SCHOOL OF BIOLOGY AND ENVIRONMENTAL SCIENCES

ENVIRONMENTAL LAW (ENV 102)

UNIT 2: INTERNATIONAL ENVIRONMENTAL LAW

 OVERVIEW

• Rationale & Importance of IEL

• What is IEL?

• Sources of IEL

• Status of IEL in S.A.

• Principles of IEL
 THE RATIONALE & IMPORTANCE OF IEL

• Environmental issues are transboundary in nature.

• i.e. they often extend beyond geographical and/or national boundaries.

• Issues such as global warming, shared watercourses, loss of biodiversity,

desertification e.t.c are of global concern.

• require international intervention through cooperation between states but also nationally within
individual nations.

• IEL is also important as it serves as one of the source of domestic environmental

law.
 WHAT IS IEL

• International law refers to agreements among different countries or between

citizens/corporations of different countries.

• It is a combination of treaties and customs that regulate the conduct among states.
 SOURCES OF IEL

INTERNATIONAL Hard Law

Soft Law
ENVIRONMENTAL LAW

Customary
International Law
 SOURCES OF IEL: CUSTOMARY LAW

• Customary international law comes from the customs practised over a long
period of time by various states.

• It can be seen as the common law of the international community

• These customs are often not written in treaties or legislation, but have become an
international standard that governments must follow.

• NB: Customary international law legally binds nations even if it is not formally
ratified.
 SOURCES OF IEL : SOFT LAW vs HARD LAW

SOFT INTERNATIONAL LAW HARD INTERNATIONAL LAW

Agreements or principles that are

meant to influence individual nations Agreements or principles that are directly
enforceable by a national or international
to respect certain norms or body
incorporate them into domestic laws

Soft law instruments : Hard law instruments:

• Are statements of intent

• Contain non-binding obligations • Contain binding obligations
• Include Declarations and Action Plans
• Include Conventions or Treaties and Protocols
 PROMINENT SOFT IEL INSTRUMENTS
SOFT LAW INSTRUMENT DESCRIPTION
The Stockholm Declaration is one of the landmark outcomes of the first major international conference which focused on global
environmental issues. The United Nations Conference on the Human Environment was help in June, 1972 in Stockholm, Sweden.

The Stockholm Declaration is a prominent soft law instrument in the history of international environmental law in that it sets out
landmark principles of environmental law. Some of the principles set out therein are now globally recognised as basic norms of
customary international environmental law. E.g.
THE 1972 STOCKHOLM
DECLARATION Principle 21:

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to
exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within
their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national
jurisdiction.

The United Nations Conference on Environment and Development was held twenty years after the Stockholm Conference in Rio
de Janeiro, Brazil. Two prominent soft law instruments came out of this Conference, namely, Declaration on Environment and
Development (the Rio Declaration) and Agenda 21: An Agenda for Sustainable Development into the 21st Century.
THE 1992 RIO The Rio Declaration sets out 27 principles of sustainable development. Some of the principles found therein include: The
DECLARATION AND Precautionary Principle, The Polluter Pays Principle, The Principle of Environmental assessment
AGENDA 21
Agenda 21 is widely accepted an action plan and blueprint for sustainable development. It contains a number of action
programmes which address such issues as poverty and environmental degradation.
 PROMINENT SOFT IEL INSTRUMENTS
SOFT LAW INSTRUMENT DESCRIPTION

The World Summit on Sustainable Development was held in South Africa in 2002. This conference produced a
THE JOHANNESBURG
number of soft law instruments but focused more on implementation rather that the declaration of principles.
DECLARATION AND THE The two prominent soft law instruments to come out of this World Summit were the Johannesburg
PLAN OF IMPLEMENTATION Declaration on Sustainable Development (The JHB Declaration) and the Plan of Implementation of the World
Summit on Sustainable Development (the PoI).

The World Charter for Nature was adopted in 1982 by the United Nations. It sets out non-binding principles of
THE WORLD CHARTER FOR
conservation by which all human conduct affecting nature is to be guided and judged. The significance of this
NATURE Charter is in that it has a more ecological focus which promotes the protection of nature as an end in itself.
 TREATIES PERTINENT TO NATURE CONSERVATION
AND APPLICABLE TO SA
COMMON NAME OF CONVENTION FULL NAME OF CONVENTION

CBD Convention of Biological Diversity

Ramsar Convention Convention on Wetlands of International Importance Especially As Waterfowl Habitat

CITIES Convention on International Trade in Endangered Species of Wild Fauna and Flora

UNFCCC/ Climate Change United Nations Framework Convention on Climate Change

Convention

World Heritage Convention Conversion Concerning the Protection of the World Cultural and Natural Heritage

Bonn Convention Convention on the Conservation of Migratory Species of Wild Animals

 HARD INTERNATIONAL LAW:CONVENTIONS/TREATIES & PROTOCOLS

• Conventions/treaties & Protocols are the primary source IEL.

• Written agreements between states or between states and international

organisations.

• Can be multilateral (binding many states) or bilateral (binding two states only)
 HARD INTERNATIONAL LAW:CONVENTIONS/TREATIES
• Can be broadly divided into three categories:

• Contractual treaties:- these are of a contractual nature and they deal with such
matters as trade.

• Legislative:- these codify or arrange existing rules of international law into

a systematic code. Legislative treaties also create new rules of law.

• Constitutional :- these create or constitute international organisations such

as the United Nations. This organisations are set in place to address issues
of global importance
 ADOPTION OF SOFT INTERNATIONAL LAW IN SA?

