CHAPTER ONE

GENERAL INTRODUCTION

• Background to the study

Human rightsand the environment are now clearly interconnected fields. This phenomenon started in the early 1970s with the recognition of the connection between the environment and development at the 1972 Stockholm Declaration on the human environment. It’s first principle states ” man has the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well-being, and have the responsibility to safeguard both the natural resources and natural ecosystem for the present and future generations, through careful planning”. The historical context on the birth of this sub – discipline of human right is highly relevant. It is only with the emergence of the concept of sustainable development that the discussion over the potential recognition took off. The right to a safe and healthy environment is of utmost importance as it encompasses, support and sustain not only human life but animal and plant life which makes existence worth living.

The 1992 Rio declaration crystallized this new approach to development and suggested that it leads to new progress in international law, recognizes the major goals in international law on sustainable development should include : the development of universally negotiated agreements that create effective international standards for environmental protection. It is essential to mention that the discussion on the development of environmental human rights has emerged only very recently, in comparison to other human rights. It was argued that an environmental human right is based on the belief that a safe and healthy environment is prerequisite to the fulfillment of other human rights, and that a human – centered approach to environment could reconcile the social and environmental field by recognizing once and for all their interdependence.

A healthy environment which encompasses all aspects of the natural and man-made environment that may affect human health remains a major concern in Cameroon, where the fundamental right to life is threaten by soil degradation, deforestation and by exposure to toxic chemicals, harzadous waste and contaminated drinking water. Not leaving out, industrial chemical spills and disposal of industrial debris into water, air, and soil pollution. The direct consequences of these bad practices are reflected through common diseases, food intoxication and climate change.

Destruction of the remaining forests is heavy even within reserved lands, fires and commercial exploitation of the forests in the elimination of 200,000 hectares (494,200 acres) per year. Also air pollution is a significant environmental issue in Cameroon, poaching and overfishing threatens the nations wildlife, as of 1994, the drill and preuss’s red colobus were endangered species.. The lava flow across the limbe – idenau highway, damage of forest and palm plantations in Bakingili and the evacuation of the 600 inhabitants of bakingili. August 1986, poisonous gases emanating from lake Nyos in the northwestern Cameroon, killed 1746 villagers by official count. The scientist speculated that the toxic gases were released by molten rock that had seeped into the lake. 

Historically it was after the Stockholm declaration of 1972 and that of the Rio de Janerio  in 1992 that Cameroon truly and practically inaugurated a systematic environmental policy that has been translated constitutionally into the creation of  a ministry, specifically responsible for environmental issues in 1992, as well as the law no. 96/12 of August 1996 and law no. 94/01 of 20^th January 1994, being the most powerful legislations on the environment in Cameroon. In addition, legal recognition has been expanding for decades at the national and regional levels since the Stockholm conference on the human environment in 1972, certain regional human rights instruments articulate the right to a safe and healthy environment. The African charter on human and people’s rights and the American convention on human rights 1998, both agreements saw the need to recognize the right the right of everyone to live in a healthy environment. Furthermore, there is also the international convenant on environment and development (1995), to achieve progressively the full realization of the right of all persons to live in an ecologically sound environment. Also the United Nations Human rights council, unanimously voted for recognizing a safe, healthy and sustainable environment as a universal human right. The council of Europe also passed a resolution supporting the adoption of an additional protocol to the European convention on human rights to anchor the right to a safe, healthy and sustainable environment in European human rights system. The global human rights, recognize the right to a healthy environment, for example, the international convenant on Economic, Social and Cultural Rights. 

The right to a safe and healthy environment (will hence forth refers as RSHE), also recognize at the national levels. In Cameroon, the right is being protected in the constitution of the Republic of Cameroon in the preamble of the 1996 constitution which says “every person shall have the right to a healthy environment. The protection of the environment shall be the duty of every citizen, the state shall ensure the protection and improvement of the environment. The government also have the duty to protect the right to a healthy environment as seen in  paragraph 25 of the preamble, it provides that, the state shall ensure the protection and improvement of the environment. Laws were enacted at the national level, law no. 94/01 0f January 20^th 1994 to lay down forestry, wildlife and fishery regulations, in addition law no. 96/12 of August 1996 relating to environmental management, also decree no. 2013/017/PM of Febuary 14, 2013 lays down rules for conducting environmental and social impact studies. The citizens and NGOs are given the procedural rights of public participation in environmental matters.

Despite the fact Cameroon has ratified major international environmental agreements of the RSHE and put in place policies and legislation to regulate the right, a cross – section of the population continue to be deprived of this right. This necessitate a review of the country’s protection of the environment through legal instruments so as to figure out the challenges. This paper stems to explore the RSHE in Cameroon.

• research Problem

Although regulations and laws to protect the RSHE in Cameroon are quite comprehensive, the violation of environmental safety continues. . The enforceability mechanisms and implementation to protect the RSHE is still at an infant stage. This is because human life is being endangered with unsafe and unhealthy practices such as; pollution, human exposure to harmful chemicals, pesticides, poor waste management, climate change.

