Protection of environment throws up a host of problems for developing countries such as bangladesh
Economy has been accompanied by environmental degradation, including deforestation, losses in bio-diversity, global warming, air pollution, depletion of the ozone layer, overfishing and so on. This is majorly because of the sheer increase in the number of human beings. In light of the strain already put on the environment, it is not difficult to appreciate the concern that current trends are not sustainable unless tough measures are taken to temper resource consumption and polluting emissions. Slow progress in introducing adequate environmental taxes and regulations has in part been blamed on the multilateral trading system. There are essentially two sides to the argument, one legal and the other involving political economy considerations. This report aims to evaluate the nature of these considerations and the type of affect they poses on the developing countries.
2. Definition of key concepts:
· Environment: Environment means our surroundings, which comprises of land, water and air and other bodies. Environment is affected by the physical properties of these components. It is also affected by the changes in interrelationship prevailing between and among the components ranging from micro-organism to human bodies.
· Environmental law: Environmental law is a body of law, which is a system of complex and interlocking statutes, common law, treaties, conventions, regulations and policies which seek to protect the natural environment which may be affected, impacted or endangered by human activities. Some environmental laws regulate the quantity and nature of impacts of human activities: for example, setting allowable levels of pollution or requiring permits for potentially harmful activities. Other environmental laws are preventive in nature and seek to assess the possible impacts before the human activities can occur.
· Multilateral trading: Trade agreements among a large number of countries. Contrasts with bilateral (among two countries) and plurilateral (among a small number of countries)
· Development: Development is intended to bring a positive change for human beings and its surroundings. Development may take place by bringing about a change in policy, projects and legislation.
3. Environmental Laws and policy instruments in developing countries:
Over the past few decades, environmental protection has emerged from a point of obscurity to one of the important issues of our time. Both at the international and national planes, the dominant theme of the environmental protection movement is the achievement of sustainable development. It is the theme, which underlies the Rio Declaration on Development and Environment and action plans for the development in lots of developing and under developed countries. The contemporary international norm which underpins environmental law generally is undoubtedly the notion of sustainable development. The pioneering World Commission on Environment and Development (the Brundtland Commission) convened by the United Nations General Assembly in 1983 in response to global environmental concerns, describes sustainable development as, ‘the development that meets the needs of the present without compromising the ability of future generations to meet their own needs’. The proposed key policy instruments and strategies for achieving sustainable development are environmental impact assessment, environmental legislation, economic instruments, environmental indicators and standards, and public participation.
In 1989, the General Assembly of the United Nations called for a global conference to devise strategies that would halt and reverse the negative impacts of anthropogenic activities on the environment and promote sustainable development. The United Nations Conference on Environment and Development (UNCED), held in Rio de Janeiro, Brazil, 3-14 June 1992, fulfilled the mandate given to it by the General Assembly by adopting Agenda 21, which is a program of action for sustainable development into the 21st century, the Rio Declaration on Environment and Development and the Forest Principles, a non-legally binding authoritative statement of principles for a global consensus on the management, conservation and sustainable development of all types of forests.
As in the rest of the global community, many countries have passed environmental laws and established environmental agencies and ministries responsible for administering those laws. In this section we discuss some of those initiatives and assess the role that the resulting legal institutions have played in achieving sustainable development and environmental protection in LDCs.
3.1 Inclusive law-making institutions:
It is sometimes suggested that there is insufficient public participation in environmental law-making in much of the Third World. However, perhaps because of the influence of international actors, it is not clear that such participation is critical at the domestic level to produce appropriate environmental laws. It turns out that anti-pollution or conservation legislation are often quite stringent by global standards. Sometimes they are even reinforced by constitutionally enshrined obligations to protect the environment.
