LWM735: Environmental Law & Policy
INTRODUCTION the 1st major international report on the environment. It places the issues
‐ Difficult to define but normally relates to “surroundings”. Obviously, is a
concept that is related to whatever object that is its surrounding, used in that
sense environmental law could include virtually anything. As Einstein once
remarked “the environment is everything that is not me”. However, the
environment has taken on a rather more specific meaning though still vague
and a general one and may be treated as covering the physical surrounding
that is common which included air, space, water, land, plants and wildlife.
UNC on the Human Environment (1972): Natural resources of the earth
including air, water, land, flora and fauna…. must be safeguarded for the
benefit of present and future generation….”.
‐ Section 2 of the EQA 1974.
‐ May include the natural/urban or built/social or work environment and could
include everything under the sun. On the one hand, EL can be neutral,
responding to gradually changing political and social values or it can be
political, setting the agenda for social change.
‐ Challenges: To find new solutions to long-standing environmental problems &
to address new dangers posed by the problems.
‐ The underlying philosophies and beliefs of the society are reflected in its EL in
the forms of traditional practice, taboo, CL judgment or statute.
‐ The customs and beliefs of the earliest civilizations included EL safeguarded.
Legal responses to Environmental challenges such as floods and droughts
were included in the 1750 BC Code of Hammurabi of Babylon.
TYPES OF EL
(1) Aboriginal or Customary Law
‐ The aboriginal law in Australia that had recognized that their survival is
tied directly to their use of the land and because of this, traditional
customs and practice evolved to conserve the land. It is spiritual in nature
passed through storytelling and ceremony. It achieved ecologically
sustainable land used. For e.g., the tribe, Aranda has a ceremonial site,
‘PinaraKutata’ and 1.5 km or more area around them is protected area
except for ceremonial purposes. Meaning that no hunting or food
collection is allowed in that area.
‐ They also have agricultural practices of which during the dry season, they
would only burn small areas of land for cultivation. It helps to maintain a
variety of habitats for plants and animal species, as well as limiting the
likelihood of widespread bushfires.
(2) Religion and the Environment (ethics)
‐ Muslim: The Holy Quran stated that men are sent down to earth as
vicegerence.
‐ Christian Theology also justified humanity’s dominion over the earth-
colonialism. It is God’s given duty and right.
‐ Buddhism: humans are considered as part of the living would rather than
superior to it.
(3) English law & Property Rights
‐ Anybody can do whatever on their land without interfering of another’s
land. It also included a duty to protect the neighbourhood form hazard
such as fire. But, in new EL, had rejected this idea of absolute land
owner’s right. They allowed to use their property freely but subject to
control on pollution to air, water and land.
(4) Judge-made law
‐ It also known as CL because it derived from the decisions of judges based
on the facts before them and used principles derived from past cases. CL
can be seen as protecting individual interest over common interest
because CL is made by judges and much depends on how willing the
judge is to reinterpret the old principles to achieve justice in a changing
society.
‐ Most judges are common conscious and more incline to leave reform to
the Parliament. As result, the importance of the CL has declined and
today statutes provide much more regulations of EL.
(5) State Law & Environmental Protection
‐ The advantage is that in a democratic system, the parliament can express
political decision in their law. It also can adapt more quickly to the
changing problem or community expectations, than can a judge who must
wait for cases to come before them.
(6) Delegated Legislation
‐ Which parliament gives to another authority such as the minister of natural
resources and the environment, the power to make more detailed rules.
(7) IL
‐ International conventions or agreement only bind those countries which
choose to sign and it will cause difficulties because some countries will not
sign if the convention provides for strong action against transgressors.
‐ Effects: a statement of the rights and obligations of government and may
encourage government action or legislation on the issue & a ground upon
which the federal government can legislate for environmental protection.
EL ISSUES
(1) SUSTAINABLE DEVELOPMENT
‐ To implement principles to enable the development and economic activity
to interact.
‐ There has been extensive debate internationally about how to do this.
The principle of ‘sustainable development’ has been suggested as one
possible means of continuing simultaneously the need for environmental
preservation and the need for economic activity.
‐ In theory, it meets the needs of present generation without compromising
the ability of future generation to meet their needs. It became popular
after the publication of “Our Common Future” in 1987 (The Brundtland
Report). This was the report of the UN World Commission on Environment
and Development (WCED) (control exploitation of the materials). This was
Abd Shukor Bin Mohd Yunus
of the environment and development squarely on the world stage. WCED
was established by the GA of UN at the end of 1983.
‐ Duty of WCED: to examine the critical issues and to formulate proposal for
action to deal with them, to strengthen international corporation on
environmental and development and assess new forms of co-operation
and to raise the level of understanding on the part of all sectors of the
international community.
‐ It provides an overview of the inter-linked problems. It recognized the
effect of human activities can no longer be neatly separated from the
environment.
‐ The report, links environment and development, the commission stated
that environmental degradation caused by for example pollution, which
resulted from human activities is the result of development. To protect the
interest of future generation and the environment the very nature of
development needs to be changed.
(2) ECOLOGICALLY SUSTAINABLE DEVELOPMENT
‐ Is the exploitation of plants, animals and other resources at a level which
allows the number and variety of species to remain much the same from
generation to generation?
‐ Because if the resources are not used sustainably then in future, people
will be deprived of the ability to fulfil their needs.
‐ To achieve ecologically sustainable development, human impacts must be
limited so that the biosphere can absorbed them in the long term.
‐ This requires: -
 Changing from quantitative growth to qualitative growth;
 Ensuring that essential human needs are met at both international and
national levels;
 Ensuring a sustainable level of population;
 Conserving and enhancing the resources base;
 The development of environmentally appropriate technologies (pro-
environment); and
 Ensuring that environmental considerations are adequately taken into
account in economic decisions.
(3) SUSTAINABLE DEVELOPMENT AND THE LAW
‐ Legal principles: (1) Article 1 (Fundamental HR), Article 2 (Conservation
for present and future generation & Article 3 (Responsibility of the State)
‐ States shall maintain ecosystem and related ecological processes,
essential for the functioning of the biosphere in all its diversity, in particular
those important for food production, health and other aspects of human
survival and sustainable development.
‐ Besides, maintain maximum biological diversity by ensuring the survival
and promoting the conservation in their natural habitat of all species of
flora and fauna in particular those that are rare, endemic or endangered.
‐ To observe the exploitation of living natural resources and ecosystem, the
principles of optimum sustainable yield.
(4) SUSTAINABLE LIVING
‐ Is central principle of an important book “Caring for the Earth: A Strategy
for Sustainable Living” (1991). The strategy’s definition of Sustainable
Development is improving the quality of human life while living within the
carrying capacity of supporting ecosystems.
‐ 9 principles for achieving a sustainable society: respect an care for the
community life, improvement of the quality of human life, conservation of
the earth’s vitality and diversity, minimization of the depletion of non-
renewable resources, keeping within the earth’s carrying capacity,
changing personal attitudes and practices (environment), enabling
communities to care for their own environment, provision of a national
framework for integrating development and conservation and creation of a
global alliance.
MAJOR ENVIRONMENTAL PROBLEMS
(1) Water pollution
‐ Susceptible to pollution.
‐ The shallow coastal waters where most human and industrial effluent is
dumped are also the most productive areas of the ocean. Pollution in
coastal waters jeopardizes an important recreation area for humans and
an important habitat for many animal and plant species. Polar oceans are
too cold to support most of the micro-organism that break down pollutants
(from waste material etc.)
(2) Land Degradation
‐ This occurs when land have lost its vegetative cover and is significantly
less or are no longer productive. Every year, 6-7 million hectares of
agriculture land are lost because of erosion. Another 1.5 million hectares
are lost water logging, salinization and alkalinisation. These losses are
the result of mismanagement of agriculture land and will continue to affect
the world’s potential for food production.
(3) Forest Destruction
‐ Loss of cover over the earth significantly affects both the global climate
and biodiversity.
‐ Forest provides habitat for millions of plants and animal species, many of
which had never even been described. Forest destruction is caused in
many countries by land clearing for agricultural and urban expansion.
‐ The ecological consequences of deforestation are well known. Soil
erosion, loss of water retention and supply, silting of rivers and flood,
climate change and loss of fauna and flora.
‐ In order to stop this, market for natural product from forest can be found.
For example, rubber tapping in the Amazon, Basin, in South America,
there is less incentive to clear the forest for agriculture.
(4) Atmosphere Pollution
1|P a g e
LWM735: Environmental Law & Policy
‐ Acid Rain
 Humans continue to pump billions of tones of contaminants into the
atmosphere each year. One of the result is acid rain which occurred
when Sulphur and nitrogen oxide are released into the atmosphere by
bush, savannah and forest burning, by smelters, fossil-fueled, power
stations, oil refineries and car exhausts.
 It became increasingly acidic as oxides are transformed into acids by
rain water forming acid rain. Acidification inflicts serious damage on
many ecosystems. In forest and agriculture lands, vegetation is
scared by acid rain and roots are damages by the increased acidity of
the soil.
 It will kill fish and other aquatic organisms due to changing of the
natural pH level in the waterway is seriously disrupted.
 In Canada, 170 thousand lakes are biologically dead because of
acidification and over 150 thousand are damaged by acid rain.
‐ Climate Change and Ozone Depletion
 Results from human activities. The greenhouse effect is the gradual
heating of the planet due to the changes to the atmosphere. The
heating is caused by increasing concentration of certain trace gases in
the atmosphere for example carbon dioxide, methane, CFC etc.
 This will result in climate change throughout the world and eventually
triggers the melting of polar ice caps causing sea level to rise.
Several small island countries, in the Caribbean and the Pacific would
be badly affected and even completely disappear if the sea level
continues to rise.
 Ozone depletion is caused by the release of substance, which react
with ozone in the stratosphere and destroy its ability to filter out ultra
violet radiation. One of the impacts already detected is an increase in
skin cancer rates in humans.
INTERNATIONAL EL
(1) International Challenges
‐ Problem Crossing National Boundaries
 Pollution crosses state and country boundaries such as the accident
in Chernobyl (Soviet Union) (1986) caused the release of large
amounts of radioactive material into the surrounding atmosphere
across much of Europe.
 It is estimated that the nuclear accident there cost the then SU 200
billion dollars. Currently, the compensation to other affected countries
has not been paid.
 Fatal and non-fatal concerns have been estimated to range from 10k
– 100k and ¼ of a million people were evacuated while others are still
waiting to be re-housed. The EC banned sales of contaminated
agriculture produce and livestock.
