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INTRODUCTION

Effective administrative bodies and enablinglegal and regulatory frameworks form the cornerstones of good governance for sustainabledevelopment and enable governments, at all levels,to initiate and enforce critical environmentalprotection measures. It is now widely recognizedthat both economic development and the protectionof environment are critical for the attainment ofsustainable development. In recent years, the focushas increasingly centred on institutional mechanismsdesigned to promote a balance between environmentand development. In addition, environment agenciesare also equipped with adequate legal and regulatorypowers to conserve natural resources and checkenvironmental degradation. This chapter discussesthe institutional framework for environmentalprotection, and describes the status of environmentallegislation that together provides the basicinfrastructure for governing sustainable developmentin the Asian and Pacific Region.

INSTITUTIONS FOR SUSTAINABLEDEVELOPMENT: STATUS AND TRENDS

The Rio Declaration of 1992 and Agenda 21called for governments to establish effective legal andregulatory frameworks to enhance national capacitiesto respond to the challenges of sustainabledevelopment and underscored the critical importanceof fundamentally reshaping the decision makingprocesses to integrate environmental anddevelopment concerns. There has been, consequently,widespread recognition of the fact that the social,economic and environmental dimensions ofdevelopment must be treated in an integrated andbalanced way. Individual sectors are no longer to bedealt with in isolation, whilst the efforts ofgovernments and multilateral institutions requiremultidisciplinary approaches among specialists andinter-sectoral coordination at local, national, regionaland global levels.

An encouraging trend, in recent years, has beena shift from highly centralized and compartmentalizedbureaucratic structures to decentralized andparticipatary governance in most developingcountries of the region. Promotion of communityparticipation, decentralization of administration,integration of national and local decision makingprocesses, and involvement of NGOs and the privatesector in policy making are some of the key changestaking place across the region. Increasingly,Environment Ministries and agencies have beenrestructured and empowered with greater

institutional strength to promote better vertical andhorizontal coordination amongst different agencies,to balance conflicting interests and to facilitateintegration of environmental and developmentalconcerns. New legislation, including enactment ofcomprehensive umbrella laws and the strengtheningof existing laws, has enabled judicial institutions tooversee effective enforcement of environmentalmeasures.

NATIONAL INSTITUTIONS

A. Environmental BodiesNational level institutions have a crucial role

in formulating and crystallising the strategies, policiesand programmes of governments. With respect tosustainable development, their role is ever morecritical because it involves translating a fresh anduncharted approach to development planning andpolicy and the reorientation of existing institutionalparadigms and relationships in order to achieveintegration of environmental concerns intodevelopment processes.

Most countries in the region now have agenciesentrusted with the tasks of environmentalmanagement. No uniform pattern or model hasemerged, as these institutions have tended to be inline with the administrative traditions of therespective countries. Some countries have created aseparate ministry for environmental management,while in others environment cells or divisions havebeen created within an existing ministry. In addition,many countries have also formed a specialized agencyunder the executive branch of the government. Inthe design of the institutional structures and thefunctional domains of the environmental agencies,the institutional policy aspects and the executivepolicy aspects can be distinguished. Table 11.1provides a summary of the governmentalenvironmental protection institutions in Asia and thePacific.

The role of environmental ministries includescoordination with other ministries, implementationof government programmes and projects, monitoringcompliance with regulations and providing secretariatservices to higher bodies and, thereby, acting as alink between the ministry and the overall policymaking body. In federal states, the ministries alsocoordinate state and provincial activities on theenvironment. The ministries in their advisory rolerender technical and political advice and serve as thepolicy making unit for the government onenvironmental matters. The experiences of thecountries in the region reveal a gradual, yet steadyenhancement of capacity in the institutional structuresdue to increasing importance being accorded to

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Table 11.1 Forms of Governmental Environment Protection Institutions in Asia and the Pacific

Country/Territory/Vision Document Policy Institution Executing Agency Apex National Council

Area

NORTHEAST ASIA

PR China China’s Agenda 21 State Environmental State EnvironmentalProtection Administration Protection Administration

Democratic People’s Committee of General Bureau ofRepublic of Korea Environmental Protection Environment Protection and

of Administrative Council Land Administration

Japan Basic Environment Plan Ministry of the Environment Various Departments/ Central Environment Councilbureaus

Mongolia Mongolian Agenda 21 Ministry of Nature and State EnvironmentalEnvironment Inspection Department

Republic of Korea Green Vision 21 Ministry of Environment Various Commissions/ Environmental(MOE) bureaus under MOE Conservation Committee

SOUTHEAST ASIA

Brunei Darussalam Ministry of Development Ministry of Environment

Cambodia Ministry of Environment

Indonesia Indonesia Agenda 21 Ministry of State for Environmental Impact National Council forEnvironment Management Agency Sustainable Development

Lao People’s Office of the Prime Minister Office of the Prime Minister Science, Technology andDemocratic Republic Environment Organization

Malaysia Vision 2020 Ministry of Science, Department of Environment Environmental QualityTechnology and Environment Council

Myanmar Myanmar Agenda 21 National Commission forEnvironmental Affairs

Philippines Philippine Strategy for Department of Environment Management Philippine Council forSustainable Development Environment and Bureau Sustainable Developmentand Philippine Agenda 21 Natural Resources

Singapore Singapore Green Plan Ministry of Environment Various Divisions under(MOE) MOE

Thailand National Plan Ministry of Science, Various Departments under National EnvironmentalTechnology and MOSTE BoardEnvironment (MOSTE)

Viet Nam � Environmental Vision Ministry of Science, National Environment2020 Technology and Agency

� National Strategy for Environment (MOSTE)EnvironmentalProtection 2001-2010

� National EnvironmentalAction Plan 2001-2005

SOUTH ASIA

Afghanistan Ministry of Planning Various Departments

Bangladesh Environmental Conservation Ministry of Environment Department of Environment National EnvironmentalAct 1995 and National and Forests CommitteeConservation Strategy

Bhutan National Environmental National Environment Various agencies in the National EnvironmentStrategy for Bhutan Commission Secretariat Royal Government of Commission“The middle path” 1998 Bhutan

India National Conservation Ministry of Environment Pollution Control BoardsStrategy and National and Forests and State DepartmentsPolicy on PollutionAbatement

Islamic Rep. of Iran National Environment Department of Environment National Committee onAction Plan (NEAP) Sustainable Development

Maldives NEAP 1999-2005 Ministry of Environment National EnvironmentCouncil

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Table 11.1 (continued)

Country/Territory/Vision Document Policy Institution Executing Agency Apex National Council

Area

Nepal National Environment Ministry of Population and Ministry of Population and Environmental ProtectionPolicy and Action Environment Environment CouncilPlan I & II

Pakistan National Conservation Ministry of Environment, Federal/Provincial Pakistan EnvironmentStrategy Local Government and Environmental Protection Protection Council

Rural Development Agencies

Sri Lanka National Environment Ministry of Forestry and Central Environment Central EnvironmentAction Plan Environment Authority Authority

CENTRAL ASIA

Azerbaijan NEAP 1998 State committee on Ecology Ministry of Ecology andand Utilization of Natural Bio-resourcesResources

Kazakhstan NEAP 1998 Centre for National Coordinating WorkingEnvironmental Activity GroupPlan for SustainableDevelopment

Kyrgyzstan NEAP 1996 State Committee on NatureConservation

Tajikistan State Conservation on NatureConservation

Turkmenistan State Programmes of Ministry of Nature Ministry of NatureRegional Improvement Protection of Turkmenistan Protection of Turkmenistan

Uzbekistan National Environmental State Committee on NaturePolicy Conservation

SELECTED SOUTH PACIFIC COUNTRIES/TERRITORIES

Australia National Strategy for Department of Environment, Federal EnvironmentEcologically Sustainable Sport and Territories Protection AgencyDevelopment

Cook Islands National Environmental Interior Affairs Conservation ServiceManagement Strategy 1993

