INTRODUCTION TO ENVIRONMENTAL & NATURAL RESOURCES

LAW

1.0 WHAT IS THE ENVIRONMENT?

Broadly defined, the environment is the sum total of surrounding things, conditions or influences
including water, air, soil, flora and fauna. The Environmental Management and Conservation
Act (E.M.C.A) defines the environment to include the physical factors of the surroundings of
human beings including land, water, atmosphere, climate, sound, odor, taste, the biological factors
of animals and plants and the social factor of aesthetics and includes both the natural and built
environment1.

In the Stockholm Declarations; “...especially representative samples of natural ecosystem” are

also included within the definition. In a technical sense, the environment could be argued to cover;
“...all those elements which in their complex inter-relationships form the frame work, setting and
living conditions for mankind, by their very existence or by the virtue of their impact.”2

From the aforementioned definitions, the environment therefore could, in its basic sense, be simply
termed as an aggregate of all the physical, chemical, biological and social factors surrounding a
man.

1.1 WHAT ARE NATURAL RESOURCES?

One could define natural resources as naturally occurring materials provided by the earth that
humans could utilize to produce more complex products. Natural resources include all aspects of
the environment that is not manmade and possess some value to man with examples such as forests,
minerals, oceans, fresh water, soil and air.3

The Constitution of Kenya, 2010 also offers a definition of natural resources to mean the physical
non-human factors and components, whether renewable or non-renewable including sunlight,

1
S.2 of E.M.C.A, 1999
2
E.E.C OJ C 115, May 1976, p2
3
Muigua K, “Natural Resources and Environmental Justice in Kenya.”

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surface and groundwater, forests, biodiversity and genetic resources, rocks, minerals, fossil fuels
and other sources of energy. On the other hand, E.M.CA defines natural resources as to include
resources of the air, land, water, animals and plants including their aesthetic qualities.4

Mankind’s survival and livelihood is heavily dependent on natural resources. Natural resources
therefore, play vital roles in the life of man, these roles being classified either into economic, social
or cultural. Natural resources economic role to society is highlighted by the fact that they are
significant sources of income for individuals and the state. Socially, natural resources could be
argued to contribute to the general quality of life of individuals. A good example being that of
water bodies which offer recreational function such as sailing, surfing, recreational fishing or even
swimming.

Natural resources also bear cultural significance to various communities in Kenya. Some of these
communities have attached great importance to some natural resources that cannot be ignored.
This has led to various national resources being revered as sacred sites, shrines or dwelling places
for ancestors where rites of passages and other ceremonies could be performed.

1.1.1 Categories of Natural Resources

Natural resources are classified in various ways. This written work will espouse 3 modes of
classifications. These being:-

i) According to continual utility

ii) According to origin
iii) According to Geographical location of the natural resources.

According to continual utility

The classification of resources according to continual utility entails a consideration on the

resources ability to replenish despite repeated use. Under this typology, resources are further
classified into further three categories. These are:-

a) Renewable Resources
b) Non- Renewable Resources

4
Art. 260, Constitution of Kenya, 2010

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c) Cyclic Resources

Renewable Resources

These are resources which are capable of renewing or replenishing themselves at a similar rate as
their consumption. This is provided that they are not over exploited but rather are consumed in a
sustainable fashion. It is this natural regenerative quality these resources possess that makes them,
in a sense, inexhaustible. Such resources include forests, soil, and fish among others.

It is worth pointing out that there exists a sub-class within the renewable resources class called
flow resources. This particular category belongs to those resources which, much like renewable
resources, are inexhaustible. They however, have no need to regenerate and include renewable
energy sources such as solar energy, geothermal energy, and wind among others.

Non- Renewable Resources

These are natural resources which exist in finite quantities and generally cannot renew themselves
as fast as they are typically being exploited. They are also referred to as exhaustible resources.
They include resources such as coal, minerals and fossil fuels among others.

Cyclic Resources

These are resources which are capable of repeated use without any discernible risk of depletion
because they exist in an established process or cycle. A good natural resource example within this
category is water. The established cycle or process in question here would be the hydrological
cycle. (Explain what this is)

According to Origin

The classification of resources according to origin requires a consideration as to whether a resource

has biological origin or not. On this basis, resources are categorized into two major classes; biotic
resources and Abiotic resources.

Biotic resources are those resources which are living organisms or originated from living
organisms. They could also be termed as resources obtained from the biosphere (explain what this

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is). Examples of such resources would include coal, mineral oil, forests the list not being
exhaustive.

Abiotic resources on the other hand are those resources which are not derived from living organism
and are neither living organisms themselves. Such resources are usually composed of non-living
inorganic matter. These resources would include, for instance, air, land, water or minerals.

According to Geographical Location

Beyond a distinction between renewable and non-renewable resources or biotic and abiotic
resources, natural resources have further been classified in accordance with their geographical
location, as this determines who has the legal right to access and exploit the natural resources.
Some natural resources are under the exclusive territorial jurisdiction of a particular state and thus
subject to the principles of permanent sovereignty. On the other hand, natural resources such as
international watercourses cross state boundaries and as a result are subject to conventional
regimes or to general principles of international law such as, “equitable and reasonable use” or
those which attempt to prevent transboundary pollution.

Three notions have since emerged reflecting these resources that are collective, global and
transboundary in character. These concepts are common areas, common heritage and common
concern.

Shared Natural Resources

Due to geographical contiguity, there are some natural resources which do not fall exclusively
under the territory of a state but are shared between more than one state. For instance, international
watercourses, migratory species, forests, enclosed and semi enclosed seas or regional air masses5.

There exists, however, a significant challenge in striking a balance between the interests of all the
parties concerned with respect to the regulation of shared resources. This is evident from the
numerous disputes over international watercourses throughout history6. For some states, it is

5
U.N.E.P defines shared resources as, “an element of natural environment used by man which constitutes a bio-
geophysical unity, and is located in the territory of 2 or more states.”
6
See River Oder Case (1929) P.C.I.J. Ser. A, NO.23 (equality of use and no preferential privilege of any riparian
state) and Lake Lanoux Arbitration, 24 I.L.R (1957) 101 (duty to consult other states). See also Pulp Mills Case
where the importance of the need to ensure environmental protection of shared natural resources while allowing
for sustainable economic development was stressed. “…account must be taken of the need to safeguard the
continued conservation of the river environment and the rights of economic development of the riparian states.”

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observed that there is near unlimited sovereignty to exploit the resources pursuant to national
development policies but under a general rule that no damage should be occasioned to the territory
of the other states. While in other states, equitable exploitation of resources requires a wider duty
of co-operation based on information and prior consultation in order to guarantee a more efficient
utilization.*

Common Areas

The term common areas are used to refer to those resources located beyond the territorial
jurisdiction of any state, for instance the high seas and their fisheries, Antarctica or outer space.
They are commonly referred to as the global commons.

As such, these resources are subject to the “no harm rule” principle which provides that a state has
an obligation to prevent, reduce or control the risk of possible (or apparent) environmental harm
to other states.

