Law emerges from the cultural traditions and moral and religious values of each society. These traditions and values continue to impact the development of legal norms. In the context of environmental protection, cultures, religions and legal systems throughout the world contain elements that respect and seek to conserve the natural bases of life, maintaining concepts that can enhance and enrich the development of modern environmental law.
Beliefs supportive of environmental protection can be found in religious traditions from around the World representatives of Baha’ism, Buddhism, Christianity, Daoism, Hinduism, Islam, Jainism, Judaism, Shintoism, Sikhism, and Zoroastrianism who belong to the Alliance of Religions and Conservation, a non-governmental organization, and have found common ground in religious traditions for stewardship of the earth.
Ancient Buddhist chronicles, dating to the third century B.C. record a sermon on Buddhism in which the son of the Emperor Asoka of India stated that, “the birds of the air and the beasts have as equal a right to live and move about in any part of the land as thou. The land belongs to the people and all living beings; thou art only the guardian of it.”[i] Subsequently, the King initiated a legal system that continued to exist into the eighteenth century providing sanctuaries for wild animals.
Certain passages in the Judeo-Christian texts specify that humans do not own the earth and its resources. The Jewish law provided for conservation of birds (Deut. 22:6-7) protection of trees during wartime (Deut. 20:19), and regulated the disposal of human waste (Deut. 23:13). The Christian tradition allows that man’s dominion over nature includes a competence to use and manage the world’s resources in the interests of all, being ready to help others in case of necessity. Individual title thus imposes a responsibility and a trust.
In 1983, Muslim experts undertook a study of the relationship between Islam and environmental protection[ii]. The results underscored that man is a mere manager of the earth and not a proprietor; a beneficiary and not a disposer. Man has been granted inheritance to manage and utilize the earth for his benefit, and for the fulfillment of his interests. He therefore has to keep, maintain and preserve it honestly, and has to act within the limits dictated by honesty. Each generation is entitled to use nature to the extent that it does not disrupt or upset the interests of future generations. Islamic principles thus envisage the protection and the conservation of basic natural elements, making protection, conservation and development of the environment and natural resources a mandatory religious duty of every Muslim. In a case, the Pakistani Court analyzed the fact that Islamic Law prohibiting unnecessary hunting and killing of birds and animals when a constitutional petition sought an order to ban various hunts under Articles 18 and 199 of the Constitution[iii]. The court agreed that unnecessary hunting and killing is against the injunctions of Islam and the Constitution, but found that a blanket prohibition for hunting or killing all animals and birds could not be granted.
Many traditional communities, forest dwellers, and subsistence hunting and farming communities have long engaged in sustainable practices and developed unique knowledge about their environments and their resources. Examples include the irrigation practices of the Inca, the forest gardens of the hill country of Sri Lanka and the practices[iv]. African traditional wisdom, Melanesian, native Australian, Polynesian, Asian, Amerindian and early European traditions all contain principles relevant to environmental justice and sustainable development. In addition, many traditional societies have a unique relationship with the land, which they view as capable of use only, not ownership. Some view the earth in its entirety as a living organism capable of injury and hurt. Areas or resources may be protected by being designated as sacred or taboo.
Many indigenous people have a special relationship with the land and the environment in which they live. As noted by the UN Special Rapporteur Ms. Fatma Zohra Ksentini: in nearly all indigenous cultures, the land is revered; “Mother Earth” is the core of their culture. The land is the home of the ancestors, the provider of everyday material needs, and the future held in trust for coming generations.
According to the indigenous view, land should not be torn open and exploited–this is a violation of the Earth–nor can it be bought, sold or bartered. Furthermore, indigenous peoples have, over a long period of time, developed successful systems of land use and resource management. These systems, including nomadic pastoralism, shifting cultivation, various forms of agro-forestry, terrace agriculture, hunting, herding and fishing, were for a long time considered inefficient, unproductive and primitive.
However, as world opinion grows more conscious of the environment and particularly of the damage being done to fragile habitats, there has been a corresponding interest in indigenous land-use practices. The notion of sustainability is the essence of both indigenous economies and their cultures.
At the international level, ILO Convention No.169 on Indigenous Peoples and Article 8 of the Convention on Biological Diversity contain provisions protecting the traditional lifestyles and knowledge of indigenous peoples and local communities National or local laws and policies may protect or may adversely affect marginalized and disadvantaged communities, especially indigenous or tribal communities following traditional life styles. In some instances, indigenous people have been forced from their traditional lands to make way for development projects, or have found that resources have been exploited, including deforestation of their traditional lands. Some indigenous people have seen their traditional lands declared protected areas where they are no longer permitted to live.
