International Environmental Law

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International Environmental Law

• Spring semester 2005
• USD
• (Silva-Send)

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• International Environmental Law Spring
  Semester, 2005, USD Faculty of Law
• Start date Feb 17, 2005
• Basic knowledge of international law is to be
  desired.
• Notes will be made available throughout the
  semester in the USD home page under ...
• assigned reading from text, documents downloaded
  from
• the internet or handouts, the class notes you
  make and the
• assignments you complete will provide the
  information for the final exam.
• Contents
• Part I
• 1. Issues, concepts, definitions
• 2. Development
• 3. Sources of law
• 4. International organizations in environmental
  governance
• Part 2

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Part I- international environmental law

• 1.Issues, concepts, definitions
• Why international?
• What is environment?
• Differences domestic/international
• Development in modern times
• Sources of the law

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Part 2 Overview of the regimesProblems in the
atmosphereOzone hole 1999, 2000, 2001
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Problems in the atmosphere Air Pollution

• Acid rain - transboundary

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• Problems in the atmosphere
• Climate change / greenhouse gases (carbon
  dioxide) - effects

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Other problems affecting the atmosphere

• Peaceful uses of nuclear power
• Power plants

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Other uses of nuclear power

• Nuclear powered ships, spacecraft, submarines
• Weapons testing

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Protection and preservation of waters
High stress gt 40 available is
withdrawn moderate stress 10-20 available is
withdrawn Low stress lt 10 available is
withdrawn
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Water preservation and protection ARAL SEA
SHARING OF WATERS/DESERTIFICATION/POLLUTION
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biodiversity
Forests then and now
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Hazardous waste and hazardous substances

• Dumping toxic wastes in other countries

Pesticides banned in some countries exported to
others
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Part 3 Compliance and enforcement

• State responsibility
• State liability
• Cases
• - Trail smelter arbitration1941
• - Gabcikovo 1997
• Current thinking state liability,civil
  liability regimes

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Part 3Global trade and the environment

• Extra-territorial applications of domestic
  environmental law
• Interaction with WTO law
• Tuna-dolphin dispute
• Shrimp turtle decision

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Part 4Global commons/common heritage of
mankind/terra nulliusAntarctica, high seas,
space
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Issues, concepts, definitions

• specificity, public, private law
• why international?
• -sources, effects in many states or globally
• -areas beyond state jurisdiction
• -integration of global economy/sharing of
  finite resources
• what is environment?
• -Narrow air, water, land, biotic, abiotic
  (mans cultural heritage)
• -Wide other laws primarily enacted for other
  things but have an effect on the environment such
  as traffic rules, occupational health and safety,
  trade rules
• Philosophical approach anthropocentric vs
  biocentric or ecocentric
• unilateral action important also if it furthers
  international action

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National vs international

• National
• one source vertical system.
• government policy
• ? legislation based on prevention principles,
  precautionary principle, polluter pays principle
  and principle of cooperation, sets standards
• Implementation through administrative law
  command and control techniques ( granting
  authorisation, monitoring and inspecting)
• Enforcement through criminal (imprisonment) and
  civil law (injunctions, fines)
• Economic instruments (taxes)
• Education and market forces
• International
• no one authority, no policy setting body,
  horizontal
• system, only applicable among ratifying states
• rules/standards set by consensus of
  participating
• states
• who is to command and control?
• enforcement voluntary-weakto strong persuasive
  power of compliance
• economic instruments

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• Standards-setting in domestic and int
• -quality standards
• -emission standards
• -product standards
• -process standards
• Multidisciplinary
• law?science?economics
• Human rights, law of the sea, int trade law,
  development law
• Number of actors states, ios, ngos, tncs
• THEREFORE constitutional role, regulates
  problems, provides comp, harmonises, by some
  standard setting
• Both use anthropocentric approach

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2. Sources

• Sources Art 38 ICJ Statute
• International conventions
• International custom
• General principles of law
• Judicial decisions and ..teachings of publicists
• soft law

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Sources (contd)

• Conventions/treaties
• negotiations
• piecemeal or framework
• signing
• ratification
• pacta sunt servanda
• binding only on ratifying states
• Time

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Sources (contd)

• Examples of framework conventions
• Eg UNECE Geneva Convention on long range air
  pollution 1979
• Art 2 the Contracting Parties shall endeavour to
  limit, and as far as possible, gradually reduce
  and prevent air pollution
• -----? 8 protocols with specific obligations
• Eg UNEP Convention on the Protection of the Ozone
  Layer 1985
• Art 2(1) ...take appropriate measuresto protect
  human health and the environment by cooperating
  by means of systematic observations, research and
  information exchangeto assess effectsadopt
  measures and cooperate in harmonizing policies to
  control, limit, reduce, prevent acitivities which
  may affect ozone layer
• -? Montreal Protocol 1987 in force 1989
  (timetable to reduce use of substances listed)
• London Amendment to Montreal Protrocol
• 1990 (added more substances, phase out others
  Copenhagen Amendment 1992 (more substances, bans,