Common Heritage of Mankind

These refers to those resources which, lying beyond the jurisdiction of any state are not accessible
to all for exploitation but are subject to a special regime due to the unique circumstances affecting
them. Examples include the deep seabed and the moon.

The system of open access to all that characterizes the “global commons” resources also
encompasses the danger of the “tragedy of the commons” as illustrated by Hardin in his acclaimed
seminal work in 1969; that is over-exploitation, joy-riders and high externalities.

Another key point to be made with regards to exploitation of “global commons” resources is that
the very different stage of development of states in respect of economic power and technological
advancements makes a mockery of the assertion that all states have equal access to certain
resources which, in reality, would be out of reach to many states, especially the developing nations.

These notions have, as expected, informed the choice of regime for all states concerned.
Developing countries have tried to ensure a regime of equitable exploitation with the developed
countries opposing this and proposing instead a system based on open access such as one
applicable in “common areas”.

Common Concern

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Although the concept of common areas and common heritage have proven indispensible in
regulating natural resource access and management in areas that are situated beyond natural
jurisdiction, they do not adequately address those resources which are not geographically bound
and yet are of interest to the whole community.

Thus, a new concept called common concerned was coined. Both climate change and biodiversity
have been said to be the “common concern” of humanity as no state can claim not to derive any
benefits from protective and conservative actions taken either unilaterally or collectively by other
states.

2.0 ROLE OF THE LAW IN NATURAL RESOURCE MANAGEMENT IN KENYA

The body of law governing natural resources in Kenya can be termed as natural resources law.
This law is broadly defined as a corpus of legal rules that encourages and controls use of natural
resources. This law is typically found in the constitution, statutes, international instruments and
customary laws.

Most societies have laws on who can utilize natural resources, where and in what ways. These
prescribed laws create rights, duties, powers, establishes institutions and procedures while also
forming basic foundational rules that guide peoples interactions with each other and with the
natural resources.

Broadly speaking, natural resources law performs 3 basic tasks. The first being that it provides the
parts of nature that can be owned and the terms of the legal rights acquired by those who utilize
the natural resources. The second basic function of natural resource law is to facilitate natural
resource related transactions. The law, in this case, assists in said transactions by prescribing rules
of conduct that govern a transaction unless the parties choose otherwise. The law, for instance,
may provide definitions for terms such as mineral rights, mining claims, water rights or hunting
easements. A third significant task of natural resource law is to facilitate the establishment of a
governance regime upon which resource users could co-ordinate resource use and resolve disputes.
Succinctly therefore, the role of law in natural resource management could be considered in the
following manner; either as distributive, conservatory or proscriptive. We shall discuss the three
hereunder.

Distributive Role of Law

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Here, it is the law’s role to determine who possesses ownership to the right to exploit or have
access to the resources in question. Thus, the law’s primary concern is with the issue of rights
allocation over said resources.

The distributive function of the law is reflected under international law by the principle of
permanent sovereignty over natural resources. This is because the concept of permanent
sovereignty over natural resources addresses the issue of ownership of resources and the rights of
states to exploit said resources in accordance with their national development policies and goals
without outside interference.

The distributive role of the law, however, is not without its fair share of challenges. The first
drawback to this role is that it results in the creation of sectoral regimes which are fragmented and
uncoordinated thus lacking in harmony in their efforts to allocate and conserve natural resources.
For instance, it is quite possible to find various laws dealing with land, wildlife, forests and water
governing, simultaneously, the same area and its resources. The same problem occurs where
institutions created by the same respective laws and acting within their mandate, conflict in terms
of directives.

Distributive role of the law also faces the challenge of determining an appropriate balance that
ensures the needs of the community as a whole are met while at the same time catering for the
conservation of the environment. The Constitution of Kenya, 2010 for instance has made attempts
to attain this balance by making provisions of various categories of land from public land to be
held by the state on behalf of the people to private land and communal land which is held by private
individuals and the community respectively.7

Another important way in which the law plays a distributive role is through the provisions of
conflict resolution mechanisms. This is because issues of natural resource access and distribution
has resulted in numerous conflicts, especially since natural resources form the bedrock of most
economies and sources of livelihood. A quick illustration of this point is how emotive land issues
are in Kenya. To further this aim, Kenya has constitutionalized the provision for a special court to

7
Art. 62, 64 and 63 respectively.

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settle environment and land issues8. The Environment and Land Court Act, 2011 was subsequently
enacted pursuant to this provision9.

Conservatory Role of Law

The law can also be seen to play a conservatory role when it comes to natural resource
management. The law puts in the effort to preserve natural resources despite their use, allowing
the resources to continue existing in sustainable quantities for the purpose of exploitation.

Natural resource management is suggested to set the threshold of sustainability, with the law’s
main purpose in this sense being to ensure that resources are exploited in an equitable manner. A
testament to this role of the law is that the universally accepted principle of sustainable exploitation
and intergenerational equity are now seen to be firmly entrenched in all environmental legislation.
The principle basically states that all natural resource management strategies should be designed
to meet the needs of the present generation without putting at risk the opportunity of future
generations to enjoy the same.10

This principle is seen to be expressed in the Stockholm Declaration11, the World Charter for
Nature12 and the Rio Declaration13. It is firmly entrenched within the Constitution of Kenya as
well14, with provisions for it also made within Kenyan statutes.15

The precautionary principle also illustrates the conservatory role that the law plays in natural
resource management. We see the principle restated in E.M.C.A16 and just as clearly articulated
within the Rio Declaration.17

The Constitution of Kenya also has provisions which reflect this conservatory role of law in natural
resource management. The constitution provides that the state shall ensure sustainable

8
Art. 162, (2), (b)
9
The National Land Commission (N.L.C) is also given the mandate to promote the application of Traditional
Dispute Resolution Mechanisms in land related conflicts under Article 67, 2, f of the Constitution of Kenya 2010.
10
S. 2 of E.M.C.A
11
Principles 1 and 2.
12
Para 4.
13
Principle 3
14
Art. 42, (a)
15
See E.M.C.A S. 3(5); Forests Act, S. 2; E.L.C.A S. 18 (a) (iv)
16
S. 2 of E.M.C.A
17
See Principle 15

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exploitation, utilization and management of the environment and natural resources18 and that it
shall encourage public participation in the management, protection and conservation of the
environment.19

It is however, important to note that when the law plays a conservatory role in natural resource
management, it sometimes contradicts the principle that law should not act retroactively. This is
especially evident where, in its attempt to prevent harm to natural resources and the environment,
the law may need to apply to pre-existing activities and operations if it is to prove effective.20This
is especially true of pollution offences due to their continuous nature.21

Proscriptive Role of Law

The law also plays a proscriptive role in that it provides for acceptable standards with respect to
the exploitation of resources or particular forms and methods of exploitation. This role is what
results into an authoritative and control approach taken to resource management by the concerned
regulatory agents. This is demonstrated by the law’s function of prohibiting certain activities for
conservatory or ethical purposes while allowing others, subject to controlled measures. The
prospective role of law, thus, to be more concise, entails the provision for regulatory limits backed
by sanctions.