Enforcing traditional laws and norms that guarantee or protect the land and resource rights of such communities has been an important means of ensuring environmental protection in some jurisdictions. There are examples of cases where indigenous lands have been protected as public goods with a special protection regime; any alteration of the native territories and of the nearby water resources violates the spirit and the letter of the constitutional laws.[v]
At the same time, the practices of indigenous communities may conflict with modern laws to protect particular areas or species. Indigenous populations often retain the right to continue subsistence hunting of endangered species such as polar bears, seals, and whales captured by traditional means, but quotas on takings and restrictions on commercial use may be imposed. When the use of animals, plants or sites is based upon religious beliefs as well as traditional culture, courts will often be asked to apply constitutional or other legal protections of religious liberty pursuant to which indigenous people may under some circumstances be exempted from the application of environmental laws.
The judiciary in various countries has at times drawn upon its national or cultural heritage to develop and apply principles that enhance environmental justice and sustainable development. The extent to which such considerations can be taken into account is necessarily a function of the law and jurisprudence of each jurisdiction, but recent national and international case law provides examples where current environmental norms have been interpreted in the light of traditional wisdom[vi].
[i] The Mahavamsa, or the Great Chronicle of Ceylon, Chap. 14, quoted in I.C.J., Case Concerning the
Gabçikovo-Nagymaros Project on the Danube, Sept. 25, 1997, Sep. Op. of Judge C. Weeramantry, n. 44
[ii] Islamic Principles for the Conservation of the Natural Environment (IUCN Environmental Policy and Law
Paper 20, 1983).
[iii] M.D. Tahir v. Provincial Government & Others, 1995 CLC 1730
[iv] Abdikadir Sheikh Hassan and others v. Kenya Wildlife Service (High Ct. Kenya, Civil Case No.
[v] Raul Arturo Rincon Ardila v. the Republic of Colombia (Constitutional Court, April 9, 1996) and Ministerio
Publico v Federal Union of Brazil (Fed. Court, State of Mato Grosso, 1998)
[vi] The separate opinion of Judge Weeramantry, in the Gabcikovo-Nagymaros Case, and Bulankulama v. The
Secretary, Min. of Industrial Development (the Eppawela case).
- Category: Environmental Law
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What is International Environmental Law?
Is Environmental Law a self-contained discipline? Or does it have its own sources and methods of law-making deriving from principles peculiar or exclusive to environmental concerns?
A number of preliminary problems arise in any attempt to identify “international environmental law”. Some scholars have avoided the use of the term, arguing that there is no distinct body of international environmental law with its own sources and methods of law-making deriving from principles peculiar or exclusive to environmental concerns. Rather, they stress that such relevant law as does exist originates from the application of general rules and principles of classical or general international law and its sources.
Thus international environmental law is nothing more, or less, than the application of international law to environmental problems.
Whatever the case may be, at this juncture, it should be noted that this over-emphasis on the role of general International law will not have the worsening effect on the environmental problems since the traditional legal order of the environment is essentially a laissez-faire system oriented toward the unfettered freedom of states.
The next issue is verifying whether currently there is a body of law more specifically aimed at protecting the environment or not?
While it is unquestionably correct that international environmental law is merely part of international law as a whole, rather than some separate, self-contained discipline, and no serious lawyer would suggest otherwise, the problem with over-emphasizing the role of general international law, as one writer points out, has been that the traditional legal order of the environment is essentially a laissez-faire system oriented toward the unfettered freedom of states. Such limitations on freedom of action as do exist have emerged in an ad hoc fashion and have been formulated from perspectives other than environmental.[ii] To try to overcome these inadequacies, as environmental problems have worsened, it has become necessary to develop a body of law more specifically aimed at the protection of the environment.
A study of contemporary international environmental law thus requires us to consider both this new body of specifically environmental law and the application of general international law to environmental problems. Moreover, international environmental law also includes not only public international law, but also relevant aspects of private international law, and in some instances has borrowed heavily from national law.
Now, taking the above facts for granted, let us proceed to address issues in regard to how to define International Environmental Law.
International Environmental law is thus used simply as a convenient way to encompass the entire corpus of international law, public and private, relevant to environmental issues or problems, in the same way as the use of the terms law of the sea, Human Right law, and International Economic Law is widely accepted.
It is not intended thereby to indicate the existence of some new discipline based exclusively on environmental perspectives and strategies, though these have played an important role in stimulating legal developments in this field, as we shall observe. It has become common practice to refer to international environmental law in this way.
What is National Environmental Law?
