Wednesday, November 20, 2019 | ePaper

Environment Law

Access And Benefit Sharing

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Shishir Reza :
[This is the second part of the article]
Transparency, Public Participation and Access to Information
Transparency and access to information are essential to public participation and sustainable development, for example, in order to allow the public to know what the decision making processes are, what decisions are being contemplated, the alleged factual bases for proposed and accomplished governmental actions, and other aspects of governmental processes. Public participation in the context of sustainable development requires effective protection of the human right to hold and express opinions and to seek, receive and impart ideas. It also requires a right of access to appropriate, comprehensible and timely information held by governments and industrial concerns on economic and social policies regarding the sustainable use of natural resources and the protection of the environment, without imposing undue financial burdens upon the applicants and with adequate protection of privacy and business confidentiality. Public participation and access to information are recognized in Principle 10 of the Rio Declaration. According to chapter 23 of Agenda 21, one of the fundamental prerequisites for the achievement of sustainable development is broad public participation in decision-making.
Cooperation, and Common but Differentiated Responsibilities
In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command." Principle 7 can be divided into two parts: (1) the duty to cooperate in a spirit of global partnership and (2) common but differentiated responsibilities. The duty to cooperate is well-established in international law, as exemplified in articles 55 and 56 of chapter IX of the Charter of the United Nations. Principle 7 also speaks of common but differentiated responsibilities. This element is a way to take account of differing circumstances, particularly in each state's contribution to the creation of environmental problems and in its ability to prevent, reduce and control them. Article 4 of the 1992 Climate Change Convention recognizes the special circumstances and needs of developing countries and then structures the duties and obligations to be undertaken by states accordingly.  
Precaution and Prevention
Precaution (also referred to as the "precautionary principle," the "precautionary approach," and the "principle of the precautionary approach") is essential to protecting the environment (including human health) and is accordingly one of the most commonly encountered concepts of international environmental law. Probably the most widely accepted articulation of precaution is Principle 15 of the Rio Declaration.
 "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities.  Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation."
Article 3(3) of the 1992 Climate Change Convention appears to take a somewhat more action-oriented approach than Principle 15, stating: "The parties should take precautionary measures to anticipate, prevent or minimize the cause of climate change and mitigate its adverse effects.
Polluter Pay Principles
"National authorities should Endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment." Principle 16 on internalization of costs includes what has become known as the "Polluter Pays Principle" or "PPP".  
Access and Benefit Sharing Regarding Natural Resources
Many indigenous and other local communities rely on natural resources such as forests, high deserts, wetlands, waterways, and fisheries for their livelihood or even existence.  In addition, indigenous and other local communities often have unique cultures integrated with natural resources. Principle 22 of the Rio Declaration provides
"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."
Common Heritage and Good Governance
The concepts of "common heritage of humankind" and "common concern of humankind" reflect the growing awareness of the interdependence of the biosphere and the environmental problems besetting it, as well as of the global nature of many environmental problems and the critical importance of those problems. The protection, preservation and enhancement of the natural environment, particularly the proper management of the climate system, biological diversity and fauna and flora of the Earth, are generally recognized as the common concern of humankind.
The concept of good governance is relatively recent and reflects a growing awareness of the importance to sustainable development of transparent, accountable, honest governance, as well as a growing awareness of the corrosive effect of corruption on public morale, economic efficiency, political stability and sustainable development in general. Good governance implies not only that Civil Society has a right to good governance by states and international organizations, but also that non- state actors, including business enterprises and NGOs, should be subject to internal democratic governance and effective accountability. Good governance requires full respect for the principles of the 1992 Rio Declaration on Environment and Development, including the full participation of women in all levels of decision- making.
Environmental Laws to Resources Security in Bangladesh
In Bangladesh environmental law has been developed few years ago. "Bangladesh Environmental Conservation Act" was developed in 1995. The main principles of this Act are, Environmental Conservation; Development of Environmental Condition; Control Environmental Pollutions and Reduce Environmental Pollutions. Different Order and Act has been established for resources management in Bangladesh. Some important Acts are, The Agricultural Pesticides Ordinance, 1971; Bangladesh Fisheries Development Corporation Act, 1973; Bangladesh Rice Research Institute Act, 1974; Territorial Water Maritime Zones Act, 1974; Bangladesh Petroleum Act, 1974; The Marine Fisheries Ordinance, 1983; The Land Reforms Ordinance, 1984; National Forestry Policy, 1994 and Bangladesh Water Development Board Act, 2000.
Legislative means Relating to law or Making of law. Many Organizations involved in this purpose. Such as, Ministry of Environment and Forests; Bangladesh Environmental Lawyers Association (BELA); Coalition of Environmental NGOs (CEN); The Environmental Law Alliance Worldwide (E-LAW); United Nations Environment Program (UNEP) and International Union for Conservation of Nature (IUCN).
International environmental law also includes the opinions of international courts and tribunals. While there are few and they have limited authority, the decisions carry much weight with legal commentators and are quite influential on the development of international environmental law.

(Shishir Reza, an Environmental Analyst & Associate Member, Bangladesh Economic Association)

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