ARE THE ENVIRONMENT LAW PRINCIPLES EFFECTIVELY REFLECTED IN GAMBIAN LAWS: DISCUSS
ENVIRONMENTAL LAW ASSIGNMENT
MAT. No. 2080529
ARE THE ENVIRONMENT LAW PRINCIPLES EFFECTIVELY REFLECTED IN GAMBIAN LAWS: DISCUSS
ARE THE ENVIRONMENT LAW PRINCIPLES EFFECTIVELY REFLECTED IN OUR LAWS: DISCUSS
The environmental law and principles to be discussed in this Assignment includes:
Polluter Pay Principle
Institutional and legal framework and Multi Environmental Agreements (MEA) in the Gambia
In the 1970s and 80s Gambia developed a relatively active body of environmental legislation and according to the State of the Environment Report, the Banjul declaration of 1977 called for action to address environment and natural resources management in The Gambia. The enactment of the National Environmental Management Act (NEMA) by government in 1987 and the establishment of the National Environmental Management Council (NEMC provided the legal framework for environmental planning, management and development. This institutional arrangement led to the participatory approach in the preparation in the Gambia National Action Plan phase I and II which provides for the implementation of the international environmental and natural resources management-related conventions to which Gambia is a party to. This will be discussed later.
The 9th Session of the African Ministerial Conference on the Environment (AMCEN) held in Kampala, Uganda, in July 2002 recognizes that some African countries had constrains in effective environmental management and planning and also the implementation major international environmental agreements due to the lack of adequate and relevant environmental information and data.
Due to population increases and the setting of urban centres, there has been a corresponding increase in demand for resources such as forest, water and other natural resources in the Gambia. Studies have indicated that there have been a decline in the state of the natural resources, to address this situation in the country, the government has identified a wide variety of principles and targets, including sector specific goals and measures taken to meet its commitments and attain its desired goal at all levels. To achieved the long term goals in order to protect the environment and ensure sustainable development and management of the natural resources, specific operational objectives have been established in relation to capacity building, public awareness, legal , international collaboration and cooperation, policies etc.
II Sustainable development is defined by the Brundtland Commission as: “Humanity has the ability to make development sustainable—to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs.” It goal is to enable all people throughout the world to satisfy their basic needs and enjoy a better quality of life, without compromising the quality of life of future generations.
- the concept of needs, in particular the essential needs of the world's poor, to which overriding priority should be given; and
- the idea of limitations imposed by the state of technology and social organization on the environment's ability to meet present and future needs."
This definition is creatively ambiguous and has led many to see sustainable development as having a major focus on intergenerational equity. The definition does not explicitly mention the environment or development.
The three pillars of sustainable development are: economic, social, and environmental and the Johannesburg Declaration created “a collective responsibility to advance and strengthen the interdependent and mutually reinforcing the pillars. Declaration created “a collective responsibility to advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development.
Other ways to define sustainable development includes:
- what it specifically seeks to achieve and still another way to define sustainable development is in how it is measured
- Another mode of defining sustainable development is through the values that represent or support sustainable development.
- and in many ways, most importantly—sustainable development is defined in practice which includes, establishing goals, creating indicators, and asserting values, developing social movements, organizing institutions, etc
III The Polluter Pays Principle (PPP) is an environmental policy principle which requires that the costs of pollution be borne by those who cause it. It aims at determining how the costs of pollution prevention and control must be allocated: the polluter must pay.
Its immediate goal is that of internalizing the environmental externalities of economic activities, so that the prices of goods and services fully reflect the costs of production. Bugge (1996) has identified four versions of the PPP: economically, it promotes efficiency; legally, it promotes justice; it promotes harmonization of international environmental policies; it defines how to allocate costs within a State. Section 39 of the NEMA makes provision for the prohibition of pollution and section 39(3)(a) require a person to pay the full cost of cleaning the environment in addition to subsection (2) of the Act.
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Section 39. (1) No person shall pollute or permit any other person to excess of any standards or guidelines established under section 28.
(2) A person who pollutes or permits any other person to pollute the environment in excess of any standards and guidelines established under this Act commits a offence.
(3) In addition to any sentence that may be imposed upon a polluter under sub-section
(2) the Court shall require such person.
(a) to pay the full cost of cleaning up the environment and of removing the effects of the pollution; or
(b) to clean up the environment and remove the effects of the pollution.