   It is in this light I saw it as a paramount concern to access the laws and institutions put in place to protect the right to a safe and healthy environment in Cameroon. So many mechanisms have been put in place at the national and international level,creating ministry the government has enshrine in the constitution. Also NGOs have been authorized in the protection of the environment, unfortunately this mechanisms remain inefficient as we come across the violation of the right to a safe and healthy environment on a daily basis. The situation is further compounded by limited criminal sanctions by the special court, 1994 law on forestry and wildlife regime.

Moreover, the competences have been transferred to councils by the code of regional authorities in 2020, but unfortunately the financial means transferred to those authorities by the state is not sufficient thus limiting their activities of the right to a safe and and harzadous movement. It is therefore within this context that this research seeks to examine the right to a free, safe environment in Cameroon and the extent to which the mechanisms to protect such right is efficient.

• Research Hypothesis

 This study is conceived and builds on the hypothesis that irrespective of the endless efforts in laws development, institutions created and legislations to protect the right to a safe and healthy environment in Cameroon, such mechanisms to guarantee the right is inefficient

• Research Questions

I formulated main and specific research questions

1.4.1 Main Research question

What is the right to a safe and healthy environment in Cameroon ?

1.4.2 Specific Research Questions

• What are the mechanisms aim at ensuring the right to a healthy environment in Cameroon?
• What are the obstacles in ensuring the right to a safe and healthy environment in Cameroon?
• What are the possible solutions that can promote, enhance and maintain a safe and healthy environment in Cameroon?
  • Research objectives
    • Main objective

The main objective of this study is to determine the right to a safe and healthy environment in cameroon.

1.5.2 Specific objectives:

• To ascertain the mechanism aim at ensuring/protecting the right to a safe and healthy environment in Cameroon.
• To examine the shortcomings/obstacles in ensuring the right to a safety environment in Cameroon.
• To propose solutions that can help promote, enhance and maintain a safe and healthy environment in Cameroon.
  • Research Methodology

This study adopted descriptive research design where qualitative method data analysis was employed to gain an in – depth understanding and exploration of facts of the protection to a safe and healthy environment. through this method documents concerning the right to a safe and healthy environment were carefully examined, compared and reviewed. Qualitative method involve the use of non numerical data such as text, video or audio. This research work is exclusively doctrinal research method which is largely content analysis. Also the data from this study have been divided into primary and secondary data. The primary data shall be gotten from relevant statutes like the African charter on human and people’s rights, the American convention on human rights. Secondary data would be gotten from text books, journals, reliable websites on the internet and blogs.

This method was selected because through the documents and instruments consulted, it helped the researcher to identify and examine the various institutions responsible for the implementation of the various policies of protecting the right to a safe and healthy environment in Cameroon.The data was very resourceful to the researcher because it allows the depth analysis of the right to a safe and healthy environment in Cameroon of which the researcher had to make good use of the internet, read various authors work and articles relating to researchers work.

• Significance of the study

This research provides the needed academic input for the understanding of the concept of analyzing the right to a safe and healthy environment in Cameroon. More so, this research will contribute to the growing academic literature on the protection of the right to a safe and healthy environment and its findings and recommendations will be useful to other researchers, the society as well as the government of Cameroon.

       This research will also serve as a resource to other scholars and law students will be sensitized on the various national and international instruments protecting the right to a safe and healthy environment. This research will build a library in school in the sense that it will be used as a reference to other future research students. It will also strengthen the academic background of law students.

To the society, this research would create awareness, consciousness and educate the people of the importance to a safe and healthy environment. This will enable them protect their environment by not carrying out activities that will cause environmental degradation for their existence and growth.

To the Government, this work will enable them to take measures, decisions and force implement enforcement mechanism, create laws and provide strategies that will enhance and protect the right to a safe and healthy environment.

1.8 Literature Review

The review of available literature on the right to a safe and healthy environment is an important task, given the numerous literatures that exist in this domain. There is a growing worldwide concern over the right to a safe and healthy environment at the international and national levels. This has attracted a lot of authors interest in the subject, especially as the identification and prevention of the right to a safe and healthy environment has remained a major concern to both the developed and less developed economies. This work identifies the characteristics and major evolutions in the literature which can be a useful basis upon which the study is carried out.

Eacott in his work highlighted on the barriers and limitations of the right to a healthy environment. This author has also propose, human right to a healthy environment to be avocated by states, non governmental organisations and the public. He makes a cursory examination how human right to a healthy environment has become slowly prominent in international law over the past 20 years, he went further to say a human right to a healthy environment could be use as an umbrella over sustainable development in order to strengthen its effectiveness. The author has also laid emphasis on the fact that such a broad right to a healthy environment faces a number of barriers, but stated how none of these barriers necessarily prohibit the effectiveness of this right without highlighting possible solutions that can promote the right to a healthy environment. The author in his work concentrate on the barriers of the right to healthy environment but our study goes beyond by examining in details the legal mechanisms for ensuring and protecting the right to a safe and healthy environment in Cameroon.

