Technical Assistance in Environmental Law and Institutional

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24 e PVI Division 44Environmental Management, Water,Energy, Transport

Technical Assistance in

Environmental Law and

Institutional Development

in Environment

Focus, Methodology, Resources


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Published by:

Deutsche Gesellschaft frTechnische Zusammenarbeit (GTZ) GmbHP.O. Box 5180, 65726 Eschborn, GermanyInternet: http://www.gtz.de

Division 44, Environmental Management,Water, Energy, Transport

Pilot Project Institutional Developmentin Environment (PVI)Wachsbleiche 1, 53111 Bonn, GermanyTel.: (+49) 0228 98533-0 / Fax: (+49) 0228 98570-18E-Mail: [email protected]

Author: L. Gndling

Responsible: W. Hamacher, S. Paulus, B. Winkler

Layout: D. Goldstein

Printed by: Universum Verlagsanstalt, 65175 Wiesbaden

Nominal fee: DM 10,-


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Preface

Management of environment and natural resources is one of the priority areas ofGerman Development Cooperation. In this context, the government of the FederalRepublic of Germany has supported the development of governmental and non-governmental environmental institutions in Developing Countries since the beginningof the Eighties.

Refinement and adaptation of environmental legislation is receiving increasing atten-tion within programmes of institutional development in the environment. Issues at sta-ke are e.g. elaboration of environmental framework legislation, definition of functionalroles at various administrative levels, definition of administrative procedures as wellas cooperation between relevant actors, legal aspects of environmental policy in-

struments and the integration of environment into various sectoral legislations.

This document, which was elaborated within the framework of the Pilot Project onInstitutional Development in the Environment (GTZ-PVI), wishes to present an over-view on issues relevant to environmental law. In addition, the paper is meant to be amethodological orientation for advisory services in the field of environmental legislati-on and contains a brief review of available expertise in Germany and abroad, inclu-ding a selected bibliography on environmental law.

In preparation of this paper a number of GTZ projects dealing with environmental ma-

nagement were requested to communicate their demand for advisory services in en-vironmental law. We wish to express our thanks for their inputs and comments andhope that the paper presented will serve as a useful orientation. In general, we wouldlike to encourage field staff and partners in Developing Countries to pave the waytowards environmental legislation for sustainable development.

Bonn/Eschborn, July 1998

Dr. H. P. Schipulle

Federal Ministry for Economic Cooperationand DevelopmentDivision 412, Environmental Protection,Natural Resources Management and Forestry

Dr. W. Morbach

Deutsche Gesellschaft fr TechnischeZusammenarbeit (GTZ)Division 44, Environmental Management,Water, Energy and Transport


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Contents

Preface.................................................................................................................................. IContents................................................................................................................................IIAbbreviations ........................................................................................................................III

1. Introduction .................................................................................................................11.1 Institutional development in the environment as consultancy field for technical

cooperation ............................................................................................................11.2 Environmental Law in the environment-and-development discussion...................4

2. Environmental law in developing countries ...........................................................62.1 The state of environmental law...............................................................................62.2 Relevance of environmental law issues in GTZ projects .....................................11

3. Basic elements of an effective environmental legal regime ..............................133.1 Structural issues ...................................................................................................133.2 Constitutional law..................................................................................................153.3 General environmental laws .................................................................................163.4 Laws on environmental quality management .......................................................193.5 Protection and use of natural resources ..............................................................223.6 Environmental policy instruments.........................................................................243.7 Enforcement of environmental law .......................................................................273.8 Environmentally-oriented sectoral law..................................................................303.9 International cooperation.......................................................................................31

4. Assistance with environmental law in technical cooperation projects oninstitutional development in the environment .....................................................32

4.1 Objectives and principles of technical assistance with environmental law.......... 324.2 Methodology for technical assistance with environmental law.............................334.3 Identification and use of environmental law expertise..........................................354.4 Resources for technical assistance with environmental law ...............................37

5. Conclusion.................................................................................................................42

Annex 1: Answers received from GTZ projects on institutional development

in the environment .............................................................................................43Annex 2: Resources for technical assistance with environmental law ............................50

a) Institutions providing technical assistance with environmental law............50b) Environmental law advisers........................................................................51c) International organisations providing technical assistance with

environmental law.......................................................................................56d) Environmental law information centres ......................................................56e) Index to basic environmental law materials................................................57f) Other Literature............................................................................................63


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Abbreviations

EIA Environmental impact assessment

EU European Union

FAO Food and Agriculture Organisation

GTZ Deutsche Gesellschaft fr Technische Zusammenarbeit

IDE Institutional Development in Environment

IMO International Maritime Organisation

IUCN The World Conservation Union (International Union for theConservation of Nature and Natural Resources)

MERCOSUR Mercado Comn del Cono Sur

NAFTA North American Free Trade Agreement

NEA National Environment Agency

NEAP National Environment Action Plan

NEMA National Environment Management Act

NGO Non-governmental organisation

NPSD National Plan for Sustainable Development

PVI Pilotvorhaben Institutionenentwicklung im Umweltbereich

TC Technical CooperationUNCED UN Conference on Environment and Development

UNDP UN Development Programme

UNEP UN Environment Programme

UNIDO UN Industrial Development Organisation

WHO World Health Organisation

WWF World Wide Fund for Nature


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1. Introduction

1.1 Institutional development in the environment as consultancy field

for technical cooperation

Since the beginning of the 1980s, the Federal Government has supported a growingnumber of developing countries (DCs) with building up governmental and non-governmental environmental institutions. This gave rise, on the part of the DCs,principally to a need for building up the technical infrastructure and for thecorresponding technical advice and training (institution building).

General Definition of Institutional Development in the EnvironmentBy institutional development in the environment (IDE) we mean the process in which the relevant actorsdevelop institutional structures which put them in a position independently to resolve environmentalproblems in the context of the tension among economic, social and ecological goals, and to takeecological perspectives into account in their dealings.

To the list of relevant actors belong the following:environmental organizations (for example ministries,agencies, etc., which function on various levels asimmediate bearers of corresponding institutionalstructures), those responsible for environmental problems(for example industries, transporters, land users), thosewho are affected by environmental problems (for example

urban populations, the poor), and other relevant actors (forexample sectoral ministries, technical service providers,NGOs, science, the media, etc.).

Institutionalstructures

Actors and Institutional Structures in the Field

Environmentorganizations

Those affected

Otheractors

Thoseresponsible

Institutional structures in the environment comprise all institutionalized procedures, instruments,incentives, communications media, etc. which drive the interplay of the relevant actors and have direct orindirect influence over the behavior of those responsible for environmental problems. Experience showsthat development of institutional structures in the environment sphere does not take place in a vacuum,but as part of a lengthy and by no means straight-line process. This is particularly the case withinstitutionalized rules for the following tasks:

environmental monitoring (for example emissions controls, air and water quality measurements,laboratories, remote sensing);

environmental planning and management (for example emissions inventions, environmentalinformation systems, EIA, land use and regional planning, as well as questions of decentralization,division of responsibilities)

environmental training, information and communication (for example education, awareness-building,environmental reporting, public participation, fora, advisory services, consensus-building processes);

environmental policy guidelines (for example limits, standards, targets, permit procedures,monitoring and compliance, market economic instruments, use rights, mediation);

cross-sectoral strategy development (for example integration of environmental perspectives intosectoral policies, policy EIA, NEAPs, NCS, NPSD, coordination).

