Environmental Law

Recommended readings
• Philippe Sands, Principles of International Environmental Law, 2nd
Edition, Cambridge University Press, New York, 2003.
• Mwalyosi, R., Hughes, R. and Howlett, D.J.B. 1999. Introduction
Course on Environmental Impact Assessment in Tanzania: Resource
Handbook. International Institute for Environment and Development
and Institute for Resource Assessment.
• Tafsir Malick Ndiaye & Rüdiger Wolfrum (eds) and Chie Kojima
(Assistant Editor), Law of the Sea, Environmental Law and
Settlement of Disputes:Liber Amicorum Judge Thomas A. Mensah,
Martinus Nijhoff Publishers, LEIDEN/BOSTON, 2007
• The United Republic of Tanzania, National Environmental Policy, Vice
President’s Office, December 1997.
• The Environmental Management Act, 2004
Introduction
• ‘Environment’ can be defines as ‘the objects or
the region surrounding anything’.
• Accordingly, the term encompasses both the
features and the products of the natural world
and those of human civilisation.
• the environment is broader than, but includes,
‘nature’, which is concerned only with features
of the world itself.
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• ‘Ecology’, on the other hand, is a science related
to the environment and to nature which is
concerned with animals and plants, and
• Is ‘that branch of biology which deals with the
relations of living organisms to their
surroundings, their habits and modes of life’.
• The ‘ecosystem’ is ‘a unit of ecology . . . which
includes the plants and animals occurring
together plus that part of their environment over
which they have an influence’.
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• Environmental law is an area where there is a
"system" of statutes, regulations, guidelines,
factual conclusions, and case specific
interpretations which relate to each other in the
context of generally accepted principles
established during the short history of
environmental law.
• It involves the study of treaties, customs, other
sources of international and domestic laws on the
subject; cases, case studies, judicial decisions and
the ratio decidendi or the principles enunciated in
these cases
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• Law relating to use, protection and conservation
of the three environmental media i.e. earth,
water and air.
• Environmental law expresses itself in rules of
environmental regulation, made and enforced by
public authorities.
• Environmental liability is concerned with
attributed responsibilities to meet the cost and
consequences of environmental acts/harms
Background
• Prior to the existence of environmental laws, the
environment was severely degraded.
• The need for regulation was seen necessary after
the tort law failed to protect the environment.
Environmental Challenges
• It is now widely recognised that the planet faces
a diverse and growing range of environmental
challenges which can only be addressed through
international co-operation.
• Acid rain,
• ozone depletion,
• climate change,
• loss of biodiversity,
• toxic and hazardous products and wastes,
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• pollution of rivers and
• depletion of freshwater resources
• are some of the issues which international law is
being called upon to address.
• Since the mid-1980s, the early international legal
developments which addressed aspects of the
conservation of natural resources have
crystallised into an important and growing part
of public international law.
Why International Environmental
law
• The conditions which have contributed to the
emergence of international environmental law are
easily identified:
• environmental issues are accompanied by a
recognition that ecological interdependence
does not respect national boundaries and that
issues previously considered to be matters of
domestic concern have international
implications.
• The implications, which may be bilateral, sub-
regional, regional or global, can frequently only
be addressed by international law and
regulation.
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• The growth of international environmental
issues is reflected in the large body of
principles and rules of international
environmental law which apply bilaterally,
regionally and globally, and reflects
international interdependence in a
‘globalising’ world.
• Hence international environmental law is the
result of globalisation.
International concerns on
environmental issues
• Progress in developing international legal control of
activities has been gradual, piecemeal and often
reactive to particular incidents or the availability of
new scientific evidence.
• It was not until the late nineteenth century that communities
and states began to recognise the transboundary
consequences of activities which affected shared rivers or
which led to the destruction of wildlife, such as fur seals, in
areas beyond national jurisdiction.
• In the 1930s, the transboundary consequences of air
pollution were acknowledged in the litigation leading to the
award of the arbitral tribunal in the Trail Smelter case.
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• In the 1950s, the international community legislated on
international oil pollution in the oceans.
• By the 1970s, the regional consequences of pollution
and the destruction of flora and fauna were obvious,
and
• by the late 1980s global environmental threats were
part of the international community’s agenda as
scientific evidence identified the potential
consequences of ozone depletion, climate change and
loss of biodiversity.
• Local issues were recognised to have transboundary,
then regional, and ultimately global consequences.
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• In 1996, the International Court of Justice
recognised, for the first time, that
• there existed rules of general international
environmental law, and that a ‘general
obligation of States to ensure that activities
within their jurisdiction and control respect the
environment of other States or of areas beyond
national control is now part of the corpus of
international law relating to the environment’.
