LITERATURE REVIEW

Various authors have written about environmental protection in developing countries. Some scholars have reflected the problems and hardship faced by most of these

countries on pollution prevention and land degradation due to various economic activities, including exploration of natural resources such as minerals. Most literatures have covered the general problem of environmental protection, but, there is a gap on literatures addressing particularly the protection of mining areas especially to the territorial sovereignty of the states.

In Tanzania this gap continues, the researcher aimed to address the problem of land degradation in Mererani areas for the well ground that most of the companies involving in mining activities are not complying with the mining laws. The researcher discussed critically the literatures which covered the environmental protection. Though most of the literatures did not point out directly to the mining areas protection, but it covers generally the question of enforcement and implementation of international environmental law in the issues of environmental protection. The researcher believing mining area is part of environment, these include:-

Eric L Garner Am22 contested that international law which include treaties govern mining activities only in relation to areas of the World recognized as international in status, such as High seas areas and Antarctica region, being outside the territorial boundaries of any sovereign states. He went further to argue that notwithstanding, treaties were between sovereign states, its enforcement mechanisms were slow, cumbersome and for mining related activities, rarely implemented. This literature of the author named herein above is important in the study as it suggests with no question lacuna which international environmental law has in the protection of mining areas. The author did not articulate a single word in matter inter alia protection of mining areas out limit of the areas with international status. This is the weakness the author left which show how international law never put concern in protection of mining areas within states jurisdiction. This might be for the reason of the doctrine of state sovereignty but international law should at least alert state on matter of the environment protection basing on the impact of the pollution and other environment problem which can not only affect individual states, but it may affect other states beyond the boarder of the pollutant state.

Aleixandre Kiss, and Dinah Shelton23 viewed that international environmental law places emphasizes on national measures of enforcement they add that international environmental law requires implementation and enforcement at the national level that states to take appropriate action in domestic legal systems to enforce the laws they enact pursuant to international obligations, they cited UNCLOS, as an example which requires states parties to enforce their laws and regulations and take other measures necessary to implement applicable international rules and standards as per Articles 213- 220 of the UNCLOS; this helped the researcher to develop critical analysis on the weakness of international environmental law in the question of enforcement and implementation as this requires does not show how or does not show mechanisms which international law could be practical enforced and implemented at national level in various environmental issues. This literature is also useful to the researcher as it suggest the need of finding whether enacted Tanzania environmental laws are enforced pursuant to international obligation. They added that what is known about the environment also suggest that the solution to environmental problems lies in the management of natural resources. To be efficient, such management must be international and continuously supervised. For this, as well international organizations are crucial. They believed that international organizations representing the common interests of mankind can best integrate and respond to the interdependent issues of environmental quality development, product control and energy resource management. The author has positive thought and useful in the field of international environmental laws but with that advantage at the priority of the common interest and not other resources not follow within the meaning of common interest.

Philippe Sands24 viewed that as the principal subjects of international law, states have the primary role in enforcing rules of international environmental law, add that, to be in a position to enforce a rules of international environmental law, a state must have standing, and to have standing it must be able to show that it is, in the words of the international law commission (ILC), ―an injured state‖ The author threw well his views but left challenges‘ that only injured states can enforce international environmental laws, that show enforcement is required only after effect occurred. The author is much concern with the treatment of the outcome rather than the effective preventive measures pertaining to the problem. While in real sense precautionary principle is of great importance when it comes to the matter of environment protection in its generality.

Whybe Th. Douma25believed that effective increase the enforcement powers at local level a coordinated cross-sector approach respective to the local and thematic context has to be taken. This means the triggering of international private sector regulation mechanisms, such as the OECD national – contact points and inspection panel of multilateral financial institutions, building connections to intergovernmental investigation and inspection organizations ( for example IMPEL, Euro just ) and the inclusion of nongovernmental organizations for improved reporting and verification. These efforts should be connected to the political process and compliance mechanisms inside the respective MEAs conferences of the parties. In all these approaches affected communities have to be, as far as possible, the integral part of the capacity building measures and enforcement actions. The text emphasize on the usefulness of the local laws on fighting against environmental problems, hence the book helped much to this study as it point out the relevant mechanism on the implementation and enforcement of the laws on environment. But the gap is still in existence as the author failed to show how possible environmental laws can be successive enforced and implemented in individual state.

Andrew W. Samman26 said that there is a flurry of international environmental lawmaking efforts already underway. If these laws are to be successful, however, enforcement mechanisms must be established. This literature is important as it shows weakness international environmental laws have for lacking enforcement mechanisms to ensure implementation of these laws in domestic legal systems. But also it put emphasis on the enforcement and implementation of international environmental law in protection of environment, including mining areas.