In most DCs the process of institutional development in the environment is still just beginning. Relativelyyoung and weak environment ministries and agencies in complex surroundings, (sectoral ministries,federal structures, NGOs, associations, research and advisory institutions, etc.), fragmented and unclearcompetencies, intersectoral conflicts, insufficient human and financial capacities, deficient complianceand other factors contribute to the fact that the institutional landscape is not far from taking over the whole

spectrum of tasks described above.Special deficits exist in the area of environmental policy guidelines and cross-sectoral coordination,consensus-building and conflict resolution. Precisely in these areas is, however, the best potential forwin-win solutions.


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Source: GTZ 1996:4.


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Against a background of experience to date and the discussion around sustainabledevelopment there is agreement that technical cooperation must further developapproaches to institutional demands with a view to their workability and significanceto a broader conceptual basis and to projects for institutional development inenvironment. Above all it has to do with a stronger effort to take prevailing

environmental conditions and policy guildelines into account in the conceptual andstrategic orientation of projects, the specific search for starting points for possibilitiesfor exerting influence at the causal level, as well as the participation and networking ofrelevant actors. This demand is linked not only to the integration of new technicalelements in the corresponding advisory approaches, but also to a distinctive catalyticand process-oriented understanding of technical cooperation.

Principles for Fostering IDE Processes in the Context of Technical Cooperation

IDE projects should not gloss over questions of prevailing environmental policy conditions, policyguidel ines, and cross-sectoral strategy development, but rather specifically address them. This

includes beginning as far as possible on various levels particularly in view of several of the functionsmentioned above.

IDE projects should strive to have direct or indirect effect at the causal level. This assumes relativelycomplex target groups or intermediate structures, which should be reflected in an appropriatepartnership structure. Where institutional structures are to show an effect on those responsible forenvironmental problems, it is important to support all relevant actors in their particular roles and to givethem a share. To ensure this, projects should specifically promote network building, take advantage ofthe comparative strengths of individual actors, create structures for cooperation and support abalancing of interests.

GTZ should offer a diversified performance spectrum in IDE projects. The following components aresignificant here:

(a) environment-related technical advice to develop and test concepts for appropriate institutionalstructures;

(b) human resources development, to increase the availability of qualified personnel and relevantknowledge at all levels;(c) organization and management advisory services to strengthen the efficiency, functionality and collective

competence of the organizations involved;cooperation, communication and conflict resolution advisory services to promote networking andcooperation among different organizations and actors.

IDE projects should be based on a catalytic and process-oriented understanding of advisory services.This depends not only on technical input, but also on bringing into play participatory planning andconsultancy methods to promote participants learning processes.

Source: GTZ 1996:5

Talking here about about IDE consultancy approaches and projects does not mean

that a new, complete conceptual approach is being presented which could serve as amodel for all technical cooperation projects in this field. On the contrary it has to dowith an incremental understanding that consciously remains open to a situation-specific combination of technical, conceptual and methodological elements.

Institutions resonsible for environmental interests, whether national, regional or local,need a legal basis which establishes their tasks and authority. Environmentalinstitutions need instruments with which to guarantee environmental protection andthe maintenance and use of natural resources. These instruments need to be setdown multiple times in legal norms in order to be effective. Instruments forenvironmental protection must on the other hand be implemented. Theimplementation deficit in environmental law is almost proverbial. Legal questionspose themselves here: implementation can be enforced either directly by authoritiesor through the courts, which can at times be laborious. In addition to the authorities,


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individuals or associations can be granted rights to bring suit or to intervene.Frequently there are implementation problems in environmental law that go beyondthe legal sphere, such as financial or technical deficits, lack of appropriate training orpolitical will. The law alone cannot remedy them; it can however contribute to analysisof the difficulties and thus also to possible solutions to the problems.

1.2 Environmental Law in the environment-and-development discussion

Environmental law has played an important role in theUnited Nations EnvironmentProgramme (UNEP) since the beginning. Particular attention was paid toenvironmental law in developing countries. As early as 1975 the UN GeneralAssembly gave UNEP the task of supporting developing countries in buildingeffective environmental law. By the end of the 80s UNEP had provided assistance tomore than 50 developing countries in preparing their environmental laws.

The World Conservation Strategy published in 1980 by IUCN, UNEP and WWFlikewise emphasized the importance of legal instruments necessary for the realizationof the goals of the Strategy. Appropriately the Strategy contains the proposal toreview legislation on protection and use of natural resources and if necessary torevise it. The implementation problem is also stressed:

Special attention should be paid to the enforcement of conservation law.Enforcement is a multidisciplinary activity that should begin with the designof legislation. It is necessary but not sufficient to provide adequately

trained and funded personnel to implement and police the law. It is alsoimportant to make sure in advance that the law is ecologically and sociallyfeasible. Public education programmes may be required both before andafter the law comes into force to help the public understand and support it.If the law imoses undue hardship on a particular segment of society, thenmeasures to relieve that hardship may be needed. The effects and theeffectiveness of the law should be monitored so that, if necessary, the lawor its enforcement can be improved. (IUCN-UNEP-WWF 1980, Section11).

The World Charter for Nature set down fundamental principles and responsibilities

for the protection of the environment and natural resources. The World Charter assuch is admittedly not legally binding, although it has been given important status inthe further development of environmental law. It means, although in very generalterms, that the principles prescribed in the Charter must find expression in suitableform in the laws and in the behavior of each State as well as at the international level.It means as well that the stated goals for the maintenance of nature can only beachieved if the necessary means, programmes, and administrative structures arecreated.

The report of the World Commission for Environment and Development

(Brundtland Commission), published in 1987, formulated legal principles forenvironmental protection and sustainable development and included them in anannex to the report. At the core are the general principles, rights and responsibilities


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of States for the protection of humanity and the environment and for international andtransboundary environmental protection.

These works on legal principles also had a decided influence on the preparations forthe United Nations Conference on Environment and Development (UNCED)

which took place in Rio in 1992. The development of environmental law at the nationalas well as the international level was in the forefront and was intensively discussedduring the Conference. The Rio Declaration deals explicitly with environmental law.States are obligated to create effective environmental legislation. Environmentalstandards, management goals and priorities should be reflected in the environmentand development context in which they are applied.

Agenda 21 also gives environmental law special significance. Chapter 8 on theintegration of environmental protection and development in decision-making signifiesthat laws and regulations are important instruments for implementing environmental

and development policies. It is viewed as necessary to create integrated, applicableand effective laws and regulations. Compliance is also given special attention here. Itcalls for setting up programmes to ensure compliance with laws, regulations andstandards. Environmental law is also required to implement most internationalagreements at the national level.

Agenda 21 plans the following activities in connection with environmental law:

making laws and regulations effective; creating the preconditions for judicial and administrative procedures; making available legal information and support services; creating en environmental law training network; developing effective national programmes to review and strengthen compliance

with environmental law; examining legal compliance measures in connection with international

agreements which States have ratified.


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2. Environmental law in developing countries

2.1 The state of environmental law

Early trends

Inventories undertaken by the United Nations Environment Programme clearly showthat many developing countries have established their environmental legislation. Thislegislation may be classified as follows:

legal rules on protection against risks from environmental pollution;

legal rules on protection and use of natural resources; and legal rules establishing general instruments of environment protection, particularly

environmental planning and assessment and monitoring of environmentallyrelevant projects.

In the early days those legal rules were mainly laid down in specific or sectoralenvironmental laws which were far from being comprehensive in the sense that theyaddressed all environmental areas. In almost all countries laws and regulations hadconsiderable gaps. Therefore, a number of developing countries already in the 1970sand the 1980s decided to adopt general environmental framework laws in order toachieve some harmonization in environmental legislation and to meet the

requirements of effective environmental protection.

