ENVIRONMENTAL LAW: HUMAN RIGHTS AND GLOBALIZATION

Development and Dynamics

CYPRIAN F. EDWARD- EKPO

And CHARLES N. WALI

ENVIRONMENTAL LAW: HUMAN RIGHTS AND GLOBALIZATION

- Development and Dynamics

CHARLES N.WALI And CYPRIAN F. EDWARD-EKPO 2010 Published By: Educational and Law Publications Unit MULTI-INTELLIGENCE DEVELOPMENT COMPANY LTD. Port Harcourt, Nigeria, West Africa (July, 2010).
Printed in Nigeria by PEARL Publishers, Port Harcourt

Edited as Materials of the International Institute for Humanitarian and Environmental Law

First Publication in 2010 by MULTI-INTELLIGENCE DEV. CO. LTD.

ISBN: 978-978-900-152-1
No reproduction of any part may take place without a written permission of MULTI-INTELLIGENCE DEV.CO.LTD. Any copy of this book without the seal of Multi-Intelligence Development Company on this page may be regarded as piracy and should not be purchased

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PREFACE
The book, Environmental Law: Human Rights and Globalization Development and Dynamics, explains in a broadest sense the concept of environmental law and in a concise dimension, the nature, scope and dynamics of the concept. While devoted to emergent perspectives on theory and practice relating to law, as well as the connexion of human rights and globalization, it firmly corroborates the gospel that environmental value system is concerned with the common heritage and the common concern of mankind, and therefore the law in that regard appears super-valued. This book is readable, detailed, confirmative, academical and legalistic; and a keen nose that through an intensive research, ascertains the spectrum of environmental law. It is realistic about environmental value system the humanity as the source of reason and the legal affairs especially on major international law questions the domestic, as well as cross-domestic actions which supplement and solidify the system. Arranged in a less-chronological order, but factually dated with confirmative data, it gives detailed information on the development of environmental law. It presents a history of the most important works in the field of environmental law and their implications. The authors conducted survey and critical examination of environmental law system from ethical perspective through incidental perspectives to alternative legal theories and principles. They introduce consciousness that will make the system effectively understood, managed and realized. The authors explore a variety of perspectives, philosophies, theories and research methodologies in the field of environmental law, international law and human rights, as well as globalization; their dynamics and implications. In this text, the authors look at variables of history and meta-history. They observe the springiness of environmental law, the realities of international law, the dynamics of various international and municipal jurisprudence; and the systems of the United Nations, as well as other international personalities, including nongovernmental organizations; and how they affect and shape environmental law. So far, in terms of growth performance, a series of municipal jurisprudence and constitutional response of states which consolidate the international law ideals are presented. In few chapters, the system of the Federal Republic of Nigeria is used as a case study to measure growth performance and the problems affecting this system of global interest. Chapter 7 is topical of this, while chapters 14 and 15 in brief sections, bear valid testimony to it.

The discussion in this book has underscored the indispensible fact of the relationship and exigent position of law and environment as fundamental factors in the globalization of the world. We have examined, enumerated and expatiated the conceptual nature and developmental processes of environmental law. Also, the inter-operability of human rights, and the conceptual tendencies and viability of globalization vis--vis environmental value systems; their influences and legal bases intoto. Conclusions can be drawn from these dynamics and effects. It would be undeniably most correct to refer the text generally, as a research and pedagogic revelations and theories as well as the encyclopedic knowledge. That is, the literature of the systems which gives evidence of a steady progression in the depth and range of thinking that culminate into the concept of Environmental Law: Human Rights and Globalization: Development and Dynamics. In summary, this book has adopted an international law methodology; supplemented by philosophical, conventional and jurisprudential approaches. The supplement is composed of sample municipal law; and largely, international ascendancies with a vast spectrum of legal reasoning. The Structure of the Book: The text is divided into six parts and covers environmental law system from five perspectives - theories, issues, principles, applications and dynamics within four of the six dimensional parts Environmental Law: Definition and Concept Formation; Historical Development of Environmental Law; the Cradle Personality and Inter-operability of Human Rights; The Legal Basis and Functional Relevance of Globalization in the Development of Environmental Law. Part one is composed of all arrangements that make up this prefatory. Part two covers the conceptual resume definition, typology, principles and sources of environmental law. Part three explores the sequential phases in the development of environmental law. It presents detailed information on the various phases of international arrangements. At the end, it uses the Federal Republic of Nigeria as an analogy for growth performance and problems to suggest how the system is expectedly taking place in most affected, especially developing industrial nations. Part four examines and discusses a wide range of both well established and emerging or recent applications to the personality of human rights its interoperability and dynamics in the environmental system. Thus, a series of environmental human rights and their formal and jurisprudential realities are extensively established and evaluated. Part five focuses on the evolutionary synthesis of globalization in environmental law. A series of up-to-date interesting and well established international arrangements depicting the framework of environmental law

