30 March 2012 Written by  Tsegai Berhane and Merhatbeb Teklemedhn

Foundations of Environmental Law

Law emerges from the cultural traditions and moral and religious values of each society. These traditions and values continue to impact the development of legal norms. In the context of environmental protection, cultures, religions and legal systems throughout the world contain elements that respect and seek to conserve the natural bases of life, maintaining concepts that can enhance and enrich the development of modern environmental law.

Religious Traditions

Beliefs supportive of environmental protection can be found in religious traditions from around the World representatives of Baha’ism, Buddhism, Christianity, Daoism, Hinduism, Islam, Jainism, Judaism, Shintoism, Sikhism, and Zoroastrianism who belong to the Alliance of Religions and Conservation, a non-governmental organization, and have found common ground in religious traditions for stewardship of the earth.

Ancient Buddhist chronicles, dating to the third century B.C. record a sermon on Buddhism in which the son of the Emperor Asoka of India stated that, “the birds of the air and the beasts have as equal a right to live and move about in any part of the land as thou. The land belongs to the people and all living beings; thou art only the guardian of it.”[i] Subsequently, the King initiated a legal system that continued to exist into the eighteenth century providing sanctuaries for wild animals.

Certain passages in the Judeo-Christian texts specify that humans do not own the earth and its resources. The Jewish law provided for conservation of birds (Deut. 22:6-7) protection of trees during wartime (Deut. 20:19), and regulated the disposal of human waste (Deut. 23:13). The Christian tradition allows that man’s dominion over nature includes a competence to use and manage the world’s resources in the interests of all, being ready to help others in case of necessity. Individual title thus imposes a responsibility and a trust.

In 1983, Muslim experts undertook a study of the relationship between Islam and environmental protection[ii]. The results underscored that man is a mere manager of the earth and not a proprietor; a beneficiary and not a disposer. Man has been granted inheritance to manage and utilize the earth for his benefit, and for the fulfillment of his interests. He therefore has to keep, maintain and preserve it honestly, and has to act within the limits dictated by honesty. Each generation is entitled to use nature to the extent that it does not disrupt or upset the interests of future generations. Islamic principles thus envisage the protection and the conservation of basic natural elements, making protection, conservation and development of the environment and natural resources a mandatory religious duty of every Muslim. In a case, the Pakistani Court analyzed the fact that Islamic Law prohibiting unnecessary hunting and killing of birds and animals when a constitutional petition sought an order to ban various hunts under Articles 18 and 199 of the Constitution[iii]. The court agreed that unnecessary hunting and killing is against the injunctions of Islam and the Constitution, but found that a blanket prohibition for hunting or killing all animals and birds could not be granted.

Traditional Communities

Many traditional communities, forest dwellers, and subsistence hunting and farming communities have long engaged in sustainable practices and developed unique knowledge about their environments and their resources. Examples include the irrigation practices of the Inca, the forest gardens of the hill country of Sri Lanka and the practices[iv]. African traditional wisdom, Melanesian, native Australian, Polynesian, Asian, Amerindian and early European traditions all contain principles relevant to environmental justice and sustainable development. In addition, many traditional societies have a unique relationship with the land, which they view as capable of use only, not ownership. Some view the earth in its entirety as a living organism capable of injury and hurt. Areas or resources may be protected by being designated as sacred or taboo.

Many indigenous people have a special relationship with the land and the environment in which they live. As noted by the UN Special Rapporteur Ms. Fatma Zohra Ksentini: in nearly all indigenous cultures, the land is revered; “Mother Earth” is the core of their culture. The land is the home of the ancestors, the provider of everyday material needs, and the future held in trust for coming generations.

According to the indigenous view, land should not be torn open and exploited–this is a violation of the Earth–nor can it be bought, sold or bartered. Furthermore, indigenous peoples have, over a long period of time, developed successful systems of land use and resource management. These systems, including nomadic pastoralism, shifting cultivation, various forms of agro-forestry, terrace agriculture, hunting, herding and fishing, were for a long time considered inefficient, unproductive and primitive.

However, as world opinion grows more conscious of the environment and particularly of the damage being done to fragile habitats, there has been a corresponding interest in indigenous land-use practices. The notion of sustainability is the essence of both indigenous economies and their cultures.

At the international level, ILO Convention No.169 on Indigenous Peoples and Article 8 of the Convention on Biological Diversity contain provisions protecting the traditional lifestyles and knowledge of indigenous peoples and local communities National or local laws and policies may protect or may adversely affect marginalized and disadvantaged communities, especially indigenous or tribal communities following traditional life styles. In some instances, indigenous people have been forced from their traditional lands to make way for development projects, or have found that resources have been exploited, including deforestation of their traditional lands. Some indigenous people have seen their traditional lands declared protected areas where they are no longer permitted to live.

Enforcing traditional laws and norms that guarantee or protect the land and resource rights of such communities has been an important means of ensuring environmental protection in some jurisdictions. There are examples of cases where indigenous lands have been protected as public goods with a special protection regime; any alteration of the native territories and of the nearby water resources violates the spirit and the letter of the constitutional laws.[v]

At the same time, the practices of indigenous communities may conflict with modern laws to protect particular areas or species. Indigenous populations often retain the right to continue subsistence hunting of endangered species such as polar bears, seals, and whales captured by traditional means, but quotas on takings and restrictions on commercial use may be imposed. When the use of animals, plants or sites is based upon religious beliefs as well as traditional culture, courts will often be asked to apply constitutional or other legal protections of religious liberty pursuant to which indigenous people may under some circumstances be exempted from the application of environmental laws.

The judiciary in various countries has at times drawn upon its national or cultural heritage to develop and apply principles that enhance environmental justice and sustainable development. The extent to which such considerations can be taken into account is necessarily a function of the law and jurisprudence of each jurisdiction, but recent national and international case law provides examples where current environmental norms have been interpreted in the light of traditional wisdom[vi].



[i] The Mahavamsa, or the Great Chronicle of Ceylon, Chap. 14, quoted in I.C.J., Case Concerning the

Gabçikovo-Nagymaros Project on the Danube, Sept. 25, 1997, Sep. Op. of Judge C. Weeramantry, n. 44

[ii] Islamic Principles for the Conservation of the Natural Environment (IUCN Environmental Policy and Law

Paper 20, 1983).

[iii] M.D. Tahir v. Provincial Government & Others, 1995 CLC 1730

[iv] Abdikadir Sheikh Hassan and others v. Kenya Wildlife Service (High Ct. Kenya, Civil Case No.

2059/1996)

[v] Raul Arturo Rincon Ardila v. the Republic of Colombia (Constitutional Court, April 9, 1996) and Ministerio

Publico v Federal Union of Brazil (Fed. Court, State of Mato Grosso, 1998)

[vi] The separate opinion of Judge Weeramantry, in the Gabcikovo-Nagymaros Case, and Bulankulama v. The

Secretary, Min. of Industrial Development (the Eppawela case).

Last modified on Wednesday, 02 May 2012 13:05