Session 8: Law and Environment

John Mubangizi - International Environmental Law and the South African Legal System
School of Law, University of Durban~Westville

International environmental law covers a vast legal field. Due to the dynamic nature of international law generally and environmental law in particular, the enormity of knowledge in this area is inexhaustible. The paper will therefore deal with the most salient aspects of international environmental law, the latest developments and how the South African legal system provides for the invocation thereof. No discussion of international environmental law would be complete without mentioning the relationship between international human rights law and the environment. And so it is to this that the paper first draws our attention.

The paper will then briefly look at the process of international environmental law making. This will entail a discussion of the traditional sources of international environmental law and recent innovations in international law making. The most important source of international environmental law (treaties) will then be discussed with a view of throwing some light on the legal framework that governs certain aspects of international environmental protection. The treaties (or conventions to be discussed will fall under the following general categorisation:

- The Earth Summit: Biodiversity and global climatic change
- International trade and environmental protection
- Pollution control (marine, atmospheric, hazardous waste and unclear pollution)
- Nature conservation and wild life protection.

The discussion will then turn to the relationship between international environmental law and the South African legal system. This will be seen against the background of the principal ways by which a treaty becomes part of municipal law through an act of legislative transformation. The relationship between international environmental law and the South African Constitution (Act 108 of 1996) will also be discussed. In particular sections 231(4) and 232 will be analysed. These provisions relate to the incorporation of international agreements and the position of international customary law in South Africa.

Another important link between international environmental law and the South African Constitution is to be found in the Bill of Rights (Chapter 2 of the Constitution). Section 24 guarantees everyone 'the right to an environment that is not harmful to their health or well-being'. It also provides for the right 'to have the environment protected, for the benefit of present and future generations …'. The interpretation of section 24, and indeed all other sections of the Bill of Rights, is governed by section 39 which inter alia, obliges the court to consider international law. The importance of these provisions will be highlighted, and it will be concluded that South Africa has made tremendous strides in incorporating international environmental norms through constitutional mechanisms. It will also be seen that South Africa is a party to numerous international environmental treaties relevant to environmental protection. It will then be concluded that in spite of the problems inherent in the enforcement of environmental laws through international mechanisms, such mechanisms still provide a strong basis for the conservation of the environment and the control of environmental hazards in South Africa.

Paul Street - Law, Civil Society, and Transnational Environmental Advocacy Networks
Department of Law, University of Wales, Aberystwyth, Hugh Owen Building, Penglais, Aberystwyth, Ceredigion, SY23 3DY, UK.

Environmental civil society organisations posses in a number of national jurisdictions and in strictly defined situations, the capacity (standing) to challenge the implementation of environmental law. The possible role of NGOs in International Law is however, at least in theory, limited by the notion that they have no international legal personality. Nevertheless the undeniable influence of NGOs in international environmental law remains highly visible. In addition to the organisation of parallel meetings to many major conferences, Civil Society Organisations have increasingly participated directly in the work of international legal organisations beyond their role as observers and lobbyists.

The fourth conference of the parties to the 1979 Bonn Convention on The Conservation of Migratory Species of Wild Animals, for example, specifically called on parties to consult and share information with NGOs as well as inviting their participation in further agreements under the convention. The contributions of the IUCN, IWRB, ICBP and WWF have been formally recognised by the parties to the 1971 Ramsar Convention on Wetlands while, not only did the WWF, amongst others, play a significant role in upgrading the African elephant to Appendix 1 of the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITEs), the work of the CITEs secretariat in ensuring implementation and compliance with the Convention is aided by TRAFFIC an NGO formed by the WWF and the IUCN. Similarly it should not be forgotten that local NGOs are often both the conduit for funds and the means for governmental and international governmental organisations to implement policies on the ground

Perhaps more surprisingly, limited possibilities for the participation of NGOs in the dispute settlement process of the World Trade Organisation have begun to open up. Following the decision of the appellate body in the US Shrimp/Turtle case, amicus curiae briefs now provide a means through which the position of NGOs on a dispute can be heard. Until recently a number of unsolicited amicus briefs had been submitted to five WTO panels, however, the appellate body in the EC - Asbestos case, this year took the, until then, unprecedented move of soliciting briefs for their consideration.

This paper examines the role of non-state actors and transnational environmental advocacy networks in the making and implementation of international environmental law. It considers the potential future possibilities available to NGOs to influence and participate in the work of international institutions, against a wider discussion and analysis of the concept, meaning and implications of global civil society. In so doing the paper examines some of the problems that arise in relation to transnational environmental advocacy networks, especially as regards their perceived legitimacy, or lack of such. By so doing, this paper begins to not only assess the potential transformative nature of civil society organisations in seeking to achieve environmental justice, global or otherwise, but also provides an insight into the true nature of the creation, implementation and potential of international environmental law.

Rosalind Malcom - The new Integrated Product Policy paradigm and the Achievement of the Objectives of Environmental Protection and Sustainable Development
University Director in Law, School of Language, Law and International Studies, University of Surrey, Guildford, Surrey GU2 7XH

Environmental policy at European level is thorough and comprehensive and places sustainable development at the heart of European Community law. References to environmental protection and sustainable development are at the forefront of the Treaty of Amsterdam and the integration of these aims across the spectrum of European laws is an avowed principle. The 6th Action Programme for the Environment, "Environment 2010: Our Future, Our Choice" proposes, as one of five approaches to achieving environmental improvement, that business and consumers should play a greater role in achieving more environmentally sound products and consumption. The development of a new approach in achieving this is reflected in the Green Paper on Integrated Product Policy. This Green Paper proposes that product-related environmental policies will be developed which will promote the development of a market for greener products.

Traditionally, regulation has been the major determinant in achieving environmental improvements, and, indeed, clear and specific regulation is generally welcomed by industry. But the new approach flagged by the 6th Action Programme and reflected in Integrated Product Policy has key differences to the traditional approach. Existing environmental policies work on sectoral or vertical lines. Integrated product policy takes a horizontal approach and, in this, represents a new paradigm. The manner in which it will be linked to the traditional controls remains unclear and issues need to be addressed as to the extent to which it will be possible to achieve a satisfactory enforcement of this approach.

This paper looks at some of the issues surrounding the possible implementation of the new approach to environmental protection posited by the integrated product policy initiative and considers some of the key points relating to successful enforcement.