‐ Problems in Protecting the Global Commons
 Areas shared by all the nations include the oceans outside the
territorial seas of any country beyond the 12 nautical miles of ocean
controlled by each country bordering on the ocean.
 The atmosphere, deep space and Antarctica. These areas are known
as the ‘global commons’.
 It is difficult to protect the environmental in the Global Commons
because no single nation has complete control over these areas.
There are now many problems that have international consequence.
For example, acid rain, urban smog, ozone depletion, global warming,
toxic chemical, marine pollution, habitat destruction, deforestation and
land degradation.
‐ National Pride and Power
 The power of nations to control their own affairs is called sovereignty,
is important to many governments. Governments are very reluctant to
give up their power which means that they are not always in favour of
international law which try to regulate what they must do about
protecting the environment. Without an institution that can provide
and implement law as and sanctions, international EL remains weak.
‐ Limited Rights of Individual.
 Currently, IL generally recognizes nations rather than individuals. If
an individual suffers environmental harm caused by another nation,
that individual will not have the right to sue, the nation directly.
Instead, the individual will have to rely on the ability of its country to
negotiate a settlement with the offending nation.
 But there are the problems because it is often extremely costly,
complicated and time consuming, the victim country often has little
interest in pursuing a claim against another nation and if successful, it
would open to similar claims in the future. This may explain why not
one nation with people adversely affected by the Chernobyl nuclear
reactor accident has pursued a claim against SU on their behalf.
Besides, perhaps most importantly, unless the offending nation has
entered into a binding treaty to compensate foreign nationals for
environmental damage than there is really very little that can be done
to require compensation.
‐ Different National Attitudes, Laws and Resources
 Each country has a different approach to its own environmental
problems. Because of their economic difficulties, many developing
countries have concerned about environmental protection, urged on
them by developed countries. Such environmental concern, can
seemed to be more of a luxury than a necessity when they have such
pressing economic problems.
‐ Multinational Companies
Abd Shukor Bin Mohd Yunus
 It’s operated throughout many parts of the world today. They are very
powerful because of their extreme wealth. Some have more money
than several smaller countries put together.
 It can be difficult for smaller and sometimes even larger countries to
regulate the environmental activities of these Multinational Companies
such as in December 1994, disaster at the Union Carbide factory at
Bhopal, India which released of a large chemical cloud that caused
many death and injury to thousands. There has been a lot of
discussion about whether the large US parent company was
responsible for the injury caused by the subsidiary in India. In
February 1989, the US Company agreed to pay 470 million dollars in
compensation to the victims of this disaster. The Indian Supreme
Court made orders giving effect to the settlement.
 The standard end effectiveness of laws of all kind varies between all
countries. There are no uniform environmental protections laws
worldwide. Lack of uniformity means that foreign companies can
operate under much less strict law in many developing countries than
in their home countries. This can lead to major difficulties such as in
regulating toxic chemicals in developing countries.
 The crisis in Ethiopia (1985-1986) tragically illustrates how
development and the environment or more precisely the economy and
ecology can interact destructively.
 Many African nations took huge debts in order to develop and
modernize their countries. Many of these countries relied on
agriculture, to repay these debts. Trade barriers made it hard for the
African developing countries to sell their agriculture goods.
 With little other than agriculture goods to sell, they overused their
fragile soil to grow more but this only reduced prices because of the
excess supply and made it even harder to repay the debt. This in turn
put yet more pressure on African farmers to continue to overuse their
land. Erosion resulted, turning the fragile land into desert and causing
famine.
TYPES OF INTERNATIONAL EL
(a) Treaties and conventions
‐ It is an international document and much of the international EL existed in
these documents. These agreements made between 2 or more countries
and some are adopted through the UN.
‐ E.g.: Convention Concerning the Protection of the World Natural and
Cultural Heritage 1972. Under this convention, such countries that agreed
can nominate areas of natural cultural heritage for inclusion on a world
heritage list. An international committee (the World Heritage Committee)
which decides what to include on the list considers nominations. Parties
to the convention agree to protect their own heritage through legal
scientific and financial means.
‐ 2 or more countries may be parties to a treaty. The treaty will become
binding when the parties agree it to bind them. Usually, it is when the
treaty is a ratified, accepted, approves or acceded to.
(b) Declarations
‐ The declarations do not provide binding obligations on countries but often
contain significant statements about environmental rights at international
level. These statements may provide the basis for future treaties and
conventions or the impetus for action by the nations that adopts the
declarations.
‐ e.g.: Stockholm Declaration (Stockholm in 1972) – Conference on Human
Environment. Principle 21 is perhaps the most widely known that
recognized a state’s right to exploit its own resources but also imposes a
duty on a state not to cause damage to the environment of other states or
to the global commons.
‐ Other UN Conferences that held in Nairobi, Kenya (1982) and in Rio De
Janeiro, Brazil (1992). The Rio Declaration or the Earth Charter or Earth
Summit is a non-binding declaration of principles of rights and obligations,
on environment and development upon which the participating states who
wish to sign the declaration will be morally (but not legally bound) to
adhere these principles. There are 27 principles in the declaration. It was
decided by a consensus agreement to approve and adopt the text of the
Rio Declaration, together with its important subsidiary – Agenda 21.
Agenda 21 covers 115 program areas and almost all are relevant to
ASEAN. It is an action plan for the 1990’s and into the 21st century. Its
successful implementation rests with the government.
(c) ICJ and International Arbitration
‐ ICJ is the main court of the UN which consisted of 15 judges, representing
the various geographic, social and political differences throughout the
world. Only nations can be parties before the court.
‐ Not all national government have agreed to take part in the ICJ
proceedings. Some countries will not appear and while many countries
only appear subject to certain conditions. Australia has agreed to
unconditional appearance as a defendant to a claim by the Government of
Nauru (previously under control as trustee on behalf of the UN’s
Trusteeship Council).
‐ It also gives opinion on legal questions at the request of UN.
(d) Customary IL
‐ It is not contained in conventions/treaties. It is similar to CL in that it
develops from traditional practices. It applies between nations rather than
within the legal system of one country. Most countries accept as long as it
is not inconsistent with their domestic law.
‐ The principle has developed that one state owes a duty to stop acts which
would cause harm in another state. This basis applied to problems of
trans-boundary pollution.
‐ Another emerging principle is the duty of a state to inform other states of
activities posing a risk of environmental harm.
2|P a g e
LWM735: Environmental Law & Policy
‐ e.g.: Nuclear Plant at Chernobyl and the accident at the Sosnovy Bor
nuclear plant (Russia) that illustrated problems of ecology versus economy
and IL issues. Accidents in any of these plants could seriously affect
neighbouring states as well as the global commons.
UN
(a) Come after the 2nd WW on 24.10.1945.
(b) Functions of UN include the development of friendly relations between nations,
cooperation in solving international conflict and resolving important world
issues relating to social, cultural, economic and environmental matters.
(c) UNEP
‐ Related to environmental matters and its primary purpose is to limit or
prevent damage to the environment. It can undertake scientific studies to
determine problem areas and how best to protect it.
‐ It runs programs concerned with threatened species, genetic resources
and outstanding ecosystems. It also collaborated with other international
organizations such as the World Meteorological Organization and
International Council of Scientific Union in studying the greenhouse effect.
‐ Standard drafted documents: 1972 Stockholm Declaration World Charter
for Nature & UNEP’s 2000 and Beyond.
(d) Environmental issues and other UN Agencies
‐ WHO tries to attain the highest possible level of health for all peoples and
included studying and helping to eradicate environmentally related disease
caused by pollution or hazardous materials (respiratory problem)
‐ FAO aims to improve the production and distribution of agricultural
products. Part of its objective is to introduce ecologically sound methods
of production and ways in which to prevent the erosion of the valuable
farmland.
‐ UNESCO developed programs to enhance educational and scientific
development. As part of it mission, UNESCO tries to raise the world’s
awareness of environmental problems and issues.
ENVIRONMENTAL ISSUES AND OTHER INTERNATIONAL AGENCIES
(a) The World Bank (WB) and the IMF
‐ To promote international monetary cooperation especially between
industrialized and developing countries. Both can help the environment by
financially supporting environmentally sound projects and policies. The
WB has claimed to implement guideline to assess its projects on
environmental grounds but these only applied to a small number of
projects funded by it. The environmental section of the bank is relatively
small and does not appear to be implemented into the bank’s main
decision-making structures.
(b) The World Commission on Environment and Development (WCED)
‐ Set up by UN as an independent body to write a report about the state of
the environment and development in the world. Significant report is “Our
Common Future” in 1987 or Brundtland Report. It included a need for
major changes in the way development is carried out. It uses the concept
of “Sustainable Development”.
(c) ILC
‐ Established by UN on 21.11.1947 on primary purpose is to promote the
progressive development of IL and its codification. ILC will look at the
area where IL is not well developed and tries to formulate appropriate
rules.
(d) A New World Court of the Environment
‐ It was started in 1989 by 27 countries within the UN. Another meeting was
held in March 1991 but yet successful.
THE ROLE OF NGO AT THE INTERNATIONAL LEVEL
(a) IL is traditionally the law of nations and NGO can be parties to. Eg are
Greenpeace and Friends of the Earth. UN has traditionally only recognized
governments as having voting rights, and have not recognized NGO’s.
(b) NGOs can get ‘consultative status’ by going through a lengthy approval
process administered by the UN. This means that they can send a
representative to UN’s meetings and observe and receive UN’s documents
and materials. They can address the UN but cannot vote. It can be seen
thorough the Environmental Liaisons Centre (ELC) at Nairobi, Kenya. It
consisted 230 NGOs member groups with the majority from the developing
countries.
(c) It has been permitted at international level such as Greenpeace and Friends of
the Earth for participating in diplomatic session about treaty to protect
Antarctica.
(d) They are able to provide scientific and technical material to smaller countries
which do not have enough resources to participate fully in international forums.
(e) NGOs are trying to influence the behavior of nations so that decisions are
made at the international level to protect the environment.
(f) Funds come from a variety of sources depending on the policy of the
organization.
(g) The International Union for the Conservation of Nature (IUCN) is one of the
important environmental NGOs. It was formed on 1948 as an independent
organization to promote the wise use of the earth natural resources. The World
Conservation Union has a membership of governments, governments’
agencies and NGOs from over 111 countries.
(h) IUCN is a respected body internationally and is invited by the UN to participate
in the development of conventions and monitoring programs at the
international level. One of the achievement is to provide date on species and
eco-systems form any part of the world quickly and easily.