In the context of the Ethiopian legal system, National environmental law includes the provisions concerning the environment in the 1995 FDRE constitution; different environmental treaties ratified by the House of Representatives according to Art. 9 (4) of our constitution and all laws (federal and regional) concerned with the environment (Forestry, Land, Water use and other sectoral laws).
Factors that Gave Rise to Environmental Law: National and International Perspective
At this point before we try to see the evolution of environmental law both at international and national levels; it would be appropriate to see the factors that gave raise to their emergence. Accordingly, many environmentalists agree that the following factors gave rise to the emergence of environmental law:[iii]
First is the existence of an extensive range of environmental problems.
These include atmospheric pollution, marine pollution, global warming and ozone depletion, the danger of nuclear and other extra-hazardous substances and threatened wildlife species. Such problems have an international dimension in two obvious respects.
(1). Pollution generated from within a particular state often has a serious impact upon other countries. The prime example would be acid rain, whereby chemicals emitted from factories rise in the atmosphere and react with water and sunlight to form acids. These are carried in the wind and fall eventually to earth in the rain, often thousands of miles away from the initial polluting event.
(2). The fact that these environmental problems cannot be resolved by states acting individually. Accordingly, co-operation between the polluting and polluted state is necessitated.
However, the issue becomes more complicated in those cases where it is quite impossible to determine from which country a particular form of environmental pollution has emanated. This would be the case, for example, with ozone depletion.
Second, the question of the relationship between the protection of the environment and the need for economic development is another factor underpinning the evolution of environmental law.
The correct balance between development and environmental protection is now one of the main challenges facing the international community and reflects the competing interests posed by the principle of state sovereignty on the one hand and the need for international co-operation on the other. It also raises the issue as to how far one takes into account the legacy for future generations of activities conducted at the present time or currently planned.
Historical Development of International Environment Law
Throughout history national governments have passed occasional laws to protect human health from environmental contamination. For example, in about 80 AD the Senate of Rome passed legislation to protect the city’s supply of clean water for drinking and bathing. In the 14th century England prohibited both the burning of coal in London and the disposal of waste into waterways.
In 1681 the Quaker leader of the English colony of Pennsylvania, William Penn, ordered that one acre of forest be preserved for every five acres cleared for settlement, and, in the following century, Benjamin Franklin led various campaigns to curtail the dumping of waste. In the 19th century, in the midst of the Industrial Revolution, the British government passed regulations to reduce the deleterious effects of coal burning and chemical manufacture on public health and the environment.
Yet, despite this long history of environmental legislation, the field of environmental law is remarkable for its relative youth and its rapid rise to prominence beginning in the late 20th century.
Prior to the 20th century, there were few multilateral or bilateral international environmental agreements. The accords that were reached focused primarily on boundary waters, navigation, and fishing rights along shared waterways and ignored pollution and other ecological issues. In the early 20th century, conventions to protect commercially valuable species were reached, including the Convention for the Protection of Birds Useful to Agriculture (1902), signed by 12 European governments; the Convention for the Preservation and Protection of Fur Seals (1911), concluded by the United States, Japan, Russia, and the United Kingdom; and the Convention for the Protection of Migratory Birds (1916), adopted by the United States and the United Kingdom (on behalf of Canada) and later extended to Mexico in 1936.
Beginning in the 1960s environmentalism became an important political and intellectual movement in the West. In the United States biologist Rachel Carson’s Silent Spring (1962), a passionate and persuasive examination of chlorinated hydrocarbon pesticides and the environmental damage caused by their use, led to a reconsideration of a much broader range of actual and potential environmental hazards. In subsequent decades the U.S. government passed an extraordinary number of environmental laws—including acts addressing solid-waste disposal, air and water pollution, and the protection of endangered species—and created an Environmental Protection Agency to monitor compliance with the laws. These new environmental laws dramatically increased the national government’s role in an area previously left primarily to state and local regulation.
In Japan rapid post-World War II reindustrialization was accompanied by the indiscriminate release of industrial chemicals into the human food chain in certain areas. In the city of Mina Mata, for example, large numbers of people suffered mercury poisoning after eating fish that had been contaminated with industrial wastes. By the early 1960s the Japanese government had begun to consider a comprehensive pollution-control policy, and in 1967 Japan enacted the world’s first such overarching law, the Basic Law for Environmental Pollution Control. Not until the end of the 20th century was Mina Mata declared mercury-free.
Following the United Nations Conference on the Human Environment, held in Stockholm in 1972, the UN established the United Nations Environment Programme (UNEP) as the world’s principal international environmental organization. Although UNEP oversees many modern-day agreements, it has little power to impose or enforce sanctions on non-complying parties.