Environmental framework laws in developing countries up to 1992:

Colombia Cdigo Nacional de Recursos Naturales Renovables y de Proteccin al MedioAmbiente

1974

Malaysia Environmental Quality Act 1974Venezuela Ley Orgnica del Ambiente 1976Phillipines Environmental Code 1977China Environmental Protection Law 1979Sri Lanka National Environmental Act 1980Kuwait Law Regarding Protection of the Environment 1980

Cuba Proteccin del Medio Ambiente y del Uso Racional de los Recursos Naturales 1981Indonesia Act No. 40 1982Libya Legislative Act Concerning the Protection of the Environment 1982Pakistan Environmental Protection Ordinance 1983Senegal Environmental Code 1983Guatemala Ley de Proteccin y Mejoramiento del Medio Ambiente 1986India The Environment (Protection Act) 1986Gambia National Environment Management Act 1987Mexico Ley General del Equilibrio Ecolgico y la Proteccin al Ambiente 1988Peru Cdigo del Medio Ambiente y los Recursos Naturales 1990Zambia The Environmental Protection and Pollution Control Act 1990Mauritius The Environment Protection Act 1991

Bolivia Ley General del Medio Ambiente 1992Source:UNEP 1991(2); UNEP 1992; compilation by the author.


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Those early environmental framework laws varied considerably. Fairlycomprehensive laws providing for environmental institutions and environmentalinstruments co-existed with relatively short laws providing for nothing else than aninstitutional structure. In the latter cases the environmental institutions establishedwere hardly able to take effective action. Where those were able to function, their

activities were limited to consultations and rendering of recommendations. Examplesare abundant in many African countries where environmental ministries orenvironmental councils (National Environmental Councils) were established but couldnot be successful due to the lack of effective competences and of a functioninginstitutional structure.

Example: The Pakistan Environment Protection Ordinance 1983

The Pakistan Ordinance is an example of an early environmental framework law. It provided for theestablishment of an environmental council and an environmental agency at the federal level. Theenvironmental council, chaired by the state President, was given the responsibility to prepare a

comprehensive national environmental policy to ensure the conservation of natural resources, to ensurethat environmental aspects were integrated into development planning, to enforce environmental qualitystandards, and to control environmental impacts from all governmental agencies.

The environmental agency was established to implement the Ordinance, to prepare state of theenvironment reports, to decide on environmental standards, and to promote environmental information andenvironmental research.

Furthermore, the Ordinance provided for the basic elements of an environmental impact assessmentsystem at the federal level and included several general criminal provisions.

Practice under the Ordinance was somewhat sobering, essentially because the environmental council foryears simply was not convened. It was convened for the first time in 1991 - and held an informal meeting.The environmental agency or other governmental authorities could not take action either because they weredependent on the environmental council. The council did not delegate its powers - it could not do sobecause it was not convened. Therefore, the general opinion prevails that the Ordinance did not achieve itsobjectives. Furthermore it was criticized because it focused too much on pollution issues and neglected theproblems of the use of natural resources.

Source: Pakistan National Report to UNCED 1992.

Improved environmental framework laws

The trend to establish general environmental framework laws or to improve theexisting ones continued in developing countries through the beginning of the 1990s.Since 1990 new environmental framework laws have been adopted, inter alia, inBenin, Burkina Faso, Gambia, Jordan, Comores, Nepal and Vietnam. In even morecountries such environmental framework laws are under preparation or planned, forexample in Eritrea, Guinea-Bissau, Qatar, Mozambique, Pakistan, Romania, Syriaand Uganda.

Obviously adopting environmental framework laws is not the end of the process. Onthe contrary, such laws create a need for further environmental law work. In manydeveloping countries the framework laws are nothing more than the first step toestablish an environmental law system in a true sense. This is particularly the case incountries which were newly established or have successfully overcome war situations

or are countries in transition. Another aspect which will be of paramount importancein many countries is that the legal regime will need to be adapted to environmentalframework laws. The major problem will be to coordinate the competences of


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environmental agencies with those of other agencies which are also concerned withenvironmental matters. The specific issue clearly is coordination not only with regardto law-making, planning and licensing of investment projects but also with regard toenforcement. Environmental agencies do not substitute sectoral agencies which isclearly the experience of Gambia, India and Philippines. Mechanisms of cooperation

and coordination need to be developed.

Example: Environmental law in Gambia

In the 1970s and 80s Gambia developed a relatively active body of environmental legislation. In addition toseveral sectoral laws, a first National Environmental Management Act (NEMA) was adopted in 1987. Thislaw established environmental agencies - the National Environmental Council and the EnvironmentalCommittee - it also provided for basic obligations for environment protection and the use of naturalresources, even though in a very general form.

The law was completely revised and enlarged in 1994. The NEMA 1994 is an example of a comprehensiveenvironmental framework law aiming at the integration and harmonization of environmental law. The

National Environmental Council was retained; in addition the law provides for the establishment of anational environment agency, regulates the major instruments of environmental policy, namely planning,environmental impact assessment and enforcement, contains basic obligations of pollution control,protection of resources and the use of resources, and comprehensively addresses issues such asenvironmental reporting, environmental education and environmental awareness raising.

The environmental legal regime in Gambia consists of the following major laws:

National Environmental Management Act 1994

Public Health Act 1990National Water Resources Council Act 1979Hazardous Chemicals and Pesticides Control and Management Act 1994Environmental Protection (Protection of Dumping) Act 1988

Forest Act 1977Forest Regulations 1977Wildlife Conservation Act 1977Fisheries Act 1991Fisheries Regulations 1995

Physical Planning and Development Control Act 1990Land Use Regulations 1995State Lands Regulations 1995Development Control Regulations 1995Draft Plans Regulations 1995

Work on further development of environmental law needs to focus on the preparation of EIA regulations, therevision of forestry legislation, and the development of a water law and a law on waste management. Workis carried out by the newly established National Environment Agency which is supported by a GTZ project(Gambian-German Environmental Management Project, GGEMP).

Source of the laws: Environmental Laws and Regulations of The Gambia, compiled by the Gambian-GermanEnvironmental

Management Project (GGEMP), 1996.

Conservation and use of natural resources

In many countries legal rules are available which regulate the conservation and

sustainable use of natural resources, such as hunting, fisheries or forestry laws. Inmost cases, however, the laws have gaps; partly they are too rigid and thereforecannot be forced. There are also countries where legal rules on protected areas are


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not flexible enough. Often they do not differentiate between the various categories ofprotected areas and consequently do not allow for the necessary harmonization ofprotection requirements on the one hand and utilization needs on the other.

Hunting and protected area legislation in many developing countries often provided

restrictions or the use of or access to resources without taking into account existingrights or customs of local communities. Often there were no exceptions in favour oflocal communities, which resulted in difficulties where the local communities inquestion were dependent on the use of the resources. In these cases theinappropriate legislation itself was the very reason for the lack of enforcement; and atthe same time nature conservation and environment protection lost their credibilitywith the local communities.

A completely new challenge in conservation and sustainable use of natural resourcescomes up with the implementation of the Convention on Biological Diversity,

particularly its provisions on access to genetic resources. In almost all countriespioneering legal work needs to be done. Many countries will have particular need ofsuch rules because they are rich in genetic resources and may be particularlyinterested in the participation mechanism which the Convention provides. Accordingto the Convention, the country of origin of genetic resources has the right toparticipate in scientific research based on genetic resources and to share in thebenefits from the use of genetic resources (Article 15). In many countries work hasstarted to prepare inventories and strategies for the conservation and use ofbiological diversity, partly with support from UNEP and IUCN. Other countries andregions have begun to prepare legal rules on access to genetic resources, forexample the Andean Pact region and the Philippines.

