Framework and Tools for Environmental Management in Africa

3 International Environmental Law: Sources and Fundamentals

Chapter 3 International Environmental Law: Sources and Fundamentals Introduction The earth is plagued with a huge array of environmental problems, due largely to anthropogenic causes. These problems can be categorised as either local or global, depending on the scale or geographical spread of their impact. Though local problems are largely the concerns of nations, because of the apparent localised impact, it is now understood that sooner or later, such impacts will escalate and spread beyond national boundaries and may eventually assume proportions of global concern. Awareness raising and sensitisation campaigns have often been employed to address environmental problems and concerns through changing attitudes. However, this strategy normally takes a long time to produce expected results. Often, extensive damage to the environment results. Therefore, the application of the law to address environmental problems, before they get out of proportion, is an imperative . Shaw (1997) cited Principle 24 of the Stockholm Declaration of 1972 as stating that international matters concerning the protection and improvement of the environment should be handled in a cooperative spirit. Principle 7 of the Rio declaration of 1992 emphasised the need for states to cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the earth’s ecosystems. Cunningham et al. (2003) define laws as rules set by authority, society or custom. Environmental law is defined as a special body of official rules, decisions and actions concerning environmental quality, natural resources and ecological sustainability. Its purpose is to regulate human behaviour and activity in order to prevent worsening situations, in line with Umozurike’s (1995) observation that the absence of rules is an invitation to chaos and anarchy. Addressing major environmental problems requires international effort, mainly through international conventions and treaties. This chapter therefore examines the sources of international environmental law. It discusses some important international environmental conventions that have been put into force. 28 Framework and Tools for Environmental Management in Africa Sources of International Environmental Law Glahn (1970), Hughes (1992), Umozurike (1995) and Shaw (1997) present elaborate discussions and analyses of the sources of international law, which are also applicable to international environmental law. They identify four sources of international law: law-making treaties, international customs, general principles of law and written texts. Each of these are discussed further in the following sections. Law-making Treaties Treaties, known by a variety of names, ranging from conventions, international agreements, pacts, general acts and charters, through to statutes, refer to written agreements whereby partaking states bind themselves legally to act in a particular way to establish particular relations between them (Shaw 1997). Treaties can simply be defined as agreements between two or more states that seek to establish relationships between themselves, governed by international law (Umozurike 1995). Treaties may arise in a number of ways, for example because of pressure from a state, groups of states or an international organisation (Hughes 1992). There are various types of treaties; only law-making ones are sources of international environmental law. Law-making treaties are concluded between a number of countries acting in their own interests, with the intention of creating new rules that are adhered to later by other states, either through formal actions in accordance with the provisions of the treaties, or by tacit acquiescence in observance of the new rules (Glahn 1970). Such types of treaties are instruments through which a number of states declare their understanding of particular rules of law, which establish new general rules governing the future conduct of ratifying or adhering states; abolish or modify some existing customary or conventional rules of law, or create new international agencies. In view of the sovereign nature of modern states, such treaties are initially binding only on states that sign and ratify them. If the initial number of ratifying states is small, the treaties do not create new rules of general international law. At best, only rules of particular or regional application are created. However, as acquiescence to the new laws, or formal ratification of them by additional states increases , and finally, when an overwhelming majority of all states accepts the new rules, they become part of general international law. Although treaties are considered to be an effective and reliable source of international environmental law (Umozurike 1995; Shaw 1997), it is important to note that they may take several years to come into force. They normally take about three stages, as described by (Glahn 1970): 29 International Environmental...