Environmental Law Notes

Thursday, October 10, 2024 4:26 PM

1. Sources of Environmental Law

There are both national and international sources of environmental law.
Article 144 of the Constitution establishes Namibia as a monist state, which
means international conventions it is a state party to are binding upon it. This
introduces international legislation into the scope of environmental law in
Namibia

1.1 International Law

International Conventions
-There are THREE main international conventions
-United Nations: 1. Convention on Biological Diversity
-The United Nations Convention on Biological Diversity (CBD)
provides a regulatory framework for conserving biological
resources globally. It is unique as the first treaty to address
the potential threats of Living Modified Organisms (LMOs) to
biodiversity. Unlike traditional treaties, the CBD outlines
objectives rather than obligations, recognizing that
developing countries hold most genetic resources and have
the right to manage them within their territories.
2. Convention to Combat Desertification
-
3. Convention to Combat Climate Change
-The United Nations Framework Convention on Climate
Change (UNFCCC) is an international treaty aimed at
reducing greenhouse gas emissions to prevent dangerous
human-caused interference with Earth's climate system. The
ultimate goal of the UNFCCC and its related agreements is to
stabilize greenhouse gas concentrations in the atmosphere
at a level that prevents harmful climate change, allowing
ecosystems to adapt naturally, ensuring food security, and
enabling sustainable economic development.

4. Convention on International trade of Endangered Species of

Fauna and Flora
• Purpose: To regulate international trade in wild animals and
plants to protect their survival.
• History: Formed in the 1960s, a relatively new concept at the
time.
• Importance: Annual wildlife trade is worth billions of dollars,
and unsustainable trade can deplete populations and lead to
extinction.
• Scope: Covers a wide range of wildlife products, from live
animals and plants to food, leather, wood, and medicines.
• Goal: To ensure that trade is sustainable and protects
wildlife resources for future generations.

5. United Nations Convention on the Law of the Sea

Customary International Law

-What states do in their relations with one another and attempt to
understand why they do it, and in
particular whether they recognize an obligation to adopt a certain course,
or, in the words of Article 38,22 we must examine whether the alleged
custom shows ‘a general practice accepted as law."

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1.2 National Law
The Constitution of Namibia (Article 144)

National Legislation
- Environmental Management Act
- Nature Conservation Ordinance

2. Principles of Environmental Law

The Rio Declaration sets out 27 PRINCIPLES OF INTERNATIONAL
ENVIRONMENTAL LAW

1. States have a sovereign right over their natural resources. This means they
may exploit/utilize their environment according to their discretion, including
activities which may harm the environment. This is restricted to the territory
of that nation (e.g. REFER SEALS ARBITRATION 1893.) Although there is
permanent sovereignty, States must exercise this responsibly. This is because
of the 1972 STOCKHOLM CONFERENCE

2. States have an obligation to not cause damage to the environment.

Principle
Human beings are at the centre of concerns for sustainable development.
They are entitled to a healthy and productive life in harmony with nature.

Principle 3
The right to development must be fulfilled so as to equitably meet
developmental and environmental needs of present and future generations.

Principle 4
In order to achieve sustainable development, environmental protection shall
constitute an integral part of the development process and cannot be
considered in isolation from it.

Principle 5
All States and all people shall cooperate in the essential task of eradicating
poverty as an indispensable requirement for sustainable development, in
order to decrease the disparities in standards of living and better meet the
needs of the majority of the people of the world.

Principle 6
The special situation and needs of developing countries, particularly the least
developed and those most environmentally vulnerable, shall be given special
priority. International actions in the field of environment and development
should also address the interests and needs of all countries.

Principle 7
States shall cooperate in a spirit of global partnership to conserve, protect
and restore the health and integrity of the Earth's ecosystem. In view of the
different contributions to global environmental degradation, States have
common but differentiated responsibilities. The developed countries
acknowledge the responsibility that they bear in the international pursuit of
sustainable development in view of the pressures their societies place on the
global environment and of the technologies and financial resources they
command.

