1 SCOPE AND CONTENT OF SUBSTANTIVE ENVIRONMENTAL LAWOverview of Key Global and National Instruments in Environmental Law Robert Wabunoha 26 JUNE 2017

2 OUTLINE OF PRESENTATIONWHAT IS “ENVIRONMENT” WHAT IS “ENVIRONMENTAL LAW” TRANS-DISCIPLINARY NATURE Environmental law is a comparatively new branch of domestic and international law. In this process of moulding, the judiciary has a vital role to play. The fine nuances of particular situations which the judge encounters in individual cases are often not matters with which legislatures have time and resources to deal. It is often before the judiciary that they come up for the first time. Consequently it is often judicial decision-making that gives shape and direction to the new concepts and procedures involved. As more such situations come before judges, these individual decisions initiate trends, which give the newly emerging discipline of environmental law the requisite conceptual framework and momentum for its development. This presentation explores various legal definitions of “environment”. Definitions help to establish the contours of any area of the law, by helping to delineate the scope of the subject, determine the application of legal rules, and establish the extent of liability when harm occurs. Jurisdictional aspects of environmental law are also set out, to understand the potential relationships between international, national and local environmental law. The discussion of the content and categories of environmental law follows from, flowing from the definitions and the jurisdictional aspects. Comparing different systems of environmental law can assist judges and legal drafters to understand and improve their own systems. The discussion of hierarchies involved in environmental law relates to the various levels of decision-making. Reference: UNEP Judicial Handbook on Environmental Law, 2005 SOURCES OF ENVIRONMENTAL LAW

3 STATUTORY DEFINITIONS OF ENVIRONMENTGeneral definition of “ environment” includes: - entire range of living and non living factors that influence life on earth and their interactions. This would include: Living resources including humans, animals, plants and micro-organisms. Non-living resources i.e. physical life support systems of the planet such as the geography, hydrology, atmosphere, matter, and energy historical, cultural, social and aesthetic components including the built environment. Reference: UNEP Judicial Handbook on Environmental Law, 2005

4 WHAT IS ENVIRONMENTAL LAW“The body of law which contains elements to control human impacts on the environment.” The scope of environmental law in any given jurisdiction is often determined by how the word environment is defined. Environmental law can be generally described as the body of law which contains elements to control the human impact on the environment. Environment being a dimension of every sector of activity, elements of environmental law can be found throughout the laws of a country, whether specifically referred to as “environmental” or not. Environmental law can be divided into two major streams - international environmental law and national environmental law. For the judge, national environmental law is of course most germane, however, international environmental law may also be relevant. The extent to which international environmental law is relevant to the judge depends on the extent to which international environmental law has effectively become part of the corpus of national law that judges are charged to uphold. Over the past several decades governments began to demonstrate concern over the general state of the environment and, beginning in the 1960s, introduced legislation to combat pollution of inland waters, oceans, air, and land and to safeguard certain cities or areas. Simultaneously, they established special administrative organs, ministries or environmental agencies, to preserve more effectively the quality of life of their citizens. In some states, comparable laws and structures have been replicated by provincial and local governments. Developments in international environmental law paralleled this evolution within states, reflecting a growing consensus to accord priority to resolving environmental problems. There have been significant changes in environmental legislation and institutions in developing countries since the Stockholm Conference, in This momentum for change has been further encouraged by UNCED in It is possible to identify several emerging trends in this evolution: the crystallization of environmental issues in constitutional and broad policy documents; more comprehensive coverage of environmental issues; establishment of environmental standards and norms; use of economic instruments for environmental management; recognition of international norms; environmental impact assessment (EIA); effective co-ordination of environmental management; efforts towards ensuring coherence of legislative framework; establishment of mechanisms for facilitating compliance with environmental regulations and measures for more effective law enforcement; and provisions for public participation and review. Reference: UNEP Judicial Handbook on Environmental Law, 2005