Unwritten customary law

In some countries, particularly in Africa, the existence of customary laws createsparticular legal problems. On the one hand customary law is difficult to identify; on theother hand it may conflict with the objective of an ecologically sustainable use ofnatural resources. Customary laws pose particular problems where pressure frompopulation growth is high, which is the case in many developing countries.

Nevertheless, there can be no doubt that customary laws often contain concepts

which aim at using natural resources sustainably. This is the reason why thetraditional law of local communities should not only be taken into account but alsoused in environmental policy. The Convention on Biological Diversity recognizes thevalue of normative concepts of indigenous communities. Traditional (tribal) law inmany cases, particularly in rural areas, is the only functioning legal order; it would notmake sense at all to replace this order by a modern legal system. Finally, there arealso good reasons to build an environmental consensus on recognition andintegration of customary law.

Environmental impact assessment

In many countries there is a lack of functioning EIA procedures even though the legalbasis may be available either in specific laws or in environmental framework laws.This is the case for example of Pakistan, a country which in 1983 established a EIA


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system at the federal level that was never implemented in practice. The situation issimilar in Zambia where the environmental framework law of 1990 provided the EIAprocedure; the details of the regulations are currently in preparation. In Gambia, the1994 NEMA provides the basic rules on EIA; the detailed EIA regulations are beingdeveloped at the moment.

It may be fair to state that in many developing countries the framework for EIA isavailable whereas the detailed procedural regulations are still missing. Regulatoryoptions are either specific EIA laws or regulations or degrees which regulate thedetails. The legal regulations may be supplemented by guidelines which apply tospecific sectors.

Lack of environmental standards

Almost all developing countries lack environmental standards. This is a significant

deficit and handicap in licensing proceduresand also has negative impacts onenforcement measures. Licensing and enforcement authorities often face thesituation of having to prove a real or potential pollution case, but having noenvironmental quality standards on which to do so. International standards may berelied on in part; however, these standards often have gaps, are not appropriate, ortheir applicability is disputed in the country affected.

Environmental law enforcement problems in developing countries

As far as enforcement of environmental law is concerned, practical experience withtechnical assistance encounters well-known phenomena such as lack of political will,low standing of environmental policy, lack of resources (personal, technical andfinancial), or the insufficient state of information on environmental problems andenvironmental regulations. In a number of countries the low standing of the rule of lawas such has negative impacts on environmental law.

Reasons for enforcement deficits

lack of political will lack of public awareness and participation insufficient financial means insufficient trained personnel inappropriate legislation inefficient institutional structures bad planning insufficient integration of environmental considerations in economic and sectoral policies

Source: UNEP 1991 (2), p. 19 ss.

Particular problems in enforcing environmental law exist in countries which are in astate of transition with regard to their societal, economic and governmental order.Often those countries suffer from particularly dramatic environmental damages, forexample a number of countries in Eastern Europe and Central Asia. Issues of

economic recovery have priority and therefore the tasks of preparing environmentalpolicies, establishing environmental authorities, adopting environmental legislationand enforcing it, are particularly difficult.


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The situation is similar in those countries which suffered from civil wars, for exampleMozambique, Angola and Eritrea. Governmental, legal and economic structures needto be built from scratch. Here again it is obvious that economic growth has priority,leaving little room for ideas such as protection of the environment and sustainable

use of natural resources.

International cooperation

Developing countries often give a cool reception to international agreements onenvironment protection and nature conservation. There may be various reasons forthis. Often a sceptical attitude prevails because governments fear political constraintsfrom international agreements. Sometimes international agreements are consideredinstruments of industrial countries attempting to impose their values and interestsworldwide. Sometimes governments believe that they have not been involved

sufficiently in the making of international agreements. Governments may in additionfear that they cannot fulfil international obligations. There are also cases where evenmajor international agreements are simply not known. It is also being argued that it isdifficult to assess the scope, costs and benefits of ratifying or acceding tointernational agreements.

2.2 Relevance of environmental law issues in GTZ projects

All GTZ projects interviewed for the purpose of carrying out this study confirmed therelevance of environmental law issues (see Annex I for details). There are only fewprojects however, where environmental law issues were specifically addressed. Inmost project countries established environmental institutions have a legal basis,either in laws or regulations. An exception in this regard is a project in the Philippines.In this country the legal status of the Environmental Quality Council is underdiscussion and the discussion is fairly controversal. Often the competences ofenvironmental institutions are considered not to be sufficient. In some cases it isargued that the competences are splintered among specific environmentalinstitutions and sectoral institutions (Benin, Morocco). In others, the competence toenforce environmental laws is considered not to be sufficient, for example in India andthe Philippines. In these cases there is a need to strengthen inspection powers, to

make inspections more effective and faster, and to make inspection results bindingso that they can be challenged in courts.

In most project countries substantive environmental regulations are in place; often,however, regulations are rudimentary. Some projects point out gaps in environmentallegislation (Brazil, Russia) or at conflicts between existing legal regulations (Ecuador,India). Others indicate problems with environmental standards which are either non-existent, outdated, or inappropriate (Brazil/Alagoas, Morocco). The Morocco projectalso notes a discrepancy between environmental regulations and the general criminallaw; the latter should be harmonized with environmental regulations. The necessary

integration of environmental laws into other legal regimes is critically addressed in thereply from the Ecuador projects. A number of project countries report numerouslegislative initiatives in the environmental area (Benin, Ecuador, Morocco). In some


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cases general environmental framework laws are being prepared, in others work isgoing on on sectoral laws, such as water laws, air pollution control laws, wastemanagement laws, or laws on the protection and use of natural resources. Oneproject (Philippines) reports on the privatization of environmental management tasksand the use of economic instruments, the difficulty being that environmentally-friendly

behaviour needs to be ensured.

Enforcement of existing environmental regulations is a problem in all projectcountries. Enforcement of environmental law apparently needs to be improvedeverywhere. The reasons given for enforcement deficits vary however. Some projectcountries deplore the fact that personnel are not available (Benin, Ecuador), othersthe lack of well-trained personnel or good equipment (Brazil, India). Theenvironmental law enforcement deficit in some countries apparently has to do withsocietal problems such as corruption. Projects also mention the lack of political will(Brazil/Paran, Ecuador). Sometimes administrative procedures are either too

centralized or not sufficiently participatory (Ecuador, Russia, Morocco).Decentralizing decision-making to defer decisions to regional or local levels may helpin some cases. It is also being argued that decision-making procedures need to bemore open, allowing individuals or groups to participate. In one case issues withregard to indigenous populations are mentioned (Ecuador), recognizing however thatthe rights of indigenous populations have been strengthened.

The question of whether legal means and procedures may help to improveenforcement of environmental law is being answered differently. The project inEcuador for example reports that judicial dispute settlement may be difficult; on theother hand the projects in Brazil/Alagoas and in India have had encouraging

experiences with legal proceedings (particularly with citizen suits and suits byenvironmental organizations).

In general, the projects articulate a need for technical assistance in environmental lawto address the relevant legal issues. An exception may be the project in India whichapparently does not need legal technical assistance but rather needs scientifictechnical assistance. It may be assumed, taking into account the general experiencein India, that the available legal infrastructure is in place and may be used forenvironmental law projects.

In several cases however a need for technical assistance in environmental law isspecified. For example the project in Russia/Lake Baikal replied that internationalassistance should focus on general support of law-making, leaving the details,particularly the harmonization of the environmental legal regime to local lawyers. Inother cases, for example in Benin and Brazil/Paran, the replies point at the need ofenvironmental legal education. It is submitted that the most effective contribution totechnical assistance in environmental law may be the building of local legal know-how.


