Sources of International Environmental Law.

INTRODUCTION

“Protection of environment is in our hands… let us join our hands to protect our earth”.[1] With this wording, it is a call to the international community that environmental problems should be solved in joint efforts by all the states. To curb the problems of environmental pollution and the like, the international environmental law comes into play.

In this work, focus is put on the sources of environmental law and a critical examination of these sources with regard to their failure to deal with environmental protection firmly.

2. DEFINITIONS OF TERMS

ENVIRONMENT

According to Environmental Management Act[2], under Section 3, Environment includes the physical factors of the surroundings of human beings including air, land, water, sound, light, odour, taste, micro-organisms, the biological factors of animals and plants, cultural resources and the social economic factor of aesthetics and includes both the natural and the built environment and the way they interact.

In other words environment is defined as the surroundings or conditions in which a person, animal, or plant lives or operates.[3]

INTERNATIONAL ENVIRONMENTAL LAW

International environmental law is the body of international law that concerns the protection of the global environment[4].

SOURCES OF INTERNATIONAL ENVIRONMENTAL LAW

Articles 38[5] the sources of international law are those places where the Court whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply. Such sources include; the international conventions, international customs, the general principles of international law, judicial decisions as well as writings of the prominent jurists.

However there are other subsidiary sources such as the soft law instruments, Acts of international organizations, equity, common law and natural justice.

It is though important to note that the sources of international law are similar to those of international environmental law.

3. MAIN BODY

Coming to the core of the question, it is now appropriate to view the sources of international environmental law.

INTERNATIONAL TREATIES.

A treaty can be defined to mean an agreement whereby two or more states establish a relationship between themselves governed by international law and the treaty being the main instrument which the international community possesses for the purpose of initiating or developing cooperation. According to Vienna Convention on the Law of Treaties[6] under Article 2(1) (a),

“A treaty is defined as an international agreement concluded between states in written form and governed by international law”.

In addressing the global problems on environment, international law establishes the four traditional sectors of environment; water, soil, atmosphere and biodiversity.

Also UNEP was established with the goal of regional application of international environmental law through conventions for different maritime around the global such as West Africa Persian Gulf. Therefore, the subject matter and environmental treaties have the similar legal techniques and the interrelated referenced and framework agreement the source of international environmental law. And each international environmental agreements contains some legally binding rules, though may differ in most traditional rules, though may differ in most traditional   norms hence it often invade traditional sphere of the governmental activities by requiring the states to limit pollution emissions, licensing systems should be established. Examples of treaties are; The Convention on The Protection of the Black Sea Against Pollution from Ships of 1973 as modified by the Protocol of 1978. The Convention on Control of Trans Boundary Movement of Hazardous Wastes and their Disposal.

CUSTOMARY INTERNATIONAL LAW

Customary law rules play a second role in international environmental law. They create binding obligations for all states except those which have persistently objected to a practice and its legal consequences. These may be evidenced by actual state practices, writings of international lawyers, judgment of the national and international tribunals and treaties. Article 38 (1) (b)[7] identifies two elements of customary into law which State Practices and Opinio Juris.

State practice here implies that if a state has acted in a particular way the international community presumes that that is its practice. for example; failure to tolerate certain level of pollution or activities causing environmental pollution.

 On the side of Opinio juris; it is presumed that if the state practice is general and consistent, that is its practice. In the ASYLUM CASE[8] between Colombia and Peru, the International Court o Justice was of the view that, “the fact brought to the knowledge of the court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the officer views expressed on different occasion…”  Thus, the court denied to acknowledge the existence of a custom as claimed by Colombia.

GENERAL PRINCIPLES OF INTERNATIONAL LAW

These include principles of good faith between states in their diplomatic relations, obligations to make reparation for breach of an engagement. This is an important source of law through which international law adapts itself in accordance with the changing times and circumstances. In words of Lord Mc Nair, “It describes an inexhaustible reservoir of legal principles from which the tribunal can enrich and develop public international law,” res judicata, estoppels, etc are the examples of the general principles of the general principles of law recognized by civilized states. In the case of R. KEY[9] the court rules that international law is based on justice, equity and good conscience which have been accepted by long practice of states.