5 TRANS-DISCIPLINARY NATUREPHYSICAL SCIENCES NATURAL SCIENCES ENVIRONMENTAL ECONOMICS HISTORY ETHICS 1. The development of environmental law has been largely shaped by scientific findings and anthropological study relating to the impact of human activities on the environment. Among the disciplines having an impact on environmental equation are: Natural, physical and social sciences: biology, geography, chemistry, physics, engineering, sociology, psychology, anthropology, archaeology Environmental economics: use of economic instruments, cost benefit analysis, measuring economic benefit of environmental noncompliance, measuring natural resource damages, etc. Ethics: ethical underpinnings of environmental issues Cultural values: different cultures value their environments in a range of ways History: awareness of historical background of cities and towns, the history of human interactions with particular environments, etc. 4. Viewed in this light, it is essential for the judiciary to have an understanding of environmental problems and a creative vision of how the law can deal with them, failing which environmental law can be rendered ineffective or retarded in its development and implementation. Reference: UNEP Judicial Handbook on Environmental Law, 2005, page XV1: SOCIAL SCIENCES CULTURAL VALUES

6 SOURCES OF ENVIRONMENAL LAWINTERNATIONAL This slide recognizes that environmental law may be established on a number of different levels: international, national, state and local. International environmental law regulates relationships between states pertaining to the environment. The key question for national judges is, of course, what laws are operative at national level. In other words, when does international law operate to create obligations of citizens to the state, or of the state to citizens? International law only has meaning to the national level judge to the extent that it has become part of the corpus of domestic law or offers persuasive guidance in applying or interpreting national law. As will be discussed, the question of when and whether international law becomes operative and enforceable at the national level by national level judges is a complicated question. An example of an international concept having been adopted at the national level is the Environment Protection and Biodiversity Conservation Act 1999 (Australia) “The following principles are principles of ecologically sustainable development :  (a)  decision‑making processes should effectively integrate both long‑term and short‑term economic, environmental, social and equitable considerations; (b)  if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation; (c)  the principle of inter‑generational equity—that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations; (d)  the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision‑making; (e)  improved valuation, pricing and incentive mechanisms should be promoted.” National laws take several forms: Organic legislation: legislation which sets up environmental agencies, and include environmental regulatory mechanisms Sectoral legislation: legislation focusing on particular subject matter which also contains environmental management provisions; for example, forestry, coastal zone management, land use planning etc. Integrated legislation: this refers to legislation which covers a range of environmental matters, and is governed by common principles, concepts and remedies Case law: refers decisions of national, state/provincial and tribunals, and decisions of local courts. Judicial decisions have binding or persuasive precedential effect in many jurisdictions. Local legislation The same legal tools present at the national level are subject to replication at the provincial and local levels in many states. Local laws are often particularly concerned with land use planning. Supranational law e.g. – EU directives Reference: UNEP Judicial Handbook on Environmental Law, 2005, Chapter 1. LOCAL NATIONAL

7 EVOLUTION OF ENVIRONMENTAL LAWNATIONAL LAWS INTERNATIONAL ENVIRONMENTAL LAW NATIONAL EXPERIENCE, INCLUDING JURISPRUDENCE There has always been a strong relationship and synergy between national and international law, It must be borne in mind that international environmental law continues to be informed by experiences at the national level. That experience, galvanized by a shared concern regarding degradation of the planet, has given birth to a range of concepts and principles relating to sustainable development. Those concepts are now increasingly expressed in a number of environmental treaties at multilateral, regional and bilateral level. These various treaties or agreements have in turn influenced national laws and shaped national experience, which have then served to further refine the operative concepts at the international level. In addition, the rulings of international tribunals in environmental matters also contribute to the contours of international environmental law, which in turn serves to shape the development of law at a national level.

