of the three states to develop technical guides and
regulations on EIA procedures, including enabling public participation at all stages of the process
and to enact corresponding legislation (article 14). This provision was subsequently embodied in
the Treaty for East African Community by the three states Kenya, Tanzania and Uganda. As
27 Supra, note 6.
13

noted above, the 1992 CBD also requires appropriate public participation in environmental
assessment in article 14(1)(a); and it includes a notification and consultation requirement in
article 14(1)(c).28
PRECAUTIONARY PRINCIPLE
The term precautionary as used in this principle expresses judiciousness to avoid harm or danger
to the environment. States ought to take precautionary measures prior to implementation of
projects that are likely to affect the environment even if scientific evidence if not certain as to the
quantity of risk.29 This means that precautionary measures should be taken to prevent harm to the
environment and to achieve sustainable development. The Rio Declaration adopted the
precautionary principle as follows;
In order to protect the environment, the precautionary approach shall be widely applied
by States according to their capabilities. Where there are threats of serious or
irreversible damage, lack of full scientific certainty shall not be used as a reason for
postponing cost-effective measures to prevent environmental degradation.30
The precautionary principle recognizes the limitations of science. It is not always that science
accurately provides the likely impact of projects on the environment. 31 It can be explained by the
common adage, better safe than worry and it is often seen as an integral principle of sustainable
development.
This principle marked a shift from taking action after damage has occurred to the level of taking
anticipatory measures to prevent damage. It emerged as a result of uncertain risks such as climate
change and genetically modified foods. An example of these kinds of risks is the risk of exposure
to asbestos which has a long incubation period of more than 35 years. Lack of full scientific
28 Ibid.
29 Akech, M. (2006). LAND, THE ENVIRONMENT AND THE COURTS IN KENYA. Kenya Law
Reports , 13.
30 Rio Declaration on Environment and Development 1992, Principle 15
31 supra
14

proof of harm contributed to the long delay before action was taken and risk reduction
regulations were put in place.
Institutional framework of precautionary principle
Bergen declaration on sustainable development: in 1990, the Economic Commission for
Europe of the United Nations In order to achieve sustainable development policies must be
based on the precautionary principle. Environmental measures must anticipate, prevent and
attack the causes of environmental degradation.32
In article 130 R33 of the Treaty on the European Union34 the precautionary principle is added to
the list of environmental principles. Furthermore, Helsinki Convention of 1992 provides that
state parties shall be guided by certain principles; the first one being the precautionary principle,
by virtue of which action to avoid the potential trans-boundary impact of the release of
hazardous substances shall not be postponed on the ground that scientific research has not fully
proved a causal link between those substances, on the one hand, and the potential trans-boundary
impact.35
The 1996 Hague Declaration on Principles of Environmental Law adopted the precautionary
principle as one of the principles to be implemented by state parties.

32 Th. Douma, W. (1996). Precautionary Principle. Icelandic legal journal , 417-430.

33 Community policy on the environment shall aim at a high level of protection

taking into account the diversity of situations in the various regions of the
community. It shall be based on the precautionary principle, on the principle that
preventive action should be taken, that environmental damage should as a priority
be rectified at source and that the polluter should pay. Environmental protection
requirements must be integrated into the definition and implementation of other
community policies.
34 Also known as the Maastricht Treaty of 1992.
35 ibid
15