III Precautionary Principle
The concept of precautionary principle in the context of environmental protection is essentially about the management of scientific risk. It is a fundamental component of the concept of ecologically sustainable development (ESD) and has been defined in Principle 15 of the Rio Declaration:
Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
Although the term "measures" is not entirely clear it has generally been accepted to include actions by regulators such as the use of statutory powers to refuse environmental approvals to proposed developments or activities
Gambia has not yet adopted ESD as a guiding principle of environmental management
IV Institutional and legal framework and Multi Environmental Agreements (MEA) in the Gambia:
As part of its commitments to the management of the global environment, the Government of the Gambia is a party to a number of multilateral environmental agreements (MEA) and most of their associated conventions and protocols.
The National Environment Management Act (NEMA)
The NEMA was enacted by Parliament in 1994 and it provided the legal framework for environmental planning, management and development. The Act aims to facilitate the implementation of International treaties. Section 38(1) and (2) makes provision for the control of pollution and prohibits the discharge of materials, substance and oil in the environment
38. (1) No person shall discharge any dangerous material, or substance, oil or mixture containing oil into any waters or any other segment of the environment except in accordance with regulations prescribed by the Council.
(2) A person who discharges any dangerous material or substance, oil or mixture containing oil in any water or other segment of the environment contrary to sub-section (1) commits an offence.
1973: Convention on International Trade in Endangered Species and Wild Fauna and Flora (CITES)
CITES is an international agreement between Governments, drafted as a result of a resolution adopted in 1963 at a meeting of members of the World Conservation Union (IUCN). Its aim is to ensure that international trade in specimens of wild animals and plants does not threaten their survival and it accords varying degrees of protection to more than 33,000 species of animals and plants.
The Gambia enacted this Act in 1977 to provide for the conservation and rational management of wildlife in The Gambia, enforcement of the Act have been very weak.
Convention for Cooperation in the protection and development of Marine and Coastal Environment of the West and Central African Region (WACAF)
The Gambia ratifies the convention in 1984. The convention objective is to protect the marine environment, coastal zones and related natural waters falling with the jurisdiction of the States of West and Central African Region. The Gambia have actively participated in all the WACAF regional action plan for the control of marine pollution and the management of marine and coastal resources developed under auspices of the regional seas programme of UNEP.
Bamako Convention on the ban of the import into Africa and the control of Transboundary Movement of hazardous Wastes within Africa (1991)
The objectives of the Bamako convention are to protect human health and the environment from dangers posed by hazardous waste by reducing their generation t minimum in terms of quantity and/or hazard potential.
The Gambia is a party to the Bamako Convention and all Parties are obliged to prohibit all hazardous waste for nay reasons in Africa from non-contraction parties according to Article 4.1 of the convention.
1971: Convention on Wetlands of International Importance, especially as Waterfowl Habitat (“Ramsar Convention”)
The Ramsar Convention is an international treaty for the conservation and sustainable utilization of wetlands, i.e. to stem the progressive encroachment on and loss of wetlands now and in the future, recognizing the fundamental ecological functions of wetlands and their economic, cultural, scientific, and recreational value.
The Gambia ratified the convention in 1996. The Department of Parks and Wildlife is the Focal Institution and they have identified the Baobolong, Tan-bi and Niumi Wetlands as a Ramsar sites.
1985: Vienna Convention on the Protection of the Ozone Layer
The Vienna Convention was adopted in 1985; it became an important legal basis for taking international action to protect the Earth’s stratospheric ozone layer. Among the objectives set out in the Convention is for Parties to promote cooperation by means of systematic observations, research and information exchange on the effects of human activities on the ozone layer and to adopt legislative or administrative measures against activities likely to have adverse effects on the ozone layer.
1989: Convention on the Control of Tran boundary Movements of Hazardous Waste and Their Disposal ("Basel Convention")
The Basel Convention is an international treaty that was designed to reduce the movements of hazardous waste between nations, and specifically to prevent transfer of hazardous waste from countries from the global North to countries from the global South. It does not, however, address the movement of radioactive waste. The Convention is also intended to minimize the amount and toxicity of wastes generated, to ensure their environmentally sound management as closely as possible to the source of generation, and to assist countries from the global South in environmentally sound management of the hazardous and other wastes they generate.