Fiji Sustainable Development Ministry of Housing and Department of Town andBill Urban Affairs Country Planning

Kiribati Environment Act, 2000 Ministry of Environment Environmental Task Forceand Natural Resources

Marshall Islands National Environment Environmental Protection Environment Task ForceManagement Strategy, 1993 Authority

Micronesia National Environmental Board of Environment and Board of Environment and(Federated States of) Management Strategy Sustainable Development Sustainable Development

New Zealand Several Strategies Ministry of Environment Various Divisions

Niue National Environmental Conservation CouncilManagement Strategy

Papua New Guinea Department of Environment Division of Environmentand Conservation

Samoa National Environment and Department of Lands, Division of EnvironmentDevelopment Strategy, 1993 Surveys and Environment and Conservation

Solomon Islands National Environment Land, Energy and Environment ConservationManagement Strategy, 1993 Natural Resources Division

Tonga National Environment Ministry of Land, Survey Environmental PlanningManagement Strategy, 1993 and Natural Resources Section

Tuvalu National Environmental Office of the Prime Minister Various MinistriesManagement Strategy

Vanuatu National Conservation Ministry of Home Affairs Department of PhysicalStrategy Planning and Environment

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environmental concerns in governments’ overalldevelopment policies. However, the environmentministries generally suffer from inadequate financialand human resources, thereby lowering the qualityof advisory services and adversely affectingmonitoring of compliance. Moreover, in caseswhere the environmental unit is placed under amulti-functional ministry, conflicts of interest oftenobstruct the discharge of functional responsibilities.

B. Apex BodiesRecognizing that the social, economic, cultural

and environmental dimensions of development mustbe treated in an integrated and balanced way, apexbodies, above the level of ministries, have been setup in some countries to guide the sectoral agencies.The mandates for these bodies tend to be extensiveand includes: establishing guidelines andmechanisms for sustainable development;formulating policy reforms; recommending newlegislation; ensuring linkages with provincial andlocal governments and NGOs; reviewing andcoordinating programmes; and suggesting means for

developing capacities, both for human and financialresources.

In Japan, the Council for SustainableDevelopment is the advisory body to the Governmentand is mandated to follow up on the progress ofmeasures taken in development planning andfacilitate the efforts of different agencies in the field.Similarly in other countries across the region, apexcouncils have been established and often headed bysenior government officials with representation bystakeholders, such as representatives from, industry,private sector, NGOs and the general public.Examples include the Council for SustainableDevelopment (PCSD) in the Philippines, (Box 11.1),the National Economic and Social DevelopmentBoard (NESDB) and the National Environment Board(NEB) in Thailand, and the Environment ProtectionCouncil in Nepal.

In Iran (Islamic Republic of), the NationalCommittee on Sustainable Development is the keynational sustainable development coordinationinstitute. Chaired by the Head of the Department ofthe Environment, it includes members from the

Box 11.1 Philippine Council for Sustainable Development (PCSD): A Mechanism for IntegratingEnvironmental Considerations into Overall Economic Policies in the Philippines

PCSD provides the operational mechanism for sectoral integration and the systematic incorporation of environmentalconsiderations in decision-making in the Philippines. The organizational structure of PCSD, effectively provides the necessarymechanism for integration. The PCSD brings together those agencies which are responsible for the formulation of macroeconomicand sectoral policies, as well as NGOs whose main advocatory interests are environmental and social causes under the chairmanshipof National Economic Development Agency (NEDA). This arrangement enhances the effectiveness of PCSD in integratingenvironmental concerns in economic policy making.

The staff of the NEDA Secretariat serves as the Coordinating Secretariat to PCSD and also provides the necessary technical andadministrative support to PCSD. An Interstaff Technical Working Group, supports the unit providing secretariat services to PCSD.The interstaff group relates the policy issues discussed at the council level to existing policies in the sector, and brings them to theattention of PCSD. They also ensure that proposed policy actions are consistent with the overall development objectives in theirrespective sectors. Since the staff is involved in PCSD work in policy and project evaluation and analysis, it is easy for them toincorporate the environmental considerations discussed at the council level into their review of macro and sectoral policies andprogrammes.

PCSD recommendations are normally translated into resolutions and Executive Orders which are submitted for the considerationand approval of the President. The requirement of the President for a complete briefing on all policy issues submitted to his officealso provides assurance that the concerns of virtually all agencies and sectors are considered. Some of the more notable resolutionsand Executive Orders in which the Council has played an important role are: Executive Order 247 on Prescribing Guidelines andEstablishing a Regulatory Framework for the Prospecting of Biological and Genetic Resources; Memorandum Order 289 on Directingthe Integration of the Philippine Strategy for Biological Diversity Conservation in the Sectoral Plans. Programmes, Projects of theNational Government; Memorandum 399 on Directing the operationalization of the Philippine Agenda 21; Executive Order 291 onStrengthening the Environmental Impact Assessment System; and Executive Order 406 on Environmental and Natural ResourcesAccounting.

To date, PCSD is probably one of the most effective mechanisms for incorporating sustainable development in planning andpolicy decision-making in the developing countries of the region. Integration of environmental issues into economic decision-making is achieved mainly through dialogue and debate among concerned stakeholders during meetings of PCSD and its committees.Moreover, relevant policy issues and programmes are subjected to the evaluation of member-agencies to ensure that the concerns ofall affected sectors are considered.

Source: The Government of Philippines

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President’s Office, the Department of Environment,the Meteorological Organization and the Plan andBudget Organization. In Kazakhstan the Ministry ofEcology and the Centre of National EnvironmentalActivity Plan for Sustainable Development are incharge of integrating environment and developmentinto decision-making.

The creation of high-level apex bodies has themerit of authoritatively reducing inter-ministryconflict of interests and enabling a critical evaluationof the performance of ministries without raisingdoubts of bias. These bodies guide the sectoralagencies and coordinate their activities, in additionto recommending measures and legislation toeffectively implement the national strategies forsustainable development. The representation of majorline ministries, the NGOs, corporate sector andcommunity representatives within these bodiesrecognizes the need for a cross-sectoral approach tosustainable development. The high level ofrepresentation, with Prime Ministers heading manysuch bodies, provide them with a leadership role thatcannot be challenged or overlooked by line ministriesand agencies. However, the weakness noticeable inthese bodies in many countries is the infrequentmeetings, which hinders the effectiveness of plansand policies. Often, junior officials, who do not havethe requisite authority in policy formulation,represent their departments in the apex bodies orinteragency committees, thereby negating the veryprinciples of collective decision-making envisaged intheir creation.

C. Integration of Environmental Concerns inDevelopment Process: Planning InstitutionsA primary concern of governments in the

region has been to integrate environmental issueswith the developmental planning processes. A centralplanning body, which has representation from boththe development and environmental streams, andwhich functions with the holistic vision necessaryfor sustainable development, is yet to evolve in anyof the countries of the region. However, in recentyears, there has been a broad awareness amongstpolicy makers of the interlink between economicsand environmental problems, and efforts have beenmade to link these issues in a decision makingframework through the mechanisms of planning.

Bodies such as Planning Commissions(Pakistan, India (Figure 11.1), Bangladesh, Nepal),Boards (NEDA, Thailand) and Authorities (NEDA,Philippines) are crucial macroeconomic institutionsthat take a long term view of development issues;collate, assess and prioritize the countries publicinvestment programmes; and, coordinate and monitorimplementation through line ministries, sectoralagencies, and regional and local governments.Planning bodies can play a crucial role in enhancedpromotion of a cross-sectoral and integrated approachto environmental protection and sustainabledevelopment.

In Nepal, for example, as part of the regularNational Planning Commission’s (NPC) mandate, allenvironmental policies, programmes and projects inthe public sector are subject to review and approval

Figure 11.1 Role of Planning Commission on Environment in India

PLANNING COMMISSION

Steering Committee forMonitoring Projects, Chairman: Member Planning Commission

Steering Committee for PlanPreparation, Chairman:

Member, Planning Commission

State Departments of

Environment & Forest

Working Groups forEnvironment, Biodiversity,

Forest, Wasteland etc.