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3. Basic elements of an effective environmental legal regime

3.1 Structural issues

Regulatory levels

Environmental law raises difficult structural issues. First there are different regulatorylevels: international law; supranational economic integration organizations (EU,NAFTA, Andean Pact, MERCOSUR); national law; states or regions; municipalitiesand their associations. Often the division of competences between the various levelsis a problem; a classical issue is the question of whether or not the lower regulatory

level has powers to make and enforce laws if the upper level has taken action (mostimportant examples are the division of powers between the federal and the statelevels in Germany, or the relationship between the European Union and its MemberStates). In general the principle of subsidiarity applies, which means that the higherlevel only acts if there is a need for a general regulation at the higher level and if thisis more effective than regulation by the individual actors.

Law-making and enforcement

Law-making and law enforcement have to be differentiated as well. In many countries,and also with regard to the relationship between national law and international law,the rule is that environmental law is enforced at the lower governmental levels. Thisapplies to most areas of German environmental law which is adopted at the federallevel but in most cases enforced by the individual states. The situation is similar withregard to European environmental legislation; the directives and regulations adoptedby the European organs are enforced by the individual Member States.

Environmental law and general legislation

A major structural issue concerns the relationship between environmental law andother legal sectors. Environmental regulations are not only contained in specific laws

and regulations concerning the protection of the environment. Many other laws andregulations pertain in addition to these legal instruments such as constitutional law,laws and regulations concerning environmentally-relevant activities (mining, tourism,land use, etc.), and regulations concerning charges, taxes or subsidies. Taking thoseregulatory fields into account gives rise to difficult issues (which matters can beregulated in the clearest and most effective way at which level by which institution?).

Differentiation of environmental law

A major consideration concerns the relationship between the laws and regulations

within environmental law. Environmental law in most countries consists of manygeneral and specific legal regulations which co-exist. General legal regulations arethose which address all or essential cross-cutting issues of environmental protection;


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special legal regulations are those which concern the protection of individualenvironmental media or specific problems (environmental impacts from activities orproducts). In practice, many countries do not address the issue of the mostappropriate regulatory approach from an abstract effectiveness perspective. In manycases historical, political and legal structures play a role and need to be taken into

account when environmental law is developed. In almost all countries environmentallegislation started with adopting specific environmental laws, often regulationsconcerning public health (waste, sewage) and regulations to control air and waterpollution. The next phase saw the adoption of specific regulations on hazardousproducts or processes (for example, laws on chemicals, particular substances,nuclear energy production, or genetic engineering).

Following the phase of specific regulations, most countries have recognized the needfor harmonizing environmental law. This can best be done with general environmentallaws which either address all or cross-cutting issues, such as environmental impact

assessment. Interestingly, states with a rather developed environmental legal regimeface more difficulties in adopting general environmental laws. The best example maybe the Federal Republic of Germany where the introduction of a generalEnvironmental Act (part of an environmental code) has been discussed for decades.Often it is easier for developing countries to adopt general environmental legislation,although one must not overlook the fact that in many cases the laws and regulations toimplement the general laws are not yet in place.

There can be no doubt that both categories of environmental laws and regulations arenecessary. General laws need to address and uniformly regulate issues which arecommon to all areas of environment protection, such as the terms used (such as

environment, environment pollution, environment protection, environmental impact,environmental standard, environmental impact assessment, monitoring, biologicaldiversity, natural resources, and many others) or the establishment of procedures forprevention or control. Those basic issues should be uniformly regulated to the extentpossible. The procedures for environmental impact assessment as well as theconsiderations which guide environmental assessment decisions should be the sameeverywhere.

There is equally a need for specific environmental laws and regulations applying toindividual areas; those laws and regulations may govern either media or issues. It

should be recognized that both approaches have their advantages anddisadvantages. Laws governing media (air pollution control, water pollution control)allow for comprehensive protection taking into account all sources of pollution. Adisadvantage often is that application of the laws does not look beyond theenvironmental media in question. Regulations governing products or processes(chemicals, wastes, genetic engineering, industrial installations, nuclear energy) havethe advantage that they can take into account protection of all media (integratedenvironment protection). The limitation of this approach however is that only oneenvironment pollution source is being controlled.

The best success probably is being achieved by a combination of approaches. Inaddition to regulations concerning environmental media (protection of air, water andsoil), important problem areas (such as hazardous substances, wastes, genetic


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engineering or nuclear energy production) should be regulated in specific legalinstruments, leaving central and basic issues to a uniform general environmental law.

3.2 Constitutional law

There is agreement that the constitution of a country should address basic issues ofenvironmental protection. It should at least provide for the duty of the State to takeenvironmental protection measures and to ensure an environmentally-friendly andsustainable use of natural resources. A number of countries have provided theconstitutional right of every citizen to live in a decent environment. Such a fundamentalright may be complemented by a duty on every citizen not to damage the environmentand natural resources.

Constitutional law must address the division of responsibilities in environmentalmatters between the central government on the one hand and other levels of

government on the other. The division of competences is of particular importance infederal states. The constitution may also address the competences andresponsibilities of local governments, as the local level is increasingly important inenvironmental matters.

Examples: Europe

The Constitution of the Federal Republic of Germany is an example of what a constitution may provide as aminimum. Article 20 a, added to the Constitution in 1994, provides:

In fulfilling its responsibility for future generations the State shall protect the natural basis of life within theframework of the constitutional order through legislative means, executive measures and judicial review, in

conformity with legislation and legal rules.

The constitutional provision establishes the duty of the state to protect the environment; it does not providean individual right to a clean environment. This means that the duty of the state cannot be the basis of acourt case. Also important is the reference to existing legislation which provides the framework for anyenvironment protection measure taken by the administration. Another country where the constitutionalprovisions are similarly restrictive is The Netherlands.

Other countries in the European Union go further and provide a constitutional right to a clean environment.The constitution of Spain, for example, provides in its Article 45:

(1) "All citizens have the right to live in an environment condusive to the development of the individualpersonality, as well as the duty to protect the environment.

(2) The government supervises the rational use of all natural resources with the objective to protect andimprove the quality of life and to conserve and restore the environment. In doing so it relies on theindispensable solidarity within the society.

(3) For violations against the above provisions the law provides for criminal or as appropriateadministrative sanctions as well as for the obligation to compensate the damage caused.

Similarly the Portuguese Constitution provides an individual right to a clean environment.

Constitutional law can also address issues of information and participation of citizensor environmental associations. Constitutional provisions may also regulate access tojudicial remedies, whether for individual citizens or for associations. Such regulationscan strengthen environmental law enforcement. Clearly such issues can also be

regulated in statutory law. However, if they are included in the constitution they haveparticular weight.


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Example: Colombia

The Colombian Constitution of 1991 addresses environmental protection issues in a broad way whichgoes beyond guaranteeing the individual right to a clean environment. A series of environment protectionissues is addressed and thus regulated at the highest possible legal level. Article 8 provides the duty of thestate to protect the natural wealth of the nation. Article 58 stipulates that private property also has an

ecological function; a progressive defini tion of private property. Article 59 guarantees an individual right to aclean environment and places an obligation on the state to protect the environment in an integrated way.Article 67 contains the duty of the state to organize environmental education. Article 80 makes it a duty of thestate to plan and manage the use of natural resources in order to guarantee sustainable development.Article 86 contains mechanisms to protect and enforce individual rights. Article 95 provides the individualobligation to protect the countrys natural resources. Article 267 makes it a duty of the state to integrateenvironmental aspects in public finance. Governmental authorities at all levels, the central state, the region,and the communities are obliged to protect the environment. Development of economic policies must takeenvironmental aspects into account (Article 334). Furthermore the Constitution provides the obligation toprepare a National Development Plan which takes environment protection objectives into account (Art. 339).