globalism. They are organized so that theoretical issues covered are proven as authoritative. Then the patterns of environmental law behaviours and the valueddynamics of globalization are described in increasing measures of severity. In addition, the part does not hesitate to evaluate the constitutional response of states, as well as the indices and roles of international organizations (both governmental and non-governmental), in this field. It extends to the scope and legal personality theory and principles within the system of environmental concept of state responsibility, international responsibility, and corporate social responsibility amongst others. Methods of formal principles and practices for growth performance are also presented. Part six contains the subject matter index, bibliographical and encyclopedic tables a usage reference method for researchers. Generally, this text features broadened coverage through historical accounts and a more eclectic and balanced theoretical, as well as empirical perspectives. The whole strategy and philosophy of multivariate research, including an examination of the ethical issues and the cognitive influences of modern trend of law. Finally, all the concentrated areas are explored. The five most widely used contemporary approaches are described, analyzed and integrated into a synthetically single title of the book. Each part commences with an introduction to the body of the essay. We advice that the reader endeavour to read the introduction of each part before proceeding to the body of the essay so as to acquire a background focus of what he is to assimilate. After an introductory overview of the subjects in the beginning of each part, there are series of chapter-articles looking at the title of the book. A broad range of topics are covered, drawn from the diverse concepts. Usage Advantage: Unequalled in its scope, comprehensiveness and wide ranges of theories, principles and research data, this book presents knowledge, discussions and some implied recommendations. It contains the most thorough treatment of Environmental Law Human Rights and Globalization. Now available in a single volume as an interoperable structure. It is a basic reference text for environment and development workers as well as research scholars and lawyers. Moreso, it is believed that this book will be of immense value to industrial corporations, investors, research academia especially those relating to environment, human rights and development goals, the United Nations institutions and agencies, non-governmental organizations, inter-governmental organizations, policy makers, jurists, scholars, diplomats, legislators, readers and practitioners in law and environment.

Authorial Note Some years ago, we perceived as a truism that the present environmental conditions of the world requires a true understanding of environmental value system and the basic knowledge of law. The purpose is the harmonious state of humanity as that which is attached to the common heritage and common concern of mankind. We have been told that that both environment and law are naturally placed, and are working for that purpose, and so we have to labour and work, and work hard to illuminate and give reality to our dreams. Those dreams are for humanity, and so we give for your assimilation and practicalization. God bless you.
Cyprian F. Edward-Ekpo Registrar, International Institute for Humanitarian and Environmental Law
July, 2010