Task Forces for Pollution, WildlifeForests, Fuelwood, Fodder, River

Cleaner, Wasteland etc.MOEF

Central Sector Project(Public & Private)

State Sector Project(Public & Private)

Central State MinistriesAcademic Institutions, NGOs,

Private Sector

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by the NPC before they are enforced. There is anEnvironment Protection Division within the NPCwhich is responsible for overseeing and coordinatingintersectoral activities related to the planning,programme budgeting and monitoring ofenvironment-related actions.

In a number of other countries, environmentalunits or cells have been created in the planning bodiesto integrate environment into economic decisionmaking. For example in India a member of thePlanning Commission is in charge of Environmentand Forest Sector assisted by a Senior Adviser, a Jointadviser, two Deputy Advisers and three researchofficers. The Commission performs the coordinatingrole in the environmental management by havinginputs for the environmental component of NationalPlan.

During the preparation of National Plans, thePlanning bodies usually canvass the advice of theministries of environment and also relevant sectoralministries through the establishment of ad hocworking groups or committees. These evolvingarrangements are advancing the integration ofenvironmental considerations in economic decision-making.

In the island states of the South Pacific,planning processes are still fragmented along sectorallines though efforts are being made to integrateenvironmental concerns into the development process(Chapter 18).

Overall, the institutional integration ofenvironment into economic decision-making has seenconsiderable progress in Asia and the Pacific.However, under-staffing, lack of training of existingstaff and conflict of interests with other ministries oragencies obstructs effective integration. In order tobring environmental planning into the mainstreamof the planning process developing more effectivecoordination and integrated institutions andmechanisms is required.

D. Judicial Institutions and MechanismsThe Judiciary plays a crucial role in promoting

the goals of sustainable development. Judicialinstitutions serve as agencies for interpretinglegislation relating to environmental issues,integrating emerging principles of law within theholistic paradigms of sustainable development,providing a coherent and comprehensive strategy forhandling diverse sectoral laws into a cross-sectoralapproach, ensuring effective implementation oflegislation and, in recent years, providingopportunities for people, to canvass for the protectionof fundamental rights to a satisfactory environment.

The rule of law becomes particularly importantas regulations and procedures which govern human

activity serve to limit conflicts arising from competingclaims (social, economic and ecological) on scarceresources whilst ensuring sustainable development.Connections and linkages between different forms ofactivity and their environmental consequences aresubject to different interpretations and reflect aninherent complexity of issues. The judiciary,therefore, is called upon to resolve such issueswithout compromising the fundamental goals of civilsociety.

The structure of judicial institutions in differentcountries of the Asian and Pacific Region has notbeen substantially modified to cater to therequirements of achieving sustainable development.In many countries, the Supreme Courts have takenthe lead in interpreting laws and giving directionswhich have had far reaching impact on environmentalmanagement. The Supreme Court in India, forexample, in recognizing the role of environmentalprotection in sustainable development and growth,has been establishing mechanisms forinstitutionalising judicial dispensation inenvironmental matters. The Court has adopted andset procedures that become the guiding law for thesub-ordinate courts in the country. The mostimportant innovation has been the Public InterestLitigation that enables individuals and organizationsto file a writ petition with the objective of protectingenvironmental resources and benefiting the affectedpeople. The Supreme Court of India has alsoestablished specialized High Court benches knownas Green Benches.

Similarly, in Pakistan the superior courtsexercise jurisdiction conferred under Articles 184(3)and 199 of the Constitution. The 1997 EnvironmentalProtection Act provides for Environmental Tribunalsthat will have exclusive jurisdiction to try offencesunder the Act. Likewise, Nepal’s 1997 EnvironmentalProtection Act provides for the designation of aPrescribed Authority before which environmentalcases are to be filed. However, appropriate rules fordesignating such an authority have not yet beenformulated and environmental cases continue to bebrought before the ordinary courts.

An active judiciary has the potential to establishthe rights of people to enjoy certain environmentalrights and seek judicial intervention where these areviolated. The judiciary may also act as a check ongovernment policies that disrupt fragile ecologicalbalances and generate awareness and consciousnessamongst policy makers through court verdicts andorders. However, there is a need for specialistenvironment courts that can facilitate more consistentand speedier environmental decision-making. Thesecourts would reduce the number of cases broughtbefore the Supreme Courts and High Courts and

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reduce the administrative costs as a single combinedjurisdiction would be cheaper than multiple separatetribunals.

E. Supporting InstitutionsThe role of supporting institutions in

environmental management for sustainabledevelopment has expanded to bridge the gapsbetween the vision of sustainable development andthe actual implementation of plans and policies.Specialized policy research institutes, R & D institutes,NGOs and private sector institutions have a role incomplementing the efforts of governments to prepareplans and programmes, mobilize public opinion,provide research inputs and scientific data, train staffand members of the public and build awareness.Across the region, institutions have emerged thatspecialize in environmental research and publicoutreach. In the Republic of Korea, the NationalInstitute of Environmental Research and the KoreanEnvironmental Technology Research Institute havebeen set up under the Ministry of Environment. InIndia, the Tata Energy Research Institute (TERI) isworking for the standardization of environmentalmonitoring methods for air, water, soil, wastes, andvehicle emissions and also training personnelfrom the government and the private sector (seeChapter 15).

At an international level, NGOs such as theWorld Conservation Union (IUCN) and theWorldwide Fund for Nature (WWF) have beenparticularly active in the Asian and Pacific Region,and continue to provide technical and advisorysupport to various country governments (seeChapter 14). Other supporting institutions forenvironmental management include United Nationsagencies such as UNDP and UNEP and bilateral andmultilateral organizations, which constitute a majorsource of financing for sustainable development.

SUB-NATIONAL AND LOCALINSTITUTIONS

Involvement of sub-national and localgovernments in environmental management,formulation and implementation of plans and policiesand monitoring of environmental laws has increasedin the post-Rio years. This has resulted in thedevolution of powers and the delegation ofresponsibilities to provincial governments, localbodies and municipalities to undertake environmentalprotection measures within the national conservationstrategies. At the provincial level, environmentalagencies have been set up with the aim ofdetermining critical resources, assessing currentresource use, implementing national goals and

coordinating the functions of sectoral agencies andlocal authorities.

Agenda 21 called for local governments to playan important role in its implementation and for theformulation of Local Agenda 21s for effectivemanagement. In Japan, the Government providesassistance to the local authorities for their ownvoluntary and independent environmental activitiesand for international cooperation at the localauthorities level. Local authorities are directlyinvolved in the implementation of laws, regulationsand guidelines, and in the observation, measurementand control of pollution, in addition to carrying outvarious anti-pollution and nature conservationprojects, (Box 11.2).

In the Republic of Korea, 159 out of 248 localgovernments are in the process of establishing orpromoting Local Agenda 21s. Through thismechanism local governments, together with citizensand industries, will have their roles andresponsibilities for environmental protectionstrengthened through the establishment andimplementation of environmental plans that meetlocal needs. Provinces, autonomous regions andmunicipalities in People’s Republic of China havealso formulated their own local Agenda 21s. Forinstance, Sichuan (the most populous province inPeople’s Republic of China), Shanxi (a coal-richprovince) and Guizhou (the poorest province) haveformulated their own local Agenda 21. Provinces inPakistan such as the North West Frontier Province(NWFP) and, more recently, the province of Bolodutahave also formulated their respective ProvincialConservation strategies which focus on a few selectedsectors such as industry, agriculture, forestry and wildlife, public health, urban environment, education andcultural conservation. Similar efforts to preparesub-national level environmental plans and strategiesare found in Thailand, Indonesia, Malaysia, Viet Namand the Philippines.

