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Wibisana, Andri G. --- "Three principles of environmental law: the polluter-pays principle, the principle of prevention, and the precautionary principle" [2006] ELECD 502; in Faure, Michael; Niessen, Nicole (eds), "Environmental Law in Development" (Edward Elgar Publishing, 2006)

Book Title: Environmental Law in Development

Editor(s): Faure, Michael; Niessen, Nicole

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845425197

Section: Chapter 3

Section Title: Three principles of environmental law: the polluter-pays principle, the principle of prevention, and the precautionary principle

Author(s): Wibisana, Andri G.

Extract:

2. Human rights and general principles
and their importance as a legislative
technique. Do they matter in
legislation? An analysis with specific
reference to environmental protection
Aalt Willem Heringa

1. INTRODUCTION
The purpose of this chapter is to show the usefulness of inserting general prin-
ciples or even fundamental rights in legislation in a variety of areas. The
assumption is that it can be considered appropriate in legislation to follow a
pattern of general clauses, more specific clauses and subsequently more
detailed clauses which need to be capable of regular amendment and adapta-
tion to new circumstances.
The general idea I will put forward is that a general clause (or general
clauses) can be helpful in various ways. Such an approach indicates to the
courts and the executive how, and in what vein, the detailed provisions in the
primary and subordinate legislation must be applied and interpreted.
Executors and courts always meet unforeseen circumstances and possible
lacunae in legislation; it seems therefore wise to give them guidance in how to
resolve these when they occur.
My proposals therefore do not simply or only reflect the idea that legisla-
tion set up in this manner, descending from a level of generality to very
specific and detailed clauses, is the best way of making legislation, but I start
primarily from the assumption that general clauses allow the legislature better
to steer and control action by the executive and application and interpretation
by the courts.
Added to this argument, and derived from the ...