Edamebong in brief assesses the implications for human rights in Cameroon. He further examines the legitimate assurance of the right to a healthy environment in Cameroon through an elaboration of the different laws that look forth to guarantee both substantive and procedural rights within the country. The author equally opines or proposes to build an association between human rights and the environment as well as the rights and obligations involved in the environmental rights. He also analyzes and gives an understanding of the definition and the idea to a healthy environment. In addition, analyzes the different laws that secure the right and gives a critique of the security of the right to healthy environment in Cameroon through the different substantive and procedural rights entailed by the law. He elaborated on the laws but did not talk about the challenges of the right to a safe and healthy environment.

Thorme presents an emperical study on  establishing environment as a human right. He points out that population is developing and the risk of nuclear fighting persist, the numerous sort of pollutants are destroying our environment and that, assets upon which our affluence depends will not be capable to satisfy the needs of destiny generations,in which the circumstances  add as much as a scenario of the unheard risk for the human race. He equally proposes that setting environment as a human right will make the right to environment as justiciable as other formerly described human rights,which will also make the human rights boards in a position, and more willing to to listen claims by individuals and NGOs. Claims alleging gross violations of the human right can also be introduced when ever environmental degradation affecting human life, health happens. The author focuses on how they should make environment as a human right issue especially with the coming of nuclear fighting and how pollutants destroy the environment. While this work will go far beyond that by examining the administrative and judicial mechanisms.

Thomas Ng examines the critical areas where environmentalist may look to fortify the relationship with the human rights world is within the presence of universal legal fora, meaning the judicial international process to force states to accept the international human rights law. In addition specifies that the current battle of human rights actors hence is not the creation of these mechanisms but their reinforcing and advancement. He has limited his work, to present how human rights and environment relate and the obstacles in implementing environmental human rights.  Which is just part of this study.

Lewis also examines how  human rights law faces numerous theoritical and practical challenges as a result of establishing a human right to a healthy environment at international level. The author has also made very important proposals that, human rights can have a precise effect on the environment, however a closer examination of the relationship between the environment and human rights law conceptualized the environment and further suggest, there is a right to a healthy environment emerging. She also identifies some challenges that need to be address before such a right is recognized. The author focuses on how the a healthy environment emerging and points out some challenges but she did not talk on the international and national laws, including institutions to ensure the protection of the right to a safe and healthy environment in Cameroon.

Luminashe identifies how human right to a healthy environment represents the most pragmatic and cognitive approach to make certain environmental protection from a rights – based approach.et human methods to environmental protection seem to be poorly developed in some home jurisdictions like Cameroon,where there appears to be insufficient protection of the surroundings. This literature also assesses the doable successes, obstacles and possibilities of using human rights norms, ideas and standards to make certain environmental safety in Cameroon. He further suggests that Cameroon’s legal framework is characterized by obstacles and thus seems to be insufficient, inadequate and ineffective. Consequently she suggested the government encompasses a responsibility to handle these shortcomings. This work strive to be more profound.

Bhat examines the basic human need to live in a clean environment.Stated, healthy environments are a universal human need. Air, water, and land are essential for living beings. He further mentions that, the right has been recognized ever since the Stockholm Declaration, and emphasized on both aspects of man’s environment, the natural and man-made are essential to his well-being and to the enjoyment of basic human rights, even the right to life itself. In his study, he highlights there is an associated significance of wholesome environment in relation to the right to life, which is a basic art of the formula for a healthy individual, a healthy society, and a healthy nation as well. The author only focuses on the basic human need with no reference being made to any national legislation.

Guravito in a snappy manner examines an over view, if there  should be a human right to a healthy environment? He also points a vivid evidence that living in a healthy environment is already a human right. Additionally, he analyzes that even from a purely legal standpoint, customary international law already protects this right. The authors work focuses on rephrasing the question in the following way: is the right something that should be incorporated into international legal instrument? He however identifies a variety of issues concerning effectiveness and impact, that are common to efforts to turn moral and political claims into legal claims generally, and in to claims for international advocacy specifically.  The author in his work concentrate on a healthy environment being a human right. But our study goes beyond by examining in details the legal mechanisms for preventing and ensuring the right to a safe and healthy environment in Cameroon.

 1.8 Scope of the research

Base on the content, this work is limited on how the right to a safe and healthy environment is protected in Cameroon, it also stretches across environmental laws and regulations that governs environmental protection and the role of the institutions placed to manage the protection of this right in Cameroon. This right is being carried out in the world at large. Geographically the work is focus on Cameroon, although not a full fledged, may use examples from other countries.

• Structure of the research

This work has been divided into four main chapters.

 Chapter one is made up of the general introduction.

Chapter two seeks to examine the mechanisms aim at ensuring or protecting the right to a safe and healthy environment in Cameroon

Chapter three seeks to examine the obstacles in ensuring the right of a safe and healthy environment in Cameroon

Chapter four seeks to propose solutions that can help promote, enhance and maintain a safe and healthy environment in Cameroon.