A. Institutional ArrangementsInstitutional arrangements across the region at

regional and local levels have followed nationalpatterns, with an environmental cell or unitresponsible for overall environmental management,planning, monitoring and coordination. Theenvironmental cell is vested with regulatory powersto control pollution and check degradation of naturalresources. For example, in India, all 25 stategovernments have either set up a separateDepartment for Environment or redefined theresponsibilities of Forest Department. The state leveldepartments regulate the implementation of laws andregulations within their area and exercise control overthe State Pollution Control Boards. In NWFP,

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Pakistan, the role of the environment unit underthe Planning, Environment and DevelopmentDepartment has been streamlined by creating: thePlanning Section (project approval, preparation andimplementation of parts of the 5 year plan); and theEnvironment Section (policy formulation,coordination and implementation of the national andprovincial conservation strategies; monitoring ofregulations and international conventions onenvironment; and design and implementation ofsuitable provincial legislation). An EnvironmentalProtection Agency has also been created for checkingenvironmental degradation and pollution control.

Local and municipal administrations have theclosest interface with environmental problems suchas land degradation, urban waste, air and water

pollution. The importance of strengtheninginstitutional arrangements at such levels has beenincreasingly realized in many countries of the region.Consequently, environmental bodies have been setup in many large and medium sized cities withadvanced monitoring systems and assessmentcapabilities. At the same time, the global trend ofdecentralized administration has found manycountries introducing changes in the administrativestructures to empower local bodies by shiftingconservation measures and elementary monitoringfunctions to these bodies.

For example, People’s Republic of China hascreated hundreds of Environmental ProtectionBureaux in its cities. These bureaus play a crucialrole in formulating and implementing environmental

Box 11.2 Synchronization of Environmental Policies, Laws and Administration:A Case Study of Japan

The Japanese Government responded to an urgent environmental crisis in the late 1960s and early 1970s by enacting stringentemission standards for common pollutants and promoting a policy of working with industry in the widespread application ofcleaner technology to combat environmental degradation. Formulation and implementation of environmental policies at nationallevel involved promulgation of a series of environmental laws or acts and their nationwide implementation through the creation ofappropriate administrative systems. The Basic Pollution Act (enacted in 1967), for example, laid the foundation for anti-pollutionmeasures and was in effect until it was replaced by the Basic Environmental Act in 1993, which was enacted to take new realities intoconsideration after UNCED. The Basic Environment Act made it mandatory for the state government to prepare a Basic EnvironmentalAct 1994. The cyclical system of nature and life, the necessity for coexistence, full participation by all sectors and people, andpromoting global environment policy, were incorporated as four basic and fundamental principles of the plan. Following the BasicEnvironment Act, the Environmental Assessment Bill was enacted in 1997 in order to standardize concepts and procedures of impactassessment.

Integration of economic and environmental policy was a major challenge for decision makers in Japan. In this regard, thecountry’s recognition on the economic value of preventive environmental planning and policy, with the issue of waste minimizationand environmental compliance in western markets were the positive signals which were also achieved through invoking appropriatelegislation. Several acts were promulgated in order to deal with typical environmental pollution problems such as the Air PollutionPrevention Act, the Water Pollution Prevention Act, the Vibration Regulation Act, the Noise Regulation Act, the Odor Prevention Actand the Soil Pollution Prevention Act.

The Japanese Government has also been actively participating in several global environmental conventions. In order toimplement these at national level, relevant domestic laws were amended in order to comply with the international treaties (OzoneLayer Prevention Treaty (1985) and its Montreal Protocol (1987), United Nations Framework Convention on Climate Change (1992),the Convention on Biological Diversity (1992), Environmental Protection Protocol to the Antarctic Convention (1997) and the COP3for the Convention on Climate Change). For instance, manufacturing and use of CFC is now regulated based on a nationallyapproved Ozone Layer Protection Act. Similarly some amendments were made to the Energy Conservation Act in order to deal withthe global warming problem and to achieve the standard of CO2 emission reduction enforced by the Kyoto Protocol. In 1998, theGlobal Warming Policy Promotion Act was promulgated to set the basic national policy to address the problem.

Besides the development of synergy between environmental policies, laws and administrations, another noteworthy trend inthe implementation of environmental measures at the national level was conflict resolution between institutions on the implementationof environmental pollicies. Occasionally, in the initial stages of implementation of a particular policy arguments arose regardingwhich agency or ministry was going to assume lead responsibility, especially where jurisdictions were overlapping. Recently forexample after the COP3 when amendments to laws and regulations dealing with global warming were considered, there was anapparent conflict between Ministry of International Trade and Industry which favours more of an energy related approach and theEnvironment Agency which seeks more comprehensive measures. Similar problems developed for initiation of nature conservation,between the Environment Agency and the Forest Agency, when the latter re-orientated its policy towards environmental protection.Such struggles for possession of ruling authority amongst rival ministries and agencies is seen as a source of problems in environmentaladministration in some countries of the region. However, in Japan, it has had positive effects on environmental governance and isseen as a major step towards integration of policies leading to enhanced environmental management and administration.

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policies and coordinates with the local PlanningCommission and other municipal departments in thepreparation of joint environmental protectionstrategies that are inter-institutional and cross-sectoral. In Kuala Lumpur, Malaysia, the task ofmonitoring urban environment and industrialpollution and enforcing pollution control laws hasbeen delegated to an Environmental ManagementUnit in the City Hall. However, the all-embracingenforcement powers of the Federal Department ofEnvironment leave the local authorities with weakinstitutional strength to monitor implementation ofenvironmental measures.

In the South Pacific subregion, institutionalmechanisms at the local level for achievingsustainable development have taken different forms.Papua New Guinea, Solomon Islands and Vanuatuhave a system of provincial governments in whichelected councils have been delegated powers andresponsibility over local affairs. The Organic Lawenacted by Papua New Guinea identifies two layersof governments: province and district. Amongstother subjects, control over urban facilities andenvironment, waste disposal, health and water supplyhave been vested with the provinces. In Vanuatu, asimilar system to Papua New Guinea has beenadopted, but with a more proactive approach towardspublic health and urban amenities. For example, thePort Villa Council works closely with the PhysicalPlanning Unit of the Ministry of Home Affairs toregulate use of land and coordinate actively with theDepartment of Health to improve living conditionsin squatter settlements.

In Fiji, provincial administration is relativelyundeveloped, with the concentration of powers andresponsibilities vested in central government.However, local governments have been delegatedurban management responsibilities under the LocalGovernment Act that enables them to promote thehealth and welfare of the inhabitants. TheDepartment of Health under the council addressesproblems of garbage collection and disposal, wastemanagement and drainage control.

However, the devolution of powers andresponsibilities to the sub-national, local andmunicipal bodies has not followed a uniform patternacross the region, or between urban and rural areas.In urban areas there has been greater success inachieving the integration of environmental anddevelopment concerns. This is as a consequence ofgreater and more visible environmental problems inurban and industrial cities and towns, and betterawareness of environmental issues amongst the urbanpopulace. In rural areas, where public participationhas been greater, the institutional mechanisms have

been more focussed on specific environmentalmanagement programmes related to resource use.

INSTITUTIONAL COORDINATION

Coordination mechanisms provide harmonizinginstruments for close and effective work betweendifferent institutions. Lack of effective coordinationoften results in a dispersed sector-specific policy,orientation and concomitant difficulties in trying toharmonize the various sectoral interests. Ideally,effective coordination mechanisms builds onintegrated criteria for development in whichconflicting interests get resolved through themediation of common goals and objectives.Furthermore, each layer of administration is seen lessas an adversary determined to confiscate power orprivileges and more as an integral component of jointendeavour.

Despite the development of separateenvironment ministries or advisory councils, thestructure of governments in the region continues tobe characterized by a high level of fragmentation anddifferentiation along sectoral lines. The institutionsresponsible for environmental management haveoften become another functional line ministry only.In addition, most governments in the region are stillhighly centralized with devolution of powers andresponsibilities to the local and provincialgovernments being either negligible or progressingin a piecemeal manner. Therefore, theimplementation of programmes and plans designedto achieve sustainable development call forestablishment of coordination mechanisms that notonly bridge the existing gaps in the governmentalstructures but create avenues for advancing theobjectives and goals of sustainable development.