The Gambia ratified the Basel Convention and the National Focal Institution is the National Environment Agency. In 1994, the Convention in cooperated a ban as an amendment to the original convention. This amendment bans the export of wastes from the developed to the developing countries.
1992: Convention on Biological Diversity
The Convention on Biological Diversity is an international treaty that was adopted at the Earth Summit in 1992. The Convention has three main goals: conservation of biological diversity (or biodiversity); sustainable use of its components; and fair and equitable sharing of benefits arising from genetic resources. Its objective is to develop national strategies for the conservation and sustainable use of biological diversity.
The Gambia ratified the Convention in 1994. With regard to protection and conservation of endangered habitat, the government committed it self to the preservation of flora and funa for future generations as contained in the Banjul Declaration 1977. The countries legal and institutional Profile was developed in 1977 and forms the basis for subsequent amendments of sectoral laws which have bearing on issues addressed under the Convention. The Gambia has since then developed the National Biodiversity Strategy Action Plan (NBSAP).
1992: Frame convention on Climate change (UNFCCC)
The UNFCCC is an international environmental treaty produced at the Earth Summit in 1992. The treaty aims at reducing emissions of greenhouse gas in order to combat global warming. Its stated objective is "to achieve stabilization of greenhouse gas concentrations in the atmosphere at a low enough level to prevent dangerous anthropogenic interference with the climate system."
The Gambia is one of the low-lying countries and most likely to be affected by climate change. The UNFCCC was ratified in 1994 and also the Kyoto Protocol in 2001. The Department of water Resources is the Focal Institution and chaired the National Climate Committee. The country has completed its First national communication and is currently developing the Second national Communication which is incomplete. A National Adaptation Programme of Action (NAPA) on climate change has also been developed. According to the First National Communication, The Gambia is considered a net sink of greenhouse gases and one of the most vulnerable to climate change.
1994: Convention to Combat Desertification
The Convention to Combat Desertification is an agreement to combat desertification and mitigate the effects of drought through national action programs that incorporate long-term strategies supported by international cooperation and partnership arrangements. The Gambia ratified this convention in 1994. The government through this convention will address the issue of land degradation which has reached a critical stage. A National Desertification taskforce was established as a fulfillment to Article 10 of the convention and also a National Action Plan developed which is seriously checked by financial and capacity constraints.
Stockholm convention on Persistent Organic Pollutants (POPs)
The Gambia ratified the convention in 2002. The convention aim at protecting human health the and environment from the risks of POPs. The danger about POPs is that they are harmful to human being and wildlife. The Gambia agrees to stop the production and use of the POPs and to achieve this have developed a National Implementation Plan which will outlined measures for initiating measure for activities to protect human health and the environment.
Challenges in implementing the conventions
The Gambia have ratified several international convention, the challenges includes the following:
- Limited capacity in terms of human resources
- Financial resources
- Lack of adequate trained personnel and infrastructure to prevent and detect illegal traffic in animal and plants waste and hazardous substances
- Lack of a proper laboratory to carry out sample analysis
Rule of law, good governance and sustainable development
There is a consensus that the rule of law and good governance are the foundation for achieving sustainable development goals. Various institutions have taken initiatives in promoting the rule of law and good governance throughout the world and have made considerable progress over the years. However, despite these efforts and the growing number of environmental laws and regulations, environmental quality and public health continue to deteriorate due in significant part to lack of implementation, enforcement, and compliance with existing laws. A strengthened focus on compliance and enforcement efforts could overcome these problems and would be a critical investment for advancing sustainable development.
In the Gambia there is need to improve administrative procedures, enforcement and compliance mechanism for the effective detection and prevention of illegal traffic.
Environmental law enforcement problems includes:
- lack of political will
- lack of public awareness and participation
- insufficient financial means
- insufficient trained personnel
- inappropriate legislation
- inefficient institutional structures
- bad planning
- insufficient integration of environmental considerations in economic and sectoral policies
Source: UNEP 1991 (2), p. 19 ss.
In conclusion, environmental laws, particularly sustainable development is the bridge, between environmental, economic and social goals, between north and south, between Governments, civil society and business, between science and policy, and between policy and action. Like any change process, it requires participation and commitment from top to bottom – from government policies to individual behaviors. In addition, I believe that new technological and social innovations will be required to provide alternatives to help all the Gambia people maintain their livelihoods without depleting the scarce natural resources available in the continents.
