EVOLUTION OF BOLIVIAN ENVIRONMENTAL LAW (ENGLISH VERSION)
| Jurisdiction | Derecho Internacional |
(2001)
EVOLUTION OF BOLIVIAN ENVIRONMENTAL LAW (ENGLISH VERSION)
Bufete Aguirre Soc. Civ.
La Paz, Bolivia
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FOREWORD
Conservation and development topics have led to a debate that has been going on since the sixties and above all throughout the seventies, a decade that became the starting point of a change process that guided the industrialized world's economic development.
The Conference on the Human Environment held in Stockholm, Sweden in 1972, launched new principles and concepts in relation to these matters, which would later have an influence on the exploitation of natural resources and would set the guidelines for the drafting of environment-oriented economic policies, including proposals such as "Ecodevelopment." The formulation of this concept is a consequence of the awareness that industrialization in the developed countries did not always have positive effects. It evidenced the importance of taking into account quality environmental management to plan development, setting forth a judicious and limited resource development strategy, above all in Third World countries.1
The formulation of this proposal, which would have an influence on the determination of development strategies, met with a series of obstacles. However, it laid the foundations for the formulation of the "Sustainable development" concept proposed at a later date by the Brundtland Commission and fruit of the report entitled Nuestro Futuro Común, published in 1987 under the heading Our Common Future,2 which in turn served as the basis for the development of a series of documents published by the United Nations Conference on Environment and Development3 held between June 3 and 14, 1992 in Rio de Janeiro, Brazil. The Brundtland report defines Sustainable Development as "a process of social change by virtue of which the exploitation of natural resources, the sense of investments, the orientation of technological development and institutional reforms are implemented harmoniously, expanding the current and future potential to meet human needs and aspirations,"4 "....that in Latin America's case the main objective of this strategy could not be other that the improvement of the population's quality of life, given that one cannot speak about improving environmental quality while a high percentage of the Latin American population lives under extreme poverty conditions."5
A New Environmental Law emerges from this process, which is expressed in several recent international norms, agreements and treaties, which has evolved mainly in developed
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countries (North). It currently constitutes a determining factor for the development of support policies in developing countries (South). The Southern countries, in turn, need to formulate norms and regulations to apply this new manner of conceiving Environmental Law.
Within this context it is important to take into account that a sovereign principle was upheld in keeping with the rules of International Law and the United Nations Charter consecrating "....the sovereign right of the States to exploit their own resources in adherence to their own environmental policies, and the responsibility to ensure that the activities implemented within their jurisdiction or which are under their control do not cause any environmental damages to other States or areas beyond the limits of their national jurisdiction."6 Thus the principle, based on which States must formulate their norms and laws according to their own reality, is established, within the framework of international treaties and agreements.
Bolivia is no exception within this process that introduces ecological concerns to the juridical system, mainly as of the promulgation of the Environmental Act No. 1333 dated April 27, 1992, and its Regulations through Supreme Decree 24176 dated December 8, 1995.
It must be taken into account that environmental problems have various nuances, which differ from those found in other countries, above all in more developed countries, because in Bolivia most of them are the result of underdevelopment — known as poverty-related contamination — therefore they deserve a different legislative treatment than that granted in developed nations. They must be part of an integral solution proposed by a global environmental development and conservation policy.
Sustainable development, from Bolivia's standpoint, "...seeks to improve the living conditions of the Bolivian population through a productive transformation that rationally uses human, natural, physical and financial resources as well as the institutional and cultural heritage without risking the coverage of future generations' needs and the capacity to assimilate nature, within a framework of equity and governability."7 It is supported by four pillars:
1. Economic growth: productive transformation (technological change).
2. Social equity=reduction of inequalities, acknowledgment of cultural diversity and overcoming discrimination.
3. Rational use of natural resources=conservation of renewable resources and use of non-renewable resources, and environmental preservation.
4. Governability=improved decision-making effectiveness, legitimization of the State and the political system within society.