INTERNATIONAL ENVIRONMENTAL ISSUES AND LAW
(1) POLLUTION
‐ Pollution of air and water across a national boundaries/town (trans-
boundary pollution) has been a problem in many parts of the world for
Abd Shukor Bin Mohd Yunus
much of the century. The 1st major international decision is the Trail
Smelter Case (1941).
 The case was an arbitration about damages claimed by the USA from
Canada for trans-boundary pollution. Sulphur dioxide fumes from
Canadian Smelter were carried by the wind across the border into the
US and caused damages. The dispute was brought before an
international arbitration panel. The tribunal accepted the principles
that ‘a state has a duty to protect other states against injurious acts by
individuals from within its jurisdiction’.
 Concern has also arisen over the depletion of the stratospheric ozone
layer that shields Earth form UV radiation. This let to the Vienna
Convention on the ozone layer (1985) which designed to reduce
activities which deplete the ozone layer.
 The Protocol on Substance that Deplete the Ozone Layer 1987
(Montreal Protocol) required that countries accepting the protocol
reduced the CFC production by 50% by 1999.
(2) WHALING & DRIFTNETTING
‐ Under the 1946 Convention, for the Regulation of Whaling almost all major
whaling countries agreed to regulate whaling in all waters of the globe.
‐ The International Whaling Commission (IWC) decides what species of
whale are listed and hence protected. Annual catch quota is set for each
species of whale.
(3) WETLAND PROTECTION
‐ It provides an essential habitat and also valuable breeding grounds.
Around the world however wetland areas are being drained and reclaimed
for agriculture and urban use.
‐ The Convention on Wetland of International Importance Especially as
Waterfowl Habitats (Ramsar Convention) was drawn up and signed in
1971 at Ramsar, Iran.
‐ States that have ratified are required to promote the conservation of sites
and to encourage recognitions of their unique importance but the
convention cannot compel nations to protect their wetland.
(4) World Cultural & Natural Heritage
‐ The convention was adopted in 1972 which designed to provide a
framework for the protection of areas of ‘outstanding universal value’.
‐ Definition: -
 Cultural heritage: monuments or groups of building etc.
 Natural heritage: natural features which are physical, biological and
geological formations.
‐ It was controlled by the World Heritage Commission. There was also a
World Heritage in Danger.
(5) ENDANGERED SPECIES
‐ AKA international convention concerns the protection of endangered
species.
‐ The Convention on International Trade in Endangered Species of Wild
Flora and Fauna in 1973. It regulated international trade on wild animals
and plants which are listed in 3 separate appendixes to the convention.
The aim is to protect endangered species which are traded around the
world.
(6) ANTARCTICA
‐ Is a hostile an environment to humans that it has received little attention?
Currently, it has been found to contain substantial mineral resources ang
there have been proposal to mine the region.
‐ Antarctica Policy in 1959 was participated by 12 countries. The treaty
provided that Antarctica must be used for peaceful purposes. It banned
nuclear weapons and military activities from the region.
‐ A framework to regulate future exploitation of Antarctica’s mineral
resources was approved by Antarctica Treaty Countries when they agreed
to approve a convention on the Regulation of Antarctica Mineral
Resources Activities in 1998. A set of rules governing the extraction of oil,
gas and minerals is contained in this agreement. The convention did not
come into force until it had been ratified by at the least 16 out 20
Antarctica Treaty Members. The convention required only 2 more
signatures to come into force in 1989.
‐ On 4.10.1991, the Australian Government together with 26 other
consultative parties who are now signatories to the treaty, signed the
Madrid Protocol to this Antarctica Treaty. This protocol deals with many
environmental matters including marine pollution, waste disposal and
protection of flora and fauna. It bans mining of mineral exploitation in
Antarctica for 50 years.
LAW OF THE SEA
‐ It governs those areas beyond the territorial limits of costal states. Originally
this limit was 3 nautical miles but now the limit up to 12 nautical miles.
‐ Countries can also declare zones of up to 200 nautical miles (Exclusive
Economic Zone/EEZ).
‐ In 1974, UN organized the Law of the Sea Conference and detailed in Law of
the Sea Convention. This was finally signed in Jamaica in December 1982.
The rules are: -
 Determining who has jurisdiction over areas of the sea;
 Who is allowed to use area of the sea for activities;
 Deals for who is responsible for regulating navigation, fishing or mining;
 Who should enforce standard of conduct set down in the convention to
prevent ocean pollution or dumping of material at the sea;
 The status of land-locked countries and provides that the land-locked
countries have the right to participate on a fair basis, in the exploitation of
any fishery surplus of coastal states in the region.
3|P a g e
LWM735: Environmental Law & Policy
ENVIRONMENTAL LAW IN MALAYSIA
INTRODUCTION
‐ The legal system was introduced in Malaysia with the arrival of the British in
1780’s. the early legal system was rather arbitrary in nature because persons
who were in charge of the law were mostly military personnel. Before arrival
of the British, the populations have already their own legal system which was a
mixture of Islamic law and customary law.
‐ In the Straits Settlements, the CL and equity was applied by virtue of the Royal
Charters of Justice that was introduced in Penang (1807). While in Malay
States, the reception of the CL and equity was implemented through the
Residential System by the Treaty of Pangkor (1874).
Modern EL
‐ Early response to environmental problems was the introduction of the Water
Enactment (1920).
‐ Malaysian modern EL is also modeled by the British modern EL.
‐ Two ways of the Malaysian legal system: -
(a) By the Govt.
 Local, State and Federal Government make laws that included Acts,
Regulations, By-Laws and Regulatory Instruments.
 In Malaysia, EL is mostly statute based although Malaysia had applied
CL principles.
(b) Case Law or ‘Judge made’ law
 The court makes laws in several ways. One role of the courts is to
interpret legislation. It also makes new laws (CL) where there is no
Acts which deals with a particular issue.
 A court decision may set a precedent which must be followed by other
courts of lower status when dealing with cases involving similar
circumstances.
CL & Precedent
 CL has been developing through the decision of the judges in
particular cases so that over time general rules have appeared.
 The judge needs to see if there have been any other cases with
similar facts or points of law decided in the past. The judge is bound
to follow the ruling of that case when it was decided by a higher court.
CL Action
 CL had provided a series of actions which may be taken. These are referred
to as Torts. A Tort is a wrong for which a person can get legal redress. The
general rule is that remedies for torts are intended to prevent the tort and
compensate the victim rather than punish. The actions include actions in
negligence, nuisance, trespass and strict liability.
 Government of Perak v A.R. Adams (1914). In this case the Plaintiff had
granted a piece of land to the Defendant’s predecessor in title. The Plaintiff’s
road adjoined the land. The Defendant had caused silt from his land to be
deposited on the road and the drains alongside it. No remedy from the
defendant even knew about the damage. The court held that it had
jurisdiction to hear and found that the defendant is liable in that damages.
NEGLIGENCE
‐ Negligence is the most commonly used tort. A successful action will shift the
burden of the damage done from the victim to the person responsible for it.
Necessary to proof that the duty of care, breach of the duty of care and as a
result of the breach, the party suffered damages.
‐ In the case of McGowan & Anor v Wong Shee Fun (1966), the 1st defendant
was the owner and developer of the land known as Jalan Water-Works Estate.
The 2nd defendant was the owner and developer of the land adjacent to the 1st
defendant’s land. The Plaintiff alleged against the defendant that they had
indiscriminately stripped off the top soil of their land and so caused and
allowed the stream to become silted, due to the erosion of the land thus
causing flooding that caused damage to the Plaintiff’s land. The court held
both the defendant were negligent for not having taken all responsible steps to
prevent.
TRESPASS
‐ To protect the right of land owners from unauthorized entry or interference.
Damages may be sought for, monetary loss sustained by an occupier of land
as a result of unauthorized entry of by a person, animal or thing onto his or her
land, unauthorized contact with the land includes placing or throwing object
into the land without permission.
‐ The trespassers must pay for all harms caused while on the other land.
People who want to speak can have of course come to up of your front door
without trespassing. They will only become trespassers when they are asked
to leave but remain on your land. Few actions for trespass are taken as they
are cumbersome and if no harm is done, only nominal damages can be
obtained.
‐ e.g. Whitehouse v Remme (1998) – substantial harm
 This case is between the director of New South Wale National Park and
Wildlife Service (W) against Clause Remme (R).
 W claimed that R had committed a trespass by building a road within the
Blue Mountain National Park South East of Oberon. R had been aware
that he was working without W’s permission in the national park.
 Justice Stein (New South Wales Land and Environment Court) held that R
had committed numerous trespass of land in the Blue Mountain National
Park. R was restrained from doing any further works on the road and
ordered to pay costs of restoration for the damages.
‐ Edwards v Simms
 It involved land that had a cave beneath it. The entrance of the cave was
on the land belonging to Simms who ran a business taking tours of the
cave.
 The tours passed through areas of the cave, which were beneath land
owned by Edwards.
Abd Shukor Bin Mohd Yunus
 It was held that a trespass had done and Edward should get money for its
exploitations despite he could not have exercised control over the cave
beneath the land.
NUISANCE
‐ Unlawful interference with person’s use or enjoyment of land or some right
over or in connection with it. The basis claim is founded upon a balancing
exercise centered around the question of reasonableness.
‐ Saunders Clark v Grosvenor Company Limited & D’Alles-Sandry (1990)
 Used the property reasonably or not.
 If unreasonable, then the Plaintiff is entitled to relief
‐ Private nuisance
 Substantially interferes with the Plaintiff’s use or enjoyment of the land and
must proof either actual damage to property or substantial interference
with the enjoyment of land.
 Characteristics of the land is substantial
(i) The character of the locality that the judge will find that undesirable-
smell is a nuisance in a residential area than in a long established
industrial area, where such smells are common (Helen Smelting Co. v
Tipping)
(ii) The time when nuisance occurs. For e.g. that the noise due to drilling
which made it impossible for neighbouring owners to carry on
business between 9.00 am to 5.00 pm would be a nuisance (Daily
Telegraph v Stuart).
(iii) The duration of the activity. Activities that go on for a long time or
that recurs are more likely to be considered substantial.
