" DISCLAIMER: The ILO does not take responsibility for content presented on this web portal that is presented in any language other than English, which is the language used for the initial production and peer-review of original content. Certain statistics have not been updated since the production of the 4th edition of the Encyclopaedia (1998)."

Thursday, 24 March 2011 17:12

Laws and Regulations

Written by
Rate this item
(0 votes)

The relationship between human health and the human environment has been recognized from time immemorial. This tenet of medicine can be traced back to Hippocrates, who taught his pupils to “attend to the airs, waters, and places” if they sought to understand the sources of health and diseases in their patients (Lloyd 1983).

This ancient view of the link between human health and the environment has persisted. The degree of a society’s acceptance of this link has been influenced by three factors: development of a scientific understanding of the human body; increased capacity to cure individual illnesses; and the evolution of parallel scientific, religious and cultural concepts.

Environmental factors as a cause of health or diseases of entire classes of people were given increased attention during the Industrial Revolution. The trend has continued to this day, assisted by the development of the environmental sciences and of techniques for determining causality and assessing risks.

It was in the workplace that causal links between health and the environment were first clearly established. It was also in the workplace that the consequences of the increase in the amount and variety of contaminants resulting from the diversification of industrial processes were first felt. Yet these contaminants cannot be confined to the occupational environment. Once released, their pathway may become difficult to follow or trace, but it inevitably ends in nature: environmental toxins are present in the soil, water and air of even the most remote environments. Human health, in turn, is affected by the pollution of the natural environment, whether of local, national or transboundary origin. Along with other types of environmental degradation, which cause worldwide depletion of natural resources, this accords a planetary dimension to the interaction between environmental conditions and public health.

The conclusion is inescapable that the quality of the work environment and of the natural environment are inextricably linked. Lasting solutions to either of these problems can be successful only if both are tackled in tandem.

Environmental Law: A Means to an End

The formulation of policies to maintain and improve both the natural and the work environment is a prerequisite to successful environmental management. Policies, however, remain a dead letter unless they are implemented. Such implementation is only achievable through the translation of policy principles into rules of law. From this perspective, law is at the service of policy, giving it concreteness and a degree of permanency through appropriate legislation.

Legislation, in turn, is a framework structure which is useful only if implemented and enforced. Implementation and enforcement are dependent on the political and social contexts in which they take place; if they are not backed by the public, they are likely to remain inefficient.

Therefore, enactment, implementation and enforcement of environmental legislation are, to a large extent, dependent on understanding and acceptance of the rules established by those to whom these rules are addressed—hence the importance of disseminating environmental information and knowledge to the public at large, as well as to specific target groups.

The Role of Environmental Law: Prevention and Cure

The role of law in the environmental field, as in many other fields, is twofold: first, to create rules and conditions which are conducive to the control or prevention of damage to the environment or human health; and, second, to offer remedies for situations where damage has occurred in spite of these rules and conditions.

Prevention through command techniques

Land use controls

The regulation of land use is a major element of environmental law, and a prerequisite to the control and guidance of land development and the utilization of natural resources. The issue is usually whether a particular environment may be put to another use, it being understood that non-use is also a type of land use.

Land use controls allow siting human activities where they are best located (or least damaging), and also subject contemplated activities to restrictions. These two goals are usually achieved by establishing a requirement for prior authorization.

Prior authorization

Prior authorization is a generic term for any form of permission (e.g., licence, permit) which must be obtained from a regulatory authority before certain activities may be undertaken.

The first step is to determine by law those private and public sector activities which are subject to prior authorization. Several approaches are possible and are not mutually exclusive:

Controls of sources. When a category of sources of environmental harm is clearly identifiable, it is usually subject to prior authorization as such (e.g., all classes of industrial facilities and motor vehicles).

Controls of substances. When a particular substance or class of substances is identified as potentially harmful to the environment, the use or release of these substances may be made subject to prior authorization.

Media-oriented controls, and integrated pollution control. Media-oriented controls are those which are directed at protecting a specific component of the environment (air, water, soil). Such controls may lead to shifting environmental harm from one medium to another, and thus fail to reduce (or may even increase) the overall degree of environmental harm. This has led to the development of coordinated prior authorization systems, whereby all pollution from one source and all recipient media are considered before one single, all-embracing authorization is granted.

Environmental standards

Environmental standards are maximum permissible limits which may be imposed directly by a law, or indirectly as conditions to obtain an authorization. These limits may be related either to the effects or the causes of environmental harm:

  • Effect-related standards are those which take the target as a baseline. They include: 
  • (1) biological standards, (2) exposure standards and (3) environmental quality standards.
  • Cause-related standards are those which take the cause of the possible environmental harm as a baseline. They include: (1) emission standards, (2) product standards and (3) process or operating standards.