A great illustration of the prospective role of law is the established international principle of
“polluter pays” which basically provides that those whom environmental degradation could be
attributed to should be held liable for its reparation in both civil and criminal law spheres. 22 The
principle also finds voice in the Rio Declaration which expresses the view that states must develop
domestic laws with regards to liability and compensation to victims of environment pollution. This
principle has also found home in our statute under E.M.C.A and Environment and Land Court
Act.23

It is worth noting that regulatory institutions such as National Environmental Management

Authority (N.E.M.A), Kenya Wildlife Service (K.W.S), Kenya Forest Service (K.F.S) and

18
Art. 69, (1), (a)
19
See Art. 69, (1), (d)
20
See U.N.E.P Judiciary Training Modules on Environmental Law
21
S. 87, (5) of E.M.C.A
22
See Okidi C.O, “Concept Structure and Function of Environmental Law.”
23
See S. 18, (a), (v)

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Water Resources Management Authority (W.A.R.M.A) among others have been established by
the respective laws involved in natural resource management to actualize the prospective roles of
such laws. Special officers are also appointed under such laws for instance environmental
inspectors under N.E.M.A to further enforce said laws.

In its prospective role, the law also places reliance on criminal law to ensure social control by
deterring conduct or activity that leads to environmental degradation. In Kenya, the E.M.C.A and
other sectoral environmental laws such as forests, water and wildlife have penal sanctions that
ensure, for the most part, compliance from the public.

However, the challenge with this is that cases involving environmental issues are not taken to a
special court that deals specifically with infringement of environmental laws but are taken to lower
courts like other criminal cases. This carries with it the offset effect of having environmental
crimes treated as petty in the categorization of crimes by police thus derogating the proscriptive
role the law would otherwise have assumed in this case by lowering the profile of environmental
offenders.

3.0 ENVIRONMENTAL ISSUES ARISING FROM NATURAL RESOURCES

As mentioned earlier, natural resources are all aspects of the environment which are not manmade
and are of value to man such as forests, minerals, oceans, freshwater, soil and air. These examples
are of importance to man as they create an ecosystem of services. Man is dependent on the
environment for sustenance, for growth and economic development. These aspirations do not come
without a challenge and as such a balance needs to be established so as not to deplete the very
resources required for future generation existence.

The exploitation of natural resources for economic growth which is the root cause of
environmental issues we face is manifested in various ways such as; deforestation, desertification,
extinction of species, forced migration, soil erosion, oil depletion, ozone depletion and an increase
in greenhouse gases thus leading to air pollution and subsequently contributing to related health
issues in man.

Sustainable use of natural resources and proper management of the environment is a big topic
globally as the use or misuse will affect future generations to come. If resources are depleted then

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how will the next generation exist? If pollution goes unchecked, what health issues will manifest
for the young generation and those yet to come?

Proper management of the environment and utilization of natural resources in a sustainable manner
is imperative as this is a key income generator for Kenya. For instance, we rely heavily on
Agriculture, Tourism and Manufacturing. To derive economic gain we must be able to replenish
what we use and stay clear from over exploitation of that which we depend on for our livelihoods.

These three sectors provide employment, a livelihood for many and in the case of agriculture- food
for the citizens. How then we interact with land, water bodies soil will determine how successful
a crop a country can reap. All these mentioned are intertwined to how we treat the environment; if
we emit too many pollutants in the air and cut down all the trees that affects the climate, including
leading to drought. Lack of predictable rain pattern then has consequences on the food production.

The Environment needs to be nurtured. If treated well, the environment reciprocates and if
neglected and abused the living things suffer in equal measure if not worse.

In Manufacturing or Industrialization some level of pollution is expected. It is critical to ensure

that some management and caution is taken as to the impact of pollution as this tends to have an
adverse effect on natural resources. International law principle of polluter pays came into effect
to guard against excessive pollution by companies and hence the penalty is as a way to keep in
check or to a minimal the pollution effects from man-made production activities.

Tourism in Kenya is widely supported by our beautiful landscapes, beaches, flora and fauna. It is
of concern how the wild animals live and migrate. Some wild animals are at risk of extinction due
to poaching and others due to migration. If climatic conditions are not conducive, animals move
while others die. The ecosystem is dependent on various flora and fauna for existence. This
certainly proves that we must nurture our environment so as to grow as a nation. The economy
depends on it as well as the people.

4.0 CONSERVATION VS PRESERVATION

It is not uncommon for the words conservation and preservation to be used interchangeably as if
to mean the same thing. Although both indeed involve a degree of protection, they differ in how
they achieve this objective. Conservation of natural resources connotes that we must use our
resources wisely. It is concerned with the sustainable use and management of natural resources.

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These resources include wildlife, water, earth deposits/ minerals, forests amongst other natural
resources. In Conservation, the focus is on ensuring that we use the natural resources and the
environment in a way to improve our quality of life while being mindful of the next generation.

Preservation on the other hand protects the environment by calling for a ‘no use’ proclamation.
This view is the strict setting aside of natural resources to prevent the use or contact by human
intervention. The objective here is to ensure that natural resources are left in their natural state, as
they were meant to be. So, for instance, in preservation, policies may be made to set out some
areas as conservatories or wildlife reserves.

5.0 GENERAL PRINCIPLES OF NATURAL RESOURCE MANAGEMENT

International environmental law took shape in early 20th century, before then it was not considered
part of traditional international law but since then it has grown with time. To date sovereign
countries all over the world have signed and ratified legal documents which are derived from
treaties or international customs.

This paper will examine the principles of natural resources that have found home in the
aforementioned treaties and international customary law. The paper will also consider the context
within which these principles are applied and their overall effectiveness.

The term principle refers to a type of statement or formulation of a norm, and it’s used to describe
the legal foundation of a norm, whether it is a treaty, customary international law or subsidiary
principle of law.24

In Kenya, some of these principles of natural resource management are captured within the
Constitution of Kenya, 2010 while those that have their place in international instruments only
find acknowledgement through Article 2, (5) and (6) of the said constitution. It is through these
provisions that general rules of international law and those treaty or convention ratified by Kenya
are domesticated and made operational in a municipal capacity.

24
Beyerlin, ‘Different Types of Norms in International Environmental Law’, in
D. Bodansky, J. Brunnée and E. Hey (eds.), The Oxford Handbook of International Environmental Law (Oxford
University Press, 2007), Chapter 18.

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a) Sustainable Development Goals, Integration and Interdependence

The concept of sustainable development emerged from legitimate concerns over possible
overexploitation of natural resources. It basically seeks to curtail the depletion of natural resources
and pollution of the environment in a bid to curb the environmental damage that occurs as a result
of such exploitation25.

According to the Brundtland Commission26, sustainable development is that development that

meets the needs of the present without compromising the ability of future generations to meet their
own needs. This definition highlights the present generation’s obligation to the future generation.
The E.M.C.A, under section 2 gives a similar definition for sustainable development.