(iv) The motive of the person creating the nuisance. This privilege is
lost, if the defendant act with an improper motive such as the
intention to damage his or her neighbor. In the case of Chan Jen
Chiat v Allied Granite Marble Industries Sdn. Bhd. The P had
leased land for the horticulture and fishery and used as a source
of drainage and existing system flowing through the defendant’s
lot. The defendant then built a factory on his land, which affected
the P’s flow of water as well as polluting on it. The court held that
the D’s earth work in connection with the construction of the
factory constituted as an interference with the P’s lawful use of his
land and therefore an actionable nuisance.
(v) Sufficient that there is a material interference with the ordinary
comfort and convenience of life (Pacific Engineering Ltd v Hj
Ahmad Rice Mill Ltd)
‐ Public nuisance
 An action or in action which interferes with the safety, health, property or
comfort of the public.
 Need have an interest in the land that is affected.
 They must show either that she or he suffers some special damage
beyond that which is suffered by other members of the community or the
person must get permission from the AG to bring the action in the public
interest.
STRICT LIABILITY
‐ In Rylands v Fletcher
 The court found F was liable and said “a person who, for his own purposes
brings onto his land and collects and keeps there anything likely to do
mischief, if it escapes, must keep it at his peril and if he does not do so, is
prima facie answerable for all the damage which is the natural
consequence of its escape.
‐ If a company which transports industrial waste accidentally spills toxic
chemicals into river and liability is strict, the proof that they spilled the
chemicals will be enough to make then pay. If liability is not strict it may be
necessary to prove both that the company spilled the chemicals and that the
spill resulted from the company’s lack of care. Obviously strict liability makes it
easier for action to be successful. However, there has been erosion of strict
liability and a tendency to make liability for damage dependent on proof that
the D was at fault.
Standing to sue
‐ Whether a person is allowed to bring an action in a court and must have
sufficient interest in the subject matter of the case. Usually monetary or
property interest.
‐ Must be with the consent to the action by the AG as stated under Section
44 of the EQA 1998 no action without the consent in writing of the PP. In
the case of Quek Gin Hong v PP, the accused was charged for allowing
the open burning of waste without a license contrary to Regulation 12 of
the EQ (Clean Air) 1978. The HC acquitted the accused and held that
S44 was void for inconsistency with Article 145 (3) of the FC.
‐ Australia Conservation Foundation v The Commonwealth, the standing
sue was not a mere intellectual or emotional concern.
‐ In UEM v Lim Kit Siang, the court decided that he had no locus standi as
his private rights a citizen was not affected. As well as in the case of KP
JAS v Kajing Tubek (Bakun’s case) that it was held that the R lacked locus
standi to institute the action.
Remedies
‐ Declaration: a declaratory order/judgement is simply a statement by the
court of the legal rights or duties of a person. The declaration will be
enough to force one of the parties to take certain action because the legal
position has been clarified.
‐ Injunction: order to prohibit or require to do something by the court. It is
‘mandatory’ if require to do something and ‘prohibitory’ if it prevents from
doing something. The interlocutory/interim injunction is where the court
has not yet heard a case in full but needs to stop one of the parties from
taking action.
‐ Damages: if the parties won the case, the court will award damages. But,
in EL it is difficult to quantify the values of things for the purposes of
4|P a g e
LWM735: Environmental Law & Policy
compensation. In UK, the control of environmental damage and pollution
has historically been through the action of the CL.
Constitutional Framework
‐ As in the case of KP JAS v Kajing Tubek, the CoA held that the EQA 1974
when properly construed operated in harmony with the state law.
According to Sarawak law, there is no mandatory requirement for the
project proponent to make any EIA report available to the public or to
anyone affected by the project.
Administrative law
‐ The judicial review is when there is reviewing the decisions made by
government authorities or local councils and part of the administrative law.
The court will look at the process of decision-making to decide and
whether the correct process was followed as in the case of Bakun Dam.
FEDERAL & STATE GOVERNMENT ROLE &
RESPONSIBILITIES
‐ The involvement of offices of AGC, Minister of Foreign Affairs and relevant
ministers and agencies in negotiation to enter onto international treaty,
government and convention.
‐ The roles & Responsibilities amongst the state in the implementation of
international treaties, agreement and convention depend largely on the nature
of each international agreement. These can be divided into 3 categories: -
 Requires the management of resource under State Jurisdiction, state
government must have endorsed the plan entry & allocated resources to
comply to the provision of the convention. For example, RAMSA
CONVENTION (wetlands) which mentioned that 26k ha of land have been
designated as a RAMSA site by the Government of Pahang. The area
remains under the state jurisdiction and can be listed as a RAMSA site by
the state at any time. The state also stipulates these things should have
no financial application to the state. In terms of the need for the state to
allocate resources, the state has to designate the district of Bera and the
management authority for the site and establish steering committee. And
a technical committee shared by a member of the Parliament of Bera.
 Where entry into force and implementation of international convention
does not necessarily involve the designation of site and resource under
state jurisdiction. The state government does not usually engage in
negotiation to develop and implement the conditions and terms of
reference of a convention that is entered into by the FG. For example, the
Convention on International Trade of Endangered Species (CITES) under
Ministry of Natural Resources and the Environment. This department has
offices in all states in PM. Trading permit of wildlife is issued by the State
Department of Wildlife and National Park and the implementation of these
conventions is the implementation on CITES in Malaysia is facilitated by
the existence of the Wildlife Act 1972. The role & Responsibilities by state
level officers of Federal Department of wildlife and National Park with bio-
diversity, ozone depletion substances and hazardous chemical. There is
no national legislation and state level legislation is also fragmented.
 The Role & Responsibilities (S&S) in the enforcement of international
treaties differed from PM. Federal Agencies have far less jurisdiction in
the state than they have in PM sates. In term of Environmental
Management, Federal Authority may be confined to matters to air quality
and chemical only. The implementation of international convention in this
state require the existence of Federal Agency.
‐ ISSUES & PROBLEMS OF MANAGEMENT OF ENVIRONMENTAL
RESOURCES
 The department of environment being the Federal Agency does not have
full control over environment resources.
 Matters relating to land, forest, water resources, local authority areas,
fisheries and agriculture are under the jurisdiction of the state or enacted
under different legislation which are not under the charge of the
Department of Environment (DOE).
 The management of the environmental resources remained with the state
and its depend on close co-operation with Federal and State for
successful. For example, in the implementing of EIA.
‐ INADEQUATE & OVERLAPS OF THE LEGISLATION
 Mostly, are actually natural resources laws that are user-oriented. They
are designed for the max exploitation and development of natural
resources. Environmental legislation is resources-oriented which are
designed for the conservation of the neutral resources in order to prevent
their depletion and degradation. Thus, most of the legislation formulated
by the EQA 1974 does not contained criteria and standard. e.g. Mining
Rules 1934.
 Means that the enforcement officers do not have reference to rely upon.
‐ THE REGULATION OF ENVIRONMENTAL PROTECTION
 Regulation means the use of rules to control activities. That is the
application of rules and procedures by public body (DOE) so as to achieve
a measure of control over activities carried on by individuals and
companies or firms.
‐ ADMINISTRATIVE REGULATION
 Is a coherent system of control in which the regulating body (DOE) sets a
framework or policing behavior as well as laying down straight rules?
 The advantages: ability to provide uniformity, rationality and fairness,
produced by having a public body responsible for regulation and a
coherent link can be made with other policies so as to balance all relevant
factors.
 Malaysia exhibit a pragmatic and flexible approach and the general tenor
of the policies tends to be decided by the Malaysian FG.
‐ THE BRITISH APPROACH TO REGULATION
Abd Shukor Bin Mohd Yunus
 DAVID Vogel (National Styles of Regulation/1986 stated that an absence
of statutory standards, minimal use of prosecution, a flexible enforcement
strategy, considerable administrative discretion, decentralized
implementation, close co-operation between regulators and the regulated,
and restrictions on the ability of non-industry constituents to participate in
the regulatory process.
‐ DECENTRALISATION
 Malaysia has a large number of autonomous or semi-autonomous
environmental agencies. The Ministry of Science, Technology and
Innovation ant the Ministry of Natural Resources and the Environment has
the overall responsibility with the support at least 3 implementing agencies
such as DOE, PERHILITAN and the Secretariat to the Atomic Energy
Licensing Board.
 Many decisions and policies which are important environmental effects are
made by the Ministry of Transport (emissions from vehicles), or the
Ministry of Agriculture, Fisheries and food and the National Development
Planning Committee. And also, local authorities.
‐ DOE: Major responsibilities within the FG for environmental matters. It was
headed by a DG under Section 3 (1) of the EQA 1974. It was consisted by 5
divisions and 13 other state.
‐ EQC - Section 4 (1) of the EQA 1974.
EIA
‐ Merely an information gathering exercised carried out by the developer and
other embodies which enables a local planning authority to understand the
environmental effects of a development before deciding whether or not to grant
planning permission for the proposal. Its procedure has been developed
primarily as an aid to the environmental planning of new development projects
or to the expansion of existing development projects.
‐ It is fits into the overall scheme of environmental management and a
preventive process. EIA is seeking to avoid costly mistake in project planning
& development.
‐ S 34A of the EQA A974.
‐ EFFECTIVENESS OF THE EIA IN PREVENTING THE DESTRUCTION OF
FLORA AND FAUNA.
 In practice, it is common for loggers to fragmentize their timber
concessions into plots which are well below 500 hectares to escape the
EIA requirements, S 34A (6) of the EQA 1974, in PP v Eastacres
Development Sdn Bhd (1993) & amendment under S 34A-34AA of the
EQA 1974.
MANAGEMENT OF NATURAL RESOUCES
INTRODUCTION
‐ Include the elements that form our planet such as air, earth, water, heat, any
physical substances, flora or fauna, obtained from the land, the sea or fresh
water and the air. In commercial and legal terms, natural resources make up
of a country’s wealth. For example, if a country has a large supply of a
particular mineral, which is needed, it can mine that mineral and trade in on the
world market.
‐ Surface of the land: Coal, petroleum, natural gas, gold, other minerals and
subterranean water.
‐ Mobile resources such as water, air and fish are harder to identify as a specific
quantity which can be ‘owned’.
WAYS OF MANAGING RESOURCES
‐ PRESERVATION: is keeping the resources in its current state and also
includes preventing further deterioration of the resources.
‐ CONSERVATION: means that a resource will be used in some way by
humans while at the same time being maintained in the longer time.
‐ EXPLOITATION: is the use of resources without regard to its maintenance in
the long term. If a decision is made to exploit a resource, a decision must also
be made as to what extent it will be exploited.
