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F. Role of legal structures
Legal structures, environment, and sustainable development
Basic challenges to the legal system
- It is quite clear that the sustainable development role of law provides at least three basic challenges to the legal system.
- Coping with uncertainty, including operating with a long-term perspective.
a. Gaps in our knowledge - Nobody will deny that there are wide gaps in our knowledge, understanding and charting of basic environmental phenomena. In addition, it is frequently impossible to trace damage to a specific source of environmental pollution, or to prove damage - especially future damage - in terms more conclusive than statistical probabilities.
b. Uncertainty - The pervasive aura of uncertainty has profound implications for a legal system which relies to a large extent on demonstrable causal links, measurability and predictability. The law and conflict settlement relating to environmental management must be process-oriented, and rely on equity rather than on rigid "right-or-wrong" rules, whether these norms be civil or penal.
c. Effective representation - Further governance - including legislative and judicial processes must make provisions for the effective representation of future generations. More importantly, there is the precautionary principle, which calls upon legislators and regulatory systems to take account of the probability of serious environmental harm even when it is not demonstrated by conclusive scientific data.
- Effectively preventing man-made environmental harm, rather than simply attempting to repair it.
a. Irriversible damages- Environmental degradation is often irreversible, as is the depletion or mismanagement of natural resources. This means that reparatory or punitive legal measures taken after the event, by tort remedies or by penal sanctions, are not, at least by themselves, effective instruments of control. They may, surely, serve as a disincentive.
b. Effective regulatory systems - Priority must be given to preventive policies and measures. These presuppose the adoption of effective regulatory systems whose functions must range from environmental impact assessments to licensing or prohibition, monitoring and supervision and, ultimately, enforcement.
- It must take account of transboundary - often global - causes and implications of environmental degradation.
a. One action effects all - Although devided by political boundaries, this planet is united by ecological systems. Pollution damage is more often than not attributable to the cumulative effect of many activities, frequently occurs across national borders and affects victims in more than one country.
b. Complementary or harmonized action - All this adds up to the fact that the management and control of environmentally sustainable development transcends the scope of domestic legal systems, and calls for concerted, complementary or at least harmonized action at the supranational level - whether bilateral, multilateral, regional or global.
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Framework laws and regulations
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Why a country needs a framework law? ... read about Framework Law
Framework laws refer to environmental considerations regarding decision making
Conservation of the environment in framework legislation
Environmental quality standards
Licensing
Administrative sanctions
Environmental audits
Establishment of environmental units
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Harmonization of sectoral laws with framework laws
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The superimposition in recent times, of broad-based environmental laws upon the existing system of resource management legislation, based on sectoral responsibilities, has brought in its wake a number of legal problems of overlapping powers and functions, shared duties of several institutions, inconsistencies, and conflicting jurisdictions and legal provisions. All this makes for very poor enforcement of the laws and regulations that are meant to manage the environment.
Many countries are therefore now undertaking a review of the legislation dealing with various aspects of environmental management involving different sector such as Forestry, Land, Industry, Agriculture Marine resources, etc. to iron out the inconsistencies and harmonize the framework legislation with the sectoral laws.
Clauses attempt to harmonize different legislation
What is the role of judiciary in promoting the goals of sustainable development? - read about the role of judiciary
Jurisdictional issues
- A not appropriate jurisdiction - Forum non conveniens is a significance principle which can be employed by parties to litigation to argue that proceedings in a jurisdiction should be restrained on the basis that it is not the appropriate jurisdiction. Alternatively, a central factor in maintaining an argument based on forum non conveniens is that there is a separate more appropriate forum within which the matter can be dealt with.
1. Hurdles to stay local proceedings - In Australia, the High Court of Australia in Oceanic Sun Line Special Shipping Co Inc v. Fay declined to follow the English formulation of the forum non conveniens principle and adopted a test which places greater hurdles in the path of those seeking to stay local proceedings.
2. Appropriate foreign tribunal - The Court in that case stated: the power should only be exercised in a clear case and the onus lies on the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him. Ordinarily, a defendant will be unable to discharge that onus unless he can identify some appropriate foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the particular proceedings at the suit of the plaintiff.
- Appropriate forum for the trial of the action - Within
the United Kingdom, the principles applicable to a stay of proceedings
are those set out by the House of Lords in Spiliada Maritime Corporation
v. Cansulex Ltd. In that decision the House of Lords held that proceedings
in a domestic court may be stayed where a court is satisfied that
there is another available forum with jurisdiction "which is
the appropriate forum for the trial of the action, i.e., in which
the case may be tried more suitably for the interest of all the parties
and the ends of justice. It can be observed that this formulation
is different to the "clearly inappropriate" test which prevails
in Australia.
The general role of the judiciary and the legal aspects related to environment and sustainable development
- The role of judiciary and the law on sustainable development
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Sustainable development as social justice
- The Rio Declaration, issued at the 1992 Earth Summit, affirmed the importance of law, which reflects and shapes a society's norms, as a critical tool for sustainable development. It recognizes that in its simplest terms, sustainable development is a matter of social justice - giving what is due to each and every member of society now and in the future. This is the principle of intra and intergenerational equity. In this context we can consider a rights-based approach to environmental issues: People have a right to a healthy environment and governments have a duty to ensure that it is not violated. This inevitably shifts the role of law to a pivotal position as a tool of sustainable development.