3.3 General environmental laws

General environmental laws are those which regulate cross-sectoral environmentalissues in a unifom way. Such laws serve harmonization purposes and lay downguiding principles for all areas of environmental policy. Therefore, they are oftencalled environmental framework laws.

Establishment of environmental agencies

Environmental agencies at all levels of government (central government, regions,municipalities) need to have a basis in law. Most countries provide such a basiseither in sectoral or in framework laws. Laws provide for the establishment ofenvironmental agencies, define their tasks and competences, and regulate theirrelationships to other governmental agencies. It is very rare that environmentalagencies are given the full range of competences in environmental matters. In mostcases other agencies - sectoral agencies such as industry, mining, agriculture,forestry, fisheries, transport or public health authorities - also have environmentalcompetences.

Many developing countries favour the nodal agency model. Generally, this modelconcentrates cross-sectoral competences, such as environmental reporting,

environmental information systems, environmental awareness and environmentaleducation. In addition, such agencies fulfil advisory and coordinating functions inlicensing and EIA procedures, standard setting, environmental planning and policyformulation. Enforcement of environmental law under this model is the responsibilityof other agencies; e.g., water authority, forestry authority, etc. Equally important is theconflict resolution function for which it is crucial that the nodal agency is given somepower. It should be emphasized that it is not sufficient that such environmentalagencies are part of other agencies or are line ministries with the same rank asothers. Conflict resolution can work only if environmental agencies are somewhatabove other agencies. It is an advantage if environmental agencies report to the

head of state or the prime minister.


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Another type of environmental agency is the so-called enforcement agency model.Under this model the essential environmental competences are concentrated in theagency which also deals with law enforcement, i.e. adopting, implementating andenforcing regulations, setting standards, monitoring and control, licencing, planningand imposing sanctions. At first glance, this enforcement agency model seems to be

the preferable option since chances for effective enforcement seem to be high. Onthe other hand, however, establishing such administrative structures requires a majordecision which may be costly and politically difficult, the reason being that oftenstrong sectoral agencies deal with specific environmental tasks (e.g., water resourcemanagement) and are not prepared to give competences to other agencies.Therefore, in practice, the enforcement agency model remains an exceptional case(e.g., federal EPA in the US). In some countries environmental agencies are givenenforcement competences for certain areas. This is the case in India where thePollution Control Boards have relatively broad enforcement powers with regard towater and air pollution control.

Basic elements of an environmental framework law

1. Purpose of the law2. Definitions3. Fundamental rights and duties of environmental

protection and sustainable development4. Principles of environmental policy and law

precautionary principle polluter pays principle principle of cooperation public participation integration of environmental policy in other

policies international cooperation

5. Environmental authorities environmental council environmental agency scientific advisory board informal bodies or fora

6. Environmental instruments environmental fund monitoring environmental reporting environmental planning EIA inspection and control economic incentives

7. Basic elements of pollution control(management of environmental quality)

8. Basic elements of natural resourcemanagement9. Environmental awareness10. Environmental education11. Environmental research12. Enforcement

enforcement measures liability judicial review penalties and sanctions

13. Final provisions

Many countries have established other environmental institutions which are not line

agencies but rather serve advisory functions. This is the case with environmentalcouncils. The membership of such councils is representative in the sense thatmembers come from both governmental and non-governmental sectors. In addition totheir advisory function they may be in a position to organize a consensus within asociety which helps to avoid or resolve environmental conflicts. A typical task forthese institutions is the development of general environmental policies which provideguidance for all governmental activities in environment. Environmental councils havebeen established particularly in African countries, for example in Gambia, Malawi andUganda, countries where UNEP has provided technical legal assistance. Thecouncils established are composed of representatives from environmentally relevant

ministries. They prepare and adopt environmental policies, standards, proceduresand guidelines.


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Jordan and Eritrea follow a different model. The environment council established in1995 in Jordan and the proposed environmental council for Eritrea are not onlycomposed of governmental representatives but also of representatives fromacademics (research institutions and universities), the private sector and non-governmental organizations. With regard to these representative environmental

councils it is important to carefully consider the competences. Since they are notpurely governmental institutions, one may question whether typically governmentaltasks such as law-making and law enforcement are appropriate.

Establishment of environmental agencies is more than a legal issue. Also importantare practical considerations, policies and existing structures of public administration.Nonetheless law can make an important contribution to the establishment of effectiveenvironmental agencies. It is crucial to clearly divide the responsibilities ofenforcement agencies and those of environmental councils. Even more important is aclear division between enforcement agencies and sectoral agencies which also carry

out environmental protection tasks. Experience shows that responsibilities andcompetences often overlap, creating conflicts. Where general environmentalagencies coexist with sectoral agencies and where they fulfil coordinating functions,the definition of coordination must be made clear. This needs to be done withregard to both law-making and law enforcement. Coordination should be more than aword. Coordination undertaken by general environmental agencies should ensure thatgovernmental environmental policy is systematic and rational.

Guiding principles and instruments of environmental policy

General environmental laws should also lay down the guiding principles and major

instruments of environmental policy. Guiding principles of environmental policy whichshould be provided in all legal systems include:

the precautionary principle the polluter pays principle the principle of cooperation, and the principle to integrate environmental and development policies.

The major instruments of environmental policy in most countries comprise:

environmental planning environmental impact assessment monitoring of environmentally relevant activities, institutions and products control instruments (duties, prohibitions, incentives, sanctions, agreements,

licensing procedures, etc.) environmental information, education and training.

General environmental laws address principles and instruments of environmentalpolicy only in a basic form. They need to be regulated in more detail in specificenvironmental laws. General environmental laws are not substitutes for laws andregulations which either address the protection of environmental media or regulatehazardous products or processes.


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3.4 Laws on environmental quality management

Overview

The major objective of environmental law is to establish and enforce substantiveregulations concerning the protection of the environment and the ecologicallysustainable use of natural resources. This refers to the protection and rational use ofenvironmental media, soil, water and air, of nature and landscapes as well as floraand fauna and their components. A consistent system is hard to achieve, asexperience shows in many countries. There is probably no country so far which canclaim to have found a satisfying solution. One cannot escape the fact that manyindividual laws and regulations are necessary; overlaps may be unavoidable. Inaddition to laws and regulations which address protection of environmental media, itis necessary to develop legal regulations which concern individual activities orproducts. In almost all countries establishing specific provisions on the management

of wastes, chemicals and other hazardous materials is unavoidable. Such regulationsalmost by necessity overlap with provisions regulating the protection of certainenvironmental media. It is obvious that the purpose of laws on substances is nothingelse than the protection of environmental media. Also possible are overlaps ofpollution control regulations and regulations which aim at protecting naturalresources. Here again, the ultimate goal is the protection of soil, air, water, plants andanimals.

Regulations on wastes and waste water

In many countries regulations on wastes and waste water are part of public healthlegislation. Often this legislation is rudimentary and needs to be amended to providecomprehensive regulations.

A second option is to introduce independent legislation on solid waste and wastewater management. Most industrialized countries follow this model. And there aregood reasons to introduce separate waste management legislation: it makes itpossible to provide comprehensive regulations and to establish independentinstitutions.

A particular question is whether or not separate waste legislation should address

both solid waste and liquid waste. The answer to the question depends on thetechnical capacity for waste water treatment which exists in the country. If waste wateris not treated in treatment plants but rather collected and disposed of just as solidwaste, there may be good reasons to regulate both in one legal instrument. This maybe the situation in many developing countries.