SUSTAINABLE DEVELOPMENT AND RESOURCE USE
‐ The SG are responsible for the management of land (FC List II & III)
LEGAL FRAMEWORK
‐ The use of resource is regulated by the State or Federal Law and for other
natural resources for example timber, the government control the products
through long term leasing and licensing arrangements.
‐ In recent times, law have been passed which preserve certain areas from
exploitation and protect resources such as water, air and soil from pollution.
For example, State laws established national park and the FG has made it
compulsory for any person intending to carry out any prescribed activities
(agriculture, drainage and irrigation, airport, land ports, mining, petroleum,
power generation, quarries, railways, transportation, resort and recreational
development, waste management disposal and water supply) to conduct EIA.
MANAGEMENT AUTHORITIES AND LICENCING
‐ Are usually managed by a government management authority or statutory
authority, established for the purpose. Such an authority is brought into
existence by a special Act of Parliament which sets it up and gives it the power
to make laws dealing with its own internal affairs. The Selangor has set up the
Selangor Water Management Board to manage the water resources in the
state. However, the main federal body that manages the environment is the
Department of environment.
5|P a g e
LWM735: Environmental Law & Policy
MAJOR NATURAL RESOURCES
(1) MINERALS & PETROLEUM
‐ Important part of Malaysia’s energy production for its domestic and export.
It was found in the seabed (South China Sea).
‐ S 40 of the NLC: the government when granting land withhold the rights to
minerals on or under the land means the owner of the land has all the
normal property rights except for those relating to any minerals.
(2) WATER
‐ Water resource management involves fresh water and salt water. Fresh
water is essential for drinking water and domestic use, for agricultural
activity and for many kinds of industry. The ocean provides food and
sustain an enormous number of species of flora and fauna, many of which
play valuable roles in maintaining a healthy ecosystem for humans.
‐ In Malaysia, water resources are also major focus for recreational
activities and are very important for the tourism industry. Wetlands both
fresh and salt water, are very sensitive environments whose ecosystems
are important for the health and continuation of surrounding areas. Water
resources are also used as dumping grounds for wastes. The increase in
the use of pesticides and fertilizers in farming has been particularly
harmful to waste resources.
FLAWS IN RIVER MANAGEMENT LAW
(1) Constitutional limitation on river management law
‐ Both the Federal and State legislatures have jurisdiction over matter
relating to water. Water supplies, river canals, except those wholly within
one state come within the Federal List.
‐ State list: water supplies, river and canals, control of silt and riparian
rights, matters relating to land and forests.
‐ Concurrent list: drainage & irrigation.
‐ Local government: licensing of business/industrial area.
‐ Department of Environment: pollution control and no control over the
licensing of industrial activities.
‐ Sand mining is under the land office. The Drainage & Irrigation
Department is given the administrative task of taking care of the river and
not the management of the rivers.
‐ Water Act 1920 does not have national application and provides that the
‘entire property in and control of all rivers in any states is … solely vested
in the Rulers. This means that the control of the river is under the SG.
‐ National Forestry Act 1984 that applies to all states in peninsular Malaysia.
The State Authority can designate permanent reserved forest and help to
protect the quality of rivers.
‐ Land Conservation Act 1960 which was enacted for the conservation of hill
land and the protection of soil, applies to all States in Peninsular. The
emphasis of the law is to conserve and protect the soil.
(2) Jurisdictions that regulate activity along the waterway
(3) Fisheries
‐ Slaughter of humpback whales off Australia’s east and west coast and the
southern blue-fin tuna harvest.
‐ Clearest example of tension between scientific management and
economic forces. Scientific suggest that catches should be limited.
‐ In Malaysia, the Department of Fisheries is responsible for the
development of the fisheries industry.
(4) Dugong
‐ S 27 of the Fisheries Act 1985 is a protected aquatic mammal (max fine of
RM5k or 1-year jail or both)
‐ S 64 of the Protection of Wildlife Act (max fine of RM5k or 3 years jail or
both)
(5) Wild animals
‐ Protection of Wildlife Act 1972 applies to all life forms or development
stage of protected species such as their eggs.
‐ In Johore (2000), the State Wildlife Protections and National Parks
Department made a shocking discovery when officers found close to 200
illegal traps meant to harm large mammals near Kota Tinggi.
‐ The Wildlife Conservation Act 2010, carries a max fine of RM5k, 5 years’
jail or both.
PROTECTION & PRESERVATION OF THE ENVIRONMENT
(1) POLLUTION
‐ A number of environmental problem have surfaced parallel to the
development.
‐ According to S2 of the Act 1974
‐ UK Royal Commission on Environment
The introduction by human into the environment, of substances or energy
liable to cause hazards to human health, harm to living resources and
ecological system, damage to structures or amenity or interference with
legitimate uses of the environment.
(2) WATER POLLUTION
‐ 7 forms of the water pollution.
‐ Relevant law to rivers is the Water Act 1920 and revised on 1989.
‐ The modern system of water pollution control begins with the EQA 1974
which prohibits all pollution of inland waters such as rivers, canals or lakes
and the Malaysian waters (territorial waters/sea) without a license.
(3) INDUSTRIAL WASTE is major source of the pollution and the major
contributors are the metal finishing industries, foundry and metal works, film
processing etc.
(4) DOMESTIC AND ANIMAL WASTE
‐ Untreated domestic sewage and animal waste from pig farming continued
to pose a major problem. The most of the polluted river were found in the
heavily populated and industrialized states of Penang and Selangor.
Abd Shukor Bin Mohd Yunus
(5) AGRO BASED INDUSTRY
‐ S2, S18, S25(3), S31 of the EQA 1974.
‐ In the case of Udapec Sdn. Bhd., the company was charged under S25(1)
because for emitting effluent into the public drains before it flowed to the
Sg. Langat. The court fined the company RM40k.
‐ YTY Industries Sdn. Bhd., the court fined the company for RM10k.
(6) WEAKNESSES OF THE LAW
‐ Failure on the administration of the law by the relevant agency such as
DOE to check the load of effluents discharged by industries along the
river.
‐ Problem of limiting the substances and chemicals discharged into our river
such as chloride, cobalt and radioactive material.
‐ Contravention License to pollute.
‐ Low fines imposed on industries.
(7) MARINE POLLUTION
‐ Extended by the river pollution. The number of oil spills, desludging,
indiscriminate dumping of waste and siltation in Malaysian waters over the
years have made it urgent to have an integrated environmental
management policy for maritime sector to counter the growing pollution in
waters.
‐ The newly set up Malaysian Institute of Maritime Affairs (MIMA) has a vital
role to play in marshalling the country’s capabilities to coordinate the work
and come with a strategy to overcome these problems.
‐ The laws that regulate marine pollution from ships and vessels are: -
 Merchant Shipping (Oil Pollution) Act 1994
 EQA 1974
- S27(1), (2) and in the case M.V.YUN Cheng that the D was
charged under S27(2) and fined RM25k.
- S29(1) & (2), S38, S48 (1) – (3) & S47
POLLUTION CONTROL AND WASTE MANAGEMENT
WASTE MANAGEMENT
(1) TOXIC & HAZARDOUS WASTE
‐ Treatment plan at Bukit Nenas (N9). The facilities are designed to cope
with all categories of hazardous waste except radioactive, explosive and
clinical waste.
‐ The Environmental Quality (Scheduled Wastes) Regulations 2005 classify
hazardous and toxic waste into more 107 categories (1st Schedule of the
EQA (Scheduled Waste) Regulation means that certain waste cannot be
thrown into rubbish bin, buried in the factory’s backyard, flushed into the
sea or dumped on any vacant site. Common scheduled waste produced
in Malaysia include metal hydroxide sludge from electronics industry, tar
residues used oil refineries or petrochemical plants, solvents used in metal
finishing industry and even engine oil used by vehicle mechanics.
‐ R 4 (1), R 5 and R 9.
‐ S 24 (1), (2) and (3) of the EQA 1974. In the case of PP v Kenneison
Quarries Sdn Bhd (1998) was charged under S 24 of the EQA 1974.
(2) EXPORT OF SCHEDULE WASTES
‐ Basel Convention (1992) is an international agreement on limiting
international trade in toxic and hazardous waste.
‐ Section 34(B) of the EQA 1974.
AIR POLLUTION CONTROL
(1) Monitoring
‐ The National Air Quality Monitoring Programme (NAQMP) was carried out
by using semi-automatic equipment (high volume samplers) for the
measurement of both total suspended particulates and respirable
particulars through a network of 35 monitoring stations. Ambient lead
level was also monitored at sites close to main roads with heavy traffic. In
1995, the monitoring of air quality was privatized and taken over by Alam
Sekitar Malaysia Sdn Bhd (ASMA) and set up and manage 50 new fully
automated air quality monitoring stations.
(2) Penalty for polluting the atmosphere
‐ S 22 (1) of the EQA 1974 and S 22 (3) of the EQA (Amendment) 1996 and
the EQ (Clean Air) Regulations 2014.
(3) Vehicular emission
‐ Mechanism to control air pollution are the Motor Vehicle (Control of Smoke
and Gas Emissions) Rules 1977 (Road Traffic Ordinance 1958), the EQ
(Clean Air) Regulations 1978 (EQA 1974) and the EQ (Control of Lead
Concentration in Motor Gasoline) Regulations 1985.
‐ Ringelmann Chart or Scale is use for grading the density of smoke.
‐ In Len Seng Sdn Bhd was tried in court for allowing one of its vehicles
emit smoke above permitted level. The charge is under S 22(1) of the
EQA 1974.
(4) Open burning
‐ Those planning to burn their diseased crops or carcasses will have to
obtain prior approval from the departments of Agriculture and Veterinary
Services respectively. It must be certified that those things are indeed
diseased and there is no other method of disposal. The department will
determine the time, place and manner.
‐ The open burning must be stop when the air pollutant index breaches the
100 level. The order exempts traditional farmers and smallholders who
use fire to clear land or to get rid of biomass such as paddy husks and on
the basis that such farmers conduct open burning on a small scale.
‐ S 22 of the EQA 1974.
6|P a g e
LWM735: Environmental Law & Policy
‐ In case of Sykt. Pembinaan Yeoh Tiong Lay, under S 22 (1) of the EQA
1974 for conducting open burning at its premises.
‐ In Mow Hin Wood Factory (broom stick company) pleaded guilty for open
burning of heaps of saw dust without a license.
(5) The control of Tobacco Product regulations 1993
‐ Prohibits smoking in hospitals, clinics, public vehicles, air-conditioned
eating outlets, amusement centers, theaters and public lift etc. if found,
they will be served with a RM50.00 on the spot compound and if
convicted, they can be fined up to RM5k or imprisoned for 2 years.