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• The 1992 UN Conference on Environment and
Development (UNCED) provided an opportunity for
the international community to prioritise
environmental issues and consolidate a vast and
unwieldy patchwork of international legal
commitments.
• UNCED agreed environmental priorities which
were essentially divided into two categories:
• a) those relating to the protection of various
environmental media, and
• b) those relating to the regulation of particular
activities or products.
Those Relating to the Protection Of
various Environmental Media
• The first category identified the following priorities
for the protection and conservation of particular
environmental media:
• protection of the atmosphere, in particular by combating
climate change, ozone depletion and ground-level as well as
transboundary air pollution;
• protection of land resources;
• halting deforestation;
• conservation of biological diversity;
• protection of freshwater resources; and
• protection of oceans and seas (including coastal areas) and
marine living resources
Those Relating to the Regulation Of
Particular Activities or Products
• The second category of major issues identified the
products and by-products of human technological
and industrial innovation which are considered to
be particularly harmful to the environment, and
which therefore require international regulation.
• These include:
• biotechnology;
• toxic chemicals, including their international
trade;
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• agricultural practices;
• hazardous wastes, including their international
trade;
• solid wastes and sewage-related issues; and
• radioactive wastes.
Sources of International
Environmental Law
• Statute of the International Court of Justice
(Article 38)“[Link] Court, whose function is to
decide inaccordance with international law such
disputes as are submitted to it, shall apply:
• a. international conventions, whether general
or particular, establishing rules expressly
recognised by the contesting states;
• b. international custom, as evidence of a
general practice accepted as law;
• c. the general principles of law recognized by
civilized nations;
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• d. subject to the provisions of Article 59, judicial
decisions and the teachings of the most highly
qualified publicists of the various nations, as
subsidiary means for the determination of rules
of law.”
Treaties
• Treaties are as the name suggests “formal
sources of international law”.
• They are generally negotiated texts in which
States have participated, are in written form and
governed by international law.
• Treaties are also called conventions, agreements
or memorandum of understanding (MoU), but
the legal effect of all the three remains the same
• Types of treaties include-lawmaking treaties and
general treaties.
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• The former create international law because of the
large participation of States in their adoption and
adherence and their importance in international
society.
• Convention on the Law of Treaties, Art 2(1)(a), defines
a " treaty" as:
• "an international agreement concluded between
States in written form and governed by
international law, whether embodied in a single
instrument or in two or more related instruments
and whatever its particular designation"
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• An example of these could be the UN Convention on the
Law of the Sea 1982.
• This Convention is said to have progressively codified the
customary law of the subject.
• It provides for a legal order governing nearly all activities of
waters beyond national boundaries i.e. seas and oceans
such as;
• maritime zones,
• uses and delimitation,
• deep seabed mining,
• dispute settlement,
• protection of the marine environment,
• navigation, passage etc.
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• As opposed to such treaties, you also have
‘treaty contracts’ i.e. contracts/agreements
creating obligation either bilaterally or for a
particular purpose.
• Bilateral contracts are agreed upon between two
States.
• There are also regional agreements, which bind
States from a region; examples being the
European Community laws on environment
protection.
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• The advantage with regional conventions is that
they are flexible and suit the common
requirement of a region.
• Treaties are supposed to be adhered in ‘good faith’
as enunciated by pacta sunt servanda, which is a
fundamental principle of international law.
• The starting point for determining what
constitutes a treaty is to be found in a treaty itself,
the Vienna Convention on the Law of Treaties, a
treaty on treaty law.
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• It was concluded in 1969 and entered into force
in 1980 (“1969 Vienna Convention”).
• Whilst the United Nations has 191+ Member
States, the 1969 Vienna Convention has only 105
parties (as of September 2005).
• A treaty is binding only among its parties.
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• Although the 1969 Vienna Convention is not a
treaty with global participation, it is widely
acknowledged that many of its provisions have
codified existing customary international law.
• Other provisions may have acquired customary
international law status.
• Since customary international law and treaty law
have the same status at international law, many
provisions of the 1969 Vienna Convention are
considered to be binding on all states.
Customs

• The second most important source of

international law, and thus of international
environmental law, is customary international
law.
• Before treaties became as important as they are
today, customary international law was the
leading source of international law: the way
things have always been done becomes the way
things must be done.
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• Once a rule of customary law is recognized, it is
binding on all states, because it is then assumed
to be a binding rule of conduct.
• Initially, customary international law as we know
it today developed in the context of the evolving
interaction among European states.
• However, there is an increasingly prominent
group of writers who suggest that other regions
of the world also contributed to the evolution of
customary international law.
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• There are two criteria for determining if a rule of
international customary law exists:
• (1) the state practice should be consistent with
the “rule of constant and uniform usage”
(inveterata consuetudo) and
• (2) the state practice exists because of the
belief that such practice is required by law
(opinio juris).
