By Samuel ALESU-DORDZI
Ghana is a state party to a number of international environmental agreements and arrangements.
These international instruments are governed by a host of principles generally recognized under international environmental law.
While the provisions of Ghana’s environmental laws have often reflected international agreements, such as the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal as well as the Vienna Convention and the Montreal Protocol on the Protection of the Ozone Layer, the principles underpinning these instruments have never been explicitly stated in a domestic statute.
However, in a marked departure from the Environmental Protection Agency Act, 1994 (Act 490), the present legislation, Act 1124, incorporates several international environmental law principles within its provisions under the banner “guiding principles for enforcement of the Act.”
These guiding principles – as stated under Section 161 – include:
(a) Common but differentiated responsibility
(b) Intergenerational equity
(c) The precautionary principle
(d) The polluter pays principle
(e) Sustainable development
This note briefly examines how these guiding principles, known and recognized under international law, apply within the framework of domestic legislation.
Common but Differentiated Responsibility
According to Section 170 of the Act, the “common but differentiated responsibility” principles means that: “All states are responsible for addressing global environmental destruction, but not all states are equally responsible for environmental destruction.”
From this definition, it is clear that this principle is addressed to “states” and not persons within the state. In other words, it applies to Ghana’s obligations at the international level rather than in its relationship with individual citizens.
Essentially, under the “common but differentiated responsibility”, Ghana commits to fulfilling its international environmental obligations within the limits of its resources and capacity.
The principle distinguishes between the obligations of developed and developing countries in terms of their responsibility for environmental protection.
Whiles it is not exactly clear why the principle has been incorporated into the Act, it may come down to the heavy influence of international treaties and conventions in the drafting of the statute.
For instance, the United Nations Framework Convention on Climate Change (UNFCC) provides for the “Common but Differentiated Responsibility” principle by requiring that “developed country parties should take the lead in combating climate change and the adverse effects thereof”.
Similar “Common but Differentiated Responsibility” requirements are present in the 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 Act defines intergenerational equity as: “Meeting the needs of the present generation without compromising the ability of future generations to meet their needs.”
Professor Edith Brown Weiss has identfied three key elements of intergenerational equity to be: (a) Conservation of natural and cultural resources so that future generations are not unduly restricted; (b) Maintaining environmental quality, ensuring the planet is passed on in no worse condition than it was received; and (c) Ensuring equitable access to the environmental legacy of past generations.
A core rationale for enacting the Environmental Protection Act, 2025 is to ensure that present actions do not jeopardize future generations. For example:
- The Environmental Protection Authority’s power to impose restrictions on the release of harmful substances aligns with this principle.
- Licensing provisions, as well as the authority to withdraw or cancel licenses for non-compliance, reflect this principle.
- The prescription of environmental quality standards for air, water, and land pollution also supports intergenerational equity.
Precautionary Principle
The precautionary principle is identified as a key enforcement principle under the Act. It essentially advocates for preventive action in cases where scientific certainty is lacking. Section 170 of the Act defines the precautionary principle as follows:
“Where there are threats of damage to the environment, whether serious or irreversible, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”
In simple terms: “When in doubt, act with precaution in favor of environmental protection.” A key aspect of the precautionary principle is shifting the burden of proof. A person seeking to undertake an activity must demonstrate that it will not cause environmental harm.
Legal scholars Birnie and Boyle note that:
“A stronger version of the precautionary principle reverses the burden of proof altogether, making it impermissible to carry out an activity unless it can be shown that it will not cause unacceptable harm to the environment.”
The precautionary principle is evident in several provisions of the Act, including:
- Environmental assessments (Section 29), which require prior evaluation of potential environmental harm before an environmental permit is granted.
- Environmental monitoring, inspection, and auditing, all of which ensure compliance with preventive measures.
The underlying goal of the precautionary principle is to prevent harm before it occurs rather than attempting to fix the damage afterward.
Polluter Pays Principle
The polluter pays principle is self-explanatory: polluters must bear the full cost of their pollution. The Act defines the polluter pays principle as:
“A polluter bears all the costs incurred in the prevention or control of damage caused by any pollution originated by the polluter.”
This principle was first introduced in 1972 in an OECD Council Recommendation and has since become a widely accepted principle of international environmental law.
This principle is applied in the Act is through the concept of “extended producer responsibility”. The Act defines “extended producer responsibility” to mean that: “The producer is liable for the entire life cycle of the products introduced on the market, from the design of the product to the end of its life cycle, including waste collection and recycling.”
Sustainable Development
The final principle embedded in the enforcement framework of the Environmental Protection Act, 2025 is sustainable development. The Act defines sustainable development as:
“Meeting human development goals while sustaining the ability of natural systems to provide the natural resources and ecosystem services on which the economy and society depend.” At its core, sustainable development balances economic growth with environmental protection. However, it overlaps with intergenerational equity, leading to some conceptual ambiguity.
The writer is a Partner at AudreyGrey. It is a Ghana-based legal, tax, and professional services firm offering corporate law, tax advisory, compliance, company secretarial, regulatory compliance, and strategic advisory services to local and international corporations entering Ghana. The firm comprises chartered accountants and lawyers dedicated to providing specialist services, enabling clients to focus on their core business. Its expertise spans corporate and commercial law, taxation, labour, maritime and environmental law, immigration, compliance, and insolvency law, as well as related accounting and finance functions.
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