(6) The Factories and Machinery Act 1967 (Revised) 1974
‐ Every factory be kept in a clean state free from offensive effluents and that
effective and suitable provision be made for securing adequate ventilation
by the circulation of fresh air.
‐ The object of the Occupational Safety Health Act 1994 is not only to
secure safety, health and welfare of a person at work against risks to
health and safety arising out of activities of person at work but also to
protect persons at a risk to safety or health arising out of the activities of
persons at place of work against risks.
ENVIRONMENTAL PLANNING
WHY PLAN?
‐ Planning is an attempt to choose the best or most suitable uses for land, to
ensure that a proposed use of land will suit the locality and will not interfere
with the use of neighbouring land.
‐ Planning should ensure that a proposed development is appropriate form
physical point of view and should take into account social factors. Besides, the
local authorities should strike a balance between profit marking and public
interest.
HOW PLANNING IS ACHIEVED
‐ Provide under the Town and Country Planning Act 1976 that required
development plans to be prepared by the local authorities which cover
important questions such as economic, environmental and social implications
of any proposed land use.
THE LOCAL AUTHORITY
‐ Under S 2 of the Act which means any city council, municipal council,
municipality, district council, town council, town board, local council, rural
board etc. and headed by MB or CM under S5 of the TCPA.
‐ The function is stated under S 6 of the Act which to regulate, control and
plan the development and use of all lands and building within its area and
to approve application for planning permission.
LOCAL ENVIRONMENTAL PLAN
‐ S 7, 8 & 9 of the TCPA 1976
PLANNING CONTROL
‐ S 18 & 19
APPLICATION FOR PLANNING PERMISSION
‐ S 21 of the TCPA 1976
‐ In Lee Freddies & Ors v MPPJ & Anor (1994), several owners of bungalow
houses in PJ SS1 knew that a developer had applied for planning
permission to build 60 units of low rise apartments in 3 blocks near their
homes on a parcel of land that had been vacant for 20 years.
‐ The MPPJ allowed to build 48 units. An injunction and order of certiorari)
was applied by the bungalow owner to quash MPPJ’s decision on the
ground that had not been consulted before MPPJ made its decision.
‐ The court dismissed their application.
ENVIRONMENTAL ETHICS
‐ Imposed limitations on human conduct in relation to the natural environment.
‐ Based on religion: -
Islam: Holy Quran (2:164)
“Indeed, in the creation of the heavens and earth, and the alternation
of the night and the day, and the [great] ships which sail through the
sea with that which benefits people, and what Allah has sent down
from the heavens of rain, giving life thereby to the earth after its
lifelessness and dispersing therein every [kind of] moving creature,
and [His] directing of the winds and the clouds controlled between the
heaven and the earth are signs for a people who use reason.”
Christianity, Buddhism and Hinduism also emphasis on the relationship
between human beings and the natural environment.
‐ Basically, all the main religion in the world stress that harmony must be
maintained in life and it also has to be done with utmost responsibility.
ACCESS TO ENVIRONMENTAL INFORMATION
INTRODUCTION
Provision of information about environment and regulatory process is an integral
element of the regulation of environmental information.
REASONS ACCESS TO ENVIRONMENTAL INFORMATION
‐ Improving regulation by increasing public participation
 The quantity and quality of information on the environment is essential
‘fuel’ which powers the decision-making process.
 Increased access to good quality environmental information increases the
accountability of the decision-maker and makes the process more
legitimate in the eyes of the public.
Abd Shukor Bin Mohd Yunus
 E.g. the requirements for publicity and consultation in relation to
individual planning or pollution control applications or strategic
development plans.
‐ Monitoring the effectiveness of regulation
 Regulatory system is designed to reduce pollution. For e.g. the aim of the
waste management system is to reduce waste by recycling and reducing
the amount of waste being sent to landfill. To monitor the system, one has
to produce ‘benchmarks’ for performance (e.g. to gather and publish data
on waste going to landfill and recycling rates).
 Greater access to this sort of information allows those who are regulated
and the general public to assess the effectiveness of the legislation.
 This legitimizes the introduction of new laws, ensures that existing laws
are actually achieving the aims and ineffective laws are replaced.
‐ Environmental Information as a self-standing regulatory instrument
 Environmental information can be employed as a complementary
mechanism to the more traditional instruments.
 For e.g. the use of eco-labelling to provide consumers with information
which enables them to make informed purchasing decisions.
‐ Environmental Information and sustainable development
 The provision of environmental information can assist in attaining the goal
of sustainable development by influencing the behaviour and decisions of
private individuals or companies.
 Making information available on a wider scale can be the catalyst in
changes in behaviour or can increase the effectiveness of other
instruments. For e.g. Publishing information on energy efficiency and the
associated environmental benefits can be used in conjunction with grants
and subsidies to encourage people to reduce their consumption of energy.
‐ Improving enforcement
 There must be access to the information for the basis of enforcement
action.
 Without adequate information, public rights to enforce environmental laws
have little value. This include basic information on the identity of polluters,
where they are polluting and how much is being emitted.
‐ Informing the public about environmental risks
 Secrecy – particularly the half-kept secret – fuels fear.
 It is necessary to create much greater disclosure to enable informed
debate not only about the risks to the public and the environment but also
about the steps which might be taken to minimize those risks.
 Thus, where information is truly available, it enables informed debate by
allowing the widest possible range of interpretations of the raw data rather
than relying upon the assertion of interested parties.
‐ A fundamental ‘right’ to environmental information
 The interest in the environment is a general one held by everyone, both for
themselves and on behalf of future generations.
 This competes with other interests such as industrial operations. Hence,
every attempt should be made to balance out conflicting interests by, for
example, allowing access to information on the consequences of industrial
activities, so that all relevant factors are taken into account.
 However, the public must be considered to have a right, analogous to a
beneficial interest, in the condition of the air and water and to be able to
obtain information on how far they are being degraded.
ARGUMENTS AGAINST ACCESS TO ENVIRONMENTAL INFORMATION
‐ Commercial confidentiality
 Affect the viability of business by breaching commercial confidentiality.
 Industrial competitors would be able to use the date released to gain
access to commercially confidential information.
‐ Cost
 The administration costs would be disproportionate to the public benefit
which would accrue.
‐ Misuse of information and ‘green nutters’
 Openness would lead to mischief-making and an unacceptable level of
interference by activities.
 Allows green nutters to get on parade and have a field day of litigation
against industry on entirely inconsequential grounds.
INTERNATIONAL APPROACHES TO ACCESS TO INFORMATION
‐ The role of information in meeting the goal of sustainable development is
acknowledged in the Agenda 21 document which was agreed at the 1992
Earth Summit in Rio.
‐ Within the international law:
 Arhus Convention on Access to Information, Public Participation in
Decision Making and Access to Justice in Environmental Matters. (1998,
Denmark)
 The convention mirrors the European Directive on Access to
Environmental Information (90/313).
EXAMPLES OF PROBLEM CONTROL INFORMATION IN THE UK
‐ Public Registers (Water, Industrial processes e.g. integrated pollution,
planning e.g. planning application & Waste management)
‐ Common features of public registers (Availability of information, Nature of
the information & Exemptions e.g. for certain classes of information where
disclosure would affect national security or commercial confidentiality)
‐ Rights of appeal e.g. whether information is commercially confidential lies
with the regulatory body. There is a right of appeal against that
determination to the Secretary of State.
‐ Public registers in practice (Underutilized by members of the general
public)
EXAMPLES OF ENVIRONMENTAL AGENCIES IN MALAYSIA
‐ Department of Environment (DOE) that monitored EIA, access for public in
its website and air quality index
7|P a g e
LWM735: Environmental Law & Policy
‐ Department of Biosafety (DOB) that monitored the biodiversity and access
of information in its website
CONCLUSION
Although accessibility of information is improving for the public but transparent
information on the environment is still slow in its progress.
INDIRECT ENVIRONMENTAL REGULATIONS
INTRODUCTION
Concept of market failure
‐ Means that markets fail to allocate resources efficiently.
‐ ‘A market failure occurs when the market does not allocate scarce
resources to generate the greatest social welfare,’- Hanley, Shogren and
White (2007)
‐ A firm emitting pollution will typically not take into account the costs that its
pollution imposes on others.
‐ As a result, pollution in excess of the ‘socially efficient’ level may occur.
‐ The basic problem is that if people ignore the scarcity value of the
commons (environmental assets itself) they end up expending too much
effort, over harvesting a resource (e.g. fishery) leading to environmental
degradation.
‐ In absence of restrictions, users of an open-access resource will use it
more than if they had to pay for it.
ECONOMIC INCENTIVES
Economic Instruments/Market-Based Incentives
Advantage:
‐ Providing free market incentives, for e.g. permitting companies to purchase
and sell pollution rights, would be an inexpensive and effective way of reducing
pollution
‐ Giving consumers and industries clear signals about the true environmental
costs of using environmental resources, thus enable those groups, rather than
regulators, to decide how best to meet environmental needs.
TYPES OF INCENTIVES
‐ Pollution Charges
 A charge system that impose a fee or tax on pollution or emission.
 Assessment is on the actual or expected emissions from different kinds of
sources.
 Malaysia is one of the countries to first introduce the effluent (pollution)
charge system, specifically for palm oil and rubber mills.
 In 1977, the country’s Department of Environment (DOE) announced
discharge standards for BOD on palm oil effluent.
‐ Tradeable permits
 It is advocated that pollution reductions should be achieved by way of
tradeable emission permits, which if freely traded may ensure reduction of
pollution at the least cost.
 Control authority sets a maximum total of allowable discharge load for a
catchment and polluters compete to purchase these rights to discharge in
the environment.
 Encourages operators to invest in more adequate systems e.g. retention
ponds in order to avoid the high cost of having to purchase discharge
rights from other operators who have bigger retention ponds.
 Carbon credits are awarded to projects in a country by Designated
Operational Entity (DOE) after grilling through the stringent and complex
procedures adopted by the UNFCCC to be certified (called CERs) as
having reducing a real and quantifiable amount of greenhouse gas (GHG).
 They are issued as incentives of the market-based Clean
Development Mechanism (CDM) of the Kyoto Protocol. Carbon credits
are tradable equities in global climate exchanges just as securities
and commodities in the stock markets. Each Certified Emmission
Reduction (CER) is equivalent to one tonne of carbon dioxide being
prevented from emissions into the atmosphere.