Nevertheless, a series of important conventions arose directly from the conference, including the London Convention on the Prevention of Pollution by Dumping of Wastes or Other Matter (1972) and the Convention on International Trade in Endangered Species (1973).
Until the Stockholm conference, European countries generally had been slow to enact legal standards for environmental protection though there had been some exceptions, such as the passage of the conservationist Countryside Act in the United Kingdom in 1968. In October 1972, only a few months after the UN conference, the leaders of the European Community (EC) declared that the goal of economic expansion had to be balanced with the need to protect the environment. In the following year the European Commission, the EC’s executive branch, produced its first Environmental Action Programme, and since that time European countries have been at the forefront of environmental policy making. In Germany, for example, public attitudes toward environmental protection changed dramatically in the early 1980s when it became known that many German forests were being destroyed by acid rain.
The environmentalist German Green Party, founded in 1980, won representation in the Bundestag (national parliament) for the first time in 1983 and since then has campaigned for stricter environmental regulations. By the end of the 20th century, the party had joined a coalition government and was responsible for developing and implementing Germany’s extensive environmental policies. As a group Germany, The Netherlands, and Denmark—the so-called “green troika”—established themselves as leading innovators in environmental law.
During the 1980s the “trans-boundary effects” of environmental pollution in individual countries spurred negotiations on several international environmental conventions. The effects of the 1986 accident at the nuclear power plant at Chernobyl in Ukraine (then part of the Soviet Union) were especially significant. European countries in the pollution’s downwind path were forced to adopt measures to restrict their populations’ consumption of water, milk, meat, and vegetables. In Austria traces of radiation were found in cow’s milk as well as in human breast milk. As a direct result of the Chernobyl disaster, two international agreements—the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of Nuclear Accident or Radiological Emergency, both adopted in 1986 were rapidly drafted to ensure notification and assistance in the event of a nuclear accident. In the following decade a Convention on Nuclear Safety (1994) established incentives for countries to adopt basic standards for the safe operation of land-based nuclear power plants.
There are often conflicting data about the environmental impact of human activities, and scientific uncertainty often has complicated the drafting and implementation of environmental laws and regulations, particularly for international conferences attempting to develop universal standards. Consequently, such laws and regulations usually are designed to be flexible enough to accommodate changes in scientific understanding and technological capacity. The Vienna Convention for the Protection of the Ozone Layer (1985), for example, did not specify the measures that signatory states were required to adopt to protect human health and the environment from the effects of ozone depletion, nor did it mention any of the substances that were thought to damage the ozone layer.
Similarly, the Framework Convention on Climate Change, or Global Warming Convention, adopted by 178 countries meeting in Rio de Janeiro at the 1992 United Nations Conference on Environment and Development (popularly known as the “Earth Summit”), did not set binding targets for reducing the emission of the “greenhouse” gasses thought to cause global warming.
In 1995 the Intergovernmental Panel on Climate Change, which was established by the World Meteorological Organization and UNEP to study changes in the Earth’s temperature, concluded, “The balance of evidence suggests a discernible human influence on global climate.” Although cited by environmentalists as final proof of the reality of global warming, the report was faulted by some critics for relying on insufficient data, for overstating the environmental impact of global warming, and for using unrealistic models of climate change. Two years later in Kyoto, Japan, a conference of signatories to the Framework Convention on Climate Change adopted the Kyoto Protocol, which featured binding emission targets for developed countries, a system whereby developed countries could obtain credit toward their emission targets by financing energy-efficient projects in less-developed countries (known as “joint implementation”), clean-development mechanisms, and emissions trading.
Historical Development of Environmental Law in Ethiopia
One could say environmental issues came to the forefront in Ethiopia at the wake of 1974 and 1984 draught because it was believed that the draught was the result of agricultural degradation or environmental mismanagement.
But, here, it is good to keep in mind that this doesn’t mean that there was no environmental management before the above mentioned draught. Rather, there were fragmented environmental management activities in Ethiopia like the establishment of Semen National Park, Awash National Park and other wildlife protections though these were individual cases and nota holistic approach to the problem.
Environmental management was also practiced before the above-mentioned draughts at the community level though it was not reflected in the drafting of the law. It is just like soil preservation methods and others. Usually the practice was Top down Approach rather than bottom up approach.
The other reason for the coming to the forefront of environmental issues (other than the draught )was international pressure from the international community, like the Rio Conference in 1992 (since Ethiopia was one of the participants of the conference). Currently, we find a legal basis for national environmental law in our FDRE Constitution.
For example, the FDRE Constitution reads as:
1). All persons have the right to clean and healthy environment.
2). All persons who have been displaced or whose livelihoods have been adversely affected as a result of state programmes have the right to commensurate monetary or alternative means of compensation, including relocation with adequate state assistance.