• A number of principles set out in the Stockholm Declaration, the Rio Declaration
and the guidelines of Agenda 21 have been adopted in South African law and
policy-making.

• South Africa now has the National Environmental Management Principles which
are mainly based on the principles emanating from these international soft law
instruments.
 THE STATUS OF IEL IN S.A.
• IEL has greatly influenced the development of domestic environmental laws in S.A.

• The Constitution of the Republic of South Africa (as the supreme law) is the starting point for determining the
status of IEL in S.A.

• Section 39 of the Constitution states that the courts, and other legal bodies, when interpreting the Bill of
Rights:

• Must consider international law & May consider foreign law

• Section 231 of the Constitution says that a treaty binds South Africa after approval by the National Assembly
and the National Council of Provinces

• Section 232 of the Constitution makes customary international law the law in South Africa, unless it is
inconsistent with the Constitution or legislation.
Quiz 1
PRINCIPLES OF IEL
 WHAT IS A PRINCIPLE?

• Various definitions:

“A basic idea or rule that explains or controls how something

happens or is to be done”.

“A moral rule or standard of good behaviour”.

 PRINCIPLES OF IEL

• The design and application of environmental law have been shaped by

a set of principles found in a number of international law instruments:

• Stockholm Declaration, 1972 = a set of 26 principles

• Rio Declaration, 1992 = a set of 27 principles

• These principles make up the core of most environmental legal

systems.

• Serve as the underlying basis for the regulatory tools that now exist in environmental
law.
 STATE SOVEREIGNTY & RESPONSIBILITY NOT TO CAUSE HARM

• According to this principle:

• ‘States have, ….., the sovereign right to exploit their own resources pursuant to their own
environmental policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other states or of
areas beyond the limits of national jurisdiction’.

• Essentially, while states have the right to exploit their own natural resources, they
also have the responsibility or obligation not to cause damage to the
environment of other states.
PRINCIPLE OF GOOD NEIGHBOURLINESS AND INTERNATIONAL CO-OPERATION

• According to this principle:

• states need to ensure that their policies are based on the general principle of good neighbourliness,
taking into account the interests and well-being of the rest of the world in social, economic and
commercial matters.

• Requires international cooperation in cases of environmental risk:

• prior notification, consultation and negotiation before activities involving environmental risk take
place, as well as notification and due diligence in cases of emergences.
 INTER-GENERATIONAL AND INTRA-GENERATIONAL EQUITY

• Inter-generational and intra-generational equity are two of the most essential elements of
sustainable development.

• ‘Sustainable development refers to development that meets the needs of the present without
compromising the ability of future generations to meet theirs’

• Inter-generational equity refers to the right of future generations to enjoy the same level of
environmental heritage through the preservation of the natural system by the current
generation

• Intra-generational equity refers to the right of all people within the current generation to
fair access to the current generation’s share of the earth’s natural resources
• Promotes the equitable use of natural resources
 ACCESS AND BENEFIT SHARING

• This principle recognises the right of indigenous and other local communities to participate
in decision-making processes with respect to natural resources.

• State are required to:

• respect, preserve and maintain knowledge, innovations and practices of indigenous
and local communities.

• promote the application, with the approval and involvement of the holders, of such
knowledge, innovations and practices

• encourage the equitable sharing of benefits arising from the utilization of such
knowledge, innovation and practices.
 PRECAUTIONARY PRINCIPLE/PRECAUTION

• Applies in cases of scientific uncertainty where an activity may cause harm to the environment.

• This principle is based on the general understanding that harm to the environment can be
irreversible and therefore it is better to avoid any possible harm than try to abate it later.

• In IEL, it is articulated in various legal instruments. e.g Principle 15 of the Rio Declaration states:

‘Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for
postponing cost effective measures to prevent environmental degradation.’
 PREVENTIVE PRINCIPLE/PREVENTION

• Although environmental pressures such as pollution cannot be entirely avoided:

• this principle seeks to minimise environmental damage by requiring that action be taken at an early
stage of the development process.

• This is an internationally accepted principle which has been incorporated in a number of

environmental law instruments in SA. E.g. NEMA in Section 2 provides that:

• ‘ Pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided are minimised
and remedied’.
 POLLUTER PAYS PRINCIPLE

• NEMA in Section 2 states that:

• ‘ the costs of remedying pollution, environmental degradation and consequent adverse health effects and
of preventing, controlling or minimising further pollution, environmental damage and adverse health
effects must be paid for my those responsible for harming the environment’.

• Essentially, this principle is based on the idea that a person involved in any
polluting activity should be responsible for the costs of preventing or dealing with
any pollution cause by that activity instead of passing these on to somebody else.
 ENVIRONMENTAL JUSTICE AND EQUITY
• According to this principle, scarce resources must be fairly allocated and
regulated in order to ensure that:

• the benefits of environmental resource;

• the costs associated with protecting them; and
• the degradation that occurs

are equally shared by all members of society.

• This involves the equitable distribution of pollution and other forms

of environmental harm.
 DUTY OF CARE/ENVIRONMENTAL RESPONSIBILITY
• Imposes, on every entity, the duty to act with due care to avoid damage to
others or to the environment.

• Where negative impacts to the environment are unavoidable, there must be

efforts to mitigate harm.
 CRADLE TO GRAVE/LIFE CYCLE RESPONSIBILITY PRINCIPLE

• A person initially responsible for producing a dangerous or toxic substance should remain
responsible for the entire life of that substance. i.e. until it has been disposed of.

• The initiator should remain responsible from production to disposal.