 According to Malaysia Energy Centre (now known as the
GreenTech Malaysia), agricultural and natural resources-rich Malaysia
has 100 million tonnes of carbon credit, which can be translated into
some RM5 billion in revenue. CDM related carbon trading in Malaysia
is expected to surge in the next few years from demands by European
Unions to meet target reductions by 2012.
‐ Landfill tax
 Removal of dirty subsidies
 Increasing the costs of polluting will discourage polluting and will provide a
‘dynamic incentive.’
 A pollution tax that reduces pollution to the socially ‘optimal ‘level would be
set at such a level that pollution occurs only if the benefits to society
exceeds the costs (e.g. in the form of greater production).
 Could change people’s waste management behaviour and encourage
waste reduction
‐ Subsidies and grants
 Commonly used in cases such as construction of facilities for the
improvement of agricultural water treatment and silage effluent.
 Subsidies granted to solve particular structural problems affecting
environmental quality
 Granted during transitional period for adjustment to new stringent
regulations.
‐ Deposit – refund systems
Abd Shukor Bin Mohd Yunus
 A system where surcharges are paid when consumer return the product to
an approved center for recycling or proper disposal.
 E.g. old batteries, beverage containers etc.
SELF- REGULATION
‐ Voluntary action without any form of governmental or regulatory supervision.
‐ Environmental management system (EMSs) have been developed to
complement national pollution control laws.
◦ EMSs are systems and procedures which are put in place to measure
environmental performance to provide a benchmark for future
improvements.
◦ Example of EMS is the British Standard specification for environmental
management systems (BS 7750) and the 1995 Eco-Management and
Audit Scheme (EMAS) Regulation 1936/93.
‐ The International Organization for Standardization (ISO 14001)
◦ Introduced standards concerning environmental management systems.
◦ Includes performance evaluation, auditing, life-cycle assessment, and
labelling.
◦ The introduction of ISO 14001 saw a subsequent withdrawal of BS7750 in
March 1994.
◦ The Malaysian government is promoting the voluntary adoption of the ISO
14001 Environment Management Systems Standard.
ECO-LABELLING
‐ In the US, the Environment Protection Act 1970 has adopted rules requiring
that products manufactured outside the US using a process with ozone
depleting substances, be labelled as such if imported into the US.
‐ Article 4(3) of the EC Regulation No 1836/93 imposed a very stringent
standard on products imported into the EC.
◦ Products should not be eligible for eco-labels if they contain significant
quantities of dangerous substances or are manufactured by
environmentally harmful processes.
THE CHALLENGE OF GLOBALISATION ON
ENVIRONMENTAL LAW AND POLICY: AN OVERVIEW
INTRODUCTION
• Globalisation is not only to do with free trade but it also affects a wide range of
global issues, including the law and the environment.
• The aim of this paper is to highlight the globalisation process in respect of the
environment which is the ‘globalisation’ of national policies and policy-making
mechanisms.
• It presents a mixed blessing for the environment.
• Supporters of trade liberalisation and supporters of environmental protection
share a common goal which is to improve social welfare.
• However, the two groups differ in an important respect:
– Environmental groups perceive trade policy as part of the problem of
global environmental degradation;
– Whilst liberal traders believe that restricting trade barriers is environmental
friendly.
TYPES OF GLOBALISATION
• There is no precise definition of Globalisation. Some authors defined
globalisation as processes where people of the world are incorporated into a
single world society, onset of the borderless world and trade liberalisation or a
process of economic integration.
• There are two formal types of Globalisation process: -
1. Globalisation process promoted by the UN represents the principles of human
rights and partnership, where richer countries are expected to contribute to the
development of poorer countries.
– The rights of people to the development and fulfilment of social needs are
highlighted.
– Stresses on the rule of law – where disputes will be settled and
agreements negotiated through the observance of established principles,
rather than by the use of force or intimidation.
2. The World Trade Organisation (WTO) globalisation process:
– Where the terms within which regional agreements can be signed at world
level from a trade and economic perspective.
– Its main concern is to facilitate trade.
– Other public policy goals for example as regards to the environment,
labour rights or economic impact of the local community are subordinated
to the overarching goal of expanding international trade.
ITS EFFECT ON THE WORLD ENVIRONMENT:
• Globalisation can have both positive and negative effects on the environment.
• Those who support free trade tend to argue that the long-term effect of
increased free trade can lead to an increase in real income and standard of
living. Higher incomes can lead to people devoting more material, resources
and national expenditure towards achieving a better environment.
• From the environmentalists’ viewpoints, trade liberalisation reduces prices and
increases demand, leading to the over-exploitation of natural resources and
environment through intensive farming, increased energy consumption and
wastage. Freer cross-border trade encourages the movement of
environmentally hazardous toxic wastes, chemicals, endangered species or
even nuclear waste.
ITS IMPACT ON ENVIRONMENTAL LAW & POLICY
• WTO enhances the influence of markets on economic, social, and
environmental outcomes and reduces the degree of freedom and unilateral
management capabilities of national governments.
• The range of recent trade and environment disputes at the WTO resulted in
some governments now have to implement policies in line with the decisions
and rules of this international institution.
8|P a g e
LWM735: Environmental Law & Policy
ITS CHALLENGES FOR ENVIRONMENTAL LAW
• The WTO has provided provision for one country to challenge the domestic
environmental legislation of another country when it believes that a particular
law impair benefits it expected from the General Agreement on Tariffs and
Trade (GATT)/WTO trade rules.
• This is very disturbing for some developing countries because this may infringe
on the domain of a nations’ environmental policy-making.
• The Biotech case is particularly a good illustration of how national
environmental policy could be overrun by the perceived needs of a globalise
economy. This case has put tremendous pressure on the European Union
(EU) to end member state divergent regulatory policy and accept the trade and
production of GMOs.
• In this case, the precautionary principle is not recognised by the WTO as
customary law nor as a general principle of law, hence developing countries
that apply the principle run the risk of being challenged by the WTO.
CONCLUSION
• The impact of globalisation on national environmental law and policy may have
some effects on developing countries to achieve their environmental goals.
• It has been argued that the centres of gravity have shifted beyond national
borders: environmental decisions are increasingly being taken by
supranational organisation like the WTO.
• Being a developing country, Malaysia is an active participant in the global
economy and its policies are in line with the globalisation process. However,
the Malaysia Biosafety Act 2007 which applies the precautionary principle may
face some problem with the WTO rules.
ENVIRONMENTAL TERMS AND PRINCIPLES
TRANSBOUNDARY POLLUTION
(1) DEFINITION OF LONG-RANGE TRANSBOUNDARY AIR POLLUTION
Air pollution whose physical origin is situated wholly or in part within the area under
the national jurisdiction of one State and which has adverse effects in the area
under the jurisdiction of another State at such a distance that it is not generally
possible to distinguish the contribution of individual emission sources or groups of
sources.
(Art 1 Convention on Long-Range Transboundary Air Pollution 1979)
(2) 1979 CONVENTION ON LONG-RANGE TRANSBOUNDARY AIR
POLLUTION
Fundamental Principles
Art 2: The Contracting Parties, taking the account of the facts and problems
involved, are determined to protect man and his environment against air pollution
and shall endeavour to limit and, as far as possible, gradually reduce and prevent
air pollution including long-range transboundary air pollution.
International Instruments
‐ Stockholm Declaration 1972
 The first document in international environmental law to recognize the right
to a healthy environment
 Principle 21: The sovereign right to exploit their own resources pursuant to
their own environmental policies, and the responsibility to ensure that
activities within their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of national
jurisdiction.
‐ 1979 Convention on Long-Range Transboundary Air Pollution recited principle
21 of the Stockholm Declaration.
‐ 1992 Rio Declaration (Principle 2 addressed the issue of transboundary
damage, including transboundary damage by air pollution. Based on the
Roman maxim - ‘do not behave in a way that harms your neighbours’).
(3) DOES INTERNATIONAL LAW PROVIDE ADEQUATE REMEDIES FOR
DAMAGE CAUSED BY TRANSBOUNDARY AIR POLLUTIONS?
‐ ICJ
 Can impose responsibility on the state guilty of causing harm and
accordingly to require the state to refrain from the conduct causing
damage and to grant adequate reparation to the injured state.
 ICJ is the principal judicial organ of the UN and in its advisory capacity
is the proper body to articulates states’ rights and obligations.
 International environmental law is the branch of international law
concerning rights and obligations in the management of natural
resources and the environment.
 Four conditions for harm to qualify as transboundary harm: The harm
must result from human activity, the harm must be physical
consequence of the human activity, there must be a physical effect
crossing national boundaries. It is this boundary crossing element
which initiates application of international law & the harm in question
must exceed a certain level of severity that calls for legal action.
‐ Trial Smelter case
 One of the earliest legal cases involving transboundary air pollution.
 Fumes from a private owned smelter at Trial, British Columbia,
Canada caused damaged to orchards and crops across the border in
the state of Washington during the 1920s and 1930s.
 To solve the problem, the Canada and the US submitted their dispute
to the ICJ through arbitration.
Abd Shukor Bin Mohd Yunus
 The tribunal concluded that Canada was responsible for the damage
caused by the smelter and granted compensation to the US.
 The Trial Smelter tribunal declared that: ‘No state has a right to use it
territory in such a manner as to cause injury … to the territory of
another or the persons or property therein …’
o The first step in giving the no harm principle actuality as a
fundamental rule of modern international environmental law.
 To impose the no-harm rule, a state must have standing, and be able
to demonstrate that it is an ‘injured state’ i.e. suffered substantial
harm.
 Only states may apply to and appear before the ICJ
 Both the state of origin and the effected state must consent to the
jurisdiction of the ICJ before the case may be heard.
 It is impossible to sue a country for not enforcing its laws against a
transnational corporation or for not enacting sufficient implementing
legislation.
 Some countries are substantially more powerful than others. Suing
another country may expose the plaintiff country to retaliatory actions.
POLLUTER PAYS PRINCIPLE
(1) DEFINITION
‐ Basically, it means the producer of goods or other items should be
responsible for the costs of preventing or dealing with any pollution which
the process causes. This includes environmental costs as well as direct
costs to people or property. It also covers costs incurred in avoiding
pollution and not just those related to remedying any damage. There is a
strong link between the principle and the idea that prevention is better than
cure.
‐ In other words, it is a basic economic idea that firms or consumers should
pay for the cost of the negative externality they create.
‐ The Polluter Pays Principle (PPP) states that whoever is responsible for
damage to the environment should bear the costs associated with it-The
United Nations Environmental Program.