For example, the Indian Constitution of India, through its Directive Principles of State Policy, provides the basis for that country’s environmental protection and sustainable development. Article 48-A imposes a constitutional obligation on the State to protect and improve the environment: “the State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country.” Article 51-A(g) extends this obligation to every citizen: “it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.” These constitutional directives provide the basis for a very sophisticated framework of anti-pollution and conservation legislation. Similarly, in 1988 Brazil adopted a new constitution containing twenty-four articles dealing directly with the environment and its environmental legislation is considered to be comprehensive and stringent. Bangladesh’s environmental movement started back in 1972 when United Nations Conference on Human Environment took place in Stockholm, Sweden whereas Bangladesh National Environment Policy approved in May 19 92,sets out the basic framework for environmental action, together with a set of broad sectoral action guidelines.
Similar conclusions can be drawn about a number of African countries, reporting that they have typically adopted stringent environmental legislation. For example, South Africa and Ghana both have constitutional provisions relating to the environment. Several African countries like Nigeria have enacted punitive legislation prohibiting the dumping of toxic wastes. Other African countries have set up special commissions by decree to tackle specific environmental problems in specific regions, and environmental impact assessments are now required for all substantial development projects in most African countries.
Notwithstanding the above there are examples of LDCs that have not enacted adequate environmental legislation. For example, a review of Cameroon’s compliance with five major international environmental treaties reveals that it has done little to enact implementing legislation.
The evidence that environmental laws in many LDCs are adequately formulated suggests that there is little need to improve the quality of law-making processes along the lines often recommended by environmentalists. Nonetheless there is some evidence that initiatives designed to increase public participation can be worthwhile. For instance, Zimbabwe’s wildlife and nature preservation policies have yielded positive results, largely as a result of including the indigenous population in policy formulation and sharing with them any economic benefits. For example, conservation efforts in nontribal lands include the establishment of intensive conservation areas, which are supervised by conservation committees composed of local landowners. In the Tribal Trust Lands, conservation programs must be approved by the Board of Trustees of Tribal Trust Lands. Thus, the local population participates in all resource preservation and improvement measures in such areas. In the area of wildlife preservation, the Parks and Wild Life Act allows landholders to use wild animals on their lands for economic purposes such as sport hunting and tourism. This economic incentive has resulted in a substantial increase in the amount of private land reserved as wildlife habitats. Furthermore, many wildlife ranchers have joined together and formed a Wildlife Producers Association, which actively participates in major wildlife conservation projects.
On the other hand, it may be the case that formal legal rules are not necessary to achieve environmental goals. For instance, little has been done to implement proposals to grant intellectual property rights to indigenous groups over their traditional knowledge about natural resources on their lands. On the other hand, it is not clear that such rights are required. Greaves documents various attempts and successes of indigenous communities in asserting and maintaining control of knowledge and resources by non-legal means. Some of these mechanisms involve taking control of cultural knowledge in various ways to prevent free appropriation: by imposing isolation and secrecy on members of an indigenous society, by controlling outside access to reservations, by imposing numerous conditions on the gathering of cultural information by outsiders, and by specifying restrictions on the uses of such information. Other methods include partnerships with outside partners, particularly the development of product supply relationships with external corporations. An example of such an arrangement is that between the Kayapo of Brazil and The Body Shop, a cosmetics firm, for the supply of forest products. Greaves suggests that these mechanisms are more effective than legal mechanisms such as patents or copyrights which are difficult to extend to traditional indigenous knowledge that is not novel and has no identifiable author. Moreover, Varese, in writing of Latin American indigenous peoples, argues that the recognition of intellectual property rights at the nation-state level will undercut supranational indigenous claims over territorial resources.
3.2 Environmental legislation:
Although many LDCs have adequate anti-pollution and conservation legislation, such legislation has not proven sufficient to guarantee sustainable development. Part of the problem is that even state-of-the-art legislation will be ineffective if it is not administered or enforced appropriately. For instance, Brazil’s Constitution gives the Attorney General the right to initiate inquiries and judicial actions to protect the environment. Yet, as of mid-1997, there had been no cases of judicial actions against the country’s extensive illegal trade in fauna.
