Sources of Environmental Law
SOURCES OF ENVIRONMENTAL LAW
UNIT 2
INTRODUCTION
Content of Unit:
- National Sources of Law
- International Sources of Law
Learning Outcomes:
- Learners should be able to explain the various sources of national law.
- Learners should be able to explain the various international sources of law.
NATIONAL SOURCES OF LAW
According to Article 7 of the Constitution of Zambia (Amendment) Act 2016, the laws of Zambia consist of:
- The Constitution: This is the supreme law of the country.
- Laws enacted by Parliament: These are statutes that have been passed through the legislative process.
- Statutory instruments: These are regulations or rules made by an authority under the powers conferred by an Act of Parliament.
- Zambian Customary Law: This refers to practices and norms that are consistent with the Constitution.
- Laws and statutes which apply or extend to Zambia: These are laws that may be applicable in Zambia by virtue of their enactment or otherwise.
The sources of environmental law in Zambia can therefore be derived from:
- The Constitution
- Acts of Parliament
- Common law principles
- Judicial precedents
THE CONSTITUTION
The Constitution is regarded as the most fundamental law of the land, and all other laws must comply with it to be valid. Relevant articles include:
- Article 43 (1) (C)(D) of Act No. 2 of 2016:
- States that, “A citizen shall protect and conserve the environment and utilise natural resources in a sustainable manner; maintain a clean and healthy environment.”
- Article 151 of Act No. 2 of 2016:
- Provides for the establishment of a local government system, specifically under Article 151 (2)(F) which mandates the local government to promote a clean, safe, and healthy environment.
- Article 255:
- Addresses the principles of environmental and natural resources management and development.
- Article 256:
- Focuses on the protection of the environment and natural resources.
ACTS OF PARLIAMENT
Parliament is the arm of the state empowered to make laws applicable in the country. The laws enacted by Parliament are known as Acts of Parliament.
- The principal source of environmental law in Zambia is the Environmental Management Act No. 12 of 2011.
- Section 3 of the said Act stipulates that, subject to the Constitution, the Environmental Management Act shall prevail in all matters of environmental protection and management when inconsistencies arise.
- Section 76 of the EMA provides for the recognition of other statutes which operate alongside the EMA in matters of environmental management.
COMMON LAW PRINCIPLES
Common law principles are those which have evolved through usage in Courts of Chancery, and have achieved normative status over time. Generally, a custom that has been widely accepted for dealing with environmental matters can qualify as a source of environmental law.
This aspect of law serves as a reserve law to fill in gaps where local legislation is silent.
JUDICIAL DECISIONS
The courts also serve as a source of law wherein interpretations of statutes as applied in judicial proceedings result in binding judicial precedents.
- For example, the case of Martha Kangwa and 29 Others v ZEMA and Others (SCZ No. 49 of 2014) illustrates how judicial decisions can contribute to the development of environmental law in Zambia.
INTERNATIONAL LAW
International Environmental Law is a sub-sector of international law, which has evolved significantly over time. A substantial component of international environmental law is comprised of multilateral environmental agreements (MEA).
According to Article 38 (1) of the Statute of the International Court of Justice, the following are recognized as sources of international law:
- International conventions or treaties
- International customs
- General principles of law recognized by civilized nations
- Judicial decisions and teachings of highly qualified publicists
INTERNATIONAL CONVENTIONS AND TREATIES
Article 2.1 (A) of the Vienna Convention on the Law of Treaties 1969 defines a treaty as an “international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”
The term „treaty“ serves as a generic name, encompassing various designations, including convention, agreement, pact, protocol, charter, statute, covenant, accord, or memorandum of understanding (MOU).
INTERNATIONAL CUSTOMS
International law can also arise from customary practices among states. Historically, before treaties gained importance, customary international law was the dominant source of international law.
The principle that has gained customary status becomes obligatory for states once recognized, constituting a binding rule of conduct.
Two criteria must be met for a rule of international customary law to be established:
- The state practice should be consistent with the so-called ‘rule of constant and uniform usage’.
- The existence of this state practice must be based on the belief that it is required by law.
GENERAL PRINCIPLES OF LAW
There is no universally accepted list of principles of law. However, commonly accepted principles generally encompass those found in the international legal system and those that are predominant in major national legal systems around the world.
JUDICIAL DECISIONS AND TEACHINGS OF HIGHLY QUALIFIED PUBLICISTS
Decisions from the International Court of Justice (ICJ) and academic commentary significantly influence international environmental law. The resolutions made during the Conference of the Parties (COP) to any MEA, along with declarations or statements from these conferences, contribute to the evolution of legal frameworks in the field of international environmental law.
QUESTIONS
- What are the sources of environmental law at the national level and at the international level?
- Classify the following as the type of source of law it represents:
- The Kyoto Protocol
- The Vienna Convention
- Environmental Management Act No 12 of 2011
- Martha Kangwa and 29 others v ZEMA and others SCZ Judgment No 49 of 2014