‐ PPP was first incorporated in Principles 21 and 22 of the Stockholm
Declaration 1972.
‐ The Rio Declaration on Environment and Development states that
‘National authorities should endeavor to promote the internalization of
environmental costs [via] the use of economic instruments…’
(2) Relevance of the PPP
‐ The relevance of this principle to the discussion of economic instruments
is obvious, since a producer will have to pass on any costs in the price of
goods to the ultimate consumer.
‐ By making polluters pay, you are also making them take into consideration
the pollution costs associated with their production activities.
‐ This encourages the more efficient use of resources overall, while
providing an incentive for polluters to find the lowest cost methods for
reducing emissions.
‐ In Malaysia, this principle has been invoked in section 47 of the EQA
1974. Hence, this principle is given a legal force.
(3) Criticisms
‐ There has frequently been dispute over its exact scope, especially over
the limits on payments for damaged caused.
‐ The level of charges to be imposed on the polluters are extremely difficult
to estimate and therefore will give rise to difficulties.
‐ The application of the PPP in urban areas where the industrial sector is
dominated by medium, small and tiny enterprises operating in a highly
competitive market is risky as any higher costs from emission or other
effluent clean up charge might adversely affect their competitiveness in
relation to large firms that are capable of affording the installation of
necessary equipment.
PRECAUTIONARY PRINCIPLE (PP)
(1) Definition of Precautionary Principle
‐ Oxford English Dictionary defines ‘precaution’ as ‘action exercised
beforehand to provide against mischief or secure good results, prudent
foresight.
‐ A general rule of public policy action to be used in situations of potentially
serious or irreversible threats to health or the environment, where there is
a need to act to reduce potential hazards before there is a strong proof of
harm, taking into account the likely costs and benefits of action and
inaction.
‐ The PP articulates that people have a duty to take anticipatory action to
prevent harm, the burden of proof of harmlessness of a new technology,
process, activity, or chemical lies with the proponents, not with the general
public. Before using a new technology, process, or chemical, or starting a
new activity, people have an obligation to examine ‘a full range of
alternatives’ including the alternative of doing nothing. Decisions applying
the PP must be ‘open, informed, and democratic’ and must include
affected parties.
(2) Origin of the Precautionary Principle
‐ German Origins Emerge as an authoritative concept during 1970s in
Germany. German principle of Vorsorgeprinzip (precaution or foresight).
The Vorsorgeprinzip developed into a fundamental principle of German
9|P a g e
LWM735: Environmental Law & Policy
environmental law and has been invoked to justify the implementation of
vigorous policies to tackle acid rain, global warming, and North Sea
pollution.
‐ The US Origins
Although it is often regarded as a German concept, it has been used in the
US since the 1950s i.e.– fluoridation of water.
‐ The US has helped to promote what could be called ‘precautionary
prevention’.
 Some e.g.-Food safety (ban on the use of carcinogens from the
human food chain),
 Environmental safety (ban on the use of chlorofluorocarbons) and
 Public health (ban on the use of Diethylstilboestrol (DES) as a growth
promoter in beef).
‐ When an activity raises threats of harm to human health or the
environment, precautionary measures should be taken even if some cause
and effect relationships are not fully established scientifically – Wingspead
Statement 1998, Wingspead, Wisconsin, USA.
(3) What the PP is not...
‐ The PP is Not a prediction – it is a process that may/may not lead to
exposure reduction measures and not the same as ‘prevention’ which is
concerned with ‘known ‘risks. Precaution=Uncertain/unknown
hazards/risks e.g. Bans on asbestos or smoking in 1950/60s would have
involved both precaution and prevention but bans in 2003 are Prevention
only because risks are well known.
‐ Not based on ‘zero’ risks but aims to achieves lower/more acceptable
risks/hazards with lower overall costs, both quantifiable and non-
quantifiable.
‐ Not the same as ‘risk assessment’- it is broader, deeper, supplementary to
R.A.
‐ Not one sided – It applies to substitutes/alternatives too: and it promotes
innovation and combats monopolies such as asbestos, CFCs, PCBs,
antibiotics in animal feed, etc.
‐ Not oblivious of costs of all kinds, and in both directions (i.e. of acting or
not acting to reduce risks/hazards), including ‘secondary’ costs/benefits.
‐ Not based on anxiety/emotion but uses the best of the ‘systems sciences’
of complex processes to make hopefully wiser decisions.
‐ Not proof against misuse or bad decision making (as with any other policy
tool).
‐ Not a guarantor of ‘consistency’ or ‘predictability’ between cases – each
case is different.
‐ Not affected by people’s motives for promoting/opposing the PP- but their
interest (economic, political, scientific) in the issue do need declaring.
(4) Is it a Legal Principle?
‐ Some critics argue that it is a principle of law which states that in cases
where there are threats to human health or the environment the fact that
there is scientific uncertainty over those threats should not be used as the
reason for not taking action to prevent harm.
‐ Others argue that the PP should be adopted as a general goal but it would
be a mistake to believe that it will resolve the international environmental
problems.
(5) The EU and the Precautionary Principle
‐ The EU strongly advocated the inclusion of the PP for decision making
based on the assumption that it has already become a full-fledged and
general principle of international law.
‐ The Maastricht Treaty 1993 (creation of the EU). Community policy on the
environment shall be based on the PP and on the principle that preventive
actions should be taken, that environmental damage should as a priority
be rectified at source and that the polluter should pay. The EC Directive
2001/1/18 (Legislation on GMOs).
(6) PP at the International Level
‐ The Rio Declaration on Environment and Development 1992 – Principle
15 states:
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
scientific certainty shall not be used as a reason for postponing
cost-effective measures to prevent environmental degradation.
‐ Biodiversity Convention 1992. Where there is a threat of significant
reduction or loss of biodiversity, lack of full scientific certainty should not
be used as a reason for postponing measures to avoid or minimize such a
threat.
‐ Cartagena Protocol on Biosafety 2000. Regulate trans-boundary
movement of GMOs based on the PP (Preamble, Article 1, Article 10(6)
and Article 11(8) (parties of import to apply the PP on GM food or feed).
‐ Montreal Protocol 1987. Parties to this protocol to protect the ozone layer
by taking precautionary measures to control global emissions of
substances that deplete it.
‐ Climate Change Convention 1992 - The Parties should take precautionary
measures to anticipate, prevent or minimize the causes of climate change
and mitigate its adverse effects.
‐ United Nations Fish Stocks Agreement 1995 - States shall apply the
precautionary approach widely to conservation management and
exploitation of straddling fish stocks and highly migratory fish stocks in
Abd Shukor Bin Mohd Yunus
order to protect the living marine resources and preserve the marine
environment.
‐ Applied in the Malaysian Biosafety Act 2007. Agreed that it is legitimate
for states to apply the PP when deciding whether or not to allow the
import, introduction, transfer, handling or use of GMOs or their products
within their territories.
(7) World Trade Organization and the Precautionary Principle
‐ Agreement on the Application of Sanitary and Phytosanitary Measures
1993 Articles 5(7).
 Provisional measures
 Sanitary or phytosanitary measures on the basis of available pertinent
information
 Obligation to seek additional information
 Does not mention ‘threats of serious and irreversible damage’
 Sanitary measures include protection of human health
(8) Conventions without explicit reference to the PP
‐ Law of the Sea 1982 – Adopts a precautionary approach, see Southern
Bluefin Tuna case.
‐ Basel Convention 1992 – Adopted the philosophy of the PP.
‐ Rotterdam Convention 1998 – Protection on the Rhine- procedure is an
implementation of the PP.
(9) Cases with references to the PP
1. Gabcicovo - Nagymaros case (Hungary v Slovakia 1997) Case relating to
the construction of dams on the river Danube. Hungary relied on the PP.
The Court refers generally to newly developed norms of environmental law
without mentioning explicitly the PP.
2. Hormones case (US/CAN vs EC 1998) The measure at issue is an EC
prohibition of imports of meat and meat products derived from cattle
injected with growth hormones. The Appellate Body recognized that the
PP is implied in the SPS Agreement. Article 5.7 does not exhaust the
relevance of the principle.
3. Southern Bluefin Tuna Cases (Australia/NZ vs Japan 1999). The case
concerned the conservation of the population of the Southern Bluefin
Tuna. In the view of the Tribunal, the parties should in the circumstances
act with prudence and caution to ensure that effective conservation
measures are taken to prevent serious harm to the stock of Southern
Bluefin Tuna.
(10) Criticisms of the PP
‐ Too vague to serve as a regulatory standard because it failed to specify
the level of environmental harm required to invoke its operation.
‐ The rhetoric of precaution is invoked without any explication of how it
might be operationalized in practice.
‐ It is neither well defined nor consistent. International conventions refer to it
as precautionary approach while most EC treaties refer to it as PP. Thus,
no common understanding.
‐ There is concerns that strict application of the principle could hamper
beneficial innovation.
‐ The process approach may reverse the normal burden of proof.
‐ The PP does not explain what is meant by ‘scientific uncertainty.’ No
international agreed definition.
‐ A threat to trade because trade protectionism may come under the guise
of safety concerns.
‐ The PP does not allow for an assessment of all the risks, including indirect
risks of alternative technologies, nor does it contemplate the benefits of an
activity, to achieve an overall comparison.
(11) The Status of the PP in International Law
‐ In order to be recognized as customary international law, a principle must
satisfy two conditions:
 There must be a uniform state practice
 A notion that this practice is followed because it is the law
‐ In the case of the PP, both requirements are lacking.
‐ The PP has been given varying forms in international treaty law, but has
not yet developed into customary international law.
‐ The US did not consider that the PP represents customary international
law and suggested it is more an ‘approach’ rather than a ‘principle’.
‐ In the Biotech case, the US argued that it was only an approach not an
internationally recognized principle.
‐ The Status of the PP in WTO Agreements
‐ WTO law is part of public international law
‐ The crystallization of the PP into a customary law, if ever, would have to
be taken into account in the interpretation of the WTO provisions.
‐ Applied extensively in the Cartagena Protocol on Biosafety but not
recognized by the WTO in the Biotech case. The judges stressed that the
general acceptance of the principle as a general principle of international
law or not was an abstract question.
‐ However, despite the critics, leading legal scholars have argued that PP is
part of a developing body of international law.
‐ The EU strongly advocated the inclusion of the PP for decision-making
based on the assumption that it has already become a fully-fledged and
general principle of international law.
10 | P a g e