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Sources (contd)

• (b) Customary law uniform, consistent, general
  practice of states opinio juris
• Very difficult to identify in international env
  law with over 190 states, different cultures,
  interests, legal systems, generally minor role
• - not to use own property such as to harm
  others property- judicially used in Trail
  Smelter arbitration 1941, confirmed in Corfu
  Channel case 1949 (state must not knowingly allow
  its territory to be used to cause damage to
  others), and in Legality of the Threat or Use of
  Nuclear weapons 1996 (it is a general obligation
  to respect the environment of other states or of
  areas beyond national control)
• - other principles such as precautionary
  principle, requirement for EIA may derive from
  these

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Sources (contd)

• (c) General principles
• those observed by all nations
• Sovereignty/equality of states
• a)a state has jurisdiction over its resources
• b)a duty of non-intervention in other states
• most crucial principles pacta sunt servanda,
  good faith
• those emerging by agreement, frequently found
  in preambles to treaties
• -cooperation (may now be more than emerging)
• -precautionary principle
• -polluter pays principle
• -common but differentiated responsibility
• -sustainable development

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Sources (contd)

• Soft law
• Weaker---guidelines, codes of conduct,
  resolutions, declarations---stronger, may be
  accepted as general principle or customary
• Leading Banks Announce Adoption of Equator
  Principles
• Washington DC, June 4, 2003 Ten leading banks
  from seven countries today announced the adoption
  of the "Equator Principles," a voluntary set of
  guidelines developed by the banks for managing
  social and environmental issues related to the
  financing of development projects. The banks will
  apply the principles globally .... moregtgt
• ICC International Code of Environmental
  Advertising 1991 Scope of the CodeThis Code
  applies to all advertisements containing
  environmental claims, in all media. It thus
  covers any form of advertising in which explicit
  or implicit reference is made to environmental or
  ecological aspects relating to the production,
  packaging, distribution, use/consumption or
  disposal of goods, services or facilities .

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Sources (contd)

• Soft law (contd)
• UNGA Resolution 1803 on Permanent Sovereignty
  over Natural Resources 14 December 1962
• UNGA Resolution 2995 and 2996 Stockholm
  Declaration of the United Nations Conference on
  the Human Environment 1972

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3. Development 19th century-1945

• 19th century-1945 followed studies by
  individuals, research of scientists
• Few igos
• Few treaties eg conservation of living resources,
  navigation rights, Boundary Waters Treaty 1909
  USA/Canada
• Cases
• Pacific fur seals arbitration 1893 (a state has
  no right to protect natural resources outside
  their jurisdiction)
• Trail smelter arbitration 1941 (states must not
  use their property to cause damage to others)

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3. Development- 19th century-1945 Pacific fur
seals arbitration

• Facts
• US bought territorial rights to Alaska and all
  adjacent islands 1867 from Russia
• US gave exclusive rights for land killing on P.
  Islands to US company
• Claimed Bering Sea as closed sea (though part of
  Pacific Ocean) based on previous Russian claim to
  exclusive jurisdiction (disputed by GB, Canada),
  thus no one else could fish there (ie lucrative
  sealing industry would be exclusively US)
• Seizing of GB sealing vessels

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3. Development- 19th century-1945 Pacific Fur
Seals Arbitration

• Qs submitted
• What exclusive jurisdiction rights over the
  Bering Sea and resources had Russia had?
• How far were these recognised (by GB)?
• Did the Bering Sea belong to the Pacific Ocean?
• Did rights possessed by Russia pass to the US?
• If so, what were the rights over resources of the
  US beyond the 3-mile territorial limit?

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3. Development- 19th century-1945 Pacific Fur
Seals Arbitration (contd)

• US Arguments
• Breeding grounds were on US property, therefore
  were US property
• This property belonged to them even outside of
  territorial jurisdiction

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3. Development-19th century-1945 Pacific Fur
Seals Arbitration (contd)

• Decision
• Russia had not had exclusive jurisdiction beyond
  territorial limits
• USA inherited same rights
• No property rights outside the territorial limit
• Seals to be cooperatively regulated by states
  involved

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3. Development-19th century-1945 Trail Smelter
Arbitration 1941

• Facts
• Canadian smelter had been causing damage to US
  private timber forests from 1920s
• Some of the issues for the tribunal
• is damage caused by smelter at Trail?
• If yes, should smelter be required to stop damage
  in future?