At the core of this concept of sustainability is the idea that the current generation should not engage
in practices that damage the prospects of future generations in maintaining or improving their
living standards. A balance is therefore called for, between economic growth and attending to
environmental considerations.

Many conventions held on Environmental issues acknowledge the need for man to interact with
the environment but call for conscious engagement. The belief is that while it is necessary for
developments to happen, it should not be at the expense of the environment. In the Comest Report27
on The Precautionary Principle, it was acknowledged that; “...the classic conception of sustainable
development implies that the needs of present generations should be met provided they do not
impair the ability of future generations to meet their needs. This implies an ethical balance
between present and future generations.”

The Stockholm declaration called governments to exert common effort on the preservation and
improvements of the human environment for the benefit of the people and for their prosperity. The
development that is considered here is one that meets the needs of the present without
compromising the ability of the future generations to meet their own needs. The Rio declaration
28
of 1992 envisions that to have sustainable development, the interests of the Sates in exploiting
their natural resources for development and environmental conservation with the aim of achieving

25
Sudhir Anand & Amartya Sen, Sustainable Human Development: Concepts and Priorities (H.D.R.O 1994)
26
Report of the World Commission on Environment and Development (the Brundtsland Report)
27
Comest. “The Precautionary Principle” UNESCO, 2005, p. 19
28
The Rio Declaration, 1999

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sustainable development. Principle 2 confers the Jurisdiction as the Sovereign right but not to cause
damage to the environment.

The core of sustainable development is enshrined in our Constitution under article 10 (d).
Sustainable development is about national values and good governance. Every States
“development plan should be convertible with a sound ecology and adequate environment
conditions best ensured by the promotion of development both at national and international
levels,”29The Seventeen Sustainable Development Goals (“SDG”) are globally adopted to address
three key themes namely; end poverty, protect the planet and ensuring prosperity for all. The
specific targets and actions are to be achieved in the next 15 years.

The SDG Goals are as follows;

1. No Poverty 10. Reduced inequalities

2. Zero Hunger 11. Sustainable cities and communities
3. Good Health and well being 12. Responsible consumption and
4. Gender Equality production
5. Quality Education 13. Climate action
6. Clean Water and Sanitation 14. Life below water
7. Affordable and clean energy 15. Life on land
8. Decent work and economic growth 16. Peace, justice and strong institutions
9. Industry, innovation and 17. Partnerships for the goals
infrastructure
In analyzing the SDG agenda, the seventeen goals intertwine around three core elements. These
are;

Economic growth: to be economically stable a State must be able to produce goods and services
on a continuing basis. This production enables employment, growth in output, hence the Country’s
growth. Man needs to produce in order prosper. The ecosystem though must be nurtured for the
growth to be constant therefore the Nations must be able to balance out so as to not exploit or
deplete natural resources.

29
Sands, Philip p. 215

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Environment protection: This is the awareness that we must leave the Earth a better place and
safe place for the future generations to come. It is the awareness, that how we treat the environment
will be reciprocated. It is an understanding that what we do to Earth has effects on climate change,
our health and wellbeing and the existence of the other species. All efforts must be put in place to
protect wildlife from extinction. Environmentally sustainable systems must maintain a stable
resource base, avoiding over exploitation of renewable resources

Social Sustainability: The environment must achieve distributional equity, adequate provision of
social services including health and education, gender equity and political accountability and
participation30. The environment also serves as a channel for pleasure, recreation and sports. Those
that love the outdoors with mountains to climb, rivers to kayak, trails to run or cycle all this
providing a sense of wellbeing. For other’s it is visiting the historic sites that brings pleasure and
relaxation and hence the reason why some areas must be preserved in their natural state. For others,
it is the deep history some places capture and the social inclusion that emanates from a community
gathering or celebrating history. The environment must therefore be socially present.

From the above, it is important to note that some SDG goals rely on others. For wellbeing, then
people must eat well, therefore the goal on life on land has to result in sufficient productive and
must also be well educated so as to be knowledgeable of how to take care of themselves.
Additionally, for one to be healthy then they must live in clean cities and communities. This is just
an example on how the SDG’s interrelate. To reduce inequalities and promote equality, we must
educate both the girl child and the boy child giving them equal opportunities at achieving their
goals and desires. If the population is well educated, then there is a higher chance of getting decent
work and growing the economy, if one works then one is able to sustain themselves hence
eradicating poverty.

The SDG’s work in rhythm and achieving one does contribute to the success and development of
another hence the interdependence. They seventeen goals are intertwined and others may have
some dependencies.

b) Inter-generational and Intra-generational Equity

30
Muigua, Kariuki “Nurturing our Environment For Sustainable Development” Glenwood Publishers, 2016 p.27

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Intergenerational Equity refers to equity amongst people from different generations. That is, it cuts
across current and future generations. The concept of Intergenerational Equity says that humans
“hold natural and cultural environment of the Earth in common with other members of the present
generation and with other generations, past and present” (Weiss 1990, p. 8)31. The principle
broadly states we are custodians of the next generation in as far as the Earth is concerned. It is a
duty and an obligation for the current generation to do nurture the environment for the
sustainability of the next generation.

Intragenerational Equity on the other hand refers to equity that is shared amongst people of the
same generation. In Its emphasis, it deals with distribution of resources fairly amongst those
present. “This equity involves equality within present generation such that each member has an
equal right to access the earth’s natural and cultural resources”32 The access envisioned in this
principle of intra-generational equity “does not require an equal sharing of benefits and risks across
the globe, but that there be fairness with regard to the opportunities each person has to lead a
meaningful life under conditions of economic, social and political security.”33

c) Precautionary Principle

Principle 15 of the Rio Declaration states that, “In order to achieve Sustainable Development
policies must be based on precautionary principle.”34 The Precautionary principle as defined by
EMCA states that, “where there are threats of damage to the environment whether serious or
irreversible, lack of scientific certainty should not be used as a reason for postponing cost effective
measures to prevent environmental degradation”35 From the foregoing this principle seeks to
protect human life and the environment. It is a call for social responsibility and a balance on
economic benefit at expense of harm or risk to the population and future generations to come. In
a nut-shell this principle36is about the wisdom of action under uncertainty; ‘Look before you leap’,
‘better safe than sorry’, and many other folkloristic idioms capture some aspect of this wisdom.
Precaution means taking action to protect human health and the environment against possible

31
Sands Philippe, “Principles of International Environmental Law “Cambridge, 2 nd 2003 ed.p 215
32
Muigua, Kariuki “Nurturing our Environment for Sustainable Development” Glenwood Publishers, 2016, p.
33
Comest. “The Precautionary Principle” UNESCO, 2005, p. 20
34
Sands Philippe, “Principles of International Environmental Law “Cambridge, 2 nd 2003 ed. P. 219
35
Muigua, Kariuki, “Natural Resources and Environmental Justice in Kenya” Glenwood Publishers, 2015, p.36
36
Comest. “The Precautionary Principle” UNESCO, 2005, p. 8

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danger of severe damage. It aims at taking a preventative measure as opposed to a curative
approach.

d) Good Faith

The principle of good faith 37or pacta sunt servanda is the one of the fundamental principles of
customary or treaty obligations. It means that contract or treaty clauses are laws with binding force
thus states are required to fulfill their obligation and not to do anything that shall destroy the trust
on the basis of which the treaty was agreed upon. Therefore this principle demands that parties to
a treaty observe their precise obligations in good faith with the honorable intentions to meet their
responsibilities38.

e) Transboundary Environmental Damage

The principle in Latin is “sic utero tuo ut alienum non laedas” which means to use your own
property in such a way as not to injure that of another". The maxim usually finds use in cases of
nuisance but it also applies in cases of transboundary environmental damage. It has special
relevance in international environmental law and this is illustrated by the regulatory controls
imposed on States to desist from establishing hazardous or polluting factories/units on the border.39

The transboundary damage usually occurs where environmentally harmful activities by a state
have across border implications. This is very common with water pollution because because the
harmful pollutants are easily carried over to other areas sharing the same water body.