Principle 8
To achieve sustainable development and a higher quality of life for all people,
States should reduce and eliminate unsustainable patterns of production and

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States should reduce and eliminate unsustainable patterns of production and
consumption and promote appropriate demographic policies.

Principle 9
States should cooperate to strengthen endogenous capacity-building for Principle of Common but Differentiated Responsibility
sustainable development by improving scientific understanding through
exchanges of scientific and technological knowledge, and by enhancing the
development, adaptation, diffusion and transfer of technologies, including
new and innovative technologies.
Principle 10

Environmental issues are best handled with the participation of all concerned
citizens, at the relevant level. At the national level, each individual shall have
appropriate access to information concerning the environment that is held by
public authorities, including information on hazardous materials and activities
in their communities, and the opportunity to participate in decision-making
processes. States shall facilitate and encourage public awareness and
participation by making information widely available. Effective access to
judicial and administrative proceedings, including redress and remedy, shall
be provided.

Principle 11
States shall enact effective environmental legislation. Environmental
standards, management objectives and priorities should reflect the
environmental and developmental context to which they apply. Standards
applied by some countries may be inappropriate and of unwarranted
economic and social cost to other countries, in particular developing
countries.

Principle 12
States should cooperate to promote a supportive and open international
economic system that would lead to economic growth and sustainable
development in all countries, to better address the problems of
environmental degradation. Trade policy measures for environmental
purposes should not constitute a means of arbitrary or unjustifiable
discrimination or a disguised restriction on international trade. Unilateral
actions to deal with environmental challenges outside the jurisdiction of the
importing country should be avoided. Environmental measures addressing
transboundary or global environmental problems should, as far as possible,
be based on an international consensus.

Principle 13
States shall develop national law regarding liability and compensation for the
victims of pollution and other environmental damage. States shall also
cooperate in an expeditious and more determined manner to develop further
international law regarding liability and compensation for adverse effects of
environmental damage caused by activities within their jurisdiction or control
to areas beyond their jurisdiction.

Principle 14
States should effectively cooperate to discourage or prevent the relocation
and transfer to other States of any activities and substances that cause severe
environmental degradation or are found to be harmful to human health.

Principle 15
In order to protect the environment, the precautionary approach shall be
widely applied by States according to their capabilities. 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.

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Principle 16
National authorities should endeavour to promote the internalization of
environmental costs and the use of economic instruments, taking into
account the approach that the polluter should, in principle, bear the cost of
pollution, with due regard to the public interest and without distorting
international trade and investment.

Principle 17
Environmental impact assessment, as a national instrument, shall be
undertaken for proposed activities that are likely to have a significant adverse
impact on the environment and are subject to a decision of a competent
national authority.

Principle 18
States shall immediately notify other States of any natural disasters or other
emergencies that are likely to produce sudden harmful effects on the
environment of those States. Every effort shall be made by the international
community to help States so afflicted.

Principle 19
States shall provide prior and timely notification and relevant information to
potentially affected States on activities that may have a significant adverse
transboundary environmental effect and shall consult with those States at an
early stage and in good faith.

Principle 20
Women have a vital role in environmental management and development.
Their full participation is therefore essential to achieve sustainable
development.

Principle 21
The creativity, ideals and courage of the youth of the world should be
mobilized to forge a global partnership in order to achieve sustainable
development and ensure a better future for all.

Principle 22
Indigenous people and their communities and other local communities have a
vital role in environmental management and development because of their
knowledge and traditional practices. States should recognize and duly
support their identity, culture and interests and enable their effective
participation in the achievement of sustainable development.

Principle 23
The environment and natural resources of people under oppression,
domination and occupation shall be protected.

Principle 24
Warfare is inherently destructive of sustainable development. States shall
therefore respect international law providing protection for the environment
in times of armed conflict and cooperate in its further development, as
necessary.

Principle 25
Peace, development and environmental protection are interdependent and
indivisible.

Principle 26
States shall resolve all their environmental disputes peacefully and by
appropriate means in accordance with the Charter of the United Nations.

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 Principle 27
States and people shall cooperate in good faith and in a spirit of partnership
in the fulfilment of the principles embodied in this Declaration and in the
further development of international law in the field of sustainable
development.