Elements of waste management legislation

definitions responsibilities basic obligations (waste reduction and avoidance, recycling, safe disposal)

prohibitions of unsafe disposal waste management planning construction of waste treatment and waste disposal installations (licensing requirements,

environmental impact assessment)


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monitoring and inspection of waste treatment and waste disposal plants or installations international aspects (import and export of wastes) fees (enabling provisions) sanctions (administrative and criminal law sanctions).

Waste management legislation needs to differentiate between hazardous wastes andother wastes. There must be specific regulations on hazardous wastes . Thecomplexity of waste management problems may in any case lead to a differentiatedlegal regime. In all countries an attempt should be made to establish a general legalbasis for the management of wastes, i.e., a general waste management act. This actshould be implemented by more specific legal instruments.

Water resource management legislation

In many developing countries the availability of sufficient water resources and waterpollution control are problems which are as serious as those of waste management.

There are several options for regulating water resource management:

In many countries comprehensive legislation on water resource management hasbeen enacted. It addresses both availability of water and water pollution control.There are good reasons to address both issues in the same legal instrument, as bothaspects are interrelated. Sufficient water resources depend on measures for waterpollution control, and vice versa. Legal regulations will vary according to the political,legislative and administrative conditions in the country. From a legal technical point ofview it is possible to address the relevant issues in separate legal instruments.

Elements of water resource management legislation: scope (internal waters, ground waters, coastal waters) definitions basic obligations to use water resources sparingly and to control water pollution licence requirements for water uses (permits and licences or one single licence) requirements of waste water discharge, technical regulations concerning waste water, establishment

of waste water treatment facilities international aspects (transboundary waters, coastal waters, other marine areas under national

jurisdiction) fees (enabling provisions) sanctions (administrative and criminal law sanctions).

The example of the Federal Republic of Germany shows that water resourcelegislation may exist at various levels of government. National regulations may coexistwith state or regional regulations. Piecemeal regulations should be avoided.Management should follow the river basin approach wherever possible. Legalregulations should ensure integrated management of a river or watercourse basin.

Legislation on air pollution control

Air pollution is a problem particularly in urban centres in developing countries. Majorsources of air pollution are industrial installations, power plants and automobiles. The

legal regulations to protect the atmosphere should address all sources of pollutants,i.e., both stationary and mobile sources.


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Basic elements of air pollution legislation

definitions responsibilities prohibitions air pollution control planning licencing requirements for air polluting activities licencing procedures (including environmental impact assessment) standard setting notification requirements for low impact activities monitoring of air quality and control of pollution sources sanctions (administrative and criminal law sanctions).

Regulations on air pollution control may exist at the national level but also at theregional or local levels to the extent that the constitutional law of the country allows forlaw-making activities at the lower governmental levels.

Legislation on soil protection

Comprehensive legislation on soil protection hardly exists. In most countriesindividual activities, substances and products which may have impacts on the soil areaddressed in legislation. The lack of comprehensive legal regulations is remarkablegiven the fact that soil is as important to human life as are atmosphere and water.Nonetheless protection of the soil is a neglected area.

Example: Draft Federal Soil Protection Law

Part One: General regulations 1 Purpose of the law 2 Definitions 3 Scope

Part Two: Principles and obligations 4 Obligations to prevent risks 5 Restoration 6 Introduction of materials on or into the soil 7 Precautionary principles 8 Standards and requirements 9 Risk assessment and monitoring order 10 Other orders

Part Three: Complementary provisions on abandoned sites 11 Inventory 12 Information on stakeholder 13 Clean-up planning 14 Clean-up planning by governmental agencies 15 Governmental supervision, self-control 16 Complementary orders to cleanup abandoned sites

Part Four: Agricultural land use 17 Good agricultural practice

Part Five: Final provisions 18 Experts

19 Data transfer 20 Scientific advisory board 21 Hearings for concerned groups 22 State regulations


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23 Fulfilment of binding decisions of the European Community 24 National security 25 Costs 26 Fines

A law on soil protection should address all sources of soil pollution (activities,substances and products). Particularly important for soil protection is the control ofwastes, including the problems of abandoned dump sites and pollution fromagricultural activities. An example of a somewhat comprehensive soil protection lawis the soil protection bill which has been introduced in Germany.

Legislation on hazardous substances and hazardous activities

Legal regulations on substances and activities are desirable because they allow forintegrated, cross-media environmental protection. Waste management legislationhas already been mentioned as an example of such integrated legislation. Other

examples which are relevant to developing countries are chemicals and pesticideslegislation. One could add legislation on pharmaceuticals; here however the majoraspect is human health.

Examples of activities which may be regulated for environmental reasons and whichare relevant to developing countries are mining, tourism or the construction ofindustrial facilities. Environmental aspects of such activities are not regulated inseparate legal instruments; rather they are part of sectoral laws or regulations whichmeans that environmental aspects are dealt with in chemical, pesticides, tourism,mining or industrial installation legislation. Chemicals and pesticides may beregulated in the same piece of legislation which may be a framework law which isthen implemented by several regulations. An example is the recent chemicals andpesticides legislation in Gambia.

3.5 Protection and use of natural resources

Systematic aspects

In many countries the legal regulations concerning the protection and sustainable useof natural resources form a separate body of legal instruments. They are laid down in

numerous laws, for example, nature conservation laws, protected area laws, huntinglaws, fishery laws and forestry laws. Most of these laws are implemented piecemealthrough a variety of regulations and other administrative acts.

Practical experience shows that legal regulations have gaps and that the enforcementdeficit is considerable. Nature conservation and natural resources regulations coexistwith forestry, hunting and fishery regulations, which very often emphasize use ratherthan conservation.

The concepts of conservation and use of natural resources need to be integrated. On

the one hand species protection and protected areas legislation should allow for usewherever this is acceptable. On the other hand, hunting, forestry, and fishery


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legislation should integrate protection and sustainable use wherever necessary, bothat the planning level and at the level of individual decisions.

To some extent harmonization is possible, for example through the adoption ofgeneral nature conservation laws or laws on conservation of biological diversity. The

Convention on Biological Diversity, signed in 1992, will probably lead to more andmore comprehensive laws on biological diversity. However, there will always be aplurality of legal instruments, and the need to harmonize and coordinate legislationwill remain.

Coordination between agencies

The question of who is responsible for coordination is crucial. In most countriesresponsibility for the protection and use of natural resources is given to severaldepartments within agriculture ministries. Often these departments are strong

institutions which resist the idea of coordination. Sometimes they have strongambitions to take over the coordination functions. Therefore there are good reasonsto give the coordination function to an institution which is not a part of the traditionallystrong agriculture ministry. The general environment agency may be entrusted withcoordination, as it has coordination functions to fulfil anyway. It should not beoverlooked however that such arrangements may face difficulties.

Basic elements of legislation on protection and use of biological diversity

1. Purpose2. Definitions3. Responsible agencies

general agency special agency, for example for CITES scientific advisory board

4. Basic principles for protection and use5. Instruments

inventories monitoring planning EIA inspection and control economic incentives

6. Protected area system

7. Species protection8. Use of biological resources9. Basic principles on

hunting, fishery agriculture forestry tourism other

10. Access to biological and genetic resources11. Awareness raising12. Education13. Research14. International cooperation15. Financial means16. Enforcement17. Final provisions

Species protection, protected areas, overall protection measures

Species protection and the protection of particular areas require flexible regulationswhich ensure necessary protection on the one hand and allow for use of naturalresources on the other. Enforcement mechanisms are crucial. It is also important tointegrate the concept of conservation in all other relevant decision-makingprocedures.