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3. Development-19th century-1945 Trail Smelter
Arbitration 1941

• under the principles of international law, as
  well as the law of the United States, no State
  has the right to use or permit the use of its
  territory in such a manner as to cause injury by
  fumes in or to the territory of another or the
  properties or persons therein, when the case is
  of serious consequence and the injury is
  established by clear and convincing evidence
• tribunal established regulatory regime

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Development 1945-1972

• 1945 creation of the UN
• UNC Art 1(2)
• No subsidiary agency created for environment but
  specialised agencies included environment/conserva
  tion (FAO UNESCO)
• GA debates on oil pollution, nuclear tests--?
  Nuclear Test Ban Treaty 1963

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Development (contd) 1945-1972

• 1968 UNESCO Biosphere Conference
• ICJ activity Corfu Channel case 1949- obligation
  to not let property to be used for acts contrary
  to the rights of other states..
• Australia/NZ actions to stop Fr doing atmospheric
  tests (only Fr had not signed Test Ban treaty)
  but case in 1973
• Lac Lanoux Arbitrationlimits on right of states
  in use of shared rivers..

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Development (contd) 1945-1972

• Various reports presented by various UN agencies
  re environmental pollution, proposal by Sweden to
  assess impairment of environment
• ? GA resolution and Stockholm Conference on the
  Human Environment 1972 (UNCHE)
• 113 states, 1 head of state,
• 19 ios, 400 ngos

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Stockholm Conference on the Human Environment
1972 (UNCHE)

• Stockholm Declaration of Principles
• 26 Principles
• Action Plan to coordinate action between existing
  institutions
• Institutional and financial arrangements- UNEP

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Stockholm Declaration of Principles 1972

• Principle 21
• States have 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...

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Development 1972-1992Disasters

• Bhopal 1984

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Development 1972-1992 (contd)Disasters

• Sandoz 1986
• Chernobyl 1986
• Exxon Valdez 1989

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Development 1972-1992 (contd)

• Much treaty making, est. of ios
• Bruntland report 1987 Our common future
• UN Rio Conference on environment and development
  1992
• 176 states, 108 heads of state, gt50 ios, 700
  ngos admitted as observers, major companies
  (30,000 persons)
• Parallel to this was an alternative meeting of
  8000 ngos

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UN Rio Conference on environment and development
1992

• 3 non-binding instruments
• Rio Declaration (27 principles)
• UNCED Forest Principles
• Agenda 21
• and
• 2 treaties (worked out separately) opened for
  adoption
• Convention on Biological Diversity (in force
  since 1993)
• UN Framework Convention on Climate Change (in
  force since 1994)

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UN Rio Conference on environment and development
1992

• Rio Declaration
• Principle 1 -Anthropocentric approach stressed,
  nearly a right to a clean and healthy environment
• Principle 2 modified version of Principle 21
  Stockholm- right to exploit their own resources
  pursuant to their own environmental and
  developmental policies..
• Principle 3, 4 most controversial/most
  significant
• Principle 3 right to development (developing
  states)
• Principle 4 environmental protection is part of
  development (developed states)--?in practice,
  development lending attached to environmental
  conditions

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UN Rio Conference on environment and development
1992 (contd)

• Principles reflect concept of sustainable
  development
• (precautionary approach 15,
• polluter pays 16, cooperation through information
  10, 17, 18, 19)
• Mainly a consolidation and reflects concerns of
  developing and developed

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Developments 1992-2002

• Based on Agenda 21, UN has continued activity.
• 2 new treaties (Desertification Treaty 1994,
  Migratory fish convention), important
  implementing protocols to existing conventions )
• UNEP identified topics for next decade

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Developments 1992-2002

• 1997 UNGA special session
• Global environment worse than ever!
• Noted the urgency with which negotiations are
  needed in known areas- climate, biological
  diversity, forests, drinking water protection etc
• Urgency of dealing with poverty, changes in
  consumption habits required, energy, traffic,
  sustainable tourism

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Developments 1992-2002 (contd)

• No commitments by states, no impetus
• --? single states (only 4Brazil, Germany,
  Singapore, South Africa) felt compelled to call
  initiative for sustainable development,
  reform/strengthening of UNEP, strong commitments
  for env protection, forest convention

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• Johannesburg World Summit on Sustainable
  Development 2002
• 191 states, ? ios, gt8000 ngos, private sector,
  academia, scientific community

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Johannesburg World Summit on Sustainable
Development 2002

• 3 non-binding instruments
• Johannesburg Declaration on sustainable
  development
• (Different style, no principles)
• Plan of Implementation of existing instruments in
  10 areas (see notes)
• Public-private partnerships

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After 2002?

• How to make states ratify treaties?
• How to make states comply, with obligations, make
  states liability?
• Stronger role for ngos (since 1997 right to
  participate in special sessions of GA)

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4. Ios in international governance
UNGA IOC
UNSC GREENPEACE INT
UN ECOSOC FOEI
UNDP FIELD
UNEP IUCN
UN regional commissions ILC
ICJ IWC
IMO CoE
WORLD BANK MEKONG COMMISSION
ASIAN DEV BANK ILA
UNESCO FAO
WWF ECtHR and env
IAEA EARTHWATCH INST.
WTO
OECD