Generally theorists have proffered two principle concepts that all states have adopted in their attitude towards their treatment of international law. The first school has been termed the "monist" and can be interpreted as a state having a notion that both their domestic and international law are completely amalgamated from one solitary legal system. Should some conflict arise between municipal law and international law, then "most monists would contend that international law should unquestionably prevail.
" International rules are immediately applicable domestically and therefore international rights and obligations become presently incumbent upon individuals. The second theory is the "dualist" approach. Both municipal and international law are completely independent of each other, both co-existing top regulate differing subject matter. Municipal law deals with individuals and international law regulats the affairs of states. As both legal systems are exclusive to each other they should not impact on each other's separate fields of operation.
A state, which operates a dualist approach, will internally apply international law "only because it has been expressly incorporated into municipal law. " If there is a conflict then municipal law must be the dominant force. The rigid ideologies of the theories of dualism and monism have never been strictly adhered to and never been a completely true reflection of the legal reality. Nevertheless, they have been useful as a central measuring point to explain the differing actions of individual states when confronted with international law.
The union is unique amongst international organisations in that it has the power to regulate the actions of its members. Further to the amendments introduced by the Maastricht Treaty, there will be an increased power of enforcement in respect of defaulting partners. The European Union originally came into existence as the European Economic Community. Then the "economic" was dropped from the title and now, since, the ratification of the Maastricht Treaty, a Union has been created. In 1957 when the treaty of Rome was concluded, the issue of the environment was not paramount. The post war demand was for European Stability and economic growth.
The ravages of war on the economics of the Member States made urgent the need for expansion and for the improvement of the conditions for the citizens of these countries. Environmental issues, insofar as they were considered at all, was significantly relegated to the imperative requirement of recognising industry and re-establishing shattered economics. The establishment of the European Economic Community did not only establish a series of common objectives, it also established a structure with institutions and a bureaucracy to enforce and execute those objectives, which was eventually to make rise of environmental issues possible.
In the original Treaty of Rome there was no reference to the environment. The omission of environment policy from the Treaty of Rome was resolved, however, by amending the Treaty of Rome to include a chapter on the environment. The "Single European Act", as it is known, was adopted by the parliament in the European Communities (Amendment) Act. 4 The effect of the establishment of a new legal order on environmental issues has been to give the European Union authority to determine policy and to regulate so as to bind in a detailed and specific manner the actions of the Member State.
Under Article 169 of the Treaty of Rome the Commission can issue proceedings against a Member State where there has been a failure to transpose a Directive properly (or at all) into national law. The European Court of Justice is likewise unique (with the exception of the European Court of Human Rights, which exists by international agreement). The European Court is alone in the international context in that it has the power to adjudicate the legality of the actions of members of the Union.
Weaknesses are apparent, however, in that while the Court may adjudicate that a State has infringed Union Law, powers of enforcement are limited. They only amount to little more than the power to repeat the Article 169 proceedings by declaring that a State has failed to comply with an order of the court. The involvement of the practising lawyer in issues of environmental law, is likely to arise where on individual's interests are directly affected by environmental activity, or where a group campaigning against some activity perceived as "damaging to the environment".
Environmental law can arise as an aspect of private law protecting persons or their property, or as an aspect of public law. It is also clear since the decision of the House of Lords in R v Sec of State for Employment, ex parte Equal Opportunities Commission, March 4, 1994, that if a person with a proper interest can show the government is in breach of European Law, they are entitles to use judicial review proceedings to seek a declaration from the court.
There is already a greater willingness by the passive groups to use the courts to achieve their environmental objectives. For example Greenpeace brought an action against British Nuclear Fuels on the grounds that the Government had acted unreasonably in approving to commissioning of the THORP nuclear reprocessing plant in the High Court, March 4, 1994. Reinstatement of or compensation for environmental damage is a more limited but still important function of international legal system.
It is more limited as only those who suffer damage can secure such redress, whether they are States relying on international law of state responsibility, or individuals relying in various ways in their right to bring transboundary actions in national law and also because not all environmental damage is necessarily capable of reinstatement or has an economically assessable value.
Individuals also benefit from the more recent development of environmental rights established by international law, or may be answerable for international crimes also newly defined by international law. The development of international law concerning protection of the environment is of little significance unless accompanied by effective means for ensuring enforcement, compliance and the settlement of disputes.