In the case of the Trail Smelter Arbitration where Canada complained of escape of noxious Sulphur
gases into its territory, from the United States, the Arbitral Tribunal stated that "No State has a
right to use or permit the use of its territory in such a manner as to cause injury by fumes or to the
territory of another or the properties or persons therein, when the case is of serious consequence
and the injury is established by clear and convincing evidence".40

f) Prevention Principle

37
Article 26 of the Vienna convention (1969)
38
T Gazzini, WG Werner & IF Dekker, “Necessity across International Law: Introduction” 41 NYBIL 2010, 3.5
39
Luther Rangreji, international environmental law in the global context
40
United States and Canada 3 UNRIAA (1938/1941), p.1907, at p. 1965

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These are principles whose positive duty upon states is meant to stop or avoid furtherance of any
activity that would damage the environment. In other words these are principles designed to help
avert environmental damage before it occurs. This principle is considered a guiding rule with
respect to environmental protection because it takes cognizance of the fact that not all damage
caused to the environment is reversible.

This principle therefore requires States to prevent environmental damage within their own
jurisdiction and in whatever form their approach takes. For instance, in Kenya this principle is
manifested under Article 69, 1, g which provides that one of the obligations of the state with respect
to the environment is to eliminate processes and activities that are likely to endanger the
environment41.

The current formulation of the principle of prevention in the environmental context was introduced
in 1972 in Principle 21 of the Stockholm Declaration on the Human Environment:

[S]tates have . . . the sovereign right to exploit their own resources . . . and the responsibility to
ensure that activities within their jurisdiction or control do not cause damage to the environment
of other States or of areas beyond the limits of national jurisdiction.42

As already noted, the content of Principle 21 was both a reflection of general international law (re-
affirming the no harm principle) and an attempt at progressive development of this area of law
(introducing the responsibility of States not to cause damage to areas outside of State jurisdiction).

Additionally ICJ, in its Advisory Opinion on the Legality of Nuclear Weapons, held that the
prevention principle as enshrined in Principle 21 of the Stockholm Declaration and Principle 2 of
the Rio Declaration was part of general international law43:

[t]he existence of the general obligation of States to ensure that activities within their jurisdiction
and control respect the environment of other States or of areas beyond national control is now
part of the corpus of international law relating to the environment.44

41
See also E.M.C.A S.9
42
On this principle, see L.-A. Duvic Paoli and J. E. Viñuales, ‘Principle 2: Prevention’, in Viñuales, J. E. (ed.), The Rio
Declaration on Environment and Development. A Commentary (Oxford University Press, 2015), pp. 107-38.
43
Legality of Nuclear Weapons, supra n.12, Para 29
44
The ICJ has subsequently confirmed in two occasions, the customary nature of the prevention principle. In the
Gabcikovo-Nagymaros Project case, the I.C.J stated that: “in the field of environmental protection, vigilance and

18 | P a g e
g) No Harm Principle

This principle is understood as the principle that every state is duty bound to prevent, reduce and
control the risk of environmental harm to other states.45

In order to understand the origin and content of the ‘no harm’ principle - and therefore its
relationship with the principle of prevention - it is useful to recall its historical development. The
classic formulation of the no harm principle in an environmental context appears in the Trail
Smelter Case (United States v. Canada). There, the tribunal stated that;

“.. no State has the right to use or permit the use of its territory in such a manner as to cause injury
by fumes in or to the territory of another or the properties or persons therein, when the case is of
serious consequence and the injury is established by clear and convincing evidence.”46

The ICJ confirmed the customary nature of this principle in 1949, in the Corfu Channel Case
(United Kingdom v. Albania), referring to the existence of, “certain general and well recognized
principles, namely . . . every State’s obligation not to allow knowingly its territory to be used for
acts contrary to the rights of other States”.47

h) Environmental Impact Assessment

The Environmental Impact Assessment (E.I.A) has been used as a mechanism to enable those
concerned with development programs or projects to make more informed decisions involving
those projects especially with regards to activities that are likely to have detrimental implications
on the environment. The origins of the obligation to conduct an environmental impact assessment
(E.I.A) can be traced back to the domestic law of some States and, particularly, to the National
Environmental Policy Act adopted by the United States as early as 1969.48 Subsequently, this
obligation was introduced into the domestic legislation of many other States.

prevention are required on account of the often irreversible character of damage to the environment and of the
limitations inherent in the very mechanism of reparation of this type of damage”
45
Ian B. Principles of International law, 7th edition,2008,pp.-285
46
Trail Smelter Arbitration, RIAA, vol. III, pp. 1905-82 (‘Trail Smelter’), p. 1965.
47
Corfu Channel Case (UK v. Albania), ICJ Reports 1949, p. 4 (‘Corfu Channel’), p. 22.
48
National Environmental Policy Act, 42 USC ch. 55.

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The constitution of Kenya, 2010 at article 69 (1) (f) obliges the states to establish system of
environmental impact assessment, environmental audit and monitoring the environment. The
EMCA also gives the process legitimacy by providing a procedure for EIA49. This process is
extensively designed to consider the principles of governance enshrined under article 10 of the
constitution, as well as a number of treaties within the regional50 and on a universal scope.51 It was
also incorporated into Principle 17 of the Rio Declaration, which provides that, “environmental
impact assessment, as a national instrument, shall be under- taken for proposed activities that are
likely to have a significant adverse impact on the environment and are subject to a decision of a
competent national authority.”

To understand the scope of the obligation to conduct an EIA, three issues must be addressed,
namely (i) the formal source from which the obligation derives (treaty, custom, general principles
of law), (ii) the spatial scope of the requirement (national, transboundary, global) and (iii) the
specific content of the obligation.