Preparation of strategic environmentmanagement plans and the creation of apex bodies/councils above the level of ministries have increasedawareness and understanding of sustainabledevelopment amongst the multifarious agencies ingovernments and the public arena. In order toeffectively coordinate the activities of ministries,government departments and the agents in the fieldhave all experimented with different approaches.Some countries have created environment units indifferent ministries; others have liaised withenvironmental core groups consisting of specialistswhich act as a roving team moving from ministry toministry and undertaking specific evaluation andassessment of projects that have environmentalimplications. The committee system in whichmembers from concerned agencies are drawn into

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committees to ensure functional integration andcoordination of policy has also been introduced inmany countries. Vertical coordination among layersof government is particularly important, and dependsconsiderably on the degree of decentralization andthe mandate of local governments.

Horizontal and vertical coordination amongstagencies and ministries in People’s Republic of Chinais achieved through four-tier networking amongst thenational, provincial, local and sectoral levels.Environmental management departments at eachlevel of government are responsible for supervisingimplementation of laws and regulations forenvironmental protection, coordinating the relationsamong different agencies and guiding their work.The State Environmental Protection Administrationis the apex body monitoring and coordinating theactivities of the different provincial, local and sectoralagencies.

In the Philippines, Environmental Units (EU)have been created in various sectoral agencies andare coordinated by the Department of Environmentand Natural Resources (DENR) which therebyensures linkages between the environment ministryand the sectoral agencies. The Environmental Unitsare responsible for preparation of EnvironmentalImpact Statements (EIS), ensuring that agencies meetthe EIS norms and facilitating the issue ofEnvironmental Clearance Certificates (ECC).

Singapore set up an Environment Council(SEC) in 1995 as an umbrella organization to facilitatecoordination and cooperation between NGOs andother green groups. The SEC has specializedcommittees to supervise and coordinate the sectoralactivities including: the Industry Committee topromote corporate environmental responsibility; theCommunity Relations Committee to foster greaterappreciation of the environment amongst thecommunity; the Education Committee to advise atvarious levels of education from schools to tertiaryinstitutions; the Research and Publications Committeeto initiate, facilitate and publish studies relevant tothe environment; and, the Finance Committee toobtain funding from various sources for thecommittees’ projects.

The Environmental Impact ManagementAgency (BAPEDAL) in Indonesia coordinates withline ministries, especially the Ministry of HomeAffairs, and, at the regional level, activities arecoordinated by regional government and BAPEDAL-DA (regional offices of BAPEDAL). In the initialstages, community participation was negligible, butthis has improved since the participation by groupsof universities in the programme.

The NEB in Thailand has a major coordinatingrole as it has been vested with the authority to

prescribe environmental standards and to approvethe national plan for Management of EnvironmentalQuality and provincial environmental plans. Thepresence of most ministers of the government on theboard, and the chairmanship of the Prime Minister,makes the NEB a powerful body which line ministriescannot ignore.

In the Republic of Korea, the EnvironmentalPreservation Committee assumes the task ofinterdepartmental coordination for environmentalissues amongst different ministries. It also involvesother institutions such as the Korea Chamber ofCommerce and Industry, the Seoul NationalUniversity, the Taegu University, and the Korea NewsEditors’ Association. The NGOs involved includethe Korea Saemaul Undong Centre, the KoreanFederation for the Environmental Movement, and theKorea National Council of Women. Verticalcoordination between the central ministries andagencies and the local governments is maintained bydevolving substantial responsibilities, such asperforming EIA, monitoring emission standards andprotecting nature conservation, to the localgovernments.

In Sri Lanka, the “Committee on EnvironmentalPolicy and Management (CEPOM)” is responsible forintegrated environmental concerns in developmentpolicies and programmes of the line ministriesconcerned. It also acts as a mechanism forimplementing the National Environmental ActionPlan (NEAP). The CEPOMS cover biodiversity,health, industries, coasts, water etc. and are convenedby the Ministry of Forestry and Environment andthe sectoral Ministry concerned.

Coordination mechanisms in Pakistan arelinked to the planning process that leads to thepreparation and implementation of five-year plansby the Planning Commission. The Ministry ofEnvironment, Local Government and RuralDevelopment is responsible for coordinating andimplementing national environmental policies. Atthe provincial level, the Annual Development Plan isinitiated and coordinated by the Provincial PlanningDepartment. The provincial plan is again vetted atthe federal level. The Annual Plan CoordinationCommittee is chaired by the Finance Minister whichdeliberates on the proposals before sending it to theNational Economic Council, the apex decision makingbody headed by the Prime Minister. The Ministry ofEnvironment Local Government and RuralDevelopment has established an Advisory Board toinvolve private sector and NGOs in environmentalmanagement.

Among the countries in the South Pacificsubregion, most governments have recognized theneed for inter-agency coordination in environmental

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management. In Tonga, the key coordinating agencyis the Development Coordination Committee (DCC),headed by the Deputy Prime Minister and comprisingsenior ministers and officials. With high level andwide-ranging representation, the DCC is expected toensure that environmental implications of newprojects are properly assessed. Unfortunately, theMinistry for Land Surveys and Natural Resources isnot represented on this committee and as aconsequence, enforcement of laws related toenvironmental protection suffers. In Fiji, theDepartment of Environment under the Ministry ofHousing and Urban Development only has aperipheral role in the activities of the line ministriesand departments. To address this the governmenthas constituted ad hoc committees for specificproblems. The representatives on these committeesare chosen from different stakeholders, but there areno set procedures for their working. TheEnvironment Management Committee coordinatesthe activities of different agencies and provides adviceon the implications of development proposals. TheNational Environment Steering Committee overseesthe National Environment Project that began in 1991;other committees include: Mangrove ManagementCommittee, Rubbish Dump Committee, National OilPollution Committee and Consultative Committee onOzone Depleting Substances.

The Ministry of Forestry, Environment andConservation in the Solomon Islands is the leadagency for coordinating environmental issues butcoordinates with different sectoral ministries whenappropriate. For instance, genetic heritage andbio-diversity projects are undertaken with theAgriculture Ministry. Numerous committees existfor the coordination of policy and activities indifferent sectors and there is an overlap between thevarious committees which enables conflicts to beresolved and duplication to be reduced.

Given the segmented and compartmentalizedstructure of administration in the Asian and PacificRegion, a legacy of fragmentation of concerns andresponsibilities preventing effective coordination hasbeen created. Coupled with this is a lack of awarenessand appreciation of the interconnections andinter-dependence between various issues, a lack ofknowledge about tools and methodologies requiredfor factoring environmental costs and a paucity oftrained and skilled personnel. The region’sgovernments will need to continuously review themechanisms to ensure that responsibilities are welldefined, that potential areas of conflict are identifiedand overlaps in responsibility removed or reconciled,and that potential areas of cooperation are madeknown to the agencies for mutual benefit andinteraction. By making coordination an integral

function of the apex environmental bodies in mostcountries of the region, the governments havesignalled their intention to work towards securingintegration of environmental and developmentalconcerns.

ENVIRONMENTAL LEGISLATION:STATUS AND TRENDS

The Rio Declaration and Agenda 21 identifiedenvironmental legislation as a critical component inthe enhancement of capacity building for sustainabledevelopment. Laws and rules to control air, waterand marine pollution, to manage municipal wastesand urban settlements, to regulate forests and forestresources and to preserve biodiversity had previouslybeen on the statute books of different countries underseparate legislation. In the post-Rio period, manycountries in the region have responded to theemerging challenges of achieving sustainabledevelopment by reshaping legislation to make it moresuited to integrating the environmental anddevelopment concerns of the country. The variousmultilateral environmental agreements have alsopromoted the development of national legislation.