Sometimes the problems lie in the legal framework that governs the administration of anti-pollution laws. For example, India’s Water and Air Acts (both anti-pollution laws respectively) provide for almost complete governmental discretion in determining the composition of Pollution Control Boards (which are established under the Acts). The Acts “do not stipulate any professional qualifications, skills or expertise in the matters relating to the environmental pollution for membership of these Boards.” In the absence of legally stipulated qualifications, appointments have become highly politicized. The consequences of empowering unqualified individuals to manage the environmental policing and monitoring agency should be obvious. Another flaw in the design of the Acts relates to the legal right conferred on an individual to prosecute violators. Such a right has been made conditional, as there is a requirement of 60 days’ notice of the alleged offence to the relevant authority. Such a conditional right “not only causes delay in prosecuting an earring industry and allows it to pollute the environment during this period, but it also gives an opportunity to the polluter to destroy the proof of such pollution and thereby avoid conviction.”
3.3 Administration and enforcement of environmental legislation:
Regardless of how it is administered and enforced, an important factor influencing the effectiveness of environmental legislation is the level of public support for environmental protection. For example, in Brazil local communities have been critical to the preservation of ecologically sensitive areas. On the other hand, the absence of public support may limit the effectiveness of legal institutions. State capacity for environmental protection presupposes the participation and consent of people whose subsistence routines depend on the exploitation of natural resources. In the face of poverty the populace may not adhere to laws and regulations limiting access to necessary resources. For example, in Cameroon, growing rural poverty has led to increasing pressures on large numbers of poor people to pursue illegally the commercial exploitation of wildlife, cut timber, and clear land for agriculture. In many LDCs it is not the few but the many who must exploit the environment, often in unsustainable ways, to survive. This suggests that policies designed to reduce poverty and inequality may have as much of an impact on environmental protection as policies designed to enhance the administration or enforcement of environmental laws. Public attitudes towards the environment also seem to play an important role in determining the extent to which sustainable development occurs.
4. Previous Case Example:
The Funiwa V Blowout 1980.
On the 17th of January 1980, there was an oil well blow out at one of Texaco’s facility, the Texaco North Apoi 20 off Sangana in Rivers State, about 5 miles offshore in the Niger Delta (Referred to generally as the Funiwa V Blow-Out). This continued until the 30th of January when the well caught fire. A total of 420,971 barrels (although more conservative estimates put this at about 146,000 barrels) of crude oil was spilled and left to drift uncontrolled. This caused pollution of 2230.9 Km of various water courses such as estuaries, lagoons, lakes, rivers, rivulets, and creeks, and rendered usual sources of drinking water unsafe. A total of about 223,000 people were directly affected. 180 persons died in March 1980 at Sangana alone as a result of factors related to the pollution, mangrove forests were affected while certain sea foods were either killed or tainted, 321 fishing ports were impacted and the socio economic life of the people was paralyzed.
An independent valuation of the damages assessed this as one hundred million, two hundred and thirty seven thousand, seven hundred and eighty nine naira (N100, 237,789.00). This did not include costs for remediation of the polluted waters. The then President of the country unilaterally directed the company to pay only twelve and half million Naira (N12, 500,000.00), representing only 2.5% of the independent valuation as full and final payment. No further action was taken against the company by the regulatory agencies.
The pertinent question at this juncture is – why has there been no enforcement whatsoever by regulatory agencies against such companies in spite of these laws? Admittedly there are some weaknesses in both the legislative and institutional framework of enforcement. However, do these alone or mainly account for the absolute lack of enforcement? If that is the case, how does one explain the fact that local communities and individuals have instituted several successful actions for compensation due to damage arising from such activities within the same regulatory framework? Although the example above is merely anecdotal, they give an indication of how other policy considerations and lack of supporting structures can impede the enforcement of environmental laws.