In the case of Kwanza Estates Ltd v KWS,52 The court stopped the defendant from constructing
public toilets at a beach front mainly because there was no consultation or public participation in
the process of the project thus violating E.I.A procedure pursuant to the E.M.C.A, 1999.

i) Co-operation, Notification, Consultation

The existence of a general duty of co-operation is well established in international law. This duty
is formulated, inter alia, in Principle 4 of General Assembly Resolution 2625 (XXV) on the
‘Principles of International Law Concerning Friendly Relations and Cooperation among States’.53
The rationale for this principle is the fact that most of the environmental problems that result in
improper human activities are in themselves global concerns. This means that issues such as

49
E.M.C.A 1999, S. 58
50
According to Kiss and Beurier, the first international conventions to provide for this requirement were the Kuwait
Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution, 24 April 1978,
Art. 11(a) and the Apia Convention on the Conservation of Nature in the South Pacific, 12 June 1976, Art. 5(4).
They were followed by the Kuala Lumpur (ASEAN) Cooperation Plan on Transboundary Haze Pollution, 9 July 1985,
Art. 14. See A. Kiss and J.-P. Beurier, Droit international de l’environnement (Paris: Pedone, 2004), Para. 324.
51
UNCLOS, supra n. 6, Art. 206; Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, 30
ILM 1455 (1991) (‘Madrid Protocol’), Art. 8 and Annex I; UN Convention on Watercourses, supra n. 18, Art. 12.
111 Espoo Convention, supra n. 82. 112 Ibid. Art. 2(3).
52
[2006] 1KLR(E AND L) 772
53
Declaration on Principles of International Law concerning Friendly Relations and Co- operation among States in
accordance with the Charter of the United Nations’, Res. 2625 (XXV), 26 October 1970.

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climate change will affect all the states, as a whole, not just those famously responsible for its
occurrence.

The principle of cooperation is envisaged within the Rio Declaration under the 7th principle which
provides that, “States shall cooperate in a spirit of global partnership to conserve, protect and
restore the health and integrity of the earth’s ecosystem.”54 At section 3, (5), (c) the E.MC.A
acknowledges this principle among those of sustainable development which the High Court will
be guided by when carrying out its jurisdiction on environmental matters.

BALANCE PRINCIPLES

These are principles which require or urge the states to weigh an already existing activity against
its impact on the environment and distribute the efforts involved in protecting the environment
among various stakeholders. It is further divided into principles and concepts of environmental
international law. Principles includes; polluter pays principle, common but differentiated
responsibilities, responsibility for environmental damage, inter-generational and intra-
generational equity, access and benefit sharing regarding natural resources

j) The polluter-pays principle

It is a well-established principle in customary international law through both the no harm and the
prevention principles.

For example, the pollution of rivers by the normal or ‘accidental’ operation of a company imposes
a cost on society. The question then arises of who should pay the cost: the company, consumers or
society at large? If nothing is done, the society at large or those individuals most directly concerned
(i.e. a sector of society) will bear the cost. Similarly, if the authorities intervene to treat polluted
water, the cost is also borne by society at large (as it is borne by tax-payers). If, however, the cost
is borne by the company which causes the pollution or transferred to consumers driving demand
for the relevant product, one could speak of an ‘internalization’ of the cost, thus the right person
incurs the cost of damage caused by their action, omission or commission. To give this scenario
international effect the “company” should be replaced with a state.

54
See Also Principle 14

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This idea was initially formulated in Organization for Economic Co-operation and Development
(‘OECD’) Council Recommendation, in 1972.55 According to this instrument ‘the cost of
(measures adopted by the authorities to fight pollution) should be reflected in the cost of goods
and services which cause pollution in production and/or consumption’.

The polluter-pays principle is now enshrined in Principle 16 of the Rio Declaration, which
provides that:

[N]ational authorities should endeavor 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.

k) The principle of common but differentiated responsibilities

The principle of common but differentiated responsibilities (‘CBDR’) aims to distribute the effort
required to manage environmental problems of a global nature, such as the protection of the ozone
layer, the fight against climate change or the conservation and use of biodiversity, among States.

Situated at the intersection between development and environmental protection, this principle is
intended to reconcile potentially conflicting requirements. On the one hand, developing countries
see it as a way to gain recognition for their developmental needs, their reduced ability to contribute
to the management of environmental problems and also their lower contribution to their creation.
On the other hand, developed countries consider it as a tool to ensure participation of developing
countries in the management of environmental problems and to ensure that the development
process takes place within certain environmental bounds.

These considerations underpin the text of Principle 7 of the Rio Declaration, which provides that:

[S]tates shall cooperate in a spirit of global partnership to conserve, protect and restore the health
and integrity of the Earth’s ecosystem. 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 for sustainable

55
OECD Council Recommendation on Guiding Principles concerning the International Economic Aspects of
Environmental Policies, C (72)128 (1972), 14 ILM 236 (1975).

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development in view of the pressures their societies place on the global environment and of the
technologies and financial resources they command.56

l) The principle of public participation

The principle of participation - or more precisely, the duty of States to provide various channels
of participation to groups and individuals potentially affected by projects, activities or
environmental policies - aims to consider the interests of these stakeholders in the relations among
themselves (e.g. between the enterprises and individuals affected), or between private stakeholders
and the State.57

Public Participation is a vital aspect of natural resource management necessary for the operation
of other tools of proper environment management such as the Environmental Impact Assessment.
It is defined as a process by which decisions with public implications incorporate the public
concern and needs with a view of settling on a decision that is supported by the public. This is very
important for overall effectiveness of certain laws and policies in terms of enforcement. Like the
principle of co-operation, the principle of participation is general in scope, extending beyond the
sphere of environmental matters. By way of illustration, Article 25 of the 1966 International
Covenant on Civil and Political Rights provides for a general right to participate in public affairs.58

This paper makes reference to that section. Here, we focus on two main points, namely (i) the
sources and (ii) the content of this principle.

Concerning the sources, the idea of increased public participation in environmental issues has been
affirmed in Principle 10 of the Rio Declaration, which provides that:

[E]nvironmental issues are best handled with participation of all concerned citizens, at the
relevant level. At the national level, each individual shall have appropriate access to information
concerning the environment that is held by public authorities, including information on hazardous
materials and activities in their communities, and the opportunity to participate in decision-

56
See also The Kyoto Protocol and United Nations Framework Convention on Climate Change (UNFCCC) at Article
3(1); “The Parties should protect the climate system for the benefit of present and future generations of
humankind, on the basis of equality and in accordance with their common but differentiated responsibilities and
respective capabilities. Accordingly, the developed countries (Parties) should take the lead in combating climate
change and the adverse effects thereof.”
57
On this principle, see J. Ebbesson, ‘Principle 10: Public Participation’, in Viñuales, supra n. 29, pp. 287-309.
58
International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171.

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making processes. States shall facilitate and encourage public awareness and participation by
making information widely available. Effective access to judicial and administrative proceedings,
including redress and remedy, shall be provided”.

This principle works mainly to allow individuals or groups get involved in the process of decision
making that would ultimately affect them, thus acts as the prior consent of the people in the project
that the governments is undertaking. The Constitution of Kenya, 2010 at Article 10(2) (a) has made
public participation part of the principles that guides the state and its institutions in carrying out
their constitutionally provided mandates.

m) Conservation of Biological Diversity and Ecological Integrity

The conservation of biological diversity and ecological integrity should always be considered
when making decisions that might have possible ramifications on the well being of the
environment. This principles application thus entails taking cognizance of what if any impact a
proposed development project or program might have on a threatened species or ecological
community.

