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Katso englanninkielistä välilehteä Enviromental law.

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Timo Koivurova

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Enviromental law

Environmental law. In the broadest sense of the term, environmental law can be defined as the area of law that regulates the use of the environment. Before the 1970 s, the norms relating to the use of the environment were mainly concerned with private law relations between individual citizens of states, for instance in cases where a physical nuisance was caused by one neighbour to another, and with the ownership, demarcation and the use of physical space. Consequently, this body of law was not called environmental law but was known by names like Land and Water Law , as it was called for instance in Finland. At the international level, no specific branch of law called international environmental law existed, although there were several, mainly bilateral, treaties between neighbouring states that contained norms relating to the use of natural resources, especially frontier rivers.

It was primarily the 1972 United Nations Stockholm Conference on the Human Environment that started to transform norms relating to the use of the environment, both nationally and internationally. In line with this development, there appeared textbooks on national and international law, which designated these areas of norms as national environmental law and international environmental law respectively. These terms are now commonly used not only to cover modern environmental protection norms but also zoning laws, nuisance laws and laws regulating land ownership and the demarcation of physical space. In describing the progress in environmental law over the past 30 years, it is useful to compare the development in different aspects of it. The focus of environmental law has developed hand in hand with developments in knowledge about the environment and how it functions.

One clear development is the internationalization of environmental law. Especially at the time of, and after, the Stockholm Conference, numerous important global and regional conventions dealing with different aspects of international environmental protection were adopted. These conventions and other instruments have also been augmented to keep up with increasing knowledge about the environment. The earlier focus on protecting the individual species of ecosystems has been replaced several times by treaties that try to protect the whole ecosystems on which the individual species are heavily dependent. The protection of individual endangered species has now been complemented by the Convention on Biological Diversity, which requires states to protect diversity in general within species, between species and of ecosystems (Art. 2). The focus on protecting the marine environment through individual treaties that concentrated on marine pollution caused by vessels or the dumping of wastes into the sea has been replaced by conventions that address all sources of marine pollution, including land-based pollution of the marine environment. The conclusion of the 1982 United Nations Convention on the Law of the Sea, which addresses all forms of marine pollution and applies to all sea-areas of the world has also been important.

Perhaps the most radical changes have taken place in relation to protection of the aerial environment. The earlier focus on marine pollution and its regulation changed when it was discovered that humankind was not only damaging lakes and forests through air pollution but was also depleting the ozone layer that protected the Earth from ultra-violet radiation. This shift was further intensified when the disastrous consequences for the whole climatic system resulting from global warming were predicted. The main focus of international environmental protection efforts thus shifted to drawing up regulations to combat these global aerial environmental problems, a process which was successfully completed by the adoption of global conventions to address both ozone depletion and global warming, as well as by regional conventions that combated long-range air pollution.

For states that are members of the European Union, environmental law is a very complex issue since both the Union and its member states have a competence in legislating on environmental protection. The EU has been very active in this field and has frequently been a party (as the EC) to international environmental treaties alongside its member states. In many fields it has also harmonized the environmental protection laws of its member states through directives. In these member states, which include Finland and Sweden, environmental law is thus best understood as broadly as possible as including the requirements of international law, EU law and their own national laws and as covering all possible provisions that regulate the use of the environment.

Another important change has been the idea that environmental consequences must also be taken into account in all other areas of policy and law. Previously, environmental protection laws protected only certain environmental media, such as rivers, or concentrated on certain polluting activities or substances. Increasingly, international and national environmental law contains provisions that require environmental protection aspects to be taken into account in all areas of policy. A good example of this development is the increasing use of Environmental Impact Assessment (EIA) procedures. Under these procedures, the likely environmental effects of all kinds of polluting activities are analyzed in a systematic manner, and the people likely to be affected are given the right to participate in the procedure. Through international treaties, especially the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context, the possible transboundary effects and foreign actors can be integrated into the operation of national EIA procedures. The latest development in this integrative approach has been the use of strategic environmental assessment (SEA), whereby the more general-level potential environmental consequences of governmental strategies, programmes and policies can be evaluated.

However, the cross-sectoral approach does not mean only a one-way development. The recent progress, which started from the 1992 Rio Conference on Environment and Development in particular and culminated in the 2002 World Summit on Sustainable Development in Johannesburg, requires economic and social issues to be taken into account in designing and realizing environmental policy and law. A good example of this is Principle 22 of the Rio Declaration:

Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.

According to this principle, environmental management must be practiced together with indigenous peoples in the areas where they live. This requirement applies not only to their knowledge of the environment, which can be different from the knowledge produced by modern Western science but also to the methods by which the environment is protected, for example by using the traditional practices of indigenous peoples. A good example of an instrument that has tried to specify how this kind of environmental management is to be carried out is the Guidelines for Environmental Impact Assessment in the Arctic sponsored by the Arctic Council.

Another clear change in environmental law has been the emphasis on preventing environmental damage rather than concentrating on problems that arise after the damage has already been caused, such as questions of liability. These two issues are evidently not mutually exclusive, but rather are two sides of the same coin. However, national and international environmental policy and law have increasingly focused on the preventive side simply because it is very difficult to restore the environment once the damage has already been done. The most radical expression of this change is the principle of precaution, which requires protective measures to be taken even before it has been scientifically proved that there are foreseeable potentially serious or irreversible effects. This kind of approach has been evident, for instance, when states have tried to combat the two major global environmental problems: ozone depletion and global warming.

An important change has also been the introduction of so-called environmental democracy, i.e. the increasing involvement in environmental decision-making of those people who are likely to be affected. The idea behind this is that it is not enough that elected bodies and governmental organs make environmental decisions solely on the basis of their general legitimacy, but that the people likely to be affected must also be involved in making decisions that are valid from the point of view of the environment. On the international level, the main agreement on this is embodied in the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which lays down basic rules enabling the public to obtain environmental information from governmental organs, to participate in environmental decision-making and issues of redress. A similar development has taken place in national environmental laws, i.e., the protection of the environment is not no longer seen as the exclusive preserve of legitimate governmental organs. At present, the constitutions of about ninety states around the world include a provision enshrining the citizens right to a decent environment. For instance, the Finnish Constitution (Art. 20) stipulates that it is the general right and duty of all citizen as well as of the state to protect the environment. This general right is made concrete by requiring the state to guarantee the right of all citizens to participate in environmental decision-making.

In conclusion, it can be seen that environmental law, both nationally and internationally, has developed in a rapid fashion, mainly under the impetus provided by discoveries in the natural sciences. At the moment, environmental law covers a huge spectrum of normative material, and consequently it is not easy to define its borders. Indeed, it seems that it is not even desirable to try to define the norms or normative fields of this branch of law because it draws heavily on other disciplines, especially the natural sciences, and it has many points of contact with neighbouring branches of law.

Timo Koivurova

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