Charles N. Wali Chief Registrar, Rivers State Judiciary

FOREWORD
Cyprian F. Edward-Ekpo and Charles N. Walis Environmental Law: Human Rights and Globalization Development and Dynamics is a timely and very significant contribution to the growing literature in the fields they have so adroitly woven together. The various disciplines and sub-disciplines which are individually complex subjects have been managed together in an impressive manner. Interest in the growing field of environmental law was largely kindled by the U.N conferences on the subject in the last quarter century and related developments. From then on, the body of law relating to environmental issues, both at the international plane and in domestic jurisdictions has grown impressively. Even at that, the vast range of issues concerning the physical, environmental and the legal approaches to them remain yet to be resolved. Wali and Edward-Ekpos work has to be seen as a worthy effort in addressing this lacuna. As if dealing with the complex problem of environmental law was not enough, the authors introduce more dimensions of complexity into their work as they seek to not only establish, but also explain the growth, development and dynamics of yet other very complex ideas. The matrix of ideas in that formulation includes human rights and globalization. The law of human rights itself is complex, in that it includes elements of international law and municipal juridical ideas. In its international legal character it has hardly been satisfactorily developed, let alone managed. When compounded the vagaries of municipal law, particularly state practice, it throws up a bewildering array of attitudes and responses to an otherwise compelling universal human ideal. The universality of human rights under international and municipal law is fast becoming appreciable as the problems and prospects of globalization become real in our daily lives. This is one of the key points the authors have sought to make in this laudable attempt to weave these complex ideas and rules into a compact and intelligent form. It is an important milestone in the progressive understanding of the principal ideas they boldly confront in this book. The authors have explored a variety of perspectives, philosophies, theories and research methods in the fields of environmental law, human rights and the dynamics and implications of globalization. They have used the Nigerian state practice as examples to illustrate the points they have sought to make in several aspects of their discourse. The authors arrive at a position that there is an indispensable nexus between law in its international and environmental aspects and the dynamics of current globalization processes.

The structure of this book enhances the logic behind the presentation of the major themes within which sub-themes and chapters are arranged. Divided into six parts with thirty-one chapters, a bibliography, an index and tables of cases, treaties, conventions, declarations, statues and other public Acts are also well presented. The authors style is impressive. The use an elegant English style that is not only stimulating but also suggestive of the breath of their command of the language and the impact of their individual personalities on the subject they so clearly discuss. As to relevance, utility and contribution to the fields upon which they focus, the authors have shown clearly that the seeming independence thought to exist between law (international and municipal), the environment and its legal connotations, human rights in all its complexities and the various responses they elicit or suffer, are linkable to one and another and, indeed, are functionally inseparable, and perhaps, dependent to some extent one on the other. This book is therefore a major contribution not only to the growing literature but to the body of knowledge for all humanity. It means then that all of humanity who comes across this book or who requires the knowledge contained in it will find it beneficial in several aspects of their daily lives and callings. It is therefore my charge to all seekers of knowledge, academicians, policy makers, practitioners in such fields like law, politics, business, and government to seek to obtain the wealth of information contained in this book by asking for it and making it a necessary part of their collection. Allswell Osini Muzan Dean and Professor of Law Kogi State University, Anyigba

CONTENTS
PART ONE: REFATORY Dedication ...iv Acknowledgement ..v-vii Preface ...viii-xiii Endorsement .xiv Forward ...xv-xvi PART TWO: ENVIRONMENTAL LAW: DEFINITION AND CONCEPT FORMATION INTRODUCTION1 CHAPTER ONE: ENVIRONMENTAL LAW: AN OVERVIEW .... 2-7 Definition of Environment and Law . 2-4 Contextualization of Environmental Law..... 4-7 CHAPTER TWO: TYPOLOGY OF ENVIRONMENTAL LAW .. ... 8-19 CLASSIFICATION ..8-12 Public Environmental Law ...........................................................................8-9 Criminal Environmental Law ..9 Common Law Mechanism .....9-11 Civil Environmental Law ..11 Private Environmental Law .11-12 Human Rights Regime ..12 FACTORS: . 13-14 Petroleum Environmental Law ..13 Economic Environmental Law ..14 JURISDICTION: ... 14-18 Customary Environmental Law ..15-16 National Environmental Law ..16-17 International Environmental Law ...17-18

CHAPTER THREE: PRINCIPLES OF ENVIRONMENTAL LAW....19-60 (a) SOCIO-LEGAL ANGLE: ......19-49 Sustainable Development .. 19-24 Polluter Pays Principle ..24-25 The Preventive Principles / Pollution Prevention Principle (3P+) ..25 The Precautionary Principle 26 Intra-Generational Equity or Intra-Generational Principle 26-27 Inter-Generational Equity or Inter-Generational Principle 27-33 Integrative Policy Principle or Environmental Economy Principle 32 The User Pays Principle 32-33 The Subsidiary Principle 33-35 The Francovitch Principle ......35-37 The Principle of Common but Differentiated Responsibility.38-39 The Principle of Sovereignty and Environmental Responsibility in the Use of Natural Resources ...39-41 The Principle of Good Neighbourliness and International Cooperation..41-42 Human Rights Principle .42-44 The Common Law Principle ..44-49

