Guiding Principles for Enforcing the Act: International Insights

By Samuel ALESU-DORDZI\xa0\xa0\xa0\xa0\xa0

Ghana is a signatory to several global environmental pacts and agreements.

These global tools are guided by numerous principles widely acknowledged within the realm of international environmental law.

Although the regulations outlined in Ghana’s environmental laws frequently mirror international accords, like the
The Basel Convention Regarding the Management of Transboundary Movements of Hazardous Wastes and Their 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 outlined 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 tenets of international environmental law into its clauses under the heading ” guiding principles for enforcing the Act.”

These guiding principles—as mentioned below—
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 established principles, which are acknowledged internationally, within the scope of national laws.

Common but Differentiated Responsibility

According to
Clause 170 of the Act,
The “common but differentiated responsibilities” principle implies that: “Every state has an obligation to tackle global environmental degradation; however, not all states share equal blame for causing this damage.”

It is evident from this definition that the principle pertains specifically to “states” rather than individuals residing within those states. Put differently, it concerns Ghana’s duties on an international scale as opposed to its interactions with individual citizens domestically.

Fundamentally, adhering to the principle of “common but differentiated responsibilities,” Ghana pledges to meet its international environmental commitments while operating within the bounds of its available resources and capabilities.

This principle differentiates the responsibilities of developed and developing nations when it comes to their duty in 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 drafting process.

For instance, the
United Nations Framework Convention on Climate Change (UNFCCC)
incorporates the “Common but Differentiated Responsibility” principle by mandating that “the developed country parties should assume leadership in addressing climate change and its detrimental impacts.”

Similarly, “Common but Differentiated Responsibilities” provisions can be found throughout the document.
The Montreal Protocol on Substances That Deplete the Ozone Layer
(which is cited in the Act as well).

Similarly, developed nations must act promptly, whereas developing countries are afforded extended deadlines for implementing specific measures. Additionally, they receive financial and technological support.

Intergenerational Equity

This is another (flexible) concept slowly emerging within international law but not yet completely solidified. The core idea behind intergenerational equity is that current development should not jeopardize the capacity of future generations to fulfill their own requirements.

The legislation outlines intergenerational equity as: “Satisfying the requirements of the current population without jeopardizing the capacity of subsequent generations to fulfill theirs.”

Professor Edith Brown Weiss has outlined three main principles of intergenerational fairness as follows: (a) Preservation of both natural and cultural assets to prevent undue limitations for coming generations; (b) Sustaining environmental standards, guaranteeing that Earth is handed over in at least as good a state as we inherited it; and (c) Guaranteeing fair usage rights to the ecological heritage left behind by previous generations.

The main reason for implementing this is to
Environmental Protection Act, 2025
aimed at ensuring current activities do not compromise the well-being of later generations. For instance:

• The authority granted to 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 permits due to non-adherence, embody this concept.
• Setting environmental quality standards for air, water, and soil contamination aids in ensuring fairness across different generations.

Precautionary Principle

The precautionary principle is recognized as a crucial enforcement guideline within the legislation. This principle basically supports taking preemptive measures when scientific consensus is not established.
Section 170
The legislation outlines the precautionary principle in this manner:

When potential harm to the environment exists—whether significant or irreparable—one should not delay implementing cost-efficient actions to stop ecological deterioration due to insufficient complete scientific evidence.

To put it simply: “When unsure, take precautions to protect the environment.” An essential part of this approach involves reversing the burden of evidence. The individual wanting to carry out an action must prove that it won’t lead to environmental damage.

As legal experts Birnie and Boyle point out,

A more robust version of the precautionary principle completely flips the burden of proof, rendering it impossible to conduct an activity until evidence demonstrates that it won’t lead to significant environmental damage.

The precautionary principle can be seen in various sections of the Act, such as:

• Environmental evaluations (as stated in Section 29) necessitate a preliminary assessment of possible environmental damage before granting an environmental license.
• Environmental surveillance, examination, and evaluation, all aimed at ensuring adherence to precautionary protocols.

The fundamental 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 producer bears accountability for every stage of their products’ lifecycle once they enter the market—from initial design all the way until the final disposal phase, encompassing responsibilities such as waste management and recycling efforts.”

Sustainable Development

The last principle integrated into the enforcement structure of the Environmental Protection Act from 2025 revolves around sustainable development. This legislation characterizes sustainable development as follows:

“Attaining human developmental objectives while maintaining the capacity of natural ecosystems to supply essential resources and ecological services upon which economies and societies rely.” Fundamentally, sustainable development aims to reconcile economic progress with environmental conservation. Nonetheless, this concept also intertwines with generational fairness, resulting in certain theoretical uncertainties.

The individual serves as a Partner at AudreyGrey, a Ghana-based provider of legal, tax, and professional services. This organization delivers corporate law, tax consulting, compliance support, company secretary duties, regulatory adherence guidance, and strategic advice to both domestic and multinational enterprises venturing into Ghana. Comprised of certified accountants and attorneys, the firm specializes in delivering targeted solutions aimed at helping clients concentrate on their primary operations. Their proficiency encompasses areas such as corporate and commercial legislation, fiscal matters, labor laws, maritime and environmental regulations, migration policies, adherence requirements, bankruptcy proceedings, alongside connected financial and accounting tasks.
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