As the world is currently facing extremely difficult challenges to sustainable development and environmental management. The food crisis, energy crisis, financial crisis, a global recession and, of course, the looming climate crisis are all interconnected and the only way of addressing them effectively is through integrated solutions.
In order to address some of the environmental challenges, it is necessary to action at all levels at global, national and communities. Civil society, public agencies and the private sector must be involved in development programs to help mitigate the problems. Some of the actions that might be taken are as follows:
- Strengthen capacity to implement multilateral environmental agreements. (Convention on Biological Diversity, the Montreal Protocols, the Convention to Combat Desertification and many others).
- Seek assistance to improve effectiveness of institutions, policies and regulatory capacity
- Develop capacity to carry out strategic environmental assessments of current policies and programs
- Promote environmental management
- Through increased awareness, attitude re-orientation and the provision of alternatives, individual and communal action could be a vital force in the long run in achieving ecologically friendly sustainable development.
In the 1970s and 80s Gambia developed a relatively active body of environmental legislation. In addition to several sectoral laws, a first National Environmental Management Act (NEMA) was adopted in 1987. This law established environmental agencies - the National Environmental Council and the Environmental Committee - it also provided for basic obligations for environment protection and the use of natural resources, even though in a very general form.
The law was completely revised and enlarged in 1994. The NEMA 1994 is an example of a comprehensive environmental framework law aiming at the integration and harmonization of environmental law. The National Environmental Council was retained; in addition the law provides for the establishment of a national environment agency, regulates the major instruments of environmental policy, namely planning, environmental impact assessment and enforcement, contains basic obligations of pollution control, protection of resources and the use of resources, and comprehensively addresses issues such as environmental reporting, environmental education and environmental awareness raising. The environmental legal regime in Gambia consists of the following major laws:
National Environmental Management Act 1994
Public Health Act 1990
National Water Resources Council Act 1979
Hazardous Chemicals and Pesticides Control and Management Act 1994
Environmental Protection (Protection of Dumping) Act 1988
Forest Act 1977
Forest Regulations 1977
Wildlife Conservation Act 1977
Fisheries Act 1991
Fisheries Regulations 1995
Physical Planning and Development Control Act 1990
Land Use Regulations 1995
State Lands Regulations 1995
Development Control Regulations 1995
Draft Plans Regulations 1995
Work on further development of environmental law needs to focus on the preparation of EIA regulations, the revision of forestry legislation, and the development of a water law and a law on waste management.
Source of the laws: Environmental Laws and Regulations of The Gambia, compiled by the Gambian-German Environmental Management Project (GGEMP), 1996.
- African Economic Outlook 2007. Published by African Development Bank , Tunisia -
- Bugge H. C., 1996. "The principles of polluter pays in economics and law", in Eide E. and van der Bergh R. (eds) "Law and Economics of the Environment", Oslo: Juridisk Forlag, 1996.
- Gambia, Republic of The (1992): The Gambia Environmental Action Plan first Phase(GEAPI) 1992-2001
- Gambia, Republic of The (1994): The National Environmental Management Act, 1994, Banjul, The Gambia
- Gambia, Republic of The (2010): State of the Environment Report, 2nd Edition.
- Global Environmental Fund
- Harnessing Technologies for Sustainable Development- United Nations Economic Commission for Africa
- Millenium Development Goals Report 2007- United Nations Development Program-
- National Environmental Agency 1994, Hazardous chemeical and Pesticides Control and Managemet Act
- Special Report on The Regional Impacts of Climate Change-An Assessment of Vulnerability Intergovernmental Governmental Panel on Climate Change ( IPCC):
- The Johannesburg Declaration on Sustainable Development, note 11 above, page 1.
- The Johannesburg Principles on the Role of Law and Sustainable Development, adopted at the Global Judges Symposium held in Johannesburg, South Africa, on 18-20 August 2002, available at deramb/publicaciones/GlobalJu.pdf
- United Nations Conference on Environment and Development, Rio, 1992 (the "Rio Declaration").
- World Commission on Environment and Development (WCED), Our Common Future (New York: Oxford University Press, 1987), 8.
- World Development Indicators (2006) World Bank Group.