(b) TECHNO-LEGAL ANGLE ...49-60 Best Available Technology (BAT) 49-51 Best Practicable Environmental Option (BPEO) ...51-52 Diligent and Prudent Operation Principle. .52-58 Good Oil Field Practices Principle ...58-59 Other (Nine) Principles ..59-60 CHAPTER FOUR: SOURCES OF ENVIRONMETNAL LAW ...61-126 (a) Power .61-63 Executive Function of Power..61-62 Legislative Function of Power ...62-63 Judicial Function of Power ..63 The Constitution .......63-69 Expert Views on Environmental Issues ......69-71

(b) (c)

(d)

(e) (f) (g) (h)

Common Law/Case Law Approach ...72-82 Nuisance ..74 Negligence . 75-76 Trespass ..76-78 Strict liability/Absolute liability..78-79 Case law .80-82 Traditional and Cultural Ethics/ Customary Law ....82-83 Delegated Legislation / Resolution .... 83-84 Natural Law Doctrine ......85-86 International Law Sources ........... 86-126 Treaty .89-91 Judicial decision .91-96 Regulations / Resolution ..96-102 Other Component Sources of International Law Custom, General Principles of Law, Writers Dimension , Soft Law ........................ 102-123

PART THERE: HISTORICAL DEVELOPMENT OF ENVIROMENTAL LAW INTRODUCTION...127-128 CHAPTER FIVE: PERSPECTIVE ON DEVELOPMENT..131-134 CHAPTER SIX: EVOLUTION AND VIABILITY OF ENVIROMENTAL LAW...135-184 (1) ETHICAL PHILOSOPHY TO RADICAL ENVIROMENTALISM...37-134 (a) Environmental Universalism .............................138 (b) Modified Utilitarianism.. 138-139 (c) Religious and Cultural Values on Environment...139-146 (d) Environmental Determinism...146 (e) Environmental Imperialism.................... 146-147 (f) Environmental Positivism...........................147 (g) Stewardship................147 (h) Romanticism................147-148 (i) Gaia Hypothesis..148 (j) Anthropocentrism.......................148 (k) Cosmocentrism or Ecocentrism .................................................148-149 (l) Biocentrism.149 (m) Pathocentrism.149

(n) (O) (p) (q) (r) (2) (3)

Terracentrism or Earth Chauvinism...149 Ecofeminism... 149-150 Permaculturism....150-151 Environmental Jurisprudence 151-152 Radical Environmentalism. 152-154 CULTURAL REGIME TO MODERN LEGAL TREND ............ 154-156 INTERNATIONAL ENVIRONMENTAL LAW REGIME. 157-184 Before 1945 157-159 Summary of International Legal Events 1945-2000(s) ..159-184 Brief History of the United Nations................................161-162 U.N Environmental Law Initiatives....162

CHAPTER SEVEN: DEVELOPMENT THRUST AND PROBLEMS OF ENVIRONMENTAL LAW IN A MUNICIPAL SYSTEM: A CASE STUDY OF NIGERIA..185-222 Historical Attempts to Codify Nigerias Environmental Law ..186-215 (a) First Attempt: The Pre-Colonial Period .................186 (b) Second Attempt: The Colonial Period....186-188 (c) Third Attempt: From Independence to 1970(s)...155-194 (d) The Environmental Awareness Era: 1980-1988 194-215 The Problematique..215-222 PART FOUR: THE CRADLE PERSONALITY AND INTER-OPERABILITY OF HUMAN RIGHTS...223-626 INTRODUCTION223 CHAPTER EIGHT: THE NOTION AND STRUCTURE OF HUMAN RIGHTS..224-249 Human Rights Ontology and Evolution .224-231 Nature of Human Rights 230-231 Hierarchy of Human Rights ...231-235 Viability of Human Rights .235-239 Scope of Human Rights

(a) (b) (c) (d)