Equally Art.92 of the same constitution further provides that:
1). The government shall endeavor to ensure that all Ethiopians live in a clean and healthy environment.
2). The design and implementation of programmes and projects of development shall not damage or destroy the environment.
3). People have the right to full consultation and to the expression of views in planning and implementation of environmental policies and projects that affect them directly.
4). The government and citizens have the duty to protect the environment.
The Environmental Policy of Ethiopia (EPE) is taken from Vol.II of the Conservation Strategy of Ethiopia (CSE) and is sought to guide all environmental related activities that are undertaken or must be undertaken by the Environmental Protection Authority and other sectors.
The CSE document consists of five volumes:. These are: Vol. I, the Natural Resources Base, Vol. II, Policy and Strategy, Vol. III, Institutional Frame Work, Vol. IV the Action Plan and Vol. V, Compilation of Investment Programmes.
EPE took 10 years to develop. It was approved by the Council of Ministers of the Federal Democratic Republic of Ethiopia on April 2, 1997. It was externally driven by the World Bank. It was consultative in identification of problems with the concerned bodies like investment office and others. Currently every region in Ethiopia has its own Conservation Strategy.
The policy has a Policy Goal, Objectives and Guiding Principles.
The overall policy goal is:
To improve and enhance the health and quality of life of all Ethiopians and to promote sustainable social and economic development through the sound management and use of natural, human-made and cultural resources and the environment as a whole so as to meet the needs of the present generation without compromising the ability of future generations to meet their own needs.
EPE also has specific policy objectives and key guiding principles. Underlying these broad policy objectives is a number of key principles. Establishing and clearly defining these guiding principles is very important, as they will shape all subsequent policy, strategy and programme formulations and their implementation. Sectorial and cross-sectorial policies and environmental elements of other macro policies will be checked against these principles to ensure consistency.
Levels of Environmental Law
Environmental law exists at many levels and is only partly constituted by international declarations, conventions, and treaties. The bulk of environmental law is statutory—i.e., encompassed in the enactments of legislative bodies—and regulatory—i.e., generated by agencies charged by governments with the protection of the environment.
In addition, many countries have included some right to environmental quality in their national constitutions. Since 1994, for example, environmental protection has been enshrined in the German Grundgesetz (“Basic Law”), which now states that the government must protect for “future generations the natural foundations of life.” Similarly, the Chinese constitution guarantees to each citizen a “right to life and health” and requires the state to ensure “the rational use of natural resources and protects rare animals and plants”; the South African constitution recognizes a right to “an environment that is not harmful to health or well-being; and to have the environment protected, for the benefit of present and future generations”; the Bulgarian constitution provides for a “right to a healthy and favorable environment, consistent with stipulated standards and regulations”; and the Chilean constitution contains a “right to live in an environment free from contamination.”
Much environmental law also is embodied in the decisions of international, national, and local courts. Some of it is manifested in arbitrated decisions, such as the Trail Smelter arbitration (1941), which enjoined the operation of a smelter located in British Columbia, Canada, near the international border with the U.S. state of Washington and held that “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein.”
The Role of International and National Laws in the Protection of the Environment
A law is society’s system for weighing different interests, goals, and values, and for making decisions when conflicting interests cannot be reconciled in other ways. It is based mainly on political decisions and guidelines in the form of legislation and on society’s general values or ethical norms. So, a law is formed by the legal system itself, with its own norms and values.
By the legal system it meant, institutions or arenas dominated by lawyers and legal methodology: legal doctrine and education, and legal practice within and outside the courts.[x]
The role of the law in protecting the environment is not fundamentally different in both international and national law. Accordingly,
First, it provides mechanisms and procedures for negotiating the necessary rules and standards, settling disputes, and supervising implementation and compliance with treaties and customary rules.
Second, it is concerned with regulating environmental problems, setting common standards and objectives for prevention or mitigation of harm, and providing a flexible rule-making process that allows for easy and regular amendment in the light of technological developmenst and advances in scientific and other knowledge.
Third, reinstatement of or compensation for environmental damage is a more limited but still important function.
It is more limited because only those who suffer damage can secure such redress and also because not all-environmental damage is necessarily capable of reinstatement or has an economically assessable value.
Finally, it benefits or keeps accountable individuals.
Does the Existing Environmental Law Adequately Protect the Environment?
This is an important question to which there is no easy or single answer. Whether the protection offered to the environment by both international and national law is adequate in scope and stringency is of course a value judgment, which will depend on the weight given to the whole range of competing social, economic, and political considerations.
As far as measuring the effectiveness of the law in protecting the environment is concerned, much depends on the criteria used.
