UNEP GLOBAL JUDGES PROGRAMME
APPLICATION OF ENVIRONMENTAL LAW BY NATIONAL
COURTS AND TRIBUNALS
PRESENTATION 4
SCOPE AND CONTENT OF
SUBSTANTIVE
ENVIRONMENTAL LAW
OUTLINE OF PRESENTATION
WHAT IS “ENVIRONMENT”
WHAT IS “ENVIRONMENTAL LAW”
TRANS-DISCIPLINARY NATURE
DIFFERENT LEGAL SYSTEMS
SOURCES OF ENVIRONMENTAL LAW
STATUTORY DEFINITIONS OF
ENVIRONMENT
Definitions of “environment” drawn from national
environmental legislation of several countries
were presented in the Introduction.
(Presentation 1)
STATUTORY DEFINITIONS OF
ENVIRONMENT
The general definition of “ environment” includes:
The entire range of living and non living factors that
influence life on the earth and their interactions.
• Living resources including humans,
This would include: 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.
WHAT IS ENVIRONMENTAL LAW
“The body of law which
contains elements to
control the human impact
on the environment.”
TRANS-DISCIPLINARY NATURE
PHYSICAL
NATURAL SCIENCES
SCIENCES
ENVIRONMENTAL
ECONOMICS
HISTORY
ETHICS
CULTURAL SOCIAL
VALUES SCIENCES
SYSTEMS OF LAW
• COMMON LAW
• CIVIL LAW
• SHARIA LAW
• SOCIALIST LAW
• INDIGENOUS LAW
DEFINITIONS OF ENVIRONMENT •
ENVIRONMENTAL INSTITUTIONS •
JURISDICTIONAL ISSUES •
ENFORCEMENT PROCESSES •
COURT ORDERS AND REMEDIES •
COURT SYSTEMS •
SOURCES OF ENVIRONMENAL LAW
INTERNATIONA
L
LOCAL NATIONAL
THE EVOLUTION OF ENVIRONMENTAL
LAW
NATIONAL
LAWS
NATIONAL
INTERNATIONAL
EXPERIENCE,
ENVIRONMENTAL
INCLUDING
LAW
JURISPRUDENCE
ENVIRONMENTAL LAW AT THE
NATIONAL LEVEL
POLLUTION
CONTROL LAW
PENAL CODES, ENVIRONMENTAL
COMMON LAW, CIVIL IMPACT ASSESSMENT
CODE LAW AND LICENSING
CATEGORIES OF
ENVIRONMENTAL
SUSTAINABLE LAW PLANNING
DEVELOPMENT LAW
NATURAL
CULTURAL
RESOURCES
HERITAGE
MANAGEMENT
LAW
LAW
LEGAL HIERARCHIES IN THE
ENVIRONMENTAL CONTEXT
CONSTITUTIONS
STATUTES
COURTS
REGULATIONS
TRIBUNALS
LICENSES, PERMITS, AUTHORIZATIONS
ADMINISTRATIVE
PRINCIPLE OF SUBSIDIARITY DECISION-MAKING
FEDERAL AND REVIEW
GOVERNMENTS
STATE/PROVINCIAL
GOVERNMENTS
LOCAL
GOVERNMENTS/VILLAGES
ENVIRONMENTAL LAW AT THE
INTERNATIONAL LEVEL
Types of international law, generally:
Multi-lateral Decisions by “Customary”
Agreements International international law
(MEAs) Tribunals
Generally addresses State-to-State obligations
QUESTIONS REGARDING IMPACT OF
INTERNATIONAL LAW AT THE NATIONAL
LEVEL
Has international law been incorporated into
national law?
If so, is it enforceable in a practical sense?
What law prevails in the event the incorporated
international law is in conflict with another
provision of national law?
If the international concept or principle is not
binding, does it nonetheless serve as a source
of persuasive authority?
SOME KEY MULTI-LATERAL
ENVIRONMENTAL AGREEMENTS
Rotterdam
1998 ROTTERDAM CONVENTION ON THE
PRIOR INFORMED CONSENT PROCEDURE
FOR CERTAIN HAZARDOUS CHEMICALS
AND PESTICIDES IN INTERNATIONAL TRADE
Stockholm
2001 STOCKHOLM CONVENTION ON
PERSISTENT ORGANIC POLLUTANTS (POPs)
Lusaka
1994 LUSAKA AGREEMENT ON CO-
OPERATIVE ENFORCEMENT OPERATIONS
DIRECTED AT ILLEGAL TRADE IN WILD
FAUNA AND FLORA
Basel
1989 BASEL CONVENTION ON THE
CONTROL OF TRANSBOUNDARY
MOVEMENTS OF HAZARDOUS WASTES AND
THEIR DISPOSAL
Montreal
1985 VIENNA CONVENTION FOR THE
PROTECTION OF THE OZONE LAYER AND
ITS 1987 MONTREAL PROTOCOL ON
SUBSTANCES THAT DEPLETE THE OZONE
LAYER
Bonn
1992 UNITED NATIONS FRAMEWORK
CONVENTION ON CLIMATE CHANGE AND
ITS 1997 KYOTO PROTOCOL
Rio de Janeiro
1992 CONVENTION ON BIOLOGICAL
DIVERSITY
IMPACT OF MEAs ON NATIONAL LAW
Monist and dualist approaches
Key Question:
Have elements of the MEA become
part of the corpus of domestic law?
RULINGS OF INTERNATIONAL
COURTS AND TRIBUNALS
U.S./ Canada Arbitration International Court of Justice
European Court of Justice
CUSTOMARY INTERNATIONAL LAW
A difficult area – when does a principle
become a “general practice of law”?
Binding versus persuasive force
CONCLUSIONS
ENVIRONMENT IS NOT A SECTOR BUT A DIMENSION OF EVERY
SECTOR
ENVIRONMENTAL LAW IS INHERENTLY TRANSDISCIPLINARY
WHILE THERE ARE COMMONALITIES, ENVIRONMENTAL LAW
MUST BE SEEN WITHIN THE BROADER SYSTEM OF LAW OF
WHICH IT IS PART
COMPARISONS OF ENVIRONMENTAL OUTCOMES UNDER
DIFFERENT LEGAL SYSTEMS CAN BE INSTRUCTIVE
DEPENDING ON THE JURISDICTION, AWARENES OF BOTH
NATIONAL AND INTERNATIONAL ENVIRONMENTAL LAW MAY
BE IMPORTANT
