Influence of International Environmental Law Principles on ECA, 1995
Introduction
According to Plato, “If anyone intentionally spoils the water of another … let him not only pay damages, but purify the stream or cistern which contains the water”.[1] This statement reflects one of the principles of international environmental law, the Polluter Pays Principle (PPP). From all the prevalent principles, Principle of Sustainable Development, Polluter Pays Principle, Precautionary Principle and No Harm principle are well known and well recognized in the international and national legal arena. These principles are the guiding norms of interpretation of treaties, future development of international environmental law and expression of consensus of the international community.[2] Though there is disagreement among states regarding the status of these principles, they have got recognition, among other means, through state practice, their incorporation in national laws and through judgments of courts and tribunals.[3]
Countries around the world have incorporated the principles in their domestic laws and Bangladesh is no exception to this. The Bangladesh Environment Conservation Act, 1995 (hereinafter called as ECA) is the first comprehensive law on environmental issues. The main aim of this special law is to conserve the environment, improve environmental standards and control and mitigate environmental pollution. Several principles of international environmental law have been incorporated in this Act, however indirectly. In this writing we will try to discuss how these principles have influenced the wording of ECA and how they are incorporated in it.
Precautionary Principle (PP)
The precautionary principle aims to provide guidance in the development and application of international environmental law where there is scientific uncertainty[4]. It requires that if there is a strong suspicion that a certain activity may have environmentally harmful consequences, it is better to control that activity now rather than to wait for incontrovertible scientific evidence. Section 4 (2)(b), Section 9, Section 16 of the ECA are influenced by this principle. The Director General of the Department of Environment (DoE) has the power to take safety measures before any accident takes place to protect the environment which reflects the influence of the precautionary principle.[5]
Again, sub-section (1), (2) and (3) of Section 9 show that if ,due to any incident, discharge of environmental pollutant occurs or activates or accident is likely to occur, the person/persons responsible for this shall take safety measures and he/they is/are to inform the DG regarding such happening and also is/are to follow the directions given by the authority to mitigate and control environmental pollution.
If we see section 16 of the Act, the polluters, if they fail to comply with the provisions or directions, are to prove that the violation or failure was beyond their knowledge or that they exercised due diligence to prevent such violation or failure. So, the burden is on the shoulders of the polluters here. The PP also emphasizes on this point that the traditional method of burden shouldering is not to be followed.[6] However, interestingly, though S.16 follows this method, the section talks about post harm steps. The polluter is to prove his point after an incident but not before. But the PP expects that the party is to prove that the activity will not cause any damage to the environment before it is carried out.
Polluter Pays Principle (PPP)
The ‘polluter pays’ principle is the commonly accepted practice that those who produce pollution should bear the costs of managing it to prevent damage to human health or the environment. For instance, a factory that produces a potentially poisonous substance as a by-product of its activities is usually held responsible for its safe disposal. The polluter pays principle is part of a set of broader principles to guide sustainable development worldwide (formally known as the 1992 Rio Declaration).[7]
Section 9(4) of the ECA says that the expenses incurred with respect to remedial measures to control and mitigate the environmental pollution under this section shall be payable to the Director General and may be realized from the persons referred to in sub-section (1) as public demand. This is the true reflection of the PPP in the ECA.
Principle of Sustainable Development
The principle of sustainable development expects that only growth must not be treated as development. Development must be something that will be sustainable and it must not be at the cost of the environment. Before undertaking a project, the risk factors are to be assessed so that the importance of the environment does not go down the carpet. Section 12 (1) of ECA says that no industrial unit or project shall be established or undertaken without obtaining, in the manner prescribed by rules, an Environmental Clearance Certificate from the Director General. This section talks about environmental clearance certificates and detailed rules of issuing the same are given in Environment Conservation Rules, 1997. Keeping the fact in mind that the protection of the environment is also needed by the side of development, the provisions regarding clearance certificates are incorporated, and it reflects the influence of the Principle of sustainable development.
No Harm Principle
The no-harm rule is a widely recognized principle of customary international law whereby a State is duty-bound to prevent, reduce and control the risk of environmental harm to other states.[8] Every state has the right to exploit its resources but it must be kept in mind that they are to take responsibility to ensure that the activity done within their own territory does not cause damage to the other state (Trans- boundary harm).[9] Section 6(1) of the Act prohibits emission of injurious gas or smoke from vehicles. Though the vehicles are emitting gas in our territory, we must not forget that the air is shared by all and the gas and smoke pollute this shared element of the environment. It shows that the incorporation has been made here. However, it’s a matter of regret that S.6A of the Act provides a provision that goes in contrary to this principle. It provides power to the DG to prohibit production of polythene but the prohibition shall not be applicable, if the specified material is exported. Particularly this point shows a clear violation of the no harm principle.
Conclusion
After discussing the whole matter, it is submitted that some of the well recognized principles of international environmental law have indirect influence over the Environment Conservation Act, 1995 since nowhere in the Act these principles are mentioned.
Writer: Mehrab Hossain, student at Law, University of Dhaka.
[1] Jowett B, “The Dialogues of Plato: The Laws”, (Oxford: Clarendon Press, 4th edition, 1953) vol. 4, book 8, section 485(e)
[2] Phillip Sands and Jacquieline Peel, “Principles of International Law”, (Cambridge University Press, 3rd edition, 2012) p 187
[3] Ibid
[4] Philippe Sands, “Principles of International Environmental Law, Principles and Rules Establishing Standards”, (Cambridge University Press, 2nd edition, 2003) p 267
[5] The Bangladesh Environment Conservation Act 1995, s 4(2)
[6] Supra note 4, p 16
[7] The London School of Economics and Political Science, “What is the polluter pays principle?”, (lse.ac.uk, 11 May 2018) <https://www.lse.ac.uk/granthaminstitute/explainers/what-is-the-polluter-pays-principle/#:~:text=The%20’polluter%20pays’%20principle%20is,human%20health%20or%20the%20environment> accessed 13 April 2022
[8] Patricia Birnie, Alan Boyle and Catherine Redgwell, “International Law and the Environment”, (Oxford, 3rd edition, 2009) pp 143-152
[9] Rio Declaration on Environment and Development 1992, principle 2