Effectiveness has multiple meanings:
First, it may mean solving the problem for which the regime was established (for example, avoiding further depletion of the ozone layer);
Second, achievement of goals set out in the constitutive instrument (for example, attaining a set percentage of sculpture emission);
Third, altering behavior pattern (for example, moving from use of fossil fuels to solar or wind energy production);
Finally, enhancing national and international compliance with rules and international agreements.
By way of conclusion we have to keep in mind that the effectiveness of different regulatory and enforcement techniques are largely determined by the nature of the problem. What works in one case may not work in others.
A legal definition of the environment helps delineate the scope of the subject, determine the application of legal rules, and establish the extent of liability when harm occurs. The word environment is derived from an ancient French word environner, meaning to encircle. By broadly applying to surroundings, environment can include the aggregate of natural, social and cultural conditions that influence the life of an individual or community. Thus, environmental problems can be deemed to include such problems as traffic congestion, crime, and noise. Geographically, environment can refer to a limited area or encompass the entire planet, including the atmosphere and stratosphere (Judicial Handbook on Environmental Law (UNEP, 2005).
Of course, defining an Environment is not an easy task. Most treaties, declarations, codes of conduct, guidelines, etc. don’t attempt to define it directly. No doubt this is because it is difficult both to identify and to restrict the scope of such an ambiguous term, which could be used to encompass anything.
Many conventions (like The 1992 Rio Declaration on Environment and Development) avoid the problem, however, no doubt because, as Caldwell remarks ‘it is a term that everyone understands and no one is able to define’ Caldwell, International environmental Policy and Law (1st edn. Durham, NC, 1980), 170.
Some other treaties and other instruments define the environment in different ways considering the subject matter they want to address. For example, the Declaration of the 1972 Stockholm Conference on the Human Environment (UNCHE) merely referred obliquely to man’s environment adding that ‘both aspects of man’s environment, the natural and man-made, are essential for his well-being and enjoyment of basic human rights.
The world commission on environment and development (WCED) relied on an even more succinct approach; it remarks that ‘the environment is where we live’.
The 1992 Rio Declaration on Environment and Development refers at many points to environmental needs, environmental protection, and environmental degradation and so on, but nowhere identifies what these include. Interestingly it eschews the term entirely in principle 1, declaring instead that human beings ‘are entitled to a healthy and productive life in harmony with nature.’
The Council of Europe Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment defines the environment as including (The Council of Europe Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment which was done at Lugano, 21 June 1998, Art.2.10);
Natural resources both abiotic and biotic, such as air, water, soil, fauna and flora and the interaction between the same factors; property which forms part of the cultural heritage; and the characteristic aspects of the landscape
When we come back to our legal system, the Environmental Protection Organs Establishment Proclamation defines the environment as (Environmental Protection Organs Establishment Proclamation, Proclamation No. 295/2002, Neg. Gaz., 9th Year, No. 7, 2(3):
The totality of all materials whether in their natural state or modified or changed by human, their external spaces and interactions which affected their quality or quantity and the welfare of human or other living beings, including but not restricted to, land, atmosphere, weather and climate, water, living things, sound, odor, taste, social factors, and aesthetics.
Finally, it should be kept in mind that any definition of the environment will have the Alice-in-Wonderland-quality of meaning that we want it to mean.
In both criminal and civil proceedings, the law of evidence has a number of purposes. However, due to the different nature of civil and criminal cases, the rules applicable on them may be different. The civil case is one instituted by individual for the purpose of securing redress for a wrong, which has been committed against him, and if he is successful he will be awarded money or other personal relief. While, a penal prosecution is instituted by the government for the purpose of securing obedience to its laws by the punishment or correction of the lawbreaker. Therefore, since the relief sought as well as the purpose of instituting civil and criminal cases is different, the existence of difference regarding the strict nesses of the evidentiary rules applicable on those two cases seems proper.
Generally, the purpose of evidentiary rules is to assist the court in establishing the truth between the party's conflicting versions of the fact in the case. However, in criminal cases the law of evidence has further important purpose, that is, the protection given to the accused in respect to his right to a fair trial. The protection of the accused against the case being proven against him by evidence which is prejudicial to his right to afar trade is one of the main reasons why the law of criminal evidence contains so many rules which excludes potentially relevant evidences from being produced before the court including, for example, the general rule that evidence of the defendant's bad character or his previous convictions will not be admitted at trial, (see art 138 of cr.p.c) different privileges given to witnesses.. etc . The court may also exercise its discretionary power to support the defendant's right to a fair trial by excluding potentially relevant evidences.