The principle has also been included in United Nations Framework Convention on Climate
change. Later it was incorporated into article on precaution 36 of the World Trade Organisation
Agreement on Sanitary and Phytosanitary Measures of 1994. It has also been incorporated in
Biosafety Protocol approved in Montreal in January 2000.
Relationship to sustainable development:
Adherence to the precautionary principle contributes to the achievement of sustainable
development. When precautionary actions are taken even if there is no certain scientific
evidence, there is a balance between the economic use of the environment and the need to protect
the environment. Projects being undertaken entail economic development which might conflict
with the protection of the environment. It therefore means that caution has to be taken to ensure
that the economic development is not carried out at the expense of the environmental protection.
Failure to take precautionary measures cannot be justified by reason of lack of scientific certainty
as to the amount of risk posed by the particular project. The precautionary principle comes in
handy to promote environmental protection even in situations where it cannot be ascertained
what damage is likely to be caused.
This principle provides the basis for taking anticipatory measures to achieve objectives of
sustainable development. Scientific tests in predicting the likely harm on the environment can be
uncertain and therefore this principle comes in to act in times of such uncertainty.
States act in accordance to the principle by taking anticipatory measures to prevent likely harm
on the environment before a project is undertaken.
Implementation of Precautionary Principle
In Kenya the principle has been incorporated in Environmental Management and Coordination
Act. EMCA defines precautionary principle as, The principle that where there are threats of
damage to the environment whether serious or irreversible, lack of full scientific certainty shall
not be used as a reason for postponing cost effective measures to prevent environmental
degradation. Further, the Act also provides for entitlement to a clean and healthy environment. It

36 Article 5.7
16

also provides that the court may give such directions as to compel any public officer to take
measures to prevent or discontinue any act or omission deleterious to the environment.
The case of Waweru v Republic37 illustrated the application of the principle in Kenya. The
applicant and the interested parties were charged with releasing raw sewage in the open
environment, posing danger to the people in the surroundings. The court in deciding the case
held that the government and other agencies should deal with the development in application of
the precautionary principle. The actions taken by the government should apply the precautionary
principle by preventing further development that can pose a threat to the people.
The precautionary principle therefore leads to states to take steps in advance of the
implementation of development projects even when there is no scientific evidence of the risks
associated. Some risks such as Genetically Modified Organisms represent a risk that is not easy
to ascertain. It is therefore prudent that precautionary measures be taken.
THE PRINCIPLE OF PREVENTION
The principle of prevention is one of the principles of environmental law. It is based on the
common sense adage that states that prevention is better than cure. In its simplest form it refers
to the adoption of measures intended to prevent damage from arising. Actions should be taken in
order to prevent damage before damage has occurred. It has a myriad of synonyms that can be
used to refer to it: preventative, prevention, principle of preventative action and preventative
approach. All these words are or can be used to refer to the principle of prevention.38
The principle of prevention in most instances can be defined as to what it is not. For instance it
does not include the duty of a state to avoid trans-boundary environmental harm. Instead the
principle seeks to protect the environment as an end in itself. As to this end, it has not achieved
the status of customary international law. The main contribution of this principle is that it is
mainly concerned with the minimization of pollution. Laws regulating the generation,
transportation, treatment, storage and disposal of hazardous waste and laws regulating the use of
pesticides are based on this principle. As a matter of fact, it contributed to the development of the
37(2007) AHRLR 149 (KeHC 2006)
38 Prevention, precaution, logic and law, Erasmus law review Vol 2 is.2
17

Based Convention on the Control of Trans-boundary Movement of Hazardous Waste and their
Disposal (1989)
The protection of the environment is best achieved by preventing environmental harm in the first
place rather than relying on remedies or compensation for such harm after it has occurred.
Prevention is less costly than allowing environmental damage to occur and then taking
mitigation measures.39
POLLUTER PAYS PRINCIPLE OF ENVIRONMENTAL LAW
If anyone intentionally spoils the water of anotherlet him not only pay damages, but purify
the stream or cistern which contains the water40 -Plato
Externalities typically arise from the use of environmental goods. The social costs that arise from
such externalities linked to environmental degradation are usually borne by the community.41 As
the world continues to experience a free trade system, there also rises the trend in struggle for
environmental protection.42 One of the principles developed under environmental law to steer
that wheel of change is polluter pays principle. Polluter Pays principle is widely recognized as a
general principle of International Environmental law.43 This principle is usually uploaded as one
of the core principles that aid sustainable development.44

