PROPOSAL ON
APPLICATION OF THE PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL
LAW IN THE LEGAL SYATEM OF BANGLADESH
NAME: ESHITA PARVIN
ID: 2342361045
SECTION: A
SESSION: 2022-23
PROGRAMME: LLM (MASTER OF LAWS)
BATCH: LAW 04
THIS THESIS IS SUBMITTED IN PARTIAL FULFILLMENT OF THE
REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS (LLM)
DEPARTMENT OF LAW
FACULTY OF SECURITY & STRATEGIC STUDIES (FSSS)
BANGLADESH UNIVERSITY OF PROFESSIONALS (BUP)
DECEMBER 2023
1
Abstract
There are some basic principles of international Environmental Law and some of them are now
customary international law. These principles should implement in the domestic legal system for
the sake of environmental interest. However, the effective implementation of these principles in
countries like Bangladesh faces a challenge due to insufficient national legal mechanisms. In this
context, the judiciary is playing a prominent role by integrating these principles in a coherent
manner within the existing legal framework. It is noteworthy that Bangladesh is actively working
towards adopting such principles, either through its constitutional interpretation or the introduction
of new national legislation specifically focused on environmental protection. So, this paper
discusses and analyzes the principles of international environmental law and its application in
protecting environment, and steps taken by judiciary to accelerate this objective. The main
objective behind this research is to identify the contemporary picture and study the nature and
extent of application of international principles and customary laws through judicial procedure. It
also analyzes the role of judiciary, recent development and improvement of environment
protection.
Key words: Principle, Environment, Application, International Environmental Law,
Environmental right, Constitutional law, Development, Environmental courts, Effectiveness,
Judicial Independence, Sustainable development, Bangladesh.
Background of the Study
In particular, the environment is a universal concern and the most significant aspect of life. The
absence of a natural and healthy atmosphere, which is unimaginable in our ultra-modern day, is
the biggest and most critical issue facing the modern world. The environment affects an organism's
capacity for survival, reproduction, growth, and other elements of its evolutionary history.
Environmental issues are often seen as a global concern shared by all people. Consequently, it is
imperative to safeguard the environment from destruction since it is hard to imagine living a happy,
healthy life and seeing the right kind of progress for the nation without a clean, healthy
environment. Therefore, it can be said that environmental protection is comparable to life
protection. A number of worldwide activities led to the formal creation of environmental law. It
dates back to the 1980s, a decade in which environmental concerns prompted the world community
to take its first universal action. Over the past thirty years, there has been a significant advancement
2
in international environmental law. Nations were obligated to implement a number of international
environmental law treaties. Bangladesh is likewise attempting to incorporate international
environmental legislation into the development of its legal system. It is essential to remember that
Bangladesh is vulnerable to a number of environmental changes. Therefore, it must use greater
caution in both environmental development and conservation. International environmental law
may have a significant impact on Bangladeshi national policy and help combat environmental
deterioration. Therefore, in order to better safeguard the environment and ensure human survival
on Earth, some fundamental concepts of international environmental law must be implemented
into regional legal systems.1
In short, there are some fundamental principles of international environmental law, some of which
have evolved into customary international law. These ideas ought to be included into the national
legal system for the benefit of the environment. However, due to insufficient national legal
frameworks, nations such as Bangladesh have challenges in putting these concepts into practice.
By integrating these concepts with the cogent justification of the current legal system, the
judiciaries of these nations can play a significant role in this regard. It is noteworthy to emphasize
here that Bangladesh is also attempting to implement these principles through the enactment of
new national environmental protection laws or through constitutional amendments.2 So, this paper
seeks to analyze briefly and precisely various principles of international environmental law and
the application of the principles of International Environmental Law in the domestic legal system
of Bangladesh. So, this research paper will focus on cardinal principles of international
environmental law.