 

A variety of factors, including the nature of the pollutant, the recipient media and the state of the art, determine which type of standard is most appropriate. Other considerations also play an important role: standard-setting provides a means to achieve a balance between what is environmentally desirable in a particular place at a particular point in time, and the socioeconomic feasibility of achieving a specific environmental goal.

It goes without saying that the stricter the standards are, the higher production costs become. Therefore, differing standards in different locations within a state or between states play an important role in determining competitive market advantages or disadvantages, and may constitute non-tariff barriers to trade—hence the desirability of seeking harmonization at the regional or global level.

Prevention through incentives and disincentives

Controls voluntarily submitted to may be used as flanking measures or as alternatives to command techniques. They usually consist of setting recommended (rather than compulsory) values, and of providing economic incentives or disincentives to achieve them.

The purpose of an incentive (e.g., accelerated depreciation allowance, tax benefit, subsidy) is to reward and, therefore, to generate, a specific environmentally friendly conduct or activity. Thus, instead of trying to achieve a certain emission level by the stick, the carrot of economic benefit is offered.

The purpose of a disincentive (e.g., fees, such as effluent or emission charge, tax or levy) is to induce environmentally friendly conduct so as to avoid paying the fee in question.

There are also other ways of inducing adherence to recommended values, for instance, through the creation of eco-label award schemes, or providing marketing advantages where consumers are sensitized to environmental concerns.

These so-called voluntary approaches are often referred to as alternatives to “legal” controls, forgetting that incentives and disincentives also have to be established by law!

Cure through sanctions or remedies

Sanctions imposed by the regulatory agency

In cases where environmental management measures may be prescribed by the regulatory agency (e.g., through a prior authorization mechanism), legal regimes usually also provide the agency with enforcement powers. A variety of techniques are available, ranging from the imposition of monetary sanctions (e.g., per day) until compliance with the requirement, to execution of the measures required (e.g., building filters) at the cost of the addressee, and finally to closure of the facility for non-compliance with administrative requirements, etc.

Each legal system provides for ways in which these measures may be challenged by those to whom they are applied. Equally important is to provide the possibility for other interested parties (e.g., NGOs representing the public interest) to challenge the decisions of the regulatory agency. In the latter case, it is not only the action of the administration which should be eligible for challenge, but also its inaction.

Penal sanctions

Legislation prescribing a certain environmental norm or conduct usually indicates that disregarding the established rules, whether intentionally or not, constitutes an offence, and determines the type of penal sanctions which are to be applied to each case. Penal sanctions may be monetary (fines) or, in serious cases, may entail incarceration, or a combination of both. Penal sanctions for environmental offences depend upon the penal system of each country. Thus, sanctions are often imposed in reference to the main body of criminal law in a particular country (e.g., a penal code), which may also include a chapter on environmental offences. Penal sanctions can be triggered by the administration or by an aggrieved party.

The legislation of many countries has been criticized for failing to declare certain environmental misconducts as penal offences, or for providing overly mild penalties for environmental offences. It has often been observed that if the quantum of the sanctions is less than the cost of internalizing environmental management measures, the culprits are likely to deliberately prefer the risk of a penal sanction, especially if this sanction may be only a fine. This is especially true when there is an enforcement deficit—that is, when the enforcement of environmental norms is lax or lenient, as is often the case.

Liability for damages

Each legal system’s rules applying to liability for damage naturally also apply to health and environmental damage. This usually means that compensation is due either in kind or specie only when the damage proves to have been caused directly by the fault of one or more originators.

In the environmental field, the difficulties in applying these principles are numerous, and have led to the enactment of sui generis environmental liability laws in an increasing number of countries. This has made it possible to provide for liability without fault, and, therefore, to allow for compensation independently of the circumstances which caused the damage. In such cases, however, a certain monetary ceiling is usually set with a view to permitting eligibility for insurance coverage, which may also be made compulsory by law.

These special regimes also attempt to better provide redress in cases of damage to the environment per se (ecological damage as opposed to economic damage), usually requiring the restoration of the environment to the status quo ante whenever the nature of the damage permits. In such a scenario, monetary damages are in order only if restoration is impossible.