8 ENVIRONMENTAL LAW AT THE NATIONAL LEVELPENAL CODES, COMMON LAW, CIVIL CODE LAW CONSTITUTIONAL & SUSTAINABLE DEVELOPMENT CULTURAL HERITAGE LAW NATURAL RESOURCES MANAGEMENT PLANNING ENVIRONMENTAL IMPACT ASSESSMENT AND LICENSING POLLUTION CONTROL LAW CATEGORIES OF ENVIRONMENTAL LAW Chapter 8 of Agenda 21 from the Rio Conference declared as its basis for action that laws and regulations suited to country-specific conditions are among the most important instruments for transforming environment and development policies into action, not only through “command and control” methods, but also as a normative framework for economic planning and market instruments. The 2002 World Summit on Sustainable Development (WSSD) Plan of Implementation also calls upon countries to promote sustainable development at the national level by, inter alia, enacting and enforcing clear and effective laws that support sustainable development. As for the kind of institutions national environmental legislation should set up or strengthen, the WSSD Plan of Implementation underlines the importance of national governments to strengthen institutional frameworks for sustainable development at the national level. Paragraph 162 of the Plan of Implementation calls for states to promote coherent and co-ordinated approaches to institutional frameworks for sustainable development at all national levels, including through, as appropriate, the establishment or strengthening of existing authorities and mechanisms necessary for policy-making, co-ordination and implementation and enforcement of laws. Countries have a responsibility to strengthen governmental institutions, including by providing necessary infrastructure and by promoting transparency, accountability and fair administrative and judicial institutions. Paragraph 164 calls upon all countries to promote public participation, including through measures that provide access to information regarding legislation, regulations, activities, policies and programs. Inspired in part by these international pronouncements, laws at the national level increasingly include the following elements: Pollution control laws, which address, among other things: Air Quality Water Quality and Quantity Soil Erosion and Land Degradation Proper Management of Dangerous Chemicals Adequate Treatment and Proper Disposal Of Waste Biodiversity protection laws which includes, among other things, protection of Endangered Species EIA and Licensing: most systems provide for pre-approval of certain classes of activities via operating licenses with environmental impact assessment informing the granting of licenses. Planning law: also called spatial planning law: includes industry, roads, bridges and other infrastructure in both urban and rural areas. Natural resources law: covers conservation and exploitation of land (forests, soil, minerals) water: fisheries, minerals, energy sources this provides for the protection and control of exploitation of water, forests, soil, minerals, fisheries. Sustainable development laws that attempt to ensure the integration of environmental conservation and development initiatives in decision-making at all levels, by taking into account economic, environmental and social/cultural needs Apart from law developed specifically for the environmental context, there are various sources of penal and general law that may have application in the environmental context. Some examples might include smuggling and fraud in the penal context, and nuisance in the civil context (in states with a common law tradition). Beyond the elements that are generally conceived of as being “of nature”, there are also laws relating to human elements of the environment, such cultural and religious heritage protections. References: UNEP Training Manual on International Environmental Law, 2006, Chapter 2. Agenda 21, 1992

9 LEGAL HIERARCHIES IN THE ENVIRONMENTAL CONTEXTCONSTITUTIONS STATUTES REGULATIONS LICENSES, PERMITS, AUTHORIZATIONS PRINCIPLE OF SUBSIDIARITY COURTS TRIBUNALS ADMINISTRATIVE DECISION-MAKING AND REVIEW FEDERAL GOVERNMENTS STATE/PROVINCIAL LOCAL GOVERNMENTS/VILLAGES Constitutions: some countries include environmental rights, principles and others in their Constitutions. In other jurisdictions, judges have inferred such rights, based for example on provisions concerning the right to life. Legislation: must be valid under the Constitution. In various federal jurisdictions, Constitution sets out what powers federal and state or provincial governments exercise over the environment. Regulations: must conform with relevant statutes under which they are made. In environmental law, regulations often set out the details of what is required in planning, environmental impact assessment, pollution control, etc. Licenses, Permits and Authorizations: frequently, the expectations set forth in national legislation and regulations require further translation into facility-specific requirements via licenses, permits and authorizations. Political hierarchies in environmental law In unitary, or non-federally organised countries, the central government law governs all aspects of environmental regulation; regional and local governments can, however, be given decision-making power by the central government. In federally organised countries, the constitution will often set out the relationship between the Federal and state or provincial governments State or provincial governments, where they exist, often have their constitutionally-based legislative power over environmental issues. Local governments frequently have less law making power, and are usually a legal creation of a State. Local government law must conform with the laws of the central, state/provincial governments. Where they have law-making functions, local government’s environmental focus is typically on local land use planning. Reference: UNEP Judicial Handbook on Environmental Law, 2005, Chapter 1