The First Generation Rights ...239-241 The Second Generation Rights .. 241-245 The Third Generation Rights ..247-248 The Fourth Generation Rights ....247-248

CHAPTER NINE: CHARACTERIZATION OF HUMAN RIGHTS AND THE ENVIRONMENT ...249-258 Valued Disposition of Human Rights in the Human Environment ..254-258 CHAPTER TEN: THE RIGHT TO DEVELOPMENT.....259-266 CHAPTER ELEVEN: FUNDAMENTAL HUMAN RIGHTS .267-270 CHAPTER TWELVE: THE RIGHT TO PARTICIPATION IN THE PROCESS OF APPROVAL.271-273 Component of right of participation .272-273 CHAPTER THIRTEEN: THE RIGHT TO ENVIRONMENTAL INFORMATION 274-282 CHAPTER FOURTEEN: THE RIGHT OF ACCESS TO JUSTICE283-338 The Dimension and Dialectics behind Article 2(3) of ICCPR and Article 8 of UDHR on Access to Justice .284-294 The Implementation of Human Rights: The International Responsibility and the Essentials of International Human Rights Committee under the ICCPR294-309 Some Relevant National Reports Indicating Actions of the Human Rights Committee in the Articulation of Access to Justice .310-319 A Conceptual Advantage of the Political Covenant as Future Means of Access to Human Rights Remedies ..319-323

Access to Justice in Municipal System: The Nigerian Angle ..................323-385 Procedural Mechanism for Enforcement of Fundamental Rights in Nigeria. 328-385 General Inference of the Right of Access to Justice in Environmental System...335-338 CHAPTER FIFTEEN: THE RIGHT TO LIFE ..339-353 CHAPTER SIXTEEN: THE RIGHT TO HUMANITARIAN PRINCIPLES PEACE AND SECURITY, ETC. ..354-388 Peace and Security of Man/Person358-366 Refugees Law...366-368 Internal and International Conflicts...368-375 Armed Conflict: Minimum Environmental and Humanitarian Standards...375-379 General Dimension of Humanitarian Law and the Environment..380-388 CHAPTER SEVENTEEN: THE RIGHT TO SUSTAINABLE DEVELOPMENT ...389-406 CHAPTER EIGHTEEN: THE RIGHT TO DRITTWIRKUNG ..407-419 CHAPTER NINETEEN: THE RIGHT TO SELF-DETERMINATION OF INDIGINOUS PEOPLE...420-467 The History and Notion of Self-determination .420-424 The Scope and Legal Dialectics of Self-determination 424-467 CHAPTER TWENTY: THE RIGHT TO HEALTHY ENVIRONMENT AND THE RIGHT TO HEALTH (RHE + RH) ..468-499

Symbiotic Relationship between the Right to Healthy Environment and the Right to Health .487-492 Legalization and Justiciability of Right to Healthy Environment and Health492-499 Expanding Co-relation of Right to Healthful Environment and Health499 CHAPTER TWENTY ONE: RIGHT TO COMPENSATION/REMEDY CLAIMS ARISING FROM ENVIRONMENTAL RIGHTS TRANSGRESSION ..500-551 Definitive Standard of Compensation . 521-526 Key Elements of Environmental Claims in Compensatory Legal System...............................................................................................................526 (1) Cost of Preventive Measures 526-528 (2) Cost of Clean-up and Restoration Measures 528-535 (3) Cost of Permanent Damage to the Environment 535-538 (4) Cost of interim Damage 538-539 (5) Cost of Third Party in the Form of Reparation .539-541 (6) Cost of Specific and Quantifiable Economic Loss ...541-550 Further Legalism on the Right to Compensation ..550-551 CHAPTER TWENTY-TWO: THE RIGHT TO SOCIO-ECONOMIC ADVANTAGE.552-589 Socio-Economic Rights and the Rule of Law...568-575 General Dimension of Socio-Economic Rights and Environmental Law...575-582 Perspective on Socio-Economic Rights System: A Case Study of Nigeria...583-587 Problems of Socio-Economic Rights in Nigeria ..584-588 Imperative Reform on Socio-Economic Rights ...588-589 CHAPTER TWENTY-THREE: THE RIGHT TO ENVIRONMENT / GENERAL SATISFACTORY ENVIRONMENT (RE+GSE) . . 590-626