In the first instance, the priority of developing countries is achievement of economic growth through development projects. For this, there is a heavy reliance on in- flow of foreign direct investment. These projects, apart from contributing immensely to government revenue also create jobs. The priority therefore is the creation of a competitive and favorable investment climate to attract investment. Although countries such as Chile have successfully implemented strict environment regulation without discouraging investment, for most countries, less strict environment regulation is seen as one of the factors that gives the country a better competitive edge. Consequently, while there may apparently be integration of environment and development policy in a legislative framework, this is not followed through with a corresponding political will, not necessarily capacity, to enforce these laws.
Although gradual improvements are being made in some respect, most developing countries are characterized by weak governance structures and lack of accountability in governments and this is another major impediment to enforcement. As the former UN secretary General, Kofi Annan said, “good governance and sustainable development are indivisible. This is the lesson from Africa to Asia to Latin America. Without good governance… no amount of funding, no amount of charity will set us on the path to prosperity.” Corruption is one of the major problems of such states.
Shortcomings in legislation such as the one above could be due to various factors that existed at the time of drafting the laws. Nevertheless, a commitment to integration of environment in development laws would propel countries to ensure that these gaps are fixed in a similar way that investment promotion legislation are routinely reviewed. Consequently while it is conceded that lack of expertise and limited financial resources are some obvious challenges to establishing efficient legislative and regulatory structures in these countries, weak laws themselves may be due to lack of a political will to address them effectively. Public pressure contributes significantly to ensuring better environmental standards and enforcement all over the world. The ability to do so is however strongly influenced by the type of government and the political and economic power that the pressure group wields. A government that is not accountable to its people is very unlikely to react positively to protests and is more likely to crush these through the power of the state. Public interest litigation is another means of ensuring environmental compliance in the absence of effective enforcement by state regulatory agencies. A vibrant and independent judiciary is however essential for this to be effective.
The usefulness of law as a tool for policy integration is dependent on its enforcement. To ensure successful enforcement, it is important that there exist the right mix of rules together with suitable and adequate framework for enforcement. However, even the most efficient regulatory system and well trained and equipped enforcement officers cannot guarantee enforcement without a corresponding political will to do so. On the other hand, even a poor regulatory system can yield some positive results where there is commitment to enforcement. Lack of this political will partly explains the poor enforcement of environmental laws in developing countries.
The analysis above indicates that contrary to the policy expressed in legal and policy documents, economic development is still prioritized and pursued separately from environmental protection. Weak governance structures, lack of organized and effective public pressure groups and a vibrant judiciary are also contributory factors as the public are unable to bring the required pressure to bear on the government and regulatory agencies. Finally, the current trend of globalization, the international governance of foreign investments and multinational corporations is skewed unfavorably against the environmental concerns of developing countries.
In light of the above, laudable projects which seek to build capacity for law making and enforcement may not achieve much if attention is not also paid to the issue of providing an enabling environment and establishing viable supporting structures at both national and international levels. This includes coherence of policy between international investment and environmental law.
· Bastida, supra note 24, at p. 4; V.N. Balasubramayam, “Foreign Direct Investment to Developing Countries” in Regulating International Business: Beyond Liberalisation (S. Picciotto and R.Mayne, Eds. London: Great Britain, Macmillan, 1999), p. 29; McCutcheon, supra note 27, at p. 397.
· Brian J. Nickerson, “The Environmental Laws of Zimbabwe: A Unique Approach to Management of the Environment,” in (1994) 14(2) Boston College Third World Law Journal.
· D.C. Korten, When Corporations Rule the World (London, United Kingdom: Earthscan, 1995).
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· De Aragao and Bunker, Op. cit. At 487-488
· ECA, Striving for Good Governance in Africa: Synopsis of the 2005 African Governance Report Prepared for the African Development Forum IV. Available online at www.uneca.org/agr/agren.pdfo4/11/04. Accessed on 1st March, 2013.
· E. Ekekwe “The Funiwa -5 Oil Well Blowout” in The Petroleum Industry and the Nigerian Environment: proceedings of an International Seminar sponsored by the Nigerian National Petroleum Company (1981).