1
Jona Razzaque, ”Access to Environmental JusticeRole of the Judiciary in Bangladesh”(2000) AE
<https://www.academia.edu/1133995/Access_to_Environmental_Justice_Role_of_the_Judiciary_in_Bangladesh>
accessed on 25 March 2023
2
M. Z. Ashraful, “Application of the Principles of International Environmental Law in the domestic legal System of
Bangladesh: A Critical Study on the legal framework and the position of judiciary” IOSR-JHSS 5 19
<https://www.iosrjournals.org/iosr-jhss/papers/Vol19-issue5/Version-4/D019541824.pdf> accessed on 25 March
2023
3
Research Questions
1. Whether the principles of international environmental law have been incorporated in the
legal system of Bangladesh?
2. How effectively can the Judiciary of Bangladesh apply these principles to protect the
environment in Bangladesh?
Objectives of the Research
• To examine the extent to which the principles of international environmental law have been
incorporated into the legal system of Bangladesh
• To identify how the judiciary in their decisions apply and interpret these principles
• To evaluate the impact of judicial decisions based on international environmental law
principles on environmental protection
• To identify the key challenges and opportunities for using the principles of international
environmental law to promote environmental protection
• To explore how these challenges can be overcome and opportunities be maximized.
• To propose recommendations for the effective application of the Principles of International
Environmental Law
Literature Review
According to research by Jona Razzaque (2000), there is currently no mention of a right to a clean
and healthy environment in the People's Republic of Bangladesh's Constitution, preamble, or
fundamental rights part. However, article 18A of the document lucidly and clearly prescribes and
describes about the protection and improvement of the environment and biodiversity for both the
present and future generations, but it does not acknowledge or mention the international
principles.3
As to the research conducted by M. Z. Ashraful, several fundamental concepts of international
environmental law have developed into customary international law. We must enshrine these
principles in domestic legislation if we are serious about safeguarding our natural resources.
Nevertheless, the absence of an appropriate national legal framework makes it impossible for
nations like Bangladesh to implement these ideas. Adopting these principles and offering a cogent
3
Jona Razzaque, ”Access to Environmental JusticeRole of the Judiciary in Bangladesh”(2000) AE
<https://www.academia.edu/1133995/Access_to_Environmental_Justice_Role_of_the_Judiciary_in_Bangladesh>
accessed on 26 March 2023
4
interpretation of the relevant legal framework might be crucial roles for the judiciaries in these
nations. Not to be overlooked is the fact that Bangladesh is also attempting to implement these
principles via the drafting of new national environmental protection laws or through constitutional
amendments.4
The concepts of international environmental law, their historical and conceptual evolution, the
various legal regimes for environmental protection, and the involvement of international
institutions and actors in the creation and application of international environmental law are all
covered in Shawkat Alam, Md. Jahid Hossain Bhuiyan, Tareq M.R. Chowdhury, and Erika J.
Techera's (1997) book. The writers further explore the difficulties and possibilities associated with
international environmental governance, encompassing concerns about biodiversity loss, climate
change, and sustainable development.5
In his book, Professor Dr. Abdullah Al Faruque offers new insights into the rapidly expanding
discussions, advancements, and disputes concerning environmental law, drawing from both
Bangladeshi and international legal frameworks. But this book does not provide any application
as well as solving mechanism in terms of principles of international environmental laws.6
Syeda Rizwana Hasan's (2005) research indicates that while Bangladesh has integrated several
concepts into its national environmental legislation, the courts have not done a satisfactory job of
enforcing them. The paper examines a number of pertinent instances and highlights the difficulties
courts have when implementing the principles of international environmental law within the
framework of Bangladeshi law.7
The People's Republic of Bangladesh's Constitution does not mention any right to a clean and
healthy environment, according to Professor Emraan Azad's (2014) research. However, Article
18A of the document lucidly and clearly prescribes and describes how to protect and improve the
4
M. Z. Ashraful, “Application of the Principles of International Environmental Law in the domestic legal System of
Bangladesh: A Critical Study on the legal framework and the position of judiciary” IOSR-JHSS 5 19
<https://www.iosrjournals.org/iosr-jhss/papers/Vol19-issue5/Version-4/D019541824.pdf> accessed on 26 March
2023
5
Shawkat Alam, Bhuiyan, Chowdhury and Erika J., Routledge Handbook of International Environmental Law (1997,
Routledge)143
6
Professor Dr. Abdullah Al Faruque, 'Environmental Law: Global and Bangladesh Context'
7
Syeda Rizwana Hasan, “Application and Reform Needs of the Environmental Laws in Bangladesh” (2005)
BJL<https://www.biliabd.org/wp-content/uploads/2021/08/Syeda-Rizwana-Hasan.pdf> accessed on 26 March