Access to remedies

Not everyone may take action to generate sanctions or obtain remedies. These may traditionally be triggered only by the administration, or a physical or legal person directly affected by a certain situation. In cases where it is the environment that is affected, this is usually insufficient, since much environmental damage is not directly linked to individual human interests. Therefore, it is important for legal systems to grant “representatives” of the public interest the right to sue the administration for failure to act or for insufficient action, or to sue individuals or enterprises for breaking the law or causing damage to the environment. There are various ways in which this can be achieved: designated non-governmental organizations may be given this right; the legal system may provide for class action or citizens’ suits, etc. The right to sue in defence of the public interest, rather than only to defend a proprietary interest, is one of the most important elements of modern environmental legislation.

Conclusion

Good environmental legislation is a prerequisite to achieve and maintain the desired levels of quality in the natural, as well as in the work environment.

What “good” environmental legislation is, might be difficult to define. Some wish to see a decline in command and control methods, and their replacement by softer incitation techniques but, in practice, there is no standard formula to decide what the ingredients of the law should be. What is important, however, is to make legislation relevant to the particular situation of the country concerned, adapting available principles, methods and techniques to the needs, capacities and legal traditions of each country.

This is all the more true at a time when large numbers of developing nations and nations with economies in transition seek to equip themselves with “good” environmental legislation, or to retrofit legislation already in place. In striving towards this goal, however, legislation which is successful in a particular legal, economic and social context, frequently that of an industrialized country, is still too often imported as a model in countries and legal systems for which it is totally inappropriate.

“Particularizing” legislation is, therefore, perhaps the most important element in achieving the goal of effective environmental legislation.

 

Back

Read 2236 times Last modified on Monday, 27 June 2011 11:09

Contents

Preface
Part I. The Body
Part II. Health Care
Part III. Management & Policy
Part IV. Tools and Approaches
Part V. Psychosocial and Organizational Factors
Part VI. General Hazards
Part VII. The Environment
Environmental Health Hazards
Environmental Policy
Resources
Environmental Pollution Control
Part VIII. Accidents and Safety Management
Part IX. Chemicals
Part X. Industries Based on Biological Resources
Part XI. Industries Based on Natural Resources
Part XII. Chemical Industries
Part XIII. Manufacturing Industries
Part XIV. Textile and Apparel Industries
Part XV. Transport Industries
Part XVI. Construction
Part XVII. Services and Trade
Part XVIII. Guides

Environmental Policy Additional Resources

Click the Button below to view additional resources for this topic.

button

Environmental Policy References

Abecassis and Jarashow. 1985. Oil Pollution from Ships. London: Sweet & Maxwell.

African Convention on Conservation of Nature and Natural Resources, Algiers. 1968. United Nations Treaty Series. Geneva: United Nations.

ASEAN. 1985. ASEAN Agreement On the Conservation of Nature and Natural Resources. Kuala Lumpur: ASEAN.

Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa. 1991. Int Legal Mater 30:775.

Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal. 1989.

Berne Convention on the Conservation of European Wildlife and Natural Habitats. 1979. European Treaty Series (ETS) No. 104.

Birnie, PW. 1985. The International Regulation of Whaling. 2 vols. New York: Oceana.

Birnie, P and A Boyle. 1992. International Law and the Environment. Oxford: OUP.

Bonn Agreement for Co-operation in Dealing with Pollution of the North Sea by Oil and Other Harmful Substances: Amending Decision. 1989. In Freestone and IJlstra 1991.

Bonn Convention on the Conservation of Migratory Species of Wild Animals, 1979. 1980. Int Legal Mater 19:15.

Boyle, AE. 1993. The convention on biodiversity. In The Environment After Rio, edited by L Campiglio, L Pineschi, and C Siniscalco. Dordrecht: Martinus Nijhoff.

Bucharest Convention on the Protection of the Black Sea. 1992. Int J Marine Coast Law 9:76-100.

Burhenne, W. 1974a. Convention on Conservation of Nature in the South Pacific, Apia Convention. In International
Environmental Law: Multilateral Treaties. Berlin: E Schmidt.

—. 1974b. International Environmental Law: Multilateral Treaties. Berlin: E Schmidt.

—. 1994c. Selected Multilateral Treaties in the Field of the Environment. Berlin: E Schmit.

Canadian Standards Association. 1993. Life-Cycle Assessment Guideline. Rexdale, Ontario: CSA.

Canberra Convention on the Conservation of Antarctic Marine Living Resources. 1980. Int Legal Mater 19:837.

Churchill, R and D Freestone. 1991. International Law and Global Climate Change. London: Graham & Trotman.

Code permanent environment et nuisances. N.d. Vol. 1 & 2. Montrouge, France: Editions législatives et administratives.

Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and
Central African Region, 23 March, Abidjan. 1981. Int Legal Mater 20:746.

Convention for the Protection of Birds Useful to Agriculture. 1902. British and Foreign State Papers (BFSP), No. 969.

Convention for the Protection of the Mediterranean Sea against Pollution, Barcelona, 16 February. 1976. Int Legal Mater 15:290.

Convention for the Conservation and Management of the Vicuna. 1979. In International Environmental Law: Multilateral Treaties, edited by W Burhenne. Berlin: E Schmidt.

Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, 24 March,
Cartagena des Indias. 1983. Int Legal Mater 22:221.

Convention for the Protection, Management and Development of the Marine and Coastal Environment of the East African Region, 21 June, Nairobi. 1985. In Sand 1987.

Convention for the Protection of the Marine Environment and Coastal Areas of the South-East Pacific, 12 November, Lima. In Sand 1987.

Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, 24 November 1986, Noumea. Int Legal Mater 26:38.

Convention on Biological Diversity. 1992. Int Legal Mater 31:818.

Convention on Conservation of Nature in the South Pacific. 1976. In International Environmental Law: Multilateral Treaties, edited by W Burhenne. Berlin: E. Schmidt.

Convention on Long-Range Transboundary Air Pollution. 1979. Int Legal Mater 18:1442.

Convention on the Transboundary Effects of Industrial Accidents. 1992. Int Legal Mater 31:1330.

Convention on Third Party Liability in the Field of Nuclear Energy. 1961. Am J Int Law 55:1082.

Ehlers, P. 1993. Helsinki Convention on the Protection and Use of the Baltic Sea Area. Int J Marine Coast Law 8:191-276.

Espoo Convention on Environmental Impact Assessment in a Transboundary Context. 1991. Int Legal Mater 30:802.

Framework Convention on Climate Change. 1992. Int Legal Mater 31:848.

Freestone, D. 1994. The Road from Rio: International Environmental Law after the Earth Summit. J Environ Law 6:193-218.

Freestone, D. and E Hey (eds.). 1996. The Precautionary Principle in International Law: The Challenge of Implementation. The Hague: Kluwer Law International.

Freestone, D and T IJlstra. 1991. The North Sea: Basic Legal Documents On Regional Environmental Co-operation. Dordrecht: Graham & Trotman.

Geneva Protocol Concerning the Control of Emissions of Volatile Organic Compounds or their Transboundary Fluxes. 1991. Int Legal Mater 31:568.

Geneva Protocol on Long-term Financing of the Co-operative Programme for Monitoring and Evaluation of the Long-Range Transmission of Air Pollution in Europe. 1984. Int Legal Mater 24:484.

Heijungs, R. 1992. Environmental Life Cycle Assessment of Products- National Reuse of Waste Research Programme. Novem & Rivm.

Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area. 1974. Int Legal Mater 13:546.

Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes. 1992. Int Legal Mater 31:1312.

Helsinki Protocol on the Reduction of Sulphur Emissions. 1988. Int Legal Mater 27:64.

Hey, E, T IJlstra, and A Nollkaemper. 1993. Int J Marine Coast Law 8:76.

Hildebrandt, E and E Schmidt. 1994. Industrial Relations and Environmental Protection in Europe. Dublin: European Foundation for the Improvement of Living and Working Conditions.

Hohmann, H. 1992. Basic Documents of International Environmental Law. London: Graham & Trotman.

International Chambers of Commerce. 1989. Environmental Auditing. Paris: ICC.

International Convention for the Prevention of Pollution of the Sea by Oil. 1954. United Nations Treaties Series (UNTS), No. 327. Geneva: United Nations.

International Convention for the Prevention of Pollution from Ships (1973), as amended in 1978. Int Legal Mater 17:546.

International Convention on Civil Liability for Oil Pollution Damage. 1969. Int Legal Mater 16:617.

International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, Brussels, 1971. Amended 1976, Protocols in 1984 and 1992. 1972. Int Legal Mater 11:284.

International Convention on Oil Pollution Preparedness, Response and Cooperation. 1991. Int Legal Mater 30:735.

International Convention relating to Intervention on the High Seas in cases of Oil Pollution Damage, 1969. 1970. Int Legal Mater 9:25.

International Labour Organization (ILO). 1990. Environment and the World of Work. Report of the Director-General to the International Labour Conference, 77th Session. Geneva: ILO.

IUCN and Government of the Republic of Botswana. N.d. Environmental Impact Assessment: Manual for In-Service Training. Gland, Switzerland: IUCN.