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In this paper we intend to cover the overall situation of Bolivian Environmental Law putting special emphasis on the hydrocarbons and mining sectors. To do this we shall first look at the evolution of Bolivian environmental law in general, and then we shall make reference to some specific norms.
1. EVOLUTION OF BOLIVIAN ENVIRONMENTAL LAW
A criticism that is frequently made in Bolivia is that Natural Resources are inadequately managed given that "natural resources were always viewed from an extraction-oriented standpoint that has very seldom taken into account the vocation of said resources. The "exploitation" concept has prevailed, which maximizes the present economic value and fails to take into account future possibilities or replacement costs."8
Among the factors included within the General Economic and Social Development Plan we have the following:
1. virtual absence of norms,
2. effects of negative external factors on the use of non-renewable resources,
3. absence of pre-feasibility studies that consider different factors (biological aspects, resource's vocation, environmental impacts),
4. socioeconomic factors.9
The traditional absence of adequate norms is due to the fact that Bolivian Environmental Law has traditionally evolved in an isolated and independent way in different areas, producing a number of sectoral laws that contain juxtaposed or even contradictory norms. To some extent this aspect is currently changing.
1.1 Casual Environmental Law
Bolivian Environmental Law in the nineteenth century was characterized by the existence of norms aimed at protecting the native fauna and regulations that governed the exploitation of lands, waters and forests.
During colonial times, between 1563 and 1681 the Viceroy Francisco de Toledo enacted a number of ordinances to defend the "environment": "On Cattle," "On Woodlands and Roads," "Prohibition to Cut Firewood to be Used as Coal Within a Three-League Radius of This City," among others. The object of the most important of said ordinances dated May 5, 1574 entitled "On Woodlands and Roads" was to establish a certain order in woodlands and roads, prohibiting the cutting of firewood and establishing a 50 peso fine for Spaniards and 100 whipping strokes if the offender was a native, as well as the need to obtain a license to cut cedar trees.
During the Republican era, the Libertador Simón Bolívar promulgated eleven decrees between 1825 and 1829 (as president of Bolivia and other countries) prohibiting the hunting of vicunas, dividing forest ownership into public and private, regulating ownership
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rights over lands in the city of Santa Cruz and through a Decree dated December 14, 1825 it was established that the land belonged to those who worked it.
Different norms were issued to protect the chinchilla (Decree issued by Andrés de Santa Cruz on 12/31/1832; by Manuel Isidoro Belzu in 1850; by José María Achá in 1863; by Hernando Siles in 1928).
It is important to underscore that the Supreme Decree dated September 8, 1879, issued by Hilarión Daza, on the domain and exploitation of waters, would later become a Law on November 28, 1906 during Ismael Montes' regime. This norm regulates water use and exploitation, classifying waters and the establishment of easements. Said law is no longer in effect.
1.2 Sectoral Environmental Law
Later on, Bolivian legislation enters a stage where sectoral norms are formulated that are relevant from an environmental standpoint. They include the following:
1. 1973 General Forestry Act
2. 1975 Wildlife, National Parks, Fishing and Hunting Act
3. 1990, Supreme Decree 22407, Historic Ecological Pause
4. 1991, Supreme Decree 22710 creates the General Environmental Secretariat that depends from the Republic's Presidency, and has the same rank as a Ministry.
Although these norms already contain certain principles based on conservation-oriented policies, they do so with a sectoral orientation that differs from the modern holistic vision of environmental law.
1.3 Modern Environmental Law
In 1992, prior to the Rio Summit the Environmental Act is promulgated (Law No. 1333 dated April 27, 1992), thus beginning a new stage in Bolivian Law, which truly incorporates environmental concerns as well as the concept of sustainable development.10
In 1995, through Supreme Decree 24176 dated December 8, the Regulations to the Environmental Act are approved.11 There are also a number of sectoral environmental norms, some of which will be analyzed below.
Environmental Law in Bolivia is caught in the traditional discussion between conservation and...
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