2023
5
environment and biodiversity for both the present and future generations. This provision is not
acknowledged or mentioned in the article.8
The phrase "Greening Justice" describes a system where all three branches of government
collaborate to defend citizens' legal rights concerning the environment. Significant international
supporting for this concept was given in 1992 by the Rio Declaration on Environment and
Development. As a signatory state, Bangladesh made several progress, including establishing
environmental tribunals and enacting environmental legislation. While Bangladesh's establishment
of environmental courts was revolutionary in terms of advancing environmental justice, a number
of legal and practical barriers have kept the country from completely achieving its objectives.9
In his thesis, Abul Hasanat (2013) discovered that Bangladeshi courts have incorporated the
principles of international environmental law into their decisions. He also examined a number of
significant cases and pinpointed the obstacles and possibilities for the successful integration of
these concepts into the Bangladeshi legal framework. The essay concludes that by incorporating
international environmental law concepts into their rulings, the courts may significantly contribute
to Bangladesh's sustainable development.10
Human rights provisions from other international agreements must be applied by international and
regional courts to prove the existence of a right to the environment because it is not specifically
recognized in any of the international human rights treaties. Due to the global trend of assembling
a right to environment by fusing together many human rights standards, national courts are viewing
the protection of the right to environment in an erroneous manner. Actually, Bangladesh is only
choosing an intersecting approach in line with the global trend rather than forging a new route.
Neither does this approach recognize the right to the environment nor offer a convincing substitute.
Instead, it adds a great deal of complexity to the comprehension and implementation of a right to
the environment, including a large number of court cases, a lack of consistency in court decisions,
8
Emraan Azad,”Environmental Pollution in Bangladesh: Need for a Legal Overhaul”(2014) 1(1) BLAJ accessed on 26
March 2023
9
Md. Sefat Ullah, ' GREENING JUSTICE IN BANGLADESH: A ROAD TO SUCCESSFUL ENVIRONMENTAL COURT’ (2017)
3 GURSS 101-128
10
Abul Hasanat, ‘Using International Law in National Court: Bangladesh Perspective’ (2013) 13(1&2) Bangladesh
Journal of Law 49
6
a cautious approach taken by courts when handling environmental claims arising from the right to
the environment as a subsidiary right, and so forth.11
Dr. Md. Iqbal Hossain (2017) claims that over the past 20 years, the Bangladeshi courts,
particularly the higher judiciary, have been actively protecting and preserving the environment and
ecosystem within the purview of public interest environmental litigation. The Bangladeshi
Supreme Court has added innovative concepts to the nation's environmental law and addressed an
extensive range of environmental issues. The court will consider petitions from both living people
and inanimate objects, take suo motu action against polluters, expand the scope of litigation,
interpret current constitutional provisions in new ways, and reward petitioners and attorneys
financially for bringing environmental issues before the court.12
In his paper, Md. Mizanur Rahman claims that Bangladeshi citizens are unable to promptly seek
legal action in court for environmental harm because of gaps in the country's legislative and
regulatory systems. A few issues plaguing the court system are a lack of available legal advice,
confusion over their power, and excessive caseloads. But a court cannot recognise a crime on its
own. The affluent and powerful polluters are hesitant to follow the law because of this. Restitution
is rarely given to victims, and there aren't many workable options for resolving the dispute.13
According to Article 18A, the State is required to use every reasonable means to protect and
enhance the environment, as well as to conserve and protect wetlands, forests, wildlife, and natural
resources for both the present and the future. Moreover, Article 32 ensures that no one's right to
life or liberty will be violated unless they comply with the law.14
11
Mahmudul Hasan & Md. Deedarul Islam Bhuiyan, 'PUBLIC INTEREST ENVIRONMENTAL LITIGATION AND
ENFORCEMENT OF RIGHT TO ENVIRONMENT IN BANGLADESH: A COMPARATIVE STUDY FROM THE GLOBAL
INTERSECTING APPROACH’ (2019) 3 IJLHSS 15-33
12
Dr. Md. Iqbal Hossain, International Environmental Law Bangladesh Perspective (6th edn, Ain Prokashan : Dhaka
2017) 767
13
Md. Mizanur Rahman, ‘ Can Ordinary People Seek Environmental Justice in Bangladesh? Analyzing Through the
Lens of Legal, Policy, and Institutional Framework’ (2021) 29(2) BJPA 15-34
14
Constitution of the People’s Republic of Bangladesh
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A student from India, Sumbul Fatima, wrote a paper on the role of the National Green Tribunal of
India in environmental justice.15 It’s important to step back and analyze this new and revolutionary
approach that India has taken. For the sake of ecological fairness, we should apply it in our country.