10 ENVIRONMENTAL LAW AT THE INTERNATIONAL LEVELTypes of international law, generally: Generally addresses State-to-State obligations Multi-lateral Agreements (MEAs) Decisions by International Tribunals “Customary” international law International law typically focuses in the first instance on state-to-state obligations, but can significantly influence environmental law at national and local levels. Sources of international law include: Multi-lateral Agreements (MEAs) - global and regional agreements, binding and non binding International case law: decisions of International Court of Justice, International Tribunal for the Law of the Sea, European Court of Justice. Customary law In addition to binding law, there are numerous persuasive authorities that are present in the environmental context, including: The writings of eminent jurists: judges sometimes rely on the analysis of eminent academic commentators in articles and books, especially when there are no relevant legal precedents available. Non-binding international instruments (soft law) may also be a source of guidance. For example, principles contained in the Rio Declaration on Environment and Development are sometimes referred to by judges at the national level. Reference: UNEP Judicial Handbook on Environmental Law, 2005, Chapter 1.

11 MULTI-LATERAL ENVIRONMENTAL AGREEMENTSThere are a significant number of global, regional and bi-lateral environmental agreements. These agreements cover such topics as: Transboundary pollution: ozone depleting gases, greenhouse gas emissions, contamination of marine waters, transboundary rivers and lakes, transboundary marine pollution, groundwater, use, transport and disposal of hazardous chemicals and wastes Biodiversity conservation: in situ conservation of wetlands, world heritage, biosphere reserves; ex situ conservation (seed banks, botanical institutions), trade in endangered species. Natural resources management: timber, energy sources, mineral exploration, water. Cultural heritage: protection of heritage structures and objects, protection of the same during times of armed conflict, illegal trade in heritage objects, intangible heritage This slide allows reference to a number of MEAs by the Regions in which the agreements were established. References: UNEP Training Manual on International Environmental Law, 2006, Ch 7 ”Freshwater Resources”; Ch 8, “Transboundary Air Pollution”; Ch 13 “Marine Pollution”; Ch 14, “Conservation of Species and Habitats”; Ch 15 “Biodiversity”, Ch 17 “Protecting and Preserving Marine Biodiversity including through sustainable fisheries”. UNEP Judicial Handbook on Environmental Law, 2005, Ch 9 “Soil”; Ch 10 “Biological Diversity and Nature Conservation”; Ch 11 “Agriculture and Forestry”; Ch 12 “Protection of Cultural and Natural Heritage”

12 MEAs Clusters MEAs can be divided in four main clusters:Biodiversity related conventions: CBD, Ramsar, UNCCD, CITES, CMS, Heritage, Maputo, Lusaka Atmospheric related conventions: UNFCC, Kyoto, Paris Chemical and hazardous waste conventions: Basel, POPs, PIC, Ozone, Bamako International water conventions (freshwater and marine): UNCLOS, (UN Water Convention, draft UN aquifers law), IMO, MARPOL, Nairobi and Abidjan, Mediterranean, trans-boundary river basin agreements Non-binding: Stockholm, Rio, Agenda 21, JPoI, NEPAD, 2030Agenda and SDGs, 2063 Africa Agenda

13 CASE LAW- Atmospheric Asghar Leghari v. Federation of Pakistan Plaintiff, a farmer, challenged inaction of Government in the fight against challenges of climate change. He argued that government should implement the National Climate Change Policy 2012 and the Framework for Implementation of Climate Change policy (adaptations of the UNFCCC). Held: all ministries, department and authorities to name a climate change focal person to work with the ministry of climate change and implement the Framework for Implementation of Climate Change policy. In order to monitor the progress made in the implementation of the Framework, the Court required the creation of a Climate Change Commission