• Both elements are complementary and
compulsory for the creation of customary
international law.
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• Since customary law requires this rather heavy
burden of proof and its existence is often
surrounded by uncertainties, treaties have
become increasingly important to regulate
international relations among states.
• Customs are actions of States, which over a
period come to be accepted as creating binding
legal obligations.
• Example of customs can be prohibition of the use
of force in international relations as provided in
Article 2 paragraph 4 of the UN Charter.
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• However, to constitute a custom or a customary
obligation two elements must be fulfilled.
• One, there must be a general consistent state
practice; and
• two; there must be opinion juris or an animus
or ‘mental element’ wherein States undertake
obligation not because of a usage but because
of a legal obligation.
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• Not only must the acts concerned amount to a
certain practice, but they must also be such or be
carried out in such a way as to be evidence of a
belief that this practice is rendered obligatory by the
existence of a rule of law requiring it.
• The need for such a belief, i.e. the existence of a
subjective element, is implicit in the very notion of
the opinio juris (North Sea Continental Shelf Cases
ICJ Reports 1969, at p. 73).
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• It is also seen that customary rules often create
obligations binding upon all States, except those
States who have persistently objected. This is
often called the persistent objector principle.
• As opposed to this need of consistent State
practice and opinio juris there can also occur an
emergence of instant international customary
law though the adoption of United National
General Assembly resolution.
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• Instances of such instant customary law are said
to have evolved with respect to the adoption of:
• the Declaration on the Peaceful Use of Outer
Space and Other Celestial Bodies by the
General Assembly in 1963 and
• the UN Declaration Concerning Cooperation
and Friendly Relations among States adopted
by the General Assembly in 1970.
General Principles of International law
• Besides treaties and international customs,
Article 38 of the Statute of the ICJ, provides for
“general principles of law recognized by civilized
nations” as a source of international law.
• The phrase “civilized nations” denotes those
States that have a developed legal system.
• General principles do not need to show evidence
as a proof of binding legal obligation, as is the
case of treaties and international customs.
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• There is no universally agreed upon set of
general principles and concepts.
• They usually include both principles of the
international legal system as well as those
common to the major national legal systems of
the world.
• The ICJ will sometimes analyse principles of
domestic law in order to develop an appropriate
rule of international law.
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• General principles of international law play a
facilitative role in strengthening relations among
States.
• Some of the recognized general principles in the field
of international are: good faith, the maxim sic utere
• The principle of sic utere jure tuo ut alienam non
laedas (hereinafter sic utere tuo) is a recognized as a
fundamental principle of international law governing
transboundary harm.
• In Latin the maxim means, "Use your own property in
such a way as not to injure that of other".
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• The maxim has special relevance in IEL because of
regulatory control it has imposed on States to desist from
establishing hazardous or polluting factories/units on the
border.
• In the case of the Trail Smelter Arbitration (United States
and Canada 3 UNRIAA (1938/1941), p.1907, at p. 1965)
where USA complained of escape of noxious sulphur gases
into its territory, from the Canada.
• The Arbitral Tribunal stated that:
• “No State has a right to use or permit the use of its
territory in such a manner as to cause injury by fumes or
to the territory of another or the properties or persons
therein, when the case is of serious consequence and
the injury is established by clear and convincing
evidence.”
Soft Law
• Particular non binding instruments or documents or
non binding provisions in treaties form a special
category termed as a soft law.
• The instrument of documents is not in itself law but
its important within the general framework of inter
legal development is such that particular attention
requires to be paid to it.
• Example Helsinki Accord 1970 wasn’t a binding
agreement, but its influence in Central and Eastern
Europe in emphasizing the role and important of
inter human rights proved incalculable.
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• Soft law does not have a fixed legal meaning.
• It usually refers to any international instrument,
other than a treaty, containing principles, norms,
standards or other statements of expected
behaviour.
• Often, the term soft law is used as synonymous with
non-legally binding instrument, but this is not
correct.
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• A treaty that is legally binding can be considered
to represent hard law; however, a non legally
binding instrument does not necessarily
constitute soft law.
• The consequences of a non legally binding
instrument are not clear.
• Sometimes it is said that they contain political or
moral obligations, but this is not the same as soft
law.
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• Non-legally binding agreements emerge when
states agree on a specific issue, but they do not,
or do not yet, wish to bind themselves legally;
nevertheless they wish to adopt certain
nonbinding rules and principles before they
become law.
• This approach often facilitates consensus, which
is more difficult to achieve on binding
instruments.
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• There could also be an expectation that a rule or
principle adopted by consensus, although not
legally binding, will nevertheless be complied
with.
• Often the existence of non-legally binding norms
will fuel civil society activism to compel
compliance.
