By Samuel ALESU-DORDZI\xa0\xa0\xa0\xa0\xa0
Ghana participates in several global environmental pacts and accords.
These global tools are regulated by numerous principles widely acknowledged within the realm of international environmental law.
Although Ghana’s environmental regulations frequently mirrored international accords, like the
The Basel Convention Regarding the Regulation of Cross-Border Transport of Hazardous Waste and Its Disposal
as well as the
The Vienna Convention and the Montreal Protocol for Ozone Layer Protection
The foundational concepts behind these tools have never been clearly articulated in any national legislation.
Nevertheless, in a significant deviation from
The Environmental Protection Agency Act from 1994 (Act 490)
, the present legislation,
Act 1124
incorporates various principles of international environmental law within its clauses under the heading “guiding principles for enforcing the Act.”
These guiding principles—as mentioned below—remained constant throughout
Section 161
– include:
(a)
Common but differentiated responsibility
(b)
Intergenerational equity
(c)
The precautionary principle
(d)
The polluter pays principle
(e)
Sustainable development
This brief note explores the application of these well-known and internationally acknowledged guiding principles within the context of national laws.
Common but Differentiated Responsibility
According to
Clause 170 of the Act,
The “common but differentiated responsibility” principle implies that: “Every state has an obligation to address global environmental degradation; however, this responsibility does not lie evenly across all nations.”
It is evident from this definition that the principle pertains specifically to “states” as opposed to individuals within those states. Put differently, it concerns Ghana’s duties at an international level instead of interactions with individual citizens.
Basically, adhering to the principle of “common but differentiated responsibilities,” Ghana pledges to meet its international environmental commitments while taking into account its available resources and capabilities.
This principle differentiates the responsibilities of developed and developing nations regarding their duty towards safeguarding the environment.
While the reason for incorporating this principle into the Act remains unclear, it might be due to the significant impact of international treaties and conventions during the statute’s development.
For instance, the
United Nations Framework Convention on Climate Change (UNFCCC)
incorporates the “Common but Differentiated Responsibility” principle by mandating that “advanced nations should take the initiative in addressing climate change and its detrimental impacts.”
Likewise, “Common but Differentiated Responsibilities” provisions can be found throughout
Montreal Protocol on Substances That Deplete the Ozone Layer
(which is also referenced in the Act).
In here as well, developed countries are required to take early action while developing countries are given longer timelines to take specific steps and also given financial and technical assistance.
Intergenerational Equity
This is another (fluid) principle gradually taking shape under international law but not yet fully crystalised. The essence of intergenerational equity is that today’s development must not compromise the ability of future generations to meet their needs.
The legislation outlines intergenerational equity as: “Satisfying the requirements of the current population without jeopardizing the capability of subsequent generations to fulfill theirs.”
Professor Edith Brown Weiss has outlined three main aspects of intergenerational equity as follows: (a) Preservation of natural and cultural assets to avoid undue limitations for coming generations; (b) Sustaining environmental standards to ensure that Earth is handed over in at least as good a state as we inherited it; and (c) Guaranteeing fair access to the ecological heritage left behind by previous generations.
The main reason for implementing this measure is to
Environmental Protection Act, 2025
aimed at ensuring current activities do not compromise the well-being of upcoming generations. For instance:
- The authority held by the Environmental Protection Agency to enforce limitations on the discharge of hazardous materials is consistent with this principle.
- The licensing terms, along with the power to revoke or annul licenses due to non-compliance, embody this concept.
- Setting environmental quality standards for air, water, and soil contamination helps ensure fairness across generations.
Precautionary Principle
The precautionary principle is recognized as a crucial enforcement guideline within the legislation. Essentially, this principle promotes taking preventative measures when scientific consensus is not fully established.
Section 170
The legislation outlines the precautionary principle in the following manner:
When faced with potential harm to the environment, regardless of whether it’s severe or irreversible, uncertainty about the science should not delay the implementation of affordable actions aimed at preventing ecological deterioration.
To put it simply: “When uncertain, take precautions to protect the environment.” An essential part of this approach involves reversing the burden of proof. The perorangan wanting to carry out an action must show that it won’t lead to environmental damage.
As legal experts Birnie and Boyle point out,
A more stringent interpretation of the precautionary principle completely shifts the burden of evidence, rendering it impossible to proceed with an action until it is demonstrated that it will not result in significant environmental damage.
The precautionary principle can be seen in various sections of the Act, such as:
- Environmental evaluations (Section 29) necessitate a preliminary assessment of possible environmental damage before an environmental license is approved.
- Environmental surveillance, examination, and review, all of which guarantee adherence to precautionary steps.
The mendasar aim of the precautionary principle is to stop harm from happening in the first place instead of trying to repair the damage afterwards.
Polluter Pays Principle
The “polluter pays” principle is straightforward: those who cause pollution are responsible for covering all associated costs. The legislation outlines this principle as follows:
A polluter must cover all expenses related to preventing or controlling damage resulting from any pollution they have caused.
This concept was initially presented in 1972 through an OECD Council Recommendation and has subsequently evolved into a broadly recognized tenet of global environmental legislation.
This principle is implemented within the Act via the notion of “extended producer responsibility.” According to the legislation, “the manufacturer bears accountability for every stage of their products’ lifecycle once they enter the market, encompassing everything from product design all the way to the conclusion of their lifespan, which includes handling waste collection and recycling processes.”
Sustainable Development
The last principle integrated into the enforcement structure of the Environmental Protection Act from 2025 is sustainable development. This legislation outlines sustainable development as follows:
“Satisfying human advancement objectives while maintaining the capacity of natural ecosystems to supply essential resources and ecological services required for economic activities and societal needs.” Fundamentally, sustainable development aims to harmonize economic progress with environmental conservation. Nevertheless, this concept also intersects with intergenerational fairness, resulting in certain theoretical uncertainties.
The perorangan serves as a Partner at AudreyGrey, a Ghana-based provider of legal, tax, and professional services. This firm specializes in delivering corporate law, tax consulting, compliance support, company secretary duties, regulatory adherence, and strategic advice to both domestic and multinational companies venturing into Ghana. Comprised of certified accountants and attorneys, the organization focuses on furnishing specialized services that help clients concentrate on their primary operations. Their areas of proficiency encompass corporate and commercial law, taxation, labor laws, maritime and environmental regulations, immigration policies, compliance issues, and insolvency law, along with connected accounting and financial tasks.
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