Further, there are various principles which govern international environmental law; these are recognized by various states. For instance when the court apply it as a principle of international environmental law. Some of these principles include; Polluter Pays Principle, The Principle of Sustainable Development and Environmental Procedural Rights. In TRAIL SMELTER ARBITRAL AWARD CASE[10] it was stated that,

“Under international law, no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes or to territory of another state or properties or persons therein, when the case some serious consequence and the injury is establish by clear and convincing evidence”.

Therefore this is one of the secondary sources of international environmental law.

DECISIONS OF INTERNATIONAL BODIES AND OTHER ARBITRATION TRIBUNALS

The decisions of Judicial and Arbitral Tribunals are also the sources of international environmental law. But according to Article 38 of the ICJ, they are subsidiary means for the determination of the rules of law. This source includes international as well as national decisions. As regards to the decisions of the I.C.J, Article 59 of the stature of I.C.J provides that they will have no binding force except between the parties in respect of that particular case. However, the decisions are often considered as the affirmation or the revelation of customary international rules. For instance the Arbitral Judgment of March 11, 1941 in the TRAIL SMELTER CASE (supra) is considered as having laid the foundations of International Environmental Law at least trans frontier pollution. The principle was confirmed in CORTU CHANNEL CASE and in 1956 in Lake Lanoux Arbitration. Therefore these form part of the international environmental law.

SOFT LAWS

These are standards and practices outside the formal treaties which include code of practices and recommendations, guidelines, resolutions, declarations made by states and so forth. Unlike the formal instrument, are not binding and they don not require formal implementation like that of a treaty and they could not become immediately implemented. Some of these soft laws are hardened into formal treaty obligation when they form the basis for the negation of treaty provisions. For instance; Montreal Guidelines on the Protection of the Marine Environment from land based sources and the 1985 UNEP.

WRITINGS OF PROMINENT INTERNATIONAL PUBLIC LAWYERS

Under Article 38 of the Statute of I.C.J, the teachings of the most highly qualified publicists are considered as an important source of international law. It includes international environmental law. These are books written by eminent lawyers under international context. Journals and articles are also included. The writings of people like Oppenheim, Grotious, Van Martins and Wattel to mentions a few, had solitary influence in the development of international law as well as international environmental law. And their works are occasionally referred before the International Courts and Tribunals even today.

OTHER SOURCES

Apart from the above mentioned which are the major sources, there are other sources which include common law, equity and natural law. Also Acts of International Organizations such as the United Nations.

CRITICAL DISCUSSION ON THE SOURCES OF INTERNATIONAL ENVIRONMENTAL LAW

After seen in brief the various sources of international environmental law, it is now appropriate to discuss the criticism or weaknesses observed in the sources of international environmental law.

Firstly, on the side of treaties; they are weak in a sense that they only bind the parties making it and not any other states. Furthermore, some states, even if they are parties to the treaty, the treaty can not be enforceable without ratification in the national Constitution, as stated under Article 63[11] of Constitution of United Republic of Tanzania. This means that a state that is not part to a treaty cannot be bound by it so they wish either to protect or not to protect the environment in as far as the international environmental law. Therefore, this poses a problem in enforcement of the environmental policies that require international attention. For example U.S.A abstained herself from Kyoto Treaty which agreed upon the reduction of green house gases from industries.

Secondly, for the case of international customary law; it is difficult to prove international customs, in the sense that it requires certain consistency. There is no way for a state to have acted consistently. Customary international law recognizes the question of sovereignty or inter-territorial sovereignty. This is the right to use their resources for their own benefit, the state therefore is free without being interfered. This is a weakness because of the trans – boundary nature of environmental problem. For instance the problem of pollution of fumes; this can not be limited if one country emits the same, they must reach the other state across the border. Hence sovereignty as one of the sources is very weak in that matter. However, Rio Declaration; Principle No 2 is to the effect that states have sovereignty in their own jurisdiction to exploit their natural resources but without injuring on their neighbouring states.