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• The Non-Legally Binding Authorative Statement of
Principles for a Global Consensus on the Management,
Conservation and Sustainable Development of all Type
of Forests (“Forest Principles”), for example, are an
illustration of this phenomenon.
• The relationship between the Forest Principles and a
binding forest regime is that they are shaping or will
shape consensus for a future multilateral convention,
or are building upon a common legal position that will
possibly come to constitute customary international
law.
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• Soft law developed in areas such as international
economic law and international environmental
law.
• Documents such as recommendations,
guidelines codes of practice or standard – may
later be converted into legal binding rules.
Jus cogens
• The second term is “peremptory norm” (jus
cogens).
• This concept refers to norms in international law
that cannot be overruled other than by a
subsequent peremptory norm.
• Certain rules of international law have always been
considered so fundamental to the working of the
system that states may not opt out of them.
• A theoretical basis for these ‘peremptory norms' is
now found in the notion that they represent a
combined will of the world community.
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• As such, rules of the ius cogens are not
immutable: they can be changed by the usual
processes for creating new customary law
• They are of the highest order.
• Jus cogens has precedence over treaty law.
• Thus: in a highly controversial decision, the ILC
accepted the concept of a ius cogens and
incorporated it into art 50 of the Vienna
Convention on the Law of Treaties (1966).
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• ‘A treaty is void if it conflicts with a peremptory
norm of general international law from which no
derogation is permitted and which can be
modified only by a subsequent norm of general
international law having the same character.'
• Exactly which norms can be designated as jus
cogens is still subject to some controversy.
• Examples are the ban on slavery, the prohibition
of genocide or torture, or the prohibition on the
use of force.
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• While there may be general agreement as to the
existence of a ius cogens, there is considerable
uncertainty about what rules it includes.
• In the Barcelona Traction, Light and Power Co
Case (1970), the ICJ declared the fundamental
character of such rules:
• obligations of the ius cogens are opposable
erga omnes, namely, they are owed ‘towards
the international community as a whole'.
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• The Court then gave as examples namely,
• ‘the outlawing of acts of aggression and of
genocide ...
• basic rights of the human person, including
protection from slavery and racial
discrimination'.
• Further examples would be
• the right to self-determination and
• the prohibition on war crimes
Development of International
Environmental Law
• Modern international environmental law can be
traced directly to international legal
developments which took place in the second
half of the nineteenth century.
• Thus, although the current form and structure of
the subject has become recognisable only since
the mid-1980s, a proper understanding of
modern principles and rules requires a historic
sense of earlier scientific, political and legal
developments.
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• International environmental law has evolved
over at least four distinct periods, reflecting
• developments in scientific knowledge,
• the application of new technologies and an
understanding of their impacts,
• changes in political consciousness and
• the changing structure of the international
legal order and institutions
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• The first period began with bilateral fisheries treaties
in the nineteenth century, and concluded with the
creation of the new international organisations in
1945.
• During this period, peoples and nations began to
understand that the process of industrialisation and
development required limitations on the exploitation of
certain natural resources (flora and fauna) and the adoption
of appropriate legal instruments.
• The second period commenced with the creation of
the UN and culminated with the UN Conference on
the Human Environment, held in Stockholm in June
1972.
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• Over this period, a range of international organisations with
competence in environmental matters was created, and
legal instruments were adopted, at both the regional and
global level, which addressed particular sources of pollution
and the conservation of general and particular
environmental resources, such as oil pollution, nuclear
testing, wetlands, the marine environment and its living
resources, the quality of freshwaters, and the dumping of
waste at sea.
• The third period ran from the 1972 Stockholm
Conference and concluded with the UN Conference
on Environment and Development (UNCED) in June
1992.
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• During this period, the UN tried to put in place a system for
co-ordinating responses to international environmental
issues, regional and global conventions were adopted, and
for the first time the production, consumption and
international trade in certain products was banned at the
global level.
• The fourth period was set in motion by UNCED, and
may be characterised as the period of integration:
when environmental concerns should, as a matter of
international law and policy, be integrated into all
activities.
• This has also been the period in which increased attention
has been paid to compliance with international
environmental obligations, with the result that there has
been a marked increase in international jurisprudence.
From Early Fisheries Conventions to
the creation of the United Nations
• Early attempts to develop international
environmental rules focused on the conservation
of wildlife (fisheries, birds and seals) and, to a
limited extent, on the protection of rivers and
seas
• International legal developments followed the
research efforts of scientists in the late
eighteenth and nineteenth centuries, including:
• the work of Count Buffon which contrasted the
appearance of inhabited life with uninhabited
life;
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• the studies by Fabre and Surrell of flooding,
siltation, erosion and the division of watercourses
brought about by deforestation in the Alps; and
• the conclusions of de Saussure and von
Humboldt that deforestation had lowered water
levels of lakes in the Alps and in Venezuela