14 Case Law-Chemicals & hazardous wasteResearch Foundation for Science Technology and Natural Resources Policy v. Union of India and Another Supreme Court of India constituted a High Powered Committee (HPC) to examine all matters in depth relating to hazardous waste in India. The HPC noticed the presence of hazardous waste oil in 133 containers lying at Nhava Sheva Port. A report of the Commissioner of Customs characterized the goods as hazardous waste oil containing PCBs. Court came to the conclusion that importers illegally imported waste oil in 133 containers in garb of lubricating oil. Court analyzed Art. 9(2)(a) of Basel Convention which provided that in case of illegal traffic as a result of conduct on the part of the exporter, the convention would apply

15 Case Law- BiodiversityDecision on the Law n° on the International Trade of Species of Fauna and Flora - Madagascar Court was asked to review the constitutionality of Law n° on international trade of species of fauna and flora. Court held: the law as constitutional

16 Case Law - International WaterKenya v Minister for Transport & Communication & 5 others applicants argued that 1973 Convention for Prevention of Pollution from Ships which has not been integrated in Kenyan domestic law and had no legal basis. They also claimed that NEMA did not have the competence to rely on convention. Held: decision could be taken into consideration even if the Convention (MARPOL) is not already integrated in Kenya law. Court also stated that both NEMA and KPA were entitled to take such decisions, especially because the Environmental Act allows NEMA to implement provision of regional or international conventions.

17 IMPACT OF MEAs ON NATIONAL LAWMonist and dualist approaches Key Question: Have elements of the MEA become part of the corpus of domestic law? In the domestic adoption of international law, there is a degree of divergence between countries that follow the Anglo-American legal and those that follow European civil law systems. Those that employ the Anglo-American common law system typically adopt a dualist approach to adoption of international law into national jurisprudence. Thus, international laws are not automatically incorporated into domestic law and are said to require an act of legal “transformation” into domestic law. This is especially true in relation to international treaty laws. These require national legislation in order to have legal effect at the domestic level, although certain treaties may be treated as self-executing. In other cases, judges may utilise them for the purposes of statutory interpretation when legislation has been based upon, or is in fulfilment of, a treaty obligation. In practice, it is unclear how sharp the distinction is between monist and dualist states, in that legislative implementation of treaty obligations is often necessary either to translate the obligations into enforceable domestic norms or to enhance that the acceptance of the international commitment within the policy, legal and administrative structure of a particular jurisdiction. When the discrete elements of the treaty are implanted into the national governance apparatus and the routine motions of regular administration, they are then assured of application, in the same manner as the ordinary law of the land. Treaty law, in these respects, typically undergoes a process of transformation and assimilation into domestic law. In this way, it is possible to achieve the most effective scheme of implementation for treaty law. References: UNEP Compendium of Summaries of Judicial Decisions in Environment-related Cases, 2005 UNEP Training Manual on International Environmental Law, 2006, Chapter 2 UNEP Judicial Handbook on Environmental Law, 2005, pages XX to XXI, Introduction, and Chapter 1, “International Law”.

18 CUSTOMARY INTERNATIONAL LAWA difficult area – when does a principle become a “general practice of law”? Binding versus persuasive force International law can also become part of the corpus of domestic law when recognized as “customary law” because of widespread recognition and application by the courts and legislatures at national level. Customary international law is defined as a “general practice of law” that states follow out of a sense of legal obligation. Rules or principles must be accepted by the states as legally binding in order to be considered part of the corpus of the general practice of law. Thus, the mere fact that a custom is widely followed does not make it a rule of international law. States must also view it as obligatory to follow the custom, and not believe that they are free to depart from it whenever they choose or to observe it only as a matter of courtesy or moral obligation. The Anglo-American dualist legal systems are typically less receptive to incorporation of customary international law than civil law systems following a monist approach to the adoption of international law into national jurisprudence. Significantly, even if a judge in one state finds that a practice is a rule of customary international law, a judge in another state is not constrained by such a decision and may reach a different conclusion, making it all the more difficult to definitively label a body of law “custom.” Notably, even if a principle in the international domain does not have the status of custom, and is therefore not binding, it still may carry persuasive force.