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· K.I. Vibhute, “Environment, Development and the Law: The Indian Perspective,” in (1995) 7(2) Journal of Environmental Law, at 145.
· Murillo de Aragno and Stephen Bunker, “Brazil: Regional Inequalities and Ecological Diversity in a Federal System,” in Edith Brown Weiss and Harold K. Jacobson (eds.) Engaging Countries: Strengthening Compliance with International Environmental Accords (Cambridge, Massachusetts: MIT Press, 1998), at 478-9.
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· O.P. Dwivedi, “Governmental Response to Environmental Challenges: a North-South Perspective,” in Joseph G. Jabbra and Onkar P. Dwivedi (eds.), Governmental Response to Environmental Challenges in Global Perspective (Amsterdam; Washington, D.C.: IOS Press, 1998), at 7.
· Piers Blaikie and John Mope Simo, “Cameroon’s Environmental Accords: Signed, Sealed, but Undelivered,” in Edith Brown Weiss and Harold K. Jacobson (eds.) Engaging Countries: Strengthening Compliance with International Environmental Accords (Cambridge, Massachusetts: MIT Press, 1998).
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· R. Abah (Ed) Texaco Oil Blow –Out , January 1980-Being Survey and Valuation Report-Re Disturbance and Injurious Affection and Other Effects Arising from the Texaco Oil Blow Out at Apoi 20 (Otherwise known as Funiwa 5) off Sangana, Rivers State (1980). See also Fekumo, supra note 97, at pp. 45-49.
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· Stefano Varese, “The New Environmentalist Movement of Latin American Indigenous People,” in Stephen B. Brush and Doreen Stabinsky (eds) Valuing Local Knowledge: Indigenous People and Intellectual Property Rights (Covelo, California; Washington, D.C.: Island Press, 1996).
· Thomas Greaves, “Tribal Rights,” in Stephen B. Brush and Doreen Stabinsky (eds) Valuing Local Knowledge: Indigenous People and Intellectual Property Rights (Covelo, California; Washington D.C.: Island Press, 1996), at 28-31.
· T. Greaves (ed) Intellectual Property Rights for Indigenous Peoples: A Sourcebook (Oklahoma City, Oklahoma: Society for Applied Anthropology, 1994).
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 section 2 (d), ECA, 1995
 O.P. Dwivedi, “Governmental Response to Environmental Challenges: a North-South Perspective,” in Joseph G. Jabbra and Onkar P. Dwivedi (eds.), Governmental Response to Environmental Challenges in Global Perspective (Amsterdam; Washington, D.C.: IOS Press, 1998), at 7.
 Piers Blaikie and John Mope Simo, “Cameroon’s Environmental Accords: Signed, Sealed, but Undelivered,” in Edith Brown Weiss and Harold K. Jacobson (eds.) Engaging Countries: Strengthening Compliance with International Environmental Accords (Cambridge, Massachusetts: MIT Press, 1998).
 Ibid., at 212-13.
 These economic benefits are not enjoyed by the residents of communal lands holding large wildlife populations, as they do not enjoy the same rights as private landholders over wildlife. This could be a further area of reform. Ibid. at 217.
 Murillo de Aragno and Stephen Bunker, “Brazil: Regional Inequalities and Ecological Diversity in a Federal System,” in Edith Brown Weiss and Harold K. Jacobson (eds.) Engaging Countries: Strengthening Compliance with International Environmental Accords (Cambridge, Massachusetts: MIT Press, 1998), at 478-9.
 K.I. Vibhute, “Environment, Development and the Law: The Indian Perspective,” in (1995) 7(2) Journal of Environmental Law, at 145.
 Vibhute, supra note 1 at 146.
 De Aragao and Bunker, Op. cit. At 487-488.
 Blaikie and Simo, at 461.
 E. Ekekwe “The Funiwa -5 Oil Well Blowout” in The Petroleum Industry and the Nigerian Environment: proceedings of an International Seminar sponsored by the Nigerian National Petroleum Company (1981). However this estimate being from the company Texaco cannot be totally relied on.