Keoleian, GA and D Menerey. 1993. Life Cycle Design Guidance Manual. Washington, DC: Environmental Protection Agency.

Kiss, A and D Shelton. 1991. International Environmental Law. New York: Transnational.

Kummer, K. 1992. The Basel Convention. Int Comp Law Q 41:530.

Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution, 24 April,
Kuwait. 1978. Int Legal Mater 17:511.

Lac Lanoux Arbitration. 1957. In 24 International Law Reports, 101.

Lloyd, GER. 1983. Hippocratic Writings. London: Penguin Books.

London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. 1972. Int Legal Mater 11:1294.

Lyster, S. 1985. International Wildlife Law. Cambridge: Grotius.

Ministerial Declaration on the Protection of the Black Sea. 1993. Int J Marine Coast Law 9:72-75.

Molitor, MR. 1991. International Environmental Law: Primary Materials. Deventer: Kluwer Law & Taxation.

Montego Bay Convention on the Law of the Sea (LOSC). 1982. Int Legal Mater 21:1261.

Nordic Convention on the Protection of the Environment. 1974. Int Legal Mater 13:511.

Odessa Ministerial Declaration on the Protection of the Black Sea, 1993. 1994. Int J Marine Coast Law 9:72-75.

OJ L103/1, 24 April 1979, and OJ L206/7, 22 July 1992. 1991. In Freestone and IJlstra 1991.

Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft. 1972. In Freestone and IJlstra 1991.

Paris Convention for the Prevention of Marine Pollution from Land Based Sources. 1974. Int Legal Mater 13:352.

Paris Convention for the Protection of the Marine Environment of the North East Atlantic. 1993. Int J Marine Coast Law 8:1-76.

Paris Memorandum of Understanding on Port State Control in Implementing Agreements on Maritime Safety and Protection of the Marine Environment. 1982. Int Legal Mater 21:1.

Protocol to the Antarctic Treaty on Environmental Protection. 1991. Int Legal Mater 30:1461. 
Ramsar Convention on Wetlands of International Importance, especially as Waterfowl Habitat. 1971. Int Legal Mater 11:963.

Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment, 14 February, Jeddah. 1982. In Sand 1987.

Rio Declaration on Environment and Development. 1992. Int Legal Mater 31:814.

Robinson, NA (ed.). 1993. Agenda 21: Earths’s Action Plan. New York: Oceana.

Ryding, S-O. 1994. International Experiences of Environmentally-Sound Product Development Based On Life-Cycle Assessments. Stockholm: Swedish Waste Research Council.

—. 1996. Sustainable Product Development. Geneva: IOS.

Sand, PH (ed.). 1987. Marine Environmental Law in the United Nations Environment Programme: An Emergent Eco-Regime. London: Tycooly.

—. 1992. The Effectiveness of International Environmental Agreements: A Survey of Existing Legal Instruments. Cambridge: Grotius.

Society of Environmental Toxicology and Chemistry (SETAC). 1993. Guidelines for Life-Cycle Assessment: A “Code of Practice”. Boca Raton:Lewis.

Sofia Protocol Concerning the Control of Emissions of Nitrogen Oxides or their Transboundary Fluxes. 1988. Int Legal Mater 27:698.

Statute of the International Court of Justice. 1945.

Trail Smelter Arbitration. 1939. Am J Int Law 33:182.

—. 1941. Am J Int Law 35:684.

Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water. 1963. Am J Int Law 57:1026.

UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972. Int Legal Mater 11:1358.

UNGA Resolution 2997, XXVII. 15 December 1972.

United Nations. N.d. Declaration of the United Nations Conference On the Human Environment (Stockholm). Geneva: United Nations.

Vienna Convention on Civil Liability for Nuclear Damage. 1963. Int Legal Mater 2:727.

Vienna Convention on the Physical Protection of Nuclear Material. 1980. Int Legal Mater 18:1419.

Vienna Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency. 1986a. Int Legal Mater 25:1377.

Vienna Convention on the Early Notification of a Nuclear Accident. 1986b. Int Legal Mater 25:1370.

Vigon, BW et al. 1992. Life-Cycle Assessment: Inventory Guidelines and Principles. Boca Raton: Lewis.

Washington Convention for the Regulation of Whaling. 1946. League of Nations Treaty Series (LNTS), No. 155.

Washington Convention on International Trade in Endangered Species (CITES). 1973. Int Legal Mater 12:1085.

Wellington Convention on the Regulation of Antarctic Mineral Resource Activities, 1988. Int Legal Mater 27:868.