From <https://www.cbd.int/doc/ref/rio-declaration.shtml>

Main Principles are:

These are also present in s3 of the Environmental Management Act 7 of 2007

 1. Sovereignty over natural resources

 2. Preventative Principle
 3. Co-Operation Principle
 4. Sustainable Development Principle
 5. Precautionary Principle
 6. Polluter Pays Principle
 7. Common but Differentiated Responsibility Principle

3. Compliance and Enforcement

What is compliance?
• This is adherence to legal norms and requirements. Enforcement means
actions taken in response to ensure compliance.

The three main Conventions are the Convention on Biodiversity, Convention to

Combat Desertification and the UN Framework Convention on Climate Change

Convention on Biodiversity

• This influenced the creation of the Environmental Management Act 7 of 2007

• The THREE main aims of this convention are to: PROTECT the environment
and biodiversity, PROMOTE sustainable use of natural resources and ensure
the EQUITABLE sharing of gains/benefits of genetic resources
• This convention requires countries to set up National Biodiversity Strategies
and Action Plans (NBSAP) → these require countries to prepare strategies
and plan activities to fulfill the motives of the convention
• Article 26 of the CBD requires countries to report on their progress of
implementation

Convention on International Trade of Endangered Species

• Requires permits for those owning endangered species

UNCLOS (United Nations Convention on the Law of the Sea):

- Entered into force in 1994 with over 135 parties.
- Broadly addresses maritime issues, including environmental protection.
- Key environmental provisions:
- Extension of sovereign rights over marine resources within 200-mile exclusive
economic zones (EEZ).
- Obligation to adopt measures for managing and conserving natural resources.
- Duty to cooperate globally and regionally for environmental protection and
research.
- Duty to minimize marine pollution, including land-based pollution.
- Restrictions on marine dumping by ships.
- Environmental provisions are general, with no formal reporting process.
- The UN General Assembly monitors large-scale fishing activities and straddling

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- The UN General Assembly monitors large-scale fishing activities and straddling
fish stocks.

Basel Convention (on the Control of Transboundary Movements of Hazardous

Waste):
- Entered into force in 1992 with 142 parties.
- Objectives:
- Reduce transboundary movements of hazardous waste.
- Minimize the creation of hazardous waste.
- Prohibit shipment of waste to countries lacking proper disposal facilities.
- Focus on preventing hazardous waste exports from industrialized to developing
states.
- Annual reporting to the Conference of the Parties (COP) includes:
- Data on transboundary hazardous waste movements.
- Information on waste exports and measures taken to implement the convention.
- Effects of hazardous waste on health and the environment.

UNFCCC (United Nations Framework Convention on Climate Change):

- Entered into force in 1994 with over 178 parties.
- Aims to stabilize greenhouse gas emissions to prevent dangerous interference
with the climate system.
- Principle of "common but differentiated responsibilities" reflecting historical
emissions from industrialized countries.
- Developed countries aim to return emissions to 1990 levels by the year 2000.

UNCCD (United Nations Convention to Combat Desertification):

- Focuses on issues relevant to developing countries.
- Distinctive for its "bottom-up" approach, involving local land-users and non-
governmental organizations.
- Parties must report on their implementation of measures to combat
desertification.

These conventions highlight global consensus on the importance of environmental

protection and the need for compliance to ensure effective environmental
governance.

Environmental Impact Assessments

• Required to be done by s27 of the EMA. This lists out activities that require a
certificate and MAY not be done without it
• This is a tool for assessing the social, environmental and economic impacts of
environmental activities
• This assessment must be submitted to the Environmental Commissioners
office to acquire a certificate
• Makes it an OFFENCE to conduct listed activities without a clearance (s27(4))
• However the Minister may make exceptions (s28) or exemptions to those
who may have already begun operations without the certificate
• S44 requires consultation of affected ministries (e.g. Ministry of Mining)

Procedure

1. Apply to Competent National Authority

2. Application is forwarded to the Environmental Commissioner
3.

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