Md. Mostafa Hosain (2013) stated in his paper that the primary responsibility of national courts is
to uphold domestic legal order as its guardian. The role of the higher judiciary in all national courts
is to be proactive in upholding domestic legal order and leading the way in ensuring that
governments adhere to international legal principles. It is true that an independent judiciary that
applies international standards through specialized, non-political legal language holds great
potential as a platform for interpreting, applying, and creating new international norms. Because
of their independence and impartiality, national judges are often regarded as the ideal candidates
within the national systems to take on this crucial duty.16
Research Methodology
The qualitative method has applied in this study's data collection and analysis. This approach has
explanatory nature which assists to develop arguments and meanings through the analysis of data
from different sources. For that reason, this strategy has been used. A combination of primary and
secondary sources are used in this research. Statutes, ordinances, rules, court decisions, and other
codified legislation, case law, and international legal instruments are some of the primary sources
used in this study. Nonetheless, this research primarily depends on secondary sources. This work
uses a wide range of secondary materials in addition to primary sources, including books, articles,
reports, papers, published journals, online journals, research papers, and more. Some
environmental cases have been mentioned in order to compare the performance of our judiciary in
ensuring the environmental justice through the application of the principles of international
environmental law.
15
Sumbul Fatima, ‘National Green Tribunal: A New Dimension of Environmental Jurisprudence’ (2017) 22 IOSR-
JHSS 44
16
Md. Mostafa Hosain, Application of UDHR by Supreme Court of Bangladesh: Analysis of Judgments,CLC (2013)<
https://www.clcbd.org/journal/13.html>
8
Scope of the Research
Basically, scope refers to how far the research area is explored and within what parameters the
study will be conducted. Therefore, this study will focus on environmental facts and factors with
a greater focus on international environmental principles that are common to both developed and
developing countries around the world and are important issues.
Limitation of the Research
Predominantly, all studies have limitations and it is very common perception that every work is
confined with some particular limitations that is why this paper also confined with some
limitations. Generally, it is difficult to give a general definition of the legal status of the principles
of international environmental law. Cardinal limitations of this studies are lack of available and
reliable data, information lacking, lack of previous studies in the research on that arena and most
important thing is time limitation to make such a research in a perfect way and so on.
Rationale of the Research
There is very common principle that every work has some significance and importance, thus, this
research paper also has significance in terms of environmental law regime. At the same time will
contribute for further research functions in order to provides with valuable and verifiable
information regarding the Principles of International Environmental Law which principles are
reflected in the domestic legal system of Bangladesh. The findings of this research will give a brief
idea to readers about environmental law regime status in the Bangladesh perspective and as well
as the national laws of Bangladesh that underlie the legal principles.
Chapter Outline
This research paper structured by five chapters where the first chapter discusses about introduction,
second chapter prescribes regarding origin and development of Principles of International
Environmental law, chapter three briefly describes about national framework of environmental law
of Bangladesh, chapter four will prescribe about judicial application of Principles of International
Environmental Law in the domestic legal system of Bangladesh and finally fifth chapter articulate
conclusion, findings and prescribe recommendations on the basis of findings.
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