A. Constitutional ProvisionsThe Constitutions of many countries in the

Asian and Pacific Region, particularly those enactedafter the Stockholm Conference in 1972, have enjoinedcountries to strive towards environmentallyresponsible development through: the sustainableuse of natural resources; the provision of a healthyand clean environment; and the recognition of therights of individual citizens to a clean and healthyenvironment. For example, one of the stated goalsin the Constitution of Papua New Guinea is: “Wedeclare our fourth goal to be for Papua New Guinea’snatural resources and environment to be conservedand used for the collective benefit for us all, and tobe replenished for the benefit of future generations.”The 1980 Constitution of Vanuatu embodies similarprinciples, Article 7(d) of the Constitution states:“Every person has the fundamental duty tothemselves, their descendants and to others to protectVanuatu and to safeguard the national wealth,resources and environment in the interests of thepresent and future generations.”

The effectiveness of constitutional provisionson environmental protection depend on the clarityof the legislation, rules and regulations, theadministrative and judicial institutions that enforceand implement the laws and the level of awarenessin the society regarding the environmental rights ofcitizens. In countries like India, Bangladesh and the

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Philippines, successful judicial interventions throughpublic litigation have established the broadparameters of law that reinforces the provisions ofthe Constitution. In contrast, the Sri Lankanconstitution seemingly states that Articles 27 and 28,which require the state to protect, preserve andimprove the environment for the benefit of thecommunity, do not confer legal rights or obligationsand are not enforceable in any court. In India, theDirective Principles of State Policy enunciateprinciples, which, though not enforceable by anyCourt, are nevertheless fundamental in thegovernance of the country. Furthermore, theConstitution states that it shall be the fundamentalduty of every citizen to protect and improve thenatural environment, including forests, lakes, rivers,and to have compassion for living creatures.

B. Environmental Framework LawMany countries in the region have enacted

environmental framework legislation, also known asan ‘umbrella law‘, in order to cover the array ofenvironmental issues. Table 11.2 provides a selectionof such framework laws. These framework lawsrepresent a new judicial technique, with a strongenvironmental policy orientation. Their purpose isto establish an overall coherent policy and provide abasis for the coordinated work of various governmentagencies with operational responsibility for theenvironment and natural resources. In some cases,the legislation invests authorities with regulatorypowers to address specific issues affecting theenvironment.

Typical areas covered by these framework lawsinclude: prohibitions on the discharge of oil andwaste; prevention of pollution to air, water and soil;prevention of degradation and depletion of naturalresources; and the provision of a positive directiontowards integrating environment and development.

In the island states of the South Pacific,countries are in the process of formulatingcomprehensive environmental legislation as theexisting laws from the colonial period proveinadequate for dealing with modern environmentalproblems. Papua New Guinea, for example, has aproposed Environmental Regulation Framework tobring all environmental regulatory work under oneauthority. Both Tonga and Vanuatu have draftedumbrella laws to facilitate environmental resourcemanagement and sustainable development. Fiji hasprepared and placed before Parliament, theSustainable Development Bill. The provisions in thebill include preparation of a natural resourceinventory for each sector, a resource plan and anatural resource account, which would be subject toaudit. The Bill also seeks to create a self-regulatory

mechanism for environmental controls for industries(see Box 11.3).

Many of the framework laws in the region setenvironmental quality criteria and standards that aimto specify identifiable targets and limits as the basisfor government agencies to determine and monitorcompliance efforts. For example, under Thailand’s1992 National Environment Quality Act, the Ministerof Science, Technology and Environment isempowered to issue standards for emissions, effluentsand hazardous wastes. A Pollution ControlCommittee oversees the environmental protectionmeasures and aids and advises the Minister on thestandards. Similar provisions authorising specifiedgovernment agencies to issue standards and controlair, water and waste pollution exist in the legislationof Bangladesh, People’s Republic of China, India,Kazakhstan, Kyrgyzstan, Mongolia, Pakistan, Papua

Table 11.2 Some Framework Laws forEnvironmental Management in SelectedCountries in Asia and the Pacific

Sr. No. Country Framework Laws

1 Bangladesh Environmental Protection Act, 1995

2 PR China Environmental Protection Law ofPeople’s Republic of China, 1979

3 Democratic Law on the Protection of thePeople’s Environment, 1986Republic ofKorea

4 India Environmental Protection Act, 1986

5 Indonesia Environmental Management Act, 1997

6 Islamic Environmental Protection andRepublic Enhancement Actof Iran

7 Kazakhstan Law on Protection of the NaturalEnvironment, 1991

8 Malaysia Environmental Quality Act, 1974

9 Mongolia Environmental Law of Mongolia, 1994

10 Pakistan Pakistan Environmental ProtectionOrdinance, 1997

11 Philippines Philippine Environment Code,Presidential Decree No. 1152, 1977

12 Republic of Basic Environmental Policy Act, 1999Korea

13 Sri Lanka National Environmental Act, 1980(Incorporating 1988 amendments)

14 Tajikistan Law on the Protection off Nature, 1993

15 Thailand Enhancement and Conservation of NationalEnvironmental Quality Act, 1992

16 Turkey The Environmental Law, 1983

17 Uzbekistan Law on the Protection of Nature, 1992

18 Viet Nam Law on Environment Protection, 1994

Source: UNEP 1995 (updated by ESCAP)

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New Guinea, Saudi Arabia, Sri Lanka, Tajikistan,Uzbekistan and Viet Nam.

Implementation of laws, especially enforcementof standards and environmental quality, is critical forthe success of any environmental protection regime.Supplementary legislation on sectoral aspects ofenvironmental management is necessary to bridgethe gaps in the framework laws and to providepractical guidelines and criteria to the enforcementagencies. Most countries in the region have laws tocover sector-specific environmental problems andissues. For instance, Fiji has the 1973 Irrigation Act,1977 Marine Species Act, 1978 Preservation of Objectsof Archaeological and Paleontologist Interest Act, 1982River and Streams Act, and in 1991 Litter Decree.India has a Plant Varieties Act (Box 11.4) whilst Nepalhas 69 separate acts and regulations that have abearing on the environment and natural resources.It is important, however, that these sector-specific actsare rationalized in the context of framework lawsand the overall national policies for sustainabledevelopment.

C. Pollution Control LegislationPollution control legislation has been enacted

in almost all countries of the region. Whenenvironmental pollution became a public concern

during the 1970s, many countries responded byenacting legislation to curb potentially harmfulactivities, particularly those producing industrialeffluent. Pollution control legislation has setstandards for emission and effluents and relies onthe regulatory agencies for implementation andenforcement of standards.

Anti-pollution legislation covers a range ofactivities that have the potential to cause pollutionand health hazards. Under the EnvironmentalManagement Act of Indonesia, there are severalregulations to control pollution, including the WaterPollution Control Regulation, the Air PollutionControl Regulation and the Marine Pollution andDegradation Control Regulation. Similarly, under the1974 Environmental Quality Act (EQA), Malaysia hasenacted 22 subsidiary legislative instruments withregulations for inter alia: crude palm oil, clean air,raw natural rubber, sewage and industrial effluents,motor vehicle noise, waste treatment and disposalfacilities. The regulations set the specified standardfor emissions, prescribe penalties for exceeding thelimits and specify and empower an authority toenforce the regulations.

The implementing rules and regulations madeunder the Water Code of the Philippines imposepermits for surface and groundwater use, pollution

Box 11.3 Impact of International Events and Conventions on Institutional andLegislative Development: The Case of Fiji

The United Nations Conference on Environment and Development was a watershed event for environmental policy in manysmall developing countries, including Fiji. As part of the lead up to this conference, Fiji developed a National EnvironmentManagement Strategy that called for the establishment of a Department of Environment (DoE). The strategy also noted that theenvironmental laws in Fiji required a major overhaul. In 1992, the DoE was inaugurated and soon began to work on new legislationunder the Sustainable Development Bill (SDB).