39 DR. J.M. MIGAI AKECH, Land, the Environment and the Law in Kenya, KLR Feb 2006
40 The Dialogues of Plato: The Law, vol.4 Book 8, section 485(e), translated by Jowett B. Oxford:
Clarendon Press (4th ed.), 1953
41 de Sadeleer, Nicolas. "POLLUTER PAYS PRINCIPLE." The Essential Guide to Global
Environmental Governance (2014): 155.
42 Polluter-Pays Principle: from Economic Equity To Environmental Ethos, The Symposium:
International Environmental Issues Gaines, Sanford E
43 1990 International Convention on Oil Pollution Preparedness, Response and Cooperation (Para. 7)
44 Sustainable development: Polluter Pays Principle www.sustainableenvironment.org.uk/principles/polluterpays.php<accessed 5th October, 2014

18

The Polluter Pays Principle (PPP) aims at internalizing external costs to avoid distortions to trade
and competition. The effect of this is that the polluter is supposed to bear the costs of his actions
in production. The burden is placed upon the polluter to proof that a certain approach is safe to
the environment. Therefore polluter will be keen to use products that are less harmful.
This principle was first mentioned in 1972 Recommendation by the OECD Council on Guiding
Principles concerning International Economic Aspects of Environmental Policies. From the
OECD the principle initially developed as an economic principle.

Principle 4 of the

recommendation stated as follows:

The principle to be used for allocating costs of pollution prevention and control measures to
encourage rational use of scarce environmental resources and to avoid distortions in international
trade and investment is the so-called "Polluter-Pays Principle". This principle means that the
polluter should bear the expense of carrying out the above mentioned measures decided by
public authorities to ensure that the environment is in an acceptable state. In other words, the cost
of these measures should be reflected in the cost of goods and services which cause pollution in
production and/or consumption. Such measures should not be accompanied by subsidies that
would create significant distortions in international trade and investment.
Since then the principle has gained international recognition being acknowledged at both the
national and international levels.
The Rio Declaration45 takes recognition of the principle under Principle 16 where it states that:
National authorities should endeavor to promote the internalization of environmental costs and
the use of economic instruments, taking into account the approach that the polluter should, in
principle, bear the cost of pollution, with due regard to the public interest and without distorting
international trade and investment.

Paragraph 21(d) of The World Charter of Nature places a duty upon states and other actors to
ensure that activities within their jurisdiction do not cause harm to neighboring states.

45 1992 Rio Declaration on Environment and Development

19

The implementation of this principle usually takes two approaches: command-and-control and
market based. Command and control involves environmental regulations concerning a given
polluting technology while market based involves eco taxes, tradable pollution permits and
product labeling.46
Around the world, the PPP is being invoked as a justification to encourage recycling in solid
waste disposal and discourage the use of virgin materials trees for paper, petroleum for
plastics, iron for steel, etc. in manufacturing. Proposals range from taxing the use of
packaging materials, such as glass and paper products, to establishing tradable permit programs
based on an overall recycled-content standard for certain kinds of manufacturing.47
A good international level example of this principle is the Kyoto Protocol which provides that
parties have an obligation to reduce their greenhouse gases thereby theoretically bearing their
own costs.48
The inverse of this principle is that all those who are affected by the pollution get to be
compensated.
As much as the theoretical map for this principle is quite clear the implementation is bared with a
little confusion. The extent of measure to environmental damage is not easily calculated and
therefore the extents of externalities are bound not to be correct. Furthermore, states cannot
legislate on harm that emanates from other states. Environmental damage usually goes beyond a
state, for instance global warming is experienced all over while yet to place the burden on a
single country is hard.
INTERGENERATIONAL EQUITY
Intergenerational equity is the right of future generations to enjoy a fair level of the common
patrimony49. The present generation has a right to use and enjoy the resources of the earth but is