19 Decisions by International TribunalsWhile decisions by these tribunals are generally not binding on national courts, they offer persuasive insights on questions that appear with equal force in national level cases. Trail Smelter Arbitration (1938/1941) 3 R.I.A.A Arbitral; Tribunal: U.S. And Canada Held: Referring to international law on various matters and decisions of the U.S. Supreme Court, the Tribunal found that taken as a whole, these decisions constitute an adequate basis for its conclusions, namely, that under the principles of international law, as well as the law of the United States, no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.

20 Contd. ICJ 1997 General List No. 92, 25 September 1997, Case Concerning The Gabcikovo-Nagymaros Project (Hungary/Slovakia) Held: "The environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of 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."

21 Judicial Interpretation of Environmental LawsRight of access to courts in environmental matters guaranteed by Rio principle 10 Increasingly laws are giving locus standi in environmental cases Allowing class action suits According to most laws, one does not have to prove any injury, they only need prove violation of an environmental right or threatened. Creation of environment and land courts/ tribunals or giving jurisdiction to existing organs to deal with environmental matters.

22 Judicial Trends in AfricaEstablishment of Environmental Tribunal/Courts: In Kenya, Mauritius and Malawi, pure environmental courts South Africa. Integration of environmental cases in day to day work of the judiciary. Use of Environmental Restoration/Improvement Orders: Restoration orders served on violator given the right to request for reconsideration. Kenya, Tanzania, Uganda, Malawi and Gambia.

23 Locus Standi/ Right to a Clean and Healthyenvironment Van Huyssteen and Others Vs Minister Of Environmental Affairs And Tourism and Others (1995)(South Africa) Prof. Wangari Maathai & others v. City Council of Nairobi, Commissioner of Lands Commission & anor (Kenya) Wildlife society of South Africa vs Minister of Environment Shell Petroleum Development Company of Nigeria Ltd v Abel Isaiah(2001) Public Interest Litigation/Constitutional petitions Rev. Christopher Mtikila v. The Attorney General TEAN v. A.G & NEMA Dr. K. Besigye v. Yoweri Kaguta Museveni & Electoral Commission. Shell Petroleum Development Company of Nigeria Ltd v. Chief G.G.A Tiebo VII& Others (2005) Case law Precautionary principle TEAN v. A.G & NEMA Jane Lugolobi & 9 Others v. T/A Smart Curry Powder Factory. Polluter pays principle Byabazaire Grace Thaddeus v. Mukwano Industries Felix Joseph Mavika & 4 Others v. DSM DSM Commissioner & Another Festo Balegele & 794 Others v.DSM City Council Environmental Impact Assessment Greenwatch and ACODE v. Golf Course Holdings Ltd NAPE v. AES Nile Power Christopher Aikawo Shayo v. National Chemical Industries and Pesticides Manufacturers Ltd

24 CONCLUSIONS Judges can assist develop environmental law wherelegislation is inadequate or unclear. Judges need to be aware of both international and domestic environmental law Comparisons of environmental legal systems can be very instructive Sources of environmental law are very broad; international and national environmental law, case law and administrative regulations Environmental legislation in some jurisdictions is underdeveloped, and judges can assist the development of environmental law in their jurisdictions where legislation is incomplete or unclear. Judges need to be aware of both international and domestic environmental law; there is an increasing influence of international environmental law and broadly accepted principles, especially in relation to sustainable development Comparisons of environmental legal systems can be very instructive: the process of comparison can assist in developing the environmental law in a particular area, both in terms of procedure as well as substance The sources of environmental law are very broad; they include international environmental law, legislation, case law and administrative regulations Environmental law is inherently transdisciplinary: judges and lawyers need to have a good understanding of related disciplines. This is demonstrated in particular in Presentation 9, focusing on Evidence in Environmental Cases. Environmental law is a comparatively new branch of domestic and international law. As such, it is in the process of being moulded, unlike older areas of law, which have already assumed fairly defined concepts, principles and procedures. In this process of molding, the judiciary has a vital role to play. Environmental law is inherently transdisciplinary: judges and lawyers need to have a good understanding of related disciplines