• Definition of key terms

Right; A power held by the general public as the result of a constitution, statute, regulations, judicial precedent or other type of law..

Safe; secure from threat of danger, harm, or loss.

Healthy; health is the state of complete emotional and physical well – being.

Environment; it is the complex of physical, chemical and biotic factors ( such as climate, soil and living things) that act upon an organism or an ecological community and ultimately determine its form and survival. It is also the aggregate of social and cultural conditions that influence the life of an individual or community.

Environmental degradation; is the deterioration of the environment through depletion of resources such as air, water and soil; the destruction of ecosystems and the extinction of wildlife. It is defined as any change or disturbance to the environment perceived to be deleterious or undesirable.

Human Rights, human rights are the basic human rights and freedom that belong to every person in the world, from birth until death. They apply regardless of where you are from, what you believe or how you choose to live your life. They can never be taken away, although they can sometimes be restricted – for example, if a person breaks the law or in the interest of national security. These basic rights are based on shared values like dignity, fairness, equality, respect and independence.

CHAPTER TWO

THE LEGAL MECHANISMS IN ENSURING THE RIGHT TO A HEALTHY ENVIRONMENT IN CAMEROON

I. NATIONAL LEGISLATION FOR ENSURING A HEALTHY ENVIRONMENT IN CAMEROON

The duty of the government to protect the right to a healthy environment is expressed only in the third line of Paragraph 25 of the Preamble to the 1996 Cameroon Constitution. It provides that “The State shall ensure the protection and improvement of the environment.” Besides the 1996 Cameroon Constitution, the government’s environmental duties that reference the right to a healthy environment—incorporated through international treaties—can be identified in the following treaties to which Cameroon is a State Party: Protocol Additional to the Geneva Conventions of 12 August 1949; International Covenant on Economic, Social and Cultural Rights; Montreal Protocol on Substances that Deplete the Ozone Layer; Convention on Biological Diversity;United Nations Framework Convention on Climate Change; and the Convention on Persistent Organic Pollutants.

Recent years have seen an appreciable growth in the level of understanding of the dangers facing the national and international environment and an extensive range of environmental problems is now the subject of serious international concern. These include atmospheric pollution, marine pollution, global warming and ozone depletion, the dangers of nuclear and other extra-hazardous substances and threatened wildlife species. The laws to be examined below are therefore based on ensuring a healthy environment in Cameroon

A. Law No. 96/06 of 18^th January 1996 amending the 1972 Constitution of Cameroon

The need to protect our environment and the right to a healthy environment is contained in the preamble of the 1996 Constitution which states that ‘’every person shall have the right to a healthy environment’’. For the above right to be assured, the preamble requires that both the government and the citizens should in a participatory manner protect the environment. The participatory approach in the management of the environment could be deduced from the following statement; ‘’ the protection of the environment shall be the duty of every citizen, the state shall assure the protection and the improvement of the environment’’. Considering that the environment consist our surroundings, all activities aimed at environmental sustainability are implied.  With regards to pollution of the environment, it is implied from this preamble that citizens should refrain from pollution of the environment in all dimensions and the government should intervene where necessary.

B. Law No 96/12 of August 5^th 1996 relating to Environmental Management

The 1996 Law which came into force some eight months after the 1996 constitution directly implemented the constitution. This is based on the fact that the law just as the constitution which preceeded it calls for the participation of everyone in environmental management  as it is evident in the following provision.

‘’ … the President of the Republic shall define the national environmental policy. Its implementation shall devolve upon the government which shall apply it in collaboration with the decentralized territorial collectivities communities and environmental protection associations.’’

The law in its article 4 defines pollution and other environmental issues which are relatated to pollution.

The law from Article 21 to 24 denounces all sorts of activities which contaminate the atmosphere thus causing atmospheric pollution. From Article 25 to 35 the law talks on the preservation of waters and from article 36 the law is talking about land and its preservation. Generally, this law prohibits any activities that pollutes either the air, land water and the entire environment and the government and the public has to ensure this.The law describes duties of the stakeholders in the management of the environment.

With regards to environmental pollution, the law Compared to many western nations, and like much of Africa, environmental governance is a recent practice in Cameroon. Sectoral legislations have been adopted to regulate different aspects of the environment in a piecemeal fashion. It was not until after the 1992 U.N. Conference on Environment and Development, which emphasized the need to apply a holistic approach to environmental management, that the Law No. 94/01 of 20 January 1994 to lay down forestry, wildlife, and fisheries regulations and the Law No 96/12 of 5th August 1996 relating to Environmental management (a framework law) were adopted. The framework law outlines the general legal framework for environmental management in Cameroon. This law is grounded on the principles of precaution, prevention and corrective action, pollute and pays responsibility, participation, and subsidiarity. It also prescribes environmental impact assessment (EIA) for all projects that can lead to environmental degradation in Cameroon.

C.  Law No 2003/007 of 10^th July 2003 to regulate the fertilizer sub-sector in Cameroon 

The enactment of this law which came into force in 2003 was certainly based on the importance attached to the soil as an environmental resource. Soil is an immobile resource that accumulates pollutants, many of which degrades very slowly and sometimes not at all. Pollutants are introduced by many human activities such as the use of chemical fertilizers to replenish the soil nutrients.