The term “biological diversity” resulted from a realization that the extinction of species was
occurring at an alarming rate59. Biological diversity could be defined as the variety and variability
among living organisms and the ecological complexes in which they occur. It usually encompasses
various ecosystems, species, and genes among others.

Ecological integrity on the other hand refers to the ecological systems general wholeness. This will
include the system’s appropriate elements being in place for the necessary ecological process to
occur at the required rate. In other words, biological diversity is distinguishable from ecological
integrity in the sense that diversity can be expressed in simple terms as the identified kinds of
‘items’ making up the ecological system with integrity referring to the various conditions within
the system as uncorrupted by human activities.

n) Improved Valuation, Pricing and Incentive Mechanisms

This principle requires that the pricing of goods and services appreciates the environmental factors
in concomitant with the production of the same. This is in light of the fact that manufacture of

59
P.L Angermeier & J.R Karr, “ Biological Integrity versus Biological Diversity as Policy Directives: Protecting biotic
resources”,(Bioscience, 1994)

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goods and the rendering of services leads to generation of pollution and waste. Therefore, the
notion behind the principle of improved valuation, pricing and incentive mechanism is that persons
who are liable for the production of said pollution and waste should also bear the cost of
containment and where applicable, avoidance and abatement.

The above principle thus requires that the ultimate purchasers of such goods and services pay
prices that take into account the full cycle costs of producing these goods and services60. This will
include costs relating to disposal of waste resulting from the production of such goods and the
rendering of the services in question. Another benefit of this principle is that it inadvertently
establishes an incentive structure, which would include market mechanism, resulting in the
corporate entities involved in good and service production adhering to methods less damaging to
the environment while cutting costs.

o) Responsibility for Environmental Damage

This principle basically requires that a recalcitrant state pay compensation or take any other
appropriate steps in the form of amends, for any occasioned damage to another state for which the
state in question is accountable61. Therefore once a breach is attributed to a state, after fulfilling
the obligation set forth by this principle, the liable state is bound by a secondary obligation under
international law as was demonstrated in the Trial Smelter Arbitration where Canada was held
liable but was also bound by a secondary duty to take the necessary measures and thus ensure that
there will not be a recurrence of such environmental damage as witnessed.

p) Transparency

As with all general principles of governance, it is nigh impossible to construct an adequate

universal definition on transparency. However, transparency is simply understood as the extent to
which information is accessible to the public within a social system such a state62. Transparency
as a principle is significant in environmental management because it enables the relevant actors

60
Application of the Environment Protection Principles to E.P.A’s Approval’s Process, E.P.A Victoria Publication
1554, October 2013, page 3
61
Sucharitkul, Sompong, "Responsibility and Liability for Environmental Damage Under International Law" (1996).
Publications. Paper664.
62
Although it could be argued that this construction is too narrow in its focus on mere availability of information
while clearly ignoring the quality, quantity and method of dissemination of such information. That is, it raises
legitimate questions on the quality of information that is made accessible and the manner in which it is made
accessible.

25 | P a g e
such as the public, certain Non-Governmental Organizations and other member countries to keep
each other accountable by exposing non-compliance or deviations from stipulated conduct and by
requiring such deviations be accounted for or justified63. In other words, transparency as a principle
of environmental management deters non-compliance with a treaty or domestic legislation because
it enables public scrutiny that is concomitant with such breach and even where there are no decided
sanction measures, exposure alone could encourage change in behavior.

q) Access and Benefit Sharing

Access and Benefit Sharing (A.B.S) is an established international environmental principle that
refers to the way in which genetic resources and valuable traditional knowledge associated with
such resources are accessed, and how the benefits which result from their exploitation are shared
between the people or countries using the resources (also referred to as users) and the people or
countries that provide them (providers.64)

This principle has been envisaged in the Convention on Biological Diversity (C.B.D), 1992 whose
third objective requires that all contracting parties ensure fair and equitable access to genetic
resource and associated traditional knowledge. The benefits shared take the form of either
monetary benefit(s), for instance royalties on products that result from use of such resources or
non – monetary benefits like the development of research skills and knowledge.

r) Good Environmental Governance

Good governance is a principle of public administration which has been described as; “…all
processes, organizations and individuals (the latter acting in official positions and roles) that are
associated with carrying out laws and other policy measures adopted by the legislature or the
executive and interpreted by courts.”65 Governance thus involves a decision making procedure,
that is, one that relates to administrative, political and legal processes and that vests certain
privileges and powers in particular institutions and offices.66

63
F Deane, E Hamman & Y Pei “Principles of Transparency in Emission Trading Scheme: The Chinese Experience”
(Cambridge University Press,2016)
64
Secretariat of The Convention on Biological Diversity, “Introduction to Access and Benefit – Sharing”, 2010
65
Gordon and Milakovich, “Public Administration”,1995
66
LA Feris “The Role of Good Environmental Governance in the Sustainable Development of South Africa” (P.E.R
2010, Vol. 13 No. 1)

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Article 10 of the Constitution of Kenya, 2010 is instructive in this respect. It requires that the
principles recognized under sub-clause 2, including good governance67, guides the state officers
and other concerned persons in the exercise of their mandate. It demands then, that environmental
governance adheres to the same values entrenched within the constitution. This is vital for the
enforcement of environmental law and the implementation of resulting policies as values such as
transparency and accountability, democracy and participation of the people or inclusivity ensure
that citizens are cognizant of and involved in relevant decision making process. This enables them
to effectively contribute to proper management and protection of the environment.

s) Environmental Finance

This refers to the use of financial tools for environmental management. This is a new field in
environmental management with some of its instruments being concepts such as land trusts and
emission trading68. This analysis associated with finance is relied on to fund conservation
initiatives and improve the interaction of business entities and the environment without really
cutting into their profits.

t) Environmental Ethics

Environmental Ethics as a field refers to the study of the values and moral obligations of mankind
in human – environment interactions. In other words, it concerns the study of human beings moral
duty to the environment with regards to environmental concerns such as pollution, depletion of
natural resources or climate change. Therefore the two main questions ethicists in the field grapple
with include; (i) What duties do humans have with respect to the environment? And (ii) Why?