The DoE also coordinates activities to satisfy the requirements of the Government of Fiji as a signatory of the two conventions –United Nations Framework Convention on Climate Change and the Convention on Biological Diversity. The Government of Fijisigned the Convention on Biological Diversity (CBD) in July 1993, and committed itself to developing a set of regulations to provideaccess for the study of its biodiversity. The process of development of such regulations into the SDB demanded continuous andsustained efforts. In order to initiate the process, an inter-ministry task force was set up in late 1993 to discuss the dimensions ofregulatory framework that would be needed for bioprospecting. From the very early stage, government saw its role as regulatoryonly. It would not be directly involved in bioprospecting ventures but would attempt to ensure that they were carried out under theguidelines of the CBD and other guidelines of best practice such as the Manila Declaration.

The legislation was completed in May 1995 and put out for review as part of the Sustainable Development Bill in 1996. In thelegislation, the Conservation and Natural Parks Authority with responsibility for biodiversity conservation, controls the process ofgranting access to persons wishing to conduct biodiversity research to ensure that: no ecological, social or economic harm is causedby the biological research or exploitation; taking a biological sample does not have an undesirable impact on Fiji’s biodiversity; a fairreturn is provided for commercial exploitation of Fiji’s biological resources; and prior informed consent from the resource owners isobtained before any collections can take place.

The proposed draft legislation has been praised for its vision in developing a sound basis for biodiversity research in Fiji incompliance with the Convention on Biological Diversity, and especially for placing this research in the overall framework ofconservation in the Sustainable Development Bill.

Source: William G. Aalbersberg, University of New Zealand

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Box 11.4 Plant Varieties Act of India

The aim of the Plant Varieties Act (PVA) of India is “to protect the rights of the developers of new varieties to stimulateinvestment in plant breeding and to generate competitiveness in the field of research and development both in the public andprivate sectors with the ultimate aim of facilitating access to newly developed varieties and maximizing agricultural production andproductivity in the country.” Further, the PVA states that “the protection of farmers and researchers rights will strive to balance theneed for stimulation and inventive R & D with welfare of the farmers.”

The proposed PVA reflects the conflicting pressures between the introduction of plant variety protection driven by developedcountries and the strong opposition by farmers against introduction of any form of intellectual property protection in the agriculturalsector.

The PVA includes features of the International Union for the 1991 Protection of New Varieties of Plants (UPOV), which sets theminimum standard for plant breeders right (PBR) protection for contracting states. Most contracting countries are implementing the1991 act into their national laws. The Indian PVA includes elements of both the revised act of 1991 and of the former act of 1978, andhas introduced some new features (see table below).

Comparison of India’s Plant Variety Act to the UPOV Acts of 1978 and 1991

Issue UPOV 1978 Act UPOV 1991 Act India’s Plant Variety Act

Scope of breeders’ rights Production and marketing Production, marketing, exporting, Production, marketing, exporting

of propagating material and stocking of propagating and importing of propagating of

material propagating material

Extent of coverage Min. 24 species 15 species All species

Term of protection Min. 15 years Min. 20 years 15 years

Exception to rights Farmers’ privilege in practice Farmers’ privilege optional and Farmers’ rights specifically

under conditions recognized

Compulsory licensing In case of public interest In case of public interest In case of public interest, defined

(not defined) (not defined) as reasonable availability of seeds,

and supply of export markets

A major test of the PVA is its consistency with the provisions of the agreement on Trade Related Aspects of Intellectual PropertyRights (TRIPs) which stipulates that “members shall provide for the protection of plant varieties either by patents or by an effectivesui generis system or by any combination thereof”. Whether the 1991 Act, will be considered “effective” is subject to interpretationwithin the World Trade Organization.

The PVA also covers protection of “essentially derived varieties” which means that when a new variety is genetically toosimilar to a protected source variety, the marketing of the new variety requires authorization of the breeder of its source, thusensuring the protection of protected varieties.

Other provisions of the PVA, such as those relating to Farmers and communities rights, and compulsory licensing depart fromUPOV. The inclusion of these rights in the PVA bill will help to balance the rights of farming communities with the need to protectintellectual property rights (IPR).

Source: Dhar B. et al 1995

control measures and restrictions on disposal ofwastewater. The Litter Decree in Fiji imposes stifffines for disposal of litter in public places. However,it has taken a number of years and considerablepublic pressure for strict enforcement of the decree.Other notable examples of pollution control lawsinclude China’s 1996 Environmental Noise PollutionPrevention and Control Law and Hong Kong, China’scomprehensive Noise Control Ordinance and AirPollution Control Ordinance. Control of illegaltransport of hazardous products and wastes has alsobeen receiving the attention of governments in recentyears. Thailand has enacted the 1992 Hazardous

Substances Act; Indonesia has prepared a completehazardous waste regulatory programme; Viet Namhas issued a decree on toxic chemicals and radioactivewastes (1995); the Philippines enacted the 1990 ToxicSubstances and Hazardous and Nuclear WastesControl Act; and Malaysia issued the 1994 Guidelinesfor the Export and Import of Scheduled Wastes.

To complement the traditional command andcontrol regulatory mechanisms for the enforcementof pollution control legislation, some countries haveprogressively introduced market based instrumentsto enhance compliance and to create incentives forthe agents to implement environmental control

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measures (see Chapter 12). Further measures forabatement rather than control, of pollution are alsoslowly being introduced.

D. Resource Conservation LegislationResource conservation legislation in the region

incorporates a wide range of environmentalmanagement concerns, including water resourcesprotection and conservation, forest laws, marineresources management, land use management,preservation of natural habitats and conservation ofheritage. Most countries in the region have enactedlaws specific to these issues and introducedinnovations to make the enforcement more effective.However, existing gaps in legislation make dealingwith conflicting demands on resources difficult tomanage.

In the countries of South Asia, the managementof forests and forest resources has been givenconsiderable priority. In India, under the provisionsof the 1980 Forest (Conservation) Act, priorpermission of the Central Government is essentialfor the diversion of forest land for non-forestpurposes. Linked to this are the provisions in the1986 Environment (Protection) Act, which restrict thesetting up of any new wood based unit, expansionand modernization of such units, renewal of licensesfor such units and construction of any infrastructurerelated to the setting up of new as well as existingwood based units. In Nepal, the government isencouraging user groups and village communities toparticipate in forest management and it has beenmade mandatory for industries setting up in forestareas or using forest products to have a detailedenvironmental impact assessment. Sri Lanka has setup national parks, nature reserves, and sanctuariesto prevent destruction of forest areas.

Viet Nam’s 1994 Law on EnvironmentalProtection, explicitly states that the exploitation ofagricultural land, forest land and land for aquaculturemust comply with land use plans, land improvementplans and ensure ecological balance. It also stipulatesrequirements governing the use of chemicals,fertilisers and pesticides.

Natural resource-related legislation in theislands of the South Pacific cover a large number ofsectors though in their implementation the narrowsectoral concerns still continue to prevail. In PapuaNew Guinea, for instance, the 1978 EnvironmentalPlanning Act is the principal legislation governingmining petroleum sectors, regulating the issue ofpermits and licenses and defining the total stock ofphysical, biological and social resources available.The 1978 Water Resources Act, determines the wateruse pattern in the mines; the 1978 EnvironmentalContaminants Act, and 1979 Dumping of Wastes at

Sea Act regulates environmental contamination anddumping; and the 1978 Conservation Areas Act,provides for safeguarding the natural environmentand natural cultural heritage. Natural resources inTonga, on the other hand, are largely marine or littoralbased and include mangrove forests, non-tidal saltmarshes, sea grass beds, sea turtle nesting areas, openlagoons and lagoon reef formations. The Water BoardAct serves as the main instrument to regulatemanagement and use of scarce fresh water. In Samoa,where fisheries has the greatest potential forproviding gainful employment and income, variousFisheries Acts have been introduced to managed thefish stock, control fishing practices and limitexploitation by foreign vessels.