Unfortunately, in addition to replenishing soil fertility, fertilizers can also negatively affect sorounding areas by being washed into waters bodies where they spark high levels of acquatic plant and algae growth. Massive growth of these organisms can suck oxygen out of the water and make it hard for fish species to survive.

These instances led to the enactment of the World Soil Charter in 1981 by the FAO. This charter stressed the fact that soil degradation directly affects agriculture by diminishing yields. The charter made it clear that the use of land resources, comprising the soil, water and associated plants and animals should not cause soil degradation because mans existence depends on their continued productivity. The charter called on nations to develope policies for wise land use according to land sustainability for different types of utilization and the needs of the country.

It was in responds to this that Cameroon adopted the framework law on the environment in 1996. The law concentrates articles 36 to 38 on the protection of the soil and the sub-soils. In application of this law, Law 2003/007 was passed to regulate activities of the fertilizer sub sector in Cameroon,. This prevents soil pollution whose effects are adverse both to animal species and human beings.

D. Law on Water Regulation 1998

The pollution of waters is very dangerous to all sorts of living species. Water is life. It is a scares and limited resource, with no substitute and water pollution is one of the most pervasive environmental problems worldwide. In order to protect resources from pollution, the law clearly defines spring water, surface water, and underground water. It further makes provisions for the ownership, exploitation and protection of  water most importantly from pollution.

E. The Penal Code

The penal code in section 145 states that, “any public servant who having the power, the duty and the means to do so, refrains from dispersing a riot within the meaning of section 232 of this code, shell be punished with imprisonment from 3months to 2yearS. Section 232 states that, a riot shall mean any assembly on the public highway of 5 or more persons in a manner liable to disturb public peace.by implication, the outcome of riot is usually destructive especially to the environment, the consequences do not only make life unbearable for humans but as well other living organisms. Note should be taken of the fact that, the right to life is a fundamental human right and this is why, the institude de droit international adopted a resolution at its Strasburg session in September 1997 noting in its article 2 that, every human being has the right to leave in a healthy environment. The preamble of the Stockholm declaration of 1972 is also to this effect. A riot may have enormous consequences on the environment for example; burning of things that degrade the ozone layer, explosives like tear gas that pollutes the atmospheric air. the penal code in punishing failure to protect riot, is protecting the environment. Secondly, The penal code in section 151 (i) states that “ any public servant or private sector employee whose persistent neglect or obstruction is the cause of procrastination, delay, confusion or who persistently refrain from performing any duty of his office shall be punished with imprisonment for from 3months to 2years and with a fine of 50thausand to 500thausand franc CFA”. Though this section punishes persistent neglect generally, in a nutshell it applies to employees in the ministry of forestry and environmental sectors e.g, the waste management sector such as EZACAM. If they persistently refrain from cleaning the environment, it will lead to environmental degradation that the penal code punishes
Again, section 162 (I,ii.iii) states that, “who so ever by any false statement influences the conduct of the public servant shall be punish with imprisonment for from 15 days to 3months and with fine for from 5thausand to 50thausand franc CFA. Though this section equally penalizes defaulters general, it applies to employees in the environmental and forestry sector
Even though our area of interest is limited from section 140 to 176, there are other section in the penal code that protects the environment such as, section 187(i) relating to national and natural heritage stating that “ who ever unlawfully exploit or export the natural and cultural property of the state and carries out any other activity that devalues it , shall be punished with imprisonment from 1-2years and with fine from 20thausand franc

II. INTERNATIONAL LEGISLATION IN ENSURING A HEALTHY ENVIRONMENT

A developing theme of international environmental law, founded upon general principles, relates to the requirement for states to co-operate in dealing with trans-boundary pollution issues. Principle 24 of the Stockholm Declaration 1972 noted that ‘international matters concerning the protection and improvement of the environment should be handled in a co-operative spirit’, while Principle 7 of the Rio Declaration 1992 emphasised that ‘states shall co-operate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem’. Principle 13 of the Rio Declaration refers both to national and international activities in this field by stating that: states shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also co-operate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.

1. CONTROL OF ATMOSPHERIC POLLUTION

Perhaps the earliest perceived form of pollution relates to the pollution of the air. The burning of fossil fuels releases into the atmosphere sulphur  dioxide and nitrogen oxides which change into acids and are carried by natural elements and fall as rain or snowor solid particles. Such acids have the effect of killing living creatures in lakes and streams and of damaging soils and forests. While the airspace above the territorial domain of a state forms part of that state, the imprecise notion of the atmosphere would combine elements of this territorial sovereignty with areas not so defined. The legal characterisation of the atmosphere, therefore, is confused and uncertain, but one attractive possibility is to refer to it as a shared resource or area of common concern.