While in civil proceedings, evidence that is relevant and probative of a fact, which needs to be proved to the court, will generally be admissible. There are no mandatory rules requiring the exclusion of evidence in civil cases. This state of affairs reflects the key difference between civil and criminal proceeding. Therefore, we can say that the fair trial provision is not as important in civil case as there is a greater equality in resources between the parties in contrast with criminal proceedings in which the power full government in one side and the weaker accused on the other side are there. Also, whilst losing civil case may result in the claimant or the defendant suffering serious damage to his financial resources or property, he will not loss his liberty life or suffer the same social stigma as a person who has been convicted of criminal offence. This is reasons why, there is huge difference regarding the standard of persuasion required in civil and criminal cases.
The main difference regarding evidentiary rules in civil and criminal cases lies on the required standard of proof. The rules relating to the standard of proof determines how much proof is required for a party to persuade the court. The appropriate standard of proof that will have to be satisfied in a criminal case is heavier than in a civil case. In criminal proceeding, the public processor in order to win the case, he is required to proof, beyond reasonable doubt. While in civil case the standard is preponderance of evidence or probabilities.
The “beyond reasonable doubt” standard is constitutionally mandated in criminal cases. However, “beyond reasonable doubt” means that you must be virtually certain. The law does not demand that, for you to find the defendant guilt, you be absolutely certain of his guilt, because there are few, if any, things in life we can be absolutely certain about. Here, one may raise question that applying such strong standard in criminal cases may prevent the truth from being discovered in the wide public interest. However, we all know that guilty people may escape criminal punishment. A criminal might not be apprehended, if apprehended, he might not be tried, if tried, he might be acquitted. We are not happy about this situation, but it is an every day matter that we tolerate. But consider how troubling- and how noteworthy- we find it on those rare occasions where we punish somebody for a crime that it turns out later, he did not commit.
The standard of persuasion in civil case may be highly variable, depending on the nature of precise issue at stake. For instance, among 4 witnesses, if 3 of them testify in favor of the party on a given issue, we can say that the standard required in civil case has fulfilled. Because the testimony of those 3 witnesses over weighted the testimony of one witness who testified against the party.
Who has a burden of proof in criminal and civil proceedings?
The general rule in criminal cases is that the prosecution bears the burden of proving the defendant's guilt and the substantive law defines what the prosecution must prove in order to convict the defendant. This will usually comprise elements of the mens rea and actus reas, for example, when pursuing conviction for theft, the prosecution must prove all the elements of the offense as laid down by the Criminal code (namely a dishonest appropriation of property belonging to another with the intention to permanently deprive).
The allocation of the legal burden of proof on the prosecution is regarded as fundamental expression of the presumption of innocence. Because every one charged with criminal offence shall be presumed innocent until proved guilty according to law. It also reflects an aspect of procedural fairness in that the prosecution has considerably more resources at its disposal than the defendants and therefore it should bear the burden of proving the accused guilt. A Practical consequence of the prosecution bearing the legal burden of proof is that the prosecutor always opens the case at trial and presents its evidence first. In discharging its burden the prosecution must disprove any defense or explanation raised by the accused.(see Art 136 of cr.p.c)
Whilst the rules of civil evidence do not incorporate the same enshrined principles as in criminal case (i.e. the accused in a criminal trial is presumes innocent until proved guilt by the prosecution), the well established general rule about the incidence of the legal burden of proof in civil proceedings is that ''he who asserts must prove”. To put simply, the legal burden of proving a fact in issue in a civil trial is on the party that asserts that fact. Therefore, in civil cases, the burden of proof first lies in the plaintiff. However, this burden of proof will shift to the defendant if the defendant admits the allegations and come up with positive deface like “counterclaim”. In such case, the burden of proof lies on the defendant (see Art 258 of civ.P.C ).
We have discussed the main differences existed between civil and criminal proceeding regarding evidence i.e. on burden and degree of proof. However, there are also another differences. Now we will discus such other differences in line with our evidence rules shortly.
1. Less importance is attached to the principle of orality in civil proceedings, resulting in far greater reliance up on the admission of evidence in documentary form. Because in civil cases, most of the claims are raised from contractual, monetary or proprietary relation ships which could mostly proved by adducing documentary evidences. While due to the very nature of ways of committing a crime, the public prosecutor mostly proves his allegation by providing an expert and lay witnesses. And the crime, which could be proved by documentary evidences, is less in numbers since they are being committed in a more sophisticated way.
