1. Development of Environmental Law at the Global Level The Agenda 21 of United Nations Convention of on Environment and Development (UNCED) in its Chapter 8, 38 and 39 emphasized on the need to develop capacity in the legal and institutional areas for sustainable development in developing countries. Chapter 8.13 of the Agenda noted that laws and regulations suited to country-specific conditions are among the most important instruments for transforming environment and development into action. Legal enactment on environment became necessary due to increased incidents of environmental degradation, unsustainable exploitation of natural resources, activities of regional and international organizations (multilateral financial agencies and bilateral donor organization.)
The global trend of environmental law making suggests three eras of legal development with clear characteristics. The laws adopted in the post Stockholm Era were ‘use-oriented’. These were natural resource laws dealing with management of land, forests, water, minerals, wildlife, fisheries and so on and had incidental environmental significance. The primary concerns of these laws were allocation and exploitation of the natural resources rather than sustainable use and management.
In the second phase, ‘resource oriented’, ‘anti-pollution’ laws were being adopted that basically aimed at long-term management and sustainable use of natural resources. In the third phase, the laws were more ‘system oriented’ that aimed at integrated planning and management of the environment on the basis of all embracing ecological policies and environmental management programs. At the Global level, various international conventions, treaties, protocols also contributed significantly in fostering the development of environmental law making.
2. Evolution of Environmental Laws at the National Level Following the global trend, various nations of the world moved in updating their environmental legal regime either through adoption of new * Syeda Rizwana Hasan, Executive Director, Bangladesh Environmental Lawyers’ Association (BELA).
2 9:1&2 (2005) Bangladesh Journal of Law laws or amending the existing ones. The development of the environmental legal regime at the national level shows the following trends: a. Crystallization of Environmental Issues in Constitution As many as 106 countries of the world have incorporated environment related provisions in their Constitution. While some of the state constitutions have mentioned environment in the preamble, others have opted to mention environment either as right or duty or as a matter of public interest.
b. Evolution of Right to Environment in Cases In some region/countries, development of environmental laws has been greatly affected by case laws. For example, in India and Bangladesh the rights to life of the Constitutions have been interpreted by the judiciary as including right to sound environment. [M C Mehta vs. Union of India (AIR 1987 SC 985); AIR 1992 Kant 57].
c. Incorporating Environment in Policy Documents In most cases, the policy regime has been more prompt in incorporation of environmental thoughts than the legal arena. Most of the policy documents in Bangladesh being more recent documents have incorporated many progressive notions and values including environment whereas no single law still gives unconditional right to a clean environment. d. More Comprehensive Coverage of Environmental Issues
Legal development on environment has not remained limited to pollution or conservation goals only. Rather the broader dimensions of environmental issues have been recognized and various methods have been suggested to ensure achievement of legal commitment and monitoring. Laws of many countries have required and laid down procedure for dispute settlement, environmental impact assessment (EIA), environmental quality standard, education and information.
e. Use of Economic Instruments For balancing the conflicting demands of economic development and environment, new principles have emerged in the economic sector to operate the notions of tax incentives, user pays, environment funds and so on.
f. Provision for Public Participation and Review As with democracy, in environmental governance also participation of all stakeholders concerned is essential. In a good number of countries, Application and Reform Needs of the Environmental Law in BD 3 environmental decision making process has been regulated in a manner to ensure participation of those likely to be affected by the decision. g. Recognition of International Norms
In some cases countries have shown respect to international environmental laws and to ensure that there global commitment is not frustrated and have adopted domestic laws that promote such commitments. Changes in legal regime, though an important step forward, cannot itself ensure compliance. Hence, the need for effective coordination of environment management, establishment of institutions to administer the laws and mechanism for facilitating compliance has been equally emphasized in countries that have gone for more responsive environmental legal regime.
3. Environmental Laws in Bangladesh It was thought once that the existing laws of Bangladesh are too inadequate to be worked with environment. But when the work on environment was started, existing laws were found to be operative. The reason may be that the same law can be interpreted in different ways in different perspectives. A writ petition was filed by BELA (Bangladesh Environmental Lawyers Association) relating to “Locus Standi” of Article 102 of the Constitution of Bangladesh and because of the progressive interpretation given by the Supreme Court of Bangladesh the concept of Public Interest Litigation (PIL) is judicially recognized in our country. Although Article 102 has been in our Constitution since 1972, this provision was not interpreted in such a progressive way before.
There would be lacuna in the interpretation of law if we remain unenlightened about the standpoint of environmental movement in Bangladesh. Environment came out to be an important topic here after the devastating flood of 1987 and 1988. In order to control the flood situation the Government of Bangladesh undertook a Flood Control Project with the aid of donor agencies. In fact the environmental movement in Bangladesh started centering that development project. Some NGOs, which were working on environment separately, found that there would be irreparable loss to the environment if the above project namely Flood Action Plan was allowed to continue.
Those NGOs assembled to establish a platform by the name “Life Minded Environmental Activist Forum”. Environmental movement commenced privately from that forum. On the other hand in the Governmental level the Ministry of Environment and Forest was formed and incidentally both Governmental and Non-Governmental initiative began together.