A. Convention on Long-Range Trans-Boundary Air Pollution, Geneva 1979

The question of how one defines the term ‘pollution’ has been addressed in several international instruments. In a Recommendation adopted in 1974 by the Organisation for Economic Co-operation and Development, pollution is broadly defined as ‘the introduction by man, directly or indirectly, of substances or energy into the environment resulting in deleterious effects of such a nature as to endanger human health, harm living resources and ecosystems, and impair or interfere with amenities and other legitimate uses of the environment’. This definition was substantially reproduced in the Geneva Convention on Long-Range Trans-boundary Air Pollution, 1979 and in the Montreal Rules of International Law Applicable to Transfrontier Pollution adopted by the International Law Association in 1982. Several points ought to be noted at this stage. First, actual damage must have been caused. Pollution likely to result as a consequence of certain activities is not included. Secondly, the harm caused must be of a certain level of intensity, and thirdly, the question of interference with legitimate uses of the environment requires further investigation.

The core obligation in customary international law with regard to atmospheric pollution was laid down in the Trail Smelter case,which provided that no state had the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another state or to persons or property therein, where the case was of serious consequence and the injury established by clear and convincing evidence.

In 1979, on the initiative of the Scandinavian countries and under the auspices of the UN Economic Commission for Europe, the Geneva Convention on Long-Range Trans-boundary Air Pollution was signed. The definition of pollution is reasonably broad,while article 1(b)defines long-range trans-boundary air pollution as air pollution whose physical origin is situated wholly or in part within the area under the national jurisdiction of one state and which has adverse effects in the area under the jurisdiction of another state at such a distance that it is not generally possible to distinguish the contribution of individual emission sources or groups of sources.

The obligations undertaken under the Convention, however, are modest. States ‘shall endeavour to limit and, as far as possible, gradually reduce and prevent air pollution, including long-range trans-boundary air pollution’. The question of state liability for damage resulting from such pollution is not addressed. The Convention provides that states are to develop policies and strategies by means of exchanges of information and consultation and to exchange information to combat generally the discharge of air pollutants.

B. Vienna Convention for the protection of the Ozone Layer, Vienna 1985 Including the Montreal Protocol on substances that deplete the ozone layer, Montreal 1987

The problem of global warming and the expected increase in the temperature of the earth in the decades to come has focused attention on the issues particularly of the consumption of fossil fuels and deforestation. In addition, the depletion of the stratospheric ozone layer, which has the effect of letting excessive ultraviolet radiation through to the surface of the earth, is a source of considerable concern. The problem of the legal characterisation of the ozone layer is a significant one. Article 1(1) of the Vienna Convention for the Protection of the Ozone Layer, 1985 defines this area as ‘the layer of atmospheric ozone above the planetary boundary layer’. This area would thus appear, particularly in the light of the global challenge posed by ozone depletion and climate change, to constitute a distinct unit with an identity of its own irrespective of national sovereignty or shared resources claims. UN General Assembly resolution 43/53, for example, states that global climate change is ‘the common concern of mankind’. Whatever the precise legal status of this area, what is important is the growing recognition that the scale of the challenge posed can only really be tackled upon a truly international or global basis.

In the first serious effort to tackle the problem of ozone depletion, the Vienna Convention for the Protection of the Ozone Layer was adopted in 1985, entering into force three years later. This Convention is a framework agreement, providing the institutional structure for the elaboration of Protocols laying down specific standards concerning the production of chlorofluorocarbons (CFCs), the agents which cause the destruction of the ozone layer. Under the Convention, contracting parties agree to take appropriate measures to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer. The parties also agree to co-operate in the collection of relevant material and in the formulation of agreed measures, and to take appropriate legislative or administrative action to control, limit, reduce or prevent human activities under their jurisdiction or control ‘should it be found that these activities have or are likely to have adverse effects resulting from modification or likely modification of the ozone layer’.

In 1987 the Montreal Protocol on Substances that Deplete the Ozone Layer was adopted and this called for a phased reduction of CFCs and a freeze on the use of halons. The control measures of the Protocol are based on the regulation of the production of ‘controlled substances’ by the freezing of their consumption at 1986 levels followed by a progressive reduction, so that by mid-1998 consumption was to be reduced by 20 per cent in comparison with the 1986 figure. From mid-1998 onwards consumption was to be reduced to 50per cent of the 1986 level.182 However, this was subsequently felt to have been insufficient and, in 1989, the parties to the Convention and Protocol adopted the Helsinki Declaration on the Protection of the Ozone Layer in which the parties agreed to phase out the production and consumption of CFCs controlled by the Protocol as soon as possible, but not later than the year 2000, and to phase out halons and control and reduce other substances which contribute significantly to ozone depletion as soon as feasible. An Implementation Committee was established under the Montreal Protocol together with a non-compliance procedure, whereby a party querying the carrying out of obligations by another party can submit its concerns in writing to the secretariat.

2. CONTROL OF WATER AND MARINE ENVIRONMENT

International watercourses are systems of surface waters and ground waters which are situated in more than one state. Such watercourses form a unitary whole and normally flow into a common terminus. While there has historically been some disagreement as to the extent of the watercourse system covered, particularly whether it includes the complete river basin with all associated tributaries and groundwater systems, a broader definition is the approach adopted in recent years. Customary law has developed rules with regard to equal riparian rights to international rivers, but these were not extensive.