2. There is also a difference between civil and criminal proceedings regarding proof by admissions. Firstly, in civil cases, the defend ant shall deny each and every fact alleged by the statement of claim specifically. [see Art 83 of civ.p.c]. And every allegations of fact in the statement of claim, if not denied specifically or by necessary implication, or stated to be not admitted in the statement of defense, shall be presumed admitted and the court shall give judgment on such admitted facts. (see Art 242 of civic).While in criminal cases, where the accused says nothing in answer to the charge, a plea of not guilty shall be entered. This means the silence of the accused of the accused does not amounts to admission.(see Art 27, and 134(1) of civ.p.c]. Moreover, failure to cross-examine on a particular point does not constitute an admission of the truth of the point by the opposite party. [See Art 140 of cr.p.c]
Secondly, in civil proceedings, where a party formally admits the truth of a fact in issue in the case, the fact ceases to be in dispute between the particles, and as such any evidence to prove the fact will be ruled as inadmissible on the ground that it is irrelevant. To put in another way, judicial admissions are conclusive in civil cases. And the courts are under obligation to give judgments based on such admission without requiring the production of additional evidences. (see Art 242 of civ.p.c).While in criminal cases judicial admissions are not conclusive. Of course, when the accused admits without reservations every ingredient in the offence charged, the court shall enter a plea of guilty and may forthwith convict the accused. However, the court may require the prosecution to call such evidence for the prosecution, as it considers necessary and may permit the accused to call evidence. (see art 134 of cr.p.c). There fore, unlike civil cases, in criminal cases the task of determining the conclusive nesses of judicial admission is left to the discretion of the court.
Why judicial admissions are not conclusive in criminal cases?
In criminal cases, the issue may be the question of life and death. So the court shall take a due care that an innocent person not to be convicted and punished. So that, the courts are expected to critically examine the reasons behind of the confession. Because sometimes innocent person may admit the commission of crime to cover another person, for fame or to be known through out the world by his criminal act.
Thirdly, in criminal cases, admission shall be made without reservation. When we say the accused admitted, we are saying that he admitted each and every criminal elements of the alleged offence usually comprise elements of the mens rea and actus reus . However, in civil proceedings the party may admit the truth of the whole or any part of the case of the other party. For instance, the plaintiff has instituted suit against the defendant on breach of contract for the value of 10,000 birr. Here, the defendant may admit half of the plaintiffs claim and deny the rest. In such case, the issue (the point of disagreement) lies only on the non-admitted claims of the plaintiff and the court shall give judgments on the admitted amount in accordance with Art. 242 of civ-p.c.
The above discussed differences between civil and criminal proceedings are not the only differences. You will come across with further differences throughout your study of this course.
Classification of Evidence
Evidence can directly or indirectly lead to the required conclusion as to whether a disputed fact exists or not. Thus, evidence is divided in to two: direct and circumstantial.
If believed, direct evidence establishes a fact in issue directly. A fact in issue is something a party alleges to exist and the other party denies this is the disputed fact, which can only be resolved by the help of evidence.
Direct evidence is provided by witnesses giving oral testimony of something they perceived with their own senses. It is also afforded by the presentation of documents, photographs and the like which the judge is required to interpret with his senses and includes the physical presence of witness in the witness box giving rise to an assessment by the judge of the witness’s credibility. It can include any incriminating admissions by a party in the case.
However, circumstantial evidence is indirect evidence that tends to establish a conclusion by inference. It doesn't directly tell you or prove the existence or non-existence of the alleged or disputed fact. But when you put them together, they form a chain leading to a logical conclusion. For this reason, criminal cases built entirely on circumstantial evidence are the most difficult to prove the required standard of proof beyond reasonable doubt.
Circumstantial evidence requires the judge to draw generalizations from commonly held assumptions about human nature. In a murder case for example, evidence that a defendant lied to the police about his where about of the relevant time and had a violent argument with the victim some days before the killing would constitute relevant circumstantial evidence of the accusede's guilt. The inference is based on the common assumption that murderers normally have a motive for committing murder and will usually cover their tracks by lying.
Can a wrong inference be made form circumstances?
Since most of offences are being executed in a very sophisticated manner, it is difficult to get direct evidence. In such case, the option we have is, proving the disputed fact by circumstantial evidence. However, there is a possibility of making wrong inferences form such circumstances. For instance, in a murder case, if you consider the footsteps alone, it can be the footsteps of any one from the victim's house. And also it does not mean that anyone who buys piston or knife has an intention to kill a person.
Thus, circumstances should be taken cumulatively and not in isolation of one from the other. Where the facts are put together, they lead to a certain logical conclusion. The circumstances should not be self-contradicting that is some consistent with the innocence of the accused and others consistent with his guilt. If they contradict, their capacity to prove decreases with the increase of the contradiction. That is why; we have said that the court must be careful when it gives a ruling on the basis of circumstantial evidence.