O’ Connell, Marry Ellen27 believed that enforcement is what happens when regulated bodies fall short of full compliance with environmental law, added that enforcement requires resources. Professor Cannel went on to say that, international environmental law is generally obeyed and its enforcement is based primarily on compliance, not enforcement. Most enforcement of international law is not done through enforcement institutions. Therefore acts of enforcement are less visible at international level than in domestic level.

O‘Connell meanwhile left one question that ―does this mean that international law generally, and environmental law, is unsuccessful? He respond himself that international law is a monument to successful laws, without much enforcement. O‘ Connell believed that international environmental law is less well-suited to enforcement than other areas of international law. O‘ Connell believed that emphasizing enforcement could actually make international environmental law less, not more successful. O‘Connell went further to argue that although international law has enjoyed success with less enforcement to date, times are changing. Certain aspects of international law leave some rules unsuited to coercive enforcement, but other rules are suited to enforcement through the use of domestic enforcement mechanisms. This argument will work in this study as it will enables researcher to analyse in what manner international environmental law can be practically enforced and implemented in individual states especially developing countries whereas environment is well humiliated.

In trying to show what enforcement mean, O‘Connell quoted Dictionary meaning that

―is the compelling of obedience to law‘‘28 In domestic legal systems, the executive or judiciary enforce the law generally by imposing sanctions on those who disobey the law. Domestic system may do this by controlling the assets, freedom, or the very existence of law breakers.29 This is lacuna international environmental law has as it lacks executive or judiciary to make possible enforcement and implementation of international environmental law.

In the case of Hilao v Estate of Marcos30 suggest even further possibilities for enforcing environmental law than do the war crimes cases, in this case citizens of the Philippines, who were abused or whose relatives were murdered at the hands of Fidel Marcos and his subordinates, successfully brought a class action suit in U.S. District Court for violation of their human rights. The plaintiffs were awarded $1.2 billion as a class, and the defendants were ordered to assist in revealing the whereabouts of assets, including providing information about accounts in Switzerland. This judgment overcame many obstacles to the successful enforcement of international law. First, the court found that the Marcos government did not enjoy sovereign immunity for its violations of important rules of international law."31 Second, the court found no forum non conveniens problem because the Marcos family held assets in the United States. Third, the Alien Tort Act provided a cause of action by permitting the Filipino citizens to sue in the United States for violations of international law.32 The Hilao court stated that aliens could sue in the U.S. courts for violations of international law that are "specific, universal and obligatory."33 This holding is germane because international environmental law could fit within this rubric. This case is useful in the study as it shows lacuna in the enforcement of international environmental law, the case show the difficulties court face in enforcement of environmental law as it explain the doctrine of forum non convenience which creates an additional barrier to the enforcement of international law, as many countries require that the forum in which the case is brought be ―convenient‖. For many courts, this rules out applying international law because international is not the law usually applied by the court and is, therefore, not convenient. Some courts also refuse to decide questions which they consider ―political‖ or which interfere with the executive‘s ability to carry out foreign policy. This type of prudential barrier eliminates many international law cases because they inherently touch on foreign affairs34.

The attempt to create general binding rules at the conference on Environmental and Development in Rio de Janeiro failed.35Instead, ―soft law‖ documents were produced which were not subject to enforcement36 , this document is essential and useful in this study as helped in making analysis of the enforcement of the International environmental law which the researcher believe it is a lacuna which is also an obstacle towards successful protection of environment.

Jane Holder and Marie Lee37 believed that environmental legislation is and will remain an important pillar of the community‘s approach to achieving its environmental objectives, and one of the strategic priorities for the coming decade is to tackle the significant implementation failures we face in a number of areas. They added altogether that it is mistake to think that putting the law in place is the end of a process, or the solution to a problem, it is just the beginning. In deed when we look at the persuasion and negotiation that goes on in regulation, the language of command and control begins to look ironic. This is a rhetorical accomplishment which has no real basis, a very little commanding and controlling actually goes on in the implementations of environmental regulations.38 This is a resourceful literature as it encourages implementation as a significant way to end up misery in environmental matters including mining issues.

Ian Mann (2009)

Ian believed that environmental problems, such as pollution cannot be addressed by individual countries in isolation, they have to collaborate. Therefore to him international organizations, and international law, provide an effective mechanism for developing joint approaches that deal with the national and regional elements of an environmental problem at the same time. This literature shows how the author accept cooperation between countries in solving environmental problems that he acknowledge important of international law as well as international organizations. On the other side this literature left a lacuna as the author only ending saying that international law and international organizations provide an effective mechanisms for developing joint approaches that deal with the national and regional of an element of environmental problems . The author failed to show how international laws and international community‘s ensure enforcement and implementation of environmental laws in individual countries in solving various environmental problems.