Coming to general principles of international law; these have a weakness in that they do not have coercive instrument to enforce the various principles so established to the states. Therefore some states may refuse to adhere to some of the important environmental principles, and nothing can be done against them. For instance U.S.A refused to sign the Kyoto Protocol on the production of greenhouse gases. And nothing has been done about it.

Also Decisions of International Bodies and other Arbitration Tribunals are not binding to parties other than those in disputes. For example the decisions of the International Court of Justice do not have power to force the parties to a conflict to appear before it for determination. Furthermore, the previous decisions of the international courts are not binding to the same court and other  national courts. With this the international environmental law looses the credibility as such.

Speaking of the soft laws as the source of international environmental law; as the name suggests they are not binding practices unlike a treaty which normally tends to bind the signatories. This tendency of being no-binding obviously may pose difficulties in the overall process of enforcement of such laws because the nature of the soft law is that the state may either feel to be bound or otherwise. Basing upon the inherent nature of the law as propounded by Sir. John Austin, that law should be a command of a sovereign body as well as enforceable by sanctions, soft law will generally not be categorically be regarded as law but just rules of positive morality since law must be binding. Therefore in practical sense this source of international environmental law is without doubt very weak.

Considering the status of the writings of prominent international public lawyers which entail books, journals and many other writings, as prescribed at the beginning of this work; they are playing less central role in developing the international environmental law because their application in the field of environment is not very frequent like other sources, although they are used in some extent, the degree of their usefulness is relatively lower. Sir. Viscount Pelmer in his work entitled, “Authors and Law”[12] remarked that, “the role of we authors in the development of legal framework is very crucial but it is from same legal framework we derive our handful work through the process of evaluation”. The meaning of this notion is that writings are not a substantial source of law but a mere supplement toward the growth of law.

RECOMMENDATION

In light of the above critical discussion especially on the side of weaknesses of international environmental law, we are of the view that these sources should be taken serious especially by the members of the international community.

Also the individual states themselves are supposed to take responsibility in taking case of the environmental. Various efforts have to be made to incorporate the environmental treaties in their national legislation.

4. CONCLUSION

In a nutshell it is true that environmental problems are global. In order to curb these problems there must be effective international environmental law. Having the sources of international environmental law without authority is equal to no sources. It should be noted that the only solution to solve environmental issues is through multi national cooperation and harmonization of the laws concerning the same.

5. BIBLIOGRAPHY

CONSTITUTION:

              The Tanzania Government of, The Constitution of United Republic of Tanzania, 1977, as amended in 2005, Government Printers, Dar es Salaam.

STATUTES:

Tanzania Government of, The Environmental Management Act, No 6 of 2004,  Government Printers, Dar es Salaam.

Vienna Convention on The Sources of International Environmental Law, 1969

The Statute of The International Court of Justice of 1945, New York.

BOOKS:

Tripathi, S.C (2005) Environmental Law, 2^nd Ed, Central Law Publishers, Darbanhang a Colony, Allahabad.

Hughes, d. (1992) Environmental Law, 2^nd Ed, Butterworth &co. (Publishers) Ltd, London.

Lizzley, N.C (1973) Law Source Book, Oxford University Publisher, London.

OTHER SOURCES:

http://wikipedia.org/wiki/international environmental law 00:53, 04.20.2009

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[1] Professor Padma, Paper Presentation on Environmental Protection, to LL.B Students, Mzumbe University, 17^th April, 2009

[2] No. 3 of 2004

[3] Concise Oxford Dictionary, Tenth Edition.

[4] http://www.anwers.com/wiki/international environmental law

[5] The Statute of International Court of Justice, 1945

[6] 1945

[7] The Statute of I.C.J, 1945

[8] I.C.J. Reports, 1952, p. 200

[9] (1876) 2 Ex. D. 63

[10] U.S vs. Canada, Vol. 35 AJIL (1941) p. 684, at p. 716

[11] The Constitution of United Republic of Tanzania, 1977, as amended in 2005

[12] N.C, Lizzley (1973) “Law Source Book” at p. 2