The issue in question thus is whether the natural environment possess any value in and of itself,
beyond human preferences and needs and whether this should lead us to consider the natural
environment has having rights. This is important because it forces people to be alive to the impact
their actions have on the natural environment for its own sake, irrespective of whether they are
benefiting from exploiting the natural resources from the environment.

u) Anthropocentricism

67
Constitution of Kenya, Article 10 (2)(c)
68
Susan Jaworski “ Introduction to Environmental Finance”(Environmental Science, 15 November 2017)
<www.environmental science.org/2017/11/index.html> accessed 15 November 2017

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This concept is related to environmental ethics and it is said to have necessitated the above study
since the inadequacy of the original approach was initially attributed to it, that is, to the notion that
moral value is inextricably attached to human beings and their interests with everything else’s
moral value dependent only in so far as it affects human beings and their interest69.

v) Ecocentricism

This concept was also referred to as the dark green or deep ecological ethics. It was a response to
the inadequacies of the anthropocentric conception of human interaction with the natural
environment. Ecocentricism attaches value to ecological entities, processes and relationships in
and of themselves by relying on ecological insights70. It is considered a better approach to
environmental management because it promotes the protection of elements that have no immediate
benefit to man but offer value to the ecosystem it exists in and ultimately the environment in
general.

w) Environmental Constitution

This is a special form of constitutionalism that has its focus on environmental matters. It has been
observed that since the Stockholm conference, numerous countries have opted to adopt provisions
within their municipal constitutions that speak to environmental protection. The World
Conservation Strategy recognized this need as illustrated from the excerpt, “Ideally, a commitment
to conserve….living resources should be incorporated in the constitution,” It also noted that; “...the
obligations of the state is to conserve living resources and the systems of which they are part, the
rights of citizens to a stable and diversified environment and the corresponding obligations of
citizens to such an environment.”71In a nutshell, it is correct to state that environmental
constitutionalism is part of the whole constitutional paradigm that simply focuses specifically on
the human – environment interactions. It could also be argued that it is an instrument of
entrenching environmental law and principles at a more prominent level.

x) Environmental Conflict Management

69
Katie McShane “Environmental Ethics: An Overview” (Blackwell Publishing Ltd 2009)407
70
Mark Woods “Ecocentrism”(Green Politics: An A to Z Guide) (Dustin Mulvaney & Paul Robbins,2011)
71
Louis J. Kotze “Environmental Constitutionalism” (IUCN Academy of Environmental Law, 16 November 2017)
<www. Iucnael.org/2017/11/index.html> accessed 16 November 2017

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This is basically refers to all kinds of structured intervention where conflicts arises involving the
use of natural resources and the resultant impacts such activities could have on the environment.
Environmental Conflict Management seeks to address the issues raised from all quarters of
interested parties in efforts of transforming the hostile relationship into one that is more conducive
for proper environmental management and ecological sustainability72.

6.0 CONCLUSION

Notwithstanding the fact that it has clearly been established that the environment and its
constituent natural resources are invaluable for human existence, poor environment management
and reckless exploitation of natural resources persist. Efforts have been made to highlight the
environmental issues at stake, as demonstrated by the various treaties and conventions mentioned.
It is however significant to note that positive steps have been taken towards safeguarding the
natural resources we have presently while being alive to the state in which we live the environment
in pursuit of the various developmental goals in play.

A recent study indicated that although the total greenhouse gases (G.HG) emission continued to
increase gradually throughout the year 2016, this was the slowest growth rate recorded yet and the
increase was attributed to the fact that 2016 was in fact a leap year and thus longer73 than most74.
This decrease in emission rates is credited to lower coal consumption among other alternatives
taken up to ease the burden placed on the environment. These positive developments are as a result
of global sensitization on environmental matters and how individual activities impact the
same.However, there is still a lot of ground to cover in terms of attempts at restoring the natural
balance that mankind has distorted through lifetimes of reckless exploitation of the earth’s natural
resources. It is thus, the hope that through the principles discussed through this paper, we will
witness greater success at environmental management that not only allows for the necessary
exploitation but also protects it.

72
Kariuki Muigua, ‘Natural Resources and Conflict Management in East Africa’ (NCNG East African ADR Summit,
Nairobi, September 2014)
73
It is estimated to be 0.3% longer
74
Olivier J.G.J. et al. (2017), ‘Trends in global CO2 and total greenhouse gas emissions’. Summary of the 2017 report. PBL
Netherlands Environmental Assessment Agency, The Hague

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7.0 Bibliography
1. Anand S & Sen A, ‘Sustainable Human Development: Concepts and Priorities’ 1994
2. Angermeier P L & Karr J R, ‘Biological Integrity versus Biological Diversity as Policy
Directives: Protecting biotic resources’ 1994
3. Apia Convention on the Conservation of Nature In The South Pacific, 1976
4. Application of the Environment Protection Principles to E.P.A’S Approval Process, 2013
5. Bodasky D, Brunnee J & Hey E, ‘The Oxford Handbook of International Environmental
Law’ 2007
6. Brownlie I, ‘Principles of Public International Law’ 2008
7. Comest, “The Precautionary Principle” UNESCO 2005
8. Constitution of Kenya, 2010
9. Charter of The United Nations, 1945
10. Duvic A & Vinuales J E, ‘ Principle 2: Prevention’
11. Deane F, Hamman E & Pei Y, “Principles of Transparency in Emission Trading Scheme:
The Chinese Experience, 2016
12. Ebbesson J, “ Principle 10: Public Participation”
13. E.E.C OJ C 115, 1976
14. Environmental Management and Conservation Act, 1999
15. Epsoo Convention
16. E.L.C.A
17. Feris LA, “The Role of Good Environmental Governance in the Sustainable Development
of South Africa”, 2010
18. Gazzini T, Werner WG & Dekker IF, “ Necessity across International Law: Introduction”,
2010
19. Gordon & Milakovich, “Public Administration”, 1995
20. International Covenant on Civil & Political Rights, 1956
21. Jaworski S, “Introduction to Environmental Finance”(Environmental Science, 15
November 2017) <www.environmental science.org/2017/11/index.html> accessed 15
November 2017
22. Kariuki M, “Natural Resources & Conflict Management in East Africa”, 2014
23. - “ Natural Resources & Environmental Justice in Kenya”, 2015
24. - “ Nurturing Our Environment For Sustainable Development”, 2016
25. Kotze L J, “Environmental Constitutionalism” (IUCN Academy of Environmental Law,
16 November 2017) <www. Iucnael.org/2017/11/index.html> accessed 16 November 2017
26. Kyotto Protocol, 1997
27. Kuala Lumpur (ASEAN) Cooperation Plan on Transboundary Haze Pollution, 1985
28. Kuwait Regional Convention for Cooperation on the Protection of The MARINE
Environment From Pollution, 1978
29. McShane Katie, “Environment Ethics: An Overview”, 2009
30. National Environmental Policy Act, 42 USC

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31. OECD Council Recommendation on Guiding Principles Concerning the International
Economic Aspects of Environmental Policies, 1991
32. Okidi C O, “Concept Structured Function of Environmental Law”, 2008
33. Phillipe S, “Principles of International Environmental Law”, 2003
34. Protocol on Environmental Protection to the Antartic Treaty, 1991
35. Report of the World Commission on Environment and Development (the Brundtsland
Report)
36. Rangreji L, “International Environmental Law in the Global Context”
37. Secretariat of the Convention on Biological Diversity, “Introduction to Access and Benefit
– Sharing”, 2010
38. Sompong S, “Responsibility and Liability for Environmental Damge under International
Law,” 1996
39. The Rio Declaration, 1999
40. The Vienna Convention, 1969
41. Woods M, “Ecocentricism”, 2011

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