Basic challenges to laws
- The aforementioned role of law provides at least three basic challenges to the legal system:
i. Uncertainty - First, coping with uncertainty, including operating with a long-term perspective;
ii. Effective preventive - Second, effectively preventing man-made environmental harm, as opposed to simply attempting to repair it; and
iii. Globalization - Thirdly, taking account of transboundary - often global - causes and implications of environmental degradation.
International law applicable for judicial practices
- Given the inclusion of by diplomats of the courts in the Rio Declaration, it is important for the courts to cite, employ and advance the substance of the Rio Principles - not least because doing so builds support in return for the judiciary. The Rio Principles define a content and a vision for sustainable development; they have been endorsed by most States internationally, and therefore courts may invoke them where relevant as part of the International Law that the courts apply.
Ordered and just society
i. The common foundation for sustainable development, in all its aspects, is an ordered and just society. The judiciary is essential to this purpose. Judges are the stewards and architects of order, equity and justice in a nation.
For enduring social
ii. The Rio Declaration on Environment and Development implicitly and explicitly recognizes those roles of the judiciary in furthering the processes and essential legal framework of the State, without which there can be no enduring social and environmental and economic improvement.
The role of court and judiciary
The right granted and responsibility imposed by judicial bodies
Environmental cases brought before judiciary
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Modalities for avoidance and settlement of disputes/conflicts
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There is a clear thrust today towards preventing environmental disputes at national, regional and global levels. The modalities used towards this end include the development and implementation of international environmental accords to address global and regional environmental concerns, early warning and assessment of environmental conditions and threats to alert policy makers and to facilitate the development of impact reduction strategies, as well as the development and implementation of national environment and development policies, procedures and strategies designed to prevent environmental disputes, but should they arise, to promote their effective and peaceful resolution.
New international legal norms and principles such as the polluter pays principle and the precautionary principle contribute to the prevention of environmental disputes. Though prevention of environmental disputes is the preferred option, it is inevitable that disputes will continue to arise. To facilitate expeditious resolution of such disputes, informal and formal approaches are applied. Informal approaches include mediation and conciliation while action before Tribunals and Courts are examples of formal dispute settlement mechanisms.
International court for the environment
- Permanent Court of Arbitration as proper forum
Appropriate forum to settle environmental disputes
- Until an International Environmental Court with mandatory jurisdiction comes into existence, the Permanent Court of Arbitration (PCA) at the Hague, could be the appropriate forum to settle environmental disputes. There are a good number of reasons which favor the PCA.
Acceptance of UN members
1. This institution, having its roots in the Hague Peace Conferences of 1899 and 1907, in particular the Conventions for the Pacific Settlement of International Disputes, is well recognized and accepted by numerous UN Member States.
A flexible and unique institution
2. The PCA is a very flexible and unique institution, because it offers facilities for four of the dispute settlement methods listed in Article 33 of the UN Charter, i.e., inquiry, mediation, conciliation and arbitration.
Financial support to States need financial help
3. The important issue of the extra financing required for a new Court for the Environment speaks in favor of the PCA with an existing administrative and logistical infrastructure. The PCA Financial Assistance Fund for the Settlement of International Disputes of 1995 grants financial support to States requiring financial help to meet the costs involved. In the future, this model should be extended also to Non-State-Actors.
A place to provide evidence of harm
4. The flexibility of the Court with regard to the place of arbitration should also be noted. In transitional environmental litigation, in particular, this place can be important in terms of providing evidence of the harm which has occurred. The parties can agree on it. Where there is no agreement, the arbitration shall take place at the Hague, the seat of the PCA.
Convincing governments to support
- The arduous task of convincing governments to support the idea of an International Environmental Court has yet to be undertaken. The increasing destruction of the environment, the growing consciousness of the public, as well as the progressive role of NGOs, will stress this procedure. All that remains to be done is to acknowledge categorically the indispensability of a separate International Environmental Court and to act swiftly to bring such court into existence.
Settlement of disputes and conflicts under environmental legislation
Avoidance of disputes and conflicts under environmental legislation
Environmental legislation invests decision-making powers in various officials. They are by law expected to exercise these powers bona fide and within the fundamental principles of natural law, such as hearing both parties to the dispute fairly and acting within the powers vested in the law. A party that is aggrieved by a decision taken could base the appeal on incomplete examination of facts or law, or both.
The appeals structure deals with the hierarchy of institutions, both within the executive and judicial arms of government, to which an aggrieved party can take their appeals. Generally, matters of law are taken before the Courts. Appeals on matters of fact are generally exhausted within the appeals structure of the executive, unless it is proved that there is a gross violation of the principles of natural justice.
The appealing against administrative orders
The right to appeal against judiciary decisions
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