46 Polluter Pays Principle www.ejolt.org<accessed on 6th October, 2014

47 Roy E. Cordato, Polluter Pays Principle: A Proper Guide for Environmental Policy (Institute for
Research on the Economics of Taxation Studies in Social Costs, Regulation and the Environment)
48 Supra note 6
20

under an obligation to take into account the long term impact of its activities and to sustain the
resource base and the global environment for the benefit of future generations of humankind.
The principle of intergenerational equity presents a potential legal solution to environmental
problems whose effects are likely to be spread unevenly over time, or across generations,
because of its explicit reference to needs or benefit of future generations 50. At international law,
the principle forms part of the principle of sustainable development. The principles central
function is one of increasing time-horizons of development decision making in order to take into
account the interests of future generations. In doing so, it provides the essential temporal
dimension to the principle of sustainable development.
Equity is central to the attainment of sustainable development 51. This is evident from many
international instruments, for example, the 1992 United Nations Framework Convention on
Climate Change refers in Article 3(1) to intergenerational equity. It states that in their action to
achieve the objective of the Convention and to implement its provisions, the parties shall be
guided, inter alia, by the following: the parties should protect the climate system for the benefit
of present and future generations of humankind, on the basis of equity and in accordance with
their common but differentiated responsibilities and respective capabilities. Similarly,
principle 3 of the 1992 Rio Declaration states that The right to development must be fulfilled so
as to equitably meet developmental and environmental needs of present and future generations.
Pain J, in the case of Gray v Minister for Planning52, drew upon an academic article written by
Justice Brian Preston (which was itself influenced by the writings of Brown Weiss 53) in order to
elucidate the principle of intergenerational equity. Her Honor stated that Prestons article pointed
to three fundamental principles underpinning the principle of intergenerational equity and these
are:
49 United Nations Environment Programme Training Manual on International Environmental Law.
50 Intergovernmental Agreement on the Environment 1992 s3.5.2 (Australia).
51 Sustainable development was defined by the Brundtland Commission on Environment and
Development (1987 Report, Our common future) as the development that meets the needs of the present
without compromising the ability of future generations to meet their own needs.
52 (2006) NSWLEC 720
21

(i)

The conservation of options principle which requires each generation to conserve the
natural and cultural diversity in order to ensure that development options are available
to future generations;

(ii)

The conservation of quality principle that each generation must maintain the quality
of the earth so that it is passed on in no worse condition than it was received;

(iii)

The conservation of access principle which is that each generation should have a
reasonable and equitable right of access to the natural and cultural resources of the
earth.

Some national courts have referred to the right of future generations in cases before them. The
Supreme Court of the Republic of Philippines decided in the Minors Oposa case54 that the
petitioners would file a class suit, for others of their generation and for the succeeding
generations. The Court, considering the concept of intergenerational equity, further stated that
every generation has a responsibility to the next to preserve that rhythm and harmony necessary
for the full enjoyment of a balanced and healthful ecology.
In the Australian case of Taralga Landscape Guardians Inc v Minister for Planning55, Preston CJ
drew upon the principle of intergenerational equity, arguing that in the context of energy
production, intergenerational equity requires two things:
(i)

Sustainable extraction and use, with respect to both the resource and the environment
surrounding the resource; and

(ii)

The increasing substitution of cleaner energy sources for existing, dirtier ones.

Taralga case applies the principle of intergenerational equity to the concrete context of energy
production. In this context, the Court found that the principle not only demands that the process
53 These three principles of intergenerational equity are taken from Edith Brown Weiss,
Intergenerational Equity: A legal framework for global environmental change, in ENVIRONMENTAL
CHANGE AND INTERNATIONAL LAW: NEW CHALLENGES AND DIMENSIONS (Edith Brown
Weiss, ed. 1992) 397.
54 Oposa et al v Fulgencio S. Factoran, Jr. et al (G.R NO. 101083)
55 (2007) NSWLEC 59
22

of production and use of energy occur in a manner which accounts for the requirements of future
generations, but also requires new types of clean energy production to be substituted increasingly
for old, emissions-intensive methods.
In Kenya, the courts have held that it is a concept of intergenerational equity where land is held
by one generation for the benefit of the succeeding generations. This is illustrated in the case of
Jessica Kavulani Jumba and 2 others v Hassan Odari Jumba and 2 others 56 and also in the case of
Josphat Karani v Agnes Thirindi57.
COMMON