A. Convention on the protection and use of trans-boundary waters courses and international lakes (ECE Water Convention ) Helsinki 1992

In 1992, the Convention on the Protection and Use of Trans-boundary Watercourses and International Lakes was adopted in Helsinki within the framework of the UN Economic Commission for Europe. Under this Convention, all parties must take all appropriate measures to prevent, control and reduce any significant adverse effect on the environment resulting from a change in the conditions of trans-boundary waters caused by a human activity. Such effects on the environment include effects on human health and safety, flora, fauna, soil, air, water, climate, landscape and also effects on the cultural heritage. In taking such measures, states parties are to be guided by the precautionary principle and by the polluter pays principle, by which the costs of pollution prevention, control and reduction measures are to be borne by the polluter. Each party undertakes to set emission limits for discharges from point sources into surface waters based on best available technology and to define, where appropriate, water-quality objectives and adopt water-quality criteria  for the purpose of preventing, controlling and reducing trans-boundary impact. The measures to be taken must ensure, for example, the application of low- and non-waste technology; the prior licensing of waste-water discharge; the application of biological or equivalent processes to municipal waste water; the use of environmental impact assessments and sustainable water-resources management.

The Convention also calls for the parties to establish monitoring programmes, to co-operate in research and development projects and to exchange relevant information as early as possible. Riparian parties are to enter into bilateral or multilateral agreements or arrangements in order to co-ordinate their activities and to consult together at the request of any one riparian party. Article 7 provides that the parties ‘shall support appropriate international efforts to elaborate rules, criteria and procedures in the field of responsibility and liability’.

B. Convention on Civil Liability for Oil Pollution Damage, 1969

As far as liability is concerned, the Convention on Civil Liability for Oil Pollution Damage, 1969 provides that where oil escaping from a ship causes damage on the territory or territorial sea of a contracting party, the ship owner is strictly liable for such damage, which includes the costs of both preventive measures and further loss or damage caused by such measures. This liability is limited, however, unless the pollution is the Where an accident takes place, the Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 3 permits states parties to take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil.  An International Convention on Oil Pollution Preparedness,

Response and Co-operation was signed in London in November 1990, with the purpose of ensuring prompt and effective action in the event of a pollution incident. It requires ships to carry detailed plans for dealing with pollution emergencies. Pollution incidents must be reported without delay and, in the event of a serious incident, other states likely to be affected must be informed and details given to the International Maritime Organisation. National and regional systems for dealing with such incidents are encouraged and the contracting parties agree to co-operate and provide advisory services, technical support and equipment at the request of other parties. As far as liability is concerned, the Convention on Civil Liability for Oil Pollution Damage, 1969 provides that where oil escaping from a ship causes damage on the territory or territorial sea of a contracting party, the ship owner is strictly liable for such damage, which includes the costs of both preventive measures and further loss or damage caused by such measures. This liability is limited, however, unless the pollution is the result of the fault of the ship owner.  The ship owner must maintain insurance or other financial security to cover its liability. Claims may be brought in the courts of the party in which loss or damage has occurred or preventive measures taken and the judgments of such courts are generally recognisable and enforceable in the courts of all parties.

The 1969 Convention was amended by the Protocol on Liability, 1992, which includes in the definition of damage compensation for impairment of the environment provided that this is limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken. The Convention on the Establishment of an International Fund for Compensation for

Oil Pollution Damage was adopted in 1971 and enables compensation to be paid in certain cases not covered by the Civil Liability Convention. The Convention and Protocols of 1976 and 1984 were superseded by a Protocol of 1992 and the Convention ceased to be in force as from 24 May 2002. The 1992 Protocol established a separate, 1992 International Oil Pollution Compensation Fund, known as the 1992 Fund.

C. Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969

Where an accident takes place, the Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 permits states parties to take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil.An International Convention on Oil Pollution Preparedness, Response and Co-operation was signed in London in November 1990, with a pollution incident. It requires ships to carry detailed plans for dealing with pollution emergencies. Pollution incidents must be reported without delay and, in the event of a serious incident, other states likely to be affected must be informed and details given to the International Maritime Organisation. National and regional systems for dealing with such incidents are encouraged and the contracting parties agree to co-operate and provide advisory services, technical support and equipment at the request of other parties.

D. International Convention for the protection of pollution of the sea by Oil London 1954, 1962 and 1978

The International Convention for the Prevention of Pollution of the Sea by Oil, 1954 basically prohibits the discharge of oil within 50 miles of land and has been essentially superseded by the International Convention for the Prevention of Pollution from Ships, 1973,315 which is concerned with all forms of non-accidental pollution from ships apart from dumping.

In Annexes and other amendments and Protocols to the Convention, detailed standards are laid down covering oil, noxious liquid substances in bulk, harmful substances carried by sea in packaged form, sewage and garbage. The Convention covers ships flying the flag of, or operated under the authority of, a state party, but does not apply to warships or state-owned ships used only on governmental non-commercial service.