The Place of Individual Man and Groups in the Right to Environment..611-618 The Propensity and Functional Character of Right to Environment..618-626 PART FIVE: THE LEGAL BASIS AND FUNCTIONAL RELEVANCE OF GLOBALIZATION IN THE DEVELOPMENT OF ENVIRONMENTAL LAW INTRODUCTION ...627 CHAPTER TWENTY-FOUR: GLOBALIZATION PROSPECT AND ENVIRONMENT:A CONCEPTUAL PERSPECTIVE .628-646 CHAPTER TWENTY - FIVE: EVOLVING TENDENCIES FOR GLOBALIZATION OF ENVIRONMENTAL LAW ...643-646 CHAPTER TWENTY-SIX: STANDARDIZATION OF ENVIRONMENTAL LAW: FROM POLITICOECONOMIC REGIONALISM TO ENVIRONMENTAL GLOBALISM .647-663 European Zone and Invited Neighbours ..... 649-651 American Zone .651-654 Australian Zone 654-655 Asian Zone 655-657 African Zone .. ..657-661 The Legal Bases of Regional Institutions .661-663 CHAPTER TWENTY-SEVEN: CONSTITUTIONAL RESPONSE OF STATES TOWARDS ENVIRONMENTAL LAW: THE PROSPECT FOR GROWTH PERFORMANCE .. 664-721 CHAPTER TWENTY-EIGHT: GLOBAL INTERNATIONALITIES ...722-771 (a) UNITED NATIONS AGENCIES: 722-749

The Legal Bases of U.N Agencies 722-723 Relevant U.N (Environmental) Agencies ...733-749 (b) NON-GOVERNMENTAL ORGANIZATIONS (NGOs) .750-770 Definition of NGOs ... 751-754 The Legal Bases of NGOs ..754-761 NGOs Footing, Rights and Participation in the U.N System .762-776 CONCLUSIVE INFERENCE ON GLOBAL INTERNATIONALITIES 770 -771

(c)

CHAPTER TWENTY-NINE: LEGAL STATUS AND CRYSTALLINE NATURE OF ENVIRONMENTAL LAW AND GLOBALIZATION...772-818 Personality and Jurisdiction 772 Scope and Character .782-788 Consummated Development 788-818 Prevailing Disposition . 817-818 CHAPTER THIRTY: THE LEGAL PRINCIPLES OF ENVIRONMENTAL GLOBALIZATION . 819-878 1. Principle of Sovereignty (SP) ....820-828 2. Multilateral Environmental Partnership (MEP)..828-831 3. Freedom of Environmental Transaction Media (FETM) ...831-832 4. Principle of Consensual Character (PCC) .832-835 5. Principles of Universality and Erga Omnes (PUE) 835-837 6. Law of Power (LP) .837-838 7. International Relations and Co-operations (IRC) .. 838-841 8. Responsibility/Liability Principles (RLP) ..841-866 (a) State Responsibility and the Environment .. 842-847 (b) International Responsibility and the Environment ..847-852 (c) Corporate Social Responsibility ..853-866 9. Principle of Immunity (PI) ....866-872 10. Principle of International Equity (PIE) ..872-874 11. Principle of Centralization (PC) .......874 CHAPTER THIRTY-ONE: SPECIAL RECOMMENDATION AND CONCLUSION 878

PART SIX: TABLES AND INDEXES Table of Cases ..883-893 Table of Treaties / Conventions / Declarations and Statutes 894-918 Table of Protocols .919-923 Table of Resolutions .924-928 Table of Legal and General Acronyms .....929-940 Table of Figures ...941 Subject Matter Index 942-998 Bibliographical and Encyclopedic Index ...............999-1041 (a) (b) (c ) (d) (d) Websites and Sites Subjects....999-1000 Referential Authors and Authorities.1001-1017 Dictionaries ...1018 Reports and Journals.1019-1030 Incidental Towns, Provinces and Countries .....1031-1041