Experience has shown that protection of natural resources cannot rely on species

protection and protected area measures alone. Such measures need to becomplemented by a general regime on conservation and sustainable use, applicableand respected in all sectors and affecting and guiding all activities.


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Such a comprehensive regime should make use of integrated planning. Planningprocedures should be provided in general nature conservation laws or laws onbiological diversity. Integrated planning means combining nature conservationplanning and use planning. Another instrument is environmental impact assessment

applying to all activities which may have impacts on nature and particularly onbiological diversity. Environmental impact assessment may be provided for in theenvironmental framework law of a country or in nature conservation or biodiversitylegislation.

Access to genetic resources

Increasingly important for conservation and sustainable use of natural resources isthe issue of access to genetic resources. It is a central issue in the Convention onBiological Diversity which is now ratified by more than 170 countries. The Convention

provides that parties shall have sovereign rights over genetic resources, that theydecide on access to those resources, and that they establish the conditions foraccess. The Convention however also contains an obligation on Parties to facilitateaccess to genetic resources. The Convention provides that access to geneticresources is subject to the prior informed consent of the country which providesgenetic resources. One of the most important aspects of the Convention accessregime is the obligation on all Parties to share the profits from genetic resources(principle of fair and equitable sharing). These fundamental provisions of Article 15 ofthe Convention need to be implemented at the national level; from a legal technicalpoint of view this is a difficult undertaking. It should be emphasized here that a regimeon access to genetic resources must be implemented not only in the country of origin

but also in the country which uses genetic resources. At the same time it is necessary- at least useful - that user countries establish legal regulations which complementand support the regulations in the countries of origin, particularly if the latter aredeveloping countries.

Technically, regulations on access to genetic resources may be included in a generallaw on biological diversity. It is also possible to develop a specific law on access togenetic resources. State practice offers examples of both options. In some cases,access regulations are being developed at the regional level, for example in theAndean Pact region.

3.6 Environmental policy instruments

The legal basis of environmental policy instruments (planning, control measures,incentives) may be laid down in environmental framework laws or in sectoral laws. Ingeneral more specific laws and regulations are required to implement them.

Environmental impact assessment

Environmental impact assessment is of major importance. The environmentalframework law or a specific environmental impact assessment law should provide thefollowing basic elements:


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requirement of EIA (general criteria or list of activities) responsibility for carrying out EIA simplified and comprehensive EIA procedure of developing and evaluating of EIA studies participation of agencies and general public in EIA effects of the EIA in the decision-making process administrative or judicial review of EIA ex-poste monitoring and control of EIA.

EIA procedures for which the basic elements have been included in a law need to beregulated in detail in regulations and guidelines. Criteria and procedures may bespecified for particular sectors.

Environmental standards

Environmental laws and regulations usually are general and do not regulate all details.It is therefore necessary to introduce environmental standards which regulate eitherenvironmental quality, emissions from installations, products or procedures. Legalissues may include the nature of the standards: whether they are legally binding, oronly recommendations. Another important question is the appropriate procedure forsetting environmental standards and whether and to what extent the general publicshould participate in the process. Developing country governments often questionwhich environmental standards are appropriate to their situations.

The purpose of environmental standards is to make environmental requirementsmore specific. To the extent that they provide an ecological minimum, it may be wiseto adopt legally binding provisions. Administrative instructions or binding regulationsmay be used. The scientific debate in recent years suggests that environmentalstandards are so important that they should be laid down in legally binding norms. Onthe other hand environmental standards should be flexible. This implies that though itis desirable to set binding norms, this should be done by the executive power ratherthan by the legislative power.

In the Federal Republic of Germany a particular problem exists with regard to the Eu-ropean Union. Directives of the Union adopted on the basis of the EC Treaty often

contain environmental standards which need to be implemented at the national level.According to the jurisprudence of the Court of Justice of the European Union, Euro-pean directives must be implemented through legally binding norms; implementationby administrative instructions is not sufficient. This has important consequences forthe Federal Republic of Germany where a number of environmental standards arecontained in the so-called Technical Instructions. The decisions of the EuropeanCourt of Justice have already had important consequences for German practice: theTechnical Instructions must be replaced by legal regulations. This development is aclear indication of the importance of environmental standards.

The legal nature of environmental standards has consequences for standard-settingprocedures. Where standards are set as legally-binding regulations, respective for-mal procedures and criteria need to be applied. In addition it should be taken intoaccount that standards are not only technical descriptions but political decisions at


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the same time. It is therefore important that procedures be developed which allow forpublic participation. There needs to be a consensus on such political decisons whichimplies at least informing the public concerning proposed standards. Even more ef-fective would be a possibility for the public to provide comments and recommendati-ons, which means that a consultation process should be built in.

In developing countries environmental standards are often not available, particularlywith regard to pollution control. Environmental agencies often have to specify requi-rements without having the necessary technical information. It is a serious problem inEIA procedures as well as with regard to control measures. Since standard settingprocedures may be lengthy and technically difficult, it may be wise to rely at least foran interim period on internationally-recommended standards, for example those pro-vided by organizations of the United Nations. In cases where international standardsdo not exactly address national conditions, it is therefore possible to modify and a-dapt them.

Given the importance of environmental standards and standard setting procedures, itis recommended that the legal nature of the standards as well as the procedures forsetting them are addressed in the countrys environmental framework law.

Economic incentives

Several decades of environmental law experience have clearly demonstrated thatcommand and control approaches need to be complemented by other instruments,particularly economic incentives. It should be emphasized here that alternative in-struments need a legal basis as well in order to be effective. A crucial problem is therelationship between these instruments and the traditional instruments of command

and control. Environmental taxes, charges or fees, as well as tax reductions or e-xemptions to promote environmental technology developments need to be regulatedin specific laws and/or general tax laws.

A number of countries have established specific financial mechanisms to supportenvironmental policy measures, particularly environmental funds. Environmental fundsrequire a legal basis as well to regulate administration of the fund and the use of thefinancial resources. Environmental audit, another economic instrument, requires legalregulation even if it is a voluntary mechanism (example, the European Union).

Instruments of environmental policycommand and control instruments

commands, prohibitions, standards inspection of existing instal lations and activi-

ties ex-poste orders licencing requirements for new installations

and activities EIA notification requirements for installations

and activities with low impacts

planning

economic incentives

flexible requirements (for example bubble con-cept)

tradable (pollution) licences fees, awards charges and taxes environmental funds subsidies tax exemptions and reductions rewards

liability environmental audits voluntary measures


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There is a consensus today that the alternative is not either command and control oreconomic incentives. Both types of instruments are necessary and do have theirspecific advantages and problems. In certain areas command and control isindispensable; in other areas economic incentives may be more effective thancommand and control. Both types of instruments complement each other.

3.7 Enforcement of environmental law

Enforcement deficits

It has been indicated above that deficits in enforcement of environmental law are notonly a problem of law. However, there is a legal dimension which needs to beconsidered here. Legal strategies and measures need to be developed to improveenforcement. First environmental law needs to be appropriate, which means legal

rules must be realistic. It is important that environmental law correspond to theproblems as well as the capacity of a country. It is also important that environmentallaw is made using transparent procedures which allow citizens and the private sectorto participate. Paying attention to both the content of the law and the procedures forlaw-making may help to reach a higher degree of acceptance which is a prerequisitefor effective enforcement of environmental law. In the US for example environmentalstandards are increasingly set using public policy mediation procedures.

Appropriate environmental law

Appropriate environmental law does not mean weak or ineffective environmentallaw. Rather it means that requirements contained in environmental law should not betoo rigid. There should be no standards and values which cannot be implemented.Another example is that economic uses in or around protected areas should not bepro

Documents

Technical Assistance in Environmental Law and Institutional