BUT

DIFFERENTIATED

RESPONSIBILITIES

AND

RESPECTIVE

CAPABILITIES
The crux of the principle of common but differentiated responsibilities and respective
capabilities is in the recognition that all counties have a role to play in the development of the
global society, but at the same time, they do not have the same capabilities.
With regards to environment, it forms an important part under the environmental pillar of
sustainable development. This principle therefore has two crucial elements; the first relates to the
responsibility that is shared to ensure that the environment or parts of it is protected from the
national, to the global level. The second element is involved with the recognition of a states
contribution to a particular problem and how it is able to reduce and avert the effects of a
particular threat.58
Common responsibility therefore refers to the obligations that states share in terms of protection
of a particular resource, especially in instances where the resource is shared.59

56 (2012) eKLR
57 (2010) eKLR
58 A CISDL Legal Brief, The Principle of Common but Differentiated Responsibilities: Origins and Scope.
Available at http://cisdl.org/public/docs/news/brief-common.pdf.

59 Ibid.
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Differentiated responsibility on the other hand is concerned with the different environmental
standards that are set in consideration of a number of socio-economic factors such as economic
circumstances and their role in the evolution of the particular environmental menace. 60 This
principle in essence thus promotes equality that is substantive between developing and developed
countries.
With regards to cooperation, the principle demands that there should be international assistance
and common good will towards dealing with environmental problems. The assistance is not
limited and can range from financial assistance and even technology transfer.
TREATY PROVISIONS
This principle is firmly enunciated in the

UNITED NATIONS FRAMEWORK

CONVENTION ON CLIMATE CHANGE61. Principle 7 provides that:

State shall cooperate in a spirit of global partnership to conserve, protect and restore the health
and integrity of the earths ecosystem. In view of the different contributions to global
environmental degradations, states have common but differentiated responsibilities. The
developed countries acknowledge the responsibility that they bear in the international pursuit of
sustainable development in view of the pressures their societies place on the global environment
and the technologies and financial resources they command.
This is echoed at article 3 which provides that:
The parties should protect the climate system for the benefit of future and present generations of
humankind, on the basis of equity and in accordance with their common but differentiated
responsibilities and respective capabilities. Accordingly, the developed country parties should
take the lead in combating climate change and the adverse effects thereof.
CONVENTION ON PREVENTION OF MARINE POLLUTION BY DUMPING OF
WASTE AND OTHER MATTER, at article II provides that:
60 Ibid.
61 An international environmental treaty that was produced at the UN Conference on Environment and
Development, informally known as the Earth Summit in Rio de Janeiro, June 1992. The treatys aim was
stabilizing greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous
anthropogenic interference with climate system.
24

Contracting parties shall, as provided for in the following articles, take effective measures
individually, according to their scientific, technical and economic capabilities and collectively to
prevent marine pollution caused by dumping and shall harmonise their policies in this regard.
STOCKHOLM DECLARATION, principle 23 provides that:
Without prejudice to such criteria as may be agreed upon by the international community, or to
standards which will have to be determined nationally, it will be essential in all cases to consider
the systems if values prevailing in each country, and the extent of applicability of standards
which are valid for most advanced countries but which may be inappropriate and of unwarranted
social cost for the developing countries.
How does the principle work?
Developing counties often bear the greatest brunt of environmental degradation through climate
change.62 However, statistics indicate that developing counties have the highest concentration of
green house gases emission.63 The principle in such instance will require that the developed
states bear the greatest responsibilities initiatives to mitigate climate change. This is due to the
fact that they emit higher levels of green house gases and they have the economic capabilities of
dealing with the same.
Impact of this principle
It was recognized in the 1997 Kyoto Protocol whereas there was made a distinction between
proposed goals for developed and developing countries with developed countries having the
obligation of reducing their emissions, and developing countries were to report their emissions.64

62 See Mark Davies, Katy Oswald& Tom Mitchell, Adaptation, Disaster Risk Reduction and Social
protection. IDS working papers( 2009).
63 http://hdr.undp.org/statistics/data/climatechange/shares/.
64 Stakeholders forum, common but differentiated responsibilities, at Rio+20.
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