E. United Nations Convention on the Law of the Sea 1982

Article 211(2) of the Convention on the Law of the Sea, 1982 provides that states are to legislate for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such rules are to have the same effect at least as that of generally accepted international rules and standards established through the competent international organisation or general diplomatic conference.

States are also to ensure that the ships of their nationality or of their registry comply with ‘applicable international rules and standards’ and with domestic rules governing the prevention, reduction and control of pollution. In addition, coastal states have jurisdiction physically to inspect, and, where the evidence so warrants, commence proceedings against ships in their territorial waters, where there are clear grounds for believing that the ship concerned has violated domestic or international pollution regulations. It should also be noted that a state in whose port a vessel is may take legal proceedings against that vessel not only where it is alleged to have violated that state’s pollution laws or applicable international rules in its territorial sea or economic zone, but also in respect of any discharge outside its internal waters, territorial sea or exclusive economic zone in violation of applicable international rules and standards.

3. CONTROL OF NOISE POLLUTION

In recent years, society has increasingly recognized excessive noise as a form of pollution. It is both a nuisance and a threat to health. In Europe about ten million people are exposed to noise levels in the environment that may cause hearing loss. The non-binding Stockholm Action Plan addressed the elaboration of norms to combat noise as early as 1972. In addition, several cases submitted to the European Court of Human Rights have alleged that levels of airport noise constitute a violation of their right to privacy and home life guaranteed in the European Convention on Human Rights, Art. 8 (see Section B).

International environmental law primarily regulates two forms of noise pollution: airport noise and urban noise. EC legislation regulates noise generated by air traffic. “Environmental noise” is defined as unwanted or harmful outdoor sound created by human activities, including noise emitted by means of transport, road, rail or air traffic, and from sites of industrial activity. Noise indicators are proposed, and states should make and approve noise maps and Action Plans for urban areas and major roads, railways, and airports. The Directive applies to noise emitted by road and rail vehicles and infrastructure, aircraft, outdoor and industrial equipment, and mobile machinery. It applies in noise-sensitive areas, such as in public parks and near schools and hospitals. At the international level we equally have the Working Environment (Air pollution, Noise and Vibration) Convention 1977

4. NUCLEAR SAFETY

A. Convention on Nuclear Safety , Vienna 1994

The Convention on Nuclear Safety was adopted by the IAEA in 1994. This emphasises that responsibility for nuclear safety rests with the state having jurisdiction over a nuclear installation  and obliges states parties to take legislative and administrative measures to implement Convention obligations via a regulatory body and to submit reports to periodic review meetings of all parties.  The Convention provides that operators of nuclear installations must be licensed  and it is the operators that remain primarily responsible for the safety of the installations.  The Convention specifies a number of safety considerations, but these are not in the form of binding obligations upon the parties.

In addition to the issue of the responsibility or liability of the state for the activity under consideration, the question of the proceedings that may be taken by the individual victims is also raised. One possible approach is to permit the victim to have access to the legal system of the foreign polluter and thus to all remedies available on a non-discriminatory basis. This would have the effect of transforming the trans-boundary pollution into a national matter

B. The Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, 1972

The increasing problem of the disposal of toxic and hazardous wastes and the practice of dumping in the Third World, with its attendant severe health risks, has prompted international action. The Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, 1972292 provides for a ban on the dumping of certain substances293 and for controls to be placed on the dumping of others. The London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 prohibits the dumping of wastes except as provided in the Convention itself, and this is strictly controlled.

In 1988, the Organisation of African Unity adopted a resolution proclaiming the dumping of nuclear and industrial wastes in Africa to be a crime against Africa and its people. In 1991, the OAU adopted the Bamako Convention on the Ban of the Import into Africa and the Control of Trans-boundary Movement and Management of Hazardous Wastes within Africa, under which parties are to prohibit the import of all hazardous wastes for any reason into Africa by non-parties and to prohibit the dumping at sea of such wastes. The OECD has adopted a number of Decisions and Recommendations concerning the trans frontier movements and exports of hazardous wastes. In 1989 the OECD adopted a Recommendation298 noting that the polluter-pays principle should apply to accidents involving hazardous substances. The Basle Convention on the Control of Trans-boundary Movements of Hazardous Wastes and Their Disposal, 1989 provides that parties shall prohibit the export of hazardous and other wastes to parties which have prohibited the import of such wastes and have so informed the other parties. In the absence of prohibition by the importing state, export to that state of such wastes is only permissible where consent in writing to the specific import is obtained.

The Convention also provides that any proposed trans-boundary movement of hazardous wastes must be notified to the competent authorities of the states concerned by the state of export. The latter shall not allow the generator or exporter of hazardous wastes to commence the trans-boundary movement without the written consent of the state of import and any state of transit.

Conclusion

This chapter has succinctly examined the laws ensuring a healthy environment from all dimensions, with considerations both at the national and the international level.