E. Legislation on Environmental ImpactAssessmentEnvironmental impact assessment (EIA) has

become an important tool in guiding policy choicesby helping to create an awareness amongst projectimplementation agencies about environmental impactof their actions and the measures required to controlnegative externalities of the projects. For manycountries in the region, environmental assessmentmethodologies have been made a mandatory exercisethrough enactment of suitable legislation. Some EIAlaws and regulations of developing countries andcountries with economic transition are given inTable 11.3. By making EIA compulsory under law, itis envisaged that potential damages to theenvironment can be minimized or prevented fromthe project formulation stage itself. This is also seenas a crucial link in integrating environmental concernsinto economic decision making process.

Provision for EIA is either in the nationalframework legislation or in subsidiary legislation. InMalaysia, for example, a handbook of EIA guidelinesand 19 separate guidelines have been laid down forEIA in coastal areas, petrochemical projects, industrialestate development and golf course, land reclamation,forestry. In People’s Republic of China, under theEnvironmental Protection Law, the system has beenadopted to monitor environmental impact based ondesign, construction and operation of any particulardevelopment project. Nepal has attempted toharmonize sectoral legislation by formulating nationalEIA guidelines which identify the agenciesresponsible for reviewing the assessment report.Other countries in the region who have made EIAmandatory include: Thailand, India, Sri Lanka,Bhutan, Indonesia, Viet Nam, the Philippines andthe Republic of Korea.

Legislative sanction for EIA has the advantageof introducing greater objectivity in the decisionmaking process. In the context of sustainable

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development, mandatory EIA also ensures theparticipation of stakeholders and the public in theEIA process, which brings cross-sectoral ideas andviews into perspective and thereby enlightens thedecision making process (Chapter 12).

F. Enforcement of Environmental LegislationEffective enforcement of environmental

legislation is contingent upon the availability ofadequate staff and financial resources, theadministrative and political will of the enforcementagencies and the level of awareness of environmentallaws. It is common, however, to find situations whereresponsibility for enforcement of laws are dividedamongst a number of government agencies whichpursue conflicting interests, thereby delaying orforestalling their implementation. In response, forenforcement to be effective, developmental planningprocesses have to be closely coordinated, with powersideally vested in one apex agency.

Judicial activism and public participation have,in recent years, enhanced enforcement efforts ofgovernments in implementing environmental laws.The courts are not only allowing the public to filepublic interest litigation for violation ofenvironmental rights, but are also giving directivesto the government to take corrective steps forrectifying environmental damage. The imposition offines and penalties on defaulting industries andclosure of polluting units are examples of measuresthat have been frequently imposed by the courts.

The courts have further expounded on otherkey concepts of sustainable development. Thedoctrine of inter-generational equity received judicialsanction in the celebrated Oposa vs. Factoran case(Republic of Philippines, Supreme Court, G.R.no. 10183) whereby the Petitioners, which included anumber of minors suing through their respectiveparents, joined by a national NGO, claimed that thecontinued issue of permits for timber extraction poseda threat to the natural forests and threatened thesurvival of the present and future generations. TheCourt subsequently recognized the right of Filipinosto a balanced and healthful ecology as well asinter-generational responsibility and justice.

The courts have also stressed the “polluterpays” principle and the precautionary principle ascritical safeguards for sustainable utilization ofnatural resources and for environmental balance.Rulings in Sri Lanka, India, Bangladesh and Pakistanon environmental assessments for developmentprojects have provided much needed impetus to theEIA legislation. It is also significant that in mostcases the courts have accepted the principle of locusstandi as a requirement in the promotion of publicparticipation in the judicial process for environmentalissues. For instance, a case at the High Court inKuala Lumpur, held that the natives resident in anarea, even though very few in number, had a right toparticipate in the process of environmental impactassessment for the construction of a proposed damin their area.

Table 11.3 Some EIA Laws and Regulations forSelected Countries in Asia and thePacific

Sr.No.

Country Key Title of Separate Legislation

1 Bangladesh FW

2 Bhutan ** Environmental Assessment Actof the Kingdom of Bhutan 2000(not adopted)

3 PR China FW

4 India X Environmental ImpactAssessment Notification, 1994

5 Indonesia ** EIA Regulation, 1999

6 Kazakhstan X** Provisional Instructions onProcedure for the Conduct ofEnvironmental ImpactAssessment on DesignatedEconomic Activity, 1993

7 Kyrgyzstan FW

8 Malaysia X** Environmental ImpactAssessment Order, 1987

Environmental Quality(prescribed Activities)

9 Maldives FW

10 Mongolia X** Environmental ImpactAssessment Reg. 1994

11 Nepal X EIA Guidelines, 1993

12 Pakistan X Pakistan Environment Act 1997

13 Philippines X Pres. Decree, 1987;Rules and Regs. 1979;Proclamation 1989

14 Republic of X Act for Environmental, TrafficKorea and Disasters Impact

Assessments, 1999(Environmental ImpactAssessment Act, 1993)

15 Russian X Environmental ImpactFederation Assessment

16 Sri Lanka FW

17 Tajikistan FW

18 Thailand X** Environmental ImpactAssessment Notification, 1992

19 Turkey X** Environmental ImpactAssessment Reg. 1993

20 Uzbekistan FW

21 Viet Nam FW

Note: (FW) EIA legislation contained in Framework Laws; (X)Separate EIA Legislation; (**) Separate EIA Legislation withsome reference in Framework Laws.

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In the ultimate analysis, the success of theenforcement mechanisms depend on the overallinstitutional arrangements that have been put inplace. The holistic paradigm of sustainabledevelopment requires integration of complementaryand conflicting concerns that get resolved throughthe mediation of common goals and objectives. Theexperience of different countries in establishing aninstitutional framework for sustainable developmentdoes indicate that governments are attempting torectify the shortcomings of earlier regimes and, withadequate emphasis on developing human potentialand awareness the environmental transformationmade possible through legislation, countries shouldbe able to advance towards sustainable development.

CONCLUSION

Sustainable development entails the integrationand inter-dependence of economic objectives with theprotection and conservation of the environment.Institutional mechanisms for achieving thisintegration are, therefore, of paramount importance.Formulation and implementation of appropriatepolicies and programmes, enactment of laws, rulesand standards for enforcement of policies and creationof delivery mechanisms for implementation of plansand enforcement by institutions provide credibilityand stability to the environmental regime. Anyinstitutional framework must be able to provide clear,unambiguous and unidirectional signals andincentives to the agents who must be able to carryout the underlying goals and objectives. Theimprovements that have emerged in the institutionalframework of the region can be summarized asfollows.

� Creation of multi-stakeholder agencies at theapex level with the objective of formulatinggoals, rules and regulations; providing

guidance to the executive branches ofgovernment; monitoring performance; and,providing policy inputs. These arecomplemented by the creation of ministriesresponsible for environment, and empoweringthem with necessary executive andconstitutional authority to undertakeenvironmental protection measures.

� Designing formal and informal coordinationmechanisms for integrating cross-sectoralconcerns. Though the mode of coordinationdiffers among countries, there is a recognitionof the inter-dependence and inter-relationshipsbetween various sectors of the government andthe economy.

� Recognition that devolution of certainresponsibilities and functions to localauthorities creates potential for the improvedmonitoring and management of resources.

� Judicial activism and interventions haveincreased and made the executive moreresponsive in meeting environmental standardsand safeguards. These have also strengthenedpublic interventions and support for eco-friendly measures.

There is now unanimous acceptance of the needfor human action to control environmentaldegradation, curtail the depletion of natural resourcesand simultaneously achieve economic objectiveswhich ensure human welfare. These issues need tobe resolved through appropriate legislative measuresand effective environmental legislation. Governmentsneed to continue to bridge the gap between intentand action, and between policy formulation andimplementation. Although appropriate legal andinstitutional frameworks have been established inmost countries of the region, the effectiveimplementation of environmental legislation remainsone of the foremost challenges for the achievementof environmentally sustainable governance.

CHAPTER ELEVEN - ESCAP

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