Michael Faure (2010) 40 said that those addressing problems of environmental degradation in developing countries, policymakers and scholars have neglected the important question of regulatory design. While a country‘s long-term improvement in environmental conditions almost certainly depends on improving its economic position, in the short to medium term, the quality and type of environmental regulation can play a significant role in determining regulatory effectiveness.

Faure further commented that much of the research done in developing countries into the failures of environmental regulation has focused on implementation and enforcement problems. The primary reasons for such regulatory failure is that policymakers have not paid enough attention to designing regulation appropriate to the legal, economic, political, and social situations in which they must function.41This literature is useful in the study as it shows how the author acknowledge that there is a problem of enforcement and implementation of environmental laws although he did not take concern on that rather than on regulatory design. This is the lacuna the author left because regulatory design is mean less if there is no mechanism to put those regulations into practice that is enforcement and implementation of the laws.

Orlando E. Delogu and Hermann Soell (1976)42 believed that the growing range of environmental problems are acute and must be dealt with by governments if society is to be preserved. The role of government is almost always seen in the context of regulation the establishing of some sort of administrative mechanism to enforce, allocate, and suggest further limitations all designed to reduce the magnitude of a problem to acceptable levels. This literature is useful in the study as it shows the need of governments to put much concern in the environmental problems to preserve a society by establish administrative mechanisms to enforce the laws.

2.7 International environmental laws

The term International environmental law was defined by Dr. Birnie and Professor Boyle to mean ―…the aggregate of all rules and principles aimed at protecting the global environment and controlling activities within national jurisdiction that may affect another state‘s environment or areas beyond national jurisdiction62.From the observation point of view it seems that, when one defined environmental law at global level, it includes all rules, principles, treaties, common law, and customary which are used by the International community‘s to protect the world environment by controlling activities within municipal jurisdiction of states so to avoid negative impact to states.

Enforcement of environmental laws

A State implements an international norm at the domestic level in three phases: first, by adopting national legal measures; second, by enforcing them; and third, by reporting on the implementation measures. National legal measures might include enacting legislation, formulating policies or administering resources. The domestic implementation measures adopted need to be appropriate for the purpose of meeting obligations under the international treaty, so as to achieve ‗compliance‘ with treaty obligations. The mere fact that an implementation measure is taken does not mean that it is adequate to meet a treaty obligation nor that the State is necessarily compliant with its obligation76.

The term 'compliance' is part of a range of terminology used to describe patterns of conformity with legal norms77. Compliance is defined here as 'the fulfillment by the contracting Parties of their obligations under a multilateral environmental agreement and any amendments to the multilateral environmental agreement. However, it should be observed that compliance is not an ‗all or Gaps in the implementation of environmental law nothing‘ game. The fact that a Party is not fully compliant does not mean that it is fully non-compliant78. Despite the binary nature of the language used, compliance occurs across a scale of shades of grey. Enforcement is 'the range of procedures and actions employed by a State, its competent authorities and agencies to ensure that organizations or persons, potentially failing to comply with environmental laws or regulations implementing multilateral environmental agreements, can be brought or returned into compliance and/or punished through civil administrative or criminal action‘79. Environmental treaties often articulate specific obligations that are negotiated without a clear plan for their national implementation, due to the difficulty of making concrete assessments of the financial, human, technical and social requirements of implementation.

Therefore, the anticipated requirements for national implementation by a particular country might be only loosely approximated at the time of negotiation. Some agreements may even seem to be inspirational or educative, lacking in specific ways of forming concrete assessments of the requirements for their practical implement ability. Novel approaches to promoting public participation in implementation include the defining of citizen rights to enforce legislation, particularly where public agencies otherwise lack accountability. Access to justice has been largely facilitated by providing wider standing for aggrieved parties to seek redress and the expansion of substantive and procedural opportunities for public interest inputs. The judiciary has, in recent years, enhanced enforcement efforts by governments to implement environmental laws. It plays a crucial role by interpreting legislation relating to environmental issues, integrating emerging principles of law within the holistic paradigms of sustainable development, providing a coherent and comprehensive strategy for integrating diverse sectoral laws into a cross-sectoral approach and for ensuring effective implementation of legislation. This extensive scope of influence has been extended in recent years, as the judiciary articulates fundamental rights to a satisfactory environment. Some supreme courts have broadly interpreted elements contained in their constitutions to entrench the rights of the public to a healthy and protected environment. In some states, courts have given consideration to the concept of inter-generational and intra- generational equity and have applied the public trust doctrine in regard to the management of natural resources and the environment. The responsibility and liability of the industry has also been emphasized by the judicial support for the polluter pays principle. Further, the public's accesses to information in regard to the functioning of the Government, founded on the right to know and of free speech, and the public‘s access to the courts for the purpose of environmental litigation, have been considerably enhanced. Some jurisdictions have established specialist courts and tribunals to hear environmental matters.